The Faculty Lounge

The Virtues of Legal Academia

I want to sincerely thank the entire Faculty Lounge crew for letting me hang out here for the month, but it's time for me to sign off. I have weddings to attend, courses to prepare, and doctoral work to attend to, and maintaining a posting schedule on two blogs (I have my own blog, The Debate Link, where you can find me year round) is more of a fun decision than a wise decision. That said, it's always worthwhile to step outside my own little corner to interact with new people and make new friends, and I appreciate the opportunity to do so here.

I'll be teaching undergraduates for the first time in the Fall, and I've taken to reflecting on what makes law and law students distinct from those in other academic disciplines. In the media there are plenty of horror stories about Students These Days, none of which I've had any experience with while teaching law school classes. In part, that's because I think more than a bit of the hysterics over Safe Spaces and Trigger Warnings and what have you are nothing more than today's moral panic. And of course law students are older, more mature, and self-select to a particular type that may be less keen on the sort of performative activism associated with certain undergraduates.

But I do think there is something to be said for the particular deliberative virtues that are inculcated in law schools. Whatever can be said about the legal job market or the challenges of being a lawyer (and there is much to be said about these things), purely as an academic discipline I think law very much can be proud of our niche in the scholarly community. Things as basic as the importance of letting all sides say their piece, of taking opposing arguments seriously, of grappling with dissenting opinions, and of keeping an open and impartial mind, are fundamental in our discipline. Developing these skills is part and parcel of what it means to be a member of the legal community. It's not that we're perfect or close to it, but I've yet to met a law professor of any persuasion who does not truly and honestly value these virtues. This is something we can be proud of. And if we are concerned that the rest of academia does not always embrace these values, then I think it is incumbent upon ourselves to export them.

It is perhaps because of the prevalence of these virtues that I've always found the legal academic community to be by and large a great place to "grow up" as a scholar. I don't think it is any accident that it was legal academia that came up with an idea like JOTWELL, for instance. In my experience, the blawgosphere has served both as an incubator of good scholarly ideas and as a community that can help bring scholars of a variety of interests, backgrounds, and career-statuses together. In a world where people usually don't have to listen and so frequently will elect not to listen, the diversity and vibrancy of this community is something we should not take for granted, but can also be very proud to have sustained for so long.

Thanks again.

Prof. Puar at Dartmouth

Readers of this blog may recall that I am no fan of Prof. Jasbir Puar, who teaches Women’s and Gender Studies at Rutgers.  I think that her constant critique of Israel is exaggerated, distorted, one-sided, and hyperbolic.  She recklessly invokes ancient stereotypes by falsely raising the specter of deliberate maiming, human experimentation and harvesting body parts by Israel.  Nonetheless, I believe strongly that Prof. Puar is entitled to present her views wherever she may be invited, and to speak without harassment or interruption.  Especially at a university, those who disagree with Puar must always afford her courtesy and respect.

Unfortunately, that did not happen at a recent appearance at Dartmouth, where an undergraduate was rude to Puar to the point of disruption, and succeeded in significantly delaying her talk at a symposium sponsored by the Gender Research Institute at Dartmouth (GRID).  The student, who was a sophomore at the time, set up a video camera right in front of Puar and refused to remove it when requested by the GRID’s director Prof. Annabel Martin.  According to an account in The Dartmouth (the campus newspaper), Prof. Martin repeatedly asked the student to remove the camera, explaining that the event was being officially recorded and that no other recording would be permitted.  Ultimately, she had to call campus security, and then the Hanover police, who removed the student and his camera from the room.

The student’s behavior was boorish, immature, and unacceptable.  As a private institution, Dartmouth is entitled to adopt whatever rules it wishes for academic symposiums, including a prohibition on outside recording.  His actions evidently made Prof. Puar uncomfortable, and he should have removed the camera immediately upon Prof. Martin’s request. 

The student is lucky that he wasn’t arrested, and his later complaint of unfair treatment was absurd.

But that was not the only absurdity in the room.  Following Puar’s talk, the next speaker, Prof. Neel Ahuja of the University of North Carolina, made this statement:

Before I begin I want to thank Jasbir, whose work has been an inspiration to me and to many of us in this room. I also want to note the fact that our space has been disrupted and that Jasbir's space has been disrupted, throughout that last talk. I want to note the irony that controversy about filming or recording Jasbir's talk fulfills a certain algorithmic militarism that is evident from the comments she gave and capitalizes on the fact that black and brown bodies are on display opening  critiquing forms of colonialism and racial power.

