The Faculty Lounge

American Journal of Legal History, December 2017 Issue

I'm delighted to report that the December 2017 issue of the American Journal of Legal History (volume 57) is up on the OUP website and it will be arriving in subscribers' mailboxes soon.  For a limited time the articles are all freely available.  The table of contents is as follows:  

Herbert Lovelace, King Making: Brown v. Board and the Rise of a Racial Savior, 393–446. 

Simon Devereaux, Execution and Pardon at the Old Bailey 1730-1837, 447–494.

Richard Hamm, Off the Streets: The Origins of the Doctrine of Commercial Speech, 495–520.

William Ossipow & Dominik Gerber, The Reception of Vattel’s Law of Nations in the American Colonies: From James Otis and John Adams to the Declaration of Independence, 521–555.

Adam M Carrington, Running the Robed Gauntlet: Southern State Courts’ Interpretation of the Emancipation Proclamation, 556–584.

BOOK REVIEWS

Michael J. Klarman, The Framers’ Coup: The Making of the United States Constitution, reviewed by Melvin Yazawa, 585–586.

Brian McGinty, The Rest I Will Kill – William Tillman and the Unforgettable Story of How a Free Black Man Refused to Become Slave, reviewed by John D Gordan, III, 585–586.

Bradley Miller, Borderline Crime: Fugitive Criminals and the Challenge of the Border, 1819-1914 , reviewed by Katherine Unterman, 588–589.

Risa Goluboff, Vagrant Nation: Police Power, Constitutional Change, and the Making of the 1960s,  reviewed by Christopher W Schmidt, 589–590.

Jefferson Decker, The Other Rights Revolution: Conservative Lawyers and the Remaking of American Government  reviewed by Michael Ariens, 590–591.

This concludes my second year as co-editor of the AJLH.  I'm extremely proud of the progress we've made and the quality and quantity of research that we're publishing.  It has been a pleasure working with my co-editor Stefan Vogenauer and our managing editor Donal Coffey, Roman Hoyos our book reviews editor for the Americas, the production crew at OUP, and of course the authers and referees.  There's a lot more exciting scholarship on the horizon for 2018!

 

Faculty Anti-Semitism, Part Two: Hatem Bazian at UC Berkeley

This is the second of a three four-part post about the problem of anti-Semitism among university faculty members. Part One was about Prof. Michael Chikindas of Rutgers, who has been sanctioned for posting anti-Semitic memes on his Facebook page.  Today’s post will discuss Dr. Hatem Bazian, a lecturer at UC Berkeley and a founder of Students for Justice in Palestine, who has circulated equally venomous images via Twitter. Part Three will address some of the defenses that have been raised on behalf of Chikindas and Bazian.

Chikindas and Bazian are probably quite dissimilar politically, apart from their animosity toward Israel and their displays of anti-Semitism in the guise of anti-Zionism.  In their social media depictions of Jews,however, they turn out to have more in common than either one is likely to admit. 

A key difference, however, is that Bazian is a recognized leader in a national movement. He has over 16,000 followers on Twitter, which no doubt far exceeds the number of Chikindas's Facebook friends. Bazian’s foray into anti-Semitism is not merely cranky or idiosyncratic; rather, it is influential and strategic.  Protected speech can nonetheless be damaging speech.

As in yesterday’s post, I am not going to put the offensive memes on the main page.  After the jump, you can see the images that Bazian recently retweeted, which are nearly as bad as Chikindas's:

Law School Building Trivia

You know what we haven't had in, well, basically forever?  A building trivia question.  This is almost going to be so easy I shouldn't ask it, but my stock of photos is low.  I've been in Philadelphia much of the fall and haven't had a chance to take many photos.  So, digging into my files here's a picture of a building that was built in the early/middle of the twentieth century as a law school building.  (It's no longer used for legal education, but you can still see the law school classrooms with tiered seating inside.  Beautiful inside, as well as out.)  Here's what interests me about the building -- look at the names on the outside -- "Marshall, Story, Taney."  Given all the talk about names on buildings, perhaps there's an opportunity to talk about these names, particularly Taney's.  And at least add some contextualization to that building.  And it occurs to me that there are probably a lot of law school buildings around the country that have similar inscriptions on them.  I recall that the University of Pennsylvania's law school has the names of many legal luminaries on it.  I'll have to dig up some photos of that building.

