Netflix's 'The Chair' satirizes academic politics with troubling truths of contemporary campus culture

Netflix's The Chair is an enjoyable six-episode sit com on the absurdity of academic politics in American higher education today.  The show was created and written by Amanda Peet and stars Sandra Oh (Grey's Anatomy, Killing Eve) as the perpetually embattled chair of the English department at a small elite college.

In one storyline, reminiscent of Scott Johnston's Campusland (2019), well meaning professor Bill Dobson (Jay Duplass) is pilloried for a mock Nazi salute, turned into a social media meme, in a class lesson on fascism and absurdism.

Comedic parody derives its beauty, of course, from its grain of truth.  Dobson's predicament is precisely one reason I have resisted routine video lecture capture.  Humor has pedagogical value, but one remark out of context is a brewing tempest in a teapot.  The risk might be worthwhile if teachers could have confidence in academic freedom.  But they can't and don't.

As depicted in the show, university administrators obsessed with appearances and virtue signaling to the near exclusion of educational mission and pedagogical merit relish any opportunity to sacrifice an iconoclastic academic to the maw of groupthink.  No shackles of investigation or professional integrity can be permitted to slow the rush to condemnation.

Jay Duplass (Peabody Awards photo CC BY 2.0) 

Fictional Professor Dobson defends himself to the dean: "I’m tenured.  You can’t constrain my actions in my own classroom or my speech on this campus unless I’m in violation of the faculty code of conduct.  Which I’m not."

But there's the rub: arguably, he is.  An administrator at my university has enforced against faculty the university system's "Principles of Employee Conduct." The vague principles require faculty to "accord respect" to all persons and "to accept full responsibility for their actions."

If those terms were read in accordance with others—"foster forthright expression of opinion and tolerance for the views of others"—then no problem.  But if administrators are willing to read dissent, whistle-blowing, and classroom provocation as disrespect, which they are, faculty have no real recourse.  As I wrote more than a decade ago, and others periodically observe, tenure protection grounded in procedural due process is an empty promise in practice, and courts routinely abstain from recognition of any substantive academic freedom.

Faced with dismissal proceedings, Dobson reluctantly resorts to a lawyer in the final episode of the first season.  No spoilers.

The Chair is enjoyable mostly for the comedy.  But it delivers as well periodic gems of thought-provoking truth, besides the sad state of academic freedom: the need for critical reexamination of historical subject matter and diversification of faculty perspectives, without sacrificing academic integrity; the fate of classical studies in the age of impatience; university budget cuts to unremunerative liberal arts; the personal and professional challenges of growing old amid fast-paced social evolution; and what can or should be done today to remedy past social and economic injustices of race and gender.

When the father of our protagonist Ji-Yoon Kim criticizes her work-life imbalance, an aggravated Kim retorts, "What promotion means you don't have to work as much?!"

A story for our times.

Also among the outstanding cast are Nana Mensah (Queen of Glory, King of Staten Island) and the ageless Holland Taylor.  Sophie Gilbert at The Atlantic liked it too.  HT @ Prof. Irene Scharf.

Comparative law papers span globe, round out 2019

Comparative Law is so rewarding to teach that I'm probably overcompensated to do it.*  The inherently diverse nature of the course content, co-instructor Dean Peltz-Steele and I find, inspires students to creativity in their work in a way that much of law school never manages to do. Moreover, I think, that opportunity to be creative is why students respond favorably to the class, an oasis in the monotonous sea of bar courses.  We learn so much from their projects in Comparative Law, which adds in turn to the rewards of teaching the class.

At risk of pride, I wish to share, with students' permission, the impressive range of projects generated in our class this semester in 2019.  The following excerpts are of my construction, so any roughness in the editing is my fault.  No need to call for reference checks on any of these students; every one has our informed endorsement.  Let the hiring begin!

Markus Aloyan (Instagram), Executive Powers: Rebirth of a Soviet State [Armenia and the United States]. Therefore, the current political climate and constitutional crises in Armenia contain a historically driven, Soviet-Communist basis and more modernly developed Russian influence that came to fruition in the young Republic's 2015 Constitutional Amendments. The Russian-influenced reforms will be compared to the executive powers vested by the American Constitution, and analyzed for their causes and effects on the region. [Footnotes omitted.]

