Month: August 2020

Submissions and nominations of articles are being accepted for the eleventh annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility. To honor Fred’s memory, the committee will select from among articles in the field of Professional Responsibility with a publication date of 2020. The prize will be awarded at the 2021 AALS Annual Meeting. Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: [email protected]. The deadline for submissions and nominations is September 1, 2020.

Posted by Rick Garnett on August 23, 2020 at 11:34 AM

The period between 1964 and 1984 was the Golden Age of press cases in the United States Supreme Court. In that twenty-year span, the Court decided more landmark press cases than ever before or since. The press cases decided during this Golden Age contain some of the US Supreme Court’s loftiest rhetoric about the role the press plays in our democracy, and when read as a whole, the cases evince a strong commitment to the idea that the press serves as the Fourth Estate—the unofficial branch of government tasked with checking the other three. Though the Court never wholly embraces the terminology of the Fourth Estate, its foundational decisions contemplate the press playing a vital role in our constitutional scheme of separation of powers. This role makes the press the watchdog that informs us what the legislative, executive, and judicial branches of government are up to and continually replenishes the stock of news – real news – that enables informed public discussion and rational public policy.

As I hope to show in an article I’ve been working on for some time now, the Court during the Golden Age implicitly recognized that the press was a powerful institution that could protect its role in fostering democratic discourse between government and its citizens. Although the Court recognized in dicta the special role played by the press in democracies, the Court was reluctant to grant special privileges to an institution that could leverage its power and resources to fight against incursions by the official branches of government. Thus, the Court granted the press (and often simultaneously individual speakers) strong constitutional protection from direct government censorship, such as prior restraints or compelled publication, but was reluctant to grant affirmative rights such as access to information in government hands (with press and public access to criminal trials being a notable exception).

At the time, the Court had before it impressive examples of the press performing its role of checking government abuse of power and informing citizens without any assistance from the government. The press had the resources and will to deploy investigative expertise, leverage public opinion, and pursue legal challenges to fend off attempts by the legislature or executive branches to limit press power. Moreover, the press of the day played a critical role as an intermediary, facilitating communications between and among the legislative, executive and judicial branches with the public. In light of this, the Court’s reluctance to grant “special rights” or exemptions from generally applicable laws to the media is understandable. It explains how the Court could lionize the press in its rhetoric but still reiterate that the First Amendment provided the press no rights beyond those granted to the public: the press of the Golden Age simply didn’t need government assistance to fulfill its democratic functions. Just as the official branches of government must leverage their political power to win battles in the public arena, so, too, did the Court expect the press to leverage its power and resources to protect its ability to function as the Fourth Estate.

What about now? The press of today bears little resemblance to the press of the Golden Age, and the assumptions about press power underlying the Supreme Court’s Golden Age press cases deserve renewed scrutiny.

The institutional press is no longer the powerful juggernaut of the Watergate era, united by a set of professional norms and capable of uncovering corruption at the highest levels of government by deploying sustained and expensive investigative expertise. Instead, the institutional press has been beset by devastating competitive and economic forces. Advertisers have fled. Just since 2008, newsrooms lost half their employees–and that was BEFORE the pandemic, which promises further newsroom carnage. Traditional media continue to face a crisis of legitimacy, with public opinion about their performance split along partisan lines. The public increasingly turns to social media speakers rather than traditional media for information, further eroding traditional media’s roles as gatekeepers and translators of news and information. At the same time, the President of the United States has conducted a sustained campaign to undermine the credibility of traditional news media, branding them “fake news” and the “enemy of the people” in over 1,900 anti-press tweets between 2015 and 2019. He has also sued journalists for libel, has tried to bar critical reporters from White House press briefings, and has issued executive orders designed to silence other critics. (To be fair, the prior President wasn’t great for the press, either). Meanwhile, money to hire media lawyers to litigate these issues is in short supply.

What seems clear is that traditional media’s ability to play the role of Fourth Estate is declining, and there is no obvious successor stepping into the breach. Instead, we are faced with a diminishing supply of reliable information about what our government is up to, with serious consequences for our democracy.

In my new article, I expect to argue that at a minimum, this decline should lead us to reexamine the assumptions underlying the Golden Age press freedom cases. If the press is less able to use “self-help” to maintain the separation of powers”\ between itself and the official branches of government, than perhaps it is time to impose more affirmative constitutional obligations on government officials to enable an institution or individuals to play a watchdog role. Perhaps some “special rights” must be accorded to those willing and able scrutinize our officials and provide reliable information about what they’re up to. Even though dicta in Roberts Court decisions suggests skepticism of, if not outright hostility to, the press, our democracy depends on an informed citizenry armed with facts and not just opinions about those who govern them. From that perspective, analysis of whether the First Amendment might play a role in shoring up today’s Fourth Estate seems overdue.

