The Faculty Lounge

CFP: U of Montana Browning Symposium on Consumer Law

This just in:

The Montana Law Review invites submissions for the 2020 biennial Browning Symposium at the University of Montana’s Blewett School of Law. The symposium will take place September 24 and 25 in Missoula, Montana. The topic this biennium is consumer law in the 21st century, and Richard Cordray, the first director of the Consumer Financial Protection Bureau and former Ohio attorney general, will give the keynote address.

The Montana Law Review is seeking panelists to share their expertise on cutting edge consumer issues during the symposium and to publish papers in a special symposium edition of the Montana Law Review. Potential topics include, but are not limited to, cryptocurrency, social media influencers, challenges to disclosures, student loans, credit card debt, debt collection, healthcare fraud, pharmaceutical litigation, and data privacy.

Western Montana in the fall is a beautiful place to consider these important issues, and the Montana Law Review will reimburse reasonable travel expenses for selected participants. Missoula offers unmatched outdoor recreation opportunities, including world-class fishing and hiking, and is located only hours from Glacier National Park.

Interested participants should submit a short abstract for an unpublished paper, along with institutional affiliation and contact information, to symposium editor Kelsey Dayton at kelsey1.dayton@umontana.edu. The Montana Law Review will select participants on a rolling basis beginning in April.

Swanson, Race and Selective Legal Memory

Kara Swanson, Race and Selective Legal Memory.  Forthcoming Columbia Law Review.

In 1858, the United States Attorney General issued an opinion, Invention of a Slave. Relying on the Supreme Court’s recent declaration in Dred Scott v. Sandfordthat African Americans were not citizens, he created a formal racial barrier to the patent system, declaring inventions by all African Americans, enslaved and free, unpatentable. Within a few years, legal changes that overruled Dred Scott and abolished the law of slavery rendered the opinion obsolete. This brief opinion became, as far as lawyers and legal scholars were concerned, forgotten. Unlike many overruled opinions dropped from the legal canon, however, Invention of a Slave and the associated story of an enslaved blacksmith who invented an innovative plow have been continuously remembered. Women and men committed to fighting the legacy of slavery maintained both in the collective memory of those seeking full civil rights for African Americans. Our legal forgetting was an act of persistent blindness to their efforts and publications. This Essay excavates the generations of African American writers and activists who have worked to remember the opinion and argues that legal forgetting has carried a cost. Their remembering was not casual storytelling but rather deliberate, strategic, and political. I offer Invention of a Slave as a case study of race and selective legal memory, tracing an unacknowledged color line that demarcates legal memory and the costs of that line. Because of our forgetting, the opinion appears as an obscure part of the antebellum past. When we understand their remembering as a political act, we can see what they have always seen: There is a connection between the patent system and the legal and social definition of citizenship. At a time when the boundaries of citizenship and the contours of who is worthy to be considered an American are hotly contested in ways related to race and ancestry, learning from those who remembered Invention of a Slave offers lessons that link this piece of the past to our present and future, with implications both for the patent system and for our on-going conversation about race, equality, citizenship and the laws that affect them.

Hiring Announcement: Stanford Law School (Teaching Fellow, LLM Program)

From an email message that I recently received:

Teaching Fellow, International Economic Law, Business and Policy (IELBP), Stanford Law School

STANFORD LAW SCHOOL seeks to hire a teaching fellow for the LLM Program in International Economic Law, Business & Policy. The appointment is for a two-year position with the possibility of a third year by mutual agreement, beginning In August 2020.

The fellow will assume significant academic, advising and administrative responsibilities. The principal functions of the teaching fellow are to prepare and lead a colloquium on international business issues for the 15-20 students who enroll in the program annually, to advise students on their curricular choices, and to assist in the admissions and orientation process for the incoming class.

The fellow will also organize and facilitate informal workshops, outside speakers, and academic and social events, be responsible for day-to-day administrative management of the LLM program, advise and counsel LLM candidates on academic and personal issues, respond to inquiries from prospective LLM applicants, and interact with our faculty in support of the LLM program goals and needs.

