The Faculty Lounge

Richard Wirtz

Richard Wirtz  has passed on January 3, 2019.  He was dean of the University of Tennessee from 1991 to 1998.  He was graduated from Amherst, Princeton University, and Standford Law School.

H/t Joan Heminway 

Wildwood Flower

One of the most famous and beloved American folk songs, "Wildwood Flower" was first published as sheet music in 1860, composed by Joseph Philbrick Webster. It was recorded by the original Carter Family (Maybelle, Sara, and A.P.) in 1928, and covered thousands of times since in both vocal and instrumental arrangements. It is one of the most recognizable tunes in the American songbook.

Maybelle Carter (if you look carefully, you can see Earl Scruggs at the left of the screen):

Comment Policy

This seemed like a good time to post a reminder about my comment policy:

This blog allows both pseudonymous and fully anonymous comments. I may respond to the former from time to time, but I will not engage with the latter.

I will delete comments in the following circumstances:

When they include personal attacks or insults (allowing slightly more latitude when I am the target);

When they are irrelevant, intemperate, whiny, or repetitive;

When they include lengthy rants;

When they devolve into long, tedious exchanges;

When they include questionable links that were not caught by the spam filter.

The deletion of comments is within my sole discretion, which I will attempt to exercise reasonably and sparingly (with no guarantee that individual readers will agree with it). Please don't complain about "unfairness," as no one will reliably know which or how many other comments have been deleted. 

Finally, most comments with hyperlinks are automatically sent to the spam folder. I try to check the folder every few hours following a new post, so that I can release the valid ones. That is not always possible, however, so please have patience.

The DOJ "Building Pretext" Award (NOTE - CORRECTED/UPDATED)

In the Washington Post today, former Office of Legal Counsel attorney Erica Newland writes that after almost two years she could no longer abide the fudging and covering she and her OLC colleagues were expected to do in order to give the president's Executive Orders a veneer of proper purpose.  Too often she caught herself  "fashioning a pretext, building an alibi." Where, for example, "the White House’s justification for taking an action reeked of unconstitutional animus," she would find herself "suggest[ing] a less pungent framing or better tailoring of the actions described in the order."

Yuck.

So she decided that "the responsibilities entailed in [her] oath were incompatible with the expectations of [her] job," and resigned in November of 2018.

Good for her for leaving, and good for her for telling us why.

It's odd, though, that just a month before she left the office, she accepted a Justice Department award for "sustained and excellent work" specifically in "reviewing Executive Orders, other substantial Presidential directives, and Attorney General Orders for form and legality."

Job awards are nice, and they are rare.  This one, though, she might want to give back.

CORRECTION/UPDATE: Ms. Newland was not present at the award ceremony. So perhaps she rejected the award - which would be in keeping with her explanation for quitting - and there is nothing for her to return. 

The Prince of Pompadoodle

By the great Walt Kelly, creator of Pogo:

The rest of the poem can be seen here: 

H.R. 1 and the Code of Judicial Conduct

The first bill introduced this session in the House of Representatives, titled the "For the People Act," includes a provision requiring the U.S. Supreme Court to adopt a code of conduct applicable to the justices themselves. Similar legislation has been introduced every year since at least 2015, obviously without success. Thus, SCOTUS remains the only court in the United States -- state or federal -- that does not have a code of conduct governing matters such as political activity, charitable solicitation, or extrajudicial commentary. Chief Justice Roberts addressed this anomaly in his 2011 Year-End Report, citing various reasons that are, in my opinion, completely unpersuasive.

I have written and blogged about the need for a SCOTUS Code of Conduct several times over the past years (here and here, for example), noting that ethics issues have arisen concerning both liberal and conservative justices. It boils down to this (as I wrote in 2015):

At the Supreme Court level, the function of a judicial code is not to compel compliance or punish violations -- both of which would be impossible given life tenure and the separation of powers. Rather, the purpose of a code would be to set identifiable standards for the justices' conduct, so that the public may know what to expect of the nine most powerful judges in the nation.

Consider, for example, Justice Ginsburg's disparaging comments about then-candidate Trump in the months before the 2016 election. Although she was subject to much criticism (including from me), and she eventually apologized, the fact is that she did not violate any provision of judicial ethics -- simply because there was no such provision applicable to her court.

