The Faculty Lounge

The Beach Boys

Law School Hiring In The Time of Corona...

Fans of great Latin American novels would smile at the title above, or perhaps, much like my many other musings, few ever seem to understand them. A function of my brilliance, or more likely, pedestrian thinking? I bet I can guess what you are thinking right now. In any event, on to more challenging questions. During these difficult times, I have had the privilege to interview candidates, assist interviewees with mock interviews, and in a not-so-law related setting, been an interviewee myself. In each instance, I have grown to appreciate the difficulty of making sound hiring decisions based on classic criteria, but in the time of Corona, I never expected other matters would become so significant. Some of these included the lighting in the room, camera angles, etc.... Not sure how this cuts for candidates, but without question, these are trying times for institutions trying to make important decisions.  I also wonder how such challenges may level the playing field for women and other non-traditional candidates--we are all the same height during a Zoom call, for instance. This fact alone I suspect is more relevant, especially on gender, than many may realize--this screams for research from respected colleagues like Professor Meera Deo. Professor Deo, let's chat?

These and related issues make me think of recent dean hires like Beto Juarez at Nova.  I wonder how much influence technology played in that search? Personally, I think Beto is a wonderful pick, and Nova hit a homerun. He is experienced, a kind person, and an impressive leader. The fact he also looks like the lead in a Wall Street film, I suspect didn't hurt. But other questions come to mind, especially earlier in the year when the fear over the pandemic, rightly or wrongly, seemed to be heightened. Were some searches conducted completely via Zoom? I hope not. If any of you have such an experience, I would love to learn of it. On a related front, how much will the finalists at Colorado dean search benefit from or will be challenged by technology? 

If that is tough, how about the challenges faced by new teaching candidates? Will there be any impact on diversity? In other words, will faculty, which are historically not very diverse, reach out to close friends and mentors? If so, how many will promote diverse candidates? Were LLM programs focusing on law teaching affected by the pandemic? If so, how? I know at least a few schools reached out to me concerning the Olivas Faculty Recruitment Initiative. I was thrilled to suggest a few names to each. Much to my surprise, it was more challenging than I expected to convince mentees ( I call them FRI Fellows) to at times apply for positions--ah, the blissfulness of youth.  

So for now, I wonder if the most appropriate advice to candidates in these challenging times would be to follow Gabriel Garcia Marquez's advice and “Tell him yes. Even if you are dying of fear, even if you are sorry later, because whatever you do, you will be sorry all the rest of your life if you say no.” Or should hiring institutions, be cautious of Zoom and perhaps, also like Marquez, say to themselves "“Today, when I saw you, I realized that what is between us is nothing more than an illusion.”

 

Supreme Ambition, or Absence Thereof, and ACB

Writing on the Volokh Conspiracy, Josh Blackman expressed his admiration for Judge Amy Coney Barrett's modesty, in particular her acknowledgement that "I am not the only person who could do this job, but I was asked. And it would be difficult for anyone. So why should I say someone else should do the difficulty if the difficulty is the only reason to say no." To Blackman, Judge Coney Barrett's response stands in commendable contrast to others whose ambition "fermented through a lifetime of social-climbing" and who "scratched and clawed for years to put themselves in a position to be nominated."

Perhaps Josh is right that Judge Coney Barrett "didn't have to audition." I do not know enough about her, or the Trump administration's process, to agree or disagree. But then Blackman says this, which seems completely unsupportable:

On the Roberts Court today, the Justices who wanted the job the most are more likely to bend and sway in response to social pressures. The Justices who wanted it the least are most likely to stand resolute.

How could Blackman possibly know which justices wanted the job more or less? And why would earlier ambition make any difference to a justice who already has life tenure? What does it mean to "stand resolute," especially if that involves sticking to previous positions rather than being open minded? And finally, how could anyone distinguish between bending to social pressures and recognizing changed circumstances? Presidents, after all, have in recent years made SCOTUS appointments for political reasons, so standing "resolute" would not seem to be much a virtue in a jurist.

