The Faculty Lounge

The Last Polka

My guest blogging began with a post in memory of The Band’s Levon Helm.  I would be remiss if I did not circle back by sharing a hidden gem and seeking other Shmengeheads. 

The Shmenge’s Last Polka is a mockumentary about brothers, Yosh (John Candy) and Stan (Eugene Levy) Shmenge, retiring from a long and illustrious career as the greatest Polka duo ever.  The format follows Martin Scorsese’s classic, The Band The Last Waltz.  The Shmenges were born on Second City TV and also known as the Happy Wanderers.

 Unfortunately, this classic has not made its way across the digital divide and is not (yet?) available on DVD, or whatever we’re using now.  Fortunately, a fellow Shmengehead posted the film in several parts in cyberspace. Here’s a part of the film with a Linsk Minyk (Rick Moranis) sit-in and banter.

 Thank you to the Lounge regulars for sharing their forum and to all the readers for sharing their time.  I hope to see/meet you at SEALS later this summer or somewhere down the So Many Roads we all know.

Cheers,

Joe

p.s. The last link above is to a late era Robert Hunter / Jerry Garcia song.  Jerry flubs a few lyrics, but this inspired performance from the Boston Garden in 1994 is worth seven and a half minutes of any music lover’s time, at least once.  For some reason, Jerry vocally wails on “to heal my soul” at the end, instead of the usual “to ease my soul.”

 p.p.s. RIP Doc Watson.  Sitting on Top of the World

 

Law & Morality: John Edwards' Defense Works

In closing arguments, John Edwards' attorney argued that he committed sins, not crimes.  With one not guilty verdict and a mistrial on the other five counts due to a deadlocked jury, it appears that his defense worked.  This explicit defense separating law from morality could be good fodder for Jurisprudence courses and other dicussions about the overlap between law and morality.

For an interesting read on how the National Enquirer broke the story, here's an article on Huffington Post by David Perel, then-Editor-in-Chief of the National Enquirer.  The article details the investigation and provides Perel's take on what this saga says about our presidential politics and the ability to find truth in courtrooms.  Here's an excerpt:

Edwards, Hunter and Young retained separate counsel in an attempt to stop the Enquirer's expose of the affair, the pregnancy and the money trail. None of them knew that for months a team of Enquirer reporters, living in Young's gated community, watched Hunter and Young daily and had knowledge of Hunter often dining at the Young's house. So when Andrew Young and his attorneys contended that HE was the father of Hunter's baby, incredulity was replaced by laughter from my team. Yes, we were supposed to believe that he brought his pregnant mistress home regularly for dinner with his wife and children.

I can imagine The Who's I'm Free running through Edwards' brain head right about now.

 

Dewey & LeBoeuf and “Clawbacks”

News accounts of the hearing on the first-day motions in the Dewey & LeBoeuf bankruptcy reported that the secured lenders whose cash collateral the liquidating debtor-in-possess must use to wind down its affairs asked for a lien on avoidance actions (popularly known as “clawbacks” although I would subtract points on a bankruptcy final exam from any student who used that term) as additional collateral. They didn’t get it, at least not yet. Clawbacks typically come in two flavors: recovery of either preferential transfers under Bankruptcy Code § 547 or fraudulent conveyances under § 548. The objects of these avoidance actions would, I suspect, be the (overly) highly-paid partners whose guaranteed compensation packages proved the firm’s ruin. The report here of the retention by a number of former D&L partners of attorney Mark Zauderer confirms my suspicion.

All reports suggest that D&L’s unsecured creditors will be out of the money; not a crumb will be left after secured bank and bond debt is paid. Thus, for unsecured creditors to collect even a dime will require vigorous pursuit of avoidance actions. I wouldn’t mind becoming the Irving Picard (of Bernie Madoff bankruptcy fame) of D&L ($554 million and counting in fees so far per the NYT).

