The Faculty Lounge

Choosing Work over "The Bachelor"

First disclaimer to this post is that I was working out at the gym, and when you are working at the gym (as Paul McGreal notes, below) you sometimes encounter the bad habits of others, such as fellow patrons singing amusing versions of Lady Gaga’s “Bad Romance.”  At other times you just can’t escape viewing an episode of The Bachelor, which was being projected on a large screen near the treadmills last night.  Second disclaimer is that I actually have written before about employment law and reality TV (my argument was that Donald Trump’s “you’re fired” on The Apprentice had a lot to teach us about the at will employment rule).    

So, with those disclaimers (I am *not* a big Bachelor fan!) I must say that the episode I watched was high in emotional content and rather shocking.  The bachelor (a pilot, Jake) has gotten his choice narrowed down to four women, and he visited each contestant in her hometown.  One contestant, Ali, was told during her hometown visit that she faced a difficult choice.  Either she could leave the show and return to work (as an advertising executive), or she could stay on the show and lose her job.  Given that there were three other contestants left and that the outcome was uncertain, and given that Ali “loved her job,” she ultimately made the choice to leave the show and keep working.  Although many reality shows are “scripted” this genuinely seemed like an agonizing decision for the contestant.   

Looking around online today, Ali seemed to be catching some flak for her choice to put career first.  I asked my employment law class about this today (in the context of work-family balance) and, to the contrary, they seemed to think that Ali had made the right decision.  Law students are obviously more career-oriented than some viewers of the show might be, to be sure.  But am I right to think that these issues still have some currency?  Anecdotally, this issue of moving about seems to be more difficult for women who are trying to have a career (but I could be wrong about that).  I would definitely be interested to hear some perspectives from itinerant-law-professor types. 

While it certainly is too bad that Ali had to make such a difficult decision about work and her relationship in front of millions of viewers, maybe her experience could call attention to this issue, and lead to further exploration of whether this choice (or society’s expectations) about work and relationships are gendered.  

Martin Katz Named Dean At Denver Law

Professor Martin Katz, who had been serving as the interim dean at the University of Denver Sturm College of Law, was named permanent dean today.  Katz received his undergraduate degree at Harvard and his JD at Yale.  He clerked for Judge David Ebel and he joined the Denver faculty in 2000 after practicing in the area of employment law.

Shouting "Valor!" In A Public Forum

Xavier Alvarez isn’t a decorated war hero, but he claimed to be, and as a result was charged with violating the Stolen Valor Act.  That law makes it a crime to lie about receiving a military service medal.  Alvarez, a local politician in Pomona, California, told an assembly of folks in 2007 that he had received the Medal of Honor while serving in the Marines. But there’s no record that Alvarez was ever in the Marines. He pled guilty to the charges on the condition that he be allowed to raise a First Amendment defense against the SVA on appeal.

So does Alvarez have a case?  Not according to Gary Solis, military law expert and adjunct prof at Georgetown Law.  He told ABC News recently that lying about the Medal of Honor is "no more free speech than (falsely) yelling Fire! in a crowded theater."

But that can’t be right.  Where’s the imminent panic, the clear and present danger (since we’re citing Holmes), the public stampede following Alvarez’s claim that would place lies like this beyond the reach of the First Amendment?  Alvarez wasn’t making a false claim to obtain military benefits (fraud), or testifying about his military service on the stand (perjury). He told an ugly lie to impress local constituents.

I can only imagine the gut-punch that false claims like this feel like to soldiers who survive the actual carnage of war.  But the whole point of the First Amendment is to let the truth play itself out in the marketplace of ideas; and that's precisely what happened here.  Alvarez had a bad idea, tossed it into the marketplace, and in the process revealed himself to be a complete jackass.  I'm not sure we'd get more from a federal prosecution.   

-  Kathleen Bergin 

Oscar Countdown: Day 26

Today's question:  Name a film which starred two African-Americans, each of whom can say "I have won an Academy Award for my acting talents."  (Two possible answers.)

Pictured:   Lilies of the Field (1963), starring Sidney Poitier, in a role which brought him the Best Actor prize.  Poitier was the only African-American to win the award in the 20th century.

The Chronicle on Discipline Envy

Over at the Chronicle's blog, Gene Fant's asking, "What 'perks' of your discipline do you hear people in other disciplines lament? What is the reality about those perks?" 

He notes:

it's easy to envy our nonacademic counterparts in professions like law, medicine, business, and government. I've heard more than one professor lament, "I'm so much smarter than my friend who became a lawyer/dentist /marketer, but I make a third the salary for my efforts and achievements."

The Autobiography of an Execution

Houston law professor David Dow (pictured), the founder of the Texas Innocence Network, has authored The Autobiography of an Execution, being published this month.

From the website description:

As a lawyer, David R. Dow has represented over 100 death row cases. Many of his clients have died. Most were guilty. Some might have been innocent. The Autobiography of an Execution is his deeply personal story about justice, death penalty, and a lawyer’s life.

From a review that appeared in yesterday's local newspaper:

Dow is not the first anti-death penalty advocate to criticize the criminal justice system in print, and he probably will not be the last. But his book is especially worthy, whatever a reader's opinion about the morality of the death penalty. His candor seems so absolute that readers on both sides of the debate can gain real insight into the thought process of an experienced advocate.

Professor Dow discusses his latest book in this YouTube video.  And GQ.com offers a look at the first twenty pages of the book here.

What a Great Story: From Bank Robber to Supreme Court Practitioner

Adam Liptak's column in the New York Times today is about Shon Hopwood, convicted of multiple bank robberies, who became an adept Supreme Court practitioner while in prison.  He was so good, in fact, that former SG Seth Waxman wanted his involvement when Waxman represented a prisoner whose pro se petition for cert (written by Hopwood) was granted.  Now Hopwood is thinking about law school.  Memo to admissions officers: Admit the guy.  Michigan seems to have the inside track. 

Oscar Countdown: Day 27

It's Monday, so let's try an easy question:  Gregory Peck starred in one Best Picture winner, and he won the Best Actor award once.  Name the film(s).

Pictured:  Roman Holiday (one of my "top ten" favorite films), starring Audrey Hepburn, Eddie Albert, and ... Gregory Peck (in a role that Cary Grant declined).  With Valentine's Day around the corner, this might be a movie to rent this week!

Like A Virgin? We Sell That Here!

A few days ago, an anonymous 19-year-old New Zealand student offered her virginity to the highest bidder on the Web site www.ineed.co.nz under the name "Unigirl," saying she would use the money to pay for her tuition.  According to Unigirl, more than 30,000 people have viewed her ad and over 1,200 made bids before she accepted a $32,000 offer.  Story from NPR.  (HT: Tonja Jacobi)

Though the story is creating a ruckus, including international press, the attention pales in comparison to that bestowed on the very similar story of “Natalie Dylan,” a pseudonym adopted by a 22-year old UC San Diego graduate who auctioned her virginity on the website of the Moonlight Bunny Ranch, a Carson City brothel, in January of 2009 in order to foot the bill for graduate research in women’s studies. In contrast to Unigirl’s paltry returns, Dylan reportedly received over 10,000 bids, the highest of which was $3.8 million, receiving both condemnation and praise in the auction process.  Critics have argued that she is degrading herself and women generally, risks exporting Nevada’s poor morals to the rest of the country, and is selling something (virginity) for profit that should be cherished and freely given.

In an article I posted to SSRN over the weekend, A Woman’s Worth, I consider the reactions to Dylan’s virginity auction plan and the possible motivations underlying those reactions. What drives the attention and controversy generated by the Dylan auction? What are the perceived harms associated with Dylan’s actions, and in what ways are they greater than the harms associated with similar common activities?

Dylan was trading sex for cash, but against the backdrop of a legal, thriving, and (absent the involvement of a celebrity or politician) largely ignored Nevada sex industry, it is unreasonable to believe that the sex-for-cash aspects of the transaction drove the enormous attention dedicated to the event.  Dylan, of course, was selling more than sex.  She was selling virginity – a “priceless and rare commodity” in the eyes of some, including, presumably, her numerous bidders. But, virginity-for-cash objections seem to rest, at best, on a highly romanticized view of most females’ first experience with sexual intercourse and reinforce a concept of virginal sanctity that many women reject.  Moreover, to contend that the sale of virginity is more problematic than the sale of sex by a non-virgin is to contend that women should be free to commodify only that which is less valuable; that which will produce less income.

