Carbado on Can You Be Black and Teach That?

Devon W. Carbado, UCLA School of Law, is publishing Can you be Black and Teach that? in the New York University Law Review. Here is the abstract.

Notwithstanding the broad literature on race and constitutional criminal procedure, scholars have rarely engaged the epistemological burdens Fourth Amendment law imposes on Black students and faculty. Those burdens derive from a fundamental and insufficiently acknowledged disjuncture: despite the rights-protecting language in the Fourth Amendment (in particular, its prohibition against “unreasonable searches and seizures”), Fourth Amendment law is, for Black people, a domain of existential violence. It is Fourth Amendment law that determines when and how the police may engage us in our homes, in our cars, at school, and on our streets—and it is Fourth Amendment law that produces and governs the anti-Black border between surveillance and death. This fraught and necrological feature of Fourth Amendment law sets the doctrinal terms on which Black students must learn, and Black faculty must teach, the law. In that regard, the violence Black people encounter in the context of engaging Fourth Amendment jurisprudence is against the very Black body they occupy. This Article describes that normalized epistemological environment. One might think of the account the Article provides as a pedagogy of the Black body, or more precisely, as an articulation of what the Black body can teach us about the racialized “field of pain and death” Fourth Amendment law produces. That field includes a constitutional archive that requires Black people to learn and teach law through our legally sanctioned disposability. Fourth Amendment law is thus not merely violent in its social effects; it is epistemologically violent—and legal pedagogy is one of the sites where that violence is reproduced.

Download the article from SSRN at the link.

Published at ContractsProf Blog: Guest Post by Sid DeLong on Legal Fictions

Sid DeLong on Legal Fictions: A Guest Post. Published at ContractsProf Blog.

Hyland on "It Ends With a Lawsuit": Blake Lively v. Justin Boldoni A Mock Trial: Sexual Harassment and Defamation

William Hyland, Vernis & Bowling Law Firm, has published "It Ends With A Lawsuit": Blake Lively V. Justin Baldoni A Mock Trial: Sexual Harassment And Defamation at 32 University of Denver Sports and Entertainment Law Journal 12 (2026). Here is the abstract.

It Ends With Us, adapted from Colleen Hoover’s best-selling novel about a couple in love caught in a cycle of domestic abuse, grossed more than $351 million globally upon its release in 2024. However, rumors of a feud between the co-stars took center stage. After the film debuted, Blake Lively filed a complaint with the California Civil Rights Department (CRD) against Baldoni and his associates. Lively, among other legal claims, alleged sexual harassment, retaliation, intentional infliction of emotional distress. Baldoni denied all allegations and filed his own defamation suit against Lively. A trial is tentatively set for May 18, 2026, in New York Federal court. This article attempts to analyze what a “mock” trial of the case would look like in Federal court, analyzing the legal allegations on both sides, the burden of proof necessary to prove the various claims, including defamation and sexual harassment, affirmative defenses, the major witnesses to be called, possible opening arguments for both sides, jury instructions, and a potential jury verdict.

Download the article from SSRN at the link.

Wieboldt on Ken Kersch and the New Legal History

Dennis J. Wieboldt, III, has published Ken Kersch and the New Legal History: Beyond the Internalist/Externalist Divide at 4 J. Am. Const. Hist. 27 (2026).

