Salt Blog

By SpearIt A recent op-ed in the New York Times entitled “Are Law Schools and Bar Exams Necessary” by economist Clifford Winston suggests a number of ideas which are both negligent and flawed.  Despite that I’m usually appreciative of the reports and studies issued by the Brookings Institution, Winston’s home institution, this opinion left lots to be desired.

Despite a stalled economy, sunk in part by decades of deregulation within the banking and investment communities, the US Chamber of Commerce is spending fortunes on Capitol Hill in an anti-regulation campaign directed at sweeping away any government involvement in policing corporate wrongdoing, environmental standards, healthcare, financial and other regulatory protections. This is being reported in the October 31, 2011 The Nation in the article “The GOP’s Obsession with Deregulation” by Robert Weissman, who just so happens to be president of Public Citizen and co-chairs the Coalition for Sensible Safeguards. The Chamber’s tactic is using the stubborn unemployment figures to claim that regulation, in any form, is really just another word for “job killers.” The same deregulation rhetoric is surfacing once again as the comprehensive review of the ABA standards moves into its final year.

A multi-year empirical study presents evidence that a diverse law student body combined with intergroup contact makes a verifiable difference in law students’ exposure to a diversity of ideas and perspectives and decreases law students’ endorsement of racially prejudiced attitudes. An initial report of the study, The Educational Diversity Project: Analysis of Longitudinal and Concurrent Student and Faculty Data: LSAC Grants Report Series, can be found at: http://www.lsac.org/LSACResources/Research/GR/GR-10-01.pdf

by andré douglas pond cummings As if from a script of “what not to do in the face of economic crises,” and as identified by nobel laureate Paul Krugman in his “Rabbit Hole Economics” NY Times Op-Ed, the Tuesday, October 11th Republican Presidential debate highlighted a…

By Lisa R. Pruitt Americans like to think they live in a society unstratified by class, a society of equal opportunity, where the American dream survives.  Joe Bageant, a journalist turned cultural critic, challenged these myths with inimitable intensity, compassion, and wit. Along the way, he reminded us of the links between the nation’s white working class and rural America.  Bageant died earlier this year at the age of 64. I first heard the name Joe Bageant in, of all places, Waarnambool, Australia.  It was November, 2010, and I was there to give a lecture at the Rural and Regional Law and Justice Conference.  After my talk, “Toward a Critical Legal Ruralism,” an Australian law professor approached me and recommended the book Deer Hunting with Jesus:  Dispatches from America's Class Wars by Joe Bageant.  I promptly purchased it.  Who could resist such a provocative title? I found that what the academic literature teaches about class wars, Bageant expressed in sharper, colloquial terms, and I discussed Bageant in my essay, The Geography of the Class Culture Wars. The scholarly literature tells us that progressive elites look down on the white working class and fail to see their struggles, including the struggle within the white working class by which the “settled,” disciplined working class differentiate themselves from the “hard living.” Bageant—consistent with his rural roots—expressed this distinction between the settled and the hard living as that between rednecks and white trash, explaining:

By Dr. JoAnne Sweeny  In English, the verb “procrastinate” comes from Latin, as many big English words do.   It combines the adverb “pro,” which implies a forward motion with the word “crastinus,” which means belonging to tomorrow.  As noted by Ann Enquist in her article Defeating the Writer’s Archenemy, researchers have indicated that between 65 and 90 percent of college-level students procrastinate to the extent that  it has negative effects on their academic performance. Procrastination in the legal world is particularly problematic because so much of practicing law is following deadlines.  Whether it’s a memo for a partner or an important court filing, a document that is even one minute late can cost you.  At the very least, procrastination can annoy your client and foster a bad relationship with opposing counsel.  According to ABA Comments to Model Rule 1.3 on Diligence, “no professional shortcoming is more widely resented than procrastination.” Of course, if your students are procrastinators, this information is hardly helpful.  What may be more helpful for law professors is to help their students figure out why they procrastinate to see if there is something they can do about it.  Even an entire class spent on helping students overcome their procrastination is time well-spent. According to the authors of The Mind Gym: Give Me Time, procrastination isn’t about personality, it’s about thinking.  Someone who declares “I am a procrastinator” makes his or her behavior appear to be a personality trait that is as invariable as his or her height or which hand he or she writes with.  In fact, procrastination is a habit that is caused by faulty thinking or beliefs.  Once your students know what their faulty thinking is, they can attack those thoughts and improve their habits. There are several different kinds of beliefs that can cause procrastination.  Try to help your students see which category or categories they fall into:      1.     Perfection Perfectionists believe that everything they do must be exactly right.  That can lead to being unable to finish a project.  Because the project isn’t “perfect,” and probably never can be, it will never be finished.

