The Faculty Lounge

Wilder on Ebony and Ivy

MIT history professor Craig Wilder's Ebony and Ivy: Race, Slavery, and the Troubled History of America's Universities will be appearing from Bloomsbury on September 17.  Cribbing now from the Press' website:

A 2006 report commissioned by Brown University revealed that institution’s complex and contested involvement in slavery—setting off a controversy that leapt from the ivory tower to make headlines across the country. But Brown’s troubling past was far from unique. In Ebony and Ivy, Craig Steven Wilder, a rising star in the profession of history, lays bare uncomfortable truths about race, slavery, and the American academy.

Many of America’s revered colleges and universities—from Harvard, Yale, and Princeton to Rutgers, Williams College, and UNC—were soaked in the sweat, the tears, and sometimes the blood of people of color. The earliest academies proclaimed their mission to Christianize the savages of North America, and played a key role in white conquest. Later, the slave economy and higher education grew up together, each nurturing the other. Slavery funded colleges, built campuses, and paid the wages of professors. Enslaved Americans waited on faculty and students; academic leaders aggressively courted the support of slave owners and slave traders. Significantly, as Wilder shows, our leading universities, dependent on human bondage, became breeding grounds for the racist ideas that sustained them.

Ebony and Ivy is a powerful and propulsive study and the first of its kind, revealing a history of oppression behind the institutions usually considered the cradle of liberal politics.

I heard Wilder present part of this book a few years back and it was terrific and new.  Constitution Day 2013 is shaping up to be a very exciting day!

Update: I now see that books.google has a preview up already.  The beautifully written introduction begins with Henry Watson, Jr., who came to Greensboro Alabama from Connecticut as a tutor in 1830, where he trucked with Reverend Thomas Witherspoon -- then returned a few years later as a lawyer.  Witherspoon -- who's remotely related to Reese Witherspoon -- freed several dozen slaves when he passed away.  Watson made a fortune as a lawyer and businessman in Greensboro.  Stephen Davis and I talk about both of those men in our article on probate in Greene County.  Can't wait to read the whole book!

Update 2:  Here's a link to Wilder's interview on After Words on CSPAN.

Update 3: Here's a link to NPR's discussion of Ebony and Ivy.  There's certainly a lot to talk about with southern schools -- like the University of Alabama and William and Mary.

Update 4: Here's a link to Jennifer Schuessler's article in the New York Times on Ebony and Ivy and the movement on many campuses to study their connections to slavery.  There's something to say about proslavery thought on the University of Alabama's campus, as well as the faculty senate's apology back in 2004.

Ancient Pear Tree

One of the friends of the blog, a reader from Virginia who goes by the pseudonym of St. George Tucker, has sent along this story about a pear tree planted in Massachusetts around 1630.  It's still around.  Very cool.  

Cribbing from the conclusion to the article:

Although its pears have been described as "medium in size, unattractive, and coarse textured," the tree's shortcomings have been more than made up for by its resilience -- a legacy that will carry on even after the sands of time eventually wither its branches. The USDA's National Clonal Germplasm Repository, a seed bank, successfully produced a clone of Endicott's pear tree.

There are few surviving remnants of those earliest days in American history, when European settlers arrived to the wild lands of the New World. But as their centuries-old headstones have weathered and crumbled with time, and their names and stories have become lost to the ages, it's reassuring to know that history is rooted by more than human memory and fading ink -- and that a living monument has been fruitful through it all.

Reminds me of the London Grove Friends Meeting Oak, which I've used to illustrate this post.

Of Twerkers and Twerkees: An Open Letter to Robin Thicke’s Mother

[This post falls squarely in the “[pop] culture” portion of TFL’s “law, culture, and academia” mandate. Regular programming will resume in due course.]

Hi Gloria. Can I call you Gloria? I understand that you were displeased by the duet performed by your son and Miley Cyrus (as you know, your boy shows up at the 3:00 mark) at the MTV VMA awards Sunday evening.

Specifically, you said:

I was not expecting her to be putting her butt that close to my son. The problem is now I can never unsee it. . . . Him? Loved it! I love that suit, the black and white suit. I don’t understand what Miley Cyrus is trying to do. I just don’t understand. I think she’s misbegotten in this attempt of hers. And I think it was not beneficial.

