Brian Leiter's Law School Reports

Fear of "divisive" ideas

From the Emory Law Journal to Critical Race Theory:  historian Jonathan Zimmerman (Penn) comments.

(Thanks to Nadine Strossen for the pointer.)

Penn Law to move forward with faculty process for sanction of a tenured faculty member in Amy Wax case

Ted Ruger, the Penn Dean, sent out this letter today (and several readers shared it with me):

From: Dean's Office <deansoffice@law.upenn.edu>
Sent: Tuesday, January 18, 2022 12:10 PM
Subject: A Message from Dean Ruger

Dear Law School students, faculty, and staff,

Since at least 2017, and most recently again two weeks ago, Professor Amy Wax has repeatedly made derogatory public statements about the characteristics, attitudes, and abilities of a majority of those who study, teach, and work here. In some of those instances, she has exploited her faculty access to confidential information about students in ostensible support of her inaccurate statements.

 

Her conduct has generated multiple complaints from members of our community citing the impact of pervasive and recurring vitriol and promotion of white supremacy as cumulative and increasing. The complaints assert that it is impossible for students to take classes from her without a reasonable belief that they are being treated with discriminatory animus. These complaints clearly call for a process that can fairly consider claims, for example, that her conduct is having an adverse and discernable impact on her teaching and classroom activities.

 

Taking her public behavior, prior complaints, and more recent complaints together, I have decided it is my responsibility as Dean to initiate the University procedure governing sanctions taken against a faculty member.  As I have already discussed with Faculty Senate leadership, I am aggregating the complaints received to date, together with other information available to me, and will serve as the named complainant for these matters.  This process is necessarily thorough and deliberate, but using it allows consideration of the range of minor and major sanctions permissible under the University’s rules.

 

As this process takes place, my colleagues and I will continue the daily work of the University of Pennsylvania Carey Law School in training and supporting brilliant attorneys from the broadest possible range of backgrounds, ensuring equitable treatment in the classroom and throughout our institution.

 

Ted Ruger

A few thoughts below the fold.

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Lateral hires with tenure or on tenure-track, 2021-22

These are non-clinical appointments that will take effect in 2022 (except where noted); I will move the list to the front at various intervals as new additions come in.   (Recent additions will be put in bold.)  Last year's list is here.

 

*Michelle Adams (civil rights, constitutional law, law & race) from Cardozo Law School/Yeshiva University to the University of Michigan.

 

*Mario Barnes (constitutional law, criminal law, national security law, race & the law) from the University of Washington, Seattle (where he is Dean) back to the University of California, Irvine (effective January 2022).

 

*John R. Brooks (tax law & policy) from Georgetown University to Fordham University.

 

*Kami Chavis (criminal law & procedure) from Wake Forest University to the College of William & Mary.

 

*Ming Hsu Chen (administrative, immigiration, and constitutional law; law & society) from the University of Colorado, Boulder to the University of California, Hastings.

 

*Raff Donelson (criminal law & procedure, jurisprudence) from Pennsylvania  State University-Dickinson School of Law to Chicago-Kent College of Law/Illinois Institute of Technology.

 

*Doron Dorfman (health & disability law, employment discrimination, empirical legal studies) from Syracuse University to Seton Hall University.

 

*Tabrez Y. Ebrahim (law & technology, patent law, property) from California Western School of Law to Lewis & Clark (untenured lateral).

 

*Taleed El-Sabawi (health law & policy) from Elon University to Florida International University (untenured lateral).

 

*Brenner Fissell (criminal law, local government law, military law) from Hofstra University to Villanova University (untenured lateral).

 

*Matthew L.M. Fletcher (Federal Indian law) from Michigan State University to the University of Michigan, Ann Arbor.

 

*Marissa Jackson Sow (property, contracts, law & race) from St. Johns University to the University of Richmond (untenured lateral).

 

*Shirley Lin (employment law, antidiscrimination law, law & gender, law & race) from Pace University to Brooklyn Law School (untenured lateral).

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"Remembering Dr. King"

Professor William Hollingsworth (Tulsa) was there for the March on Washington.

Chemerinsky on the Amy Wax case

A propos L'Affaire Wax, Dean Chemerinsky (Berkeley) is quoted in this article:

I loathe what Amy Wax has said....But academic freedom protects her right to say it and a revocation of her tenure would violate principles of academic freedom...A core aspect of academic freedom is that both faculty members and students can engage in intellectual debate without fear of censorship or retaliation. This includes the right to express hurtful views.