Posted by Lyrissa Lidsky on August 21, 2020 at 05:15 PM

Comments

I have been reading the Los Angeles Times (along with various other more local papers depending on where I’ve lived) since 1970. My wife works at a hospital where virtually none of her co-workers read a newspaper and very few watch even a cable news program. Their social media sources for news are unreliable and often shoddy (noting that more than a few confess to avoiding the news altogether!). This is immediately evident when one tries to carry on a conversation about anything of significance with regard to public or foreign policy, or what we used to christen a major news event. I know some people of course do not get a hard copy of a major newspaper, preferring to read an online version (I often look at this or that article from other newspapers online, like the NY Times or Washington Post) and there are millions of cable news viewers (although to call FOX News a news program on the order of those of yesteryear is to confuse unabashed propaganda with news). But let’s be frank, entertainment and especially “reality” TV now trumps mass media news in a manner perhaps heretofore unimaginable, I certainly did not think it possible in a (would-be) democratic republic … that is, until I attained middle age (and reading Chris Hedges convinced me of the depth and breadth of the many deleterious consequences). All the great theorists and philosophers of democracy stressed the importance of an educated public if a democratic polity was to survive, let alone flourish, and today, alas, we daily witness and experience the horrific symptoms of an ill-informed and poorly educated mass of people alongside the political and economic elites (and their corresponding ideologies) that have won their shrunken hearts and small minds. The Fourth Estate is no longer an estate, an alarming state of affairs only exacerbated by our eviscerated system of public education, which remains obdurately segregated and insufficiently supported and funded (hence the appointment of a Secretary of Education who does not believe in the myriad values of public education, apart from the fact that she lacks sufficient qualifications or expertise for the position). And the motley problems plaguing the press are not simply legal in nature (let’s not romanticize the ‘Golden Age,’ which is easy to do give the current state of affairs by comparison) but economic as well. I have a bibliography that includes titles addressing the economic issues here: https://www.academia.edu/4844091/Mass_Media_Politics_Political_Economy_and_Law_A_Select_Bibliography

Posted by: Patrick S. O’Donnell | Aug 25, 2020 9:11:37 AM

The federal district court in Portland, Oregon recently granted special rights to the press, holding that police orders to disperse directed to an unruly or riotous crowd could not be applied to members of the press who were observing the events. The rule was limited to those members of the press who wore press credentials or otherwise visibly indicated that they were with the press. Of course, as anyone with an ounce of common sense could have predicted, since that order was handed down, many of the rioters now wear large “press” placards or other “press” signage.

Posted by: Douglas Levene | Aug 22, 2020 11:05:04 PM

We’re a republic–not a democracy.

Posted by: thegreatdisappointment | Aug 22, 2020 4:21:14 AM

And here, very important one, recently in the Supreme Court of Canada:

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17398/index.do

Posted by: El roam | Aug 21, 2020 6:42:23 PM

And here a central ruling in England in this regard:

http://uniset.ca/terr/css/britishsteel.html

Posted by: El roam | Aug 21, 2020 6:39:00 PM

Important post. Many complications here. Worth to mention also in this regard, the fact, that contrary to many Western and democratic states, the Supreme court, denied the press or journalists, the confidentiality of sources, and in criminal cases, they must testify or reveal the source of information or leak held by them.

Here for example in BRANZBURG v. HAYES:

https://tile.loc.gov/storage-services/service/ll/usrep/usrep408/usrep408665/usrep408665.pdf

Thanks

Posted by: El roam | Aug 21, 2020 6:32:16 PM

A slightly late and (these days) rare intervention to commend to readers two recent pieces. At Balkinization, Andrew Koppelman has this post about the proper response to incidents involving professors whose use of (relevant, if arguably ill-advised) language in the classroom provokes upset or protest in other realms. He also links to a–sorry!–characteristically thoughtful law review response piece by John Inazu, titled “Scholarship, Teaching, and Protest,” in which John reaffirms the belief in the importance of racial justice that he has voiced in so many of his writings, but also urges greater clarity and (a word, and a sort of language, that our society can always use more of) “grace” in particular responses.

Leaving aside other issues and leaving open room for agreement or disagreement with the points made in John’s piece, I would underscore a point that is made there: Different institutions carry out different functions in different ways, and may perform poorly, or undermine their core and valuable institutional functions, the more they undertake actions that are far removed from or even contrary to their institutional role and competence. We are in a moment in which institutions and their core functions, professionally undertaken, are simultaneously distrusted (not without reason, and not without much of the distrust being self-inflicted in various ways) and necessary. We should always be willing to question and reform them, and always wary about eliminating them altogether or insisting that all institutions ought to do the same things in the same ways. As I wrote a while back, we have witnessed some recent events and decisions that “raise[] some serious institutional questions” for and about particular law reviews “at a minimum, if not more generally for American legal scholarship,” as well as other academic and speech institutions. My sense is that many of my colleagues (and no doubt many law students) share my concern; that this concern is indeed institutional and in the service of important intellectual and institutional values, not a concern about the substance of various views; and that many of them are reluctant to publicly acknowledge those concerns. The concerns are important; the reticence about saying that one shares them may be just as important.

