The Faculty Lounge

The 2014 Rehnquist Bobblehead Has Arrived

Is an Aging Faculty a "Continuing Disaster" for U.S. Law Schools?

Over at The Chronicle Review, Laurie Fendrich (professor emerita of art and art history at Hofstra University) has some harsh words here for aging faculty members: 

The inconvenient truth is that faculty who delay retirement harm students, who in most cases would benefit from being taught by someone younger than 70, even younger than 65. The salient point is not that younger professors are better pedagogues (sometimes they are, sometimes they aren’t), but that they are more likely to be current in their fields and to bring that currency into their teaching.

Septuagenarian faculty members also cost colleges more than younger faculty—in the form of higher salaries, higher health-care costs, and higher employer-matched retirement contributions. Even if these costs pale in comparison to paying for bloated administrations, it’s wrong to pretend they don’t matter.

Worst of all, their presence stifles change. I’m not talking about mindless change for change’s sake, but the kind of change necessary to keep an institution thriving. A healthy university consists of departments with a balanced mix of new hires (full of energy, ambition, and fresh ideas), middle-aged faculty members at the height of their productivity, and older faculty with wisdom and a deep understanding of the evolving mission of their departments and universities. Disrupt that balance, and the foundation of an institution’s strength is undermined.

Read the full piece here.  It's an interesting read, full of internal contradictions and provocative statements.  Professor Fendrich is writing about arts and science faculties generally, but it seems that many of her critiques would apply equally to law schools.

Added 8:53 p.m. Just because I link to Professor Fendrich's piece or see the way she would apply her critique to law schools does not mean that I endorse her analysis wholeheartedly, somewhat, or at all.  I think she raises some interesting points about how the elimination of mandatory retirement has changed higher education.  The title to my post uses Professor Fendrich's language in order to invite conversation about law schools. The views expressed in Professor Fendrich's article are hers.

Summer Writing Groups to Boost Productivity

At UNC Chapel Hill, the pan-university faculty development center I direct has piloted a very successful program of interdisciplinary summer writing groups to boost scholarly productivity.  The current issue of ACADEME features a short article I wrote about the program.

The focus of these groups is different from that of more typical intradisciplinary writing groups, in which members drill down deep on ideas and arguments.  The focus of our groups at UNC is on the writing process and on sustaining productivity.  This is why we place philosophers with pharmacists and lawyers with linguists.  The results have been very encouraging.

Arthur Frakt's Thoughts on Law School Admissions and the Bar

Introduction:  I often discuss my TFL posts and the comments thereto with my father, Arthur Frakt.  Dad was a long-time faculty member and Associate Dean at Rutgers-Camden before becoming Dean at Loyola LA in the 80s, and Dean of Widener (both Wilmington and Harrisburg) in the 90s before retiring.  He has come out of retirement a couple of times: first, to help start the law school at Drexel, and later, to help Western State overcome its bar passage struggles and get full accreditation.  He continues to follow closely what is going on legal academia.  I asked him if he would be interested in sharing some of his thoughts on The Faculty Lounge, and he graciously offered to do so.   After reading them, I find myself in complete agreement with everything he says.  We both look forward to your comments.  

- David Frakt

SOME THOUGHTS ON LAW SCHOOL ADMISSIONS AND THE BAR

by Arthur Frakt

In my four decades as a teacher and administrator in legal education,  I was always deeply involved in the admissions process as well as the success of students in passing the bar examination and gaining entry into the profession.  Of course every law school dean must have an interest in how his or her school's students have  performed on the LSAT and succeeded at the bar examination, but I had a deep personal concern stemming from my own experience in law school and my work as the only lawyer in the New Jersey Attorney General's office working full time on civil rights.

Drexel Seeks New Sociology Department Chair

I'm posting this a bit outside the expertise of our normal readership.  Please share this job announcement with friends who might be interested and qualified.  

Although the position description does not emphasize a search focused on candidates with a research interest in law and sociology, regular readers know that Drexel is actively engaged in expanding its footprint  in Law and Society.  Within Drexel's law school, we have several faculty trained and/or publishing at the intersection of law and sociology.  Our politics program is headed by Scott Barclay, a political scientist who is active in the Law and Society community.  Consequently, I encourage excellent candidates with deep expertise in law and sociology to consider applying for the position notwithstanding the fact that the field is not separately identified in the job description.

The Drexel Sociology Program expects to hire a new Department Head to lead the development of a newly aligned sociology department at Drexel University. We invite applications for this position at this time.

