The Faculty Lounge

More on College Football Coaches' Conflicts of Interest -- The Rutgers Problem

Yesterday’s column for The Hill was about the general problem of incentives in college football coaching contracts. I have a follow-up today in the Academe Blog about one coach’s very specific conflict in a game scheduled to be played on Friday:

College Football Coaches and Conflicts of Interest -- The Rutgers Problem

BY STEVEN LUBET

When Covid-19 protocols forced Texas A&M to withdraw its football team from this year’s Gator Bowl, the game’s sponsors began frantically searching for a replacement to play Wake Forest on December 31, even if that required recruiting a team with a losing record. Under NCAA post-season rules, the first bid went to Rutgers, The State University of New Jersey, which finished 5-7 in the Big Ten, because it had the highest academic progress rate among the other 5-7 teams. Rutgers had good reasons to accept the offer, and football coach Greg Schiano had even more, but it might be a different story for the players.

Testosterone-fueled young men will always want to play one more game. For seniors, it will be an unexpected chance to take the field with their friends, and underclassmen will get an extra opportunity to impress their coaches before next season. But that does not make it a good idea. Accepting a game on such short notice – the invitation came only eight days before the scheduled Gator Bowl – is inherently dangerous.

Football players face injury on every play, but it is especially risky when they are out of shape. The Rutgers team last suited up on November 27, with no plans to play another opponent until September 3, 2022. Dispersed around the country for Christmas break, and with only four days available for practice, the players cannot possibly be well prepared for the Gator Bowl. With the eventual lineup still in doubt, everyone’s timing – crucial for avoiding injury – is likely to be off, with no good chance to restore it to performance levels.

College Football Coaches' Conflicts of Interest

My new column for The Hill is about the conflicts of interest created by incentive clauses -- above and beyond their stratospheric salaries -- in the contracts of college football coaches, which may require them to choose between protecting player safety and their own income.

Here is the gist: 

Are Coaching Conflicts of Interest Ruining College Football?

The problem with coaching incentives – providing additional payments for achieving certain records or winning particular games – is that they create potentially severe conflicts of interest between a coach’s income and his players’ safety. Consider one of the most lucrative provisions in Kelly’s new contract at LSU.

In addition to his annual base pay of over $9 million, Kelly will receive $500,000 every year his team becomes “bowl eligible” by winning at least six games. Imagine a situation in which LSU’s record is 5-6 going into the final game of the regular season. With $500,000 at stake, could Kelly make an objective decision about bringing a previously injured star player back into the lineup?

A coach would certainly never admit endangering a player in order to win a game – no matter how much it added to his own bottom line – but nobody is immune to motivated reasoning. That is what makes conflicts of interest so invidious. They operate at the level of subliminal temptation, rather than deliberate choice.

I do not begrudge successful coaches their extravagant salaries, but their judgement should not be clouded by the prospect of extra pay when player safety is hanging in the balance. Only a few points behind in the waning minutes of a money game, with the team’s best receiver still recovering from an aching but conceivably serviceable hamstring, should the coach have half a million bucks riding on whether to keep him safely on the bench?

In the world of college football contracts, the devil is in the incentives.

You can read the entire column here.

Call for Proposals: Multidisciplinary Forum on Longtermism and the Law

This just in:

The University of Hamburg and the Legal Priorities Project are co-organizing the 2022 Multidisciplinary Forum on Longtermism and the Law on 9-11 June 2022. The guiding theme of this Forum is the role of law in sustaining and improving life hundreds or even thousands of years into the future. The Forum is planned as a hybrid event, with participants unable to attend in person at the University of Hamburg having the option of presenting virtually.

We invite proposals for papers from researchers of various disciplines to be presented at the Forum. Participants are encouraged to consult the research agenda of the Legal Priorities Project on the foundations of legal longtermism and promising research avenues. Of particular interest are submissions that address legal mechanisms to protect future generations or engage with the regulation of existential risk, either in general or as a result of advanced artificial intelligence, runaway climate change, synthetic biology, and pandemics. We welcome and highly encourage submissions that consider creative ways to tackle issues on the theme of Longtermism and the Law.

Interested participants should submit an abstract of not more than 500 words and their biographical information by 15 February 2022 via the website. Any inquiries in connection with this Forum can be directed to contact@longtermismandthelaw.com

CFP: War and the Contemporary World

This just in:

St. Thomas Journal of Law and Public Policy: Spring 2022 Symposium 

The contemporary world has become an arena for emerging new types of international conflict. In recent years, we have seen hybrid forms of war, as in Russia’s use of a spectrum of weapons – military, cyber, and informational – in its 2014 takeover of the Crimean Peninsula; or more recently, in Belarus’ weaponization of refugees and immigrants at the Polish border.

It has seen the use of remote war-fighting tactics, as in Azerbaijan’s use of Turkish-manufactured drones in its conflict with Armenia over Nagorno-Karabakh. Similarly, the world has witnessed the gradual emergence of space as a potential theater for conflict – as the recent use by Russia of anti-satellite weaponry to destroy one of its satellites demonstrates. State-sponsored, or state-tolerated computer hacking has become yet another venue for conflict.