Posted by Paul Horwitz on August 21, 2020 at 01:05 PM

This post is part of a series on preparing to teach in the fall. For the other posts in the series, see here and for the five step approach that I am using, see here. This post focuses on the final step – supporting the students in our fall courses.

This is the last post in my series on preparing for our fall courses. This post focuses on the final step in my approach to redesigning our courses to be physically distanced, hybrid, or remote — planning for an inclusive and supportive classroom environment. This step is easy to overlook as we try to learn all of the new technologies and techniques for fall teaching, but it is essential. We all try to support our students and create an inclusive classroom, but it will be harder this fall. Take our efforts to help students who don’t understand the material in a given unit. Normally, we can observe students in class and notice if they look confused or a little lost. We can catch up with them in the hall, and they can also casually stop by our office if they have a question. We don’t catch all issues this way, but we catch a fair amount. When we all start wearing masks in the classroom and leaving the building (or logging off Zoom) as soon as class is over, we lose these informal ways of checking in with our students.

At the same time, our students may be struggling more. They are dealing with additional anxiety and trauma related to the past several months. Classes will be more challenging, both because our pedagogical techniques in these new environments will be less familiar to them and because being in a physically distanced or remote classroom feels more alienating. And students may be struggling with the logistics of these new learning environments — they may not have the right technology or a quiet work space. In short, they may struggle more this semester, but we may notice it less.

Importantly, these burdens are not distributed equally through our society or our classrooms. Black and Hispanic communities have been disproportionately impacted by COVID-19, as well as the racial violence and protests this summer. Students with children may be struggling to find childcare this fall. Students with spouses or roommates may have to share limited Internet connections, and students living in remote areas may not have any reliable Internet.

In addition, we are changing many aspects of our courses, from assessments to learning activities and community building exercises. When we redesign this many things at once, we can easily miss things. We can craft assignments that don’t fully reflect our commitment to diversity, plan learning activities that don’t fully include all students, and miss ways that our policies and practices burden students unnecessarily. This isn’t necessarily about bad faith on our part. We are trying to do a lot right now, and things will fall through the cracks if we aren’t careful to think about our new course design through an lens of inclusivity and equity.

Finally, students with disabilities may be particularly vulnerable. Higher ed’s disability services are never perfect, but they will have additional hurdles this fall. Students who have not been formally diagnosed with a disability may discover additional learning challenges in this new environment. Students who do have a documented disability may have figured out accommodations that work for them in a traditional classroom, but these accommodations may be less effective in physically distanced or remote courses. And universities have not developed clear guidelines on how to help students in these new environments, so they will be trying new approaches, some of which may need adjustment or may not work.

If you want to understand the challenges that some students may face in the fall, check out this website. It is styled as a “choose-your-own-adventure” narrative through the eyes of a student with disabilities. Someone could probably create a similar one about trying to navigate remote courses this fall as well. The pandemic has created new and very real challenges for our students regardless of the learning environment.

It sounds daunting to build an inclusive and supportive classroom environment under these circumstances, but here are some concrete tips you can implement fairly easily.

Look at New Content and Assessments Through an Inclusivity Lens. Ideally, you’ve been thinking about inclusive pedagogy all through your course redesign, and my advice throughout this series has tried to reflect inclusive pedagogy principles. But it’s important to do a final hard look at your course design as you put the pieces together. Which issues and voices do you prioritize in your selection of readings? Do your fact patterns include a diverse group of people and fact patterns? Experts in inclusive pedagogy talk about using curriculum choices as a window and mirror. As a window, curricular choices should help students see into other people’s lives and lived experiences. As a mirror, students should have the opportunity to see their reality reflected in the chosen examples. Use this redesign as an opportunity to look critically at your pedagogical choices through this lens.

Look at New Policies and Practices Through an Inclusivity Lens. You can do the same thing for any new policies and practices you have built into your course. Most of us have many new policies in our syllabi this year. With each rule, ask yourself, who is included and who is left out? In other words, who will find it easy to comply with the rule, and who will find it more difficult? Are these difficulties necessary to achieve your pedagogical goal or is there another approach that might accomplish the same goal without imposing new challenges on some students.