A good place to start might be “rainmaker Ralph Ferrara” who, according to a Global Legal Post article here got “$16 million to offset the fully vested pension he lost in the move [from Debevoise & Plimpton], and recreating his Debevoise office down to the paint color.” Say what? How does one need compensation for a “fully vested” pension? If fully vested means fully vested, Ferrara could have suffered no loss in his switch to D&L, and his $16 million pop should be low-hanging fruit in an avoidance action. And even if Ferrara did suffer a $16 million hit when he left Debevoise & Plimpton, one could be forgiven for suspecting that D&L didn’t get “reasonably equivalent value” for paying him that much simply for jumping on board. I’m sure Ferrara had a great book of business and all but $16 million plus guaranteed compensation!? Gotta wonder.

Scott Pryor

CFP: Climate Change in the Former Colonies -- Challenges of Property and History

My friend Jill Fraley, a property professor and legal historian at Washington and Lee University, has just circulated a call for papers for a conference this fall on "Climate Change in the Former Colonies: Challenges of Property and History."  This promises to get some really terrific discussion going, among several groups who don't usually talk with one another, but ought to: legal historians, and scholars of property and the environment. Here is the CFP (and a press release is here). The deadline for proposals is June 30, 2012.

I can imagine a lot of really interesting papers here -- stretching back to the colonial era to look at how property law encouraged the development of the law (and maybe even how this is depicted in landscape art).  I would imagine there's a lot that should be said about this in the literature of the nineteenth century -- and perhaps even something from southern, pre-Civil War fiction on how the desire for economic development led to over-use of natural resources.  Now that I think about it, Washington College's President Henry Ruffner had more than a few things to say about this topic, in his attack on slavery.

Of course there is an immense amount to say about this from a contemporary perspective, too -- and I should imagine that the Shenandoah Valley is an ideal setting for this discussion.  Though this is too far outside of my current research interests to deliver a paper, I am looking forward to attending the conference in Lexington on October 12.

Can Hiring Committees Learn Anything from Sports?

With the NBA lottery draft order being decided tonight, I think this is a good time to throw out an idea I’ve been mulling over for quite some time.  Tell me if I’m off base, right, or something in between.

In the months leading up to the 2004 NBA draft, the Orlando Magic, holding the first pick, had to choose between Emeka Okafor and Dwight Howard.  Okafor had proven himself to be a star in college.  Howard was the unproven prospect with limitless potential who was coming straight to the NBA from high school.  The Magic, of course, chose Howard.  And it was the wise choice.  Okafor is a decent role player.  Howard is a superstar.

In terms of entry-level hiring, the Okafor candidate would get hired over the Howard candidate at basically every law school.  The reason why, I think, is because GMs and scouts of the NBA, NFL, etc. think that being “talent evaluators” is the best way to improve their team.  Hiring committees, on the other hand, opt to be “talent predictors.”  If my hunch is true, it's a big mistake.

Let me explain the difference.  Talent evaluators look at the entire candidate—their skill-set, ambition, love for the craft, personality, etc., AND past performance to make an assessment into how one will perform in the future.  Talent predictors look almost solely at a candidate’s past performance as the predictor of future performance.  Talent evaluators can see the potential in guys like Cam Newton, LeBron James or Bryce Harper.  Talent predictors would never get behind any of those three, but would vouch for guys like Ron Dayne, Kellen Moore and Shane Battier.

The sports analogy does not perfectly fit with the legal academy.  But I use the analogy as a launching pad for a discussion concerning whether hiring committees are looking at their duties in the best way.

 

Roads Not Taken to RadLAX

Justice Scalia writing for eight member of the Court (notice of Justice Kennedy’s recusal came the morning of oral arguments) went out of his way to deny that past practice under the Bankruptcy Act need be considered to justify the Court’s conclusion that credit bidding must be permitted under the Code: “As for pre-Code practices, they can be relevant to the interpretation of an ambiguous text, but we find no textual ambiguity here.” That two Courts of Appeal had concluded otherwise garnered not a mention (the Fifth Circuit in Pacific Lumber and the Third in Philadelphia Newspapers). I was disappointed by the failure of the Court to address pre-Code practice and not only because a nifty history of that practice was one of the burdens of the Professors’ Brief. Without the context of the 1976 Pine Gate decision, which had denied a secured lender the right to credit bid and which, in turn, led to the enactment of Bankruptcy Code § 365(k) explicitly preserving the right in pre-confirmation sales, and the long history of credit bidding, the Court’s claim of “no textual ambiguity” sounds more like an ipse dixit than a reasoned conclusion.