After the jump, I have pasted my 2015 post about the need for a SCOTUS Code of Judicial Conduct, and responding to CJ Roberts's objections.

South Dakota Law Announces Dean Finalists

The three finalists for the deanship at the University of South Dakota School of Law are Elena B. Langan (dean of Concordia Law), Neil Fulton (former chief of staff for South Dakota Governor Mike Rounds) and Christopher W. Behan (professor and former acting dean at Southern Illinois Law.)  Details here.

 

Kimberly Mutcherson Named Co-Dean of Rutgers Law

With Michael Cahill headed to become dean of Brooklyn Law School, Rutgers University has named Kim Mutcherson as its new co-dean, responsible for the Camden Law campus.  Mutcherson holds a JD from Columbia and previously served as the law school's vice-dean. She is Rutgers Law's first woman, first African American, and first LGBT dean.  Mutcherson joined Rutgers in 2002.

One Fine Day

"One Fine Day" was written by Goffin and King, originally intended for Little Eva. When that did not work out, it was recorded by The Chiffons, charting at number five in 1963. Carole King herself later recorded it as a solo artist, and it charted at number twelve in 1980.

Carole King

Some Observations About the Recent California Bar Study and the July 2018 Bar Exam Results

The California State Bar just released a report in which the authors attempted to explain the decline in bar exam performance in recent years, focusing on results from 2013, which were relatively good, and 2016 and 2017, which were much worse (although not as bad as 2018).  The report found that between 20-50% of the decline in bar exam performance could be attributed to lower entrance credentials.  The authors of the report could not account for the other 50-80%.

There were a couple of points in the report worth emphasizing.  Final law school GPA was the single most important predictor of performance followed by LSAT score.  In other words, LSAT scores do have a strong and statistically significant correlation with bar passage.  And of course, LSAT scores were the best pre-law school indicator available to law schools of likely bar passage success.

11 law schools participated in the study, providing data for 7500 law students who took the bar exam in 2013, 2016, 2017.  As the LSAT score dropped, the bar pass rate dropped, as reflected in the table below.

AALS Reminder: Philly Law School Reception Tonight

It's not in the printed AALS program but if you're at the conference today, the law schools of Drexel, Penn, Temple and Villanova are co-hosting a Philadelphia Area Law Schools Reception tonight from 6 to 7:30 pm.  Join us in the Newberry Room, 3rd floor of the Hilton, for some Philly-style bites and post-holiday cheer.

CFP Deadline Extended to January 25, 2019: "New Directions, New Voices in Family Law in India"

The deadline for submissions for this conference on "New Directions, New Voices in Family Law in India" that I along with colleagues at the National Law School and Oxford are sponsoring on July 5-6, 2019 in Bangalore (Bengaluru), India has been extended to Friday, January 25, 2019. Decisions about abstracts will be made shortly thereafter.

Dr. Hook (1937-2018)

a/k/a Ray Sawyer:

It worked:

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

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

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

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

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

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

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

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

ALI Elects 68 New Members

The American Law Institute recently elected 68 new fellows.  Included among them are these faculty members:

California
Máximo Langer, Los Angeles – Professor, University of California, Los Angeles School of Law
Lisa R. Pruitt, Davis – Professor, University of California, Davis School of Law

Illinois
Matthew Sag, Chicago – Professor, Loyola University School of Law

Indiana
Leandra Lederman, Bloomington – Professor, Indiana University Mauer School of Law

Iowa
Anthony James Gaughan, Des Moines – Professor, Drake University Law School

Michigan
Richard A. Bierschbach, Detroit – Dean, Wayne State University Law School

Minnesota
Allan H. Erbsen, Minneapolis – Professor, University of Minnesota Law School

Nevada
Stacey A. Tovino, Las Vegas – Professor, University of Nevada, Boyd School of Law

New Jersey
Katie R. Eyer, Camden – Professor, Rutgers Law School
Rick Swedloff, Camden – Professor, Rutgers Law School

