The Faculty Lounge

How to Defend a Scandal: Claremont-McKenna Version

Step One: Label the offending employee a “rogue”

During Dean Garris’ review of this matter, a senior administrator in the Office of Admission disclosed that he had been solely responsible for falsely reporting SAT statistics since 2005.

Step Two: Ignore any institutional benefits from said “rogue” behavior/minimize any institutional incentives or performance pressures that might contribute to employees' natural tendencies to engage in misconduct that provides them with no direct benefits

First, the individual has taken full responsibility and has resigned his position from the College effective immediately.

Step Three: Retain high-profile legal counsel

Second, we have engaged outside legal counsel from O’Melveny & Myers to complete an independent review of our admission-related data processes. 

Step Four: Launch an internal investigation/commit to strengthen the faulty internal controls such investigation will inevitably identify

Finally, we are reviewing our internal data gathering and reporting processes and will strengthen them to ensure that this type of conduct will not occur in the future.

And in related news, alleged UBS rogue trader Kweku Adoboli pled not guilty in court this week, generating fears that UBS may face fines for its conduct in the affair.

Full Claremont-McKenna letter from the president here.  NPR story below. Prior related posts linked here.

 

 

 

If You Use Twitter, Don't be Boring, Repeat Old News, or Use Too Many Hash Tags

Three tech scholars have posted a working draft of their co-authored paper Who Gives a Tweet? Evaluating Microblog Content Data.  Paul André (Carnegie Mellon and Southampton, UK), Michael S. Bernstein (MIT), and Kurt Luther (Georgia Institute of Technology) had 1,443 Twitter users rate 43,738 tweets.  Users rated the tweets as "worth reading," "ok" or "not worth reading."  Here's an excerpt of the findings:

Followers described 36% of the rated tweets as Worth Reading (WR), thought that 25% were Not Worth Reading (NotWR), and remained neutral about the other 39%. Given that users actively choose to follow these accounts, it is striking that so few of the tweets are actively liked. * * * The three most strongly disliked categories were Presence Maintenance, Conversation, and Me Now (the tweeter’s current status). 

Commonly cited reasons for classification of a tweet as "not worth reading" were that the tweets were boring, repeated old news, cryptic or used too many hashtags or "at" symbols.  There's a good write-up of the study here by Megan Garber at The Atlantic.

My own experiment with integrating Twitter into the classroom was a bit of a failure (detailed here and here), but my colleague Luis Chiesa is now tweeting up a storm with his Crim Law students about things like the #trolleyproblem.  #Maybe #my #tweets #were #just...#too...#boring.

The Pinnacle of Political Films

Thanks for another delightful visit to The Lounge. In honor of today being a rather "political" day because of the Florida Primary, I thought it might be fitting to conclude this month's visit with a post about political films. In Advocacy to Zealousness, two examples of films with political themes are Judgment at Nuremberg (1961) and All the King's Men (pictured, 1949). I recently found a group that votes for the best political films of the year, so I thought I would also raise the question here, expanding it to include all political films. What are some other great political films that should be on the list of the best political films of all time? Which films should be listed among the best of 2011?

More Test Score Fraud, More Resignations

The fraudulent reporting of standardized test scores continues - this time with an elite undergraduate program.  A senior administrator at Claremont McKenna College, in Southern California, resigned after admitting he'd provided US News critical reading and math SAT scores that had been inflated an average of 10-20 points each.  US News currently lists the school as the #9 liberal arts college in the country.  More details here.

A couple of months ago I noted that score fabrication has created a whole new business for accounting firms.  It appears that the potential client base for these firms - as well as the law firms that clean up these messes - is ever-growing.

Fathers, Sons and Presidents

With the apparent bursting of the Newt Gingrich bubble, Mitt Romney may well succeed where his father, George, fell short.

We’ve had fathers and sons reach the White House (John and John Quincy Adams; George H.W. and George W. Bush), father and son both fail in their bids (Birch and Evan Bayh), and successful father followed by unsuccessful son (William H. and Robert A. Taft).

Have voters before elected a president whose father had ran unsuccessfully for the Oval Office?

