The Faculty Lounge

Northwestern University Law Review: Exclusive Submission Window for Empirical Legal Scholarship Issue

Here is the announcement:

The Northwestern University Law Review is pleased to announce its first annual issue dedicated to empirical legal scholarship, to be published in spring 2019. We welcome pieces making use of any and all empirical tools—including qualitative, quantitative, and mixed methods—to illuminate and engage questions of legal interest.

The exclusive submission window for this issue will run from March 15 - April 15, 2018. All pieces of interest will be anonymously reviewed by members of the Northwestern University Law Review’s Empirical Advisory Board, comprising faculty from Northwestern and the American Bar Foundation, in advance of publication decisions to be issued by July 31, 2018.

In exchange for this prioritized consideration, participating authors agree to withhold the article submitted through our exclusive submission track from submission to any other publication until receiving a decision back from the Law Review. By submitting an article via the exclusive submission track, the author agrees to accept a binding publication offer, should one be extended. Please note that some pieces may be conditionally accepted upon the advice of advisory board reviewers.

Please contact Northwestern University Law Review Empirical Articles Editor Meredith McBride with questions at meredithmcbride2019@nlaw.northwestern.edu.

Arthur Frakt (1939-2018)

I regret to announce that on February 3, 2018, my father, Arthur Frakt, a retired law professor and law school administrator, died peacefully at his home in Alta, Wyoming. He was 78 years old.

Arthur was born in Newark, New Jersey, to Sam and Clara Frakt on Halloween 1939. Although the dates didn’t exactly match, he was fond of saying “the Nazis marched into Poland and I arrived in New Jersey.” He grew up in Nutley, New Jersey, not far from the local tennis club where the “old guys” took him under their wings and taught him the sport which became his life-long passion. Arthur attended nearby Rutgers University where he was a star student-athlete, competing both as a member of the varsity tennis team, and on Rutgers’ national champion G.E. College Bowl team, which went undefeated in five matches broadcast live on national television. A reporter later wrote about one of his appearances that he “stunned moderator, audience and teammates alike during the 1960-61 television season with his answer to a question.” The moderator asked: "What famous English novel. . . “and Arthur buzzed in and correctly answered "A Tale of Two Cities." He told me that he just had a feeling that the question was "What famous English novel begins with the words: 'It was the best of times, it was the worst of times?'”.  How he knew remains a mystery to this day.

After college, Arthur briefly taught high school geography in Wisconsin before returning to New Jersey. He had served in the National Guard throughout college and decided to enlist to serve in Vietnam. On the way to the recruitment center he dropped by the law school to visit a buddy. He happened to ride up in the elevator with the Dean of the law school. By the time they reached the Dean’s office, the Dean had talked Arthur out of war and into enrolling in Rutgers Law School. (He took the LSAT after a few weeks in school). He was at the top of his class and was Articles Editor of the Law Review. After he graduated in 1965 he became Deputy Attorney General for Civil Rights for the State of New Jersey. His interest in civil rights and his membership in the American Civil Liberties Union were other life-long passions. When New Jersey decided to start a second state law school in Camden, Arthur was recruited to join the faculty. He later was promoted to Associate Dean. As a young law professor, he was granted a research sabbatical, which he decided to spend in California. There, he met his future wife, Janna Rankin. Janna was attending law school in the evening at the time at Santa Clara. A mutual friend arranged for the three of them to go to dinner where they had a spirited political discussion. They found they had a mutual passion for civil rights, and, more importantly, each other. They continued the discussion the next day and it continued for almost 50 years.

In 1982, Arthur was appointed Dean of Loyola Law School in Los Angeles, California, where he oversaw the school’s transformation from a regional law school to a highly respected national law school. Arthur was an early champion of faculty diversity and recruited many women and minority faculty members who have gone on to great prominence. He was much beloved there by the staff and faculty. He served as Dean until 1990, when he rejoined the faculty.