The ideal candidate will be an aspiring academic with a strong interest in one or more of the core subject areas spanned by the program (including international trade, international investment law, international dispute resolution and arbitration, international business transactions and international antitrust). It is expected that the responsibilities of the teaching fellow will occupy approximately half of his or her time, with the remaining time available to pursue the fellow’s own research agenda. The fellow will have full access to the research resources of Stanford University and access to faculty workshops.

 

Guest Post: If It Doesn't Fit

This guest post is an observation from Eric Fish, a federal public defender in San Diego and a law professor at UC Davis (beginning in 2021), in response to "The Concept of The Theme in Advocacy," which included a television commercial for Chicago Jewish Funerals:

Johnny Cochran's famous couplet is universally misquoted as "if the gloves don't fit, you must acquit."  But that's not what he said -  he didn't say the word "gloves."  During his closing he said several times: "if it doesn't fit, you must acquit."  At one point he was discussing the claim that OJ disguised himself with a knit cap, and he said: "It's no disguise. It's no disguise.  It makes no sense. It doesn't fit. And if it doesn't fit, you must acquit."  See here: https://www.youtube.com/watch?v=NH-VuP_5cA4.  Later he was discussing the gloves not fitting and said "I want you to remember these words, like the defining moment in this trial, when Mr. Darden asked Mr. Simpson to try on those gloves and the gloves didn't fit.  If it doesn't fit, you must acquit."  He also used the "it doesn't fit" theme when discussing the prosecution's theory of the timeline.

I think this makes it an even better example of developing themes in a closing argument.  He didn't have to say "gloves."  Everyone knew what he was referring to.  And he applied that theme to every part of the case, not just the gloves.  In a way, the fact that Mr. Cochran is universally misquoted is the best evidence that the theme worked.

Two Finalists Named in Indiana - Indy Law Dean Search

The news is drip, drip, but the first two finalists in the Indiana University Indianapolis law school dean search have been identified.  They are David Thronson (Michigan State) and Milena Sterio (Cleveland-Marshall).  

Alan Dershowitz and Kenneth Starr Agree on Something

The impeachment defense of President Trump is not the first time Alan Dershowitz and Kenneth Starr have agreed. In 2006, they both blurbed my book, Lawyers' Poker: 52 Lessons That Lawyers Can Learn from Card Players:

"Lubet deals a winning hand with this entertaining and creative approach to gamesmanship. Anyone who negotiates, strategizes or bluffs--and who doesn't--will benefit from this great read. You won't be able to keep a poker-face when you read this funny and informative book." -- Alan M. Dershowitz, Felix Frankfurter Professor of Law, Harvard

"Steven Lubet creatively weaves together two ostensibly unconnected worlds. Highlighted by anecdotes from some of the greatest arguments in American trial history, coupled with memorable hands in the World Series of Poker, Lawyers' Poker provides illuminating insights into strategic decisions in courtrooms and card tables across America." -- Kenneth W. Starr, Dean and Professor of Law, Pepperdine University School of Law

As far as I know, that had no influence on their current alignment.

Alan Dershowitz's Bad History

I have this essay in The American Prospect:

Alan Dershowitz’s Bad History

The lawyer for Trump in the impeachment trial makes incorrect claims about Andrew Johnson’s defenders.

by Steven Lubet

January 25, 2020

As a life-long liberal Democrat, Alan Dershowitz defends his unlikely representation of President Trump by comparing himself to former Supreme Court justice Benjamin R. Curtis, who defended President Andrew Johnson before the U.S. Senate in his 1868 impeachment trial. According to Dershowitz, Curtis “thoroughly disagreed” with Johnson’s politics, but defended him nonetheless on the principle that the Constitution allows impeachment only for “criminal-type behavior.” Whatever else one might say about Dershowitz’s understanding of the impeachment clause, he seriously misapprehends Justice Curtis’s political views, which were well-aligned with Johnson’s on the critical issue of slavery.

