The Faculty Lounge

Tom Lehrer

The subject of idea stealing came up briefly at a faculty workshop today, which reminded me of Tom Lehrer's great song "Lobachevsky," pasted below for your academic enjoyment:

This, of course, also inspired me to listen to "The Elements."

 

And finally, to cheer things up:

 

 

Talus to Tulane Law

Kim Talus, a renowned European scholar of energy law, will join Tulane University in January 2018 as the inaugural holder of the James McCulloch Chair in Energy Law. Talus also will become founding director of the new Tulane Center for Energy Law.  More details are available at Tulane Law's press release.

Property Implications of the Sharing Economy Workshop Penn State Law, CFP

We have the following call for papers for a conference on the "Property Implications of the Sharing Economy Workshop," which will be at Penn State Law (University Park) on October 6-7, 2017.  It is co-sponsored by the AALS Property Section and the AALS Commercial and Related Consumer Law Section.

This workshop at Penn State Law (University Park) will bring together an interdisciplinary and transnational group of scholars to explore the many property implications of the sharing economy. The workshop is being co-organized by Dean Hari Osofsky, Penn State Law and School of International Affairs; Rashmi Dyal-Chand, Northeastern University School of Law; and Shelly Kreiczer-Levy, College of Law and Business, Ramat Gan, Israel. It is co-sponsored by Penn State Law, the AALS Property Section, and the AALS Commercial and Related Consumer Law Section.

The last several years have seen a major growth in peer-to-peer online exchanges and other collaborative consumption enterprises. Companies such as Airbnb and Uber have disrupted longestablished regulated industries. A wide range of smaller companies connect strangers to “share” underutilized resources. In addition, crowdfunding through Kickstarter and other companies has provided a mechanism for individuals to launch ventures that are difficult to fund through traditional methods. These types of companies are only likely to become more important. PricewaterhouseCoopers, for instance, estimates that sharing economy global platform revenues could grow from $15 billion in 2013 to $335 billion by 2025.

The rapid growth of the sharing economy has significant property implications. It changes how people use their own property and interact with the property of others. Property law—among many other types of applicable law, including tax, insurance, zoning, licensing, consumer protection, data privacy, and labor law—both facilitates and constrains these exchanges.

We welcome submissions of abstracts in any area that connects to the workshop themes. We also would be delighted to have individuals serve as commentators or moderators of sessions. Please let us know of your interest in participating by July 1, 2017 by emailing Shelly KreiczerLevy, shellykr@clb.ac.il. Please include an abstract if you would like to present. We will accept presenters, commentators, and moderators on a rolling basis and anticipate finalizing participants by July 15, 2017.

Penn State Law, based in University Park, PA, will host the event and provide meals throughout the workshop (including ice cream from the famed Penn State University Berkey Creamery). Participants will be responsible for other expenses, including their own travel and lodging. We have arranged for a hotel block that will allow participants to book at a discounted rate. Delta, American, and United offer direct flights to State College (airport located 15 minutes from conference), and BWI, Pittsburgh, and Harrisburg airports are within driving distance.

Herma Hill Kay

We share the sadness of our colleagues throughout the legal academy in the passing of iconic Berkeley Law Professor Herma Hill Kay.   Cribbing now from Berkeley Law's memorial notice:

Kay, who taught at Berkeley Law for 57 years, wrote seminal works on sex-based discrimination, family law, conflict of laws, and diversity in legal education. A powerful advocate for equality in legal education and for women’s rights under the law, she also published numerous articles and book chapters on subjects including divorce, adoption, and reproductive rights. 

In 1960, Kay became just the second woman to join the Berkeley Law faculty—hired when the first, Barbara Armstrong, announced plans to retire. During Kay’s tenure, the number of women students increased from a small handful to more than 50 percent of the class, and the number of women faculty grew exponentially.

She became the school’s first woman dean in 1992, serving for eight years. Despite facing severe budget restrictions and the 1996 passage of a California law barring public institutions from recruitment based on affirmative action, Berkeley Law thrived during her tenure with significant expansions to its curriculum, faculty, and clinical program.

Berkeley Law's memorial notice is here.