In 1992, Arthur was lured back to the East Coast to serve as Dean of the Law Center and Vice President of Widener University. At the time, Widener had two campuses, one in Harrisburg, Pennsylvania, and the other in Wilmington, Delaware, with a combined enrollment of over 2000 students, and he was the Dean of both. Widener also had a highly regarded paralegal program and a unique joint nursing/J.D. program which he oversaw. Arthur embarked on a multi-year campaign to raise standards and improve the facilities at the school. Unfortunately, in 1996, he was diagnosed with Stage-4 oral cancer. Radical surgery and a long course of radiation treatments left him extremely weakened, and he was forced to take early retirement. Arthur had dreamed of living in the Rocky Mountains and he and my mother commissioned an architect to design their dream home in Alta, Wyoming in the foothills of the Grand Tetons. The mountain lifestyle proved to be restorative, and after a couple of years of retirement, and with his cancer in remission, Arthur was lured out of retirement to serve as a consultant on the founding of a new law school at Drexel University in Philadelphia. After the successful launch of Drexel Law School, he was recruited to serve as a Special Assistant to the Dean at Western State University School of Law in Orange County, California, where I was a faculty member at the time. He helped engineer a dramatic turn-around at Western State, raising the bar passage rate above the state average and helping Western State secure full ABA-Accreditation after many years in provisional status.

In addition to being a highly skilled law school administrator, Arthur was a respected writer and scholar. Over the course of his professional career he wrote numerous books, chapters, and articles. His focus areas included Constitutional law, civil rights, educational policy and reform, defamation and privacy law, workers compensation and ski area liability.

In 2009, he re-retired from legal academia and focused on his life-long passion for tennis, with a healthy dose of hiking and skiing on the side. He served as the coach of the Jackson Hole High School Tennis Team and as the head tennis umpire for the Wyoming Tennis Association. Arthur continued to compete in tennis at a high level right up until last summer. Some of his (and my) proudest moments were competing and not infrequently winning doubles tournaments with me.

Arthur is survived by his wife Janna Rankin, his brother Steven Frakt,  my brother Alex and I, his four grandchildren, Max, Danny, Quinn and Roxy, and his two rescued Viszlas, Cooper and Arya. Arthur will be remembered by all for his great humanity, wit, compassion for others, and his unbending integrity in all matters.

Remembrances from those who knew him are welcomed in the Comments section.

 

"Beyond the Slave Trade, the Cadaver Trade"

Yesterday’s New York Times had an oped by Daina Ramey Berry, in which she describes the use of black cadavers at American medical schools in the years before the Civil War.  Here is the gist:

One shocking fact that’s recently come to light: Major medical schools used slave corpses, acquired through an underground market in dead bodies, for education and research.

Yes, there was a robust body-snatching industry in which cadavers — mostly the bodies of black people, many of whom had been enslaved when they were alive — were used at Harvard, the Universities of Maryland, Pennsylvania and Virginia, and other institutions.

This reminded me of the execution of John Anthony Copeland and Shields Green for their participation in John Brown's attempt to free the slaves of Virginia in 1859. Copeland was from a free black family in the abolitionist town of Oberlin, Ohio. Green had been introduced to John Brown by Frederick Douglass. The two men were taken prisoner following the collapse of the raid, brought to trial, and hanged on December 16, 1859. Within hours of the execution, the two bodies were exhumed by a band of medical students and taken to nearby Winchester College for dissection. Copeland's family tried mightily to retrieve his body for religious burial in Oberlin, as I describe in The "Colored Hero" of Harper's Ferry. A slightly edited excerpt follows after the jump.

Hank Williams

"I Can't Help It If I'm Still in Love with You," with Anita Carter (introduced by June) in 1952: 

"Hey, Good Lookin'"

"Jambalaya" (live, but audio only): 

Race, law, and the Super Bowl

The Super Bowl is the National Football League’s championship game, an advertising extravaganza in which 100 million television viewers are expected to watch the New England Patriots and the Philadelphia Eagles compete for the Lombardi trophy.