 

Searching for Bobby Burns in the Legal Academy

Over here at Letters of Note is a reprint of Scottish poet Robert Burns's 1791 reply a critic:

Dear Sir:

Thou eunuch of language; thou Englishman, who never was south the Tweed; thou servile echo of fashionable barbarisms; thou quack, vending the nostrums of empirical elocution; thou marriage-maker between vowels and consonants, on the Gretna-green of caprice; thou cobler, botching the flimsy socks of bombast oratory; thou blacksmith, hammering the rivets of absurdity; thou butcher, embruing thy hands in the bowels of orthography; thou arch-heretic in pronunciation; thou pitch-pipe of affected emphasis; thou carpenter, mortising the awkward joints of jarring sentences; thou squeaking dissonance of cadence; thou pimp of gender; thou Lyon Herald to silly etymology; thou antipode of grammar; thou executioner of construction; thou brood of the speech-distracting builders of the Tower of Babel; thou lingual confusion worse confounded; thou scape-gallows from the land of syntax; thou scavenger of mood and tense; thou murderous accoucheur of infant learning; thou ignis fatuus, misleading the steps of benighted ignorance; thou pickle-herring in the puppet-show of nonsense; thou faithful recorder of barbarous idiom; thou persecutor of syllabication; thou baleful meteor, foretelling and facilitating the rapid approach of Nox and Erebus.

Source:The Works of Robert Burns, Vol. 4. 

Are there other examples from the legal academy of expressive rejoinders as witty as this one by Burns?  The Martha Nussbaum v. Stanley Fish dust-up from the mid-1980's doesn't come close.  Other contenders?

 

 

On to Bone Marrow

So, my Taboo Trades class has finished blood and is now moving on to bone marrow.  To celebrate the occasion, I’ll be posting some thoughts, links to  Flynn V. Holder, which held that the National Organ Transplant Act did not prohibit payments to certain bone marrow donors, and miscellaneous entertaining stuff my students brought in this week.  I’m starting with the cartoon below, courtesy of Duke Law 3L,Benjamin Wood:

 

Of course, giving bone marrow isn’t the task it once was, a point made clear in Flynn v. Holder.  There are two methods of donation: peripheral blood stem cells (PBSC) and bone marrow aspiration.  According to the Court:

Until about twenty years ago, bone marrow was extracted from donors’ bones by “aspiration.” Long needles, thick enough to suck out the soft, fatty marrow, were inserted into the cavities of the anesthetized donor’s hip bones. These are large bones with big central cavities full of marrow. Aspiration is a painful, unpleasant procedure for the donor. It requires hospitalization and general or local anesthesia, and involves commensurate risks.

See this video from marrow.org, the National Marrow Donor Program, on traditional bone marrow donation.

 

However, according to the Court, in a new technique, now used for at least two-thirds of bone marrow transplants, none of the soft, fatty marrow is actually donated. This new bone marrow donation technique, developed during the past twenty years, is called “peripheral blood stem cell apheresis.”  This procedure begins with five days of injections of a medication called a “granulocyte colony-stimulating factor” into the donor’s blood. The medication accelerates blood stem cell production in the mar- row, so that more stem cells go into the bloodstream. Then, with no need for sedatives or anesthesia, a needle is inserted into the donor’s vein. Blood is withdrawn from the vein and filtered through an apheresis machine to extract the blood stem cells. The remaining components of the blood are returned to the donor’s vein. The blood stem cells extracted in the apheresis method are replaced by the donor’s bone mar- row in three to six weeks. Complications for the donor are exceedingly rare. 

See this video from marrow.org, the National Marrow Donor Program, on peripheral blood stem cell apheresis.

 

I'll be back with more later on why this distinction matters to the question of paying bone marrow donors.

Campbell Seeks Visitor

Campbell Law School may hire a visitor to teach Sales (three credits) during Fall 2012 and Spring 2013.  In addition to Sales, the second course in the teaching package probably will include Business Organizations (three credits), Secured Transactions (three credits), Evidence (three credits), or Professional Responsibility (two credits).  Each of these five courses is taught each semester.

Interested candidates can send a c.v. to me (zinneckert@campbell.edu), along with information on preferred semester (or preference for both semesters) and the ideal course package.   Each course mentioned above is a required course, so teaching experience in each course to be taught is strongly preferred.

General information on the law school (located in Raleigh) is available here.

White on Law in American History, Volume 1

This afternoon's mail brought the first volume of G. Edward White's planned three volume history of American law -- Law in American History: From the Colonial Years Through The Civil War. This is a fabulous book.  As long-time readers of the faculty lounge might suspect, this is the volume that's of most interest to me, because my primary area of interest is the pre-Civil War South (though I sometimes glance backwards to seventeenth century Quaker thought and also forward to African American thought in the early twentieth century).  When I first started working on the pre-Civil War era one of my early and important guides was White's Marshall Court and Cultural Change, 1815-1835 -- and it's a book I still use as a model for how to integrate constitutional doctrine into its intellectual context.  I highly, highly recommend Marshall Court to people looking for a one volume introduction to the methods -- and elegance -- of legal and constitutional history.  

