The Faculty Lounge

Harper's Ferry Anniversary

Today is the 160th anniversary of John Brown's raid at Harper's Ferry. In recognition, here is an interview I gave about my book The "Colored Hero" of Harper's Ferry: John Anthony Copeland and the War against Slavery. Born free in North Carolina, Copeland grew up in Oberlin, Ohio, where he attended the "preparatory division" of Oberlin College. He was one of only five African Americans who joined Brown's anti-slavery army. He survived the raid, only to be taken prisoner, tried, convicted, and executed by the Commonwealth of Virginia.

Your book traces the life of John Anthony Copeland, Jr. How did you discover the story of such a little-known historical figure?

I first encountered John Copeland when researching my earlier book, Fugitive Justice, about resistance to the Fugitive Slave Act of 1850. Four chapters in that book covered the Oberlin Rescue and focused on the subsequent trials of the rescuers. Copeland was indicted for his role in the rescue, but he was never arrested and therefore did not appear at the trials. I made a mental note to return to his story, which ultimately led to three years of research into his life.

Tell us a bit about Copeland and his place in American history.

African-American resistance to slavery took three forms: flight from the slave states, rescue and support for fugitives, and eventually armed resistance. John Anthony Copeland was one of the few people who engaged in all three. As a child, he fled North Carolina with his parents, eventually settling in Oberlin, Ohio. As a young man, he was one of the leaders of the Oberlin Rescue, in which a fugitive was wrested from the grasp of slavehunters. And of course, he joined John Brown at Harper’s Ferry, in their failed attempt to free the slaves of Virginia by force.

Hiring Announcement: San Francisco State University (Tax / Business Law)

From an email message that I recently received:

San Francisco State University, Department of Accounting seeks applicants for a tenure-track Assistant/Associate Professor position with a specialization in Tax and Business Law . The position will start in August 2020.

The mission of San Francisco State University is to create an environment for learning that promotes appreciation of scholarship, freedom, human diversity, and the cultural mosaic of the City of San Francisco and the Bay Area; to promote excellence in instruction and intellectual accomplishment; and to provide broadly accessible higher education for residents of the region, state, the nation, and the world.

A Ph.D. in Accounting from an AACSB-accredited program or a J.D. and L.L.M with a Tax specialization from a nationally recognized law school is required. Certification and professional experience are desirable.  Salary commensurate with qualifications. Position description is available at  [cob.sfsu.edu].   Application review begins in August 2019, and continues until filled. Send letter of intent/interest, a current CV, a statement regarding how your teaching and scholarship align with the commitment of the Accounting Department to foster an inclusive and diverse academic community, sample of scholarly papers, teaching evaluations, names and contact information of three references to Theresa Hammond, Hiring Committee Chair, at actthire@sfsu.edu. Letters of recommendation upon request at a later date.    

Trump, Gowdy, and Giuliani [UPDATED]

For a few days last week, former GOP congressman Trey Gowdy was the newest member of the Trump legal team in the impeachment inquiry. The arrangement fell apart, however, when Gowdy's law firm, Nelson Mullins, became concerned about that the engagement might violate the rules prohibiting former congressmen from lobbying for a year after leaving office. There was an additional problem with retaining Gowdy, however, that did not get any publicity. Another Nelson Mullins partner, Jonathan Sale, already represents Rudy Giuliani in the impeachment investigation, thus creating a classic conflict of interest.

[UPDATE: Giuliani has now discharged Jon Sale, meaning that neither of the Nelson Mullins lawyers remain on the case.]

I wrote an oped explaining the conflict, and placed it for publication, but it has now become moot. I think the conflict issue is still of interest to lawyers, so here is are the key paragraphs:

The representation of Trump and Guiliani presents a classic conflict of interest. Under the Rules of Professional Conduct in both South Carolina (where Gowdy is admitted to practice) and Washington, D.C. (where Sale is admitted), a lawyer or law firm may not concurrently represent two clients if there is a “significant risk” of a resulting limitation on their advice to one or the other.

