The Faculty Lounge

Why Florida Coastal's Lawsuit Against the ABA Should Go Forward

Earlier this fall, the ABA filed a motion for summary judgment, seeking a dismissal of the lawsuit filed by Florida Coastal and its parent company, InfiLaw.  Yesterday, Florida Coastal School of Law and its parent company, InfiLaw, filed a motion in opposition.  Florida Coastal argued that it is still entitled to, and actively seeking, discovery, and that there are plenty of genuine issues of material fact to be decided. Florida Coastal is challenging the ABA’s finding that Florida Coastal remains out of compliance with several ABA Standards, including Admissions Standard 501(b), despite the fact Florida Coastal has significantly raised its admission standards multiple times over the last few admissions cycles, and made other quality initiatives which have resulted in improved bar passage rates.  Although the Federal Courts have generally been very deferential to accrediting agency decisions, including the ABA, and often grant summary judgment motions in these cases, I think this is a case where there are good reasons for the court to permit the case to go forward.

Standard 501(b) requires a law school to “only admit applicants who appear capable of satisfactorily completing its program of legal education and being admitted to the bar.” I have argued that schools admitting a quarter or more of students with LSATs at 144 and below should be found in violation of this standard.  And for the last three years, the ABA has seemed to agree. All of the schools that have been found out of compliance with this standard over the last two years have had an LSAT 25% at 145 or below.  Most have been well below that.   But Florida Coastal isn’t.  According to Florida Coastal’s filing, their 2018 entrance credentials are as follows: 75/50/25^th  LSAT: 152/150/147   UGPA  3.35/3.12/2.80.   Furthermore, no students were admitted or matriculated to Florida Coastal in 2018 with an LSAT below 145.    Based on logic and precedent, there is simply no reasonable argument that Florida Coastal is currently non-compliant with this standard.  The LSAT numbers represent a 6 point increase at the 25^thand 50^thpercentile from 2016, when Coastal’s profile was 149/146/141  3/27/2.87/2.57.  The difference between a 141 and 147 on the LSAT is HUGE.  A 147 is at the 33^rdpercentile, and a 141 is at the 16^thpercentile.   Students with a 147 LSAT and   reasonably good college grades have a decent chance of completing law school and passing the bar (except maybe in California).  Here are some more pertinent facts: there were 45 law schools in 2017 that had an LSAT 25^thpercentile in 2017 below 147; and no law school with a current 147 25^thpercentile has ever been found out of compliance with 501(b).

Pitzer College and the Israel Boycott

Earlier this month, the faculty at Pitzer College voted in favor of suspending the school's study abroad program at Haifa University in Israel. The next step in the process will be a vote in January by the College Council, which, uniquely among American colleges and universities, comprises faculty, students, and staff. It appears to be unclear whether the administration can overrule the council on matters concerning academic programs. The main sponsor of the boycott resolution believes that the council vote will be "binding." 

In an argument worthy of a Lewis Carroll story, proponents of the boycott have cited the Lara Alqasem case as proof that Israel study programs are not equally available to all students. It is true that Alqasem's visa to study at Hebrew University was initially revoked at Ben Gurion Airport, where she was detained for over a week pending her appeal. But in fact, the Israel Supreme Court ultimately granted her petition and ordered the government to issue the visa. Every university in Israel supported Alqasem's petition, and she currently enrolled in her program at Hebrew University. It is simply bizarre for the Pitzer faculty to deny their students the same opportunity that Alqasem, backed by Haifa University, fought so hard to obtain. 

Fortunately, Pitzer's president Melvin Oliver has issued a powerful and moving statement in opposition to the boycott, invoking the college's long and admirable history of academic freedom and pluralism. I urge everyone to read it after the jump.

Babylon Berlin

If you are looking for something to watch this weekend, I highly recommend Babylon Berlin, a German television series broadcast in the United States on Netflix.

