The Faculty Lounge

Colonial American College Building Trivia

In honor of Craig Wilder's Ebony and Ivy I thought that I'd ask a trivia question about a colonial American college (now University).  Where?

The Butler

As long time readers of the faculty lounge may recall, I rarely see first run movies, but I make an exception when they relate to slavery or Jim Crow.  And so The Butler fits within that exception.   I had the chance to see it recently with a couple of friends who are historians.  I enjoyed it, but I wonder about what to make of "The Butler."  The movie begins with "The Butler" (Cecil Gaines) as a child seeing his father shot and killed in a cotton field by a young white man who'd just assaulted Cecil's mother; he then is taken from the field into the house of the white plantation owner and trained as a domestic servant.  That sets him on a journey, first to North Carolina to work in a hotel and then to DC and -- after giving a sufficiently subservient answer to a hotel patron's question about what should be done in response to Chief Justice Warren's call for integration -- a job in the White House.  Along the way he became a favorite butler to presidents from Ike to Reagan.

A lot of the story is about Gaines' relationship with his oldest son, who makes the journey from Freedom Rider to Black Panther, to anti-apartheid activist, then, ultimately, to Congress.  A lot of Gaines' life is spent waiting on presidents and studiously avoiding political controversy.  He seems to support a young Richard Nixon, for instance.  It's only later in life that Gaines goes through his son's belongings and sees a copy of Manning Marable's Race, Reform, and Rebellion (sort of odd here, because the book was published in 1984, so the timing's a little off -- but what the heck) and a copy of one his son's mug shots.  (The son was arrested numerous times at civil rights protests.)  At this point Gaines realizes that his son, who earlier had called him an Uncle Tom, had been courageous and maybe even correct.   Gaines himself ends up getting arrested in a protest at the South African Embassy and then, some years later, voting for Barack Obama.

Now, Brando Starkey is certainly the expert in Uncle Tom around these parts, but I wonder what to make of Gaines' character.  Did he have more to do with the historic Uncle Tom -- someone who served but undermined the system of slavery -- or maybe with the grandfather in Invisible Man who yes-sired the white people to death?  Gaines maybe is like enslaved people in the old South who appeared faithful but would undermine slavery when given a clear opportunity.  

Then again, one of my friends who saw it with me (who happens to be one of the most distinguished historians of African American intellectual history in operation today) wondered if Gaines is instead a representative of conservative African Americans who made a political transition in the 1980s.  I think she's probably right.

Pace Law School Dean Search Announcement

Pace Law School is searching for a new dean. Here is the position announcement.

Bob Klonoff Stepping Down As Dean Of Lewis And Clark Law

Dean Robert Klonoff will be stepping down as the dean of the Lewis and Clark law school at the end of this academic year.  He will have served for seven years and plans to return to the faculty.

Design Patent Myths—Only artistic designs can be patented

Another myth is that only artistic (or aesthetically appealing) designs can be patented. It’s true that that Patent Act expressly requires that a patentable design be “ornamental.” And the Supreme Court has suggested—albeit in dicta—that this means “a design must present an aesthetically pleasing appearance.” So perhaps design patent protection should be limited to designs that show some degree of aesthetic creativity. Or, at least, to situations where consumers actually care about how a product looks.

But under current Federal Circuit case law, there is no such requirement. Basically, the Federal Circuit will deem a design to be “ornamental” whenever there are alternative product designs available. (This is based on a string of logic that begins with the highly questionable premise that “ornamental” is the opposite of “functional,” although a full discussion of that issue is far beyond the scope of a blog post.) And there are almost always alternative designs available. Therefore, as Chris Buccafusco has pointed out, the Federal Circuit has effectively read “ornamental” out of the statute.

