The Faculty Lounge

The Sound of Silence

Paul Simon wrote "The Sounds of Silence" in 1963 and released an acoustic version with Art Garfunkel on their first album in 1964. The record flopped, leading Paul and Art to break up -- Simon going to London and Garfunkel to Columbia University. Unbeknownst to them, their producer released it as a single in 1965, with overdubbed drums and electric guitars. The song reached number one on the Hot 100 and became a standard for S&G and many others, under the name "The Sound of Silence," which I guess makes more sense philosophically and religiously (as we will see after the jump).

Call for Proposals for the Fourth Annual Equality Law Scholars’ Forum

November 4-5, 2022 – Loyola Law School, Los Angeles

Building on the success of the Equality Law Scholars’ Forum held at UC Berkeley Law in 2017, at UC Davis Law in 2018, and at Boston University Law in 2021, and in the spirit of academic engagement and mentoring in the area of Equality Law, we (Tristin Green, University of San Francisco, visiting Loyola Los Angeles AY 2022-23; Angela Onwuachi-Willig, Boston University; and Leticia Saucedo, UC Davis) announce the Fourth Annual Equality Law Scholars’ Forum to be held in Fall 2022. 

This Scholars’ Forum seeks to provide junior scholars with commentary and critique and to provide scholars at all career stages the opportunity to engage with new scholarly currents and ideas.  We hope to bring together scholars with varied perspectives (e.g., critical race theory, class critical theory, queer theory, feminist legal theory, law and economics, law and society) across fields (e.g., criminal system, education, employment, family, health, immigration, property, tax) and with work relevant to many diverse identities (e.g., age, class, disability, national origin, race, sex, sexuality) to build bridges and to generate new ideas in the area of Equality Law.  

We will select five or six relatively junior scholars (untenured, newly tenured, or prospective professors) in the U.S. to present papers from proposals submitted in response to this Call for Proposals. In so doing, we will select papers that cover a broad range of topics within the area of Equality Law.  Leading senior scholars will provide commentary on each of the featured papers in an intimate and collegial setting.  The Forum will take place all day Friday through lunch on Saturday.  Participants are expected to attend the full Forum.  The Equality Law Scholars’ Forum will pay transportation and accommodation expenses for participants and will host a dinner on Friday evening.  

This year’s Forum will be held on November 4-5, 2022, at Loyola Law School in Los Angeles.

David Yellen Named Dean of Miami Law

The University of Miami School of Law has announced that its new dean will be David Yellen.  Yellen, who is currently the CEO of Institute for the Advancement of the American Legal System, previously served as the president of Marist College, the dean of Loyola-Chicago Law and the dean of Hofstra Law. He holds a JD from Cornell.

Theresa Radwan Named Interim Dean of Stetson Law

Professor Theresa Radwan has been named interim dean of Stetson Law beginning on June 24th, stepping in for Michèle Alexandre who is decamping for Chicago.  Radwan joined Stetson in 2001 and holds a JD from William & Mary Law School.

 

"A Scholar's View of Supreme Court Leaks—and Why Chief Justice Roberts Presides Over an 'Accountability-Free Zone' (Feat. Steven Lubet)"

That is the episode title of my recent interview on the "Objections" podcast, part of the Law & Crime network. Here is the description:

Despite the aftershocks of Politico obtaining and publishing a draft majority opinion that would overturn Roe v. Wade, monumental Supreme Court leaks have a history dating back centuries.

 

Northwestern University Pritzker School of Law Professor Steven Lubet unpacks that tradition on the latest episode of Law&Crime's podcast "Objections: with Adam Klasfeld" and explains why he believes the chief shares some responsibility for what he calls the Supreme Court's "accountability-free zone."

 

The Supreme Court is the only one in the United States never to have adopted a code of conduct, and it has remained silent in the face of controversies involving justices, on the left and right.

 

In the episode, Lubet traces the development of the first U.S. judicial code of ethics to former President and ex-Chief Justice William Howard Taft, and he explains efforts after Watergate to make those guidelines mandatory, rather than aspirational. He also unpacks ongoing efforts in Congress that would require the Supreme Court to develop an ethics code, create new mechanisms for recusal, and expand access to court proceedings through live-streams.

 

You can listen to it here.

Robert Chesney Named Dean of Texas Law

The University of Texas has announced that Bobby Chesney, a member of its law faculty since 2008 and long-time associate dean of academic affairs, will become the new dean of UT Law.  Chesney, who holds a JD from Harvard, steps in for Dean Ward Farnsworth who has been leading the law school for the past decade. 

Rodney Smolla named President of Vermont Law

Vermont Law School has announced that its new president will be Rod Smolla. Smolla is currently dean at Widener's t Delaware Law School and has previously served as president of Furman University, and dean at Washington and Lee University and University of Richmond law schools. He holds a JD from Duke and will take over on July 1.

