Author: TSA Press

What the hell? Why is it that so many law professors insist on wrapping themselves in the flag of academic freedom just to drop the n-word? Just earlier today I wrote another story about the repercussions for a law professor who used the n-word twice (spoiler alert, not many consequences). Now comes word that prominent UCLA Law professor and founder and coauthor of The Volokh Conspiracy, Eugene Volokh dropped the n-word at an event.

A UCLA Law student who was at the event in question tweeted out their description of what happened.

That seems like a problematic look. And did you see the line “wholly pronounced the word”? It sure seems like Volokh said it with a real hard R.

I reached out to Volokh, and he confirmed the general contours of the incident. His statement on the matter didn’t deny any of the facts, but rather sought to provide a justification for his language. (The original statement had the n-word written out, those references have been changed to n****r.)

When I teach First Amendment law, I tend to talk for a few minutes each week about real First Amendment events in the news. Last October, when two UConn students were being prosecuted for “racial ridicule” for walking on campus and shouting “n****r” (apparently at no-one in particular) — an extremely rare instance of an actual hate speech prosecution in the U.S., and thus an excellent illustration of the legal rules that we had been learning and the arguments that we had been considering — I discussed that incident in class. As I always do, whether we’re talking about the Cohen “Fuck the Draft” case, the Matal v. Tam “Slants” case, the “God Hates Fags” banners from Snyder v. Phelps, references to killing Jews or to “kikes” from the State v. Lenio Montana group libel prosecution that I had also given as an example in class, or otherwise, I discussed the facts, without expurgation or euphemisms: At a university, and especially at a law school, I think people should talk about the facts as they are. A few weeks after the class, I learned that some students had disapproved, but I didn’t discuss it further with any students.

Then yesterday, right before an event at which a professor from a different law school was talking, someone shouted to me something like, “Volokh, don’t use the n-word today!” (I am not expurgating here, as you might gather; he did say, “n-word.”) The speaker, to whom I was talking at the time, asked me what that was about, and I responded that, last Fall, I had talked about the prosecution of the UConn who had shouted “n****r,” and some students were upset about my quoting that word.

As I mentioned, it seems to me a basic principle of the American university that no ideas or words are taboo, and that when a real incident happens it should be discussed precisely and candidly. Naturally, I would never actually call a student by any such epithet (or for that matter by many softer epithets), but quoting the facts of an incident strikes me as a completely different matter. And this principle is especially important at a law school, where we are training law students who will run into lots of offensive actions and words in precedents, in briefs, in underlying documents, in witness interviews, in testimony, and more. (If you search Westlaw for n****r & da(aft 1/1/1990), you’ll find over 10,000 results just in the cases.)

Further, Volokh shared his response to a student who complained about his language. He made many of the same points, but also trotted out the “use-mention distinction,” complete with citations (see, e.g., Randall Kennedy, How a Dispute Over the N-Word Became a Dispiriting Farce, Chron. Higher Ed., Feb. 8, 2019; John McWhorter, If President Obama Can Say It, You Can Too, Time, June 22, 2015,  (distinguishing “using” from “referring to”)).

I see that argument, I do (I mean, I don’t think it’s a great one, but I see it). But in this instance you have someone specifically asking you NOT TO USE THE WORD. Why is fully pronouncing a racial slur so damn important? Volokh gave a big middle finger to this rather minor accommodation of someone’s feelings. Because he has the “right” to say whatever he wants. I guess maybe he does — no one is saying he should be carted off to jail — but we can all still think he shouldn’t just drop the n-word.

Volokh may want to live in a world where no words are taboo — and that may even be a laudable goal. But I want to live in a world that isn’t tainted by anti-blackness. Until that second goal is reached — one we are far, far away from — it seems a rather small measure to just use a euphemism for perhaps the most hate filled word in the English language.

And let’s be clear — the subject isn’t taboo. No one is missing out on some key component of legal education when you refuse to say the full n-word. Everyone knows what you mean when you say “n-word,” you are just signaling a respect for the people who’ve had that word viciously flung at them. Why is that such a hard concept for (white) people to wrap their heads around?

