The Faculty Lounge

Is Accreditation Like High School?

    I want to thank the hosts for allowing me to guest post on the Lounge. I look forward to sharing some views from the outer edges of legal academia: a newly accredited law school that has been operating in one form or another for almost a third of a century. There are three interesting data points in the process of establishing this school: operation as a private state-accredited institution; as a public state-accredited institution; and now as a provisionally accredited school. All seem to be like attending high school.

    Phase 1 (a private non-affiliated non-ABA school): You are a new student in the school. You so much want to be liked but you have no confidence that you will be. You try to get an invitation to the big dance, but the popular students (other law schools) don’t want you there. You keep doing everything you can to look like a successful high school student but, at the end of the day, you can’t afford the proper clothing to go to the dance because the cost is defined to be just more than you can afford.

    Phase 2 (a public university’s non-ABA school): Although still an outsider to the “cool kids,” your single parent got married to a rich and very powerful spouse. Now, although the popular students still insult or ignore you, enough others like you that you get to go to the dance. You aren’t significantly different than you were when you started school, but because of the marriage, you now are seen as having potential.

    Phase 3 (provisional accreditation): To be determined. Having only been provisionally accredited for two weeks, it is hard to tell if we are like students who are finishing high school and thinking about college choice and adult futures, or students who have finally passed the important test and will now be allowed to continue in the next year of education.

Courthouse Trivia

Perhaps it's time for a little more courthouse trivia?  In honor of President Sullivan, I thought that I'd post a little this week on things related to Virginia.  So this is a courthouse in Virginia.  Where is it?  

Ralph Clifford Stepping into the Lounge

It's my pleasure to announce that Professor Ralph Clifford of the University of Massachusetts-Dartmouth School of Law is stepping into the faculty lounge to guest blog with us for a spell.  Ralph went to collage at Duke -- so he continues the tradition here at the faculty lounge of having bloggers who've spent time in North Carolina -- and then New York Law School.  His practice experience was in real estate, litigation, and technology and his publications include Computer and Cyber Law Cases and Materials (1999) and Cybercrime: The Investigation, Prosecution and Defense of a Computer-Related Crime (3d ed. 2011), as well as many articles on intellectual property.

I understand that Ralph's going to be talking some about legal history and property, among other topics -- two areas very close to my heart.  And perhaps we'll even see some of his photography of sites important in Supreme Court cases!

Barros Guest Post: Allow Students To Take Bar Exam After Two Years

The following is a guest post by Ben Barros of Widener Law School:

Legal education is being pressed to reform.  The existing state of regulation by the ABA and state bar associations tends to lock schools into current modes of education.  If we are going to achieve change in legal education, then in at least some contexts we may need to first reform some of the regulations that shape the system that we have now. 

I propose a simple regulatory reform that could have a large impact on legal education.  In our current system, law students must graduate from law school before they can sit for the bar exam.  In the system I propose, law students would be able to sit for the bar exam in the summer after their second year. 

As in the current system, students could not actually be admitted to the bar until after they earn their J.D., but they would be able to take the bar exam after completing two years of the three-year J.D. program.  More precisely, students would be able take the exam after completing sixty credits, or roughly two-thirds, of the credits required for a law degree.  Students in part-time programs, of course, would need more than two years to get to sixty credits.

Law school teaches more than one thing.  For our purposes, we can divide the aims of law school into two components:  substance and skills.  Lawyers need to know certain fundamental legal concepts – this is the substance that law schools teach.  They also need to have certain skills.  As things now stand, law schools try to teach both substance and skills over the course of three years.  Legal education can be fairly criticized for not teaching enough skills in these three years, though many schools are far more innovative on this front than some uninformed commentators would have us believe.

One reason why skills are under-taught may be that they have no clearly-defined place in the law school curriculum.  An advantage of allowing students to take the bar exam after their second year is that the law school sequence would be more clearly divided into segments where substance and skills can be separately emphasized.  This already happens to a certain degree – other than legal writing in the first-year, a good amount of skills-based education finds itself in the third-year of law school.  To the extent this division occurs now, it is more the result of happenstance than design.