Political pressure is mounting on Penn to fire Amy Wax... (UPDATED)

FOR THOSE COMING HERE BY WAY OF RICHARD PAINTER, PLEASE SEE THIS AND THIS.

...despite the fact that she can't legally be fired for her offensive speech, as we noted previously: 

Under the AAUP definition of academic freedom, "extramural" speech by faculty is protected speech that cannot be sanctioned by a university employer.  Yet even the First Amendment right of public sector employees to free speech can be outweighed by the employer's interest in running its workplace efficiently and without excessive disruption (the "Pickering test").  One can imagine a court being sympathetic to a private university's invocation of similar reasoning.  Certainly Professor Wax is speaking on a matter of "public interest" (immigration policy), but does her speech impede Penn's ability to perform its educational mission?   This will turn on information not in the public domain:  Do students still take her classes?  Do certain racial and ethnic groups avoid her classes? Is there any evidence of racial harassment or misconduct in the classroom?   Student offense should not be a metric for the acceptability of faculty speech, for obvious reasons; but at some point, offensive and inflammatory speech by a faculty member could, in principle, impede the school's ability to perform its pedagogical functions.

Given the now extraordinary external political pressure being brought to bear, it will be hard for Penn to show that any rationale it offers for terminating Wax is anything other than pretextual.

This is yet another instance where, to quote another law professor (speaking, in that case, about the unhinged Richard Painter):  "It is a shame that faculty do not have a 25th amendment to invoke against their colleagues in situations like this."  Principles of tenure and academic freedom, however, rule that out.

UPDATE (1/14):  FIRE has shared with me the following statement on the Wax case by attorney Adam Steinbaugh, an attorney for Foundation for Individual Rights in Education:

We are disappointed by Penn Law’s statement that it is considering bringing disciplinary action against professor Amy Wax, and call on Penn to immediately abandon that effort. Neither Wax’s tenure nor the freedom of expression Penn promises to its faculty are subject to public approval. They exist to protect not only popular but also deeply unpopular speech. Weakening these principles because people find one professor’s speech objectionable will dilute them for all faculty across the ideological spectrum, including those facing efforts by lawmakers to restrict academic speech on race in America. Abandoning these commitments will most hurt those untenured faculty who can only rely on their institutions’ commitments to freedom of expression.

ANOTHER UPDATE (1/15):  Predictably, the unhinged Richard Painter has been ranting and raving ever since he noticed the parenthetical reference to him, above.  (Thanks for linking, Richard, you put money in my pocket every time you send visits my way!)   He is sufficiently dense that he can't figure out what the point of the original post was, so let me try to make it clearer for simpletons:   the AAUP definition of academic freedom, to which Penn is committed, protects faculty from sanction by their university for offensive extramural speech.  (That's why you can't have a 25th Amendment for unhinged faculty.)   Arguably, however, if extramural speech interferes with the ability of the faculty member or the institution to performs its functions (hence the analogy to Pickering), a university could sanction the faculty member.  Unfortunately, the extraordinary political pressure being brought to bear to fire Wax would make any such move by Penn now seem merely pretextual:  it would be clear she was being punished for her offensive speech.

Richard has been demanding Penn fire Wax, since, of course, he has consistent and unbridled contempt for the academic freedom rights of faculty in all cases, not just this one.  (Recall his go-to lie about me, which also involved an academic freedom issue; this led one of his own Minnesota colleagues to write to me, "I am truly sorry that you've had to endure what, I agree, has been a terrible misrepresentation of your statements and attempt to twitter-harass you."  That's quite an achievement, Richard, when your own colleagues have to apologize for your serial dishonesty!)   Could Minnesota sanction Richard for his unhinged behavior under the Pickering standard?  I doubt it.   It is true that his endless vendettas of "twitter-harassment" against me and other academics--not to mention his sadistic and continuing persecution of a woman he has acknowledged has mental health problems--are not matters of "public concern"; and it is probable that this crazy behavior has damaged the reputation of Minnesota in the legal academic community; but I have seen no evidence it has interfered with the school's educational functions.

