The Faculty Lounge

Yale and the Goldwater Rule: The Case of Bandy Lee

[Note: This is a followup to Hank Reichman's earlier post on the AAUP's Academe Blog, where this piece is also cross-posted.]

Hank Reichman’s recent post on the Bandy Lee case at the Yale Medical School raises an important point that deserves some further consideration.  To recap, Dr. Lee has sued Yale for firing her from an unpaid, part-time position in the psychiatry department.  Lee’s offense involved tweeting about the mental health of Donald Trump and Alan Dershowitz, asserting, for example, that they suffered from a “shared psychosis.”

Yale’s psychiatry department chair, John Krystal, notified Lee that she would be terminated if she continued tweeting about Trump’s (or presumably anyone’s) mental health.  Such tweets, Krystal informed Lee, constituted violations of the American Psychiatric Association’s so-called “Goldwater Rule,” which declares it unethical for a psychiatrist to offer a professional opinion or diagnosis “about an individual who is in the light of public attention . . .unless he or she has conducted an examination and has been granted proper authorization for such a statement.”

Lee kept tweeting along the same lines, and Krystal eventually dismissed her for “repeated violations of the APA’s Goldwater Rule” which “raised significant doubts about” her “clinical judgment and professionalism.”

Upon learning of Lee’s dismissal, a group of prominent psychiatrists and psychologists wrote an open letter to Krystal, objecting to Yale’s invocation of the Goldwater Rule and noting that “the validity of the Goldwater Rule has been widely disputed: many professionals consider it a scientifically untenable privileging of corporate psychiatry’s interests over individual psychiatrist’s rights of free speech and expressions of conscience.”

Reichman cautiously tends to agree with Lee’s supporters.  Recognizing the possibly different standards for faculty in professional schools, he concludes that “in Lee’s case,” the violation of a controversial ethical standard should not “justify a finding of lack of fitness.”

I am not a fan of the Goldwater Rule, and I tend to agree that it has outlived whatever usefulness it might once have had.  It is certainly controversial within the psychiatry profession, especially in the age of Donald Trump.  I am more or less inclined to agree with Lee’s defenders, but there is another side that is at least worth considering.

Georgia's Gun Laws Are Not up to the Challenge

I have a piece on The Hill today explaining why Georgia's lax gun laws may not be up to the challenge of intercepting dangerous people before they do any harm. Here is the gist:

When 22-year-old Rico Marley stepped out of the men’s room of an Atlanta Publix supermarket on March 24 – “armed to the teeth” – he presented both an imminent danger and a tricky legal question. He obviously needed to be stopped before someone was hurt, or worse. But what could be done so long as his conduct stayed within the bounds of Georgia’s deliberately permissive gun laws?

Fortunately, Marley was almost immediately confronted by two Atlanta police officers, who told him to raise his hands and remain still. He obediently complied with the command and surrendered without incident. A search revealed that Marley was wearing body armor and carrying six loaded firearms: four handguns in his jacket pockets, as well as a semi-automatic rifle and a shotgun in a duffle bag. The officers placed Marley under arrest and charged him with multiple felonies. The threat had been contained without incident.

There is good reason to believe, however, that the actual felony charges were a short-cut to place Marley in custody, because despite the manifest threat he presented, his actions until that moment were not clearly covered by Georgia’s firearms statutes.

He was not charged with any free-standing violation of gun laws.

In other words, the police essentially had to improvise charges against Marley in order to get him disarmed and into custody.

You can read the entire piece here.

C.J. Peters Stepping Down as Dean of Akron Law

Dean C.J. Peters of the University of Akron School of Law has announced that he will not seek a second term as dean.  Although his current four year term ends this year, he will stay on until a new dean is selected.  

Chag Pesach Sameach

 

Don't Think Twice, It's All Right [UPDATED with Indigo Girls clip]

Hiring Announcement: California Western School of Law

From an email message that I received in recent days:

California Western School of Law (CWSL) is seeking applications from lateral candidates for one tenure or tenure-track position to begin on or about August 1, 2021. We are looking for candidates with strong academic backgrounds, a commitment to excellence in teaching, and demonstrated potential to be productive scholars. We specifically are interested in an experienced instructor to teach Torts beginning in Academic Year 2021-22, and particularly welcome applications from individuals who would contribute to the vibrancy and diversity of our faculty.

Established in 1924, CWSL is an ABA accredited and AALS member, non-profit law school, and has the distinction of being San Diego’s oldest law school. At CWSL we pride ourselves on the diversity of our student body. This year, around 50% of our incoming students are from diverse cultural and ethnic backgrounds. We are committed to having a faculty that reflects our student body and our community. CWSL continues to rethink the status quo in legal education – balancing a rigorous practical education with cutting edge scholarship and community service. As a result, our graduates have a reputation for being uniquely practice-ready.