 

 

North Dakota Law Names Brian Pappas Dean

University of North Dakota School of Law has named Brian Pappas as its new dean.  Pappas is currently completing a multi-country Fulbright grant in Denmark and Greece, where he is training academic administrators in mediation and conflict resolution. Previously, Pappas served as associate provost and associate vice president for faculty affairs and academic personnel at Eastern Michigan University.  Pappas, who holds a JD from Wayne State, an LLM from Missouri, a PhD from Kansas, and an MPP from Michigan, will take over in July.

NB: Typo corrected.

CFP: Gender & Law Emerging Scholar Award

Elisabeth Haub School of Law at Pace University

Gender & the Law Emerging Scholar Award: Call for Submissions

The Elisabeth Haub School of Law is pleased to announce the competition for its annual Gender & the Law Emerging Scholar Award.  This paper competition is open to all having with five (5) or fewer years of full-time law teaching experience as of July 1, 2022. The deadline for submissions is July 1, 2022.

The purpose of the award is to encourage and recognize excellent legal scholarship related to gender and the law.  The work chosen for the Gender & the Law Emerging Scholar Award should make a substantial contribution to legal literature and reflect original research and/or major developments in previously reported research.

Papers will be reviewed on a blind basis by a committee comprised of three members of the Haub Law faculty with expertise in this area: Bridget Crawford, Noa Ben-Asher and Emily Gold Waldman.  The winner of the competition will be invited to present the paper to selected students and faculty at Haub Law (located in White Plains, NY) during the 2022-2023 academic year, with reasonable travel expenses from within the continental U.S. paid, or via Zoom, as circumstances permit and by mutual agreement.

ELIGIBILITY:

• All persons who have held full-time teaching positions for five (5) or fewer full academic years as of July 1, 2022 are eligible for consideration. One does not have to be on the tenure-track or tenured to be eligible. Time as a VAP or Fellow does not “count” against the five (5) year clock.
• There is no subject-matter limitation for submissions, as long as the paper relates in some way to gender and the law.
• Jointly authored papers are accepted as long as each author independently meets the eligibility requirements.

PUBLICATION COMMITMENTS/LIMITATIONS:

• There is no publication commitment associated with the competition. 
• Papers are eligible regardless of whether they were published prior to submission date, are scheduled to be published after the submission date, or are not yet under submission.
• Each applicant is limited to one (1) entry.
• Papers considered in prior years’ competitions are eligible for resubmission.
• There are no page-length or word-count limitations.
• All publications (including scholarly articles, book chapters, legal briefs and other writings) are eligible for consideration.

SUBMISSION:

• We will accept submissions for the Emerging Scholar Award from May 10, 2022, through July 1, 2022. The winner will be announced by August 30, 2022.
• To participate, please email your article, redacted as necessary to preserve anonymity (for the blind judging process), as a portable data file (PDF) to Judy Jaeger, Senior Staff Associate, at jjaeger@law.pace.edu with the subject line “Emerging Scholar Award.”

• Please include in the body of the email your name, institutional affiliation and confirmation that you meet the eligibility requirements.
• Unredacted or late papers will not be considered.

Information on Emerging Scholar Award and the Elisabeth Haub School of Law

The Elisabeth Haub School of Law is pleased to host an annual paper competition for its Gender & the Law Emerging Scholar Award.  The law school at Pace University is one of a small number of schools in the United States named after a woman, and we are proud of our school’s long-standing commitment to gender justice.

Since the establishment of the Women’s Justice Center in 1991, Haub Law has made gender justice a priority.  Students have the ability to pursue a path to practice in Women, Gender & the Law, through which they develop skills and strategies for effective representation and advocacy for gender justice, regardless of what career they pursue.  The Haub Law faculty includes nationally-recognized academic experts and advocates for gender justice. Our faculty teach, research and write about gender equality and justice as it relates to constitutional law, corporate law, criminal law, education, environmental law, estate planning, juvenile justice, legal theory, poverty, public health, social media, and taxation, to name just a few areas.  An important hallmark of Haub Law is that in addition to our specialty classes that focus on gender, issues involving gender are also integrated into a wide range of other courses.

Prior Winners

2020 – Greer Donley, University of Pittsburgh School of Law, Contraceptive Equity: Curing the Sex Discrimination in the ACA’s Mandate, 71 Ala. L. Rev. 499 (2019).

2021 – Marie Amélie George, Exploring Identity, 54 Fam. L.Q. 1 (2021)

Barry Law Seeks Tenure-Track and Visiting Faculty

This just in:

Barry University School of Law is seeking to fill one or more full-time, tenure-track and visiting faculty positions beginning in the Fall 2022 semester. Areas of particular interest include Civil Procedure, Commercial Law, Constitutional Law, Contracts, Family Law, Professional Responsibility, Property, Tax, Torts, and Wills, Trusts, & Estates. Candidates with a focus in other doctrinal areas may also be considered.

Applications will be accepted on a rolling basis. Please submit application materials through the appropriate link below. Questions may be directed to Wes Henricksen, Associate Professor of Law, at whenricksen@barry.edu.

