The Faculty Lounge

Thompson v. Clark & the "indications of innocence" standard under Section 1983

I wanted to share this excellent op ed piece by BU Professor Jasmine Gonzales Rose about the unfair "indications of innocence" standard used by some Circuits in Sec. 1983 actions and the pending Supreme Court case, Thompson v. Clark, which could change it. https://lnkd.in/dCRg9S-D #policeaccountability #criminaljusticereform #section1983

West Coast Sexuality, Gender & the Law Conference seeks abstracts

First Annual West Coast Sexuality, Gender and the Law Conference

 

Loyola Law School, Los Angeles, California

March 22-23, 2024

 

Call for Papers

Abstract Submission Deadline: December 15, 2023

 

We are pleased to announce the first annual West Coast Sexuality, Gender and the Law Conference on March 22-23 in Los Angeles. Loyola Law School will serve as the conference host.

 

As political and legal attacks against LGBTQ people are once again on the rise, as are other legal and political efforts to  shape and reassert normative views of gender and the family, this Conference seeks to bring together scholars exploring issues of sexuality, gender, and the law. The goal of the Conference is to provide attendees with detailed, constructive feedback on their work in a supportive, collegial environment, and to build community among scholars working on these issues (especially those on the West Coast). Scholars at all levels of seniority are encouraged. We also encourage submissions at different stages of progress, from early drafts (incubators) to more developed forms (a work-in-progress session).

 

The Conference will consist of approximately 4-5 panels over the course of one and a half days. Participants will be expected to attend all panels and to read and be prepared to discuss all assigned papers.

 

There is no conference or registration fee. Participants will be responsible for the costs of their own flight, other transportation, and hotel arrangements (we are working on reserving a block of hotel rooms for the conference). Breakfast, lunch, and refreshments will be provided at the conference.

 

To preserve an intimate and supportive character, we can accommodate only 45 participants, Although we will try to fulfill all requests, if space is limited, some preference will be given to West Coast-based scholars.

 

To apply, please submit an abstract of no more than 500 words, as well as a CV, here by December 15, 2023. Submissions will be vetted by the organizing committee (listed below). Selection will be based on the originality of the abstract as well as its capacity to engage with the other papers in a collaborative dialogue. In addition, priority will be given to scholars based on the West Coast.

 

Participants will be notified of their selection by the beginning of January 2024. Drafts of papers will be due approximately two weeks prior to the Conference.

 

We look forward to your submissions and participation. Questions can be directed to the organizing committee members at [email protected].

 

Thank you!

 

Courtney Cahill, UC Irvine School of Law

Courtney Joslin, UC Davis School of Law

Yvonne (Yvette) Lindgren, UC College of Law San Francisco (visiting)

Kaipo Matsumura, Loyola Law School, Los Angeles

Brian Soucek, UC Davis School of Law

CFP for Law & Rurality Workshop

Workshop will be held virtually Nov. 17th & abstracts are due Aug. 21. More info. here: Download Call for Papers - Law and Rurality Workshop 2023

Call for Papers: Works-in-Progress on Methods of Inquiry on Defending Democracy

Posting on behalf of Prof John Linarelli ...

 

Call for Papers: Works-in-Progress on Methods of Inquiry on Defending Democracy

AALS 2024 Annual Meeting, January 3-6, 2024, Washington DC

Submission Deadline: August 3, 2023

The AALS Scholarship Section is very pleased to issue this call for papers for a Works in Progress session on "Methods of Inquiry on Defending Democracy" for the upcoming AALS 2024 Annual Meeting. This session aims to provide a platform for sharing ongoing research and scholarly work related to the study of democracy and its various aspects. Aligned with the mission of the Scholarship Section, we enthusiastically invite submissions from scholars, researchers, and practitioners interested in exploring innovative methodologies and approaches to investigating the defense of democracy. The Works in Progress session will provide an opportunity for authors to present and discuss their ongoing research. Each presenter will be allocated a specific time slot to share their work and receive feedback from fellow participants.

Topics of interest include, but are not limited to:

1. Qualitative and quantitative methods in the study of the legal institutions of democracy.
2. Comparative analyses of democratic processes.
3. Experimental designs and surveys in the study of legal institutions and behavior.
4. Case studies and historical analysis of law and democratic institutions.
5. Intersectional approaches to democracy and identity politics.
6. Methodological challenges in studying democracy in different contexts.

We welcome interdisciplinary submissions that focus on the intersections between law and political science, history, economics, psychology, sociology, anthropology, and related fields. Empirical, experimental, and theoretical contributions are encouraged.

Submission Guidelines:

• Abstracts should be a maximum of 300 words.
• Include the title of your work, name(s) of the author(s), institutional affiliation(s), and contact information.
• Please indicate whether your submission is at an early stage or near completion.
• One submission per person is permitted.
• Submissions should be sent to Professor John Linarelli, Chair, AALS Scholarship Section, [email protected].

Review Process: All submissions will undergo a peer review process to ensure the quality and relevance of the contributions. Accepted authors will be required to submit a draft paper by November 15, 2023. Discussants will be assigned to read and comment on each paper.

We look forward to your contributions and active participation in this stimulating event. Should you have any questions or require further information, please do not hesitate to contact us.

Baltimore Law Clinic Students Work for Menstrual Equity for Maryland State Prisoners

Congress passed the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act (the "First Step Act") earlier in December,  prior to the government shut-down. The criminal justice bill, supported by President Trump, includes some modest reforms to increase rehabilitation programs in prison and reduce some prison sentences (see a simplified explanation here). One of the lesser-known provisions of the First Step Act is the requirement that federal prisons provide menstrual hygiene products to prisoners. Given that the US has a tremendously high incarceration rate for women (see here), it's surprising -- or maybe not -- that the federal prisons did not have an obligation to make these products available to women.

Prior to the success of the federal legislation, students at the University of Baltimore's Bronfein Family Law Clinic, working under the guidance of Professor Margaret Johnson, had been hard at work trying to persuade the Maryland State Legislature to provide menstrual hygiene products to those incarcerated in state jails and prisons. The student-attorneys wrote about their work. Here is an excerpt:

We and other clinic student attorneys jumped into action because the provision of menstrual products is a basic human right for those who menstruate. The student attorneys, in conjunction with RJI and past residents of Maryland prisons, provided both written and oral testimony to the Maryland General Assembly in February 2018 in support of the proposed bill.