The United States has experimented with its own innovative forms of conflict. On the one hand, the United States has pioneered the use of drone technology to conduct limited engagements in venues throughout the world, while operating from a safe and antiseptic distance. And on the other hand, the United States has made strategic use of its access to global systems of payment to coerce compliance through punishing forms of economic sanctions.

This Call for Papers seeks contributions focused on these forms of conflict. In particular, it seeks papers that explore normative dimension of global conflict. What does international law teach us? What, furthermore, can we learn from the disciplines of strategy? Of economics? Or of history?

The Journal of Law and Public Policy is an inter-disciplinary journal that seeks to examine the relationship of law and cognate disciplines in an effort to respond to the major questions of policy confronting the contemporary world. The Journal seeks, of course, contributions from lawyers, but also from political theorists, economists, historians, journalists, and scholars of religion.

Proposals should be no longer than 300 words. They may be submitted to Professor Charles J. Reid, Jr., School of Law, University of St. Thomas (Minnesota), cjreid@stthomas.edu and are due by February 15, 2022.

Papers are to be presented as part of a Symposium at the University of St. Thomas School of Law on April 1, 2022. The Symposium will assume a hybrid character. Participants may choose whether to present in-person or electronically, through Zoom. Speakers are expected to describe their work in presentations approximately fifteen-to-twenty minutes in length. Speakers will subsequently submit formal papers for publication in the Journal of Law and Public Policy. Papers are due on or around July 1, 2022. A small honorarium will be provided.

ALI Elects 59 New Members

The American Law Institute has announced (here) the election of 59 new members, including these professors:

• Alan K. Chen, University of Denver, Sturm College of Law
• Jorge L. Contreras, University of Utah, S.J. Quinney College of Law
• Andrew Manuel Crespo, Harvard Law School
• Michael Doran, University of Virginia School of Law
• Michael C. Duff, University of Wyoming College of Law
• Avlana K. Eisenberg, Florida State University College of Law
• Jill E. Family, Widener University Commonwealth Law School
• David S. Han, Pepperdine University, Caruso School of Law
• Alexis J. Hoag, Brooklyn Law School
• Robert J. Jackson, New York University School of Law
• Anil Kalhan, Drexel University, Thomas R. Kline School of Law
• Michael S. Knoll, University of Pennsylvania Carey School of Law
• Charlotte Ku, Texas A&M University School of Law
• Margaret B. Kwoka, Ohio State University, Moritz College of Law
• Lisa S. Loo, Arizona State University
• Michael J. Zydney Mannheimer, Northern Kentucky University, Chase College of Law
• Joseph Scott Miller, University of Georgia School of Law
• Steven J. Mulroy, University of Memphis, Cecil C. Humphrey's School of Law
• James M. Oleske, Jr., Lewis & Clark Law School
• Wendy Collins Perdue, University of Richmond, T.C. Williams School of Law
• Richard C. Schragger, University of Virginia School of Law
• Alison Siegler, University of Chicago Law School
• Jessica Silbey, Boston University School of Law
• Joseph Thai, University of Oklahoma College of Law
• Lisa A. Tucker, Drexel University, Thomas R. Kline School of Law
• Pierre-Hugues Verdier, University of Virginia Law School
• Shoba Sivaprasad Wadhia, Penn State Law School

Congratulations to all.

Added 6:28 p.m. An astute reader pointed out that I hadn't done a post to welcome the ALI's 24 members elected in October. I do so now.

In October, 2021, the ALI announced (here) the election of 24 new members, including these faculty members:

• June Rose Carbone, University of Minnesota Law School
• John Duffy Fitzgerald, University of Virginia School of Law
• Marin K. Levy, Duke University School of Law
• Ruth Mason, University of Virginia School of Law
• Robert T. Miller, University of Iowa College of Law
• Michael T. Morley, Florida State University College of Law
• Farish Percy, University of Mississippi Law School
• Jennifer K. Robbennold, University of Illinois College of Law
• Andrea L. Roth, University of California, Berkeley School of Law
• Shirin A. Sinnar, Stanford Law School
• Jennifer S. Taub, Western New England School of Law

Congratulations to them, also. And guest bloggers always welcome, if there is news you'd like to see posted.

NYU's Review of Law & Social Change Adopts Israel Boycott Resolution: What Should Be Done?

I have a new piece on Social Science Space explaining how the NYU law school administration and faculty should respond to the announced Israel boycott by the Review of Law & Social Change. Short answer: The law school should not interfere in the journal's editorial decisions, but it does not need to grant academic credit for political activity that violates academic freedom.

Here is the essay.

Credit Due? Opposing One Form of Institutional Support for an Academic Boycott

Published on 12/20/2021 By Steven Lubet

The student editors of the New York University Law School’s Review of Law & Social Change recently announced their full participation in the movement to boycott Israel. Both the university and law school administrations have denounced the students’ declaration as “antithetical to the precepts of academic freedom and the free exchange of ideas,” but they need to go further in at least one regard, as I will explain below.

In keeping with their “firm commitment to the Boycott, Divestment, Sanctions (‘BDS’) movement,” the RLSC editors declared that they will not publish articles “based on the false premise of symmetry/parity between the oppressors and the oppressed” – meaning Israel and Palestine – because they consider such efforts “intellectually dishonest and morally reprehensible forms of normalization.” That is a poor and counterproductive decision, which, if followed by more influential publications, would undermine prospects for a peaceful resolution to the ongoing violence between Israelis and Palestinians. Nonetheless, it is well within the bounds of editorial discretion.

