The Faculty Lounge

California Dreamin' [UPDATED]

"California Dreamin'" was written by John and Michelle Phillips in 1965. It was originally recorded for an album, never released as a single, by Barry McGuire (best known for the even more depressive "Eve of Destruction"). John and Michelle sang backup on McGuire's cut, with P.F. Sloan (who wrote "Eve of Destruction") on guitar. They so impressed producer Lou Adler  that he recorded over McGuire's vocal track, substituting the Phillips's vocals (and Denny Doherty's), which became their original 1965 release as the Mamas and the Papas.

CFP: Nevada Law Journal, Dark Necessity? The Supreme Court's Shadow Docket

Call For Papers: Dark Necessity? The Supreme Court’s Shadow Docket
Volume 23, Issue 3 of the NEVADA LAW JOURNAL
University of Nevada, Las Vegas  
William S. Boyd School of Law  

The NEVADA LAW JOURNAL is pleased to announce a call for papers for its symposium issue, Dark Necessity? The Supreme Court’s Shadow Docket. This symposium will address what the “shadow docket” is and what it could become.  
The Supreme Court is composed of nine justices—appointed for life or good behavior. The justices decide which cases they will review by selectively granting certiorari. They typically receive briefings from petitioners, respondents, and amici curiae, then hear oral arguments before issuing opinions. The opinions identify authors and votes. But the Supreme Court’s shadow docket does not follow these procedural standards.  

The shadow docket is comprised of emergency orders and summary decisions. Because these cases are decided on applications for emergency relief, the merits may be unresolved at the lower courts. And because these decisions are outside of the Supreme Court’s main docket, the abbreviated proceedings are without both parties’ complete written and oral advocacy. Here, any five (to nine) justices may anonymously affirm or overrule legal doctrine without saying why. That is, the shadow docket allows the Supreme Court to issue unsigned, unexplained orders with short and long term effects.  

The shadow docket has become a hot topic among scholars, senators, and even the justices themselves. On the one hand, those that fear the shadow docket stress that it is beginning to resemble “some ghoul in a late night horror movie.” On the other hand, those that revere the shadow docket believe that the Court’s legitimacy is in fact bolstered by issuing these decisions. Yet what underlies this debate remains undisputed: the shadow docket’s use has considerably increased in recent years.  

This NEVADA LAW JOURNAL issue seeks to explain the shadow docket’s past and present use as well as its substantive effects on particular areas of law. We invite interested parties to submit abstracts of at least 375 words; we welcome longer summaries and draft papers. The abstracts should be proposals for articles between 15,000 and 30,000 words. Submissions should be sent to Alyssa Williams, Symposium Editor, at alyssa.williams@unlv.edu with the subject line “NLJ Call for Papers.”  

O Captain! My Captain!

Tears are flowing as I write these words. Just a few moments ago I learned that the leader of  every Latina and Latino law professor in the this country is gone. This morning our trailblazer, our champion, and inspiration passed.  Sadly, I am not blessed with the skills to express how much he meant to so many of us--how he was our strength, our advisor, and often our harshest critic. He was the country's leading immigration scholar as well as an unmatched expert on law and education, history, diversity, and  Latinx diversity in particular (I can hear him now barking at me from up above for writing a made-up Spanish word created by trendy young folk).

I will not go into detail about his scores of amazing articles and books (so honored to have published some of his books in my book series), or his leadership in the AALS, his advisory role in countless national civil rights organizations, or presidency at the University of Houston. I want to spend a moment to share with you his heart. It was as impressive as his brilliance. 

When he started in the academy, there were only 22 Latina and Latino law professors. He decided to change the profession and with the partnership of the National Hispanic Bar Association, he created the "Dirty Dozen" list that for over a decade, "outed" the scores of schools that failed to have any Latina and Latino diversity on their tenure track faculty. Many in the academy, including leaders at many top law schools attacked him. While it would later cost him when applying for leadership posts, these largely baseless attacks and facile excuses only motivated our champion. A decade later, there were over 200 of us and our numbers are creeping towards 300 now. With several of us now obliged to pick up his flag. 

I am too upset to write further, but all here should know, there is not a single Latina or Latino law professor that was not influenced by him, directly or  indirectly. He also helped millions of others---a national leader on public policy issues relating to access to and the right of education, on immigration policy, and on diversity, just to name a few. My greatest honor was when I started in the academy and someone, perhaps foolishly, compared me to him---I wish I could fill a tiny portion of his shoes. 