The death of Kenneth Ira Kersch on November 27, 2024, was devastating to the family, friends, and students of the late Boston College political scientist. So too was Kersch’s passing a tremendous loss for scholars of American constitutionalism, many of who awaited his completion of a planned, three-volume series on the subject. But over the course of his twenty-five-year career, Ken Kersch taught his students and colleagues much about the Constitution and the culture in which that creedal document was—and is—embedded. In recognition of Kersch’s contributions to the fields of political science, history, and law, this symposium therefore brings together leading and emerging scholars in all three fields to reflect on Kersch’s legacy. To introduce this symposium, this essay first describes the methodological debates that shaped scholarly thinking around the time of Kersch’s intellectual formation as a graduate student about how best to understand the conditions under which constitutional change occurs. Then, this essay explores how Kersch’s two most well-known monographs—Constructing Civil Liberties and Conservatives and the Constitution—responded to and attempted to move beyond those debates. And in concluding, this essay identifies one enduring methodological lesson of Kersch’s “new legal history”—namely, that scholars ought to foreground the “constitutional imaginations” of the legal advocates and advocacy institutions that most directly mediate judicial decision-makers’ relationships to broader social and political movements.

Download the article from SSRN at the link.

Maher on Teaching Hope: An Interdisciplinary Challenge

Imelda Maher, University College Dublin School of Law, has published Teaching Hope: An Interdisciplinary Challenge as LSE Legal Studies Working Paper No. 33/2025. Here is the abstract.

This paper is a reflection on the experience of creating an interdisciplinary module on Hope with a community of scholars interested in exploring the nature of hope within the classroom. The paper reflects on the elusive nature of hope as a concept and the rewards and challenges for the interdisciplinary group of faculty teaching on it. It explores how that interdisciplinarity creates the need to be aware of implicit hierarchies and known separations between disciplines (methodologically, substantively, theoretically). It notes the importance of making an open space of enquiry to allow for creative engagement on the common concept of hope. The role of academic hospitality in this interdisciplinary space is also explored before concluding.

Download the paper from SSRN at the link.

Balkin and Levinson on Casebooks, Canons, and Constitutional Memory

Jack M. Balkin, Yale University Law School, and Sanford Levinson, University of Texas Law School, are publishing Casebooks, Canons, and Constitutional Memory as a Yale Law School Public Law Research Paper.

Why edit a constitutional law casebook? One might want to shape how professors teach the subject and how students learn it. But the influence of casebook editors is limited. Most students at most law schools will never practice constitutional law, and those that do probably deal with subjects not in the standard introductory course. Editing a casebook involves the construction of a canon. The canon in literature is organized around great works of excellence. By contrast, the canon in constitutional casebooks does not reflect the best opinions ever written; instead it reflects generations of political and legal struggles over the Constitution. There are three kinds of canons in constitutional law, and in constitutional law casebooks: (1) the pedagogical canon of materials that students need to know to be well-trained lawyers; (2) the cultural literacy canon of materials that citizens need to know to understand their constitutional system; and (3) the constitutional theory canon of materials that are grist for the mill of serious academic discussion. Each of these canons has a politics, and different casebooks may align themselves with different political and legal visions and movements. Casebooks are also sites of collective memory. A casebook foregrounds what teachers and students are likely to focus on and remember. What is left out of teaching materials is more likely to be forgotten. Hence constitutional law casebook authors are almost inevitably memory entrepreneurs, who seek to get people to remember certain things or remember them differently. But casebook editors are hardly all-powerful memory entrepreneurs. Authors must work with their coauthors to decide what materials to include and delete in successive editions. Casebook authors face serious constraints from publishers. Publishers demand frequent new editions to undercut sales of used casebooks; and they want casebooks to be ever shorter and simpler to understand. Perhaps most important, casebook authors feel obliged to cover contemporary issues in constitutional law. Those issues are not in their control. They are shaped by the continuous interaction and collision between the political branches and the courts, and especially the United States Supreme Court. In this way the Supreme Court exercises vast control over the content and organization of constitutional law casebooks. This creates important problems of constitutional memory. If the Supreme Court overrules a line of cases, those cases are likely to be flushed down the memory hole unless casebook editors are willing to sacrifice other valued content. The Supreme Court constantly destroys existing canons of constitutional law and reconstitutes them through its choice of cases to decide. Casebook authors must carefully consider how much of this constant churning and change is noise and how much is genuinely important and lasting for understanding the U.S. Constitution. This makes casebook authors' limited choices about what to remember especially important. At most, by placing certain materials before professors and students, casebook authors can provide opportunities to recall and absorb what is most important about our constitutional traditions. Yet what others do with those materials--and those memories--is ultimately beyond casebook authors' control.