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Koppelman on Emory Law Journal's rejection of an invited symposium piece as "hurtful" and "divisive"

Andrew Koppelman (Northwestern) writes about the incident at CHE:

The law journal had invited papers for a symposium honoring Michael Perry, one of the most important living constitutional theorists. An invitation of this sort normally includes a commitment to publish if basic scholarly standards are met. One invitee was the University of San Diego professor Larry Alexander, whose piece engaged with Perry’s work on racial discrimination. Alexander argued that the principal causes of Black poverty are not racism but the cultural factors that have produced family disintegration, which in turn have produced poor educational achievement and crime.

 

The Emory editors told Alexander that they would not publish his essay unless he deleted an entire section of his discussion. Their initial memo declared that “our comments are merely suggestions and you should feel free to incorporate or dismiss these suggestions as you see fit.” It noted that “as a prudential matter, the refutation of the presence of systemic racism might be a highly controversial viewpoint.” But when it became clear that Alexander would stick to that thesis, the editors evidently changed their minds. The next email was an ultimatum. It conceded that “there are fair points of intellectual disagreement that would not necessarily warrant the extreme action of withdrawing our publication offer.” But, they said, his piece was “hurtful and unnecessarily divisive"....

 

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Halfway through the 2021-22 admissions seasons, applications are now down about 5%

Blog Emperor Caron has the details.

"The Epistemology of the Internet and the Regulation of Speech in America"

The final version of the paper (which will appear in a symposium issue of the Georgetown Journal of Law & Public Policy) is now on SSRN.   I've been gratified by the interest this paper has already attracted, and how useful many legal scholars, especially, have found the notion of epistemic authority.  Here is the abstract:

The Internet is the epistemological crisis of the 21st-century: it has fundamentally altered the social epistemology of societies with relative freedom to access it. Most of what we think we know about the world is due to reliance on epistemic authorities, individuals or institutions that tell us what we ought to believe about Newtonian mechanics, evolution by natural selection, climate change, resurrection from the dead, or the Holocaust. The most practically fruitful epistemic norm of modernity, empiricism, demands that knowledge be grounded in sensory experience, but almost no one who believes in evolution by natural selection or the reality of the Holocaust has any sensory evidence in support of those beliefs. Instead, we rely on epistemic authorities—biologists and historians, for example. Epistemic authority cannot be sustained by empiricist criteria, for obvious reasons: salient anecdotal evidence, the favorite tool of propagandists, appeals to ordinary faith in the senses, but is easily exploited given that most people understand neither the perils of induction nor the finer points of sampling and Bayesian inference. Sustaining epistemic authority depends, crucially, on social institutions that inculcate reliable second-order norms about whom to believe about what. The traditional media were crucial, in the age of mass democracy, with promulgating and sustaining such norms. The Internet has obliterated the intermediaries who made that possible (and, in the process, undermined the epistemic standing of experts), while even the traditional media in the U.S., thanks to the demise of the “Fairness Doctrine,” has contributed to the same phenomenon. I argue that this crisis cries out for changes in the regulation of speech in cyberspace—including liability for certain kinds of false speech, incitement, and hate speech--but also a restoration of a version of the Fairness Doctrine for the traditional media.

In Memoriam: Lani Guinier (1950-2022)

A leading contributor to scholarship on civil rights, voting rights, and Critical Race Theory, Professor Guinier was emerita at Harvard Law School, where she had taught since 1998.  I will add links to memorial notices as they appear.

UPDATE:   An obituary from the Boston Globe, and a memorial notice from HLS.

ANOTHER:  The NYT obituary.

It is now possible to advertise exclusively on this blog

The details are here, and the first ad appears to the right.  Dean searches, faculty searches, calls for papers, journals, conferences new books, and more--anything where you want to reach law faculty and administrators.

Amy Wax, "color consultant"

This designer can't be happy with the notoriety of her namesake's obsession with a different kind of "color."

(Thanks to Curtis Franks for the pointer.)

