The Faculty Lounge

Decluttering as Work and Life Planning, Late Middle Age Edition

Let me disclose at the outset that I have absolutely, positively no business writing about decluttering, because I have long been one to collect books and print out articles at the slightest chance that a vaguely defined project might someday come to fruition. And now that I’ve been at this professorial thing for over three decades, the “maybe someday” possibilities are many.

You may be thinking: Just scan it and store it. But my mind doesn’t work that way. When a writing project beckons, I need the printed stuff out surrounding me, physically. It may mean squandering some time searching through piles of paper for that one article needed for a quote or citation, but that’s my work style. I strive to write clearly and in a well-organized fashion.  But when I do succeed, the process usually started with the chaos of books and papers strewn about me.

Motivation

My faculty office needs some serious thinning of the paper herd, especially since it became a full-on storage area while teaching online during the pandemic. However, it is a secondary priority, as presently I am focusing on my home.

You see, I am planning to add a cat to my household. As a future first-time cat dad, I have assessed the available space in my modest Boston condo and concluded that, among other things, a room I’ve been using to store a lot of books and papers needs considerable clearing out to accommodate a litter box and some other cat-related essentials. Although many cats are said to enjoy surroundings akin to a used bookstore (i.e., my interior design motif), I’ve simply got way too much stuff.

Of course, it’s not just about work-related material. Like many folks who are reading this, I have myriad interests, ranging from heavier (e.g., reading the “Great Books”), to middlin' (e.g., keeping a stamp collection), to lighter (e.g., the World Football League of 1974-75). These interests have led me to gather not only more books, but also plenty of periodicals, collectibles, and ephemera.

So, there’s much to sort through. "Tidying" guru Marie Kondo and an odd book about “Swedish death cleaning” have failed to motivate me. It has fallen to this yet-to-be-identified cat to prompt hundreds of book donations and the feeding of recycling bins.

GoFundMe has become Our Privatized, Online Form of Public Assistance

In this awful summer of climate and weather extremes, the wildfires on the Hawaiian island of Maui have been especially heartbreaking to me. Hardest hit was Lahaina, the historic whaling town and popular tourist site, which now stands virtually destroyed. As summarized by the Washington Post:

"The wildfires that swept through parts of Maui last week are now considered the deadliest in modern U.S. history, killing more than 100 people and leaving behind a path of destruction that will require billions of dollars in recovery efforts. As crews search for hundreds of missing people, the death toll is rising day by day and a housing crisis is unfolding for survivors.

Fanned by strong winds from a hurricane, the fires decimated homes and businesses on the popular Hawaiian island and devastated the historic town of Lahaina. Thousands of people were forced to evacuate, creating harrowing scenes as people were stuck in traffic and jumped into the ocean to escape the flames."

My mom's side of the family is from Maui, and her ashes are scattered the grounds of a beautiful Maui estate where they grew up. You see, Mom's father was a driver and handyman for one of the major industrialists on Maui. The family lived in the servant's house, and the kids were given the run of this beautiful estate. That estate -- still called the Baldwin Estate for the family that owned it -- is now home to a non-profit cultural arts center, known as the "Hui" (pronounced "hooey"). Thankfully, the Hui has survived the wildfires.

(The photo at left was taken sometime during the 1940s. Mom is on the far right, joined by her sisters, and their father is in the background.)

By the time my generation came along, most of the family had scattered to the mainland, concentrated in the Midwest. My brother Jeff and I were both born in northwest Indiana. However, two of our second cousins, Karla and Jan, have lived on the Valley Isle their entire lives. Thank goodness their homes are standing. But many of their friends and acquaintances lost everything in the fires. Some had literally minutes to escape the rapidly advancing flames and smoke.

The Lahaina area remains a recovery zone, still largely off limits to most residents as the terrible work of searching for human and animal remains continues.

In the meantime, those who lost their homes and belongings are living essentially as refugees. Although charitable and public assistance programs have started to deliver help, the initial relief efforts were largely those of individuals and groups who took it upon themselves to bring food and needed supplies to their neighbors.