Download the article from SSRN at the link.

Bahnson and Shreve on Legal Treatises and the Evolution of Civil Rights Case Law @DukeLawLibrary @DukeLaw

Jane Bahnson and Wickliffe Shreve, both of Duke University School of Law, have published Legal Treatises and the Evolution of Civil Rights Case Law as Duke Law School Public Law & Legal Theory Series No. 2023-68. Here is the abstract.

During the 2022 term, the Supreme Court cited treatises to change legal precedent in two important civil rights cases. We examined the Supreme Court’s use of treatises in previous terms to reverse course on civil rights. Of 315 opinions identified, approximately half included treatise citations, more often by conservative-leaning Justices. This paper discusses the use of treatises by the Supreme Court to support its decisions in civil rights cases.

Download the article from SSRN at the link.

Epps and Green on Black Lawyers Matter: An Oral History of Race-Inclusive Admissions at Yale @TempleLaw @TempleEpps

JoAnne Epps and Craig Green, both of Temple University School of Law, have published Black Lawyers Matter: An Oral History of Race-Inclusive Admissions at Yale as Temple University Legal Studies Research Paper No. 2023-21. Here is the abstract.

Almost no one knows that Yale had the first affirmative action policy of any elite law school in the country. Twelve Black students who were admitted in 1968 formed the largest nonwhite group to attend Yale Law School in 150 years. At the time, race-inclusive admissions were immediately condemned as an “explosive sociological experiment” in apartheid segregation that would damage Yale’s reputation while producing a sense of “intellectual superiority among the white students” and “intellectual inferiority among the Black students.” Critics endorsed a general aspiration for law schools to educate students from racial minority groups, but not at elite institutions like Yale: “There are many good regional and local law schools in Philadelphia, Boston, Los Angeles, and other metropolitan areas, where Black law students . . . can study law in competition with students of similar qualifications and aptitudes.” Despite those critiques and predictions, all of the twelve Black Yale students eventually became judges, professors, civil rights lawyers, government leaders, in-house counsel, or successful private attorneys. For more than fifty years—an “Affirmative Action Era”—elite law schools across the United States have admitted Black students who transformed the history of legal education, the legal profession, and society at large. To understand and document that phenomenon, we sought to contact every Black Yale law student from the entering classes of 1963 to 1978. Using oral history techniques, we interviewed forty-seven people in thirteen states, including one person from each class year. Such interviews offer unparalleled detail about Black students who attended Yale in this period, what law school was like at the time, professional opportunities that emerged afterward, and structural obstacles that individuals had to confront, overcome, or dismantle in law school and throughout their professional lives. This Article uses new historical materials and interpretations to challenge modern stereotypes and generalizations about affirmative action that have been endorsed by prominent critics including Justice Clarence Thomas. Specific historical narratives from former Yale students illustrate dramatic risks of colorblind constitutionalism across the country, and this Article’s multilayered history of affirmative action supports solutions that recognize the profound importance of Black law students in the past, present, and future. 

Download the article from SSRN at the link.

Frazier on The Next Required Law School Course: History of America's Foundings @StThomasLaw

Kevin Frazier, St. Thomas University School of Law, is publishing The Next Required Law School Course: History of America’s Foundings in volume 54 of St. Mary's Law Journal. Here is the abstract.