The successful candidate will hold the rank of Full Professor or be eligible to be a Full Professor and would be expected to begin September 1, 2015. This position continues Drexel's recent investment in the social sciences and its goal of creating a strong research and educational identity for a high profile sociology program at the university.

We are looking for candidates with evidence of innovative scholarship, national and/or international impact, and leadership experience. We are primarily interested in candidates whose expertise enhances one or more of the three current research foci of the sociology program: environmental sociology; medical sociology; or urban sociology. These areas are also central to Drexel's strategic plan, and the candidate should offer a vision for contributing to the university's strategic research initiatives in these areas. We are especially interested in applicants who can show evidence of an active research record combined with excellence in teaching and exceptional leadership skills.

We expect that our new colleague will help define and build the sociology department and participate in and initiate interdisciplinary collaborations across the Schools, Colleges, and Centers at Drexel. Faculty are currently involved, for example, with the Center for Science, Technology and Society, the Center for Mobilities Research and Policy, and the Institute for Energy and Environment.

Candidates should include: 1) a cover letter; 2) curriculum vitae; 3) up to three samples of your scholarly writing; 4) a research statement; and 5) the names, institutional affiliation, and email addresses only of at least three references. Please do not submit reference letters at this time as such letters will be requested at a later date for short-listed applicants.

Review of applications will begin November 15, 2014 and continue until filled. Please address all queries to Prof.Kirk Heilburn at kh33@drexel.edu. All applications must be submitted through www.drexeljobs.com. 

Leiter Survey vs. US News

I thought I'd look a little at the differences between Brian Leiter's recent on-line survey of faculty quality and the U.S. News rankings.  First an observation about the changes in the top fifty schools.  There are five schools that appear in Leiter’s 2014 top 50 faculties that are not in the current U.S.News top 50 schools.  They are (and the numbers following the schools are U.S. News rank school and average rank):

University of California, Hastings 55.5 54
Cardozo Law School/Yeshiva Univ 65.5 64
University of San Diego 79.5 79
American University 75 72
Brooklyn Law School 84.5 83

There are also five schools in the current U.S.News top 50 schools that are not in Leiter’s 2014 top 50 faculties.  (And the number following each school is its U.S. News rank):

Wake Forest 33
BYU 37
SMU 42
Maryland 46
Tulane 48
Utah 49

I also looked at the correlations between Leiter's ranks, U.S. News data on peer assessment and overall rank, and Doyle's Washington and Lee Law Review rankings.  The following table reports the correlations between those variables.

	Rank Leiter	Peer Rank	USN Rank	Journals, 2006-2013
Rank Leiter	--	-.94	.84	-.82
Peer 2015	.94	--	-.86	.82
USN Rank avg	.84	-.86	--	-.67
Journals 06-13	-.82	.82	-.67	--

For all correlations, N = 49 and p < .0001

I guess one of the things that really stands out for me is the high correlation between Leiter's ranking and the U.S. News peer assessment scores (.94).  As long I as I'm talking about rankings, I want to say that last summer I posted a paper on ranking law schools using entering student data on LSATs, student employment data, and law review citations (which I use as a proxy for academic reputation).  It's available on ssrn.

Update: I've been surprised at the amount of commentary on this post -- I guess it shows that people care about rankings, or something.  Anyway, I think people might be interested in the differences between the Leiter rank and the U.S. News peer rank for individual.  Here's a table that lists the schools in order of their Leiter rank and compares them to their US News rank.   A negative difference indicates that the school does better on Leiter than U.S. News; a positive indicates that a school's U.S. News peer assessment rank is better than its Leiter rank.   I noticed that my own school (UNC) does substantially less well on the Leiter rank than on the U.S. News peer assessment rank.  Actually, I think UNC has the fourth-largest diffence between Leiter rank and U.S. News peer assessment rank (after Washington and Lee, which does much better on U.S. News than Leiter, the University of Illinois, which does much better on Leiter than U.S. News, and the University of Florida, which does much worse on Leiter than on U.S. News).  I guess I should have voted.  What's the slogan?  "If you don't vote you don't count," or some such.

At the risk of sounding too self-promotional, this paper uses citations as a replacement for U.S. News peer assessment, which -- as some people point out in the comments -- rely on raters to have some knowledge about a bunch of schools.