GoFundMe as privatized public assistance

As folks are figuring how much money they'll need to survive and start rebuilding their lives and businesses, GoFundMe campaigns have sprouted up by the hundreds. I was just on the GoFundMe page dedicated to verified Maui fundraisers, and by my quick count, nearly 900 wildfire relief appeals have been launched. The appeals are mainly on behalf of individuals, families, and small businesses, typically trying to raise in the tens of thousands of dollars. What I find heartening is that most of these appeals are attracting genuine support. People are digging deep to help others.

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!

New Hybrid Chapbook on Homelessness & Mental Health

I'm excited to announce that my hybrid chapbook, A Registry of Survival, is out from Last Word Press.  It explores my relationship with my mother during a time when she was homeless.  It also describes the strain on our relationship caused by her mental health struggles.  There is a legal angle too, as the work discusses teaching Property and the course's connection to what my mother was going through when she became homeless. Author Rebecca Brown commented that "It’s like the words of A Registry of Survival were extracted from the heart, like clean sharp needles pulling out, but true and hard and needing to be said."

John Dewitt Gregory, 1931-2020

John Dewitt Gregory, Distinguished Emeritus Professor of Law at Hofstra University, died peacefully in his West Village apartment in Manhattan on July 27, 2020. He was 89.

He was perhaps the first African-American appointed as Vice-Dean of a law school when he assumed duties at Hofstra in 1986. He was asked by founding dean Malachy Mahon to became a member of the faculty in 1971, in its second year, and he remained at Hofstra for his entire academic career. He held the Sidney and Walter Siben Distinguished Professor of Family Law chair from 1986 until his transition to emeritus status in 2013. He was the co-author of Understanding Family Law, and frequently wrote on child custody and visitation issues.

John was no stranger to the challenges of pioneering. He was born and educated in Glen Cove, Long Island, and he graduated from Howard University in 1952. He went on to serve in the Korean War, and eventually graduated Harvard Law School in 1959, at a time when minority enrollment was present in very small numbers. Before entering academia, he worked in private practice in Manhattan and served as an Assistant Attorney General for the State of New York. As the Executive Director of the Nassau County law Services Committee, he organized and staffed the program from its inception in 1966. From 1967 to 1971, he served as the Executive Director and General Counsel of the Community Action for Legal Services.

He served on several boards throughout his life, including the National Center on Law and Economic Justice (NCLEJ), New York and American Civil Liberties Unions, Legal Aid Society of Nassau County, and the National Advisory Board of the Black American Law Students Association. He was honored by the NCLEJ in 2009.

Anyone who has ever encountered John would agree that he was fearlessly opinionated. He suffered no fools and minced no words. He had no hesitation to throw his rich baritone voice in the dialectical and contentious pool of faculty meetings, and he was known for his directness in dealing with colleagues. Bennett Capers, a colleague at Hofstra, said, “You always knew exactly where you stood with John, and he often said things that others were too shy or fearful to say themselves.”

John Gregory embodied a classic professorial gravitas worthy of central casting. He regularly wore three piece suits topped off with Sigmund Freud glasses and a colorful bow tie, and in his later years, he leaned on a hand carved shillelagh for balance. He was one of the very few people that looked completely natural with steepled hands. He was an original cigar aficionado, until his favorite home health care worker, Princess, convinced him to quit. He deeply admired the creative works of Stanley Kubrick, James Baldwin, Derrick Bell, and Lin-Manuel Miranda, and he was a lifelong fan of all genres of dance. His favorite breakfast spot was Coppelia, a Cuban diner on 14^th street in Manhattan, where the waitstaff knew to greet him with a “Good morning, Professor.”

As he wrote about defining the parameters of the modern family, he also lived it. He is survived by one brother, Ronald Aldwin Gregory, a niece, Carol Gregory, a nephew, Curtis Gregory, and other relatives. He also surrounded himself with the regular company of Alafair Burke, Bennett Capers, Cheryl Wade, Kevin Maillard, and Ricardo Nelson. His closest and most devoted friend, Joanna Grossman, explained their relationship to disbelieving onlookers as “healthcare proxy.”   

John relished in measuring his own age to that of the Empire State Building, which opened for the first time a month after he was born on April 5, 1931. For nearly 40 years it reigned as the tallest building in the world, which was roughly the duration of John’s career as a law professor—a fitting measurement for a lifelong breaker of barriers.

