The Faculty Lounge

Mark Adams Named Dean Of Idaho Law

Professor Mark Adams, of Valparaiso Law, has been named the new dean of the University of Idaho College of Law.   Adams has been vice dean and associate dean at Valpo and will move to Moscow to take over in late June.   He will have to navigate the school's increasing presence in Boise - where it is competing with Concordia Law.

Adams holds a JD from the University of Chicago.  

Law Professors, Law Students and Depression . . . A Story of Coming Out (Part 1)

Back in January, CNN ran a piece entitled “Why Are Lawyers Killing Themselves.”  In general, the piece focused on a spate of lawyer suicides in Kentucky and other states over the last several years.  Most of the suicides (15 since 2010) in Kentucky were seemingly successful lawyers.  One was a relatively young (37) and popular adjunct professor at NKU’s Chase College of Law. 

Outside of Kentucky, another prominent lawyer suicide was Mark Levy, the chair of Kilpatrick Stockton’s Supreme Court and Appellate Litigation Practice in D.C.  Mr. Levy was a top Supreme Court advocate, having argued 16 times before the Court and, in January 2009, won a 9-0 victory for DuPont in an important ERISA case (Kennedy v. Plan Administrator, 555 U.S. 285 (2009)).  However, in April 2009, as the economy tanked, Kilpatrick Stockton informed Mr. Levy that his services were no longer needed.  So, Mr. Levy came to work on April 30, 2009, sat down at his desk, activated the “out of office” auto-reply feature on his email account and shot himself in the head.  Chillingly, the “out of office” message Mr. Levy activated that morning was as follows:  “As of April 30, 2009, I can no longer be reached. If your message relates to a firm matter, please contact my secretary. If it concerns a personal matter, please contact my wife.”  (See Richard B. Schmitt, “A Death in the Office,” ABA Journal, Nov. 2009, at 30-31). 

Here in North Carolina, one of the founders of King & Spalding’s Charlotte office, who was profoundly successful; a prominent litigator in McGuireWood’s Raleigh, N.C. office; and numerous quietly successful small town lawyers have committed suicide in recent years.

The common thread running through most of these suicides?  Clinical Depression (a/k/a “major depressive disorder”). 

According to the American Psychiatric Association and numerous other sources, depression is the most likely trigger for suicide.  Lawyers, as a group, are 3.6 times more likely to suffer from depression than the average person.  Of 104 occupations, lawyers were the most likely to suffer depression.  (Both of these statistics are from a Johns Hopkins University study to which I cannot find a link). 

Further, according to a two-year study completed in 1997, suicide accounted for 10.8% of all deaths among lawyers in the United States and Canada and was the third leading cause of death.  Of more importance was the suicide rate among lawyers, which was 69.3 suicide deaths per 100,000 individuals, as compared to 10 to 14 suicide deaths per 100,000 individuals in the general population.  In short, the rate of death by suicide for lawyers was nearly six times the suicide rate in the general population.  

A quality of life survey by the North Carolina Bar Association in the early 1990s, revealed that almost 26% of respondents exhibited symptoms of clinical depression, and almost 12% said they contemplated suicide at least once a month.  Studies in other states have found similar results.  In recent years, several states have been averaging one lawyer suicide a month. 

What is worse is the state of our students.  According to a study by Prof. Andy Benjamin (U. Wash.), by the spring of their 1L year, 32% of law students are clinically depressed, despite being no more depressed than the general public (about 8%) when they entered law school.  By graduation, this number had risen to 40%.  While this percentage dropped to 17% two years after graduation, the rate of depression was still double that of the general public.  (See http://www.lawyerswithdepression.com/law-school-depression/). 

These statistics, which likely have not improved in recent years, are terrifying.

In the months since CNN ran its story, I have (unsuccessfully) tried to shake the feeling that we (as lawyers, law professors and the mentors of a generation of law students) missed out on a valuable opportunity to more fully address an issue that is critical to the legal profession.  So, when the opportunity to post here came along, I decided to revisit this issue and to do so in a personal way. 