The Forgotten Emancipator #3

The Nineteenth Century was a time of transformation of labor law in this country, and Reconstruction was a pivotal moment in that transformation.  Of course, chattel slavery was sui generis.  Slaves were treated like property, with no human rights.  However, it is undeniable that slaves were also exploited workers.   Moreover, slaves were not the only unfree laborers in antebellum America.  Thousands of immigrants came to the United States as indentured servants or apprentices bound to masters.  Unlike slaves, indentured servants were not treated as sub-human, but they did share some experience with slaves.  Like slaves, indentured servants and apprentices could not leave masters without facing criminal sanctions.  Thus, they lacked mobility and other basic legal rights.  The so-called Fugitive Slaves Clause did not distinguish between the two, referring to “persons bound to service or labor.”  Slavery was the worst on a continuum of unfree labor practices

Meanwhile, early industrialization produced a new class of workers - industrial workers.  Industrial works worked long hours under horrible conditions, for low wage.  Leaders of the nascent U.S. labor movement called themselves “wage slaves.”  While there were many tensions between the northern antislavery and labor movements, there were also some activists in both movements who joined together to advocate against slavery and for the rights of northern workers.  The antislavery and northern labor movements in antebellum America developed an egalitarian free labor vision that opposed not only the institution of slavery, but also the undue exploitation of “free” northern workers. 

James Ashley was one of those activists who linked the plight of southern slaves to that of northern workers.  Ashley repeatedly explained that he saw the abolition of slavery as but one step in a project to improve the lives of all workers.  In an 1856 speech, Ashley declared that he was opposed to “all forms of ownership of men, whether by the state, by corporations, or by individuals . . If I must be a slave, I would prefer to be the slave of one man, rather than a soulless corporation.”  In the same speech, Ashley said “I am utterly opposed to the ownership of labor by capital, either as chattel slaves, or as apprentices for a term of years” and spoke against the enslavement of Chinese workers through the “coolie” system.  After the Civil War, Ashley and his allies enacted the Thirteenth Amendment, which abolished not only slavery but also involuntary servitude.  Enforcing that amendment, they enacted measures which established rights for free slaves and northern workers.  More on that in upcoming posts.

Faculty Anti-Semitism, Part One: Michael Chikindas at Rutgers

This is a two-part three four-part post, on the phenomenon of anti-Semitism among university faculty members. Part One addresses the situation of Prof. Michael Chikindas at Rutgers, who has been sanctioned for posting anti-Semitic memes on his Facebook page.  Part Two will discuss Hatem Bazian, a lecturer at UC Berkeley and a founder of Students for Justice in Palestine, who has circulated equally bigoted images via Twitter. Part Three will respond to some of the defenses that have been raised on behalf of Chikindas and Bazian.

Michael Chikindas is a tenured professor of Food Science at Rutgers University. He is also an anti-Jewish bigot, as is evidenced by his Facebook posts, which often feature classic anti-Semitic conspiracy theories and grotesque cartoons that would be thoroughly familiar to readers of the Daily Stormer.  Chikindas's anti-Jewish ravings were first reported by the website Israellycool, and later by Tablet, The Algemeiner, and NJ.com, and other sites.  Chikindas is nothing if not inventive.  He claims not only that Israelis were responsible for 9/11 -- as do many well-known conspiracy theorists -- along with the standard Holocaust denial, but also that Jews, masquerading as Turks, were responsible for the Armenian genocide.  Perhaps needless to say, Chikindas denies any anti-Jewish prejudice, and claims that he is merely an anti-Zionist.  You can see several of Chikindas's posts after the jump [I am not putting them on the main page for obvious reasons] and decide for yourself about the relationship between anti-Semitism and anti-Zionism.

Meanwhile, Rutgers president Robert Barchi and Chancellor Deba Dutta have issued a strong condemnation of Chikindas's bigotry, and announced that he will not be allowed to teach required courses, so that "No Rutgers student will be required to take a course that he teaches." Chikindas has been removed from his position as the director of the Center for Digestive Health, and "No Rutgers employee will be required to work in an administrative unit that he heads."  Finally, the university is exploring further disciplinary proceedings against Chikindas, under the terms of the faculty union contract, that may possibly lead to "suspension at less than full pay."

After the jump, I will post several of the offensive images from Chikindas's Facebook page, and comment on the disciplinary measures taken against him.  Tomorrow, I will also post some similar images that were tweeted by Hatem Bazian. I am a little hesitant to post such venomous memes, but I decided it was necessary to illustrate the point about anti-Semitism in the guise of anti-Zionism, and I am confident that readers of The Faculty Lounge will recognize them for what they are.

