The Faculty Lounge

Chris Eisgruber Named President Of Princeton

Christopher Eisgruber, the provost of Princeton, has been named the school's next president. Eisgruber had an old-school trajectory, with no VAP or Ph.D (albeit with no time in practice either.)  He won a Rhodes while at Princeton, studied law at the University of Chicago  (where he was the Law Review EIC), clerked for Patrick Higginbotham on the Fifth Circuit and Justice Stevens, and promptly accepted a position as an assistant professor at NYU.   He produced significant scholarship in the area in constitutional law.  After 11 years at NYU, Eisgruber moved to Princeton to direct the Program in Law and Public Affairs and became provost in 2004.

 

 

John F. Sutton, Jr.: 1918-2013

Longtime University of Texas law professor John F. Sutton, Jr. passed away at the age of 95 in recent days.  Sutton joined the UT law faculty in 1957, served as dean from 1979 to 1984, and retired about ten years ago.

Additional reading here (obituary), here (Austin American-Statesman), and here (ABA Journal).

Legal Theory and Legal History: To Think What We Are Doing

 

 

“What I propose, therefore, is very simple: it is nothing more than to think what we are doing.”

 

- Hannah Arendt, The Human Condition (Chicago, 1958)

 

I want to start off my time here at the lounge by sharing some thoughts on the relationship between theoretical reflection, jurisprudence, and legal history. I want to do that because I just got back from a conference where this relationship was the topic of much discussion(Legal Theory and Legal History: A Neglected Dialogue? Queen Mary, University of London, April 12-13, 2013), and one particular entry into these discussions and others like them struck me as warranting further exploration.

 

And that is the work of Christopher Tomlins, with whom I had the pleasure of an all too brief (at least for me) conversation about his reading of Walter Benjamin, and in particular, his effort to imagine and practice a materialist (and because materialist a post-critical) study of the law. Tomlins, Chancellor’s Professor of Law at UC Irvine, has for some time been urging scholars across a variety of related fields to move beyond the model of scholarly practice associated with Critical Legal Studies, its equivalent in what Tomlins calls Critical Legal History, and the broader, basic idea that the job of the historian is to historicize- to situate chosen objects of study within an ever-multiplying series of contexts that are declared by the historian or other self-proclaimed critical scholar to be specific, plural, and complex, and only responsibly understood as such. The effect of this kind of practice is to neutralize the political potentiality of the material at hand, and it has been part of Tomlins’ project to suggest that this has to do with the ideological situation of the historical profession- it is in the interest of a historian to show up and say “no, no, its more complicated than that,” to display their specialized erudition, and to pave the way for a practice explicitly limited to the further extension of the complicating, contextualizing work that only we critical historicists are equipped to carry out. For Tomlins, I take it, this enlists the historian in the perpetuation of Benjamin’s “empty and homogenous time,” the result of which is a historical profession that constructs a celebratory, progressive, and ironically uncritical narrative of itself as doing the necessary work of recovering other contexts, other voices, other agencies, and other identities, and we can be assured, so the thinking goes, that this is self-evidently politically efficacious in and of itself.

 

Against critique and contextualization, Tomlins presents Benjamin’s concept of constellation: “There could be no apter evocation of the disquiet that marks the beginning of any critique of history worthy to be called dialectical, which must renounce a calm, contemplative attitude towards its subject to become aware of the critical constellation in which precisely this fragment of the past is found with precisely this present.”(1) The goal here is to build a relationship to the past that is aware of just why this particular thing is before us to consider at this particular moment- in short, what its doing here, and how should we understand the fact that it is here- as Benjamin elsewhere writes, of how this fragment of the past flashes up in the moment of danger in which we find ourselves. Cultural history, Benjamin writes, “may increase the burden of the treasures that are piled up on humanity’s back. But it does not give mankind the strength to shake them off, so as to get its hands on them.” (2) The historical practice of actualizing constellations is explosive- it remembers and recovers something, a fragment of the past that punches through the bounded character of the present. Tomlins is currently moving beyond the expansiveness of his incredible recent book, Freedom Bound, and focusing on Nat Turner and the 1831 slave revolt that he led in Virginia. In our own moment of the confrontation of liberalism’s self-understanding with theological and political violence, Turner explodes the image of the American past as the perpetually expanding demand for and use of the language of liberty, even as that image includes the history of active resistance to slavery. Like John Brown, there is something unclassifiable about Turner- you cannot understand him simply by describing the context or contexts in which he acted, social, linguistic, or otherwise, if you can hope to understand him at all, and in this age of creating and recovering multiplying alternative agencies and identities there is something profoundly discomforting about that. To speak of redemption in this case is to blow open what we would mean by redemptive constitutionalism.

