The Faculty Lounge

Charlotte Law Interim Dean Tells the Truth

In an interview with a local television station, Interim Dean Scott Broyles, who recently replaced Jay Conison, made a truthful, and potentially damaging, admission.  According to the story, 

Broyles said problems started for CSL when the market dropped and instead of creating smaller classes, the school lowered its standards and accepted unqualified students.

While this candor is refreshing, Dean Broyles' new approach is likely too late to save Charlotte School of Law, which has lost over two thirds of its students in the past year, with many of those remaining slated to graduate this spring.  Of the small number of 1ls and 2ls remaining, the school will likely lose many more to transfer and academic attrition over the summer.  The school has submitted a "reliable plan" to get back into compliance with ABA Standards, including increasing admission standards, but admissions are currently on hold while the plan is being evaluated by the ABA.  Without access to federal student loans, there is no way that the school will be able to enroll new students anyway.  With so little tuition revenue coming in, it is hard to see a viable path forward for the school, and another round of faculty layoffs over the summer seems imminent.    

 

Robert Schapiro Stepping Down As Emory Law Dean

Dean Robert Schapiro, who has led Emory University School of Law, will step down this summer.  Schapiro began serving as interim dean in 2011 and became the permanent dean the following year.  The school will conduct its search for a new dean during the coming academic year.

Hastings Law Journal Guaranteed Article Review

This just in from the Executive Editor of the Hastings Law Journal:

The Hastings Law Journal can guarantee that we will review manuscripts for authors who commit to accepting an offer from Hastings Law Journal if we extend one by 5:00 PM PST on Monday, April 10. If you would like to participate in this process, which does require that you keep your article available until April 10, please submit a Scholastica expedite request clearly indicating that you would like to participate no later than 5:00 PM PST on Friday, March 31. This will ensure that we have enough time to put each article through our peer review process. 

"Inside the Great Forensic Science Boondoggle"

Such is the subtitle of an excellent article by UVA's Brandon Garrett, in The Baffler.  Here is the gist:

Forensics has turned Victorian detective stories into modern nonfiction, with lab-coated analysts flexing their Holmesian ability to zero in on tiny clues. The smallest detail—a stray crime-scene particle, a trace of biological evidence—can reliably nail the most serious of criminals, according to prosecutors, august professional associations, and other legal authorities. Our TV police procedurals reinforce that idea in primetime, as frenetic, brightly lit jump cuts serve up damning physical evidence in the form of fingerprints or strands of hair.

Popcult fables aside, the examination of physical crime-scene evidence is a solemn civic obligation. We incarcerate vastly more people than any other country in the world, and criminal sentences in the United States are substantial. We should expect the evidence that our turbo-charged criminal system relies upon to be as close to airtight as possible. To abuse such basic standards would be to feed the corrosive suspicion that our criminal justice system obeys bureaucratic efficiency and local bias in preference to the patient collection and interpretation of evidence.

It comes as no small shock, then, to learn that the supposed empirical bulwark of forensic courtroom science rests on what is, at best, a creaky empirical foundation—and that in far too many successful criminal convictions, forensic evidence has been misinterpreted and manipulated to obtain swift, efficient convictions.

Then entire article is important and well worth reading.  You can access it here.

More Bad Bar Results from Charlotte School of Law

 

Last week, Charlotte School of Law had a pretty good week. Dean Jay Conison was fired and returned to the faculty, but since he wasn't assigned any classes this semester, he has no actual responsibilities. He reportedly was wandering the halls asking other faculty members if they had anything for him to do.  Dean Conison was replaced by faculty member Scott Broyles. Dean Broyles announced that students who had received federal loans for the 2016-2017 school year would have their spring loans disbursed to them.  And the ABA announced that it was not going to evaluate Charlotte's teach-out plan since the school had not determined that it was actually planning to close.  