It does appear obvious that Blackman had Chief Justice Roberts in mind as the justice most likely to "bend and sway," as well as the one whose ambition, however modestly expressed, manifested itself early on. As we know from Joan Biskupic's recent biography, the teenage John Roberts applied to a private high school, saying "I won't be content to get a good job by getting a good education. I want to get the best job by getting the best education." And of course, conservatives have angrily reviled Roberts for voting independently on the Obamacare and Census cases.

But is ambition really the explanation for Roberts's independence (or swaying, as Blackman would put it)? Brett Kavanaugh certainly seems to have been every bit as ambitious as Roberts, judging from his confirmation hearing. He repeatedly volunteered his youthful achievements, unbidden by the questioning. He told Senator Leahy:

I busted my butt in academics. I always tried to do the best I could. As I recall, I finished one in the class, first in -- you know -- freshman and junior year, right at the top. . . . I was captain of the varsity basketball team. I was wide receiver and defensive back on the football team. I ran track in the spring of '82 to try o get faster. I did my service projects at the school.

And in answer to Senator Whitehouse:

I was at the top of my class academically, busted my butt in school. Captain of the varsity basketball team. Got in Yale College . . . got into Yale Law School. Worked my tail off.

And to Senator Hirono:

I got into Yale Law School. That's the number one law school in the country. I had no connections there. I got there by busting my tail in college.

Justice Kavanaugh may be resolute by Blackman's metric, but it would be hard to call him modest.

And what of Justice Gorsuch? He seems to have been equally as ambitious as Justice Kavanaugh, and yet he might be said to have swayed "in response to social pressure" by voting to extend Title VII protection to gay and transgender people.

It is always tempting to see multiple virtues in those whom we admire, but the ambition versus resoluteness test does not seem to hold up. More could be said about the real or imagined ambitions of Justices Thomas, Alito, Kagan, Breyer, and Sotomayor, but I think that is enough for now.

CFP: 2021 Detroit Mercy Law Review Symposium Pandemic: From Disparity to Equity

The Detroit Mercy Law Review at the University of Detroit Mercy School of Law has extended the deadline for proposals for its 105th annual symposium, which will be held March 5, 2021.  This year’s topic is Pandemic: From Disparity to Equity, focusing on disparities arising from the current COVID-19 pandemic and working from those toward an equitable new normal.

Possible topics include, but are not limited to, the role of law and regulation in light of the pandemic’s disparate impacts across race and class; the impact of pre-pandemic healthcare inequities in underserved communities; effects of the pandemic on education; managing prison release programs during pandemic; housing policy and eviction protections during and after pandemic; legal flexibility and fundamental rights within pandemic “hotspots”; and any other topic related to the law’s response to COVID-19’s effects across race and class.  Quality articles based on presentations made at the Symposium will be published in our annual Symposium edition.

Current plans call for the Symposium to take place entirely online.  In lieu of our usual reimbursement for travel expenses, presenters will be provided a $500 honorarium.

Submission Procedure
Proposals should be approximately 250–500 words, double-spaced, and must be submitted by e-mail no later than 5 p.m. EDT October 31, 2020. Please submit proposals by e-mail to Marta Mazur, Symposium Director, at lawreview@udmercy.edu. In your e-mail, please indicate whether your proposal is for a presentation only or if you plan to submit an article based on your presentation.

Acceptances will be e-mailed on or before November 2, 2020. Preference for presentation times will be given to those also planning to submit an article for publication. Articles will be due to the Law Review on Friday, March 12, 2021.

Colorado Law Announces Search Committee for New Dean

The members include Professors Frederic Bloom,Violeta Chapin, Suzette Malveaux, Helen Norton, Scott Skinner-Thompson, and Harry Surden, among others.  Details here.

The Tracks of My Tears

"The Tracks of My Tears" was written by Smokey Robinson and two other members of The Miracles, who released it in 1965. It has been covered many times since then, almost always with the same gentle opening instrumental line -- but see the Aretha Franklin version below.

