The Faculty Lounge

Superstition

Judge VanDyke's "Alternative Draft Opinion"

Today's National Law Journal features an article here (access via Lexis; sorry) about an "alternative opinion" written by Judge Lawrence VanDyke of the U.S. Court of Appeals for the Ninth Circuit in McDougall v. County of Ventura. A 3-judge panel, including Judge VanDyke, reversed the district court’s order dismissal of a challenge to the county's 48-day COVID-related closure of gun shops, ammunition shops and firing ranges. Curiously, Judge VanDyke wrote a concurrence to his own opinion, reaching the same results but for different reasons.  Why did he do this? Judge VanDyke writes:

I agree wholeheartedly with the majority opinion, which is not terribly surprising since I wrote it. But I write separately to make two additional points. The first is simply to predict what happens next. I’m not a prophet, but since this panel just enforced the Second Amendment, and this is the Ninth Circuit, this ruling will almost certainly face an en banc challenge. This prediction follows from the fact that this is always what happens when a three-judge panel upholds the Second Amendment in this circuit.

I'm a big fan of "showing not telling" how the legal outcomes or reasoning of cases [or both] could have been different [or the same], using the same law and facts in effect at the time of the original opinion.  After all, that's the whole point of the Feminist Judgments projects at various stages in Canada, England & Wales, Australia, the U.S. (a series of books!), Ireland, Scotland, New Zealand, India, Pakistan and Mexico. There's also a pan-African Feminist Judgments Project and an International Law Feminist Judgments project, with other multi-national projects in the works. 

I don't think Judge VanDyke likely has on his bookshelf a copy of Feminist Judgments: Rewritten Opinions of the United States Supreme Court (Cambridge 2016), edited by Kathy Stanchi, Linda Berger and me.  All the same, Judge VanDyke's stated reasons for writing an "alternative opinion" resonate:

A judge or group of judges must first write a call memo, and then, if the en banc call is successful, the en banc majority must write a new opinion. Since our court’s Second Amendment intermediate scrutiny standard can reach any result one desires, I figure there is no reason why I shouldn’t write an alternative draft opinion that will apply our test in a way more to the liking of the majority of our court. That way I can demonstrate just how easy it is to reach any desired conclusion under our current framework, and the majority of our court can get a jump-start on calling this case en banc. Sort of a win-win for everyone. To better explain the reasoning and assumptions behind this type of analysis, my “alternative” draft below will contain footnotes that offer further elaboration (think of them as “thought-bubbles”).

Judge VanDyke's ending his concurring opinion with “You’re welcome” might have been gratuitous, but I'm fascinated by this development. This is the first real-time "rewritten opinion" by a sitting judge that I have come across. Is anyone aware of other instances of judges writing and publishing "alternate opinions"?

Constructive comments only.

Ohio State lateral hiring announcement in Tax or Tax and Business Law

The Ohio State University Moritz College of Law seeks lateral candidates for at least one tenure-track position. We are considering hiring a junior to mid-career lateral candidate for a position in the area of Tax Law or in both Business and Tax Law.  More information here:  Download Ohio State.

Lonnie Brown Named Dean of Tennessee Law

University of Tennessee College of Law has announced that Lonnie T. Brown, Jr., the Josiah Meigs Distinguished Teaching Professor and A. Gus Cleveland Distinguished Chair of Legal Ethics and Professionalism at the University of Georgia School of Law, will become its next dean.  He holds a JD from Vanderbilt.  Brown will take over on July 1, 2022.

More on the Unsupported Charges of Anti-Semitism in DEI Offices [UPDATED]

I have a followup essay at Social Science Space.

[UPDATE: this essay has now been cross-posted on the AAUP's Academe Blog.]

There Is No Proof of Rampant Anti-Semitism in University Diversity, Equity, and Inclusion Offices

Published on 01/19/2022  by Steven Lubet

The right-wing Heritage Foundation has accused university Diversity, Equity, and Inclusion (DEI) offices of spreading anti-Semitism on campuses, but its recently  issued report does not back up the claim. Although Heritage touts the study, titled Inclusion Delusion: The Antisemitism of Diversity, Equity, and Inclusion Staff at Universities, as revealing that “an overwhelming number of DEI hires are spewing antisemitic views about Israel on social media,” it is actually an instance of selective data presentation in support of a conservative cause.