CWSL is located in downtown San Diego, literally overlooking the Pacific Ocean. A city of breathtaking beauty, we have perfect weather, miles of beaches, and nearby mountains. We are a family-friendly, diverse city with small city traffic and walkable neighborhoods.

Application materials should include a cover letter, C.V., research agenda, and a diversity statement that addresses how you will contribute to CWSL’s goal of creating a diverse faculty. Please direct application materials and questions to the chair of the Appointments Committee, Professor Ken Klein, at the following email address: appointments@cwsl.edu. INTERESTED APPLICANTS SHOULD SUBMIT THEIR MATERIALS AND AN EXPRESSION OF INTEREST NO LATER THAN APRIL 8, 2021.

A Lesson to Remember

 

 

Saved (for Now): University of Kansas Press

The UPK Board of Trustees has announced that University of Kansas Dean of Libraries Kevin L. Smith has been appointed to serve as director of the University Press of Kansas. Smith will continue in his role as dean while also leading the press. Ominously (I fear), the announcement continues, "This change will allow UPK to take advantage of publishing and scholarly alignment opportunities as well as operate in a more cost-efficient manner."

I suppose it is cost efficient to expect the dean of libraries -- obviously already big, full-time job -- to also run UPK, and it is clearly better than folding the operation, but it strikes me as less than a rousing endorsement. Furthermore, UPK is now expected "to reduce its annual production to about 45 books," down from between 55-75 in recent years.

The requirement of "cost-efficiency" for university presses usually means selling enough books to cover all expenses, which is in many cases an unmeetable goal for academic publishing. If the production and dissemination of knowledge is to continue as a core purpose of universities, then reasonable subsidies for publication should be the norm, not the exception.

And speaking of "cost efficiency," the University of Kansas has recently fired its football coach and will now pay him $2 million for not coaching. The athletic director was also fired, but his buyout is a mere $1.375 million.

Let me just say that a university with an athletic department paying $3.375 million to scandal ridden ex-employees can afford to publish a few more books every year. And it has bigger problems than ensuring the cost efficiency of its press.

(h/t Gerard Magliocca at Balkinization for the original news.)

Yale Law Journal CFP: Special Issue on the Law of the Territories

The Yale Law Journal invites submissions on the Law of the Territories, covering the broad range of local, federal, and international issues arising out of and affecting the U.S. territories and their people, for Volume 131’s Special Issue. The deadline for submissions is July 15, 2021.

The Law of the Territories is an emerging field that explores novel legal questions facing residents of the U.S. territories. More than 3.5 million people—98% of whom are racial or ethnic minorities—live in American Samoa, Guam, Puerto Rico, the Northern Mariana Islands, and the U.S. Virgin Islands. They are unable to vote for President and lack voting representation in Congress, even though Congress exercises plenary power over their communities. In the last five years, the Law of the Territories has experienced a resurgence of activity before the Supreme Court not seen since the Insular Cases, a series of controversial decisions from the early 1900s that endorsed the United States’s annexation and governance of its colonies. The Court’s holdings in the Insular Cases have received broad criticism for their racist underpinnings and departure from foundational constitutional principles. But the Court has hesitated to either overrule them or fundamentally reconsider its territorial jurisprudence. Meanwhile, each of the territories has developed its own distinct body of law—and the people of the territories have pressed with increasing urgency for self-determination and decolonization through both domestic and international processes.

We seek Articles and Essays that address unresolved debates, emerging controversies, and unexplored problems related to the Law of the Territories, including, but not limited to: 

• the relationship between federalism and empire; 
• the challenge of cultural accommodation within the United States’s constitutional framework; 
• the relevance of international models of association to the debate over territorial decolonization, and more broadly, the light that comparative perspectives might shed on the issues surrounding self-determination; 
• the intersection of race, gender, and class inequality in the context of U.S. colonial governance; 
• and the promises and pitfalls of territorial autonomy.

The deadline for submissions is July 15, 2021. For more information, please see our announcement.

St. Mary's University School of Law Seeks Visitors 2021-2022: Con Law, Crim Law, Crim Pro

St. Mary's University School of Law invites applications for a temporary appointment for the Fall semester, Spring semester, or full year Visiting Assistant/Associate/Professor of Law for academic year 2021-22.  Current course assignments include Constitutional Criminal Procedure for Fall 2021 and Criminal Law plus Constitutional Criminal Procedure for Spring 2022, with additional opportunities for electives in the area of criminal law or criminal procedure.   We currently plan for these classes to be offered in-person rather than remotely, subject to health and safety considerations, and candidates should be willing and available to teach in either format. We do have some flexibility for online offerings in upper-level electives, depending on online teaching experience and evaluations.  