Bethany Oklahoma, Route 66, and the Grapes of Wrath

Last evening I was re-reading Grapes of Wrath and was surprised to see that Grandpa Joad died on the day he left the farm.  For some reason I'd thought he'd lived longer than that.  Anyway, much to my surprise I see that he died when the family stopped for the evening somewhere just west of Bethany, Oklahoma.  That means that he must have passed away right around the Canadian River.  Well... it just so happens that I have a picture of the Route 66 bridge that spans the Canadian River.

I remember the burial scene well -- and even used it in an article a few years back on the right of access to graves on private property.  But I'd forgotten about the place of his death; and I'd forgotten some of the other details, too -- like the yellow gas stations.  I'll post some pictures of company gas stations along Route 66 soon.

Don't Say I Didn't Warn You, Florida Coastal

UPDATE:  Responding to popular demand,  I have attached a sanitized version of the presentation I gave at Florida Coastal last spring here: Download FCSL sanitized   I have removed proprietary data, such as information from FCSL's ABA Self-Study, in accordance with a non-disclosure agreement I signed with FCSL.  The notes to the slides are not exact quotes from my actual presentation, but accurately reflect the content of my talk, at least up to the point that I was stopped by the President.   

 

Back in April, the night before my my abortive Dean candidate talk at Florida Coastal School of Law, I had dinner with FCSL President Dennis Stone.  Over dinner I expressed serious concern over the quality of recently admitted students at FCSL and their prospects for passing the bar. President Stone completely dismissed my concerns. In fact, he expressed great confidence that the school's bar pass rates was going to be just fine, and, even stated that he expected the rate to go up as a result of improvements to the curriculum and in-house bar prep programs.  

I was unconvinced. When I expressed a decidedly different view of the school's trajectory  the following day, President Stone responded by throwing me off the campus.

Before I departed, I predicted that the school was going to have a disastrous bar result in July.  In fact, here is one of the bullets from one of the PowerPoint slides I used during the presentation:

 ◦       Bar Pass rate for summer 2014 will drop substantially, probably below 60% 

The Florida Board of Bar Examiners recently released the July 2014 bar examination results by law school, and, lo and behold, Florida Coastal School of Law had a first-time bar pass rate of 58.0%.  This woeful result placed FCSL second to last among Florida’s 12 ABA-Accredited law schools, just edging out perennially struggling Ave Maria.

Although I enjoy being proved right as much as the next guy, I can take no real pleasure in being proved right in this case, for there is a tremendous human toll when such a large school has such a poor result on the bar.  There are 118 recent FCSL graduates who are suffering greatly right now because they failed the bar, and that is a tragedy.  Indeed, it was precisely this kind of tragedy that I was hoping to avert by trying to persuade FCSL to change course.

How was I able to predict this drop with such accuracy?  No magical powers were  involved. All I had to do was look at FCSL’s entering student profiles to see that a bar pass rate train wreck was coming.  

Although some seem loathe to admit it, there is a very strong correlation between LSAT scores and MBE scores (see, here and here).   Let the LSAT scores of your admitted students drop, and three years later, the bar pass rate is bound to follow.  Perhaps nowhere is this principle more clearly demonstrated than at FCSL.

Not long ago, FCSL’s bar pass numbers were perfectly respectable.  In July 2012, FCSL was at 75.2%, within 5% of the state average of 80.2%.  In July 2011, they had similar results: a first time passage rate of 74.6% compared to a 79.5.% state average.  These consistent results were not surprising given that the entrance credentials at FCSL for the Fall 2008 and Fall 2009 entering classes were identical (153, 150, 147 at the 75^th, 50^th and 25^th percentile in both years).  But starting in 2010, the entrance credentials of FCSL’s students started to slip. That year, they went from 153, 150, 147 to 152, 149, 146, a one-point decrease across the board. As a direct result, in July 2013, FCSL’s July bar pass rate dropped below 70% for the first time in several years. At 67.4%, the 2013 rate was 10% below the state average of 77.2%.   In 2011, FCSL dropped their standards even more dramatically, enrolling a class with LSATs of 151, 147, 145.  Based on this drop in the aptitude of its entering students, coupled with a significant level of transfer attrition from the top of the class, it was easy to predict that there would be a significant drop in bar performance for FCSL’s July 2014 bar takers.

