The Faculty Lounge

UNLV Hiring Announcement

UNIVERSITY OF NEVADA, LAS VEGAS—WILLIAM S. BOYD SCHOOL OF LAW invites applications from entry-levels and laterals. The Boyd School of Law is a leading public law school with a reputation for a strong commitment to scholarship and teaching.  The law school’s state-of-the-art facilities are located in the center of the UNLV campus.  UNLV is the state’s largest comprehensive doctoral degree granting institution, including a new medical school.  Applicants for law school faculty positions should submit a letter of interest along with a detailed resume, at least three professional references, and cites or links to published works. We anticipate hiring as many as three new faculty colleagues, although of course the number of available positions is contingent on funding. We invite applications from scholars in all subject areas, and are especially interested in deepening our strengths in the areas of Criminal Law, Business/Commercial Law, Health Law, and Legal Writing. We are also especially interested in hearing from professors who are interested in teaching a clinic. With respect to our clinics and legal writing program, please note that UNLV has a unified tenure track; accordingly, professors who teach clinics or legal writing have all of the privileges and scholarly expectations that are associated with tenure. Applications are considered on a rolling basis, and appointments would likely begin with the 2017-2018 academic year.

Contact:  Please send application materials to the Appointments Committee Coordinator, Ms. Annette Mann, Faculty Appointments Committee, UNLV—Boyd School of Law, 4505 South Maryland Parkway – Campus Box 451003, Las Vegas, NV  89154-1003 or by email to annette.mann@unlv.edu. Members of the Appointments Committee are Thomas Main (chair), Michael Kagan, Terry Pollman, Jeff Stempel, Jean Sternlight, and Stacey Tovino.  

UNLV is an Affirmative Action/Equal Opportunity educator and employer committed to excellence through diversity.

My Dog Ate The Withdrawl Plan

With news this morning that Boris Johnson will not stand for PM, I have this sense of him as a fellow who has suddenly realized that the Brexit plan he supported might not be the best idea...for him.  I imagine that friends and colleagues in his London circles are viewing him with increased disdain.  Both the UK, and all of Europe, are deeply shaken.  And it's become clear that neither he, nor apparently anyone else, had an actual plan to withdraw from the EU.  Where is your homework, Mr. Johnson?

It seems to me that this ought to be a good lesson for Republican supporters of the Donald.  Suppose he wins.  Where will he find his £350 million weekly windfall: the fence, the deportations, the beautiful everything he has boldly promised on Trump Steak letterhead?  Will the dog have eaten his plan as well?

Disqualifying the High Court

I see that Louis J. Virelli of Stetson Law has just published Disqualifying the High Court: Supreme Court Recusal and the Constitution.  Cribbing now from the KU Press website: 

Since at least the time of Justinian—under statutes, codes of judicial ethics, and the common law—judges have been expected to recuse themselves from cases in which they might have a stake. The same holds true for the justices of the US Supreme Court. For instance, there were calls for Ruth Bader Ginsburg and Elena Kagan, both of whom had officiated at gay weddings,to recuse themselves from the recent marriage equity case, Obergefell v. Hodges. Even a case like this, where no justice bowed out, reveals what a tricky ethical issue recusal can be. but as Louis J. Virelli demonstrates in this provocative work, recusal at the Supreme Court also presents questions of constitutional power. Disqualifying the High Court shows that our current understanding of how and when justices should recuse themselves is at odds with our constitutional design.

Viewing recusal through a constitutional lens, Virelli reveals new and compelling information about how justices should decide recusal questions and, in turn, how our government should function more broadly. Along the way he traces the roots and development of federal recusal law in America from as early as the Roman Empire up to the present day. The Supreme Court’s unique place at the top of the judicial branch protests the justices from some forms of congressional interference. Virelli argues that constitutional law, in particular the separation of powers, prohibits Congress from regulating the recusal practices of the Supreme Court. Instead those decisions must be left to the justices themselves, grounded in the principles of due process—assuring parties fair treatment by the judicial system—and balanced against the justices’ rights to free speech.