The Supreme Court has cited the Federalist Papers hundreds of times to analyze the meaning of the Constitution. The Anti-Federalist Papers, on the other hand, receive few citations in the Court’s opinions. The prevalence of Federalist Paper citations and the dearth of Anti-Federalist references necessitate a similar response from law schools everywhere: a required history class that covers the Founding Era, among other periods. The Court’s citations to the Federalist Papers alone evidence the importance of this era to constitutional law. The prominent role of amicus briefs from historians confirms that importance. But law schools must do more than teach what the advocates for ratifying the Constitution believed it meant. They must also provide students with the tools of historical analysis needed to develop a nuanced understanding of what made the Constitution so revolutionary and how its ratification process revealed important hopes and fears. Law schools should also make the Reconstruction Era a part of that required course. Coined The Second Founding by Eric Foner and others, this era transformed the Constitution through the Thirteenth, Fourteenth, and Fifteenth Amendments and witnessed fundamental changes in the general understanding of “We, the People.” This era’s Congress has been called “the Congress of the Revolution” for its work on civil rights. Supreme Court opinions have hinged on channeling the spirit of these “Reconstruction Amendments” and their accompanying legislation. Similarly, many justices have leaned on the spirit and text of these transformational amendments to ensure their core is preserved. For example, in Maine v. Thiboutot, the Court held that laws from the Reconstruction Era “‘must be given the meaning and sweep’ dictated by ‘their origins and their language’—not their language alone.” It is those “origins” that are unacceptably absent from legal pedagogy. Students must also learn how to analyze and respond to legal arguments grounded in historical analysis. Though students necessarily master a narrow type of historical inquiry, identifying and evaluating precedent, too few students learn how to spot and challenge historically-oriented adjudication that activist judges have used to break from precedent. Fearful of being called out for “law-office history,” courts avoid attempting to ground their decisions in superficial historical analysis. This Article makes a case for the American Bar Association requiring law students to complete a history class on the nation’s two “Foundings.”

Download the article from SSRN at the link.

Steilen on Genteel Culture, Legal Education, and Constitutional Controversy in Early National Virginia @MJSteilen

Matthew J. Steilen, State University of New York at Buffalo Law School, has publlished Genteel Culture, Legal Education, and Constitutional Controversy in Early National Virginia at 2023 Law and History Review 1. Here is the abstract.

This article focuses on the movement to reform legal education in early national Virginia, offering a fresh perspective by examining the connection between legal education and society and culture. It challenges the notion that constitutional ideas were the primary driving force behind reforms and argues that social status and “manners” played a more significant role. Wealthy elites in Virginia associated manners with education, sending their sons to college to become gentlemen, as it secured their aspirations to gentility and their influence over society and politics. Reformers sought to capitalize on this connection by educating a generation of university-trained, genteel lawyers who could lead the state’s legislature and its courts. In this sense, educational reform was genteel rather than democratic in its basic assumptions. The article examines the central figure of George Wythe and explores his influence on Virginia’s leading men, including Thomas Jefferson and St. George Tucker. It delves into the student experience in Wythe’s law office and at the College of William and Mary, the success of educational reforms in the central courts, and the effects on Virginia’s constitutional development. The college-educated lawyers who came to dominate the legislature in the early nineteenth century used their training for politics. As these lawyers sought to strengthen the institutions their party controlled, they drove the development of constitutional doctrines like federalism and separation of powers. Note: Creative Commons License This work is licensed under a Creative Commons Attribution 4.0 International License.

Download the article from SSRN at the link.

Lloyd on Langdell and the Eclipse of Character @LloydEsq @WFULawSchool @PittLawReview

Harold Anthony Lloyd, Wake Forest University School of Law, is publishing Langdell and the Eclipse of Character in the University of Pittsburgh Law Review. Here is the abstract.