In this case, there is a glaring risk that loyalty to Trump may overwhelm the objectivity of the Nelson Mullins lawyers, making it difficult or impossible to provide Giuliani with independent counsel. Trump, after all, is president of the United States and a domineering personality if there ever was one. If he wants Rudy to keep his mouth shut, what lawyer could easily advise Giuliani to do otherwise?

Some conflicts can be waived with the consent of both clients, but I don’t think this is one of them. Under the ethics rules, lawyers may not accept conflict waivers unless they can “provide competent and diligent representation to each affected client.” Even if Trump and Giuliani currently plan to remain united, and have given detailed written authorizations to Nelson Mullins, there is no predicting how their relationship will develop in the future. (And put aside the fact that Giuliani would have been under tremendous pressure to sign a waiver – given that Trump is his boss – making him unable to freely provide the necessary “informed consent.”)

The full never-to-be-published oped is after the jump.

O.J. Simpson & Exigent Circumstances

In last week’s post,  we explored how the case of Adnan Syed serves as a powerful vehicle to teach Strickland v. Washington in the investigative criminal procedure classroom.  This week, in my third post of this series, we explore how investigative decisions made on June 13, 1994—the night of Nicole Brown Simpson and Ron Goldman’s murders—offer students an unparalleled opportunity to apply the Fourth Amendment’s exigent circumstances doctrine.

Charleston Law Seeks Visiting Faculty

This just in:

Charleston School of Law in Charleston, South Carolina welcomes applications to fill one full-time, visiting faculty position (with look/see potential) for a professor to begin in the 2020–21 academic year. Ideal candidates will be stellar teachers and passionate, enthusiastic colleagues, who are willing to invest considerable energy and effort in service and institution building by collaborating with the rest of the faculty to achieve excellence at the Charleston School of Law.

Although our curricular needs are flexible, we are presently looking for applicants interested in teaching: Property and Wills, Trusts & Estates; or, Constitutional Law, among other possible needs. Applicants should submit a C.V. and a statement of interest to Professor Paul Lund, Chair, Faculty Recruitment, Retention & Inclusion at plund@charlestonlaw.edu, with the subject heading “Faculty Position.”

Tracing its historic traditions to the 1825 formation of The Forensic Club, the Charleston School of Law is an ABA fully-accredited institution reinvigorating the study of law in Charleston by offering a rich, comprehensive three-year program rooted in excellence. Our campus is located in the heart of historic downtown Charleston. Blending charm and history, the city thrives with culture, outstanding restaurants, and some of the most beautiful beaches and waterways in the South. A friendly community with a focus on local goods and vendors—it is truly a unique place.

Charleston School of Law seeks to create a campus environment that welcomes and fosters diversity in broad aspects. The Departments and Offices work to be inclusive. The Office of Diversity Initiatives, in particular, carries out the mission by creating an inclusive environment on campus, in the Lowcountry, and throughout the State of South Carolina.

UDC Law Seeks Entry and Junior Lateral Faculty

This just in:

THE UNIVERSITY OF THE DISTRICT OF COLUMBIA DAVID A. CLARKE SCHOOL OF LAW (UDC LAW) seeks to hire multiple tenure-track faculty members to join our dynamic and mission-driven community in the 2020-2021 academic year.

We are looking broadly for candidates, but welcome in particular applications from aspiring faculty and junior lateral candidates with an interest in teaching Criminal Law, Criminal Procedure, and/or a desire to teach in our nationally ranked clinical law program. We are specifically interested in hiring faculty members to direct our Housing & Consumer Law Clinic or our Juvenile & Special Education Law Clinic. Each position will begin on August 16, 2020. Candidates must have a J.D. degree and must demonstrate high scholarly distinction or promise and a commitment to teaching excellence. Applications are encouraged from women, members of minority groups, and others whose background and experience would contribute to the diversity of the law school community.