Comparing a nineteen-year old with a video camera to “a certain algorithmic militarism” is ridiculous.  If there was any quasi-military force evident in the event, it was exercised by the police on Puar’s behalf.  If there was a power imbalance, it also favored Puar – who was supported by the GRID director, the other symposium organizers, the panelists, and ultimately university security and the police – against a lone undergraduate. 

Calling themselves the “Bully Bloggers,” a group of professors from other universities also weighed in on Puar’s behalf.  In a letter posted on the GRID website, the Bully Bloggers asserted that Puar’s treatment, including subsequent criticism of her, demonstrated “that queer and feminist scholars, and specifically women of color, face disproportionate intimidation when taking public positions on political matters that we all have a right to freely address.”  A kid with a camera may be obnoxious and rude, but he can hardly be characterized as intimidating to a tenured professor with the institution and law on her side.  As far as I know -- and according to several Google searches -- there has never been a statement from the Bully Bloggers about the physical intimidation of Jewish and pro-Israel students on many campuses, whose events are regularly disrupted and worse, as in this recent situation at UC Irvine.

Universities must be places for robust and respectful debate.  Had I been in the audience at Dartmouth, I certainly would have sided with Prof. Puar when she insisted that the unauthorized camera be removed.  On the other hand, the rhetoric of Puar’s friends and supporters was completely out of proportion to the offense. Their apparent silence about the actual intimidation of Jewish and pro-Israel students seems hypocritical at best. 

[Update: this post has been slightly edited.]

Comparative Toilets

With the issue of transgender access to restrooms of their own choice potentially heading to the U.S. Supreme Court in the next few years, it may be interesting for readers to know that this issue has recently been addressed by the Supreme Court of India.  In the 2014 case of National Legal Services Authority v. Union of India, the Indian Supreme Court—in a wide-ranging opinion on transgender rights, canvassing a number of legal jurisdictions’ case-law and practices—made reference to toilets in two different places.

The Court’s first toilet-related observation noted that “[h]ijras/transgender persons face huge discrimination in access to public spaces like restaurants, cinemas, shops, malls etc. Further, access to public toilets is also a serious problem they face quite often. Since, there are no separate toilet facilities for Hijras/transgender persons, they have to use male toilets where they are prone to sexual assault and harassment. Discrimination on the ground of sexual orientation or gender identity, therefore, impairs equality before law and equal protection of law and violates Article 14 of the Constitution of India.”

Having identified this constitutional problem, the Court then ultimately ordered (as part of a multi-part order) that “Centre and State Governments should take proper measures to provide medical care to TGs in the hospitals and also provide them separate public toilets and other facilities.”

In response, it appears that the Government of India is actively considering mandating the building of ‘third toilets’ in all hospitals.

Finally, in a cursory search of the (seemingly sparse) literature on this topic, I found the student-authored thesis, “Signs as a Help in Public Spaces: A Comparative Study of Signage Systems for Disadvantaged Groups in East and West” (2010), describing the following development from 2004 in Thailand:

“Comfortingly, in the year of 2004 Chiang Mai Technology School allocated a separated restroom for 15 kathoey students, with a half blue male and half red female symbol on the door.”

Any references to additional case-law and practices from elsewhere outside of the United States is always appreciated!

The True Story of a False Confession

My colleagues Steve Drizin and Laura Nirider represent Brendan Dassey, who was convicted at age 16 of a murder that he did not commit, and who is a key figure in the Netflix series Making of a Murderer. 

Steve and Laura have also presented a two hour program focusing on Brendan’s false confession, in which they explain in detail precisely how police are able to obtain erroneous confessions from innocent suspects – especially, but not exclusively, vulnerable children.

You can see the entire program here, and I encourage all of you to watch it.  I promise that you will find it gripping, troubling, and worthwhile.  If you do not have the full two hours, I recommend beginning at the 16:30 mark and watching through 1:20:00.  

An extra incentive for the lawyers among you is the availability of 2 hours of Professional Responsibility CLE (in Illinois and perhaps other states), for which you can register here.  (The cost of the CLE credit is $150; proceeds go to support the Northwestern’s Center on the Wrongful Convictions of Youth.)