-Written by Kevin Noble Maillard

-Photo credit: (c) Ricardo Nelson

Limitations on Audit by the IRS: Taxpayer Can Go to Bathroom Alone

When I teach Federal Income Tax, I always describe to my students the broad powers of the IRS to request and inspect records during an audit. It is not uncommon for the IRS to meet with the taxpayer in the taxpayer's home or on the taxpayer's business premises.  Although the IRS typically contacts a taxpayer by mail first, surprise in-person visits may happen, as explained by the IRS here, in cases of "an overdue tax bill, to secure a delinquent tax return or a delinquent employment tax payment, or to tour a business as part of an audit or during criminal investigations." I half-jokingly tell my students not to be surprised if the IRS wants to look in the taxpayer's dresser drawers. 

Until today, though, I've never heard of an IRS agent following a taxpayer to the bathroom and monitoring the taxpayer's ... um... use of the facilities. Today in Ioane v. Hodges (here), the Ninth Circuit ruled that an IRS agent cannot invoke a qualified immunity defense in a case in which the agent allegedly "violated plaintiff’s Fourth Amendment right to bodily privacy when, during the lawful execution of a search warrant at plaintiff’s home, the agent escorted plaintiff to the bathroom and monitored her while she relieved herself."

I don't see a circuit split on this one, and it's doubtful the IRS will appeal.  I predict that SCOTUS will not be taking on this particular aspect of the jurisprudence of toilets any time soon.

 

Image source: Science, Industry and Business Library: General Collection , The New York Public Library. "Visiting-inspectors building ; Toilet for foremen ; North gatehouse ; A shop toilet ; Changehouse locker-room." New York Public Library Digital Collections.

Law School Transparency Seeks National Advisory Council Members

Dear Readers -

I have recently been invited to serve as the Chair of the National Council of Advisors for Law School Transparency (LST), a 501(c)(3) nonprofit. My first task is to help identify others who may wish to further the mission of LST by serving with me on the Council. Many readers of this site are undoubtedly already generally familiar with LST, which has become a major force in for developing legal education policy ideas, shaping the national debate of these ideas, and challenging law schools, state bar associations, and the American Bar Association to change business as usual. LST’s most recent report, 2015 State of Legal Education, has already generated significant debate about the current widespread practice of admitting large numbers of students with poor prospects of completing law school and passing the bar, with articles in The New York Times, Fortune, Forbes, Slate, Inside Higher Ed, The Atlantic, ABA Journal, Bloomberg, and, of course, The Faculty Lounge, among others.

LST's mission is "to make entry to the legal profession more transparent, affordable, and fair." This mission rests on three pillars:

• Reform: Build a better society and profession by improving the accessibility and affordability of legal education.
• Information: Enable more informed decisions by prospective law students about whether or where to attend law school and by policymakers for how to regulate law schools.
• Accountability: Hold law schools and the ABA accountable for actions that concern the public, the profession, law students, and prospective students.

(Read more about LST’s theory of action here.) 

If you support these worthy goals, please consider joining me on the Council. I would like to create a group of advisors that is broadly inclusive, to include law professors, law school administrators, admissions professionals, consumer advocates, bar officials, members of the bar, and others interested in furthering the goals of the organization. I believe this would be an excellent way for faculty members to fulfill their obligation of service to the profession, without being an overly time-consuming commitment.

Interested individuals should contact me by sending an email to [email protected] with a very brief statement (a paragraph or two is fine) about you and why you’re interested in serving. If you would like further details, please contact me with any questions. I also welcome nominations of individuals who may be interested. Please feel free to repost this information on other relevant websites or otherwise disseminate.  Thank you for considering this opportunity and I look forward to hearing from you!

Warm regards,

David Frakt

 

 

 

The One Where Joe Miller Eats a Dog Biscuit

That would be Episode 72 of the always interesting, frequently zany Oral Argument podcast, in which I join Joe Miller and Christian Turner to talk about the Dallas Cowboys, the new Star Wars movie and, eventually (starting at around the 23-minute mark), the Facebook mood contagion experiment and whether Facebook should be regulated like a utility or a burrito stand. And yes, Joe does actually eat a dog biscuit during the show. One of the ones pictured here, in fact. Joe reports that, inexplicably, the peanut butter treats taste like chicken.