Finally, I argue that objections stemming from Dylan’s self-promotion, self-pimping, and aggressive marketing, while the source of much of the resistance to Dylan’s actions, should also give pause: is conduct undertaken with adept marketing really more problematic than the same product offered less effectively?  Although the answer may be “yes” to some, such commodification objections, by their very nature, are an uncomfortable vehicle through which to package concerns about women’s economic and social well-being.   If Dylan had charged less, promoted herself less effectively, or been less creative in marketing her value as a virgin, then her transaction would have passed into the millions of similar trades that occur each year, largely without notice.

The article is still in draft form, and comments, criticisms, feedback, praise, adulation (okay, I’ll stop there) are most welcome.   For those who have not yet “met” Dylan, the video clip below provides a nice introduction:  Tyra Banks (a surprisingly tough interviewer in some respects) quizzes Dylan on her motives, expected profits, auction strategy, and whether she risks unrequited love for her winning bidder.  Because, even at $3.8 million, a sexual transaction must be primarily emotional, rather than economic, at least from the woman’s perspective, right?

(HT for the video: Kate Bartlett)

Southampton Probate Records

Well, I'm back working on University, Court, and Slave in a serious way and thinking about Southampton County, Virginia -- because it's the site of the Nat Turner rebellion, which sets in motion UCS (as I affectionately call it).  That reminded me that I've been meaning to look into the probate records for Southampton -- though this for a companion to the article Stephen Davis and I wrote on probate in Greene County, Alabama in the 1830s and 1840s.  There are some nagging questions, like do other counties in this time show the same reverence for preserving property within the family that we found in Greene County?  And are there as many -- or perhaps more? -- trusts as we found in Greene?

Now, what to my wondering eyes does appear, but the probated wills for Southampton from the 1740s to the 1880s!  That is terrific.  Thanks to the generosity of the Brantley Association, there's no need to travel up to Southampton (or Richmond -- I thought the records might be in the Virginia State Library in Richmond).  And while I certainly enjoy visiting both of those places, nothing beats doing archival work from my desk, rather than in an actual archives.  Though I hope to be back in Southampton soon to reprise my trip last August and to get my hands on some more Pork Avenue barbeque.   Maybe I'll go there when I get the 1830s Southampton wills coded and analyzed....

Pretty freaking cool what's on the net, isn't it?  This reminds me of one of my new favorite phrases, adapted from Sarah Palin: "scan, baby, scan."  And it also reminds me of the ways that the work of geneologists is often of immense value to social and legal historians.  Getting access to the records makes it a heck of a lot easier to analyze them, obviously -- and the geneologists' biographies of people often thought obscrue is also of immense help.  There's also an increasing premium on interpretation of data, now that collection of it has become so much easier.

 
The image is of the Southampton County courthouse in Cortland (once known as Jerusalem).

Gym Rats

Miriam Cherry's wonderful post on gyms and BFOQs brought to mind my own experiences as a gym goer.  Her BFOQ hypo rests on the fact that something in the gym experience, as well as the behavior of some gym goers, can make the thought of working out at a gym as frightening as -- eek -- public speaking!  The desire to control that environment -- such as by limiting who can work at the gym -- is targeted at that fear.

So, here's my theory, based solely on personal experience, of why a gym can be an intimidating place.  When I began exercising, I avoided gyms, preferring the solace of solo, outdoor exercises like walking and running.  The thought of going to a gym made me feel vulnerable.  For one, as someone who has struggled with weight and body image issues all of my life, I worried that standard gym attire allowed others a fairly good view of where my body stands.  (And that doesn't touch on pool attire, which always bring back flashes of the grade school gym class shaming ritual known as shirts v. skins.)  It also doesn't help that exercise performance can be quantified (what's your mile pace? what's your one rep max on the bench?), adding the anxiety of measuring up to -- or being judged by -- other gym dwellers.  And beyond these neuroses, there is a learning curve to working out safely and effectively.  So, finding a gym with a supportive environment was important to me.  To pick up on a point in Miriam's post, I wanted to preserve an aspect of privacy while working out in a public space.  If a person finds a single-gender environment important to preserving that privacy, I support that choice.

Once I got beyond my gym hangups, and found a gym where I felt comfortable, I still had to deal with the usual cast of misfits who have no sense of gym etiquette, or even minimal social graces.  I mean, no gym is perfect.  So I can also see that a person would prefer a gym where the likelihood of bad behavior, and thus the invasion of one's privacy, is lower.  And for some a single-gender environment may create that security.

To close, I'll share my top gym behavior pet peeves.  I'd be interested in hearing from others on the subject.

Excessive Grunting.  I can see that you are lifting REALLY heavy weights, so I don't need accompanying grunts to highlight your Herculean effort.  And while we evolved from primates, there's no reason to act like one at the gym.  Just one question -- will you make the same sound when you pop a hernia while eking out your last rep?

Singing Out Loud.  Two words -- sound travels.  Now don't get me wrong -- I listen to music while I exercise, and I've been known to top off a good runner's high by belting out the chorus to It's Raining Men.  But here's the thing -- I was outside, and no one was within ear shot.  As we like to say in the law biz, singing inside a gym is distinguishable.  So while it's impressive that you know 87% of the lyrics to Lady Gaga's Bad Romance, the rest of us have our own iPods, so we're covered music-wise.

(BTW -- true story.  I overheard one gym goer trying to sing Bad Romance, and they came out with the line "caught in a bathroom stance" instead of "caught in a bad romance."  Not only does that line not fit the rest of the song, but, as far as I know, the song is not about former Idaho Senator Larry Craig.)

Not Wiping Down Sweat on the Equipment.  It's gross.  If I wanted to get wet, I would have gone to the pool.  Wipe the equipment. Enough said.

Not Re-Racking Weights.  Yes, I know you're lifting heavy weights (see "Excessive Grunting" above). So you don't need to leave your dumbells lying on the floor, hoping I'll trip on them and be shocked and awed when I notice their immense size as my head crashes to the gym floor.

Homophobic/Misogynistic/etc. Put Downs.  At some -- but not all -- of the gyms I have been to, I have heard taunts like, "Oh, that's so gay," "You lift like a girl," or "You're behaving like such a retard."  While the other behaviors merely annoy me, this one gets me angry.  This is no laughing matter, and it is the one thing I will always take time to address.  Especially at the University rec center, where I work out on campus, because faculty and staff have a responsibility to model behavior.  This is an area where I hope fellow gym goers will join me in showing zero tolerance.

So, there you have it.  Hope to see you -- but not necessarily hear you -- at the gym!

Oscar Countdown: Day 28

Today's question:  name the actress who has appeared in a Best Picture winner in three different decades.

Pictured:  You Can't Take It With You, the Best Picture winner in 1938, one of five Best Picture winners in which actress Bess Flowers appeared (the record for an actress).  She is not the answer to today's question, though, because the five films were released in two decades (the 1930's and the 1950's).

Tourism Webcam Saves a Life

Some time ago, on a blog far far away, I wrote about how distributed systems and workers/volunteers from all over the globe were assisting with search and rescue missions.  This is related to my interest in "virtual work" and crowdsourcing - and how the legal system should respond to these new forms of work.

 

In 2007, in search of downed aviator Steve Fossett, thousands of people used their computers to scour pictures taken by aerial photography. This distributed search network was part of Amazon’s Mechanical Turk, which breaks down massive tasks (like scanning through thousands of aerial photographs) into small portions that can be performed by thousands of individuals, taking up only a few minutes of their time. 

 

Although the turkers weren’t able to find the remains of Fossett’s plane because of the limitations of the natural world (the terrain itself was not easily scanned using aerial photography), I suggested that this type of “crowdsourcing” technology has great potential.  Well, this week I read a report about a technology-enabled rescue that was quite heartwarming.

 

A woman was viewing a picturesque sunset over a frozen lake in Germany through a webcam that had been set up by a group promoting tourism in the region.  While viewing on the internet, she noticed something was wrong.  Apparently a man who was out on the ice taking pictures of the scenery had become disoriented and was close to freezing.  The woman, who was hundreds of miles away from the lake, phoned police and soon the lost photographer was saved. 

 

N.B.  If this were a Hollywood movie, the man and woman would both be single and attractive.  Further, the rescue would have taken place on Valentine’s Day…

Four Classes of Virginia Students, circa 1859

After reading Al’s very cool post yesterday about UVA law professor James Holcombe's 1859 intermediate examination, I couldn’t help but click through and read the referenced The Virginia University magazine article in its entirety.  If you haven’t looked at it yet you should, as there are several gems, including a discourse on the “peculiar mode of conducting examinations at this institution,” which renders UVA not “as at other places, a matter of time and connexion, but one of merit exclusively.”