Tyler Hicks, England and United States Fishing and Hunting Laws.  The purpose of this paper is to compare the very different histories of England and the United States for wildlife management, and then show how even though these countries have different systems, their overall goal to protect and further wildlife is generally the same in effect. England and Massachusetts generally face the same issues when it comes to enforcement of their laws as well. Both countries value the ability to be able to hunt and fish but understand that they have a duty to hunt and fish both ethically and humanely. In particular, I will compare the fishing and hunting laws of England and the laws of the United States, including Massachusetts.

William McGuire, Prostitution and Human Trafficking [Sweden, UK, US].  Prostitution and human trafficking are two intertwined issues that have prevailed throughout the course of modern history, and an analysis of the different approaches taken by different societies articulates a quadripartite view of prostitution as a whole.  The four views are the moralizing view, normalizing view, the patheticizing view and the victimization view.   These four views have produced three categories of legal systems, the absolute or partial criminalization of prostitution, the regulation and legitimization of prostitution, and the abolition of prostitution.... In this paper, I will articulate the three different legal systems through example.  I will use the Swedish Model to show how the partial criminalization of prostitution has affected Swedish society as a whole.  I will use the United States to show the American model of abolition of prostitution, with the exception of the state of Nevada.  Finally, I will use The Netherlands to show the regulation of prostitution.  I will then discuss the social pressures that led to the adoption of the legal system used in each country, specifically, whether the impetus was to combat human trafficking or not.  Finally, I will conclude by discussing whether there is convergence or divergence on a regional and global level.

Daniel Picketts, [Civil Rights in United States and Contemporary Afghanistan].  The evolution of civil rights has been driven by changing societal sentiments and ultimately cemented in different civilizations through changes in their laws. Currently in the United States, civil rights are the buzzword of the day and the public’s changing sentiment is demanding attention from the nations law makers. The current climate and inclusion of different classes that make up the civil rights of the United States has taken a winding path that has led it away from the oppressive, segregate founding, to the arguable progressive, inclusive current day.... Comparing two vastly different countries with glaring differences becomes productive when the factors that have effected changes in civil rights, while accounting for any differences, cultural or otherwise, are similar. What this comparison sets out to accomplish is to compare two different countries: the United States, and Afghanistan. The similarities in civil rights are few and far between. Instead what will be compared are the events in the two countries that are somewhat similar and the outcomes that resulted in the respective countries....

Christine Powers, A Comparison of the Child Custody Standards in the United States, New Zealand, and Ireland.  This paper is an examination and discussion of the different child custody definitions and terminologies and the standard deployed by the judicial system when making a child custody determination. The paper will discuss the different factors that a judge may or must consider when making a child custody arrangement. Further, the article will discuss whether or not there is a trend towards a unified standard and whether unification of the standard is possible.

Kiersten Reider, I Do But I Don't Want To: A Comparative Analysis of the Criminal Marital Rape Laws of the United States and India.  The aim of this paper is to provide a comprehensive analysis of the criminal rape laws of the United States and India, with an emphasis on marital rape. I will spend time discussing each country individually before drawing a comparison between the two. First, I will discuss the United States, briefly touching on the common law history of marriage, and criminal rape laws at the state and federal level. I will then discuss India, touching on its hybrid legal system, and the history of marriage and criminal rape laws at the state and federal level. Last, I will discuss the similarities and differences between the two systems.

Christina Suh, Comparing the Law to Court-Mandated Divorce Parenting Class Between the United States and South Korea. This paper compares legislative and judicial history in implementation of court-mandated parenting classes during divorce proceedings in the United States and South Korea.  The discussion demonstrates how evolution of social movements in each country changed its customary laws in the area of family law jurisprudence.  In exploring the multiple related causes behind the development of the mandated parenting class, parts of the paper will address how Korea’s high cultural context influenced its revision in laws to focus on the protection of minor children and promote gender equality.  Although there is a lack of strong studies that speaks to the direct effectiveness of the program in each country, the related research demonstrates the importance of educating parents about managing conflict and promoting the health and safety of children.  In conclusion, findings will show why changes in law that educate and decrease adverse child experience (ACE) is an approach that benefits society as a whole, in the long term....