American Journal of Legal History, June 2017

I'm pleased to report that the June 2017 issue of the American Journal of Legal History is up on AJLH's website. The hard copies should be arriving in subscribers' mailboxes soon. Here is the table of contents:

Wim Decock,  Law, Religion, and Debt Relief: Balancing above the ‘Abyss of Despair’ in Early Modern Canon Law and Theology

Rebekka Byberg, A Miscellaneous Network: The History of FIDE 1961-94

Brian Sawers, The Poll Tax before Jim Crow

Logan E. Sawyer, III , Principle and Politics in the New History of Originalism

BOOK SYMPOSIUM: THE PEOPLE’S WELFARE AT 20

Roman J. Hoyos, Introduction: The People’s Welfare, Law, and the Modern American State

Gautham Rao, William J. Novak’s The People’s Welfare and the New Historiography of the Early Federal State

Kyle G. Volk, The Consequential State: Public Law and the Release of Energy in Nineteenth-Century America

Kate Masur, The People's Welfare, Police Powers, and the Rights of Free People of African Descent  

Karen M. Tani, From the Well-Regulated Society to the Modern American State

Response: William J. Novak, The People’s Welfare Redux

BOOK REVIEWS

Mark Rose, Authors in Court: Scenes From the Theater of Copyright, reviewed by Dave Fagundes

Karen M. Tani, States of Dependency: Welfare, Rights, and American Governance, 1935-1972 reviewed by Alice O'Connor 

The Defense of the PACE Trial Is Based on Argumentation Fallacies

The Journal of Health Psychology has just posted my response to the defenders of the PACE trial.  Here is the abstract:

In defense of the PACE trial, Petrie and Weinman employ a series of misleading or fallacious argumentation techniques, including circularity, blaming the victim, bait and switch, non-sequitur, setting up a straw person, guilt by association, red herring, and the parade of horribles. These are described and explained.

And here is a representative passage:

“The use of exercise when someone feels fatigued is counterintuitive to the common sense model of CFS,” say Petrie and Weinman, suggesting that patient objections to GET are merely intuitive or perhaps even a “modern-day version of Cartesian dualism and a rather crude division between mind and body.” Here, they are wrestling with a straw person, as they are setting up arguments—none of which have ever been made—solely for the purpose of refuting them. Critics of the PACE trial do not rely on intuition and do not indulge Cartesian dualism either crudely or otherwise. Rather, patients report having attempted exercise only to experience devastating relapses or crashes (Brea, 2017; Tuller, 2016). Although one would not know it from the Petrie and Weinman paper, the US Institute of Medicine (now the Academy of Medicine) has concluded that exertion intolerance is the defining characteristic of ME/CFS and has even proposed changing the name of the illness to Systemic Exertion Intolerance Disease (Institute of Medicine, 2015). Needless to say, the IOM report was not based on intuition or mind-body dualism.

You can read the entire article here.

Presidents Ranked from Worst to Best

This ranking of presidents from worst to best, as voted by 91 historians, has been posted by CBS News.  As usual, the top three are Lincoln, Washington, and FDR, in that order, about which there cannot be much argument.  

But the bottom of the list, in my opinion, gets things wrong.  James Buchanan comes in last, as he often does, because he let the slavery issue "fester in the years leading up to the Civil War." But there wasn't much any president could have done about slavery at that point, given how Fillmore and Pierce had already taken sides with the South.  Buchanan is often criticized for failing to prevent the Civil War, but that would have required even more concessions to slavery and the condemnation of 4 million Americans to decades longer in bondage.  Buchanan was a bad president, but he was no worse than Pierce or Fillmore (who signed the Fugitive Slave Act). John Tyler (39) was also worse than Buchanan, given that he was thrown out of his own political party and later committed treason by joining the Confederacy.

Last place, however, should have gone to Andrew Johnson, a racist who betrayed the freed slaves and did everything he could to prevent the establishment of equality during Reconstruction.  Among other things, he thwarted federal efforts to protect African Americans and Republicans from terrorism.

Three presidents under-rated by the survey are Zachary Taylor (31), James Garfield (29), and Ulysses Grant (22).  Taylor refused to endorse the Compromise of 1850, which included the Fugitive Slave Act.  Grant attempted to protect African Americans in the former Confederacy following Johnson's disastrous presidency. Garfield would have done the same if he hadn't been assassinated 200 days into his presidency.

The most over-rated president on the list is Andrew Jackson at 18.  He was pro-slavery and he enthusiastically signed and enforced the Indian Removal Act of 1830. (Fillmore at least had the semi-decency to express some qualms about the Fugitive Slave Act.)  

