The Faculty Lounge

More Adventures In Ethics: Did David Boies Cross Any Ethical Lines In His Work For Harvey Weinstein?

Another legal ethics issue in the headlines!  This one has everything—a rich and powerful sexual predator, secret agents, the New York Times and, most exhilarating of all, nuanced conflict of interest, confidentiality, and ethical supervision questions.  I am agog.

Some background.  At this point, we’ve all heard a great deal of horrific stuff about Harvey Weinstein, the prominent film producer to whom dozens of women have now ascribed countless acts of sexual harassment, sexual assault, and outright rape over decades.  Weinstein had a broad armamentarium he reportedly deployed to intimidate and silence his victims, from power and influence in the entertainment industry to teams of skilled and well-connected lawyers who would litigate or threaten legal action, and then document tightly drawn settlements buying peace and a whole lot of quiet.  Weinstein’s tactics worked:  Despite industry winks and whispers, the dam he built held back most of the accumulating waves of accusation for some thirty years, until the New York Times and The New Yorker broke the story last month, and years of pent-up bilge flooded out to drown Weinstein’s public image and career.

Now Ronan Farrow’s continuing investigative coverage in The New Yorker (Times story here) reports that another of Weinstein’s tools of coercion was high-powered private investigators.  These investigators were paid large sums to ascertain potential accusers’ intentions, catch them in infelicities or inconsistencies, and just plain dig up dirt that could be used to discredit them if they came forward.  Sometimes the investigators plied their trade by lying to their targets about who they were and what they were doing, and ingratiating themselves to reap or record unguarded emails or statements.  Kroll International and smaller organizations called Black Cube and PSOPS were agencies Weinstein and his lawyers used on more than one occasion.

Superstar litigator David Boies now finds himself sweating uncomfortably in a spotlight he shares with Weinstein, having been what law.com calls his “longtime legal adviser.”  Exactly what Boies and his firm have done over the years for Weinstein is not clear.  The contract by which the Boies Firm engaged Black Cube for Weinstein’s benefit earlier this year (available on The New Yorker website here) specifically states that it supersedes a 2014 written agreement between Black Cube and the Boies Firm, “acting on behalf of the [same] Client,” so it appears that the Boies Firm has engaged Black Cube for Weinstein’s benefit before.  Whether that prior engagement concerned other predations on Weinstein’s part is uncertain, but Boies reportedly donated $10,000 to Manhattan DA Cyrus Vance’s re-election campaign in 2015 shortly after Vance decided not to prosecute Weinstein on sexual assault charges then being asserted by an Italian model.  (Both Boies and Vance deny any connection between the two events.) 

More recently, as the turbid waters of accusation spread, Boies represented Weinstein in negotiations to keep his job and board seat at The Weinstein Company.  (The Board removed him.)   At the time (last month), Boies publicly described the scope of his engagement, asserting that he would not be representing Weinstein in any litigation against The Weinstein Company (which he also represented), or assisting celebrity trial lawyer Charles Harder (who represented Hulk Hogan in the invasion of privacy case that broke Gawker) in a $50 million libel case Weinstein was threatening against the New York Times for reporting the first wave of harassment and assault accusations.  (That case was never filed.)  Nor, he added, would he be involved in addressing “the subject matter of various news stories,” apparently referring to articles published after the Times’ ground-breaking story in early October.

In retrospect, that last qualification appears carefully formulated.  For as the Times is now reporting (here), in July of this year Boies’ firm had retained Black Cube on Weinstein’s behalf, hiring them for what the contract Boies signed stated were the “primary objectives” of providing “intelligence which will help the client’s efforts to completely stop the publication of a new negative article in a leading NY Newspaper” (which Farrow identifies as the Times) and obtaining content from a book that was to include “harmful, negative information on and about the client” (which Farrow identifies as being written by actress Rose McGowan, who has accused Weinstein of raping her).  Even more surprising, Boies and his firm were representing the Times in another, unrelated matter at the time.