I'm looking forward to reading this soon.

LSAC Data and Predicting Number of Applicants for 2016-17, Part 28

The LSAC is reporting that "As of 06/17/16, there are 341,049 applications submitted by 53,843 applicants for the 2016–2017 academic year. Applicants are up 1.4% and applications are up 1.9% from 2015–2016. Last year at this time, we had 95% of the preliminary final applicant count."  The previous post in this series is here.

Boston College Law School Hiring Announcement

BOSTON COLLEGE LAW SCHOOL expects to make three faculty appointments this year in several fields, with a focus on candidates with 0-10 years’ experience in the academy. Applicants must possess a J.D. or equivalent degree and outstanding academic credentials. Relevant experience in private practice, government service, public service, or a judicial clerkship, or a Ph.D., is strongly preferred. Boston College is an Affirmative Action/Equal Opportunity Employer and does not discriminate on the basis of race, color, sex, age, religion, ancestry, national origin, sexual orientation, disability, veteran status, or any other classification protected under federal, state or local law. We strongly encourage women, minorities and others who would enrich the diversity of our academic community to apply. To learn more about how BC supports diversity and inclusion throughout the university please visit the Office of Institutional Diversity athttp://www.bc.edu/offices/diversity. Boston College, a Jesuit, Catholic university, is located in Newton, Massachusetts, just outside of Boston. Interested applicants should contact: Diane Ring, Chair, Appointments Committee, at lawappts@bc.edu, or at Boston College Law School, 885 Centre Street, Newton, MA 02459.

Court Rightly Embraced a 'Living' Constitution in Death Penalty Case

That is the headline of my oped in today's National Law Journal, discussing the Court's approach to judicial bias.  Here is the gist:

How should we interpret our Constitution? Is it a living document, to be read in the context of present conditions and current knowledge, or should it be strictly limited by the "original meaning" on the day it was ratified? Although the debate may be unresolvable, the case of Williams v. Pennsylvania, recently decided by the U.S. Supreme Court, provides an almost textbook example of the contrast between the two methods. Justice Anthony Kennedy took a decidedly "living Constitution" approach to the case, while Justice Clarence Thomas addressed the central issue on originalist grounds. The difference was a matter of life or death.

Thomas' extreme version of originalism, which is fixed in an era long before psychology and cognition science emerged as rigorous disciplines, makes progress impossible. If a likely cause of judicial prejudice was unappreciated in the late 18th century, Thomas' jurisprudence would take no account of it today. No matter how much we have come to know about predisposition and unconscious bias, that information could play no part in constitutional decision-making. History, in Thomas' view, trumps science.

Kennedy's approach is far wiser and much sounder, relying on living insights into judicial (and other) decision-­making that were unavailable to the founding generation. Bias, Kennedy observed, is too "difficult to discern in oneself." Thus, Thomas' originalist presumption of nearly absolute judicial impartiality must give way to informed psychology. "When a judge has served as an advocate for the State in the very case the court is now asked to adjudicate," wrote Kennedy, "a serious question arises as to whether the judge, even with the most diligent effort, could set aside any personal interest in the outcome."

You can read the entire article here.

Judge Posner on the Constitution

He has this to say, in a conversation on Slate:

I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation (across the centuries—well, just a little more than two centuries, and of course less for many of the amendments). Eighteenth-century guys, however smart, could not foresee the culture, technology, etc., of the 21^st century. Which means that the original Constitution, the Bill of Rights, and the post–Civil War amendments (including the 14^th), do not speak to today.

 

 

 

Birth of a Nation: The Book

We're all eagerly awaiting the release of Nate Parker's movie, Birth of A Nation.  Now Simon and Schuster has an announcement up on their website about a companion book to the movie, Birth of a Nation: Nat Turner and the Making of a Movement.  Cribbing now from Simon and Schuster's website:

This official tie-in to the highly acclaimed film, The Birth of a Nation, surveys the history and legacy of Nat Turner, the leader of one of the most renowned slave rebellions on American soil, while also exploring Turner’s relevance to contemporary dialogues on race relations.