Earlier: N-Word-Using Law School Professor Gets To Keep His Job
Welcome To Emory Law School — It’s Been 0 Days Since We Last Used The N-Word In Class
Why Can’t Emory Law School Professors Stop Using The N-Word All The Time?
Law School Professor Drops The N-Word In The First Week Of Class
Law School Professor Who Dropped The N-Word In Class Is Back At It
Law Professor Drops Racial Slur In Class Because Otherwise How Will Black Students Ever Learn About Racism?

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

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These actions and policies had contributed to the deliberate breakdown in the rule of law in Zimbabwe, to politically motivated violence and intimidation in that country, and to political and economic instability in the southern African region.

On November 22, 2005, the President issued Executive Order 13391 to take additional steps with respect to the national emergency declared in Executive Order 13288 by ordering the blocking of the property of additional persons undermining democratic processes or institutions in Zimbabwe.

On July 25, 2008, the President issued Executive Order 13469, which expanded the scope of the national emergency declared in Executive Order 13288 and authorized the blocking of the property of additional persons undermining democratic processes or institutions in Zimbabwe.

The actions and policies by certain members of the Government of Zimbabwe and other persons to undermine Zimbabwe’s democratic processes or institutions continue to pose an unusual and extraordinary threat to the foreign policy of the United States.  For this reason, the national emergency declared on March 6, 2003, and the measures adopted on that date, on November 22, 2005, and on July 25, 2008, to deal with that emergency, must continue in effect beyond March 6, 2020.  Therefore, in accordance with section 202(d) of the National Emergencies Act (50 U.S.C. 1622(d)), I am continuing for 1 year the national emergency declared in Executive Order 13288.

This notice shall be published in the Federal Register and transmitted to the Congress.

DONALD J. TRUMP

THE WHITE HOUSE,
March 4, 2020.

Post published in: Featured

Ed. note: This is the latest installment in a series of posts on motherhood in the legal profession, in partnership with our friends at MothersEsquire. Welcome DawnMarie White to our pages.

In the beginning of my role as a mom, I was lucky to have Fridays off work with my son. Occasionally, something that couldn’t wait would come up, and I’d find a back-up babysitter. Usually. One Thursday, a judge set an emergency hearing for the next day. Of course, all my babysitters were busy. A colleague, who is now my best friend and called “uncle” by my son, told me he and the paralegals would watch my then 8-month-old for the thirty-minute hearing. After much convincing that I wasn’t taking advantage of my colleague, I accepted his help. An hour and a half into this hearing, the court reporter kindly called his office and slipped me a note saying that my son was sleeping. When I returned two hours later than expected, I found my friend typing away at his computer with my son happily on his lap.

This may seem like a cute story, but it’s so much more. It encompasses all the best ways I’ve been supported as a mother in my career. My best friend and his paralegals stepped into a role outside of their normal jobs to help me. The judge and court reporter acknowledged me as a mother without diminishing my professional role, which allowed me to focus on my client and his child. No one suggested that I request a continuance. Instead, everyone in the courtroom that day was focused on my client’s child, not my childcare scramble. My motherhood did not overshadow my legal work. These acts not only showed that I am cared for in my community as a person, lawyer, and mother but also allowed me to keep my perspective. This perspective allows me to push aside the Mom Guilt and focus on helping my clients.

I’ve intentionally cultivated a support system that includes my husband solo parenting on a Saturday while I edit and rewrite a brief with a looming deadline, my family babysitting my sick child so I can depose a witness, and bosses that welcome my son (usually with copious amounts of candy) into the office to accommodate school snow days. While these care-taking tasks cannot be appreciated or applauded enough, the ways my community takes care of me are often less time-consuming and grand. But these acts have a deep impact and deserve just as much gratitude and applause.