Columbia Law School Dean Search Committee

Columbia University President Lee C. Bollinger has announced the members of the search committee for the Columbia Law School dean.  They are:

Richard Briffault, co-chair, Joseph P. Chamberlain Professor of Legislation
Robert Scott, co-chair, Alfred McCormack Professor of Law
Patrick Bolton, Barbara and David Zalaznick Professor of Business, Columbia Business School
The Honorable Denise Cote GSAS ’69, LAW ’75, United States District Judge
Brett Dignam, Clinical Professor of Law
Suzanne Goldberg, Herbert and Doris Wechsler Clinical Professor of Law
Sarah Green ’14, student, Columbia Law School
Nkonye Iwerebon ’93, Dean of Admissions
Robert Jackson, Associate Professor of Law and Milton Handler Fellow
Olati Johnson, Professor of Law
Benjamin Liebman, Robert L. Lieff Professor of Law
Alex Raskolnikov, Charles Evans Gerber Professor of Law

Cribbing now from President Bollinger's message announcing the search committee: 

Law School Dean David Schizer will be stepping down at the end of this academic year when his ten-year term reaches its conclusion. His outstanding service to the School and to the broader University merits our gratitude and admiration. Columbia Law School continues to be one of the very finest in the world, and this is in no small part due to David's dedication over the past decade. We all look forward to opportunities to thank him for his service during the course of the year ahead.  For many, and mostly obvious, reasons I am deeply and personally committed to the School's ever-increasing success, especially at this important moment of transition.

I am very much looking forward to hearing the results of the search.  It's obviously in very capable hands.

Faculty Hiring: Connecticut (Business School / Human Rights Institute)

From an email that I received earlier today:

The University of Connecticut solicits applications for a joint appointment within the School of Business and The Human Rights Institute at the rank of Assistant Professor. This tenure-track position resides in the School of Business, and is a 9-month appointment. The successful candidate is expected to engage in scholarly research with a focus on human rights as related to business practices, law and ethics, corporate social responsibility, and/or public policy, and publish in high quality journals. This position includes undergraduate and graduate teaching assignments in the School of Business and the Human Rights Institute. In addition, the faculty member is expected to perform service and outreach as needed and consistent with the School of Business, the Human Rights Institute, and The University of Connecticut’s interests and priorities. The appointment begins August 23, 2014. The compensation package will be commensurate with background, qualifications, and experience.

 Minimum Qualifications: 1) Pursuit of or a completed J.D. or Ph.D. from an accredited United States university or equivalent foreign terminal degree; 2) The potential for excellent scholarly activity on human rights as related to business practices, law and ethics, corporate social responsibility, and/or public policy; and 3) Evidence of effective undergraduate teaching or significant experience in the practice of law focused on human rights as related to business practices, law and ethics, corporate social responsibility, and/or public policy.

Preferred Qualifications: 1) Evidence of publishing high quality research in the area of human rights as related to business practices, law and ethics, corporate social responsibility, and/or public policy; 2) Evidence of effective graduate teaching in higher education (or equivalent) in the areas of human rights as related to business practices, law and ethics, corporate social responsibility, and/or public policy; 3) Ability to collegially contribute through research, teaching, and/or public engagement to the diversity and excellence of the learning experience.

Applications are accepted online only at http://www.jobs.uconn.edu/faculty/index.php. To be considered a candidate for the position, applications must include: 1) a cover letter indicating your research focus, 2) your curriculum vita, 3) two published works or works in progress, and 4) if available, copies of your teaching evaluations.  Additionally, please follow the instructions in Academic Jobs Online to direct two reference writers to submit letters of reference on your behalf. 

If you have questions about the position, Emma Gilligan, Co-Chair of the Search Committee, Director of the Human Rights Institute at emma.gilligan@uconn.edu.  

Interested qualified candidates are urged to apply by November 9, 2013. In keeping with the University’s commitment to building a culturally diverse community, we encourage applications from under-represented groups, including minorities, women, and people with disabilities. UConn is an AA/EEO employer.

 

Design Patent Myths—Most designs can’t satisfy the requirement of “nonobviousness”

Another common design patent myth is that the Patent Act’s “nonobviousness” requirement is a very high barrier to protection for designs.

In order to be patentable, a design must not only be new (or “novel”), it must be sufficiently new (or “nonobvious”).  Section 103 of the Patent Act states that a patent “may not be obtained” for an invention that “would have been obvious . . . to a person having ordinary skill in the art to which the claimed invention pertains.”

This requirement applies to both utility patents and design patents. But obviousness is analyzed quite differently in each context.