I will admit to being a bit nervous about even raising this topic.  (Given the nature of many anonymous internet commenters, I think most people would be hesitant to bare even a minute portion of their souls online and attempt to engage with a very serious subject, only to be subject to snarky or mean-spirited attacks.)  Plus, mental illness and suicide are not comfortable subjects for most people.  There remains a very real stigma attached to mental illness.  Many people believe that suffering from clinical depression, anxiety disorder, bipolar disorder, or a host of other mental illnesses is a character flaw or a weakness.  Having one of these diseases has been seen as something of which the sufferer should be ashamed.  This attitude has been in place for too long for people to easily change their perceptions and opinions. 

However, as lawyers and law professors, we must to do more.  It is clear that our students need us to do more.  When you are depressed, you feel so terribly alone.  You feel different.  You feel ashamed.  You feel weak.  You feel like you will never feel better and that you can never be the person you want to be. 

If 40% of our students feel this way, we must do more.  They look up to us.  They see us as role models and mentors.  They see us as strong and successful and confident.  They need to see that suffering from depression or anxiety or bipolar disorder will not curse them for all time and destroy their lives.  These are treatable diseases, not character flaws.  They need us to be brave and be honest. 

A few law professors have publically “come out” (so to speak) about their struggles with mental illnesses: Prof. Elyn Saks at Southern Cal (schizophrenia, via The Center Cannot Hold: My Journey Through Madness (2007)); Prof. Lisa McElroy at Drexel (anxiety disorder, via an article on Slate); and Prof. James Jones at Louisville (bipolar disorder, via an article in Journal of Legal Ed.).  They were all tenured when they did so.  

And then there is me: an untenured, assistant professor with five kids, who left a generally successful practice career to teach at Charlotte School of Law.  So, anonymous internet commentators be damned . . .

My name is Brian Clarke.  I am a father, a husband, a lawyer and a law professor.  And I suffer from major depressive disorder and generalized anxiety disorder. 

So there you have it.  While I have been “out” at Charlotte Law and have spoken publicly about my disease, this is the most wide-open forum in which I have come out. 

In my next post, I will share my story (a piece of public soul baring that you should not miss!).  In the third (and mercifully final) post in this little serial adventure, I will discuss the role my struggles with depression and anxiety have played (and continue to play) in the classroom. 

[FYI, as this is a serious topic, I will moderate any comments to this post and delete anything I deem inappropriate or off topic.]

Taxing Eggs on Oral Argument

Folks who followed the Taxing Eggs symposium here at the Lounge a few weeks ago might also be interested in the most recent episode of Oral Argument, The Astronaut's Hair, featuring Lisa Milot, one of our tax expert participants in the Taxing Eggs symposium.  The episode is really well done, and touches on the taxation (and other legal and cultural issues) involving the sale of gametes, plasma, hair, artwork, and other items. 

I was unaware of Oral Argument until this episode and am now going back to listen to the prior episodes, which cover everything from substantive legal debates to law school rankings to the roles of legal scholarship and law blogging.  According to the website, Oral Argument is “a podcast about law, law school, legal theory, and other nerdy things that interest us” and is “a product of the collision of Joe Miller and Christian Turner.”  Prior episodes are:

Episode 14: The Astronaut's Hair (guest Lisa Milot)

Episode 13: A Special Place in Hell for Joe (guest Dave Hoffman)

Episode 12: Heart of Darkness

Episode 11: Big Red Diesel

Episode 10: My Beard Is Not a Common Carrier (guest Christina Mulligan)

Episode 9: Torches and Pitchforks (guest Mehrsa Baradaran)

Episode 8: Party All Over the World

Episode 7: Speed Trap

Episode 6: Productive Thoughtlessness

Episode 5: It Takes All Kinds (guest Logan Sawyer)

Episode 4: Grow a Pear (guest Sarah Schindler)

Episode 3: Cut It Off (guest Paul Heald)

Episode 2: Bust a Deal, Face the Wheel (guest Tim Meyer)

Episode 1: Send Joe to Prison (guest Sonja West)

Episode 0: Who Is Your Hero?