Many publications have editorial policies concerning the acceptable ideological or other values in the articles they accept. Law school journals predictably tend to skew toward the left. There are at least 28 law journals specializing in gender or feminism, for example, which are unlikely to publish articles opposing abortion rights, and there are over 70 environmental law reviews, equally unlikely to accept essays promoting increased use of fossil fuels. If the editors of RLSC want to establish an unprecedented restriction on the breadth and relevance of their journal, excluding dialogue in favor of posturing, the choice is theirs to make.

Nor are RLSC’s content criteria any business of NYU’s faculty or administration. Unlike the peer-review practiced in virtually every other scholarly discipline, law journals are overwhelmingly student edited and student run, a convention that dates to the first issue of the Harvard Law Review in 1887. The host schools typically provide funding, administrative support, and office space, but the crucial job of article selection – which may have great impact on academic careers – is left entirely to students, at all but a relative handful of journals. Only in the rarest situations – perhaps involving plagiarism or invidious discrimination – might faculty intervene in a journal’s article selection. There does not currently seem to be any viable basis for such involvement at NYU.

The RLSC’s BDS statement, however, goes beyond article selection, in a way that does call for action by the NYU administration. It extends to the boycott of “events, activities, agreements, or projects involving Israeli academic institutions or that otherwise promote the normalization of Israel in the global academy,” as well as lectures by “official representatives of Israeli academic institutions.” This policy violates core tenets of academic freedom by seeking to restrict the participation of Israeli academics in the intellectual life of NYU, and denying the opportunity of other students, including the non-editorial staff of RLSC, to benefit from exposure to scholars with differing points of view. As the American Association of University Professors put it in a 2013 statement, “a systematic academic boycott . . . threatens the principles of free expression and communication on which we collectively depend.”

While the NYU administration cannot and should not prevent RLSC’s sweeping BDS commitment – which includes boycotting Sabra hummus and Pillsbury baked goods – neither should it allow university resources to be used directly in support of it. The law school currently provides “one or two ungraded academic credits [to third-year students] for their work on a student journal,” including RLSC. The stated rationale for allowing course credit is the amount of academic work and related “educational achievement” attributed to each editorial position. That justification is obviously inapplicable to political advocacy, and it is especially inapplicable to conduct that contravenes the academic freedom of others and is “antithetical to the free exchange of ideas.”

The editors of the RLSC must be free to boycott whomever they wish – for whatever reasons, no matter how performative or wrongheaded – but NYU does not need to award them academic credit for it. The law school administration and faculty should immediately remove RLSC from the list of student-edited journals eligible for credit. Students deeply committed to the BDS movement will presumably be undeterred. Students more interested in educational achievement than Middle East virtue signaling can still earn credit at one of NYU’s eight other journals.

---

Steven Lubet is Williams Memorial Professor at the Northwestern University Pritzker School of Law. His new book is The Trials of Rasmea Odeh: How a Palestinian Guerrilla Gained and Lost US. Citizenship.

David Garrow's Review of Claude Clegg's "The Black President"

Just posted on The Spectator World, David Garrow has a review of Claude Clegg's The Black President: Hope and Fury in the Age of Obama. Here is a sample:

What did change over the course of Obama’s presidency, and indeed within Obama himself, was a conscious appreciation of just how great a role his visible racial identity played in defining Americans’ reactions to him. In July 2009, after only eight months in office, Obama offhandedly commented on the unwarranted detention of his friend Henry Louis Gates by observing that the arresting officer had acted “stupidly.” His approval rating among white polling respondents dropped measurably and never again rose above 50 percent. That led to a pronounced presidential reluctance to address racial questions that endured until well after his 2012 reelection victory.

In late April 2015, following the death of Freddie Gray in a Baltimore police van, Obama exhibited his greatest “candor, earnestness, [and] exasperation” about racial injustice when he complained that “we just don’t pay attention when a young man gets shot or has his spine snapped.” To Clegg, this was “a newly revealed President Obama,” and one who eight months later, in a December 2015 interview with National Public Radio, went a good bit further in commenting that “the specific virulence of some of the opposition directed towards me…may be explained by the particulars of who I am.”

The review is not paywalled. You can read it here.

Nobody Knows You When You're Down and Out

Bessie Smith's 1929 recording is still the definitive rendition of "Nobody Knows You When You're Down and Out," which was written by Jimmie Cox six years earlier. It is interesting that both versions preceded the Great Depression, when the lives of millionaires actually did end up down and out. 

Audio only:

University of Arkansas-Fayetteville Seeks Externship Director

Externship Director

Responsible for overall design and operation of the externship program, including the program’s fit in the overall educational program for JD students, ensuring high-quality placements and compliance with ABA Standards. Work collaboratively with the Associate Dean of Academic Affairs and Student Success in the design and operation of the program including the following components.

Leading an Externship Program that builds on classroom learning and fosters students’ professional identities including assisting students’ in placement in externships. Such placements may eventually include all types of legal practice, including public service, private practice, and industry. mentoring students as they develop a professional identity and their lawyering skills; working with students to develop individual learning plans for their externship semester(s); supervising externship credits, including reviewing written submissions from students about the experience at their placements and regular meetings with students to support their learning; communicating with field placement supervisors to develop an appropriate three-way agreement and on a regular basis about student’s progress.