CFP: Symposium on the COVID Care Crisis and its Implications for Legal Academia

The COVID care crisis and other multiplying effects of related shutdowns, embedded inequalities, and health and safety risks are likely disproportionately impacting people with caregiving responsibilities in academia. The division that separates work from home has collapsed, threatening the very notion of “work-life balance.” Increasingly, employers have begun to reshape what used to be the private domain of family and home through “work at home” or in-person presence requirements that disregard the ways in which care work happens. At the same time, schools and other institutions providing support to families and marginalized groups are temporarily closed, permanently shutting down, or buckling in response to state or local mandates as well as financial and personnel pressures.

In the months since the start of the COVID-19 pandemic, women’s scholarly output and publications have dropped in various disciplines, while service and care responsibilities that fall disproportionately on junior or marginalized faculty and staff have likely increased. Compounding these pressures, Black faculty and faculty of color more generally have also been coping with the emotional effects of the police killings of George Floyd and others, at the same time that COVID-19’s health effects are concentrating along lines of race and inequality in these communities specifically. All of these factors threaten the output, visibility, status and participation of women and other primary caregiving faculty and staff in legal academia.

Left unaddressed, these disparities also have the potential to alter the landscape of legal academia and further marginalize women and the perspectives they bring to legal scholarship, education, and public dialogue. This symposium seeks to raise awareness of the current COVID care crisis and its impacts on academia, and to begin a dialogue on concrete and innovative responses to this crisis.

Symposium details

There will be no registration fee for presenters or other participants in order to maximize engagement and inclusivity. Panels will be grouped by theme and topic. The organizers are exploring publication opportunities with various law journals, with expected publication in late 2021. 

Abstract deadline

Abstracts must be submitted to Sarika Laljie by October 30, 2020. The authors of the selected papers will be notified by November 10, 2020.

Essay deadline

Essays for participating speakers are due by December 20, 2020.

Conference date

The conference will take place online on Friday, January 15, 2021.

Organizers

The symposium is organized by Prof. Shruti Rana (IU Bloomington), Prof. Meera Deo (TJSL) and Prof. Cyra Akila Choudhury (FIU) and is co-sponsored by the Hamilton Lugar School of Global and International Studies, the Law School Survey of Student Experience, and the Critical Legal Academics and Scholars Collective. 

More info is available here.

Drake Seeks Visitor

From an email message I received earlier today:

Drake University Law School invites applications for a temporary appointment as Visiting Assistant/Associate/Professor of Law, to teach a small section of Civil Procedure (II) in a remote format during Spring Semester 2021. Civil Procedure (II) is a three-credit class for incoming first-year students, and should cover the phases of a civil lawsuit, including pleading by the parties, joinder of parties and claims, discovery and preparation for trial, devices for resolving disputes without trial, burdens of proof, instructions, verdicts, and post-trial motions. Visitors should also be available for office hours on a weekly basis. Drake is an equal opportunity employer dedicated to workforce diversity. We strongly encourage women, people of color, and others who would enrich the diversity of our academic community to apply. For more information on the law school and its programs, see www.drake.edu/law. Interested candidates should submit a letter of interest, CV, and a list of at least three references via email to Associate Dean Andrew W. Jurs, andrew.jurs@drake.edu, prior to October 23 for the initial review of candidates.

Citizens and the Police, 1977

An oped in the LATimes, written by retired public defender James Bendat (one of my oldest friends in the world):

Further Thoughts on BDS Pledges and Conflicts of Interest, Part Two

In Part One of this series, here, I explained that certain pledges to boycott Israeli academic institutions may create a disqualifying conflict of interest for appointment to a university deanship, using as an example the case of Professor Ilana Feldman at The George Washington University.

Professor Feldman’s pledge is further disabling for another, related reason. A dean’s public commitment to non-collaboration with Israeli academic institutions would necessarily discourage faculty, and especially students, from even proposing such a project, understandably expecting that it would be rejected. The Elliott School offers study-abroad programs in Chile, England, France, and Spain, each in conjunction with a local university. These programs are touted as “giving students direct access to high-level academics at some of the best universities in the world.” Feldman’s boycott pledge, however, would prevent her from even considering an expansion of the programs to Israel.