JFK is also over-rated at 8.

Finally, I think there is a case for ranking Chester Arthur higher than 35, simply on the basis of facial hair:

 

State v. Will and Some Other Things, Too

On Saturday I thought I'd take a break and go to the dedication of a new highway marker -- over east of here in Edgecombe County -- to the State v. Will case.  Will, you may recall, was a slave who in the 1830s was attacked by his overseer and -- after being shot and chased -- fought back and inflicted a mortal knife wound.  Will was tried and convicted of murder and sentenced to death, but on appeal to the North Carolina Supreme Court, Justice William Gaston reduced Will's conviction from murder to felonious slaying. Will was guilty of only manslaughter because he defended himself --as any human would do -- from an attack.  State v. Will acknowledged that a slave might fight back against an overseer, even though less than five years earlier State v. Mann had stated that the owner must have uncontrolled authority over the body of the slave.  After Gaston's opinion, Will was transported out of the state, to Mississippi.  (Where he was executed for killing a slave, btw.)  (I've flattened down a lot of nuance here -- if you're interested in this more, I talk about it a bunch in an article on the Nat Turner trials.)  

I think two things were at work in Will.  First, Will's owner hired a distinguished lawyer, B.F. Moore, to defend him and make the case that even enslaved people might defend themselves against an attack.  In essence this subordinated everyone to the rule of law.  It limited the power (not by much, but some) of overseers over enslaved people (or maybe it's more appropriate to say that it gave space to enslaved people to fight back and in that way limited the complete authority of the owner over the slave.)  Second, and probably most importantly, William Gaston-- who had taken a mildly antislavery stance in a graduation address at UNC in 1833 -- wrote the opinion.  Gaston had helped Quakers hold slaves in a state of quasi-slavery before he went on the bench and I suspect that Gaston was critical to the outcome and certainly the wording of the opinion.

I'm glad to see this highway marker -- in part because it's one of the few that I know of that is a monument to a slave "rebel."  And I think the marker's language does a nice job of telling the story without taking what would surely be a controversial stand over Will.  One of the things that I like about Will's case -- and those of the Nat Turner rebels and the other rebels I've been spending time of late working on (also from northeastern North Carolina) -- is that we know so little that we can speculate about their motives and their lives.

I returned home to read a couple of books that have been on my list for a while -- first was Andrew Fede's book on homicide of slaves (so pretty closely related to State v. Will), Homicide Justified.  Andrew looks around the ancient and early modern world to assess how legal systems treated those who killed slaves -- and especially to the US South.  The short version is that you shouldn't expect a lot of justice there.  I hope to talk about this with more nuance soon.

And I finished up Allen Mendenhall's new book on Emerson's poetics and Holmes' dissents.  Allen's book joins two of my favorite figures -- Ralph Waldo Emerson and Oliver Wendell Holmes.  He argues that Holmes used Emerson's aesthetics in his dissents and thus introduced a sense that law evolved.  I think Allen's book deserves a lot of attention and is super creative.  I'm not sure I buy the strong version of his thesis -- that there was some sort of influence here, where Emerson's literary method created a sense that the common law evolved.  But I certainly buy the idea that transcendentalism influenced law both before the Civil War and afterwards towards retesting old assumptions -- and thus undermined a static vision of law.  For me what is most salient about Holmes (and I'd add for some pre-Civil War jurists and treatise-writers, too) was that history cast a long shadow over law and that history might also be used to critique law.  Where the historical school of jurisprudence all too often said that history told us what was -- and therefore in the words of Alexander Pope what was right -- that in Holmes' hands history also might undermine law.  History could show us why we had arrived at one particular outcome, which might not actually be the one most fitted to the current stage in the United States.  History moved from supporter of the status quo to underminer of it.  Allen has opened my eyes that aesthetics had something to do with this, too.  The form of language and the beauty of it helped to undermine the static vision of law.  In this, Holmes was joined by a great many other people -- including those on the front lines of civil rights -- who collectively said that the law was out of touch with reality.  I want to see if I can expand my remarks about historical jurisprudence some to take account of Mendenhall.

Soon I'll be talking about what literature on southern law a Nazi lawyer cited.  You'll be surprised by at least some of them.

