The Faculty Lounge

You Can't Say That in the Chicago Tribune

I strongly recommend Steve Chapman's column in today's Chicago Tribune, about "Roseanne Barr and the Persistence of Prejudice," but I am linking it here because of a single quote. Chapman notes that Barr's racist tweet about Valerie Jarrett was not the first time she compared an African American person to an ape.  He pointed out that Barr had "once referred to Susan Rice, President Barack Obama's national security adviser, as  'a man with big swinging ape (testicles).'”

Apparently, you cannot say "balls" in the Trib, even in a quote. I asked Chapman about the expurgation, and he told me that it took him by surprise.  Other platforms are not so squeamish, including the New York Times and the Washington Post.

Antonin Scalia and the Meaning of “Bear Arms”

Justice Antonin Scalia died two years ago, but his judicial legacy continues to generate discussion and debate. During his three decades on the Supreme Court, Scalia made “originalism” a household term, at least among lawyers, judges, and law professors. Nowhere was that more true than with regard to the Second Amendment, as Scalia’s originalist interpretation of the phrase “the right of the people to keep and bear arms” charted a new course in Supreme Court jurisprudence.

During a CSPAN interview in 2012, Scalia explained his originalist approach to constitutional interpretation, which “is that the text ought to be given the meaning it had when it was adopted; when it was enacted or when it was ratified in the case of the Constitution.” Historical research thus played a vital role in Scalia’s jurisprudence. As he explained in a speech at the University of Virginia, “I deny the premise that law has nothing to do with historical inquiry. Historical inquiry has nothing to do with the law only if the original meaning is irrelevant.”

But did Scalia get the original history of the Second Amendment right? 

James Hackney Named Dean of Northeastern Law

Northeastern University has named Professor James Hackney as its new law dean, succeeding Jeremy Paul.  Hackney joined the Northeastern Law faculty in 1991 and has served in a number of administrative positions over the years.  He holds a JD from Yale.

Are You Willing to Ask About the Diversity of an Academic Panel Before Accepting a Speaking Invitation?

If you are invited to speak on an academic panel, are you willing publicly to commit to asking panel organizers what efforts they have made to seek "diversity" among panel members, whatever that term means to you? If yes, please add your name to the public list here.

The background to this request for a public pledge from fellow legal academics originates at least in part from a tweet I made last week via Feminist Law Professors. I tweeted a link to an article about Spanish academics who have taken a public pledge against speaking on all-male panels. I followed up with some additional tweets asking whether any male academics would be willing to take the lead on something similar in the U.S. I forwarded the tweet to ten prominent male bloggers. Here's the series of tweets sent by me:

Michael Dorf posted some thoughtful reactions on "Diversifying Academic Panels" here.  Over at Prawfsblawg, Paul Horowitz has some further contributions here. Orin Kerr and others have added constructively to the conversation in the comments to Paul's post (here).

Because there's no clear consensus on what "diversity" an academic panels might look like, my on-line list/pledge is intended to simplify things.  If you are a legal academic, and you are invited to speak on a panel, consider asking the organizers what attempts they have made to seek diversity among panel members.  For me, that means gender, race and range of schools, foremost. But whatever "diversity" means to you, if you're willing to commit to asking the question, please add your name!  All legal academics of all genders very welcome to sign.

No, the Mueller Investigation Is Not Unconstitutional

Andy Koppelman and I explain why in The American Prospect.  Here is the gist:

Steven Calabresi is chairman of the board of the Federalist Society and the Clayton J. and Henry R. Barber Professor of Law at Northwestern University Pritzker School of Law—and, we should add, a friend and colleague of ours.He recently published an op-ed in The Hill, purporting to explain why President Trump has behaved lawfully by demanding a Justice Department investigation of so-called FBI spying, and why Mueller’s own investigation is “unconstitutional.” He is half right, but it is the lesser half.

Calabresi’s second point, however, is just wrong. He argues that Mueller’s investigation is unconstitutional because he was “never nominated by the president and confirmed by the Senate.” He reaches this conclusion by claiming that Mueller is “acting like a U.S. attorney” rather than an assistant and is therefore “a principal officer” who must be nominated by the president and confirmed by the Senate. But “acting like” a principal officer has no constitutional meaning and, in any case, Calabresi’s only support for this position is that Mueller “is more powerful and famous than are any of the 96 U.S. attorneys.” The factual claim regarding power is dubious, especially in light of Mueller’s referral of the Cohen investigation to the Southern District of New York. Moreover, there is no requirement that prosecutors who conduct national investigations be less “powerful” than individual U.S. attorneys. Fame, needless to say, is constitutionally irrelevant.

You can read the entire essay here.

