Belgian scholar finds fault on both sides of Atlantic, charts midway course for U.S.-EU data privacy

KU Leuven Profs. Jan Wouters, Evelyne Terryn, and Peggy Valcke; Sylvia Lissens; me; KU Leuven Prof. Marieke Wyckaert, dissertation committee chair; and via Zoom, Prof. Przemysław Pałka, Jagiellonian University, Poland (photo presumed © and used with permission) 

Congratulations to newly minted-Doctor Sylvia Lissens, who defended her dissertation in the Leuven Centre for Global Governance Studies at Katholieke Universiteit (KU) Leuven in Belgium on October 1.

Dr. Lissens's dissertation is The U.S. and EU Approach Towards Personal Data Protection: "A Collision of Tides or a Convergence of Waves?": A Legal Exploration of the Differences and Convergences Between the United States and the European Union. The first paragraph of the dissertation gives a sense of its ambitious scope:

This research addresses the question of what the core differences between the U.S. and EU legal approaches towards personal data (protection) are and if there are signs of convergences. The question is approached through functional comparative law research conducted on three levels to reflect the perspectives of the three main stakeholders: the private sector, civil society, and the public sector, consisting of government intelligence and law enforcement agencies. The United States and the European Union seem to understand and qualify personal data differently in words and deeds, but upon closer inspection they have more in common than may seem at first sight. Consequently, it was possible to develop a roadmap for how the U.S. and EU approaches can co-exist, based on the convergences between the U.S. and EU approaches towards data privacy on all three levels.

I have learned and benefited immensely from serving on Lissens's dissertation committee for about the last five years. I myself posited a convergence in the data privacy expectations of American and European people many years ago, before the EU General Data Protection Regulation (GDPR) superseded its predecesor EU Data Protection Directive. I dared not then conceive a practical framework for a U.S. "adequacy" determination under what became the GDPR, which is the aim of Dr. Lissens's work. 

Faculty of Law at KU Leuven, Belgium
RJ Peltz-Steele CC BY-NC-SA 4.0

The dissertation is especially bold by European standards for suggesting that the EU might have to trim the sails of the GDPR to meet the United States partway. Most works in this vein take the GDPR at face value as a favorable norm. Lissens rather criticizes the GDPR for exporting worldwide norms with almost imperial ferocity, thus failing to give legal regimes and cultural communities around the world an opportunity to develop data privacy standards that might be qualitatively different or appropriately more or less protective of personal liberty. This critique resonates with contemporary critical perspectives in comparative law, which might note that the individualist model of privacy right that the GDPR promotes discounts the prominence of collectivist values in non-European legal systems.

On October 1, Lissens defended her theses ably against healthy skepticism both from European interrogators and from me. I asked whether the hodgepodge of U.S. state data protection systems, as long as Congress remains paralyzed, can possibly be GDPR "adequate" when the state systems reach only consumer transactions. 

Consumer privacy is mostly what the GDPR is worried about, Lissens reasoned, and the EU might have to settle for the states' laboratory approach. Contrary to what I have witnessed as the prevailing ethos among young people in Europe, Lissens argued that European people might have to become comfortable with the notion known to U.S. law that being photographed in a public place is not a privacy violation.

On the national security front, Lissens, like EU courts and human rights advocates, finds plenty cause for concern in dragnet U.S. security surveillance. But she also calls out EU member states for national security practices that are not so different from American methods.

I asked Lissens whether the U.S.-EU Data Privacy Framework can hold up when it does not require the United States to divulge to European complainants how their privacy was compromised or what was done about it. She fairly answered that European citizens usually can expect nothing more from their own governments. 

Moreover, Lissens questions the competence of European courts in the EU treaty system to apply data protection law at all to the national security apparatuses of EU member states, much less to challenge U.S. policy. While she has admiration for the work of European privacy advocates such as Max Schrems, she challenges the very premise of the Schrems decisions in the EU Court of Justice insofar as they assumed jurisdiction over national security policy by way of data protection enforcement.

Among Lissens's distinguished credentials is a 2020-21 stint at Duke University, my alma mater in law, where she held a scholarship to study as a master's student and started adding expertise in U.S. law to her multi-jurisdictional expertise. Lissens, who herself has taught comparative law and graciously visited my class in the past via Zoom, is on the academic job market. She is a gifted scholar and teacher, so schools, place your bids.