Contributing to a successful professional identity program including coordinating and leveraging career services programs and opportunities with the externship program; participating in advising through developing resources for advisors, students, and advising individual students; working with faculty and assistant deans to develop and execute a plan for programming focused on students’ professional identity and lawyering skills; maintaining regular communications with the bar and bench, including visiting students enrolled in the program and coordinating other visits by law school faculty or assistant deans.

Other Job Functions for this position include general faculty and administrative responsibilities as assigned in the appointment letter, which may include working with administration to determine appropriate staffing for the educational and administrative aspects of the program; supervising administrative staff to ensure records of the work with each student in the program; providing reports to Deans and faculty as requested and appropriate; communicating with faculty and deans at other law schools, including attending and participating in appropriate conferences; developing a communications plan for the externship program with the support of the Communications Director; developing and managing the externship budget; demonstrated ability and willingness to teach in the program year-round.

Qualifications:

Minimum Qualifications:

• J.D. from an ABA-accredited law school
• Admission to practice
• At least five years of experience as a practicing lawyer
• Demonstrated strong interest in all aspects of legal practice and the profession
• Demonstrated comfort with technology

Preferred Qualifications:

• Clinical or externship teaching experiences

Knowledge, Skills, & Abilities:

• Excellent interpersonal skills, including listening skills and ability to work with students at times of high stress in their lives
• Ability to and interest in in-state and national travel, as necessary

Salary Information: Commensurate with education and experience

Required Documents to Apply: Cover Letter/Letter of Application, Curriculum Vitae, List of three Professional References (name, email, business title)

Optional Documents: Proof of Veteran Status

Recruitment Contact Information: Steve Clowney, Professor of Law, sclowney@uark.edu

All application materials must be uploaded to the University of Arkansas System Career Site https://uasys.wd5.myworkdayjobs.com/UASYS  

How American Progressives Normalize Anti-Semitism

As explained by me in a new essay on The Hill.  Here is the gist (but there is lots more exposition, and the full piece is not paywalled.) 

How American progressives normalize anti-Semitism

BY STEVEN LUBET, OPINION CONTRIBUTOR — 12/15/21 08:30 AM EST 

Just as critics of Israel should not reflexively be accused of bad intentions, neither should expressions of anti-Semitism be brushed off as only anti-Zionism. Regrettably, there is a demonstrated tendency among American progressives to make excuses when their confreres use overtly anti-Jewish memes or stereotypes directed at Israel, to the point that anti-Semitism is becoming a normalized aspect of liberal discourse in the United States.

In reasoning all too common among American progressives, anti-Jewish conspiracy theories, steeped in millennia of persecution, become merely “dubious arguments.” Intellectually severed from existential threats to an endangered minority, they are recast as mere rhetorical excesses of the sort routinely endured in everyday politics. That is the definition of normalization. 

It has become commonplace on the American left to condemn anti-Semitism among neo-Nazis and white supremacists, while viewing its anti-Israel instantiations as only overheated taunting, or perhaps just an expression of poor taste. There is painfully scant realization, for whatever reason, that ambient anti-Semitism has never in history led to anything truly progressive. It is a short step from normalizing anti-Semitism to enabling it, which will assuredly be worse. 

Steven Lubet is Williams Memorial Professor at the Northwestern University School of Law. His new book is “The Trials of Rasmea Odeh: How a Palestinian Guerrilla Gained and Lost U.S. Citizenship.”

Miami Law Seeks Dean

This just in:

The University of Miami invites nominations and applications for the position of Dean of the School of Law. We seek a dean who is an experienced administrator in legal education, an innovative thinker, a community builder on a hemispheric scale, a seasoned fundraiser, and an inspiring leader who 1) welcomes the opportunity to articulate a vision for the law school that builds upon its rich history and 2) is ready to face the challenges of modern legal education and lead the law school forward in the twenty-first century.

The University of Miami

The University of Miami, located at the gateway to the Americas, is a nationally and globally recognized top tier institution of higher education that is known for its academic excellence, cutting-edge research, and commitment to international study, collaboration, and exchange. The University of Miami is the largest private research university in the southeastern United States and comprises twelve degree-granting schools and colleges: Architecture, Arts and Sciences, Miami Business, Communication, Education, Engineering, Graduate School, Law, the Miller School of Medicine, the Patricia and Philip Frost School of Music, Nursing and Health Studies, and the Rosenstiel School of Marine and Atmospheric Science.

The core of the University is its 2,660 full-time faculty housed in three academic campuses within the greater Miami area, a location at the crossroads of the Americas that allows the University to engage with the larger hemispheric community. The University receives over $400 million annually in external research funding and has been classified as a Doctoral University with Highest Research Activity (R1) by the Carnegie Commission. We are committed to creating a respectful and supportive working environment that reflects our values of Diversity, Integrity, Responsibility, Excellence, Compassion, Creativity, and Teamwork (DIRECCT).