Based on astounding events in American history, The Birth of a Nation is the epic story of one man championing the spirit of resistance as he leads a rough-and-tumble group into a revolt against injustice and slavery.

Breathing new life into a story that has been rife with controversy and prejudice for over two centuries, the film follows the rise of the visionary Virginian slave, Nat Turner. Hired out by his owner to preach to and placate slaves on drought-plagued plantations, Turner eventually transforms into an inspired, impassioned, and fierce anti-slavery leader.

Beautifully illustrated with stills from the movie and original illustrations, the book also features an essay by writer/director, Nate Parker, contributions by members of the cast and crew, and commentary by educator Brian Favors and historians Erica Armstrong Dunbar and Daina Ramey Berry who place Nat Turner and the rebellion he led into historical context. The Birth of a Nation reframes the way we think about slavery and resistance as it explores the passion, determination, and faith that inspired Nat Turner to sacrifice everything for freedom.

Further to this topic, I have an article about the trials in the wake of the Nat Turner rebellion, which sorts through the limited evidence we have in each case to see various levels of (supposed) involvement in the rebellion, as well as the prosecution and defense lawyers, and the claims made by slave-owners to the Virginia legislature for slaves killed during the rebellion.  There's been a lot written about Turner, the context of slavery and religion in Virginia around the time of the rebellion, the violence in the aftermath, and how the rebellion affected both the anti-slavery and pro-slavery movements down to the Civil War.  But I think one area that (maybe not completely surprisingly) has escaped a lot of attention are the trials.  I had once planned to call this piece "micro trials and macro history," with the idea that the trials were very short.  At their height several defendants were tried each day.  My thought was that these tiny trials gave an important insight into how the legal system was concerned with re-establishing order and shoring up the slave system.  But as I worked through each of the trials and the supporting documents (such as notes about witnesses compiled by the prosecutors) it became apparent that there were a lot of stories to be told about the rebellion, beyond the function that the trials served in shoring up slavery.

The illustration is the Sussex County Courthouse, where some slaves were tried in the wake of the rebellion.  Most of the trial were in Southampton, but the courthouse where those trials took place is no longer standing.  The Southampton courthouse was built shortly after the rebellion.

Update: These days my posts on race and legal history often get extreme reactions.  This is further evidence, as I've pointed out before, of the relevance of talk of race in American legal history.  I usually take down those comments, but I think this one needs to stay up for the time being.  Of course, the person commenting on this hasn't bothered to read my article; if (I'm guessing he) had, he would have seen that I am much, much more interested in seeing what the rebellion and the violence and trials afterwards say about the legal system than in making a judgment about Nat Turner.  Anon's comment makes me look forward to Birth of a Nation even more than I did before, because obviously there's an important debate about how we should view Turner, the rebellion, and effect of his violence and that in the wake of the rebellion.

On further reflection, I want to add that  Anon's veiled threat that I should be fired  is exactly why tenure is still relevant.  And let's just be clear: Anon is saying I should be fired because I have the audacity to talk about the trials in the wake of a rebellion.  If it were up to Anon, I take it the only discussion we could have is that Nat Turner was a murderous thug.  No discussion of the violence in the wake of the rebellion that put it down (which gave us the name Blackhead Signpost Road) -- or that resulted in some innocent slaves being killed.  And I guess no discussion of the ways that the slave-owning society mobilized the legal system to protect slavery.

Further update: As of July 20, we have the cover art for the book.  I've posted it above.

Ralph Stanley (1927 - 2016)

Has passed away:

 

South Texas Law Changes Name To Houston College Of Law

The presser is here.  Dean Leonard Baynes of the University of Houston Law worries about brand confusion here.  The ABA Journal tacitly accepts US News as the official law school ranking organization in its headline here.

Cincinnati Law Seeks Director Of Academic Administration

This just in:

The University of Cincinnati College of Law seeks a Director of Academic Administration.