Babylon Berlin is the most expensive non-English-language television series ever made. Set in the final years of the doomed Weimar Republic, the series focuses on Gereon Rath (played by Volker Bruch), a police detective still suffering severe PTSD from his military service on the western front in 1918, and his assistant Charlotte Ritter (played by Liv Lisa Fries), a part-time prostitute and aspiring homicide detective. Bruch and Fries are absolutely superb, as are all the actors in the series.

One of the show’s major themes is the fragility of German law and democracy in the late 1920s. No movie or television series has ever done such a brilliant job of showing how World War I destabilized Europe long after the guns fell silent, creating seismic aftershocks that set the stage for the most evil regime and most devastating war of all time. The whole show is fantastic, with unforgettable characters and a storyline that provides a riveting window into late 1920s Europe.

Viewers in both Europe and North America have loved the series. On the invaluable Rotten Tomatoes website, Babylon Berlin has an off-the-charts 100% tomatometer score (the aggregate total of critics’ reviews) and a similarly impressive 93% audience score (the percentage of viewers who rated the show favorably). Those are extraordinarily high scores for any movie or television series, but especially for a non-English language production.

A couple of caveats are in order. First, the show is extremely graphic in every imaginable way. Be prepared to be shocked. Second, I recommend watching the German-language version, which has English subtitles. I don’t speak a word of German (I’m still trying to master my native tongue of English), but for me, watching the series with English subtitles kept the sense of realism that is so essential to the show. In any case Netflix allows you to choose the language.      

If you are interested, here is the Babylon Berlin trailer (dubbed in English, which is the only version I can find on the Netflix website). In addition, here is a YouTube preview that includes clips of many scenes as well the haunting soundtrack.

If you do watch the series with English subtitles, there is one notable mistake in the English translation. The final Netflix episode includes a flashback to a pivotal event involving the main character (Detective Rath) when he was a German soldier in the closing days of World War I. Inexplicably, the subtitle describes the battlefield event as occurring on November 14, 1918, but that makes no sense because the war ended on November 11. However, it turns out that in the German language version, the character actually says November 4, not November 14. Somehow the Netflix translator confused the German word for 4 with the word for 14. But otherwise the English subtitles are excellent and easy to follow.  

CFP: State Courts in the Trump Era

This just in:

Call for Papers: Albany Law Review’s 2018-19 issue of State Constitutional Commentary, “State Courts in the Trump Era: Judicial Independence, Federalism, and the Rule of Law.”

The Editorial Board of Albany Law Review invites submissions for publication in the 24th annual special issue of State Constitutional Commentary which this year will focus on the relationship between judicial independence, federalism, and the rule of law in state courts. We welcome theoretical, empirical and policy-oriented papers. We invite legal academics and practitioners, as well as law-related scholars, to submit their abstracts on topics exploring the ways in which state courts have or should exercise independence from the direction of federal law—or not.

Topics: Papers can approach issues relating to independent judicial federalism from a national or state perspective. Both legal, law-related, and multidisciplinary approaches are welcome. As has been true for State Constitutional Commentary since its inaugural issue 24 years ago, the purpose has been to explore public law in state courts in the broadest sense with the widest range of perspectives. Hence, within the general concept of “State Courts in the Trump Era,” a vast scope of topics is welcome. Selected papers will be published in The Albany Law Review’s 24th annual issue of State Constitutional Commentary. Proposals should briefly describe the specific topic, perspective, and relevance to the general concept of “State Courts in the Trump Era,” as well as identifying the author(s).

Submission deadline: A one-page (maximum) abstract is due by December 15, 2018. Authors will receive an email response no later than December 22, 2018. Inquiries and submissions should be sent to Mary Ann Krisa, [email protected], Executive Editor for State Constitutional Commentary, and to Vincent M. Bonventre, [email protected] albanylaw.edu, Faculty Advisor. The due date for final submissions is February 15, 2019. Final papers must be at least fifteen pages in length.