Upon learning of the Boies Firm’s role, the Times quickly and summarily terminated them, issuing a strikingly strong statement accusing the firm of “secretly work[ing] to stop our reporting on Harvey Weinstein at the same time as the firm’s lawyers were representing us in other matters.”  The Times asserted that it “considered this intolerable conduct, a grave betrayal of trust, and a breach of the basic professional standards that all lawyers are required to observe.”  It vowed to “pursue appropriate remedies.”  Ouch.

It’s not hard to see how the Times would consider secret machinations by the paper’s own outside counsel to “stop our reporting” on a front-page story “intolerable conduct” and a “grave betrayal of trust.”  But is it, as the Times also asserted, “a breach of the basic professional standards that all lawyers are required to observe”?  Of course, it doesn’t have to have been a violation of the Rules of Professional Conduct to be intolerably disloyal to the Times.  Certainly it was knuckleheaded client relations with a marquee client, the optics are hideous, and in all events the paper was free to jettison the Boies Firm whether or not it violated any formal Rule or legal standard.  But did it?

That turns out to be a harder question than you might think.  I’ll explain why after the jump. 

Winner of 2016 Penny Pether Award + Call for Nominations for 2017 Award

The organizers of the Penny Pether Law & Language Scholarship Award for 2016 have issued these announcements:

2016 Winner

The winner of the Penny Pether Law & Language Scholarship Award for 2016 is Stephen Paskey, Telling Refugee Stories: Trauma, Credibility, and Adversarial Adjudication of Claims for Asylum, 56 Santa Clara L. Rev. 457 (2016). The committee reviewed 25 nominated articles, and we struggled to identify a winner due to the high quality and strong diversity in the scholarship. We congratulate Professor Paskey, and we thank all the nominees for participating.

Call for Nominations: The Penny Pether Law & Language Scholarship Award 2017

A passionate advocate for interdisciplinary scholarship in law, literature, and language, Penelope J. Pether (1957-2013) was Professor of Law at Villanova University School of Law and former Professor of Law and Director of Legal Rhetoric at the American University Washington College of Law. Her own scholarship focused not only on law, literature, and language, but also on constitutional and comparative constitutional law; legal theory, including constitutional theory; common law legal institutions, judging practices, and professional subject formation.

Beginning in November 2013, the Penny Pether Award for Law & Language Scholarship has been given annually to an article or essay published during the preceding year (September 1 to September 1) that exemplifies Penny’s commitment to law and language scholarship and pedagogy.

The Committee selecting award recipients from among the articles and essays nominated will look for scholarship that not only embodies Penny’s passion and spirit but also has some or all of the following characteristics:

1. “[S]cholarship concerning itself with the unique or distinctive insights that might emerge from interdisciplinary inquiries into ‘law’ grounded in the work of influential theorists of language and discourse.”

2. Scholarship that “attempts to think through the relations among subject formation, language, and law.”

3. Scholarship that provides “accounts of—and linguistic interventions in—acute and yet abiding crises in law, its institutions and discourses.”

4. Scholarship and pedagogy, including work addressing injustices in legal-academic institutions and practices, that is “[c]arefully theorized and situated, insisting on engaging politics and law, [and that] charts ways for law and its subjects to use power, do justice.”

More explanations and descriptions of these characteristics can be found in Penny’s chapter from which these quotations are drawn: Language, in Law and the Humanities: An Introduction (Austin Sarat et al. eds., Cambridge U. Press 2010).

Nominations should be sent by January 8, 2018, to J. Amy Dillard at [email protected]. You are free to nominate more than one work and to nominate work you’ve written. Please provide a citation and a pdf for each work you nominate.

We are shifting our definition of the preceding year to simply our process. But in this year of transition, for the 2017 prize, we will consider any work published between September 1, 2016 and December 31, 2017. In the future, we will work with a calendar year.

The Selection Committee includes Linda Berger, David Caudill, Amy Dillard, Bruce Hay, Ian Gallacher, Melissa Marlow, Jeremy Mullem, Nancy Modesitt, Stephen Paskey, and Terrill Pollman.

Members of the Selection Committee are not eligible for the award.