CFP: "Translating Culture, Negotiating Difference: Religion, Law, and Business"

Conference at Saint Louis University, St. Louis, March 28-29, 2014. The concept of cultural translation, popularized by anthropologists Bronislaw Malinowski and Edward Evans-Pritchard, intimates that negotiating cultural difference is analogous to learning a foreign language. The metaphor retains its usefulness today in that it points to the possibility, but also the problems, of communication in an increasingly interconnected world: assumptions, miscommunication, and the incommensurability of epistemological categories. The conference seeks to put a magnifying glass to them by focusing on three areas of international activity that involve cultural translation: religion, law, and business. Our hope is that a comparative perspective on their distinctive ways of resolving these issues would offer new insights.

The Center for Intercultural Studies at Saint Louis University invites proposals for papers that take an innovative, interdisciplinary approach to explore the practice of cultural translation in these three fields. A paper would ideally include a specific case study illustrating a distinctive problem and its theoretical underpinnings. Submissions should include: a one-page abstract of the paper, with a title and name of the author; the author's brief curriculum vitae; postal address; email address; and phone number. Complete proposals should be emailed as attachments in Microsoft Word to rozbicmj@slu.edu, with a subject line "Translating Culture Proposal." The deadline for submissions is December 15, 2013.

Confederate Monument ... on Martha's Vineyard?

As I'm sitting here editing the first chapter of University, Court, and Slave -- it and the tables on votes in the Virginia House of Delegates are getting the better of me right now -- I thought I'd take a break and post a couple of photographs that Bill Turnier sent along.   This is a pretty interesting story -- a Confederate veteran put up the monument at right in 1891 as an act of reconciliation.  And in the 1920s the Union veterans reciprocated by putting up a plaque honoring the Confederate soldiers.  Or so the plaque at the "Soldiers Memorial Fountain" that Bill sent along tells me.  All of this reminds me that I have a picture of a fountain dedicated as a memorial to the South that I need to use for a trivia question real soon....

And the Confederate Monument on Martha's Vineyard, "The Chasm is Closed" -- here it is.

When I have more time I want to get into the discussion of Caroline Janney's Remembering the Civil War: Reunion and the Limits of Reconciliation, which poses an important challenge to one of my most favorite works of history, David Blight's Race and Reunion.  Janney argues that while some people spoke of reconciliation (and did so on the backs of the formerly enslaved people and their issue), that veterans and their families resisted reconciliation, in many cases until the end.  This is not surprising -- but particularly in law (an area that is not of a whole lot of interest to Janney) the reconciliation impulse was in full swing by the 1890s.  And in law, a place where reconciliation ideas and action really mattered, it helped smooth the way for Jim Crow.  Time for Glory McLaughlin to write a follow-up to her article on the image of the Civil War in the Alabama courts.  Certainly the Martha's Vineyard monument is further evidence of the public image of reconciliation even among veterans from Massachusetts.  Makes me think someone needs to write a review of Janney from the perspective of southern and northern judicial opinions -- and undoubtedly there's some cool work to be done looking at United States and Confederate veterans who became judges, too.  Janney is certainly sparking debate in the Civil War memory world and I'm thinking she's going to open up some good questions about the contours of reconciliation and how it unfolded from the 1890s through the 1930s.

Update: The monument is on Martha's Vineyard, not Cape Cod as I originally wrote.  My apologies to blog readers that I can't keep those high-end vaction spots straight.

Slavery and Business History

Forbes has a nice article about Caitlin Rosenthal's work on the business practices of slave-owners.  Cribbing a little from the conclusion of the article:

Rosenthal is aware that what started out as a straightforward history of business practices could become highly controversial, with some misconstruing her research as a kind of justification of slavery. Instead, she wants her research to inform managers and companies to become more aware of the complicated legacy of today’s business practices and the origins of some their day-to-day management practices.

“I got into this because I followed my sources,” Rosenthal says. “I didn’t mean to walk into this minefield.”

I don't think anyone should think she's justifying slavery.  Though this does remind me of the discussion we had here a while back on whether slaves were "paid" for work.  And I was happy to see that in addition to mentioning her book in progress, “From Slavery to Scientific Management: Capitalism and Control in America, 1754-1911,” that there will be a chapter in Sven Beckert and Seth Rockman's edited collection, Slavery’s Capitalism.

H/t Eric Fink.