Located in San Antonio, Texas, St. Mary’s is the oldest Catholic university in the Southwest and continues to advocate the Marianist mission of academic excellence and servant leadership. Founded in 1852 by the Society of Mary (Marianists), St. Mary’s is a comprehensive Catholic and Marianist university with a strong tradition of integrating liberal arts with professional studies. The University fully subscribes to all federal and state civil rights laws banning discrimination in institutions of higher education.  St. Mary’s School of Law also embraces the AALS Statement on Hiring for Diversity, Equal Opportunity and Affirmative Action. We strongly encourage women, people of color, and others who would enrich the diversity of our academic community to apply. 

 

Interested candidates should submit a letter of interest, CV, and a list of at least three references via email to : mcochran@stmarytx.edu.  Applications will be reviewed on a rolling basis, with a priority deadline of March 31, 2021.  Any offer of employment will be contingent upon successful completion of a clear background check.  General inquiries should be directed to Professor Mark Cochran, Chair, Faculty Appointments, at mcochran@stmarytx.edu. For more information about St. Mary’s School of Law go to: https://law.stmarytx.edu.

Long Covid and ME/CFS

Vice has an excellent article on reasons that patients with "long Covid" have not been taken sufficiently seriously, often been dismissed by their physicians as experiencing stress or anxiety. This is part of a long-standing phenomenon of diagnosing "medically unexplained symptoms (MUS)" for patients whose physical complaints are not confirmed by currently available tests. As the author Alan Levinovitz put it, too many physicians readily  "jump from 'I don’t know' to a psychological diagnosis."

How long does it take for a general practitioner to diagnose medically unexplained symptoms? Like everything related to diagnostic uncertainty the question is understudied. The first quantitative study addressing it was published in January of 2020, just as the WHO began to warn about coronavirus. Researchers from the Netherlands recorded consultations and then played them for general practitioners, asking them to pinpoint when they made the determination of MUS. Since MUS is a diagnosis of exclusion—that is, all other possible etiologies must be eliminated—it ought to take longer to arrive at than other diagnoses, and only after taking a thorough patient history and running tests. This is especially true for general practitioners who are not trained in psychology. 

And yet: The average time to an MUS diagnosis for a patient presenting with new symptoms was 4 minutes and 25 seconds—and the median time, which is more representative because it eliminates the effect of outliers, was 1 minute and 47 seconds.

1 minute and 47 seconds. It seems impossibly fast until you see the median time for patients who had presented symptoms at a prior visit: 12 seconds.

The trigger for these decisions varied. Sometimes patients themselves would suggest the symptoms were related to stress. But MUS—universally understood by GPs in the study as synonymous with psychosomatic—was also diagnosed in situations that could easily describe the typical presentation of long COVID in a clinical encounter.

Especially influential was a previous diagnosis of MUS or psychogenic symptoms, which means that once one doctor says it’s anxiety, even if they are wrong, others are more likely to do the same, a phenomenon known as “anchoring bias.”

There is much more in the article than the comparison to ME/CFS. You can read the entire piece here.

A Fiasco at the Pacific Philosophical Quarterly

Brian Leiter tells the frustrating story of an anonymous UK philosophy professor's mistreatment by a peer-reviewed philosophy journal. In brief, the professor submitted an article to the Pacific Philosophical Quarterly in January 2020 and was told that the review process would take ten weeks. The ten weeks passed without any response. After multiple inquiries, the professor was told that the article was out for review and awaiting the second reviewer's report. Five months later, the professor was finally told that the paper had never been, and would not be, sent out for review. As the professor put it, "In sum, 13 months’ wait for a desk rejection with no feedback."

But that is not why I am posting about this fiasco. Mistakes happen everywhere and the Leiter Report fully covered this one for the appropriate audience. My concern is the PPQ's explanation to the author. Leiter calls it "appropriately apologetic," but I disagree. Here it is, with the objectionable part in my italics:

Due to a recently discovered mistake in our records from the past year, the email you received concerning your submission having passed initial review was sent in error and your submission had not been previously submitted for an initial review. We regret to inform you that after having sent your submission through an initial review our editors have decided not to publish your manuscript. The journal policy is to provide comments only on articles that receive external review, and due to the fact that this records error affected several submissions we are unfortunately unable to make an exception in this case despite the long delay in our decision. 