My favorite part is the division of UVA students into “four distinct classes”:

1.  Real students – i.e. “those who come here for the purpose of taking advantage of the unusual facilities afforded for acquiring a thorough education.”

2. Bad students – i.e. “those who come with as full a determination to study as the others, but who unfortunately have not the gift of continuance, or application, . . . and after intermitting efforts, finally become discouraged and careless.”

3. Slacker students – i.e. those who “for decency’s sake, together with a well-bred respect for the request of professors . . . attend lectures and study when they have nothing else to do.”

4.  “Mama’s” boys – i.e. those who were “pets at home” and “’Mama’s big baby,’ and are sent here to wean them.”

(All emphasis in original)

I’ll leave it to Lounge readers who are UVA professors, alums, or students to opine on the changed class composition, if any, during the intervening 150-odd years.

Law School Exam, 1859

I'm writing about University of Virginia law professor James Holcombe's jurisprudence today -- and thanks again to books.google, I see the intermediate examination (what we'd now call mid-term, I think) that Holcombe  gave to students at UVA law school around 1859.

Zinnecker will like question 2 a big bunch:

State the several general rules of the Common Law which are suspended in reference to negotiable paper. The difference between the effect of a transfer of such instrument by deliveiy, and by endorsement. "What will constitute the acceptance of a bill of exchange, whether existing or non-existing, and what is admitted by one: to whom should notice be given of the dishonor of a bill of exchange, at what time, and in what manner?

I have to say the whole exam looks hard.

Oscar Countdown: Day 29

One of my favorite questions:  Name the films that have captured Oscar's "Grand Slam" (winning Best Picture, Best Director, Best Actress, AND Best Actor awards).

Pictured:  On The Waterfront, which won the Oscar for Best Picture, Best Director (Elia Kazan), and Best Actor (Marlon Brando).   Eva Marie Saint also won an Oscar -- for Best SUPPORTING Actress.

So What Is A Distinguished Scholar In Residence Anyway?

Duke Law Professor Stuart Benjamin on C-Span, discussing his role as the first distinguished scholar in residence at the FCC.  Also on the show is Lynn Stanton, senior editor of Telecommunications Reports.

One of the topics discussed is Benjamin’s view on spectrum flexibility, as introduced in his article, Roasting the Pig to Burn Down the House: A Modest Proposal, 7 Journal on Telecommunications & High Technology 95-105 (2009).  From the abstract:

[O]ne may regard a set of proposed regulations as foolish and likely to hobble the industry regulated, but perhaps desirable if one believes that we would be better off without that industry. I argue that television broadcasting is such an industry, and thus that we should support new regulations that will make broadcasting unprofitable, to hasten its demise. . . .

Am I serious in writing all this? Not entirely, but mostly. I do think that society would benefit if the wireless frequencies currently devoted to broadcast could be used for other services, and the first-best ways of achieving that goal may not be realistic. I am proposing a second-best - a fairly cynical second-best, but a second-best all the same. I would prefer not to go down this path, but if that is the only way to hasten the shriveling of television broadcasting's spectrum usage, then it is probably a path worth taking.

Single Sex Gyms and BFOQs

Speaking of BFOQs, which fellow guest-blogger Paul McGreal happens to be (scroll down), I posed the following hypothetical to my employment seminar the other day:

 

A gym runs a chain of 30 all women’s clubs and employs 150 workers, all of whom are female.  The gym markets itself to those women who are “naturally modest,” “who value their privacy,” and features workout equipment that is “specifically built for women.”  The décor is a pale mauve and purple, as are the workout machines.  Each club features a large number of dance, aerobic, and pilates classes, which are generally more popular among women than men.  If a qualified man wants to apply for a position as a receptionist, personal trainer, or locker room attendant, may the gym assert a BFOQ defense?

 

I enjoyed doing some law review research into BFOQs, especially because the titles of the articles on the topic are, to say the least, rather eye-catching.  For example, Ann McGinley’s recent article appearing in the Duke Journal of Gender Law and Policy is titled “Babes and Beefcake: Exclusive Hiring Arrangements and Sexy Dress Codes,” while Kim Yuracko’s well-known article on BFOQs in the California Law Review is titled “Private Nurses and Playboy Bunnies: Explaining Permissible Sex Discrimination.” As both articles explain, BFOQs are generally recognized in the areas of safety, authenticity, and privacy.  (In the hypo I posed to the class, privacy is the operative concern).

 

In any event, I’m following Paul’s posts with interest and look forward to reading his forthcoming article.  

 

P.s. “BFOQ” is pronounced by spelling out each letter of the acronym.  Pronouncing the acronym as a word is not recommended, unless of course you want your class to giggle and/or laugh at you.

Logic Puzzles

A while ago I was reading Malcolm Gladwell's Blink and I was taken with two logic puzzles that readers of this blog might enjoy.  They are found on pages 120 and 121 of the book respectively.

1.  A man and his son are in a serious car accident.  The father is killed, and the son is rushed to the emergency room.  Upon arrival, the attending doctor looks at the child and gasps, "This child is my son!"  Who is the doctor?

2. A giant inverted steel pyramid is perfectly balanced on its point.  Any movement of the pyramid will cause it to topple over.  Underneath the pyramid is a $100 bill.  How do you remove the bill without disturbing the pyramid?

Answers below the fold...

More on Oscar...

So this one's for Tim who thoroughly beat me to the Oscar countdown.  I was in a plane when the nominees were announced.

Here is a question I should know the answer to, but I bet Tim already does: 

Has a woman or a minority director ever won the Best Director Oscar?  And, I suppose, in related fashion, has a movie directed by a woman or a minority ever won Best Picture?

Audio Books

In my quest to kill time while driving long distances I have finally succumbed to the audio book - for those times when you just can't use a Kindle because you'd cause a car crash.  I've always thought audio books were kind of strange as a format (and kind of "cheating" because it's not really "reading"), but a recent radio show about the art of the audio book convinced me that I should give it a try.  I'm now half way through my first audio book and am in two minds.  I don't know if it's just that I don't like the particular book or that I don't like the person reading it - she does have a rather irritating voice and her attempt to make up specific voices for particular characters is kind of sad in parts, particularly when she's trying to channel a very blond aging Hollywood starlet-type in a whispy breathless voice.

Does anyone have thoughts on whether I should persevere?  In particular, are there specific types of books or readers of books that I should look out for?  The radio show I tuned in to suggested that a lot of the success of the audio book rests on the reader and that some people are extremely good at bringing a book to life on CD.  I guess I just don't know who those people are...

Oscar Countdown: Day 30

Today's question:  Name the only film to receive the most Oscar nominations in its year of eligibility and NOT receive a nomination for Best Picture.

Pictured:  No Country For Old Men, the Best Picture winner from 2007 (tying There Will Be Blood for most nominations that year, with eight).

Ministerial Exception, Shministerial Exception, Part I

In my first post, I mentioned that one of my current works-in-progress addresses a doctrine known as the "ministerial exception" to Title VII employment discrimination claims. This post is the first in a series that critiques the exception. This post briefly outlines the basis and origin of the exception, and subsequent posts will outline my critique. Not to spoil the ending, but as I said, I'm not a big fan.

To begin with, consider how the ministerial exception might arise. Say a church fires its minister because, in the opinion of the church leaders, the minister has behaved inconsistent with church teachings. The minister, however, claims that the church leaders really fired her because of her gender, and that the "church teachings" rationale is a pretext for gender discrimination. The minister then sues the church for gender discrimination under Title VII of the Civil Rights Act of 1964. The church moves to dismiss the minister's claim on the ground that the Religion Clauses of the First Amendment bar the minister's Title VII claim. Under the ministerial exception, the court should grant the church's motion.

Since the ministerial exception applies to Title VII claims, it makes sense to work through how the text of that statute would apply to the minister's gender discrimination claim. Title VII's general prohibition on employment discrimination reads as follows:

§ 2000e–2. Unlawful employment practices

(a) Employer practices

It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.

The minister's claim would satisfy the requirements of subsection (a)(1): the church is an employer, the minister is an employee, 42 U.S.C. § 2000e (definitions of employer and employee), and the minister claims that her employer "discharge[d]" her "because of" her "sex."

The next question is whether the minister's claim comes within an exception to Title VII. The most obvious candidate is the exclusion for religious employers in § 2000e–1(a):

This subchapter shall not apply to . . . a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.