But this week brings more bad news.  Charlotte was just informed by the North Carolina Board of Bar Examiners of the results on the February 2017 bar, and they were not pretty.  Charlotte's first-time pass rate was an abysmal 25%.   (18 of 72) For those counting on repeat takers to bring Charlotte's pathetic bar pass rates within striking distance of the ABA Standard, the February results don't look very promising.  Charlotte's pass rate for repeat takers was a mere 18.1%. (17 of 94) The overall rates in NC for February, significantly lowered by Charlotte's performance, were 44.4% for first time takers and 31.7% for repeaters.  Not including Charlotte, the state wide rate was 52.6% for first-timers (90/171) and 36.3% for repeaters (102/281).  In other words, Charlotte dragged down the state wide passage rates 8.2% and 4.7% , respectively, but still managed to be more than 15% below the state average, as they have now been for the last four administrations of the exam (the two before that they were only 14% below the state average).  

Last month it was reported that Charlotte was essentially paying its students to defer taking the July bar. In fact, in an audio recording leaked to the local public radio station, the Assistant Dean for Academic Success Odessa All could be heard explaining to other faculty members that if the school hadn't paid students to not take a previous bar exam, the school's bar pass rate on that exam would have been in the 20s.  Apparently, she knew what she was talking about.   

Although the July bar pass rate is typically much higher than the February bar pass rate, there is little reason to be optimistic about Charlotte's prospects for the July 2017 bar.  The current class, enrolled in 2013 and 2014, is among the weakest classes in American law school history by entrance credentials, and has been further weakened by academic transfers from the top of the class.  With the exodus of many of Charlotte's top students this semester after the double whammy of being placed on probation and losing federal funds in the fall, it is hard to envision how Charlotte's remaining students will pass at much more than a 30% rate, if that.  And Charlotte has also lost, or will likely lose this summer, its strongest 1Ls and 2Ls, making it unlikely that it will every get near a 75% ultimate bar pass rate for the foreseeable future.   Charlotte's only hope seems to be converting to non-profit status and affiliating with a University.  Reportedly they are in talks with an an unnamed university in the Northeast.  I'm not sure why any self-respecting university would want to affiliate with a law school with Charlotte's reputation, but perhaps Sterling Partners has made them an offer they can't refuse, as discussed in this recent ABA Journal article.

Full Disclosure -  Regular readers will recall that I was representing a faculty member in a wrongful termination dispute with Charlotte School of Law. I am pleased to report that that dispute was settled amicably.  However, I have been contacted by another faculty member about representation of a similar nature and will likely be taking on that individual as a client.  

 

UPDATED:  See the second paragraph for additional stats on the Feb NC Bar exam

Arizona Summit Placed on Probation by the ABA

Yesterday, the ABA announced that it was placing Arizona Summit Law School on probation. (See ABA Journal story here.)  Arizona Summit is following on the heels of its sister school, Charlotte School of Law, which was placed on probation back in November.  The ABA gave similar reasons for the action, namely, non-compliance with ABA Standards 301(a), 308(a), 309(b), 501(b) and Interpretation 501-1 and 501-2.  The ABA also noted the poor graduation rates (high attrition rates) and bar passage outcomes at the school. 

This action could very well result in the closure of Arizona Summit.  Arizona Summit had, as of December,  381 students, including 143 1Ls (down from 4501Ls in 2011 and 447 in 2012).  It is very likely that most students in good academic standing will try to transfer out this summer.  No student wants to be at a school that might lose its accreditation.  While those with just one year left are likely to have few options other than to remain, the bulk of the 1Ls and part time students who are less than halfway through their programs will try to leave.  Those with good grades and a reasonable prospect of passing the bar will be accepted at other law schools and will transfer.  The students that will be left behind will be the “worst of the worst” who are extremely likely to fail the bar, making it unlikely that Arizona Summit will be able to achieve the necessary improvements in their bar passage rate (Arizona Summit's most recent pass rates have been in the 20s and 30s).   If the top third or more of the class transfer, there will be virtually no students left who are likely to pass the bar on the their first attempt.  Meanwhile, it will be very difficult to recruit incoming students for the fall semester and virtually impossible to attract students with significantly better entrance credentials, which is what would be required to get back into compliance with ABA Standards and avoid losing accreditation.  Arizona Summit's 2016 entering class had an abysmal 148/143/140 and 3.31/2.96/2.55, meaning that the vast majority of the class is at very high or extremely high risk of failure.  Indeed, it is likely that many of the students already admitted who may have expressed an intent to matriculate or put down a deposit will change their mind.  Prospective students accepted to any other law school that is not on probation are likely to go there instead, and those only admitted to Arizona Summit may have second thoughts about attending at all.  The combined effect of huge numbers of transfers and a dramatic decrease in new matriculants will be a substantial reduction in revenues for Arizona Summit, which is already badly hurting after multiple years of rapidly dwindling revenues.  Based on recent history at other InfiLaw schools, I would expect the school's Dean to declare a Reduction in Force very soon, followed by firing half or more of the faculty at the conclusion of the spring semester.  Arizona Summit faculty members would be well-advised to start updating their CVs.