The Law School Industry - International Programs

Institutional efforts within the law school industry are a hot topic, and one relatively new area of movement in US legal education increasingly addressed is the attempt to establish a more 'global' presence through 'international' offerings for US law students. The ABA, for instance, provides a list of current foreign summer abroad programs, intersession courses and semester abroad programs, and a quick google search turns up a number of other websites offering links to foreign program opportunities for students. At the same time, these lists tend to be incomplete (the ABA's semester abroad program list does not include a number of programs, and more generally does not provide any details about the types of study abroad programs being offered) or not directly relevant for students seeking to earn credit towards their legal degrees. The missed opportunity with more comprehensive data on international program innovations at US law schools is that it not only makes it difficult to share 'best practices' among law school administrations, but it obscures a valuable source of information about specific attitudes and trends within legal education. 

US Law School International Programs (Study Abroad and Semester Exchanges) provides an excel-based study to address some of these deficiencies, with the goal to provide administrations and scholars empirical data concerning new trends in study abroad and semester exchange programs in US law schools (note: click 'download' for the excel form of the study). The study was compiled over the last year, and is organized by state to include every US based program, and includes information concerning the type of programs (e.g., study abroad programs linked to foreign universities versus independent sites), links to the individual programs, and some summary information. 

Looking at the data, a few trends emerge. First, where originally only the remit of upper-tier schools, these programs are becoming staples of US law schools. Second, there is an increasing prevalence for schools to offer study abroad programs based at foreign institutions, rather than simply renting out space to host abroad programs. Third, the move to base study abroad programs at foreign institutions corresponds with an increase in offerings of LLM degrees for foreign students (and sometimes domestic students) and providing opportunities for semester exchanges. The relative lack of research or other scholarly activity at International and Comparative Law Centers suggests that these innovations are largely tailored to increase law school revenue as opposed to any significant shift of emphasis to engaging international legal policy and scholarship. Also, certain geographic locations are privileged - London, popular European city destination points, some programs in Latin America and Asia - but virtually no opportunities in Eastern Europe, Central Asia or Africa.

A lot of questions remain. For example, a number of factors are not taken into account in the study, including the actual professors running the courses, the classes being taught on these programs, and the numbers for student enrollment. It also remains to be seen where the key locations will be to attract foreign students (e.g., China, India, certain Arab speaking countries) or to base future programs (e.g., is the UK/Europe over-saturated or do the rising student fees in the UK mean opportunities to set up programs there to then attract UK students that otherwise would not be interested in a US legal education). 

 

Formal Poetry Contest Based on Scalia's 2015 Disssents

I can't vouch for this organization, but the challenge they pose sounds super fun.

 

More information is available at:  http://poetrybusinessmanager.com/1st-annual-scalia-dissents-formal-poetry-contest/

Law Clerks, Confidentiality, and David Lat's "Supreme Ambitions"

Out here in the great Pacific NW, the Portland outpost of the Ninth Circuit Court of Appeals just had a fantastic book club discussion of David Lat's new novel, "Supreme Ambitions," hosted by none other than Judge Susan Graber.  As the Washington Post noted, "Supreme Ambitions" is "an engrossing page-turner that focuses on the ... subject of federal judges and their law clerks."  It's also a thriller, a love story, and tale about an ethical quandry--all wrapped up in one extremely diverting novel!

Among his other pursuits, Lat is founder and managing editor of Above the Law, and thus tightly plugged into the sturm und drung of being a newly graduated lawyer in the 21st century.    This, combined with a tremendous variety of ages and experience at the book club luncheon (ranging from fresh-faced law clerks to almost 30 years on the federal bench), made for a fascinating and wide-ranging discussion about the topics in the book.

So as not to give away the plot of the book (which I highly recommend), I wanted to focus on one topic that sparked a good discussion at the book club meeting:  the question of confidentiality.  Judicial clerkships are an interesting beast, yoking the appointed or elected judges to brand new law graduates, and giving these law clerks unprecedented access to confidential information and influence over how cases are decided.  How strong is the ethos of confidentiality in this atmosphere?   If there is potential wrongdoing by a judge, is it the law clerk's duty to report it?  Or are law clerks simply extensions of the judge, not authorized in their own right to do anything without the imprimatur of the court?