Dayton Law & 2U Partner to Create Hybrid JD

Dayton Law has received a variance from the ABA allowing it to offer a hybrid in-person/online JD program.  Students will be required to come to campus for one week each semester.  One particularly interesting feature of this program is that it's being offered in partnership with 2U, a tech/education/marketing company that is active in the Master of Legal Studies space, paired with law schools at Washington University in St. Louis and Pepperdine.  I'm curious to understand the details of the ABA variance - to understand, among other things,  the percentage of student credits that can be earned online as well as the breadth of upper level courses Dayton intends to offer online.  

Big changes in ABA online education regulations for all law schools may also be in the offing - if the ABA adopts modifications to Standard 306.  But these changes do no appear to go as far as what the ABA has approved here for Dayton. 

Nicholas Allard Stepping Down as Brooklyn Law Dean

Brooklyn Law School has announced that Nicholas Allard will step down as dean at the end of June.  Maryellen Fullerton will serve as interim dean while the law school conducts a search for its new leader.  Allard joined the law school in 2012.

The First World War from Above

A fitting film for Memorial Day is “The First World War from Above,” a short but engrossing BBC documentary hosted by the Irish journalist Fergal Keane. 

Angela Onwuachi-Willig Named Dean of Boston University Law

Boston University has named Angela Onwuachi-Willig, Chancellor's Professor of Law at UC Berkeley, as its new dean.  Onwuachi-Willig, who joined Berkeley from the University of Iowa in 2016, holds a JD from Michigan and a Ph.D in Sociology and African-American Studies from Yale.  She succeeds Maureen O'Rourke who, after 14 years, is one of the longest-serving law deans in the country.  

Civil War Revisionism Slips into the New York Times

In a front-page article on Memorial Day, the New York Times includes this description of the origin of Arlington Cemetery: 

In a fitting turn of history, the cemetery now faced with a threat of overcrowding was created to address overcrowding. Early in the Civil War, the heavy death toll in battles near the capital soon filled Washington’s existing cemeteries. Desperate for more burial space, the Quartermaster General of the Army, Montgomery C. Meigs, turned to a rolling green plantation just across the Potomac — the home of Gen. Robert E. Lee, whose decision to fight on the Confederate side marked him as a traitor in many Union eyes.

The reference to Lee as a "traitor in many Union eyes" implies that the sentiment was not unanimous (and perhaps did not even command a majority) at the time. This is an unexpected, but typical, example of the "Lost Cause" school of Civil War history, in which the Confederates are posthumously rehabilitated.  In fact, no Unionist during the Civil War would have regarded Robert E. Lee as anything other than a traitor, which in fact he was without question.

Courts, Backlash, and Social Change: Learning from the History of Prigg v. Pennsylvania

My article, Courts, Backlash, and Social Change: Learning from the History of Prigg v. Pennsylvania, will be published in the Penn State Law Review.  Here is the abstract:

Scholars have repeatedly looked to the history of cases like Dred Scott, Brown, and Roe for guidance on whether courts should issue broad decisions on contentious issues. Some scholars contend that these cases triggered backlash that undermined the very causes the Court sought to promote, while others minimize the Court’s role in creating backlash and emphasize the decisions’ positive results. This Article contributes to this debate by providing a new account of the social and political consequences of Prigg v. Pennsylvania. The Court in Prigg rendered a broad interpretation of the Fugitive Slave Clause that was not necessary to resolve the facts of the case before it.  The Court did so because the Justices sought to head off sectional conflict over fugitive slaves. Using original historical research, this Article argues that the decision had the effect, however, of helping to create a national policy on fugitive slaves that provoked an antislavery backlash in the North and strengthened the case for secession in the South. A more restrained decision from the Court could have produced a less divisive regime that provided greater legal protections for people claimed as fugitive slaves. The history of Prigg therefore suggests that courts should consider issuing limited and incremental rulings when attempting to produce social change on divisive issues.

 

Hickory Wind

Emmylou Harris: 

Keith Richards: 

Cooley vs. the ABA – The Plot Thickens

I was wrong.  WMU Thomas Cooley School of Law and the ABA haven’t settled their lawsuit after all.  After I wrote the column on April 28 speculating that they had, there was no action in the lawsuit for a couple of weeks, so it seemed like the parties might be biding their time waiting to inform the Court that they had reached a settlement.  But today, I went onto Pacer and found that both parties are still actively litigating, with a recent flurry of motions and replies and responses.  In fact, Cooley filed a response to the ABA’s motion for summary judgment yesterday, and it’s a doozy. 

Robert Adler Stepping Down as Utah Law Dean

Dean Robert Adler of the University of Utah law school, has announced that he will be stepping down at the end of the 2018-19 school year.  He began serving as interim dean in 2013. - taking the job permanently the next year.  

Arizona Summit Joins the ABA Litigation Parade

This just in: Arizona Summit has followed the lead of sister InfiLaw Schools Florida Coastal and Charlotte and sued the ABA.  I haven't seen the lawsuit yet, which was filed by Kirkland & Ellis, but it apparently makes similar claims as the other two lawsuits.  