The study’s authors claim that DEI offices not only fail to protect the interests of Jewish student, but instead “foment” anti-Semitism and “may be contributing to an increase in anti-Jewish hatred.” While certain DEI advocates have been inexcusably dismissive of Jewish students and faculty, sometimes veering into negative stereotypes and even overt hostility, the study’s methodology does not begin to establish its overheated assertion that “political activism of DEI staff may help explain the rising frequency of antisemitic incidents” on campuses.

The Heritage study began by identifying 2,933 DEI personnel at 65 major U.S. universities, of whom 741 had publicly accessible Twitter accounts. Those accounts were then searched for tweets, retweets, and likes that evinced, as the report put it, “anti-Israel attitudes that are so out of proportion and imbalanced as to constitute antisemitism.”

The researchers ultimately found 605 tweets with extraordinarily harsh statements about Israel, a phenomenon that may indeed coincide with anti-Semitism. Many such tweets threw down a new twist on an ancient blood libel, as in “israel (sic) has a particular loathing for children. they target them with violence specifically and intentionally every single day.”

Another charged,

Y’all love to add the word liberal in front of the most evil things and it’s unhingedddd. Wtf is a liberal Zionist? What’s next? Liberal Nazi? Liberal colonizer? Liberal murderer? Liberal imperialist? Liberal fascist?

And a third threatened, “‘from the river to the sea’ means that we will decolonize every block and every grain of sand in palestine (sic).”

In contrast to all that condemnation, there were only 28 tweets favorable to Israel, some of them only mildly so. But the imbalance does not tell the whole story, because the most important information is strangely missing from the report.

In a study of anti-Semitism among DEI personal, the most significant figure would be the number or proportion of biased staffers, not the ratio of nasty tweets. And yet, as I have explained in The Forward, the Heritage report never tells us whether the 605 troubling tweets were generated by a single person tweeting almost 600 times, by 30 DEI officers tweeting 20 times apiece, or by 300 personnel tweeting only twice each.

Although the Heritage website claims to have documented an “overwhelming pattern” of anti-Semitism – a conclusion repeated in media reports – there may well be no pattern at all. If it turns out that only a handful of DEI personnel were responsible for nearly all of the Israel bashing – which can hardly be ruled out, given the profound enmity toward Israel of some progressives – the modal number of angry tweets per staffer could easily be zero.

Memphis Law Seeks Tenure-Track Faculty

This just in:

The University of Memphis Cecil C. Humphreys School of Law invites applications for several tenure-track faculty appointments this year.  While we have a broad range of needs and invite applications from all fields, the Law School has a particular need in Torts and is also particularly interested in hearing from candidates with expertise and interest in Health Law, Race and the Law, Professional Responsibility, and Family Law.  We seek applicants who can demonstrate a potential for excellence in teaching, scholarship, as well as a commitment to service.  We are especially interested in candidates who will enhance the diversity of our faculty and are ready for the future of legal education.

Memphis School of Law is housed in a stately, late 19th century building, a converted federal courthouse in the heart of downtown Memphis on the bluffs overlooking the Mississippi River. Memphis Law has an active and diverse student body, colleagues committed to excellence in both scholarship and teaching, and a community that has the offerings of a major city, such as museums, restaurants, and professional sports, but the feel of a tight-knit community – not to mention affordable cost of living. Please submit applications via https://workforum.memphis.edu/postings/29805. The screening of applications will begin on January 20 and will continue until positions are filled. Applicants may also contact Daniel Kiel, Chair of the Faculty Recruitment Committee, at dkiel@memphis.edu for additional information.  The University of Memphis is an EEO/AA employer. 

 

 

Drexel University Kline Law Seeks 2 VAPs

This just in from the appointments committee at my own institution:

The Drexel University Thomas R. Kline School of Law in invites applications for  two Visiting Assistant Professor positions. One position is dedicated to a faculty member who will teach and research in the area of tax. The other position is open, with a preference for someone who does research that touches on legal implications of new technology and/or someone open to teaching Torts. Each position will last two years and VAP’s are expected to fully participate in the intellectual life of the law school.

