'Our Side': Short film on immigration crisis in Italy earns Academy nomination in narrative

Last year, my daughter, Morgan Steele, worked as a script supervisor on a short film in Sicily.  Our Side (2020), directed by Nicola Rinciari, is an intriguing and timely snapshot of fictionalized human drama amid the very real immigration crisis in Europe.  The film has been nominated for the Student Academy Award in narrative.  Here is the trailer:

 

"Our Side" Trailer from Nicola Rinciari on Vimeo.

Knowles, Metroka enter the fray on free speech today

My friend and colleague Dr. Helen J. Knowles, SUNY Oswego Political Science, has just published, as co-editor with Dr. Brandon T. Metroka, the compelling and timely collection, Free Speech Theory: Understanding the Controversies (Peter Lang 2020) (Amazon).  The editor-authors gave me an advance look at this one, and my well earned endorsement humbly graces the back cover.  Here is the précis:

The rallying cry of "Free speech!" has long served as a touchstone for liberals and conservatives, alike, engaged in political polarization conflict and discourse. The democratization of media and the feverish pitch of political polarization, however, have contributed to the weaponization of free expression. From Colin Kaepernick to "fake news," boycotts of partisan television programming to removals of Confederate monuments, internet neutrality to the silencing of college professors and all points between, citizens and pundits all too frequently wield the slogan of "Free speech!" as the sword and shield of political discourse. Oftentimes, ironically they do so with little regard for the views of their opponents. As a result, society risks trading a substantive value for an empty slogan or, far worse, blind authority.To rediscover the underlying assumptions and social values served by free expression, and to move current controversies beyond rhetorical flourishes, Helen J. Knowles and Brandon T. Metroka assemble an impressive group of legal and political scholars to address one overarching question: "Why should we value free speech?" Through analyses of several recent controversies invoking concerns for free expression, the contributors to this volume make complex political theory accessible, informative, and entertaining. Beginning with internet neutrality and ending with an overview of developing free expression controversies in comparable western democracies, experts reestablish the link between free expression and the underlying values it may serve. In doing so, this volume unearths values previously unexamined in our modern—but increasingly impoverished and bitter—political discourse.

I can't heap enough praise on Dr. Knowles, whose work in law, history, and political science is uniformly superb.  I featured another book of hers just one year ago.  And in the spring of 2019 (back when I was allowed to be around other people), I had the privilege of seeing firsthand how she inspires passion in her students in the classroom and on campus.  It is evidence of her talents as a teacher that I have in the last year counseled several of her students in their desire to pursue graduate studies. 

Coincidentally!, I was wearing my SUNY Oswego shirt just last week, when I learned about this book's appearance.  Below is me with Park Ranger Jordyn Steele (no relation) in Glacier National Park.  Woe to the persons who asked me, "Where is that?," and then got an unsolicited nonfiction book recommendation.

Research for educational opportunity, accountability requires transparency, need not forgo student privacy

When I had the privilege of working on transparency issues in the Arkansas General Assembly in the 20-aughts, two legislators and I promoted a bill that would have required public state universities to disclose data on their use of affirmative action in admissions.

One legislator, an African-American woman, reacted with manifest hostility, as if we sought outright to deprive persons of color of access to education.  I wish she would have engaged with us rather than fighting the bill behind closed doors.  It probably would have surprised her to learn that I was motivated specifically by an accusation leveled by an African-American advocacy group.  The group alleged, inter alia, that higher ed was using affirmative action to boost enrollment profiles, for PR and accreditation purposes, but then failing to support those enrolled students' success on state campuses.

I didn't know, and to this day don't know, whether the group's accusations held up as more than anecdotes.  As a transparency and accountability advocate and public educator myself, charged with the responsibility of faculty governance, I wanted to know the truth.  And there arose the problem: It was impossible to do the research, because the universities claimed, even in response to internal queries, that student privacy required nearly every datum about admissions to be held secret.  There was no way to know what students benefited from affirmative action, nor to match those data up with how those students fared.