Please alert your friends and colleagues who are concerned about preventing wrongful convictions (and especially to those who have expressed skepticism about the importance of lawyers in a free society).  Steve and Laura are both my former students, as well as my current colleagues, so I think you will understand why I am proud of the great work being done in the Bluhm Legal Clinic  at Northwestern Pritzker School of Law. 

AALS CFP: Animals As Living Accomodations

The AALS Sections on Animal Law, Disability Law and Law and Mental Disability have issued a call for papers for their 2016 panel, Animals as Living Accomodations.   

This panel will explore the use of animals as living accommodations for individuals with disabilities. The panel will be interdisciplinary, likely spanning topics in animal, disability, health, business, criminal and education law and policy. Possible topics include but are not limited to: business obligations to accommodate service and emotional support animals; species restrictions in service animals; animals as accommodations in schools; emotional support animals in civil and criminal proceedings, housing, and air travel; the use of animals to treat mental distress; and service animal training and placement. Interested speakers should submit an abstract of up to 300 words electronically by August 31, 2016 to: Ani B. Satz, Chair, AALS Section on Animal Law, asatz@emory.edu. Selected speakers will have the option of publishing original papers in a dedicated symposium in the Animal Law Review.

Rumblings of Discontent at Penn State Law

A Lounge reader reached out to let me know that Penn State Law’s dean search has been unsuccessful (announced to the faculty by the provost) and that at least some faculty have been unhappy with the search process and a perceived lack of faculty input. This seems to be a recurring theme these days -- see for example, this previous discussion regarding the Florida dean search, this one about the SLU interim dean appointment, and this item regarding DePaul law school.

In the case of Penn State, the complaints apparently include search committee composition, a lack of openness and communication during the search process, the way in which candidates were vetted, and whether (or the extent to which?) faculty are polled on their views of candidates. Some of the discontent may also stem from the law school’s recent rankings drop. As Above the Law reported in March:

Penn State, fresh off separating its campuses into two separate law schools, continues its downward descent into oblivion by losing another 15 spots in the rankings, following up on a 20-spot drop just last year. To think, Penn State was once so close to being ranked as a Top 50 school.

Of course, there have probably always been tensions and disagreements surrounding the level of faculty involvement in a dean search. But the enrollment crisis at many law schools and consequent budget tensions with the main university may have exacerbated the issue in recent years. I don’t have a personal knowledge of these events and am simply passing on the information as its been told to me. Readers who do have a personal knowledge of the situation at Penn State are, of course, invited to comment.

Kathryn Preyer Scholars, Call for Submissions

I'm delighted to post this announcement of the call for submissions for the Kathrey Preyer Scholars program of the American Society for Legal History:

Named after the late Kathryn T. Preyer, a distinguished historian of the law of early America known for her generosity to young legal historians, the program of Kathryn T. Preyer Scholars is designed to help legal historians at the beginning of their careers. At the annual meeting of the Society two early career legal historians designated Kathryn T. Preyer Scholars will present what would normally be their first papers to the Society. The generosity of Professor Preyer’s friends and family has enabled the Society to offer a small honorarium to the Preyer Scholars and to reimburse, in some measure or entirely, their costs of attending the meeting. The competition for Preyer Scholars is organized by the Society’s Kathryn T. Preyer Memorial Committee.

Submissions are welcome on any topic in legal, institutional and/or constitutional history.  Early career scholars, including those pursuing graduate or law degrees, those who have completed their terminal degree within the previous year, and those independent scholars at a comparable stage, are eligible to apply. Papers already submitted to the ASLH Program Committee–whether or not accepted for an existing panel–and papers never previously submitted are equally eligible. Once selected, Preyer Award winners must present their paper as part of the Preyer panel, and they will be removed from any other panel.

Submissions should be a single MS Word document consisting of a complete curriculum vitae, contact information, and a complete draft of the paper to be presented. Papers must not exceed 40 pages (12 point font, double-spaced) and must contain supporting documentation. In past competitions, the Committee has given preference to draft articles and essays, though the Committee will still consider shorter conference papers, as one of the criteria for selection will be the suitability of the paper for reduction to a twenty-minute oral presentation. The (new, extended) deadline for submission is July 8, 2016.

