The Faculty Lounge

Faculty Anti-Semitism: All Four Posts

I have combined all four installments of my series on Faculty Anti-Semitism into this single post, so they may be accessed from one link.

The four posts, with some slight editing, can be found after the jump.  They cover Michael Chikindas (Rutgers), Hatem Bazian (Berkeley), defenses and defenders, and why it matters.

If You Oppose Paying Kidney Donors, You Should Oppose Paying Football Players And Boxers Too: Wrap-Up

In this series of posts, I’ve discussed a new draft that Phil Cook and I are circulating, If We Allow Football Players and Boxers to Be Paid for Entertaining the Public, Why Don't We Allow Kidney Donors to Be Paid for Saving Lives?. Our claim, which I laid out in my first post, is that there is a stronger case for compensating kidney donors than for compensating participants in violent sports. If this proposition is accepted, one implication is that there are only three logically consistent positions: allow compensation for both kidney donation and for violent sports; allow compensation for kidney donation but not for violent sports; or allow compensation for neither. Our current law and practice is perverse in endorsing a fourth regime, allowing compensation for violent sports but not kidney donation.

A common argument in support of the ban on kidney donation is that if people were offered the temptation of substantial compensation, some would volunteer to donate against their own “true” best interests. This argument is often coupled with a social justice concern, namely that if kidney donors were paid, a large percentage of volunteers would be poor and financially stressed, and for them the offer of a substantial financial inducement would be coercive. In sum, a system of compensated donation would provide an undue temptation, and end up exploiting the poor.

To these arguments we offer both a direct response, and a response by analogy with violent sport. My posts have touched on a few key points. First, the medical risks to a professional career in football, boxing, and other violent sports are much greater both in the near and long term than the risks of donating a kidney. On the other hand, the consent and screening process in professional sports is not as developed as in kidney donation. The social justice concerns stem from the fact that most players are black and some come from impoverished backgrounds.

Note that these arguments focus on the donors’ welfare, and ignore the welfare of people in need of a kidney. A comprehensive evaluation of amending NOTA to allow compensation requires that both groups be considered. Such an evaluation, conducted by Philip Held and colleagues, reached the following conclusion about a regime in which living donors were offered enough compensation ($45,000) to end the kidney shortage: “From the viewpoint of society, the net benefit from saving thousands of lives each year and reducing the suffering of 100,000 more receiving dialysis would be about $46 billion per year, with the benefits exceeding the costs by a factor of 3. In addition, it would save taxpayers about $12 billion each year.”

As stated by Held et. al., “dialysis is not only an inferior therapy for end-stage renal disease (ESRD), it is also almost 4 times as expensive per quality-adjusted life-year (QALY) gained as a transplant.” This means that the Medicare (which pays for the bulk of ESRD treatments) dollars currently spent on dialysis could be reallocated to compensating kidney donors, saving lives and tax dollars in the process. 

As I said, even a series of posts gives only an introduction to our arguments and evidence, so download the full paper here.

Prior related posts:

If You Oppose Paying Kidney Donors, You Should Oppose Paying Football Players And Boxers Too

Paying Kidney Donors, Football Players, And Boxers: Medical Risks

Paying Kidney Donors, Football Players, And Boxers: Informed Consent And It’s Limits

Paying Kidney Donors, Football Players, And Boxers: Exploitation, Race, Class

Second Annual Movie Review -- Darkest Hour

For this year's traditional Christmas Day movie, my wife and I chose Darkest Hour. The film begins in May 1940, when Winston Churchill became Britain's prime minister -- replacing Neville Chamberlain -- and continues through the evacuation at Dunkirk at the end of the month (completed in early June).  Most of the reviews have focused on Gary Oldman's performance as Churchill, which was truly outstanding and well deserving of the plaudits.  Oldman creates -- or as the reviewers often say, he inhabits -- the character naturally and convincingly.  In historical memory, Churchill is a man of unwavering strength and conviction, but Oldman also reveals Churchill's doubts along the way.  He also shows Churchill's problem drinking, without allowing it to turn into a caricature.

Even more impressive to me, however, was the direction by Joe Wright and the script by Anthony McCarten.  There is always a problem in historical films, because everyone already knows the ending.  NOTE: some might think that the following paragraph includes spoilers, although they are all well-known historical facts.  I have nonetheless indented it, to make skipping easier:

We know that Churchill will become prime minister, despite the doubts of King George VI, we know that Churchill will reverse Chamberlain's policies, we know that the Germans will overrun Belgium and France, we know that Churchill will refuse Mussolini's offer to mediate a peace treaty with Hitler, we know that George VI will come over to Churchill's side, and we know that the British troops will be successfully evacuated at Dunkirk.

To paraphrase Alfred Hitchcock, suspense is when you know what is going to happen.  But of course, it takes much more than common knowledge for the director and writer to make each succeeding event seems suspenseful and dramatic, when almost everyone in the audience already knows how things will turn out.  

A two hour film necessarily skips over some history, but it would have been interesting to know why the opposition Labor Party insisted that Churchill was the only Conservative acceptable as a replacement for Chamberlain.

It was no surprise that the film ended with Churchill's famous speech to Parliament, rejecting the idea of a negotiated peace: 

We shall fight in France, we shall fight on the seas and oceans, we shall fight with growing confidence and growing strength in the air, we shall defend our island, whatever the cost may be. We shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets, we shall fight in the hills; we shall never surrender.

Given the title of the film, many viewers will also expect to hear him say, "If the British Empire and its Commonwealth last for a thousand years, men will still say, This was their finest hour."  That line, however, came in another, equally important, speech, delivered a few weeks later.  The film admirably sticks to the historical facts.

In sum, Darkest Hour is a terrific film in every dimension: acting, writing, and direction.  It is also reassuring to see that a great leader can speak movingly to all of his nation's people, without mocking his adversaries or appealing only to a narrow base.  Just as important as Churchill's speech and character is the quote that provides the post script to the film: "Success is not final, failure is not fatal; it is the courage to continue that counts."

Paying Kidney Donors, Football Players, And Boxers: Exploitation, Race, Class

In prior posts, I introduced the question, If We Allow Football Players and Boxers to Be Paid for Entertaining the Public, Why Don't We Allow Kidney Donors to Be Paid for Saving Lives?, and argued that the medical risks to a professional career in football, boxing, and other violent sports are greater than the risks of donating a kidney and that the consent and screening process in professional sports is not as developed as in kidney donation.

Although the primary focus of our paper is on the medical risk associated with living kidney donation, we also briefly discuss concerns about exploitation, coercion, race, and class, again with an analogy to violent sports. Living kidney donors in the United States have above-average incomes (after adjusting for sex and age). In a new regime in which donors were paid a substantial fee, it is predictable that the influx of volunteers would have below-average incomes. The prospect of financially stressed individuals attempting to make ends meet by “selling” a kidney raises a red flag for some ethicists. A compensation regime would expand the choice set for those in comfortable circumstances, but those in desperate circumstances might feel compelled to sell a kidney; in that sense, the option of selling could be seen as “coercive.” Furthermore, a system that in part depended on the poor to supply kidneys could be seen as “exploiting” the poor.