However, the Super Bowl was not always the NFL’s championship game. In its earliest days, the Super Bowl pitted the NFL champion against the champions of a completely different league: the American Football League. The rivalry between the NFL and AFL is not only an interesting chapter in sports history, but also a turning point in the racial dynamics of professional football, one with ramifications that are still felt today.

Book Publishers in the Era of Jim Crow

On the heels of the American Historical Review's discussion of de-colonizing their journal -- and my comment that I hoped they would talk more about what they had published -- Autumn Barrett of NYU's anthropology department and I have an op-ed in Fortune.  We catalog the books published in the twentieth century by publishers still in existence that supported Jim Crow (or had a surprisingly positive view of slavery).  As Rebecca Zietlow's post this morning on teaching of slavery in school makes clear, there is a long tail to these interpretations made popular during the era of segregation.  The op-ed is provocatively titled, "Why Haven’t Publishers Apologized for Their Books That Glorify Slavery?"  But we could an even more tame question, why haven't they addressed their role in promotion of the ideas of Jim Crow segregation and eugenics (and slavery, too)?  Amidst all the discussion of universities' connections to slavery and segregation, the culpability of insurance companies for insuring slaves before the Civil War, and banks that took mortgages on slaves, I might have thought we'd hear more about the intellectual supports for Jim Crow.

I hope soon to talk about Lathrop Stoddard, whose Rising Tide of Color is really something.  (He started off life as a legal historian.)  I had a short piece last year on an article in the Yale Law Journal that discusses an article that had a pro-Confederate interpretation of the Fugitive Slave Act of 1850.

The Problem with Standard 501(b): Cooley Law School’s Challenge to the ABA and a Proposal for Reform

For some time, I have been arguing that many bottom-tier law schools have been violating Standard 501(b)’s mandate to admit only students who “appear capable of satisfactorily completing its program of legal instruction and being admitted to the bar,” by admitting many students who are at extremely high risk of failure. Through my writing on this site and through my work with Law School Transparency, I have encouraged the ABA to more vigorously enforce this Standard and hold schools accountable for their exploitative admissions practices.  Over the last couple of years, the ABA has begun to heed this call.  In fact, the ABA has notified at least 11 law schools that they are out of compliance with this Standard.  I discussed the first 10 in this post.  The eleventh and latest, notified just last month, was North Carolina Central.  (Note – The ABA’s notice came three weeks after I urged the ABA to “take a hard look at NC Central” in this column. Turns out that the ABA Council had already done so at its meeting the week before.)

The notified schools have responded in a variety of ways to the ABA, but most have acknowledged a need to raise their LSAT scores at the 25^th and 50^th percentiles to come into compliance.  The first two schools found out of compliance were Ave Maria and Valparaiso.   Ave Maria raised its standards enough to get out of the ABA doghouse and seems to be on the path to stability and maybe even respectability.  Valparaiso also admitted that it lowered its standards too far, and raised its standards significantly, but found that it could not attract enough students meeting its new higher standards to remain economically viable, and appears headed for closure.  This may explain why Texas Southern, Appalachian, and Thomas Jefferson have made little, if any, effort to raise their standards despite the ABA’s warnings.  Florida Coastal, informed by the disaster at sister school Charlotte Law School, and warned repeatedly by me that sanctions were inevitable, tried a different approach. It began to voluntarily raise its standards last year, before the ABA got around to issuing its non-compliance letter.  Coastal is are now arguing that the school should not be found out of compliance just because their standards used to be too low.  Arizona Summit has also admitted that it allowed standards to drop too far and has announced that it plans to try to raise standards, but it is far from clear that it is economically feasible for them to do so.  In contrast, NC Central promptly announced it would shrink its incoming class in order to raise admission standards, and take additional steps to evaluate its admissions process.  With the support of the University as a whole, it seems likely that NC Central will be able to rebound.