Problems with Comments UPDATED

It appears that Typepad is for some reason closing comments on posts, even when "open comments" is selected on the composition page.  We are working on getting that resolved.

Comments now seem to be working again.

Florida International Dean Search

Dean, College of Law

Florida International University

Miami, Florida

Florida International University seeks an energetic, practical, and visionary leader with a commitment to scholarly excellence and diversity to serve as Dean of the College of Law.  Candidates with exceptional academic, public sector, or private sector experience as successful legal practitioners within complex organizational settings that involve multiple stakeholders are invited to apply.  FIU is a vibrant comprehensive university offering 180 bachelor’s, master’s and doctoral programs in 12 colleges and schools.  FIU is Carnegie-designated as both a research university with highest research activity and a community-engaged university.  Located in the heart of the multicultural South Florida urban region, FIU’s multiple campuses serve over 54,000 students, placing FIU among the ten largest universities in the nation.  Annual research expenditures in excess of $132 million and a deep commitment to engagement have made FIU the go-to solutions center for local to global issues alike.  FIU leads the nation in awarding undergraduate and graduate degrees, including in the STEM fields, to minority students.  FIU’s students reflect Miami’s diverse population, earning FIU the designation of Hispanic-Serving Institution. 

The College of Law (FIU Law) is the only public law school in South Florida, founded on the idea that a high-quality legal education should be affordable and accessible to a broad, diverse community with a commitment to public service.  FIU Law’s mission is to offer a high-quality legal education attuned to the challenges of globalization and devoted to serving the local, national, and international communities.  FIU Law prides itself on graduating professional, globalized, and culturally savvy future lawyers committed to public service.  FIU Law offers the Juris Doctor (JD) degree, a Masters of Law for Foreign Lawyers (LL.M.), a Juris Master (JM) degree for non-lawyers, and a variety of joint masters’ programs.  In fall 2017, the JD program enrolled 457 students and the LL.M. program enrolled 31 students from 12 countries.  These students are taught by a diverse faculty of 31 full-time and 46 part-time teachers.  FIU Law is accredited by the American Bar Association (ABA) and is an accredited member of the Association of American Law Schools (AALS).   FIU Law ranks as the most diverse law school in Florida and graduates the highest percentage of Hispanic attorneys of any law school in the nation.  FIU Law ranked number one in the state in the last four July examinations administered by the Florida Board of Bar Examiners. 

Alabama Politics

Well, for not the first time in recent times I find myself saying that this is an outcome I didn't expect.  I was so sure that Moore would win that I'd drafted the following after I voted on Tuesday: "I want to congratulate Roy Moore and wish him the best in the Senate.  I suspected there would be problems for Jones when my polling place had extremely light turnout this morning."   How wrong I was.  A heck of a lot of people who usually go to the polls stayed home (or voted for our football coach) and some who usually don't go to the polls made it. 

Right now, though, I want to focus on the election returns in Alabama.  While looking at this from the outside, it seems as though Alabama is monolithic.  Yet, I think many people will be surprised when they look more closely at the counties.  The counties in the "black belt" -- the counties that cross the state in the area where the rich, black soil lent itself to cotton.  Those counties are, not coincidentally, where the African American population is highest -- and hence that may also be another origin of the name "black belt."  At any rate, those counties have some of the highest percentage victories for Democrats of any counties in the US.  For example, in beloved Greene County (which I write about before the Civil War), 82% of the vote in 2016 went for Hillary Clinton.  Yeah, 82%.  Dallas County, where Selma is located, voted 72% for Clinton.  Not quite what you'd expect is it?  That's a story I've been telling a lot this fall as I've been talking about my move back from Chapel Hill.  (Of course there are other counties -- and more numerous -- where Trump performed even better.  In Winston County in north-central Alabama he won 90% of the vote.  Clinton won about 8.5%).  Many of the divisions we see in our country are visible here in Alabama.  It reminds me again of the truth of Rick Pildes' observation that you can write the history of voting rights out of Alabama -- and the corollary that you can write American history out of the history of Alabama, too. 