In support of our testimony, we conducted a national survey of the fifty states’ and the District of Columbia’s laws regarding menstrual products for persons in correctional facilities. When we first conducted our study in February 2018, we found that only eighteen states had any provision identifying the issue of providing menstrual products to inmates. Of those eighteen states, eleven states required the facility to provide inmates with these products whereas the other seven states did not specify how inmates would access the products; of those eleven, only two specifically required that those products be provided at no cost. Of the eighteen states, nine states required the state to provide menstrual products only upon demand so they were not freely available. Two states provided unspecified access to menstrual products.

The bill unanimously passed the Maryland House and the Senate and on April 24, 2018, Governor Hogan signed the bill into law. As of October 1, 2018, Maryland correctional facilities are required legally to have a written policy and sufficient supply of free menstrual products.

With this new law, Maryland became a leader in the country with this initiative of making menstrual products available, at no cost, and with unfettered access. This fall, the Clinic student attorneys have filed multiple public information act requests with each Maryland county facility to obtain their policies to ensure compliance with this new law. We have also drafted a model policy to provide to the facilities should they need assistance.

Still over half the US states do not provide access to these products. I'll bet the students at Baltimore have some wisdom they could share!

Manliness

I want to thank Dean Dan Filler for inviting me to blog.

One of my chief scholarly interests is manliness and its relation to law and politics. While the topic may seem exotic to some, I think it is in fact quite the opposite: it is manifest in some of our most pressing public issues. We have a President, for example, who has explicitly invoked the tropes of manliness to justify his authority (and belittle others). So too the policy debates about the Second Amendment are often prompted by mass shootings committed by disturbed males who feel that a resort to gun violence is necessary to redeem their emasculated status.

But manliness is a barbed idea. It can serve diverse constituents. Manliness as a normative theory has arguably been used to underwrite the First Amendment right of speech, the need for civility as a political virtue, and the Civil Rights Movement of the 1960s.

In the next couple of weeks I plan to blog about manliness in the context of law and politics, beginning with my recent book about Justice Oliver Wendell Holmes.

 

Sparer Forum @BrooklynLaw March 22, 2018: Low-Income Workers and Sexual Harassment

Thursday, March 22

4 to 6 p.m.

Reception to follow

Brooklyn Law School

Subotnick Center

250 Joralemon Street

Brooklyn

RSVP online

About the Forum Amid all of the uproar about sexual harassment in the workplace, little attention has been paid to the lives of women who work in low-income jobs. These women (and sometimes men) often suffer from harassment by supervisors and co-workers on a daily basis and face additional intersectional discrimination on the basis of race, national origin, and age. Their claims rarely surface in the courts since attorneys are typically reluctant to represent low-wage earners. This program will consider the legal and policy issues specific to these workers that should be addressed as employers, courts and legislators re-examine their understanding of sexual harassment. The annual forum of the Edward V. Sparer Public Interest Law Fellowship Program will feature Tanya K. Hernández, Archibald R. Murray Professor of Law, Fordham University School of Law, a leading scholar in intersectional discrimination; Elizabeth S. Saylor, Partner, Emery, Celli, Brinckerhoff & Abady LLP; LaDonna Powell, the plaintiff in a major sexual harassment lawsuit involving the security guard industry; and Minna Kotkin, Professor of Law and Director, Employment Law Clinic, Brooklyn Law School. Elizabeth Schneider, Rose L. Hoffer Professor of Law and Director of the Sparer Program, Brooklyn Law School, will moderate. The Edward V. Sparer Fellowship Program Brooklyn Law School alumnus, Professor Edward V. Sparer, was one of the leading poverty lawyers in this country. The Edward V. Sparer Public Interest Law Fellowship Program was established in 1986 to honor him and encourage law students and lawyers to carry on his legacy. For more information about the Sparer Fellowship program, visit www.brooklaw.edu/sparer.

CFP -- Feminist Judgments: Employment Discrimination Cases Rewritten

The U.S. Feminist Judgments Project seeks contributors to rewrite judicial opinions to reflect feminist perspectives, and commentaries on the rewritten opinions, for an edited book collection tentatively titled Feminist Judgments: Employment Discrimination Opinions Rewritten. This edited volume is part of a collaborative project among law professors and other legal specialists to rewrite, from feminist perspectives, key judicial decisions in the United States. The initial volume, Feminist Judgments: Rewritten Opinions of the United States Supreme Court, edited by Kathryn M. Stanchi, Linda L. Berger, and Bridget J. Crawford, was published in 2016 by Cambridge University Press. Cambridge University Press has published the first volume in the series, Feminist Judgments: Rewritten Tax Opinions (2017).  Other approved volumes in the series include family law and reproductive justice. Cambridge University Press welcomes proposals for additional volumes in the series that focus on other areas of law.  

The Employment Discrimination volume will be edited by Ann McGinley and Nicole Porter. We seek prospective authors for a number of employment discrimination opinions, listed below.[1] We have selected the cases with the goal of creating a body of cases that can be largely internally consistent and that ultimately would improve employment discrimination law from feminist perspectives. Opinion authors will be given the freedom to choose how to rewrite their opinions from various feminist perspectives. The volume editors will provide initial guidance on how the rewritten opinions might have improved the outcomes for all women (and some men), regardless of the particular feminist approach taken by the author of the rewritten opinion. We are open to your ideas, and would love to discuss them and our own ideas with you. We are particularly interested in opinions that use intersectional and multidimensional analyses, and that recognize the rich diversity of individuals who are protected by the employment discrimination laws.

Interested prospective contributors should submit a proposal to either: (1) rewrite an opinion (subject to a 10,000 word limit, including footnotes), or (2) comment on a rewritten opinion (4,000 word limit, including footnotes). Unlike the original volume, and because we seek to create a body of consistent opinions, all rewritten opinions should be written as majority opinions of the court, without regard to whether political or practical considerations would have permitted the author to achieve an actual majority at the time of the original opinion. Authors of rewritten opinions will be bound by the law and precedent in effect and supplemental materials available at the time of the original decision. Commentators should explain the original court decision and its context, how the feminist judgment differs from the original judgment, and what difference a feminist judgment might have made. Commentators may also explain how the rewritten opinion would have changed the law, for example, by noting subsequent cases that would not have been decided or would have been decided differently, if the rewritten opinion had been adopted.

Those who are interested in rewriting an opinion or providing commentary should apply no later than February 12, 2018, by e-mailing the following information to Ann McGinley, [email protected] and Nicole Porter, [email protected]:

1. Your CV, your areas of employment discrimination interest or expertise, and why you are interested in and well suited to participate in this project. We are committed to including authors and commentators from diverse backgrounds and encourage applications from authors representing traditionally marginalized groups (for example, gender, race, ethnicity, sexual orientation, or status within the academy). If you feel an aspect of your personal identity is important to your work on this project, please feel free to include that information. 