The ABA and Standard 501 – Still Inconsistently Applied

In March, the ABA sent a letter of non-compliance to Lincoln Memorial Duncan School of Law, a provisionally-approved school, stating that it had been found out of compliance with ABA Standard 501(a) and (b) and Interpretations 1, 2, and 3 of the Standard.  The school was ordered to submit a report over the summer and to appear at the November meeting of the Accreditation Committee.

What prompted the ABA’s determination that LMU was out of compliance?  For the fall entering class of 2017, LMU’s LSAT 75/50/25 profile was 152/148/145. For UGPA it was 3.47/3.08/2.64.  According to my LSAT risk profile chart, students with LSAT’s at 146 and 145 are at very high risk of passing the bar, and those at 144 and below are at extremely high risk.   Thus, up to 24% of LMU’s students could have been extremely high risk (144 or below), and somewhere around a third of students were either very high or extremely high risk. 

Also, according to their 2017 509 report, LMU had a 22.2% non-transfer attrition rate in the 2016-2017. Under the ABA Standards, first year attrition rates over 20% create a rebuttable presumption that a school is not complying with the admissions standard.

With its provisional accreditation in jeopardy, LMU significantly improved the credentials of its fall 2018 entering class.  (Although the official ABA 509 report is not out, the school has posted on its websitea profile of the fall admitted class.) The LSAT and GPA profile for the 2018 entering class is 152/149/147 and 3.51/3.07/2.73.  Importantly, the 25^thpercentile went from 145/2.64 to 147/2.73, and no student was matriculated with an LSAT below 142.    According to LSAC, a 147 is around the 33^rd percentile while a 145 is around the 26^thpercentile.  A 142 is at the 18^th percentile.  At its November 2018 meeting, the ABA Council reviewed these numbers and determined that LMU was in substantial compliance with Standard 501(a) and (b) and Interpretations 501(1)(2)and (3).  So, LMU’s latest numbers provide some useful data for gauging what the ABA currently considers to be acceptable admission standards.

But the ABA’s latest actions also add credence to the claim of some critics that the ABA is applying its standards inconsistently.

Collegiality on the Supreme Court

How much collegiality is there on the U.S. Supreme Court? CNN’s Joan Biskupic reports that the answer is not much. According to Biskupic:

“[W]hile the justices put up a polite front, some of them recount testiness behind the scenes. [Chief Justice] Roberts in public venues typically exudes respect for his colleagues, yet in the private confines of the columned building, he can sometimes be dismissive. Friction surfaced on occasion during the last annual session between senior liberal Ruth Bader Ginsburg and Neil Gorsuch, Trump’s first appointee, and in an instance between Roberts and liberal Stephen Breyer.” 

But an episode at the Supreme Court yesterday suggests a genuinely cordial atmosphere has taken hold among the justices.

Davidson on Hirsch: Inheritance Rights for Committed Unmarried Couples and Uncommitted Married Couples

The following is a guest post by Camille Davidson (Wake Forest):

Going to the Chapel and We’re Gonna Get Married, With This Ring I Promise I’ll Always Love You, andThis Will be an Everlasting Love are all songs about two individuals falling in love and committing to a long-term relationship. In each of the songs, it doesn’t appear that an actual wedding ceremony has taken place, but the couple is in the planning stages for the big day—presentation of an engagement ring, and perhaps the rental and reservation of a chapel have occurred.  There is no doubt that the couple is in love and plans to spend a lifetime together in a loving committed relationship. However, if one of the individuals passes away before the wedding ceremony, the surviving individual is not a surviving spouse and does not have rights associated with being surviving spouse.

In Inheritance on the Fringes of Marriage, 2018 U. Ill. L. Rev. 235, Professor Adam J. Hirsch discusses fringe relationships. Such relationships include committed relationships like the one described above where individuals are engaged but not yet married. They also include individuals who have been in long term committed relationships, but never formally married—think Ryan O’Neal and Farrah Fawcett. In each of these committed relationships, the survivor among these couples is not entitled to an intestate spousal share if the partner dies without a will, and cannot petition as a pretermitted spouse, if the partner dies with a previously executed will that omits him or her. In short, they are out of luck if their lover passes intestate, or testate.  In contrast, fringe relationships also include individuals who are still legally married, but the divorce is not final.  Although these individuals have decided that they no longer want to be in a loving committed relationship, if a partner passes away before the final divorce decree, the surviving partner is still the surviving spouse. This means he or she is entitled to an intestate share if there is no will and can petition for a forced share, if there is a will that does not include him or her as a beneficiary. James Brown’s estranged wife fell into this category.