Miguel Méndez, 1943-2017

I'm saddened to have learned (here, and earlier reported on Above the Law) that Miguel Méndez, Adelbert H. Sweet Professor of Law Emeritus, passed away last week.  Miguel was an alumnus of the Monterey County Public Defender's Office, California Rural Legal Assistance, and the Mexican-American Legal Defense and Education Fund.  He was a seasoned trial lawyer who joined Stanford's law faculty at a time when few elite law professors had this kind of experience.  He was also Stanford's first Latino faculty member.  Although I never got to have a class with him, he was among the kindest and most generous law teachers I've ever known, patiently answering rudimentary questions about evidence and trial procedure when, as a student, I wandered into his office unnanounced because I'd heard he would be helpful and, years later, offering valuable strategic advice in a challenging civil case when I was struggling with how to approach a difficult witness.

California Rural Legal Assistance, a sizeable legal aid program serving migrant and low-wage workers and families throughout most of California, is a longtime pro bono client of mine in ethics and regulatory matters; Miguel rose to deputy director of the organization, and his kindness and wisdom were legendary there.

He was 74, and will be widely missed.  Requiescat in pace.

--Bernie

Billion Dollar Blind Spot: How the U.S. Tax Code's Small Business Expenditures Impact Women Business Owners

Caroline Bruckner, an Executive in Residence, Department of Accounting and Taxation at the Kogood School of Business (American University), has published a report entitled Billion Dollar Blind Spot: How the U.S. Tax Code's Small Business Expenditures Impact Women Business Owners. It is available for download here.

The major conclusions of the report include:

• Most women business owners are small businesses operating in service industries and are legally organized as something other than a C Corporation.
• Three of the four small business tax expenditures studied are so limited in design that they either explicitly exclude services firms, and by extension, most women-owned firms; or effectively bypass women-owned firms that are not incorporated or are service firms with few capital-intensive equipment investments.
• When women-owned firms can take advantage of tax breaks, they do.
• There is little or no tax research on how women business owners use the tax code.

The report further notes that the tax laws do not openly discriminate against women-owned businesses, but there is still a need for more research and data in this area.  Specifically, the report suggests:

• The Congressional tax-writing committees should hold hearings to consider the impact of Code’s small business tax expenditures on women-owned small businesses.
• The Congressional tax-writing committees should charge the JCT with preparing a formal estimate of the taxpayer cost and distribution by industry of the Code’s small business tax expenditures claimed by women business owners.
• The federal Commission on Evidenced-Based Policy Making should develop assessments and strategies to inform Congress with evidence-based analysis on tax expenditures’ impact on women business owners and other groups.
• The Administration should move quickly to nominate a nonpartisan Director of the Census Bureau, and Congress should prioritize considering this nomination in order to move forward with executing the 2017 Census survey of business ownership as well as the annual survey of entrepreneurs.

Having more information would be helpful for scholars and policy-makers.

Introducing the Equality Law Scholars’ Forum & Call for Proposals

From the mailbox:

In the spirit of academic engagement and mentoring in the area of Equality Law, we (Tristin Green, University of San Francisco; Angela Onwuachi-Willig, UC Berkeley; and Leticia Saucedo, UC Davis) introduce the Equality Law Scholars’ Forum to be held this Fall.  This Scholars’ Forum seeks to provide junior scholars with commentary and critique and to provide scholars at all career stages the opportunity to engage with new scholarly currents and ideas.  We hope to bring together scholars with varied perspectives (e.g., critical race theory, class critical theory, feminist legal theory, law and economics, law and society) across fields (e.g., criminal system, education, employment, family, health, immigration, property, tax) and with work relevant to many diverse identities (e.g., age, class, disability, national origin, race, sex, sexuality) to build bridges and to generate new ideas in the area of Equality Law.  

We will select three to four relatively junior scholars (untenured, newly tenured, or prospective professors) to present papers from proposals submitted in response to this Call for Proposals. In so doing, we will select papers that cover a broad range of topics within the area of Equality Law.  Leading senior scholars will provide commentary on each of the featured papers in an intimate and collegial setting.  The Equality Law Scholars’ Forum will pay transportation and accommodation expenses for participants and will host a dinner on Friday evening.  

This year’s Forum will be held on November 17, 2017 at Berkeley Law School.

Junior scholars are invited to submit abstracts of proposed papers, 3-5 pages in length, by July 14, 2017.