Brittany Wescott, Juvenile Justice Converges on Principles Leading to the International Harmonization of the Juvenile Justice System [South Africa, US].  This paper explores the similarities and differences between two countries, South Africa and the United States, specifically Massachusetts, in relation to the international principles governing each respective juvenile justice system. This paper explains how both the South African system and the U.S. system developed, illustrating the various principles each holds dear. In addition, this paper looks specifically at the value behind setting a minimum age of criminal responsibility, the crimes juveniles can be charged with, the limitations on sentencing, and the handling of juveniles in and out of the court room. Regardless of ratifying the Convention on the Rights of the Child, both countries have made significant progress toward embodying the principles of the international community.

Kyle Zacharewicz, Wish You Were Here: A Comparative Analysis of U.S. and Canadian Refugee Law and Policy.  Immigration and refugee policy of various nations has started to move in the trend of “locking down” the border. It has been seen, both with the increase in numbers of refugees and the occurrence of several populist movements across the globe gaining real traction, that many countries have begun to implement a “Nation First” mentality toward the growing threat of “those people,” the nomadic wanderers by happenstance of displacement and inability to return home.... While the exchange of ideas on the treatment of and allowances for Refugees in the greater European community are robust and important, this paper will instead take a deep dive into the myths of how two different countries, the only two neighbors on the continent of North America, deal with and treat refugees and asylum seekers in order to discover how truly they hold up currently.... I find it effective to analyze these two countries as they are connected by their common law systems, participation in international treaty-making, similar legal structure in immigration and refugee procedure, and a border.... It is easy to see how the policy of one can affect the other, and my goal after explaining the reality of how these systems operate today is to show how the United States has clamped down on its immigration policy, and why Canada largely has the potential makings of a similar populist movement toward “locking down” the border.

Congratulations, Comparative Law students!

—
*Hyperbole.  I'm not overcompensated at UMass, despite an inexplicable vote by the tenured faculty to disallow anyone asking for a raise.  Compare Salary.com with MassLive database.  Nonetheless, I will remain grateful for the opportunity to have worked with and learned from my students.

Teaching and learning speech and advocacy: Is online as good?

The National Communication Association met in downtown Baltimore, Md.
(All photos by RJ Peltz-Steele CC BY-SA 4.0.)

UMass Law offers oral advocacy online. I was on the curriculum committee that approved a colleague's proposal for the offering. I was surprised. Oral skills online? Is nothing sacred?

I've used Zoom quite a bit: for class guests and snow make-ups. I took the university training to teach online courses in toto; I was uninspired by the shaky infrastructure and unproved methods, especially relative to the worthy rigors of legal education. At the same time, I like teaching the occasional online one-off, and online might work well for a seminar. The early miseries of teleconferencing (still the norm in the ABA) feel nothing like the real-time interactive experience offered by contemporary tools.

Anyway, I would not vote against a colleague’s well intentioned proposal. That would be unprofessional.

Well, when you don’t know, ask an expert. At the National Communication Association annual meeting in Baltimore on Saturday, experts in public speaking debated whether the communication discipline’s most popular basic course, Public Speaking, should be taught online.

Keohane and Broeckelman-Post

In the yes camp were Melissa Broeckelman-Post, George Mason University, and Jennifer A. Keohane, University of Baltimore. They structured their argument on three points: (1) we must teach for the 21st century; (2) public speaking can be taught online effectively; and (3) online classwork enhances access to higher education.

On the first score, they cited research showing that in 2018, the number of online first job interviews doubled, and more than half of professionals telecommute at least half the week. Hillary Clinton was the first candidate to announce for the Presidency online. And globalization is pushing demand for long-distance teamwork, having to surmount communication hurdles from the technical to the cultural.

Huddy and Morreale

On the second score, Broeckelman-Post and Keohane argued that speaking competencies can be achieved through online learning, as measured in student reports of positive experience, diminished anxiety, and increased confidence. The no side referenced research showing contrary results on anxiety and confidence. On rebuttal, the yes side said that the most recent research shows at least equal efficacy by these measures, and maybe somewhat better anxiety reduction with online.

On the third score, Broeckelman-Post and Keohane argued that educators' responsibility to ensure access to education demands online teaching. They cited research counting 74% of college students as “nontraditional,” including military, parents, disabled persons, commuters, and others who are financially independent. Also, dual enrollment in college coursework is on the rise, including more than 1.2 million high schoolers.