Some blog highlights from 2021

Here are some of the most widely read posts of the last year (apart from the "most cited" posts based on the Sisk data):

Harvard law professor writes article about Japanese "comfort women"... (February)

A serious academic freedom violation at the University of San Diego School of Law (March)

Corporate Practice Commentator's 10 Best Articles of 2020 (April)

The class composition of the student body at Yale Law School (May)

The Northwestern Law Dean search (May)

Is the age bias in law school hiring a thing of the past? (June)

Call by ABA for comments on significant proposed changes to standard pertaining to non-discrimination and curriculum (June)

A look at this year's lateral moves by race and gender (June)

Do academic norms and politics mix?  The Case of Richard W. Painter (July)

Citation counts vary by field (August)

U.S. News is not going to produce its own scholarly impact rankings using HeinOnLine (August)

Ten lateral faculty move that made law professors take notice during 2020-21 (August)

University of Minnesota law professor calls out his colleague Richard Painter's lies (September)

Sag v. Sisk on scholarly impact rankings (September)

Simon Lazarus YLS '67 on Yale Law School's problems and what to do about them (November)

University of Illinois-Chicago has gone crazy:  the latest on the Kilborn case (December)

Professor Ramseyer responds to critics of his article on prostitution contracts and Japanese "comfort women"

We noted the controversy last year (e.g., here and here), and now Professor Ramseyer (Harvard) has prepared a vigorous defense, which he kindly gave permission to share:  Download Ramseyer response to critics SSRN-id4000145.

UPDATE:  One of the few responses published in an academic journal is this one, which Professor Ramseyer mentions in his reply.

The truth comes out: "Amy Wax is not woke."

That's the apt gloss by the funniest law professor on Twitter on the latest "wisdom" courtesy of Professor Wax.  First she disparaged African-American students at Penn, now she's come for the "Asians" (with a jab at her least favorite racial group thrown in as well):

In the case of Asians in the U.S., the overwhelming majority vote Democratic. In my opinion, the Democratic Party is a pernicious influence and force in our country today. It advocates for “wokeness,” demands equal outcomes despite clear individual and group differences in talent, ability, and drive, mindlessly valorizes blacks (the group most responsible for anti-Asian violence) regardless of behavior or self-inflicted wounds, sneers at traditional family forms, undermines and disparages the advantages of personal responsibility, hard work, and accountability, and attacks the meritocracy.

 

I confess I find Asian support for these policies mystifying, as I fail to see how they are in Asians’ interest. We can speculate (and, yes, generalize) about Asians’ desire to please the elite, single-minded focus on self-advancement, conformity and obsequiousness, lack of deep post-Enlightenment conviction, timidity toward centralized authority (however unreasoned), indifference to liberty, lack of thoughtful and audacious individualism, and excessive tolerance for bossy, mindless social engineering, etc.

Soon the only students who can safely take her classes at Penn will be Jews and WASPs.

ADDENDUM:  An opinion writer at a local Philadelphia magazine reviews the history of her remarks (as of 2019) and, predictably, called for Professor Wax to be fired.  Penn Dean Ruger has issued an even stronger condemnation than before of her recent racist tirade (quoted above). 

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"The Most Important Problem of Contemporary Legal Philosophy"

Papers from an international conference last May are now out in Annals:  Belgrade Law Review, with contributions by Pierluigi Chiassoni (Genoa), Tomasz Gizbert-Studnicki (Jaggellonian U, Krakow), Frederick Schauer (Virginia),Torben Spaak (Stockholm), and myself.  My paper, "Back to Hart," can be downloaded here; the abstract:

The essay addresses two different senses of important “problems” for contemporary legal philosophy. In the first case, the “problem” is having forgotten things we learned from H.L.A. Hart, and, partly as a result, encouraging pointless metaphysical inquiries in other directions that take us very far from questions about the nature of law and legal reasoning. In the second case, the “problem” is to attend more carefully to Hart’s views and his philosophical context to think about the problem of theoretical disagreement, and to understand the way in which later commentators have misunderstood his behaviorist (Rylean) analysis of “accepting a rule from an internal point of view.”

Probably the most important claim is the last one about Ryle's influence on Hart's characterization of the "internal point of view."  As I put it in the paper:

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In Memoriam: Douglas A. Kahn (1934-2021)

A leading tax law scholar, Professor Kahn taught at the University of Michigan Law School for more than a half-century.   He passed away in late October of last year.   There is an obituary here.

(Thanks to Anita Bernstein for the pointer.)

In Memoriam: Stephen D. Sugarman (1942-2021)

A leading scholar in two different fields--torts and education law--Professor Sugarman was a member of the Berkeley Law faculty since 1972.  I will add links to memorial notices as they appear.

Merry Xmas from your lawyer