We believe that using words like “coercion” and “exploitation” to characterize the introduction of a new option by which poor people (and others) could earn a substantial amount of money provides more heat than light on this situation. The legitimate ethical concern is that so many Americans are poor, with inequality increasing over time. But that observation does not support a ban on compensation, which in fact limits the options available to the poor and thereby makes a bad situation (their lack of marketable assets) worse. But for anyone not persuaded by this argument, we note that these social-justice concerns apply with at least equal force to compensating boxers; most American professional boxers were raised in lower-income neighborhoods, and are either black or Hispanic.

As more has become known about the dangers of the repeated head trauma, similar arguments regarding football have become more prominent. About 70% of NFL players are black, and Pacific Islanders are also overrepresented as compared to the American population. Accordingly, much attention has been paid to the concussion crisis as a race and class problem. As one observer recently noted, “What’s a little permanent brain damage when you’re facing a life of debilitating poverty?” In reality, NFL players are better educated themselves, and come from better educated homes, than is average for Americans, in part because the NFL typically recruits college students. Still, some NFL players, like some would-be kidney donors, come from poverty.

Of course, this is only a taste of our arguments and evidence, so read the full paper here. In my next post, I’ll recap and wrap up.

Prior related posts:

If You Oppose Paying Kidney Donors, You Should Oppose Paying Football Players And Boxers Too

Paying Kidney Donors, Football Players, And Boxers: Medical Risks

Paying Kidney Donors, Football Players, And Boxers: Informed Consent And It’s Limits

Paying Kidney Donors, Football Players, And Boxers: Informed Consent And It’s Limits

In prior posts, I introduced the question, If We Allow Football Players and Boxers to Be Paid for Entertaining the Public, Why Don't We Allow Kidney Donors to Be Paid for Saving Lives?, and argued that the ban against paying kidney donors cannot rest on the basis of medical risk when we pay professional athletes to incur far greater risks. Today, I will talk about the consent process and the extent to which we might expect the system to protect participants – whether organ donors or professional athletes – from making bad choices against their own interests in exchange for the lure of money.

We believe that if NOTA were amended to allow payments to donors, potential kidney donors could be protected against being unduly tempted through the existing structure of screening, counseling, and delay, perhaps with some additional protections to prevent hasty decisions. On the other hand, it is not clear that NFL recruits have such protections in place.

Whether and when sane, sober, well-informed, adults should be banned by government authority from choosing to engage in an activity that risks their own life and limb is an ancient point of contention. There are a variety of hazardous activities that are permitted with no legal bar to receiving compensation. Included on this list are such occupations as logging, roofing, commercial fishing, and military service. Also included are violent sports such as football, boxing, and mixed martial arts (MMA). These examples illustrate a broad endorsement of the principle that consenting adults should be allowed to exchange (in a probabilistic sense) their physical health and safety for financial compensation, even in some instances where the ultimate product is simply providing a public entertainment.

One potentially distinguishing feature of kidney donation is that the harm is not the result of an accident, but rather of the deliberate action (of the surgeon and medical team). But this is also the case with fighting sports and with egg donors, who are compensated.

It is helpful to deconstruct the decision to donate a kidney under both the current regime (no compensation) and a hypothetical regime (in which the donor would be financially compensated). A well-developed organ procurement process in the American system seeks to ensure that potential donors are fully capable of making a good decision. Potential kidney donors are not only provided with full information, but also screened for mental and physical disability. While there is the possibility of “mistakes” (a decision to donate against the true best interests of the individual) under both a compensated and uncompensated system, the screening, consent process, and delays should minimize the chance for the kind of errors that behavioral economics has demonstrated are common. There is nothing intrinsically irrational about a willingness to assume medical risk in exchange for a substantial amount of money. But the quality of the choice may be influenced by a variety of factors, and we recommend some “nudges” designed to overcome the most common causes of faulty decision-making under such circumstances.

The same concerns that apply to the quality of kidney donor decisions also apply, and more obviously, to the decision to sign a contract to play in the NFL. Yet the consent and screening process in professional sports is not as developed as in kidney donation. Players are provided with little information about the risks, and indeed, the longer-term risks (including the risk of CTE in middle age) have not been well quantified, but appear to be far higher than for kidney donation. The payoff in both financial terms and status is also very high, and in part conveyed immediately. Any counseling or screening that might occur is up to the player to pursue.

In short, to the extent that the ban on compensated kidney donation is grounded in a concern that the lure of money may cause donors to disregard the risks of the procedure and subsequent long-term effects, that concern applies with even more force to participation in violent sport.

This, of course, is just a taste of our analysis and evidence, so read the full paper for more.

Prior related posts:

If You Oppose Paying Kidney Donors, You Should Oppose Paying Football Players And Boxers Too

Paying Kidney Donors, Football Players, And Boxers: Medical Risks

Related articles

Paying Kidney Donors, Football Players, And Boxers: Medical Risks

Rosin the Beau

This traditional tune has had many sets of lyrics and has been used for various purpose, from humorous to political.  Here is (more or less) the original version, which dates to the 1830s, as performed by The Dubliners:

 

Paying Kidney Donors, Football Players, And Boxers: Medical Risks

Yesterday, in If You Oppose Paying Kidney Donors, You Should Oppose Paying Football Players And Boxers Too, I introduced a new paper, written by Phil Cook and me, arguing that the case for paying kidney donors is much stronger than the case for paying participants in football, boxing, and other violent sports, and promising to follow up with subsequent posts outlining our arguments and evidence. 

Today, I’ll discuss the central argument in our paper: the medical risks to a professional career in football, boxing, and other violent sports are much greater both in the near and long term than the risks of donating a kidney. Injuries in such sports are common, and retired players are very often disabled by the long-term effects of these injuries as well the cumulative effect of thousands of blows to the body.

One challenge in making a meaningful comparison between the risks entailed in kidney donation and the risks entailed in participation in contact sports is that the latter may stretch out for many years and involve not one choice (donate or not) but rather a series of choices regarding participation. While it is difficult to quantify these effects in a way that provides a natural comparison with kidney donation, we provide some statistics that suggest that, for example, a man who signs a contract to play in the NFL for a year is consenting to be exposed to far greater medical risks than someone who volunteers to donate a kidney.

We focus our analysis on football, because the epidemiology of injury and disability is better developed than for fighting sports. It is worth noting, however, that there has always been concern about the risk posed by fighting sports, and that concern has accelerated in recent years, due to a better understanding of the long-term effects of head trauma. As a result of these risks, medical associations around the world, including the American Medical Association and various state medical associations, have called for limitations or bans on boxing and MMA.

As to kidney donation, we analyze both the post-operative risk from surgery and the post-recovery chance of death or disability resulting from loss of function of the remaining kidney. Both risks – while greater than zero -- are quite low, both in an absolute sense and in comparison to the typical risks of participation in violent sport. For example, post-operative complications (most of them minor, such as bleeding or wound infection) are present in 7.3% of cases, and donors face a higher cumulative incidence of end stage renal disease than nondonors – 0.31% versus 0.04%. While that risk is thus significantly elevated for donors, it remains very low in an absolute sense, representing an increased chance of about 1 in 400.