In the no camp—though in truth, this was in large measure devil’s advocacy—were Sherwyn P. Morreale, University of Colorado, Colorado Springs, and William P. Huddy, Metropolitan State University of Denver. They appealed more to qualitative than quantitative sources.

Morreale

Morreale cited three components of student communication competence (Spitzberg 2000), motivation, knowledge, and skills. Motivation is fueled by anxiety diminution and confidence enhancement, which (at least earlier) research showed were better achieved in the live company of a supportive community and instructor. Higher order learning is accomplished through discussion and reflection, which Morreale argued are accomplished more readily in the live presence of an instructor. And as to skills, Morreale posited that conventional public speaking skills are adaptable to online communication, but not necessarily vice versa. In later discussion, Morreale conceded that the no side made an apt point on the value of students’ acquisition of tech skills, such as speaking into a mic and looking into a camera, if besides conventional skills.

Morreale pointed also to the six core components of instructional communication competence (Beebe & Mottet 2009), immediacy, affinity-seeking, relational power, credibility, clarity and humor. Live communication epitomizes immediacy and better allows a speaker to exercise relational power, she argued. Credibility and clarity are achieved best without the intermediation of mics and speakers, and humor is more readily generated in person.

Huddy

Huddy made a compelling personal appeal. His work history includes ten years as a television anchor, and he described his process of video-recording and watching himself to study and enhance his communication looking into a camera lens—thereby to manage the camera’s limitations, becoming accustomed to missing what can only be achieved in person. “Eye contact is not just gestural or theatrical,” he said. “It’s my number one opportunity to see if what I am saying is getting across to you. There’s a young lady in the back there that is kind of smiling,” he observed, telling him that what he was saying was resonating with her.

Huddy described the cruciality of de-centering in public speaking (I missed the attribution), meaning putting yourself mentally in your audience's thinking, and evolving on the fly the main points that the audience wants to hear. Learning to do that with live visual cues has no equal of experience, he argued. Effective public speaking requires richness, authenticity, and warmth, he explained, and warmth only communicates in person. An audience member in the Q&A offered some pushback, observing that she experiences a kind of warmth with students online incidentally by seeing them in their home contexts—with nagging siblings, dogs, and other home pandemonium unfolding on screens' edges.

Thorpe, Keohane, Morreale, Huddy, and Broeckelman-Post

The audience voted in the end for who won the debate and, separately, whether to offer public speaking online. Yes took both honors, which probably says a lot about the future of higher education, communication and other fields. In truth, as indicated above, Morreale and Huddy took the hard no position for sake of debate and critical analysis. Morreale in fact eagerly teaches public speaking online. All agreed that the key is not whether to teach online, but how to do it well. I imagine that should be our take-away for legal education, too.

The session was moderated by Janice Thorpe, University of Colorado, Colorado Springs. Susan Ward, Delaware County Community College, offered insightful responsive commentary.

Teachable torts, Rugby World Cup edition: When battery exceeds consent in sport

More than once over the years, I've received student-evaluation feedback complaining that my use of sport cases and hypotheticals in 1L Torts is detrimental to students not interested in sport.  Now I explain to the class in advance why we do it.

Torts is about deriving the rule of law from what the enlightenment philosophers termed our "social contract."  The sport field is a brilliant place to test out tort law, because it's a place where the social contract is most unusually suspended.  If your office workmate punches you in front of the copier, you'll consider suing her for battery.  Meanwhile, you'll most likely swallow your wounded pride when she takes you down on the soccer pitch.  Understanding the difference between the two cases is what tort law is all about.

In that vein—and in honor of the Rugby World Cup, with England v. Tonga getting under way as this post goes live—I present for your consideration St. Helens vs. Wigan in the 2014 Super League Grand Final of rugby: also remembered as Lance Hohaia v. Ben Flower.

There is, moreover, fascinating follow-up to this encounter to be found in Guardian coverage in 2015 and in BBC coverage in 2016.  The incident was recently recalled by TV NZ 1's Luke Appleby, who suggested that tort liability might be just the thing to bring rugby sluggers to heel.

HT@ barrister David Casserly, who first brought this dust-up to my attention.

