The Faculty Lounge

Trump Announces Supreme Court gave him great power over DACA, but then..

In an interview on July 10, exclusively for Telemundo, President Trump stated the U.S. Supreme Court ruling on DACA, Department of Homeland Security v. Regents of the University of California, "gave the president tremendous powers when they said you can take-in seven hundred or so thousand people...Based on the power that they gave, I am going to be doing an immigration bill." While the high court did not actually give the president any powers, and as I have written previously, the DACA decision was a procedural one based on the Administrative Procedure Act. Nonetheless, during the interview, President Trump promised to propose an immigration bill that would include DACA and a "road to citizenship." Today, roughly two weeks after his Telemundo interview, the Trump Administration announced it would reject DACA applications during its "comprehensive review" of the program. These two stances in an extremely short period of time is nothing short of perplexing. Let's look at a timeline:

1) The Trump Administration moves to end DACA by administrative action, but its efforts fail before the Supreme Court.

2) Then a few weeks later, he anounces he is going to submit a bill to Congress that includes a path to citizenship for Dreamers.

3) Then today, his administration announces Dreamers can  no longer apply for DACA.

So, which one is it? If the Trump Administration opposed DACA, but he likes Dreamers, where is his bill providing a "path to citizenship," we have been promised? And if he supports Dreamers, why not give them the protection of DACA until his so-called bill passes Congress? Finally, will the American public, especially Latin voters, believe Trump actually intends to give Dreamers a path to citizenship? If you believe that, I have a bridge to sell you.

 

Donley Receives Haub Law Emerging Scholar Award in Women, Gender & Law

Professor Greer Donley of the University of Pittsburgh School of Law has been selected as the winner of 2019-2020 Haub Law Emerging Scholar Award in Women, Gender & Law for her paper Contraceptive Equity: Curing the Sex Discrimination in the ACA’s Mandate, 71 Ala. L. Rev. 499 (2019). Professor Donley is an Assistant Professor and the Director of the joint degree program in law and bioethics at the University of Pittsburgh School of Law. She teaches Legislation and Regulation, Bioethics and FDA Law. 

The prize is awarded by the Elisabeth Haub School of Law at Pace University in recognition of excellent legal scholarship related to women, gender and the law published by a full-time law professor with five or fewer years of full-time teaching experience.

The full announcement is here.

Hiring Announcement: University of Arkansas at Little Rock

From an email message that I received in recent days:

The University of Arkansas at Little Rock, William H. Bowen School of Law seeks two Assistant Professors to teach in our autonomous Research, Writing and Analysis (RWA) program.  We encourage applications from entry-level candidates.  This is a full-time, tenure-track position. Each successful candidate will teach two sections of first-year RWA, which is a six-credit, two-semester course sequence. The positions are available beginning August 2021. 

The University of Arkansas at Little Rock is an equal opportunity, affirmative action employer and actively seeks the candidacy of minorities, women, veterans, and persons with disabilities. Under Arkansas law, all applications are subject to disclosure.  Persons hired must have proof of legal authority to work in the United States.  For more information about Bowen, visit https://ualr.edu/law/.

Additional information about this position and application requirements are available at https://ualr.peopleadmin.com/postings/9534, or at the Jobs link on the UA Little Rock Human Resources website at http://ualr.edu/humanresources/.  The Law School cannot consider incomplete applications.

Univeristy of Iowa Hiring Announcement

The University of Iowa College of Law

Faculty Hiring Announcement

The University of Iowa College of Law anticipates hiring one to two entry-level or lateral faculty members in the following areas: Constitutional Law, Criminal Law & Procedure, and Environmental Law & Natural Resources. Secondarily, we are also interested in outstanding candidates in a variety of other areas.

QUALIFICATIONS: Consistent with the mission and responsibilities of a top-tier public research university, we are interested in candidates who are (or have the potential to become) recognized scholars and teachers and who will participate actively in the life of the College of Law.

