The Faculty Lounge

Is West Virginia Unconstitutional?

On this date in 1862 President Abraham Lincoln authorized the creation of West Virginia as the nation’s 35th state. The new state consisted of the pro-Union, anti-Confederate counties of northwest Virginia. West Virginia officially achieved statehood status on June 20, 1863 after it added an anti-slavery provision to its state constitution.  

But West Virginia’s admission into the Union generated constitutional controversy. Even some members of Lincoln’s cabinet objected on the grounds that carving West Virginia out of Virginia violated the United States Constitution. West Virginia’s opponents based their arguments on Article IV, Section 3:

New states may be admitted by the Congress into this union; but no new states shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned as well as of the Congress.  (Emphasis added.)

The constitutional objections boiled down to two arguments. First, opponents pointed out that the state legislature in Richmond never consented to the creation of West Virginia. Instead a pro-Union, provisional Virginia legislature hastily assembled in the Appalachian town of Wheeling approved the new state of West Virginia. Even in the North many questioned the legitimacy of the Wheeling government. Nevertheless, after considerable debate and controversy, Congress passed the West Virginia statehood bill and Lincoln signed it into law on December 31, 1862. Long afterward critics argued that only the Richmond legislature—which at the time was in a state of war with the United States government—had the constitutional authority to consent to West Virginia’s creation. 

The second objection was more fundamental, focusing on the second clause of Section 3. West Virginia’s opponents argued that the semicolon following “within the jurisdiction of any other state” should be read as a period, not a comma. Thus, as the opponents saw it, Section 3 absolutely barred Congress from creating a breakaway state out of the territory of another state, regardless of whether the original state consented. 

But were the critics right?

My Grandfather's Clock

"My Grandfather's Clock" was written in the late nineteenth century by Henry C. Work, who is also famous for the Civil War song "Marching through Georgia." It was widely marketed as sheet music, and in player piano rolls, before the advent of sound recordings, and it has remained popular ever since. According to Wikipedia, the song is the origin of the name Grandfather Clock for an upright clock, which was previously known as a longform clock. The song is mostly performed today for children and as a virtuoso bluegrass number, but it was a well-loved "parlor tune" in its first incarnation, and a staple for vocalists and ensembles as well.

Leroy Troy (novelty 5-string banjo)

Shakespeare in Love

I had occasion to look this up for another purpose, and I thought I'd share it. Truer words, and all that:

Scene: The Rose Theatre, London 1593

Fennyman (the financier): Is it going well?

Henslowe (the theater owner): Very well.

Fennyman: But nothing is happening.

Henslowe: Yes, but very well.

Shakespeare (enters shouting): Gentlemen!

Fennyman: Who is that?

Henslowe: Nobody. The author.

The Plantagenets

I am pleased to report that BBC’s historical documentary The Plantagenets is now available in high definition on YouTube. It is hosted by the distinguished medievalist Robert Bartlett, an emeritus professor of history at the University of St. Andrews.

The Plantagenets ruled England from 1154 to 1485, the longest reign of an English royal dynasty. The common law, the principle of stare decisis, and the parliamentary form of government all took hold under the Plantagenets. But their reign also included some of the bloodiest and most tumultuous chapters in the history of England, Wales, and Scotland. A century after the demise of the last Plantagenet king, William Shakespeare ensured the everlasting fame (and infamy) of the Plantagenet dynasty in plays such as Richard II, Henry IV, Henry V, and Richard III.   

The real life story of the Plantagenets puts Game of Thrones to shame. Episode One of the BBC documentary on the Plantagenets—The Devil’s Brood—is available here. Episode Two—An English Empire—is available here. And the final episode—The Death of Kings—is available here.

On a related note, two months ago on his In Our Time BBC radio program Melvyn Bragg did a quite interesting 40-minute segment on Is Shakespeare History? The Plantagenets. During the program Bragg interviewed the Shakespeare scholars Emma Smith, Gordon McMullan, and Katherine Lewis. You can find the audio clip here.