There is a second story, though, that I also want to tell.  So many factors went into the Doug Jones victory, such as his campaign that focused on his history of prosecution of the 16th Street Baptist Church bombers -- (and I might add factors that went into the Roy Moore loss--like the Washington Post story about Roy Moore's history in Gadsen back in the early 1980s). And with that I'm going to turn back to writing some legal history -- though the first thing I'm going to talk about is a paper on the 1802 Bertie County rebellion in North Carolina.  Then, when that's done you'll be hearing a lot about a duel fought over accusations that a slave committed arson in Dallas County in 1853.

Fishing Blues

If anyone today remembers Fishin' Blues, it is most likely the rollicking, good-time version released by the Lovin' Spoonful in 1965.  As with Going Up the Country, however, the original was recorded by Henry Thomas in the 1920s, in which he also played the quills.

Here is the Henry Thomas version, which is considerably more bluesy than the Spoonful's:

 Here is the Lovin' Spoonful rendition:

More Proof of the Correlation Between LSAT Scores and Bar Passage - InfiLaw Edition

For those of you who are still questioning the correlation between LSAT Scores and Bar Passage Rate, I recently compiled some statistics on the three InfiLaw schools which are extremely telling.

I looked at the Median LSAT score of the admitted matriculated students for five classes (2010 to 2014) at all three InfiLaw schools (Arizona Summit, Charlotte and Florida Coastal) and then looked at the first-time bar passage rate of the graduates of these schools three years later (2013-2017) in the state where the schools were located, which was where the majority of the graduates took the bar exam.  

ARIZONA SUMMIT SCHOOL OF LAW - Arizona Bar Exam

Year Matriculated	Median LSAT	Year Graduated	First-time Pass Rate
2010	151	2013	70.1%
2011	148	2014	54.7%
2012	145	2015	41.6%
2013	144	2016	32.4%
2014	144	2017	28.5%

 

CHARLOTTE SCHOOL OF LAW - North Carolina Bar Exam

Year Matriculated	Median LSAT	Year Graduated	First-time Pass Rate
2010	149	2013	60.4%
2011	148	2014	57%
2012	146	2015	45.6%
2013	144	2016	42.6% est.*
2014	142	2017	29.1% est.*

 

FLORIDA COASTAL SCHOOL OF LAW - Florida Bar Exam

Year Matriculated	Median LSAT	Year Graduated	First-Time Pass Rate
2010	149	2013	68.6%
2011	147	2014	60.8%
2012	146	2015	61.6%
2013	144	2016	47.4%
2014	143	2017	41.7%

I will let these numbers speak for themselves.  But I can’t help noting one other statistic from the two administrations of the Bar Exam in Arizona this year.  In July 2017, Arizona Summit had 17 of its 94 repeaters pass for an 18% rate.  In February 2017, 19 of 110 Arizona Summit repeaters passed for a 17.2% rate.  So any claims from InfiLaw that their students have a high “ultimate” pass rate should be taken with a large grain of salt.

Note - I extracted this data either from the school’s ABA Standard 509 report or from the State Bar’s published statistics, or both.   

*These numbers are estimated because the North Carolina bar released only the February and July pass rate, not the exact number of takers and passers, so I had to estimate the ratio of summer takers to winter takers.  I assumed three July takers for each February taker in 2016 and a 1:1 ratio in 2017 based on the best information available.  The February 17 rate was 25% and the July 17 rate was 34.1%.

The Jurisprudence of The Help

I'm excited to be back in the classroom in the spring and particularly excited to be teaching trusts and estates.  As I've been pulling my course together -- and dusting off a lot of notes about the Alabama probate code -- I have been thinking back to the movie The Help.  I want to use a vignette from The Help about a testator who "devised" her domestic servant to one of her children.  (How is it possible that movie came out six years ago?!)  Here's the excerpt from the screen play with the vignette that Cora tells about her relationship with her employer and her employer's daughter:

I worked for Miss Jolene's mother 'til the day she died. Then her daughter, Miss Nancy, asked me to come and work for her. Miss Nancy's a real sweet lady. But Miss Jolene's ma done put it in her will I got to work for Miss Jolene. Miss Jolene's a mean woman. Mean for sport. Lord, I tried to find another job. But in everybody's mind the French family and Miss Jolene owned me. Owned me.

And then the vignette comes up again near the end of the movie when several young women are trying to figure out if the book is based on their lives.  One woman says, "And, Jolene, didn't your momma leave Cora to you in her will?"  To which Jolene responds that, "Well, yes...But that's not odd, is it? Happens all the time, right?"  Well, there you have it, testimony that this might have happened with some frequency!