For example, there’s been a robust debate this summer about whether to require students to turn on their cameras. There’s no easy answer. Seeing everyone’s faces helps foster the virtual classroom environment, and it allows professors to see whether students look engaged or confused. On the other hand, students may have privacy concerns about showing their personal space to classmates and professors. I saw this language recommended somewhere, and I like it, but my point isn’t that you should adopt any one specific policy. Instead you should think intentionally about the different interests in play and give considerable weight to the interests of students who may want to keep their environment private. Give your other new policies and practices – from your attendance policy to rules about private chats on Zoom—the same scrutiny.

Use Universal Design Principles. Faculty should strive for universal design of their courses, which means designing a course to work for everyone. For physically distanced classrooms, this means wearing a mic even if we are fairly confident that most students can hear us from behind a mask. In all classes, it means captioning our videos, using high-contrast color combinations in our slides, and providing concise text descriptions of content presented within image.

Clear structure and communication is also a key part of universal design. For students who struggle with attention and processing challenges, having a well-designed course in which the professor clearly lays out the requirements and how the different pieces of the course fit together is essential. My last post addressed ways to build this structure into your course.

Be Flexible on Accommodations. Although online education has been around for a long time, we are still in unchartered territory in many ways. Many law schools did not offer online courses before this past spring, so they may not have established accommodations policies for remote learning. Zoom is a relatively new platform for online education, so its features raise new issues as well. Physically distanced teaching is also entirely new for most educational institutions, so few have road-tested policies on helping students learn in an environment where the professor is teaching in a mask, behind Plexiglass barriers, with students spread out throughout a classroom.

Students may also discover that they have new challenges or that existing challenges are magnified in these learning environments. Some students, for example, have learned that spending a lot of time on Zoom triggers migraines or that the challenges from ADHD are magnified in remote courses. We should let students know that they should talk to use or our dean of students’ office about any new challenges they face, and we also need to be flexible as our schools use a bit of trial and error to find the right accommodations for students. The AALS had a great webinar called “Meeting the Needs of All Students Online” that addressed this issue.

Check In Often, Esp. with Remote Students: In traditional classrooms, you can often tell if students are struggling or just seem off. In physically distanced or remote classes, though, it may be more difficult to read these informal signs. Consider planning monthly individual check-ins with students or find other ways to check in regularly. If you are primarily teaching in-person, but you have some students who regularly participate remotely, check in with your remote students even more.

Nudge Struggling Students: Create enough low-stakes assessments (graded or not) in the first few weeks of class that you have a pretty good sense of who is falling behind early on. Reach out to them with a personalized but supportive email telling them you have noticed that they are having difficulty in the course and asking if you can help in any way. You might say something like, “Hi ___, I was looking at the scores for the midterm and saw that you didn’t do as well as you might have expected. It’s still early in the semester, so I would love to talk about how you might be able to improve your performance on the final exam.”

Build in breaks. In a long in-person class, we often build in breaks. Consider doing the same in synchronous Zoom classes as well. You may even need more frequent breaks. Best practices suggest a ten minute break for every fifty minutes of class in online classes. You might also encourage a 1-minute stretch and/or breathing break after every 15 minutes of lecture or as a transition from lecture to an activity.

That’s a wrap on this series! I may be back with a post or two in the fall, but for now I’ll end with a note about the importance of supporting yourself and your colleagues this semester, in addition to your students. The summer is normally a time for rejuvenation when we can focus on other aspects of our jobs, but this summer looked really different. Not only are we still in a pandemic, but we also had to overhaul all of our classes, often with a great deal of uncertainty about exactly how we will be teaching this fall. It’s important to remember that your courses weren’t perfect the first time you taught them, and they won’t be perfect this semester. That’s ok. We’re all making the best of a truly challenging situation. Be easy on yourself, and be there for your colleagues where you can be. Good luck to all of us!

Posted by Jessica Erickson on August 21, 2020 at 09:42 AM

Comments

Hi Jessica, reading your series is really helpful as it has useful information with regard to the situation currrently the world is facing. Many parts of the world education has downfall due to lack of systems and policies. And your series can be helful atleast some percent in the field for supportive teaching policies.

#Togetherwecanbuilt.

Thanks to you.

Posted by: Emanuel Debbarma | Aug 25, 2020 4:32:28 AM

Jessica! I’ve read every one of your posts and I’m so grateful for them. Thank you for all the work and thoughtfulness you’ve put into helping us through this extremely demanding time.

Posted by: Anna Roberts | Aug 22, 2020 10:29:49 AM

Thanks for this series! One quick tip to give students an opportunity to ask questions as an online class ends: I linger in the Zoom room until everyone has left and invite any final questions, which gives students a chance to check in on points they might have missed. It’s not quite the same as it is in-person, but I’ve almost always had at least one student stick around to ask a question.

Posted by: Anon | Aug 21, 2020 10:34:07 AM

Here is a link to a podcast in the new series “Clauses and Controversies” with yours truly. Thanks to Mitu Gulati and Mark Weidemaier for having me on as their guest.