Jones on the Free Black Family in Antebellum Baltimore (and Building Trivia)

Next Friday, October 18, Martha Jones of the University of Michigan will present her paper “Governing the Free Black Family: Reflections on Scenes from Antebellum Baltimore" to the Triangle Legal History Seminar from 4 to 6 pm.  We'll be meeting at UNC Law School's boardroom.  If you're in the triangle I hope you can make it.  (Email me if you're planning on attending so I can arrange for the right amount of parking. And here is a pdf file with directions to UNC Law School.)  This paper is part of Martha's work on African Americans, law, and citizenship in antebellum Maryland.  I blogged about another piece of this project last week, Jean Baptiste, un Créole De Saint-Domingue: Narrating Slavery, Freedom, and the Haitian Revolution in Baltimore City.  Another piece of this expansive and exciting project appeared in the North Carolina Law Review last spring, "Hughes v. Jackson: Race and Rights Beyond Dred Scott."   Also, if you're setting your calendar further ahead than next week, Martha will be giving a public lecture at the National Humanities Center on November 7,  "Citizenship Before Birthright: The Puzzle of Free African Americans Prior to the 14th Amendment."

I'm going to combine this announcement with an antebellum building trivia question that Martha's sent along.  What's the building?  (Since the last building trivia question that Martha sent along was of a Maryland Courthouse I'm guessing this, too, might be a courthouse.)

Faculty Hiring: Northern Kentucky (Salmon Chase)

From an email that I received earlier today: 

NORTHERN KENTUCKY UNIVERSITY, SALMON P. CHASE COLLEGE OF LAW (Chase) invites applications from entry-level and junior lateral candidates, with a juris doctor or equivalent degree, for one or more tenure-track faculty positions to begin in the 2014-15 academic year.  We seek candidates with scholarly achievement or considerable scholarly promise in any subject matter, but with particular focus on property, wills and trusts, family law, torts, administrative law, commercial law (including UCC and bankruptcy), and evidence.  These candidates should also possess a commitment to teaching effectiveness and to law school and community service, as well as excellent academic credentials and recommendations.  We will look very favorably upon candidates who also possess judicial clerkship, law review, and/or practice experience.

Chase is located in the rolling hills of Highland Heights, KY, approximately six miles southeast of downtown Cincinnati, OH. With four major universities (Northern Kentucky University, University of Cincinnati, Miami University and Xavier University) and numerous museums, theatres, and music venues, the Northern Kentucky/Cincinnati area abounds with intellectual and cultural stimulation.

Candidates interested in Chase should send a cover letter, resume, copy of a published article or work in progress, and contact information for three professional references to Professor Jennifer Kinsley, Chair, Faculty Recruitment Committee, at kinsleyj1@nku.edu, or at Salmon P. Chase College of Law, Nunn Hall 507, Nunn Drive, Highland Heights, KY  41099.

Northern Kentucky University is an affirmative action/equal opportunity employer and encourages the application of minorities, women, and others whose backgrounds will contribute to the diversity of the faculty.

Call for Nominations: AALS Section on Women in Legal Education's Ruth Bader Ginsburg Lifetime Achievement Award

The AALS Section on Women in Legal Education is pleased to open nominations for its second Lifetime Achievement Award. Last year, the inaugural award honored Justice Ruth Bader Ginsburg for her remarkable impact and contributions to the Section on Women in Legal Education, the legal academy, and the legal profesison.

The purpose of the Lifetime Achievement Award is to honor an individual who has had a distinguished career of teaching, service, and scholarship for at least 20 years.  The recipient should be someone who has impacted women, the legal community, the academy, and the issues that affect women through mentoring, writing, speaking, activism, and by providing opportunities to others.

The Section is seeking nominations for this most prestigious award.  Please submit your nomination by filling out this electronic form by November 8, 2013.  Please note that only nominations submitted via the electronic form by the deadline will be accepted.

Please email Dean Cynthia Fountaine, chair of the Lifetime Achievement Award Subcommittee if you have any questions or difficulty with your online submission.

The Brooklyn Law Experiment: Can You Be A Dean And Law Firm Partner Simultaneously?