Although he opposed secession, Andrew Johnson was a pro-slavery Democrat from Tennessee, whom Lincoln included on his 1864 fusion ticket in an effort to assemble the broadest possible pro-Union coalition. Following Lincoln’s assassination, Johnson did his best to thwart meaningful Reconstruction and to undermine the rights, and even the safety, of the recently freed slaves, which formed the political backdrop for his eventual impeachment by the Republican-dominated House of Representatives.

Curtis’s history was likewise pro-slavery. To his credit, he was one of only two dissenters in the Supreme Court’s disgraceful Dred Scott decision, in part on procedural grounds, but his earlier career as a Boston lawyer had been closely identified with slaveholding business interests.

As a so-called “Cotton Whig,” Curtis had many clients whose fortunes were built on enslaved labor in the South. He represented the losing slaveholder in the landmark Aves case, in which the Massachusetts Supreme Judicial Court held that slaves brought voluntarily into the Commonwealth (as opposed to fugitives) were immediately entitled to freedom.

Peach Pickin' Time in Georgia

Hiring Announcement: Louisiana State University, Paul M. Hebert Law Center (Visitor)

From an email message that I recently received:

LOUISIANA STATE UNIVERSITY, PAUL M. HEBERT LAW CENTER seeks to hire a visiting professor for the 2020-21 academic year or for Fall 2020 and/or Spring 2021 in the following areas: federal courts, constitutional law, civil procedure, and evidence. Applicants should have a J.D. from an ABA-accredited law school, superior academic credentials, and a commitment to outstanding teaching.

The Paul M. Hebert Law Center of LSU is an Equal Opportunity/Equal Access Employer and is committed to building a culturally diverse faculty. We particularly welcome and encourage applications from female and minority candidates.       

The Faculty Appointments Committee will begin reviewing applications on February 7, 2020 and will consider applications thereafter on a rolling basis until the position is filled. Applications should include a letter of application, resume, references, and teaching evaluations (if available) to:

Melissa T. Lonegrass and Christina M. Sautter

Co-Chairs, Faculty Appointments Committee

c/o Pam Hancock (or by email to phancock@lsu.edu)

Paul M. Hebert Law Center

Louisiana State University

1 East Campus Drive

Baton Rouge, Louisiana 70803-0106

CFP: ComplianceNet 2020 Submission Deadline Extended

For those working in the area of compliance, organizers of ComplianceNet 2020 (June 29-30, University College London) have extended the deadline for submission of panel proposals and individual papers to February 7.  Details about the conference and call here.

Miles Appointed to Second Term as Chicago Law Dean

The University of Chicago Law School has renewed the appointment of Dean Thomas Miles, effective July 1.   He first took the position in November of 2015.

The Vulnerability of Contingent Faculty and Student Evaluations

Writing on the Academe Blog, Hank Reichman posted the below piece on the much-litigated dismissal of Georgette Fleischer at Barnard College. After 17 years as a writing instructor at Barnard, teaching two courses each semester, Fleischer's termination was upheld by an arbitrator, in part on the basis of what Reichman describes as "two cherry-picked responses on anonymous online student evaluations."

Justice Delayed, Justice Denied

Hank Reichman / 23 hours ago January 21, 2020

BY HANK REICHMAN

Over two years ago, on November 3, 2017, I posted an item to this blog about the ordeal of Georgette Fleischer, a Barnard College adjunct writing instructor who was summarily dismissed from her position after 17 years of successful teaching.  Here, from that post, is the background:

For seventeen years Georgette Fleischer taught first-year English, now first-year Writing, at Barnard College in New York.   For most of those years she found Barnard a “wonderful place to work.  We felt like our work was appreciated, and that meant a great deal,” she told a reporter in September.  That changed, however, under the administration of former president Debora Spar when Barnard refused to reappoint her to first-year seminar for the 2014-15 academic year, citing negative evaluations by some of her students.  Fleischer tried to file a grievance under the school’s faculty internal grievance policy but was told that as a part-time lecturer she wasn’t eligible to do so because she was not a member of the “faculty.”