UNT Stumbles on First Bar Exam

The University of North Texas opened in the fall of 2014, enrolling 153 students.   In the fall of 2015, in their second year of operation, the school applied for provisional accreditation.  The ABA conducted a site visit in February 2016.  Initially, the accreditation committee recommended denying provisional accreditation.  One of the reasons the committee cited was the poor academic qualifications of the admitted students.  Indeed, the July 11, 2016 letter to the school outlining the recommendation stated that the “Law School is admitting applicants that do not appear capable of satisfactorily completing its program of legal education and being admitted to the bar.”  The LSAT and grade profile of the inaugural class (entering 2014) was very weak, especially at the bottom quartile:  151/147/143 and 3.32/3.05/2.69.  Troublingly, these credentials declined slightly in 2015 to 150/146/143 and 3.36/3.04/2.66 even as the enrollment shrank to 137.  Under great pressure and amid claims that UNT was a new kind of law school with innovative programs designed to ensure that students of modest ability would succeed at greater rates than other law schools, the ABA caved in and granted provisional accreditation to UNT in June 2017, enabling its first class of graduates to take the bar in Texas and other states in July 2017.

The results of the July 2017 bar exam have just been released by the Texas Board of Bar Examiners and UNT’s results demonstrate that the concerns the accreditation committee expressed back in 2016 were right on the money.   (But way to go Baylor - 93%!)  UNT finished dead last out of the 10 law schools in Texas, with a first-time pass rate of 59.3%, an inauspicious start to say the least. The school was 21.6% below the state average for Texas ABA schools (80.95%), and 19.8% below the first-time average for all ABA graduates (79.1%).   In fact, only 35 of 59 UNT takers passed, which raises the question of what happened to the other 94 students who started in the fall of 2014?  UPDATE - I found this press release from UNT that says they had 74 graduates, so apparently less than half of those who started at UNT graduated on time.  To put UNT’s bar pass rate in context, UNT was over 4% below the 9^th place school, Texas Southern.  Texas Southern was recently ordered to take remedial measures after the Accreditation Committee found that the law school was violating Standard 501 on admissions (among other standards).   Texas Southern’s entering class of 2014 had similar (actually, slightly worse) credentials as UNT, especially at the bottom quartile: 148/145/143 and 3.34/3.02/3.72.  Of 166 Texas Southern students who started in the fall of 2014, 110 took the Texas Bar in July and 70 passed, for a 63.64% rate.   So, whatever its faults, Texas Southern got more of its high-risk students to graduate and pass the bar than UNT did this summer.   Based on UNT’s performance, there is no evidence that UNT’s specially designed curriculum was particularly effective at preparing students for the bar exam.  With the class of 2018 having even weaker credentials than their inaugural class, UNT will need to dramatically step up its bar prep game if it hopes to improve its bar pass results next summer and get into compliance with ABA Standard 316.  

Many schools have tried, and failed, to find a magic formula to get students with 144 and below LSATs to pass the bar at even marginally acceptable rates.  The truth is that few students who perform at this level on the LSAT are likely to thrive in law school.  The safer bet to ensure a pass rate within 15% of the state average would be to raise the bottom quartile to 147, and take students with (slightly) lower LSATs only if they had significantly better than average college grades.  UNT did raise admission standards very slightly in 2016 to 151/147/144 and 3.39/3.05/2.72, but this means that at least a quarter of its students are still at extremely high risk of failure (144 and below), and many more are at very high risk.  (No word on the credentials of this fall's entering class.  If anyone knows, please share.) UNT should not receive full accreditation until it raises admission standards further or demonstrates that it can get a high percentage of high-risk students to complete their J.D. and pass the bar.   Although UNT is to be commended for keeping the cost of law school as low as possible, if over 40% of its graduates fail the bar, it's no bargain. 

Hiring Announcement: Dayton

From an email message which I recently received:

The University of Dayton School of Law invites applications for one Assistant Professor of Academic Success. This is a non-tenure track position with an initial appointment of one year and the possibility of renewal for long-term (three or five-year) appointments after three years of satisfactory service.