New Juvenile Justice Blog ... Just in Time for LWOP Decisions!

The place I am going for help in understanding today's SCOTUS decisions on life without parole for juveniles is my UNC colleague Tamar Birckhead's new Juvenile Justice Blog.  Check it out!

Arizona Immigration Law Mostly Preempted

The Supreme Court has ruled that most of SB1070, the Arizona law concerning immigration, is preempted by federal law.  Field preemption applies to section 3 of the Arizona law; obstacle conflict preemption knocks out the remainder except for section 2B, which is the requirement that law enforcement officers check the immigration status of detainees or arrestees.  It's too soon to determine whether section 2B stands as an obstacle to federal law.  Here's the opinion.

Montana Campaign Finance Case Summarily Reversed

Predicting the outcome of Supreme Court cases is a hazardous enterprise.  As Jesse Choper quipped, "He who lives by the crystal ball must be prepared to eat ground glass."  But I get a rare chance to avoid the ground glass.  Back in December I posted that the US Supreme Court would summarily reverse the Montana Supreme Court's ruling that Montana had such a history of corruption that Citizens United ought not apply to state campaign finance limits.  It did, 5-4.  You may guess at the voting lineup.  Here's the Supreme Court's opinion.

Cruel And Unusual! Life Sentence For 14 Year Old Convicted Of Murder Violates 8th Amendment

The spigot is running.  In a 5-4 decision, Kagan wrote for the majority striking down a life sentence for two juvenile offenders who received life sentences in homicides.  Both were fourteen years old.  The Court was ruling in Jackson v. Hobbs and Miller v. Alabama.

Update:

The Miller and Jackson decisions are here. The essential point is that mandatory life sentences - where a jury may not consider mitigators - are unacceptable for children of such tender age.  It seems fairly clear - and certainly clear from the dissents - that this rule applies to children up through the age of 17.

Colors of Confinement

I've mentioned here that while working on the core exhibit at the Heart Mountain Interpretive Center in northwest Wyoming a couple of years ago, I came across a cache of rare Kodachrome snapshots of life behind barbed wire taken by an internee named Bill Manbo.  The photographs are the centerpiece of my new book "Colors of Confinement," coming out this August from the University of North Carolina Press in cooperation with the Center for Documentary Studies at Duke University.

A highly, highly abridged version of my essay from the book appears on page 6 of today's Sunday Review in the New York Times, along with five of the photographs.

Online, the Times is running a slideshow of 15 of the photographs, with some additional text.

Governor McDonnell's Statement about the University of Virginia BOV

I'm taking a little break here from blogging about UVA alumnus Edgar Allan Poe, Virginia cemeteries, and my work on University, Court, and Slave -- in which UVA, William and Mary, Washington College, Randolph Macon College, and VMI figure prominently -- to inquire about Governor McDonnell's letter telling the UVA Board of Visitors to, in essence, settle everything on Tuesday.  I'm guessing that's his way of saying "rehire President Sullivan," because that's the only way to settle everything on Tuesday.  They can't possibly hire someone else (though I guess they could decide not to rehire her and say that's a permanent decision regarding her).  And I'm also guessing Sullivan's going to be rehired -- will be very surprised if she's not.   But I -- like everyone else  -- am confused by the letter.  As Valerie Strauss writing at the Washington Post blog says:

You can say this for McDonnell:  He sounds decisive — or at least, as decisive as he can sound after waiting nearly two weeks for things to get completely out of hand, with protests, resignations and the interim president tapped to replace Sullivan saying he doesn’t want to prepare for the job quite yet.

I want to talk now about McDonnell's threat to fire the entire BOV.   His letter includes this statement: "Let me be absolutely clear:  I want final action by the board on Tuesday.  If you fail to do so, I will ask for the resignation of the entire board on Wednesday.  Regardless of your decision, I expect you to make a clear, detailed and unified statement on the future leadership of the university."  