Less disappointing but a bit disconcerting was Justice Scalia’s statement that “the pros and cons of credit-bidding are for the consideration of Congress, not the courts.” Well, yes but how far does Congressional power extend when it comes to eliminating credit bidding? (Although I hardly anticipate this or any future Congress would be likely to do so.) The second (and, frankly, more interesting) argument in the Professors’ Brief was that eliminating secured lenders’ rights to credit bid would be unconstitutional. Not that I expected the Court to pick up this line of argument but I would have preferred that it not expressly leave the question open for subsequent Congressional muddling. On the other hand, plenty of others disagree that credit bidding is a right to property protected by the Fifth Amendment so the Court’s snippet of dicta will keep the argument open.

Most Court watchers knew the debtor was in for a particularly tough time when the Solicitor General moved to intervene on behalf of the lenders. I wonder how many times the SG has been on the losing side in a bankruptcy case? And the SG’s argument caught the Court’s attention: “That right [to credit bid] is particularly important for the Federal Government, which is frequently a secured creditor in bankruptcy and which often lacks appropriations authority to throw good money after bad in a cash-only bankruptcy auction.” If you’re a legal realist, this is the nub of the Court’s “no textual ambiguity” interpretive bent. To permit a plan of reorganization to deny the right to credit bid would be to open the door to sales over the objection of the federal government. And, unlike private lenders who frequently have the wherewithal to pony up enough cash to bid up to the amount of their loans (like in Philadelphia Newspapers), federal agencies simply do not have the power to do so. To hope for the Court to cut off its co-equal branches like this was a lot for the debtor to expect.

Scott Pryor

Guest Blogger Scott Pryor

I'm pleased to welcome into the Lounge my friend, and Regent law professor, Scott Pryor (pictured).  Scott teaches and writes in the UCC/commercial/bankruptcy area.  He has been at Regent since 1998, was a Fulbright Scholar (India) in 2009, and a visitor at Campbell during the 2010-11 academic year.  You can view a list of his scholarly works (many of them in downloadable form) by clicking on the link above. 

And he has his own blog:  Pryor Thoughts.

Scott will be sharing his thoughts on the U.S. Supreme Court's decision, announced earlier today, in the bankruptcy case of RADLAX GATEWAY HOTEL, LLC, ET AL. v. AMALGAMATED BANK.

Scott's first post:

Plain Meaning With a Twist

While it might not pack the excitement of some Supreme Court cases, RadLAX Gateway Hotel v. Amalgamated Bank is certainly important to the world of bankruptcy law.  On Tuesday the Court made an easy case of it, perhaps a bit easier than it should have but one that I ultimately believe was correct.  (Disclosure: I was one of the signers of the so-called “Professors’ Brief” urging the Court to affirm the decision of the Seventh Circuit, which it did, albeit on different grounds.)

Overcoming a straightforward “plain meaning” argument by the debtor, the Supreme Court unanimously held that “or” doesn’t mean “or” when to do so would be “be hyperliteral and contrary to common sense.” When is that the case?  According to the Court, when to do so would allow the general rule to swallow the particular.  A rather pedantic position but one that the Court uses with some regularity.

And how do we know when that’s the case?  When is the plain meaning not so plain?  Here the Court (did I mention that Justice Scalia authored the Court’s opinion?) cited two factors.  When application of the general principal would render the specific rule superfluous.  In other words, when the specific maps entirely within the general rule.  And, second, when there are no “textual indications that point in the other direction.”  Of course, that’s what RadLAX argued here; that the disjunctive “or” between Bankruptcy Code § 1129(b)(2)(A)(ii) and (iii) contraindicated the general rule of statutory construction. But there were no buyers on the Court for RadLAX’s argument. Some thoughts on why later.