UDC LAW is the only public law school in the nation’s capital and is one of only six American Bar Association accredited law schools at Historically Black Colleges and Universities. UDC LAW has a statutory mission to recruit and enroll students from groups traditionally underrepresented at the bar; to provide a well-rounded theoretical and practical legal education that will enable students to be effective and ethical advocates; and to represent the legal needs of low-income residents through the School’s legal clinics. Notably, UDC LAW is:

He'll Have to Go

"He'll Have to Go" was written by the husband-wife team of Joe and Audrey Allison, inspired by a telephone call in which he could not hear her soft voice above the din of a party. Released in 1959 by Jim Reeves, it reached number one on the Country Chart and number two on the Pop Chart. There have been many covers, as well as an answering song (be sure to check it out at the bottom of the post).

Here is Elton John's cover

UC Davis/ACTEC Symposium, "An Empirical Analysis of Wealth Transfer Law"

Today the UC Davis Law Review hosts its 53rd annual symposium. This year's topic is "An Empirical Analysis of Wealth Transfer Law." The program is co-sponsored by the ACTEC Foundation. Here's the program for today's events:

Opening Remarks by Dean Kevin Johnson
8:45-approx. 9:00 AM

Panel 1: MARRIAGE
Moderated by Professor David Horton (UC Davis)
Panel with:

Professor Naomi Cahn (GWU), What's Wrong about the Elective Share Right? with comments by Professor Shayak Sarkar (UC Davis)

Professor Alyssa DiRusso (Samford), Using Empirical Data on the Widowhead Effect to Optimize Simultaneous Health Law and Drafting, with comments by Professor Andrea Chandrasekher (Davis)

Professor Jeffrey Pennell (Emory), Individuated Determination of a Surviving Spouse's Elective Share

Professor Russell James (Texas Tech), Empirical Analysis of Charitable Bequest Transfers: A Comprehensive Review, New Findings, and the Emerging Potential of Longitudinal Data

9:00 AM-10:45 AM

Break
10:45 AM-11:00 AM

Panel 2: RESEARCH USING PROBATE RECORDS
Moderated by Professor Adam Hirsch (San Diego)
Panel with:

Professor Reid Kress Weisbord (Rutgers), Fiduciary Authority and Liability in Probate Estates: An Empirical Analysis, with comments by Professor Jane Baron (Temple)

Professor Bridget Crawford (Pace), What Probate Courts Cite: A Study of the New York County Surrogate's Court 2017-2018, with comments by Professor Donna Shestowsky (Davis)

Professor Alberto Lopez (Alabama), Antebellum and Postbellum Testamentary Transfers in Three Kentucky Counties

Professor David Horton (UC Davis), Do-It-Yourself-Wills, with comments by Professor Alexander Boni-Saenz (Chicago-Kent)

11:00 AM-12:45

Lunch and Keynote Speaker

12:45-2:30

Panel 3: NONPROBATE TRANSFERS, ESTATE PLANNING, AND INTESTACY
Moderated by Professor David Horton (UC Davis)

Professor Adam Hofri-Winogradow (Hebrew University), The Statutory Liberalization of Trust Law Across 152 Jurisdictions: Leaders, Laggards and the Market in Fiduciary Services, with comments by Professor Christopher Elmendorf (UC Davis)

Professor Adam Hirsch (San Diego), Waking the Dead: An Empirical Analysis of Revival of Wills

Professor Gary Spitko (Santa Clara), How Should Will Substitutes Matter in Intestacy? A Qualitative Study (co-authored with Professor Mary Louise Fellows (Minnesota))

Professor Emily Taylor Poppe (UC Irvine), Surprised by the Inevitable; An Empirical Examination of National Estate Planning Behavior, with comments by Professor Menesh Patel (UC Davis)