The access bill ultimately failed, and, to my view, the reason for that failure only made the transparency case stronger.  We were not undone by objection based on equality of opportunity.  We were undone because our bill, which broadly defined affirmative action, would have required disclosure of legacy admissions: that is, when a university admits an applicant because the applicant is related to an alumna or alumnus, especially one who's a donor.  That kind of admissions preference is known to contribute to systemic discrimination against persons of color, not to mention aggravation of our alarming rise in America of socioeconomic disparity.

State Capitol, Little Rock, Arkansas

The hostility of the aforementioned African-American legislator was a warm smile compared with the outrage that poured forth from a white, male legislator, who happened also to be affiliated with Arkansas State University (ASU).  In a legislative hearing, he challenged my assertion that the universities would not happily cooperate with my research.  They would, he alleged, no legislation needed.  He persuaded his committee colleagues to no-pass the bill with a promise: After the legislative session, I should contact him personally for help procuring the data, and he would see to it that the disclosures happened.

The bill died.  After the session, I contacted our zealous ASU opponent, that he might make good on his promise.  He ignored my query and never responded.

My work on that bill fueled an ongoing interest in the interaction of access and privacy in education, especially the interaction of the federal Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, and state freedom of information acts (FOIAs) (e.g., in 2018).  In that vein, my Arkansas colleague Professor Robert Steinbuch and I have just published, Ongoing Challenges in Researching Affirmative Action in Legal Education: Maximizing Public Welfare Through Transparency, 26:1 Texas Hispanic Journal of Law & Policy 57 (2020).  Here is the abstract:

The public good often depends on social science research that employs personal data. Volumes of scientific breakthroughs based on data accumulated through access to public information demonstrate the importance and feasibility of enabling research in the public interest while still respecting data privacy. For decades, reliable and routine technical methods have ensured protection for personal privacy by de-identifying personal data. Social science research into legal education and admission to the bar is presently a matter of urgent public interest and importance, requiring solid empirical analysis of anonymized personal data that government authorities possess. Social science research into the effects of affirmative action represents standard, indeed commonplace, research practice furthering the public interest, while employing established methods that minimize the risk to privacy. Yet, when seeking information regarding admissions standards and success metrics, researchers have faced remarkable headwinds from government officials. In this article, we continue to discuss a topic to which we have devoted significant professional energy: the proper balance of privacy, transparency, and accountability in researching legal education.

Our research grew out of an amicus representation in 2018, alongside Professor Eugene Volokh at UCLA Law.

I'm not here naming the ASU-affiliated legislator only because, these many years later, I don't remember his name.  I have no hesitation in calling him out if someone can remind me.

Pertinently, the data in question are still held secret, in Arkansas and many states.  So my colleagues in FOIA research, including Professor Steinbuch, still would welcome that legislator's help.  It's shameful that this fight for transparency and accountability is still under way all these years later.  It's one thing to adopt a policy position and have reasoned disagreement over it.  It's another thing entirely, and anathema to democracy, to insist on a policy position while willfully concealing evidence of its efficacy.

Sullivan publishes on ethics, criminal appeals, and seeking Supreme Court certiorari

My friend and colleague Professor J. Thomas Sullivan has published, Ethical and Aggressive Appellate Advocacy: The Decision to Petition for Certiorari in Criminal Cases, 51:3 St. Mary's L.J. 585 (2019).  The article is especially salient in light of the U.S. Supreme Court's recent decision requiring unanimous juries to convict in criminal trials for serious offenses.  Here is the abstract.

Over the past six decades, United States Supreme Court decisions have dramatically reshaped the criminal justice process to provide significant protections for defendants charged in federal and state proceedings, reflecting a remarkable expansion of due process and specific constitutional guarantees. For criminal defendants seeking relief based on recognition of new rules of constitutional criminal procedure, application of existing rules or precedent to novel factual scenarios, or in some cases, enforcement of existing precedent, obtaining relief requires further action on the Court’s part. In those situations, the Court’s exercise of its certiorari jurisdiction is the exclusive remedy offering an avenue for reversal of conviction or order vacating the sentence. Petitioning for review by writ of certiorari is essential to the defendant’s chances for obtaining relief and is what might be characterized as the “final tool” in the appellate lawyer’s “toolbox.” There are at least five scenarios in which the petition for writ of certiorari is critical, and counsel must be aware of circumstances dictating strategic decisions that need to be made in order to protect the client’s options for relief in the direct appeal and post-conviction processes.