2. Your top three preferences from the list of proposed cases below, whether you propose to write a commentary or a feminist majority opinion; and

3. Any time constraints and other obligations that may impact your ability to meet the submission deadlines.

The editors will inform selected authors and commentators by February 26, 2018. After we have selected the authors and commentators, and the authors have had an opportunity to begin thinking about their drafts, we plan to host a Feminist Judgments Writing Workshop at the University of Nevada, Las Vegas, Boyd School of Law on April 20 and 21, 2018. All authors, commentators, and members of the Advisory Board are invited and urged to attend. Selection of authors does not depend on their ability or willingness to attend the April workshop. Draft opinions will be due by June 30, 2018. Draft commentaries will be due by August 15, 2018. If review and approval takes longer than expected, we may have to extend these deadlines, as we do not expect authors to begin to draft opinions until after the publisher has accepted the proposal for publication.

See below the fold for the list of proposed cases.

Perspectives on the Judge’s Comments at Larry Nasser’s Sentencing

Once again the headlines bring us subtle ethics questions, this time in judicial ethics.  Carissa Hessick has a very thoughtful discussion over at Prawfsblawg of the issues raised by some of Michigan Judge Rosemarie Aquilina’s comments during Larry Nasser’s sentencing hearing.  As everyone knows, Dr. Nasser pleaded guilty to multiple counts of sexual assault after molesting scores of girls and young women, many of them elite athletes, over the course of many years while pretending to provide them medical treatment.  In particular, there has been widespread debate over the propriety of Judge Aquilina’s remark, made in the middle of the proceedings:

Our Constitution does not allow for cruel and unusual punishment.  If it did, I have to say, I might allow what he did to all of these beautiful souls—these young women in their childhood—I would allow someone or many people to do to him what he did to others.

As Prof. Hessick observes, “[t]his is a remarkable statement by a judge, but this is also a remarkable case.”  She contends that the statement was nevertheless improper, for the reason that it contravenes the judge’s public role and image as a “neutral arbiter” during sentencing.  (She also concludes that current law may offer no remedy for the impropriety other than public criticism, but does not clearly suggest whether she thinks it should.)

Prof. Hessick rejects the notion that the judge’s proper role encompasses expressing “the people’s outrage” at sentencing, arguing that this job is the prosecution’s alone.  She points out, quite correctly, that acting as a voice of public disapprobation is hard to reconcile with the principle of judicial ethics enjoining impartiality in “all duties of judicial office.”  This is an important point, and it makes the issue difficult. But as discussed below, I think she gives the point undue weight and scope.  I discuss why after the jump.

Martin Luther King, Jr. and A Positive Right to Free Labor

This week, I had the honor and pleasure of speaking at the Vermont Law School Celebration of Martin Luther King, Jr.  Preparing my talk gave me the opportunity to think about the civil right’s movement’s advocacy for a positive right to free labor.  As I have discussed in earlier posts, a positive right to free labor is the right to work free of undue coercion, for a fair wage, without discrimination based on immutable characteristics.  In my book, The Forgotten Emancipator: James Mitchell Ashley and the Ideological Origins of Reconstruction, I argue that the Reconstruction Congress established a positive right to free labor with the Thirteenth Amendment and statutes enforcing that amendment.  Today, I want to talk about the labor and civil rights movement’s efforts to promote a positive right to free labor in the Twentieth Century.

After Reconstruction, the southern United States descended into the Jim Crow system marked by racialized violence, the deprivation of civil and political rights, and the exploitation of black labor.  The leading rights movement in the early Twentieth Century was the labor movement.  Labor leaders asserted the right to organize, bargain collectively, and strike.  They also fought for protective legislation such as minimum wage and maximum hours laws.  Millions of workers engaged in strikes and demonstrations to advocate for these rights.  During the 1930s, the New Deal Congress responded, enacting the National Labor Relations Act, which recognized a federal right to organize; the Fair Labor Standards Act, which established a minimum wage and maximum hours; and the Social Security Act, which established an economic safety net that included unemployment insurance for workers. 

These New Deal measures enforced the two prongs for the positive right to free labor.  Belonging to a union empowered workers to bargain for fair wages and improved conditions of work.  To paraphrase Justice Robert Jackson in the case of Pollock v. Williams, belonging to a union gave workers “the power below to redress . . . a harsh overlordship or unwholesome conditions of work,” and combat coercive labor practices.  Jackson’s Pollock opinion interpreted the Reconstruction Era Anti-Peonage Act and articulated a judicially enforceable standard to for determining when employment practices create an unduly coercive involuntary servitude. The FLSA raised the wages of workers who did not belong to unions, also enforcing the second prong of a positive right to free labor. 

The third prong of a positive right to free labor, the right to work free of discrimination, was missing from New Deal measures.  Moreover, domestic and agricultural workers, many of whom were southern blacks, were omitted from New Deal protections. This glaring omission was due to President Franklin Roosevelt’s reliance on segregationist Dixiecrats for his New Deal program. However, at the urging of labor leader and civil rights activist A. Philip Randolph, Roosevelt created a Civil Rights Section in the Department of Justice.  As Risa Goluboff describes in her iconic book, The Lost Promise of Civil Rights, CRS lawyers sought to extend the New Deal promise of a positive right to free labor to black domestic and agricultural workers by enforcing the Anti-Peonage Act against exploitative employers. 

Meanwhile, the labor movement helped to sow the seeds for Dr. King’s civil rights movement. Yes, some unions discriminated on the basis of race, trying to exclude blacks from good jobs.  But others, such as the CIO in the 1930s, fought racism and sought to organize workers of color.    Moreover, Black union activists such as A. Philip Randolph played a leading role in the northern civil rights movement.   Randolph eventually became a mentor of Dr. King. Along with United Auto Workers President Walter Reuther, Randolph helped to organize the 1963 March for Jobs and Freedom, where King ascended to national prominence with his famous “I Have A Dream” speech.  Responding to King’s advocacy, Congress enacted the 1964 Civil Rights Act, which prohibits race and gender discrimination in employment, enforcing the third prong of a positive right to free labor. 

Dr. King is best known for his fight against segregation and for voting rights. Towards the end of his 1963 speech, King uttered the oft-quoted line, “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.” This beautiful line expresses an aspiration towards which our country is still striving.  However, to focus too narrowly on this part of one of King’s speeches is to risk overlooking the truly radical nature of King’s advocacy for economic rights. Protections against race discrimination alone are not sufficient to redress the chronic poverty of people of color in our society, economic disparities which date back to slavery.