The Christmas Amnesty of 1868

Tuesday marked the 150th anniversary of President Andrew Johnson’s Christmas Amnesty of 1868. Acting under Article II of the Constitution (which empowers the president “to grant reprieves and pardons for offenses against the United States”), Johnson granted amnesty and a full pardon to all ex-Confederates. Here is the complete text of his Christmas Amnesty:  

A Proclamation

Whereas the President of the United States has heretofore set forth several proclamations offering amnesty and pardon to persons who had been or were concerned in the late rebellion against the lawful authority of the Government of the United States, which proclamations were severally issued on the 8th day of December, 1863, on the 26th day of March, 1864, on the 29th day of May, 1865, on the 7th day of September, 1867, and on the 4th day of July, in the present year; and

Whereas the authority of the Federal Government having been reestablished in all the States and Territories within the jurisdiction of the United States, it is believed that such prudential reservations and exceptions as at the dates of said several proclamations were deemed necessary and proper may now be wisely and justly relinquished, and that an universal amnesty and pardon for participation in said rebellion extended to all who have borne any part therein will tend to secure permanent peace, order, and prosperity throughout the land, and to renew and fully restore confidence and fraternal feeling among the whole people, and their respect for and attachment to the National Government, designed by its patriotic founders for the general good:

Now, therefore, be it known that I, Andrew Johnson President of the United States, by virtue of the power and authority in me vested by the Constitution and in the name of the sovereign people of the United States, do hereby proclaim and declare unconditionally and without reservation, to all and to every person who, directly or indirectly, participated in the late insurrection or rebellion a full pardon and amnesty for the offense of treason against the United States or of adhering to their enemies during the late civil war, with restoration of all rights, privileges, and immunities under the Constitution and the laws which have been made in pursuance thereof.

In testimony whereof I have signed these presents with my hand and have caused the seal of the United States to be hereunto affixed.

Done at the city of Washington, the 25th day of December, A. D. 1868, and of the Independence of the United States of America the ninety-third.

ANDREW JOHNSON

The Christmas Amnesty is a historical precedent worth remembering as we await the completion of Special Counsel Robert Mueller’s Russia investigation. Two aspects of Johnson’s use of his pardon power stand out as particularly relevant.

What Prof. Katharine Franke Gets Wrong in Her NYRB Essay on Israel and Its Critics

Columbia law professor Katharine Franke has plenty of good reasons to be angry at Israel. As a human rights activist, she is rightly appalled by the 50+ years of occupation in the West Bank and Gaza, during which the oppression of the Palestinians has steadily intensified. And the current government of Israel seems determined to make things worse, most recently by enacting the discriminatory Nation State Law. In addition, Franke has been personally treated badly by the Israeli government, which deported her last spring due to her alleged support for the BDS movement (boycott, divestment, sanctions). But even taking all of that into account, there is no excuse for the exaggerations and misstatements in Franke’s recent opinion piece in the New York Review of Books.

Titled “The Pro-Israel Push to Purge U.S. Campus Critics,” Franke’s essay argues that “new policies adopted by the US and Israeli governments are intended to eliminate any rigorous discussion of Israeli–Palestinian politics in university settings.” Exhibit One for this claim is the Department of Education’s recently adopted definition of anti-Semitism, which, according to Franke, “equates any criticism of Israel with a hatred of Jews.”

This claim is simply untrue. In fact, the DOE’s new definition is the one established by the International Holocaust Remembrance Alliance. It has already been widely adopted by international and governmental bodies, including the US Department of State and, most recently, the British Labor Party. It has been endorsed by the governments of Austria, Scotland, Romania, Germany, Bulgaria, and others, with no notable impact on criticism of Israel.

Further Reflections on Professor Moyn and Clinical Legal Education

Professor Samuel Moyn has written an engaging critique of legal education, one that impresses upon us members of the legal academy a vital task of self-scrutiny that has already generated waves of reaction and commentary.  Indeed, his piece lays bare a deep chasm of alienation in legal education.  As he points out, many students seek out elite legal education in order to change the world, lift up their fellow citizens, and seek justice; yet so many of them end up, in Professor Moyn’s words, discovering too late that they have “enroll[ed] in a trade school to solve other people’s legal problems for (often tremendous) pay.”  What damningly accurate words.

In the course of his critique, Professor Moyn describes legal clinics as complicit in this alienation.  He seems to understand clinical legal education as an opportunity for students to engage in a semester of feel-good but low-impact noblesse oblige before accepting a job – a profession? no, a job – that is all noblesse and no oblige.  As such, he questions “whether the clinical revolution is actually about changing the world.” Answering in the negative, he characterizes clinical legal education as an “increasingly routine” system in which students learn that “systemic reform” merely means getting a sympathetic judge to rule in favor of one’s client.  And he worries about the absence of law school pedagogies aimed at “inculcating in their students and in the public a critical attitude toward the operations of the rule of law.”