Christopher Columbus Langdell has not only damaged the study of law with his three follies: his legal formalism, his redacted appellate case method, and his notion that legal practice taints the professor of law. His three follies have also impaired character development critical for legal actors. This Article focuses on four such critical character traits and virtues impaired by Langdell: (i) imagination, (ii) empathy, (ii) balance, and (iv) integrity. Readers wishing to explore virtues beyond those addressed in this Article might note my earlier examination of the role of virtue in good legal analysis found here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4092075. This Article also calls out potential character issues with two professor types inspired by Langdell: (v) the hazing professor who confuses intellectual rigor with intense discomfort and who uses the redacted appellate case method to inflict such discomfort at the expense of better pedagogy, and (vi) the professor without substantial practice experience who is substantially paid to teach what she has never practiced. Agreeing with C.S. Pierce that the best argument is a cable rather than a chain, I end by weaving in a Langdell villanelle (from my Apology Box: https://haroldanthonylloyd.blogspot.com/p/blog-page_4.html) to supplement the prose. I hope such a cable can help lift Langdell and his follies from legal education and the world.

Download the article from SSRN at the link.

Keith on Richard Cockburn Maclaurin: 1870-1920 @WellingtonUni

Kenneth J. Keith, Victoria University of Wellington, Te Herenga Waka Faculty of Law, has published Richard Cockburn Maclaurin: 1870–1920 in Vincent O'Sullivan (ed) Eminent Victorians (Stout Research Centre, Wellington, 2000) at 49. Here is the abstract.

A lecture delivered as part of the Stout Research Centre's Eminent Victorians series. The series celebrates the contribution of a number of Victoria University of Wellington's distinguished scholars and gifted teachers of the past hundred years. In this lecture, Sir Ken Keith provides an insight into the work and legacy of Richard Cockburn Maclaurin, Victoria's first Dean of Law, first chairman of the Professorial Board, first Professor of Mathematics, and first and only Professor of Astronomy.

Download the essay from SSRN at the link.

Chatman on Teaching Slavery in Commercial Law @carlissc @wlulaw

Carliss Chatman, Washington and Lee School of Law, has published Teaching Slavery in Commercial Law. Here is the abstract.

Public status shapes private ordering. Personhood status, conferred or acknowledged by the state, determines whether one is a party to or the object of a contract. For much of our nation’s history the law deemed all persons of African descent to have a limited status, if given personhood at all. The property and partial personhood status of African-Americans combined with standards developed to facilitate the growth of the international commodities market for products, including cotton. The impact of that shift in status persists today. The commodities markets and the nations that arose and prospered would not be possible without the slave trade, and that trade would not be possible without the legal, business, and social norms in place to facilitate private ordering and growth while reinforcing the subjugation of African-Americans. Yet, many business and commercial law professors devote class time to teaching foundational and historical material, without any consideration of the impact of slavery. To avoid slavery in business and commercial law courses is to ignore an institution that played a pivotal role in much of what we do today. Slavery is not a frolic, it is foundational. Many American universities played a role in the slave trade—either receiving funds from the enterprise or receiving the enslaved as donations and using their labor or disposing of them for the financial advancement of the institution. In my Core Commercial Concepts course, a Uniform Commercial Code (UCC) survey class covering Articles 2, 3, 4, and 9, I devote time and space to discussions of race and the law by making the connection between the history of commercial concepts, slavery, and the role of the cotton industry in the shaping of international commercial law norms. In my simulation, described in this essay, I teach the story of Washington and Lee University’s sale of individuals for the purpose of ensuring the institution’s financial survival, then extrapolate from the facts to review the high points of commercial law. I incorporate materials on the legacy of slavery at my own institution to provide students with a scenario based on the acquisition of real property and construction of buildings they engage with on campus. In this essay I explain the methods I use to explore these concepts. Working in a framework that focuses on classification and status, my students consider issues of federalism and the impact of statutory definitions on private ordering, while discussing how these definitions shape the relationship of African-Americans to commerce.

Download the article from SSRN at the link.

Newly Published: Alexander Lian: Stereoscopic Law: Oliver Wendell Holmes and Legal Education (Cambridge University Press, 2020) @CambridgeUP

 Alexander Lian has published Stereoscopic Law: Oliver Wendell Holmes and Legal Education (Cambridge University Press, 2020). Here from the publisher's website is a description of the book's contents.