Gloria, I’m confused about your confusion. I mean, look, the whole obscenity concern trolling thing isn’t my bag. VMA has been doing this for years, and if you wanted to see something else, well, that’s what they have C-SPAN for. But hey, you’re certainly free to know it when you see it. Obscenity, that is.

What I don’t get is why you see it in Cyrus but not in your own son.

To be fair, it’s not just you. All the commenters I’ve seen, from Sean Hannity (“outrageous,” “downright raunchy,” and “inappropriate” for a role model) and Bill O’Reilly (“she’s a troubled young lady” and “out of control”) to Camille Paglia (whose focus is on the philistine rather than the obscene nature of the routine) have reserved their criticism for Cyrus.

A mommy blogger’s open letter to her daughter, warning her not to follow in Cyrus’s footsteps, has gone semi-viral. But not a single Mommy blogger has warned her son against following in your son’s footsteps.

To no one's surprise, Bill O’Reilly blames Cyrus’s twerking on “bad parenting,” and after Miley’s father, country singer Billy Ray Cyrus, defended his daughter, O’Reilly asked whether he should be “shunned.” Even Brooke Shields, who played mom to Cyrus’s Hannah Montana, felt the need to weigh in and demand answers: “I was Hannah Montana’s mother. I do not approve. Where did I go wrong? I just want to know who’s advising her, and why it’s necessary?” (By contrast, Shields remains “shocked” by the controversy over her own performance in the infamous “You wanna know what comes between me and my Calvins? Nothing.” ad campaign, which she shot when she was just fifteen years old (Cyrus is twenty), and which was banned by CBS.)

And yet no one blames you, Gloria, for raising a son whose music and videos are—in addition to being just as "obscene" as Cyrus’s (and just as arguably misappropriating of black culture and glorifying of drugs)—kinda rapey. Following the VMA hoopla, Cyrus's father canceled a scheduled interview with Piers Morgan at the last minute. But free from the burden of having to defend your parenting and your child, you can grant media interviews in which you accept the condolences of a shamed nation and join the #MileyGate pile on. It’s all a little reminiscent of Justin Timberlake, whose image was only barely and very temporarily tarnished by the “wardrobe malfunction” of Janet Jackson (remember her?), which he, too, apparently helped orchestrate. I don’t personally care about either Cyrus’s butt or Janet’s nipple, Gloria. But I am annoyed by the double standard involved in criticizing the female but not the male co-venturers in these manufactured controversies—the twerkers but not the twerkees, if you will—which is why I'm writing. (More after the jump.)

Long Stepping Into the Faculty Lounge

It's my pleasure to announce that Professor Justin Robert Long, who is an assistant professor of law at Wayne State University, is stepping into the lounge to sit with us for a spell.  Justin was educated at Harvard and the University of Pennsylvania Law School, clerked for Judge Myron H. Bright of the U.S. Court of Appeals for the Eighth Circuit and Associate Judge Albert M. Rosenblatt of the New York Court of Appeals, and was an assistant solicitor general in the New York Office of the Attorney General.  Before moving to Wayne State he was a visiting assistant professor at the University of Connecticut.  Justin's publications include  State Constitutional Prohibitions on Special Laws, 60 Cleveland State Law Review 719 (2012); State Constitutions as Interactive Expressions of Fundamental Values, 74 Albany Law Review 1739 (2011); Are State Constitutions Un-American?, 40 Rutgers Law Journal 793 (2010); Against Certification, 78 George Washington Law Review 114 (2009); and Demosprudence, Interactive Federalism, and Twenty Years of Sheff v. O'Neill, 42 Connecticut Law Review 585 (2009).

Cribbing now from Justin's webpage: 

Assistant Professor Justin R. Long studies state constitutionalism, public education law, urban law, and federalism. He is the associate director for education law and policy of the Damon J. Keith Center for Civil Rights, and regularly works with civil rights activists in the community. He served as reporter for the Michigan Judicial Selection Task Force, a citizens' commission working to reform Michigan's process for selecting supreme court justices. He lives in Detroit.

I'm looking forward to his posts!

Feminist Legal Theory Collaborative Research Network CFP for 2014 LSA

Call for Papers – September 18 Deadline

Feminist Legal Theory Collaborative Research Network

at the Law and Society Association Annual Meeting

Minneapolis, May 29 - June 1, 2014

Dear friends and colleagues,

We write to invite you to participate in panels sponsored by the Feminist Legal Theory Collaborative Research Network at the Law and Society Annual Meeting in 2014.