The focus of the Academic Success Program at the School of Law is to help students develop the skills necessary for law school success and first-time bar passage. Responsibilities of the Assistant Professor of Academic Success will include:

• teaching academic success courses related to legal reasoning, critical reading, exam-writing, and bar examination preparation;
• providing academic advising and professional development counseling for students;
• supervising and evaluating the Law School’s Learning Communities program, including designing student-led sessions and working with upper-level Dean’s Fellows;
• participating in the larger community for academic success professionals through regular attendance or presentations at conferences and other relevant endeavors to support the faculty member’s professional development;
• delivering and assessing a comprehensive program of academic support from orientation until graduation.

Applicants must have a J.D. degree from and a record of high academic achievement at an ABA-accredited law school and recent experience in legal education or law teaching in an American law school, particularly in designing and teaching academic success courses or those related to legal reasoning, critical reading, exam-writing, and/or bar examination preparation. Applicants must also articulate a commitment to academic support, including implementing the best models and practices available to encourage student success and utilizing recent developments in pedagogy in American law schools.

We prefer candidates with:

• Demonstrate a commitment to academic support, including implementing best models and practices available to encourage student success and utilizing recent developments in pedagogy in American law schools;
• Demonstrate successful experience providing effective academic advising and professional development counseling for students;
• Recent successful experience developing and administering structured intervention and counseling programs for at-risk students;
• Recent successful program administration, including delivering and assessing all aspects of a program, especially if the experience relates to academic support;
• Demonstrate successful experience compiling and analyzing data for statistical analysis, including familiarity with the most commonly used statistical software programs;
• Excellent written and oral communication skills, including effective presentation skills;
• Effective interpersonal communication skills with various constituencies;
• Ability to work collaboratively with colleagues;
• Demonstrate successful experience mentoring and working with students from diverse backgrounds; and
• Expressed willingness to engage with Catholic and Marianist educational values.

The University of Dayton, founded in 1850 by the Society of Mary, is a top ten Catholic research university.  The University seeks outstanding, diverse faculty and staff who value its mission and share its commitment to academic excellence in teaching, research and artistic creativity, the development of the whole person, and leadership and service in the local and global community.

To attain its Catholic and Marianist mission, the University is committed to the principles of diversity, inclusion and affirmative action and to equal opportunity policies and practices.  As an Affirmative Action and Equal Opportunity Employer, we will not discriminate against minorities, females, protected veterans, individuals with disabilities, or on the basis of sexual orientation or gender identity.

Applications will be accepted until November 21, 2017. To be considered as a candidate for this position, you must apply online at: http://jobs.udayton.edu/postings/24704  Cover letter and CV should be submitted electronically on the website at the time of application. The cover letter should address the applicant’s ability to meet the minimum and preferred qualifications. For more information about the School of Law or the Academic Support Program, please visit our website at http://www.udayton.edu/law or contact the chair of the hiring committee, Professor Victoria VanZandt, University of Dayton School of Law, 300 College Park, Dayton, Ohio 45469-2772.

Rutgers Law School Co-Dean Search Announcement

Rutgers Law School, the largest public law school in the northeast, invites applications and nominations for the position of Co-Dean of the Law School. The Co-Dean will have particular focus on the faculty, programs, and students at Rutgers University-Newark.

 

As the public law school of New Jersey, Rutgers Law is committed to access, academic and professional excellence, innovation, diversity, and the practice of law in the public interest. Rutgers Law-Newark in particular has a long-standing commitment to social justice. Rutgers Law-Newark’s 50-year old flagship Minority Student Program (MSP) has been a national model for the promotion of diversity and inclusion in legal education and in the Bar. Rutgers University-Newark enjoys one of the most diverse student bodies and faculties in the country. Rutgers Law-Newark also plays a significant role as an anchor institution and partner in advancing and empowering its surrounding community, including all of the greater New York metropolitan area. The law school supports a long-standing, comprehensive, and nationally award-winning clinical program with 11 entirely in-house clinics in Newark, expansive pro bono opportunities for students, and significant interdisciplinary Centers in Law and Metropolitan Equity; Corporate Law and Governance; Gender, Sexuality, Law and Policy; Security, Race and Rights; and the Health, Education, Advocacy and Law (HEAL) Collaborative – a service delivery partnership of the schools of Law, Medicine, and Social Work in Newark. Students take advantage of externships at federal and state agencies and significant involvement with the federal and state courts.