These words lay bare, in my view, a far-too-small conception of what clinical legal education is – or at least what it can be. 

You Never Can Tell

"You Never Can Tell" (also known as "C'est La Vie") was a minor hit for Chuck Berry in 1964, later covered by Emmy Lou Harris and many others. The song later became famous as the sound track for the dance number in "Pulp Fiction," featuring John Travolta and Uma Thurman. I found a couple of videos of Chuck Berry singing it in live performances, but they are off key so I have not included them. Instead, here are a few covers, followed by the dance scene with Berry's original recording.

Emmy Lou Harris

Reading Restaurant Reviews in the New York Times

It has often been said that the best writing in newspapers can be found on the sports pages and in restaurant reviews. I think that is often quite true, because the tasks are so challenging. Sports writers must continually come up with new ways to describe repetitive events; and food writers must figure out how to describe the way food tastes, without resorting to clichés and platitudes. Not everyone succeeds. There are plenty of bad writers on the sports or food beats. But when the writing is great, it is really great, as is the case with Pete Wells, the current New York Times food critic.

Perhaps ironically, Wells shows off his best chops when he is panning a restaurant. One reason for that, I suppose, is that it is hard to find non-hokey metaphors for good food. When it comes to bad or disappointing food, however, Wells is in his element. Below are a few choice passages from his recent review of Bluebird London, which he describes as “the busily programmed 10,500-square-foot restaurant that the mall in the Time Warner Center imported from England.” He gave it no stars.

Judith Daar Named Dean of Northern Kentucky Law

Northern Kentucky University has named Judith Daar as the new dean of the law school.  Daar, who is former interim dean at Whittier Law (and is currently a visiting professor at UC Irvine Law) will take over on July 1.  She holds a JD from Georgetown.  

Michael Cahill to Become Dean of Brooklyn Law

Mike Cahill, the co-dean of Rutgers Law (Camden campus),  is returning to Brooklyn Law where he will take over as President and Dean.  He makes the move this July.  He joined Rutgers Law in July 2016.  He was vice-dean of Brooklyn from 2013-15.   The announcement is here.

Preparing for Class

Joanna Grisinger has been blogging this month at Legal History Blog on the subject of teaching legal history. Her helpful advice is broadly applicable to all subject areas. Here is an excerpt:

“As soon as a syllabus is finalized and handed out, I save a copy as ‘future syllabus 3XX’ and add notes to it (moving or removing certain cases that just don’t work with a particular day’s material, noting at the top that I need to spend more time on A, B, or C, etc.) I know I’m not going to remember the details of why something didn’t work a year, or years, later, but it’s easy to go back to my office and simply move an assigned reading from one day to another. It’s also a file where I can paste citations, links, and stray thoughts (like ‘do a better job explaining negligence’ or ‘read this article before teaching Lochner again’) to deal with later.

Further, when I run across something online that I think might be interesting to use in one of my classes someday (an image, a newspaper article, a Legal History Blog reference to a new book or journal article, a digital history project, someone else’s syllabus or reading list, a tweet with a great piece of teaching advice), I immediately save it with Google Keep (which lives in my browser and requires a single click; Evernote also works for this.) Evernote and Google Keep (and probably a dozen more similar programs) store all kinds of materials and allow you to tag your materials as you like. I’ve created tags for each of the different classes I teach or might teach (as well as ones for various research projects I’m working on, restaurant recommendations, travel ideas, etc.). I’ll tag a link as soon as I save it, with whatever fits (the same article might be of use in Legal History since 1850, Gender and the Law, and Constitutional Law). Some of these classes I might not be teaching again for a few years, but when I’m starting to think about ordering materials and revising the syllabus for that class, I have a giant head start. It’s also a great way to keep track of the teaching tips and interesting assignments people tweet about that can be almost impossible to find weeks or months later.”

I take a very similar approach. At the end of each class period, there are often things I want to tweak about how I will cover the same material the next time I teach the course. But I find that if I don’t make a note to myself immediately after class, I can never remember what it was I wanted to change about that particular class by the time the next year rolls around.

I also find blogs to be enormously helpful for staying on top of new developments in the subjects I teach. For example, Rick Hasen’s Election Law Blog is essential reading for anyone who teaches Election Law. It provides a daily summary of all election law-related developments, including the latest court cases, law review articles, FEC rulings, newspaper stories, op-eds, and blog posts. There is not a day that goes by that I don’t read Election Law Blog. And I have found both the Civil Procedure & Federal Courts Blog and EvidenceProf Blog to be great sources of information as well. I don’t think I would be able to keep my courses fully up-to-date without those blogs. 