Posted by Gerard Magliocca on August 20, 2020 at 08:21 PM

Section Three of the Fourteenth Amendment was used more than once to exclude people from Congress. In 1870, North Carolina chose Zebulon Vance, who was a state prosecutor before the Civil War and Governor during the War, as its Senator. The Senate refused to seat him. More interesting is that Victor Berger, a self-styled Socialist congressman during World War I, was excluded from the House of Representatives for his opposition to the war and conviction (later overturned) under the Espionage Act. The House concluded that Section Three made Berger ineligible because he had “given aid or comfort to the enemies” of the United States. This is the only time that Section was used to exclude after Reconstruction.

These example raise an unclear question about Section Three. Is it an additional qualification for office or not? No court has resolved this issue. This matters because a qualification is not covered by the Supreme Court’s decision in Powell v. McCormack. It’s also not clear that Section Three (at least as applied by Congress to one of its alleged members) is subject to judicial review.

Posted by Gerard Magliocca on August 20, 2020 at 02:09 PM

Comments

After the sentence was overturned, Berger was elected again and seated.

Powell v. McCormack cites the Berger case.

Posted by: Joe | Aug 21, 2020 11:17:49 PM

The first distribution of the FAR AALS forms came out this week. Here are the number of FAR forms in the first distribution for each year since 2009.

Year	Forms
2009	637
2010	662
2011	592
2012	588
2013	592
2014	492
2015	410
2016	382
2017	403
2018	344
2019	334
2020	297

(All information obtained from various blog posts, blog comments, Tweets, and Facebook postings over the years and not independently verified. If you have more accurate information, please post it in the comments and I will update accordingly.)

First posted August 20, 2020.

Posted by Sarah Lawsky on August 20, 2020 at 11:12 AM

Comments

I’d be interested in seeing a gender analysis of this year’s applicants. I wonder if we’ll see a drop in women applicants as we’ve seen with women submitting to journals in other disciplines, among other negative effects of the pandemic on women in the workplace.

Posted by: LadiesNight | Aug 22, 2020 4:32:07 AM

Many candidates do this multiple rounds, so if you are already in the “system” (i.e, VAP, fellowship or phd.) you don’t really have much of a choice except to at least “try.” It’s hard to go back to practice now with firms not hiring so much. It may get better in 2 years once whoever is in the system clears out, probably 20-40 people will get jobs, the rest will wait another year or go back to practice. But I would not expect to see much of an effect on the supply side this year, which is what the FAR numbers indicate.

On positive side, there may not be as many people giving up secure jobs in law firms to do fellowships, especially when they realize how uncertain it is so if you are interested in doing a fellowship (or perhaps a second fellowship), that market may be hot, or at least if you strike at on tenure track market you could try for that. I suspect the huge drop off in the FAR over the last 5 years is the fact that many people are not willing to take the risk; 5 years ago a fellowship was almost a sure bet for a job; now, I know many fellows don’t end up getting jobs, especially those who are not geographically flexible, which is in many cases is prohibitive in normal market times, even more so now.

Many schools also post ads, but it will be interesting in the end how many actually hire. Some may have had lines approved before the pandemic got real bad, and while they may be posting they don’t really end up hiring or schools realize how bad their financial situation is and they can’t get it approved. That happens in normal times (many schools in the bulletin end up hiring no one or end up hiring a lateral), so if there is only 32 in the book they surely won’t all hire, and some that are not in the book will. There could potentially be more retirements in the years ahead if schools offer good early retirement programs as an incentive. But then schools may fill those with VAPs instead of tenure track.

It’s a very very tough year. Most important thing to remember is not to take it personally, and that so much of the process has nothing to do with you.

Posted by: anon | Aug 20, 2020 8:32:04 PM

https://leiterlawschool.typepad.com/leiter/2020/08/aals-jobs-bulletin-is-out.html

Posted by: a | Aug 20, 2020 4:48:43 PM

“…why would the number of candidates also drop?”

Conventional wisdom is that in the era where a VAP, PhD, and clerkship is preferred, there are fewer and fewer non-pedigreed applicants who really dont have a chance. What remains is a smaller group of people without all those credentials, and then the cohort of highly trained and prepared people who have spent years preparing for their one “market year.”

Posted by: Anon | Aug 20, 2020 4:45:41 PM

Yeah, tbh I was secretly hoping (as someone on the market for the 3rd time, who made it to final round interview last time but obviously didn’t quite land the job) that there would be a big drop-off this year due to people laying low for COVID or whatever. But this looks like a small drop in candidates vying for what is assumed to be a significantly smaller number of slots. So a more competitive year overall. At least that’s what it looks like to me.