 

Working in close partnership with Rutgers Law-Camden Co-Dean Michael Cahill, the Rutgers Law-Newark Co-Dean will set the strategic direction for the law school overall, aligning priorities and future aspirations with the appropriate governance systems, fiscal resources, philanthropic goals, and support for students to achieve the ambitious vision for the Law School. Moreover, the Co-Dean will have particular responsibility for supporting the scholarship and research of the Newark Law faculty and will leverage the considerable resources of the Law School on behalf of Newark students and alumni, while supporting the mission to make the legal profession more accessible and more useful to all. The Newark Co-Dean will also play a leadership role at Rutgers University-Newark as a member of Chancellor Nancy Cantor’s leadership team, assisting her in realizing the goals of the Strategic Plan to make the university an “anchor institution” in the region. http://www.newark.rutgers.edu/sites/default/files/run_strategic_plan_-final.pdf

 

Rutgers Law was created in 2015 by merger into one entity of the University’s two previously autonomous schools, located in Newark and Camden. Approved by the ABA in 2015, the merged Rutgers Law has approximately 1,100 students who come from around the country and the world and over 20,000 alumni, largely located in the vibrant legal markets of both New York and Philadelphia. The Rutgers Law curriculum is accessible to students on both campuses through a sophisticated distance learning technology infrastructure.

 

The Co-Dean will be a collaborative and imaginative leader, committed to realizing the full potential of the merged entity. The Co-Dean will value the contributions of an engaged faculty and lead with transparency and a commitment to shared governance. The new leader should understand the challenges and opportunities in legal education and think creatively about the optimal form of legal education in the 21^st century. Experience in and commitment to attracting external funding from federal agencies, corporations, foundations, and donors to support the mission of the Law School will be important in the next Co-Dean’s success. Candidates should possess an earned J.D. or equivalent and a record of achievement that makes them suitable for appointment as a tenured full professor. 

 

Applications, nominations and inquiries may be directed in confidence to Werner Boel, Sheila Murphy and Robin Mamlet, the Witt/Kieffer consultants assisting Rutgers Law with this search, at [email protected] or through the desk of Richard Velazco at 678-302-1551. For full consideration, applicants should submit electronically a letter of interest, current resume, and a list of at least five references with contact information by November 27. Application review will begin on December 5, 2017 and will continue until the position is filled.   

 

It is university policy to provide equal employment opportunity to all its employees and applicants for employment regardless of their race, creed, color, national origin, age, ancestry, nationality, marital or domestic partnership or civil union status, sex, pregnancy, gender identity or expression, disability status, liability for military service, protected veteran status, affectional or sexual orientation, atypical cellular or blood trait, genetic information (including the refusal to submit to genetic testing), or any other category protected by law. As an institution, we value diversity of background and opinion, and prohibit discrimination or harassment on the basis of any legally protected class in the areas of hiring, recruitment, promotion, transfer, demotion, training, compensation, pay, fringe benefits, layoff, termination or any other terms and conditions of employment. For additional information please see the Non-Discrimination Statement at the following web address: http://uhr.rutgers.edu/non-discrimination-statement

 

 

 

Pitt Law Dean Search

The University of Pittsburgh School of Law is seeking a new dean. Full details available here.

 

Iowa Law Dean Search Announcement

From colleagues at Iowa:

DEAN, UNIVERSITY OF IOWA COLLEGE OF LAW

The University of Iowa invites applications and nominations for the position of N. William Hines Dean, College of Law.

The Opportunity

The University of Iowa seeks a bold and visionary dean to join a collegial and vibrant community of colleagues and students to lead the state’s nationally recognized law school. Ranked 20th overall and 6th among public law schools, the College of Law reaches across the nation and the world through its diverse student body, faculty, and alumni. Benefitting from a major fundraising campaign that surpassed goals, the next dean will be positioned to move the school forward by creating new and innovative opportunities to learn, teach, and serve.