Kathryn T. Preyer Scholars will receive a $500 cash award and reimbursement of expenses up to $750 for travel, hotels, and meals. Each will present the paper that s/he submitted to the competition at the Society’s annual meeting.  The Society’s journal, Law and History Review, has published several past winners of the Preyer competition, though it is under no obligation to do so.

Please send submissions as Microsoft Word attachments by July 8, 2016, to the chair of the Preyer Committee, Serena Mayeri, University of Pennsylvania <email>. She will forward them to the other committee members.

The 2016 Preyer Memorial Committee

Serena Mayeri, (2013), Chair, University of Pennsylvania <email>

Sam Erman (2013), University of Southern California <email>

Melissa Hayes (2014), Independent Scholar <email>

Michael Hoeflich (2014), University of Kansas <email>

Timothy Lovelace (2014), Indiana University <email>

LSAC and Predicting Law School Applicants for 2016-17, Part 24

The LSAC is now reporting that "As of 05/20/16, there are 335,605 applications submitted by 52,363 applicants for the 2016–2017 academic year. Applicants are up 1.2% and applications are up 1.7% from 2015–2016. Last year at this time, we had 93% of the preliminary final applicant count."  The last post in this series is here.  The next post in this series is here.

Bernie or Bust? The Lesson of 1968

I have an oped on that subject (coauthored with my undergrad classmate Jim Bendat) on CNN.com.  Here are the opening paragraphs:

On a warm August night in 1968, the two of us joined thousands of other young people in front of Chicago's Hilton Hotel, braving tear gas and billy clubs to demand an end to the Vietnam War. While delegates to the Democratic Convention remained sheltered inside, with police and National Guard troops protecting the entrances, we shouted "Bring the Troops Home" and "The Whole World is Watching."

We didn't realize it at the time, but our most consequential chant was "Dump the Hump," derisively aimed at Vice President Hubert Humphrey, who had until then refused to distance himself from the war policies of President Lyndon Johnson. We wanted to change how the government worked -- and it turned out that we did, although far from the way that we wanted.

You can read the whole column here.

More on Peer Review in Social Science

Pamela Oliver (University of Wisconsin) has an excellent and comprehensive article in The American Sociologist on the problems of peer review in sociology.

Here is the abstract:

The sociology review process is broken. There are too many reviews per paper and the norm that all papers go through a revise and resubmit process burns through reviewers, slows down the publication process, creates distorted papers as authors try to satisfy incompatible demands, and puts too high a premium on novelty over methodological rigor. Editors should get fewer reviews per paper and make editorial decisions. No new reviewers should be added in reviewing a revised manuscript. Peer review should not be treated as an opportunity to receive editorial assistance and mentoring and instead should be focused on ensuring that published papers are correct. Asking for large numbers of reviews will not solve the problem that sociologists do not agree on their standards. The reviewer problem points to larger questions about the structure of sociology as a field, the need for more venues for publishing solid empirical work, and the importance of replications. It also points to the structure of academic publishing in which for-profit publishers make money by selling to university libraries the products of the free labor of university professors.

Of special note is the rate at which senior scholars are expected to review article submissions.  Oliver says that she receives as many as twelve requests per month, and ends up writing as many as 24 reviews each year.

 

Stephen A. Douglas v. James Buchanan

Gerard Magliocca has an interesting post at Balkinization about Stephen A. Douglas's split with southern Democrats in 1860, which helped Abraham Lincoln win the presidency.

This provides me with an opportunity to share my favorite Stephen A. Douglas anecdote (doesn't everyone have one?). 

Douglas's first split with the Democrats actually happened in early 1858, over the pro-slavery Lecompton Constitution that had been fraudulently foisted on "Bleeding Kansas."  President James Buchanan had announced his support for the constitution and proposed the admission of Kansas to the Union as a slave state.  Douglas, to his credit, objected, and led the fight in the senate against the Lecompton Constitution.

President Buchanan summoned Douglas for a private meeting.

"I wish to remind you, sir," said Buchanan, "that no Democrat since the time of Andrew Jackson has stood against his party and survived."

"And I wish to remind you, sir," replied Douglas, "that General Jackson is dead."

[Note: the above is a paraphrase; but that is the gist.]

[UPDATE: I am just sharing an anecdote here; no analogy to current politics intended.]