To apply for a tenure-track faculty position, please use the tenure-track faculty application link.

To apply for a visiting faculty position, please use the visiting faculty application link. 

Fun with Intermediate Appellate Courts

There is some interesting information on the Wikipedia page for state Intermediate Appellate Courts. There are nine states without intermediate courts: Delaware, Maine, Montana, New Hampshire, Rhode Island, South Dakota, Vermont, West Virginia, and Wyoming.  New Hampshire is the largest, although not by much over Maine.

The oldest intermediate court is in Illinois (1877). Some other old ones are Louisiana (1879), Indiana (1891), Texas (1891), Colorado (1891), Pennsylvania (1895), New York (1896). The Evarts Act also established the U.S. Circuit Courts of Appeals in 1891, which was a very big year for intermediate appellate courts.

The newest intermediate courts are Nevada (2014), and before that Mississippi (1995). Alabama has two intermediate courts, both established in 1969. Pennsylvania also has two, dating to 1895 and 1968. There are no doubt readers who know why Pennsylvanians decided they needed a second appellate court after 73 years, instead of expanding the original one, but I don't.

The biggest surprise, to me, is Massachusetts, which did not have an intermediate court until 1972, despite having the oldest continuously functioning higher court in the U.S. -- the Supreme Judicial Court -- dating to 1692. (Pennsylvania disputes that, based on the origin of its Provincial Court in 1684, though it may not have been formalized as the Supreme Court until 1722.)

The number of appellate judges (or justices) varies widely. California predictably has the most at 105, which comes to one for every 376,000 people. Texas is next with 80, or one per 362,000. That seems like a fairly constant ratio of appellate judges per capita, at least in big states like Florida’s 58 (one per 368,000) and New York’s 60 (one per 324,000). But Illinois has nearly as many appellate justices much bigger Florida and New York, and therefore more per capita, with 54 (one per only 233,000).  

Less populous states, of course, necessarily have a smaller ratio of people per judge, given that there have to be multiple justices to constitute a court. Thus, Alaska’s four justices constitute one per 182,000 people, about double the rate for the three biggest states. Ohio has roughly the same concentration of appellate judges as Alaska, even though it is fifteen times the size. It’s 68 appellate justices are more than any state except California and Texas, coming to one for every 172,000 Ohioans.

Louisiana, however, is the true outlier. Its 54 appellate judges amount to one for every 86,000 people – more than double the per capita rate in Alaska, and four times California’s. They must have (1) a lot of appeals in Louisiana, or (2) a bunch of underworked or inefficient appellate judges, or maybe (3) civil law appeals are just much harder to decide.

Pennsylvania is at the other end of the spectrum. Even with two appellate courts, Pennsylvania has fewer than half as many justices (24) as Illinois (58), with almost exactly the same population. That means one justice for every 533,000 people, which struck me as the likely record for low judicial density. But then I checked out Nevada, whose meager three appellate justices come to one for every 1,080,000 people, who evidently like to gamble on getting attention from that court.

I doubt there are any conclusions to draw from this, except that the people of Ohio and Louisiana must really like judges, and Nevadans and Pennsylvanians not so much.

What'd I Say

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

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

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

Chief Justice Roberts's Responsibility for the Politico Leak

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

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

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

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

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

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

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

You can read the full essay at Law & Crime.

BC Law Names Odette Lienau Dean

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

Troy McKenzie Named Dean of NYU Law

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

University of Calgary Looking for an Instructor in Business Law

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

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

Announcing First Annual Olivas Writing Institute...

First Annual Michael A. Olivas Writing Institute

July 21-22, 2022

  

The First Annual Michael A. Olivas Writing Institute is organized in loving tribute to and honor of Professor Emeritus Michael A. Olivas by Professor Ediberto Roman, Florida International University College of Law;  and Professor Emile Loza de Siles, University of Hawai’i at Mānoa William S. Richardson School of Law (Summer 2022).

 

This First Annual Michael A. Olivas Writing Institute will be held virtually by Zoom.  Registration is free.  To participate, please register here: https://hawaii.zoom.us/meeting/register/tJwkfumgrz4jHtVZBQGbSyv-TqW51uozl26y.  The Program details start on the next page.  All times are Eastern.  

 

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

 

 

First Annual Michael A. Olivas Writing Institute

 

Program

Day One | July 21, 2022

Opening Remarks, 12:00 pm

Kelly Testy, President, The Law School Admission Council

Welcoming Remarks, 12:15 pm

Remembering Michael and Moving Forward

Professor Steven Bender, University of Seattle School of Law

Keynote Address, 1:00 pm

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

Tributes to Michael Olivas

Good People, 

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

Peace,

E

Was the Mask Mandate Judge a Hypocrite?

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

Was mask mandate judge a hypocrite?

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

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

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

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

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

You can read the entire essay in The Hill.

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

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

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

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

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

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