Thursday, February 14, 2019

Speech and the American University: Views from the AAUP in its Current Issue of Academe

The American Association of University Professors has just published its latest issue of its Academe Magazine.  This month focuses on speech issues on campus.  The Press Release notes:
This issue of Academe addresses the questions of speech that have fueled the culture wars on college campuses in recent years. Articles discuss the assault on the public mission of higher education; the implications of a polarized political climate for faculty members, administrators, and students; and the parameters of current debates about academic freedom, free speech, and inclusion.
The articles are useful for understanding the state of discourse about discourse in the American Academy especially along its current ideological fault lines.

Follow the links in the table of contents below or read the entire issue at

Friday, February 1, 2019

Sexual Assault on Campus--Law and Politics in the Shadow of Battles for Control of an Ordering Normative Narrative

"What counts as safety and risk is not adequately defined. In a number of cases in which a faculty member’s speech are the grounds for the accusation, the university has, upon receiving the complaint, removed them from the classroom and the campus (e.g., Buchanan and Adler). In such cases, the only apparent threat is the one to the university’s reputation; there is no imminent danger to students or colleagues. When speech is the issue, we think there needs to be a clearer definition of what counts as an emergency." (Comment on the Department of Education Proposed Rule: Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance
34 CFR 106 Comment submitted by: AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS, January 28, 2019, p. 14)

Mostly out of the glare of social media, a great contest has been playing out over the law and politics of managing relations of individuals generally around the increasingly indeterminate cultural idea of "sex" in North America.  I have been posting about one of the battlegrounds--the fight within legal elites in the American Law Institute for control of the narrative (and the framework of legal responsibility) of sexual assault and related criminal acts (e.g., The Battle Over the Legal Construction of Sexual Assault -- A Report From the Battle Lines at the American Law Institute's Model Penal Code Revision Project). 

But another battleground merits serious attention--the university.  This battle is waged for control of the socialization of students (and the stakeholders who serve them).  It's language is that of law (actually administrative regulation and the exercise of administrative discretion in creating the "atmosphere within which interpretive exercises will be judged legitimate--by courts and the university administrators who are expected to apply them). That conflict now has a long and quite contentious history, the last phase of which was started with the Obama Administration's no (in)famous Dear Colleagues letter (critically assessed here), and the reaction, now the site of contention, as the successors to Mr. Obama's administrative apparatus seek to re-frame law and its politics through to proposed amended regulations implementing Title IX of the Education Amendments of 1972.

This post includes the recently circulated comments of the American Association of University Professors to those changes.  It is largely an opportunity for the AAUP to push its own view published in 2016 (The History, Uses, and Abuses of Title IX), which appears to take something of a broadly understood middle position between those of the Obama and Trump Administrations, but also sees in the regulation an opportunity to legalize politics, and especially the politics of what is taught in the university. But even in this middle ground there is a large space for contention--the AAUP's stance on exemptions for religious schools, and its efforts to use liability standards as a means of socialization are two of them. Moreover, the concept of hostile environment is now one ripe for interrogation, but not, it seems, among the critical stakeholders driving this debate and the regulations that follow.

The comment is worth reading for its politics and for its engagement with legal standards, and follows below, along with its executive summary and the press release announcing its circulation. The Department of Education Proposal, Department of Education Proposed Rule: Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance (83 FR 61462-61499 (38 pages))  may be accessed HERE.

Monday, January 28, 2019

Call for panel proposals and papers - The American Society of Comparative Law Annual Meeting

Passing along what is likely to be a very interesting and useful event:

Call for panel proposals and papers - ASCL annual meeting

The American Society of Comparative Law (ASCL) has just issued a call for proposals for (1) concurrent panels and (2) a works in progress conference to be held in association with the ASCL 2019 Annual Meeting, which will be held at the University of Missouri School of Law between Thursday, October 17, and Saturday, October 19, 2019. The event is open to ASCL and non-ASCL members.

The theme of the Annual Meeting is “Comparative Law and International Dispute Resolution Processes” and will feature presentations on how comparative law affects various types of cross-border conflict, including but not limited to litigation, arbitration and mediation. Concurrent panels and works in progress papers need not fall within this general theme, although of course they may. Multilingual panel proposals will be considered as part of ASCL's mission to foster plurilingualism.

Information on the event, including the call for panel proposals and works in progress submissions, is available at Proposals will be accepted until May 20, 2019.