As the senior academic officer, the dean provides strategic leadership by working within a system of shared governance that is fundamental to the core mission of the law school and wider University. In the role of senior financial officer, the dean manages and generates resources, oversees operations, and exercises authority over programs and budgets. As one of the University’s top leaders, the dean reports directly to the Executive Vice President and Provost and benefits from a strong working relationship with other deans at a first-rate University dedicated to excellent teaching, interdisciplinary research, and meaningful public engagement. 

To apply or to nominate a candidate

If you are interested in the deanship or have other questions, feel free to contact our search committee co-chairs: Daniel Clay, Dean of the College of Education ([email protected]) or Ann Laquer Estin, Aliber Family Chair, College of Law ([email protected]). Nominations may be submitted directly to the Dean Search Committee via our website: https://uiowa.edu/law- dean-search.

Candidates are invited to apply for the position by filling out an online application at the University of Iowa jobs website https://jobs.uiowa.edu/ . You must first create an account on the site, then refer to Requisition #71819 to access the application. All applications and nominations will be held in confidence in accordance with Iowa law.  For fullest consideration, applications before December 1, 2017 are encouraged.

Should Florida Coastal Be Sanctioned by the ABA?

Should Florida Coastal be Sanctioned by the ABA?

As I noted in my last post, Florida Coastal recently received a letter from the ABA with a finding of non-compliance for the following standards:

• Standard 301(a), with regard to the requirement that the Law School shall maintain a rigorous program of legal education that prepares its students, upon graduation, for admission to the bar and for effective, ethical and responsible participation as members of the legal profession;
• Standard 309(b), with regard to the requirement that the Law School shall provide academic support designed to afford students a reasonable opportunity to complete the program of legal education, graduate, and become members of the legal profession; and
• Standards 501(a) and 501(b) and Interpretation 501-1, with respect to the requirements that the Law School shall maintain sound admissions policies and practices consistent with the Standards, its mission, and the objectives of its program of legal education, and that the Law School shall not admit applicants who do not appear capable of satisfactorily completing its program of legal education and being admitted to the bar.

Florida Coastal was asked to submit a report by November 1, 2017, which it presumably has done, and has been summoned to appear before the Accreditation Committee at its March 15-17, 2018 meeting.

As I wrote about previously, Florida Coastal has seen its applications drop sharply and was forced to dramatically shrink its entering class this year in order to try to raise its admission standards to a level that would be likely to be found acceptable by the ABA.  Needless to say, the few students that have enrolled there, and the entire faculty and administration, are deeply concerned about this letter.  Such letters are often precursors to the ABA imposing sanctions on the school, including placing schools on probation.  Indeed, this is exactly what happened to Florida Coastal’s InfiLaw sister schools Charlotte School of Law (now out of business) and Arizona Summit (currently on probation and hanging on by a thread). 

Dean Scott DeVito has sought to reassure the students by sending them a letter addressing what he called “misconceptions” about the ABA letter, and he kindly sent me a copy, and has given me permission to publish it.

Understandably, Dean DeVito seeks to place the most positive spin on the letter, and he provides a number of “facts” to try to assuage the students concerns and place Florida Coastal in the most positive light possible.   His arguments presumably echo those made in Florida Coastal’s response to the ABA, in an attempt to convince the ABA that Florida Coastal is not currently out of compliance with ABA Standards and should not therefore be sanctioned.  Although he makes some interesting points, and his letter may be  factually accurate, the letter provides a misleading impression.  In this post, I address some of the key arguments advanced by Dean DeVito. 

Harvard Law School: Post-Graduate Academic Fellows

From an email message that I received in recent days:

The Harvard Law School Program on Corporate Governance and Financial Regulation is pleased to announce the availability of positions of Post-Graduate Academic Fellows in the areas of corporate governance and law and finance. Qualified candidates who are interested in working with the Program as Post-Graduate Academic Fellows may apply at any time and the start date is flexible.

 

Candidates should be interested in spending two to three years at Harvard Law School (longer periods may be possible). Candidates should have a J.D., LL.M., or S.J.D. from a U.S. law school, or a Ph.D. in economics, finance, or related areas by the time they commence their fellowship. Candidates still pursuing an S.J.D. or Ph.D. are eligible so long as they will have completed their program’s coursework requirements by the time they start. During the term of their appointment, Post-Graduate Academic Fellows work on research and corporate governance activities of the Program, depending on their skills, interests, and Program needs. Fellows may also work on their own research and publishing in preparation for a career in academia or policy research. Former Fellows of the Program now teach in leading law schools in the U.S. and abroad.