This is a supervisory position in which the incumbent is responsible for developing and implementing programs to enrich the law school. Incumbent helps law students succeed academically, personally, and professionally. The position is also responsible for overseeing that the law school is in compliance with the rules of all relevant governing entities. Discretion and independent judgment are used frequently. This position reports to the Dean, supervises the Assistant Director for Student Services/ Registrar, and collaborates with the Associate Dean for Academic Affairs.

Examples of Work Performed

 

Jazz Age Novelist Home Trivia

I've run out of courthouse trivia questions, so I need to branch out some here.  Here is a picture of a house where a Jazz Age novelist lived while he wrote his first novel.  I had not read that novel, but I read it after visiting this house.  I have to say that I think I had justifiably overlooked this book -- but I know that's heresy.  (I must say the time wasn't completely wasted; there were several positive references to the Confederacy, so I have something to add my critique of Allan Johnson's pro-Confederate article in the Yale Law Journal back in 1921.)  Who lived here and what novel was written there? 

Now that CM (and Brent Staples via twitter) have identified this, I can add a little more about This Side of Paradise -- in addition to the fleeting references to the Confederacy -- a cemetery (with Union soldiers, no less!) also appears at the end: Amory, the "hero" of the novel, 

wondered that graves ever made people consider life in vain. Somehow he could find nothing hopeless in having lived. All the broken columns and clasped hands and doves and angels meant romances. He fancied that in a hundred years he would like having young people speculate as to whether his eyes were brown or blue, and he hoped quite passionately that his grave would have about it an air of many, many years ago. It seemed strange that out of a row of Union soldiers two or three made him think of dead loves and dead lovers, when they were exactly like the rest, even to the yellowish moss.

One thing I was particularly happy about is that I was able to read This Side of Paradise for free -- it's in the public domain.  And that set me to wondering when The Great Gatsby will enter the public domain. 2021 is the answer unless we get another extension of copyright.  This also led me to a charming essay in The American Scholar on Fitzgerald's taxes.  Apparently Gatsby is still returning about $500,000 per year in royalties to a trust set up for Fitzgerald's grandchildren.

Before living at 599 Summit Avenue in St. Paul, Fitzgerald lived for a time at 593 Summit Avenue (in the same string of town houses as 599).  Even earlier he had lived at two spots on Laurel Avenue, 481 and 293 -- and later he lived in an apartment in The Commodore.  The University Club, where Scott and Zelda partied is still there, in a very grand setting overlooking the Mississippi.  There's a lot to see in case you have a few hours to spare next time you're in St. Paul.

LSAC and Predicting Applicants for 2016-17, Part 27

The LSAC is now reporting that "As of 06/10/16, there are 339,711 applications submitted by 53,429 applicants for the 2016–2017 academic year. Applicants are up 1.4% and applications are up 1.9% from 2015–2016. Last year at this time, we had 95% of the preliminary final applicant count."  The last post in this series is here.

American Journal of Legal History, June 2016

I'm pleased to report that the June 2016 issue of the American Journal of Legal History is up on the web and on its way to the printer soon.  Our first issue of the re-launched journal (March 2016) was composed of essays that we commissioned about the future of legal history.  This issue, thus, is the first to reflect the structure of AJLH going forward.  We have several articles and a selection of book reviews.

The two articles in the June issue deal with perennially popular topics in legal history.  The first is Michael Lazerwitz’ study of moots in late colonial and early national New York.  Lazerwitz, a senior counsel at Clearly, Gottlieb, deals with a topic of long-term interest: the nature of legal thought in early America.  These are the kinds of issues legal historians have been discussing for decades.  It is also asks fresh questions, such as how the content of those moots reflect questions about a trans-national legal culture and an imperial legal culture, and how oratory – another topic of perennial and growing interest to historians – reveals key values and is useful in transmitting those values.  And in that way it fits well with recent work on New York, constitutionalism, and empire like Daniel J. Hulsebosch’s Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664-1830..