APPLICATION PROCEDURE: To apply, candidates should apply either through the AALS Faculty Recruitment Services or submit a letter of interest, CV, a list of three references, and a law school transcript through Jobs@UIOWA, https://jobs.uiowa.edu, refer to Requisition #73983.  The University of Iowa College of Law is deeply committed to a community of excellence, equity, and diversity and welcomes applications from women, underrepresented minorities, persons with disabilities, LGBTQI+ individuals, and other candidates who will contribute to the diversification and enrichment of ideas and perspectives. Candidates who can contribute to these goals are encouraged to apply and to identify their strengths in this area.

The University of Iowa is an equal opportunity/affirmative action employer. All qualified applicants are encouraged to apply and will receive consideration for employment free from discrimination on the basis of race, creed, color, national origin, age, sex, pregnancy, sexual orientation, gender identity, genetic information, religion, associational preference, status as a qualified individual with a disability, or status as a protected veteran.

For questions, please contact Faculty Appointments Committee at: LawMail-FAC@iowa.uiowa.edu.

Two Upcoming Events on Professional Responsibility Scholarship and Teaching

Two terrific virtual events are taking place over the next couple of weeks related to Professional Responsibility scholarship and teaching. All are welcome!

July 30, AALS Section on Professional Responsibility Virtual Workshop Conference

Session 1: Too Cerebral? High-Achieving Women in the Legal Profession

Presenter: Milan Markovic (Professor of Law – Texas A&M University School of Law)

Commentator: Atinuke (Tinu) Adediran ( Assistant Professor of Law – Boston College Law School)

Time: Jul 30, 2020 09:00 AM PDT (US and Canada)

Join Zoom Meeting: https://us02web.zoom.us/j/86274468670

Session 2: Ethics in Pandemics: The Lawyer for the (Crisis) Situation

Presenter: Raymond H. Brescia (Professor of Law – Albany Law School)

Commentator: Leslie Levin (UConn School of Law)

Time: Jul 30, 2020 10:00 AM PDT (US and Canada)

Join Zoom Meeting: https://us02web.zoom.us/j/83257373923

Session 3: Unnatural Law: AI, Consciousness, Ethics, and Law

Presenter: Joshua Davis (Professor of Law – University of San Francisco School of Law) 

Commentator: Elysa Dishman, (Associate Professor of Law—Bingham Young University)

Time: Jul 30, 2020 11:00 AM PDT (US and Canada)

Join Zoom Meeting: https://us02web.zoom.us/j/83013099983

Session 4: Conditioning Settlement Offers on Waiver or Non-Payment of Contractual Attorney’s Fees 

Presenter: Russell Christopher (Professor of Law – University of Tulsa) 

Commentator: Seth Katsuya Endo (Assistant Professor of Law – University of Florida Levin School of Law)

Time: Jul 30, 2020 12:00 PDT (US and Canada)

Join Zoom Meeting: https://us02web.zoom.us/j/81419702558 

August 4, Webinar on Excellence in Teaching Professional Responsibility Online

The Program for the Advancement of Legal Ethics at Texas A&M University School of Law is hosting a webinar from 3-4PM Central to help you plan and consider best practices for teaching Professional Responsibility courses in the virtual environment. Presenters include:

• Alberto Bernabe, Professor of Law, University of Illinois at Chicago, John Marshall Law School

• Susan Carle, Professor and Vice Dean, Washington College of Law at American University

• Ellen Murphy, Professor of Practice; Associate Dean for Strategic Initiatives, Wake Forest School of Law

• Margaret Tarkington, Professor of Law, Indiana University Robert H. McKinney School of Law

• Susan Saab Fortney, Professor of Law and Director, Program for the Advancement of Legal Ethics, Texas A&M School of Law

The Law School Industry - Law and Technology @ US Law Schools

Digital technologies are an increasingly important phenomena in higher education and professional industries. Law schools have started to participate in rethinking how to train the next generation workforce/citizens at the interface of governance/technology. This post includes links to quantitative data for folks interested to learn more about the current law/tech situation in US legal higher education, and provides a few initial thoughts about the data. 