 

Interested candidates should submit a CV, transcripts, writing sample, list of references, and cover letter to the coordinator of the Program, Ms. Jordan Figueroa, at [email protected]. The cover letter should describe the candidate’s experience, reasons for seeking the position, career plans, and the kinds of projects and activities in which he or she would like to be involved at the Program. The position includes Harvard University benefits and a competitive fellowship salary.

Housing-related Tax Expenditures

As readers may recall, I am a great fan of Matthew Desmond’s Pulitzer Prize winning ethnography Evicted: Poverty and Profit in the American City.  In fact, I use Evicted as an ideal model in Interrogating Ethnography, where I say that it “set an exceptionally high – perhaps the highest possible – standard for the use of evidence in ethnography.”  Even so, I questioned the soundness of some of Desmond’s policy recommendations, particularly his proposal for a national system of housing vouchers, under which, according to Desmond, “Evictions would plummet and become rare occurrences. Homelessness would almost disappear.”  

Objections to such a voucher system are many:  too much new bureaucracy; unpredictable consequences for the rental housing and home sale markets; ineffectiveness for many of the people Desmond himself identified in Evicted, who included a drug addict and an armed robber.  And of course, the massive cost. 

Desmond did not address most of the drawbacks, but he did say something about where the funds could be found. “We have the money,” he explained.  We need only redirect it from “housing-related tax expenditures.”  In other words, Desmond suggested eliminating the mortgage interest and real estate tax deductions, so that the increased revenue could be used to provide rent subsidies for poor people.

My response was to observe the potentially damaging impact on existing home sales and new home construction, as home ownership would become more expensive by some unknowable amount. I wrote,

According to housing economists, an immediate change might well send home values tumbling as much as 20 percent, and might also suppress new construction, thereby throwing carpenters, brick layers, electricians, plasterers, and plumbers out of work.  Or maybe not. Economists are uncertain about the full effect on the housing market if tax preferences were eliminated or reduced, because there are so many moving parts to consider.

My point was not to endorse the current tax system, but only to note that sociologists such as Desmond, and most law professors, like me, step far beyond their expertise when making such recommendations: “My own background does not qualify me to assess the economic and other consequences of a national rent voucher program, but neither does Desmond’s,” I wrote.

It turns out, however, that Desmond was on to something.  The various “housing-related tax expenditures” do represent a huge source of untapped funds that could be redirected for other purposes. As it happens, the recently released GOP tax bill does just that. It limits individual deductions for both mortgage interest and real estate taxes, in order to partially pay for the elimination of the estate tax and a reduction in the corporate tax.

Desmond later wrote an article for the New York Times Magazine in which he criticized the home mortgage deduction as regressive, calling it "the engine of American inequality," so he might not be sorry to see it severely capped.  On the other hand, he no doubt thinks that it would be even more regressive to see savings go toward eliminating the estate tax, reducing the top marginal rate, and creating reduced-rate pass-through taxation for an untold number of closely held (but not necessarily small) businesses, including real estate partnerships.

We will have to wait and see whether Congress includes these provisions in the eventual tax revisions -- Megan McCardle explaines them here -- assuming they can manage to pass any tax reform at all.

I think we can be confident, however, that no sociologists will be consulted in drafting the ultimate bill.

Domino Effect (1928-2017)

 

 

 

 

And finally (note the correct pronunciation of "wind in the willow," which is especially difficult for native Russian speakers):

 [This post has been updated to correct a typo.]

