Monday, November 30, 2020
As law schools wrestle with defining their role in a national anti-racism movement, few seem to be focused on the incestuous, elitist model of faculty hiring prevalent at most top law schools. For if an institution is serious about having its law professors incorporate the role of race, gender, disability, sexual orientation and other subordinated identities into legal education, then it would behoove law schools to hire faculty who both value this pedagogical goal and collectively possess the diverse life experiences to shatter the rigid, elitist intellectual frame through which most American law students are taught.
But as Eric Segal and Adam Feldman warn in The Elite Teaching the Elite: Who Gets Hired by the Top Law Schools?:
"Do you want to teach at a Top Ten-ranked law school? If so, you had better excel at something you will encounter years before you even consider applying to be a law professor. Something that has no relationship at all to the skills academics need. You better score extremely high on the Law School Admissions Test (LSAT) (or now at some schools the GRE). If you don’t score toward the very top, you will likely not be admitted to a Top Ten-ranked law school. And if you don’t attend a Top Ten-ranked law school, no matter what you accomplish during your time at the school you do attend (even one ranked among the top twenty) or afterward, your chances of teaching at a Top Ten-ranked law school are virtually nonexistent. The reality is that by far the most important credential one needs to teach at a Top Ten-ranked law school is to attend a Top Ten-ranked law school. The elite teaching the elite, who will then teach more elites."
A reader may read their article and ask: “Is it important that the twenty-five top-ranked schools hire eighty percent of their faculty from the Top Ten-ranked schools?” to which Professors Segal and Feldman have a persuasive response—if a law school is committed to exposing students to the diverse experiences of their prospective clients including racial and religious minorities, indigent people, immigrants, and other groups who are not proportionately represented among America’s elites.
Professors Segal and Feldman state:
"We think it is. By limiting their hiring to the most elite schools (and just two, Harvard and Yale, account for more than fifty percent of all faculty in these schools with U.S. law degrees), these schools limit the range of pedagogical choices they adopt and provide for their students. There are many ways to teach law and set priorities for law students. The top-ranked schools do not have a monopoly on the best legal education methods. Moreover, for better or worse, how these schools teach future lawyers has a great impact on the other 165 or so accredited law schools, but the law school experiences of their faculties are mostly limited to ten law schools. This inbreeding stunts creativity, experimentation, and growth, and might even prioritize the theoretical over the practical to the detriment of the legal profession. Moreover, since law schools do not teach law students how to teach, professors at Top Ten-ranked schools have only their shared experiences to rely on, which likely makes it difficult to improve how they teach their students."
Some readers may rightly respond that law schools deserve praise for the changes in student populations over the past four decades. Approximately fifty-three percent of American law students are women, thirteen percent are Hispanic (nearly double the numbers from 1999), eight percent are Black and six percent Asian. Assuming these changes are based on law schools’ intentional recruiting strategies, as opposed to changes in the American population and external market pressures, such changes are noteworthy.
However, most law students in the highest ranked law schools are from upper middle-class and wealthy families which again limits access to law schools, and by extension law school teaching, to the elite.
Segal and Feldman provide one explanation.
“The LSAT also results in a huge class bias. An article in The Atlantic put this sad but true statement in its title: “How the LSAT Destroys Socioeconomic Diversity.” To do well on the LSAT, preparation classes are extremely important, and their average cost for in-person sessions is $1300. According to this article:
“While law schools are steadily becoming more racially and ethnically diverse, they remain overwhelmingly upper-middle class. Only 5 percent of students at elite law schools come from families that fall in the bottom half of the socioeconomic spectrum—a number that has hardly changed since the 1960s. The Logic Games section [of the LSAT] contributes to this lack of socioeconomic diversity. If you can’t afford to adequately prepare, it’s a lot harder to earn the LSAT score you need to get into a Top 14 school. The vast majority—180—of the 200 accredited U.S. law schools can’t find jobs for 80 percent of their graduates. That means that a low score on Logic Games might stop you from becoming a lawyer.”
As hiring committees and deans conduct their annual hiring searches and law faculties vote on the finalists, they should be honest about how their decisions affect the ways in which law is taught in their schools. Do they want professors whose life, education, and professional experiences reflect a narrow spectrum that comes with being members of the privileged elite or do they want a faculty that reflects the breadth of life and education experiences that defines the world’s most diverse society.
Do law faculty and administrators want to produce lawyers whose exposure to law is limited to the narrow analytical frames of America’s elites or do they want to see the law from the viewpoint of professors who know what it is like—either through personal experiences or representation of clients—to suffer the hardships of poverty, sexism, racism, xenophobia, and other forms of subordination not infrequently perpetuated by the law?