Here is an excel sheet formatted study with a wide range of data on current US law school efforts around 'Law and Technology': Download US Law and Technology Higher Education Law Schools - Haskell:Fish In addition, for an alternative visualisation for some of the information, see: https://app.flourish.studio/visualisation/2736840 

Note: The study was developed along with a PhD student, Jessica L. Fish, and funded by the University of Manchester Law School and its Law and Technology Initiative. Scholarship based partly on this data will be rolled out in the coming year, but the information provided is meant to be open sources/common for any colleagues however useful. 

A Few Thoughts... (see below)

Deep River Blues

Has there ever been a sweeter sound than Doc Watson's "Deep River Blues," which he explains in Smithsonian video at the bottom of this post.

It takes some courage to cover a Doc Watson song, but it has been done:

Mandolinist Ralph Rinzler was an original member of The Greenbriar Boys, a headline act on the Greenwich Village folk scene (Bob Dylan opened for them in the early 1960s), who later became a folk music curator at the Smithsonian. In this video he introduces Doc Watson, who then tells the story of how he came to play "Deep River Blues."

The Delmore Brothers original 1933 recording (audio only):

Hiring Announcement: Campbell University School of Law

From an email message that I received earlier today:

CAMPBELL UNIVERSITY SCHOOL OF LAW invites applications for up to three Faculty Positions to begin in August 2021.  Primary areas of interest are: property law; wills, trusts, and estates; tax; civil procedure; corporate finance; and health law.  Other areas of interest include: mergers and acquisitions; securities regulation; law and technology; environmental law; and conflicts of law.  The position(s) will be full-time, tenure track appointment(s).  All applicants should have excellent academic credentials and demonstrated skill in teaching and mentoring students.  We welcome applications from candidates whose background will contribute to excellence through institutional diversity.  Cover letters must explain how the candidate is able and willing to support each of the five distinctives set forth below.  Candidates should be prepared to discuss and demonstrate their approach to remote-teaching. Designation of Assistant Professor or Associate Professor title commensurate with experience.

Tampons and Pads Should Be Allowed at the Bar Exam

Over at Law.com, Emily Gold Waldman (Pace) and I have published an op-ed, Tampons and Pads Should be Allowed at the Bar Exam. Here is an excerpt:

The judgment of bar examiners that plan to hold in-person tests this summer is seriously in question. Mississippi, a coronavirus “red zone” according to the White House, is requiring test-takers to sign a liability waiver if they want to sit for the exam. North Carolina, another “red zone,” has informed test takers that sitting for the exam will be treated as a voluntary assumption of risk of exposure to COVID-19. Further strange news comes out of West Virginia and Texas. Test takers there may not bring tampons, pads or other menstrual products into the exam. Instead the bar examiners say that they will provide “feminine products” to candidates. Arizona had a similar policy, but wisely walked that back just a few days after a minor social media eruption. West Virginia and Texas should do the same.

Bar exam bans on menstrual products are discriminatory and should be lifted immediately. State boards of bar examiners, the gatekeepers for the legal profession, should be in the business of upholding the law and adopting policies that reflect its highest principles. Bans on bringing menstrual products are a form of gender bias. They are inconsistent with the legal profession’s highest and best values of providing equal opportunity.