Teachable torts, Patriots edition: Civil complaint against Antonio Brown

Antonio Brown in 2014 (by Brook Ward CC BY-NC 2.0)

New England news is afire today over the civil lawsuit filed against NFL Patriots football acquisition Antonio Brown.  It happens that many 1L law students are presently immersed in their first exposures to intentional torts and federal jurisdiction.  So here from Mnwilla at Scribd is the complaint and some comments for thought.

Antonio Brown Lawsuit by mnwillia on Scribd

Notes and Questions

1. The case is filed in federal court in Florida, but the claims are all in state tort law. What is the basis for federal jurisdiction?  Why do you think the complaint was filed on Brown's first scheduled day of practice with the Patriots?

2. The fact statement is lengthy, paragraphs 14 to 74. But federal practice requires only "notice pleading."  Plaintiff's counsel gives up a lot of information about the plaintiff's theory of the case by putting more content than necessary into pleadings.  So why so much ink on factual allegations?

3. There are five straightforward counts, or causes: two in battery, one in false imprisonment, one in IIED, and one in invasion of privacy.

• Notice how false imprisonment appears incidentally to other claims.  Unlike MBE hypotheticals, few cases in real life support false imprisonment by itself. 
• One of the battery counts is called "sexual battery (rape)."  That's not really a distinct kind of battery in multistate common law, and it doesn't here appear to be covered by any specific statute, apart from common law.  Nevertheless, a plaintiff may claim separate counts of tort upon discrete factual bases.  What are the advantages of doing so?
• What challenges does the plaintiff face in proving IIED?  Do the factual allegations get her there?  Is there vulnerability on this count or any other to a 12(b)(6) motion?

4. The plaintiff seeks punitive damages, and the bases for that claim are stated within the counts. Some jurisdictions require that sufficient allegations to support a claim for punitive damages be stated in a separate count, even though "punitive damages" is a damages claim, not a tort.  Can you discern the rule for punitive damages in the state jurisdiction, based on the allegations?

Colorful CUNY comics teach environmental law, policy, and social justice for all ages

Comic books are not new to legal education, but the Center for Urban Environmental Reform (CUER) at the City University of New York Law School is trailblazing.  Among the fabulous contributions to the recently published The Media Method (CAP), a book about popular culture in legal education, is a chapter by CUNY Law Professor Rebecca Bratspies and her artist-collaborators, including Charlie La Greca.  They are using comic books to reach kids, and, well, me, to talk about environmental conservation and climate change.  They made a video, too, about the project:

When I saw Professor Bratspies at the SEALS conference in July, she gave me a copy of her most recent creation, Book 2 in the Environmental Justice Chronicles!: Bina's Planet.  Suffice to say, it's another hit.  No spoilers, but I was hooked from page one, when heroine-everywoman and high-school-soccer-star-alumna Bina returned to her school-stadium pitch, where, implicitly, young women's soccer reigns supreme.  She goes on to save the day with her colorful cohort, demonstrating en route best practices in youthful social activism à la Greta Thunberg or Xiuhtezcatl Martinez.  I love that Bratspies elevated the tale to the planetary level, making it simultaneously descriptive of the supranational threat and artfully suggestive of trending science fiction by black women writers (see also Terra Nullius).

Bina's Planet is not yet online, but is available in paper from CUER for public education projects.  While you wait for mass dissemination, catch up with Book 1, Mayah's Lot, available to download, or watch and listen online:

Incidentally, for a related CUNY workshop on the Freedom of Information Act in 2018, Bratspies, La Greca, et al., produced a pamphlet-sized special appearance of Mayah on the FOIA.  I have a copy, but cannot find an image in circulation.  I hope they'll put it online in the future.

'The Media Method': Pop culture-oriented teaching book hits shelves (discount code for 2019 buyers!)

The Media Method: Teaching Law With Popular Culture has hit the shelf at Carolina Academic Press.  I contributed a chapter on pop-culture audiovisuals in 1L Torts to this rich volume conceived, compiled, and edited by pop-culture-in-law maven Christine A. Corcos, the Richard C. Cadwallader Associate Professor of Law at Louisiana State University.  Authors discussed the project recently at the annual meeting of the Southeastern Association of Law Schools (SEALS).  Here is the publisher's description:

Many law professors now teach courses by using examples from popular culture, but there is no comprehensive overview of ways to integrate non-law materials into the legal curriculum. In this text, more than two dozen law professors from the United States, Canada, and Australia demonstrate how to integrate fiction, poetry, comic books, film, television, music, and other media through the first year curriculum traditionally offered in U.S. law schools as well as a number of advanced courses in many subjects. The heavily illustrated book also includes best practices as well as pedagogical justifications for the use of such methods.