King well understood the link between racial discrimination and economic subordination.  In his 1963 speech, King pointed out that blacks were not only “badly crippled by the manacle of segregation and chains of discrimination” but also living “on a lonely island of poverty in the midst of a vast ocean of material prosperity.”  In the last years of his life, King turned his focus to the poverty in northern ghettos and supported the Poor People’s Movement. King ended his life in Memphis, where he marched with striking city sanitation workers. Speaking to those workers the night before he was assassinated, King declared, “in the human rights revolution, if something isn't done, and done in a hurry, to bring the colored peoples of the world out of their long years of poverty, their long years of hurt and neglect, the whole world is doomed.” We should all heed King's call.

Billion Dollar Blind Spot: How the U.S. Tax Code's Small Business Expenditures Impact Women Business Owners

Caroline Bruckner, an Executive in Residence, Department of Accounting and Taxation at the Kogood School of Business (American University), has published a report entitled Billion Dollar Blind Spot: How the U.S. Tax Code's Small Business Expenditures Impact Women Business Owners. It is available for download here.

The major conclusions of the report include:

• Most women business owners are small businesses operating in service industries and are legally organized as something other than a C Corporation.
• Three of the four small business tax expenditures studied are so limited in design that they either explicitly exclude services firms, and by extension, most women-owned firms; or effectively bypass women-owned firms that are not incorporated or are service firms with few capital-intensive equipment investments.
• When women-owned firms can take advantage of tax breaks, they do.
• There is little or no tax research on how women business owners use the tax code.

The report further notes that the tax laws do not openly discriminate against women-owned businesses, but there is still a need for more research and data in this area.  Specifically, the report suggests:

• The Congressional tax-writing committees should hold hearings to consider the impact of Code’s small business tax expenditures on women-owned small businesses.
• The Congressional tax-writing committees should charge the JCT with preparing a formal estimate of the taxpayer cost and distribution by industry of the Code’s small business tax expenditures claimed by women business owners.
• The federal Commission on Evidenced-Based Policy Making should develop assessments and strategies to inform Congress with evidence-based analysis on tax expenditures’ impact on women business owners and other groups.
• The Administration should move quickly to nominate a nonpartisan Director of the Census Bureau, and Congress should prioritize considering this nomination in order to move forward with executing the 2017 Census survey of business ownership as well as the annual survey of entrepreneurs.

Having more information would be helpful for scholars and policy-makers.

USF Building Renamed Because of Anti-Asian Racism of its Namesake

In what may be a first, the University of San Francisco has renamed a residence hall because of the anti-Asian views of its namesake. Last week USF removed the name of James Phelan, a former mayor of San Francisco, U.S. Senator, and USF alumnus.  Phelan was among the leaders of the Japanese exclusion movement that swept California after 1905, and famously ran for reelection to the Senate in 1920 under the slogan, "Keep California White." That has not happened: the matriculating class this year at Phelan’s alma mater is 27.9% white. USF President Paul Fitzgerald, S.J. expressed no desire to scrub Phelan from USF’s history, and sees a continuing relevance in his story: “Phelan used xenophobia to gain political office . . . It’s important that our community recognizes that the temptation to run campaigns built on racism and fear of immigration, which was typical of Phelan’s era, continues to exist around the world today.”

On International Women's Day, Advocacy Groups Launch “Full Citizenship Project for Law Faculty”

This press release from colleagues affiliated with the Legal Writing Institute and Association of Legal Writing Directors:

Professional associations unite to support full institutional citizenship—an effort to correct gender and related disparities among law faculty

The Legal Writing Institute (LWI) and the Association of Legal Writing Directors (ALWD) announce the launch of a new initiative aimed at correcting gender and related disparities among U.S. law faculty.  Organizers chose International Women’s Day (March 8) to launch the “Full Citizenship Project for All Law Faculty” because of the professional status challenges that continue to plague skills-based and academic support law faculty, who are predominantly women.

As law faculty status and salaries decrease, the percentage of women faculty increases. Based on available data, roughly—and only—36 percent of tenured or tenure track faculty are female, whereas 63 percent of clinical faculty and 70 percent of legal writing faculty are female. This disparity is due to faculty teaching in skills-based areas often being denied the opportunity to earn the same security of position and academic freedom that traditional law faculty enjoy. Yet security of position and academic freedom are needed for a robust classroom and innovative teaching in all areas of law.

The Full Citizenship Project kicks off the start of a campaign to raise awareness about the challenges facing many of the many women and men who teach in skills-based positions. “The goal of this project is to gain support among all law school administrators and faculty for our view that no justification exists for subordinating one group of law faculty to another based on the nature of the course, the subject matter, or the teaching method,” said Kim D. Chanbonpin, President of the Legal Writing Institute. “We believe these rights are now necessary more than ever before to ensure that law students and the legal profession benefit from the myriad perspectives and expertise that all faculty bring to the mission of legal education.”

The first step of this project involves gathering signatures from across the country endorsing the Full Citizenship Statement, which has already been adopted by these organizations and by the Society of American Law Teachers Board of Governors. A copy of the Full Citizenship Statement is available here.

We invite all interested parties—both within and beyond the legal academy—to endorse the Statement by signing here. The signature campaign begins on International Women’s Day (March 8) and will end on Equal Pay Day (April 4). Organizers plan to report and present the results of the project to interested organizations, including the American Association of Law Schools, the American Bar Association, and the American Law Deans Association. More information about the Citizenship Project is available on the LWI website.

About LWI and ALWD: The Legal Writing Institute (LWI) is a nonprofit organization dedicated to improving legal communication by supporting the development of teaching and scholarly resources and establishing forums to discuss the study, teaching, and practice of professional legal writing. LWI has nearly 3,000 members representing 38 countries. The Association of Legal Writing Directors (ALWD) is a non-profit professional association of directors of legal reasoning, research, writing, analysis, and advocacy programs from law schools throughout the United States, Canada and Australia. ALWD has more than 300 members representing more than 150 law schools. The mission of ALWD is to pursue activities to help law schools provide excellent legal writing instruction.

For more information, contact:

Kim D. Chanbonpin

President, The Legal Writing Institute

The John Marshall Law School

312-386-2856

[email protected] 

-OR-

Mary Bowman

Associate Professor of Law, and

Director of the Legal Writing Program

Seattle University School of Law

206-979-3301

[email protected]

What Could Stanford Have Been Thinking?