We've had law clerk confidentiality leaks before, of course.  Edward Lazarus, a former Blackmun clerk, famously--and controversially-- published an entire book about the "secrets" of the Supreme Court in Closed Chambers.  As the blurb for the book itself notes, this caused a "firestorm of controversy," with an argument about confidentiality and ethical violation pitted against an argument about openness and transparency in the justice system.

This last point, in my opinion, is why both lawyers and laymen have a constant fascination with what goes on inside the judiciary.  Much of American adjudication takes place behind closed doors.  Any  insider account is all the more thrilling because the general public knows so little about the machinations of decision-making.   This is particularly true in criminal justice, where we have gone from a system of jury trials to a system of plea bargains, shifting the adjudications from public to private.   The public simply desires to peer behind the alabaster columns and underneath their robes, whether it's the local judiciary or the Supreme Court (which still refuses to allow cameras for oral arguments!)

In any case, if you want to have a captivating read that also gives you the inside scoop on the exciting life of a 9th Circuit law clerk in glorious Pasadena, CA (home to my beloved judge A. Wallace Tashima) , be sure to pick up Supreme Ambitions!

In case you haven't read enough about torture today. . .

In recognition of the release of the SSCI Report, I thought I would share a couple of pieces that I wrote about the torture of a detainee that I represented at Guantanamo.  The first article, which appeared in the Harvard Human Rights Journal is entitled, Closing Argument at Guantanamo: The Torture of Mohammed Jawad  Download 22 HHRJ 401 Frakt Article.  The second piece, a sort of a sequel to the first, was published by the PEN American Center, and is entitled Closing Argument at Guantanamo II: The Torture of Mohammed Jawad, Continued.   Download Closing argument torture 2  

I welcome your comments.

 

 

Digging up Dad to Find the "Real Will"

When it comes to family disputes about inheritances, truth can be much stranger than any hypothetical I might generate on my own.  A New Hampshire woman is accused of conspiring to remove her father's remains from the local cemetery.  A vault was cracked and the decedent's casket was opened.

Police believe the casket was pulled out after Melanie Nash commented about her father being buried with "the real will." A police affidavit said she didn't find a will, only a pack of cigarettes in her father's hand.

Nash told police she did not receive anything when her father died and had been thinking of digging up the grave for years to prove her sister, Susie Nash, "hid the will." Susie Nash has said there was only one will when her father's estate plan was done in 1995 and everyone involved knew about it.

In her June 11 written statement to police, Melanie Nash wrote that she met up with others to go to the cemetery to go dig up her father's grave. Four people have been indicted in the case.

She wrote: "All this was done for the right reasons and I know my father would be OK with it."

She ended her statement with: "What we all did was to dig up my father's coffin, Eddie Nash, looking for documents. We did it with respect."

Nash, who died of a heart attack at 68, started an equipment business in 1979 still run by his family. He's since been reburied.

Read the full story here.

H/T LE.

Employment-Related Object Trivia!

I have always enjoyed Al's various trivia questions, so here is one of my own. 

I have been at the Conducting Empirical Legal Scholarship workshop over the last few days trying to learn something about statistical analysis for an article I am writing on the impact of Pres. Obama's judicial nominees on the Fourth Circuit's judicial ideology (as viewed through its labor and employment cases over the last decade). 

In the course of the conference, I ran across this rather unusual object related to employment: 

What is it?  Where is this one located?

In honor of all who survived the Faculty Recruitment Conference this past weekend

Here's one of my favorite Gary Soto poems, "Job Interview."  Originally published in A Natural Man (Chronicle Books1999), the poem is also available online at http://enespanol.tripod.com/sottopoem1.htm.  Enjoy!

 

Job Interview

 

Why do you feel qualified? Mr. Blue Blazer asked.

And I looked out the skyscraper window.

Far below, a man struggled with a shopping cart,

One wheel stuck, his cargo of tin and glass jingling.

 

Sir, answer us, Mr. Suede-patches-at-the-elbow asked.

I stood up and peeked further down,

Pigeons flattened in the gutter,

Their feathers fossils for my own flight.

 

It says here you’re an artist, Ms. Perfume inquired.