Is this a serious threat about firing/"resignation"?  I guess asking for a resignation and firing are two separate (though closely related) issues.  But that seems like a very thinly vieled threat to fire the BOV members.  How would that work?  That led to me the Virginia Code to see what, exactly, it says about the Governor's power to remove members of the Board of Visitors.   As I was searching the Code, one of the first pieces of it that I saw relates to subjects that shall be taught at UVA.  Wasn't one of the supposed strikes against President Sullivan that she wasn't moving fast enough to can departments like classics and German?  This part of the Virginia code is relevant to that discussion:

The following branches of learning shall be taught at the University: the Latin, Greek, Hebrew, French, Spanish, Italian, German, and Anglo-Saxon languages; the different branches of mathematics, pure and physical; natural philosophy, chemistry, mineralogy, including geology; the principles of agriculture; botany, anatomy, surgery, and medicine; zoology, history, ideology, general grammar, ethics, rhetoric, and belles lettres; civil government, political economy, the law of nature and of nations and municipal law.   

While I know that it's McDonnell who's threatening action right now, I suppose that the General Assembly is familiar with this provision of the Virginia Code: "The rector and visitors of the University of Virginia shall be at all times subject to the control of the General Assembly."

The part of the Virginia Code that McDonnell would rely upon to fire the board is this:

 the Governor may remove from office for malfeasance, misfeasance, incompetence, or gross neglect of duty any member of the board of any public institution of higher education or other educational institution in Virginia, and fill the vacancy resulting from the removal. Each appointment to fill a vacancy shall be subject to confirmation by the General Assembly.

No one wants to see this drag out any further.  There's no way that Governor McDonnell's going to want to use his AG's office's energies to remove the BOV.   Can you imagine a hearing regarding whether there's been  "malfeasance, misfeasance, incompetence, or gross neglect of duty"?  Perhaps we could all use a little less talk of firing and decisive action.  Isn't that how we got into this situation in the first place?  (Though I must say that if the decisive action is putting Sullivan back in the President's office, I'm 100% behind that.)

Ok--back to work on antebellum legal thought....

Justice Thomas and Frederick Douglass

Justice Thomas starts off his Grutter dissent with this quote from a Frederick Douglass speech. 

In regard to the colored people, there is always more that is benevolent, I perceive, than just, manifested towards us. What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us . . . . I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! . . . And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! . . . Your interference is doing him positive injury.

Here, Thomas appropriates these words of a venerable leader to argue that he, like Douglass, opposes affirmative action in higher education.

There are a few problems. 

First, Douglass was a great champion of the Freedman’s Bureau Act which actually did help black people on the basis of race in various ways, most successfully in building schools for freedmen. But that’s a relatively small problem. 

A bigger problem is that Thomas leaves out this crucial portion of the quote:

Let him alone. If you see him on his way to school, let him alone, don't disturb him! If you see him going to the dinner table at a hotel, let him go! If you see him going to the ballot box, let him alone, don't disturb him! If you see him going into a work-shop, just let him alone, -- your interference is doing him positive injury.

That is, Douglass was not telling whites not to assist blacks, but instead not to harm them.  Douglass, a well-read and intelligent man, understood the zeitgeist of his time.  Something akin to affirmative action in higher education was not on the table in 1865, the year the speech was made.  The white masses were not itching to redistribute the benefits of American democracy.  It’s nonsensical, then, to argue that Douglass was imploring whites to not enact policies similar to that of University of Michigan when whites of that era never were predisposed to do as such.  Who argues against a position that no one is taking?  Rather, Douglass appreciated that whites, particularly in the South, were willing to disfranchise, discriminate against, threaten and even kill scores of blacks to maintain white supremacy. 