I am pleased a few years ago, I was able to gather many of the country's top scholars to write a book in his honor: The Accidental Historian.

Later I tried to take a small step to follow his leadership and created the Olivas Faculty Recruitment Initiative, where  in just over two years we have helped place several law professors at fantastic law schools throughout the country and we maintain an army of mentors and future candidates.  He was the mentor of the FRI's very first legal academic.

I am also heartbroken that while struggling, like many of us, with personal and health- related matters, I did not respond to his latest email, asking me why I had "failed to be my usual pugnacious self in many debates in academic circles."  I did not want to trouble my hero or let him down with my personal shortcomings--how I regret not once again sparring with my champion---I am blessed to have known, been mentored by and love so much, such a great man. 

I will love and miss you forever, mi Cuate. Gracias por cambiar mi vida. 

While I could pick a rock song, few may know, he was one a heck of a DJ, or shall I say, podcaster for the young folks, I would assuredly not pick the right song. Or I could quote his scores of prophetic legal predictions, or  cite one of his unmatched nationally followed legal analysis, which there were many. Instead, I want to honor him with what a great man wrote about another great man:

 

O Captain, my Captain

 

O Captain! my Captain! our fearful trip is done,

The ship has weather’d every rack, the prize we sought is won,

The port is near, the bells I hear, the people all exulting,

While follow eyes the steady keel, the vessel grim and daring;

                         But O heart! heart! heart!

                            O the bleeding drops of red,

                               Where on the deck my Captain lies,

                                  Fallen cold and dead.

 

O Captain! my Captain! rise up and hear the bells;

Rise up—for you the flag is flung—for you the bugle trills,

For you bouquets and ribbon’d wreaths—for you the shores a-crowding,

For you they call, the swaying mass, their eager faces turning;

                         Here Captain! dear father!

                            This arm beneath your head!

                               It is some dream that on the deck,

                                 You’ve fallen cold and dead.

 

My Captain does not answer, his lips are pale and still,

My father does not feel my arm, he has no pulse nor will,

The ship is anchor’d safe and sound, its voyage closed and done,

From fearful trip the victor ship comes in with object won;

                         Exult O shores, and ring O bells!

                            But I with mournful tread,

                               Walk the deck my Captain lies,

                                  Fallen cold and dead.

Finally....

Never had the pleasure to meet this brilliant colleague, but by all accounts, he was  an amazing person and an incredible law professor. In a report today, the former brother-in-law of Florida State University law professor, Dan Markel, was arrested in Broward County. Markel  was shot to death at his Tallahassee home eight years ago. It seems like yesterday we were reading about this horrific event, and it also seems like it has taken forever for charges to be brought. 

After reading about the matter as well as watching at least one documentary of the case, it seemed it was just a matter of time before those behind the murder were exposed. But goodness, never believed it would take eight years. 

RIP Professor Markel. May justice be served. 

Republicans Ought to Support the Twenty-First Century Courts Act

The Hill has published my new essay, explaining why the Twenty-First Century Courts Act would bring reforms to the Supreme Court, and why Republicans ought to get behind it. Here is the gist:

In a good first step toward depoliticizing the U.S. Supreme Court, Sen. Sheldon Whitehouse (D-R.I.) and Rep. Hank Johnson (D-Ga.) recently introduced the 21st Century Courts Act of 2022 setting out procedural reforms that ought to attract bipartisan support. Although the Act’s co-sponsors so far are all Democrats, its two key provisions have no political implications, and there is no reason it cannot eventually be endorsed by Republicans.  

The 21st Century Courts Act would not impose specific rules on the Supreme Court. It simply requires that the court, “after appropriate public notice and opportunity for comment, issue a code of conduct for the justices” within 180 days after passage of the Act. The justices themselves would have full authority to determine the scope, specificity and discrete provisions of their code, whether adapting an existing model or writing it from scratch.

There is nothing about this measure for Republicans to dislike. The Court’s current 6-3 conservative majority ensures that an eventual code will not have a theoretically liberal bias, if such a thing were even possible. And ethical lapses of the sort a code would address do not follow party lines.

The 21st Century Courts Act solves this problem by constituting the entire Supreme Court as a “reviewing panel for a motion seeking to disqualify a justice.” Individual justices, of course, would remain free to proactively recuse themselves whenever they see fit, but a party’s actual motion, if “accompanied by a certificate of good faith and an affidavit alleging facts sufficient” to support disqualification, would be referred to the full court, as are other procedural motions.