If the answer is that such factors shouldn’t matter in hiring decision, then law schools have a long way to go before they can overcome their myopic approach to teaching America’s lawyers, prosecutors, judges, and elected officials—many of whom actively contribute to the very circumstances that have triggered today’s anti-racism movement.
-- Eric J. Segall and Adam Feldman’s article The Elite Teaching the Elite: Who Gets Hired by the Top Law Schools? was published in Spring 2019 in the Journal of Legal Education. It can be downloaded here.
Monday, November 16, 2020
The following is Prof. Elizabeth Joh's review of Stephen Rushin & Roger Michalski, Police Funding, 72 Fla. L. Rev. 1 (2020).
For eight minutes and forty-six seconds, Derek Chauvin pinned George Floyd’s neck to the ground outside of the Minneapolis Cup Foods on Chicago Avenue. Floyd’s shocking death, captured on a bystander’s cellphone video, led to criminal charges against Chauvin and the three other officers involved in the arrest. Floyd’s death also catalyzed thousands of protests around the United States and the world, and to the rallying cry of “defund the police.” These three words are memorable, but what do they mean? It depends whom you ask. For some, “defund the police” means reallocating some of the non-criminal duties that have become the responsibility of the police–think of outreach to the homeless and the mentally ill–to other non-police community service providers. For others, it is less a literal command and more a call to reimagine the objectives of street policing. And for some, it is indeed about police abolition.
But if we take these calls seriously and literally, they aim to reduce police department budgets as a method of reform. Unlike close analyses of the Fourth Amendment or legislative responses, police budgets usually escape the attention of legal scholarship. But in Police Funding, Stephen Rushin and Roger Michalski have presciently raised this issue as a topic of serious study. Police reform advocates calling for “defunding the police” should pay attention to the important observations the authors raise in their timely article. And one of the article’s central arguments is especially relevant after George Floyd’s death: that adequate funding should be seen as a prerequisite for accountable, democratic, and professional policing.
One commonplace among students of policing is that there is no single entity called “the police.” We live instead in a nation of more than 18,000 distinct law enforcement agencies. As a collection of departments, they are unified by a professional culture and bound by decisions of the United States Supreme Court, but the uniformity ends roughly there. American policing is local. Like public schools, American police departments rely most heavily on local sales and property taxes for funding, with some state and federal funding as well.
This means that the funding of American police departments, like schools, varies enormously. So much so, that, as the authors emphasize from their review of the data, there is massive inequality in police funding. For many Americans, the idea of the police may conjure up large urban departments in New York, Los Angeles, and Chicago, but these are hardly representative. What does this mean in practice? While some police officers have access to the latest technology, receive regular training, and are subjected to accountability mechanisms, others are not. The result? Funding differences mean that, depending on where you live, we may receive drastically different levels of police services. Some departments must hire part-time officers, can’t attract qualified entry level candidates, and can’t fire problem officers—all because of funding problems. These departments can hardly staff their departments, let alone address issues of excessive force and racial discrimination.
By mining several national datasets, Rushin and Michalski also provide crucial context to some of the central tenets of the defunding movement. Consider the claim that cities spend too much on policing as compared to other social services. Oakland, California spends about forty-one percent of its general fund on policing, compared to New York, which spends under ten percent on its police. But this comparison obscures the fact that New York collects far more tax revenue; Oakland far less. Both cities spend about the same amount of money per capita on policing services. Less overall revenue means cities suffer in all kinds of ways. Places like Flint, Michigan suffer tainted water, an understaffed police department, and soaring crime.
The nuanced perspective the authors provide in Police Funding means that taking “defunding the police” seriously as a policy proposal may backfire for cities that already struggle to fund adequate police services. No serious student of policing suggests that the police can simply be eliminated. If that is true, then accountability, transparency, and reform cost money (as well as require relentless scrutiny and review). A review of DOJ reports on troubled police departments pursuant to its authority under 42 U.S.C. § 14141 reveals a consistent theme: their recommendations for constitutional and democratic policing require increased financial investment.
And as Rushin and Michalski point out, reducing police funding in many departments around the country may result in worse, not better, policing. They hypothesize that reducing funding may exacerbate police misconduct. Can you think of a profession that has been improved by reducing costs for hiring, training, and oversight? Reducing the funding of the Robbins, Illinois police department may do little to address the problem of the part-time officer, paid 10 dollars an hour, who shot a 13 year old in the back. Instead, the authors propose a different framework altogether: think of policing as a problem of resource inequality. If policing is a public good, then states can take a lead by distributing police funds more equally, as well as require that some portion of these funds be reserved for training and accountability.
To be sure, Police Funding provides no direct solutions to the problems of excessive force, racial bias, overenforcement, and qualified immunity in American policing. The protests prompted by George Floyd’s death will require comprehensive, detailed reforms that demand the sustained attention of lawmakers. Yet the central premise of Rushin and Michalski is right: we should be skeptical of defunding the police—taken literally—as a serious policy proposal. Adequate police funding is a necessary condition for a path forward.