We applaud efforts to make menstrual products available in schools, places of employment and other places. These products are necessities just like toilet paper. Kudos to the West Virginia and Texas bar examiners for making sure that test takers have access to products. But depriving exam-takers of the option to bring their own tampons and pads goes too far. Putting out a supply of tampons in a communal basket, whether in restrooms or otherwise, invites the very high-touch scenario that increases public health risk right now. More broadly, the products supplied may not meet the needs of all test takers. (Super-absorbent tampons with cardboard applicators are not appropriate in all situations, after all.) As the test goes on, the supply may run out—forcing test takers to alert proctors and lose precious time. There is also the question of where precisely the products will be available. Arizona previously said it was making them available in “women’s restrooms,” but that does not account for trans and gender nonbinary test takers who do not use women’s restrooms and may need products, too. The bar exam is stressful enough without having to worry about bleeding through one’s clothes.

Bar examiners’ bans on menstrual products likely violate equal protection, as well. Arguably, policies like West Virginia’s and Texas’ are gender neutral, prohibiting anyone from bringing “feminine products” to the bar exam. These rules are, nevertheless, sex-based. Just as Justice Scalia wrote in Bray v. Alexandria Women’s Health Clinic that, “A tax on wearing yarmulkes is a tax on Jews,” menstruation and the associated need for menstrual products are a proxy for female sex. Menstruation is a regular and unavoidable occurrence in the lives of approximately half the population (and slightly more than half of all recent law graduates) from, on average, the ages of 13 to 51. By not allowing test-takers to bring their own products, bar examiners put at a disadvantage those who are menstruating during the exam. There is no exceedingly persuasive justification for this type of sex-based classification. The failure to include menstrual products on lists of items permitted at the bar exam may not be the result of a secret discriminatory plot to keep the legal profession male. But the policy is the product of a culture that alternately ignores menstruation or treats it as something suspicious, dirty and secretive.

Menstrual product bans also reveal bar examiners’ ignorance about how menstrual products work. It would be very difficult for a test taker to write a “cheat sheet” for the rule against perpetuities or state personal jurisdiction rules on a small piece of absorbent material or its wrapping. Test-takers do not show up for the bar exam thinking they have an extra opportunity to refresh their recollection by running to the bathroom to check what is written on a tampon or pad. The simple solution is to have a supply of menstrual products available in all restrooms and to allow test takers to bring their own tampons and pads. Most states already allow candidates to bring a clear bag with necessary items like keys, cash, credit cards and medicine in the original packaging. All other states need to do is add menstrual products to the list of permitted items.

* * *

If the legal profession is committed to holding up equality for all, regardless of a biological fact like menstruation, test takers must be allowed to bring tampons and pads with them to the bar exam.

The full piece is available here.

Who Wrote Trump's Census Memorandum?

In his recently issued "Memorandum on Excluding Illegal Aliens from the Apportionment Base Following the 2020 Census," President Trump asserts that he has the authority "to exclude from the apportionment base [for congressional representation] aliens who are not in a lawful immigration status under the Immigration and Nationality Act." The ugly sentiment obviously comes from Trump himself, but in this case he was surely assisted by Justice Department lawyers who should have known better than to enable such a blatantly unconstitutional gambit.

As explained by Marty Lederman on Balkinization, Trump's Memorandum does not affect the way that the Commerce Department will conduct the 2020 Census, or how the actual results will be tallied. Rather, it is Trump's announcement that he will report a different set of numbers to Congress for the purpose of determining how the 435 seats in the House of Representatives will be allocated among the states under 2 U.S.C. § 2a(a). The problem, of course, is that Trump's proposed method -- excluding undocumented immigrants -- flatly contradicts the language of the Fourteenth Amendment: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.”

Expanded Intelligence Activities of the Department of Homeland Security...

Those of us not under a rock lately may have noticed a fair amount of debate concerning the deployment of federal law enforcement officers, though details are still unclear where they came from or where they were originally stationed or assigned, in  the city of Portland aimed to purportedly curb the unrest in that city.  Some, including congressional leaders, have responded with outrage over the use of force, and the round-up of young protesters.

In a Podcast on Monday, several national security experts addressed the legality of this use of federal law enforcement employees in a city where state and city officials specifically rejected the need for such a deployment. In today's headlines President Trump  declared he will deploy forces to Chicago. At first, Chicago's mayor in no uncertain terms, rejected the use of federal officers in her city, but now may be backtracking, and recently suggesting the effort may in fact be coordinated. 