Full drafts must be available for circulation to participants by October 27, 2017.

Proposals should be submitted to: Tristin Green, USF School of Law, tgreen4@usfca.edu.  Electronic submissions via email are preferred.

National Conference of Constitutional Law Scholars CFP

The Rehnquist Center is pleased to announce the inaugural National Conference of Constitutional Law Scholars. The conference will be held at the Westward Look Resort in Tucson, Arizona, on March 16-17, 2018. Its goal is to create a vibrant and useful forum for constitutional scholars to gather and exchange ideas each year.

Adrian Vermeule will deliver a keynote address. Distinguished commentators for 2018 include:

• Jamal Greene

• Aziz Huq

• Pamela Karlan

• Frank Michelman

• Cristina Rodriguez

• Reva Siegel

• Robin West

All constitutional law scholars are invited to attend. Those wishing to present a paper for discussion should submit a 1- to 2-page abstract by September 15, 2017. All constitutional law topics are welcome, and both emerging and established scholars are strongly encouraged to submit. Selected authors will be notified by October 15, 2017. Selected papers will be presented in small panel sessions, organized by subject, with commentary by a distinguished senior scholar.

 

Please send all submissions or related questions to Andrew Coan (acoan@email.arizona.edu). For logistical questions or to register for the conference, please contact Bernadette Wilkinson (bwilkins@email.arizona.edu). The Rehnquist Center will provide meals for all registered conference participants. Participants must cover travel and lodging costs. Hotel information will be provided as the date approaches.

Conference Organizers

Andrew Coan, Arizona

David Schwartz, Wisconsin

Brad Snyder, Georgetown

The Rehnquist Center

The William H. Rehnquist Center on the Constitutional Structures of Government was established in 2006 at the University of Arizona James E. Rogers College of Law. The non-partisan center honors the legacy of Chief Justice Rehnquist by encouraging public understanding of the structural constitutional themes that were integral to his jurisprudence: the separation of powers among the three branches of the federal government, the balance of powers between the federal and state governments, and among sovereigns more generally, and judicial independence.

Politics and the English Editor

The New Rambler Review has posted my long-form review of Harold Evans's book Do I Make Myself Clear? Why Writing Well Matters.  As many readers know, Evans in a near-legendary author and editor, having led both the Sunday Times in the U.K. and Random House in the U.S.  He was knighted in 2004 for his contributions to British journalism, and he is currently an editor-at-large for Reuters.  And he has also written two best-sellers.  Nonetheless, I found this book lacking.  Evans's advice about writing is well-worn and familiar, and he greatly exaggerates to impact of poor writing in the real world.  Here are a couple of teasers from my review:

The title of Harold Evans’s new book asks a question, but it is not the right one.  The book is Do I Make Myself Clear? Why Writing Well Matters, and its promotional material promises to offer “timeless tools for making meaning clear.”  Evans’s bibliography lists over fifty writing guides, plus many more usage and grammar books, all of which prompt a more meaningful inquiry.  With so much advice already available – from luminaries such as George Orwell, William F. Buckley, Bryan Garner, Robert Graves, Jacques Barzun, Stephen King, William Safire, Helen Sword, and William Zinsser – do we really need another book on style and composition? Granting Evans’s near legendary status as both an author and an editor, does he actually have anything new and helpful to say?  Alas, he does not.

And

There is an undeniable relationship between bad writing and bad politics, as George Orwell first observed in his 1946 essay “Politics and the English Language.” Evans’s final section on “Consequences” takes Orwell’s generalization much further, arguing that poor writing leads to direct harm in the real world. Here he takes aim at soft targets, pointing out the turgid bafflements of legal, bureaucratic, and corporate writing.  But is it really the case, as Evans posits, that better drafting could actually make a measurable difference in peoples’ lives? His examples do not bear him out.

You can read the entire review here.

My favorite one-liner

As we enter the scholarship-producing season, I am thinking about my favorite one-liner of the past few years: "In science an important step forward can be finding a question that can be answered with the data at hand."  Oddly, perhaps, this is from Adam Frank's New York Times' op-ed, "Yes, there have been aliens."

Naturopaths in Oregon

The outstanding website Science Based Medicine has this article about a bill recently passed by both houses of the Oregon legislature that would give naturopaths (NDs) virtually the same legal status as MDs, despite the absence of extensive clinical training and residencies (and science). The bill, which is now on the governor's desk, would allow naturopaths to provide a wide variety of services and treatments that are currently reserved to MDs and DOs, including:

Withdraw medical treatment, hydration and nutrition from a patient when the ND has determined that the patient has a terminal condition and would not likely benefit from further medical care or is at an advanced stage of illness and unlikely to improve, even in the absence of a patient’s having previously expressed his wishes on these issues. OANP’s summary of SB 856’s provisions for legislators and the public completely misrepresents the sweeping nature of this change by describing it as “Adds NDs to providers who can sign Advanced Directives.

Order physical or chemical restraint, or psychotropic medication, for elderly and disabled persons.

Sign Physicians Orders for Life Sustaining Treatment (POLST). A POLST is a standing medical order directing or withholding specific medical treatment (for example, an order not to resuscitate the patient) designed for seriously ill or frail patients whose health care professional believes may die within a year. POLSTs should be executed by the health care professional only after a discussion with the patient concerning his wishes for end-of-life care.

Determine that a patient is not competent to give informed consent to mental health treatment, as well as consent to that treatment for the patient, including convulsive treatment, psychoactive medication, psychosurgery, and retention in a mental health care facility.

Conduct medical examinations of sexual assault and child abuse victims; allows courts to order treatment of child abuse victim by an ND.

Review state correctional facility medical plans, provide medical care to prisoners and juvenile detainees, train non-medical facility personnel in administering medications and order special diets for prisoners. (Considering the whacko diets favored by naturopaths, this one could prove a real challenge to Oregon’s budget.)

The Science Based Medicine article, written by Florida attorney Jann Bellamy, lists sixteen other services that the new statute would open to NDs.  

Nineteen states give some form of medical recognition to naturopaths, but no other state has gone as far as Oregon, barring a veto from the governor.

Response to David Bernstein

David Bernstein, one of the more prominent libertarian legal scholars, responded to my series of posts on originalism's intellectual history. He wrote:

As an identified "fellow traveler", and someone with a deep interest in the history of various ideological movements within constitutional law, this post paints with far too broad a brush. Just for example, Bork was a self-identified libertarian through the late 1960s with little expressed interest in constitutional law. His views, by his undisputed account, were influenced by Alex Bickel, a liberal who was gradually turning conservative (or at least anti-judicial review) on constitutional issues thanks to what he saw as the excesses of the Warren Court in the 1960s. Neither Bickel's evolution nor Bork's took place in response to Brown, and indeed their mutual evolution on constitutional law took place over a decade later. So what does this have to do with Brown? Note the Bork's first big originalist piece was on freedom of speech, not equal protection. It's also worth noting the the most prominent proto-originalist of the day, Hugo Black, joined the unanimous opinion in Brown. So I think it's well worth studying the influence that the segregationist right had on the development of originalism, but it's far too simplistic to say that Bork's originalism, much less the originalism of his successors, was a direct descendant of segregationist legal theories.

In response (and this would usually be in the comments section, but for my technical struggles with the TypePad comments section): 

Professor Bernstein:

Thanks for your comment. I think there are a couple things worth sussing out here:

1. I cited your work as an example of why originalists' invocation of the genetic fallacy vis-a-vis the temporally distant and diffuse Progressive Era racism was unpersuasive. I expand on that point here.

2. Bork may have "self-identified" as a libertarian, but the evidence suggests (strongly) that he was a movement conservative. He served as an adviser to the Goldwater campaign in 1964, and, importantly, his proto-originalist 1971 article argued that the First Amendment protected political speech, not obscenity/pornography. This is not libertarian, but standard issue movement conservative thinking circa 1971.

3. Black wasn't a proto-originalist, at least not if the term is to have any real meaning. When originalists recount their own history, they start with Bork and Berger, not Black. Moreover, setting to the side Black's vote in Brown, more salient to this discussion was his increasing willingness to vote against Brennan et al. in the 1960s civil rights cases.

4. Your overall argument makes the same mistake as O'Neill's history of originalism: a myopic focus on the law reviews and books by law professors as if these can be divorced from the larger political ecosystem. What is more, I never claimed that Bork's thinking was a "direct descendant" of segregationist rhetoric and thinking. The claim was more modest: that proto-originalism, constitutional conservatism, and movement conservatism all showed common narratives and through lines that should be explored further (and something originalists have to date ignored).