With respect to football, we discuss injury rates at the youth, high school, collegiate, and professional level. While that data is far too extensive to fully discuss here, I’ll provide a few highlights:

• In 2016, the 2,274 active players in the NFL experienced 2066 injuries during the preseason and regular season, 244 of which were concussions. That’s .073 concussions per player-season – about equal to the rate of surgical complications (most commonly, minor complications, such as bleeding or wound infection) in kidney donation.
• Official injury reports and survey information suggest that for a substantial majority of former players, injuries ended their career or contributed to the decision to end their career. Nine of 10 former players have nagging aches and pains from football when they wake up, and for most the pain lasts all day. For those age 30-49, the ability to work is impaired by injury.
• A recent postmortem study of a sample of donated brains of former NFL players found that 110 of 111 indicated either mild or (more commonly) severe CTE.

This last point requires some explanation, because the findings do not imply that 99% of former NFL players will have CTE. The brains in the study were voluntarily submitted for examination by family members who were often motivated by a desire to know the cause of their loved ones dementia or other neurological problems. But the 111 brains do represent 8.5% of the 1300 former NFL players who died during the period that these brains were donated. That places something of a logical lower bound on the prevalence of CTE. Presumably the true prevalence is much higher than 8.5%.

While it is not possible to do a precise “apples to apples” comparison of the medical risks associated with kidney donation` and the risks associated with a professional football career, it seems clear that the acute risk of injury and of long-term disability are far higher for the football player. As discussed above, most NFL veterans live out their lives following retirement with serious physical and mental disabilities. The vast majority of kidney donors lead entirely normal lives following recovery from the initial operation.

In other words, the ban against paying kidney donors cannot rest on the basis of medical risk when we pay professional athletes to incur far greater risks. This is just a short preview of the evidence on medical risk, so read the whole paper, If We Allow Football Players and Boxers to Be Paid for Entertaining the Public, Why Don't We Allow Kidney Donors to Be Paid for Saving Lives?

Prior related posts:

If You Oppose Paying Kidney Donors, You Should Oppose Paying Football Players And Boxers Too

Law Dean Search: University of Missouri-Kansas City (UMKC)

University of Missouri-Kansas City – Dean of the School of Law

 

OUR STORY

University of Missouri-Kansas City (UMKC), one of the four University of Missouri campuses, is a doctoral research-intensive public university offering traditional and interdisciplinary programs and serving approximately 14,500 students. The University is well positioned to address the demands of the times in a dynamic and diverse city that deserves and requires the benefits that accrue from a strong public university.

 

The University of Missouri-Kansas City has a broad and inclusive educational mission with specific emphasis in three areas: health and life sciences, visual and performing arts, and urban affairs. UMKC’s unique profile includes the College of Arts and Sciences, University College, Honors College, Schools of Education, Nursing and Health Studies, Henry W. Bloch School of Management, Medicine, Law, Computing and Engineering, Biological Sciences, Dentistry, Pharmacy, and the Conservatory of Music and Dance.

The University has an institution-wide commitment to equity, diversity and inclusion and strives to create a welcoming environment where students, faculty and staff feel valued in their contributions. The successful candidate will have a genuine enthusiasm for students, the University and the Greater Kansas City region. UMKC is proud to be one of this region’s premier institutions of higher education. Our people are our most valuable asset in our quest to become a model public urban research university with signature graduate and professional programs and active engagement in our city and throughout the region.

 

POSITION OVERVIEW

 

The University of Missouri-Kansas City seeks a dynamic and visionary leader for the position of Dean of the School of Law. UMKC School of Law is committed to educational excellence, outstanding scholarship, diversity, inclusiveness, and respect for people, ideas, and justice. It is dedicated to educating students to become outstanding lawyers who will serve their communities and the nation in the highest traditions of the legal profession. UMKC’s juris doctor degree program is designed to prepare students for the challenges faced by 21st century lawyers, public officials, and executives. The law school offers emphases in Business and Entrepreneurship; Advocacy; Child and Family Law; Intellectual Property Law; Urban, Land Use and Environmental Law; and International, Comparative, and Foreign Law; as well as LL.M. degrees in Taxation and Lawyering. Law students are encouraged to engage in interdisciplinary work across multiple UMKC academic units.

 

This position offers an opportunity for a talented, multi-skilled and committed individual to lead a vital unit of the University. The Dean is responsible for providing academic, strategic and administrative leadership for the school, articulating a vision for 21st century legal education, fundraising, and enhancing the strong relationship that exists between the School, its alumni and the various sectors of the legal, business, and government communities. The Dean serves as a senior academic leader of the University, reports to the Provost, and will work collaboratively with fellow Deans.

 

The Dean is expected to have: (1) a thorough understanding of both the challenges and the opportunities facing legal education today, along with creative/innovative ideas for tackling those issues; (2) the ability to recruit and support excellent and diverse faculty, students and staff; (3) strong operational and financial skills; (4) outstanding administrative and management skills, including team building; (5) the ability to effectively communicate with a wide range of stakeholders; and (6) the ability to achieve success in both external outreach and fundraising. The successful candidate will have leadership experience that provides a foundation for success in an academic setting.

 

QUALIFICATIONS

 

The Dean will ideally possess a commitment to innovation in legal education and a broad knowledge of the legal profession. A juris doctorate is required. Candidates must have a demonstrated record of successful executive leadership and comparable credentials and/or experience sufficient to warrant the respect and confidence of the academic community. The ideal candidate will be experienced in partnering with the legal community as well as the business and civic communities at large. We expect strong experience in the critical areas of administration, fundraising, and commitment to diversity and inclusion.

 

SALARY AND BENEFITS

 

UMKC offers a competitive salary, affordable medical and dental plans (no waiting periods), 403(b) savings plan, and University-paid long-term disability and life insurance benefits.

 

HOW TO APPLY

 

Nominations and inquiries, which will be treated in confidence, are welcomed and should be sent to:umhrexecutivesearch@umsystem.edu. Applicants who wish to apply should submit a letter expressing interest in and perspectives on the position, curriculum vitae, and other materials supporting candidacy, including names and contact information for at least four references to www.umkc.edu/jobs. References will not be contacted until advanced stages of screening, and candidates will receive prior notification. Applications will be reviewed until position is filled. Applications should be submitted by January 30, 2018 for fullest consideration.

 

L. Song Richardson Named Dean of UC Irvine Law

The University of California Irvine law school has announced that Song Richardson will be its new permanent dean, replacing Erwin Chemerinsky.  She previously served as interim dean.  Richardson, who holds a JD from Yale, joined the faculty in 2014 having previously taught at DePaul, American, and Iowa.  I'm particularly excited to see another former public defender and capital defense lawyer join the ranks of dean - congratulations!

If You Oppose Paying Kidney Donors, You Should Oppose Paying Football Players And Boxers Too

Having concluded that simply advocating for compensated kidney donation was not sufficiently controversial, Phil Cook and I are now turning our sights on professional sports – specifically, professional football and boxing. In a piece just posted to SSRN, we contrast the compensation ban on organ donation with the legal treatment of football, boxing, and other violent sports in which both acute and chronic injuries to participants are common. While there is some debate about how best to regulate these sports in order to reduce the risks, there appears to be no serious debate about whether participants should be paid. Indeed, for the best adult football players, college scholarships and perhaps a professional contract worth multiple millions are possible.