I gazed at my belt, lynch for the last day of the month.

I considered my fingernails,

Claws that hugged a tree for the love of its roots,

And swallowed my spit, a poor-man’s breakfast.

 

The chairs squeaked,

The fish in the lighted salt tank circled,

A fish that I had been eyeing

Since I stepped into office.

I’m qualified because…I started.

 

Mr. Patches leaned forward, head like a chunk of cheese.

Ms. Perfume jangled her bracelets.

Mr. Blazer swabbed his front teeth with a sour tongue.

 

…because I could eat that fist in that tank there

With a butter sauce, I finished.

 

Out on the street with my portfolio of wrong answers,

I turned in a circle and thought, What next?

Hurrying away, nearly running from the gravity

Of a San Francisco hill,

I was every dark penny that rolled away,

But still hopeful of running into the glittery crowd

Of nickels and dimes.

Strong Presence and Voice of the Academy Missing at the ABA

For years I have enjoyed the honor, opportunity and responsibility to serve the profession through various leadership roles in the American Bar Association (ABA). Some of these have included service as a section chair, a member of standing committees appointed by the President, a member of the nominating committee and as a member of the House of Delegates, the policy making body of the ABA. It is disappointing that more law school faculty and administrators fail to take an active role in the  Association, especially since this is the national voice for our profession. There are scarce few members of the Academy represented in the House of Delegates. Yet, this body substantively debates myriad legal and policy positions on uniform acts and proposed regulatory and legislative change that impact the legal landscape. It is perhaps understandable (though not excusable) that there are not more members of the Academy in the House of Delegates since election or appointment to the House is accomplished through either leadership positions in state and local bar associations, leadership in ABA Sections, or a small number of delegates elected by the membership running either at-large or representing certain constituencies. 

The ABA membership structure benefits most law schools that opt for a law school-wide membership for faculty. There are many good reasons for law faculty to actively engage with the ABA through substantive sections and committees. For example, the sections have robust publishing programs that include books, magazines, sometimes law reviews/journals and newsletters. Not only is it a good way to stay current in a field, but faculty could have the opportunity to reach thousands of lawyers across the country by publishing with the ABA. The ABA also has an extensive CLE programming throughout the year and not just in conjunction with regularly scheduled meetings. The webinar and teleconference CLE formats not only allow you to listen in from your office, but you have the opportunity to participate as presenters. This involvement is great because in part, it lets practitioners know who you are and the kind of research and scholarship you are producing, and of course like publications it helps to brand you with the name of your school. Sections and committees also develop proposed resolutions to the ABA House of Delegates that may shape the future policy of the Association and lead the way for law reform.  This can be another avenue to pursue reform initiatives individual faculty may be advocating through research and scholarship endeavors.  Another great benefit is networking. By showing up in person at various ABA meetings, faculty get to meet exceptional lawyers from across the country who can both help when needed to answer questions about unique legal doctrines in a given state, and who also may be in a position to hire your students after graduation.   

It is true that the ABA Section on Legal Education is a “natural” home for many academics/ administrators, and that is the place where accreditation and standards issues are debated and approved. I am not discussing the Section on Legal Education or those types of issues in this blog entry, since my purpose is different – it is to raise awareness of other important contributions we can make to the profession as a whole through the ABA and how active involvement benefits our roles as teachers
and scholars.  However, I will note that at the last meeting of the ABA House of Delegates in San Francisco in August, there was a spotlight program on the challenges facing legal education with two  members of the academy presenting.   Further, the ABA Task Force on the Future of Legal Education is an initiative arising from the broader ABA and not from the Section on Legal Education.   

In short, my anecdotal observation based on active ABA participation over the last two decades is that too many colleagues in the Academy are missing out on positive opportunities by accepting passive membership in the ABA and not taking a more active role. 