While this provision does cover churches and other religious organizations, it only exempts employment discrimination on account of the employee's "particular religion." Because our minster is alleging discrimination based on gender, and not on religion, the exemption would not apply.

Could the church rely on the exclusion for bona fide occupational qualifications (BFOQ)?

[I]t shall not be an unlawful employment practice for an employer to hire and employ employees . . . on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise . . . .

§ 2000e–2(e)(1). The BFOQ exception does not apply here because the church has not argued that gender is an occupational qualification for its ministers. Rather, women are eligible to be ministers, and the church claims that this particular minister, who happens to be female, was fired for conduct inconsistent with church teachings.

So, the text of Title VII covers the minister's gender discrimination claim against her church. The minister should prevail if she can prove that gender was a motivating factor in the church's firing decision. 42 U.S.C. § 2000e-2(m). That is, unless the church can find some other argument to avoid application of Title VII. And that is where the ministerial exception comes in. The church can point to numerous Supreme Court decisions holding that the First Amendment Religion Clauses protect so-called "church autonomy." That is, in addition to protecting an individual's right to free exercise of her religion, the First Amendment also protects the right of the church – as an entity – to organize and govern itself. For example, in Kedroff v. Saint Nicholas Cathedral, 344 U.S. 94 (1952), the Court struck down a New York statute that essentially selected the church's leader. As a corollary to this decision, lower federal courts have recognized that church autonomy also protects a church's right to select its ministers and similar personnel. Because a minister's Title VII claim interferes with that right, it violates the First Amendment.

While the Supreme Court has never adopted the ministerial exception, every circuit to address the question has adopted some form of the doctrine. Our minister is most likely out of luck under Title VII.

So, there you have it – the ministerial exception. In my next post, I will argue that the exception strips the Title VII claim from a class of victims – ministers and other similar church personnel – who are particularly vulnerable to employment discrimination. And in a later post, I will critique the circuit court arguments in favor of the exception and (surprise!) find them wanting.

Time to Re-examine Tenure Process?

Ohio State president Gordon Gee thinks so.  Story here.

And did you know that Ohio State has the country's largest university enrollment?  Neither did I.  Get out the crayons and color me surprised.   

The Sit-Ins, A View From The Other Side

These are the iconic pictures of the sit-ins we’re commemorating this week. Above are the four students who started the movement on February 1, 1960, when they sat down at a Whites-only lunch counter at Woolworth's in Greensboro, North Carolina. They are, from left to right, Joseph McNeil, Franklin McCain, Ezell Blair, Jr. and David Richmond. 

Here are three additional students who carried on the protests over the next several days, along with a White woman who is apparently fine being served by Black people, just not sitting next to them. 

The pictures below capture the backlash. They’re of a 1963 sit-in in Jackson, Mississippi.  By one account, members of the all-White Jackson police force stood guard outside, while several FBI agents (the guys in back wearing shades) "observed" from inside. That White guy at the counter, that’s Tougaloo professor and community activist Hunter Gray (John R. Salter) who helped organize the Jackson sit-ins.  And that’s blood on his shirt.  All of the protesters had been covered in slop, and some were beaten with brass knuckles and broken bottles.

I don’t know how many other photos like this exist; a colleague sent me the one to the right some time ago and it's the first time I had ever seen it. So I wonder whether others are out there, others that we've collectively chosen not to remember because it's the part of the story we want to forget.

Some of the sit-ins were less explosive than others, but even then, the response from White business owners was hardly all that it could have been. In Greensboro, Woolworth’s store manager decided to ignore the Black students at the White counter. He didn’t serve them, but he didn’t call the police either for fear of provoking violence from the growing assembly of White hecklers.  But he wasn't struggling with closeted racial consciousness; he just didn't want to frighten away the rest of his White customers.

This, unfortunately, is part of the hidden narrative behind too many civil rights milestones, when attitudes began to soften, not because segregationists came to see the light, but because they simply wanted to make a buck.

-Kathleen Bergin

New Mexico Seeks Clinical Visitor

From an email I received today via the lawprof listserv, and posted here with permission:

The University of New Mexico School of Law ("UNM") seeks a Visiting Professor of Law to teach in its nationally-recognized clinical law program during the fall of 2010.  The candidate hired will teach and supervise students in UNM's Business and Tax Clinic, who represent clients involved with small businesses and non-profit corporations with a variety of legal issues, as well as other clients with consumer, debtor-creditor, tax, and home mortgage issues.

JD and admission to a US bar are required.  Preference will be given to candidates with experience practicing law in the areas in which we assist clients, as well as experience teaching and supervising students in a transactional clinical setting.

For best consideration, submit applications by February 24, 2010.  The position will remain open until filled.  However, UNM intends to fill this position by March 31, 2010.   To apply, visit the UNMJobs website:  https://unmjobs.unm.edu/.  Please reference Posting Number 0805063.

The University of New Mexico is an equal opportunity/affirmative action employer and educator.

You also can contact Nathalie Martin at (505) 463-9051 or martin@law.unm.edu.

Oscar Countdown: Day 31

Today's trivia question:  Name the only film directed by Alfred Hitchcock to win the Best Picture prize.  (P.S.  He never won the Best Director award.)

Pictured:  stamp released by the United States Postal Service on August 3, 1998.

Blogevity

Thanks, Dan, Kim, Jacqui, et al for the warm welcome to the Lounge!  Ah, yes, I have been doing guest blogs for some time now, as Dan notes, although not quite as far back as 1955.  *Cherry dusts off an ancient tome, opens it, coughs rather loudly*  In fact, I can remember the days before Concurring Opinions even existed, as its founding members were writing for Prawfsblawg... enough with the reminisces of an old time blogger *She closes the ancient tome.*   

Rather than the history of the blogosphere, here’s my question.  What are the factors that lead to what I’ll term “blogevity” -  a blog that remains current, filled with good content, and remains attractive to readers over time?  I realize that the answers might be different depending on whether we are talking about a law blog or a lawprof blog as opposed to other kinds of blogs.  But what factors might help a blog stick around for the long haul?

IOLTA Problems in the Post-Kelo World

Assume, in response to the Supreme Court's decision in Kelo v. City of New London, 545 U.S. 469 (2005), that your state legislature enacts a law that bans the government from taking private property and giving it to another private party.  If you view IOLTA programs as an example of  a private property taking, has your state -- through its post-Kelo legislative response -- made your IOLTA programs illegal?

My colleague, Dru Stevenson (pictured), writes about this issue in a paper that he recently posted to  SSRN.  Here's the abstract:

IOLTA programs are a very popular mechanism for funding legal services for the poor, and are now operating in every state. As a result, however, IOLTA has become the most frequent and widespread instance of government takings of private property in America. The post-Kelo era has seen increasing legislative restrictions on takings, and the post-Kelo reforms in several states appear to have inadvertently made their respective IOLTA programs illegal by banning all takings where the government immediately gives the taken property to another private party (in this case, private poverty-law foundations and legal aid clinics).

IOLTA takings also highlight a puzzling gap in our legal system between eminent domain law and administrative law. Eminent domain law tends to downplay the importance of procedure itself for government actions, often allowing states to proceed without regard to procedural due process as long as the victims of takings can bring inverse condemnation actions after the fact. Administrative law, in contrast, includes a long line of Supreme Court precedents that emphasize the importance of procedure itself as a component of due process and fairness; state infringements on the “property interests” of individuals can face reversal simply because an agency failed to provide a fair hearing beforehand.

The ensuing discussion also reaches three inherent tensions or puzzles with public funding of legal services for the poor:  crowding-out effects, monopoly/single-payer system problems, and the moral hazard problems with providing free lawyers for the poor. This article addresses, apparently for the first time, these three (rather significant) concerns as they pertain to IOLTA or legal services in general. I offer some modest policy reforms in response to these issues.

Dru tells me that he continues to welcome comments before he circulates the paper to law journals in a few weeks.  His email address is dstevenson@stcl.edu.

Oscar Countdown: Day 32

The Academy of Motion Picture Arts and Sciences announced its nominees for the 82nd Academy Awards yesterday.  How did you do on your prognostication?

Beginning today, I'll post an "Oscar Trivia" question each day until March 7, when Steve Martin and Alec Baldwin co-host the awards show.  I'll provide the answer to each question on the following day as a "comment," unless, as I expect, one or more readers beat me to it.

Have fun!  Here goes!

Question:  What do the films On Golden Pond, Network, Coming Home, and As Good As It Gets have in common?