You can read the entire piece here.

Cowboys Need Healthcare Too

As David Tuller and I explain in MedPage Today. Here is the gist: 

Cowboys Need Healthcare Too

— Leaving people uninsured winds up costing society a lot more

by David Tuller, DrPH, and Steven Lubet, JD April 19, 2022

Most cowboys without medical insurance have opted to forgo it for some reason, despite the availability of nearly universal coverage under the Affordable Care Act (ACA). That choice fits the familiar image of rugged, government-disdaining individuals, suspicious of social welfare programs, especially in the deep Red western states. But even the toughest, most go-it-alone cowboy can still end up needing a doctor.

Butcher tells the story of a cowboy named Pete who works on the Crow Reservation in Montana. He suffered an accident while riding alone on the range, "but he managed to get to an emergency room, where he was treated for a broken nose, broken eye socket and broken cheekbone," and had his eyelid "stitched back together." Advised to take 12 weeks off, Pete was back riding the next day. "It could have been way worse," he told Butcher.

Assuming that Pete matches Butcher's profile of an uninsured loner, somebody still had to pay for all that repair work. The only emergency department on Montana's Crow Reservation is at the Crow/Northern Cheyenne Hospital, which is operated by the federal government's Indian Health Service. Like every hospital receiving government funds, the emergency department at Crow/Northern Cheyenne is required to treat everyone who presents with an injury, with or without insurance; it is even forbidden to ask about insurance during intake. So unless Pete had the money to cover the expenses himself -- highly unlikely on a typical annual income of $30,000 -- the chronically underfunded Indian Health Service was left eating the costs.

You can read the entire piece here.

CFP - Class Crits XIII, Unlocking Inequality: Revisiting the Intersection of Race and Class

Call for Papers and Participation

ClassCrits XIII:

Unlocking Inequality: Revisiting the Intersection of Race and Class

Co-Sponsored by ClassCrits, Inc., TapRoot Earth, and Thurgood Marshall School of Law

October 21-22, 2022

Where: Thurgood Marshall School of Law, Houston, TX (we anticipate a live conference)

Proposal Types:  Individual Presentations, Panels, Junior Scholar Works-in-Progress

 Deadline:  June 30, 2022

Conference Proposals:  Submit at www.classcrits.org

Conference Theme, Unlocking Inequality: Revisiting the Intersection of Race and Class

The Civil Rights Era of the mid 20th century brought about some reforms, it did not achieve substantive equality for people of color, and in particular for African American, Latinx and Native American communities.  The wealth and income of these communities are far below that of whites, their poverty and unemployment rates are far above the national average, and they are far underrepresented among college graduates and in professions requiring higher education.  There is still widespread de facto racial and ethnic segregation in schools and residential living patterns.  And people of color are often harassed and brutalized by police and private citizens when engaged in normal human activities. 

For several decades, scholarship in Critical Race Theory and LatCrit Theory has examined the role of ongoing racial discrimination in perpetuating persistent injustices and inequalities against African Americans and other people of color.  A somewhat different perspective is found in the literature on “racial capitalism.”  Inspired by scholars in the Black radical tradition such as W.E.B. DuBois, Cedric Robinson, and Sylvia Wynter, historians and theorists of capitalism have begun to trace the relationship between global capitalism and white supremacy.  From the dispossession of indigenous people in the “New World” to the establishment of Atlantic slavery, through the construction of empires of cotton, sugar, bananas, and other commodities that pulled colonized and racialized peoples around the globe into new supply chains designed to serve the European metropoles, the cheap land and labor produced by white supremacy has been central to the emergence of capitalism.  The climate crisis, which currently threatens the well-being of the entire world and of which people of color and other marginalized communities bear the brunt, is an outcome of a globalized economic system based on extraction from and exploitation of these communities and of the planet at large.  Indeed, new historical research suggests that capitalist tools and mechanisms—from accounting and management practices to mortgages, the corporate form, and private property itself—are the products of a mindset that has distributed the privileges of “humanity” unequally.  This account refuses the conventional question of “Is it race or class?” and suggests that the two are intimately intertwined.

