The Faculty Lounge

What'd I Say

Ray Charles improvised "What'd I Say" one night in 1958 when his set ran 11 minutes too short and he needed something to fill the time. The response was so enthusiastic that he made it a regular number, recording and releasing it the next year. It became a crossover hit and his first gold record, despite creating a controversy with some people in both white and African-American audiences. The former objected to the overt sexuality and the latter to its adaptation of gospel riffs. Charles continued performing it, of course, usually using it to close his last set of the night.

The original recording was over seven minutes long, which exceeded the maximum length for radio play. The solution at Atlantic Records was to divide it into two parts and release the A side as part one and the B side as part two. The live video clips of Ray Charles all seem to be about four minutes, including the 1959 clip at the bottom of this post; most others are shorter.

Don't miss the cameo by Barack Obama in the Usher clip. Cannot imagine either Trump or Biden getting into it like that.

Chief Justice Roberts's Responsibility for the Politico Leak

My new column for Law & Crime is about the accountability-free zone Chief Justice Roberts has enabled at the Supreme Court. Here is the gist:

The Politico Leak: It’s Time for Chief Justice Roberts to Take a Look in the Mirror

Steven Lubet May 5th, 2022, 11:00 am

Supreme Court Chief Justice John Roberts is furious over the leak of Justice Samuel Alito’s draft majority opinion that appears to portend the complete demolition of constitutional abortion rights in the U.S. Calling the leak to the website Politico a “betrayal” of confidences and a “singular and egregious” breach of trust, Roberts announced that the marshal of the court would “launch an investigation to get to the source of the leak.” The prime suspects, of course, are the Court’s 36 clerks and the other justices themselves, each of whom might have had access to Alito’s draft. Roberts appears, either intentionally or otherwise, to have absolved the clerks, whom he called “intensely loyal” with and exemplary tradition of respecting confidentiality. That leaves the possibility of a rogue justice, whose possible motives – for either conservative or liberal objectives – have been the subject of much speculation in the press. If it turns out that Politico’s source was one of his colleagues, Roberts bears more underlying responsibility for the breach than he has been willing to admit.

When it comes to ethics issues, the nine justices have acted as unconstrained free agents for decades, resolving questions and making decisions entirely according to their own lights, with no acknowledged rules or collective frame of reference. Uniquely lacking a written code of conduct, there is actually no provision barring a justice from disclosing a draft opinion or any other information from the Court’s deliberations.

Chief Justice Roberts apparently thought it was just fine to proceed by consensus or tacit agreement on questions of ethics, but the leak to Politico suggests that he might well have been wrong. Justices who have come to regard themselves as the sole arbiters of their own ethical obligations may have very different priorities from their colleagues when the chips are down on matters of historic weight.

It will be some time before the leaker’s identity is discovered, if ever. Should it turn out to have been a rogue justice, it would be a stretch to call the release of the abortion opinion a “singular and egregious” breach of trust, rather than the ultimate expression of a decades-old, accountability-free regime. And if so, nobody is more to blame than the Chief.

You can read the full essay at Law & Crime.

BC Law Names Odette Lienau Dean

Boston College Law has announced that its new dean will be Odette Lienau.  Lienau, who holds a JD from NYU and a Ph.D from Harvard, is a faculty member and former associate dean at Cornell Law.  She takes over in January.  

Troy McKenzie Named Dean of NYU Law

NYU School of Law has named Troy McKenzie as its new dean.  McKenzie, who joined NYU in 2007, is also a graduate of  NYU Law.  He will take over on June 1.

University of Calgary Looking for an Instructor in Business Law

The Haskayne School of Business at the University of Calgary, which enjoys close relations with the Law School, is looking for a full-time tenure-track Instructor in the area of business law to start in July 2022. Successful candidates must have an LLB or JD, together with a Master’s or Doctorate in a cognate area. 

More details, including how to apply, are here: https://careers.ucalgary.ca/jobs/9473995-instructor-in-strategy-and-global-management-haskayne-school-of-business

Announcing First Annual Olivas Writing Institute...

First Annual Michael A. Olivas Writing Institute

July 21-22, 2022

  

The First Annual Michael A. Olivas Writing Institute is organized in loving tribute to and honor of Professor Emeritus Michael A. Olivas by Professor Ediberto Roman, Florida International University College of Law . 

This First Annual Michael A. Olivas Writing Institute will be held virtually by Zoom.  Registration is free.  To participate, please register here: https://bit.ly/3yRDBLH. .  The Program details start on the next page.  All times are Eastern.  