The book is beautifully produced and it will occupy a place of pride on my shelf next to several of White's other books -- Marshall Court, the American Judicial Tradition, Oliver Wendell Holmes and the Inner Self, and Tort Law in America: An Intellectual History (which I blogged about some over at legal history blog some years ago).  Though, for those of you who're wanting to read some of it immediately without waiting for your copy to arrive, many of the chapters are on White's ssrn page.  My favorite chapter (on slavery, the Constitution, and the coming of Civil War), is here, for instance.   This is a really interesting model for making scholarship available -- and one that White has engaged in before.  You may also recall that his introduction The Common Law is HUP's website, too.   This model deserves a lot more comment at some point.  I'm guessing that White and OUP made the judgment that putting chapters up for free help get people interested in the full book -- probably a decent calculation.  It's certainly the right decision from the perspective of disseminating knowledge.

What particularly interests me about the Civil War chapter is how much it's tied to the military and political history of the War.  That chapter, but the whole book, really, is legal history deeply embedded in  American history -- and it is legal history like I have never seen it before.  Where White's earlier work was grounded first, I'd say, in the methods of intellectual history, this is grounded more in economic, social, and military history.  I look forward to what are certain to be the many and wide-ranging assessments of how White changes the methods of legal history and the questions we expect it to answer.  One of the things I think this book does is place American legal history at the center of the story of American history, so that it tells the story of our nation through the eyes of law, lawyers, and judges.  I think this is a critical methodological move.

Cornell on Popular Constitutionalism and the Original Debate Over Originalism

The ever-thoughtful Saul Cornell, who holds the Paul and Diane Guenther Chair in History at Fordham, has a new article, "The People's Constitution vs. The Lawyer's Constitution: Popular Constitutionalism and the Original Debate Over Originalism" in the Yale Journal of Law and Humanities.

Saul takes on a number of recent debates in originalism -- such as the extent to which we should be looking at the meaning among the voters, rather than the drafters, of the Constitution and its amendments.  One of his key themes is that whomever we're looking to -- whether it's the drafters or the voters or some even larger public -- that there needs to be much more attention to the intellectual context.  As Cornell provocatively phrases the issue (at page 335): " Until  Originalists  recognize that they must master the basic techniques of intellectual history and understand the major modern historical debates about eighteenth-century political and constitutional history, and gain something more than a passing knowledge of Foundingera sources, their claims will continue to generate ideological manifestos masquerading as serious scholarship."

There's a lot more that should be said about Saul's article and also about the shifting approaches of both originalism and popular constitutionalism.  I've been spending a lot of time of late thinking about Southern ideas of constitutionalism in the thirty years leading into Civil War.  I'm particularly interested in two issues -- first, the feedback loops between public ideas about the Constitution and judicial ideas.  Such as, how did southern ideas make Dred Scott look like a legitimate decision.  And,  second, how did those public ideas about constitutionalism shape the South's move towards secession?  The public ideas helped frame the South's complaints about Lincoln's election and also the ways that Southern politicians and voters responded; they also legitimated the South's actions.  While Saul and many of the other originalists are focused -- completely understandably on the eighteenth century and the post-war period -- I think their work on whose ideas matter and why those ideas matter will help us understand the constitutional origins of the Civil War.

The American Right to Health

 I’m just back from a terrific symposium on the right to health care at Boston University School of Law that was sponsored by the American Journal of Law & Medicine and chaired by Abby Moncrieff. Presentations by constitutional, health care and tax law scholars brought a very nice range of perspectives to the Affordable Care Act (ACA). The conference papers will appear in the AJLM in late spring; I’ll say a little now about mine, which builds on an earlier article in JAMA.

I’ve previously defended the commerce clause and taxing power justifications for the individual mandate to purchase health care coverage. But the chief threats to the rights in ACA lie not in any constitutional infirmities. Rather, they rest in defects of design. Even if the Supreme Court upholds the law, its basic protections may unravel in the future. As other public benefit programs have shown, it's difficult to sustain programs that serve only the poor. Universal programs like Medicare and Social Security fare much better than targeted programs like Medicaid, and ACA's access-to-coverage provisions are mostly aimed at the poor and near poor. If past is prologue, we need to worry whether the financially secure will support adequate funding for the coverage expansions over time.