Phil and I will likely spend part of the winter break as television viewers contributing to the NFL teams’ collective $56 billion valuation. But our position on paying kidney donors saves us from hypocrisy. If, however, you are one of the many, many people who believe it is unethical to compensate kidney donors, then you should be out protesting the NFL. And don’t even think about watching the latest boxing or MMA matches.

Over the next couple of posts, I’ll outline the gist of our argument and evidence. We focus on the core argument for a ban on compensation for kidney donation, namely the paternalistic concern that even well-informed adults will sometimes be enticed by a financial reward to donate a kidney when in fact that is not in their “true” self-interest. In this view, the allure of money, especially for those who are in debt and struggling to make ends meet, will overcome good sense, leading to “exploitation” and even “coercion” to which people with less income and education are particularly vulnerable. But the same concerns apply with still greater force to participation in violent sports. Whatever one concludes about the ethics of regulating risky choices, and the problematic aspects of choices involving money and risk, the current circumstance – ban compensation for kidney donors, permit compensation for participation in violent sports – appears difficult to defend.

Over the next few days, I’ll touch on these key points: the medical risk to participants, the consent process, social justice concerns, and social welfare considerations. The medical risks to a professional career in football, boxing, and other violent sports are much greater both in the near and long term than the risks of donating a kidney. On the other hand, the consent and screening process in professional sports is not as developed as in kidney donation. The social justice concerns stem from the fact that most players are black and some come from impoverished backgrounds. Finally, the net social benefit from compensating kidney donors – namely, saving thousands of lives each year and reducing the suffering of 100,000 more receiving dialysis – far exceeds the net social benefit of entertaining the public through professional sports.

Download the piece here. And check back in over the next few days for subsequent posts.

A Victory for Clinical Legal Education

I recently received the following note from my colleague Jeffrey Urdangen, of Northwestern's Bluhm Legal Clinic Center for Criminal Defense:

Some months ago, Josh Tepfer, of the University of Chicago Exoneration Project, asked me if I’d team up with him on a fascinating case where his client had a bona fide claim of having been screwed by the cops in a manner that violated due process. I was happy to co-counsel with Josh, who, as far as I can tell, leads the league, if not the world, in achieving exonerations for his clients. Not surprisingly, that was the outcome in this instance.

Robert Hill was charged with murder and armed robbery for allegedly being the getaway driver following the stick-up of a liquor store in 2005. He was arrested and questioned by police a few days after the incident, and then let go. Two years later he was re-arrested for further interrogation, and as he always had, Robert denied any involvement in the crime. A Sheriff’s officer then made an offer to Robert: if he took and passed a polygraph, police would take him home and he’d be free to live his life. Robert accepted the offer and passed the polygraph. He was released that night, only to be arrested a month later for the third time. This time he was indicted.

Three years later, a hearing was held on defense counsel’s motion to dismiss the indictment. The grounds were that the State violated a non-prosecution agreement when, notwithstanding the police promise, Robert was charged with murder. The motion was denied, the Court agreeing with the State’s argument that, as a matter of law, an assurance like this is not binding unless made by a prosecutor. Four more years later the case proceeded to a bench trial in the Markham courthouse before the same decidedly pro-prosecution judge, Frank Zelezinski.  Robert was convicted and sentenced to a term of 70 years imprisonment.

After the opening brief on appeal was filed, the Illinois Supreme Court decided People v. Stapinski, which held that a promise by police, even if unauthorized by prosecutors, is enforceable. That additional authority was provided to the appellate court, which remanded for a hearing on whether “the defendant has established an enforceable cooperation agreement not to arrest or prosecute him …” The circuit judge at this hearing was directed to apply contract law. Lucky for our client, Judge Zelezinski had recently retired and his replacement was Judge Carl B. Boyd.

We were also fortunate that both the interrogation with the lie detector offer and the polygraph session were videotaped. At the hearing, one of Josh’s U of C clinic students, Huiyi Chen (now at Jenner and Block), masterfully cross examined the polygrapher. And my student, Grace Hotz, gave a sparkling summation, deftly interspersing video excerpts. Josh then dismantled the State’s closing argument in his rebuttal.

Several weeks later, reading his careful ruling from the bench, Judge Boyd gave a seminar on the law of contracts, finding the defense had established offer and acceptance. Ruling that we met our burden, the indictment was dismissed and Robert was freed that day after ten years of incarceration.

Congratulations to Jeff and Josh, and their students, in a great victory for collaborative clinical legal education.

Boston University Law Dean Search

Dean, Boston University School of Law

Boston University invites applications for the Law School Deanship. The Dean provides academic, intellectual, and administrative leadership of the School of Law. The successful candidate will be nationally recognized, with demonstrated leadership and administrative skills, strong scholarly visibility, and will understand and value the culture of integrity, inclusion, innovation, intellectual life, and student services that characterizes BU Law. The Dean will share the law school’s strong commitments to excellence in research, teaching, and practice, and will lead the School in its ongoing mission to prepare a diverse body of students for the ethical practice of law around the globe, to serve the public interest, and to provide the profession, the academy, and the public with ideas, perspectives, and analyses that enrich a comprehensive understanding of the law, adapted to the needs of a changing world.

Boston University School of Law routinely ranks at or near #20 in U.S. News and World Report’s law school rankings, as well as in the Leiter Law Report’s ranking for law school scholarly excellence. Without sacrificing scholarly excellence and engagement, the faculty of BU Law has long enjoyed a strong reputation for teaching effectiveness that sets us apart from most highly-ranked law schools. Historically, BU Law has ranked first or near the very top of the Princeton Review’s rankings of law teaching faculties. BU Law enrolled 236 J.D. students in the class of 2020, with a median undergraduate GPA of 3.73 and a median LSAT of 165. Since its founding in 1872, BU Law has been open to all students of ability, without regard to religious affiliation, gender, or race. We strive to honor our early commitment to diversity and inclusion through concrete and visible measures that evolve with understandings of cultural competency in an increasingly diverse legal profession. The law school’s culture is also characterized by commitments to integrity, teaching excellence, curricular innovation, public service, and a rich intellectual life marked by influential scholarship and the collegial exchange of ideas.

 

The full-time faculty includes 43 tenured and tenure-track professors, 13 full-time faculty primarily focused on experiential teaching, the Law Librarian, and several full-time lecturers. Among the primarily classroom tenured and tenure-track faculty, eleven hold Ph.D.’s in the fields of Anthropology, Economics, History, Law, Philosophy, and Political Science. The faculty is highly productive and influential, including leading scholars in fields such as administrative law, antitrust law, constitutional law, corporate law, criminal procedure, critical race theory, feminism and law, health law, intellectual property, law and economics, and legal history. The faculty produce books, articles, casebooks, and other scholarly works at an impressive volume. The publication of ambitious scholarly books—a hallmark of an outstanding law faculty—has become a signature strength of our faculty in recent years.