New York
Jodie Adams Kirshner, New York – Research Professor, New York University, Marron Institute on Urban Affairs
Nina A. Kohn, Syracuse – Professor, Syracuse University College of Law
Colleen F. Shanahan, New York – Associate Clinical Professor, Columbia Law School

Texas
Alan Scott Rau, Austin – Professor, University of Texas School of Law

Wisconsin
Tonya L. Brito, Madison – Professor, University of Wisconsin Law School

Canada
Erik Knutsen, Kingston – Professor, Queen's University School of Law

England
John Linarelli, Durham – Professor, University of Durham Law School

Germany
Karl-Nikolaus Peifer, Cologne – Prof. Dr., University of Cologne, Institute for Media and Communications Law

Congratulations to all!

Repugnance Readings For The New Year

Happy 2019! Why not start out the new year with a set of readings on repugnance . . . you know you want to.  (They’re readings on repugnance, not repugnant readings!)

There is a piece from me, accompanied by excellent commentaries by Harvard law’s Glenn Cohen and the German philosopher, Weyma Lübbe (University of Regensburg). Sadly, all three pieces are behind a paywall.

The abstract for:

Kidneys without Money
by Kimberly D. Krawiec

"Market design and matching have been especially important for markets in which the use of money is viewed as repugnant or distasteful. This article employs the example of kidney exchange, with a particular focus on a new form, global kidney exchange (GKE), to highlight the manner by which repugnance and the law limit exchange and create scarcity. Yet it also opens the door to innovation that, at each stage of market development, prompts new repugnance concerns and initiates a renegotiation of legal rules, social norms, and institutional barriers."

And . . . a taste from the text:

“Repugnance influences which animals are food and which are pets, marks the limits of art and entertainment, and dictates who is eligible to marry. Importantly, repugnance is also associated with a strong resistance to the commercial exchange of certain goods and services. This aversion limits the types of transactions one sees in the marketplace and carries serious consequences for market design and regulation. Yet, as compared to the more well-known causes of market failure, scholars of economics and of law have spent less time addressing the role of repugnance in market design and regulation. Indeed, as noted by Roth (2007) and Healy and Krawiec (2017a), until fairly recently, the standard economic response to repugnance was to treat it as simply an irrational preference to be overcome with rational arguments and evidence.”

And, check out the accompanying excellent commentaries (no abstracts):

I. Glenn Cohen

On Repugnance, Distribution, and the Global Kidney Exchange
DOI: 10.1628/jite-2019-0004

Weyma Lübbe

Understanding (One's Own) Repugnances
DOI: 10.1628/jite-2019-0005

Comments are closed, but come find me on Twitter if you want to discuss! (@KimKrawiec)

 

 

Oñati Socio-Legal Series Volume on "Comparative Socio-Legal Perspectives on Judicial Decision Making and Gender Justice"

In May, 2017, I participated in a fantastic international workshop at the Oñati International Institute for the Sociology of Law in Spain. The workshop brought together participants from the various international Feminist Judgments Projects. Collectively, these projects focus on rewriting judicial opinions from a feminist perspective using the same law and facts in existence at the time the initial case was decided. Projects in Canada, England, Australia, the U.S., Ireland and New Zealand have resulted in published volumes of rewritten judgments. There are ongoing projects devoted to international law, as well as the law of Scotland, India and Mexico.

The first U.S. book focused on rewriting decisions of the United States Supreme Court. It inspired a series of subject-matter specific books. Feminist Judgments: Rewritten Tax Opinions was published by Cambridge University Press in 2017. There are volumes at various stages of development devoted to U.S. law in the areas of torts, employment discrimination, reproductive justice, family law, health law, and trusts & estates.

The May 2017 in-person meeting of representatives of the various jurisdictional projects resulted in the publication of a thought-provoking set of papers (edited by Linda Berger, Kathy Stanchi and me). All papers went through a double-blind peer review process with two external referees, which was a new (and positive) experience for me as an editor. All of the papers are open-access.  Here's the table of contents (with links to papers):

The Oñati Socio-Legal Series Vol 8, No 9 (2018): Feminist Judgments: Comparative Socio-legal Perspectives on Judicial Decision Making and Gender Justice

Issue edited by Linda L. Berger (University of Nevada Las Vegas, USA), Bridget J. Crawford (Pace University, New York, USA), and Kathryn M. Stanchi (Temple University, Philadelphia, USA).