A Medicare-for-all, single-payer reform would provide greater stability, but we know about the political obstacles to that path. A modified version of John McCain's 2008 health care reform proposal might be both effective and politically feasible.

Farewell to Hull House

The Jane Addams Hull House Association shut its doors last week.  The Chicago Tribune detailed the organization's financial troubles:

Jane Addams Hull House Association will be out of business Friday, leaving employees and clients scrambling to fill a void the 122-year-old organization will leave. * * *

On Jan. 19, the agency announced it would close this spring. But by the following day, Saunders said, the board realized Hull House did not have enough funds to pay employees beyond January, and the decision was made to close in a week.

With government funding taking a hit and the need for services climbing, Hull House's revenue dropped from $40 million in 2001 to just $23 million in June.

"We could not possibly raise enough money to sustain the organization," Saunders said.

Read the full article here. The Association offered services to victims of domestic violence, senior citizens, small businesses and youth.

The Jane Addams Hull House Museum, a separate entity (and part of the College of Architecture & the Arts at the University of Illinois at Chicago), is not closing.  Here's how the Museum describes the importance of Hull House in American History:

Founded in 1889 as a social settlement, Hull-House played a vital role in redefining American democracy in the modern age. Addams and the residents of Hull-House helped pass critical legislation and influenced public policy on public health and education, free speech, fair labor practices, immigrants’ rights, recreation and public space, arts, and philanthropy. Hull-House has long been a center of Chicago’s political and cultural life, establishing Chicago’s first public playground and public art gallery, helping to desegregate the Chicago Public Schools, and influencing philanthropy and culture.

For more on Jane Addams and Hull House, a few books come to mind: Jane Addams, Twenty Years at Hull-House (1910); James Weber Linn, Jane Addams: A Biography (1935); Louise W. Knight, Jane Addams: Spirit in Action (2010) and Jean Bethke Elshtain ed., The Jane Addams Reader (2002).

Villanova Law Seeks VAP's

The folks at Villanova Law are in the market for two visiting assistant professors for the 2012-13 school year.  A job announcement is here.

Profs to Watch Out For

As the hiring season winds down and the new profs prepare themselves to enter the academy, it might be a good time to share some 'office politics' tips and tricks, to the extent that there are any worth sharing and/or of general application.

In reading an essay in Charles Baxter's, Burning Down the House this weekend, I ran across this description of a faculty member in an English department... 

I once had a rumpled and messy friend who was a colleague where I worked.  The crucial word here is "once".  Most offices have someone around like this person.  He was, for a time, unfailingly helpful to young faculty members.  He invited them for dinner.  A great raconteur and gourmet, he could cook and talk simultaneously and brilliantly.  He loved to help out people who were in a weak position.  In this role, he was lovable.  When they established themselves, when they no longer depended on him, he dropped them.  He invented imaginery crimes that they had committed and wouldn't speak to them and would pass them in the hallways without nodding.... He went away for a year and when he came back he was speaking to almost no one.  ("Maps and Legends of Hell" in Burning Down the House,  2 ed, 2008, p. 130)

Anyone run across this type in law schools?  Any other stereotypes that new profs should avoid or tread carefully around?

Any advice for the unwary?

It's a great profession - goes without saying - but there's office politics like everywhere else.  What do you wish you had known when you started out?

 

Oscar Disappointments

A couple of weeks ago I blogged asking readers for advice on what movies I should see to prepare myself for the Oscar race.  Boy did I choose wrong.  After dragging myself through Take Shelter, enjoying Young Adult and hanging in there for the U.S. remake of Dragon Tattoo, I find I have missed most of the movies that got the big Oscar noms.  I still haven't seen The Descendants, The Help or The Artist.  And Iron Lady only just opened in Cleveland...

But as bad as I feel, I have to feel worse for poor Michael Fassbender who garnered so much 'early buzz' and then completely struck out despite having donned some truly ludicrous costumes in X-Men, taken it all off in Shame and had a contentious affair with a patient in Dangerous Method. 

Who else do folks feel bad for this year?