Culp's critical perspectives endure in Chang lecture

Prof. Chang
Seattle Law

Professor Robert S. Chang delivered the inaugural Jerome M. Culp, Jr. Critical Theory Lecture at Duke Law School February 1.

Chang is professor of law and executive director of the Fred T. Korematsu Center for Law and Equality at Seattle University School of Law. He spoke on, "How Do We Come to Participate in the Struggles of Those Who Are Not Us?" The lecture is posted at Panopto and on YouTube (embedded below, at bottom).

Chang traced contemporary racial differences in American history from the burning of Jamestown, Va., in the 17th century to the Civil War, Chinese exclusion laws, and, ultimately, the legal battle over affirmative action. Born in Korea, Chang's work emerges from ethnic perspective and personal experience growing up in small-town America.

My alma mater, Duke Law doesn't need me to do public relations. I mention the Chang lecture because of Professor Culp, for whom the lecture series is named. Culp was the first person of color to earn tenure at Duke Law, where he taught from 1985 until his death in 2004. He was, as Duke recounted, an internationally acclaimed critical theorist.

Culp also was my torts professor. As I tell students today, at that time, I didn't well understand Culp's MO. I suffered the common 1L affliction of wanting to know just what I needed to know. I yet saw law as learnable vocation, not profession, law school as mere trade school, not intellectual engagement with law and society. Culp didn't seem to be doing his part to make me a billboard attorney who could litigate a car accident.

I got past those hurdles. In time, I had the immeasurable good fortune of knowing Culp as a fellow academic. I came to understand that his 1L pedagogy was a cleverly subtle and seductive inculcation in critical theory. I came to appreciate him as one of my best law professors. His pedagogy powerfully shaped my approach to teaching torts, not to mention thinking about law and society in general. Culp is one of three academics to whom my Tortz textbook is dedicated.

The start of the Chang lecture video (from 2:05 to 7:50 at Panopto; YouTube cued and embedded below) features Professor Culp himself, some 20 years ago, complemented by affecting images, talking about his own life and how it motivated him to study and teach law.

To be clear, I'm not wholly in agreement with Chang on the merits of his talk, even if Culp might have been. Chang concludes that the U.S. Supreme Court decision contra affirmative action in 2023 represents an "intensification" of white racial identity and resurgent white supremacy. Chang's conclusion contains a kernel of concerning merit, but also provocatively overstates the matter.

I rather agree with what Professor Josh Blackman told an ABA program on viewpoint diversity at the Midyear Meeting in Louisville, Ky., last week: there has to be room to express a view of what the Fourteenth Amendment means, even if contra the acceptable "woke" ideology, without being branded "racist." 

Critical theory to me is, let's say, critical for exposing fault lines in our society that run contrary to our values and demand remediation. Accordingly, critical approaches form vital threads in my teaching.

But critical race theory does more harm than good when it muddies the distinction between malevolent racism and systemic inequality. And many adherents to critical theory (not necessarily Chang or Culp) go a dangerous measure further, encouraging generalizations about persons' intentions based on their skin color. I can't sign on to that.

Nevertheless, that some critical perspectives sit poorly with me doesn't mean we should avoid discussing them. Chang's lecture is a superb and coherent survey of race and American history with thought provoking implications for our time.

A nephew of mine (as a matter of fact, a young man who is racially Korean and grew up in small-town America) recently suggested to me that adults of my (13th) generation can sometimes be wrong.

I'm considering the possibility.

So you wanna teach law school? Good luck with that. Or, 'A Clerkship Story'

pxhere (modified) CC0

Professor Howard M. Wasserman at FIU Law, author of the superb Understanding Civil Rights Litigation, has published in Judicature a thought-provoking study, Academic Feeder Judges: Are Clerkships the Key to Academia? (spring 2021).

Yes is the short answer.  There is clear correlation between clerking and later teaching.  Wasserman explained, "Two or three generations ago, the clerkship was the essential credential, and a call from the judge or justice to the law-school dean was the ticket to the teaching job. Louis Brandeis favored clerks whom he believed would become law teachers."

But the correlation, and probable causation, is diminishing, and "[t]he Great Recession of 2008 appears to have exacerbated the disconnect between clerkship and teaching," Wasserman wrote.  He chalks up the change to a number of factors.  Teaching fellowship programs, "sexy" niche appellate practices, and more programs for advanced degrees in law have generated a pool of promising candidates on alternative tracks to fewer positions.