Shame on Thomas Jefferson and Appalachian School of Law

I follow law school news pretty closely, especially when it comes to ABA actions with respect to bottom-feeder law schools, so it came as a great surprise to me learn from the TaxProf Blog this week that the ABA sent letters of noncompliance to Thomas Jefferson School of Law and Appalachian School of Law back on May 19, 2017. The letters state that the Accreditation Committee “concluded that the Law School is not in compliance with the following standards” and then listed Standard 301(a) (rigorous program of legal education that prepares students for admission to the bar), 501(a) and 501(b) (maintain sound admissions policies, don’t admit applicants who do not appear capable of completing law school and passing the bar) for both schools. In addition, Appalachian was cited for non-compliance with 502(d) (failing to maintain copies of admitted students official transcripts), and Thomas Jefferson was cited for noncompliance with 202 (a) and (b) for lack of sufficient financial resources and 309(b) for inadequate academic support.

Thomas Jefferson’s class of 2016 had a woeful 147/143/141 and 3.15/2.89/2.61 LSAT and UGPA profile and has had a sub 50% first-time bar pass rate in California continuously since 2013, including 31% on the July 2016 California bar, and 24% on the February 2017 bar.

Appalachian’s entering class credentials in 2016 were even more dismal, 147/143/140 and 3.10/2.79/2.60. Appalachian has had the lowest bar pass rate of Virginia’s eight law schools for several years. Their first-time pass rate on the Virginia bar pass rate in July 2013 was 59%, July 2014 – 40%, July 2015 – 63% and July 2016 - 33.33%, dead last each time. Their first-time pass rate improved dramatically on this summer’s Virginia bar to 76.92% - after the ABA letter was sent - but the numbers were so small (10 of 13 passed) that this achievement is unlikely to get the ABA off the school’s back.

CFP: The Return of Sanctuary Cities: The Muslim Ban, Hurricane Maria, and Everything In Between

The University of Detroit Mercy Law Review is pleased to announce its annual academic Symposium to be held on March 23, 2018 at University of Detroit Mercy School of Law.  It is titled: The Return of Sanctuary Cities: The Muslim Ban, Hurricane Maria, and Everything in Between.

This Symposium will contemplate a broad range of issues associated with Sanctuary Cities – presentations may focus on a specific era – past, present, or future – or may discuss a subject through the past, present and propose future solutions. Presentation topics could include, but are not limited to:

• The potential consequences of Trump’s immigration policies (including the Muslim Ban);
• The ability or inability of Trump and ICE to carry out these immigration policies;
• The constitutionality of Trump’s and ICE’s policies and actions;
• The efficacy of Program 287(g) and the potential consequences thereof;
• The impact of the Countering Violent Extremism (“CVE”) program;
• The efficacy of states’ Sanctuary legislation, like (pro) California and (anti) Texas;
• The ability or inability of cities and states to provide protection to undocumented citizens;
• The rights that undocumented citizens, particularly youth, should enjoy;
• Strategies and policies that cities and states can adopt to protect their undocumented citizens;
• The potential benefits or consequences for cities and states who adopt Sanctuary laws;
• The consequences for the changes made to the DACA program and possible solutions; and
• The position that SCOTUS would take on these issues, including existing legislation & DACA.

The Law Review invites interested individuals to submit an abstract for an opportunity to present at the Symposium. Those interested should send an abstract of 300-400 words that details their proposed topic and presentation. Included with the abstract should be the presenter’s name, contact information, and a copy of their resume/curriculum vitae.

Since the above list of topics is nonexhaustive, the Detroit Mercy Law Review encourages all interested parties to develop their own
topic to present at the Symposium. In addition, while submitting an article for publication is not required to present at the Symposium, the Law Review encourages all speakers who are selected to submit a piece for publication in the 2018-2019 edition of the Law Review.

The deadline for abstract submissions is December 3, 2017. Individuals selected to present at the Symposium will be contacted by December 10, 2017. Law Review editorial staff will contact those selected for publication in 2018 regarding details and deadlines for full-length publication. The submissions, and any questions regarding the Symposium or the abstract process, should be directed to Law Review Symposium Director, Jessica Gnitt at [email protected]. Please cc the Detroit Mercy Law Review Editor-in-Chief, Matthew Tapia, at [email protected].

Tuscaloosa Lynching Marker

The EJI project to mark lynchings has put up a lynching monument in front of the old Tuscaloosa jail.  This reminds me I need to get back to Karl Llewellyn's work on my new hometown.