Is Vermont Law School Merging with the University of Vermont?

Last fall, when the University of Vermont (UVM), located in Burlington, and Vermont Law School (VLS), located in Royalton, announced that they were developing a joint degree program, UVM's Vice President for Administration and University Relations explicitly denied that a merger was on the table: "It’s not on the table at all. We're not talking about a merger." But concerns about a merger and relocation—which Royalton residents say would adversely affect the local economy—have nevertheless persisted, and indeed have been rekindled this year. In January, the UVM Board of Trustees convened an ad hoc work group, which last met in closed door session on February 27, "to explore the university’s relationship with VLS." According to Vermont Public Radio, "at least three UVM trustees [who declined to go on the record] have confirmed that the possibility of UVM acquiring VLS outright is one of many scenarios the work group is examining."

Those three trustees presumably do not include Vermont Rep. Sarah Buxton, D-Tunbridge, who cited the possibility of a merger in her decision to resign her position as a member of the UVM Board of Trustees on February 20 after serving just one year of a six-year term. Buxton felt that she faced a potential conflict of interest between her role as trustee, should UVM decide that absorbing and relocating the law school was in its interest, and the role she has held since 2010 as state legislator, where she represents the Royalton residents who are increasingly uneasy about rumors of a merger. Incidentally, Buxton is a 2010 graduate of the law school and, until May of 2013, also held a fulltime position there as assistant director of community relations and alumni affairs. That position, however, which accommodated her annual four-month stint at the state house, was eliminated in May as part of the law school's various layoffs and buyouts amid declining enrollments and Buxton was forced to file for unemployment while she searched for a similarly accommodating job elsewhere. (It's unclear from her Wikipedia page whether she has been successful in her job search.)

In response to the upsurge of merger rumors following Buxton's resignation, UVM President Thomas Sullivan and VLS President and Dean Marc Mihaly released a joint statement implicitly denying that a merger is on the table. They said that "programmatic and academic opportunities between the institutions," including joint degrees and clinical and research collaborations, "represent[] the full extent of what the two institutions are exploring and discussing." Asked for a more explicit statement about whether a merger and relocation is a possibility, law school spokesperson Peter Glenshaw was somewhat more circumspect than UVM's Vice President for Administration and University Relations had been last fall. "At this time," Glenshaw said, "there is no plan to relocate, and we intend to continue building our strategic academic partnerships with UVM."

Photo source: Jared C. Benedict/Wikimedia Commons

Civil War Monument Trivia

This time I have one of my rare Civil War monument trivia questions  from north of the Mason-Dixon line.  It's a terrific building and drives home how much wealth there was in the north in the early twentieth century.  (I've commented before how much grander the post-war northern public buildings were than southern buildings.)  Where is it?

Are Law Schools Juicing Employment Numbers? NPR Jumps Into Rankings Debate

Planet Money on NPR is reporting on how law schools can juice their law school rankings by providing jobs to alumni at graduation.  The article provides a bit of the account - but listen to the 5 minute audio  for the full story.  They're both here.  

William and Mary takes the biggest hit from Planet Money.  Of its graduating class of 217  last year, 48 students are working in what the ABA terms "full time, long term" jobs funded by the university and law school.  Almost 30% of all W&M grads it reports as having full time, long term jobs are paid by the U.  

NPR points out that the school climbed 9 places in the US News ranking this year and draws a line between the two.  I'm not sure I'd go that far because this wasn't a new policy.  W&M hired 41 of its 204 grads from the class of 2012.

 

 

Introduction and Thanks

Thanks to Al and Dan and everyone at The Faculty Lounge for letting me sit a spell with y'all.  As Al mentioned in his intro, I write about and teach civil procedure, employment discrimination, employment law and related subjects.  In addition to the Utah Law Review, my work has appeared in the Rutgers Law Review and in the California Law Review Circuit.  I practiced for 11½ years (to the day) before making the leap into full time teaching in 2011.  Given my background, I teach both doctrinal courses (into which I often infuse skills) and skills courses (into which I often infuse doctrine). 