Thanks again for your comment, and I agree this is an important discussion.

Best,

Calvin

Occam's BDS Razor

The unsupported assumptions about the situation at Fresno State have rapidly multiplied, as Jewish Voice for Peace has now circulated a letter stating that the search for the Edward Said Professorship was “cancelled with the pretext of procedural concerns, but in fact in response to pressures from Israel advocacy groups.” As I have explained (here and here), there is no actual evidence for this claim, which is evidently based, at most, on a few offhand comments made to Prof. Vida Samiian by other Fresno State faculty members.  The Fresno State provost has flatly denied any outside pressure, and explained the procedural reasons for stopping the search.  Nonetheless, the JVP letter alleges that “Israel advocacy groups launched a campaign to cancel the search altogether” and “it is deeply alarming that academic hiring decisions are being influenced by outside organizations with discriminatory agendas.”

Again, there is no record of any “Israel advocacy group” interfering with the Said Professorship search.  Even Prof. Samiian only assumed that the administration had been pressured into stopping the search, while providing no details or examples.  Her claims of "harassment" turn out to be nothing more than earlier disagreements about the academic boycott of Israel (which she strongly supports) that had nothing to do with the Said Chair.

Nonetheless, the JVP letter has attracted over 500 signatories, none of whom can possibly know what has actually happened at Fresno State.  Based on no investigation – and without even a single detail – they are evidently willing to believe any accusation so long as it involves Israel.

It is possible that there was outside pressure at Fresno State; such things have happened before. It is even possible that Provost Lynette Zelezny has lied about her motives for canceling the search, although the ordinary presumption is that people are telling the truth. A straightforward application of Occam’s Razor, therefore, would be open to Zelezny’s explanation that the search was canceled because “no department had actually approved the search, and the search committee was not formed by an election of the department members as is required by our policies.” At the very least, it would counsel waiting for evidence before making inflammatory charges of “national origin discrimination.”

Occam’s BDS Razor, however, reflexively blames Israel whenever possible; no proof or investigation needed. 

Master of Science in Law - The Future of Legal Education?

The University of Maryland Francis King Carey School of Law now offers a Master of Science in Law aimed at non-lawyers.  The website states that the "degree [is] for professionals who want to know more about the intersection of law and regulation with the technical, scientific or administrative demands of their chosen fields."  The subject matter include Environmental Law, Health Care Law, and Patent Law.  There are also online programs in Cybersecurity Law and Homeland Security and Crisis Management Law.  

The MSL is a degree in law for professionals who do not wish to practice law, but have a job where a knowledge of the law is useful.  For example, there are quasi-legal positions such as Contracting Officer for the U.S. Government where a background in the cognizant statutes and regulations would be beneficial.  The same could be said for those in the securities industry.  Other law schools based in cities with a specialized workforce, like those discussed above, may also wish to begin offering Masters degrees in Law.  This could be a way to counter the decline in law school enrollment, which is currently flat.

A suggestion I have for UMD specifically is to consider offering an MSL in Dispute Resolution.  The Law School has a renowned Center for Dispute Resolution.  The field of alternative dispute resolution (ADR)  often has non-legal professionals practicing in a legal environment.  Advanced knowledge of ADR techniques, and some of the substantive areas of law would be invaluable in some practice areas.  For example, a combined MSL in Environmental Law and Dispute Resolution could provide ADR neutrals for environmental conflict resolution.  

Originalism, the Colorblind Constitution, and Some Preliminary Thoughts on Where the Debate Should Go From Here

In an earlier post titled "Was Originalism Born in Sin?," I sketched out some evidence suggesting Bork's proto-originalism, as found in his oft-cited 1971 Indiana Law Journal article, was informed by anti-Brown narratives, especially those focusing on the "original intent" of the Fourteenth Amendment’s framers, and the simultaneous disparagement of social science. These narratives were initially voiced by, among others, virulently racist Mississippi Senator James Eastland, massive resistance columnist James Kilpatrick, and Barry Goldwater's ghostwritten The Conscience of a Conservative (penned by National Review editor L. Brent Bozell). The upshot was that originalism's intellectual history, given that it is an important idea, is worth studying and it is a history originalists should grapple with (but largely have not).