For better or worse, marriage provides spouses with rights---during life and at death. But Professor Hirsch reminds us that “matrimony is a process not an event”. He recognizes that in general, lawmakers have determined that an individual’s donative intent changes with the beginning of a marriage and with the end of a marriage. However, Professor Hirsch questions whether other events should also affect donative intent such as engagement, separation, or the initiation of divorce proceedings. He conducts empirical studies with respect to each of these circumstances.

South Texas Law Seeks Dean

This just in:

South Texas College of Law Houston (STCL Houston) invites inquiries, nominations, and applications for the position of President and Dean. The successful candidate will succeed Donald J. Guter, who will step down in August 2019 after serving with distinction since August 2009.

STCL Houston plays a vital role in the Houston community by developing skilled and ethical graduates, who are committed to the highest ideals of the legal profession. The law school has more than 15,000 alumni and more than 50 full-time faculty and 60 adjunct faculty who teach nearly 1,000 students each year. The law school has grown to become one of the largest in the nation, with a challenging curriculum and outstanding opportunities for both full-time and part-time students. STCL Houston also is devoted to maintaining a faculty and student body that reflects the rich diversity of the Houston community. Students at STCL Houston represent a broad spectrum of interests, skills, abilities, and cultural and professional backgrounds. More information about the school can be found at www.stcl.edu.

The President and Dean serves as the school’s chief executive and dean of the faculty. STCL Houston seeks candidates with a record of outstanding professional achievement in law and a demonstrated commitment to excellence in teaching and scholarship. Academic leadership experience is highly desirable. Candidates should have the desire and ability to represent the law school within the legal community and advance the law school’s development objectives. The President and Dean will be expected to build on the school’s record of significant achievement and lead the institution as it pursues an enhanced regional and national reputation. More information about the opportunity can be found at www.stcl.edu/president.

The Search Committee invites letters of nomination, expressions of interest, or applications and they may be sent to Werner Boel, LL.M., Veena Abraham J.D., and Jessica Herrington—the Witt/Kieffer consultants assisting South Texas College of Law Houston with this search—at [email protected] Electronic submissions are strongly encouraged. A complete application will include a letter of interest, a Curriculum Vitae, and contact information for five professional references. This search will be conducted with respect for the confidentiality of candidates; references will not be contacted without prior knowledge and approval of the candidate. Review of materials will begin immediately and continue until an appointment is made. To ensure full consideration, please submit your application before January 14, 2019. Applications received after this date may be considered at the discretion of the Search Committee. The anticipated starting date for the new dean is August 1, 2019.

CFP: Empirical Analysis of Wealth Transfer Law

This just in:

Call for Papers
Empirical Analysis of Wealth Transfer Law
October 11, 2019

The University of California, Davis School of Law (King Hall) and The American College of Trust and Estate Counsel’s Legal Education Committee are happy to announce that the 8th ACTEC academic symposium will be held on Friday, October 11, 2019. The theme is Empirical Analysis of Wealth Transfer Law. The event’s goals are to bring together established and emerging scholars and to foster discussion about empirical scholarship about wills, nonprobate transfers, intestacy, inheritance taxation, and related issues.

Articles presented at the symposium will consist of those selected from this Call for Papers and those from invited speakers. All papers will be published by the UC Davis Law Review.

If you would like to be considered to present a paper, please email an abstract of no more than two pages to Professor David Horton ([email protected]) by March 1, 2019. The Law Review will notify those selected by March 15, 2019. Please be aware that speakers must submit drafts that are ready for the editing stage of the production process by mid-November 2019.