Table of Contents

Introduction

Feminist Judgments: Comparative Socio-Legal Perspectives on Judicial Decision Making and Gender Justice
Linda L. Berger, Bridget J. Crawford, Kathryn M. Stanchi

 

Part I: Methods in the Feminist Judgments Projects

Collaboration as Feminist Methodology: Experiences from the Feminist International Judgments Project
Loveday Hodson

Accessing Court Files as a Feminist Endeavour: Reflections on ‘Feminist Judgments of Aotearoa - Te Rino: A Two-Stranded Rope’
Elisabeth McDonald, Paulette Benton-Greig

Women’s Court of Canada Act and Rules
Melina Buckley

 

Part II: Measuring the Impact of Feminist Judgments

Feminist Judging in the 'Real World'
Rosemary Hunter

Turning Feminist Judgments into Jurisprudence: The Women’s Court of Canada on Substantive Equality
Denise Réaume

Impact of the Feminist Judgment Writing Projects: The Case of the Women’s Court of Canada
Jennifer Koshan

 

Part III: The Reach of Feminist Judgments

‘Benchmarking’ a Supreme Court and Federal Court judge in Australia
Francesca Bartlett, Heather Douglas

The Scottish Feminist Judgments Project: A New Frontier
Sharon Cowan

 

Is West Virginia Unconstitutional?

On this date in 1862 President Abraham Lincoln authorized the creation of West Virginia as the nation’s 35th state. The new state consisted of the pro-Union, anti-Confederate counties of northwest Virginia. West Virginia officially achieved statehood status on June 20, 1863 after it added an anti-slavery provision to its state constitution.  

But West Virginia’s admission into the Union generated constitutional controversy. Even some members of Lincoln’s cabinet objected on the grounds that carving West Virginia out of Virginia violated the United States Constitution. West Virginia’s opponents based their arguments on Article IV, Section 3:

New states may be admitted by the Congress into this union; but no new states shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned as well as of the Congress.  (Emphasis added.)

The constitutional objections boiled down to two arguments. First, opponents pointed out that the state legislature in Richmond never consented to the creation of West Virginia. Instead a pro-Union, provisional Virginia legislature hastily assembled in the Appalachian town of Wheeling approved the new state of West Virginia. Even in the North many questioned the legitimacy of the Wheeling government. Nevertheless, after considerable debate and controversy, Congress passed the West Virginia statehood bill and Lincoln signed it into law on December 31, 1862. Long afterward critics argued that only the Richmond legislature—which at the time was in a state of war with the United States government—had the constitutional authority to consent to West Virginia’s creation. 

The second objection was more fundamental, focusing on the second clause of Section 3. West Virginia’s opponents argued that the semicolon following “within the jurisdiction of any other state” should be read as a period, not a comma. Thus, as the opponents saw it, Section 3 absolutely barred Congress from creating a breakaway state out of the territory of another state, regardless of whether the original state consented. 

But were the critics right?

My Grandfather's Clock

"My Grandfather's Clock" was written in the late nineteenth century by Henry C. Work, who is also famous for the Civil War song "Marching through Georgia." It was widely marketed as sheet music, and in player piano rolls, before the advent of sound recordings, and it has remained popular ever since. According to Wikipedia, the song is the origin of the name Grandfather Clock for an upright clock, which was previously known as a longform clock. The song is mostly performed today for children and as a virtuoso bluegrass number, but it was a well-loved "parlor tune" in its first incarnation, and a staple for vocalists and ensembles as well.

Leroy Troy (novelty 5-string banjo)

Shakespeare in Love

I had occasion to look this up for another purpose, and I thought I'd share it. Truer words, and all that:

Scene: The Rose Theatre, London 1593

Fennyman (the financier): Is it going well?

Henslowe (the theater owner): Very well.

Fennyman: But nothing is happening.

Henslowe: Yes, but very well.

Shakespeare (enters shouting): Gentlemen!

Fennyman: Who is that?

Henslowe: Nobody. The author.