One interesting question raised by this action is whether this might cause Bethune-Cookman to reconsider its recently signed affiliation agreement with Arizona Summit.  It is hard to imagine that Bethune-Cookman would have entered into the agreement if they were aware that the school might be placed on probation in the near future, but it is also hard to imagine that Arizona Summit's President Don Lively wasn't aware that probation was a distinct possibility based on ongoing communications with the ABA.  This raises the specter that Arizona Summit failed to disclose this likely prospect to Bethune-Cookman, which would probably be a valid basis for voiding the agreement.  Whatever Bethune-Cookman's leadership was thinking when it signed this agreement, the ABA's determination that the school is not meeting the most basic requirements of the ABA Standards should give them pause about whether they should be encouraging their graduates to attend such an institution.  

 

While Arizona Summit has been among the law schools with the most exploitative admission practices in the country for the last few years, they are far from the only law school to take advantage of students with little or no chance for success.  I expect the ABA to take action against other predatory schools in the near future.  Thomas Cooley and Thomas Jefferson would be my candidates for the next schools most likely to be sanctioned.  (See comments for my reasoning.)

 

UPDATE:  One other issue raised by this latest announcement is this: When was Arizona Summit first informed that it was out of compliance with ABA Standards?  Readers will recall that Charlotte was disqualified from federal loans by the DOE in part because of failure to disclose to current and prospective students that it was out of compliance with ABA Standards in a timely manner, an omission which the DOE considered to be a violation of the school's fiduciary duty.  If Arizona Summit's road to probation followed a similar trajectory as Charlotte's then they were likely informed by the ABA several months ago that they were out of compliance (or at least that the ABA was considering finding them out of compliance), but it does not appear that the school did anything to alert prospective or current students to this possibility.  

 

 

 

Aviva Abramovsky Named New Buffalo Law Dean

The University at Buffalo School of Law has announced that Aviva Abramovsky, associate dean for international initiatives at Syracuse Law, has been named its new dean.  Abramovsky, who holds a JD from Penn Law, will take over this summer.  

Wallace M. Rudolph (1930-2017)

Wallace M. Rudolph, a long-time professor at the University of Nebraska (1964-1976) and later dean and faculty member at the University of Puget Sound (1976-1997) and then the dean of University of Orlando (now Barry University) (1997-98) passed away on March 18.  Dean Rudolph was a graduate of the University of Chicago and University of Chicago Law School's class of 1953.  Among his many publications were  Foreseeability of Third Party Economic Injuries, 20 U. of Chicago L. Rev. 282(1953); Women Jurors, Journal of the American Judicature Society, April 1961; The Reapportionment Cases: A Conservative Defense of Individual Rights; 43 Nebraska L. R. 854 (1964); The Duty to Act: A Proposed Rule; 44 Nebraska L.R. 499(1965) reprinted in The Good Samaritan and The Law, Random House (1967).; The Conglomerate Merger Tangle: 51 Neb. L. Rev. 1(1971) reprinted 13 Corporate Practice 235 (1971); The Law as A Trade, 61 Neb.L.Rev. 392 (1972); Handbook on Correctional Law, developed under a grant from National Institute of Law enforcement and Criminal Justice (1975); Model Criminal Procedure Code, Uniform State Laws (1975); Model Sentencing and Corrections Act, Uniform State Laws (1978); Punishment or Cure: The Function of the Criminal Law, 48 Tenn. L. Rev. 535 (1981); Standing: A Legal Process Approach, 36 S.W.L.J. 857 (1982); The Limits of Judicial Review in Constitutional Adjudication, 62 Neb. L.Rev. 80 (1983); Free Government and the Doctrine of Non-Delegation of Legislative Powers, 19 New England L. Rev. 551 (1984); Judicial Deference to Administrative Interpretation, 2 Admin. L. Rev. 291 (1988); The Tort Crisis: Causes, Solutions and the Constitution, 11 U. Puget Sound L. Rev. 659 (1988); The Evolving Role of the Supreme Court In Constitutional Adjudication: A Study in Context; 21 Memphis State Law Review 291 (1991).  He leaves many family members, including a daughter, Sarah Rudolph Cole, who is the John W. Brinkley professor at Ohio State University.