AALS CFP: New Voices In Legislation

This just in:

The AALS Section on Legislation and Law of the Political Process is pleased to announce that it will host a "New Voices in Legislation" program during the 2017 AALS Annual Meeting in San Francisco, CA. This works-in-progress program will bring together junior and senior scholars in the field of legislation for the purpose of providing the junior scholars with feedback and guidance on their draft articles. Scholars whose papers are selected will present their work in small panel sessions. A senior scholar will moderate each panel and lead discussion about the draft article.

Eligibility: The New Voices Program will be open to full-time faculty members from AALS member schools who are untenured or have been tenured for two years or less. All scholars, whether or not presenting a paper or moderating a discussion, arewelcome to attend the program and participate in discussions.
Submission Requirements: Submissions should be drafts of articles relating to legislation and the law of the political process, including articles related to legislative structure, the legislative process, statutory interpretation, and deliberation. Submissions should be near completion and should not exceed 30,000 words, including footnotes. The purpose of the program is to provide junior scholars with feedback that can be incorporated into their works-in-progress; as a result, articles are ineligible for the program if they are expected to be in print at the time of the program in January 2017. However, articles that already have been submitted to law reviews for publication, and accepted for publication, are not ineligible for this reason.

Submission Process: To be considered for participation in the program, please email a copy of the paper and abstract to Evan Zoldan, evan.zoldan@utoledo.edu by Friday, October 7, 2016. Selected participants will be notified in early November 2016. Final drafts of those who are selected must be submitted by December 15, 2016.

Senior Scholars: If you are interested is serving as a commentator for one of the junior papers, please contact Evan Zoldan, evan.zoldan@utoledo.edu.

 

Matchmaker, Matchmaker (Accuracy in Yiddish Edition)

In my experience, the New York Times provides far more editorial input on opeds than any other newspaper.  The few times I have had pieces appear in the Times, they have gone through multiple iterations, as the very thoughtful editor raised issues, suggested changes, and checked facts. 

With that in mind, one would think that the Times, of all papers, would pay attention to an oped writer’s use of Yiddish.  I mean, careful editing + New York ought to = accurate Yiddish. 

But no.

In an otherwise excellent and informative oped on “Sexual Freelancing in the Gig Economy,” Moira Weigel wrote that old fashioned courtship sometimes occurred when “parents sought out a yenta to introduce their children at a synagogue mixer.” 

“Yenta,” however, was the name of the matchmaker in Fiddler on the Roof, not her occupation.  In Yiddish, a matchmaker is a shadkhn.  A yenta, on the other hand, is a gossip or a busybody.  Joseph Stein, who wrote the book for Fiddler, was thus making a play on words by naming his character Yenta, not unlike Charles Dickens’s use of Mr. Bumble for the officious beadle in Oliver Twist (or Jarndyce v. Jarndyce as the lawsuit in Bleak House), though of course meant more affectionately. 

In any case, shadkhn is a venerable profession in Jewish tradition, which these days may or may not be practiced by a yenta.  Traditionally, however, shadkhanim were men.  The writer Joseph Stein invented the female matchmaker for the purpose of the Broadway show.  In Sholem Aleichem’s original stories – collected as Tevye and His Daughters – the shadkhn was a man named Efrayim.

Yes, it’s a small thing.  But for all you Yiddish fans out there, let’s keep in mind that Yenta no more means matchmaker than Motl means tailor or Nachum means beggar.

Periodic Tables, May 24 – Taboo Trades: Blood, Eggs, and Kidneys

I’ll be giving a “Periodic Tables” talk on Tuesday, May 24 at Motorco in Durham, so folks in the Triangle area should feel free to stop by. I’ll be discussing “Taboo Trades,” including blood, eggs, and kidneys. Hope to see some of you there!

DC as a Rotten Borough

The Constitution gives Congress exclusive jurisdiction over the "District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States." While (as I read it) this provision does not require Congress to set up any such district as our seat of government, most proposals for DC statehood suggest carving out a tiny rump remainder of federal land (consisting of the Capitol, the White House, and maybe a few other notable marks like the National Mall or the Kennedy Center) to serve as said seat of government. As someone born and raised in the DC area, I've always found it more than a little outrageous that only a few miles from my house there were hundreds of thousands of Americans without any voting representation in Congress (I feel the same way about Puerto Rico, the U.S. Virgin Islands, and our Pacific island possessions too -- I really don't think America should be in the business of permanently possessing territories without granting full voting rights to all the residents).