 

I hope I have done justice to the arguments Chris Tomlins has been making. Where he and I touched bases was on the mutually felt need for historians in particular to attend to the conditions of their own intellectual practice, and to do so, in part, by attending to the history of intellectual practice. Quite simply, we need to “think what we are doing,” to use the words of another reader of Benjamin’s (I don’t know how much use Tomlins would have for Arendt, but the fragment I’ve provided here seems apt).

 

Tomlins’ both historical and more explicitly methodological work has been provocative for me, and I want to just note some of my reactions to it as a way of opening up space for future thinking. I cut my teeth, or am still cutting my teeth I suppose on a civically and historically conscious approach to legal and political thinking in time that we can see mot significantly (for me) in the work of J.G.A. Pocock. For Tomlins, I take it, “Cambridge” historiography has become conventional and is reaching a point of diminishing returns- a kind of conservative philosophical version of the critical historicism practiced by CLS and CLH. There is a minor point to be made that I don’t think there is a unitary school beyond what we generally call Cambridge school history of political thought, but the larger point I want to make is that it is difficult to actually rethink one’s practice without confronting conditions of historicity and plurality, although that does not stop us from trying. I take Pocock’s Gibbon project, soon to be consummated in a sixth volume of Barbarism and Religion, to be evidence enough that there is quite a bit to be done with the history of thinking and writing in contexts. An even more important point is this- a study of the past that is aware of the conditions of its practice will be one drawn into confronting histories of thinking and acting differently as a crucial part of any effort to do the same in the present. Benjamin’s constellations are still critical, and it might be said that this time of multiplying and reverberating fundamentalisms can ill afford to an age after critique, howsoever we might reimagine the method and locations of critical activity.

 

What I take to be at issue here is the contested nature of the common Nietzschean inheritance to the metatheoretical and metahistorical project of Tomlins and the genealogical, historical, and sometimes archaeological project (think of Foucault) that Tomlins is trying to get out of or away from. But that is a discussion for another time. Chris Tomlins’ evocation of Benjamin’s unique materialism is the place from which thinking about law and legal history has to begin today- and that is because by materialism Benjamin meant not just Historical Materialism but the actual stuff we use to make a world. Benjamin’s writings invite a history of thought, and in particular, a history of legal thought that is attentive to the material and revolutionary dimension of practice. This would be a history of fragments, of texts and their readings and rewritings, of materials and their collection and recollection. It would be a history of law, but it would also be a history of the uses to which the material of that history is put. When everyone is an originalist of one kind or another, perhaps it is this emphasis on materiality itself, the idea of getting one’s hands on the law, that flashes up as a memory fragment for our own moment of danger.

 

In a few future posts, I’ll be discussing my own work on Jefferson and the history legal and political thought, and how that fits into this, among other things that pop up.

 

 

 

 

1. Benjamin, “Edward Fuchs: Collector and Historian,” One-Way Street and Other Writings, Jephcott and Shorter, trans. (Verso, 1979), p. 351.

 

2. Ibid, p. 361. 

Updated Law Faculty Lateral Moves List

I know, I know.  I always fall behind and fail to update my annual lateral moves list as new information becomes available.  It's hard to keep up with updates on a weekly basis and the act of updating the list typically triggers several fresh pieces of news.  I've made peace with being a slowpoke.   So here is the newest, but I suspect not final, iteration of the 2013 compendium.  