We know this situation is unacceptable and we sincerely apologize for the unfair burden our error has imposed on you. We are making significant changes in the operations of the journal to ensure this does not happen in the future. 

I think this response is unacceptable. After sitting on the professor's submission for 13 months, potentially doing great professional damage, PPQ owed more than an apology. The journal editors had a moral duty to make some amends by at least explaining the reasons for the rejection, so that the professor could strengthen the article before submitting it elsewhere. The fact that their error "affected several submissions" is no excuse for failing to make any effort at all to remedy some of the damage. The reference to making "an exception" verges on insulting, as though the UK professor was asking for special treatment.

How much effort would it have taken for the "editors" (PPQ's plural) who did the initial review to explain their decision?  According to its website, PPQ has seven editors. The editorial board comprises the entire "Faculty of the School of Philosophy, USC." The University of Southern California has 31 tenure line philosophy professors as well as emeriti, lecturers, and adjuncts. Some of these editors should have devoted as much time as necessary to minimally compensate the UK professor (and evidently several others) for PPQ's blunder, even recruiting outside colleagues if necessary to find appropriate experts to comment on the paper's evident shortcomings. Their failure to provide, or at least offer, even minimal feedback should be an embarrassment to everyone involved.

When you wrong someone, you ought to do what you can to make it right. 

[Note: This post has been slightly edited for clarity.]

Will Unaccompanied Minors/Border Crisis Kill Comprehensive Immigration Reform?

Short Answer is....yes.

The issue of comprehensive immigration reform is one that troubled presidents over the last several decades.  Indeed, President George W. Bush and even the so-called "deporter in chief," President Barak Obama expressed frustration with not passing some form of immigration overhaul. Now it's President Joe Biden's turn--as most seem to recognize, President Trump's vision of reform was largely a hostile "enforcement only" approach to reform.

Last week the House of Representatives followed President Biden's campaign promise of an overhaul of our immigration system, with the passage of two immigration reform bills. These bills if passed, would provide would provide a pathway to citizenship for millions of DREAMers, Temporary Protected Status holders, and farm workers. The American Dream and Promise Act and the Farm Workforce Modernization Act would grant young undocumented immigrants, known as DREAMers, Temporary Protected Status holders, and farm workers a legal status they could eventually convert to citizenship. 

I am far from optimistic because even under the best of circumstances, we have witnessed similar bills in the past. And we are far from being in the best of circumstances, political or otherwise. Unless you have been under a rock or lost all electricity or the ability to listen, read, or watch any news over the last several weeks, you know of the unaccompanied minors border crises. By latest accounts--and leading the opening of each of today's Sunday morning news staples: This Week, Meet the Press, and the Sunday Morning Show, there are over 15,000 unaccompanied minors at our border facilities---but far from the hundreds of thousands claimed by former President Trump last week (why does the man either lie or remain so profoundly ignorant? Well, it did work for him once!?!?). 

While I am far from a prophetic political prognosticator, volunteering for Hillary Clinton, Al Gore, and Joe Biden (.333 pretty good for major league baseball, but not elsewhere), I am fairly confident no comprehensive immigration bill will pass the U.S. Senate without a plan or amendment addressing the border crisis debate. “It doesn’t help, that’s for sure,” said Rep. Brian Fitzpatrick (R. Penn.), on whether the situation at the border made it harder for Republicans to support the proposals. “We need to control the border, and we need to fix the problem in a comprehensive manner.”

Partisan politics aside, the treatment of unaccompanied minors at our borders is a legitimate vexing issue that has immigration scholars like myself scratching their heads. If we are going to take off our party hats, many of us need to realize this is a difficult issue with neither the republicans nor the democrats wearing black hats.

At the risk of criticism (hasn't stopped me yet) if I were Czar, I would immediately order Health and Human Services (HHS) and its equivalent state partners to provide alternative facilities for children in custody over 72 hours. I would put enormous pressure on Mexico and other Latin American partners to secure their borders, and provide resources and funding on their side of the border with similar facilities (I would demand such actions and threaten to withhold aid if such  facilities were not created and opened immediately. On our side, I would use HHS and Homeland Security to commence processes to locate family members in the U.S. of children detained that demonstrated a basis for political asylum (Yes, I would provide translators and counsel for these children--a separate basis for criticism and legal attack---a future essay, article, or book on my part). For the other children (I continue to scratch my head on this one) I would seek state and private partners to see if these children could be placed in adoptive homes (only after the families of these children that reside in their home countries are contacted and provide consent to adoption). I would not otherwise allow non-ayslum-seekers to enter the U.S. during the pandemic (indeed, easier said than done). All of the above will obviously take time, and in the meantime pressure and criticism will continue to mount. Thus, the unaccompanied minors issue will likely have moderate democratic and republican senators fearful of supporting comprehensive immigration reform while the border issue remains influx. 

A Little Help from My Friends

Hiring Announcement: University of San Francisco School of Law (Visiting Professorship)

From an email message that I recently received:

The University of San Francisco School of Law is seeking applicants for one or more Visiting Professorships for the 2021-2022 academic year. USF Law welcomes outstanding candidates in contracts, criminal law and procedure, torts, and tax. In serving one of the most diverse law student populations in the country, we strongly encourage applications from groups historically marginalized or from underrepresented communities. Full description and application process.

Arts & Justice Poetry Reading at Stanford

Earlier this month, I was honored to read poetry--and participate in a discussion--with Lakota poet Layli Long Soldier. Poet Monica Sok moderated. Long Soldier read from her groundbreaking collection Whereas, which responds to a 2009 Congressional apology to Native peoples for the numerous atrocities the U.S. committed against them but ends--characteristically and yet ironically--with a disclaimer. As Long Soldier notes, the apology was quietly signed into law, without any public acknowledgement or ceremony involving any of the nearly 600 Native Tribes within the United States. She interrogates the process and meaning of the apology, bringing to light the hypocrisy of, and the harms caused by, law's depersonalized language.

I read my poems about race, social justice, and colonialism, some of which are in my chapbook White Out, and others of which are in my full-length collection The Body's Alphabet.  I read a few uncollected poems as well. Some of the work I read explores my experiences working as an attorney for Tribes, and other pieces address racial justice and my experiences as a white person in a racially unjust world more generally.

The reading is recorded and available here. Hearing Layli Long Soldier read and discuss her work helped me think about law and the effects of colonialism in new ways. I highly recommend it!

Diane Ring Named Interim Dean of BC Law

Diane Ring, the associate dean of faculty at Boston College Law School, has been named interim dean, taking over July 1 - when Dean Vincent Rougeau heads off to lead College of the Holy Cross.  Ring, who joined the BC faculty in 2005, holds a JD from Harvard Law School.  

Hiring Announcement: University of Arkansas at Little Rock, William H. Bowen School of Law (Visiting Assistant Professor)

From an email message that I received earlier today:

The University of Arkansas at Little Rock, William H. Bowen School of Law (“Bowen”) seeks applicants for a Visiting Assistant Professor (VAP).  The purpose of the position is to recruit and mentor emerging law professors interested in racial justice scholarship.  We are particularly focused on future scholars interested in exploring the intersection of race and access to justice, economics, education, environmental law, health, housing, sexuality, voting rights, or other drivers of racial disparities.  Bowen is in the process of developing a center focused on criminal justice reform and racial justice.  The VAP will be affiliated with the new center but will not have administrative duties.  Bowen faculty will be active in mentoring the VAP in the areas of teaching and scholarship.

We encourage applications from entry-level candidates planning to enter the legal education market, practitioners interested in transitioning to the legal academy, and recent law graduates.  The VAP is a full-time, non-tenure-track faculty position.  The VAP will teach two sections of first-year Research, Writing & Analysis, which is a six-credit, two-semester course sequence. The position is available beginning in August 2021.  The VAP will be offered a one-year contract, with the expectation of renewal for a second year based on performance.

Hiring Announcement: Arizona State University, Sandra Day O'Connor College of Law (Visiting Assistant Professor)

From an email message that I recently received:

The Sandra Day O’Connor College of Law invites applications for up to two positions as Visiting Assistant Professor. The Visiting Assistant Professor position is designed to give an aspiring law professor the opportunity to teach in a law school setting and engage in original research, all in a mentored environment. This is a full-time, benefits-eligible appointment that will commence for the Fall 2021 semester. The position is a year-to-year appointment with the expectation of two years of service.

Full information, including application instructions, can be found at: http://apply.interfolio.com/84767

Drake Law Seeks Visiting Criminal Law Faculty For Next Year

This just in:

Drake University Law School invites applications for a temporary appointment as Fall semester or full year Visiting Assistant/Associate/Professor of Law for academic year 2012-22. Course assignments will include Criminal Law and Criminal Procedure - Investigation in Fall Semester 2021; Evidence/Crim Pro in Spring for full academic year visit. Currently, the Law School plans for these classes to be offered in an in-person format rather than remotely, subject to health and safety considerations, and candidates should be willing and available to teach in either format. 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. Applications will be reviewed on a rolling basis, with a priority deadline of March 31, 2021.