We seek candidates who hold (at minimum) a JD or appropriate equivalent degree. We are particularly interested in candidates embarking on an academic career. The Kline School of Law is committed to recruiting, developing, retaining, and rewarding faculty members who bring scholarly interests and life experiences that contribute to the diversity and success of our students, our University, and our communities.

Drexel University, founded in 1891, is an R1 comprehensive research institution located in University City, Philadelphia. Drexel established its law school in 2006, and it has rapidly developed a reputation for innovative scholarship across disciplines, a diverse portfolio of academic programs, and a focus on civic engagement. The Kline School of Law is home to the Center for Law and Transformational Technology and the Center for Law, Policy and Social Action. The law school has a vibrant scholarly culture, including an active workshop series. Kline Law has moved up steadily in the rankings and is now ranked #81 by U.S. News and #37 by Above the Law.

Applications for this position should include a CV and cover letter.

Review of applications will begin immediately, and prompt application is encouraged. Questions should be directed to Professor Bret Asbury.

Apply online via Drexel’s HR portal: https://careers.drexel.edu/en-us/job/497570/visiting-assistant-professor-kline-school-of-law.

"The Trials of Rasmea Odeh" Excerpted on The Daily Beast

The Daily Beast published an except last week from The Trials of Rasmea Odeh.  Here is the non-paywalled link.

Here are the intro and opening paragraphs:

Meet the Palestinian Terrorist Who Lied Her Way Into America

In his new book, The Trials of Rasmea Odeh: How a Palestinian Guerrilla Gained and Lost U.S. Citizenship, Steven Lubet tells the remarkable story of Rasmea Odeh. A Palestinian woman from the West Bank town of Ramallah, Odeh was convicted for murder in Israel in 1969, following a deadly bombing in Jerusalem’s largest supermarket. Twenty-five years later, however, Odeh was not serving a life sentence in an Israeli prison but instead starting a new life in the United States, first in Detroit and later in Chicago, eventually becoming a naturalized citizen and working as a community organizer. Her arrest by federal authorities in 2013, and subsequent trial on charges of unlawful procurement of citizenship brought progressive activists to her defense, even as the facts of the immigration case, the Israeli conviction, and Odeh's early life were obscured or ignored.

Although sentenced to two life terms in prison for her role in the Jerusalem supermarket bombing and another bombing at the British consulate, Odeh was released in a prisoner exchange with the Popular Front for the Liberation of Palestine (PFLP) on March 14, 1979. Three months later she was in Geneva, testifying about her ill-treatment in Israel before a session of the UN Special Committee investigating human rights violations in the occupied territories.

Within the first minutes of her testimony, Odeh began lying about her participation in the PFLP’s guerrilla operations. She told the committee that she had never had explosives in her home, that she knew nothing about Palestinian commandos or resistance, and that she had no involvement in the Jerusalem bombings or other “military operations.” As we will see, all of these assertions were untrue and have been flatly contradicted by Odeh’s own words in later interviews as well as by other participants in the bombing.

Needless to say, I am already getting hate mail.

University of Illinois Seeks Director of Trial Advocacy

Director of the Anderson Center for Advocacy and Professionalism; Director of Trial Advocacy; and Teaching Assistant Professor

The University of Illinois College of Law is seeking a dynamic and accomplished practitioner or legal academic to serve as its inaugural director of the Kimball R. Anderson and Karen Gatsis Anderson Center for Advocacy and Professionalism and to direct the College of Law’s Trial Advocacy Program. The Anderson Center is an exciting new initiative at the College of Law, designed to foster learning and scholarship at the intersection of two key areas – advocacy and professional ethics. 

In this position, you would oversee the College of Law’s successful Trial Advocacy, Trial Team, and Moot Court programs. You would lead multiple teams of adjunct professors, including senior prosecutors, defense lawyers, and judges. You would be assisted by a legal professional with experience in these programs. You would also teach related courses, instructing students in basic and advanced trial advocacy techniques.

As the Director of the Anderson Center you would oversee the Center’s initial developmental phases and design and implement a strategic plan intended to further the “best in class” goal of the Center.  In this role, you would work closely with the Dean of the College of Law, a wide variety of senior administrative professionals in the area of admissions, career services, and advancement, various members of our world-class faculty, and a superb group of legal professionals serving as advisers on the Anderson Center Advisory Board.