I just got an email from someone at Bloomberg Law today alerting me to a video chat with Brooklyn Law's  dean, Nicholas Allard.  What was most interesting to me is that Allard is identified as the school's dean - and a partner at Patton Boggs.  On the Brooklyn Law site, he's described as the dean and a professor.  And at the Patton Boggs website, he is still identified as a partner.  Somehow, I thought that he was planning to leave Patton Boggs.

Here's my question.  Is this permitted at an ABA accredited law school?  

Standard 206(a) provides:

A law school shall have a full time dean

What does full-time mean?  That's not explained for deans, but for faculty, Standard 402(b) provides:

A full-time faculty member is one who primary professional employment is with the law school and who devotes substantially all working time during the academic year to the responsiblities described in Standard 404(a), and whose outside professional activities, if any...do not unduly interfere with one's responsibility as a faculty member.

Interpretation 402-4 states:

Regularly engaging in law practice or having an ongoing relationship with a law firm...creates a presumption that a faculty member is not a full-time faculty member...

A few faculty members do maintain some affiliation with law firms.  The rule of thumb seems to be that such faculty may work no more than a day a week at the firm.  But I wonder whether this is, or ought to be, true of deans.  The usual consideration might be whether he delivers the services students and faculty have a right to expect from the dean of an ABA law school.  But I also wonder whether having a dean who is also a partner at a law firm creates either actual, or apparent,  conflicts of interest for the law school.  

I can see plenty of upside for the law school.  It connects a wired lawyer with a large cohort of students.  And by having a dean with a finger on the pulse of practice, the school might better  align the academic program with the needs of the profession.  Maybe this arrangement is entirely acceptable under the ABA rules.  And perhaps, if it's not acceptable, it ought to be.  

But I could also imagine that there are challenges here.   My sense is that leading a big law school like Brooklyn is more than a full time job.  Where does he find time to be a partner?  And  if Allard's values and priorities are wildly out of synch with the faculty - a fact about which I have no information at all - managing the law school might become quite difficult.  

Whatever else it is, this is an interesting experiment.

Update: the PR blast was from Bloomberg.  I have corrected the post.

Further update: The email I received was not an official press release from Bloomberg but rather a heads up from a content producer sharing a link to content - an interview - he had produced for the site.

Patent Appeals & Labor Law

In my last post, I noted that it has become quite easy to get design patents. But it wasn't always that way. So what changed? One possible explanation is that the PTO simply abandoned its examining duties. But I think the blame—or credit, depending on your point of view—belongs with the U.S. Court of Appeals for the Federal Circuit.

Since 1982, the Federal Circuit has had exclusive appellate jurisdiction over patent cases. The court’s influence on utility patent law has been widely noted (and criticized). But the court has also worked rather dramatic—and equally problematic—changes to design patent law.

So I was intrigued when I heard that, in a recent speech, the Hon. Diane Wood suggested rolling back the Federal Circuit’s exclusive jurisdiction over patent appeals. To be clear, she isn’t proposing that the Federal Circuit be abolished; rather, she envisions giving parties “a choice: they could take their appeals to the Federal Circuit, thereby benefiting from that court’s long experience in the field, or they could file in the regional circuit in which their claim was first filed.”

According to Chief Judge Wood, this proposal is similar to the system we have for the review of National Labor Relations Board decisions. So I’m curious what labor law people think—does this dual-path appeal system work well in the NLRB context? Do most parties pick their local circuit or the D.C. Circuit? How often is Judicial Panel on Multidistrict Litigation intervention required?

Malcolm Gladwell is a Bullshitter

In the Frankfurtian sense of bullshit, that is. Or so it appears. Malcolm Gladwell is often hailed as bringing the insights of social science to the masses. But most social scientists (and many others) have long known that Gladwell plays fast and loose with that science. He cherry picks data (often discussing studies with splashy findings while failing to acknowledge other—often larger, more recent—studies that failed to replicate the beguiling counter-intuitive finding). He fails to acknowledge the limitations of the studies with which he captivates his audience (such as their embarrassingly small sample sizes). And so on.

But failing to do the science justice does not, all by itself, make Gladwell a bullshitter. He might earnestly believe in the truth of what he says—say, in Outliers, about becoming an “expert” in any competition by spending 10,000 hours practicing the relevant skill—but simply lack the competence to carefully assess and communicate the literature. Or he might just as earnestly believe that the 10,000-hour rule he popularized is false, and aim to mislead his readers (for whatever reason).