Denver Seeks Director of Research

This announcement is posted at the request of Jordan M. Singer, who is with the Institute for the Advancement of the American Legal System at the University of Denver:

The Institute for the Advancement of the American Legal System at the University of Denver seeks a Director of Research to begin in June 2010.  The Institute is dedicated to improving the process and culture of the civil justice system through objective research and innovative and practical proposals to serve the individuals and organizations who rely on the legal system to clarify rights and resolve disputes.  Our two current major initiatives involve judicial selection and performance evaluation; and making the civil justice process less expensive, more efficient and more accessible.  Information on the Institute is available at www.du.edu/legalinstitute.

The Director of Research designs research projects to support the Institute’s mission; supervises the Institute’s research staff (currently three members) and graduate student interns; and finalizes reports, articles and other  publishable-quality written material to communicate our research clearly and effectively.

Applicants must have a graduate degree in an area related to our work and at least 5 and preferably at least 10 years of experience analyzing or working with or in courts or representing clients in litigation. Experience should include managing a small group of people effectively; meeting deadlines; and organizing and completing complex projects.  Applicants must be familiar with major social science research methods, have excellent writing and editorial skills and be able to synthesize best practices or other recommendations suggested by the research.  Salary level: $115,000 to $125,000, depending upon experience.

To ensure consideration, applications must be received by March 1, 2010.  To apply for this position, please visit our website at www.dujobs.org and search for “Director of Research.” The University of Denver is an EEO/AA Employer.

Getting to Know Me, Getting to Know All About Me

A heartfelt "thank you" to my former colleague and good friend Tim Zinnecker for his warm welcome to The Faculty Lounge.  And thanks also to the Lounge's permanent residents for the opportunity to spend some time here.  I am looking forward to it.  Before getting down to serious posting, I thought I'd let you know a little more about the latest faculty member to wander into the Lounge.

To get things started, here are some topics I hope to discuss while hanging out here.  Let's start with the heavy stuff -- the substantive law, where I split time between my academic and practice-based sides.  On the academic side, I'm a constitutional law person, with my research devoted to religious freedom issues.  The subject of my current work-in-progress, which I hope to inflict on readers of this blog, is something called the "ministerial exception" to Title VII employment discrimination claims.  The exception is a judge-made doctrine that exempts churches from  federal employment discrimination claims brought by their ministers and similar employees.  Here's the short version of my thesis -- I'm not a big fan.  I'll provide the long version in a later post.

On the practical side, I write and present at CLE programs on the subject of corporate compliance and ethics programs.  A corporate compliance and ethics program is a business organization's policies, processes, and personnel devoted to preventing, detecting, and remedying violations of law and the organization's ethical principles.  My prior foray into blogging was on this subject; I was the sole contributor to the Compliance Prof Blog, the fossilized remains of which still appear on the Internet.  I enjoyed my few months on that blog, but the demands of solo blogging were just too much.  I am looking forward to the following month as a gentle re-entry to the blogosphere, and an opportunity to tie off some of the compliance and ethics loose ends I left hanging.

My last topic is more therapy than substance -- the life of a law school associate dean.  For those who have never held the position, I have described the "associate dean" to interested family and friends (in truth, "interested" is too strong -- it's more like "politely attentive"), as the "somebody of the law school."   That is, when a law school faculty member, student, or staff runs into a problem or has a question, and then says, "Somebody has to deal with that," you can bet that the associate dean is the "somebody."  It's like a weird, sad version of It's a Wonderful Life, where every time the word "somebody" is said, an associate dean feels dread.  This picture captures quite nicely the mindset of the average associate dean.

I'll close this first post with a deep, dark secret -- something I haven't admitted to anyone.  It's so horrifying that I must ask you not to repeat it.  If you cannot agree, please stop reading now.

OK -- those of you who are still with me, come closer to the screen so I can whisper.  That's it -- just a little closer.  Good.   Here it is --

I really like being associate dean.

Let me say that again -- I like being associate dean.

To be clear, I am not just saying that the position is not as horrible as I thought it would be.  As if I was expecting it to be like pounding my head against a cinder block wall, but was pleasantly surprised to find it more like pounding away at a sheet rock wall (I mean, at least sheet rock will eventually give way if you hit it long and hard enough).  No -- I actually like the job.  In a later post, I hope to explore this pathology, because I must confess that it scares me a little.

So, there you have it -- more than you probably needed, or wanted, to know.  I have to admit -- this blogging thing is kinda fun.  I may have to do it again some time.  Oh yeah -- like every other day or so for the next month!

Bar Review On Your iPhone. And It's (Relatively) Cheap!

 We already knew we could do almost everything on our little iPhone.  Thanks to the magic of capitalism, humans have created 140,000 different applications - from the mundane to the sublime - to run on that magical Apple  toy.  But most of those programs cost five bucks or less.  Now, however, there's a truly useful app for the aspiring lawyer.   BarMax is offering a $999 California bar prep program that you can run anytime: sitting in a dentist's waiting room, stuck in traffic, or even during long and boring meetings.   The idea is great but the proof is in bar pass rates.  And if I were the folks at BarMax, that's the part I'd be sweating.

Welcome Guest Blogger Miriam Cherry

 We are very pleased to welcome Miriam Cherry, Professor of Law at McGeorge School of Law, at University of the Pacific, here to the Lounge.    Miriam is just back at McGeorge after spending a semester visiting at the University of Georgia.  It wasn't her first extended visit to the south.  She's another law prof who got her start in the Yellow Hammer State.  

She brings deep blog experience, having visited at my blogging alma mater - Concurring Opinions - back in 1955.  Or its equivalent in blog years.  She is a contributing editor at ContractsProf Blog.

Miriam snagged a BA from Dartmouth and a JD from Harvard.  Her full biography and publications are here.  Welcome to the Lounge!

Drake Seeks Visitors

From emails posted this week on the lawprof listserv:

DRAKE LAW SCHOOL may have one or more tenure-track or visiting positions available in the 2010-11 academic year.  We are interested in both entry-level and experienced candidates.  Our curricular needs include Health Law (and related courses), Civil Procedure, Federal Jurisdiction, and Constitutional Law.  Drake is an equal-opportunity employer and applicants who will contribute to the diversity of the faculty are particularly encouraged to apply.  We seek candidates with J.D. degrees from accredited schools, who exhibit the ability to produce excellent scholarship and become outstanding teachers. 

and

DRAKE LAW SCHOOL seeks an experienced constitutional law professor to act as visiting Director of the Constitutional Law Center during the 2010-11 academic year.   The United States Bicentennial Commission endowed the Drake Constitutional Law Center, one of the premier centers for the study of the American Constitution, its roots, its formation, its principles and its development.  Regular activities of the center have included an annual symposium gathering constitutional scholars, policy analysts, lawyers, and judges for a discussion of a timely constitutional issue. In addition, the annual Speakers Series brings the nation's pre-eminent constitutional scholars to campus to engage students and faculty on selected constitutional law topics. For more information about the Center, see
http://www.law.drake.edu/centers/conLawCenter.  The visiting professor would teach several classes and help to organize the Center's activities for the year.  Drake is an equal-opportunity employer and applicants who will contribute to the diversity of the faculty are particularly encouraged to apply. 

Candidates interested in either announcement should contact:

Professor Jerry L. Anderson
Chair, Faculty Recruitment Committee
Drake Law School
2507 University Ave.
Des Moines, IA  50311
e-mail:  jerry.anderson@drake.edu
 

Verge of the Unböring (The Modern Greek Drama, Part 3)

In my first post on this topic, The Modern Greek Drama: Comedy, Tragedy, or Both?, I offered the insights of Cleary Gottlieb Steen & Hamilton partner and sovereign debt guru, Lee Buchheit, on the current Greek sovereign debt drama.  In the next post, The Modern Greek Drama, Part 2, Buchheit’s frequent co-author, Duke law professor Mitu Gulati, discussed his reactions.  Today, I’m happy to introduce a post from Anna Gelpern, Associate Professor of Law at American University. 

 

 

For a supposedly exotic field, sovereign debt has been scull-splittingly, mind-numbingly boring for some time—Groundhog Day with no life lesson in the end (cite to years of Rogoff and Reinhart on centuries of sovereign badness).  Judge Thomas “Serial Embargoer” Griesa’s umpteenth Argentina order is all ennui.  I say this at some peril, owing my entire existence to a combination of Buchheit, Gulati, Argentina and Krawiec indulgence.