I've got a friend in Jackson searching for an actual example of such a will -- but for the spring I may just talk about this as one of many expressive statements that testators put into wills.  We'll see if an actual example ever turns up.  Still, you never know what you'll find in courthouses....

I don't see that vignette in Kathyrn Stockett's the novel The Help.  Yet, there is much law in the novel.  For instance, Skeeter reads a pamphlet "Compilation of the Jim Crow Laws of the South." What I'm not sure is whether the pamphlet was designed originally to critique Jim Crow--though I suspect it was.  (And maybe along the lines of James Chadbourn's Lynching and the Law.) In particular, though, I am intrigued by this: one of the women that Skeeter interviews asks about what law reform she thinks might be useful.  It is, actually, a question designed to show that reform is unlikely to be effective.  As in, "what kind of law could possibly work to improve my life?"  That question captures the sense of the limits of law.  There is, though, another exchange that blurs the line between law and culture (much as the vignette about Cora being devised to Miss Jolene does) -- it is where one of the women tells Skeeter that "Half this stuff don't have nothing to do with colored rights. ... Look to me like you just writing life." This is strangely reminiscent of Thomas Carlyle's essay "On History," where he talks about law as the stage on which we act.  It is also an important reminder that law and life blur together -- as the recent excellent literature on the law of social movements also makes clear.  That is, while Skeeter is looking at Jim Crow laws and trying to write a sociological analysis of domestic workers she's learning that law and social norms blend together.  For the women she is writing about, there are not distinct boxes of Jim Crow law and treatment by employers.

  You can check out those vignettes here.

Obviously I'd love any advice readers have on where to locate such a will -- or one like it.  Maybe a trip over to the Jackson probate office is in order.  I'm always pleasantly surprised by my trips to probate clerks.  You never know what cool wills you'll find.

Was Victor Laszlo a Heckler? UPDATED

Writing at PrawfsBlawg, Howard Wasserman has an interesting take on my recent post about the La Marseillaise scene in Casablanca.  He calls it "the greatest heckler's veto in cinema history," explaining that "Major Strasser and the Nazis are Milo Yiannopoulos or Ann Coulter or Charles Murray; everyone else in the bar are angry campus liberals or SJWs; and the latter spoke so loudly over the former as to drown-out its speech, make it impossible to be heard, and cause them to stop speaking."

Howard has written a series of posts about the heckler's veto, in which he expresses some sympathy for disruptive counter-speech.  He therefore raises the La Marseillaise scene as a much admired example of drowning out an objectionable speaker -- in this case actual Nazis.  He asks rhetorically, and perhaps sarcastically,  "Perhaps the Allies in the bar should have allowed the Nazis to finish their song and then sung their own. Or they should have gone to another space. Or they should have listened to the ideas in the Nazi song and given them a chance to persuade."

Of course, the analogy is imperfect, but Howard does a good job of using it to raise an interesting question. Let me just point out that the Nazis in Casablanca were a nearly-occupying army, and thus the de facto government, so this was not a case of merely competing speakers.  In any case, the point of singing La Marseillaise was not so much to prevent the Nazis from singing (although they did quit) as it was to raise the spirits of the refugees.  The Nazis, after all, were not singing to a willing audience in the first place, and there was nothing to keep them from continuing to sing among themselves.  The only thing Laszlo prevented was the imposition of Die Wacht am Rhein on unwilling listeners.

The contemporary issues are more complex, but I generally come down on the side of letting everyone speak. 

UPDATE: There is a longer discussion of these questions in the comments to Howard's post on Prawfs.

Olympic Doping

In light of the recently announced ban on the Russian team for the 2018 Winter Olympics, Scientific American has republished "The Scientific American Guide to Cheating in the Olympics."

Here is the gist:

It seems reasonable to ask: Have we made any progress against doping in sports?

Well, yes and…not really. One the one hand, WADA-accredited labs processed an astounding 186,073 blood and urine samples in 2014, the most recent year for which figures are available. Slightly less than 1 percent of those came back with an “adverse” or “atypical” finding, jargon for a positive or suspicious result. That translates into a large number of positive tests—but contrast that figure with the 29 percent of athletes at a major international meet who, when promised anonymity by researchers, admitted to using PEDs. Clearly, plenty of cheaters are getting away with it.