Memorial Day

Well, given my interests in cemeteries and memory, Memorial Day is one of my big holidays.  And so digging deep in the stock of photographs, I thought that I'd post a couple of pictures I took last summer of cemeteries.  The first is the section for Union soldiers in the Mount Moriah Cemetery in West Philadelphia.  I was there with Norman Stein, checking out the cemetery, which has undergone a real transformation of late.

The second is of the Chester Rual Cemetery. which was estalished during the Civil War.  I blogged a little bit about this last summer.  I not all that happy with this version of the Chester Rural Cemetery, but I needed something with the US flag -- preferably lots of US flags -- and this seemed the best of what was available.  I spend so much time in the south that my stock is much deeper in monuments to the Confederacy than the United States.  The former are obvioulsy inappropriate for today.  Though I did think about a photograph or two of people who fought in the Spanish American War and whose ancestors fought for -- or otherwise supported -- the Confederacy.  I have one of those from the Clemson Cemetery (of a Calhoun descendant) and also one from the Spring Hill Cemetery in Lynchburg (of a Jubal Early descendant).

Gerber on Origins of Judicial Review

Here is a link to the Federalist Society's podcast of a discussion by Scott Gerber and James Pfander about Gerber's new book, A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606-1787.  I haven't yet had a chance to read the book, but I'm looking forward to it.

Stephen Carter's Defense of the "Faculty Lounge"

My colleague Bill Turnier just sent along Stephen Carter's defense of "the faculty lounge" (though not this faculty lounge!), which appeared on Bloomberg.com.  Here area  couple of excerpts:

To believe in the faculty lounge is to believe that ideas matter, that people can and often do respond to appeals not to their self-interest but to their reason. As the economist Deirdre N. McCloskey argues persuasively in her excellent book “Bourgeois Dignity: Why Economics Can’t Explain the Modern World,” it is better ideas more than anything else that have built the West. You cannot explain the Industrial Revolution, for example, simply by “adding up the material causes.” There are reasons that some countries adopt particular technologies, laws or norms that others could but don’t. One of those reasons, McCloskey contends, is better ideas. ...

Why, then, this urge to attack both university faculties and the lounges where they gather for coffee and argument? One answer was offered half a century ago by Richard Hofstadter in his Pulitzer-Prize-winning “Anti-Intellectualism in American Life.” The disdain for the highly educated, he points out, stems from the supposition that the dominance of the intellectual is undemocratic.

Read the rest here.  At some point I want to return to the topic of anti-intellectualism in American life.  I'm not sure the problem is that academics are anti-democratic as that they are so often wrong on issues for which there is no certain answer.  Throughout much of our history, the academy worked in conjunction with the powerful and the affluent, not in opposition to it.   In fact, this is a key theme of University, Court, and Slave -- which I discuss in early form here.

Favorite Schoolyard Games

A couple of years ago, the folks at The Big Bang Theory brought us the famous twist on the old schoolyard game "Rock, Paper, Scissors" by giving us their new improved version "Rock, Paper, Scissors, Lizard, Spock".  According to Wikipedia the new version was not developed by the Big Bang Theory producers and was used in the show without permission of the developers.

Last week, my younsters came home from school with another version:  "Rock, Paper, Scissors Builder".  In this version the players get to add new items to the list and describe their powers and properties as they go.

This got me to wondering whatever happaned to those old schoolyard games we all used to play?  Are there other 'new and improved' versions people have developed?

Intent, Equal Protection and Correcting History

In part of my work, I get to discuss whether criticizing some southern blacks for their meekness in the 1930s was a smart way to empower them to resist state-sponsored oppression.  In the other, I get to analyze the Intent Doctrine—the requirement that claimants asserting that they have been denied equal protection must prove intent to discriminate.

Basically every scholar who has written anything on intent and equal protection repeats the same line: The Supreme Court announced the Intent Doctrine in Washington v. Davis, a 1976 case concerning black police officers suing the nation’s capital for allegedly discriminatory hiring practices.