During my sojourn in the Lounge, I hope to engage in some discussions related to teaching, curricular reform, experiential education, and, perhaps, such exciting topics as factual causation standards, grammar in Supreme Court opinions, and the impact of judicial nominations on the decision making of the lower federal courts.  I will assume you are all waiting with bated breath. 

The NCAA and Taboo Trades

 

“It cannot be said that the Employer’s scholarship players are ‘primarily students’”

The National Labor Relations Board Region 13

Northwestern University (Employer) and College Athletes Players Association (CAPA) (Petitioner)

Case 13-Rc-121359

 

Regular Lounge readers have heard me discuss before my seminar on Taboo Trades and Forbidden Markets.  Although markets in human organs, gametes, sex work, commercial surrogacy, and the like are probably more standard fare in a course of this nature, I think that college athletics and amateurism also have a place, and I normally spend some time each semester on college sports (plus, it’s Duke, what do you expect? There’s probably some requirement that we discuss basketball in class, but no one told me about it, since I always discuss basketball in class anyway)*

This year, though, the landscape feels different to me.  Perhaps I’m just particularly attuned to these cases, given my research interests in the area, but I’m dedicating more class time to college athletics this year and there is certainly a lot more to cover.  Most folks have probably heard by now about yesterday’s NLRB ruling in favor of the Northwestern players.  For those who want to read the full ruling, I’ve uploaded a copy here: Download NU Decision and Direction of Election. 

Northwestern will appeal, of course, but regardless of the ultimate outcome, I find the ruling interesting, both because of the language and reasoning employed by Peter Sung Ohr, director of the board's Chicago regional office, and because of what the ruling might signal about the broader legal environment.  Coupled with progress in the O’Bannon case, the recent antitrust complaint filed by Jeff Kessler (of NFL free agency fame) against the NCAA and five conferences alleging a cartel that illegally caps player compensation, and controversy surrounding head injuries in football, it seems to me that the NCAA is under fire as never before. 

I’ll be back in subsequent posts with more to say about these other cases, but for now I just wanted to highlight a few parts of the NLRB ruling.  Ohr concluded that “all grant-in-aid scholarship players for the Employer’s football team who have not exhausted their playing eligibility are “employees” under Section 2(3) of the Act.” In so finding, Ohr reviewed the football staff, player rules, athletes’ time commitment to the sport, their recruitment and academic life, and the revenues and expenses generated by Northwestern’s football program, all of which makes for interesting reading. I found this excerpt particularly noteworthy (emphasis mine):

[I]t cannot be said the Employer’s scholarship players are “primarily students.” The players spend 50 to 60 hours per week on their football duties during a one-month training camp prior to the start of the academic year and an additional 40 to 50 hours per week on those duties during the three or four month football season. Not only is this more hours than many undisputed full-time employees work at their jobs, it is also many more hours than the players spend on their studies. In fact, the players do not attend academic classes while in training camp or the first few weeks of the regular season. After the academic year begins, the players still continue to devote 40 to 50 hours per week on football-related activities while only spending about 20 hours per week attending classes. Obviously, the players are also required to spend time studying and completing their homework as they have to spend time practicing their football skills even without the direct orders of their coaches. But it cannot be said that they are “primarily students” who “spend only a limited number of hours performing their athletic duties.”

In today’s class, we cover some background reading, including excerpts from a book by my colleague, Charlie Clotfelter, Big Time Sports In American Universities.

 

*Note to Klein, Ramseyer, and Bainbridge: can you do something about all those baseball cases in the book, since that is not a sport that I watch? 

Tyler Cowen Pepper Sprayed In Class

From the department of weird.  Professor Tyler Cowen of George Mason Law was teaching Law and Literature yesterday when a man walked in and attempted to take him into custody via a citizen's arrest.  When Cowen did not comply, the man pepper sprayed him.  The sprayer was subsequently arrested.  

Details here and here.

On an entirely unrelated note, it is intriguing that a law professor with  a Ph.D in economics (and no JD) is teaching Law and Literature in a law school.  