Posted by: SmoothCriminalAtty | Aug 20, 2020 3:38:51 PM

There’s been a steady decline in applicants over the past decade. The drop from 2019 to 2020 seems pretty consistent with this.

Posted by: a non | Aug 20, 2020 1:54:52 PM

I have heard of several folks who negotiated to extend their VAPs/Fellowships another year, thinking this would be a crappy year to try for a permanent position.

Posted by: AnonProf | Aug 20, 2020 1:49:40 PM

Perhaps a “why bother” phenomenon, especially for weaker candidates?

Posted by: Howard Wasserman | Aug 20, 2020 1:45:35 PM

This is surprising to me. Obviously number of open positions would drop due to COVID budget cuts, but why would the number of candidates also drop?

Posted by: surprising | Aug 20, 2020 1:06:00 PM

Take a look again at the language of Section Three of the Fourteenth Amendment:

No person shall be a Senator of Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

What’s missing from Section Three’s list of political disabilities? The Presidency. Now this may seem odd. Jefferson Davis could not be elected to Congress but could still be elected President? The oddness goes away, though, if you say the presidency is an office under the United States. What’s not an office under the United States? Section Three seems to say that the answer is (1) a member of Congress; (2) a presidential elector; and (3) any state official.

I haven’t yet gone into the debates on Section Three. One alternative is that nobody thought that an ex-Confederate would get elected President or Vice-President, and thus Section Three was not written to cover those positions. But this strikes me as unlikely.

Posted by Gerard Magliocca on August 19, 2020 at 03:43 PM

Comments

My thought is a brute political one: if tens of thousands, or a couple hundred thousand, people from a single Congressional District, or even maybe a million in a single state in a Senate race, vote for someone subject to removal under Section 3, that will only upset that small minority. But how can you refuse to seat someone who over half the country voted for for President? The framers of Section 3 may have seen the potential for abuse and reignition of the civil war, related to slavery and reconstruction or related to some other issue dividing the country, and wisely excluded the Presidency.

Posted by: RComing | Aug 31, 2020 4:58:57 PM

I would also take a look at Article VI that this seems to parallel.

“The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

Posted by: Joe | Aug 24, 2020 1:37:31 PM

Why do they keep deleting El Roam’s comments? Who is trying to rewrite history?

Posted by: theRealAnonymous | Aug 19, 2020 8:19:21 PM

There are many news stories about outbreaks at universities that are attempting to reopen. I would like to give a modestly upbeat take.

I taught my first two classes of the semester yesterday. (Two sections of Torts.) It did feel odd talking through a mask and seeing the students in masks. For maybe five minutes. Then the classes proceeded normally. The students and staff all did a great job in adjusting to the new procedures.

Who knows what will happen as the semester proceeds. But it was a good start.

Posted by Gerard Magliocca on August 19, 2020 at 10:58 AM

Comments

New studies, which show that many if not most patients who are not killed by COVID-19 nevertheless suffer lasting illnesses and other disabilities, indicate that universities which had students return to campus may face law suits for huge amounts of damages.

Many universities which decided to accept the risk of holding in-person classes this fall, and to have students return to crowded dormitories, fraternities, and sororities, may have assumed that the additional income from not having to discount tuition for on-line instruction, or from losing students who might opt out of on-line instruction – as well as money from dormitory rents, dining, and other campus fees – would more than cover any wrongful death actions because only a tiny percentage of students die as a result of exposure in what some have called a petri dish of infection and contagion second only to cruise ships.

But, as the Washington Post just reported, new medical studies could “utterly change the way we think about covid-19: not as a disease that kills a tiny percentage of patients, mostly the elderly or the obese, the hypertensive or diabetic, but one that attacks the heart in most of the people who get it, even if they don’t feel very sick. And maybe their lungs, kidneys or brains, too.”

Indeed, new medical studies suggest that, although the great majority of non-elderly adults who get COVID-19 do not die, many if not most do suffer lasting and often disabling injuries to their health.

Recent developments where several university had to retreat from a fall in-person beginning, the growing percentage of COVID-19 sufferers who are young and otherwise healthy, and the recognition that many if not most who survive will suffer from permanent and expensive medical problems, including disabling ones, suggests that perhaps more colleges should ask returning students to sign a document acknowledging the unavoidable risk of infection, and waiving any liability on behalf of the institution of higher education.

Posted by: LawProf John Banzhaf | Aug 19, 2020 4:12:02 PM

I’m wondering if those universities that are forced to make retreat-to-remote decisions might do it on a unit-level basis this time. Law schools (and other grad programs) have a different calculus, as our students don’t live together in giant dorms, and are also probably less likely to attend large parties after being warned against doing so.

Posted by: Donald Caster | Aug 19, 2020 3:51:05 PM

I had a different experience, I could not hear the students behind the masks. Way too muffled.

