The Faculty Lounge

Billie Holiday

Born Eleanora Fagan and known as Lady Day, the great Billie Holiday needs no introduction:

 

Sneak Attack

This is Steven Epstein's eighth and penultimate guest post on Extreme Punishment:  The Chilling True Story of Acclaimed Law Professor Dan Markel’s Murder.

The following is an excerpt from Chapter 9, Pearl Harbor:  Monday, September 10, 2012:

A dozen or so criminal law professors were seated at a sizable conference room table at NYU Law School in Greenwich Village.  Most in attendance that afternoon lived in New York, though a few, like Dan, had flown in for the occasion.  When Dan and a colleague at Brooklyn Law started the NYC Criminal Law Theory Colloquium in January 2011—a Prawfsfest!-like workshop intended solely for criminal theorists—the email list of invitees numbered barely 20. 

That list, which Dan curated singlehandedly, had grown to more than 200, and included law professors from as far away as Israel, England, Canada, and California.  Those able to attend assembled in New York at least every other month, working collectively to transform each other’s unfinished drafts into polished articles on criminal law theory.  Their workshopping sessions—Dan’s “cocaine”—would last for hours, focusing intensely on just two papers each afternoon.  His own piece was slated for discussion the following day.

As the professors were going around the room offering insights and critiques on one of his colleague’s drafts, Dan noticed his iPhone vibrating.  Glancing down, he saw Wendi’s name appear on the screen.  During the three days he’d been in New York, she hadn’t answered his calls or responded to his voicemails or texts.  Something was definitely amiss, but Dan had no idea why she was so upset.  He excused himself and stepped out into the hallway to take the call.

“Hello,” he said tentatively.

“I’m leaving and taking the boys with me,” Wendi said, her voice firm and resolute. 

“What?” Dan exclaimed.

“I’m filing for divorce,” his wife of six-and-a-half years declared, her words landing like a boxer’s thunderous blow to the head.

Rhetoric and the Creation of Hysteria

In case some of you write on or think about the use of rhetoric in political and legal settings, here is a link for a recent article relating to the use of rhetoric and its impact on immigration debates in the hemisphere. Below is the abstract:

"The tenor of debates leading to the need for the so-called "wall" at our southern border, the frustrations relating to them, and the resulting political opportunism are not limited to the United States. Throughout the Western Hemisphere and Europe, political leaders are using similar rhetoric of the immigrant “other” in order to rally the base, deflect criticism, and distract public opinion. This article examines this political phenomenon in the twenty-first century by comparatively evaluating the cases of the United States, the Dominican Republic, Argentina, Brazil, and Chile—five democratic nations in the Western Hemisphere in which immigration became a major issue and immigrants are routinely scapegoated by those in power. In doing so, this article answers the following questions. First, why has immigration become a major campaign and policy issue in these countries since the turn of the century? Second, how and why have these nation-states responded to the perceived ills of immigration by enacting laws and policies designed to curb it and deal with existing immigrants? Third, how have populist politicians exploited xenophobia for political gain and—in doing so—have fueled ultra-nationalism across the hemisphere? And fourth, what has been the role of the United States (as the region’s hegemon) in promoting and/or
abetting these anti-immigration policies?"

 

Hiring Announcement: Stanford Law School (Teaching Fellow: LLM Program in International Economic Law, Business & Policy)

From an email message that I recently received:

Teaching Fellow, and Lecturer in Law, International Economic Law, Business and Policy (IELBP) - STANFORD LAW SCHOOL

STANFORD LAW SCHOOL seeks to hire a teaching fellow for the LLM Program in International Economic Law, Business & Policy. The appointment is for a two-year position with the possibility of a third year by mutual agreement, beginning In August 2023.

The fellow will assume significant academic, advising and administrative responsibilities.  The principal functions of the teaching fellow are to prepare and lead a colloquium on international business issues for the 15-20 students who enroll in the program annually, to advise students on their curricular choices, and to assist in the admissions and orientation process for the incoming class. 