Western Michigan University Thomas Cooley Law School (Cooley) has taken a very different approach.  Not only has it refused to admit any wrongdoing, it has actually filed a lawsuit against the ABA challenging the finding of non-compliance and attempting to block any enforcement action.  In their most recent amended complaint, Cooley asserts, in essence, that Standard 501(b) is simply too vague to be enforceable, and complains that the ABA has refused to “state or explain the meaning of the term ‘appear capable’”.  Cooley also complains that the ABA is playing hide the ball, asserting “on information and belief, the ABA has provided its site inspectors and other evaluators guidance on the meaning of ‘appear capable’ which has not been provided to WMU-Cooley or other institutions.”

In fact, according to Cooley, they are utterly mystified about why they have been found out of compliance with this standard: 

WMU-Cooley does not know why the Committee and Council believe that WMU-Cooley is admitting students who do not “appear capable.” The Committee has not provided LSAT or GPA metrics to justify its decision, nor did the Committee explain what changed between WMU-Cooley’s successful reaccreditation in December of 2015 and May 2016, the date of the initial monitoring request, only five months after reaccreditation.

While, for reasons that I explain below, Cooley’s assertion that they don’t understand the basis for the ABA action is specious, I believe that Cooley does make a fair point about the ABA’s lack of transparency.  I believe the ABA probably does provide secret unpublished

Teaching About Slavery in Schools

A new report issued by the Southern Poverty Law Center shows that our nation’s schools are failing at teaching the history of slavery in the United States to our children.   According to the report, “Schools are not adequately teaching the history of American slavery.  Educators are not sufficiently prepared to teach it.  Textbooks do not have enough material about it.”  Too often, slavery is romanticized and its cruelty underplayed.  Students do not learn about the centrality of slavery to our nation’s economy and overall history.  As a result, only 8 percent of 12^th graders surveyed identified slavery as the cause of the Civil War.   

As a scholar of the Reconstruction Era with a daughter currently taking AP U.S. History, this issue is especially interesting to me.  Unfortunately, I am not at all surprised.  Over the course of our history, the history of slavery and the Reconstruction Era has been heavily contested and politicized.  During the early Twentieth Century, the dominant school of history, known as the Dunning school, framed Reconstruction as northern domination and exploitation of the south.  In popular culture, the movie “Gone with the Wind” reflected this view.  Starting in the 1960s, and inspired by the Civil Rights movement, historians such as Eric Foner and Michael Les Benedict shifted the dominant narrative and showed that Reconstruction was a time when the federal government established fundamental rights for freed slaves and all people in the United States.   However, the new report shows that this historical consensus is not being adequately taught to our children.

It is not surprising that the dispute over the history of this era in the academy spilled over to our country’s elementary and secondary schools.  Michael Kent Curtis details this history in this marvelous essay.  In the early and mid-Twentieth Century, school children in northern states learned about the “War Between the States” and those in southern states studied the “War of Northern Aggression.”  Recent debates over the statues of confederate war heroes revealed the extent to which southern states romanticized the “lost cause” of the southern rebels.  Teaching about the brutal reality of slavery undermined this narrative, as did the indisputable fact that the confederacy was founded to protect slavery (made clear in the Confederate Constitution).  In the north, downplaying slavery implicitly justified the federal government’s failure to intervene in the Jim Crow south, and ignoring racism and segregation in the north.

Unfortunately our nation’s schools have not made much progress in the teaching of the complex and difficult subject of slavery and race in our nation’s history.  The continued failure to adequately teach about slavery is both disappointing and consequential.  The history of slavery still profoundly affects our country.  We can see echoes of slavery in the vestiges of Jim Crow, the mass incarceration of African Americans, the effective use of racism as a political rallying cry.  Misunderstanding our history also affects our law, reflected in the Supreme Court’s race blind approach to the Equal Protection Clause and restriction of voting rights laws.  The history of slavery is profoundly important, and it always will be in our racially troubled nation.