The Law School

The University of Miami School of Law, located on the 239-acre main campus, has over 100 faculty members and an enrollment of about 1200 students. The curriculum of the juris doctor (JD) degree includes the teaching of diverse subject areas at the highest levels of excellence, with a faculty devoted to teaching, researching, and advancing the art and practice of the law. The JD curriculum also includes award-winning clinical programs, a nationally-recognized litigation skills program, a newly-created transactional skills program, and externship opportunities for the development of legal skills. The law school’s large network of alumni, as well as its international profile, has resulted in a diverse assortment of high-quality adjunct course offerings.

St. John's Faculty Hiring Announcement

Is here.

Law Faculty Statement on BDS Resolution by NYU Review of Law & Social Change

The student editors of the N.Y.U. Review of Law & Social Change (RLSC) recently endorsed the academic boycott of Israel in its "Statement of Commitment to the Boycott, Divest, Sanctions Movement." In response, the Academic Engagement Network, of which I am a member, drafted this statement, which urges the RLSC to reconsider this misguided decision and recommends several next steps and measures for NYU and the NYU School of Law to consider in light of the journal’s now non-compliance with university policy.

Here is the AEN statement. To add your name, click here.

Faculty in Law Response to N.Y.U. Review of Law & Social Change
“Statement of Commitment to the Boycott, Divest, Sanctions Movement”

We write as professors in law across all ranks at U.S. campuses to express our deep concerns with, and opposition to, the “Statement of Commitment to the Boycott, Divest, Sanctions Movement” (“Statement”) recently issued by the N.Y.U. Review of Law & Social Change (“RLSC”).[1]

As scholars who teach and train students who will enter the legal profession and the professoriate, we are disheartened and dismayed that the student-led RLSC has embraced and adopted policies that are antithetical to the principles of open inquiry, academic freedom, and the free and unfettered intellectual exchange of ideas.

The Statement issued by the RLSC presents an unprecedented and dangerous development—a decision by the Board and Staff Directors of an academic law journal to apply political censorship to their activities. This move is not only damaging to this particular journal, but must be strongly opposed by the community of legal scholars lest it become a trend.

We urge the RLSC to reconsider its misguided Statement and to rescind it for the following reasons:

1. An academic boycott of Israel’s institutions of higher education, in compliance with the Guidelines for the International Academic Boycott of Israel established by the Palestinian Campaign for the Academic and Cultural Boycott of Israel (“PACBI”), runs roughshod over the commitment to the fundamental principles of the academy.[2] As noted by the American Association of University Professors and hundreds of university leaders, academic boycotts are inherently discriminatory and detrimental to the core values that define the academy, namely the open and unfettered communication of ideas and the academic freedom to conduct intellectual exchange and research without fear of retaliation.[3]
2. Adopting a unified viewpoint with respect to a controversial set of issues and a field of study is an intolerable stance for an academic journal to adopt and enforce (See Statement, Academic Boycott of Complicit Institutions, Article 5). The Statement explicitly states that those journal submissions which fail to conform to the virulently anti-Israel political viewpoints of the Board and Staff Editors will be summarily rejected. Academic journals do not typically articulate or adopt foreign policies in their mission statements. While many academics in Israel object to the Israeli government’s policies and practices, for the RLSC to require Israeli universities and academics to adopt a specific position on controversial political debate chills the free expression of viewpoint and is a serious infringement of academic freedom. Such political litmus tests impede the exchange of ideas and are reminiscent of practices in authoritarian regimes, where academic journals have established similar rules and requirements.[4]
3. The Statement’s assertion that the “academic boycott targets complicit institutions, not individuals” has been shown to be false. The boycott of Israeli universities cannot be meaningfully separated from the faculty and students who work, teach, and study in them. The BDS/PACBI boycott of Israeli academic institutions is therefore more aptly described as a blacklist which punishes and discriminates against individual academics on the basis of their nationality, political views, and the policies and actions of their employers and their government.[5] Furthermore, unless the RLSC is also committed to extending its boycott to Arab faculty of Israeli universities, the Statement should be seen as calling for discrimination on a religious basis as well, since only Jewish-Israeli academics will be ensnared by it.
4. In addition to impeding open intellectual inquiry and curtailing the personal academic freedom of Israeli academics, the RLSC’s commitment to “all” of the academic boycott Guidelines specified by PACBI (see Statement, note 7) will have a negative impact on NYU students. Implementing an academic boycott of Israel in accordance with PACBI Guidelines would include working to shut down study abroad programs; refusing to write letters of recommendation for students who wish to study in Israel; and “resisting” all educational activities involving collaboration with Israel’s universities, such as those that promote coexistence and which bring Israeli and Palestinian scholars together on joint projects. Consequently, the RLSC’s call for an “institutional boycott” would harm NYU students by denying them valuable educational opportunities.[6]
5. The Statement’s rhetoric disappointingly contradicts NYU’s aspirational community values which call for open expression within a climate that fosters tolerance and compassionate understanding, active listening and civil discourse, and self-awareness and mutual respect.[7] We recognize that the Board and Staff Editors of the RLSC have the right to express their solidarity with Palestinians by promoting the BDS narrative and its monochromatic characterization of Israel.[8] Nonetheless, by delegitimizing and demonizing Israel, BDS is inimical to the inclusive and respectful learning community to which NYU aspires. As has been documented in numerous studies and reports, while criticism of Israeli policy and actions is appropriate and warranted, BDS coarsens the discourse, and promotes prejudice and hate which isolates, demeans, and marginalizes Jews on campus. Quite frankly, BDS activism creates divisions and polarizes the campus community.[9] For example, research shows that pro-BDS student activism leads to a marked increase in antisemitic incidents and bias reporting on campus.[10]
6. The Statement inaccurately asserts that the Israeli academy is “complicit” in the oppression of Palestinians and is “profoundly implicated in supporting and perpetuating Israel’s systematic denial of Palestinian rights.” In fact, Jewish-Arab coexistence is modeled on Israel’s campuses. Israel’s higher education institutions are leaders in uniting diverse populations. In the past decade the number of Arab students in Israeli academia has doubled. At the University of Haifa, for example, Arabs make up 32% of the student body (while Arabs comprise approximately 20% of Israel’s citizenry) and there are multiple programs designed to foster multicultural engagements among students.[11]