 

Significant American Authors Of the 19th and 20th Centuries: 1936 Edition

I'm a pack rat and one collection that I carry with me from place to place is my grandfather's 1936 Encyclopedia Britannica.  Once in a while I pull a volume off the shelf and read.  This morning, I flipped to "American Literature" (contained in Volume 1, A to Anno).  The entry includesd a nice plate with photos of the 20 authors editors deemed image-worthy.  Keeping in mind that these authors had to be recent enough to have been photographed, I was intrigued by the editors' choices.  Who might you have guessed?  They are:

Disability Out Of The Closet: A Law Professor Writes About Her Mental Illness

My colleague at Drexel, Lisa McElroy,  has a pretty powerful piece up at Slate today entitled Worrying Enormously About Small Things.  In it, she describes her long-term battle with a severe anxiety disorder - from her sophomore year in college through her receipt of tenure last month.  Despite the efforts of high-profile folks like Tipper Gore, mental illness too often remains a taboo topic, relegating those who have it to a very lonely closet.  I appreciate Lisa's openess; it's an important contribution in the ongoing struggle to sustain a safe space for conversations about mental illness.

The Perils of Living in a College Town

North Carolina’s Research Triangle is a glorious place to live.  Besides the benefits of three major research institutions within a half-hour of each other (UNC-Chapel Hill, Duke and NC State), it’s warm, green, diverse, friendly and overflowing with great food and culture. 

But living in a college town can have its dangers.  This week’s police blotter in Chapel Hill reports that a developer building a small residential enclave near my neighborhood has had the development’s new street sign stolen off the pole three times since January.  The new street:  Road Less Traveled.  For those who took the Road Less Traveled, I want to know:  Did it make all the difference?

This is what happens when people read.  Poetry corrupts; good poetry corrupts creatively. 

--Bernie

Veterans Law, Jon Stewart, and a Challenge for the Legal Academy

First, thanks to Dan and Al for having me here for a while. 

Let’s start off with the obvious question of what is “veterans law,” anyway?  You will be forgiven if you have no idea how to describe it off the top of your head.  Veterans law is not featured at most law schools for the simple reason that veterans benefits claims were immune to judicial review for the first 200 years of our history.  Since the Court of Appeals for Veterans Claims started operations in 1989, there have not been that many practitioners, nor much time for them to migrate to the academy. 

If you were looking on the categories listed to the left side here, you might place veterans law into “Stuff You Cannot Categorize.”  Michael Allen likes to refer to it as a platypus, and that analogy has a lot of power.  You can look at veterans law as a strange collection of parts that each evolved in isolation to solve familiar problems.  Somehow it manages to persist and function even though the sum can appear bizarre.  On closer inspection, though, it is not so strange.  In practice, it is a mixture of administrative law, torts, and evidence, with strong undercurrents of civil procedure and due process.  Whether its unique approaches to these areas can be justified as better serving veterans is something that independent legal thinkers could be tremendously helpful in determining.

This is why veterans law is an interesting and important challenge for the legal academy.  It is a legal system that is not functioning well, even though there are no ideological differences to frustrate the execution of the mission.  On the surface, it is composed of countless “veteran friendly” rules and procedures, yet the total is far less than the sum of its parts.  Despite the best of intentions, it suffers from severe system effects. 

Accordingly, it is a system that is in desperate need of experts in the underlying areas to examine how the system handles evidence, causation, pleading, discovery, separation of powers, and many other issues.  Jon Stewart nicely expressed the point I have been making for years:  The veterans benefits system is crucial to anyone who supports a substantial role for the administrative state, because if you cannot make this system work with all the political support and funding it has, then how can you expect anyone to believe that government can solve actual controversial problems?

The Daily Show with Jon Stewart
Get More: Daily Show Full Episodes,Indecision Political Humor,The Daily Show on Facebook

 

While I am here for the next four weeks, I want to explore how the system works and what might be learned from related areas of law.  Before I dive into the current issues, I will provide some background, including a couple of days on the tumultuous historical path leading to today’s system, and then an outline of how the system presently works.  Finally, I will spend the majority of my time highlighting important aspects of the system and what issues could use more study by those with an outside perspective.

So this is it in a nutshell:  Veterans law is the litmus test of whether the modern administrative state is the solution or the problem.  Even if we did not owe our most sincere efforts to the men and women who have given so much in service, that challenge would be reason enough for anyone with an interest in legal theory to consider what can be done to make the system not just functional, but exceptional.

 Note:  These writings are made in my personal capacity, and are not to be construed as attributable to the Department of Veterans Affairs, the Court of Appeals for Veterans Claims, or other entities.