The proscription would presumably include Bar Ilan University, near Tel Aviv, which is the only university in the world that combines “cutting-edge scientific research with education steeped in Jewish values and social responsibility.” Some young observant Christians and Jews might have very important personal reasons for studying at Bar Ilan, or elsewhere in Israel, yet they would have to think twice before enrolling, or even applying, at the Elliott School under Feldman’s deanship.

The ultimate problem with a pledge of non-collaboration is that it goes well beyond a statement of opinion or the expression of a political position. Rather, it is a determined commitment to a particular course of action that, in Feldman’s case, would conflict with the requirements of the deanship of a school of international affairs.

Not everyone agrees with this analysis. Writing on the AAUP’s Academe Blog, John Wilson said of the deanship decision at GWU, “there was one reason: Feldman supports the Boycott, Divest, Sanctions (BDS) movement against the Israeli government.” He later amplified his view in a comment on The Faculty Lounge:

A pledge is not a speech act. It sits there and does nothing unless it is implemented. A pledge is a statement of belief with a slightly different verb. “We must all boycott Israel” and “I pledge to boycott Israel” are identical statements. Both might be troubling if implemented, and both are mere beliefs without implementation.

CFP: EXTENDED DEADLINE--Disruption in the Legal Sector

 PLEASE NOTE: The date for submission of proposals has been extended to November 1. 

 

 

CALL FOR PROPOSALS

 

Transnational Conference on the Future of Legal Education, the Practice of Law, and the Judiciary

 

 with a focus on

 

Disruption in the Legal Sector: How Technology Can Enable Educators, Students, Lawyers, and Judges Around the Globe to Stabilize the Sector and Provide Access to Justice

 

February 9-10, 16-17, 2021

Held on Zoom

 

Proposal Submission Deadline:  October 15, 2020

Notification of Proposal Acceptance:  November 12, 2020

Draft of Article/Presentation Due:  January 15, 2021

Final Article Due:  March 1, 2021

 

The Institute for Global Understanding of Rule of Law at Bahçeşehir Üniversitesi (IGUL), in partnership with Atlanta’s John Marshall Law School and Mitchell Hamline School of Law, is hosting an international conference of legal educators, law students, lawyers, and judges.  This conference is intended to bring together law students, law faculty, lawyers, and judges from around the world to discuss the future of legal education, the practice of law, and the judicial system.  The Conference will be conducted virtually via Zoom.

 

Slightly more than a decade ago, BahçeşehirÜniversitesi hosted the Law 2001: A Global Legal Odyssey conference which focused on “assuring quality legal education in the face of similarities, differences and rapid change.”  Most recently IGUL hosted Legal Education and Lawyering in the Age of the “New Normal”’.  Disruption in the Legal Sector is a continuation of the dialogue begun in 2001 and a deeper exploration of the “New Normal”.  It is envisioned that  Disruption in the Legal Sector will bring together law faculty and law students from around the globe to explore the best pedagogies, curricula, and technology for preparing lawyers to practice in both global and domestic legal markets; lawyers from around the globe to explore how technology is impacting the practice of law; and judges from around the globe to explore how technology is impacting court systems, judges and access to justice.

 

For several decades technology has been impacting the legal sector.  The changes technology brought to the legal sector had been slow and methodical with individuals opting in to the use of technology.  But, the impact of the global pandemic has changed the world we live in, including the legal sector from law school classroom to the courtroom.  The global pandemic has forced the legal sector to embrace technologies that in the past would never have been considered, creating disruptions that are both positive and negative.  This conference will explore those disruptions and the future they bring.

 

Guiding Questions:

Topics for the conference may include, but are not confined to, the following:

 

●             Instructional design: How to design courses (and classes) for synchronous instruction, both online and in-person, and asynchronous instruction.  How or why to design hybrid courses that combine the best of synchronous and asynchronous instruction.

 

 

 

●​How have judicial systems adapted to the global pandemic?  What are best practices for conducting trials and other judicial proceedings during the pandemic?  What longer-term impact will the COVID experience have on judicial systems? 

●​How is technology changing alternative dispute resolution?  Mediation, arbitration, negotiation. 

●​Has the use of technology increased the access to justice in courts or through alternative dispute resolution mechanisms?

●​How is technology changing the practice of law?