Illinois Law Review Call For Symposium Proposals

This just in from the EIC of the Illinois Law Review:

In May, the Illinois Law Review intends to select a Symposium for publication in the 2017-2018 volume of the journal. If you are organizing a conference or have an idea that could function as a Symposium, please submit a proposal in electronic form to the Law Review no later than April 29, 2017 by emailing Sam Zuidema at szuidem2@illinois.edu. Symposium applicants should prepare a written proposal including the following:

1. A background discussion of the area of scholarship in which the symposium is situated
2. A description of the subject matter of the symposium
3. A discussion of the contribution the symposium will make to legal scholarship
4. A preliminary list of contributors, attendees, or invitees

The Symposium will be selected by a majority vote of the Board of Editors. The Board intends to announce its decision by May 15, 2017.

If you would like to hold a Symposium at the University of Illinois Law School in addition to publication, expenses for travel and accommodation must be assumed by the submitter.

We look forward to considering your submissions. Please do not hesitate to contact Benjamin Paulsen, Editor-in-Chief of Law Review, at bpaulse2@illinois.edu if you have any questions or concerns.

"Donnie in the Room"

Doug Muder is a retired mathematician whose blog is The Weekly Sift.  I think everyone will enjoy his recently posted poem, "Donnie in the Room."  Even those who do not share the political sentiment ought to appreciate the artistry:

Here are a few stanzas:

Donnie in the Room

(with apologies to Ernest Lawrence Thayer)

The outlook wasn’t brilliant for Republicans that day.
They’d promised for six years that they’d repeal the ACA.
But when the caucus gathered, and they looked from man to man
They knew that not a one of them had ever had a plan.

“I know,” said Ryan hopefully, “that’s sometimes how it feels.
But Donnie wrote the book about the art of making deals.
I know agreement’s hard to find, and deadlines closely loom.
But we can still succeed if we get Donnie in the room.”

Oh Donnie! Clever Donnie! How everyone agreed.
The plan that he campaigned on was just the one they’d need.
It ended it all the mandates! It set the markets free!
And still it covered everyone, from sea to shining sea!

“It offers better treatment,” noted one committee chair.
“And cheaper,” said another, “I know cause I was there.
You should have heard the cheering. I thought the roof would fall.
And Mexico will pay for it! No, wait, that was the wall.”

You can read all fifteen stanzas here.

And yes, Doug Muder does appear to be the best poetic mathematician since Tom Lehrer:

 

 

 

 

Binding Submission at Chapman Law Review

Chapman Law Review is now accepting direct review submissions for Volume 21 between now and April 3, 2017, 11:59 PM Pacific Time. For all pieces properly submitted between now and that time, Chapman Law Review agrees to immediately review them and guarantees to provide a publication decision to the author(s) no later than April 10, 2017. Articles accepted will be published in Volume 21: Issue 1 of this review. Issue 1 is currently scheduled for publication in March 2018.

Please note that by submitting the article, the author pre-commits to immediately accept a binding publication offer, should one be extended on or before April 10th. It is not necessary for participating authors to withdraw any article previously or contemporaneously submitted for consideration elsewhere. If you have an article you would like to submit to this direct review window, please e-mail an attached copy of the article, your CV, and a cover letter to Alberto Wilches, Online Submissions Editor, at chapman.law.review@gmail.com. Please title the subject line as “2017 Direct Article Review.”