Below is a brief description of an important and informative podcast on the legal and political issues surrounding the debate. And while perhaps I would take a stronger stance than some of the commentators re. the use of DHS forces to engage in genera law enforcement efforts not involving protecting federal buildings or monuments, I found the Podcast extremely informative and useful in forming my own views on the issue. I share here a brief introduction from Lawfare as well as the link to the Podcast. Please consider listening, and perhaps discussing the matter further here:

"Yesterday, Lawfare published an article revealing and analyzing a document from the Department of Homeland Security that offers legal guidance to analysts in its Office of Intelligence and Analysis regarding the appropriate intelligence activities to mitigate the threat to monuments, memorials and statues, among other things. To discuss this new information and its implications, David Priess spoke with not only the two authors of the article—Lawfare's editor-in-chief Benjamin Wittes and University of Texas law professor Steve Vladeck—but also Carrie Cordero, senior fellow and general counsel at the Center for a New American Security, who has researched and written extensively on DHS authorities and policies, and Paul Rosenzweig, senior fellow for National Security & Cybersecurity at the R Street Institute and a former deputy assistant secretary for policy at DHS."

https://www.lawfareblog.com/lawfare-podcast-expanded-intelligence-activities-department-homeland-security

I know it isn't Saturday, but this said so much, I had to share....

 

 

NY Law Professors in Support of Diploma Privilege

I am one of the 300+ NY law professors who signed an open letter supporting a one-time emergency "diploma privilege" to practice in New York. The letter is addressed to Chief Judge Janet DiFiore, NY Assembly Speaker Carl Heastie and NY Senate Majority Leader Andrea Stewart-Cousins. The letter reads in part:

Given the turmoil our nation has endured over the past three months, the continued disruptions in the daily lives of our graduates, and the continued threat of COVID-19 throughout the United States, it is difficult to imagine how any bar examination in the coming months could be considered either prudent or fair. Allowing our graduates to engage in limited supervised practice is an insufficient substitute because many will be unable to secure work until licensed. Even those who can secure work would be tasked with studying for a postponed examination while actively representing clients. Furthermore, there is no guarantee the health crisis will have resolved by the next bar exam.

The 15 deans of law schools located in New York jointly signed a letter, too (see here).

The drafters/organizers of the NY prof open letter are Cardozo colleagues Myriam Gilles, Betsy Ginsberg, Michael Herz, Rebecca Ingber, Kate Levine, Michael Pollack, Alexander Reinert, Kate Shaw and Ekow Yankah. This full letter is available for download here: Download NY Diploma Privilege.FINAL.7.21.20.

Pre-Order Now -->Dorothy Brown, The Whiteness of Wealth: How the Tax System Impoverishes Black Americans--and How We Can Fix It

Dorothy Brown (Emory) has a new book forthcoming from Crown Press. Pre-orders are available now; issue date is March, 2020. Here is the publisher's description of The Whiteness of Wealth: How the Tax System Impoverishes Black Americans--and How We Can Fix It:

Dorothy Brown became a tax lawyer to get away from race. As a young black girl growing up in the South Bronx, she'd seen how racism limited the lives of her family and neighbors. Her law school classes offered a refreshing contrast: tax law was about numbers, and the only color that mattered was green. But when Brown sat down to prepare tax returns for her parents, she found something strange: James and Dottie Brown, a plumber and a nurse, seemed to be paying an unusually high percentage of their income in taxes. When Brown became a law professor, she set out to understand why.

In The Whiteness of Wealth, Brown draws on decades of cross-disciplinary research to show that tax law isn't as colorblind as she'd once believed. She takes us into her adopted city of Atlanta, introducing us to families across the economic spectrum whose stories demonstrate how American tax law rewards the preferences and practices of white people while pushing black people further behind. From attending college to getting married to buying a home, black Americans find themselves at a financial disadvantage compared to their white peers. The result is an ever-increasing wealth gap, and more black families shut out of the American dream.