I find myself reluctantly gesturing toward one of the third rails of public discourse—sexual assault.  Substantively, of course, there is very little disagreement:  No one speaks out in favor of sexual assault.  (Jokes about whether the President is an exception can be made in another forum.)  But in the lawyer’s wheelhouse of procedure—especially procedure that influences outcome (which, let’s face it, is just a wordier name for procedure)—there are deeply held and pointedly variant views. 

One such issue came to a head recently.  Stanford University did something that, at least based on what I can glean from the mainstream media, seems incomprehensibly ill-considered.  I’m hoping there’s something the New York Times isn’t reporting that explains things more fully.  (Full disclosure:  I attended Stanford Law School in the early 1980s.  I loved my time there, and remain immeasurably grateful for the outstanding education I was privileged to enjoy.  So far as I know, the events related here don’t involve the Law School, its faculty, or its administration.  The University, however, ought to know better.)

A quick primer:  Because the formality and procedural complexity of the criminal justice system in this country is largely fixed, a certain amount of debate in recent years concerning how to address sexual violence has focused on an alternative remedial system in force in places where a substantial amount of sexual violence occurs—Title IX.  Title IX is part of the Education Amendments of 1972 to the Civil Rights Act, and prohibits discrimination “on the basis of sex” at any educational institution that receives federal funds.  20 U.S.C. § 1681.  Among other things, this means that Title IX applies to any college or university that receives any federal money for any purpose, and that’s most of them.  And though administrative enforcement of Title IX was for many years sparse at best, beginning in 2011 with what is widely known because of its charmingly informal salutation as the “Dear Colleague” Letter, the Office of Civil Rights (“OCR”) in the Obama Department of Education took a series of strong positions that sexual harassment or sexual violence that affects a student’s education—including individualized student-on-student conduct—is discrimination on the basis of sex that violates Title IX.  The OCR further opined that any federally assisted educational institution has an obligation both to try to prevent such conduct and to remediate it if it happens, on pain of losing the federal funding that has become integral to most of their budgets.  (It remains to be seen how this policy will fare under Donald Trump’s and Betsy DeVos’s stewardship.)

The “Dear Colleague” Letter suggested a range of strategies to discourage, determine and remedy violations, but left the details up to the educational institutions.  Very few had devoted anything close to the levels of attention and resources the OCR seemed to expect, and it soon called out a substantial list of colleges and universities, including many elite ones, that it considered out of compliance.  What followed was a national scramble to develop policies and practices consistent with notice and enforcement standards that were in many important respects explicitly and deliberately vague.  (More disclosure:  While I was on the faculty at the University of North Carolina, I served on University committees charged with Title IX compliance and enforcement issues, and as a Title IX hearing officer in disputes concerning sexual harassment and assault.  I have real admiration for UNC’s efforts to meet regulatory standards, and heaven knows we took our duties seriously when we served as hearing officers.  But no, I can’t and won’t discuss any of that.)

Stanford has been one of the universities subject to OCR’s Title IX scrutiny, and there are differences of opinion over how effective its efforts to discourage and remedy sexual violence have been.  Stanford has chosen to put unresolved disputes over whether a student-on-student violation occurred to a three-person hearing panel, with a finding of a violation requiring the unanimous concurrence of all three panelists.  Convening a hearing panel to resolve disputed facts is not unusual, but requiring a unanimous finding of a violation is. To make the process more accessible to the students invoking the hearing process, Stanford also took the unusual step of providing them a choice from a list of knowledgeable local lawyers, apparently at the University’s expense for the first nine hours of service, and at a reduced rate of $200 per hour paid by the student after that.  (Students were also free to choose their own counsel at their own expense.)

Crystal Riggins was one of the “Stanford-sponsored Title IX attorneys” on Stanford’s referral list, and represented exclusively students seeking recognition and remedy of sexual wrongs.  By all reports, Ms. Riggins is an able and experienced lawyer who served the students who chose her with zeal and fidelity.  Stanford nevertheless recently removed her from its referral list because it found her lacking in loyalty—to Stanford. 

Those of you steeped in the lawyer’s duty of loyalty to her client should just have snapped to attention.  Surely you can’t mean what you just said, Bernie.  But at least according to the Times, that seems to be what happened.  Ms. Riggins considered some aspects of Stanford’s hearing process unfair to her clients, particularly its unusual requirement of panel unanimity to find a violation.  This is hardly a fringe position (not that it should have mattered if it were).  She criticized the policy publicly in the New York Times.  (See here and here.) 

Retribution was swift.  Lauren Schoenthaler, Stanford’s Senior Associate Vice Provost for Institutional Equity and Access, promptly wrote Ms. Riggins that her comments were “disappointing” and indicated “a lack of faith in Stanford’s Title IX Process.”  “Given your stated lack of confidence,” Ms. Schoenthaler continued, “it does not make sense for the university to continue to refer our students to you.”  So much for Institutional Equity and Access, I guess.

Crystal Riggins’ response was precisely the one the Rules of Professional Conduct demanded of her:  “As a zealous advocate, my only duty is to the student-parties that I represent.”  Damn right.  See ABA Model Rule of Professional Conduct 5.4(c) (“A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services”).  The ethics rule in California (Cal. R. Prof. Cond. 3-310(F)) is differently worded, but to similar effect.

Let me start by making clear some things that are not wrong with Stanford’s actions.  This is not a First Amendment issue:  Stanford is a private university.  This is not an employment wrong:  Ms. Riggins is not Stanford’s employee.  This doesn’t really meet the requirements of any of the interference torts.  Is it a violation of Title IX?  That’s debatable, but given the change in administration it’s a debate that may never occur, at least not in any formally enforceable context.  I don’t know, of course, but I find myself forced to wonder whether Ms. Riggins would still be on Stanford’s referral list had the recent election come out the other way, so that no change in Education Department policy might have been expected.

The point here is not whether you agree or disagree with Crystal Riggins’ criticisms of Stanford’s Title IX dispute-resolution system.  The point is that Stanford made Ms. Riggins’ services more expensive and less accessible to the students participating in that dispute-resolution system precisely because she criticized the system’s procedural rules, and advocated what she viewed as improvements.  She was punished for doing her job.  Imagine the outcry if a governor had fired a public defender for publicly advocating what she considered fairer rules of criminal procedure than the ones that state had in effect.  Yes, there’s a difference because the defender is a public employee (and required to be part of the criminal justice system by the Sixth Amendment), but don’t dodge the larger point.