We commend NYU and the NYU School of Law for conveying to the student-led RLSC, and the university community at large, that they are both “troubled and disappointed” by its recently issued Statement.[12] The university response helpfully reminds the campus that academic boycotts, such as the one proclaimed by the RLSC, are “antithetical to the precepts of academic freedom and the free exchange of ideas.” Furthermore, NYU has reiterated its commitment to open inquiry and campus free expression by rejecting, “as a matter of policy,” the RLSC’s call for the academic boycott of Israel and the closure of the NYU Tel Aviv program, “to which it remains fully committed.”

Given that the RLSC’s adoption of the BDS/PACBI academic boycott of Israel puts it in non-compliance with NYU policy, we urge NYU and the NYU School of Law to take immediate measures to dissociate from the journal. We recommend for their consideration the following next steps:

• Instruct the N.Y.U. Review of Law & Social Change to remove the university’s logo from its masthead and its materials;
• Ensure that any university funding or use of facilities provided to the N.Y.U. Review of Law & Social Change will not be used to implement the academic boycott of Israel.

UA Little Rock Law Seeks Director of Business Innovation Clinic

This just in:

The University of Arkansas at Little Rock, William H. Bowen School of Law is seeking a new director for its Business Innovation Clinic. The Director of the Business Innovation Clinic is a non-tenure track, full-time, nine-month position as a visiting assistant professor of clinical education. The Business Innovation Clinic provides free and low-cost legal services to qualified start-up businesses, small businesses, innovators, entrepreneurs, and nonprofit organizations. The position is available beginning July 1, 2022 and will be an appointment for a two-year term. The position may be extended beyond the initial two-year term if additional funding for the clinic is obtained. The Director of the Business Innovation Clinic is responsible for managing the operations of the clinic, representing clients, and teaching and supervising clinical students. This position is governed by state and federal laws and agency/institution policy.

Required Education and/or Experience:

• J.D. from an ABA-accredited law school;
• Admission to the practice of law and good standing in at least one state or the District of Columbia, and demonstrated experience in transactional and corporate law;
• Candidates must either be admitted to the Arkansas bar or capable of admission within one year of hire.

Preferred Education and/or Experience:

• At least three (3) years of experience in the practice of law;
• Experience in collaborating with community partners;
• Experience in either clinical teaching of law students or supervising other attorneys.

The University of Arkansas at Little Rock is a metropolitan research university that provides an accessible, quality education through flexible learning and unparalleled internship opportunities. Committed to its metropolitan research university mission, UA Little Rock is a driving force in Little Rock's thriving cultural community and a major component of the city and state's growing profile as a regional leader in research, technology transfer, economic development, and job creation.

The Bowen School of Law is located in revitalized downtown Little Rock, less than two miles from the state capitol, the federal, state, and county courthouses, the largest law firms in the state, and the Clinton Presidential Library. The law school is situated within the historic Quapaw Quarter, next to MacArthur Park, the MacArthur Museum of Military History, and the Arkansas Arts Center. 

Please apply using the following link:

https://uasys.wd5.myworkdayjobs.com/en-US/UASYS/job/Little-Rock/Visiting-Assistant-Professor-of-Clinical-Education_R0007675

Lodi

John Fogerty never visited Lodi before he wrote this song, just as he never worked on a Mississippi riverboat, but he still succeeded in expressing a nearly universal sentiment. The residents of Lodi, in California's Central Valley, do not seem to mind being identified as an obscure and stuckable place, having used "Stuck in Lodi" as the theme for municipal events.

Although it was originally released as the B side of "Bad Moon Rising," it has become one of CCR's most frequently covered cuts. Don't miss Fogerty's explanation of the song at the bottom of this post.

DePaul Faculty Hiring Announcement - Con Law + Related Subjects

DePaul University College of Law invites applications for a full-time faculty position expected to begin July 1, 2022. We have a particular need in the area of Constitutional Law and related subjects. DePaul College of Law is dedicated to fostering an equitable and inclusive academic community. We enthusiastically encourage applicants who would enrich the diversity of our community to apply.

To learn more about the College, please visit https://law.depaul.edu/Pages/default.aspx. 

Required Qualifications:

All candidates must hold a J.D. or equivalent degree, with preference for lateral candidates who have previously taught constitutional law or related subjects.  Interested candidates should apply online at http://apply.interfolio.com/99295. 

Special Instructions to Applicants:

To ensure full consideration, please submit an application by January 7, 2022.