Matthew Crow Stepping into the Faculty Lounge

It's my pleasure to announce that Matthew Crow is stepping into the Faculty Lounge to sit with us for a spell.  Matthew is an assistant professor of history at Hobart and William Smith Colleges.  He teaches about the colonial and revolutionary history of the United States, as well as on the intellectual history of the United States and the legal and constitutional history of the United States from its European antecedents to the present.  His publications include "History, Politics, and the Self: Jefferson's 'Anas' and Autobiography," in the Blackwell Companion to Thomas Jefferson (Wiley-Blackwell, 2011).   Matthew was educated at the University of California -- San Diego and took his Ph.D. at UCLA.  Cribbing now a little from Matthew's webpage:

I see my research and teaching interests as intertwined- in both I focus on the history of legal and political thought and constitutionalism in the early modern Atlantic world, including the colonial, revolutionary, and early national history of the United States. My current research looks at the history of thought from the standpoint of the history of intellectual practice, with particular (although not exclusive) attention to the figure of Thomas Jefferson. Other interests include the history of empire, the history of historiography, American intellectual history, the history of thought more broadly, and in that vein the writings of Wittgenstein, Arendt and Foucault, and their British and American readers. 

I'm delighed to welcome Matthew to the lounge and am very much looking forward to his posts on legal and constitutional history and political theory.

VIllanova Seeks Director Of Academic Compliance

Villanova University School of Law is seeking a director of academic compliance.  From the job description:

The Director of Academic Compliance is responsible for handling Academic Compliance issues, including “Character and Fitness” and attendance issues and will be the primary point of contact for student academic and compliance concerns. The Director will also be responsible for ABA Compliance and serve as the Questionnaire Policy Coordinator. The Policy Coordinator shall ensure compliance with established procedures and policies as well as the overall administration of the ABA Questionnaire submission. This person will also serve at a strategic and tactical level for implementation of Distance Learning efforts at the Law School and coordinate efforts with appropriate offices on campus and outside partners.

The description indicates that ideal candidates will have five or more years experience in a law school.

American Bankruptcy Institute Annual Spring Meeting

Two days of the annual spring meeting of the American Bankruptcy Institute have come and gone. I've appreciated several fine programs that are valuable not only to the 1000+ lawyers and judges who are here but have alerted me to a serious problem. Depending on the District, from 5-8% of bankruptcy cases are currently filed pro se. This is in part what Congress intended with the 2005 Bankruptcy Abuse Protection and Consumer Protection Act [sic]. Specific authorization of "bankruptcy petition preparers" and onerous certifications of fact by lawyers have had the effect of driving folks priced out of the market of bankruptcy attorneys into the arms of untraceable internet operators who take $400-600 for pleadings that fail their intended purpose.

I was aware of this phenomenon but not its extent. The burden of dealing with an increasing volume of pro se filers whose filings are incomplete and who have no advice on dealing with issues like properly listing exemptions, avoiding liens, and even what is a "claim" fall on Chapter 7 trustees and the court. Word in the hallways is that some trustees are getting out of the business given the additional complexities caused by unrepresented debtors.

What is encouraging, however, were some conversations about adding preparation of simple bankruptcy petitions (and, of course, the other pleadings required at the outset of a case) to student-staffed clinical programs. I hope to pursue this possibility but want to suggest that other law schools consider adding supervised petition preparation to their clinical offerings.

I've always believed that bankruptcy law is a great capstone course. Not only does it combine statutory construction and Constitutional law, it forces students to recall and apply what they learned in first year contracts, property, and torts. Throwing in readings and discussions of legal policy (and, in my case, theology of debt relief) makes teaching bankruptcy loads of fun. Combining the classroom with fieldwork would be frosting on the cake.

Social Enterprise Blog

If you have an interest in issues and events related to social entrepreneurship and social enterprise law, you may wish to bookmark the SocEntLaw blog.  Its contributors include several law professors / lecturers, including Cass Brewer (Georgia State), Deborah Burand (Michigan), Suzanne McKechnie Klahr (Harvard / Stanford),  Haskell Murray (Regent), Alicia Plerhoples (Georgetown), Dana Brakman Reiser (Brooklyn), and Kyle Westaway (Harvard).

