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January 31, 2022

"Realism about Precedent"

This paper may interest some readers; the abstract:

In jurisdictions with a doctrine of precedent, later courts are bound only by those earlier decisions which are “on point” or “the same in relevant respects” to the case currently before the court.  Since cases are never identical in all particulars, this always requires figuring out which general categories that subsume the particulars of different cases are the relevant ones:  I will call this “relevant similarity” in what follows.  Relevant similarity is typically assessed in light of either the reasons the earlier court actually gave for the decision or the reasons that can be imputed to the earlier court based on the legal decision that court reached.  Realists about precedent—from Karl Llewellyn to Julius Stone to this author—are skeptical that precedent really binds courts.  Realists are skeptical not because they believe judges improperly disregard binding precedents; the worry, rather, is that judges can often properly distinguish precedents that might impede the decision they want to reach on moral or political grounds.  They can do so precisely because judgments of “relevant similarity” that are central to distinguishing are largely unconstrained by law.   First, such judgments depend on inchoate and sometimes unconscious norms that govern general classifications of particulars, about which reasonable people can and do differ, and about which the law is mostly silent.  Second, given the range of permissible characterizations of the earlier court’s reasons in many instances, the requirement that the judgment of relevant similarity or difference be consistent with those reasons imposes only a limited constraint on the general classification employed. 

Posted by Brian Leiter on January 31, 2022 in Jurisprudence | Permalink

Rostron & Levit's guide to submitting to law reviews: a new edition

Professors Rostron and Levit write:


Dear Colleagues,

We  just updated our charts about law journal submissions, expedites, and rankings from different sources for the Spring 2022 submission season covering the 196 main journals of each law school.   

We have created hyperlinks for each law review to take you directly to the law review’s submissions page. Again the chart includes as much information as possible about what law reviews are not accepting submissions right now and what months they say they’ll resume accepting submissions.  Interestingly, 94 websites now say something about whether they are accepting submissions and when they will.  While many of these notes are simply that the law review is not currently accepting submissions, some give specific dates or ballpark time frames for the opening of their submissions season.  The most common designations of “opening dates” were either February or Spring 2022. (Just FYI, in the Northern Hemisphere, Spring begins on March 20, 2022; but we suspect the law reviews are referring to some unspecified date within the season of Spring.)

ExpressO has shut down its submission service for law reviews.

As for submission methods:

Submission portal                                2

Scholastica or submission portal          2 

All-symposia format                            4

Email only                                           41

Scholastica or email                             50  

Scholastica only                                   97

Also, there are a substantial number of law reviews that are listed on Scholastica but do not mention Scholastica in their submission information on their websites, so it is not clear whether the law review encourages or prefers use of Scholastica.  For these law reviews, we have simply noted that it is possible to submit through Scholastica. Authors may essentially be paying $6.50 just to have Scholastica send an e-mail for them; we just don’t know.

The first chart contains information about each journal’s preferences about methods for submitting articles (e.g., e-mail, ExpressO, Scholastica, or regular mail), as well as special formatting requirements and how to request an expedited review.  The second chart contains rankings information from U.S. News and World Report  (overall, peer, lawyers and judges), as well as data from Washington & Lee’s law review website (citation count, impact factor, and combined ratings).

Information for Submitting Articles to Law Reviews and Journals:  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1019029 

We would welcome your forwarding of this link to your faculty.   We appreciate any feedback you might have.

Happy writing!

All the best,

Allen and Nancy

Posted by Brian Leiter on January 31, 2022 in Of Academic Interest, Professional Advice | Permalink

January 27, 2022

Prof. Jason Kilborn (UIC John Marshall Law) files suit against various UIC officials...

...over the ongoing violations of his constutional rights, which we have noted previously.  The complaint is here:  Download Kilborn Complaint as filed.  The exhibits attached to the complaint are here:  Download Kilborn Exhibits as filed

Posted by Brian Leiter on January 27, 2022 in Faculty News, Of Academic Interest | Permalink

Blast from the past: the lawprof debate about giving Phyllis Schlafly an honorary degree at Wash U/St. Louis

Back in 2008.

Posted by Brian Leiter on January 27, 2022 in Deja vu all over again (reposting of earlier items of interest) | Permalink

January 26, 2022

Allegations of misconduct by Amy Wax in the classroom and towards students

The kind of conduct described here enjoys no protection from AAUP academic freedom principles, unlike offensive extramural speech.  If these allegations are confirmed, Professor Wax may be in real trouble this time.

Posted by Brian Leiter on January 26, 2022 in Faculty News, Of Academic Interest, Professional Advice | Permalink

January 19, 2022

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.)

Posted by Brian Leiter on January 19, 2022 in Of Academic Interest | Permalink

January 18, 2022

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.

If the process vindicates the claim that "it is impossible for students to take classes from her without a reasonable belief that they are being treated with discriminatory animus," that might suffice to satisfy something like an analogue of the Pickering standard in the First Amendment context (Wax has no First Amendment claims against Penn, of courses, but she does have a contractual right to "extramural" speech on matters of public concern without fear of sanction) (see my earlier discussion).  Note that the Dean's letter says there are a "range of minor and major sanctions permissible under the University's rules"; termination is not a foregone conclusion here.  If Wax sues for breach of her contractual entitlement to academic freedom under the AAUP definition, she will certainly argue that the process is merely prextetual, a case of the university succumbing to external political pressure (as we noted the other day).

Ironically, the Academic Freedom Alliance just sent this letter to Penn today.

Posted by Brian Leiter on January 18, 2022 in Faculty News, Of Academic Interest | Permalink

January 17, 2022

"Remembering Dr. King"

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

Posted by Brian Leiter on January 17, 2022 in Of Academic Interest | Permalink

January 16, 2022

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.

Posted by Brian Leiter on January 16, 2022 in Faculty News, Of Academic Interest | Permalink

January 14, 2022

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


...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, 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.

But let us end on a more amusing note.  Richard free-associates a lot, so somehow my original post (above, about Wax), leads him to tweet this:

Painter free associating about Wax tenure Chicago

I live adjacent to Hyde Park and work in Hyde Park:   it is not a "war zone" and there is certainly not "lax law enforcement."   There is a huge problem with illegal guns and, of course, poverty.   I didn't "defend[] the job security of every racist at a university," I noted that the AAUP definition of academic freedom protects extramural speech by faculty, including highly offensive speech.  I explained how a university might proceed to sanction a racist faculty member, but noted that it may be hard to do so now given the outside political pressure.  Cops do not have academic freedom rights, and they are subject to a variety of speech restrictions.   Richard, you are either an instinctive liar or the dumbest law professor in America!  Some folks on Twitter, happily, do have his number:

Munny reply to Painter

(Yes, Richard is actually thinking of running against Minnesota Governor Waltz. I've already had one inquiry from a free-lance journalist in Minnesota.  I'm sure the scrutiny of his unhinged behavior and serial dishonesty will no doubt increase if he goes forward with a campaign.)

Posted by Brian Leiter on January 14, 2022 in Faculty News, Of Academic Interest, Richard W. Painter | Permalink