Solving the problem will require a wholesale rethinking of America's tax code. But it will also require both black and white Americans to make different choices. This urgent, actionable book points the way forward.

I look forward to reading this book!

Post-Covid Syndrome and ME/CFS

Dr. Anthony Fauci recently recognized the possible link between long-term Post-Covid syndrome and ME/CFS. David Tuller and I have an article on STAT News explaining why this is a very big deal. Here is the gist:

Anthony Fauci, the country’s top infectious diseases expert, acknowledged this month that the symptoms in many of these unrecovered patients are “highly suggestive” of myalgic encephalomyelitis, the disabling illness also commonly called chronic fatigue syndrome or ME/CFS. “This is something we really need to seriously look at,” said Fauci.

Fauci’s observation, echoed by others, is vitally important, and not only because it provides a warning about the pandemic’s potentially devastating long-term health effects. By noting the possible connection between “post-Covid syndrome” and ME/CFS, Fauci has highlighted the long-neglected field of post-viral illness — a poorly understood phenomenon that likely holds important clues about the causes of, and treatments for, both conditions.

Had U.K. and U.S. medical authorities not been so invested for years in fruitless psychological and behavioral interventions for ME/CFS, perhaps they would have listened over the years when patients told them that exercise and psychotherapy did not get them “back to normal.” Perhaps they would have pursued essential biomedical research instead.

We may now be paying the price for this longstanding disregard, given our urgent need for robust information about the possible long-term consequences of a virus that has already infected millions of people around the world, an unknown number of whom will experience some form of post-Covid disability. Studies of these people are likely to yield significant insights into this viral illness as well as into ME/CFS.

You can read the entire article here.

ALI Elects 38 New Members

The American Law Institute recently announced the election of 38 new members. Among them are these law professors:   Alabama Jenny E. Carroll, Tuscaloosa – Professor, University of Alabama School of Law   California Courtney G. Joslin, Davis – Professor, University of California, Davis School of Law Andrew Verstein, Los Angeles – Professor, University of California, Los Angeles School of Law   Connecticut Jack M. Balkin, New Haven – Professor, Yale Law School   District of Columbia Cara Hope Drinan – Professor, The Catholic University of America, Columbus School of Law   Florida Howard M. Wasserman, Miami – Professor & Associate Dean for Research and Faculty Development, Florida International University College of Law   Illinois Jide Okechuku Nzelibe, Chicago – Professor, Northwestern University Pritzker School of Law Nadia N. Sawicki, Chicago – Professor, Loyola University Chicago School of Law   Iowa Jerry L. Anderson, Des Moines – Dean & Professor of Law, Drake University Law School Emily Hughes, Iowa City – Professor & Associate Dean for Academic Affairs, University of Iowa College of Law   Maryland Mortimer N.S. Sellers, Baltimore – Director, Center for International & Comparative Law, University of Baltimore School of Law   North Carolina John Martin Conley, Chapel Hill – Professor, University of North Carolina School of Law John F. Coyle, Chapel Hill – Professor, University of North Carolina School of Law Darrell A.H. Miller, Durham – Professor & Associate Dean for Intellectual Life, Duke University School of Law   Ohio Sandra F. Sperino, Cincinnati – Professor, University of Cincinnati College of Law   Oklahoma Jim Roth, Oklahoma City – Dean & Professor of Law, Oklahoma City University School of Law   Pennsylvania Chaim N. Saiman, Villanova – Professor, Villanova University, Charles Widger School of Law   Texas Dave Fagundes, Houston – Professor & Associate Dean for Faculty Development, University of Houston Law Center Lee Kovarsky, Austin – Professor, University of Texas School of Law Peter K. Yu, Fort Worth – Director, Center for Law and Intellectual Property, Texas A&M University School of Law   Virginia Nathan B. Oman, Williamsburg – Co-Director, Center for Study of Law & Markets, William & Mary Law School   FOREIGN   England James Goudkamp, Oxford – Professor, Oxford University, Keble College

John Lewis (1940-2020)

This is a photograph of my nephew, Ari Lubet, with John Lewis. 