As Sullivan explains in footnote:

This is the third in a series of articles addressing appellate practice from a different perspective than that usually taken by appellate courts with respect to counsel’s duty in representing the client. It differs from Chief Justice Warren Burger’s approach to attorneys serving as an officer of the court, as he expressed while writing for the majority in Jones v. Barnes, 463 U.S. 745 (1983). For the author’s prior articles addressing a more aggressive approach to appellate advocacy than that taken by the Jones majority, see J. Thomas Sullivan, Ethical and Aggressive Appellate Advocacy: Confronting Adverse Precedent, 59 U. Miami L. Rev. 341 (2005), and J. Thomas Sullivan, Ethical and Aggressive Appellate Advocacy: The “Ethical” Issue of Issue Selection, 80 Denv. U. L. Rev. 155 (2002).

See also the multi-talented Professor Sullivan recently playing Taps.

Linguists' famous feud evidences defamatory power of 'racist' charge

As I've written and spoken about in the past, in the 20-aughts, I was an unwilling combatant, enveloped collaterally, in "the Race Wars" at the University of Arkansas at Little Rock (epilog on my part).  If you've never heard of the Race Wars, you're to be forgiven.  It happened in American flyover country, where nothing in academia matters.  Not like when something happens at UCLA, and we get all vexed about it, like it's the first time, because now it's happened to someone important.  Nevertheless, my experience was life-altering for me.  And as often happens in the course of life's affection for irony, trauma leaves knowledge, wisdom, and even enlightenment in its wake.

One thing the Race Wars did was turn me 180 degrees into a plaintiff's advocate for defamation and privacy torts, even while vigorously maintaining my bona fides as a defender of the First Amendment and freedoms of expression and information.  Oddly enough, as a lawyer in the 1990s, I had once researched, for a case, the question of whether, or to what extent, an accusation of "racist" is capable of defamatory meaning.  I had concluded then, nearly never, even if uttered upon a false factual predicate.  And I was untroubled by that conclusion, because it fit with my then-staunch allegiance to free speech near-absolutism.  When, a decade later, the R-word was weaponized against me—falsely, unless one is speaking systemically, without reference to individual culpability, but that wasn't a thing until recently—I reassessed my analysis.

Yet my research showed, still, a decade ago, that it would be exceedingly difficult, impossible in many jurisdictions, to eke a successful defamation claim out of "racist," even when an accuser is signaling, by wink and nod, a false factual basis for the charge.  Common law evolution is slow, and precedents had mounted upon the conclusion that "racist" is a matter of opinion only, incorporating no assertion of fact, and thus incapable, as a matter of law, of lowering one's estimation in the eyes of the community.  Charged with a false accusation that threatened to end my career, that conclusion felt wrong.  If one were expected to resign one's job upon the mere fact of an accusation, regardless of its veracity, and regardless of any defense—I was asked to—then that seemed to me a sufficiently horrific charge to fit the bill for defamation.

In the years since, I have seen the same dynamic play out in cases around the country, to other people, in academia, employment, politics, and other contexts, repeatedly reinvigorating that nagging question, whether "racist" is merely an expression of opinion, or can carry defamatory meaning.  So it was with great interest, while on involuntary summer/pandemic hiatus from UMass Law, catching up with my reading, that I came upon a little story about the accusation "racist" in a Tom Wolfe book.  I'm breaking hiatus momentarily to share this story with you.