In this unique book, Alexander Lian, a practicing commercial litigator, advances the thesis that the most famous article in American jurisprudence, Oliver Wendell Holmes's “The Path of the Law,” presents Holmes's leading ideas on legal education. Through meticulous analysis, Lian explores Holmes's fundamental ideas on law and its study. He puts “The Path of the Law” within the trajectory of Holmes's jurisprudence, from earliest scholarship to The Common Law to the occasional pieces Holmes wrote or delivered after joining the U.S. Supreme Court. Lian takes a close look at the reactions “The Path of the Law” has evoked, both positive and negative, and restates the essay's core teachings for today's legal educators. Lian convincingly shows that Holmes's “theory of legal study” broke down artificial barriers between theory and practice. For contemporary legal educators, Stereoscopic Law reformulates Holmes's fundamental message that the law must been seen and taught three-dimensionally.

The book is available through Cambridge Core.

 

Kessler on Family Law By the Numbers: The Story That Casebooks Tell @sjquinney

Laura T. Kessler, University of Utah College of Law, is publishing Family Law by the Numbers: The Story That Casebooks Tell in volume 62 of the Arizona Law Review (2020). Here is the abstract.

This Article presents the findings of a content analysis of 86 family law casebooks published in the United States from 1960 to 2019. Its purpose is to critically assess the discipline of family law with the aim of informing our understandings of family law’s history and exposing its ideological foundations and consequences. Although legal thinkers have written several intellectual histories of family law, this is the first quantitative look at the field. The study finds that coverage of marriage and divorce in family law casebooks has decreased by almost half relative to other topics since the 1960s. In contrast, pages dedicated to child custody and child support have increased, more than doubling their relative share. At the same time, the boundaries of family law appear to remain quite stubborn. Notwithstanding sustained efforts by family law scholars and educators to restructure the field of family law so that it considers additional domains of law affecting families (such as tax, business, employment, health, immigration, and government benefits), the core of the academic field of family law has remained relatively static in the past 60 years. Marriage, divorce, child custody, and child support continue to dominate the topics presented in family law casebooks, representing 55% to 75% of their content since the 1960s.

Download the article from SSRN at the link.

Corcos on Three Ways of Looking at Law and Popular Culture @LSULawCenter @IRPI_Paris_II

Christine A. Corcos, Louisiana State University Law Center, has published Three Ways of Looking at Law and Popular Culture in Propriete Intellectuelle et Pop Culture: Nouveaux enjeux, nouveaux defis 9 (Actes du colloque: PI et pop culture) (Actes du colloque des JUSPI) (IRPI, 2020). Here is the abstract.

In 1989 the Stanford University Law School professor Lawrence Friedman offered a definition of “popular legal culture.” In an often-cited article, he wrote that, “In the first place, legal culture acts as an intervening variable, a mechanism for transforming norms of popular culture into legal dress and shape. In the second place, legal and popular culture, as images of each other, help explicate and illuminate their respective contents”. He notes that law and culture interact in two ways. Law is outward-looking; it depends on and interacts with the society from which it springs. At the same time it shapes that society. We can and do also talk about at least two current and differing uses of law and popular culture in legal education. We can use law and popular culture to teach legal principles. This use makes legal doctrine entertaining and accessible. We can also dig for the messages it gives us about the interaction of law and society. This second method requires us to interact with the texts of both law and popular culture. Currently in legal education we can and do examine at law and popular culture in both of the ways Friedman identifies. I suggest that we can identify and should examine a third intersection of law and popular culture that scholars have begun to study, that I suggest we should formally acknowledge as a part of law and popular culture studies. This third intersection is the actual trans-formative effect or trans-formative turn that popular culture and law have on each other. I would suggest both that certain types of intellectual property studies and certain types of activity fall into this category. One example is law’s response to the creation of fan fiction and of fan use of copyrighted and trademarked materials that force a response from the rights holders, or force fans to cease a particular activity because the rights holders refuse permission to proceed. We have many examples of the legal responses and changes in norms that illustrate these interactions. What we don’t yet seem to have in the general theory of law and pop culture is a definition for this third intersection. It may be that this third intersection is now most obvious in intellectual property law, perhaps because of the accessibility and spread of technology as well as the overwhelming importance of social media in our lives today. It exists in other areas of law as well, for example in family law, in criminal law, in privacy law, and has for some time. I would suggest that this intersection creates the possibility for the working out of the tensions between law and culture, as the public through pop culture identifies how the law works, what the law is, and then reacts to the law, makes demands on the law, and in some cases, forces changes in the law.