The law school has benefitted greatly from the exceptional 14-year leadership of Dean Maureen O’Rourke. O’Rourke leaves the school with very well-functioning administrative leadership across a range of areas from admissions and financial aid to career development and student affairs. The law school is housed in a new state-of-the-art complex, including the Sumner M. Redstone Building, a nearly 100,000-square-foot, five-story classroom facility that opened in 2014, and the 17-story Law Tower, which re-opened in 2015 after a complete renovation. A capital campaign launched in 2012 with a goal of raising $80 million by 2017 was recently extended to raise $100 million by 2019. There is no remaining financial obligation on the building, and when the campaign is completed, an additional $55 million over and above the building expense will remain for enhancement to financial aid, faculty scholarship, and programmatic support. Simply put, the law school is in a moment of enviable strength on which the next dean will build.

Additional information about this search is available at:

http://www.bu.edu/provost/bu-school-of-law-dean-search/

Nominations and expressions of interest should be sent to: Professor David I. Walker (Chair), lawdeansearch@bu.edu, or Law Dean Search Advisory Committee, c/o Office of the University Provost, Boston University, One Silber Way, 8th Floor, Boston, Massachusetts 02215.

Prospective candidates should include a letter expressing interest and a current curriculum vitae. Candidates will be asked to provide references after preliminary review and screening. Confidentiality will be maintained in the search process; references will be contacted only with the explicit consent of the applicant. While nominations and applications will be accepted until a new Dean is selected, interested parties are encouraged to submit their materials before January 31, 2018, to ensure full consideration.

Boston University is committed to fostering a diverse University community within a supportive and respectful environment. We believe that the diversity of our faculty, students, and staff is essential to our success as a leading research university with a global reach, and that diversity is an integral component of institutional excellence. Boston University is an equal opportunity employer and gives consideration for employment to qualified applicants without regard to race, color, religion, sex, age, national origin, physical or mental disability, sexual orientation, gender identity, genetic information, military service, or because of marital, parental, or veteran status or any other characteristic protected by law.

Chronicle of Higher Education Article on Interrogating Ethnography

The Chronicle of Higher Education has posted an article about Interrogating Ethnography.  It is a news story, not a book review, that summarizes the book and includes interviews with sociologists both favorable and critical. Unfortunately, the article is behind a paywall, but here are the first few paragraphs:

Law Professor’s New Book Puts Ethnography on Trial

By Marc Parry December 15, 2017 Premium

Replication controversies have plagued the social sciences in recent years. But one research method is uniquely difficult to verify: ethnography. Ethnographers, who often work in sociology and anthropology, immerse themselves in the daily lives of people they study. Their written narratives tend to cloak both subjects and field sites behind a curtain of anonymity. Only rarely does one ethnographer go back to another’s site to reexamine the original researcher’s findings.

Steven Lubet, a law professor at Northwestern University, thinks that’s unfortunate. He got interested in ethnography after writing a scathing review of Alice Goffman’s controversial 2014 study of young black men caught up in the criminal-justice system, On the Run (University of Chicago Press), a work of urban ethnography that he viewed as littered with ethical and factual problems. That made him wonder: Did the whole field suffer from similar issues?

Mr. Lubet, who has dedicated much of his academic career to the study of legal and historical evidence, tried to find out by plunging into the literature. He read more than 50 ethnographic monographs and an equivalent number of articles. Focusing on sociologists’ studies of American cities, he hunted for facts that could be documented — or not. He verified details by consulting experts and pulling public records.

The result of his investigation is a new book, Interrogating Ethnography: Why Evidence Matters (Oxford University Press). Its conclusion: Ethnography suffers from an accuracy problem, one that scholars in the field have largely overlooked.

The Crime of Freeing Slaves [Re-Posted from December 16, 2015]

On this day in 1859, the Commonwealth of Virginia executed Shields Green and John Anthony Copeland, two black men who had joined John Brown’s fateful attempt to free the slaves of the southern states.  Although little noted in most history books, their sacrifice should be long remembered, even as our nation continues to struggle with slavery’s legacy of racism.

Shields Green was an escaped slave from South Carolina who had been introduced to Brown by Frederick Douglass.  During the Harper’s Ferry raid – which began on Sunday, October 16 and lasted for three days – Green had been assigned to guard Brown’s white hostages, which drew the special ire of slave masters.  One plantation owner railed at Green’s “impudence” in pointing a rifle at white men, and Virginia’s governor called Green a “coward,” although in fact he had declined an opportunity to escape and had instead remained bravely at Brown’s side until they were both captured by troops under the command of Col. Robert E. Lee.

John Anthony Copeland had been born free in North Carolina, but had moved with his family Oberlin, Ohio, when he was a child.  Oberlin was the most abolitionist-minded community in the United States during the antebellum era, and Copeland had grown up in the anti-slavery movement.  He had been a leader of the Oberlin-Wellington Rescue of 1858, in which he had literally wrested a runaway from the clutches of slave catchers, and he had afterward escorted the fugitive to freedom in Canada.

Copeland had been recruited to the abolitionist army by John Brown, Jr., who had traveled to Oberlin the previous summer on his father’s behalf.  Arriving at Brown’s headquarters on Thursday, October 13, he scarcely had time to meet his new comrades – who numbered only 21, including Brown and three of his sons – before the historic attack on slavery began late on Sunday night.

Brown’s march into unsuspecting Harper’s Ferry was initially successful, as his men were quickly able to take control of the federal arsenal and armory.  Copeland and two others were sent to capture a nearby rifle factory, which they accomplished with ease.  Soon, however, the town awakened, as church bells rang the alarm.  Brown and his men were surrounded by the local militia, who rained fire down upon the abolitionist positions.  Ten of Brown’s men were killed in the fighting, but Brown and Green were taken alive.

Meanwhile, Copeland and his comrades staved off repeated militia attacks on their redoubt in the rifle factory.  After the seventh assault, they realized that their position was hopeless and fled through the rear entrance.  The other two men were shot and killed while attempting to cross the Shenandoah River.  Copeland, too, waded into the river, but he was cornered by the militia and surrendered when his dampened pistol would not fire.

The prisoners were brought to nearby Charlestown, to await trial before a Virginia court.  Brown was tried first and quickly convicted and condemned to death, although his inspiring speech at sentencing succeeding in stirring abolitionist sentiment across the North.  Green and Copeland were tried shortly afterward.  Their attorney, a Boston abolitionist named George Sennott, raised a remarkable defense that condemned the institution of slavery – but to no avail.  Both black men were convicted and sentenced to hang.

Brown was executed on December 2, leaving behind a prophetic note in which he predicted that “the crimes of this guilty land will never be purged away but with blood.”

Green and Copeland faced hanging two weeks later.  Interviewed by reporters on execution day, Copeland sent word to his friends and family in the North.  “If I am dying for freedom,” he said, “I could not die in a better cause – I would rather die than be a slave.”

The two African-Americans were taken to the gallows in an open wagon.  Once on the scaffold, Copeland attempted to address the crowd.  The privilege of a final statement was routinely granted to condemned men in the nineteenth century, but the Virginians would not let Copeland deliver another denunciation of slavery.  The hangman choked off his speech, pulling a hood over his head and tightening the noose.  The trap was sprung and the two “colored heroes” of Harper’s Ferry were hurled into eternity.