If you have submitted an article to the Chapman Law Review previously, you must resubmit your article if you wish it to be considered in this direct review.

The Triangle Shirtwaist Fire

Today is the 106th anniversary of the fire at the Triangle Shirtwaist factory in Manhattan, in which 146 garment workers -- mostly immigrant women -- were killed.

The owners of the factory were prosecuted for manslaughter -- the workshop doors had been locked, which prevented the victims from escaping -- but acquitted thanks to the exceptionally effective representation of legendary attorney Max Steuer.

The full story of the trial, including transcripts, can be read on Douglas Linder's Famous Trials website, which is an essential resource for anyone interested in the history of litigation and advocacy.

UMKC Law Seeks Business/Entrepreneurship Faculty

This just in:

The University of Missouri-Kansas City School of Law anticipates hiring a visiting or tenure-track faculty member with a strong commitment to educating lawyers for the twenty-first century, a lifetime of scholarship, and being part of a collegial, collaborative community. We are particularly interested in candidates who can assist our very strong program in law, entrepreneurship and innovation, we are looking for a faculty member with teaching and research interests related to this area. Specific immediate course needs include securities regulation, mergers and acquisitions, and teaching or co-teaching of experiential and interdisciplinary courses in entrepreneurship and innovation. Longer term needs may include business organizations and/or business planning. Courses in the area that take advantage of particular knowledge, experience, or expertise of the faculty member are always given special consideration as well. We are also interested in candidates who can help ensure that the School’s commitment to diversity is reflected in its course offerings, teaching methods, and research agenda.

UMKC is the urban law school of the University of Missouri System and is located on a beautiful landscaped campus in the Country Club Plaza area of Kansas City, Missouri. It is the only law school in a diverse and vibrant metropolitan area of more than two million people and offers courses leading to J.D. or LL.M. degrees for approximately 500 students. It benefits from its metropolitan location, a stable pool of student applicants, a strong university with opportunities for interdisciplinary collaboration, a dedicated faculty and staff, and strong community and alumni support.

UMKC is an equal access, equal opportunity, affirmative action employer that is fully committed to achieving a diverse faculty and staff. The university will recruit and employ qualified personnel and will provide equal opportunities during employment without regard to race, color, religion, national origin, sex, sexual orientation, age, status as a protected veteran or status as a qualified individual with a disability. To request ADA accommodations, please call the Director of Affirmative Action at 816-235-1323.

Applications for the position go through the University at https://myhr.umsystem.edu/psp/tamext/KCITY/HRMS/c/HRS_HRAM.HRS_CE.GBL?SiteId=8. Job Opening ID: 21123; Posting Title: Assistant or Associate Professor of Law, 65383.

For questions, contact

Professor Sean D. O’Brien, Chair
Faculty Appointments Committee
UMKC School of Law
500 E. 52nd St.
Kansas City, MO 64110
Obriensd@umkc.edu

Susan Duncan Named Dean Of University Of Mississippi Law

The University of Mississippi School of Law has named Susan Duncan as its new Dean.  Duncan has served as Interim Dean at Louisville Law since 2012.  She holds a JD from Louisville.  This is a nice hire for Ole Miss!

Posted on The Conversation: The Continuing Saga of the PACE Trial

If you are not familiar with The Conversation, I urge you to check it out.  It is "an independent source of news and views from the academic and research community, delivered direct to the public."  Funded by a number of U.S., U.K., and Australian foundations, its motto is: Academic Rigor; Journalistic Flair.  Articles are posted daily, in fields including the arts, religion, politics, and science.  The Conversation is where my brother published his article on Bob Dylan, for example, which I linked here.  You can subscribe to The Conversation's very informative daily newsletter here.

Today, my new article on ME/CFS is up on The Conversation.  Here is the gist:

The story began in 2005, when a group of psychiatrists set out to test their theory that ME/CFS is primarily a psychosocial illness, characterized by patients’ “unhelpful cognitions” and their “dysfunctional” beliefs that their symptoms are caused by an organic disease.