The full text is not currently available from SSRN.

Guerra-Pujol, Champnella, Mayo, Travers, and Vitulli on Teaching Tiger King @lawscholar

F. E. Guerra-Pujol, Christiana Champnella, Benjamin Mayo, Morgan Travers, and Antonella Vitulli, all of the University of Central Florida, have published Teaching Tiger King. Here is the abstract.

When our home institution moved all instruction online in response to the global pandemic, we began redesigning our business law survey course from scratch. Specifically, we decided to use the popular docuseries Tiger King: Murder, Mayhem, and Madness to explore the legal and ethical environments of business with our undergraduate students. We deliberately chose this surprise-hit TV show in order to make our online course as relevant, timely, and engaging as possible. The remainder of the paper will describe the contents of each module of the course, explore their relation to Tiger King, and explain the logic of our design choices.

Download the article from SSRN at the link.

Risinger on Female Law Librarians as Pioneer Women Law Professors @SetonHallLaw

D. Michael Risinger, Seton Hall University School of Law, has published Female Law Librarians as Pioneer Women Law Professors: A (Belated) Response to Dean Kay, with Some Suggested Additions to Her Canonical List. Here is the abstract.

The late Herma Hill Kay was the preeminent cataloguer of the pioneer women law professors of the modern era, that is, those who taught after the advent of formalized quality recognition of law schools, either through membership in the Association of American Law Schools (which began in 1900) or through American Bar Association accreditation (which began in 1923). Dean Kay excluded from her list female law librarians who held titles of ordinary faculty professorial rank, apparently because, form her point of view, they were not recognized as “full-fledged” faculty members. In my view this was a questionable omission. The very fact that they were granted professorial rank, at a time when such status was rare for law librarians and even rarer for female law librarians, cuts strongly in favor of adding them to any list of pioneer women law faculty, and to that end the article identifies those librarians who carried professorial rank at ABA/AALS law schools from 1923 through 1959 for inclusion on the list of pioneer woman law professors. But first, the article address a broader methodological point concerning Dean Kay’s list. Dean Kay sought to include in her list of female pioneer law professors only those who would have been fully recognized as members of the legal academy, even by the dominant males of the academy. Under this stringent standard, she counted only female faculty members at schools that were both ABA-accredited and admitted to membership in the Association of American Law Schools (AALS). I have no quibble with a restrictive approach, directed as it is to an important question of the status of women in the legal academy. However, accepting Dean Kay’s time frame, which is anchored to the beginning of ABA accreditation in 1923, I believe it was a mistake to exclude female full-time faculty with professorial rank at ABA-accredited law schools which were not members of the AALS. There were not many of these—the article only identifies three. But these three should be on any list of pioneer woman law professors.

Download the article from SSRN at the link.

Millemann, Rauh, and Bowle on Teaching Professional Responsibility Through Theater @MikeMillemann @robertbowiejr

Michael A. Millemann, University of Maryland School of Law, Elliott Rauh, and Robert Bowle, Jr., are publishing Teaching Professional Responsibility Through Theater in the Hastings Race and Poverty Law Journal (2020). Here is the abstract.