On May 16, 2014, the AAUP wrote to Spar pointing out that by denying Fleischer the right to grieve Barnard was in violation of longstanding AAUP-approved principles of due process rights.  The AAUP recommended that Fleischer “be retained for an additional academic year with opportunity to appeal the decision that was made.”  But it took a law suit and the support of an attorney willing to work pro bono for her to win the right even to grieve.  In April 2015 New York State Supreme Court Justice Alexander Hunter ruled that Fleischer was indeed a faculty member and entitled to file a grievance.  The decision marked, as the Chronicle of Higher Education noted, “a rare effort by the courts to define adjunct instructors’ status and rights at the colleges that employ them.”

That apparent victory was, however, only the start of Fleischer’s continuing ordeal.  By then she had started organizing Barnard Contingent Faculty Local 2110 of the UAW to represent the school’s non-tenure-track instructors.  In October 2015 over 91% of Barnard’s contingent faculty who voted chose to unionize.  Fleischer was elected to the bargaining committee, receiving more votes than any other nominee.  She served in that capacity for 16 months, before resigning in February [2017] because she objected to provisions of the proposed contract, including what she saw as weak protection for academic freedom.  The contract was signed two months later, but two weeks after that two faculty members on the cusp of becoming post-probationary were dismissed.   In May seven long-term members of the local were terminated.  Fleischer was among them.

While the other faculty members have apparently accepted severance offers, Fleischer is heroically fighting her dismissal with the support of her union, which filed a grievance under the contract charging violations of articles covering discrimination, academic freedom, and appointments.  On August  28 [2017], however, Barnard Provost Linda Bell rejected the grievance and the process has moved to arbitration.

On August 19, 2019, some 27 months after Fleischer first filed her grievance, arbitrator Ralph S. Berger finally rendered his verdict, upholding Barnard’s decision to deny her reappointment.  The ruling was based on the claim that Barnard acted in response to concerns about Fleischer’s teaching, in particular her ability to adapt to a new approach to writing instruction implemented by a recently named director of the writing program, whose decision it was not to renew Fleischer’s contract.  These concerns were allegedly validated by student input, specifically two cherry-picked responses on anonymous online student evaluations.

Peter Goplerud Named Dean of Florida Coastal Law

Florida Coastal School of Law has named its president, Peter Goplerud, to be the new dean.  He takes over from interim dean Jennifer Reiber.  Goplerud was dean of the school from 2004 to 2013.

The Concept of the Theme in Advocacy: An Example

In teaching trial and appellate advocacy, we emphasize the concept of a persuasive theme: A concise statement, preferably only a sentence or two, that conveys the gist of the case in memorable terms. Johnny Cochran may have been mocked for his rhyming theme in the O.J. Simpson trial -- "If the gloves don't fit/You must acquit" -- but the couplet worked.

The video below has five short commercials for Chicago Jewish Funerals. The first clip concludes with one of the best examples I have seen for an effective theme. No need to watch the other four clips; they may also be effective as advertising, but they do not illustrate the sort of "adversarial" theme that lawyers use in litigation.

 

Till There Was You

"Till There Was You" was written for the 1957 Broadway show The Music Man, and later performed by Shirley Jones in the film of the same name. It has been covered many times, and it is the only show tune ever recorded by the Beatles (1963 performance at the bottom of the post).

Indiana Indianapolis Law Selects Dean Finalists

There are four people coming to the IU-Indianapolis campus in the next few weeks to interview for the law school deanship, but you'll have to sit tight to learn their identities.  More here.

Wisconsin Law Begins Dean Search

Isaacson, Miller is consulting. 

The committee is chaired by Heinz Klug, Evjue-Bascom Professor of Law and the others are: Michelle Behnke, community member and external practicing attorney; Roman Gierok, student; Erica Halverson, professor of curriculum and instruction; Alexandra Huneeus, professor of law; Richard Monette, professor of law; Yaron Nili, assistant professor of law; Kim Peterson, lecturer; Howard Schweber, professor of political science and Law School affiliated faculty; Mitra Sharafi, professor of law; Susannah Tahk, associate dean for research and faculty development at the Law School; Janice Toliver, executive assistant at the Law School; Kathryn VandenBosch dean of College of Agricultural and Life Sciences; Steven Wright, clinical associate professor; and Jason Yackee, professor of law.