Information about the Law and Society meeting (including registration and hotel information) is at: http://www.lawandsociety.org/minneapolis2014/Minneapolis2014.html.

Within Law & Society, the Feminist Legal Theory CRN seeks to bring together scholars across a range of fields who are interested in feminist legal theory. There is no pre-set theme to which papers must conform. We would be especially happy to see proposals that fit in with the LSA conference theme, which is the role of law and legal institutions in sustaining, creating, interrogating, and ameliorating inequalities.  We welcome proposals that would permit us to collaborate with other CRNs, such as the Critical Research on Race and the Law CRN or the Gender, Sexuality and the Law CRN. Also, because the LSA meeting attracts scholars from other disciplines, we welcome multidisciplinary proposals.

Our goal is to stimulate focused discussion of papers on which scholars are currently working. Thus, while proposals may reference work that is well on the way to publication, we are particularly eager to solicit proposals for works-in-progress that are at an earlier stage and will benefit from the discussion that the panels will provide.

Our panels will use the LSA format, which requires four papers, but we will continue our custom of assigning a commentator for each individual paper. A committee of the CRN will assign individual papers to panels based on subject and will ask CRN members to volunteer to serve as chairs of each panel. The chair will develop a 100-250 word description for the session and submit the session proposal to LSA before the upcoming deadline on October 15, so that each panelist can submit his or her proposal, using the panel number assigned. Chairs will also be responsible for recruiting commentators but may wait to do so until panels have been scheduled later this winter.

If you would like to present a paper as part of a CRN panel, please submit a 400-500 word abstract, with your name and a title, on the Feminist Legal Theory CRN TWEN page (details provided below). If you would like to serve as a chair or a commentator for one of our panels, or if you are already planning a LSA session with four panelists (and papers) that you would like to see included in the Feminist Legal Theory CRN, please let Rachel Rebouche know (rebouche@temple.edu). In addition to these panels, we may try to use some of the other formats that the LSA provides: the “author meets readers” format, salon, or the roundtable discussion.  If you have an idea that you think would work well in one of these formats, please let us know.

TWEN is an online resource administered by Westlaw. If you have access to Westlaw but haven’t yet registered for the TWEN page, signing up is easy:

If you have Westlaw OnePass as a faculty member, follow this link:

http://lawschool.westlaw.com/shared/courselink.asp?course=113601&lID=4%3D2, then click on the link to the Feminist Legal Theory CRN TWEN page.

Or, sign onto Westlaw, hit the tab on the top for “TWEN,” then click “Add Course,” and choose the “Feminist Legal Theory” CRN from the drop-down list of National TWEN Courses.

Once you arrive at the Feminist Legal Theory CRN TWEN page, look to the left hand margin and click on “Law & Society 2014 – Abstracts.”  If you do not have a Westlaw password, please email Seema Mohapatra at smohapatra@barry.edu and ask to be enrolled directly.

Please submit all proposals for paper presentations by Wednesday, September 18, 2013. This will permit us to organize panels and submit them prior to the LSA’s deadline on October 15. If we cannot accept all proposals for the CRN, we will notify you by early October so that you can submit an independent proposal to LSA.

We hope you’ll join us in Minneapolis to discuss the scholarship in which we are all engaged and connect with others doing work on feminism and gender.

Best,

LSA Planning Committee

Francine Banner
Arianne Renan Barzila
Beth Burkstrand-Reid
Jessica Clarke
Alesha Durfee
Marie Failinger
Elizabeth Kukura
Kara Loewentheil
Seema Mohapatra
Dara Purvis
Rachel Rebouche
Sarah Swan

 

2 v. 3 v. The Liberal Arts

Thomas Powell once famously said, “If you think that you can think about a thing, inextricably attached to something else, without thinking of the thing it is attached to, then you have a legal mind.”  This well-known quotation has been running through my mind recently as I have been observing the (recurring) debate about how long law school should be in the United States.  In particular, I have been thinking about it as a result of a gut feeling that the ‘2 v. 3’ debate is largely occurring within a vacuum, with not enough attention being paid to the current (beleaguered) state of the United States’ higher education system as a whole.  So, casting aside my legal mind (at least for the moment), I want to raise a few questions, over the course of a few posts, about the larger system we have constructed are dismantling; this ‘larger system’ serves as a feeder system for law schools (in their present incarnation) and, as a result, seems to be something inextricably attached to debates concerning them.