This article is about ethics-focused law school courses, co-taught with a theater director, in which students wrote, produced and performed in plays. The plays were about four men who, separately, were wrongfully convicted, spent decades in prison, and finally were released and exonerated, formally (two) or informally (two). The common themes in these miscarriages of justice were that 1) unethical conduct of prosecutors (especially failures to disclose exculpatory evidence) and of defense counsel (especially incompetent representation) undermined the Rule of Law and produced wrongful convictions, and 2) conversely, that the ethical conduct of post-conviction lawyers and law students helped to partially vindicate the rights of those wrongfully convicted, but could not provide any real remedy for decades of wrongfully deprived freedom. In sharp contrast, the worst and best of the legal profession were on display. We argue that reproducing these extraordinary stories as plays, with students playing the roles of prosecutors, defense counsel, defendants (with not only wrongful convictions but also decades of wrongful incarceration), family members, crime victims, and people in the affected communities, is a powerful way to teach both law students and public audiences about the direct connections between legal ethics rules and the Rule of Law. It teaches as well the ripple effects on many people and communities, not just the parties, of unethical lawyer behavior. The students learned about legal ethics through in depth analysis of the actual case records, from pretrial motions through trial transcripts and appellate briefs (in the nature of ethics autopsies), and from the personal presentations in class by the exonerated men and their families. As important, the students learned about professional responsibility and irresponsibilities, from their immersion in the roles of the lawyers and “secondary” characters, like the affected families of the four men and the crime victims and their communities. The students also learned about competence, including how to work collaboratively to develop and to tell stories, to appreciate cultural differences, to examine witnesses, and to deal with performance anxiety. Because the men, all African Americans, were tried in 1968 (two), 1975, and 1983, the plays served as important points of comparison of criminal justice — criminal law and procedure — then and now. In this respect, the courses also were virtual laboratories in which to explore legal realism and critical legal theory, especially race theory; the true stories were powerful critiques of the romanticized, theoretical model of due process that underlies the formal criminal justice curricula.

Download the article from SSRN at the link.

Lindgren on The Religious Beliefs, Practices, and Experiences of Law Professors @NorthwesternLaw

James Lindgren, Northwestern University School of Law, has published The Religious Beliefs, Practices, and Experiences of Law Professors at 15 University of St. Thomas Law Journal 342 (2019). Here is the abstract.

In the 1990s I surveyed law faculties at the top one hundred law schools, collecting data on professors’ religious affiliations. [Measuring Diversity: Law Faculties in 1997 and 2013, 39 Harv. J.L. & Pub. Pol’y 89 (2016), https://ssrn.com/abstract=2581675] I found that Christians were represented at only about half their percentages in the larger population, while Jewish and nonreligious law professors were substantially overrepresented. Yet knowing whether a professor is, for example, Christian or Jewish only scratches the surface. For the general public, the General Social Survey and the American National Election Studies have long asked about belief in God and church attendance, but these questions had never before been asked of law professors. This article reports the results of a 2017 survey of about 500 law professors. The study first updates the 1997 study on religious preference and then moves on to explore the issues of belief in God, church attendance, and religiously motivated discrimination. Law faculties are substantially less devout than mere reports of religious preferences would indicate. Though religious belief in the general population tends to fall with increased education, that phenomenon does not explain or account for the observed magnitude of the differences. For example, while 24 percent of law professors say that they “don’t believe in God” and another 18 percent “don’t know whether God exists,” among those in the general population who have graduate and professional degrees, only 5.4 percent do not believe in God and 10.4 percent do not know whether God exists. While in this study higher percentages of Christians report religious discrimination than the non-religious, so do higher percentages of Jews and those who embrace “other religions.” As for their schools preferring non-Christians over Christians, Christians are much more likely to report this behavior than Jews or the non-religious, but the percentages reporting having witnessed this discriminatory preference are still relatively small.

Download the article from SSRN at the link.