Super Bowl Week OpEd

As the Super Bowl approaches, Phil Cook and I have an OpEd running in the Raleigh News & Observer and other venues. Below is a taste, but you can read the whole thing here. Our paper on this topic, forthcoming in Law & Contemporary Problems, is available here. 

Why ban payment to kidney donors but not football players?

BY PHILIP J. COOK AND KIMBERLY D. KRAWIEC 

February 01, 2018 01:06 PM

Super Bowl week rivets national attention on America’s most popular and lucrative sport, professional football. If stories of concussion and permanent injury to players make some fans uneasy, there is always the reassuring fact that the players volunteer for the job and are well compensated – so well compensated that there are untold thousands of young men who would gladly take their place.

Football is so ingrained in our culture that we generally accept this situation without much scrutiny. However, our research got us thinking about the stark contrast with another risky but valuable activity – kidney donation.

About 6,000 people per year donate one of their two kidneys. This selfless act has some risk to the donor, both from the surgery and years later when there is a chance the remaining kidney will fail. In return, kidney donors are rewarded with the knowledge they helped save the life of a loved one. They receive nothing tangible. Indeed, federal law bans compensation for kidney donors, as do the laws of all other countries except Iran (really).

So, why do we pay football players to entertain the public, but are unwilling to pay kidney donors to save lives?

The stakes in both cases are high, but much higher in kidney donation. The total value of NFL teams is about $60 billion. If, in some unlikely future, the risk of serious permanent injury to players led to a ban on professional play, that value would be destroyed.

Meanwhile, the ban on compensation for living kidney donation currently costs thousands of lives and billions of dollars in taxpayer money every year. The waiting list for a kidney now includes 100,000 patients, who for the most part are kept alive by renal dialysis at federal government expense. If they survive long enough, typically more than five years, in this debilitated state, they may hope to rise to the top of the list and receive a kidney from a deceased donor.

. . . 

Millions of Americans, not just NFL players, work in occupations that have a substantial risk of serious injury. Loggers, fishermen and others accept these risks in exchange for compensation. Extending that list to include kidney donors is just common sense.

PHILIP COOK IS TERRY SANFORD PROFESSOR EMERITUS OF PUBLIC POLICY AND PROFESSOR OF ECONOMICS AND SOCIOLOGY AT DUKE UNIVERSITY’S SANFORD SCHOOL OF PUBLIC POLICY. KIMBERLY KRAWIEC IS THE KATHRINE ROBINSON EVERETT PROFESSOR OF LAW AT DUKE LAW SCHOOL.

Conference: The Thirteenth Amendment and Economic Justice

 

I am delighted to announce that the program has been posted for a conference on The Thirteenth Amendment and Economic Justice, which will take place on Saturday March 3 at the UNLV William S. Boyd School of Law.    The conference will be the inaugural event of the Thirteenth Amendment Project, an interdisciplinary association of scholars of labor, class, race, caste and poverty at law schools and universities in the United States and the wider world.  

Panelists at the conference include Mary Ann Case, William Forbath, Aviam Soifer, Fred Smith, James Gray Pope, Noah Katz, Lea Vandervelde, William Carter, Ahmed White, Courtney Lollar, Mehmet Konar-Steenberg, Andrea Freeman, David Orentlicher, Kathleen Kim, Camille Walsh, Richard Blum, Ruben Garcia, Maria Ontiveros, Charlotte Garden and myself.   They will discuss topics including economic theory, the carceral state, health, education, environment & welfare, and using the Thirteenth Amendment in court.

This is sure to be great event.  For more information, and to register for the conference, see here  or email 13thamendproj@gmail.com.

 

 

 

 

De-Colonizing a Journal

The statement by the American Historical Review's editor regarding changes in editorial practices at the AHR has been getting a ton of attention in the history world.  But (maybe unsurprisingly) no attention that I can tell from the legal academic world.  I think this is a conversation that law journals should be involved with -- and not just on who's being published and who has been published, but about what the journals have published.  Like what the Yale Law Journal published in 1921, perhaps?