I have lived in a number of different countries and have participated in a number of different ways of ‘doing legal education.’  I say this only to emphasize that I am not particularly invested in the outcome of the ‘2 v. 3’ debate.  In other words, I do not think there is a right answer to it, but I am also skeptical that it is the right question in the first place.  This is to say that I believe there are some questions about legal education—and higher education in the United States more generally—that are rarely being asked and should be.

I’d like to begin with a sort of ‘big picture’ problem with undergraduate education in the United States —as I see it and as I have experienced it; the United States is, however, a huge country with much variation—and then think about how that undergraduate problem poses important dilemmas for law schools who then have to ‘deal’ with what contemporary undergraduate education gives them.  This ‘big picture’ problem concerns many, many law students’ lack of exposure to political theory, history, sociology, and other disciplines which help make up what we call the ‘liberal arts.’  Rather, what I often see are incoming law students who—to no fault of their own—have majored in fields like marketing, finance, and accounting, or even physical therapy.

Faculty Hiring: Suffolk

From an email that I received yesterday:

SUFFOLK UNIVERSITY LAW SCHOOL in Boston invites applications for a tenure-track position starting in the 2014-2015 academic year.  We seek entry-level and pre-tenure laterals with strong academic records and a demonstrated commitment to excellence in teaching and scholarship. Our search will focus on candidates with expertise or developing interest in business law, including but not limited to business entities, corporate finance, banking law, or securities regulation. Candidates’ teaching and research areas may also include advanced business topics in business planning or similar transactionally-oriented business subjects. Candidates may also be asked to teach a first year course. Suffolk University is an equal opportunity employer. We encourage applications from women, persons of color, sexual orientation minorities and others who will contribute to the diversity of the faculty.  Interested candidates should contact Professors Jessica Silbey and Robert Smith, Co-Chairs, Faculty Appointments Committee, at jsilbey@suffolk.edu and rsmith@suffolk.edu, with a copy to bmello@suffolk.edu, or mail their materials to Co-Chairs of the Appointments Committee, c/o Babs Mello, at Suffolk University Law School, 120 Tremont Street, Boston, MA 02108-4677.

Stanford Seeks Applications For Law And Biosciences Fellowship

This just came in:

Stanford Law School invites applications for the 2014-2015 Fellowship Program at the Center for Law and the Biosciences. This fellowship is intended for people who want an academic or policy career working on legal and social issues arising from advances in the biosciences, with a particular emphasis on neuroscience, genetics, or stem cell research. (Six of our former fellows are now teaching at universities in the United States, Asia, and Europe.)

The Center for Law and the Biosciences Fellowship is a residential fellowship that provides an opportunity to conduct research in the dynamic environment of Stanford Law School. We prefer two-year fellowships to help the fellow complete a significant body of independent scholarship, but we are willing to consider one-year terms. We expect fellows to dedicate most of their time to pursuing their proposed research projects, while dedicating about one-sixth of their time to organizing and implementing other Center activities, including our annual conference, our monthly speaker series, our biweekly journal club, and our other activities, as well as writing for our blog. Fellows are encouraged to attend weekly faculty lunch seminars and participate in activities with the other fellows at Stanford Law School to learn more about their legal scholarship and academic life.

For the 2014-2015 fellowship, we will provide fellows with office space, a competitive stipend, and a generous benefits package. Applicants should have a JD or other doctoral level degree (MD, PhD) in a relevant area. A law degree is a significant advantage, but is not a requirement. Applicants must apply online at Stanford Jobs (http://jobs.stanford.edu), requisition number 60600. Applicants should also submit a CV with contact information for three references, a writing sample, and a research proposal (2000 words or less) to Angela Arroyo Antia (aarroyo@law.stanford.edu) by November 1, 2013 at 5:00 PM Pacific time. We will choose fellows based on demonstrated academic merit and potential, and on the intellectual strength of their research proposals. Decisions will be made on or around December 6, 2013.

Chris Edley Stepping Down As Dean Of Berkeley Law

Lost in light vacation blogging was this news item: Dean Christopher Edley of the University of California - Berkeley School of Law will step down at year's end.  He is taking medical leave immediately.    He has been dean for nine years and his term as dean was set to end next year.  Professor Gillian Lester will serve as acting dean as the school searches for its next leader.

Our thoughts and prayers go out to Chris.

It's Official! InfiLaw Buys Charleston School of Law

The news, such as it is, is here.  Our prior post noting InfiLaw's management agreement with the school is here.

Lobban to London School of Economics

The distinguished historian of English law Michael Lobban is moving from Queen Mary to the London School of Economics, effective this fall.  His many important publications include The Common Law and English jurisprudence, 1760-1850 (Oxford, 1991), White Man's Justice: South Africa Political Trials in the Black Consciousness Era (Oxford, 1996), A History of the Philosophy of Law in the Common Law World, 1600-1900 (2007), and the co-authored The Oxford History of the Laws of England, Volumes XI, XII, and XIII: 1820-1914 (2010).  He is also the co-editor of a number of volumes and author of numerous articles and book chapters.

Drexel Law Seeks IP Faculty Candidates

What can I say?  I'm biased.  I think we have a great faculty, an inclusive community, and a hometown - Philadelphia - that's nearly unbeatable.  To top it off, the university is a deeply committed supporter of the law school.  We're looking for a lateral or entry-level hire with expertise in Intellectual Property and a willingness to teach Property as well.  Send expressions of interest to Adam Benforado, our search committee chair.

Cost-Cutting and AALS Annual Meeting

I've heard a few folks say this year that they think attendance at the AALS Annual Meeting in January will be lower than usual because of cost-cutting measures on faculty budgets. Wondering if this is true or not. How many schools are still adding extra dollars to faculty budgets for those attending AALS? Or is attendance now seen as a luxury in difficult financial times?

Faculty Hiring: UNT-Dallas

From an email message that I received a day or two ago:

The University of North Texas at Dallas College of Law invites applications for 4-5 full time faculty members who would begin teaching in the academic year 2014-2015.  The areas in which these faculty members will teach may include Contracts, Criminal Law, Civil Procedure, Legislation, Property, Torts, Constitutional Law, and Legal Analysis, Research, and Writing.  These positions will be tenure-track or tenured positions, although possibly one position will be a term or continuing term contract position.

The College of Law is a new public law school that will enroll its inaugural class in Fall 2014.  The College of Law plans to enroll one full-time section of approximately 80 students, and one part-time evening division of 40-45 students.  For the near-term future, each entering class will include a day section and an evening section of approximately these sizes.

The College of Law’s goals are:
(1) widening access to legal education for those who could be superb legal professionals but who cannot realistically access a legal education given factors including location, cost, and the current role of the LSAT in admission to and financing of law school;
(2) providing an educational program focused on excellence in developing practice-related competencies, through a curriculum mapped to those competencies and using best instructional practices, including multiple formative and summative assessment throughout, engaged class design, and a spectrum of experiential education;
(3) creating opportunity for our students by keeping tuition and debt low and producing graduates with high value and ability in multiple segments of the market for legal services;
(4) becoming a national leader in advancing understanding of best legal education practices, of professional formation, and of the relationship between legal education and the evolving practice and business of law; and
(5) serving as a valuable partner with the legal profession and the DFW community.

The positions will include tenure-track or tenured appointments, at the rank of assistant, associate, or full professor.  Rank will depend on qualifications.  Possibly, at least one position may take the form of a term or continuing term appointment.  The College of Law will not have a separate appointment “track” for instructors of legal writing (or legal writing, analysis, and research).  Instead, faculty members will likely teach both a substantive law class and a section of legal writing.  The appointments will be academic-year appointments.

Faculty members in these positions will teach the substantive law courses in the first year curriculum for the inaugural class; in addition, these faculty members will teach legal writing in small sections.  For instance, a faculty member might teach Contracts to the entire 1L section (80 students), and also teach legal writing to a 20-student subgroup of the section.  These teaching assignments may be repeated in the second year of the College of Law’s operation, even though additional faculty members will be hired by that time.  Once the law school is in its third year and the faculty is closer to its full staffing levels, faculty members can expect to teach in the first-year and upper-level courses (including sections of legal writing), depending on need, interest, expertise, and other factors.  All faculty members will be involved in curricular and co-curricular activities and programs relating to student learning and professional formation throughout law school.

Faculty members will be expected to follow best instructional practices, including multiple formative and summative assessment; to design courses in ways that make best use of technology; to follow a curriculum mapped to practice-related competencies; to develop, use, and revise learning outcomes; and to participate in course and program assessment.  The College of Law will support faculty in these areas by providing training, course design expertise, and learning management system support.  As to scholarship, given the mission and goals of the UNT Dallas College of Law, the definition of scholarship is intended to be broad, including scholarship that is valuable to lawyers and judges, that relates to the teaching and learning process in law, or that relates to the profession or the formation of professional competencies.

Interested candidates should apply at https://unt-dallas.peopleadmin.com/postings/1116

Welcome To Two New Permanent Bloggers: Michelle Meyer and Jeff Redding

We're incredibly pleased to announce that two new permabloggers are joining the Faculty Lounge.  Many of you will already be familiar with their particularly engaging (and at times controversial) posts.

Michelle Meyer  is finishing a fellowship at the Petrie-Flom Center at Harvard Law School and is moving to become an assistant professor  of Bioethics at the Union Graduate College of the Mount Sinai School of Medicine.   She holds an AB from Dartmouth, a JD from Harvard, and a Ph.D in Religious Studies from Virginia.   Her publications are here.

Jeff Redding is an associate professor at Saint Louis University School of Law.   He has a BA from Harvard and a  JD from Chicago.  He teaches civil procedure and comparative law.  His publications are here.

Putting It On Our Children to Fix the Eastern Pacific Garbage Patch?

I was visiting Sydney Sea Life Aquarium recently and, in the children’s activity area, noticed signs urging kids to become plastic warriors by pledging to reduce their families’ use of plastic packaging in order to protect the ocean. I’m sure I've seen similar signs in aquariums and museums near me, but this time it struck me. Are we really putting the responsibility on our kids to curb the nightmare of plastics pollution in our oceans? And they’re supposed to do this by advocating to their parents kid by kid to use less plastic packaging until some small impact is made? Suddenly, the world seemed upside down.

You may have heard of the congregation of plastic particles and plastic debris in the oceans, which concentrates especially in areas called gyres, most notably in the Eastern Pacific Garbage Patch, which is located midway between Hawaii and California. Size estimates of the area vary, but some reports note that it is twice the size of Texas, while others peg it as much bigger, even nearly the size of Africa.   The problem is not only that these plastic garbage patches are impossible or nearly impossible to clean up, but, more importantly, the plastics kill and otherwise harm numerous species of marine life, from sea turtles to albatrosses to plankton.   See, e.g., National Geographic Eduction, "Encylcopedic Entry:  Great Pacific Garbage Patch"; Alan Weisman, "Polymers Are Forever," Orion Magazine(May/June 2007).  And not only do the plastics themselves harm the animals, for example, by blocking the digestive tracks of birds and turtles, but the plastics also concentrate poisons like PCBs, thus introducing large amounts of such poisons into the bodies of the animals that ingest them.   To make matters worse, such plastics take at least centuries to decompose, especially in the ocean where the process is slowed.  See, e.g., Grant A. Harse, "Plastic, The Great Pacific Garbage Patch, and International Misfires at a Cure," 29 UCLA J. Envtl. L. & Pol'y 331, 335 (2011).

Meanwhile, it appears that the United States' and other countries' attempts to address this problem are extremely incremental.  There are statutes and treaties aimed at stopping ocean dumping, but these laws do nothing to address the fact that a 80% of marine debris is estimated to come from land-based sources.    Id. at 332, 335.

It has seemed quite clear to me since I first read the Orion article referenced above that what we really need are stringent controls on the use of plastics for packaging and other purposes.  However, although I may have missed it, I haven't heard of any comprehensive movement in that direction.  I applaud the efforts of local governments, states, and countries that have decided to require recycling of plastic bags, to ban them, or to ban the use of Styrafoam food containers, but these efforts alone are not going to halt the large-scale contamination of our oceans.  And although, like most parents, I think my four year-old is capable of great things, it's not fair to put the burden of fixing this problem on our children and future generations.  Our generation and our parents' generation created it, and we need to fix it (or--if that is not possible--at least significantly rein it in).

By the way, the best thing at the Sydney aquarium was the dugong.

Battle of Blair Mountain

Erik Lomis has a very good post on the Battle of Blair Mountain, which began on August 25, 1921, ninety two years ago today and about which I am shamefully ill-informed.  Since I'm deeply interested in another violent tragedy from earlier in the year in 1921, I should be much better informed about this than I am.  Lots of violence in 1921, for sure.

Because I'm working a little on the nature of Gilded Age legal thought, I was just reading two companion  opinions from the West Virginia Supreme Court that struck down a West Virginia statute that prohibited coal companies from paying working in company script and also from charging workers more than regular customers.  If you haven't read State v. Fire Creek Coal and Coke Company, 10 S.E. 288 (West Virginia, 1889)  and State v. Goodwill, 10 S.E. 285 (W.Va. 1889) you might find them illuminating about the judicial ideology of the era.

Quite an opinion that Fire Creek.  In discussion of freedom of contract, the Court says the act "is an insulting attempt to put the laborer under legislative tutelage, which is not only degrading to his manhood, but suversive of his rights as a citizen of the United States."  Not quite sure what to make of the reference to manhood.  It's been cited a few times in the past couple of decades but was once rather notorious.  Pound used it as part of his discusison of mechanical jurisprudence.  

Also, I see through the magic of westlaw that it was the subject of a recent case note in the third volume of the Harvard Law Review back in 1890.   (Who know that westlaw had journals going back that far?)  But get this -- the following is the entirety of the case note:

Constitutional Law -- Liberty -- Police Power. -- Owners of factories and mines were prohibited by statute from paying their employees in orders on the stores of the company, and from selling goods from the stores to their employees at a greater profit than they obtained from strangers.  Held, the statute was opposed to the Fourteenth Amendment of the United States and to the “life, liberty, and property” clause in the Bill of Rights of the Constitution of West Virginia, and could not be supported as an exercise of the police power.  The court lay great stress on the fact that it does not apply to all employers, and is therefore class legislation.  Goodwill, 10 S. E. Rep. 285 (W. Va.); State v. Fire Creek Coal & Coke Co., 10 S. E. Rep. 288 (W. Va.).

In Pennsylvania a similar statute was curtly declared “utterly unconstitutional and void.” Godcharles v. Wigeman, 113 Pa. St. 431.

I guess it was easier to get a publication in 1890, huh?

Audience-Oriented Wrongs

As I mentioned in my last post, one of the things that I've been thinking about lately is how law and scholarship are beginning to pay more attention to the importance of audience in various contexts.  One interesting student note I encountered while researching this article identifies a category of "audience-oriented crimes," in which the presence of the audience profoundly affects the wrong, and thus participation through spectating may attract criminal liability or other penalties.  For these audience-oriented wrongs, the "presence and reaction of the spectators" is a "motivating factor" that encourages the underlying activity.   The author argues that drag racing and dog-fighting already fall into this category, and that gang rape or group sexual assaults should be included as well.

Cyberbullying arguably also belongs in this category of audience-oriented wrongs, and at least one Canadian jurisdiction appears poised to address it as such.  In the province of Alberta, new legislation dictates that students must "refrain from, report, and not tolerate bullying or bullying behavior directed towards others in the school, whether or not it occurs within the school building, during the school day or by electronic means."  Failure to perform these obligations may result in penalities like suspension or expulsion.

Currently, the "duty to report" piece of this legislation has received much critical attention, as has the fact that the legislation clearly extends to things that happen off school grounds and outside of school hours.  But the duty to "not tolerate bullying" is pretty remarkable, too.  Arguably, spectating is a form of tolerating, meaning that in addition to a duty to report, the legislation may also target the wrong of watching the bullying.  The Note explains that although spectating and not reporting are related, they are also distinct: "[t]hough it is wrong to fail to [report], the greater wrong is the decision to watch, and through that approving presence, encourage."

Two aspects of the encouraging presence of spectators in the cyberbullying context are worth mentioning here.  First,  in drag racing, dog fighting, and gang rape, the audience is a physically present group.  Theoretically, this makes enforcement of anti-spectating laws fairly simple.  In the cyberbullying context, however, the audience is most likely going to be a series of different individuals in cyberspace, viewing at different times and from different places.  This makes enforcement a more challenging proposition;  cyberbullying is difficult to envision as an "event," which law enforcement can ruin by attending and breaking-up in the way it can a drag race or a dog fight. Second, the size of the online audience as not limited to just the particular people present at a particular place and particular point in time, but instead extending to encompass anyone on the internet during the length of time something is easily accessible, is both part of what makes the harm of cyberbullying so egregious, and part of what makes the responsibility for it seem more diffuse and harder to police.

It's not clear yet how the Alberta legislation will play out, but given that the law in many jurisdictions is in a constant state of flux over how best to address cyberbullying, we may see similar measures crop up in other jurisdictions.  I suspect given the differences between the audience in this context and other audience-oriented wrongs, this kind of legislation will have little real-world affect on the relational and cultural dynamics that contribute to cyberbullying among youths, but recognize that it has expressive value nevertheless.

Hidden Gems: Community Law Schools Part of the Solution - Part V

Changing the classroom experience. Why are traditional faculty threatened by discussions about adding practice skills to the law school classroom? 

On one side of the argument are the academic puritans. They defend the casebook and Socratic Method as if they were handed down from Christopher Columbus Langdell in 1890 on stone tablets and ancient scrolls. As the argument goes, it worked for our professors, it worked for our mentors, it worked for us . . . and therefore it must work for current and future students as well. To challenge the status quo is characterized as suggesting that legal education be reduced to a trade school model akin to training auto mechanics and commercial truck drivers.

On the other side of the argument are the practical realists. They look at the job requirements and practice skills needed by today's new lawyers, the escalating cost of law school, and the declining job market. They foreshadow the shuttering of law schools that fail to transition to what is characterized as a more relevant relationship between education and practice.

But why are we allowing the extreme positions to dominate this discussion? This polemic debate between righteous advocates may be great blog fodder, but it fails to acknowledge that examples of legal education evolution are already underway. Perhaps greater focus on what "is" vs. what "isn't" changing would encourage a more constructive dialogue.

At a recent faculty meeting at our law school, there were some simple, but interesting questions posed. Why don't students draft contracts in Contracts? Why aren't they given the chance to present evidence in Evidence? Why don't they form a corporation in Corporations? Draft a lease in Real Property . . . present a motion in Civil Procedure? Once we got started, we realized that we could ask a similar question for virtually every substantive course in law school.

As our faculty engaged in a thoughtful discussion about these questions, it was never once suggested that we throw casebooks and the Socratic Method out the window. The discussion centered on how to reduce reading assignments without losing substance. Would it be OK to skip sections of a casebook that place too much emphasis on obscure aspects of the law? How many case briefs in class are enough? How can we better allocate class time between lectures and student discussions? 

The discussion started with the traditional concern that there is simply too much material to cover in too little time. How could anything new be considered? However, as the discussion progressed, it became clear that with small alterations, time for more practical exercises could be created . . . without diminishing the coverage of the substantive content. Of course, it would require altering syllabi, re-reading case books to create more selective reading assignments, and creating new classroom exercises to replace well-rehearsed lectures.

The next question was how to accomplish these changes, particularly in a program like ours that relies on adjunct faculty who are working full time while teaching evening courses.

It is too early to report success, but I can share what we put in place this year to support these changes. First, we hired part-time teaching fellows to provide support for any faculty member who was interested in adding practice-oriented exercises to their courses. Second, our Asst. Dean for Academic Support began working with faculty to identify and collect examples of existing resources for subject specific practice exercises. Third, a former dean and senior faculty member who serves as our Distinguished Professor of Academic Excellence began scheduling time with individual faculty members to brainstorm on creative ways to engage students in practical applications of their respective substantive content. Finally, to get things started, all of the above activities are considered an "opt-in" program for faculty, not mandatory. I was pleased that we immediately had enough "early adopters" to begin experimenting this semester across selected classes in first-year, as well as upper-division courses.

None of these initiatives are "rocket science" or particularly innovative in their own right. However, taken as a whole, these changes reflect an evolution in the culture of our law school. Expectations about the type of education we wish to provide are changing without being threatening. It has already brought a new energy into the law school . . . and into the classrooms. We realize that change will not happen overnight, but through small, constructive steps we are fostering an environment that is directly addressing the current challenges in legal education, not merely arguing about them.

I would love to hear comments about other examples of these types of changes that are underway . . . 

Obama: Law School to Two Years?

Ian Holloway sends along a link to a report that President Obama has called for law school to shorten to two years.  Whenever I hear Obama talking about law school or race I think about his course on law and race -- which Stacey Gahagan and I wrote about.