The Preamble to the Model Rules of Professional Conduct begins:  “A lawyer, as a member of the legal profession, is . . . a public citizen having special responsibility for the quality of justice.”  It later elaborates:  “As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession.”  I learned that at Stanford.  Stanford seems to have forgotten it.

Perhaps naively, I have always felt that Stanford distinguished itself as one of the truly great modern universities that, while private, fully embraced its public moral duty to lead by open and fearless inquiry into whether its own governance of its awesome intellectual and financial resources exemplified the Right Way to Do Things.   But compare Stanford’s reaction here with the recent report of Yale’s “Committee to Establish Principles on Renaming” University facilities, some of which bear the names of slavery apologists and white supremacists.  Yale’s report was unstintingly open-minded in its confrontation of the difficult questions presented, and courageously self-critical on issues that are every bit as fraught, divisive and publicly contested as these.  Stanford’s gesture is by contrast censorious, closed-minded, mean-spirited, fearful, and small.  Shame.

--Bernie

Elon Law Professor Eric Fink Challenging "Most Powerful Republican" in NC Senate

Fellow Labor & Employment Law Professor Eric Fink has decided to challenge the President Pro Tem of the NC Senate, Phil Berger (R).  Berger is widely regarded in these parts as the chief legislative architect of the massive and regressive rewrite of many NC statutes since the Tea Party wave of 2010.  As a native North Carolinian and North Carolina lawyer, HB2 (the recent statute referred to very misleadingly as the "Bathroom Bill") is but the most recent of a series of extremely troubling legislation in the Tar Heel State.  Much of it thanks to Phil Berger, who was a reasonable and capable small town lawyer in Eden, NC before becoming a professional politician. 

More on Eric's run is here.  Cribbing a bit from the article:

“The fact that Phil Berger is running unopposed, the more I thought about it and talked it over with friends, it struck me as something that was not good,” Fink said during a phone interview from his home on Wednesday morning. “Given my views, the fact is that he’s been a leader for things that have happened in Raleigh that I think are going in a bad direction.”

Fink said he expected a Democratic challenger to take on Berger and was surprised when the primaries came in March and no one had stepped up. With the swift passage of House Bill 2 at the end of March, Fink said things became more urgent.

“That’s just such a strong new example of the kind of measures they have been adopting that I think are just not good,” Fink said. “My goal is to challenge the direction that the Republicans have been moving in and also to put forward an alternative, in broad ideas and concrete real ideas for restoring public schools and making sure everyone in the state is treated with full and equal respect.”

Eric has to get 5000 signatures from voters in the Senate District to get on the ballot as an Independent.

 

How Should We Think About Whether To Donate Our Leftover, Non-Identified Tissue to Research?

Proposed changes to the federal Common Rule that governs most human subjects research would ask patients for the first time to decide whether to allow their non-identified, leftover tissue to be used for research or thrown away. For that choice to be meaningful, the public needs to be aware of the nature, risks, and benefits of biospecimens research, and of what the proposed changes will—and will not—do. In my latest Forbes essay, "No, Donating Your Leftover Tissue To Research Is Not Like Letting Someone Rifle Through Your Phone," I consider the power of analogies and other reflections on a recent New York Times op-ed on these proposed changes by Rebecca Skloot, author of The Immortal Life of Henrietta Lacks.

The Bias in UPL Laws

I was pleased to see Bernie's post on the Lola case; prohibitions against the unauthorized practice of law (UPL) raise a number of provocative issues. Here's another UPL issue that I have been thinking about: Organizations are able to employ large cadres of non-lawyers to do legal work, while individuals cannot. This discrepancy prompts me think about who we protect from the unauthorized practice of law, why we offer those protections, and whether the protections should remain.

Sitting in the Shadow of Tamir Rice

For much of our time on the grand jury, the Tamir Rice case hung over us. There were three grand juries sitting simultaneously during the summer, so we began the summer assuming that there was at any rate a one in three chance that the County Prosecutor would bring the case to us. That the summer would pass without the case being brought seemed unimaginable. Officer Timothy Loehmann shot Tamir Rice on November 22, 2014. He died the next morning. Surely eight or nine months would be plenty of time to investigate and prepare the case.

Actually, two other cases involving allegations of excessive force used by police against African American victims also loomed for us this summer. The first, the trial of Officer Michael Brelo, accused of voluntary manslaughter in the shooting deaths of Timothy Russell and Malissa Williams in late 2012 was already ongoing when our term began. The second, the case of Tanisha Anderson, a 37-year old African American woman who suffered from bipolar disorder and who died in the hands of Cleveland police after her family had called for help because of her disoriented behavior, like the Rice case, had yet to emerge from the County Prosecutor’s office.

The deaths of Timothy Russell and Malissa Williams occurred on November 29, 2012 at the end of a police chase that began in downtown Cleveland and ended in a one-sided shoot-out at a school parking lot in East Cleveland. The chase began after a plain clothes officer, suspecting that Russell was looking to purchase drugs tried to pull him over for a turn signal violation. As he fled the scene, officers heard what they believed to be a gunshot and reported that they had been shot at from Russell’s car. In all likelihood they had heard a backfire from Russell’s 1979 Chevy Malibu, which a witness subsequently stated suffered from frequent backfires. No weapon was found in the car, and none of the pursuing officers saw a gun tossed from the car during the ensuing chase, which involved a total of 62 police cars. A crack pipe was found in the car, which along with Russell’s and Williams’ many prior encounters with the law may explain their flight. At the parking lot, prompted by the perception that Russell had a gun thirteen officers, including Michael Brelo, let loose a volley of 137 gunshots into the car. After all other officers had stopped firing, Brelo jumped onto the hood of Russell’s car and fired an additional fifteen shots at Russell and Williams. The charges against Brelo for voluntary manslaughter and felonious assault related to these last fifteen shots, on the theory that at the point when the remaining officers had stopped shooting it was no longer reasonable for Brelo to continue. Brelo’s attorneys moved to have the case tried by a judge in order to avoid a jury trial. The case was assigned to Judge John O’Donnell.

City leaders were gripped by fear that an acquittal would lead to mass rioting. As a verdict approached, local schools closed their after school programs, and local employers readied themselves to implement emergency plans. We were informed that Judge O’Donnell would give the Court’s administrative judge thirty minutes advanced notice that the verdict was about to be announced (but not an indication of what the verdict would be). We, and presumably other people working at the Justice Center, would then be evacuated. The near hysteria seemed baseless. I had not been concerned about getting home from work if we were sitting on the day that the verdict was announced, and none of the other grand jurors seemed concerned.