The biggest problem , however, is that Douglass mentions the sort of policies that he deemed to be causing blacks “positive injury,” former Massachusetts Governor General Nathaniel Banks’ black labor policy.  Once Gen. Banks assumed control of Louisiana he instituted a black labor policy in January of 1863.  According to the plan, “Blacks, unless they had a job in town, must work on a plantation. They could choose their own employers but were required to sign a contract and work for one year with whomever they signed....  Other benefits included rations, medical treatment, schooling for their children, quarters, fuel, and a garden plot of at least one acre. Furthermore, the regulations outlawed physical abuse of any kind and established the work period as dawn to dusk."  Banks’ policy was instituted as some sort of paternalistic effort to prepare ex-slaves for freedom.  The plan, in other words, was implemented with supposedly beneficial purposes for blacks.  It is completely unreasonable to compare the Banks plan to University of Michigan’s admissions policies.

My problem with Thomas’ citing of Douglass is that it’s completely ahistorical and perhaps disingenuous.  If Thomas thinks that affirmative action is a bad idea, that’s fine.  But don’t take a quote completely out of its historical context, exclude important parts of that quote, and distort the memory of a man who can no longer speak for himself.  What was done here is almost as bad as those conservatives who similarly turn Martin Luther King Jr. into some anti-affirmative action superhero.

 

Ann Scales

I am very saddened to hear that beloved University of Denver Professor Ann Scales suffered an accident and was taken off life support last Friday, according to this article (thanks to Bridget Crawford for the pointer).  On Monday evening the University of Denver held a candlelight vigil for her at 8 pm.  I wish that I could have attended.

I have been a fan of Ann since my first year of law school when she spoke on a Myra Bradwell Day panel -- I only dimly recall the talk (we're pushing twenty-five years on the memory) but it's stuck in my mind as one of the most refreshing moments in first year, along with the fabulous courses in constitutional law, taught by (now Judge) Gerry Lynch, and property, taught by Eben Moglen.   Ann spoke about her work on feminist jurisprudence and about making law practice (and scholarship) relevant to issues we believe in.  (As I've been sitting here reading her scholarship, I see that she published a paper based on the Columbia talk, "Surviving Legal De-Education: An Outsider's Guide," in the Vermont Law Review in 1990.  It's a wonderful read.) Her Legal Feminism: Activism, Lawyering, and Legal Theory is a wonderfully accessible volume.  Ann told me that she wrote it so that federal judges could understand feminist legal thought and why it matters.  In that she succeeded magnificently, as with everything she did.  I have it on the coffeetable at home; I leave it there so visitors will think I'm sophisticated and cool.

The year I moved to Chapel Hill, Ann was visiting with us and I had the chance to get to know her substantially better -- as a remarkably perceptive reader and a fabulous teacher and an all-around fabulously energetic person.  I always treasure meeting people in the academy who can read someone else's scholarship, take the work on the author's terms, and make offer a critique to make it substantially better.  Those are Ann's talents exactly.  And I also got to hear a little bit of Ann's family -- she's from Oklahoma,  a place I have deep fondness for, and grew up in North Carolina.  Her father was president of Oklahoma Baptist University and then, for nearly two decades (1967-83) of Wake Forest.  Ann's descended, as I recall, from Alfred Moore  Scales, who was governor of North Carolina after the Civil War.  Just so happens when I was up in Reidsville -- to take a picture of the place where the Confederate statue had been (on Scales Street) -- I passed his mansion and so was thinking about her and how I needed to email her a couple weeks back.

Ann, her family and many friends, the University of Denver, and the entire feminist legal community are in my thoughts.  Once I've had the chance to digest this sad news, I want to talk more about what Ann has meant to me and to the community of activist scholars.

Update as of June 24:  I am sad to report that Ann passed away this morning.  When I have my thoughts together I want to talk some more about Ann as a mentor and scholar.