 

LaVerne Law Drops Tuition, Ends Discounting, And Tells Us Something About Law Schools

The University of LaVerne School of Law announced that it will reduce its tuition to $25,000 per year for full time students,  guaranteed flat for three years,  with no other discounting for incoming 1L students.  (Part time tuition will be similarly reduced and all current students will receive the benefit of this drop.)

While this is great news from a transparency point of view, the success of this approach really depends on the number of applicants in the California market and LaVerne's willingness to admit high risk students.  The good news is that  LaVerne has a track record of accepting high risk  students and getting them to overperform on the bar.  

What we are seeing with this strategy is some insight into the cost of operating an ABA accredited law school.   This pricepoint suggests that  if LaVerne - and perhaps many other private schools - can't fill a class with bar-passable students paying an average of $25,000 each, the school can't survive as an ABA accredited institution.

Which brings us back to Roger Dennis' prescient post, from 2011, The No Frills Law School, in which he suggested that a school might be able to run on a $20K tuition.  His model assumed 167 students per class, however, which achieves an economy of scale unlikely at LaVerne.

As I've mentioned previously, in the context of Thomas Jefferson's repricing approach (which is the opposite of LaVerne, relying instead entirely on transparent discounting), these repricing strategies must be putting pressure on the stronger non-ABA, California-accredited law schools.  If I'm committed to to paying $75,000 to get a JD either way, I'll take an ABA-accredited degree any day.

ABA Seeks Comments On New LSAT, Externship Accreditation Rules

Among other things, the ABA is considering

-  Allowing students to be paid at externships for which they receive credit

-  Allowing 10% of an entering class to be admitted without LSAT scores

Read all the details here.  Comments are due by April 18.

My fear about the rule allowing double-dipping is that we'll see less of "I have an externship with a firm...why can't they pay me" and more of the "I'm making $8 an hour at a firm...why can't I have credit."  That is, externship sites will be picked more for the fact that they pay than for the fact that lawyers are game to supervise and mentor law students.

 The ABA correctly points out that any placement will still be required to satisfy Standard 305.  But my sense is that the quality of externship supervision varies wildly from school to school.  I suspect that many of the assurances of quality happen at the front end right now: schools approve sites based on the expectation that the work is substantive the hosts are eager to spend valuable time mentoring.  I'm guessing that many law schools use the heuristic that certain types of placements - judges, public interest firms, and government agencies - are used to providing a lot of supervision and mentoring.  The fact is, a high quality externship is often quite inefficient for law firms, and particularly the supervising attorneys.

In this new world, law schools may feel significant pressure to allow existing student job sites (of whatever quality) to be added on to the externship roster.   And because those employers wanted a worker who would make them money in the first instance - rather pursuing than more altruistic goals - there is less assurance that they'll take the necessary time to supervise the worker beyond what is most efficient for the firm.  Making money is what brought 'em to the dance.

Of course, there is a good argument that says that a paid apprenticeship would be a perfect capstone to law school and that these firms don't need law schools to tell them how to teach young lawyers.  This is, after all, the nature of first year asssociate work at a big firm.   If so, it is fair to ask why we'd still require the students to earn credits - or, more specifically, pay tuition - for that capstone.

Brian Clarke Stepping into the Lounge

I'm pleased to announce that my North Carolina neighbor Brian Clarke is stepping into the lounge to sit with us for spell.  Brian is an assistant professor at Charlotte School of Law, where he teaches in the areas of civil procedure, employment discrimination, and employment law.  His publications include "Grossly Restricted Pleading: Twombly/Iqbal, Gross and Cannibalistic Facts in Compound Employment Discrimination Claims," in the Utah Law Review in 2011 and a contribution to Employment Arbitration Agreements: A Practical Guide (Aspen 2009 and 2010 supplement).  Cribbing now from his webpage: "Prior to entering academia, Professor Clarke practiced law for more than eleven years with Littler Mendelson PC and Nexsen Pruet LLC. While in practice, Professor Clarke won significant cases before the North Carolina Supreme Court and the North Carolina Court of Appeals and successfully represented clients before the Fourth Circuit and the U.S. Supreme Court.  Professor Clarke received his B.A. in History from the University of North Carolina at Chapel Hill and his J.D., manga cum laude and Order of the Coif, from Washington & Lee University School of Law."