Required materials include a cover letter, curriculum vitae, list of references, research statement, diverse learning environment statement, and writing sample. Please direct any questions about the position to lawappointments@depaul.edu.

DePaul Law is committed to improving society by educating purpose-driven lawyers who will serve their clients, the legal profession, and the broader community in ways that enhance access to justice and promote equitable policies and processes. To learn more, please visit https://law.depaul.edu/Pages/default.aspx.

A New Vocabulary Word, but Was It Necessary?

This quote is from yesterday’s decision by the District of Columbia Circuit in Trump v. Thompson, turning down Trump’s attempt to block the House of Representatives’ committee subpoena for White House records related to the January 6 insurrection. It relates to a minor point about the waiver of arguments:

In this court, “mentioning an argument in the most skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones is tantamount to failing to raise it.”

I had never seen the word “ossature,” though its meaning is evident from both the context and Latin root. In any case, it seems redundant. Once an argument is skeletal, isn't the ossature already there? And no, the quoted passage is not from a Judge Bruce Selya opinion; he is on the First Circuit. It is actually Judge Patricia Millett quoting her own opinion in Maloney v. Murphy (2020).

More on Hypocrisy and Israel Boycotts

Originally posted on Social Science Space 12/08/2021  by Steven Lubet

In an essay last month on Social Science Space, I pointed out the hypocrisy of activists who demand maximum academic freedom for themselves while at the same time promoting a boycott of Israeli institutions (BDS) that would limit the academic freedom of many others. The example I offered was Prof. Dan Segal of Pitzer College, who wrote a post on the AAUP’s Academe Blog bemoaning his investigation by the college for “harassment on the grounds of sex/gender [and] ancestry,” in which he was ultimately cleared. Segal persuasively argued that lengthy investigations into meritless claims can erode academic freedom by discouraging candid discussions in the classroom. My essay agreed with Segal’s view that “academic freedom protections shield all conduct and speech made in the delivery of legitimate course content” (italics Segal’s).

The hypocrisy, however, was evident in a post on Segal’s personal blog, where he objected to a course offering at Canada’s McMaster University – “The Beginning of Science: Ancient Egyptian and Babylonian Conception of Space and Time” – because it was co-taught by an Israeli professor in conjunction with Tel Aviv University. “Virtual or online educational partnerships,” he said, “deserve our boycott as much as those that happen in person.”

Segal has now posted on open letter, also on Social Science Space, complaining falsely that I misrepresented his views. I have therefore copied Segal’s key paragraphs below, with my own responses in italics.

A Response to ‘When Academic Freedom Proves a One-Way Street’

Published on 11/23/2021 By Dan A. Segal

I appreciate being read, but do not appreciate being misread.

I do not hold, and actively oppose, many of the views you, Professor Lubet, have projected on to me in “When Academic Freedom Proves a One-Way Street.” The positions I articulated in the blog entry you discuss involve no objections to Pitzer or McMaster hiring Professor Eshbal Raston for a position for which she is fully qualified and the best available candidate. Full stop. Contrary to what you have claimed about my views, I do not support barriers to hiring an individual on the basis of their “nationality” or any other factor unrelated to their being qualified for a given position.

Segal magnanimously allows that Prof. Ratson should be eligible for a faculty appointment in Canada if she is willing to quit her current position and leave her home. As long as she remains affiliated with Tel Aviv University, however, he insists that she should not be permitted to co-offer a class with a colleague at McMaster. This alone is a restraint on the academic freedom of both Prof. Ratson and Prof. Symons, the faculty member at McMaster, because it prevents them from fully cooperating – in Segal’s own words, on “the delivery of legitimate course content” – for the benefit of students at both universities.

Segal’s claim that Ratson could still figure out some way to teach at McMaster is the equivalent of the Red State legislators who defend the hours-long lines at the polls in Democratic districts. People can still vote if they try hard enough; they just have to endure onerous conditions and overcome obstacles if they hope to do it.

The Palestinian BDS campaign—which I proudly support—is clear that it embraces academic freedom and rejects boycotting individual scholars. It calls instead for opposing institutional relationships with Israeli universities (italics Segal’s).

That is indeed what the BDS movement claims. Even if true – and there are numerous cases where boycotters have gone much further, including the rejection of journal submissions by Israeli authors – it is still a restraint on academic freedom. As I clearly recognized in my essay, “Segal does not advocate totally obliterating the academic freedom of the two professors.” A significant constraint on academic freedom is still objectionable, however, even if it leaves open a hypothetical possibility that the boycotted academics can find a viable work-around. In the world of free speech scholarship, we call that a burden on the exercise of a fundamental right, and we do not like it.

I ask that you reread—slowly, carefully, and closely—my blog post on the McMaster case. And I hope that when you do, you will recognize an ethical obligation to correct, publicly, your mistaken claims about my views.

Segal’s condescension aside, I read his blog post thoroughly and summarized it accurately, with appropriate quotations. As I explained in detail above, it is quite apparent that he does not believe in full academic freedom for Israeli scholars, or for North American academics who want to work with them. He is disingenuously unwilling to come out and say it.