Under this assumption, they recruited over 600 ME/CFS patients for the PACE trial and randomly divided them into four categories. One group was treated with cognitive behavior therapy (CBT), a form of psychotherapy that addresses patients’ “false perceptions” of their illness, and a second group received graded exercise therapy (GET), which consisted of supervised increases in their activity levels. The other two groups were essentially controls, receiving neither of the treatments under study.

In a 2013 article in Psychological Medicine, the PACE team announced its most striking results. This follow-up article claimed that the therapy arms of the study – CBT and GET – had achieved impressive 22 percent recovery rates – not just improvement rates – as opposed to only seven or eight percent in the control arms.

­

There was just one problem. A subsequent investigation found that the PACE investigators had changed the standard for recovery midstream, weakening one of the key criteria to the point that a subject could actually have gotten worse in the course of the trial and yet still count as “recovered” following supervised GET.

A group of patients and scholars reanalyzed the PACE data according to the original determinants and, as suspected, the “recoveries” under CBT and GET all but disappeared. 

 You can read the whole article here.

One more important feature of The Conversation: Anyone can republish the articles without charge (there are a few exceptions, and proper credit must be given, of course).

 

Short Questions

Writing at the always interesting PrawfsBlawg, Howard Wasserman links to this Slate article in which Will Oremus explains why reporters should stop asking complex, mulit-part questions at political press conferences.  Says Oremus, "this journalistic bad habit is undermining the media's efforts to hold the Trump administration to account."  The problem is not limited to questions for Pres. Trump, press secretary Sean Spicer, or anyone in particular.  Run-on questions are going to get selective and ambiguous answers from politicians of  both parties.

Howard adds an important observation.  He compares Oremus's advice to "what we try to do in law school," and explains that "effective cross-examination involves single, pointed questions."  Howard is right, of course, but let me suggest that the more apt comparison is to discovery deposition questioning, rather than cross examination.

The point of a short question on cross-examination is to confine the witness's answer, preferably to "yes" or "no."  There is ideally no attempt to generate new information, but rather to confirm something that is already known.  Thus, the question posed by a German reporter at the recent Trump/Merkel press conference -- and much praised by Oremus and others -- would never be asked by a cross-examiner: "Why do you keep saying things you know are not true?" (Translations vary.)

Not only is it easily avoidable -- Answer: "I don't" -- but it is also a dread "Why" question, which cedes control by inviting the witness to explain.

In contrast, the goal at a discovery deposition is not to confine the witness's answers, but rather to get the witness talking, in the hope that he or she will say something useful or revealing.  Thus, "Why" questions are ideal at depositions, as they have the potential to unearth the witness's motivations, explanations, and defenses.  Even so, deposition questions need to be pointed and short.  A long, rambling question is unlikely to evoke a well defined answer, and it is even less likely to be usable for impeachment at trial, which requires close correspondence between the question and the testimony to be impeached.

Finally, in an era of deposition time limits, it is well to remember this advice:  whenever you are talking, the deponent isn't.

Temple Law Announces Dean Finalists

Temple University School of Law has announced three finalists for the position of Dean.  They are A. Benjamin Spencer (Virginia), Robert Ahdieh (Emory), and Gregory Mandel (the current Interim Dean.)  

Gienapp on Originalism

Jonathan Gienapp of Stanford's history department has an essay on "Constitutional Originalism and History" up at process, the OAH's blog.  I think you'll enjoy this.

Chicago Kent Law Review in search of Symposium

The Chicago-Kent Law Review has one issue open for the 2017-2018 school year! The Chicago-Kent Law Review uses a symposium-style format, and publishes entire issues pertaining to one subject. For each issue, we work with a panel of between eight and eleven law professors chosen by a symposium editor (the lead professor on the issue). 

 

This issue would be published in November 2017, with an article submission due date of August 15, 2017. If you're looking for a publication opportunity in a flagship law journal, and you have an interest in putting together an entire issue as a symposium editor, please contact the editor-in-chief, Matthew Hamielec (cklawreview@kentlaw.iit.edu), for more details.

Cathy Cox Named Dean Of Mercer Law

Mercer University School of Law has announced that Cathy Cox will take over as Dean this summer.  Cox is currently the President of Young Harris College.  She was previously the Secretary of State of Georgia.  Cox holds a JD from Mercer.