Dean Search Announcement: Faulkner

From an email that I received earlier today:

Faulkner University’s Thomas Goode Jones School of Law, located in Montgomery, Alabama, seeks applications and nominations for the position of Dean.  Additional information can be found here.

Lisa Kloppenberg Named Dean Of Santa Clara Law

Professor Lisa Kloppenberg from the University of Dayton has been named the new dean of the Santa Clara University School of Law.  Kloppenberg previously served as Dayton's law school dean for ten years, from 2001 to 2011,  She holds a JD from the University of Southern California.

The Broad Institutional Impact Of The Law School Crisis

Brian Leiter briefly noted this news story claiming that Catholic University is considering instituting a 20% university-wide cut in operational expenditures as a result of declining law school revenue.  It appears that this cut will not affect permanent faculty lines - but may impact things like adjunct faculty hiring.  This isn't an isolated situation, I suspect.  I have heard of at least one other school that cancelled a faculty hire in another department due to the law school situation.  And although nothing is public right now, we know that law schools themselves are starting to make some hard decisions.

Bill Henderson has previously said that he expects big layoffs at law schools this fall - presumably thinking that there will be a huge overall revenue shortfall, but that schools won't know, until opening day, just how bad their own situations look.  We will soon be able to test Bill's crystal ball.  But the Catholic University story should wake up a much wider swath of academics to the impact of the current law school crisis.  At universities highly dependent on law school revenue - apparently, Catholic U is among those schools - the crisis will eat directly into the budgets of other programs.  But where law schools are break-even propositions - the many law schools where overhead  covers just that - the reality that law schools actually need institutional subsidies (just like almost every other college in a larger school) may mean that the universities may more critically question the need for a law school...and may empower the university to impose its will and priorities on law schools that were previously very independent.

There are big implications to this crisis.  The simple (but serious) story is about cutbacks, layoffs and possibly closings.  The more complex story we may soon learn involves the question of whether, notwithstanding the ABA,  law schools that have claimed exceptional status within their institutions will become unexceptional colleges in the larger university constellation.  Special snowflakes no more, as it were.

This American Life and Stigma

Update: TAL has made a clarification. Please see this post for more.

Let me begin by saying how much I absolutely adore This American Life. I listen to it religiously. I particularly had been looking forward to the most recent pocast episode of TAL: Dr. Gilmer and Mr. Hyde. As the episode's blurb teases, "Dr. Gilmer and Mr. Hyde" concerns a doctor — Benjamin Gilmer — who takes over the rural South Carolina practice of Vince Gilmer (no relation). Vince is no longer available to see patients because he is serving a prison sentence for killing his father. As Benjamin gets to know Vince's — and now his — patients, he forms a picture of Vince that's at odds with his status as a convicted father murderer. How could this doctor who was so devoted to his patients have so brutally murdered his own father?

This episode is right up my alley. True crime? Check. Forensic psychology? Check. The intersection of law and medicine? Yes, please. So when I awoke yesterday morning at 5 am and couldn't go back to sleep, I eagerly cued up the podcast. The episode recounts, in TAL's  typically-riveting fashion, the story of Benjamin's search for the truth behind Vince's murder of his father. I enjoyed every minute of the episode until the last five minutes or so, when I became troubled by one critical omission.

Spoilers  follow after the jump; listen to the episode first.

Adoptive Couple v. Baby Girl, Oral Argument Discussion

While I try to not to just cross-post, since I've been writing so much about this case, I did want to point to an unusually long and detailed post we've been working on since the release of the transcript of this morning's oral arguments.