The fellow will also organize and facilitate informal workshops, outside speakers, and academic and social events, be responsible for day-to-day administrative management of the LLM program, advise and counsel LLM candidates on academic and personal issues, respond to inquiries from prospective LLM applicants, and interact with our faculty in support of the LLM program goals and needs.

The ideal candidate will be an aspiring academic with a strong interest in one or more of the core subject areas spanned by the program (including international trade, international investment law, international dispute resolution and arbitration, international business transactions and international antitrust). It is expected that the responsibilities of the teaching fellow will occupy approximately half of his or her time, with the remaining time available to pursue the fellow’s own research agenda. The fellow will have full access to the research resources of Stanford University and access to faculty workshops.

Candidates for this position are expected to have strong academic records and references. Professional experience in the area is also valuable. This position is ideally intended for an individual who expects to pursue an academic career in the field, although a firm commitment to academia is not mandatory.

Application Deadline: Sunday, March 1, 2023

 

Is Justice Thomas's Jurisprudence Turning the Constitution into a Homicide Pact?

This piece has gotten a lot of attention, so I am moving it to the top today.

My new essay at The Hill explains how the Supreme Court’s Bruen decision has crippled federal, state, and local governments from enacting reasonable gun control statutes.

Here is the gist:

THE HILL

Is the Supreme Court turning the Constitution into a homicide pact?

BY STEVEN LUBET, OPINION CONTRIBUTOR - 11/30/22 8:00 AM ET

It looks as though there will be no end to the fallout from Supreme Court Justice Clarence Thomas’s majority opinion in New York State Rifle & Pistol Association v. Bruen, holding that gun control regulations are “presumptively” unconstitutional unless they are sufficiently “analogous” to a 19th century law. The Court’s requirement of a close historical comparator has turned out to be almost impossible to satisfy, causing lower courts to invalidate or question otherwise reasonable laws prohibiting the obliteration of guns’ serial numbers and firearm possession by convicted felons or domestic abusers.

The Court’s embrace of an exclusively historical method of constitutional review represented an ideological triumph for Justice Thomas, who had been pushing for it in a series of dissenting opinions for years.

Thomas has ultimately succeeded at a long game, but his victory comes at a severe cost. The absence of an historical counterpart does not mean that a particular firearm limitation would have been considered unconstitutional by the framers, but only that they found it unnecessary, if they thought of it at all.

One judge has already ruled that domestic abusers cannot be prohibited from gun possession because there were no such laws in an age when domestic battery was regarded as an unprosecutable family matter. And high-capacity magazines were unknown, and would have been thought impossible, in the era of muzzle-loading muskets.

In 1949, Justice Robert Jackson famously cautioned, “there is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.” Justice Thomas has at last assembled a majority that now appears bent on turning the Second Amendment into a homicide pact.

You can read the entire essay, with much more about Justice Thomas’s historical jurisprudence, at The Hill.

Western New England Law Seeks Dean

This just in:

Western New England University (WNE or the University) seeks nominations and applications for the dean of Western New England School of Law (WNE Law or the Law School). The dean will join an exceptionally collegial community focused on student success and community impact. As the only law school in Western Massachusetts, WNE Law is a school of access and opportunity, offering an array of programs to meet the needs of a diverse student body of full-time, part-time, day, and evening students. The Law School maintains a proud transformational legacy of preparing graduates to enter the legal profession practice- ready and to become advocates and civic leaders within their communities. Building upon the Law School’s traditions of inclusivity, practical training, and community lawyering, the dean will have the opportunity to influence the future of a school where faculty, staff, and students are extraordinarily supportive of one another and committed to making a positive impact on the legal community of Western New England and beyond.

WNE Law serves as an “opportunity law school” in its region. It has a demonstrated history of offering a pathway to the legal profession for students who are traditionally underrepresented in the field, such as first-generation students and working professionals. WNE Law currently enrolls approximately 337 students in its JD, MS, and LLM programs and offers several areas of concentration. Its more than 8,500 living graduates are actively pursuing meaningful careers in all sectors of the law, primarily within Western New England, one of the most welcoming, progressive, and inclusive regions in the country.