Mom Guilt is the nemesis of every lawyer mom I know. It’s a monster that feeds on seeking perfection and distorts my perspective. My friends listen as I lament motherhood “failures” such as missing a PTO meeting. They tell me that my choices to model a strong work ethic (which I learned from watching my own working mom), demonstrate how to prioritize tasks, and teach flexible responsibility are absolutely the right decisions. They remind me that my son understands the importance of standing up and advocating for others because he sees me doing it. My friends reiterate that my son sees me showing up for him just as fiercely as I do for my clients — even if I’m redacting discovery documents while he’s in a yoga class. My son knows that when there’s a deadline at work, he and my husband may be picking up some of my chores at home so I can focus on work. One day, I’ll do the same for him when he has a big calculus test and needs to study. That’s what family does for one another. Remembering that is hard when you’re the mom in the thick of it. Someone helping you keep your perspective is invaluable.

Society often overwhelms us with messages about where our fulfillment should come from. Hands down, the most supportive thing anyone has ever done for me as a lawyer mom is acknowledge that fulfillment does not have to be found in a career OR motherhood. It can be, and is for me, both. We hear it all the time at all the conferences:  Work-Life Balance. It may be cliché now, but it is true. I am not a good mom, attorney, wife, friend, sister, or anything else when I’m trying to be everything to everyone. I am at my best when I allow my community to help me, and I keep this balance of finding fulfillment in all my roles by doing the best I can in each area of my life. Sometimes, I’m killing it as a mom. Sometimes, I’m killing it as a lawyer, but my child is overdosing on screen time. As a Type-A, perfection-seeking lawyer mom, that’s hard to accept. But with a supportive community surrounding me and reminding me, I’m able to thrive in all my roles. Being my child’s mother is deeply satisfying and gives my life profound meaning. So does my challenging, fast-paced role as an advocate. Without either of these things, my life would be out of balance and incomplete.

So, here’s to the villages supporting the lawyer moms with grand gestures, lifting us up with emotional support, taking care of our sick kids, entertaining them while we work on random school holidays, helping us problem-solve, vanquishing the Mom Guilt, and helping us remember that we can be fulfilled by our careers AND our motherhood. Our kids are better for your help. We are better for it.

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After graduating from IU Robert H. McKinney School of Law and opening her own solo practice, DawnMarie joined Emswiller, Williams, Noland & Clarke, LLC in 2019. She is a devoted wife and proud mom to her son, cat, and giant puppy. When she’s not focused on her clients, with her family, or volunteering in her community, she will likely be enjoying conversation at her book club, crocheting, practicing hot yoga, at the kickboxing gym, or eating cheesecake, or writing for MothersEsquire. She can be reached at dmwhite@ewnc-law.com.

It may have taken a year and a half, but there is finally resolution in the case of Emory Law professor Paul Zwier. You may recall Zwier as the prof who used the n-word in class. Since, disturbingly, there is more than one Emory Law school professor for whom that’s true, let’s go through a primer on the details of Zwier’s case.

Back in 2018, in the very first week of classes, Zwier was teaching his torts class about offensive battery and the case of Fisher v. Carrousel Motor Hotel, Inc. (I’ll give the rundown of the pertinent facts of that case because, well, law school was a long time ago for some of y’all.) In that case, a black man was denied service at a banquet at a hotel, and while offensive stuff was said to the plaintiff, the n-word was not used. Professor Zwier, however, used that word when he called on a student — a black woman to boot — to ask about the fact pattern in the case. In explaining the situation, Zwier said that while he doesn’t specifically recall using the racial slur, he may have gotten the facts of the Fisher case confused with the facts of a different case (and next on the syllabus), Bowden, where the slur was used. He later justified the use of the word (from the report of the Emory Office of Equity and Inclusion): “in using the n-word, [Zwier] intended to suggest that the court record was sanitized and that the plaintiff had actually been called the inflammatory epithet.”

Later that semester, the school began an investigation into allegations Zwier used the n-word. Again. This second incident was not in class, but in office hours when he told a student he didn’t mean to disparage anyone, and said he’d been called an n-word lover in the past. Except, you know, he didn’t say “n-word” he actually used the term.