Part of the fun of being a law school professor is the fact that the subjects we teach constantly evolve. Even legal history courses must change over time as new scholarship deepens and broadens our understanding of the past. The law’s dynamic nature makes teaching it a new and rewarding challenge every semester.  

For more of Professor Grisinger’s excellent teaching advice, here are links to her posts on developing a legal history survey course, moving from semesters to quarters, choosing reading for legal history courses, and preparing for class.

AALS Alert: Philly Area Law Schools Reception In New Orleans

This one's for all of you who'll be at the AALS conference next month.  Put this must-do on your calendar:

The law schools of Drexel, Penn, Temple and Villanova are co-hosting a Philadelphia Area Law Schools Reception Friday night, January 4, from 6 to 7:30 pm.  Join us in the Newberry Room, 3rd floor of the Hilton, for some Philly-style bites (guaranteed to be every bit as good as the Étouffée you'd find in Center City Philadelphia), drinks and good conversation.  Think of the convenience of one-stop-shopping - no need to schmooze door to door when you can do it all right there in the Newberry Room.  

 

Iowa fetal heartbeat case update

Here is a quick update on the Iowa fetal heartbeat case. On December 7 an Iowa district court held a hearing on Planned Parenthood’s motion for summary judgment. As the Des Moines Register explained in its coverage of the hearing:

The only issue [District Court Judge Michael] Huppert needs to decide for now is whether there are any facts in dispute in the lawsuit that seeks to toss the [fetal heartbeat] law for good. . . .Planned Parenthood of the Heartland and the Emma Goldman Clinic, which sued over the law, say there is no need for a trial. Defending the law, the state’s lawyers said there are many facts on which the two sides don’t agree. They argued Friday that the law is not a blanket ban, as it has been described, but a tailored regulation. Attorneys representing the abortion providers, who say the law is unconstitutional, accused the state of trying to “muddy the picture” and urged Huppert to strike the law down.

The district court judge indicated he will not issue a ruling until February, but in the meantime the latest developments make me think that my previous analysis of the case was wrong. Planned Parenthood and the other petitioners are in a much better position than I originally thought. Here is why. 

Yale's Samuel Moyn Does Not Understand Legal Clinics [UPDATED with Moyn's responses to tweets]

Yale’s Samuel Moyn has examined the nature of elite law schools and finds them lacking in virtue.  His recent essay in the Chronicle of Higher Education, titled “Law Schools Are Bad for Democracy,” laments in its subtitle that they “whitewash the grubby scramble for power.” There is nothing new in Moyn’s observation that that “large numbers of students entering law school say that they hope to work in the public interest, but then end up working for large firms instead.” Oddly, however, he proceeds to fasten this phenomenon on public interest law. No kidding. Moyn says, “the students themselves are transformed the most, especially when they accept a set of beliefs about how the world is likeliest to change — through a politics of marginal legal reform by insiders to the system.”

Law school clinics, according to Moyn, only magnify the problem:

The Cabinet to Come

Now that President Trump has appointed a Chief of Staff named Mick, perhaps future  vacancies will also be filled with Rock n' Roll namesakes, such as:

Snoop Dog (FBI)

Sly (DOJ)

Ziggy Stardust (Space Force)

Slash (OMB)

Howlin' Wolf (press secretary)

Ringo (FCC)

50 Cent (Treasury)

Captain Beefheart or Johnny Rotten (USDA)

Pigpen or Muddy Waters (EPA)

Leadbelly (Bureau of Mines and Minerals)

Dr. John (surgeon general)

Common (ICC)

Iggy and the Stooges (the RNC).

h/t Jim Pfander, Nadav Shoked, Louis Rose, Alex Lubet, Bob Burns

Ohio Northern Law Seeks Dean

This just in:

Ohio Northern University (“ONU”) seeks an exceptional individual to serve as the next dean (the “Dean”) of the Claude W. Pettit College of Law (“ONU Law”). Founded in 1885, ONU Law provides a distinctive law school experience. The favorable student to faculty ratio allows for each student to build relationships with members of the faculty. ONU Law has consistently strong bar passage and employment statistics and a curriculum that melds theory with practice. Reporting to the Provost and Vice President for Academic Affairs at ONU, the Dean serves as the principal academic and administrative officer for ONU Law.