The front-matter online includes the table of contents.  Chapter 10 is my Torts Through the Looking-Glass.  Here is the first paragraph (footnotes omitted).

Students today view the world relative to its representations in digital media.  This digital looking glass, or mirror, of reality incorporates fact and fiction and has itself come to define our popular culture.  Accordingly, today’s students benefit from the examination and analysis of challenging subject matter in the real world relative to its digital imaginings.  Instructors in torts can promote learning by bringing into the classroom popular cultural expressions extracted from the vast audiovisual libraries of the Internet.  These demonstrative exhibits can be used to support problem analysis, to explore policy and theory, to bridge study and practice, and to raise issues in professionalism.  This chapter demonstrates the range of multimedia material available in popular culture today with relevance to torts.  My aim is to encourage instructors to build their own libraries of materials and to enhance student learning by holding up torts to the looking glass.

Use code TEACH19 for 25% off in 2019!

Profs talk pop culture at law school conference

At the annual meeting of the Southeastern Association of Law Schools in the last week of July, colleagues and I had the opportunity to share ideas about teaching law with popular culture. I learned a great deal at that session (and others).  I was able to share about my own use of audiovisual content as it's changed over the years.  I'll say more as we near publication of our book project, The Media Method.  Meanwhile, this teaser ....

Carolina Academic Press mocked up a display copy of the forthcoming Media Method.

Contributors to The Media Method include Professor DeLeith Duke Gossett at Texas Tech School of Law. Presenting at center here, DeLeith is a former student of mine. Teachers will understand the giddy pride induced by collaborating with such a colleague.

Save 25% if you order The Media Method in 2019!
Use the Code TEACH19 when ordering online at caplaw.com. 

Teaching Trump: Four Thoughts for Faculty

Saturday morning, at the annual meeting of the Law and Society Association (LSA) in Washington, D.C., I served on a panel about "Teaching Law in the Trump Era."  My thanks to panel chair John Bliss, University of Denver Sturm College of Law, Swethaa S. Ballakrishnen, UC Irvine School of Law, and other founders and leaders of the new LSA Collaborative Research Network #19 on legal education, for organizing this program.  Here is the panel abstract:

The Trump presidency has reportedly attracted a new wave of law school applicants who are motivated by issues ranging from sexual assault, to racial justice, to the rights of immigrants, to the basic foundations of the rule of law. In this context, how do U.S. law teachers address legal and political headlines that many faculty and students find disconcerting? This session offers diverse perspectives on this question from accomplished law faculty who teach a wide range of legal curriculum.

Trump in the classroom.  Literally.  White House photo.

For my bit, I focused on President Trump-related materials I used to teach defamation in Torts II in March 2019.  In class, I assigned as reading the complaint in Zervos v. Trump—before the New York Appellate Division at the time—alongside Justice Thomas's opinion on cert. denial in McKee v. Cosby.  The pairing of a pleading and a scholarly judicial opinion allowed a study first of tort doctrine, and then of constitutional and policy dimensions, all the while with a running contemporary thread of "#MeToo," which ran back to our fall 2018 study of intentional torts.  Outside of class, in review sessions, I used Melania Trump's 2017-settled complaint against blogger Webster Tarpley (Variety).  These "Trump cases" afford ample opportunity to explore skills and practice collateral to the law of torts, such as litigation strategy, legal professionalism, and client counseling.

Professor Bliss suggested that we fashion our presentations around student feedback and reactions to Trump-related materials.  To that end, I solicited input from my class (and from colleagues in academic support).  Five students generously took time from their after-exams pursuits to oblige with deeply thoughtful, sometimes moving, and thoroughly informative feedback.  I am grateful to them.  I extracted their words, anonymized, for use in my panel time.  I won't reiterate them here as to further protect their anonymity. But I'll share four conclusions about "teaching Trump," drawn from this feedback. 