In the end, Judge O’Donnell obviated the need for significant evacuation planning by announcing the verdict early on a Saturday morning when the Justice Center was quiet and Cleveland’s downtown streets were more or less empty. He acquitted on all counts. While he acknowledged that several of Brelo’s last fifteen shots could have been fatal, he concluded that given all the prior shots (including those from Brelo’s gun) there was no way to conclude that any of Brelo’s last fifteen shots had killed either Russell or Williams. The Prosecutor had not argued the lesser included offense of attempted manslaughter, so Judge O’Donnell did not have to consider whether or not Brelo could have been guilty of attempt. Perhaps most troubling about the opinion was Judge O’Donnell’s conclusion that Brelo had a reasonable fear of harm at the moment when he abandoned the cover of his zone car and exposed himself first by jumping on the trunk of his car and then by jumping on the hood of Russell’s car.

Cleveland did not burn. The feared riots did not occur. On the whole the protests were peaceful, with a very few instances of protestor behavior leading to criminal charges. Demonstrators that Saturday night were met, however, by police in tight military formation who drove the demonstrators into confined spaces and then, in at least one instance onto a bus pulled up in an alley for a mass arrest. Clearly, the Cleveland Police Department was going to keep the bars and restaurants of East 4^th Street and West 6^th Street, open and operating, and keep the patrons protected from unpleasant chants and protest.

 

            Graffitied Commentary at the Justice Center following the Brelo Decision

The Grand Jury Now and Then (1922): Part 2

My knowledge of the grand jury, the Prosecutor’s office, and criminal justice more broadly in Cuyahoga County in the early 1920s comes primarily from Criminal Justice in Cleveland, a study sponsored by the Cleveland Foundation and published in 1922.  The study, which served as a model for several similar subsequent studies, including the Wickersham Commission Report in 1931, brought together a group of experts under the direction of Harvard Law School’s Dean Roscoe Pound and Professor Felix Frankfurter.  The rather massive tome bears many of the earmarks of early twentieth-century Progressivism.  It has a decidedly reformist goal, to analyze and improve criminal justice from policing to parole with all steps in between.  It begins from the conclusion that there had been a “breakdown of criminal machinery” in Cleveland and the county, and that it must systematically seek out the sources of and solutions to that breakdown.  It reflects many of the prejudices and fixations of the Progressive Movement.  As Frankfurter notes in his introduction, the study was to be “scientific” and empirical grounded in a massive collection (but not, incidentally, original generation) of statistics regarding every aspect of criminal justice.  The study’s organizers assigned the task of interpreting these statistics to disinterested experts drawn from outside of Cleveland to guarantee impartiality.  Further, the study frames criminal justice as an integrated system to be studied as a whole.

The Cleveland Foundation was itself a product of the Progressive era, an attempt by the “leading men” of Cleveland to systematize charitable and other communal efforts.  Its director at the time of the study was Raymond Moley who would later organize FDR’s brain trust before publicly repudiating the New Deal and moving to the political far right.  The reports that make up the study reveal Progressive concerns about disorder in the modern industrial era, political corruption under big city machine politics, and the displacement of men of the better sort in government and the professions.  Its assessment of the Cuyahoga County Prosecutor’s office, for instance, finds the office seriously lacking.  Partly, it attributes the office’s failings to inadequate resources, but it also decries the impact of ethnic block voting on county administration.  Essentially, it complains that there are too many poorly skilled Irishmen, Italians, Jews, and Slavs in the office, who treat their jobs as sinecures, rather than positions of public trust.  The study similarly criticizes the staffing of the county and municipal courts.

Cuyahoga County saw its first female assistant prosecutor before any women sat on its grand juries.  In 1919, Florence Allen became an assistant county prosecutor.  Her time in the office was brief, because the following year she was elected to the county’s Court of Common Pleas, becoming the first woman in U.S. history to be elected to a judicial office.  Allen was a woman of many firsts.  In 1922 she was elected to the Ohio Supreme Court and became the first female state supreme court justice.  With her appointment to the United States Court of Appeals for the Sixth Circuit in 1934, she became the first female Article III judge.  Sometime in the mid-1920s the county hired its first Black assistant prosecutor, Selmo Glenn.  By 1930, Glenn had left the prosecutor’s office for private practice, but in that year Norman S. Minor became an assistant prosecutor.  Minor, for whom Cleveland’s African American bar association is named, would become one of Cleveland’s most revered trial lawyers.

Because jurors were drawn from the rolls of registered voters, no women served on Ohio juries before Ohio women won the vote in 1920.  In 1921, Judge Allen selected Cora Cross as the first female foreperson of a grand jury.  Three additional women sat on that grand jury.

African Americans did not face the same barrier to participation on grand juries as women did prior to 1920, notwithstanding a provision of the Ohio constitution that limited suffrage to white males, a provision that Ohio voters declined to eliminate as late as 1912.  African Americans were on Ohio’s voter rolls and served on its grand juries.  Nevertheless, there is reason to believe that African Americans were not frequent participants in Cuyahoga County grand juries.  The study does not indicate the percentage of grand jurors who were white or African American, presumably because the county kept no such statistics.  Nonetheless, from what it does tell us about the selection there is reason to believe that African Americans were underrepresented on the grand jury.  First, while it offers a spot review rather than a systematic review of juror selection (apparently for grand and petit juries aggregated) by ward and jurisdiction, the review does suggest that the disqualification rate was higher than average in Ward 11, one of the emerging African American neighborhoods.  Additionally, the presiding judge rather than the regular juror selection process selected a substantial number of the grand jurors. The County would call a reasonably small number of potential jurors and seat the grand jury from that pool.  Once the pool ran out, or once seated grand jurors left during the term, which appears to have happened often, the judge would simply fill the gaps with his acquaintances.  The judge would also pick someone to serve as foreman, a procedure that still operates today.  Given the increasing segregation of Cleveland during the 1920s, and the demographics of the County’s court system, it seems likely that most judge-selected grand jurors were white.

The study reveals that there were important differences in how the grand jury functioned in the 1920s from how it works today.  I will turn to those differences and why the study recommended that most of the grand jury’s work be eliminated, soon. 

I would be remiss not to mention that today is the one-year anniversary of the shooting of Tamir Rice.  Rice, a twelve-year old African-American child, had been seen playing with a realistic looking toy gun outside of the Cudell Recreation Center on Cleveland’s West Side.  The person who reported the possibility of an armed man to the police, also told the 911 dispatcher that he thought the person might be a child and that the gun might be a toy.  That dispatcher did not relay those two important pieces of information.  Within two seconds of the police zone car arriving on the scene, Officer Timothy Loehmann exited the car and fired two shots at Tamir.  One of them fatally wounded him.  The Rice case hung over our grand jury for most of the summer, as we sat in expectation that it might be presented to us.  It is now before a grand jury.  While I have more that I want to share about the differences between the modern grand jury and its 1920s ancestor, I will turn next to Tamir Rice.