Posted by: AnonProf | Aug 19, 2020 1:57:09 PM

Thank you for sharing this. About how many students do you have in each section? Is everyone in person, or do you have some students attending on Zoom?

Posted by: a non | Aug 19, 2020 1:19:33 PM

Good to hear the semester is starting off well. Best of luck.

Posted by: thegreatdisappointment | Aug 19, 2020 12:56:28 PM

This post is part of a series on preparing to teach in the fall. For the other posts in the series, see here and for the five step approach that I am using, see here. This post focuses on the fourth step – developing a communication plan to introduce more structure and rhythm into your courses.

With classes just around the corner, most of us have likely figured out the key aspects of our course plan. We’ve determined how to adapt our assessment and learning activities for these new learning environments. We’ve come up with a strategy to connect with our students and help them connect with each other. We’ve even practiced with the technology that will allow us to teach in a hybrid or remote way. And we may feel like we are ready. In my last two posts, however, I want to discuss how to put the finishing touches on our fall courses by (i) building additional communication and structure into our courses, and (ii) creating a plan to identify and support struggling students. This post will focus on the first topic, and my final post later in the week will address the second.

Thinking about communication and structure certainly isn’t new. Most of us already think about how we will communicate with our students and how we can build structure into our classes. This semester, however, when we are all teaching in distanced classrooms in the midst of a global pandemic, we need to think even more deliberately about these topics. So here are a few suggestions:

Decide on a Consistent Communications Strategy (Ideally with Your Colleagues): Back in mid-March, when the world suddenly shut down, how did you communicate the changes to your courses to your students? Did you send them an email (or multiple emails)? Did you put the new plan in your learning management system? Did you create a Google Doc that you kept updated? Most faculty I know used one of these strategies, and they felt pretty good about it. Yes, our plans changed, but we made sure our students knew about all of the changes.

From the student perspective, however, it often felt overwhelming because they were receiving communications from multiple professors and we all used our own preferred form of communication. Imagine that you’re a student trying to keep track of five sets of Zoom links. Some of your professors used a recurring calendar invite; others included the links in an email that got lost somewhere in your email folder; still others put the links on Blackboard, Canvas, or TWEN. And maybe their approach changed from week to week. Before every class, you have to remember where the particular professor put this particular piece of information. And it’s the middle of a global pandemic, so you are already stressed and distracted. I felt this dichotomy myself. As a professor, I was sure I was being clear. As a parent of three kids in the K-12 system, with multiple teachers who likely all thought they were being clear, I had no idea what was going on. My kids missed several classes, assignments, etc. in the spring because we couldn’t keep track of all of the information coming our way through a million different channels.

My suggestion is that you decide now how you will communicate any changes to your course plan and then stick to it. If you are teaching face-to-face, start using the system now, so your students will be used to it if and when the class has to transition to fully online.

Ideally, your colleagues will all agree on a single consistent communication plan as well. Yes, professors are all free agents, but this is a time to come together to reduce the mental load for our students. Here at Richmond Law, we have encouraged professors to send out a single announcement through our learning management system each week with the reading, assignments, and Zoom links for the following week’s classes. If a student can’t remember what they need to do for that week, they know exactly where to go. It may be hard to pull off a school-wide plan at this point, but if you are teaching 1Ls, you might try to coordinate with the other 1L professors in your section. If you are teaching a large upper-level course, try to coordinate with the professors teaching the other courses your students are likely taking. And don’t let perfection be the enemy of the good here. A consistent strategy across the school is far better than fifty perfect – but different – strategies.

Build More Structure into Your Courses. Most professors have thought deeply about the structure of their courses. We know how the different doctrinal pieces fit together, and we’ve come up with assessments and other activities to help students learn this doctrine. If you could see inside my brain, you would see a giant interconnected web of law, diagrams, hypos, and assignments for each of my courses that I have carefully constructed over the last 15 years. The challenge though is that, even if these connections are clear to us, they may not be nearly as clear to our students.

Good course design always includes thinking through how to make these connections visible, but this step is especially important this semester. We are still figuring out how to teach in these new environments, so things that may have been clear to our students in the past may be muddier this fall. Our students are also learning in new ways, and they may be juggling personal challenges and the stresses of the world in ways that make seeing these connections more challenging. And many of the normal opportunities to clarify the content with our students – such as conversations before or after class or informal conversations in the hallways – may not happen now. So it’s worth taking a few minutes to think through how you can make the underlying structure of your course even more visible to your students.