But tracing the Intent Doctrine back to Davis is historically wrong. 

Outlook for Law School Applications in 2030?

Much has been said about the trend in law school applications.  I now have strong evidence that applications may be few and far between, around the year 2030.

I attended my youngest daughter's graduation from pre-school this morning.  Among the 25 soon-to-be kindergartners (an adequate sample, don't you think?), the most popular choices for "when I grow up I wanna be ..." were (in alphabetical order):  doctors, fire fighters, landscapers, mommies, princesses, and veterinarians.

Not an aspiring lawyer in the bunch.

Maybe if The Disney Channel dropped Phineas and Ferb, and ran To Kill a Mockingbird now and then ....

Reviewing The 2011-12 Law Dean Searches

Want a handy updated summary of the year's dean search action?  It's here.  I've included a couple of incipient dean searches as well for those starting to think about next year.  Here is a bit of statistical data to chew on: of the 19 new deans hired, 14 are men.  At least three are people of color.  Where did these people come from?  Five came from outside of academia: two from the bench and three from some politically-related activity.  

And then there are the JD alma maters.  The new deans received their first law degree from the following law schools: 

Yale (4) 
Duke (2)
Albany
American 
Buffalo
Cal-Berkeley
Case
Chicago
Emory
Fordham
Loyola - New Orleans
Univ. of Natal
Northeastern
Oklahoma 
Texas 

I have previously argued that the JD pedigree of dean candidates matters far less than for new faculty hires.  This claim is more than borne out by this year's data.  Just fewer than half of the new hires graduated from what could be termed a super-elite law school.  For those who wonder whether the new hires coming from outside academia have a less elite JD pedigree...not really.   Their backgrounds are fairly representative of overall hiring.  Of that group of five, two have JD's from Yale, one from Texas, one from American and one from Oklahoma. 

 

 

Teaching Methodology Question

In an effort to self-assess and improve my teaching, as well as to provide the 1Ls I will be teaching next Fall with tips from successful prior students, I sent an email with several questions to the students that earned an A- or A in my Contracts II class this Spring.  Here is the list of questions:

1. How did you prepare for class?
2. How did you approach your time in class?
3. How did you prepare for the exam?
4. Did you use any commercial study aids?  Helpful or not? Which ones?
5. Did you participate in study groups? How often? How many people? Helpful or not?  (No names, please.)
6. What can I do to improve my in-class performance? (Please be frank and candid about my in-class weaknesses.)
7. What do I do in class that is helpful?
8. What would you keep about the class structure? (reading assignments, going over problems, hypos, cold calling, etc.)
9. What would you change about the class structure?
10. What are your thoughts on the exam structure?
11. Do you have any other comments?

Of the responses received thus far, all students answered number one along these lines: did the reading and took notes before class.  Shocker, I know.  But, I believe this will be good info for the incoming 1Ls: It’s not rocket science, but it requires hard work.

Here is a specific response to question 6:

I would suggest trying to explain some of the subject matter first, and then using the cases to apply it. I felt like most of the time, we did it the other way around--went through the cases and then relied on the notes after the cases to extract what subject matter we needed to pull from the cases. 

The student is correct about the methodology. Here was my response:

There is a pedagogical reason. If I tell students the rules upfront, students will tend to memorize rules. If students have to work through the cases and notes, then students will better internalize law because they formulated the conclusions more on their own.  This is part of the “thinking like a lawyer” meme students often hear from law profs.  I never want to leave students hanging, and telling the rules upfront helps students know them more quickly, but I’m not confident they understand the rules / rationales more deeply.   This is similar to the idea that a student who makes their own outline knows the material better than the student that simply received a prior student’s outline or a commercial outline. It’s the hard work and struggle that builds a lawyer’s mind.  That said, you don’t have to agree with my approach and I will certainly continue to think about this issue.