●​Comparative efficacy:  How should we be assessing the efficacy of technology-assisted teaching methods?  What data do we have about comparative efficacy?

●             How to develop community when legal education or the law firm has moved to an online platform.

●             Best practices for engaging students in the online classroom.

●             Teaching professionalism and ethics.  Does online instruction pose special problems or entail specific disadvantages (or advantages) for effective inculcation of professional and ethical roles and rules?  What is the role of netiquette in legal education?  

●             Does minimum competency to practice law include minimum skill levels in the use of technology?  What technology must students have mastered or should students have been trained on prior to graduation?  How should legal education incorporate technology training into the law school curriculum?

●             How to teach skills courses, clinics, and other experiential courses online.  What do we know about the effectiveness of online, versus in person, experiential instruction?

●             Faculty Development:  What is the responsibility of the law school to train its law faculty in the use of technology?  What is the responsibility of law faculty to maintain a minimum competency in the use of technology?

●            Technology and the underserved: What is the impact of the use of technology on training law students from underserved communities or who are non-traditional students, on training lawyers to serve underserved communities, and on the access tolegal education and to justice?  What is the impact of technology, and online teaching methodologies, on the creation of equitable and inclusive learning environments?

●​What special problems or opportunities do online technologies present regarding individuals with disabilities, both in the educational setting (students and teachers) and in the practice context (lawyers and clients)?

●  ​Admission to the Practice of Law:  How should competency to practice be measured?  Does a diploma privilege protect the public?  Can a bar exam be administered remotely online?  Do traditional bar exam practices impose inappropriate barriers on traditionally underrepresented groups?

●  ​Security of systems:  Best practices in the fight against hackers in legal education, legal practice, and judicial proceedings.  Are current practices and technologies adequately protecting confidentiality and lawyer-client communications? 

●​What impact does the adoption of online technologies in court proceedings have on vulnerable and underrepresented groups?  

●  ​What new or different opportunities does the current disruption provide for building and sustaining communities of academics and scholarsin the global setting?

●  ​What impact has Artificial Intelligence had on the legal profession, the practice of law, and access to justice?

●  ​What is the future of the foreign student studying law?  What is the future of LLM programs designed to prepare foreign lawyers for admission to a state bar in the US?  What is the future of foreign students who seek to earn their PhD at an institutionoutside of their home country?

●  ​What is the future of teaching U.S. law courses in foreign institutions?  And, the future of teaching foreign law in U.S. law schools?

 

 

 

 

 

 

Target Audience:

The target audience for this conference includes: legal scholars, legal educators, lawyers, judges, the legal community, law students, others interested in legal education and the law, and the international legal community.

 

Languages:

The conference will be held in English and Turkish with simultaneous translation.

 

 

Submission Procedure:

Email proposals as a Word or PDF document to the Conference Committee via Professor Kathleen Burch at kburch@johnmarshall.edu by midnight on October 15, 2020.

 

Proposals must include:

1.      Presenter(s) name, contact information, and university affiliation.

2.     Title of the proposed presentation.

3.     A brief (one or two paragraph) description of the presentation.

4.     A short summary (3-5 sentences) of the presentation for the conference program.

5.    A brief statement of the presenter’s expertise on the topic.

 

An individual may submit more than one proposal.  Proposals can be for an individual presentation or a panel presentation.  Individual proposals on similar topics may be combined into a panel.

 

Notification:

All individuals who submit a proposal will be notified by November 12, 2020, if their proposal has been accepted.

 

Draft of Article/Presentation:

In order to insure that our moderators, commentators, and translators are prepared, all presenters are required to submit a draft of their article or a summary of their presentation no later than January 15, 2021.

  

Publication Opportunity:

Presenters will have an opportunity to publish their article in The John Marshall Law Journal.  Articles must be finalized and submitted by midnight March 1, 2021.

 

Proposals not accepted for presentation at the Conference and responses to presenters may be considered for publication.  Acceptance for publication of any paper, proposal, or response to a presenter is at the sole discretion of The John Marshall Law Journal, its Faculty Advisor, and the Conference Committee.  Articles will be peer reviewed.  Articles and Responses must be submitted by midnight March 1, 2021.