ONU Law is known for the faculty’s commitment to building strong relationships with students and for preparing graduates to practice law. The school has produced many generations of graduates throughout the country, and it has had a deep and lasting impact on the practice of law in Ohio. Attorneys, judges and many elected officials at the local, state and national levels are ONU Law graduates, forming a strong network of more than 5,200 alumni practicing in all 50 states and abroad, creating a rich resource for the school and its students. A key strength of the school is the caliber of its faculty, and the quality of its academic culture. Many faculty are top experts in their specialty, with training and experience from leading academic institutions. They come to ONU Law because of the strength of this community, the rich teaching environment, and the promise of a splendid setting in which to raise a family.

ONU Law seeks an experienced leader with a demonstrated, deep understanding of legal education and the pedagogical and economic challenges presently facing law schools. The exemplary candidate will be an excellent scholar with academic credentials appropriate for a tenured appointment at the rank of professor, an accomplished administrator inspired by pioneering and interdisciplinary education, and a colleague committed to joining and supporting a diverse and inclusive law school community. Promising candidates should have the aptitude and willingness to spearhead significant efforts in strengthening ONU Law’s enrollment. The next dean of ONU Law will have the opportunity to creatively shape and lead ONU Law’s agenda for the future.

Review of candidates will begin immediately and continue until the position is filled. Nominations, inquiries, and applications, including a letter of interest describing the individual’s qualifications for the position and curriculum vitae, should be submitted via this page. Electronic submission of materials is strongly encouraged.  More details here.

Call for Presentations: White Collar Crime in the 21st Century (short deadline)

This just in:

On behalf of the members of the Belmont Criminal Law Journal, we write to inform you of an upcoming symposium regarding “White Collar Crime in the 21st Century: When Corporations and Individuals Collide.” This year’s symposium will consider, among other things, the tensions that can develop between the interests of a corporation and the interests of an individual during a white collar criminal investigation and how these conflicts impact the representation of each party.

The symposium will occur at Belmont University College of Law in Nashville, Tennessee on Friday, February 1, 2019, and include three academic addresses and two practitioner panels. Professor Ellen S. Podgor, the Gary R. Trombley Family White-Collar Crime Research Professor of Law at Stetson University College of Law, will deliver the keynote academic address at this year’s event. The Belmont Criminal Law Journal is seeking two additional academics to give 30-minute presentations on topics related to this year’s theme. Belmont University College of Law will cover travel and lodging expenses. Further, all academic addresses presented during the symposium will be transcribed for publication in the Belmont Criminal Law Journal, which we anticipate being published in May of 2019. Please note that the Belmont Criminal Law Journal has a policy of allowing all presenters to make edits to the transcript prior to publication to bring the text in-line with what the presenter intended to say.

The Journal's goal is to once again bring together academics, legal practitioners, government officials, and non-profit leaders to explore a cutting-edge issue in the field of criminal law. We hope you will consider joining us in Nashville for this interesting discussion. Those interested in submitting a proposed topic to present at the symposium should submit a draft title and brief one page summary of the proposed topic to Lexie Ward (Editor-in-Chief of the Criminal Law Journal) at lexie.ward@pop.belmont.edu by Monday, December 17, 2018. Decisions regarding the submitted topics will be made by Friday, December 28, 2018.

Tennessee Waltz

"The Tennessee Waltz" was released in 1950 by Patti Page, charting at number one and remaining popular ever since.  There have been dozens, if not hundreds, of covers and millions of copies sold, in styles ranging from R&B to polka (see last clip below), and pretty much everything in between. 

Patti Page

The 2018-19 Bottom Ten Law Schools

The 2018 ABA 509 Required Disclosures are hot off the press and I couldn’t wait to delve into the numbers and see who has been naughty and who has been nice.

The title for the least selective law school in the country goes to:

1. 2017 Defending Champion - Western Michigan University Thomas Cooley! Once again, Cooley tops the bottom 10 list, but this year there is a twist. Last fall, the ABA found that Cooley was out of compliance with ABA Standard 501 on Admissions. Cooley sued the ABA, and in March 2018, the ABA essentially capitulated and found Cooley back in compliance with Standard 501(b), based on “concrete steps” that the school was making to improve its admissions policies. I analyzed those steps in this post, and predicted that they would barely make a difference in the credentials of the admitted students. Well, guess what?  Turns out I was right.