Further details here.

CFP and Conference Announcement: Taxation and Gender Equality Conference, September 14-15, 2020

Announcement of Conference and Call for Contributions

Taxation and Gender Equality Conference:

Research Roundtable and Policy Program

As the Organizers and members of the Academic Advisory Committee we are pleased to issue this Announcement and Call for Contributions to an event that will be held on September 14 and 15, 2020, in Washington, DC, to explore the interaction between tax law and gender equality. The goal of the Conference, which is sponsored by the Tax Policy Center, the American Tax Policy Institute, the American Bar Foundation, and, subject to the final approval of their boards, the Tax Section of the American Bar Association and the American College of Tax Counsel, is to shine a spotlight on gender issues in taxation and to bring consideration of gender impacts into mainstream discussions surrounding the enactment and administration of tax laws. The intended scope of the Conference is broad, focusing not only on gender issues in U.S. tax law but also on gender issues in the tax laws of other countries; it will consider all taxes, whether income, consumption, transfer, wealth, or other national-level taxes, as well as subnational taxes.

The Conference will begin on Monday, September 14, 2020 at the Washington, DC, offices of Pillsbury Winthrop Shaw Pittman with a research roundtable featuring principally academic papers. The research roundtable will follow the format typical of academic conferences, providing ample time for conversation among participants. 

The second day of the Conference, Tuesday, September 15, 2020, will be held at the Urban-Brookings Tax Policy Center, also in Washington, DC. It will consist of a policy-oriented program of panel discussions bringing together academics, practicing attorneys, economists, policy makers, legislators and others to consider issues related to gender and taxation and to consider strategies for incorporation of gender-related concerns into everyday tax policy discourse. At least one panel will feature the recent work undertaken by the National Women’s Law Center exploring the relationship between taxation and gender (see https://nwlc-ciw49tixgw5lbab.stackpathdns.com/wp-content/uploads/2019/11/NWLC-Tax-Executive-Summary-Accessible.pdf).

We are now seeking participants interested in contributing either to the research roundtable or to the policy program (or to both). Participants can be legal academics, economists, legal practitioners, government officials, policy researchers, or others with an interest and expertise in tax law and its administration. Contributors from the United States as well as other countries are welcome.

Hiring Announcement: University of Dayton

The University of Dayton School of Law invites applications for one Assistant Professor of Lawyering Skills. This is a non-tenure track position with an initial appointment of one year and the possibility of renewal for long-term (three or five-year) appointments after three years of satisfactory service.

Applications will be accepted until February 6, 2020. To be considered as a candidate for this position, you must apply online at https://employment.udayton.edu/cw/en-us/job/497758/assistant-professor-of-lawyering-skills . All required documents should be submitted electronically on the website at the time of application. For more information about the School of Law, please visit our website at https://udayton.edu/law.

Indiana-Indianapolis Seeks Health Law Visitor

This just in:

Indiana University Robert H. McKinney School of Law invites entry-level and experienced applicants for a visiting professorship for the 2020-2021 academic year in Health Law.

The law school is committed to achieving excellence through intellectual diversity and encourages applications from persons of color, women, persons with disabilities, the LGBTQ+ community, veterans, and members of other groups that are under-represented on university faculties. The law school is an Equal Opportunity/Affirmative Action institution with a strong commitment to inclusion and offers domestic partner benefits: https://mckinneylaw.iu.edu/about/administration/policies/diversity-and-inclusion.html. For more information about the school, please visit http://indylaw.indiana.edu/.

Interested candidates should submit a CV and cover letter to Vice Dean Mike Pitts at mjpitts@iupui.edu. Individuals who require a reasonable accommodation in order to participate in the application process should give Vice Dean Pitts adequate notice. Applications will be reviewed on a rolling basis with February 1 as the deadline for all applications.