Speakers will be reimbursed for their reasonable travel expenses (economy airfare, ground transportation, and up to two nights in a local hotel). Speakers will also be invited to dinner on Friday, October 11. Breakfast and lunch will be provided to speakers and attendees on October 11 courtesy of the ACTEC Foundation. Questions about the symposium or this Call for Papers should be directed to David at the email address above or Professor Adam Hirsch ([email protected]).

The Cult of RBG

Writing in Mother Jones, Stephanie Mencimer critiques the cult of Notorious RBG:

But no amount of swag or hagiography can obscure the fact that, while Ginsburg is responsible for a great number of landmark legal decisions, her legacy may be sorely tarnished by one truly terrible one: refusing to retire when President Barack Obama could have named her replacement.

Mencimer surveys the arguments that begin in 2011 urging Justice Ginsburg to resign while Obama was president and Democrats controlled the Senate, beginning with Randall Kennedy's article in The New Republic:

Kennedy held up his old boss as a cautionary tale. Marshall’s health problems forced him to retire during the administration of George H.W. Bush, who replaced the legendary civil rights lawyer with Clarence Thomas, a conservative ideologue who has spent his 27 years on the bench working to unravel virtually everything Marshall fought for. “[I]f Justice Ginsburg departs the Supreme Court with a Republican in the White House,” Kennedy wrote, “it is probable that the female Thurgood Marshall will be replaced by a female Clarence Thomas.”

CFP: Public Health Surveillance, Spying on America for its Own Good

This just in:

Public Health Surveillance: Spying on America for Its Own Good?

Symposium date: Friday, April 12, 2019 in Carbondale, Illinois at SIU School of Law

Call for Papers: The Southern Illinois Law Journal invites proposals from faculty and professionals to present at the upcoming annual symposium, which will focus on public health surveillance. Accepted presenters will have the opportunity to participate on an interdisciplinary panel of scholars, and to have their papers published in a special symposium issue of the journal.

Deadline for Proposals: December 20, 2018

Submission Requirements: To submit a proposal, please include your CV and contact information, as well as an abstract (up to 600 words) of the proposed presentation with title and an indication of whether or not you plan to write an article for the symposium issue. Please send your proposal to Prof. Jennifer Brobst at [email protected] or you may also call (618) 453-8702 if you have any questions.

Selected presenters will be informed by the first week of January 2019. Reasonable travel costs of presenters will be covered by SIU. Articles would not be due until the summer of 2019 and should be between 10,000 and 20,000 words in Bluebook citation style.

Scope of Topic: Over the last century, the balance of interests in public health law has gradually shifted, as both the severity of risks and capacity to address those risks increase simultaneously. While public health law still focuses on the traditional police power interests of public health, safety, and welfare, the means of tackling public health challenges now includes more extensive governmental monitoring due to advances in technology, science, and medicine. Some question the detrimental impact on individual autonomy and privacy rights related to more intrusive public health surveillance, particularly at the federal level, as reliance on state and local law to protect the public health may not adequately address current concerns.

 

Roy Clark (1933-2018)

Roy Clark passed away last week at the age of 85. As the long-time host of the syndicated television show Hee-Haw, he is mostly remembered in some quarters as a jokester. He did indeed emphasize humor in his act, including the many "Pickin' and Grinnin'" segments with Buck Owens and others. But Clark was also a virtuoso instrumentalist, playing guitar, banjo, and fiddle in styles ranging from country to classical to jazz to flamenco.

Why Is It So Hard for Linda Sarsour to Understand Anti-Semitism? [UPDATED with Sarsour's new statement]

The Women’s March seems to be slowly self-destructing due to the leadership’s refusal to disavow their past associations with Louis Farrakhan. To an outside observer, this obduracy is inexplicable. It should be the easiest thing in the world for a progressive movement to repudiate Farrakhan’s outbursts of anti-Semitism, homophobia, and misogyny. And yet, the Women’s March leaders repeatedly temporize and rationalize, at the expense of the coherence of their movement. The reasons for their reluctance are obscure and perhaps unknowable. If I had to guess, however, I would say that they simply do not understand, or do not want to understand, the role of anti-Semitism as a malign force in the world that corrupts everything it touches.