There's a related conversation to have about entire fields.  I've been talking for some time now about the proslavery ideas of one 19th century legal historian -- Thomas R. Dew -- and to a lesser extent the eugenics ideas of another legal historian from the early twentieth century, Lothrop Stoddard.

A Tale of Two FEC Cases

There are two complaints pending before the Federal Election Commission that contain allegations of major campaign finance violations during the 2016 election. One of them has received wall-to-wall coverage in the national media, but the other has been unjustifiably ignored by most of the national press.

The first—and much more ballyhooed—case involves an alleged hush payment by the Trump campaign in the final days of the 2016 presidential election. In January Common Cause filed a complaint with the Justice Department and the Federal Election Commission asking them to investigate an alleged $130,000 payment by Essential Consultants LLC to an adult-film actress named Stephanie Clifford (a.k.a. “Stormy Daniels”) in October 2016. Common Cause alleges that there is “a reason to believe” that the payment to Clifford was in fact an unreported, in-kind contribution to Donald Trump’s presidential campaign.  According to the complaint, “[t]his payment of $130,000 was part of an agreement by which Ms. Clifford [a.k.a. Stormy Daniels] would be precluded from publicly discussing alleged sexual encounters between her and Mr. Trump.” 

Black Power in a Prison Library

Happy February 1 -- and the start of African American history month.  I'm going to recycle a post I've couple before regarding books about black power that were added to a prison library back in the early 1970s. 

We are hearing a great deal about the project of “the history of the Book” these days.  It aims to understand the role of books as vehicles of change: how do books contribute to changes in society, how do they help to create and sustain identity.   Sometimes historians look at books, to measure a culture.  What does Invisible Man say about the culture of the United States on the eve of Brown?  What do Booker T. Washington’s Up From Slavery and W.E.B. DuBois’ Souls of Black Folk say about Jim Crow?

At other times, historians draw inferences about people from their libraries.  This post talks about a list of about 120 books on the "black experience" that Judge Don Young ordered to be placed into the Marion, Ohio prison library back in 1972,  Taylor v. Perini, 413 F.Supp. 189, 215-19 (D.C. Ohio 1976).  What interests me about the list is its potential for mapping the sources of identity in the late 1960s and early 1970s.  What, then, are the books that the judge ordered added?

The Harlem renaissance and its leaders are well-represented: W.E.B. DuBois’ Souls of Black Folk; Richard Wright’s Native Son and Uncle Tom’s Children; James Weldon Johnson’s Autobiography of an Ex-Colored Man; Claude McKay’s Home to Harlem (1928) along with some other Renaissance-era literature, like Rudolph Fisher’s Conjure Man Dies: A Mystery Tale of Harlem (1932) and Walls of Jericho (1928)).  Situated between the renaissance and the 1960s is Invisible Man.

There is the early 1960s literature that captured the possibilities of the Civil Rights movement:  Maya Angelou’s I Know Why the Caged Bird Sings (1969); King’s Where Do We Go From Here, The Trumpet of Conscience, Stride Toward Freedom (1958), and Why We Can’t Wait; Alan Westin’s Freedom Now! The Civil-Rights Struggle in America (1964); and Howard Zinn’s SNCC:  The New Abolitionists (1968).  Or, in the case of Claude Brown, Manchild in the Promised Land that explained life under Jim Crow and conveyed something of what it was like to grow up in a place many thought of as the promised land, however much it might not have been.   I might also put John Killen’s And then We Heard Thunder (1964), James Baldwin’s Tell Me How Long the Train’s Been Gone (1968); John Alfred Williams’ The Man Who Cried I Am (1967) in that category–they are situated in a place between the optimism of the Civil Rights era and the later separatism.  They ask, with King, what now?