The sad truth is that athletes continue to test positive for many of the same things that they have been using historically: amphetamines and other stimulants, becoming popular in the 1950s; anabolic steroids in the ‘70s and ‘80s; EPO and human growth hormone from the ‘90s to the present. Anabolic agents remain the most widespread class by far, with over 1,400 positives in 2014 across all sports. That number includes some 76 athletes who returned positive tests for that 40-year-old standby, Oral Turinabol—which was taken off the market, but like many other doping drugs, is just a few clicks away on the Internet.

First published in August 2016, the article goes on to explain the major forms of doping, the various means of testing, and the known methods of evasion.  It is well worth reading.

Casablanca and La Marseillaise

A recent article by David Youngblood argues that the La Marseillaise scene in Casablanca is the single greatest scene in cinema history.  I don't know enough film history to agree or disagree, but Youngblood's explanation has significant implications for structuring advocacy techniques well beyond the movies.  He emphasizes the importance of the "turning point," in which the meaning and direction of the story become clear.  As Youngblood puts it:

The scene marks a major turning point in the film. Directly preceding this scene, the bar owner Rick (Humphrey Bogart) refuses to give or sell letters of transit to the war hero/revolutionary Victor Laszlo (Paul Heinreid). The letters of transit are the only hope of freedom for Victor, and his only chance at returning to his efforts at insurgency against the Nazis; Rick knows this, but is still too hurt and bitter that his lost love Ilsa (Ingrid Bergman) has chosen Victor over him. Rick’s refusal is essentially a Nazi victory, despite his careful attempts at framing his (in)actions as simple neutrality. The Germans, led by Major Strausser (Conrad Veidt), have established a de facto control over Casablanca, acting through the openly self-interested French Captain Louis Renault (Claude Rains).

After “La Marseillaise,” everything changes. The uneasy stalemate between Victor Laszlo and Major Strausser can no longer continue in the face of such open defiance of German power. Strausser orders Renault to find a pretense to shut down Rick’s — leading to arguably the film’s best exchange of dialogue. Strausser uses Ilsa to increase the pressure on Victor. Everything kicks into gear, as now Rick, Ilsa, Victor, and Louis are all forced into unpleasant decisions that will push the film toward its climax.

Litigators often recognize the potential importance of a key fact or a revealing instance that makes everything else fall into place.  For Youngblood, that happens in Casablanca when Victor Laszlo shows the courage to confront the Nazis in Rick's Cafe.

You can read the full review here, with a moment-by-moment breakdown of the characters' reactions.

Here is the scene:

 

InfiLaw in the WSJ

The Wall Street Journal recently ran a front-page article about the rise and fall of InfiLaw.  The article mentioned that when I was a candidate to be the Dean at Florida Coastal School of Law in April 2014 I was shocked by the credentials of the students that Florida Coastal was admitting.  This is true.  Yesterday, the WSJ ran a Correction & Amplification regarding this story. The correction stated:

A Page One article on Nov. 25 about InfiLaw System law schools included criticism from David Frakt about the academic credentials of Florida Coastal Law School’s incoming students. The article omitted the company’s response that the school’s incoming class of 2013 had a median undergraduate grade-point average of 2.97 and that 73% of its graduates between 2007 and 2014 with an LSAT score below 145 passed the bar exam.

There are several things worth noting about InfiLaw’s response. 

First, assuming InfiLaw’s reporting is accurate (and they have not publicly released their data), it is critical to note that they refer only to those of their students with an LSAT score below 145 who graduated. InfiLaw asserts that of those who graduated, 73% passed the bar exam.  This begs the question - how many students at 144 and below flunked out?  Undoubtedly, this is a number that InfiLaw would not be proud to publicize.  Also, the 73% rate for those at 144 and below appears to be an eventual or ultimate pass rate, not a first-time pass rate.  As a point of reference, the ABA has proposed an 85% ultimate pass rate within two years as a minimum standard.

It is also important to note the timing that InfiLaw references.  InfiLaw references graduates from 2007 to 2014.  Florida Coastal was far more selective in its admissions before the great decline in applications which started in 2011 and continued from 2012 to 2015.  For example, in 2008 and 2009, the entering classes were at 153/150/147.  At that time, Florida Coastal admitted few students at 144 and below, and could admit only those 144s with relatively strong academic records.  The graduating class of 2014 was primarily composed of students from the entering class of 2010 and 2011.  Although Florida Coastal started to drop their standards in 2010, they were still at a marginally acceptable level at that time.   The entering class of 2010 had LSATs of 152/149/146.  The class of 2011 was at 151/147/145.  But the class of 2014 -- the one that the Wall Street Journal noted that I found shocking -- was at 147/143/140, placing the majority of the class at extremely high risk of failure, and representing an enormous drop in aptitude across the entire class.  Instead of taking a handful of 144s with good grades, or who did well in a rigorous admission by performance program, Florida Coastal started admitting almost every student above 140 that applied and many students with LSATs in the 130s, something previously unheard of at an ABA-Accredited law school.  Over 77% of all students who applied in 2014 were admitted.  UGPAs were also down across the board.  The WSJ Correction references a UGPA median of 2.97 in 2013.  This is hardly something to write home about., given that the average GPA for college graduates is 3.15.  In 2014, FCSL's median was down to 2.93.  More importantly, at the 25% point, the UGPA was an appalling 2.63.