  

 

 

 

 

Ari represented Andrew Aydin, the writer who collaborated on the text for March, Lewis's three-volume graphic memoir.

Polio and Covid-19

U.S. District Judge Robert Gettleman -- a Northwestern alumnus and trial advocacy adjunct -- has an excellent oped in the Chicago Tribune, comparing his experience with polio and the current Covid-19 pandemic. Here is the gist:

In 1950, there was no talk of social distancing. There was no talk of wearing masks to prevent the spread of the polio virus. There was no talk of hand-washing and sanitizers to kill the virus before it entered the body. There was no talk of testing and contact tracing. There was no Dr. Fauci. There were just the random strikes that left kids like me either dead or with lifelong disabilities that could have been prevented or reduced by the measures put in place for the coronavirus.

So when I hear about “relaxing” those measures, indoor rallies and parties, impatience to “reopen,” when I see groups of mostly young people socializing without masks in our parks, plazas and beaches, when I read of the rising number of infections and deaths from COVID-19, when I hear people talking about the worst being over — I see history needlessly repeating itself. 

You can read the entire essay here.

James Speta Named Interim Dean of Northwestern Law

Northwestern University has announced that the law school's vice dean, Professor James Speta, will take over as interim dean on August 1.  He holds a JD from the University of Michigan and joined the law school faculty  in 1999.

Request for Law Professor Signatories to Letter Urging NCBE to Require All States to Permit Test-Takers to Bring Menstrual Products to Bar Exam

We recently have been made aware that certain state bar examiners – including some administering the exam next week – prohibit people from bringing their own menstrual products to the bar exam.  For the reasons explained below and in the attached letter, we ask you to sign on to this letter, which requests that the National Conference of Bar Examiners (NCBE) require all states to permit examinees to bring their own menstrual products to their bar exam.

The option offered by some bar examiners – that they provide such products in women’s restrooms – is not acceptable.  First, the size of the product a person needs is highly personal and can vary throughout one’s period.  Use of the wrong size can lead to everything from toxic shock syndrome (too large) to disruptive leaks (too small).  Second, transmen and non-binary individuals who get their periods may not be able to use the women’s restroom to obtain the needed products.  Third, the notion that menstrual products could be used to facilitate cheating on the bar exam is beyond absurd.  Absent any indication that menstrual products have been used to compromise the exam’s integrity, targeting only people who menstruate sends a strong – and problematic – message that people who menstruate are untrustworthy. 

We ask you – by Monday, July 20, 2020 at 6 pm (eastern time) – to sign onto this letter to the NCBE.  In addition to this request of the NCBE, the sign-on letter will be used to support advocacy to the specific states that prohibit examinees from bringing in their own menstrual products.  

Because time is of the essence, we ask that you add your name ASAP by filling out this google form.  Please also send this request to your colleagues, current and former students, and friends in the legal community.  Menstruators and non-menstruators are encouraged to sign on.

If you have any questions, email MPandTheBar@gmail.com.

Thank you for your consideration.

Sincerely,*

Prof. Margaret E. Johnson, Professor of Law and Co-Director, Center on Applied Feminism, University of Baltimore Law School (visiting at American University, Washington College of Law ’20-‘21)

Prof. Marcy L. Karin, Jack & Lovell Olender Professor of Law, University of the District of Columbia David A. Clarke School of Law

Prof. Elizabeth B. Cooper, Professor of Law and Faculty Director, Feerick Center for Social Justice, Fordham Law School

*Affiliation provided for informational purposes only.