I am curious about your thoughts on how to approach classroom learning.  Do you have any thoughts on the student’s view or mine?  Is stating the rules upfront a better approach?  A good approach?  What techniques do you use with 1Ls?

p.s. Crosby Stills and Nash’s Teach Your Children or Steely Dan’s My Old School would be fitting songs for this post, but David St. Hubbins Michael McKean is on my mind after being hit by a car in New York City yesterday.   McKean's leg was broken and he is expected to make a full recovery, but understandably will not be performing tonight in "Gore Vidal's The Best Man."   Get well soon, Michael and remind your understudy of this mantra: Tonight I’m Gonna Rock You Tonight!

VAPs, Fellowships and Minority Hiring

I have not seen much discussion on this, so I wanted to see what others think.  It is becoming increasingly clear that having a Visiting Assistant Professorship or a Fellowship under one’s belt is very important in terms of getting an entry-level tenure track position.  The question is, how does this affect the hiring of minority law professors?  Is it having a detrimental effect, beneficial effect or no effect at all?

The Administrative Forms for Sterilization

Well, the hearing on the bill to provide compensation to sterilization victims went well.  Several survivors and family members spoke, as well as several middle school students.   As I was driving back with a couple of law students we remarked those students and their teacher really had their act together!

The committee had a thoughtful debate about the bill.  The anti-reparations arguments rested largely on this isn't the responsibility of the current generation (and also to some extent, a lot of other states did this, so North Carolina shouldn't be singled out).  That was countered by the argument that are people still living who are suffering as a result of the state's action.  I wasn't surprised by any of the arguments; but I was pleasantly surprised by the outcome.

The house judiciary committee passed the bill, so it's on its way.  Looks like this is actually going to make it -- and will be just another episode of realistic reparations.

Along the lines of the "this was done by the state" argument, I thought you might find the forms that the state prepared to facilitate the petitions for sterilization of particular interest.   The forms were reprinted in a lot of places, including a 1938 pamphlet from the Eugenics Board that made the case for sterilization.  It never ceases to surprise me how technology is harnessed to effect the ends of the state.  And how much those forms were designed to stream-line the process.  And perhaps you'd find also of interest the appendix to Moya Woodside's 1950 study of sterilization in North Carolina, Sterilization in North Carolina: A Sociological and Psychological Study, which tells the story of "illustrative cases" of people who were sterilized in the 1940s.

The illustration is the Judiciary Committee hearing, where Representative Larry Womble, who's been the champion of this issue for about a decade now, moved the bill.  This was his first appearance in the legislature, I think, since he was in a car accident last fall.

Woodside on Sterilization in North Carolina

Moya Woodside's book Serilization in North Carolina published by the University of North Carolina Press in 1950 as eugenics was losing support in many places is an important source of information on how the Eugenic Board operated and how people charged with enforcing the state's sterilization statute and those governed by it thought.  Here are the second chapter, the fourth chapter, and the fifth chapter.

Zaring On Regulatory Competition And The Financial Crisis

David Zaring discusses at RegBlog:

One question posed by the recent financial crisis was whether our confusing and disaggregated approach to financial regulation in the United States was to blame for the downturn.  Did our regulators fail to identify weaknesses in the financial intermediaries they oversaw that they should have seen? 

Dain Donelson and I attempted to answer part of this question by studying the performance of the Office of Thrift Supervision (OTS) during the crisis. OTS was the smallest federal banking regulator, the one most criticized by Congress for its performance, and the only agency sanctioned in the Dodd-Frank Act: it was eliminated, and its functions were moved elsewhere in the Treasury Department. Our research examined a particularly disparaging criticism of OTS: did this agency offer banks soft touch regulation as a way of competing for supervision fees against more rigorous regulators?

We did not find much evidence in support of this oft-proffered view. 

Read the whole thing here.

 

In Defense of Black Solidarity

In my previous post, I noted that in the manuscript I’m working on I am arguing that blacks must continue to manage racial loyalty norms to help build group unity.  With that unity, blacks can improve their legal interests. I obviously, therefore, strongly champion black solidarity.  I’m not certain of this, but I get the feeling that racial solidarity among black academics has fallen in disfavor, at least compared to previous generations.  Here I hope to outline what form of racial solidarity blacks should support and defend it from a popular conservative attack.