One interesting critique of my argument, explicitly made by Steven Sachs, and implicitly by Rick Garnett, was that the genetic fallacy posed problems vis-a-vis any real bite to my argument: that is, the current content of originalism cannot or should not be impugned by its unsavory origins. I am not convinced by this critique, and set forth some reasons why here. Indeed, it seems lost on originalists and their fellow ideological travelers that their critiques of the Progressive Era and “living constitutionalism” highlight the racist views held by many of these reformers at that time (with the odd implication that originalists and libertarians are the heirs to racial liberalism today).  

At all events, it remains the case that no one has disputed the through lines from the segregationist/states' rights rhetoric to Bork's academic argument for original and framers' intent. Furthermore, another widely-held originalist argument, the colorblind constitution, is not subject to the genetic fallacy objection. Political scientists have demonstrated that the package of ideas making up colorblind constitutionalism, a view held by many originalists today, were repackaged by the very same racial conservatives who had previously spoken out against desegregation. It is also another instance of originalists failing to grapple with their own history.

A short delineation of this transformation and why it has significant implications for the current theoretical project of originalism follows below.

GW Law Review Published an Article by a Nazi?

 Yes, a genuine Nazi. And therein lies a story.  

I have completed now my twenty third year in teaching, which because of some family health issues has been a tough one.  I promise I will get to the projects that I owe and am behind on, and believe me there are many.  As a way of  getting back to writing and my other obligations, I took a break and read James Whitman's fabulous new book Hitler's American Model.  It explores the Nazis' use of American precedents on race laws.  There's a lot to say about it; I'd like to focus here on the fact that Whitman's book is much, much more about how Nazis thought about the US than about what the law in the US was, or whether there was some causation or "transplantation" from the southern US states to the Nazis.  The Nazis were plenty capable of coming up with vicious race laws all by themselves -- but this is largely the story of how Nazi lawyers interpreted and spoke about the US' history of conquering Native Americans and then segregating African Americans.  (There was, of course, criticism by the Nazis of the breakdown of the strict line separating the races in the US.)  If this had been written in the 1950s, at the height of the myth and symbol school of American studies, it would have been called something like "The image of southern US law in the Nazi legal mind."  Let me say to legal historians, you really need  to read this book, soon.  As I told a colleague this afternoon, this is the best book I've read in legal history in years, in large part I think because it seems so fresh.  I've read books that are deeper but none in recent years that seem so original and iconoclastic.

I've been obsessed with the Nazis of late (probably like a lot of readers).  Though I guess my interest in this goes back to the day as as a graduate student when I watched a bunch of Nazi era films at the Harvard film archives.  How, I continue to wonder, did the person who wrote and starred in Das Blaue Licht become a leading filmmaker for the Nazis?  I mean, my god, isn't that all about unjust persecution?  Did Leni Riefenstahl ever consider in her later years what her younger self (who wrote about the persecution of the witch) would have thought of the Nazis?  Maybe not.  I guess that's how self-delusion  works.

To return to my story, Whitman talks about a lot of things that are of interest to American legal historians, especially how the Nazis had a form of legal realism.  This will cause me to rewrite at least somewhat my essay on Karl Llewellyn's lost work against lynching.  But one of the more astonishing insights of many in Whitman's book is that Heinrich Krieger, who published a major study of the American race laws in 1936 also published an article, on Native Americans in the George Washington University Law Review in 1935.  Holy cow.  (And here I am thinking that the defense of the Confederacy and the constitutional vision of the pre-Civil War south in the Yale Law Journal in 1921 was bad).  To be fair, Krieger's article is really about how the Constitution does not quite cover the category of dependent citizenship that had been assigned to Native Americans.  If you didn't know Krieger was a Nazi lawyer, you wouldn't get that sense from this article, with maybe a few asides (such as a remark about the degeneration of Native Americans at 284).  Though there are some other places where he seems to doubt the wisdom of recognizing that Native Americans have the same rights as other citizens. (at 307-08.)  (And if you're interested in reading Krieger's book I've scanned it in here.)

I'm going to spend some time thinking all of this through, though I'm really slow at reading German these days, so this is going to be a long-term project for me.  What interests me most about this book is the legal theory and how American law looks through the eyes of the Nazis.  And how the Nazi perspective aligns -- or not -- with how we now think about the US' long history with race.  One comment stuck with me from Whitman -- that the Nazis complained that the Americans tried to hide some of their grosser race laws.