The school issued a press release which contains wildly exaggerated claims by Interim Dean Penny Willrich, such as this gem: "dozens of other schools with similar or lower incoming credentials of their students were not – and many still have not been – found out of compliance or sanctioned by the ABA."  This is simply and demonstrably false.  Every other law school with similar or lower incoming credentials of students as Arizona Summit in 2015 and 2016 has also been found out of compliance or sanctioned by the ABA, with the exception of Southern University.  One law school is hardly "dozens".  Although Arizona Summit did raise its median LSAT in 2017 to 148 (by shrinking to 49 students) this was only after the school had been placed on probation in March of 2017.  For the preceding five years, Arizona Summit had been among the half a dozen or so schools in the country with the weakest entrance credentials. Arizona Summit had a median LSAT of 143 in 2016 and 2015, 144 in 2014 and 2013 and 145 in 2012.  And of course Arizona Summit has had among the lowest bar pass rates in the country for the last four years, and had the lowest "ultimate" pass rate for the class of 2015 on the ABA's recent spreadsheet.   Just last week, the Arizona February  bar exam results were announced, and Arizona Summit had a  19.8% pass rate, 31% for first-time takers, and 13.5% for repeaters.  Another telling statistic is that Arizona Summit had nearly twice as many repeaters (81) as first-time takers (45).  These latest bar results are a legacy of Arizona Summit's predatory admissions policies in 2014 and 2015. 

Here is another blatantly hyperbolic statement by Arizona President Don Lively. Referring to the ABA's decision to place Arizona Summit on probation: "it is hard to imagine a more blatant due process violation."  Actually, Don, it is hard to imagine a more blatant example of exploitation of unqualified students than you have been running for years.  I predict the ABA's decision to place Arizona Summit on probation will be upheld by the U.S. District Court.

 

 

Suzanne Reynolds Stepping Down as Dean of Wake Forest Law

Dean Suzanne Reynolds, who has led Wake Forest Law since 2014, announced she will be stepping down at the end of the 2018-19 school year.  Reynolds is a genuine article Demon Deacon, having joined the Wake Law faculty in 1981 - graduating from the school four years earlier.  

Antony Page Named Dean of Florida International Law

FIU Law has completed its search for a new dean and it has selected Vice-Dean Antony Page of the University of Indiana - Indianapolis Law.  Page, who holds a JD from Stanford, joined IU in 2003 and will move to South Florida this July.  

Admissions, Accreditation and the ABA: An Analysis of Recent Law School Lawsuits

Recently, the ABA has been sued by Western Michigan University Thomas Cooley School of Law, and two InfiLaw schools: Florida Coastal School of Law and the defunct Charlotte School of Law. In addition, the ABA was named as a co-defendant along with InfiLaw and Charlotte School of Law in an amended complaint filed in a fraud lawsuit by a former Charlotte law professor and a Charlotte law student.  These lawsuits allege that the ABA has failed in its duties as a law school accrediting agency in a variety of ways.

In this (very long) article, I will attempt to make sense of the various allegations made against the ABA in these lawsuits.  In order to understand the lawsuits, it is important first to have some historical context regarding enrollment trends and the recent history of the ABA’s approach to law school accreditation, particularly with respect to its enforcement of Admissions Standard 501 of the ABA Standards and Rules of Procedure for Approval of Law Schools.

The Backstory of the Perfect Royal Wedding Song -- UPDATED WITH VIDEOS

My brother Alex is an ethnomusicologist at the University of Minnesota.  He and I have an oped at CNN.com, on the origin of "Stand by Me," which was performed at the wedding of Meghan Markle and Prince Harry.  Here is the gist:

The backstory of the perfect royal wedding song

Then there was the gospel choir. As Salamishah Tillet described it in the New York Times, the "awesome power" of southeast London's Kingdom Choir "showcased the sheer breadth of a trans-Atlantic black identity" in its "rollicking rendition of Ben E. King's 'Stand by Me.'"

She was right in her appreciation of the group's performance, which moved all wedding attendees. But there is a backstory to the song that makes it even more appropriate for such an inclusive occasion. It was the product of one of the celebrated cradles of American popular music, a place where artists from different backgrounds collaborated in the creation of a now classic sound.

Tillet refers to "Stand by Me" as representative of the "African-American songbook," and, of course, it was first released and made famous by Ben E. King in 1961. King shared the credits, however, with Jerry Leiber and Mike Stoller, two songwriters working in New York City's Brill Building.

You can read the whole essay here.

Today Is Harvey Milk Day

Born this day in 1930, Milk was the first openly gay elected official in the United States.  He was assassinated on November 27, 1978.  You can read more about the visionary civil rights and political leader here.