I had forgotten, if I ever knew, that Ann made a cameo appearance or two in Scott Turow's One Law. She was what she calls "a disruptive influence" in the book.  Ann commented about this and her very different idea about legal education from Turow's at the end of Surviving Legal De-Education.  She asked readers to "Consider this description of [Turow's] first-year classmates: 'We are men and women drawn to the study of rules, people with a native taste for order.'"  Ann's response to this -- and her conclusion to the article -- was:

Scott was right about some of us, but I believe that his version of law school is becoming obsolete.  The day is comming soon when some right-minded successor to Scott Turow can write about her first-year classmates: We are women and men drawn to the living of life, people with a native taste for survival, for diversity, and for freedom.

Ann was a very good predictor of how law and law students were changing.  And to the extent that we're now able to spend more time in law school working on other issues -- like freedom -- I think it is because of the leadership Ann and people like her.

Update as of June 26:  Ann was so much more than her publications that I don't want to focus all my attention on them, but I do think you might enjoy this essay,  "Disappearing Medusa: The Fate of Feminist Legal Theory," which appeared in the Harvard Women's Law Journal in 2004.

Update as of June 30: Here is the Albuquerque Journal's obituary and here is the University of Denver's announcement, which Bridget Crawford posted at FLP.

UNLV Dean John White Kicked Upstairs; Nancy Rapoport Named Interim Dean

Dean John Valery White, of the UNLV School of Law, proved too good at his job.  He has been named the new vice-president and provost of the University.  He joined UNLV in 2007 and is only the second dean in the school's history.  UNLV Law Professor Nancy Rapoport - who previously lead the law schools at both the University of Houston and the University of Nebraska -  will take over as the interim dean effective July 1. 

Susan Duncan Named Interim Dean At Louisville Law

Susan Duncan, the current associate dean of academic affairs at the University of Louisville law school, has been named interim dean effective next month.   She has been on the school's faculty since 1997.  She replaces Jim Chen, who is stepping down.

Today's Constructionist Puzzler

What is the essential woman's breast and when is it dangerous? Read this article and comment.

UVa As The Next Southern New Hampshire University? And Other Commentary Worth Reading

If you've had a chance to read the emails among leaders of the UVa Board of Visitors, you'll know that spin control was on their minds early on.  That, and all those thoughtful articles in the Wall Street Journal and Wired regarding online education.  (It is curious to think that Southern New Hampshire University and its online strategy struck UVa Board members as a nice template for the school's future.)  

But there is other UVa-related material worth reading today as well, including a delicious parody of the Declaration of Independence by Duke sociologist Kieran Healy, a nice essay by David Karpf at HuffPost  and a thoughtful meditation on how this battle isn't between corporate values and university values...but rather between two competing corporate models of education.

H/T to Leiter and Lister.

What Comes to Mind When You Look at This Shoe?

Kurt Schmoke Leaving Howard Law Deanship

Kurt Schmoke, who currently serves as Dean of Howard University School of Law, will be stepping down next month to take the position of Vice-President and General Counsel of the University.  Schmoke has been Dean since 2003, previously served as the Mayor of Baltimore.  He will be replaced on an interim basis by the school's current associate dean, Okianer Christian Dark.  

Given that the biennial ABA Associate Dean's Conference starts in mere hours, I'm glad to provide a bit of upbeat news to chat about as we kick off the evening's festivities.  Then we can all return to pondering the implications of the year's grim application and employment statistics.

That Book About .... ?

Here's a new online community for folks who want to re-connect with books they've read in the past, but can't remember the author or title.

What Was That Book?  is a livejournal community where people can describe a book they've read and can't remember fully, and others try and identify the book for them.  Maybe law profs could set up a similar community for forgotten law review articles?

Sterilization Compensation Unlikely This Year

Thanks to a pointer from Danny Goldberg I see that it's now very unlikely that victims of the North Carolina's Eugenics Board's sterilization program will be included in this year's budget. 

I have blogged extensively about the case for payments this spring.  There posts are collected here.  Perhaps next year will bring a more positive -- and I might add -- more just result.

The image is of the bridge to nowhere at issue in the Luten Bridge case.  It's my image for the "end of the road."