Though I don't think any of that will change the status quo.  Legal academics remains largely the province of an elite, including too many by inherited opportunity, especially at top schools.  Even these newly minted access tracks only reinforce exclusion.

I didn't clerk.  I've been fortunate to land two jobs in academics at schools where a clerkship was not a sine qua non.  But in my job searches, I know that I was excluded at some schools—once, only about a dozen years ago, I was told so plainly—for lack of a clerkship.  As I don't think I'm too bad at being a law professor, that's a disappointing result.  While Wasserman might purport to describe a preference of "two or three generations ago," people who were hired two generations ago are still doing hiring now.

And there is resistance to change.  For all the bluster about equality of access to opportunity uttered by the nation's overwhelmingly liberal law professors, the vast majority in the end succumb to the beguiling predilection to replicate themselves and their experiences.

Considering why students, me included, don't clerk illustrates the inequality of access to opportunity in the academy, not to mention many other career tracks.

To start with, judges, many of whom also fall prey to the predilection to replicate themselves, tend to recruit only from select law schools.  UMass Law, for example, a "fourth-tier law school," has seen only modest success at placing students in clerkships, then only at the state level, and only through concerted, all-hands-on-deck efforts by students, faculty, and staff.  

Federal judges don't recruit at UMass.  They did recruit at "first tier" Duke Law School when I was a student there in the 1990s.  But they weren't recruiting me.  The career services office groomed students with a 3.5 GPA for interviews, and my 3.4 didn't make the cut.

I think I would have made a good clerk.  Having come to law from journalism, I was a decent writer and editor.  To my observation, my classmates who excelled at law school and attained those top grades with less effort were as often as not children of lawyers and professionals.  I was not.  They seemed to understand the 1L game in a way that was opaque to me.  I figured it out and turned out A+s by the time I graduated, but that was too late to open some doors.  From where I sit today, as a professor, it's no wonder to see that my students who are the first in their families to attempt graduate school, or even university, face the steepest learning curves.

I was determined, though.  Whatever this clerkship thing was about, telling me I could not have something just supercharged my desire for it.  A full-tuition-paying Duke client, I demanded access to clerkships.  Career services pointed me to a binder of judges' names and addresses.  I was welcome to apply on my own, without Duke's help.

I remember the feel of the thin plastic cover of the binder in my hands.  I remember turning the looseleaf pages and copying the information into my notebook with a pen.  I remember feeling ashamed and angry doing this while, feet behind my back, in the career services office, other students sat, sharply dressed, waiting nervously for clerkship interviews to which they had been invited.

I did apply on my own for clerkships: 23 years old and no clue what I was doing.  Unsurprisingly, I had no bites from the federal bench.  Surprisingly, I did score an interview with a state supreme court judge.  I traveled to the state on my own dime, donned my best (only) suit, and interviewed.  The interview seemed to go well.

The judge telephoned me a couple of weeks later.  I was his first choice, he said.  My pulse quickened and face flushed.  But, he said sheepishly, haltingly, he was, unfortunately, obliged to hire his second choice, because she was the daughter of a colleague.  Surely I could understand his predicament.  This is how things are.  He was sorry.  Felt he owed me the explanation.  My heart sank.

Don't feel sorry for me.  I went right into law practice at a large, prestigious firm in a major city.  I didn't have whatever it took to get a clerkship.  But I had an opportunity out of Duke that almost none of my UMass students can get still today.  It's all relative.

The lesson still is, or should be, a painful one.  The changes that Wasserman cited do little to change the reality of access to opportunity in legal academics.  Teaching fellowships are typically reserved for diverse candidates.  Because diversity doesn't refer to socioeconomics, nor family immigration history, most of my students, like me, would not qualify.

A top-end practice experience did give me an advantage in my applications to the academy.  But for even the very best of my students—who, if it matters, might have chosen UMass for reasons of economic, geographic, or other necessity, not a function of choosing the highest ranking school one can get into, which is what I did—a job at a "white shoe" law firm is a pipe dream.

And more advanced education is not feasible for students who, like me, financed legal education wholly through debt.  My wife and I just paid off our own educational debt last year, right after we started borrowing to pay for our daughter's college education.  We were lucky; neither of us had undergrad debt, thanks to scholarships and the military.  I turned down two full scholarships to lower ranked law schools.  Some of my law students have twice the debt we had and will be lucky to have a quarter of the job prospects. 

One of my students graduating now would make a superb teacher, and he is so inclined.  He asked me about it.  What can I say?  He lacks the demographic endowments requisite for a diversity fellowship.  One of my own faculty colleagues said at a hiring meeting just last week that "we don't need more white" at UMass.  She was applauded.  This student will never score a Boston law firm job.  A UMass valedictorian was told at a Boston law firm just a few years ago that his interview was a professional courtesy to the dean, but the firm would never hire from a public school.  And this student is swimming in debt.  Should I tell him to dig deeper and get a "corrective LL.M." at full price from one of the elite law schools he probably should have chosen to begin with?

The change that Wasserman reported is good news, but I don't think will effect improvement in true diversity in the legal academy in my lifetime—taking into account lived experience, more than just boxes checked for skin color, gender identity, and sexual preference.  Even new avenues of access are limited to narrowly defined classes of people and favor the advantaged insiders of the socioeconomic elite.

And the real kicker about clerkships is that you never get a second chance.  Perversely, one is qualified for a clerkship only once, precisely when one is not qualified for a clerkship: as a graduating law student.  My students who cannot, for a variety of reasons beyond their control, clerk after law school will never clerk.  I would love to clerk, still today, but I can never be 23 again.  When I apply to lateral now in academics, the omission of a clerkship a quarter century ago still stains my résumé.

The stains of access denied last for life.  That's how access to opportunity works in many sectors of the American job market: hallways of doors that are closed to ordinary people.  The liberal legal academy is no exception.

'Miss Juneteenth' speaks both to problems of our times and to timeless problems

Thanks to the Duke (University) Screen/Society, yesterday, I virtually attended a screening and discussion of the 2020 film from Vertical Entertainment, Miss Juneteenth.  It is an insightful and gratifying film, so I want to make this note of it.  In our covid era, it's easy to miss new releases.

Written and directed by Channing Godfrey Peoples, Miss Juneteenth is the story of Fort Worth, Texas, teen Kai (Alexis Chikaeze) and her mom, Turquoise Jones (Nicole Beharie), as Kai prepares to participate in the Miss Juneteenth beauty pageant, a pageant that her mother happens to have won, back in the day.

Yet that description unfairly oversimplifies the film, as would any description that confined the story by race or class.  The film richly portrays Turquoise and Kai's lives.  It explores mother-daughter conflict, romantic entanglements, and socioeconomic struggles. Simultaneously, the film comments softly, not heavy-handedly, on pageant culture, civil rights, the American dream, and, of course, never trumpeted yet omnipresent, the glorious but unfulfilled promise of freedom marked by Juneteenth.

In a striking scene set in a Juneteenth museum, the young contestants are being oriented on Juneteenth history by a passionate docent when the schoolmarmish pageant wrangler directs the kids' attention to framed pictures of past Juneteenth queens.  The docent was speaking to the legacy of slavery, driven out of the American South, while the pageant director educates the girls on such etiquette nuances as table manners imported with the Pilgrims.  The girls' gazes drift to the latter display, which, I contend, speaks subtly but powerfully to how African-American communities have long wrestled with the fine line between cultural subjugation and assimilation that courses through American history from Reconstruction to Civil Rights to present day.  I'm reminded at once of Mike Pence's oddly third-person reference from Fort McHenry in August to "American people ... standing with ... our African-American neighbors" and Dulce Sloan's missive this week on The Daily Show with Trevor Noah, "The Messed Up History of Black Hair in America."

A character in the film once comments, "Ain’t no American dream for black folks.”  As we wondered at the latest news of government ineptitude yesterday morning, contemplating how our salaries are going down while our workloads are going up, my wife speculated that the anger and resentment that people both black and white feel toward the lack of opportunity for upward mobility in this country is really much the same.  The difference, she suggested, is that black people have always known that meritocracy is an American myth, while white people are just figuring it out.  (She cited Michael Sandel on WBUR talking about his Tyranny of Merit.)

Miss Juneteenth has given me a lot to chew over.  I haven't even mentioned my own daughter's foray into the pageant world when she was a teen: Miss Rhode Island High School 2016!  In Miss Juneteenth, as Turquoise is working herself to death to scrape together the money to support Kai's pageant bid, Kai's father, Ronnie (Kendrick Sampson), shakes his head: "An $800 dress just don’t make no sense to me."

Word for word, I swear, Peoples stole that line from me.

Here is the trailer from Vertical Entertainment.

Happy Constitution Day.