An excerpt on the federal government's flaw in its brief and oral arguments:

Perhaps because of its commitment to preserving the OSG’s reputation for objectivity, the federal government was of little help to tribal interests. The SG’s admittedly confusing position of claiming 1912(d) applies (what we know as active efforts, what Blatt characterized as an “exhaustion obligation” (page 8, line 11) and what Justice Kagan called the “curing provision” (page 58, line 14)), but 1912(f) does not (the heightened standard for termination of parental rights), the government may have done more harm than good. In fact, the interpretation about how ICWA is a balancing statute between two sovereigns, the state and the tribe may not be all that persuasive to the Court. This line of argument may be the deciding factor for the case. In a vast majority of cases, a child would not be in the custody of her parents when there is a termination of parental rights hearing. In an abuse and neglect case (which this is not), the child would have been removed, and the court would make the determination about “continued custody” while the child was in foster or family care — not, generally, while the child was in the actual physical custody of the parent. To interpret 1912(f) otherwise eliminates the provision for virtually all parents under ICWA.

 

Other links:

SCOTUSblog

Matthew Fletcher's Stat Read-through

 

Comparative Marriage and the American Personal Law System

One of the more perplexing aspects of mainstream gay and lesbian organizations’ appeal for ‘marriage equality’ is the embedded (and strenuously articulated) notion that there is ever marriage equality, especially in the United States.  In a federal system with 50+ different family law sovereigns, marriage simply isn’t understood or defined to mean the same thing—or embody the same rights—across the United States. 

For example, looking at this marital pluralism from one perspective, and one might immediately notice that Alabama understands marriage as an “inherently [] unique relationship between a man and a woman. . . . Marriage is a sacred covenant, solemnized between a man and a woman . . . which is recognized by the state as a civil contract.”  Florida, by way of contrast, defines marriage, as a “legal union between one man and one woman as husband and wife.”  And Kentucky declares that “‘marriage’ refers only to the civil status, condition, or relation of one (1) man and one (1) woman united in law for life, for the discharge to each other and the community of the duties legally incumbent upon those whose association is found on the distinction of sex.”  Certainly, there are overlaps in how states (and Native American tribes) understand marriage, but it isn’t the same thing in every jurisdiction—and likely never will be—thereby putting any possibility (or desirability) of ‘marriage equality’ in the United States under real-world query.

Comparative inquiry, at least on first blush, seems then to be an important part of understanding marriage and family law (more generally) in the United States.  This should not be surprising given that family law pluralism is a part of many (if not most) nations’ method of administering family law.  As a result, it seems to me that comparative inquiry needs to be a core part of U.S. law schools’ (family) law curriculum. 

On Illinois and State Bar Exam Difficulty

The relative difficulty of state Bar exams has popped up as a topic of recent interest.

• The Illinois Board of Admissions to the Bar announced that it will raise the minimum passing score, or cut score, on the Illinois Bar exam from 264 (out of 400) to 272. The cut score will be raised in two stages, first to 268 for the July 2013 Bar, and second, to 272 for the July 2015 Bar.

• Robert Anderson (Pepperdine) recently blogged on The Most Difficult Bar Exams, and his post was picked up by Above the Law and the ABA Journal News Now, among others.

So, how much harder is the Illinois Bar becoming?

Mike Rice Fallout: Rutgers - Newark Dean Named University General Counsel

The Rutgers University basketball coaching crisis has now made its mark on law schools.  Rutgers - Newark Dean John Farmer, the former attorney general of New Jersey, has been named General Counsel of the University.  He replaces John Wolf, the university GC who resigned as part of the continuing fallout from disclosure of the videos.  This will be an interim appointment.  Professor Ron Chen will temporarily take over the deanship until Farmer returns - allegedly in 12 to 18 months.

Deanship Announcement: Montana

From an email message I received earlier today:

The University of Montana School of Law, one of the few law schools to see an increase in applications this year, will soon be starting a national dean search. Irma Russell, who has served as dean of Montana Law since 2009, has announced that she plans to step down. She will remain as dean during the transition, and will join the faculty upon the appointment of her successor.

Media, ICWA, and the Baby Girl Case

Next week, the Supreme Court will hear oral arguments in the Adoptive Couple v. Baby Girl case. This is only the second time since the passage of ICWA that the Court will hear a case involving the statute. The case is drawing intense media attention, and has since its arrival in the South Carolina Supreme Court. Today Andrew Cohen posted his piece at the Atlantic, one of the few mainstream media outlets to give a balanced view of the case and a defense of the law at the heart of the case.