The admissions policies at all three InfiLaw schools (Charlotte School of Law, Florida Coastal and Arizona Summit), were centrally driven by InfiLaw and were virtually identical from 2012-2015.  All three schools admitted hundreds of students that InfiLaw knew were not capable of completing a rigorous JD program and passing the bar, with disastrous, and completely predictable, results.  Their efforts to justify these admissions practices shouldn't fool anyone. 

Brain Health Quiz Update

Some readers may recall my post about the sketchy "Brain Health Quiz" used as a marketing device by North Shore University Health Systems.  My article about it appeared last August in Undark Magazine, and I blogged about it here.  Well, Undark has now published a follow-up article by reporter Michael Schulson, and it appears that North Shore has withdrawn some of its more questionable claims.  Here is what Schulson discovered:

NorthShore defended the quiz as a valuable tool for patient education. The bioethicists and public health experts that Lubet contacted were more skeptical. More than a month after Undark published Lubet’s piece, NorthShore added a disclaimer at the bottom of the questionnaire, stating that this is “not a diagnostic tool and is not a substitute for a physician exam,” and added a note describing the quiz as “for educational purposes only.” It also stopped referring to the quiz as “a screening test.” And, even before those changes, NorthShore had apparently tweaked the algorithm so that responding “yes” to the question “Are you worried about your brain health?” would not trigger a risk warning, as it did when Lubet inspected the quiz. But other than that, the quiz itself — and the inclusion of the handy phone number — didn’t seem to change.

You can read the follow-up article here.

Milewski, Litigating Across the Color Line

Over at the legal history blog Melissa Milewski spent last month talking about her new book Litigating Across the Color Line: Civil Cases Between Black and White Southerners from the End of Slavery to Civil Rights, which is about African Americans in who litigate against white people during the era of Jim Crow.  This is an exciting book and an important project.  You can also read about it in the November 2017 issue of The American Historian and also find some important teaching resources at her website.  Litigating Across the Color Line has some obvious connections to the growing literature on free people of African descent who litigated in the southern courts before the Civil War -- and even the occasional enslaved person who sued (or had a white person sue on their behalf) in the pre-Civil War south.

Who Wants to Be a Citizen?

Meghan Markle has announced that she plans to become a British citizen following her marriage next year to Prince Harry.  Among other requirements, she will need to take a 24-question written test, with a minimum passing score of 75%.  The subject matter of the British test has been described as arcane and unnecessarily difficult, including questions about the Statute of Rhuddlan (annexing Wales to England) and the identity or location of Vindolanda (a Roman fort near Hadrian’s Wall).  The answers are helpfully provided in a booklet published by the Home Office, and the test itself is multiple choice, so it should be reasonably manageable for Markle, who is a 2003 graduate of Northwestern University. Still, applicants are allowed only 45 minutes to complete the test – slightly less than two minutes per question – so Markle may have to call upon her by-now rusty SAT skills in order to finish on time.

If Prince Harry were ever to apply for U.S. citizenship, he would find the American test somewhat less demanding than the British one.  There are only ten questions required of aspiring U.S. citizens, administered orally by a naturalization examiner, with a passing score of six.  The questions themselves are drawn from a set of 100 civics and history questions issued by the United States Citizenship and Immigration Service (USCIS), available in both booklet form and on-line, along with the approved answers.  There are no questions quite as obscure as the Statute of Rhuddlan, which was enacted in 1284, but some of them do seem far from essential for establishing citizenship.  

After the jump, I will provide some examples of questions (and approved answers) on the U.S. naturalization test that are trivial, misleading, or just plain wrong.