Manliness

I want to thank Dean Dan Filler for inviting me to blog.

One of my chief scholarly interests is manliness and its relation to law and politics. While the topic may seem exotic to some, I think it is in fact quite the opposite: it is manifest in some of our most pressing public issues. We have a President, for example, who has explicitly invoked the tropes of manliness to justify his authority (and belittle others). So too the policy debates about the Second Amendment are often prompted by mass shootings committed by disturbed males who feel that a resort to gun violence is necessary to redeem their emasculated status.

But manliness is a barbed idea. It can serve diverse constituents. Manliness as a normative theory has arguably been used to underwrite the First Amendment right of speech, the need for civility as a political virtue, and the Civil Rights Movement of the 1960s.

In the next couple of weeks I plan to blog about manliness in the context of law and politics, beginning with my recent book about Justice Oliver Wendell Holmes.

 

Zhores Medvedev (1925-2018)

Zhores Medvedev died last week, one day after his 93^rd birthday. Although not tremendously well known in the West, Zhores (a biochemist) and his twin brother Roy (a historian), who is still alive, were major dissidents in the days of the Soviet Union.  Both men paid heavily for their intellectual resistance to Soviet orthodoxy (it did not help that their mother was Jewish).

Zhores took the lead in discrediting the theories of Trofim Lysenko, who was for many years the director of genetics at the Soviet Academy of Sciences. More importantly, Lysenko was Stalin’s main adviser on science and agriculture, primarily because he believed that Marxism -- that is, dialectical materialism -- held the key to crop productivity.  According to Lysenko, it was the material world, rather than Mendelian genetics, that most influenced yields.  Thus, Lysenko denied the existence of genes and argued, with Stalin’s support, that seeds could be “vernalized” by keeping them damp and cold and that this quality would be passed along to subsequent generations of seed stock. He held a number of other non-scientific theories, all based more or less on Marxism, which were imposed on Soviet farmers with disastrous results. Even after Stalin’s death in 1953, Lysenko continued to hold sway under Khrushchev until the mid-1960s.

Zhores began is attack on Lysenkoism in the early 1960s, later joined by Andrei Sakharov, in which he condemned the demagoguery and scientific bankruptcy of Soviet agricultural policy. He wrote two books about Lysenkoism that could not be published in the Soviet Union, which he circulated as samizdat (one was later published in the U.S.). It took some years, but Lysenko eventually fell from power, much to the benefit of scientific integrity and agricultural productivity.

The Soviet power structure, however, could not forgive Medvedev’s deviation, even after he was proven right. He was persecuted relentlessly, at one point kidnapped and held incommunicado in a psychiatric facility. He was declared insane and released only after weeks of international protests. Even after his release, Medvedev was not allowed to leave the Soviet Union and therefore could not attend international scientific conferences, nor were his works published in Russian.

Finally, in 1973, Medvedev was allowed to accept a one year fellowship in London, but it proved to be a poison pill. Once in London, Zhores was informed that his Soviet citizenship had been revoked and his passport was canceled. He was not allowed to return to Moscow until 1989, when Mikhail Gorbachev invited him to participate in the investigation of the nuclear power accident at Chernobyl.

Roy Medvedev was also a noted dissident, most famous for his critique of Stalin’s purges, Let History Judge, which of course had to be circulated as samizdat in the Soviet Union. It was first published in English in 1969, which led to Roy’s expulsion from the Communist Party (an essential membership for anyone pursuing an academic career) and fired from his job. For years, there was a KGB guard stationed at his door.