In the comments to this post about DC statehood, some folks raised the potential problem of the 23rd Amendment to DC statehood provisions, and I agree with the person who suggests that Congress is well within its authority to shrink  the "district" to a tiny core, freeing up the part where people actually live to become a state like any other. But there seems to be a different problem posed by the 23rd Amendment: It guarantees "[t]he District constituting the seat of Government of the United States ... [a] number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State" (so long as this number does not exceed that of the least populous state). By its terms, the 23rd Amendment guarantees these electors to the "seat of government" no matter how few people live there -- presumably, even if there were none. In other words, the new state of DC would be entitled to its three electoral votes (as the 49th largest of the now 51 states), and then population-less federal seat of government -- a separate body from DC-the-state -- would also be entitled to its own three electoral votes by virtue of the 23rd Amendment. One can even imagine a situation where the borders are drawn a little imprecisely and there are few voters left inside the "seat of government" in charge of three electoral votes -- a true rotten borough.

Are there solutions to this (aside from a constitutional amendment)? The 23rd Amendment does guarantee the "seat of government" a minimum share of electoral votes, but it also says that these electors shall be appointed "in such manner as the Congress may direct: It does not say that Congress must link its appointment in any way to the will of the seat of government's residents (however many there are). Instead, Congress could, for example, just hand the votes to the winner of the national electoral vote, or to the winner of the majority of the electoral votes in the 51 states.

Still, I kind of like the possibility of seeing the Columbia Community Improvement District replicated on a national level.

A Response to Ilya Somin on Justice Sotomayor's Endorsement of Mandatory Pro Bono Programs

[Cross-posted on Legal Ethics Forum]

Writing on the Volokh Conspiracy, Ilya Somin takes issue with Justice Sonya Sotomayor’s recent endorsement of mandatory pro bono by lawyers. (Reported here; non-paywalled summary here.)  Ilya was especially troubled by Justice Sotomayor’s comment that she believes in “forced labor” when it comes to providing legal access for the poor, even though the statement seems obviously intended as a wry metaphor.  Somin, however, took it seriously, comparing mandatory pro bono programs to slavery and communism.  

Missing entirely from Somin’s analysis is the fact that mandatory pro bono plans are always proposed as a condition of licensure – in other words, an exchange that is “forced” on no one except those who freely enter the profession.  That may not make mandatory pro bono a good idea, but it certainly takes it far out of the realm of involuntary servitude (unless, that is, you are among those who believe that taxation is presumptively theft).

Somin goes on to raise a slippery slope argument:

If we can impose [public service] on lawyers in order to provide legal services to underserved populations, why not on members of other professions, anytime we think forcing them to do additional work might benefit some underserved group or promote some other societal interest? (Emphasis added.)

But let’s look at actual proposals for pro bono obligations, which turn out to be incredibly modest.  The ones with which I am familiar call for 10-20 hours per year, to be performed at each lawyer’s convenience.  So it is not “anytime” and it is not much “additional work.”  In fact, the proposals typically call for something between 0.5% and 1.0% of a lawyer’s time, in exchange for the privilege of practicing law.  In concept, I see nothing wrong with extending a similar obligation to other professions, such as physicians, although our current system of public benefits – along with the medical profession’s long-standing tradition of volunteerism – makes that unnecessary.

Finally, Somin brings up the canard that “forced labor is unlikely to be a good way to improve legal services for the poor.”  Thus,

As experience in the communist world and elsewhere repeatedly demonstrates, forced laborers rarely do good work – especially if the task involves complex professional services where there are many corners that can potentially be cut. Here’s a piece of free (though not forced!) legal advice for my readers: if you are on trial for your life, your liberty, or even just a large sum of money, you probably do not want to be represented by a lawyer who only took the case because the government forced him to do so.

This is a complete red herring.  There are plenty of lawyering tasks that are helpful to the poor, but do not involve especially complex professional services.  No pro bono plan contemplates drafting unwilling lawyers to conduct trials in which life and liberty are at stake, and it is simply misleading to pose that in a parade of horribles.  Instead, lawyers would be given complete control over their pro bono caseload, with nobody required to step out of his or her comfort zone.