Professor Danaya Wright (Florida), What Happened to Grandma's House: The Real Property Implications of Dying Intestate

2:30-4:30

Florida Law Seeks Tenured Law/Tech Faculty

This just in:

UNIVERSITY OF FLORIDA LEVIN COLLEGE OF LAW seeks to hire a tenured faculty member specializing in the intersections of law and technology as part of the university’s quest to become a top five public research institution. This position will be based at the Levin College of Law with a joint appointment at the University of Florida Wertheim College of Engineering. The University of Florida, located in Gainesville, FL, is currently the seventh best public research institution in the nation and the flagship university of the third largest state. This position is funded by the state of Florida’s preeminence initiative, designed to position the state as a national leader in higher education.

The Appointments Committee welcomes applications from candidates who have strong and sustained publication and research records analyzing intersections between law and technology. Preference will be given to candidates who have participated in federal and other grants with engineering professors. Specific areas of study may include, but are not limited to, agriculture, environmental science and policy, civil engineering, energy policy and regulation, medical technology, computer science, cyber-security, data analytics and the regulation of big data, artificial intelligence, machine learning, innovation, and intellectual property.

Candidates must also have JD, PhD, or equivalent degrees in related fields and have demonstrated excellence in teaching and commitment to creating an inclusive environment for all students. Application materials should include a cover letter, a resume which includes at least three references, a list of publications, and copies of three publications that have appeared in print within the last five years. Materials may be uploaded at http://jobs.ufl.edu. For further information, applicants may contact Professors Daniel Sokol and Michael Wolf at P.O. Box 117620, Gainesville, FL 32611 or by email appointments@law.ufl.edu.

CFP: The University of St. Thomas (MN) Journal of Law and Public Policy on “Inequality of Wealth, Race, and Class, Equality of Opportunity.

The University of St. Thomas (MN) Journal of Law and Public Policy is hosting a symposium on March 27, 2020, entitled “Inequality of Wealth, Race, and Class, Equality of Opportunity.” Topics include “Student Loans;” “Social Mobility;” “Housing;” and “The Public Good.”

 

Please submit proposals of 250 to 500 words to Professor Charles J. Reid, Jr, (cjreid@stthomas.edu) by November 15, 2019.  We shall notify those who have submitted successful proposals shortly after that date.  Successful submissions can expect a modest honorarium. Successful submissions will be published in our Journal of Law and Public Policy. The deadline for final drafts is July, 2020.

 

For those who wish to present in person on March 27, in addition to the honorarium, we shall cover travel costs, food and lodging.

 

Florida State Law Seeks Endowed Chair in Public Law

This just in:

The Florida State University College of Law invites applications and nominations for the Tobias Simon Chair in Public Law. The Chair was established in honor of Tobias Simon, a well-known civil rights lawyer and late professor at the College of Law.

Candidates must hold a J.D., Ph.D., or equivalent degree, have significant experience (5 years minimum) in teaching and/or practice, and be qualified for appointment as a tenured, full professor. Candidates must have a distinguished publication record in a public law field, including, but not limited to, civil rights and civil liberties, international law, and public policy.

If interested, please send a letter of application and curriculum vitae to:
Professor Sam Wiseman, Chair
Tobias Simon Chair Search Committee
Florida State University College of Law
Tallahassee, FL 32306-1601
OR to: swiseman@law.fsu.edu

Applications will be accepted through December 20, 2019.

Jon Garon Stepping Down as Dean of Nova Southeastern Law

After five-plus years at the helm of Nova Southeastern's law school, Dean Jon Garon has announced he will step down at the end of this school year.  

Indiana - Indianapolis Law Dean Announcement

Dean Andy Klein is wrapping up his seven year run at McKinney and IU is looking for a new dean.  The announcement is here.