Grand Jury Days: My Depressing Summer

I want to thank Al for his kind introduction and both Al and Dan for their help in getting me up and running.  A variety of funny things happened on the way to this forum, but I am finally here, late to my own party.

It has been a long time, perhaps almost 50 years, since I last wrote about my summer at the beginning of a new school year.  I do not recall the content of those prior exercises, but I am fairly certain that my effort was half-hearted and the product unremarkable.  This time I am more motivated, and I hope that I have something worth sharing.

From the beginning of May until the end of August, I served on a Cuyahoga County, Ohio grand jury.  We met twice a week from 8:30 to between 4:00 and 5:30.  Our cases ran the gamut of felony charges, with drug offenses probably having the single largest share of the docket, accompanied by a broad array of property and other economic crimes, crimes of violence, and a variety of regulatory crimes ranging from environmental crimes to failure of registered sex offenders to give notice of a change of address.  On a typical day, we heard somewhere between twenty-five and forty cases, depending on the complexity of the cases and the number of cases continued either because laboratory reports or witnesses were unavailable.

I came to the task with a mind uncluttered by much knowledge of criminal law or criminal procedure.  Obviously, I knew something both from law school and from living in the world with my eyes open.  I do not teach either subject, however.  My clerkship exposed me to a variety of criminal law and criminal procedure issues, but that was long ago.  My brief experience in law practice gave me minimal additional exposure in a couple of pro bono matters.  I have written on military justice issues, including what is by today’s standard an incredibly long piece on a Vietnam War era court martial case involving an army dissenter.  I also sidle up to criminal law and policing issues in some of my teaching.  In federal courts, section 1983, Younger abstention, and most notably habeas are in the neighborhood.  In various iterations of teaching national security law I have done some teaching on search and seizure, the intricacies of FISA and the Patriot Act, and, once again, habeas.  On the whole, however, I am an accidental amateur in the field.  Knowing little, there was much for me to learn, and, perhaps, I was more likely not to take the “of course” statements of criminal law and procedure as matters of faith.

I will elaborate in future posts, but the experience was often interesting.  It was more or less invariably depressing.  They did not bring us happy stories (though from time to time, as in cases involving creative vandalism or particularly inept suspects, they brought us funny ones).  I had assumed that I would remember the distinct details of every homicide case, but by summer’s end we had seen enough death that I am not sure that I can recall all of the homicides in precise detail.  Other instances of shocking cruelty and disregard for others left our collective spirits sapped.  The police often presented domestic violence cases with photographs of the damage done.  The hardest cases involved the sexual exploitation and rape of children, especially those cases where the suspect was a close family member.

After I was selected to sit, I told a number of friends who are current or former public defenders or prosecutors how I would be spending my summer.  One of the public defenders told me that she was looking forward to hearing tales of prosecutorial misconduct.  Happily, I will disappoint her.  Though I have strong criticisms of criminal justice in Cleveland and Cuyahoga County, I did not witness rogue prosecutors misapplying the law.  Indeed, I liked the prosecutors and admired their professionalism.  The problems with criminal justice in Cuyahoga County, and I assume elsewhere in the U.S., are more systemic and thus more intractable.  They are of our collective making, not the result of misbehaving prosecutors.

What we do in the name of law is also depressing.  Most important, many of Ohio’s choices regarding what to treat as a felony are troubling.  I will return to this subject in a subsequent post.  Finally, while I came away with the belief that everyone involved in the grand jury process seemed to be working hard and in good faith in an effort to follow the dictates of the law and to do our jobs well, I grew increasingly disquieted by our output.  As stated above, I could not point to prosecutorial misconduct.  I was impressed by many of the police who presented cases to us, and seldom did I, or my fellow grand jurors, mistrust their account of events, though we sometimes thought their account incomplete and inadequate.  My fellow grand jurors clearly understood their task and took it seriously.  We were not ham-sandwich-indicting pushovers.  We asked questions, including skeptical, challenging ones.  We sent matters back for additional information and better explanations from the police.  We occasionally called witnesses, and we were not shy about no-billing.  Nevertheless, though I think we did our job well, I feel uneasy.  Then, after our term was up, I read Ta-Nehisi Coates’ article in the Atlantic about Daniel Patrick Moynihan, the Black family, and mass incarceration and the bottom fell out.

Over the next few weeks I will add a number of posts about my grand jury experience.  I wrestled for a while with the question of whether or not I should post on the subject.  As a novice in the field of criminal justice, I am certain that those who are familiar with the field will find some of my observations either naïve, or commonplace.  Nevertheless, when I did some exploring to see what has been written about grand juries, I discovered that because of rules of grand jury secrecy it is not much discussed.  I am hopeful that without violating the rules of grand jury secrecy, I can shed some light on how the institution operates.  The Faculty Lounge Visitor’s Guide, which instructs new bloggers, invokes Ralph Elison’s “injunction to African American newspaper editors to write as if the sheriff of their town is reading them.”  I am especially mindful of that advice.  One of my senior colleagues warned me that before my time a faculty member who served on the county grand jury could not curb his impulse to share tales of the grand jury with his students or any available listener (he also shared faculty salary information with those students).  At some point that faculty member found it expedient to leave town a couple of steps ahead of the County Sheriff who wanted to talk with him.  I have seen the inside of the Cuyahoga County Jail.  I am intent on remaining a non-resident.  I will therefore not give the details of any case that we heard, nor identify suspects or victims.  I will write about general observations.  I will not name my fellow grand jurors, or the prosecutors that we worked with.  The County Jail is overcrowded enough without me.

Interpreting Fiorina's Comments on Vaccination Law

I've started writing for Forbes as a regular contributor. My first piece, Carly Fiorina Says Her Views On Vaccines Are Unremarkable; For Better Or Worse, She's Right, analyzes GOP presidential candidate Carly Fiorina's recent ad hoc remarks on the relative rights of parents and schools with respect to vaccinations and to some of the hyperbolic reactions to those remarks. Fiorina's remarks are ambiguous, in ways that I discuss. But, as the title of the article suggests, and for better or worse, I think that the best interpretation of them places her stance squarely in the mainstream of current U.S. vaccination law. I end with a call for minimally charitable interpretations of others' views, especially on contentious issues like vaccination.