Boydton Prison

The Washington Post has an article on the impending closure of the Boydton, Virginia, prison, which will have a devastating effect on the local economy.  I'm particularly interested in this because I've visited Boydton a few times over the past several years to see the remains of Randolph Macon's pre-war campus there.  (And a Confederate monument in front of the courthouse, of course!)  It's a beauitful part of Virginia and I recommend the trip if you're driving down I-85 and can spare the time for a side-trip.  It's also a place I want to go back to sometime to look at their probate records, but that's a story for another time.  What I find important is how the prison represents a lifeline for that small and poor community, especially after the local candy factory and mill closed.  And now even that's going to be closed, in large part because Pennsylvania no longer wants to pay Virginia to house 1000 of their inmates.

This also reminds me of something I've been meaning to blog about for a while now: a trip I took last summer to Chester, Pennsylvania, shortly after the trip I made out to Cherokee, North Carolina.  The nicest -- by far -- building in Cherokee is the Harrah's Casino.  I was there with a friend who studies indigenous people and so one of the things we wanted to do was to see the effect of the casino on the community.  While I fully realize that the casino brings in money to the community, it sure looked like that money wasn't well-distributed.  The casino is beautiful; the surrounding buildings aren't.  The casino is also the only place in Cherokee Country where you can buy alcohol.  Yes, really.  Anyway, to get back to the story, a couple weeks later I was up in Chester and a friend there mentioned to me that the local casino -- which looks remarkably like the one in Cherokee -- is across the street from the Chester jail.  There's something incredibly poignant about the juxtaposition of those two American institutions across the street from each other.  The casino and the jail.  Next time I'm back there I'm going to try to get both in the same picture.

Dean Search Update: Brooklyn

The four finalists to become the next dean of Brooklyn Law School are Patton Boggs partner Nicholas Allard, Tulsa law dean Janet Levitt, former Cornell law dean and former Grinnell College president and current Washington University visiting law professor Russell Osgood, and Brooklyn law professor Lawrence Solan.

Michael Mushlin on Aging Prison Population

My colleague Michael Mushlin (shown at right) is one of the authors of The Rights of Prisoners, a multi-volume treatise.  He shared with me these thoughts on a recent report from Human Rights Watch.  I reprint Michael's comments with his permission:

We often think of prisons as places filled to the brim with young aggressive men.  However, according to a report issued yesterday by Human Rights Watch entitled Old Behind Bars: The Aging Prison Population in the United States the reality is that many prisoners today are more in need of old age homes than they are of prison cells.  The report found that the number of sentenced state and federal prisoners age 65 or older grew at 94 times the rate of the overall prison population between 2007 and 2010. The number of sentenced prisoners age 55 or older grew at six times the rate of the overall prison population between 1995 and 2010.  The reason for this upsurge in the number of elderly prisoners is sentencing laws in the United States.  Currently over 10% of the prison population are serving life sentences and another 11% have sentences of greater than 20 years.

Prisons are not designed as geriatric centers. Thus, for the growing number of older prisoners, many of whom are frail, with myriad of problems associated with old age, prison confinement without adequate attention to their needs becomes harsh and punitive.  The report makes three recommendations. The first is that sentencing and release policies be modified to allow for release of prisoners whose condition no longer justifies incarceration. Second that plans be developed for housing, medical care, and programs for this population of older prisoners. And finally that prison rules that make no sense for older inmates be reformed. The report, which is important and timely, is found here.

 

The Case for Transfer on Death Deeds

Jennifer Jiang has the latest on the case for transfer on death deeds in the North Carolina Law Review.   Jennifer makes the case for these deeds, because they're of use to people of relatively modest means and sophistication and I hope we'll see more of this kind of scholarship and legislative action, too.

But there's also a scholarly story in here, too.  This is part of a trend of increased scholarship on trusts and estates.  That trend is moving in two directions -- first, toward solid and traditional doctrinal analysis; and, second, and of special interest to me, of the exploration of historical and critical perspectives on trusts and estates.  I'm thinking here, for instance, of Jason Kirklin's empirical study of probate in pre-Civil War Indiana last year in the Ohio State Law Journal, but also of what seems to be increased focus on the race and gender as they relate to trusts and estates.  One example of this that comes to mind immediately is Bernie Jones' book, Fathers of Conscience.  Will be most exciting to see where this all goes! I think that old idea that trusts and estates scholarship is an intellectual backwater is, well, outdated. (More thoughts on the field of trusts and estates, especially as it relates to the gender of faculty, here.) 

Dean Search Update: St. Thomas (Minnesota)

Our friends at St. Thomas (Minnesota) have posted a position announcement for the next dean of the law school.  Applications, nominations, and inquiries can be directed to Professor Tom Berg, co-chair of the search committee.