Similarly, Fordham Law Professor Andrew Kent’s article on Justice White’s service during the Civil War – for the Confederacy – also draws in many ways on traditional themes and methods.  It invites comparison to early biographies of Justice Holmes like The Yankee from Mount Olympus and more recently biographies like G. Edward White’s Justice Oliver Wendell Holmes: Law and the Inner Self, not just because White served with Holmes in both the Civil War (though on opposite sides) and on the United States Supreme Court.  Kent delves how White’s experience during the Civil War was a formative experience for White.  This long-neglected topic helps us see hidden connections between the Confederacy and early twentieth century legal thought.  And in that regard, Kent’s article intervenes in a vibrant question of US historiography: the role of the Supreme Court in the reconciliation between Union and Confederacy.  We have heard much of late about the legacy of the Civil War during Jim Crow; Justice White opens up new and important perspective on the role of constitutional law in reconciliation.  These two articles, thus, reflect the journal's commitment to traditional topics and to exploring new questions about those topics. 

We also have reviews of three books: Felice Batlan's Women and Justice for the Poor: A History of Legal Aid, 1863-1945 is reviewed by David S. Tanenhaus of UNLV; Laura F. Edwards' A Legal History of the Civil War and Reconstruction: A Nation of Rights is reviewed by Michael Les Benedict of Ohio State; and Brian Phillips Murphy's Building the Empire State: Political Economy in the Early Republic is reviewed by Gautham Rao of American University. If you have a subscription, you can read the full content of the June 2016 issue here.

2016 is already shaping up to be a really great year.  The third issue will be going into the production process later this month.  We have a lot of exciting pieces in various stages of the editorial process, from articles out with referees now to pieces undergoing revision, to those awaiting entry into production.

Judith Daar Named Dean Of Whittier Law

Professor Judith Daar, who joined the Whittier Law faculty in 1990, has been named the school's new dean.  She is a graduate of Georgetown Law and focuses on health law and bioethics.  She served as associate dean from 2008 to 2012.

Opening Statements [UPDATED WITH UNGATED LINKS]

Many trial advocacy books (although not mine) include some version of the admonition that "the opening statement is the most important part of the trial," or that "most jurors make up their minds after the opening statements." The usual source for the claim is the 1966 Kalven-Zeisel jury study, which does not actually say that.

There is no doubt, however, that opening statements can be crucial, as was perhaps uniquely demonstrated in a recent criminal case in San Francisco, in which the federal prosecutors decided to drop the case on the basis of the defense opening.  As reported on Law.Com:

According to sources with knowledge of how things unfolded, the decision to dismiss drug trafficking charges was set in motion by the powerful opening statement delivered June 13 by FedEx defense lawyer Cristina Arguedas of the Berkeley, California criminal defense boutique Arguedas, Cassman & Headley.

You can read the fascinating story of the "killer opening" here.

[UPDATE]

Ungated AP story here.

SF Recorder story here.

WRCB story here.

Bloomberg story here.

 

 

The Talk

Many commentators have lamented the fact that the sole African-American on the Court for a two generations has been a Justice with a perspective on race that is atypical of the average of African-American citizen.  Often that's understood in terms of outcomes: Clarence Thomas is way more conservative on almost every issue than most African-Americans.  But what is less obvious is that we are missing content.  Today, in Utah v. Strieff, Justice Sotomayor's dissent shows us what we've been missing:

This case involves a suspicionless stop, one in which the officer initiated this chain of events without justification.  As the Justice Department notes, many innocent people are subjected to the humiliations of these unconstitutional searches. The white defendant in this case shows that anyone’s dignity can be violated in this manner.  But it is no secret that people of color are disproportionate victims of this type of scrutiny.

For generations, black and brown parents have given their children “the talk”—instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them. See, e.g., W. E. B. Du Bois, The Souls of Black Folk (1903); J. Baldwin, The Fire Next Time (1963); T. Coates, Between the World and Me (2015).

By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged. We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere.  They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but. (Some cites omitted.)

This is powerful stuff.  Steven will presumably be underwhelmed by Justice Sotomayor's citation to On the Run, however.