Debates over diversity training....

Legal academic organizations have not shied away from diversity training, especially in the context of addressing legal academic hiring. While at the federal level, President Trump recently ordered a halt to what he described as "divisive diversity training." In fact, the president recently signed an executive order that specifically stopped agencies from participating in such training. The executive order forbade vendors from teaching critical race theory, white privilege and unconscious bias. The order states that such training that “promotes race or sex-stereotyping or scapegoating similarly undermines efficiency in federal contracting.” As a critical race scholar myself, I suspect neither the drafters of the executive order nor the President himself truly understand what critical race theory means because it is actually rare to have vendors or non-academics even address central themes of the theory. 

Such is not the case in the legal academy. Indeed, the Society of American Law Teachers (SALT) is hosting a virtual series "featuring law school teachers sharing their expertise on how to educate the next generation of lawyers, support students of color and dismantle structural inequality and racism in the United States." The next such meeting on October 16, 2020, at 3:00 pm, and specifically addresses "Anti-Racist Hiring Practices." The meeting features three prominent law school deans, and requires attendees to register at  https://bit.ly/307SZ6M

While I suspect few that agree with the President's executive order above would find academic gatherings such as SALT's upcoming event of value, I wonder how much those that oppose diversity training would even listen to opposing views. It strikes me that in this time of political intolerance and open hostility, the last thing we should do is reject opposing views out of hand, such as the executive order attempts to accomplish. I for one hope to attend the SALT event mentioned above. Perhaps readers of this post will too. I would also personally welcome learning of presentations that are hostile to such training. Feel free to post such conferences in the comments below.

 

 

Proud Mary

"Proud Mary" was written by John Fogarty in 1968, shortly after he was discharged from the National Guard, and released by Creedence Clearwater Revival in 1969. It was recorded only two years later by Ike & Tina Turner, and has perhaps become more associated with Tina Turner -- who often performs it as a duet with other artists -- than with CCR.

Ken Randall Named Dean of George Mason Law

George Mason University has announced that Ken Randall, the former dean of the University of Alabama School of Law (that is to say, my old boss), will be the new dean of its law school.  Randall, who founded the distance education start-up iLaw, takes over after a phenomenally successful run by Dean Henry Butler.  I'll skip the commentary about Ken's own phenomenal run at Alabama - I'm biased and, anyway, you can read about it in the link.

Reactions to Judge Barrett's Nomination

One would be challenged to find an academic without an opinion on Judge Amy Coney Barrett's impending nomination to replace Justice Ruth Bader Ginsburg. On Saturday morning Politico Magazine featured the views from several leading constitutionalists on the pick. As one might imagine, the range of views was great.

Dean Tomiko Brown-Nagin observed, "If confirmed, Judge Amy Coney Barrett will consolidate the conservative majority and shift the balance of power on the court decidedly to the right."

Professor Saikrishna Prakash wrote, "Judge Amy Coney Barrett has all the qualities of a first-class Supreme Court justice: intellect, wisdom, temperament and restraint."

As one might imagine, those leaning right would champion the pick, and several did: Ilya Shapiro noted, "Judge Amy Coney Barrett has displayed a seriousness of purpose and is dedicated to finding and applying the Constitution’s original public meaning. Her thoughtful opinions and academic writings show a willingness to hold government officials’ feet to the constitutional fire. But for those on the left, the nomination was reason for concern as Chancellor Howard Gillman observed, With the appointment of Amy Coney Barrett — an undoubtedly qualified jurist with rock-solid conservative credentials — the court will revert to the role it performed for most of our history, with an ironclad majority of conservative justices who have dedicated their careers to taking back the courts....In short, once again, the court will be a conservative bulwark against democratic forces."

I had the great honor to be included in this group of luminaries, and finished my assessment with the following, "As I write these words, I am watching my 10-year-old on her computer studying American history, and I can’t help but wonder how much my Bella will be inspired by our recently passed icon and how much she will learn of the battles the “Notorious RBG” fought for her. How different equality may look like in a world led by those who appear to reject it — the epitome of being selectively principled."