The great lesson from the career of Zhores Medvedev is the danger inherent in the politicization of science. It took decades to free Soviet agriculture from the disastrous effects of Lysenkoism, which owed far more to Stalin’s ideological preferences than to the scientific method. Lysenkoism held sway in the Soviet Union long after the scientific consensus in the rest of the world had firmly accepted Mendelian genetics. The contemporary analogy is obvious. We ignore scientific consensus at our peril. Lysenkoism was strictly a Soviet phenomenon, with no impact beyond its borders. The consequences of climate change denial will be felt world-wide.

The New York Times obituary of Zhores Medvedev is here. The Washington Post obit is here. David Remnick's 1989 article about the brothers is here.

Note on orthography: Zhores Medvedev was named after the French socialist Jean Jaures, which was transliterated into Cyrillic as Жорес. It has then been transliterated back into the Latin alphabet as Zhores, rather than Jaures, which is phonetically consistent with the Russian, but completely obscures the French origin of the name.

Long Shadow

Last weekend I recommended David Reynolds’s excellent documentary on the Armistice of 1918, which is available on Netflix. If you are interested, Prof. Reynolds is also host of an outstanding 3-part BBC documentary on post-war Europe called Long Shadow. It is based on his award-winning book, The Long Shadow: The Legacies of the Great War in the Twentieth Century.

The Long Shadow documentary is absolutely superb and quite timely. Reynolds shows how the chaos unleashed by World War I gave rise to a high-stakes ideological competition between three diametrically-opposed systems: communism, fascism, and liberal democracy. The competition was reflected in the revealing diversity of the various national war memorials, from the Cenotaph monument in London to Mussolini’s Redipuglia memorial in northeast Italy. 

One of the documentary’s many interesting themes is how Britain managed to avoid the self-destructive ideological extremism that plagued continental Europe after World War I. Stanley Baldwin and Ramsay MacDonald may not be household names today, but those two prime ministers helped Britain chart a middle course at a time when the other major European powers veered off into fascism or communism. As Prof. Reynolds explains in his book:

“Mass democracy exploded across Europe in the wake of the war, inspired in very different ways by [Vladimir] Lenin and [Woodrow] Wilson. But its destabilizing effects were soon being channeled by new political elites—the Bolshevik concept of a vanguard supposedly preparing the way for eventual proletarian control, the fascist response in the form of a ‘superman’ leader directing a dominant party. By the mid-1930s much of continental Europe was polarized between left and right, even in Britain’s co-victor, France.”  

But unlike its continental neighbors, Britain pursued a centrist path:

“In Britain, by contrast, the sudden tripling of the electorate in 1918 was successfully absorbed within parliamentary politics. The threat of a crippling general strike never materialized. Under Ramsay MacDonald the Labour Party was desperate to prove it did not pose a threat to the Constitution, the empire or pound. The party’s ideology drew less on continental Marxism than on indigenous traditions of nineteenth-century radicalism and nonconformist Protestantism. At the same the Tories, led by Stanley Baldwin and Neville Chamberlain, won the support of many of the newly enfranchised women and skilled workers, attracted by policies such as a ‘property-owning democracy.’”  

The dull pragmatism of British centrism paid off in spades in the years after World War I. In foreign affairs, Britain served as a critical bulwark against Nazi fascism in World War II and Soviet communism in the Cold War. At home, Parliament’s middle-of-the-ideological-road policies gave rise to a growing economy, a stable democracy, and a diverse society, especially in the metropolis of London. The British record of achievement in the twentieth century should not be forgotten, even amid the economic uncertainty created by the impulsive Brexit vote in 2016. Now more than ever we live in an age of charismatic politicians, but boringly competent leaders in the tradition of Baldwin and MacDonald have much to recommend them.

The series is filled with fascinating insights and observations. The third episode begins with Prof. Reynolds describing how, during the 90 years between 1914 and 2004, an Upper Silesian coalfield began as part of the Austro-Hungarian Empire, then became part of Poland, later fell under the control of Czechoslovakia, then went back to Poland, only to subsequently come under the military domination of Nazi Germany, then reverted after WWII to Soviet-occupied Czechoslovakia, and finally ended up in the new Czech Republic, and now the coalfield is part of the European Union. The tumultuous history of the twentieth century is thus encapsulated in the history of a single piece of coal. 