by andré douglas pond cummings To most individuals affiliated with SALT as well as lawyers around the world, a hero, mentor, friend and exemplar has passed away. Professor Derrick Bell, the originator and founder of Critical Race Theory, passed on October 5, 2011 in New York City. Professor Bell was 80 years old. Known as a creative innovator and agitator, Professor Bell often sacrificed his career in the name of principles and objectives that have inspired a generation of scholars of color and progressive lawyers everywhere. Bell resigned a tenured position on the Harvard Law School faculty to protest Harvard's refusal to hire and tenure women of color onto its law school faculty. For the past twenty years, Professor Bell taught at NYU Law School. For my own part, Professor Bell's writings seized my imagination in law school and appeared to me as if "manna from heaven" as a second year law student. Bell's scholarship, including his widely influential books Faces at the Bottom of the Well: The Permanence of Racism and And We Are Not Saved: The Elusive Quest for Racial Justice resonated intellectually with me like nothing I had ever encountered before in my life. His desire to disaggregate legal scholarship from its traditional moorings and introduce legal storytelling, narrative, parables and fiction as a new and bold form of legal writing was groundbreaking and changed the legal academy dramatically. My own tribute to Professor Bell appears in my recent Louisville Law Review article "A Furious Kinship: Critical Race Theory and the Hip Hop Nation." I believe that Bell's groundbreaking narrative style struck a cord with me because I had grown up in Southern California listening to the narrative storytelling of groundbreaking hip hop artists. In "A Furious Kinship" I endeavor to parallel the influence of Professor Bell as the patriarch of Critical Race Theory with the influence of Chuck D and Public Enemy, one of the most important socially conscious hip hop artists and groups to ever emerge. In true Professor Bell fashion, when I had occasion to tell him in person of my vision of this influential parallel of powerful voices, Bell as founder of CRT and Chuck D as originator of socially conscious hip hop, he seemed genuinely delighted by this narrative connection, encouraging me to continue the exploration.

Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law I went to my 30th reunion from Harvard Business School two weekends ago, at which I listened to a presentation by a former Bush Administration person about Iraq and Afghanistan.   While the person spoke for…

By Kim D. Chanbonpin  A law professor’s job is to shepherd law students into the legal profession.  We do this by teaching legal doctrine and by engaging in class discussions formulated to get students “to think like lawyers.”  Law school promotes an acculturation process through which students are transformed from law novices into law experts by the time they graduate. Students are subjected to this process in all of their classes, but the legal writing classroom is potentially the most formative.  Most first-year grades are based on a single final exam at the end of a semester.  In the legal writing classroom, by contrast, student performance is assessed at several points during the semester.  Also, students typically have more one-on-one time with their writing professors.  The legal writing classroom is therefore a critical training ground for our future lawyers.   Yet, many students fall victim to the acculturation process that law school imposes.   The relentless process of assimilation to which law students are encouraged to succumb often sacrifices the voices of law students who enter from outsider positions.  The audience for most first-year legal writing assignments consists of legal “insiders”–supervising attorneys or judges.  According to Professor Kathryn M. Stanchi, “[s]tatistically, white, upper-middle class, heterosexual men tend to be overrepresented in these positions.”  The students who do not fit this insider mold can feel isolated and alienated from their legal education.   Professor Charles Calleros has argued that “we sometimes can reduce student alienation by allowing different groups of students to take turns enjoying the status of ‘Insiders’ on a problem, rather than routinely relegating some students to the role of perpetual ‘outsider.’”  Using hip hop as a teaching tool can provide some outsider students with the opportunity to become insiders.   What do hip hop and legal writing have in common?  Both hip hop and legal writing rely on an archive of knowledge.  Both hip hop artists and lawyers borrow from their respective archives to build credibility and authority.  Yet, whether it is from musical recordings or case law, the borrower is drawing from a limited well. 

Written by Hari Osofsky I just spent the weekend in Oregon at a beautiful memorial event for Keith Aoki. The University of Oregon School of Law and Wayne Morse Center for Law and Politics, where he was to have been a visiting scholar this fall, hosted a wonderful…

Two weeks ago SALT collaborated with The John Marshall Law School and Northern Illinois University College of Law to bring to practitioners and recent graduates of color some of the ways to “break into” the legal academy from practice, public interest, and government service. During one of the panels, Rogelio Lasso, commented that back when he was first looking to get a job as a professor, Michael Olivas as the founder of Latino Law Professors, maintained his own list of qualified Latina/Latino attorney-scholars and recent graduates who were ripe to join a law school faculty. Whenever a dean or hiring chair complained that there were no qualified applicants, Michael would pull out his list. Now SALT’s programs, along with LatCrit and the various People of Color conferences, make those secret handshakes and unspoken rules more transparent. The consequence is a slow and steady push towards greater diversity within the faculty ranks of the legal academy. This past weekend, SALT, along with Seattle University School of Law and its Fred T. Korematsu Center for Law & Equality and University of Washington School of Law, presented the third biennial “Promoting Diversity in Law School Leadership” workshop, hosted at Seattle University School of Law. An enormous thank you goes out to Robert S. Chang, associate dean for research and faculty development and executive director of the Korematsu Center for his extraordinary efforts to plan this workshop, recruit the panelists, and ensure that the discourse was subtle, complex, and helpful to candidates, new deans, and those serving on dean search committees.

Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law I can not emphasize enough the importance of the Ali Soufan interviews on 60 minutes (Update 9/15: now available online at http://www.cbsnews.com/video/watch/?id=7380678n&tag=contentBody;storyMediaBox) and PBS's Frontline show for understanding the very disturbing revelations on so many levels from this reporting. First, Soufan reveals the manner by which Enhanced Interrogation Techniques began to be used starting with Abu Zubaydah.  He fundamentally contradicts what in September 2006 President Bush said to the American people were the reasons for the use of the Enhanced Interrogation Techniques.  Abu Zubaydah was talking and was being cooperative.  According to President Bush's presentation, Abu Zubaydah's lack of cooperation was supposedly the predicate to the application of the techniques.  That is demonstrated to have been a false statement to the American people. Second, not only were the Enhanced Interrogation Techniques not needed, but the person doing them was had never previously interviewed an Al  Qaeda person.  Ali Soufan carefully does not mention the name of the CIA contractor who was brought in to do the Enhanced Interrogation Techniques but the interviewer states his name as Mitchell.  In an e-mail yesterday I said we needed to ask what was his name.  His full name is James Mitchell per http://tortureaccountability.org/james_mitchell which corroborates much of what Ali Soufan says.  By contrast, Soufan had interrogated numerous Al Qaeda persons in the years before interviewing Abu Zubaydah.  Mitchell was a CIA contract psychologist with no experience interrogating Al Qaeda types.  Mitchell was the subject of a disciplinary action betore the Texas Board of Psychologists for his role in the interrogation program.  That disciplinary action was dismissed recently by that state board.

By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law On August 11, 2011 it was reported that a Federal Appeals Court in Chicago was allowing an American citizen to continue forward his Bivens action against Donald Rumsfeld for his alleged torture in Iraq.  An article on this case is available at http://www.democracynow.org/2011/8/11/us_navy_vet_sues_donald_rumsfeld.  The particular case is, of course, a civil case.  But what about criminal prosecution? Obviously, a Federal Prosecutor such as John Durham could investigate the same facts that arise in the civil case in federal court and determine whether Rumsfeld should be criminally liable under federal law for the alleged torture.  Given the lack of interest in President Obama in looking backward and what has transpired over the past few years, the question arises whether such a prosecution would be started in federal court by a federal prosecutor. Another option which might be also considered would be a state criminal prosecution under relevant state statutes such as conspiracy and crimes like assault, battery, etc in the relevant state where the injured U.S. and state citizen is from.  Each of our states has an interest as a sovereign under its powers to protect its citizens from depredations by the lawless.  And, as James Madison noted so many years ago in the Federalist Papers, our federalism with dual sovereigns provides a double protection to the rights of the people.

By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law On Sunday, many people may have missed the 60 minutes interview with Ali Soufan, the former FBI agent who was a central interrogator of Al-Qaeda suspects in the early days after 9/11. Everyone should watch that interview (here is a link to a Washington Post story on it http://www.washingtonpost.com/world/fbis-secret-weapon-speaks-out-on-al-qaeda/2011/09/12/gIQALLOwMK_video.html?wpisrc=emailtoafriend) (Update 9/15: the episode is now online at http://www.cbsnews.com/video/watch/?id=7380678n&tag=contentBody;storyMediaBox).  Here is a BBC story from today that captures some of it http://www.bbc.co.uk/news/world-us-canada-14891439 .  Unfortunately the full 60 minutes interview is not up yet. The key points for me are the presentation of the two cases of Abu Jhandal who he interviewed days after 9/11 and the interrogation of Abu Zubaydah - the detainee number one for the introduction of enhanced interrogation techniques. On Abu Jhandal, as is also detailed in the movie the Oath, Jhandal had been in prison in Yemen for 7 months when 9/11 happened and Soufan interrogated him in prison within a week of that horrible day. Soufan read Jhandal Miranda rights and proceeded to deconstruct Jhandal and get him to reveal the Al Qaeda link and 100 pages of information about Al-Qaeda.