Long-time faculty lounge readers may recall that Brian contributed a guest post on gay marriage in North Carolina back in 2012 and is a frequent contributor to the trivia questions.  I'm looking forward to Brian's posts.

The Antebellum Cemetery Corporation and the Promotion of Religion

While  Naomi Lamoreaux and Bill Novak are giving an important and extended lesson the history of the corporations and the Constitution over at Slate I want to focus on the role of cemetery corporations in promoting religious and other civic values in the Pre-Civil War era.  Bill and Naomi point out that in our history corporations have largely been treated as artificial beings with public obligations.  This made me think of the corporations founded largely from the 1830s to the 1860s to promote rural cemeteries.  Those corporations -- chartered individually by legislatures until some states like New York passed general cemetery incoproration statutes (around the same time as they passed general incorporation statutes) -- were promoted because they were going to support a series of values, from the propagtion of Protesent religious ideas to amporhous ideas of economic progress and Union.  That is, as a bunch of scholars from Johann Neem to Jason Mazone have written, civic organizations and corporations were seen as supporters of public, constitutional values.  Civil organizations and cemetery corporations (and other corporations, too) were part of assisting the state.  And orators who spoke at the dedication of cemeteries often commented on the role that the cemetery corporations (often but not always charitable corporations) played in the propagation of constitutional and religious values.

Cribbing now a little from my paper on the constitutional significance of antebellum cemeteries....

LSAC Data and Predicting Number of Applicants for Fall 2014, part 12

The LSAC reports that "As of 3/21/14, there are 307,854 fall 2014 applications submitted by 44,384 applicants. Applicants are down 9.2% and applications are down 10.0% from 2013.  Last year at this time, we had 82% of the preliminary final applicant count."  If this year's applicants follow last year's pattern, we'll have approximately 54,126 total applicants for the class entering in fall 2014.  Dan Filler has some historical data on the first year enrollment from 1964 to 2012 here.  I link to some more comprehensive data (going back to the 1940s) here. 

My last post in this series is here.

Law School Lateral Faculty Moves 2014

Updated August 23, 2014

It's that time again!  This year, I expect the numbers of lateral moves to be down.  Every year I say it, and I will again: I crib other lists to get this going - and none more than Brian Leiter's list of tenured laterals.   I rely on news from all of you to do this thing;  please send along information to [email protected]  One thing I know for sure: I'll fall behind on the project.  Ultimately, though, I hope the list will be pretty complete. Keep in mind - I post all moves, with or without tenure, and including people moving from a long-term contract position to either an LTK or a tenure-track slot.  In this respect, at least, I'm pretty catholic.  (I do leave moves from VAP and other non-long term slots to Prawfs entry level list.)  

Check out my old lateral move lists as well: 2013, 2012, 2011, 2010, 2009, 2008, 2007 and 2006.

And shoot, while you're at it, you might remenisce about law school dean searches too: this year, last year,  2011-12, 2010-11, 2009-10, and 2008-09.

I have not included faculty who have moved to new schools to become dean.  

Akron

Jacqueline Lipton from Houston (as Director of IP Center)

Alabama

 Mirit Eyal-Cohen from Pittsburgh
Jenny Carroll from Seton Hall
Adam Steinman from Seton Hall

Arizona

Andrew Coan from Wisconsin

Arizona State

Rhett Larson from Oklahoma
Troy Rule from Missouri

Arkansas

Steven Clowney from Kentucky

Boston College

Cathleen Kaveny from Notre Dame
Patricia McCoy from Connecticut

Boston University

Peggy Maisel from Florida International

Brigham Young

Christine Hurt from Illinois
Paul Stancil from Illinois

Brooklyn

Christina Mulligan from Georgia

California - Berkeley

Christopher Tomlins from California - Irvine

California - Irvine

Kaaryn Gustafson from Connecticut
Michelle Goodwin from Minnesota
L. Song Richardson from Iowa
Gregory Schaffer from Minnesota

Hobby Lobby At The Glom

Our friends over at The Conglomerate are hosting an online symposium for the next four days on Sebelius v. Hobby Lobby Stores, Inc., (the United States Supreme Court will hear oral arguments tomorrow).  Though nearly all of the 84 amicus briefs submitted in the case explore the religious freedom issues, rather than the corporate law issues, Jayne Barnard, who will be in the courtroom tomorrow, asks: Will corporate law be the tail that wags this dog?  Posts by Steve Bainbridge and Nate Oman are already up, and I’m sure that more will follow. 