Pro bono work could include such matters as drafting simple wills, reviewing leases, handling uncontested divorces, and negotiating with welfare agencies.  Law school clinics regularly teach that stuff to second year students, who typically become quite capable by the end of the third semester.  Any lawyer who cannot do the same should not be practicing law.

Would lawyers nonetheless “cut corners” on pro bono cases?  I don’t think so.  There is such a thing as professional pride, and most lawyers of my acquaintance care about the quality of their work product, even in small matters.  Once a pro bono obligation became routine – something done every year, though only for a day or two – lawyers would certainly choose tasks that they can perform well and carefully.

Let me add one more consideration:  Ilya asserts that “If forced labor can be justified at all, it can only be in situations where it achieves some great good that cannot possibly be realized in other ways.”  The phrase “cannot possibly be achieved” does a lot of work in this argument, as Somin seems to contend that pro bono obligations can never be imposed so long as there is some other conceivable way to accomplish the same end.  Of course, there is always a “possible” alternative, even if it is economically unfeasible or politically impractical.  That is why judicial systems and bar associations (depending upon the jurisdiction) are empowered to select the most pragmatic solution to a problem, even if it is not the theoretically last resort.

And in any case, mandatory pro bono programs do offer a public benefit that cannot be achieved in any other way.  As we have seen over and over again, poor people are often confronted by local courts that abuse or disregard their rights in areas such as juvenile law, housing and eviction, consumer collections, civil forfeitures, and imprisonment for non-payment of fines.  For the most part, these practices flourish when they take place out of the public eye.  They are more likely to be exposed, and therefore remedied, when private lawyers regularly show up in those same courts. 

There are, as Somin points out, other ways to increase the provision of legal services to the poor and middle classes.  I agree with him that they should be tried.  A modest pro bono requirement, however, would be good for everyone.

Sociologists and Their Discontents

We law professors often complain about law review editors -- and for good reason -- so it can be informative to see the problems that scholars encounter in other fields, especially when dealing with peer review.  In my occasional forays into sociology, I have come across the perceptive work the University of Maryland's Philip Cohen, who writes the Family Inequality blog.

Cohen's latest post, Perspective on Sociology's Academic Hierarchy will be of interest to anyone who has ever been concerned about the relationship between status and publication in academics.  Here is a taste:

Not only is it rare, but publication in [American Sociological Review] is highly concentrated in high-status departments (and individuals). While many departments have no faculty that have published in ASR (I didn’t count these, but there are a lot), some departments are brimming with them. In my own, second-tier department, I count 16 out of 27 faculty with publications in ASR (59%), while at a top-tier, article-oriented department such as the University of North Carolina at Chapel Hill (where I used to work), 19 of the 25 regular faculty, or 76%, have published in ASR (many of them multiple times).

*** I should be clear that I don’t think publication in high-status journals is a good way to identify and reward scholarly accomplishment and productivity. The reviews and publication decisions are too uneven (although obviously not completely uncorrelated with quality), and the limit on articles published is completely arbitrary in an era in which the print journal and its cost-determined page-limit is simply ridiculous.

We have a system that is hierarchical, exclusive, and often arbitrary — and the rewards it doles out are both large and highly concentrated.

SMU Law Seeks Director Of Deason Family Criminal Justice Reform Center

This just in:

The SMU Dedman School of Law is seeking a full-time Director to establish and operate its new Deason Family Criminal Justice Reform Center. This is a full-time position. The initial contract term is one year, renewable for additional one to three year terms. We are open to considering a tenure-track, tenured or lecturer position as part of this appointment.

QUALIFICATIONS: JD or PhD in a related field is required. Candidates must have an excellent academic and administrative record and at least ten years of experience working on issues related to criminal justice reform. Such experience may be in academia, government, public policy, or other roles. Prior teaching experience and prior experience in running a legal or policy center are also preferred. We are seeking a visionary leader with the desire to have a national impact on the critical and urgent conversations surrounding criminal justice reform.

RESPONSIBILITIES: The Center’s mission is to promote criminal justice reform and the fair, compassionate and ethical treatment of individuals at all stages of the criminal justice process. It will accomplish this by facilitating expanded interdisciplinary collaboration, teaching and research among scholars, students, the judiciary, law enforcement, policy makers, prosecutors, and defense counsel. Involvement in the community and with relevant local, state, and national Bar groups will be beneficial in advancing the mission of the Center and will be encouraged. Candidates must possess excellent oral and written communication skills and should be willing to engage in external outreach and fundraising.