Long Shadow is a great series and it is available for free on YouTube (in High Definition). You can find Part I (“Remembering and Understanding”) here,  Part II (“Ballots and Bullets”) here, and Part III (“Us and Them”) here. 

Paul Butterfield

 Mystery Train, with The Band 

Russia’s Response to the DNC Lawsuit

In a very interesting filing, the Russian Federation has formally responded to the DNC lawsuit that seeks millions of dollars in damages for Moscow’s hack of the Democrats’ computer system during the 2016 election. On behalf of the Russian defendants in the case, the Russian Ministry of Justice filed a Statement of Immunity last week with Judge John Koeltl of the U.S. District Court for the Southern District of New York.

Although the Russian Federation insists the filing does not constitute a formal appearance in the case, the Statement of Immunity essentially constitutes a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. The filing also invokes the political question doctrine, raises a Rule 12(b)(3) venue issue, and even works in a 12(b)(6) reference to the strict pleading standard articulated in Bell Atlantic v. Twombly and Ashcroft v. Iqbal.

The cornerstone of the Russian Federation’s defense is the Foreign Sovereign Immunities Act, 26 U.S.C. § 1604. Relying on the FSIA, the Statement of Immunity urges the District Court to dismiss the case sua sponte on jurisdictional grounds. Here is an excerpt:

Equality Law Scholars' Forum at UC Davis Tomorrow

The second annual Equality  Law Scholars' Forum kicks off at UC Davis tomorrow.  I'm looking forward to being one of the commentators on a fantastic set of papers. Here are some details:

Second Annual Equality Law Scholars’ Forum

Friday, November 16 – Saturday November 17, 2018

The Forum is designed to provide junior scholars with commentary and critique by their more senior colleagues in the legal academy and, more broadly, to foster development and understanding of new scholarly currents across equality law. 

This year, the Forum will feature six presenters (chosen from over forty submissions):

The New Coverture, Albertina Antognini (Arizona College of Law)

Stealing Education: Protecting Racial Capital in “White” Schools, LaToya Baldwin Clark (UCLA School of Law)

Affirmative Action Misclassification, Jonathan Feingold (UCLA Office of Equity, Diversity, and Inclusion)

The Aesthetics of Disability Law, Jasmine Harris (UC Davis School of Law)

Legislating with Tall Tales, Goldburn Maynard (U. of Louisville School of Law)

 Diversity to Deradicalize: A New Theory for How Affirmative Action Became Tied to Intellectual Pluralism, Asad Rahim (American Bar Foundation)

The event is co-organized by Tristin Green, USF Law, Angela Onwuachi-Willig, UC Berkeley Law, and Leticia Saucedo, UC Davis Law. 

Comment and critique will be provided by the following scholars:

Bridget Crawford, Pace Law School

Jonathan Glater, UC Irvine Law School

Tristin Green, USF Law School

Angela Harris, UC Davis Law School

Jill Hasday, U. of Minnesota School of Law

Anthony Infanti, U. of Pittsburgh School of Law

Osamudia James, U. of Miami School of Law

Tom Joo, UC Davis Law School

Courtney Joslin, UC Davis Law School           

Angela Onwuachi-Willig, Boston U. Law School

Kimani Paul-Emile, Fordham U. School of Law

Leticia Saucedo, UC Davis Law School

We will also hold a panel discussion on Producing Scholarship in Equality Law with the following UC Davis Law School panelists participating: Jack Chin, Kevin Johnson, Courtney Joslin, Tom Joo, Lisa Pruitt, and Brian Soucek.

 

Penn State Law Seeks Family Law Clinic VAP

This just in:

Penn State Law in University Park seeks to hire a 2-year clinical law VAP to direct our family law clinic. This is a great opportunity for someone planning to go onto the academic market to prepare and be mentored. To learn more details and apply, visit here.