(1) Plan well and stay on course.  Because this content tends to evoke strong emotions, it is important for the teacher to map out an agenda about where the class discussion should go, in consonance with what the materials offer.  Then the class must be kept on task.  This might require more involved moderation of class discussion than is the norm for some teachers.  Students will sometimes make observations driven by emotion and supposition, and that's OK.  But those observations need to be responded to with channeling into constructive analysis.  If for example a student says that the plaintiff is grubbing for money, that's a great springboard for legitimate questions, without having to challenge or verify the premise: How does tort doctrine safeguard, or not, against disingenuous claims?  What are the incentives or impediments for plaintiffs and their lawyers, born of transaction costs?  How does a lawyer counsel a client about uncertainty of recovery?

(2) Avoid assumptions and keep an open mind.  The teacher should not suppose that she or he knows what the students are thinking, whether as a group or to an individual.  Someone in the class is a Trump voter and believes he is America's only way forward.  Someone else regards Trump as a source of post-traumatic stress.  They're not always showing you these reactions, for various reasons.  And they're not necessarily who you think they are. Take care not to make assumptions about where people stand.  One student who wrote to me really forced me to turn over the immigration "wall" issue in my own mind, and I learned a great deal from her different perspective.  Isn't the great thing about being a professor that continuing education is part of our job?

(3) Model professional skills.  When a teacher leads a law school class, students are learning doctrine, but they're also "meta-learning" lawyering skills such as leadership and dispute resolution.  How a teacher manages conflict in the class and moderates discussion will be as important and memorable a lesson for some students than the subject matter being taught.  For this reason, teachers need to be deliberate in and thoughtful about pedagogical methodology.

(4) Lighten up.  Yes, our content in law school can be heavy.  We have to talk about things in the classroom that reveal the absurdity of "trigger warnings," because life doesn't come with a warning label, and law is about life.  But it is possible—if hard—to engage with heavy issues and to do so with a light heart.  Guidance can be drawn from some recent developments in comedy—think Hannah Gadsby and Ellen DeGeneres—to show that humor can be accomplished without it being at anyone's expense.  Don't get me wrong; I love a good insult comic.  Just not at the front of the classroom.  One student who wrote surprised me with the observation that a light joke I made diffused tension over the fraught subject and made students feel comfortable participating.  Now if only I could remember what I said.

These conclusions entail work for any teacher, no matter how experienced.  I am far, far from excellent in realizing these lessons.  But feedback from my students has given me goals.

Thanks also to excellent co-panelists at LSA, and to all the teachers and scholars who contributed to the roundtable discussion.  I have appropriated many of their insights and ideas for further exploration and experimentation.  Co-panelists were Scott Cummings, University of California, Los Angeles; Rashmi Goel, University of Denver Sturm College of Law; and Gwendolyn Leachman, University of Wisconsin Law School.

---

Attention faculty!

 Dean Peltz-Steele and I are collaborating to produce an open-source resource for faculty in law and related fields to teach law and policy through "Trump case" materials.

Stay tuned for more information about "Trump Law."

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Right of publicity protects personality, not Warren-Brandeis privacy, explains new work among four by UMass Law faculty

Four recent and compelling publications from my colleagues at UMass Law examine privacy and the right of publicity, LGBTQ civil rights, legal pedagogy, and law librarianship in public service.

Prof. Marlan

Professor Dustin Marlan has done the hard work of building the philosophical foundation for a personality-based right of publicity, disentangled from Warren-Brandeis privacy.  "Unmasking the Right of Publicity" is available on SSRN and forthcoming in the Hastings Law Journal.

This Article examines the potential influence of psychoanalytic thought on the conception of publicity as a right distinct from privacy.

In the landmark case of Haelan Laboratories v. Topps Chewing Gum, Judge Jerome Frank articulated the modern right of publicity. The right is now most often seen to protect the strictly commercial value of one’s “persona”—the Latin-derived word originally meaning the mask of an actor. Among other criticisms, the right of publicity is frequently accused of lacking a coherent justification, permitting only economic redress against public harms to the persona, and stripping away individual identity by allowing for an alienable, proprietary right in one’s personality. Why might Judge Frank have been motivated to create a transferable intellectual property right in the monetary value of one’s persona distinct from the psychic harm to feelings, emotions, and dignity protected under the rubric of privacy?