 

Ginger Baker (1939-2019)

Formed in 1966, Cream was the first rock "Supergroup," with Eric Clapton on guitar, Jack Bruce on bass, and Ginger Baker on drums. The band was known for extended jams, including Baker's twelve minute drum solo Toad. This is one of the shortest live clips of Cream I could find:

After Cream disbanded in 1968, Baker played with several rock bands, including Ginger Baker's Air Force, before moving to Nigeria, where he opened a recording studio and worked frequently with Fela Kuti.

Path-Takers and Way-Makers

Speaking of the first Monday in October, the revived New Rambler has just posted my review of the new biographies of Chief Justice John Roberts and Justice Sandra Day O'Connor. Here is the full review:

Path-Takers and Way-Makers

By STEVEN LUBET

Review of The Chief: The Life and Turbulent Times of Chief Justice John Roberts, by Joan Biskupic, and First: Sandra Day O’Connor, by Evan Thomas

New York: Basic Books, 2019 

New York: Random House, 2019

The challenge in a judicial biography is to make the material interesting to general readers as well as to lawyers and academics. That is not always easy, as even an important Supreme Court justice may have led a relatively unremarkable life. This essay reviews Joan Biskupic’s biography of John Roberts and Evan Thomas’s biography of Sandra Day O’Connor, both of which are well-written and exhaustive. It will come as little surprise that Justice O’Connor is a far more interesting subject than Chief Justice Roberts, and that difference is also reflected in their jurisprudence. Roberts, whose career arc was steadily and predictably upward from high school to the Supreme Court, affects a technocratic, nearly antiseptic, judging style. O’Connor, in contrast, led a more complex and eventful life. Her experiences brought her to an empathetic, less detached, approach to her work, taking fuller account of the impact her decisions could have on individuals.  

Joan Biskupic specializes in Supreme Court justices, having previously written biographies of Antonin Scalia (2010), an earlier one of Sandra Day O’Connor (2006), and Sonia Sotomayor (2015). Scalia was an outsized personality and both O’Connor and Sotomayor overcame unprecedented obstacles. They would have been fascinating subjects even if they had never served on the Court. But what is there to say about Roberts other than that he is chief justice?

Detroit Mercy Law Review Symposium CFP: Race, Class, and Environmental Justice

2020 Detroit Mercy Law Review Symposium:
Race, Class, and Environmental Justice
Call for Proposals
Deadline: Friday, October 18, 2019

The University of Detroit Mercy Law Review seeks proposals for its 104th annual Symposium, which will focus on Race, Class, and Environmental Justice and will be held Friday, March 6, 2019, in Detroit, Michigan. Proposals, which should be approximately 250–500 words, are due no later than 5 p.m. EST on Friday, October 18, 2019. Possible topics include, but are not limited to: the impact of water and air quality issues on marginalized people; the history of ecological inequities and the law; legal approaches to climate change and global warming; challenges arising from efforts to increase the use of renewable energy; legal and equitable issues connected with deep decarbonization projects; and any other topic related to race, class, and environmental justice. Please include a current CV with your proposal and indicate whether the proposal is for a presentation only, or whether you also plan to submit an article for possible publication. Preference will be given to proposals that include plans for an article, which will be due to the Law Review on Friday, March 13, 2019. Proposals and questions should be directed to Bridget Underhill, Symposium Director, at underhbl@udmercy.edu.

Teaching Strickland v. Washington through the case of Adnan Syed

In my post last week titled “Bringing famous defendants into the Criminal Procedure classroom,” I suggested that case filings from (in)famous defendants present the legal academy with a special opportunity to bring the classroom alive—particularly and especially the investigative criminal procedure classroom—in a manner superior to more traditional teaching methods.  At the end, I promised a series of follow-up topic-specific posts that would include my thoughts about teaching the investigative criminal procedure course through the lens of famous defendants. Today we dive into how the performance of Adnan Syed’s attorney, Cristina Gutierrez, at his murder trial makes for a compelling way to teach Strickland v. Washington.