The hypocrisy of Segal’s position is that he simultaneously demands the broadest version of academic freedom for himself, claiming that enduring even the slightest hesitation is a violation of his rights. “I know that this experience [the investigation, in which he was completely exonerated] has impacted my teaching,” Segal explained in his Academe Blog post. In some class sessions, he continued, “it has led me to ‘not go there,’ that is, to not explore certain examples or lines of thought that I otherwise would—and should—have pursued.” Thus, academic freedom must be as expansive as possible for the right people (Segal) and sharply curtailed for the wrong people (Israelis).

It is a considerable difference between us that I was raised to think that if one writes a criticism of someone else, one should share that criticism with the person one is criticizing—as a matter of both respectful candor and a commitment to robust dialogue and debate (the very goals of academic freedom and speech rights!). 

I do not doubt that Segal had quite an excellent childhood, but it evidently did not include instruction in journalism’s ethics. If I had reported a negative fact about Segal, I certainly would have contacted him for a response. There is no similar convention for opinion pieces, either before or after publication. In just this year, I have written critically about the president of the University of Florida, a Texas congressman and a Missouri senator, a Canadian psychiatrist, a dean at the Yale Law School, and several SCOTUS justices, among others. I did not send my essays to any of them (or to the many people whom I praised), and nobody but Segal has ever complained about it.

Segal’s declared “commitment to robust dialogue and debate” is as insubstantial as his faux respect for academic freedom. In fact, Segal boasts in his bio that he is “proud to serve” in the organizing collective for the U.S. Campaign for the Academic and Cultural Boycott of Israel (PACBI), an organization that specifically opposes all participation in academic activities such as “events, projects, or publications that are designed explicitly to bring together Palestinians/Arabs and Israelis so they can present their respective narratives or perspectives, or to work toward reconciliation.” Not much dialogue; plenty of hypocrisy.

CFP: Jaharis Health Law Symposium

The DePaul Journal of Health Care Law, Mary and Michael Jaharis Health Law Institute, and Center for Intellectual Property Law & Information Technology (CIPLIT®) are excited to announce a Call for Papers in connection with the 2022 Jaharis Health Law Symposium.

This year’s topic, “Antitrust and Access to Care: Lessons from Market Consolidation and a Public Health Crisis,” will explore how consolidation across health care markets has impacted access to care. Prominent legal scholars, antitrust enforcers and expert practitioners will address a range of questions through four separate panels focusing on health insurance, pharmaceutical, hospital and digital health markets.

Three papers will be selected from the submissions. Each selected author will receive a $500 honorarium and their article (of approximately 10,000 words) will be published in the Symposium issue of the DePaul Journal of Health Care Law. Full article drafts will be due by June 1, 2022.

We are open to a wide range of topics consistent with the Symposium theme but are particularly interested in papers from scholars with diverse experiences and backgrounds researching health insurance or pharmaceutical markets, as well as papers from junior scholars.

The Symposium will be held both in-person and remotely at DePaul College of Law in Chicago on March 10, 2022. Presenters able to appear in person will receive reimbursement for reasonable travel expenses.

Please submit an abstract of no more than 500 words to asetrini@depaul.edu by January 15, 2022, with the subject line “Jaharis Symposium: Call for Papers.” You also may submit an optional statement of no more than 500 words describing how your selection would enhance the diversity of the Symposium.

Judith Welch Wegner (1950-2021)

Judith Welch Wegner died on December 3, 2021 after a short illness.  She is survived by Warren, her husband of nearly 50 years; a brother, a sister, sister-in-law, two nieces, three nephews and numerous friends.  She was 71 and she and her husband had moved to Nantucket, Massachusetts following her 2016 retirement as a faculty member at UNC School of Law.

Wegner joined the law school faculty in 1981.  She served as dean from 1989-99, contributing in numerous ways to the welfare of the law school, including hiring diverse faculty and staff, implementing an externship program, reforming the curriculum, securing funds for and constructing a major law school building addition, and strengthening ties with alumni and the campus at large.  She supported the development of the UNC Festival of Legal Learning (a major continuing education program) and served as director of the program for many years until her retirement.

In addition, Wegner served as president of the Association of American Law Schools (1995) and as a senior scholar with the Carnegie Foundation for the Advancement of Teaching (where she was co-author of Educating Lawyers, published in 2007).  She also served the campus and UNC System, first as elected chair of the UNC Chapel Hill faculty (2003-2006) and later as chair of the Faculty Assembly representing all UNC system campuses (2008-2010).

In addition to focusing on innovative legal education, Wegner’s scholarship centered on state and local government law (State and Local Government in a Federal System, in numerous editions).  She was the recipient of the Ernest Ball award for excellence in municipal law from the North Carolina municipal lawyers. Wegner also served on numerous local elected and appointed committees and state legislative committees including the Carrboro Town Council, Orange County Planning Board, and General Statutes Commission. She took special pride in mentoring students and colleagues involved in the field of municipal law.

Wegner was born in Windsor, CT in 1950, and attended public schools there. She received her B.A. from the University of Wisconsin (Madison) in 1972 (phi beta kappa), and her law degree from UCLA in 1996 (order of the coif).  Prior to joining the UNC Law faculty, she worked in Washington, D.C. as an attorney in the Department of Justice and as a Special Assistant to the United States Secretary of Education.  She asks that contributions in her honor be made to the UNC School of Government Foundation.