Unfortunately, the worst is undoubtedly yet to come from FCSL.  The entering class of 2012 was substantially weaker by LSAT score (151, 146, 143) than the 2011 entering class, and the 2013  (148, 144, 141) and 2014 (unavailable at this time, but projected to be about the same) entering classes have drastically lower predictors.  Unless FCSL substantially increases academic attrition from the bottom of the class, their bar pass rate will almost certainly drop below 50% in the coming years (assuming they stay in business).  Even with significantly greater attrition they will still be hard-pressed to match this year’s dismal results.

Will these results finally cause InfiLaw to change their admission policies, and stop admitting huge numbers of high-risk students?  One can always hope, but I wouldn’t bet on it.

Perhaps the more salient question is: Will these recent results spur the ABA to take any action?  The unfortunate answer is: probably not.  Under ABA Standard 316(a)(2), a law school that is within 15% of the state average for first-time takers from all ABA law schools is deemed to have a sufficient bar passage rate.  So, as far as the ABA is concerned, FCSL, at 14% below the state average, is still fully compliant.  (Of course, if you remove FCSL’s students from the equation, the statewide first-time pass rate in Florida on the July bar would have been 73.2%, 15.2% higher than FCSL's average, but that is not how the ABA calculates things.)  But even if FCSL is still meeting the ABA’s woefully inadequate bar pass standards now, it should be abundantly clear to anyone who understands the predictive value of LSAT scores that they are not going to be able to meet them in future administrations of the bar.  How many more high-risk, poorly qualified students will InfiLaw be allowed to take advantage of before the ABA steps in? 

In fairness to InfiLaw, FCSL is far from the only school to experience a drop in their bar passage rate.  In fact, this year, Florida’s state average dropped sharply (-5.4%) to 71.8% overall.  Florida’s numbers are consistent with what is happening in other states.  According to this article, the majority of states to have reported their scores from July 2014 have reported drops of greater than four percentage points, with several reporting a double-digit drops in the first time bar passage rate.   These numbers highlight one of the problems with ABA Standard 316(a)(2).  When all law schools lower their admission standards, the overall bar pass rate may plummet, but even horribly performing law schools may still be able to stay within 15% of the state average. Florida is a perfect example of this. Florida’s worst-performing school this July, Ave Maria, at 57% (rounded up to the nearest whole percentage point) is still within 15% of Florida’s 72% statewide average, and thus, compliant, even though most people would agree (I hope) that 57% is unacceptably low.  This example points to the need for the ABA to implement a minimum first time bar pass rate.  Schools that drop below the minimum for a calendar year (combining the February and July bar) should automatically be placed on probation.  If 75% is presumptively sufficient under ABA Standard 316 (a)(1), then more than 15% below that, under 60%, should be presumptively insufficient.

I understand very well the pressure on law school administrators to preserve the jobs of law school faculty and staff by trying to limit the decrease in the size of their entering classes by admitting weaker applicants.  But it is highly ethically questionable to try to keep a law school afloat on the backs of students who have demonstrated poor aptitude for the study of law.  It is even more ethically dubious when a law school is admitting large numbers of extremely high-risk students for the purpose of making a profit.  Regrettably, that appears to be exactly what is going on at some ABA-accredited law schools.  The ABA should put a stop to it.

 

 

 

 

Bo Rutledge Named Dean at UGA

Earlier today Peter "Bo" Rutledge was named dean at the University of Georiga.  Cribbing now from the press release:

Peter B. "Bo" Rutledge, a leading scholar in the fields of international dispute resolution, arbitration and the U.S. Supreme Court, has been named dean of the University of Georgia School of Law following a national search.

Rutledge, the Herman E. Talmadge Chair of Law, has served as the associate dean for faculty development at Georgia Law since 2013. His appointment as dean is effective Jan. 1.

"The School of Law enjoys a reputation as one of the best public law schools in the nation, and we had an extraordinary group of finalists for its deanship," said Senior Vice President for Academic Affairs and Provost Pamela Whitten, to whom the deans of UGA's 17 schools and colleges report. "Professor Rutledge emerged as the ideal leader for Georgia Law because of his commitment to promoting excellence in faculty scholarship, which informs the practice of law across the state, nation and world as well as the instruction that students receive."

You can read the rest of the press release here.  Congratulations, Bo!  And as we say in the SEC, Go Dawgs!