Texas Tech Law Seeks Faculty for Water/Property/Environmental Law

This just in:

Texas Tech University School of Law is seeking to fill an open faculty position (Requisition 1877BR). Anticipated curricular needs include Water Law, Property, and Environmental Law. The position is open to candidates who would be on the tenure-track or who are tenured at another law school. We anticipate that the successful candidate will also serve as the Director for the Law School’s Center for Water Law and Policy. If tenured, the successful candidate may also be considered to fill the position of the George W. McCleskey Professor of Water Law.

The Center’s mission is to develop opportunities for critically examining legal, regulatory, and policy aspects of water law and water resource management. The Center is dedicated to pursing these objectives through an interdisciplinary approach that incorporates economic, sociological, agricultural, environmental, and other views of water management. The Center has a goal of providing relevant information to private, local, state, federal, and international law and policy-making bodies as a means of elevating the discussion about water law and resources. In addition to serving as the Center’s Director, responsibilities would include teaching Water Law and related courses such as Property and Environmental Law.

Applicants must possess a J.D. degree, and have a commitment to or demonstrated record of scholarly distinction, exemplary teaching, and institutional or public service. Experience working with diverse student populations and first-generation students is highly desirable. Service expectations include program-building, as well as commitment to relevant extracurricular activities. Service to the School of Law and University is expected. Pursuit of external grants in support of research when appropriate and available in the faculty member’s field, is encouraged.

Texas Tech University, located in Lubbock, Texas, is a state-supported National Research University with an enrollment that exceeds 38,000 students. The law school has approximately 400 students and 33 full-time faculty members. The law school is an integral part of the University and offers 10 dual-degree programs with other Texas Tech schools and colleges. The Lubbock metropolitan area is home to over 300,000 people, enjoys affordable housing, abundant sunshine, friendly people, and offers easy access to other parts of the country. For more information, visit our website at http://www.depts.ttu.edu/law/.

Can a State Abolish the Insanity Defense?

Today is the first Monday in October, and the first case up on the SCOTUS docket is Kahler v. Kansas, in which the question is whether the Constitution allows states to abolish the insanity defense, as has been done in Kansas, Alaska, Idaho, Montana, and Utah.

My colleague Sarah O'Rourke Schrup, of Northwestern's Bluhm Legal Clinic, represents the petitioner, and will thus be the first attorney to argue a SCOTUS case this term.

Here is how the ABA Journal describes the case: 

In the Kansas case, James Kraig Kahler was convicted and sentenced to death for the 2009 murders of his estranged wife, his two teenage daughters, and his wife’s grandmother.

Experts for the defense and the prosecution concluded that Kahler suffered from obsessive- compulsive personality disorder, major depressive disorder, and borderline, paranoid, and narcissistic personality tendencies.

The defense expert further concluded that Kahler’s depression at the time of the shooting was so severe that Kahler did not make a genuine choice to kill his family members. Kahler’s lawyers proposed jury instructions on both diminished capacity and insanity as an affirmative defense, but the trial court rejected them as prohibited by Kansas law.

The Kansas Legislature in 1995 adopted a “mens rea,” or mental state, approach to insanity. Under this approach, it is “a defense to a prosecution under any statute that the defendant, as a result of mental disease or defect, lacked the culpable mental state required as an element of the crime charged. Mental disease or defect is not otherwise a defense."

And here is how Prof. Schrup explained the appeal:

“This is recognizing what has been there all along—the capacity for moral judgment as a prerequisite for criminal culpability,” says Sarah O’Rourke Schrup, a clinical associate professor at Northwestern University law school and the director of the school’s Supreme Court Clinic.

“The mens rea approach removes this moral component,” says Schrup. “Why, for someone in Kansas and these other states, it is enough only if the person acts intentionally?”

Sound of Silence -- [UPDATED WITH DYLAN CLIP] [UPDATED AGAIN with WHAT MAKES THIS SONG GREAT]