But really:  every few years, a country defaults or almost defaults on its debt.  Theory caption says this is all because the government over-borrowed and the creditors over-lent, which might not have happened had there been a bankruptcy-like resolution regime, and/or had the debt been predictably enforceable against assets beyond sovereign control.  Deep theory caption then wonders why we have sovereign debt at all, and bellyaches about whether the market is really a disciplinarian or a strumpet.  Disciplinarian strumpet awaits discovery in her little black swan costume.  Yawn.

Shifting the scenery slightly on the same old script, Dubai and Greece hold out a glimmer of hope for the unböring turn in sovereign debt:

·    First, the new politics make politics cool again:  how much would Abu Dhabi (Germany) take to teach Dubai (Greece-Spain-Portugal-etc.) a lesson?  Euro law and politics can turn particularly interesting, since some Euro-area exporters might quietly cheer the currency’s slide on Greek misfortunes.  Meanwhile, Argentina must work harder to get attention with the same-old-central-bank-sacking act.

·    Second, coming on the heels of the global financial bailoutfest and a bubble in crisis pulp, Greece can only confirm that policy randomness is the last best hope for moral hazard worry warts.  There is no legal barrier to bailouts.  Ever.  Really.  Whether Greece gets one is entirely a function of EU and Euro politics.  With banks and sovereigns alike, “commitment” is part of “confidence boosting.”  They work until they don’t.  The Greek lesson is that we lawyers need to diversify our shtick.

·    Third, the IMF looks much sexier in the pink light of lecturing to New York, London and Brussels while the erstwhile emerging markets get to sit smug (less Eastern Europe, but note the EU accession angle).  If the IMF co-opts the G-20 the post-World War II institutional dream might rise again from the ashes of new age informality.  The Fund might also benefit from the round of regional bailout battles:  having a common enemy in Washington may turn out to be preferable to bickering with your own neighbors.

As for the disciplinarian strumpet:  Hank Paulson serves up a reminder of the invisible hand gone frisky.  Turns out that as Russia was fighting Georgia, it tried to get Beijing to join Moscow in dumping Fannie and Freddie to get Washington to bail out the GSEs.  It’s a small world.

-- Anna Gelpern

Welcome, Paul McGreal!

I'm delighted to welcome Paul McGreal as our guest.  Paul was my colleague at South Texas College of Law for ten years before leaving us in 2006 to join the Southern Illinois University School of Law (where he recently became the associate dean for academic affairs).

Paul is a graduate of Williams College, the Dedman School of Law at SMU (class valedictorian and EIC of the law review), and Yale Law School (LL.M.).   His teaching and scholarly interests are varied and include constitutional law, antitrust, law and economics, professional responsibility, and business ethics and corporate compliance.  He is a prolific scholar, with over three dozen publications (including placements with the primary journals at Case Western, William and Mary, SMU, Fordham, Kansas, Notre Dame, and San Diego).

You can read more about my friend Paul here.

Welcome to the Lounge, Paul!

Prison Libraries and Black Identity

In honor of black history month, I thought I'd repost an entry from a visit I did at blackprof a while back.  I was thinking about this because I attended a conference a couple weeks back on the the rules regarding library privacy and how those rules apply to internet libraries (like books.google).  John Palfrey blogged about the symposium here.

The Patriot Act’s ability to require librarians to disclose the books that individuals have borrowed gives us a lesson in the importance of books.   The FBI’s interest in who is reading what is only the most recent evidence that books are both important ways of transmitting ideas and important signifiers of which ideas readers find important.  (I know there's some question about the number of times that libraries have been asked to disclose lists of what individuals have borrowed and I hope to learn a little more about this.)  It is not just law enforcement that is interested in reading habits, however. 

We are hearing a great deal about the project of “the history of the Book” these days.  It aims to understand the role of books as vehicles of change: how do books contribute to changes in society, how do they help to create and sustain identity.   Sometimes historians look at books, to measure a culture.  What does Invisible Man say about the culture of the United States on the eve of Brown?  What do Booker T. Washington’s Up From Slavery and W.E.B. DuBois’ Souls of Black Folk say about Jim Crow?

At other times, historians draw inferences about people from their libraries.  This post talks about a list of about 120 books on the "black experience" that Judge Don Young ordered to be placed into the Marion, Ohio prison library back in 1972,  Taylor v. Perini, 413 F.Supp. 189, 215-19 (D.C. Ohio 1976).  What interests me about the list is its potential for mapping the sources of identity in the late 1960s and early 1970s.  What, then, are the books that the judge ordered added?  More below the fold.

The Harlem renaissance and its leaders are well-represented: W.E.B. DuBois’ Souls of Black Folk; Richard Wright’s Native Son and Uncle Tom’s Children; James Weldon Johnson’s Autobiography of an Ex-Colored Man; Claude McKay’s Home to Harlem (1928) along with some other Renaissance-era literature, like Rudolph Fisher’s Conjure Man Dies: A Mystery Tale of Harlem (1932) and Walls of Jericho (1928)).  Situated between the renaissance and the 1960s is Invisible Man.

There is the early 1960s literature that captured the possibilities of the Civil Rights movement:  Maya Angelou’s I Know Why the Caged Bird Sings (1969); King’s Where Do We Go From Here, The Trumpet of Conscience, Stride Toward Freedom (1958), and Why We Can’t Wait; Alan Westin’s Freedom Now! The Civil-Rights Struggle in America (1964); and Howard Zinn’s SNCC:  The New Abolitionists (1968).  Or, in the case of Claude Brown, Manchild in the Promised Land that explained life under Jim Crow and conveyed something of what it was like to grow up in a place many thought of as the promised land, however much it might not have been.   I might also put John Killen’s And then We Heard Thunder (1964), James Baldwin’s Tell Me How Long the Train’s Been Gone (1968); John Alfred Williams’ The Man Who Cried I Am (1967) in that category–they are situated in a place between the optimism of the Civil Rights era and the later separatism.  They ask, with King, what now?

Then there’s the literature that represents the transition to black power, as well as  disillusionment with the Civil Rights movement or western society more generally, such as Franz Fanon’s Wretched of the Earth (1961) and White Skin, Black Mask (1952); Tom Hayden, Rebellion in Newark; Benjamin Muse, American Negro Revolution: From Non-Violence to Black Power, 1963-1967 (1968); Chuck Stone, Black Political Power in America (1970); Harold Cruce, Crisis of the Negro Intellectual (1967); Louise Meriwether’s My Daddy was a Numbers Runner (1969)).  Along those lines, is literature that provides a popular, sociological critique of 1960s society, like Charles Silverman, Crisis in Black and White (1963). And there’s the literature that continued in the late 1960s and early 1970s to seek an answer in more traditional or different places, like Kenneth Clark’s Dark Ghetto (1967).

As you would expect, there are many on black power: Eldridge Cleaver’s Soul on Ice; Autobiography of Malcom X; Amiri Baraka, Home: Social Essays (1966); H. Rap Brown, Die N–r Die! A Political Autobiography; Lester Julius’ Look Out Whitey, Black Power’s Gon Get Your Mama; Bobby Seale, Seize the Time: The Story of the Black Panther Party and Huey P. Newton.  Maybe I’d put Angela Davis, If They Come in the Morning (1971) into this category.  And I guess Cecil Brown, Lives and Loves of Mr. Jive-Ass N–r, too.  Prison literature, like George L. Jackson’s Blood in My Eye, is surprisingly rare in this collection.

There are a lot of histories: DuBois’ Black Reconstruction; John Hope Franklin’s From Slavery to Freedom and Reconstruction, Emancipation Proclamation, and Reconstruction; Franklin Frazier’s Negro Family in the United States (1968); Edward Cronon, Black Moses: Marcus Garvey (1960); David Levering Lewis’ King: A Critical Biography; Benjamin Quarrels’ Black Abolitionists, Mr. Lincoln and the Negroes; and The Negro in the Civil War; Kenneth Stampp’s The Peculiar Institution (1956); C. Vann Woodward’s The Strange Career of Jim Crow (1955); Arthur I. Waskow, From Race Riot to Sit-In (1966); Herbert Aptheker’s Negro Slave Revolts (1943).  Along with the histories are other scholarly work that describe and analyze black culture, such as E.U. Essien-Udom’s Black Nationalism (1970); C. Eric Lincoln’s Black Muslims in America (1961); Henry A. Ploski’s Afro USA (1971); Marshall Stearns, The Story of Jazz (1970); Chuck Stone, Black Political Power in America; and Joseph R. Washington, Black Religion (1964); and other work that collects culture, such as Miles Mark Fisher, Negro Slave Song (1953); Arna Wendell Bontemps, American Negro Poetry (1963).