Copeland’s family had gathered together for prayer on hanging day.  Following a Bible reading, Copeland’s mother turned toward her husband and children.  “If it could be the means of destroying slavery,” she said, “I would willingly give up all my men-folks.”

Slavery was indeed destroyed by the coming Civil War, sparked in no small part by the actions of Brown, Green, and Copeland.  It is altogether fitting and proper that we should recall the brave men who, to paraphrase Lincoln, gave the last full measure of devotion in the battle for freedom.

 

[With this addition]

 

The 2017 Bottom 10 Law Schools in the Country

As I have noted in a recent column, 10 schools have been found out of compliance with ABA Standard 501 on Admissions,  which requires that school admit only students who appear capable of earning a J.D. and passing the bar. Although several of these schools have been found out of compliance just in the last few months, there was ample evidence during this year’s admissions season of what the ABA was willing to tolerate and what the ABA considered out of bounds.  So the big question this year was whether the ABA’s increasingly aggressive campaign to stop predatory admission practices would result in more schools raising their admission standards to acceptable levels.

Well, the new ABA Standard 509 Reports are out, and the results are not encouraging. Several schools have clearly not learned from the experience of their peer schools and have admitted classes that are very likely to incur ABA scrutiny.  It seems that some schools are so desperate to stay open that they are willfully violating Standard 501 even though they must know that sanctions are likely – call it the Charlotte School of Law strategy.   

In addition to the ABA 509 single school reports, the ABA helpfully compiles data on all the schools into sortable Excel spreadsheets, making school by school comparisons relatively simple.  Drawing from the “First Year Class” spreadsheet, I have compiled a list of the bottom 10 least selective law schools in the U.S. (excluding Puerto Rico) by LSAT score (in some cases I have also considered UGPAs as a tiebreaker) for the 2017-18 school year.

The Bottom 10

1. Thomas Cooley Western Michigan U - 146/142/139. Cooley has already been found out of compliance with Standard 501 by the ABA. They recently lost in their efforts to get a restraining order against the ABA to keep this secret from prospective students and did little to improve their chances of having that decision reversed with this year’s embarrassing incoming class, with similar credentials to last year’s (147/141/138).   But the school is still making a fortune with an entering class of 458, third largest in the country (after Georgetown and Harvard). Cooley accepted 85.6% of applicants, far and away the highest acceptance rate in the country.  (Vermont, with 159 entering 1Ls, was second, with a 78.8% acceptance rate.)

2. Texas Southern – 146/143/141. Already sanctioned by the ABA for standards violations and under remedial measures, Texas Southern nevertheless enrolled a large class of 256 students, a significant increase from last year’s 227.  Unfortunately, these students are virtually all at high risk of failure.  The school grew its class by lowering its already dismal admission standards across the board.  Last year they were at 147/145/142.  What are they thinking? The school should be placed on probation.

3. (Tie) Appalachian – 149/143/141 Found out of compliance by the ABA last January and formally notified in May, they hid this fact from prospective students and managed to nearly double their class from 38 to 73 entering students, while very modestly increasing their numbers from 147/143/140. The bottom half of the class are all at extremely high risk of failure.  Their bottom 25% UGPA is an especially woeful 2.51, the lowest of any law school in the country.  Appalachian also boosted enrollment in its upper divisions by taking 16 transfers from Charlotte School of Law, which is not likely to boost their abysmal bar passage rate. Expect Appalachian to be sanctioned.

3. (Tie) Southern – 146/144/141. Number one on my list of schools that deserve to be sanctioned but haven’t yet. Southern has enrolled 200 students, virtually all of whom at are very high or extremely high risk of failure. They increased their class size to 200 from 171, so they could have raised standards, but basically held steady at atrocious. (Last year: 146/143/141) Where are you, ABA?

5. (Tie) Charleston – 148/145/142 Charleston enrolled a large class of 251 students, up from 215, by admitting 71% of applicants.  They could have been more selective and raised their standards considerably.  Last year: 149/145/141. So, for the last three years, at least 75% of Charleston’s class has been made up of high risk students.  The ABA must put a stop to this exploitation.

5.  (Tie)  Thomas Jefferson –  147/144/142.  In January, TJ was found out of compliance by the ABA on Standard 501.   TJ dishonestly kept this secret from its prospective students, enabling the school to grow its enrollment.  But this school is digging itself is an ever deeper hole by admitting a pathetically weak class in a state where students with LSATs below 146 have extremely poor prospects of passing the bar, and everybody below 150 struggles.   Last year TJ had 232 students with a profile of 147/143/141, and the second highest non-transfer attrition rate in the country at 37.2%.  Despite knowing they were facing sanctions due in part to its lax admission policies, TJ chose to increase its class size and essentially maintain its abysmal admissions standards.  The one point increase at the 50^th and 25^th percentiles was offset by lower UGPAs across the board.  Not surprisingly, TJ was recently placed on probation by the ABA.  Expect droves of transfers from TJ this winter and next summer, and continued bar passage woes for the foreseeable future, assuming TJ can stay in business.   

7. N.C. Central – 149/145/142. Now that Charlotte has closed, NC Central takes over the mantle of least selective law school in North Carolina.  To their credit, they did raise their LSAT standards a bit by shrinking the class from 183 to 166.  Last year they were at 149/144/141.  But this one point increase at the 50^th and 25^th was offset by lower UGPAs across the board.  More troublingly, NC Central had the highest level of 1L non-transfer attrition of any law school in the country last year, at 37.7% nearly twice the rate that the ABA has stated will result in presumptive non-compliance with Standard 501.  The ABA needs to take a hard look at NC Central.

8. (tie) Atlanta’s John Marshall Law School – 149/146/144.  This school was recently notified that they are out of compliance with Standard 501 by the ABA, and now I am starting to understand why.  They’ve slipped from 2016 when they were at 149/148/145, and they had a 21.9% non-transfer attrition rate, 12^th worst in the country, and above the ABA’s presumptive exploitation rate of 20%.   Last year they had 195 entering students.  This year 216.  This was not the year for the school to grow the class by lowering their standards.

8. (tie) Florida A&M University – 149/146/144. FAMU is up a smidge from 148/145/144 last year, but not enough to reverse their sliding bar passage rate. With 222 students, up from 151, they could have maintained their class size or even grew modestly and raised standards considerably, instead of growing by 50%, remaining in the bottom 10 nationally. FAMU is practically begging for ABA scrutiny.

10. Concordia – 151/147/144. Although there are four other schools with a bottom 25% at 144 and 50% at 147,  and two of these have lower LSATs at the 75% by one point, the UGPAs at Concordia are by far the lowest of these five schools (3.24/2.90/2.59) so they narrowly edge the competition for the coveted tenth slot in the bottom 10.  Although Concordia had great bar results last summer, they have placed their future in jeopardy by lowering their standards for the fourth year in a row.  Their entering class of 2014 was at 157/152/149.  2015: 154/150/146.  2016: 151/149/145.  This year: 151/147/144.  And other than Valparaiso, which recently announced it was suspending admissions,  Concordia had the smallest entering class of any law school in the country, at just 48 students.  Not good signs.