Try a Different Analogy

  In Paul Krugman’s Monday column in the New York Times, he draws an analogy between the issue in King v. Burwell (whether the tax subsidies for Obamacare are available only on state exchanges) and his parents’ experience with their deed to their home. According to Krugman, “[m]y parents used to own a small house with a large backyard” but “[a]ccording to the text [of the deed], the Krugman lot wasn’t a rough rectangle; it was a triangle more than a hundred feet long but only around a yard wide at the base. ... [I]t was clear what had happened: Whoever wrote down the lot’s description had somehow skipped a clause. And of course the town clerk fixed the language.”
  Indeed! The town clerk had no authority to do so.  The Krugmans’ remedy was to quiet title to the property they actually occupied by asserting the doctrine of adverse possession.  To do so would have required a suit, joining all adverse claimants to the property and establishing all the requisite elements of adverse possession for the requisite statutory period. Perhaps Krugman made up the story, or perhaps the clerk exceeded his lawful authority, which would have just left the issue smoldering.  But in any case it is an inapt analogy to the issue presented in King v. Burwell. There are lots of arguments to be made in King: 1) Should the plain meaning canon apply to the phrase in isolation, or to the phrase in the context of the entire law? 2) If plain meaning dictates the result the plaintiff’s desire, should plain meaning be ignored because it would produce absurd results?  And what constitutes an absurd result? Is it absurd to construe the clause in isolation as limiting subsidies to state exchanges or can the absurdity be manifested by the impact it has on other, separate sections of the law? 3) Is the phrase sufficiently ambiguous that courts should defer to the IRS interpretation? But Krugman’s implausible analogy is no help.

Some Deal

   According to news reports the President has agreed to reduce American carbon emissions by 26% to  28% over the next ten years, roughly doubling the rate of reduction.  In return, China agrees to increase its production of carbon emissions as much as it can (to reach “peak emissions”) for the next 15 years. Oh, China says it will try to reach its peak before 2030, but doesn’t promise to do so.  And how high is the peak?  China is already the world’s leading carbon emitter.  We’re number two. Let’s assume that human carbon burning contributes to global warming and subsequent climate change.  Let’s assume that it’s the primary agent of global warming, though there is respectable dissent on that point. And let’s assume that we are already past the doleful point of no return.  What a deal!  We impose ruinous costs on our economy while China plows ahead. China does say it will try to increase its non-carbon energy production by 20% before 2030.  Perhaps it will. Reasonable people may disagree about the wisdom of this deal, but it seems obvious that the adverse economic impact is borne by us. Of course, if the climate change Cassandras are correct, future costs may dwarf the abatement costs, but we don’t know that they are correct.
   In any case this deal will be implemented through the EPA’s rule-making authority and there’s not much political opponents can do to frustrate the deal. It’s apparently not a treaty, and maybe not even an executive agreement.  Even if it is an informal understanding the EPA can and will do the President’s bidding to raise energy costs and hamper economic activity, while ceding to China (and for that matter, the rest of the developing world), the right to increase carbon emissions for the near future.  The hope, as expressed by John Kerry in today's New York Times, is that this will encourage other countries to join in carbon emission reductions.  Maybe. 

Bi-Partisan Immigration Reform?

     Immigration policy – and the process by which it is to created – is of course a huge flash point as the lame duck session begins and a new Congress awaits in January.  If professions of willingness to reach bipartisan agreement have any integrity, there is one simple place to start. The H1-B visa permits American employers to employ foreigners in a “specialty occupation” if, for most purposes, they possess at least a bachelor’s degree.  The term “specialty occupation” is broad but focuses on STEM disciplines, though it does include theology, the arts, law, education, social sciences, and other non-STEM disciplines.  However, about 90% of the applications for H1-B visas are for employment in STEM occupations, fields in which there exists a labor shortage in the United States.  What’s the problem?  Only 85,000 H1-B visas may be issued in any one year, and those visas are assigned by a random lottery.  But there over 172,000 qualified applicants for these visas.  Every year we deny entrance and employment to over 85,000 skilled, promising, and productive would-be immigrants.  Why would we wish to deny ourselves the cultural and economic benefit of these young aspiring scientists, engineers, mathematicians, physicians, chemists, biologists, and physicists?  Without even venturing into the seemingly intractable problem of how to secure our borders from unlawful entrants while regularizing the status of those who have become ingrained in our society, however unlawful their arrival may have been, we should be willing to increase the H1-B visa limits to let in every qualified skilled worker who wishes to make his or her life in America.  If there is any real intent to start on bi-partisan immigration reform, here is a simple step on that road.  We’ll see.