Justice Rosalie Abella Speaking at Yale Law School [UPDATED]

Justice Rosalie Abella, of the Supreme Court of Canada, spoke at the recent Yale Law School graduation, where she received an honorary degree.  Justice Abella was born in a displaced persons camp in Germany, after her parents survived Treblinka (the rest of her family was murdered, including a two year old boy who would have been her brother).

Abella's father had been a lawyer in Poland, and he helped the American Army create a legal structure in the occupation zone.  Years later, Abella found a letter that her father had written to Eleanor Roosevelt on the occasion of her visit to the refugee camp:

We welcome you, Mrs. Roosevelt, as the representative of a great nation, whose victorious army liberated the remnants of European Jewry from death, and so highly contributed to their moral and physical rehabilitation. We shall never forget that aid rendered by the American people. We are not in a position of showing you many assets. The best we are able to produce are these few children. They alone are our fortune and sole hope for the future.

“As one of those children,” Abella concluded, “I am here to tell you that the gift of American justice at its best is the gift that keeps right on giving. A gift that propelled me from the DP camp in Germany to becoming the first Jewish woman on the Supreme Court of Canada, and now to this stage. I stand proudly before you, fellow graduates, believing as did my father that democracies and their laws represent the best possibility of justice, and that lawyers are the people who have the duty to make that justice happen, the duty to do everything humanly possible to make the world safer for our children than it was for their grandparents, so that all children–regardless of race, religion, or gender–can wear their identities with pride, in dignity, and in peace.”

The entire address is well worth watching:

 

[UPDATE] Here is a longer version, delivered in Poland on the 70th anniversary of the Nuremberg trials:

 

Eric Mitnick Appointed Interim Dean at U.Mass. Law

Eric Mitnick, who has been serving as the Associate Dean for Academic Affairs, has been appointed Interim Dean at U.Mass. Law starting July 1. From the official announcement:

Professor Mitnick received his A.B. from Cornell University; his J.D., cum laude, from the University of Michigan; and an M.A. and Ph.D. from Princeton University in the fields of Public Law, Political Theory, and American Politics. He also practiced law from 1991-1995, a fact extremely important to the School of Law as it seeks to fulfill the goal of producing graduates who are ready for the practice of law. Professor Mitnick is an accomplished scholar in the areas of constitutional law, rights, socio-legal and multicultural theory and is author of the book, Rights, Groups, and Self-Invention: Group-Differentiated Rights in Liberal Theory (2006).

New Law Dean at Hebrew University

As announced today, Michael (Mousa) Karayanni has been named the "first-ever Arab Israeli . . . appointed as the dean of the Faculty of Law at the Hebrew University in Jerusalem."  Karayanni, a specialist in civil law, private international law and issues of law and multiculturalism, studied at Bar-Ilan University, George Washington University, the Hebrew University and the University of Pennsylvania.  He is well known in the United States, having visited at Yale, Princeton, and Stanford.  

Dean Karayanni lives with his wife and children in Neve Shalom/Wahat el-Salam, which describes itself as "an intentional community jointly established by Jewish and Palestinian Arab citizens of Israel." (It is "Oasis of Peace" in English.)

The American Studies Association will now have to impose a special ban on Dean Karayanni pursuant to its boycott resolution, which includes:

. . . refusal on the part of the ASA in its official capacities to enter into formal collaborations with Israeli academic institutions, or with scholars who are expressly serving as representatives or ambassadors of those institutions (such as deans, rectors, presidents and others). (emphasis added)

The BDS movement itself stands for "anti-normalization," which includes opposition to 

. . . events, projects, publications, films, or exhibitions that are designed to bring together Palestinians/Arabs and Israelis so they can present their respective narratives or perspectives, or to work toward reconciliation, “overcoming barriers,” etc., without addressing the root causes of injustice and the requirements of justice.

Projects such as Neve Shalom/Wahat el-Salam would seem to be prohibited because they do not promote “'co-resistance' rather than co-existence."

Dean Karayanni was previously the director of the Minerva Center for Human Rights.