Very briefly, the case involves the child of a non-Indian mother and a father who is a citizen of the Cherokee Nation. As in almost all family law cases, there are various disputed facts about the involvement of the father in the mother's life after he found out the mother was pregnant. It bears noting again the trial court found the mother's testimony less compelling than the father's, and found for the father, as did the South Carolina Supreme Court. Father (while the names of all the parties are very easily ascertained, I prefer not to the publicize the name of the 3 year-old child at the center of this dispute) was serving at Fort Sill when he found out the mother was pregnant. He wanted to get married, she did not. When asked to surrender his parental rights, he believed he was surrending the rights to the mother, not to give up his daughter for adoption. When he found out his parental rights were being terminated for adoption purposes, he contacted his attorney on the base and started the legal process to get his child back. Days later he was deployed to Iraq for a year. Upon his return, he continued to fight the legal battle and the courts returned his child to him just after Christmas, 2011.

I've been asked repeatedly why the Court took the case, what caught the Court's eye, what I think will happen. I honestly don't know. I will say that the posture of the case--the tribal interest/father winning in state court and appealled up by the non-Indian party--fits Prof. Matthew Fletcher's analysis of the cert process for tribal interests these days. His work demonstrates that when a tribe wins below, the Supreme Court is more likely to take notice of the case.

While some are worried that the Adoptive Couple's aggressive use of the media in this case attracted the Court's attention. The more I think about this, the more I don't think this is the situation. The briefs of the Adoptive Couple and the Guardian ad Litem attack the very foundation of federal Indian law, claiming applying the Indian Child Welfare Act in this case is a prohibited race based use of the law (impermissable preferences). There is also a question of the use of state law to define terms in the federal statute (federalism concerns). Cohen's article details these claims, and shines a welcome light on the horrible role of the guardian ad litem in this case. Those concerns, plus the posture of the case, led to Court taking the case.

The amicus briefs on the side of the father, including 18 state attorneys general, the Solicitor General, and child welfare agencies and non-profits, are incredibly strong. And when we talk to child welfare professionals at the state and county level about the requirements of ICWA, the responses are almost always along the lines of surprise--that the law is really a best practices statute, and the practices it guarantees for American Indian children are practies our family law courts should aspire to for all children.

Deanship Update: Campbell

Bankruptcy judge J. Rich Leonard has been named the new law dean at Campbell.  Judge Leonard completed his undergraduate work at the University of North Carolina, and he earned a law degree at Yale.  He has served on the bankruptcy court for the Eastern District of North Carolina since 1992.  Judge Leonard has been the editor in chief of the prestigious American Bankruptcy Law Journal since 2011.  And a few months ago he published a children's book entitled The House by the Creek, "a tale of the Revolutionary War set in NC, filled with bravery and surprises, and based on a family legend."

Click here for additional reading.

After Legal Equality

I was supposed to make it to Montreal today for an exciting conference at McGill on “After Legal Equality:  Family, Sex, Kinship” but, alas, Chicago O’Hare and Midwestern weather problems had other plans for me.  I’ll be Skyping in to the conference tomorrow to present a work-in-progress of mine entitled “Marriage as Civil Union:  Interstate Recognition of Same-Sex Relationships and the Issue of Legal Translation,” in which I use relationship-recognition experience from the United Kingdom on my way to arguing that “U.S. trans-jurisdictional analysis with respect to formal relationships must be complicated and its reductionist insistences queried; doing so, in fact, reveals that ‘civil unions’ and ‘domestic partnerships’ cannot simplistically be trans-jurisdictionally translated as ‘marriage’ always, and neither can ‘marriage’ itself.” 

For my friends north of the border, if you are in Montreal, this conference has a public session Friday afternoon (starting at 4 p.m.) on “Radical Formations: Sex, Trans, Race,” with Sharon Cowan, Roderick Ferguson, and Dean Spade speaking.  One of the conference organizers, Robert Leckey, has also penned this article/op-ed about the McGill conference and how it relates to contemporary Canadian queer advocacy now that same-sex marriage has been available in Canada for the past decade.