Update:  A commentator requests a cite for the proposition that 90% of the H1-B applicants are STEM discipline applicants.  Here it is, a May 2013 research paper from the Brookings Institute

Washington and Lee Law Review

From an email that I received earlier today:

The Washington and Lee Law Review is opening an exclusive review program for articles until November 24, 2014, at 7:00 PM EST.  The Law Review will extend offers for publication by December 8, 2014.  All authors who submit articles to this program agree to accept a publication offer, should one be extended.  For more information and submission instructions, visit this description.

Teaching with Live Polls

I posted (here) last month about my experiment in Texting While Teaching (and Learning).  Over the years, I have experimented with different techniques in an effort to increase and diversify participation in a large class.  Prior to this week, I have used clickers, Twitter and texting. I like the clickers, but my school does not own enough of them so that all 100 students in my Federal Income Tax class can use one.  In the past, students have resented being required to buy a clicker.  There is an option for students to buy and install a (cheaper) license to convert their phone into a clicker, but students have experienced enough technological difficulties with this conversion that class time has been compromised.

Derek Black (South Carolina) commented earlier (here) that he uses pollseverywhere.com, so I decided to give that a try this week.  Without any background information or experience using that particular platform, I was able to put together a 10-question presentation for class in about 30 minutes.  The basic format was a hypothetical that I delivered to students followed by a slide containing a question (sample below). 

 

Students could respond using either their computers (simply by going to PollEv.com followed by a forward slash and my first initial and last name) or their cellphones.  In either case, students did not have to install any special software and there were enough access points in the classroom where I was teaching that no student had trouble getting connected.  Students found it helpful/entertaining to see the results of the poll on the screen, as opposed to my reading off the responses like I did during my texting-while-teaching experiment.  Many of my students already take class notes on a computer, so they have the technology up and running in front of them.  For those who pulled out their cellphones, the transition to texting did not take much time.  The poll allowed students (and me) to get real-time feedback about how well they understood a concept.  When the overwhelming number of students got a question right, I knew I did not have to spend much time explaining.  When the class results were mixed (as with the question shown above), I knew I had to spend more time explaining.  This type of real-time feedback is valuable to both students and the professor.

If I were to use polleverywhere.com more regularly, I would look into buying a subscription. Otherwise, each poll can record only the first 40 answers.  For many classes, that would be enough, but in Fed Tax and Wills, Trusts & Estates this semester, I have well over 40 students.  Comparing the poll software to other techniques I have tried, I found it less distracting to me to use the poll software than to receive tweets or texts.  In terms of rhythm and timing, the poll software most resembles teaching with clickers. From the students' perspective, though, the poll software seemed a bit more natural (and they were not asked to buy anything).  All in all, this was a worthwhile experiment and one I will repeat.

Hiring Announcement: Oklahoma

From an email message that I received this week:

The University of Oklahoma seeks to hire an adjunct faculty member and an acting director of academic support on a 0.5 FTE (half time basis).  The person would teach a two hour bar prep class in the Spring and provide academic and bar prep support from January 2015 through July 2015.  A full job description can be read and applications filed online at  https://jobs.ou.edu/applicants/jsp/shared/Welcome_css.jsp. Once in the portal the applicant needs to:

• click on “Norman Campus Jobs”
• Search for requisition number:  21019

To apply, applicants must create an account and then follow the directions.

Will the Real Evidence-Based Ebola Policy Please Stand Up? Seven Takeaways From Maine DHHS v. Hickox

UPDATES (11/9/14): NPR reports that Hickox's boyfriend  has withdrawn from nursing school and that the two will move out of the state after Nov. 10. Alas, in so reporting, NPR claims that Maine had "sought a court order to require [Hickox] to stay indoors." Apparently NPR doesn't read TFL (or court petitions). Meanwhile, I found this recent JAMA news report about what we do and don't know about Ebola enlightening. Both links via Ross Silverman on Twitter (@phlu). Finally, thanks to Christian Turner for plugging the post on the latest episode of the always interesting Oral Argument podcast.

The case I mentioned in my last post, Maine Department of Health and Human Services v. Kaci Hickox is no more. Hickox and public health officials agreed to stipulate to a final court order imposing on Hickox the terms that the court had imposed on her in an earlier, temporary order. Until Nov. 10, when the 21-day incubation period for Ebola ends, Hickox will submit to "direct active monitoring" and coordinate her travel with Maine public health authorities to ensure that such monitoring occurs uninterrupted. She has since said that she will not venture into town or other public places, although she is free to do so.