Southwestern Law Seeks Dean & CEO

This just in:

Southwestern Law School in Los Angeles, California Seeks Dean and Chief Executive Officer

Southwestern is a private, non-profit, secular, independent law school. Inspired by a sense of social responsibility, Southwestern was founded in 1911 with a mission to provide access to legal education for those historically underrepresented persons who were otherwise excluded from law school. Ever since, Southwestern has earned a reputation for public service, innovative programming, and trailblazing alumni. Our community is intellectually vibrant, with faculty who are committed to teaching and who are highly productive scholars and leaders on the local, state, and national levels.

Our beautiful mid-city campus provides the ideal setting for law study, fostering an emphasis on community, diversity, and engagement. Situated at the heart of the entertainment industry, Southwestern is home to the nationally acclaimed Donald E. Biederman Entertainment and Media Law Institute. Our emphasis on experiential learning through the Institute, skills courses, and robust clinical and externship opportunities produces practice-ready graduates. Our alumni number 14,000 strong across the country and are inspired advocates who are versatile and entrepreneurial.

From its first day, Southwestern actively encouraged the enrollment of women and people of color. Our first graduate was Betty Trier Berry, who became the first woman in the United States to serve in a public defender's office—before women were permitted to vote in federal elections.

Further Thoughts on BDS Pledges and Conflicts of Interest, Part One

Professor Ilana Feldman probably did not anticipate creating a national controversy when she accepted the interim deanship of the Elliott School of International Relations at The George Washington University. Her outspoken support for the BDS movement against Israel (Boycott, Divestment, Sanctions), however, drew immediate protests, leading the university provost to announce that Feldman would not be a candidate for the permanent position.

Most of the opposition to Professor Feldman was premised on her political views, arguing for example, that “her record of dismissing terrorism, advocating for academic boycotts, and delegitimizing the State of Israel” was indicative “political bias.” Others objected that “The BDS movement does not support a two-state solution, seeks to exclude Israel and the Israeli people from the academic, economic and cultural life from the rest of the world, and undermines direct peace negotiations between the two parties.” These protests, however, squarely raised the issue of Professor Feldman’s own academic freedom, as they called for her disqualification on the basis of her protected speech and political associations. One of Feldman’s defenders called the opposition “the new McCarthyism on campus.”

In this essay, I will explain the application of viewpoint-neutral conflict of interest principles to the Feldman case, and thus more broadly to the appointment of university administrators. Although it is generally wrong and unacceptable to impose politically-based disadvantages on faculty or administrators, who should have the freedom to express their opinions without fear of consequences, there can also be situations in which an individual has voluntarily undertaken commitments that are incompatible with a deanship. Thus, it is the irreconcilability of the individual’s conflicting obligations, without regard to their substance or content, that may be disqualifying for a position of trust.

Teaching the Breonna Taylor Grand Jury Announcement in Real Time

"Justice failed us today. It failed us in a way that's been failing us for generations."

-Kentucky State Rep. Charles Booker

The Breonna Taylor grand jury announcement started immediately before my criminal adjudication class this past Wednesday, and while I knew the announcement would be disappointing and painful, I also knew I couldn’t ignore it. Rather than moving forward with class as usual, I decided to livestream the announcement of the grand jury’s decision as well as the Kentucky State Attorney General’s press conference with my class.

I was shocked and angered: By the grand jury’s decision to indict only one of the LMPD officers, Brett Hankinson, with three counts of first degree wanton endangerment, not for killing Ms. Taylor or endangering her or her boyfriend, Kenneth Walker, but for endangering their neighbors in surrounding apartments. By Daniel Cameron’s press conference, which made it plain that prosecutors presented exculpatory evidence to the grand jury, which prosecutors only ever seem to do for cops. By Cameron’s continuing defense of the officers and of law enforcement in general. By his suggestion that many of the ills in the execution of search warrants could somehow be remedied by the formation of a new task force, likely to be headed by police officers and to accomplish nothing. 