Here are a few ideas:

• Build structure into your syllabus. This is not the semester for a barebones syllabus with a short list of reading assignments. Instead, format your syllabus so students can easily tell the major units and sub-units of your course and then include the assignments within this structure. In my syllabus, for example, the assignments section is in table form with a column that lists each day’s topic and another column listing the specific assignment for that topic. Each unit in the course has its own table, so students can easily tell the major units in the course and where we are within each unit.
• Build structure into your class sessions. We all know that attention wanders on Zoom, so keep students oriented by creating a clear structure for the class session and communicating that structure. I include a slide at the start of every class with the main topics of the day, and I come back to that slide every time we move to the next topic during the class session. If you don’t use PowerPoint, you can do the same thing by writing the topics on the board and referring back to them when you switch topics.
• Highlight the underlying structure of the doctrine. It’s easy for students to miss the forest for the trees when it comes to complicated legal doctrine. They may focus on the particularities of Pennoyer or International Shoe, for example, without stepping back and understanding how these cases fit into the broader legal landscape. Most of us have developed ways to highlight the underlying structure. For example, when I teach fiduciary duties in Business Associations, I have a single slide laying out how the big pieces fit together that I come back to between every case. We need to make sure that this part of our teaching doesn’t get lost in the chaos of the fall. Confirm that these techniques still work if you are teaching remotely and think through new approaches if necessary.

I am planning one more post for later in the week on how to support struggling students during this semester. In the meantime, good luck to everyone who started teaching this week!

Posted by Jessica Erickson on August 18, 2020 at 02:33 PM

Comments

This is an excellent post about a truly pressing issue.

Well done.

Posted by: thegreatdisappointment | Aug 18, 2020 6:56:32 PM

Section Three of the Fourteenth Amendment addressed only officeholding by former Confederates, but the language of that provision was used to restrict voting rights. How so? In two ways.

1. The First Military Reconstruction Act, passed in 1867, said that anyone barred from office by Section Three was ineligible to vote in the elections for the state constitutional conventions in the ex-Confederacy or to serve in those conventions. This is remarkable in that the Fourteenth Amendment was only a proposal at that point. Yet Section Three of that proposal was used to regulate the elections for the delegates who would decide to ratify Section Three. I cannot think of any other federal legislation that used a pending constitutional amendment as a standard.

2. Four of the new state constitutions ratified in the South specifically referred to Section Three to exclude men from suffrage. Once again, I cannot think of any other part of the Federal Constitution that was ever explicitly used in a state constitution as a benchmark. Thus, when Congress granted a broad Section Three amnesty in 1872, the voting rights of many white male southerners were restored.

I think I’ve done enough posts on Section Three for now. Time to start writing this up in a proper article.

Posted by Gerard Magliocca on August 18, 2020 at 01:17 PM

Comments

Here’s hoping the history in the article is better than what’s been on here!

🙂

Posted by: thegreatdisappointment | Aug 18, 2020 6:52:57 PM

After the jump, an announcement about an entry-level fellowship at the Stanford Constitutional Law Center. The recent fellow, James Phillips, guested here in June and started on the faculty at Chapman. The Stanford Constitutional Law Center fellowship is intended for individuals who are seeking an academic career working on constitutional law. Affiliates of the Center have gone on to obtain desirable academic positions at numerous law schools including Georgetown, the University of Chicago, the University of Texas, George Washington, Penn State, UCLA, Notre Dame, Hastings, Penn State, Georgia, Richmond, and Chapman, among others. The fellowship is a residential fellowship that provides an opportunity to conduct research in the dynamic environment of Stanford Law School. The fellowship is for one year with the possibility of extending to a second year. The fellowship is designed to allow participants to complete a significant body of independent scholarship. We expect fellows to dedicate most of their time to pursuing their proposed research projects, while dedicating a small amount of their time to attend Center activities, including our annual conference, our monthly speaker series, and paper workshops. Fellows may also occasionally be called on to help coordinate Center activities in cooperation with the Center’s executive director. Fellows are encouraged to become part of a lively law-school-wide community of individuals with an interest in legal academia by attending weekly faculty lunch seminars and participating in activities with the other fellows at Stanford Law School. For the 2019-2020 fellowship, we will provide fellows with work space, a competitive salary, and a generous benefits package. Fellows will report to the executive director of the Constitutional Law Center. Applicants should have a JD or doctoral level degree (PhD) in a relevant area. Successful applicants typically also have experience in a federal appellate clerkship, and a demonstrated aptitude for original research in constitutional law, typically in the form of past publications or student notes. https://law.stanford.edu/fellowships/research-fellowships/

Posted by Howard Wasserman on August 18, 2020 at 11:55 AM

Comments

It is for 2021-2022.

Posted by: Charles Tyler | Aug 18, 2020 1:59:17 PM

It’s too late for this, so it logically would appear 2021-22.

Posted by: Howard Wasserman | Aug 18, 2020 1:33:22 PM

For what academic year is this fellowship? It is unclear from the post.

Posted by: Aspiring | Aug 18, 2020 1:03:10 PM