Tom Wolfe's Take on 'Everett v. Chomsky'

I just read Tom Wolfe's Kingdom of Speech (2016), about the origin of language, anthropologically speaking. Wolfe references a brilliant book I read some years ago, Don't Sleep, There Are Snakes (2008), by Daniel Everett, about his language work (and much more) with the isolated Pirahã people in Brazil. What I didn't know was that Everett's book was one important salvo in a vast intellectual war, in anthropology circles, between Everett, and his supporters, and Noam Chomsky, and his acolytes, over Chomsky's theory of "universal grammar" (UG).  (I'm not going into detail on the theories here, because that's not my purpose.)  Everett's 2008 book pretty well laid out UG.

What Wolfe explained in Kingdom of Speech is that Chomsky's people were like a (socialist, but, like, really, socialist) cult; they had been merciless in defending UG against advancing science showing UG to be garbage (I generalize). They would go after scientists to undermine their work and in that way kept UG around as a dominant theory of language development for decades, despite what, we see clearly now, was a dearth of evidence. UG was less science and more belief system, or academic cult of personality, built around Chomsky.

Among the unusual features of the Pirahã language is a lack of verb tense, as well as other treatments of time and relativity (especially the omission of something called "recursion"; again, not going into it here) that make communication with us, speakers of the world's modern languages, very difficult. One could conclude that the Pirahã are not very smart, because they don't communicate the way we do. That's mistaken; it's apples and oranges. But it's difficult to perceive Pirahã intellect until one masters the language, and Everett was the first outsider who ever did, only after years of study (and he is a savant-level quick study).

So here's the pertinent part. Everett was burgeoningly famous for his research on the ground in Brazil. Chomsky hated field work in general and hated Everett in particular, whose research was exploding UG. So, in 2007, Chomsky's side engineered this, according to Wolfe:

"Everett was in the United States teaching at Illinois State University when he got a call from a canary with a PhD informing him that a Brazilian government agency, FUNAI, the Portuguese acronym for the National Indian Foundation, was denying him permission to return to the Pirahã ... on the grounds that what he had written about them was ... racist. He was dumbfounded." (Wolfe's ellipses and emphasis.)

Wolfe further explained:

"Everett expressed nothing but admiration for the Pirahã. But by this time, even giving the vaguest hint that you looked upon some—er—indigenous people as stone simple was no longer elitist. The word, by 2007, was 'racist.' And racist had become hard tar to remove.

"Racist ... out of that came the modern equivalent of the Roman Inquisition's declaring Galileo 'vehemently suspect of heresy' and placing him under house arrest for the last eight years of his life, making it impossible for him to continue his study of the universe. But the Inquisition was at least wide open about what it was doing. In Everett's case, putting an end to his work was a clandestine operation."

It turns out that Don't Sleep, There are Snakes, in 2008, was Everett's rejoinder to this attack. The book was wildly popular, exceeding even the bounds of scholarly readership (thus reaching me), and hammered the nails to shut UG's coffin.

Though things worked out all right for Everett, Wolfe's story evidences, as if more evidence were needed, the defamatory potential of that R-word charge—even at a time when I was being told to let it go, that "words [could] never hurt me."

Incidentally, and strangely collaterally irrelevantly, Wolfe and I both are graduates of Washington and Lee University. As I just read in parody,"Washington and Lee University votes to remove offensive name from school's title. Will now simply be known as 'University.'"

Law prof joins 'Taps Across America,' honors Texas soldier, attorney, Justice Floyd A. Shumpert

My longtime colleague, mentor, and friend, Professor J. Thomas Sullivan, joined Monday's "Taps Across America" remembrance (Facebook), organized by CBS News correspondent Steve Hartman.