Dishonorable Mention:

There are 6 schools with 25% LSATs at 144 – which I categorize as Extremely High Risk.  Two (FAMU and Concordia) made the bottom 10. These schools have presumably calculated that they are safe from ABA scrutiny based on prior ABA adverse actions.  In light of the recent finding of non-compliance against Atlanta’s John Marshall, these schools may find that they have miscalculated.  Even if they get a pass from the ABA, these schools should be ashamed that they have stooped so low as to be admitting over a quarter of students from the bottom 23% of LSAT takers.

 The other four at 144:

• South Dakota – this state flagship university has truly fallen on hard times. They are down to 57 1Ls (5th smallest in the country) with an LSAT profile of 150/147/144 (down from 152/148/144 in 2016) and plummeting bar pass rates. The school needs to move from tiny Vermillion to Sioux Falls to survive, but this proposal has been nixed.
• Southern Illinois – Another state school with very weak students, identical to South Dakota at 150/147/144, but with much worse UGPAs. Down from 150/148/145 last year.
• Roger Williams - 151/147/144 down from 153/148/145.
• Oklahoma City – 152/147/144. Last year 151/147/144.

The Next Tier:

There are 20 law schools with a bottom 25% LSAT at 145 (26^th percentile).  There is probably safety in numbers here, as the ABA is unlikely to take action against so many schools with similar numbers.   This group includes one school that was previously forced to take remedial measures for violating admission standards (Ave Maria), one school that is currently on probation (Arizona Summit), and another school that has recently received notice of non-compliance with Standard 501  (Florida Coastal).  Florida Coastal has argued that they should not be considered in non-compliance because they have raised their bottom 25% to 145.  But the 509 report reveals that they did so by taking a lot of students with dreadful undergraduate records.  The UPGA profile at Florida Coastal for 2017 is 3.10/2.83/2.59 – worse even than Western Michigan Thomas Cooley! (The average undergraduate GPA in the U.S. is about 3.15.)  Only three law schools in the country have comparably awful UPGA profiles:  Appalachian, Thomas Jefferson and InfiLaw sister school Arizona Summit (3.15/2.81/2.53).  For comparison purposes, Ave Maria’s UGPA numbers are 3.52/3.16/2.83, about average in this cohort of 20 schools.  Ave Maria seems to have weathered the storm under the leadership of Dean and President Kevin Cieply and is on the rebound, with 97 1Ls, up from 88 last year, and a two-point improvement at their LSAT 25%.  Meanwhile, it is not clear if Arizona Summit can survive, with just 49 matriculants, down from 143 last year (and 450 in 2011!).  In 6 years, Arizona Summit went from tied with NYU for the 12^th largest entering class in the country to the fourth smallest entering class.   With the fifth highest non-transfer attrition rate in the country last year at 27.2%, they are likely to continue to get smaller.  That is one way to go from for-profit to non-profit.   

Some Other Observations

There is a new format for the ABA 509 Reports, and overall there is more useful data, particularly regarding attrition. One area of concern with the new report format is that schools with part-time programs are no longer required to report the admissions credentials of their part time classes separately.  As I noted in a recent column, many schools were admitting substantially weaker students into their part-time divisions, leading to concerns about exploitation of this cohort. Now, there is no way to know if law schools are doing so.  The ABA should require that this data be reported in future years. 

Bar passage data, like employment data, will now be reported separately. Bar passage data should be out in March, employment data in April.

The Forgotten Emancipator #4 - Race and Labor

In an 1856 speech, future United States Representative James Ashley said, "I often wonder how your northern-born men can show such hostility to the black man. Singularly enough, I find here in the north, as in the south, that the hatred of the negro is not that he is black or of mixed blood, but because he is a slave. it is the hatred born of the spirit of caste, not of color." In this speech, Ashley explains the relationship between racial discrimination and economic subordination. Black workers were caught in a caste system that classified them according to race. Racism was not only the ideological justification for chattel slavery, but it also enables the economic exploitation of free workers of color. Racism also harms workers of all races because it splits the working class and interferes with the class solidarity necessary for an effective movement to improve the conditions of all workers. Opponents of workers' rights well understand the power of racism as a tool of economic disempowerment. In the antebellum era, apologists for slavery appealed to the racism of northern white workers who did not want to work alongside free blacks. In the Twentieth Century, as Sophia Lee describes in her excellent book, The Workplace Constitution: From the New Deal to the New Right, “right to work” advocates sought to exploit racial divisions in the labor movement to undermine mid-century gains by that movement. In his presidential campaign last year, Donald Trump effectively used racist rhetoric to motivate white working-class voters to vote against their economic interests. On the other hand, throughout our history advocates for racial and economic justice have been most effective when they worked together. In the Nineteenth Century, antislavery activists joined with labor activists to advocate for the end of slavery and for workers’ rights. In the Twentieth Century, African American labor leaders such as A. Philip Randolph spearheaded the northern civil rights movement. Randolph and United Auto Workers leader Walter Reuther worked together to organize the 1963 March on Washington, made famous by Martin Luther King’s “I Have A Dream” speech. UAW lobbyists played an essential role in the fight for the 1964 Civil Rights Act, which banned race discrimination in employment and places of public accommodation. This week, Doug Jones, the white son of a U.S. Steel worker who himself worked as a unionized steel worker, won the Alabama Senate seat due to the overwhelming turnout of black voters. As ACLU founder Roger Baldwin said in 1920, “The race issue is at bottom is the labor issue.” Racism continues to plague our nation and will always be a central component of the American experience. Meanwhile, workers of all races are suffering from a decline in real income and loss of work-related benefits such as health care and pensions. Civil rights and labor activists are most effective when they address the inter-connection of racial and economic justice. The Thirteenth Amendment, with its promise of both racial equality and workers’ rights, is a good foundation for an integrated theory of rights.

Faculty Anti-Semitism, Part Four: Why It Matters

The first three parts of this series have explored recent expressions of anti-Semitism by Michael Chikindas of Rutgers University and and Hatem Bazian at UC Berkeley, and the defenses raised on their behalf by other scholars.  This post will expand on the phenomenon of trivialization, which occurs when anti-Jewish bigotry is treated as a nothing more than an annoyance or a slip-up, as opposed to the seriousness with which other forms of racism are addressed.  I am not arguing here that Chikindas or Bazian should be disciplined, but rather that faculty anti-Semitism has been treated with far too much complacency.

Both Bazian and Chikindas circulated cartoon figures that mocked Jews and Judaism (included in Parts One and Two) while repeating venerable anti-Jewish slanders.  For centuries, similar images have served as both the motive and excuse for violence against Jews.  As the author Neil Gaiman has pointed out, “all images, particularly images of people, go straight into our heads and create empathy, create disgust.” That is why they need to be taken seriously.  If the defenders of Chikindas and Bazian do not recognize the historical power of anti-Semitic images, the neo-Nazis at Stormfront understand it all too well, as explained in their “Style Guide”:

Packing our message inside of cultural memes and humor can be viewed as a delivery method.