A Faculty Hearing Committee was convened to determine what should happen to Zwier. The professor launched a full-out defense of his behavior, calling in the American Association of University Professors and the Foundation for Individual Rights in Education making the case for his use of the n-word as academic freedom.

And it appears to have worked. Dean Mary Anne Bobinski sent an email to students at the law school explaining the final results of the committee’s findings and recommendations. While she gussies up the results in language about balancing the need for academic freedom with its policy against discriminatory harassment, the result is that Zwier gets to. (You can read the full email on the next page.)

I have provided Professor Zwier with my decision regarding his status, which adopts the Faculty Hearing Committee’s findings and recommendations with respect to a number of personnel actions, with only slight modifications with respect to the timing of one of the recommendations. Consistent with the Committee report, Professor Zwier will remain a tenured member of the Emory Law School faculty. He will not, however, teach mandatory courses before fall of 2021. Professor Zwier may resume his research and administrative duties, and he will likely return to the Emory campus before the end of this term.

So yeah. He gets to keep his job and just has to take another year off of teaching 1Ls. That sound you hear? It’s a wrist, being lightly tapped.

At least Dean Bobinski seems to recognize that this result will be unsatisfactory for some members of the law school community:

I recognize that we have conflicting views within our community about the appropriate balance between Emory’s core values relating to academic freedom, equity and inclusion. The law school community has carried out a number of initiatives relating to these values over the past year, including faculty workshops on understanding and communicating with students about sensitive topics, both in and out of the classroom, and a student-led session on classroom climate. We look forward to developing new opportunities for dialogue moving forward.

Well, if the initiatives result in fewer professors dropping the n-word, I guess that’s good. Anything less is just empty rhetoric trying to mask a deeper problem.

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

Twitter. Generally speaking, it is terrible. One would not think that 280 characters would be enough to reveal an individual’s depraved mind/heart/soul, and yet such revelations seemingly happen every minute on the platform frequently described by users as a #hellsite. And yet despite frequent tweaks by Jack Dorsey and the rest of the Twitter braintrust, it seems as if the most basic requests from users are being ignored, such as “When are you going to implement an edit feature?” and “Can you please get rid of the Nazis?” One would think the fact that I feel like I am walking into a cesspool of hatred each time I go to the site would curb, or at the very least deter, my usage. That would be incorrect. I, shamefully, admit that Twitter is basically an appendage at this point. Rare is the quiet moment when I don’t instinctively reach for my phone and see what has changed in the world over the past fifteen seconds.

Now in my defense, for all of its numerous, well-documented, flaws, if used properly, Twitter is the best news aggregator on the planet. As someone who consumed news online prior to Twitter’s advent, I would have a hard time explaining to anyone under the age of, say, 29 what it was like to keep abreast of the day’s events in the early 2000s. “So first you would go to the New York Times website, read something there, then try to remember that the URL for ESPN included go.com, for some reason, and several hours later, you would have read three stories and been done for the day.” In addition to its positive attributes as an aggregator, Twitter is probably the only place on the internet, or really in the world, where you can watch real-time de-escalation of armed conflict between highly militarized nation-states.

Not to mention how there are few other platforms, social media or otherwise, where one could parlay a reputation as a troll to not just an ambassadorship to a major ally, but to the Director of National Intelligence despite having no real qualifications for the job.

And while we can debate if Twitter is, in fact, reflective of real life or, instead, it’s own bubble, I think few would argue with the idea that many big issues are being debated and new ideas being offered up in 280 character chunks. This is especially true on the political left, which tends to dominate my own Twitter feed. In a since-deleted tweet, Vox Senior Correspondent Ian Milhiser said that one of the “stories in liberal politics right now is that jobs like banking, consulting, and big law that used to be viewed as morally neutral are increasingly seen as immoral.”^[1] Before diving into these comments, let me start by saying I am a great admirer of Milhiser’s work and his writing on the Supreme Court.  In addition, a circumspect view of Biglaw by political liberals is not just limited to this tweet. The progressive organization Demand Justice (full disclosure: Senior Counsel Katie O’Connor is a friend a former colleague) released a sensational list of potential Supreme Court justices for a Democratic administration last year — give me Karlan, Krasner, and Stevenson, and American jurisprudence would be fundamentally transformed, for the better, in short order — but absent from the list was anyone who had been a Biglaw partner [2] or served as corporate in-house counsel. This was not an oversight or a coincidence, but rather purposeful as the organization seeks to end the appointment of “corporate judges.”

I understand the impulse with such a stance. A bipartisan trend in recent years has been the path to the bench, or even the popular definition of “success” in the legal profession, has been singular: attend an elite law school, clerk for a federal judge, work in Biglaw, and if you leave the private sector, become a prosecutor or go in-house. To be clear, that is a perfectly acceptable, and likely highly profitable, legal career. But it is not, and should not, be the only path for young attorneys. Plus, a judicial branch stocked to the brim with homogenous professional backgrounds — not to mention the more recent phenomenon of homogenous personal traits — leads to worse judicial outcomes. The bench needs more jurists like Jane Kelly of the Eighth Circuit (also on the Demand Justice shortlist), who attended Harvard Law and completed not one, but two, federal clerkships, but who then spent 19 years as an assistant federal public defender. A diversity of professional experience will better inform the judiciary and the opinions it renders.

But while I get the impulse, deeming Biglaw and in-house opportunities as intrinsically immoral is a bridge too far for me. There are a couple of reasons why liberals should not shun these attorneys. First and foremost, doing so is a form of economic privilege. As even nonlawyers/law students who have spent approximately 30 seconds on this website will know, law school is a rather expensive proposition. The majority of law students, especially those at “top” schools, take out six-figure loans in order to earn their J.D. While loan forgiveness is an option for those who go the public interest route, its requirements can be onerous and lock you into a certain career path without allowing much deviation. And oh, by the way, the current administration would like to end the program. Without loan forgiveness, the only option most students see to avoid several decades of debt is to pay off their loans with a Biglaw salary. If the political left is telling these law students that they will be persona non grata, in essence, the message is that only those who come from money are welcome into liberal legal circles and feted for judicial appointments. This strikes me as anathema to everything that political liberalism stands for.

Second, young attorneys can gain outstanding experience from even a short stint in Biglaw that is difficult to replicate elsewhere. I have said before, and still maintain, that pound for pound, the best experience a young attorney can get is via a clerkship. But the level of experience one gets in Biglaw is not that far behind. They are a litany of matters one will work on and large firms wouldn’t be paying top dollar to junior associates if they were expecting poor work product, so the standards that young attorneys have to meet are quite high. In addition to paying clients, there can also be a litany of pro bono matters that allow junior associates to not only work on matters that are of personal interest, but to perform tasks that are typically reserved for more experienced members of the firm, e.g., take depositions, examine witnesses, etc.

All of this is not to say that Biglaw or other corporate legal positions are the path for every law student. In fact, for some students it is absolutely the wrong path. But for the left to ostracize those who ever deigned to work in a for-profit legal entity is to cast out many of the attorneys who will help transform, for the better, the judiciary and likely the legal profession writ large.

[1] Since nothing ever dies on the internet, I was able to capture the bulk of this deleted tweet and quote it here, however, there is language preceding “stories” in the tweet at issue that I was not able to find. If I recall correctly from when the tweet initially popped up on my feed, the full tweet referred to it as the biggest story or the most undercovered story. Either way, the thrust of the tweet is unchanged.
[2] Important to note that Demand Justice does not categorize those who worked in Biglaw as an associate, rather than a partner, as someone who would be disqualified under their standard.

The views expressed in this column are solely those of the author and do not necessarily represent those of Vanderbilt University or Law School.

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Nicholas Alexiou is the Director of LL.M. and Alumni Advising as well as the Associate Director of Career Services at Vanderbilt University Law School. He will, hopefully, respond to your emails at abovethelawcso@gmail.com.

In a rally outside the Supreme Court yesterday during the abortion cases that didn’t actually go all that badly, Senator Chuck Schumer decided to channel his inner Donald Trump and launch some fiery invective toward the pair of justices giddily preparing to flip precedent and begin the work of dismantling Roe.

“I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind, and you will pay the price.”

The land speed record for pearl-clutching was immediately set as Glorified Hall Monitor John Roberts issued a written statement letting the Senator know that he wasn’t mad, just disappointed:

“Statements of this sort from the highest levels of government are not only inappropriate, they are dangerous.”

Trump himself joined the fray by tweet and Hannity interview — the belt and suspenders of gasbag faux outrage:

Buddy comedy duo Trump and Roberts got backup from even liberal legal observers who aired their concern that the Supreme Court isn’t being afforded the hushed, unquestioning respect befitting the mythology the profession has built around the body and calling for an apology.

Let’s be clear, this kind of language is wholly inappropriate and demeans the Supreme Court as an institution. It’s also Brett Kavanaugh’s exact language:

Since my nomination in July, there’s been a frenzy on the left to come up with something, anything, to block my confirmation. You sowed the wind and the country will reap the whirlwind.

Seems like maybe Kavanaugh’s already taken the Court to Whirlwind Town. Hey John Roberts, the inappropriate and dangerous call is coming from… inside your house!

For his part, Schumer quickly responded through a spokesperson:

For Justice Roberts to follow the right wing’s deliberate misinterpretation of what Sen. Schumer said, while remaining silent when President Trump attacked Justices [Sonia] Sotomayor and [Ruth Bader] Ginsburg last week, shows Justice Roberts does not just call balls and strikes.

So Schumer got Roberts to publicly mouth off to defend Justice Sir Keggerstein when he couldn’t be bothered to call out attacks on the women. Where was the concern over institutional assault when the White House was doing this? It’s almost as if the Supreme Court has no idea what an actual assault is anymore.

The only thing I’ll say for the complainers is that phrases like “pay the price” dial up rhetorical violence and shouldn’t be tossed around casually. It was obvious from context that Schumer was talking about paying a “political price,” but it’s a world of soundbytes and Schumer should be more mindful of that. It distracted from the ultimate point and just invited Fox News to shift off of the real point and pretend that this is a call to violence that, say, putting actual gunsights on elected officials or promising to cover legal fees for assaulting a reporter somehow isn’t.

But most troublingly, it seems a lot of otherwise level-headed people were less offended by the vaguely violent rhetoric than the idea that Schumer spoke of the justices as the nakedly political actors they are. That he cut through all the pomp and circumstance and pointed to two guys who plopped into their seats through a breakdown of governmental order — one through a seat held up by flagrant disregard of constitutional norms, the other forced through in a mockery of a vetting process while witnesses were just sitting there. Two guys who have demonstrated that legal precedent is a trifling inconvenience in their bid to implement a conservative political agenda as though they… were just Republican legislators in robes.

Making cracks in the mythology of the Supreme Court hurts some people. In a lot of ways, it hurts liberals most of all. If liberals are robbed of their faith that a heroic Warren Court is just around the corner it might actually require them to reach out to people outside of their Harvard and Yale alumni network to implement change. But it’s exactly that mythology that Republicans are trying to hack when they dress up ideologues in robes. They need liberals to keep pretending there’s an idyllic judiciary to give right-wing power grabs the sniff of legitimacy.

The courts are gone, folks. Or, more accurately, the courts are back. The courts historically act as a force for little-c conservatism and protecting the established order in the country. The Warren Court was a burr up the ass outlier in the steady trot of American history. Go ahead and join Chuck Schumer in calling it out for what it is and watching Roberts squirm.

The first step to fixing the mythology of the courts is going to be admitting there’s a problem.

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.