McGeorge's Paul Paton Named Dean Of Alberta Law

The University of Alberta Faculty of Law has named Paul Paton as its new dean.  Paton is currently on the faculty of McGeorge Law School and holds an LLB from Toronto and a JSD from Stanford.  He was previously on the faculty of Queens University.

LSU Law To Rejoin LSU

Who knew?  Since 1977, LSU Law has operated as a separate campus of the LSU system.  That will soon change and, next year, the law school will be reabsorbed into LSU.  Currently, LSU has its own Chancellor and provides various LSU amenities - think, rec center - via contractual agreement. 

Civil Rights Act of 1964 and the Virginia Commission on Constitutional Government

I'm getting ready for a conference in a couple of weeks on the fiftieth anniversary of the Civil Rights Act of 1964.  The University of Alabama is hosting it (the program is here).  This'll be my first time back in Tuscaloosa in many years, so I'm excited to see some friends and also to hear the other papers.  My talk deals with the Act and the conflict over property rights.  I start with the years leading into the Act and how the Supreme Court was moving towards an expansive understanding of the state action doctrine (obviously Marsh v. Alabama and Shelley v. Kraemer fit here, as does Thornhill v. Alabama -- a case I'm more inclined to speak about than otherwise since I'll be in the county where that case arose).  That part of the story is pretty traditional.

My primary interest is in the property-rights based opposition to section two of the Act.  That is, I'm interested in the people who opposed the Act's outlawing of racial discrimination in public accommodations because of their belief that the right of the property owners included the right to exclude.  There's a rich and robust defense of property in the debates, which I've been spending a lot of time reading of late.  

And I've also been reading pamphlets opposing the Act, especially several by the Virginia Commission on Constitutional Government.  The Commission was established I think around 1956 as part of the state's opposition to integration.  There were several key leaders of the Commission, including Pulitzer-Prize winning lawyer David J. Mays and James Kilpatrick of the Richmond News Leader.  Kilpatrick's 1962 book The Southern Case for School Desgregation also figures prominently in my paper.  How do you like the cover of one of the Virginia Commission's pamphlets, Civil Rights and Federal Powers?  The Constitution in a vise grip.  Quite an image, isn't it?  And the content fits with the cover; it is a robust defense of property rights.  "Granted, that 'human rights' are involved," the pamphlet concedes, but so are "age-old property rights."  This built on an earlier pamphlet, Civil Rights and Civil Wrongs.

After the Act was passed (and the Supreme Court had decided Bell v. Maryland) the Commission had another pamphlet, The Right Not To Listen, attacking the principle of protesters on private property -- this time through the line that the property owner was a coerced audience.  

Update: James Grmmelmann pointed out that Alfred Avins wrote "The Right Not to Listen."  At some point down the road I want to talk some more about Avins' writing against the Act.

Here is my talk the history of the Civil Rights Act of 1964 and its importance as a fulcrum for progressive property at the Alabama Civil Rights--Civil Liberties Law Review's conference.

My paper, "The Civil Rights Act of 1964 and the Fulcrum of Property Rights," which appeared in the Alabama Civil Rights -- Civil Liberties Law Review, is here.

This Is Worth 15 Minutes of Your Time.

I would wager that a semester-length law school seminar could successfully be built around this one 15-minute segment from the radio show "This American Life."

Retribution.  Rehabilitation.  Incapacitation.  The purposes of legal rules.  How to allocate the risk of mistake.  Legal ethics and duties of candor to tribunals.  It's just incredibly rich.  And a very, very well-told story.