DuBois’ Black Reconstruction reminds us that there are books on Reconstruction by and for white people and books on Reconstruction by and for black people.  Talk about segregation of memory!  Jim Crow separated people intellectually, as well as physically and socially.

Of course the classification scheme that I’ve imposed above says a lot about how I view the world of the 1960s and early 1970s, from the vantage of the early twenty-first century.  I’m continuing to think about how to classify the books.  And as the classifications grow, I find that I want to put books into several categories. It’ll be interesting to see what readers think about the classifications.

There's a lot more to say about this; prison officials responded that they already had a lot of literature on the black experience in America in their collection.  It's worth comparing the two lists.  For example, Booker T. Washington’s Up From Slavery appears on the prison’s list.  But nothing like it is to be found on the court’s list of books to be added.  One other quick observation: it’s surprising what isn’t in that list as well.  For instance, I would have expected more James Baldwin.

The special master, Vincent Nathan (who used to teach at the University of Toledo Law School), was kind enough to correspond with me about how the list of books was assembled.  He remembers that it came from a group of law librarians.  The list may, thus, say more about the intellectual interests of librarians than about the needs or attitudes of the plaintiff class.  But even then I think it's informative of what people thought ought to be included on a list of the "black experience."  Much left to talk about here. 

Bradley and Gulati and the Sine Curve of Customary International Law

This past weekend, Duke Law School hosted a fabulous conference on Curtis Bradley's and Mitu Gulati's new article on Opt Out in Customary International Law (it's called "Withdrawing from International Custom").  Alas, the one big snow storm of the year hit the triangle on Friday night.  Though at least one person came from the UK, I was stuck eight miles away at my house in Chapel Hill.  I spent the day listening via telephone and watching the blooms on my cherry tree, which thought spring had arrived, freeze.  I suppose this post might just as well be titled, "Snowbound." 

Most of the conference -- and the paper as well -- relates to contemporary issues of whether nations should be able to opt out of "customary international law."  I guess I'm enough of a traditionalist that I'd think, it ain't custom unless countries have opted in at some point.  And I'm enough of a progressive in my thinking (I'll explain this below) that once something is identified as "custom," you shouldn't be able to opt out.  But there's obviously a lot of sophisticated thinking on this and particularly on -- if we do allow opt-out -- how that opt-out would work and in what situations we should allow opt out.  Most of this is above my pay grade, as President Obama says.  But there are two things in the paper that I want to return to.  (I wrote about their paper a while back and what I'm calling the "sine curve" in the interpretation of customary international law.)

First, is the trajectory of the idea of customary international law from 1800 (or thereabouts) to 1920.  The starting position is a loose sense of custom -- it's only customary if all "civilized" nations agree; if they don't agree, it's not custom.  And it's not binding unless everyone agrees.  Or so I'm led to believe from the Bradley/Gulati paper.  This fits with what we see in a lot of US cases, like Johnson v. M'Intosh.  And it makes sense in an era when we have a robust sense of the dignity of nations; and probably also don't have a strong enough enforcement means to compel other countries to follow any law that they don't agree with.   It's also a way to avoid a lot of conflict -- we don't apply rules unless everyone agrees on them.  Finally, it fits with the general judicial conservatism of the era.  

After the US Civil War, however, commentators and then courts shifted to a different view: that customary international law was not something you could opt out of.  Once it was established, it was binding, even if a country no longer agreed to it.  And that's more or less the position we are in now, though Bradley and Gulati suggest maybe we should go back to the opt-out regime.

In my earlier post I began to suggest some of the reasons for this shift in thinking, at least in the United States: part of this relates, I'm hypothesizing, to the idea popular throughout the nineteenth century that morals are progressing and that we're in a better position to judge (and enforce) morality than were previous generations.  Here are two other data points that I'd like to add to the mix.  First, in the years leading into Civil War, the opt-out of customary international law correlated with the southern idea that the Constitution was a compact and that southern states could opt of it.  One bit of data supporting this, is that southerners invoked Vattel's international law handbook for their argument about withdrawing from the union.  Vattel also was used to support the opt-out from customary international law argument.  The nullification controversy in South Carolina in the early 1830s had something to do with the dignity of South Carolina as a state. So it makes sense that they turned to one analogous literature (on  international law) as a font for their own domestic law arguments.

Second data point:  after the Civil War, our national identity was that the south's moral relativism (slavery is good in some contexts and at some times) -- which was related to the romantic-era ideas about specific context rather than universal, Enlightenment truths -- was wrong.  During Reconstruction and following it, what one might term the Second Enlightenment, there were certain moral truths.  We had fought a war over those truths and we were expecting that others abide those truths.  One explanation for post-war formalism (I know, I know, it's not clear formalism is still a useful explanatory category) is that it emerged from the sense of moral truths that abolitionists advanced.   I'm not sure that's right, but I think that we emerged from the Civil War with at least some missionary zeal for moral truth -- and we also emerged from it with the military clout that we could enforce those principles.  We had weight to throw around and we were comfortable doing it.  Then there's also a related principle of national self-assurance, born perhaps partly from the "scientific" literature on race that taught that people of European descent were smarter than other races.  All of this pointed in the direction of establishing principles and then enforcing them, without allowing some countries to back out.  The moral sense was that there was a one-way ratchet up.

Because I love antebellum landscape art, I even have a couple of pictures to illustrate these principles.  To illustrate the earlier, opt-out principle, think about Thomas Cole's series of five paintings, Course of Empire.  Cole depicts the same physical spot on the landscape over several millenia -- from a state of nature, to the pastoral state, consummation of civilization, then decline, and desolation.  Yeah--click on them all.  Quite a story of human events on canvas, eh?  Well, that's the image you use when you think civilizations advance and decline, in cycles.  (Want to know more about this?  Here issome more on the idea of progress in landscape art and in property law in antebellum America.)

But, when you're thinking it's one upward climb -- onward and upward forever, well, then you have a very different landscape art.  So by the early 1860s (remember, the Civil War began in 1861) we had paintings like Emanuel Leutze, "Westward the Course of Empire Takes Its Way (Westward Ho!)" (1861).  (See illustration at right).  Or, even better yet, Andrew Melrose's "Westward the Star of Empire Takes Its Way" (1867) (see below right).  How's that train headlight to let you know that Progress is on its way?

So by the post-Civil War era, as we enacted the thirteenth and fourteenth amendments,  we had a self-image of a nation dedicated to spreading civilization around the world.  I suppose the League of Nations is one of the bookends on that optimistic world view.  And of course World War II squared our nation's self-image as protector of moral truths.  In the tough post-war years we have looked into our souls and wondered how often we have failed in that purpose -- but that's at least our national identity.  (And, because this is a post in part about sovereign obligations, I can't resist linking to an image of a confederate bond.  It's hard to see, but the illustration in the upper right is of Richmond -- and it's loaded with scenes of economic progress, like a canal and a railroad!)

Now, some of the participants in the conference were skeptical of the lessons of history.  Why should anyone care about this?  There are two reasons.  The first is sort of inside baseball for legal historians: if we study  the question of opt out of customary international law over two hundred years, we can gauge how legal thought changes, particularly how it changes in relation to parallel (or perpendicular?) changes in moral thought and national identity.  I get that this is a justification of importance to the legal history crowd, much less so to the international law crowd.

But there is a reason that the international law crowd might actually be interested in this sine curve in the jurisprudence of opt-out.  It's because the history seems to matter; I defer to Bradley and Gulati on this, but their paper suggests that the twentieth century history (precedent) is continuing to exert a powerful gravitational pull on the principle that you can't opt out.  

To invoke a phrase that Sarah Ludington, Gulati, and I used in a paper on odious debts, this is a case of applied legal history, where knowing the history may actually help us to clarify the instances, if any, where countries ought to be able to opt-out.  Perhaps some will agree that the rule should still be that once a core of nations have advanced to a new, higher understanding of international law, we should bind other nations.  I'm enough of a child of the nineteenth century to find that appealing as a doctrine.  But I recognize that others may have a very different attitude, perhaps one skeptical of the United States' motivations and wisdom in pushing principles of customary international law.

The Modern Greek Drama, Part 2

In my last post, The Modern Greek Drama: Comedy, Tragedy, or Both?, I offered the insights of Cleary Gottlieb Steen & Hamilton partner and sovereign debt guru, Lee Buchheit, on the current Greek sovereign debt drama.  In this post, Buchheit’s frequent co-author, Duke law professor Mitu Gulati, discusses his reactions.