My students were just as angry, confused, and heartbroken as I was. I let my students ask whatever questions or express whatever thoughts they felt comfortable sharing. They had astute questions about the operation of the grand jury, about the types of evidence allowed, about the meaning of “wanton endangerment,” and about whether grand jury transcripts would be released. A student remarked that, for the first time, they were having to confront the fact that “the law” and “justice” are not one and the same. Another asked, “Why do we keep using the grand jury when it seems fundamentally broken?”

I was honored and grateful to be able to discuss the grand jury’s decision, in real time, with my students. I’ve recently adopted a more thematic and problem-centered approach to my criminal procedure teaching as advocated by Lanni and Steiker in A Thematic Approach to Teaching Criminal Adjudication, rather than the traditional, strictly chronological approach. The class is more flexible and more immediately relevant to my students by incorporating more supplemental readings and materials outside of our traditional casebook, reflecting more recent developments in the field. This adaptability made it easier for us as a class to depart from the syllabus altogether to focus on the Taylor case, yet another important chapter in the story of criminal law, procedure, and police violence that unfolded that day before us. 

With the upcoming fight over the nomination of Amy Coney Barrett to the Supreme Court, Election Day only a few weeks away, and the COVID-19 pandemic wearing on, we as law professors should be mindful not just that our students may feel spread thin, but that their law school experience--oftentimes tons of reading and discussion of often fusty old cases and other materials--may feel completely disconnected from their everyday lives. All our students likely have strong feelings about much of the recent news. Using current events in the law school classroom gives students the opportunity to connect what they’re learning with the world around them in concrete fashion, and can help to illustrate the importance of what they’re studying in a much more immediate and relatable way. Students have so many important questions and observations about the current political and legal environment; giving them the opportunity to voice them provides important opportunities for them to learn from each other anad for us, as professors, to teach and learn from them, even if doing so pushes us outside our pedagogical comfort zones.

Frankie Valli and the Four Seasons

Tommy DeVito, the original baritone and lead guitarist of the Four Seasons, died on September 21, at age 92, of Covid-19. According to his obituary on the site Best Classic Bands,

DeVito first teamed with Frankie Valli in a New Jersey-based group that ultimately chose the name the Four Lovers in the mid-1950s. With Bob Gaudio and Nick Massi, they changed their name to the Four Seasons and scored their first hit with “Sherry,” a #1 single in 1962. . . . DeVito left in 1970, selling his share of the group’s rights to Valli and Gaudio. The four reunited at their 1990 induction into the Rock and Roll Hall of Fame

Important Article on Proposal for So-Called “Health Freedom” Legislation

Once again, the invaluable Science Based Medicine blog has news of an alarming trend in state legislatures. This time, in an article by Florida attorney Jann Bellamy, the subject is so-called “Health Freedom” legislation proposed by a group called National Health Freedom Action. If enacted, the statutes would make it effectively impossible for states to enforce any mandatory public health measures, even during epidemics and pandemics. Here is the gist:

An organization calling itself “National Health Freedom Action” (NHFA) is promoting state legislation that would block public health measures designed to prevent the spread of communicable diseases like COVID-19. If enacted, the legislation would prevent both government and private businesses from instituting public health measures, like mask requirements and social distancing, by making compliance with those measures voluntary.

The “Right to Refuse” model act gives all individuals the “right” to refuse health-related “countermeasures” including, “but not limited to”, refusing

1. 1. medical treatments or procedures;
   2. testing;
   3. physical or mental examination;
   4. vaccination;
   5. experimental procedures and protocols;
   6. collection of specimens;
   7. participation in tracking or tracing programs;
   8. the wearing of masks;
   9. the maintaining of measured distance from other humans and animals that is not otherwise unlawful;
   10. the involuntary sharing of personal data or medical information; and
   11. other recommended or mandated countermeasures.

All existing laws, regulations, and orders addressing outbreaks or potential outbreaks of contagious, infectious, or communicable diseases, to the extent they impose the disease countermeasures listed above, are overridden. More broadly, if a law, regulation, or order was created in response to an emergency, whether it relates to disease spread or not, including national security emergencies and “any peacetime emergency”, provisions conflicting with the “Right to Refuse” are also overridden.

The article also includes information on NHFA supported “’Quack Protection Acts’ passed in 11 states.”

You can read the entire post here.