Below is a detailed account of the case, which suggests the following lessons:

1. As Hickox herself described it, the result of her case is a “compromise,” reflecting neither what Hickox nor what Maine initially wanted.
2. That compromise was achieved by the parties availing themselves of the legal process, not through Hickox’s civil disobedience.
3. The compromise is not easily described, as it has been, as a victory of science-based federal policy over fear-based state demagoguery. By the time the parties got to court, and perhaps even before then, what Maine requested was consistent with U.S. CDC Guidance, albeit a strict application of it. What Hickox had initially offered to do, by contrast, fell below even the most relaxed application of those guidelines, although by the time the parties reached court, she had agreed to comply with that minimum.
4. The compromise applies only to Hickox, and was based on a stipulation by the parties to agree to the terms that the court had temporarily imposed after reviewing a limited evidentiary record. Additional evidence and legal arguments that the state might have raised in the now-cancelled two-day hearing could have resulted in a different outcome.
5. A substantially different outcome, however, would have been unlikely under Maine’s public health statute. Indeed, it is not clear that Maine’s public health statute allows public health authorities to compel asymptomatic people at-risk of developing Ebola to do anything, including comply with minimum CDC recommendations.
6. “Quarantine” is a charged, but ambiguous, term. It allows us to talk past one another, to shorthand and needlessly politicize a much-needed debate about appropriate policy, and to miss the fact that the CDC Guidance in some cases recommends what could be fairly described as a "quarantine" for people like Hickox and requires it for asymptomatic people with stronger exposure to Ebola (but who are still probably less likely to get sick than not).
7. It’s not clear who has bragging rights to Ebola policy "grounded in science," or what that policy looks like.

Texas Southern University and ABA Standard 316(a)(2)

With the announcement today of the statistics on the July Texas Bar Exam, the first-taker Bar passage rate of Thurgood Marshall School of Law of Texas Southern University has hit an important benchmark in meeting the minimum Bar passage rate requirements of ABA Standard 316.

Though original ABA Interpretation 301-6 has been under heavy siege in the Standards Review Committee, the substance of Standard 316 remains unchanged. Standard 316 offers two ways to meet the Standard. The first is 316(a)(1), which uses ultimate Bar passage rates of recent graduating classes--the cumulative passage rate, after multiple attempts, of each calendar year's cohort of graduates.

The second way to meet the Standard is 316 (a)(2). That is based on the overall first-taker Bar passage rate for each of the last five calendar years. A law school's first-taker Bar passage rate can be no more than more than 15 percentage  points lower that the passage rate in the relevant state(s) for first-takers from all ABA schools.

Justice Thomas and the Japanese American Cases

Is it fair to infer that Justice Clarence Thomas (unlike his 8 colleagues on the Court) views the Supreme Court's notorious decision in Korematsu v. United States as good law?  That's the question that Mark Kende and Ilya Somin have been debating.  I put my two cents in here yesterday.  Somin has now replied to me.  

The discussion has gotten needlessly convoluted, so I'd like to simplify it.

Here's what we know.  The two Japanese American cases of WWII that addressed constitutional questions -- Korematsu (upholding mass race-based removal from the West Coast) and Hirabayashi (upholding a mass race-based curfew) have become, as it were, radioactive.  One doesn't cite them in polite company for anything other than the abstract legal principle (from Korematsu) that courts must strictly scrutinize facially racial laws and executive actions.  One doesn't cite them for their application of law to facts, and one doesn't cite them in support of deference to the executive branch's account of the facts supporting race-based action.  

Those are the facets of the decisions that were, to pretty much everyone's eyes today, horribly mistaken -- instances of the Court itself getting swept up in the hysteria and (as Justice Murphy courageously said at the time) racism that had gripped the political branches.  The historiography (including my own contribution) has very clearly demonstrated that in both Korematsu and Hirabayashi, the Supreme Court grounded its assessment of the internal risks posed by Japanese Americans and the external risks posed by the Japanese military on a pack of lies.

But here's the rub:  in his Hamdi dissent, Justice Thomas approvingly cited (one might even say "resurrected") the Hirabayashi decision not for any abstract principle about the rigors of scrutiny of race-based action, but for the proposition that the courts must defer to the "President’s determination of all the factual predicates necessary to conclude that a given action is appropriate."  That's a radioactive part.

I think it reasonable to infer from this (and remember, we're talking about inferences here -- we're just reading tea leaves) that Justice Thomas does not believe Hirabayashi was wrongly decided, or that the Court erred in that case in accepting the Executive's claim that the military situation rendered a racial curfew necessary to protect the country's security.