Writing on the AAUP’s Academe Blog, however, John Wilson dismissed Michael Chikindas’s posting of Nazi-like anti-Jewish caricatures as idiocy that amounted to nothing more than “uncomfortable” views.  Following Hatem Bazian’s retweet of equally vile memes, San Francisco State’s Prof. Rabab Abdulhadi brushed it off as merely an inadvertent “mistake” that led to an overreaction by the “Zionist establishment.”

Both Wilson and Abdulhadi – out of either naiveté or zealotry – miss the point.  Anti-Jewish caricatures and internet memes have harmful consequences in the real world.  Anti-Semitism is not an unpleasant artifact of the past, but rather a present danger, as we have seen in recent violent attacks on Jewish institutions including synagogues, day schools, community centers, and museums.  Moreover, there is a clear relationship between the circulation of hateful images and the spread of dangerous anti-Semitism.

The Law School Industry - Deans at law schools in Australia, Canada, New Zealand, and South Africa

This study, provided in the attached excel sheet, provides information on all deans at non-US law schools in Australia, Canada, New Zealand, and South Africa. Email contacts and hyperlinks are included in the study, along with information about degree profile.

 

Northwestern University Law Review Exclusive Submission Window

This just in:

The Northwestern University Law Review is pleased to announce our exclusive submission track for Spring 2018 submissions. We will accept exclusive submissions from January 1, 2018-January 14, 2018 at 11:59 PM Central Time. For all articles submitted in accordance with the instructions outlined below, the Law Review guarantees Articles Board consideration and a publication decision by February 5, 2018.

More details are here, and after the jump.

Faculty Anti-Semitism, Part Three: The Defenses

This is the third post part of in a four-part series on faculty anti-Semitism.  Part One was about the blatantly anti-Semitic Facebook posts of Michael Chikindas of Rutgers, and Part Two was about the bigoted images retweeted by UC Berkeley's Hatem Bazian.  This post discusses some of the defenses that have been raised on behalf of Chikindas and Bazian.

The most extensive defense of Chikindas was written on the AAUP's Academe Blog by John K. Wilson, who says that "Chikindas is an anti-Semite, and an idiot," while arguing against the measures taken against Chikindas because "Perpetuating 'toxic stereotypes' is not a violation of any campus rules, nor is upsetting people." Thus, says Wilson, a professor could not be sanctioned for asserting that "gay men have a propensity to molest children,"  or "that Muslims are a terrorist threat," or "that blacks are less intelligent than whites on average."  Wilson is an academic freedom absolutist, but he makes some key mistakes.

First, though perhaps most understandable, it is trivializing for Wilson to call Chikindas "an idiot."  The problem with Chikindas is not stupidity or poor judgment, it is bigotry.  The reference to anti-Semitism as idiocy has the effect of minimizing the seriousness of Chikindas's Facebook posts -- which would be familiar to any reader of The Daily Stormer -- and the historic harms that have been committed in the name of similar anti-Jewish tropes.  A synagogue was firebombed in Sweden last weekend by people who share Chikindas's beliefs.  They were racists, not idiots.  The dismissal of bigots as fools has a certain knee-jerk attractiveness, especially among those who have not been subjected to their vitriol, but the ultimate effect of that response is to deemphasize the actual danger of racism, which is based on hatred rather than ignorance.

More significantly, Wilson failed to recognize the scope of academic freedom.  Chikindas has been subjected to two consequences, and the possibility of a third.  He has been prohibited from teaching required courses and removed from an administrative directorship -- neither of which implicate academic freedom -- and he is facing the prospect of suspension at reduced pay.  

The question here is whether Rutgers students and staff should be compelled to study or work under someone who has grotesquely ridiculed their ethnicity and religion. Rutgers has decided as an administrative matter that no one should have to be placed, against their will, under Chikindas's authority. This is not punishment of Chikindas, but rather a protective measure for students and staff.

Wilson rejects the idea that students might have a legitimate objection to mandatory studying under a bigot. If Chikendas is "qualified to teach classes, then that should include required courses. The fact that some students feel uncomfortable about a professor’s views is not a good reason to ban [him] from teaching required courses."  This conclusion can only be reached by someone who dismisses anti-Semitism as nothing more an "uncomfortable view," which of course is another form of trivialization. (Wilson's citation of Levin v. Harleston is inapposite, as that case involved the creation of "shadow classes" for a professor, and not the reassignment of required courses.")

As I explained in Part One, Wilson is on solid ground when he objects to the ongoing investigation of Chikindas that may result in suspension from the university, but that does not mean the the university's hands must be completely tied. Wilson says, "If we allow personal opinions to be the basis of penalties, almost any controversial professor could be punished."  The slippery slope argument, as it often does, proves too much. Rutgers has thus far taken only measured steps in the face of breathtaking bigotry. Wilson thinks that the university can only act following proof of discrimination in the classroom; I think Rutgers students and staff deserve better. Again, with the recognition that a suspension would in fact implicate academic freedom. (I also agree with Wilson that sending Chikindas to a "cultural sensitivity training program" would be pointless and overbearing.)

This brings us to Hatem Bazian, who has received nothing more at UC Berkeley than a mild rebuke for circulating racist memes about Jews. To Bazian's defenders, however, this is apparently the work of  "powerful allies of the Trump administration and the UC Board of Trustees [who] seek to intimidate, bully and silence any and all advocacy for justice in/for Palestine by pressure, strong arming and bribing public universities."

According to Prof. Rabab Abdulhadi of San Francisco State University, Bazian's behavior was nothing more than "a mistake he made and for which he took responsibility and has publicly apologized." In a letter to UC Berkeley Chancellor Carol Christ, Abdulhadi asserted that Bazian had merely "inadvertently retweeted an offensive meme." Abdulhadi said nothing about the nature or content of Bazian's retweet, as she evidently could not bring herself to acknowledge that it included vile and unmistakable anti-Semitic imagery.  Instead, Abdulhadi insists that "Hatem is being attacked because the Zionist establishment would like to silence all of us and use bullying, smear campaign and outright incitement to violence to take us out once and for all."  To Abdulhadi, it seems that complaints about anti-Semitism have no intrinsic legitimacy and can be readily discounted as coming from the "Zionist establishment."

Some of the overheated complaints against Bazian have no doubt called for his firing, which, as I explained in Part Two, would be a disproportionate infringement of academic freedom. But neither should his foray into ugly anti-Semitism be brushed off as an innocent error.  It was a slip-up, alright, but not an inadvertent one.  Sadly enough, it is obvious that anti-Zionism and anti-Semitism have become inextricably intertwined, to the point that BDS advocates like Abdulhadi cannot even respond to anti-Jewish memes without invoking conspiracy theories.

Neither Michael Chinkindas nor Hatem Bazian is an idiot.  They are well-educated and highly intelligent, and Bazian, as Abdulhadi describes him, is also "an astute political strategist and thinker."  Their defenders, one out of naivete and the other out of zealotry, have sadly failed to appreciate the seriousness of anti-Semitism, which is far more than, as Wilson called it, a "personal opinion."