Prof. Elizabeth Joh is the Martin Luther King Jr. Professor of Law at University of California Davis School of Law.
Wednesday, November 11, 2020
Professor Carmen G. Gonzalez published a new article titled Climate Change, Race, and Migration in the inaugural issue of the Journal of Law and Political Economy where she argues that climate change cannot be addressed unless we dismantle the racial hierarchies that have facilitated massive unchecked resource extraction. Racialized communities have long borne the brunt of the fossil fuel-based global economy. They have been subjected to the physical violence of invasion and occupation as well as the “slow violence” of polluting industry. While climate change is caused by the world’s most affluent inhabitants, those most susceptible to climate-related disasters and displacement are overwhelmingly persons classified as non-white.
Greenhouse gases do not respect national borders, but national elites deploy racialized systems of border control to perpetuate the illusion that persons classified as white can somehow escape the ravages of climate change by constructing walls and fortresses. Racism enables states and corporations to pursue policies catastrophic to the planet and its inhabitants because the most immediate and severe harms are inflicted on stigmatized populations in the sacrifice zones of the fossil fuel economy.
The article argues that international law has failed to mount an adequate response to the climate crisis. The climate treaties have failed to curb global temperature increases or to provide sufficient adaptation assistance to climate-vulnerable states and peoples. Even though climate change threatens to displace millions of people, neither the 1951 Refugee Convention nor the climate treaties requires states to admit climate-displaced persons.
Part of the problem is that international law has been complicit in the project of racial and economic subordination – from its origins in colonialism and slavery to the rules and institutions of the contemporary global economy. In the absence of a binding legal framework, several emerging law and policy responses to climate displacement threaten to reinforce racialized hierarchies and to trap large segments of humanity in places that are becoming uninhabitable. The article critiques these approaches and offers alternatives grounded in the perspectives and priorities of climate-vulnerable states and peoples.
To read the full article, click here: https://escholarship.org/uc/item/4bw094qc
To read a blog post summarizing the article, click here: https://lpeproject.org/blog/climate-change-and-racial-capitalism/
Saturday, November 7, 2020
Constitutional Law Scholars Forum Friday, March 26, 2021 in Orlando, FL
The Sixth Annual Constitutional Law Scholars Forum invites scholarly proposals on any constitutional law topic at any stage before publication. The Forum provides an opportunity for international and national scholars to vet their work-in-progress in a welcoming, supportive environment. (The Forum is not accepting proposals from students at this time.)
The deadline to submit proposals is December 1, 2020.
Conference location: Barry University Dwayne O. Andreas School of Law Campus in Orlando, FL is located within proximity to recreational activities – Universal Studios, Walt Disney World, Sea World, world class golf courses, and beaches. Orlando offers an average temperature of 72- 78°F in February/March. We plan for an in-person conference format but will modify to a virtual format if the need arises.
There are no conference fees, and meals will be provided.
- Email proposals to conference organizers Professor Eang Ngov, firstname.lastname@example.org; Professor Helia Hull, email@example.com; and Professor Meg Penrose, firstname.lastname@example.org.
- Include “ACS Constitutional Law Scholars Forum” in the subject
- Include abstract (300 words maximum), biography (150 words line. maximum), and key words from your abstract (to enable grouping presenters by topic) together on a one-page document in Word format.
Monday, November 2, 2020
Professor Andrea Freeman published a new article entitled Unconstitutional Food Inequality in the Harvard Civil Rights and Civil Liberties Law Review where she argues racial disparities in food-related deaths and disease are vestiges of slavery and colonization that have persisted for too long. Rhetoric around personal responsibility and cultural preferences obscure the structural causes of these disparities. Regulatory capture by the food industry makes reform through the political process unlikely or subject to severe limitations.
As such, her article explores the structural causes of food inequality by examining how two U.S. Department of Agriculture nutrition programs, the Food Distribution Program on Indian Reservations and the National School Lunch Program, contribute to food-related health disparities. First, it traces food inequality back to slavery and colonization. Most slave owners carefully rationed out food to fuel labor but prevent revolts. On almost all plantations, enslaved people ate a non-nutritious diet that led to a plethora of nutrition-related illnesses and deaths. Similarly, colonization occurred in great part through the destruction of Indigenous foodways. Land theft, displacement, and the intentional elimination of food sources led to starvation and illness. Lack of access to healthy food still represents one of the most significant obstacles to Black and Indigenous Peoples’ full participation in society, contributing to lower life expectancy, serious illness, and cultural erasure. The Reconstruction Amendments provide a constitutional basis for challenging these two USDA nutrition programs, in addition to other laws and policies that lead to health disparities and food injustice.
To read the full article, click here.