Judge Frank was a leading figure in the American legal realist movement known for his unique and controversial “psychoanalysis of certain legal positions” through seminal works including Law and the Modern Mind, Why Not a Clinical Lawyer-School?, and Courts on Trial. His work drew heavily on the ideas of psychoanalytic thinkers, like Sigmund Freud and Carl Jung, to describe the distorting effects of infantile and unconscious wishes and fantasies on the decision-making process of legal actors and judges. For Judge Frank, the psychoanalytic interplay between dual parts of the personality supported the realist interpretation of lawmaking as a highly subjective and indeterminate activity. Indeed, though Judge Frank provided little rationale for articulating a personality right separate from privacy in Haelan, he had given a great deal of attention to the personality in his scholarly works.

In the spirit of Judge Frank’s psychoanalytic jurisprudence, this Article suggests that the right of publicity’s aim, apart from the personal right to privacy, may be understood through the psychoanalytic conception of the personality—one divided into public and private spheres. In the psychological sense, the term persona, or “false self,” refers to an individual’s social facade or front that reflects the role in life the individual is playing. That is, as a metaphor for the actor and their mask, the persona is used to indicate the public face of an individual, i.e., the image one presents to others for social or economic advantage, as contrasted with their feelings, emotions, and subjective interpretations of reality anchored in their private “true self.”

However, the law’s continued reliance on a dualistic metaphor of the personality—i.e., divided sharply into inner (private) and outer (public) subparts—appears misguided amidst a growing technology, internet, and social media-driven need for interwoven privacy and publicity rights. The Article thus concludes by examining intersubjective personality theory, which might provide a useful conceptual update in its view of the personality as contextual, relational, and dependent on social interaction—rather than divided sharply between the public and private.

Prof. Ho

Professor Jeremiah Ho has authored a piece building on the Masterpiece Cakeshop case (U.S. 2018) and continuing his important work in LGBTQ civil rights.  "Queer Sacrifice in Masterpiece Cakeshop" is available on SSRN and forthcoming in the Yale Journal of Law and Feminism.  Here is the abstract:

This Article interprets the Supreme Court’s 2018 decision, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, as a critical extension of Derrick Bell’s interest convergence thesis into the LGBTQ movement. Chiefly, Masterpiece reveals how the Court has been more willing to accommodate gay individuals who appear more assimilated and respectable—such as those who participated in the marriage equality decisions—than LGBTQ individuals who are less “mainstream” and whose exhibited queerness appear threatening to the heteronormative status quo. When assimilated same-sex couples sought marriage in Obergefell v. Hodges, their respectable personas facilitated the alignment between their interests to marry and the Court’s interest in affirming the primacy of marriage. Masterpiece, however, demonstrates that when the litigants’ sexual identities seem less assimilated and more destabilizing to the status quo, the Court becomes much less inclined to protect them from discrimination and, in turn, reacts by reinforcing its interest to preserve the status quo—one that relies on religious freedoms to fortify heteronormativity. To push this observation further, this Article explores how such failure of interest convergence in Masterpiece extends Derrick Bell’s thesis on involuntary racial sacrifice and fortuity into the LGBTQ context—arguing that essentially Masterpiece is an example of queer sacrifice. Thus, using the appositeness of critical race thinking, this Article regards the reversal in Masterpiece as part of the contours of interest convergence, queer sacrifice, and fortuity in the LGBTQ movement. Such observations ultimately prompt this Article to propose specific liberationist strategies that the movement ought to adopt in forging ahead. 

Prof. Flanagan

Professor Rebecca Flanagan has authored an article in legal pedagogy in which she endeavors to bring some clarity to the process of preparing law students for this rapidly evolving market. Better by Design: Implementing Meaningful Change for the Next Generation of Law Students was published at 71 Me. L. Rev. 103 (2019).  Here is the abstract:

This article presents a fictitious, utopian law school to challenge the assumption that legal education has met adequately the challenges of preparing law students for an evolving profession. By presenting the utopian ideal, the author highlights how adoption of best practices in learning and cognitive sciences could transform legal education from a highly criticized institution to a dynamic, self-transforming academy designed to meet the changing needs of students and the practicing bar.

Librarian Jessica Almeida has co-authored an article on law librarianship in public service, "Hosting a Successful Transcription Party," appearing in the AALL Spectrum, March/April 2019, at 42.  The work describes how New England law librarians and the Rhode Island State Archives used a transcription event to combine service and outreach to the community.