This backdrop poses several questions.  Is it possible to overcome white supremacy with the existing tools of American law?  Can white supremacy and capitalism be disentangled?  Is it possible, given what DuBois called the “wages of whiteness,” to build a more egalitarian society with minimal wealth and income disparities, high quality education and guaranteed employment for all, and comparable opportunities to seek fulfillment in life?  Despite the enormous power of the moneyed elite, is it possible and what would it take to transform our society from one based on competition, profit, and individual satisfaction to one whose core values are working cooperatively, meeting people’s needs, and fairly sharing what society collectively produces among all its members? 

Proposals

We invite proposals for individual paper presentations and panels that speak to this year’s theme of Unlocking Inequality: Revisiting the Intersection of Race and Class as well as to general ClassCrits themes.[1] We anticipate at present that our conference will be live and in-person, although that could easily change with new developments in the ongoing Covid-19 pandemic.

[1] ClassCrits themes include:

• The legal and cultural project of constructing inequalities of all kinds as natural, normal, and
• The relationships among economic, racial, and gender inequality.
• The development of new methods (including the interdisciplinary study and development of such methods) with which to analyze and criticize economics and law (beyond traditional “law and economics”).
• The relationship between material systems and institutions and cultural systems and
• The concept and reality of class within the international legal community, within international development studies and welfare strategies, and within a “flattening” world of globalized economics and geopolitical relations.

[1] ClassCrits themes include:

• The legal and cultural project of constructing inequalities of all kinds as natural, normal, and
• The relationships among economic, racial, and gender inequality.
• The development of new methods (including the interdisciplinary study and development of such methods) with which to analyze and criticize economics and law (beyond traditional “law and economics”).
• The relationship between material systems and institutions and cultural systems and
• The concept and reality of class within the international legal community, within international development studies and welfare strategies, and within a “flattening” world of globalized economics and geopolitical relations.

UCLA Law Seeks LRW Faculty

This just in:

UCLA School of Law is seeking a full-time lecturer to teach two sections of the first-year J.D. course in Legal Research and Writing. The opening is for the 2022-23 academic year. The appointment will be effective July 1, 2022.

The job announcement can be found here.

It's Hard to Get a Letter to the Editor Published in the Washington Post

Here are a couple of never-published LTEs I've sent to the Washington Post:

Re: "Kill the debt limit now, Democrats. If you don’t, here’s what will happen." September 22, 2022:

To the editor: Greg Sargent writes of the debt limit negotiations (Sept. 22) that bargaining with Republicans “is like speaking to them in the Vulcan language.” C’mon, Greg. Everyone knows the Republicans speak Klingon.

and more seriously,

Re: "Clarence Thomas and his wife’s texts: A kerfuffle over appearances," April 1, 2022:

To the editor: George F. Will defends the non-recusals of Supreme Court justice Clarence Thomas by dismissing the appearance of partiality created by his participation in cases specifically related to his wife’s political activities. According to Mr. Will, the appearance of partiality “makes morally fastidious people grumpy” and “fussing about such things is often what people do to justify unjustifiable actions.” Those fussy grumpers, however, must have included the United States Congress, which overwhelmingly amended the Judicial Code in 1978 to require a justice’s recusal whenever his or her “impartiality might reasonably be questioned.” Although the relevant statute was unmentioned by Mr. Will, no less an authority than the late Justice Antonin Scalia acknowledged in 2004 that the “reasonably be questioned” standard must be followed by Supreme Court justices. The Court itself held in 1988 that judicial disqualification for “an appearance of partiality” is necessary to “promote public confidence in the integrity of the judicial system.” It isn’t grumpiness that requires Justice Thomas’s recusal; it’s the law.

One of these days . . .

 

Kidneys with Sally Satel

I discuss what it's like to need (and receive) a life-saving kidney transplant with AEI's Sally Satel (a two-time kidney transplant patient) and UVA 3L, Caitlyn Stollings, who co-hosts this episode.

Dr. Satel is a resident scholar at the American Enterprise Institute and the staff psychiatrist at a local methadone clinic in Washington D.C. She was also an assistant professor of psychiatry at Yale University from 1988 to 1993 and remains a lecturer at Yale.

Importantly for our purposes, she is a two-time kidney transplant patient and has written widely about that experience. Dr. Satel is also the editor of When Altruism Isn’t Enough: The Case for Compensating Kidney Donors

 

 

This episode features a kidney recipient, but we've also done two episodes featuring Good Samaritan donors, here:

and here: