Tuesday, August 7, 2018

From the American Association of University Professors: Report of Committee A on Academic Freedom and Tenure, 2017–18

The American Association of University Professors has just released its 2018 Bulletin.  Its website explained that "This year's Bulletin features an academic freedom and tenure investigative report, revised Recommended Institutional Regulations on Academic Freedom and Tenure, reports on the assault on science and campus-free-speech legislation, and annual reports and other business documents. 

Most interesting was the Report of Committee A on Academic Freedom and Tenure, 2017–18,  which follows below.  The Report was particularly interesting for the way in which the Committee continues to wrestle with the efforts to boycott the State of Israel (and deal with Israeli state retaliation) as well as discussion of the release of the Report: National Security, the Assault on Science, and Academic Freedom. This is particularly interesting for the development of an American academic set of principles dealing with foreign exchanges and espionage, as well as the difficulties of engaging with the political effects of academic work.

Tuesday, July 24, 2018

Assessment and Learning Outcomes Comes to Law Schools: Some Recent Scholarship

(Pix Nebamun viewing his geese and cattle; British Museum, 2018)

We live in a word of accountability, whose laws are implemented not through the coercive police power of the state but rather by the constant and repetitive process of assessment. That assessment, in turn, constitutes a data driven self reflexive system that both monitors and imposes orthodoxy through the choices made with respect to those data and that analytics on which judgment is rendered and consequences felt.

Faculty have assumed an interesting place within these cultures of monitoring and data driven assessment. In one respect the metrics used for assessment have consequences for their own evaluation; simultaneously, these metrics are at the center of emerging cultures of the assessment of faculty handiwork--the effect of their interactions with students. What could be more neutral than data driven analytics--especially ones whose parameters are chosen by those on whom they are imposed.  Assuming, of course, that there is real choice. And that, increasingly, may not be the case as regulators--whether public or private, increasingly use their authority to constrain and manage choices that can be made respecting the scope of assessment, its objectives and the objects of its analytics. that changes not merely the focus of the assessment-accountability exercise, the its purpose as well.
Whatever one thinks of these new approaches to accountability of the role of faculty to disseminate of knowledge to students; it has produced at least one benefit--the expansion of knowledge production to include assessment itself. This is especially the case in the context of legal education. The Winter 2018 issue of the Journal of Legal Education (JLE) takes an in-depth look at the revised ABA standards on assessment and learning outcomes. Links to the articles follow. Each is worth considering carefully.

Wednesday, July 18, 2018

Thoughts on Mass Tenure Revocation at Vermont Law School in the Shadow of the Market and Beyond Shared Governance

(Pix © Larry Catá Backer 2016)

The decision by the Vermont Law School to terminate the tenured positions of more than half of its faculty (precise numbers rumored but unavailable as of the date of this posting) and then to rehire some as contract faculty at presumably lower cost (to the Vermont Law School anyway) has been circulating for a number of days now.
Fourteen out of 19 members of the Vermont Law School faculty lost tenure on July 1 as part of a restructuring effort at the South Royalton institution. . . . Professors said they were informed of the decision to revoke tenure in a private meeting with McHenry and Academic Dean Sean Nolan. Faculty members were told they could choose to continue teaching another year under a new contract or they could opt for six month contracts with varying teaching requirements and salaries, or they could leave. Tenured faculty were required to sign a non-disclosure and non-disparagement agreement, prohibiting them from speaking to anyone except their spouses. The agreement prohibited faculty from making derogatory remarks about Vermont Law School and its administration. (Katy Savage, "Vermont Law School revokes tenure for 75 percent of faculty," VTDigger 15 July 2018)
The reactions are what might be expected, though surprisingly muted (see, e.g., here, here, here, here, and here). In the end, after the hand wringing and acrimony, the substance of this action will likely remain undisturbed. "If the reports are accurate, Vermont has essentially acted as if tenure does not exist. This could potentially raise questions about whether Vermont is in compliance with ABA standard 405, but it is unclear how assertive the ABA or site visit teams will be in enforcing those standards." (How secure is tenure? (Michael Simkovic)).

For this post I offer some brief thoughts on what is likely to be a very useful and evolving addition to the toolkit of administrators as they continue the hard task of commodifying and capitalizing education within what is still nostalgically referenced as "the university." The focus is not on the lawyering of protection for those faculty with respect to whom tenure has been made a mockery, though one clothed in the delightfully unctuous ululations of administrator speak. Rather the reflections here focus on the ways in which these actions evidence more generally a perhaps significant changes of power relations within an institution in which the notions of traditional shared governance has withered away.  The character of that withering away is itself of interest, as the successful de-professionalization of the faculty has opened the way for their replacement in governance by an emerging corps of professional administrators only some of whom are drawn from their ranks who (ironically) remain protected by tenure. 

Tuesday, July 17, 2018

Call for Papers: European Society of International Law; The 2019 ESIL Research Forum

The 2019 ESIL Research Forum will be held at the Institute for International Law and European Law, Göttingen, on 4 -5 April 2019.  In addition, all ESIL Interest Groups will be invited to arrange events the day before the Forum, on 3 April.

The Research Forum addresses the topic: “The International Rule of Law and Domestic Dimensions: Synergies and Challenges”.
The contemporary international legal order contains a number of elements which might be seen as representing an ‘international rule of law’. For decades, the constant progress of the international rule of law has been taken for granted, supported by an apparently mutual reinforcement between the rule of law at the domestic and international levels. However, the recent backlash against international law, as well as current domestic developments, put the rule of law to the test at both levels. It prompts us to revisit and perhaps reconsider the concept and its relevance.
The deadline for submissions is 30 September 2018.
The Call for Papers follows. 
ESIL WEBSITE: http://www.esil-sedi.eu

Friday, July 6, 2018

CIPDH-UNESCO: segunda edición de su Curso Internacional sobre Derechos Humanos (CIPDH-UNESCO 2nd Annual Course in the Promotion of Human Rights)

El Centro Internacional para la Promoción de los Derechos Humanos (CIPDH-UNESCO) presenta la segunda edición de su Curso Internacional sobre Derechos Humanos. El tema central de este año será “Investigación en derechos humanos. Verificación de hechos, documentación y monitoreo”. Tendrá lugar en el Observatorio Villa Ocampo de la UNESCO, provincia de Buenos Aires, Argentina, entre el 29 de octubre y el 2 de noviembre. [The International Center for the Promotion of Human Rights (CIPDH-UNESCO) presents the second edition of its International Course on Human Rights. The central theme of this year will be "Human Rights Research. Verification of facts, documentation and monitoring ". It will take place at the Villa Ocampo Observatory of UNESCO, province of Buenos Aires, Argentina, between October 29 and November 2.]
Más información [More Information]; Bases y condiciones [Conditions];
 Formulario de inscripción [Application].

Más información y enlaces a los formularios de solicitud siguen a continuación/More information and links to the application forms follow below is provided below in English and Spanish.

Tuesday, July 3, 2018

Call for Papers 2019 Global Corporate Governance Colloquium (GCGC) Center for Financial Studies at Goethe University Frankfurt 7 - 8 June 2019

Deadline: 14 September 2018

The Global Corporate Governance Colloquia (GCGC) is an initiative that brings together the best research in law, economics and finance relating to corporate governance at a yearly conference held at 12 leading universities in the Americas, Asia and Europe. The 12 hosting institutions are: Columbia University, Goethe University Frankfurt, Harvard University, London Business School, National University of Singapore, Peking University, Seoul National University, Stanford University, Swedish House of Finance, University of Oxford, University of Tokyo and Yale University.
More information follows.

Saturday, June 30, 2018

Janus v. AFSCME Council 31: Brief Thoughts and AAUP Statement

In Abood v. Detroit Board of Education, 431 U.S. 209 (1977), the United States Supreme Court extended the right to a union shop to public service employees. They reasoned effectively that public employees ought not to be denied a right accorded to private sector employees. Certain elements of the political sector have been quite cross ever since. On June 27, the Supreme Court issued its decision in Janus v. AFSCME Council 31 (see the court's opinion).

One can view the issue in at least two broad ways; the choice of which to privilege depending in part on one's politics, and political agendas.  In one perspective, the case reduces itself to the protection of formal political rights among individuals, and extends that protection to the context of economic relations between labor and capital and among labor collectives and dissenting individuals. In another perspective, the case reduces itself to the reduction of the collective power of labor (compared certainly to the power of collectivity in capital) within firms, and shifts the distribution of economic power within labor and between labor and capital in the operation of firms. That distribution of power, especially in the context of shifts of power allocation between aggregations of capital and aggregations of labor have long marked this Republic. "Indeed, under common law, “collective bargaining was unlawful,” Teamsters v. Terry, 494 U. S. 558, 565–566 (1990)" Janus, n. 7 majority opinion)). 

Of course, the mediation of both views would have been important.  But this saga might better be understood in legal cultural terms as a generation old act of revenge by one reconstituted side of the American economic-cultural-political spectrum against another.  It was a long road from Abood to Janus. And it was a war littered with interest, advantage, and intransigence on all sides. But this is politics ("Today, the Court succeeds in its 6-year campaign to reverse Abood." Janus, Kagan, dissenting) p. 2). That is is an excellent marker of the benefits and challenges of judicial politics well into an age in which the U.S. has adjusted itself to the reconstitution of the judiciary as perhaps its most political branch, remains to be seen. For lawyers, beyond the constitutional points, the discussion of stare decisis would be worth some thought. These are the rules that sometimes liberalize or constrain the political opportunities offered through litigation, even they they might, in the process, undermine (or transform) the once conventional judicial character of the institution (assuming that was itself never a myth, though if so a useful one for national stability).

Indeed, in line with the great political cases, well funded by national (and increasingly international) actors using the courts as a more efficient medium for political reconstitution (as opposed to the cumbersome and expensive legislature, the complex bureaucracy, or the executive branch that is usually too disorganized to be effective consistently), this case can be understood as another in a long line of instances in which powerful actors focus their competition in the courts. In this case, unremarkably, Janus was represented in court by the Illinois Policy Institute’s litigation partner, the Liberty Justice Center, as well as the National Right to Work Legal Defense Foundation.

The decision has significant effects, though their character and direction remains to be seen, for the university. This might be interesting, for example, with respect to application to publicly assisted universities. And the fight over the rights of labor and capital to aggregatinbg power remains an unfinished story.

This post includes the statement of the AAUP  

Thursday, June 7, 2018

Premio Anual “Construir Igualdad" Bases 2018/ Annual CIPDH Award for Inclusive Local Public Policies Conditions 2018

Con el objetivo de fortalecer aspectos considerados claves para la construcción de sociedades más democráticas, el CIPDH ha instituido el premio CONSTRUIR IGUALDAD, orientado a distinguir políticas públicas locales de Latinoamérica y el Caribe que se destaquen o se hayan destacado  en materia de inclusión y  no discriminación. [With the objective of strengthening key aspects for the construction of more democratic societies, the CIPDH has instituted the BUILD EQUALITY award, aimed at highlighting local public policies in Latin America and the Caribbean that stand out or have stood out in terms of inclusion and non-discrimination.] (Premio Construir Igualdad ).
El Centro Internacional para la Promoción de los Derechos Humanos (CIPDH) es el primer Centro de Categoría II de UNESCO en el mundo dedicado a la promoción de los derechos humanos. Establecido en la República Argentina en 2009, funciona como entidad descentralizada en el ámbito del Poder Ejecutivo de la Nación. En pertinencia con su misión basada en los principios de igualdad y no discriminación desde una perspectiva de equidad de género, diversidad e interculturalidad, toma la iniciativa de reconocer políticas públicas de igualdad y no discriminación en la región de América Latina y el Caribe (LAC), a través de la institución del Premio Construir Igualdad. (Premio Anual CIPDH a Políticas Públicas Locales Inclusivas; BASES 2018)

The International Center for the Promotion of Human Rights (CIPDH in its Spanish acronym) is the first Category II Center of UNESCO in the world dedicated to the promotion of human rights. It was established in the Argentine Republic in 2009 and it works as a decentralized body within the Executive Branch of this country. Pursuant to its mission, which is based on the principles of equality and non-discrimination from a gender equality, diversity and interculturality perspective, it gives recognition to public policies of equality and non- discrimination in the Latin American and Caribbean (LAC) region through the creation of the Construir Igualdad (Building Equality) Award. Annual CIPDH Award for Inclusive Local Public Policies CONDITIONS - 2018)
Las postulaciones se recibirán desde el 13 abril hasta el 15 de julio de 2018 a través de nuestra página web: www.cipdh.gov.ar/ construirigualdad.  Para mayor información consultar bases aquí, o comunicarse al correo electrónico: premio@cipdh.gov.ar 
Applications may be submitted from 13 April until 15 July 2018 through the dedicated web page: www.cipdh.gov.ar/ construirigualdad.  For more information please consult here: bases aquí, or otherwise email queries at: premio@cipdh.gov.ar 

Wednesday, May 30, 2018

Scandal, Culture Change, and Discipline at USC: The Emerging Roles of Bureaucracies, Faculty, and Litigation in Institutional Risk-Compliance Regimes

Universities, like other large institutions, have been plagued by scandal related to sexual misconduct.  Among the latest institutions facing significant disruption on the basis of an alleged wrongful failure of administrators to prevent or remedy (through for example appropriate working systems of monitoring and mitigation) such sexual misconduct  is the University of Southern California.  USC is now in the midst of the consequences of "a growing scandal over abuse of students by a campus gynecologist, George Tyndall, and other incidents in which the university is perceived to have failed to act on misconduct by powerful officials." (Scott Jaschik, USC President Will Step Down, Inside Higher Education 29 May 2018). 

This post considers the way that such scandals have now acquired their own patterns of response.  It suggests the way that for large institutions, mere reliance on institutional reporting and monitoring systems, even those combined with robust complaint avenues, are rarely sufficient to produce a robust and effective response (See,On the Management of Scandal in the Modern University; Some Lessons and Insights for Times of Crisis; for earlier reflections in other institutions see, e.g., here, here, here, here, here).  Accountability might be far more effective with a strong and well developed system of both internal and external stakeholder action, one that makes it more difficult for senior administrators to seek shelter within their self reflexive managerial cocoons.  For internal action, the protections of tenure academic freedom are essential. For external sanctions, a robust social media and news establishment is essential for communicating complaints to the larger markets in which the university operates and on which it is dependent (made up of alumni, donors, regulators and students). 

The Language of Bureaucracy: Rostam J. Neuwirth, "Law in the Time of Oxymora A Synaesthesia of Language, Logic and Law"

I am happy to pass along news of the publication of Rostam J. Neuwirth, Law in the Time of Oxymora: A Synaesthesia of Language, Logic and Law (Routledge 2018). A rich work, it addresses the fundamental challenges to legal reasoning and legal logic and also open a broad debate on the consequences that these linguistic changes are likely to trigger. The relation of the project of reasoning to the transformation of the meaning and structures of communication within enterprises, and especially universities, may be quite useful. 

This from the publication materials (the abstract follows).
In the time of “alternative facts”, “Yanny and Laurel” or other oxymoronic phenomena, the “law and society” debate faces a plethora of serious challenges that are often framed in individual “law and … pairs”, like those of “law and technology”, “law and language” or “law and the senses” to mention but three. However, such dichotomous thinking underlying law at large is increasingly facing pressure from so-called “essentially oxymoronic concepts” and may no longer be able to deal with the pace of change and complexity in the real world.