(image from illusion.scene360.com) by SpearIt I pen this piece inspired by a once-anonymous law professor and his guilt-ridden revelations about life on the job.  As if at a confession booth behind a screen of secrecy, “Law Prof” sits behind a computer screen and admits his scam.

The Executive Committee (EC) of the Association of American Law Schools sent a memorandum to Deans of Member Schools dated August 22, 2011, announcing that the EC had adopted a dues increase of 3.5% for member schools for calendar year 2012, by amending EC Regulation 3.1, which specifies the amount of annual dues. Under the AALS By-Laws, this dues increase goes into effect unless objection is received from at least ten member schools within 60 days of the mailing of the regulation. A copy of the memorandum was also mailed to all members of the AALS House of Representatives. I received a copy of the memorandum as the NYLS Representative. After reading the memorandum and looking at the financial information attached to it, I recommended to my Dean that NYLS file an objection. I want to share my reactions with fellow SALT members.

by andré douglas pond cummings A quiet storm is brewing on Wall Street as the Obama Administration and the Attorney Generals of 49 states ready themselves to sign a settlement agreement with Wall Street banks that will have the effect of bringing to a close consumer lawsuits and state investigations into the root causes of the subprime mortgage crisis. For a flat-fee lump sum (originally said to be $20 billion), Wall Street banks will agree to pay a collective fine (ostensibly to pay for national loan modifications and consumer counseling), while the 50 states and the Justice Department will agree to end all investigations and lawsuits into the mortgage fraud and subprime recklessness that precipitated the meltdown of 2008. One Attorney General is standing in the way of this so-called "progress." According to Gretchen Morgenson at the New York Times, New York AG Eric Schneiderman is standing alone in opposition to a deal that he deems excruciatingly premature. Per the NY Times: "Schneiderman, the attorney general of New York, has come under increasing pressure from the Obama administration to drop his opposition to a wide-ranging state settlement with banks over dubious foreclosure practices, according to people briefed on discussions about the deal. . . . Mr. Schneiderman and top prosecutors in some other states have objected to the proposed settlement with major banks, saying it would restrict their ability to investigate and prosecute wrongdoing in a variety of areas, including the bundling of loans in mortgage securities." Morgenson reports that the big banks are eager to sign a settlement to put the subprime fiasco behind them. The Obama administration is pushing for the settlement to allow Wall Street banks to have a finite settlement figure in order to plan budgets going forward and to assist homeowners with funds for loan modifications, etc. AG Schneiderman is coming under intense pressure to agree to the settlement but is standing against the agreement recognizing that any settlement figure at $20 billion or less, will woefully undercompensate consumers, pensions, investment funds, etc. for the fraud perpetrated by Wall Street in packaging junk mortgages in triple AAA investment vehicles peddled recklessly to investors.

by andré douglas pond cummings The Pew Research Center just published a report that provides a stark reminder that the disparity in wealth between whites, Latinos and African Americans in this country is a nightmarish problem. In the single largest drop since Pew began collecting data in…

By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law A month or so ago I received a message on a listserv providing a heads-up about the upcoming dedication of the Martin Luther King, Jr. Memorial on the Mall in Washington, D.C.  Events are occurring all this week culminating in the ceremony at 11h00 am on August 28, 2011. Something in my 55 year old soul told me that I had to go.  Maybe it was because back in 1963 in Washington, D.C. I was a little young and I remember my dad being very firm for vague reasons about not wanting us to go outside the house at 501 Upshur Street, N.W. that day.   I don't know. What I do know is that today at the bus stop I had a wonderful conversation with a cleaning lady named Kimbra about the state of the United States right now.  We talked with passion about all the craziness we have seen over these months in the way Americans have acted since Obama became President culminating in the surreal debt ceiling debate and the nonsense we hear on the campaign trail.  We wished that President Obama would show to all that he is free. Maybe John Stewart's Daily Show presentation last night of the complete craziness of the "penny wise and pound foolish" approach of spending cuts only for programs for the middle class and poor without tax increases for millionaires and billionaires got to me.  Maybe it was all the emphasis on coddling the "job creators" while ignoring the 98 per cent of us who are "demand creators" that got to me. Again, I am not sure, but at the bus stop I understood that going back to the Mall to see the unveiling of the MLK, Jr. Memorial is a way for me to proclaim I am free.

Amidst the discouraging stream of newspaper articles and blogs this summer demonizing law school deans, accusing university presidents of raiding law school tuition revenues, and suggesting a giant conspiracy to cover up the fact that there are very few $160,000 a year jobs for recent law school graduates, it appears that only the oblivious might consider enrolling in law school this fall. I beg to disagree. Now is the right time to encourage students from diverse racial, ethnic, and economic backgrounds to consider a legal education. We cannot allow the legal profession a detour from its mission to produce lawyers and leaders from all communities due to the economic downturn.