Justice Shumpert

Emphatically, if unnecessarily to my ear, asserting his amateur proficiency, Professor Sullivan played especially to honor his father-in-law, Floyd Allen Shumpert.  In 2008, Professor Sullivan dedicated a law review article to Justice Shumpert, writing:

This article honors my father-in-law, Floyd A. Shumpert of Terrell, Texas, who served as an Associate Justice on the Texas Court of Appeals for the Fifth Judicial District from his appointment in 1983 until his defeat in the 1984 general election. Judge Shumpert began his career in public service following his return to Kaufman County, Texas, after World War II. During the War, he served in the 8th Infantry Division, 28th Infantry Regiment, 2nd Battalion of the United States Army. He suffered a severe injury requiring amputation of his lower leg when he stepped on a land mine in the Huirtgen Forest in Germany only a few days before commencement of the German counter-offensive known today as the Battle of the Bulge. He was awarded the Silver Star and Purple Heart. Upon his return from Europe, he was elected County Clerk and later, after earning his law degree from Baylor University, County Judge. He left the bench for private practice for over fifty years in Kaufman County, interrupted only by his appointment to the court of appeals. He is the most courageous and the kindest man I have ever known.

J. Thomas Sullivan, Danforth, Retroactivity, and Federalism, 61 Okla. L. Rev. 425, 425 n.* (2008) (direct download).  The video is © 2020 J. Thomas Sullivan, used here with permission.

Trump litigation in legal education: Come for the car wreck, stay for the seminar

Coinciding with the U.S. presidential election in the fall semester of 2020, August to November, I'll be teaching a 15-student seminar in "Trump Litigation."

Donald J. Trump is a phenomenon in U.S. litigation, principally litigation over obligations (contract and tort).  He and his enterprises are infamously litigious; perhaps the most comprehensive analysis of Trump litigation is USA Today's remarkable compilation of data from more than 4,000 cases, by investigative journalist Nick Penzenstadler and team.  This vast body of litigation offers at once a deep sea in which one can dive into the doctrine of torts, contracts, and civil procedure, and an opportunity to ask the big questions I relentlessly press on first-year law students, such as whether the common law litigation system represents a pinnacle in human achievement in dispute resolution, or a disastrous failure.

No one knows now whether Donald Trump will be "a thing" after January 2021.  So I thought this fall would be an optimal time to capitalize on the Trump phenomenon as a teaching opportunity.  Here is the short course description:

Trump Litigation Seminar.  Investigation of civil court cases involving Donald Trump, and his family and businesses, in personal rather than public capacities. In tandem with the 2020 election cycle, this seminar invites students to examine public litigation files to study advanced doctrine in obligations law, to witness litigation skills and strategy, and to analyze public policy in American civil dispute resolution. Final paper.

As described, this seminar is calculated to be something of a capstone experience for third-years, comprising threads of doctrinal study, litigation skills, and discussion of theory and policy.

As I previewed to co-panelists at the Law and Society Association and the Southeastern Association of Law Schools conferences in 2019, my plan was to create an open-source course module that would be ready in summer 2020 for adoption, in part or in whole, by faculty in law, political science, mass communication, or other areas, exploiting the same fall time frame to explore Trump litigation with students.

Unfortunately, that summer project won't happen.  The University of Massachusetts Dartmouth found itself in a budget crisis after refunding student fees for room and board amid the coronavirus lockdown.  To help fill the hole, UMass Law canceled faculty compensation for summer 2020.

I plan still in the fall to use a blog page, ancillary to The Savory Tort and in conjunction with Dropbox cloud storage, to furnish resources for my seminar students.  To the extent that there might be any utility in those materials for anyone else, I am making the page public.  I will adapt and populate the page as I prepare the materials.  I have invested considerable effort in amassing and organizing litigation files on a range of key Trump cases, and it seems a shame to hoard them for my class, when they might be useful to others, whether for teaching, research, reporting, or just civic interest.

My focus here, again, will be to support my seminar, not, as originally planned, to support an open-source course module.  So I reserve the latitude to post what I want when I want to, and to make changes as it suits the needs of my class.  The page probably will undergo a lot of changes between now and when class starts in the second half of August, and more yet as the class develops in the fall.  That said, if you are a teacher, researcher, or journalist in need of something it looks like I might have but have not posted, or you have questions about what I've posted, please do reach out, and I'll help if I can—my availability being spotty while away from my desk until August 17.

Welcome to the Trump Litigation Seminar.