If I'm right about that, then the Somin-Kende debate just devolves to the question of whether Justice Thomas would see the Korematsu case differently.  Would he, in other words, see a legally consequential distinction between the forcible removal of US citizens from their homes in a military zone on the basis of their race (the issue in Korematsu) and the forcible confinement of US citizens to their homes in a military zone on the basis of their race (the issue in Hirabayashi)?

I don't pretend to know the answer to that question.  Happily, I don't think it matters very much.  These cases are radioactive for Justice Thomas's eight sitting colleagues, and the historiography does not promise a rehabilitation of either decision anytime soon -- or ever.  Lower courts overturned the convictions in Korematsu and Hirabayashi in the 1980s, at around the same time as the Congress and the (conservative) President condemned and apologized for the entire program of racial removal and confinement deployed against Japanese and Japanese Americans. That's enough to give me comfort that Korematsu is dead, whatever Justice Thomas might think.

The Kende-Somin Debate on Justice Thomas and Korematsu (and Hirabayashi)

Mark Kende and Ilya Somin are disagreeing at length over whether Justice Thomas does or does not view the notorious Korematsu decision as erroneous.

In this post I want to point up a common mistake people (including Kende and Somin) make in discussing Korematsu:  they speak as though that case upheld the constitutionality of the confinement of Japanese Americans in so-called "relocation centers" during the war.  The opinion does not do that, and while laypeople (at least those who know anything about this at all) typically think that it does, constitutional scholars should know better.  Korematsu upheld the constitutionality of the removal of Americans of Japanese ancestry from military zones set up by General John DeWitt, presiding general of the Western Defense Command.  Korematsu did not address the constitutionality of the detention of those people in the War Relocation Authority's camps.  One might think that the first entails the second (I certainly do), but the Court elected to break the question of removal apart from the question of detention.  On the same day that the Court upheld removal on constitutional grounds, it struck down continued detention in Ex parte Endo on, in effect, administrative law grounds.  (But see Patrick Gudridge's article Remember Endo.)

This means that, carefully read, Korematsu is not a case about detention, which is what Hamdi is about.  

More importantly, though, I think that Somin and Kende (by obsessing, as so many do, on Korematsu) miss a very important data point about the thing they are actually disagreeing about, which is not Justice Thomas's position on the rightness or wrongness of Korematsu but  Justice Thomas's views on executive power in wartime and of the Court's role (or lack of role) in checking it.

In his article that launched his exchange with Somin, Kende notes -- but does not make nearly enough of -- the fact that in his Hamdi opinion, Justice Thomas approvingly cited the Court's 1943 opinion upholding a race-based curfew in Hirabayashi v. United States.  This is troubling for the reason Kende mentions -- which is that the government's defense of the curfew in Hirabayashi was at least as consequentially infected by lawyer misconduct as the better-known Korematsu decision.  But it's troubling for a reason more central to Kende's argument, and more damaging to Somin's:  Thomas's Hamdi opinion cited Hirabayashi approvingly precisely for the legal proposition that the Court should not scrutinize the President's factual predicates for whatever wartime actions the President deems necessary.  ("This deference extends to the President’s determination of all the factual predicates necessary to conclude that a given action is appropriate. See Quirin, supra, at 25 (“We are not here concerned with any question of the guilt or innocence of petitioners”). See also Hirabayashi v. United States, 320 U.S. 81, 93 (1943); Prize Cases, 2 Black, at 670; Martin v. Mott, 12 Wheat. 19, 29—30 (1827).)

That, it seems to me, is the proposition about the extent of executive power (and lack of judicial power) that Kende is really trying to pin on Justice Thomas, and that Somin is trying to avoid pinning on him.   

Somin notes correctly that Thomas's citations to Korematsu all seem to be for its uncontroversial proposition about the appropriate level of scrutiny in cases challenging facially race-based action.  But that misses the point:  in Hamdi, Justice Thomas explicitly approved of an erroneous and dishonestly procured Japanese American case from World War II for the precise proposition that the courts must defer to the President's factual determinations supporting repressive race-based action against citizens (and not just for the uncontroversial proposition that race-based action gets strict scrutiny).

The case was Hirabayashi, not Korematsu.  But why should that matter?  

It's time for constitutional scholars to get their noses out of their casebooks (which reprint only Korematsu) and into the history books -- and recognize the importance of the forgotten Hirabayashi case.