The Center’s programs may include original research, conferences, symposia, and reasonable travel associated with Center research and programs. The Center expects to host or sponsor annual events with the goal of bringing together leading academics and policymakers from across the country to discuss critical problems and challenges that exist within the criminal justice system. This will expose Center-affiliated students to diverse viewpoints, providing an opportunity to strengthen and increase experiential learning through the Center.

Among other things, the Center Director will 1) engage in strategic planning and establish policies, protocols, and procedures to govern the operation of the Center, including the establishment of an Advisory Board, 2) direct the day to day operations of the Center, including its research and programming; 3) produce original research reports and papers for external and internal audiences; 4) administer the Center’s budget, 5) hire and supervise the Center’s staff and oversee Center-affiliated students as Center operations are established and grow, 6) create opportunities for students to benefit from the work of the Center, including developing new courses and research opportunities, as appropriate, 7) work closely with faculty, both at the SMU Dedman School of Law and across campus, to support and promote their research, and 8) ensure compliance with the requirements of any applicable endowment or grant agreements.

SALARY: Paid monthly on a 12-month contract. Full benefits; salary commensurate with experience.

APPLICATIONS: Please send a cover letter and resume to:

Applications should be directed to the Faculty Appointments Committee, SMU Dedman School of Law, P.O. Box 750116, Dallas, TX 75275-0116, or emailed to bettya@smu.edu. Reference Position No. 00053776.

To ensure full consideration for the position, the application must be postmarked by July 1, 2016, but the committee will continue to accept applications until the position is filled.

 

Playing With Cards: Bringing It All Together

When I write about issues of discrimination and identity, I try when feasible to use a mix of racism, sexism, and anti-Semitism examples to illustrate my point. So, for example, in Playing with Cards I discuss the bad faith "card" retort to discrimination claims by looking at how Gamergaters responded to Anita Sarkeesian's contentions of sexism in the video game community (to talk of sexism is an "I-win button") and how Caryl Churchill dismissed objections that her play Seven Jewish Children was anti-Semitic ("It's the usual tactic."). It's the same move, just applied to different people.

And sometimes, the world reciprocates. Breitbart News has been engulfed in scandal (well, a new scandal anyway) recently after it published David Horowitz calling Bill Kristol a "renegade Jew" (stemming from the latter's rejection of Donald Trump). The fallout has led to alarms being raised about the rise of anti-Jewish sentiment in the conservative movement (not that this should really surprise us given the basis of Trump's appeal-- anti-Muslim sentiments and anti-Semitic sentiments are in fact excellent predictors of one another), including by one-time conservative wunderkind Ben Shapiro. And to Sharpiro's concerns, well, Breitbart published this yesterday:

AALS CFP: Responding To Fisher v. Texas

This just in:

The AALS Employment Discrimination Section is pleased to announce a Call for Papers for the section’s program, which will take place Thursday, January 5th from 1:30 pm to 3:15 pm, at the 2017 Annual Meeting in San Francisco. This year’s program is titled, Responding to Fisher v. Texas. This program will reassess, in the wake of Fisher v. University of Texas (to be decided in Summer of 2016), whether and/or how employers can be attentive to race in hiring and promotion. The answers to these questions are important since very large numbers of employers engage in diversity programs that might or might not be characterized as affirmative action, but are certainly not blind to race. Moreover, Fisher may tell us something about the Court’s view of the relationship, if any, between diversity and merit. This panel will react to Fisher and consider the potential implications of the Court’s affirmative action jurisprudence for the world of employment.

We are seeking one or two additional speakers who will present on a relevant topic, and we particularly encourage new voices to submit a paper abstract. To be considered as an additional speaker, please submit an abstract of no more than 400 words and a resume to Section Chair, Professor Brad Areheart, at brad.areheart@tennessee.edu by August 31, 2016. Additional speaker(s) will be selected by members of the Executive Committee of the Section and will be notified by September 15, 2016.

Please note that the selected author(s) will be responsible for paying his/her registration fee as well as hotel and travel expenses. Any inquiries about this Call for Papers should be submitted by email to Professor Areheart.