 

The Institute is sponsored by the Olivas Faculty Recruitment Initiative,  https://law.fiu.edu/faculty/the-olivas-faculty-recruitment-initiative/.  Photographs, Houston Chronicle & University of Houston Law Center.

 

 

First Annual Michael A. Olivas Writing Institute

 

Program

Day One | July 21, 2022

Opening Remarks, 12:00 pm

Kelly Testy, President, The Law School Admission Council

Welcoming Remarks, 12:15 pm

Remembering Michael and Moving Forward

Professor Steven Bender, University of Seattle School of Law

Keynote Address, 1:00 pm

Dean Kevin Johnson, University of California, Davis School of Law

Tributes to Michael Olivas

Good People, 

Michael Olivas' family asked if I could help them with a site they created addressing the impact he had on the academy. If you have a story to tell, ideally with a picture, please email me at romane@fiu.edu , and I will post it (provided of course I deem it appropriate for his family to read). I post here because not all of us are on the same lists and I wanted to do what I could to help honor him and bring peace and love to his family. 

Peace,

E

Was the Mask Mandate Judge a Hypocrite?

My latest column for The Hill has new revelations about the Trump-appointed judge who vacated the CDC’s transportation mask mandate. Here is the gist:

Was mask mandate judge a hypocrite?

by Steven Lubet, Opinion Contributor - 05/02/22 11:30 AM ET

Kathryn Kimball Mizelle is the youngest federal judge in the U.S., having been appointed by President Trump in 2020, when she was only eight years out of law school. She may also be the most hypocritical. A central finding in her opinion in Health Freedom Defense Fund v. Biden, invalidating the Centers for Disease Control and Prevention’s (CDC) transportation mask mandate, was founded on the evidently purposeful suppression of key passages in her own sources. In pursuit of the enduring Republican goal of hobbling federal administrative agencies, she abandoned the tenets of the conservative legal movement, becoming an “activist judge” who “legislates from the bench.”

In fact, Mizelle strategically skipped even likelier, more comprehensive definitions from the very sources she cited. The full definition in the 1942 Webster’s Dictionary is “a rendering sanitary; science of sanitary conditions; use of sanitary measures,” with no restriction to cleaning. The definitions in the 1948 Funk & Wagnall’s Dictionary include “the practical application of sanitary science,” without excluding “measures to keep something clean.” Mizelle did not acknowledge either of these definitions in her opinion, although both would plainly cover masking. Given the brevity of the entries, there was no way for her to miss the inclusive definitions. The omissions must have been deliberate.

Exercising the opposite of judicial restraint, Mizelle issued her ruling only two weeks before the mandate’s expiration date. There was every reason to wait before preemptively invalidating the mandate for the entire country – which would have imposed only a brief delay and minimal inconvenience on the plaintiffs – if she had not been in such an activist rush to privilege her own judgment over the doctors and scientists at the CDC.

Although Mizelle once called Justice Thomas “the greatest living American,” her mentor ought not be proud of his protégé’s handiwork. She accomplished the conservative movement’s long-sought policy objective – limiting the reach of federal administrative agencies – by consciously violating its avowed values: she disdained the original meaning of the statute, concealed critical language from her own sources, elevated her policy views over those of democratically accountable agencies and imposed an activist remedy. Principles, it seems, are only for the faint of heart.

You can read the entire essay in The Hill.

Supreme Court Endorses Colonialism....again....

Let the fireworks begin....following the footsteps of my mentor....left me with a renewed vigor to pester and afflict the complacent:

Below is the text of a recent scathing op-ed on the high court's endorsement of colonialism. Here's the text:

Colonialism, an issue that rarely occupies the minds of most Americans, has once again reared its ugly head with the April 21 (8-1) U.S. Supreme Court decision in the United States v. Vaello Madero. The court—following the nativist and xenophobic decisions of more than a century ago—upheld the federal government’s exclusion of Puerto Rico from a Social Security benefits program, which will stop more than $2 billion a year from flowing to U.S. citizens living on the Island.

The justices found the Constitution’s Equal Protection Clause doesn’t require equal treatment for U.S. citizens living in the territory; a perverse conclusion because the text of the Equal Protection Clause specifically prohibits the government from treating U.S. citizens in an unequal fashion: the government shall not “deny to any person within its jurisdiction the equal protection of the laws.”

Yet, the court upheld the exclusion of U.S. citizens in Puerto Rico from the Supplemental Security Income program covering needy people who are blind, otherwise disabled, or elderly. This SSI program is a safety-net program that provides cash assistance to older, disabled, or blind Americans who have very low incomes. Congress has excluded residents of Puerto Rico and three other U.S. colonies from the program.