For Frankfurt, neither scenario implicates bullshit. Instead, for him, the “essence of bullshit” is a “lack of connection to a concern with truth,” an “indifference to how things really are.” Whether someone is a bullshitter or not, then, depends not on any correspondence of their statements to objective truths but, rather, on the speaker’s state of mind. In several remarkable recent interviews—analyzed in this Slate article*—Gladwell talks about his writing (and live “performances”) in ways that suggest that he is primarily concerned with telling a good (read: captivating) story, and not especially concerned with the scientific truth of those stories. In other words, Gladwell is a bullshitter.

The only question, now, is whether his audience knows they’re being bullshitted.

* Disclosure: the Slate article is written by my husband. I wouldn’t link to his work, however, if I didn’t share his deep loathing for bullshit, whether in popular writing or (ahem) academia. Nor would I do so if I didn’t think that the Gladwell problem is related to (if distinct from) similar questions closer to home, such as when an academic may pursue advocacy that selects data and arguments in the service of a preselected conclusion and when, instead, an academic’s writing should come with an “implied warranty of scholarly integrity.”

Attention Crim Law Profs Considering Attending Law & Society

First of all, the call for papers for the 2014 LSA meeting ends October 15.  That's true whether or not you're a criminal law professor.  Second of all, it appears that Dan Markel et al are not organizing their shadow crim law & society conference this year - but are offering up Prawfs as a place for interested presenters to self-identify.  Details and the gathering space for possible presenters are here.

LGBvQ: Dueling Stanford Conversations on Same-Sex Marriage

I am traveling for conferences quite a bit this month, so that has been on my mind and will be the subject of the next few posts.  On that note then, I noticed that Stanford is hosting two different conversations on same-sex marriage this week.  The first is a 3-day conference (starting Thursday, October 10) sponsored by the law school and seems to be a bit (too much) of a victory parade for Edith Windsor.  At the very least, only the very last panel of the conference is dedicated to the theme—seemingly reluctantly, and christened skeptically with a question mark—of "Alternatives to Marriage: Still in the Mix?"

In response, the Stanford Students for Queer Liberation are sponsoring another conversation entitled "Imagine More than Marriage:  A Queer Conversation on LGBT Rights."  This group also appears to have plans to leaflet the SLS conference with information explaining a queer position on same-sex marriage and its sponsors.

I'll be curious to see how this all plays out.  Firsthand reports are always welcome! 

Jones on Narrating Slavery, Freedom, and the Haitian Revolution in Baltimore City

Martha Jones has posted Jean Baptiste, un Créole De Saint-Domingue: Narrating Slavery, Freedom, and the Haitian Revolution in Baltimore City.  It appeared in The American South and the Atlantic World (Brian Ward, Martin Bone, and William A. Link, eds., University Press of Florida Press 2013). Cribbing now from her abstract:

The story of the widow Volunbrun and her slaves might be told through differing analytic frames: empire, constitution making, anti-slavery constitution making, antislavery movements, political economy, high court pronouncements pronouncements, and biography.8 In this essay the answers lie in the intimate dynamics of a household and the lived experience of the enslaved people in it. Can we understand what the problem of slavery and freedom looked like for those enslaved people whose life itineraries were shaped by the meta-forces of commercial, political, and military conflict and exchange? Being enslaved in 1796 Port-au-Prince differed from being enslaved in 1801 New York City or 1818 Baltimore. Along this Atlantic itinerary, the Volunbrun slaves confronted new rules, rituals, and structures of power. Straining to adopt their perspective, we see the lived dimensions of slavery and law. We learn how enslaved people quietly navigated a complex matrix of courts, attorneys, and reformers. We will also see how the claims of Saint-Domingue's slaves in Maryland, making their lives at the intersection of the Haitian Revolution and an emerging domestic slave trade, shaped the parameters of Southern southern legal culture.

This is further to Martha's work on slavery in Maryland in the antebellum era, which includes her recent North Carolina Law Review article, "Hughes v. Jackson: Race and Rights Beyond Dred Scott." The image is of Baltimore's Washington Monument.