The Forgotten Emancipator #2: Antislavery Constitutionalism

In an 1860 speech to, James Ashley said "I do not believe that the Constitution of my country recognizes property in man."  How could Ashley have made this statement four years after the United States Supreme Court declared a constitutional right to own slaves in the infamous decision of Dred Scott v. Sanford?  The 1860 Constitution contained many provisions that seemed to authorize slavery, most notably including the Fugitive Slave Clause, which required states to cooperate with the retrieval of fugitive slaves.  Yet Ashley was far from alone when he argued that the Constitution prohibited slavery, well before he led the movement to amend the Constitution to abolish it.  

Many leaders in the 1840s and 1850s political antislavery movement argued that slavery was not immoral, but also unconstitutional.  these leaders included James Birney, a journalist and founder of the Liberty Party; Theodore Dwight Weld, a leaded in the American Anti-Slavery Society; Joel Tiffany, an Ohio lawyer who wrote an influential Treatise on the Unconstitutionality of Slavery; and Lysander Spooner, a Massachusetts journalist who also wrote an influential treatise.  Leaders in the Reconstruction Congress, including James Ashley, were influenced by the antislavery constitutionalists and their theories of rights.  During Reconstruction, they sought to enshrine those rights indelibly into constitutional law with the Reconstruction Amendments and statutes enforcing those amendments.

Antislavery constitutionalists  claimed that slavery violated the Due Process Clause of the 5th Amendment because it deprived slaves of liberty without due process of law, and the Guaranty Clause because a state government which sanctioned slavery was not a republican form of government.  Some argued that slavery violated the privileges and immunities of citizenship of free Blacks.  Many also claimed that slavery violated natural rights recognized by the Declaration of Independence, which they claimed was enforceable via the Preamble to the Constitution.   Ashley was influenced by the antislavery constitutionalists and their theories of rights.  Well before the 13th and 14th Amendments became law, Ashley insisted that slaves and free Blacks had a right to due process, liberty, and the equal protection of the laws.  

The Supreme Court rejected the arguments of the antislavery constitutionalists in the Dred Scott decision.  But in the antebellum era, political activists did not assume that the Court had the monopoly on constitutional meaning.  Moreover, Ashley and the other antislavery activists knew that making their political arguments in constitutional terms gave those arguments added weight and force.  They engaged in popular constitutionalism, as have numerous advocates for rights throughout the history of our country.  Thus, the antislavery constitutionalists are a prime example of constitutional politics affecting constitutional development.

Perry Wallace (1948-2017)

Michael Bressman sends along the sad news that long-time American University law professor Perry Wallace has passed away.  Though people in the academy knew Wallace as a scholar of environmental and corporate law, he blazed other paths as a young man.  In 1967 he was the first African American basketball player in the SEC, when he played for Vanderbilt University, where he was an engineering student.  The Washington Post has a moving reviewing of a Andrew Maraniss'  2014 biography of Wallace, Strong Inside: Perry Wallace and the Collision of Race and Sports in the South.  Cribbing now a little from the review, as it discusses an away game he played in Oxford, Mississippi, at Ole Miss:

Wallace recalls people in the crowd screaming, “We’ll lynch you, boy!”

Shortly before halftime came a blow “so fast that no one knows who threw the elbow,” Maraniss writes. It drew blood, to the delight of some of the spectators. When halftime ended, Wallace was left alone in the locker room with a bag of ice and a swollen eye. He was “shaken not just by the physical blow but by the relentless taunting. . . . He could hear the Ole Miss crowd react when his teammates returned to the court without him: “Did the nigger go home? Where’s the nigger? Did he quit?”

Wallace, who had become the first black player in the Southeastern Conference two years earlier, returned to the game and helped Vanderbilt win, but no one from his team accompanied him back to the court. “He understood more clearly than ever that his journey as a pioneer was one that he would be making alone.”

Wallace was drafted by (my beloved) 76ers but he went a different path -- to Columbia Law School, where he graduated in 1975, then to Washington, DC, in the executive office of Mayor Walter Washington, then to George Washington University where he taught and served as assistant director of the Department of Experimental Programs, and then to the Department of Justice as a trial lawyer for five years.  Wallace began teaching at the University of Baltimore in 1985 and moved to American University in 1992.

The Nashville Tennessean has a lengthy obituary, which quotes from one of Professor Wallace's high school teammates on Wallace's strength and optimism: "But through it all, he said that being bitter can eat you alive. And I thought that was so noble of him, because a lot of the bitterness that he might have had during that time has subsided now. It's over and done with and he didn't allow it to change him as a person."