The spectre of a string of sovereign defaults -- remember the drama over the Dubai World default some months ago -- is back again.  It was the scare over Dubai that appeared to get the markets to ask whether there were other economies that might produce surprise defaults.  Attention moved from the usual suspects in regions like Latin America to the previously unthinkable members of the European Union.  Specifically, to Greece (and maybe now also to Italy and Spain).  Risk premiums increased and serious scrutiny was put on Greece’s finances in particular.  A couple of months later, the markets do not like what the heightened scrutiny has revealed (the words “book cooking” or their equivalent show up frequently, see Charlemagne's notebook in The Economist.).

 

But what precisely is going on?  Do sophisticated investors seriously think that Greece will be allowed to default?  Won’t the IMF or the European Union be sure to bail them out?  After all, a default in Greece would present the risk of spillover effects into its European compatriots.  And some of those other European nations appear not to be in the best of fiscal conditions (read, Italy and Spain) and others (like the U.K.) are very much hoping to be climbing out of a painful recession.

 

In theory, there is a constraint on a Eurozone bailout.  The Lisbon Treaty imposes a “no bailout” provision.  I am no expert on European treaties, but am guessing that one of the functions of this clause is to provide a protection against moral hazard.  In relevant part (see Tony Barber’s FT blog post from last week), the Lisbon Treaty says that assistance is permitted if a Eurozone member  “is in difficulties or is seriously threatened with severe difficulties caused by natural disasters or exceptional occurrences beyond its control, the Council [of national governments], on a proposal from the Commission, may grant, under certain conditions, Union financial assistance to the member-state concerned.”  That clause is probably supposed to function as a commitment device.  It tells the more profligate among the European spenders that the more austere nations (think Germany) will not come to their rescue even though the failure to rescue has the potential to cause harm to the entire Eurozone community. 

 

Well, the rubber seems to have met the road, and the question is whether anyone will take the “no bailout” clause seriously.  If the clause were taken seriously, there would be no bailout because financial profligacy (along with a dose of book cooking) are probably precisely the circumstances under which the commitment against bailouts was supposed to operate.  In other words, not the “exceptional circumstances” contemplated by the treaty.  The question though is whether the political flesh will be weak (as it usually is) and whether, so long as Greece makes some efforts in the direction of showing that it is serious about austerity, a bailout will be in the offing.  Many experts seem to think that the inconvenient clause will either be explained away or just ignored.  If so, that should lead us to ask: Does anyone take moral hazard seriously anymore?  Or have the pundits decided that the costs of moral hazard are not that high?        

 

-- Mitu Gulati

 

Much like bad luck, great blog posts on sovereign debt crises come in threes.  Stay tuned tomorrow for an upcoming post from Anna Gelpern, Associate Professor of Law at American University, who’ll add her views to the mix.

Related posts:

The Modern Greek Drama: Comedy, Tragedy, or Both? (Reactions from Lee Buchheit)

Verge of the Unböring (The Modern Greek Drama, Part 3) (Reactions from Anna Gelpern)

The Modern Greek Drama: Comedy, Tragedy, or Both?

Earlier this month, we asked the question, “Is 2010 The Year of Odious Sovereign Defaults?”  As predicted, Greece (and Europe more generally) will have to answer that question soon.  According to Bloomberg:

Jan. 29 (Bloomberg) -- Greece is losing the confidence of bondholders that it will reduce the largest budget deficit in the European Union amid increased speculation that the country won’t be able to meet its debt obligations.

The nation’s government bonds are the world’s worst performers in January, losing 6 percent in local currency terms and extending their decline over the past three months to more than 11 percent, Bloomberg/EFFAS indexes show. Credit-default swaps tied to Greece trade at about the same levels as Dubai when it got a $10 billion bailout from Abu Dhabi in December. . . .

The German and French governments denied a report yesterday in the newspaper Le Monde that European Union member states are examining ways to provide assistance. Prime Minister George Papandreou said the country doesn’t need to borrow from European nations. . . .

“There is no bailout problem,” the bloc’s top economic official said in an interview with Bloomberg Television at the World Economic Forum’s annual meeting in Davos, Switzerland. “Greece will not default. In the euro area, default does not exist.”

For more, see Mish’s Global Economic Trend Analysis and Charlemagne's notebook in The Economist.

I asked Cleary Gottlieb Steen & Hamilton partner and sovereign debt guru Lee Buchheit for his reactions to the Greece situation and, gracious as ever, he agreed. Buchheit’s response is below. Buchheit’s frequent co-author, Duke law professor Mitu Gulati, has also agreed to post about his reactions to the Greek drama, and his post will follow in due course. 

Borrowing money has several things in common with substance abuse.  It can be hideously addictive.  It provides an anodyne to today's budgetary discomfort, while laying in store even more suffering down the road.  And, until the very end, the afflicted will deny the problem. 

When the addict is an individual or a corporation, a mechanism (bankruptcy) exists by which the creditors who unwisely or unknowingly fed the addiction will share the pain of withdrawal.

Sovereign borrowers are different.

With any luck, the government that resorts to borrowing as a means of covering its budget deficits in normal times (such deficits being the product of a politically understandable aversion to taxation coupled with an equally understandable urge to spend) won't be around when the time comes to repay the debts.  This may trouble the conscience of statesman; it doesn't seem to disturb the sleep of most politicians.

But when the day of reckoning does arrive for the sovereign debtor, however, no formal bankruptcy process can be relied upon to shift part of the pain to the creditors.  For the addicted sovereign borrower, the choices are (i) impose fiscal austerity to a degree that will convince some group of lenders -- official or commercial -- to refinance the maturing (inherited) debt stock until such time as good fortune can allow the debt stock to be rolled over on a purely voluntary basis, or (ii) default and restructure as best one can.

Neither option is pleasant.

The first requires the government to convince its citizens to accept a degradation of their standard of living in order to expiate the sins of their profligate forebears.

The second (restructuring), quite apart from national humiliation, forces the debtor country into the financial equivalent of cold turkey.  Whatever residue of the debt is left after the restructuring (as well as all other expenditures) must be serviced out of current government revenues with no expectation of new credit inflows for an indeterminate period of time.

Greece finds itself facing these two options.   The smart money -- at least the buyers of Greek bonds this week -- bet on the first alternative: self-imposed fiscal austerity at a level that will unlock a bailout (from the Eurozone, a coalition of willing Eurozone members or perhaps the IMF).

There are three risks.  First, the required fiscal austerity proves to be politically or socially untenable and is abandoned.  Second, the expected bailout fails to arrive notwithstanding the government's adjustment efforts.  Third, someone (like the IMF) demands BOTH fiscal austerity AND a debt restructuring.  This, after all, was precisely what dozens of over-indebted countries, starting with Mexico in 1982, were told to do in order to win IMF support.

-- Lee C. Buchheit

Lee’s point about the stark choices faced by sovereign borrowers reminded me of Reinhart and Rogoff’s discussion of the importance of willingness to pay versus ability to pay in the sovereign context.  (Coincidentally, I’ve assigned This Time Is Different: Eight Centuries of Financial Folly to my Ethics in Financial Crises class this month, and that chapter is particularly salient right now).  According to Reinhart and Rogoff (pp.51-52):

[C]ountry default is often the result of a complex cost-benefit calculus involving political and social considerations, not just economic and financial ones.  Most country defaults happen long before a nation literally runs out of resources.

In most instances, with enough pain and suffering, a determined debtor country can usually repay foreign creditors.  The question most leaders face is where to draw the line.  The decision is not always a completely rational one.  Romanian dictator Nikolai Ceausescu single-mindedly insisted on repaying, in the span of a few years, the debt of $9 billion owed by his poor nation to foreign banks during the 1980s debt crisis.  Romanians were forced to live through cold winters with little or no heat, and factories were forced to cut back because of limited electricity.

Few other modern leaders would have agreed with Ceausescu’s priorities.

Related posts:
The Modern Greek Drama, Part 2 (Reactions from Mitu Gulati)
Verge of the Unböring (The Modern Greek Drama, Part 3) (Reactions from Anna Gelpern)

LaVerne Immigration Law Symposium

On February 19-20 the LaVerne Law Review is hosting an immigration law symposium, "Encountering Stereotypes."  Hiroshi Motomura  of UCLA law school (and before that UNC) will deliver the keynote address, "What Is 'Comprehensive Immigration Reform'?"  

Motomura is the author of, among other works, Americans in Waiting: The Lost Story of Immigration and Citizenship in the United States.