Wednesday, January 23, 2019

From the European Society of International Law--Economic Law Events Call for Papers

(Pix © Larry Catá Backer; Tacoma Museum of Art)

The European Society of International Law has recently distributed a list of call for papers for upcoming conferences, some of which may be of interest:

- EU Investment Law (Topical Issues in Investment Law & ISDS Series), Paris, 7 February 2019. For more information: 

ESIL IEL IG backed International Conference on “A Common European Law on Investment Screening”, Gothenburg, 7-8 March 2019. For more information: 

- ESIL IEL IG backed Workshop on International Economic Law in the Era of Distributed Ledger Technology, Turin, 9 April 2019. For more information: for the Call for Papers: 29 January 2019.

- ESIL sponsored Colloquium on Actors in International Investment Law: Beyond Claimants, Respondents and Arbitrators, Paris, 26-27 September 2019. For more information: Deadline for the Call for Papers: 31 March 2019.

Friday, January 11, 2019

Writing to the Standard/El suicidio programado del gran ensayo--Accountability and the Management of Knowledge Production

(Pix © Larry Catá Backer 2017)

Academics worldwide remain vigilant against the erosion of academic freedom by administrators or the state.  This erosion threat has worldwide dimensions. Yet academics have been all too willing to sell their academic freedom for financial support.  And all to often, that quid pro quo--grants for the production of work that satisfies the needs or desires of grantors--is institutionalized in universities that then make the acquisition of grants a significant element in professional assessment. 

Academics, for the most part are reconciled to this relationship between money and the control of the direction of academic production.  That reconciliation is due in part from need, but also because academics are critically embedded in the institutions that finance the production of knowledge.  They serve as the peer reviewers or relate positions of many of these; and the university itself rewards academics who are deeply embedded within the knowledge-finance complex. Academics (and their institutional masters) appear to have qualms only when there appear to be "conflicts of interest"--the definitions of which tend to reflect ongoing battles for ownership of knowledge or when outsiders question the legitimacy of such production for hire.   

It is too late in the day to worry overmuch abut the existence of the knowledge production-finance complex. The process tends to be transparent enough, and the oversight tends to be interested enough, that one can be assured that though financiers may substantial influence the sorts of knowledge that is produced (they tend to choose what is studied and what is ignored), the quality of the knowledge produced is not generally any more or less legitimate (in the sense of being disinterested) than knowledge produced by other means.    

But while academics remain focused on formal or rule based threats, and remain vigilant about quality issues in the financing of knowledge production, the growing mania for productivity measures now may well pose a greater threat.  That threat is not just to academic freedom, but also to the quality generally of the production especially of basic knowledge (rather than boutique purchased knowledge for specific consumers). Quantitative measures increasingly provide a means for controlling the form and context of knowledge production, as well as the formats through which it is produced.  Here one sees the rise not just of assembly line factory ideologies transformed for the academic factory, but more importantly, of a production-publisher complex that not only shapes knowledge but which tends to transfer the rights to that knowledge from producers to "distributors." Academics, then, move closer to the bottom--lowest value added, part of knowledge production chains. 

Accountability has given rise to a mania for the production of proxy measures through which the administrative structures of a faculty department might judge quality and quantity of academic production.  There is nothing inherently odd either about the focus on accountability, or on the use of proxy measures per se. However, in the form in which they have been developing over the last several decades, the result is to produce an assessment structure that effectively manages, if not controls, both the form and content of academic production to satisfy the measures of assessment.  In effect, the measures of quality have themselves now become the object of quality. One does not produce knowledge to advance learning  but to meet the criteria for assessment.  In the process, assessment measures can be used to substantially shape and manage the cultures of academic production in ways that may ultimately harm the production of knowledge. 

This is not merely the whining of the American professorate. Academics elsewhere have begun to understand that data analytics, when these drive assessment without appropriate qualitative constraints beyond the measures, can be used to shape, in sometimes dramatic ways, the relationship between academics and knowledge production. Recent interest among Spanish academics suggest the nature of the problem. A article published in El País, El suicidio programado del gran ensayo, makes the point for the Spanish and Italian academy, portions of which follows below (Spanish only).


Llamada a contribuciones
Bogotá, Colombia
Fechas: 2-3 de mayo de 2019
Sedes: Universidad del Rosario y Pontificia Universidad Javeriana 

Call for Papers: ESIL 2019 ANNUAL CONFERENCE--Sovereignty: A concept in flux?

12-14 September 2019: Athens Public International Law Center at the National and Kapodistrian University of Athens:
Sovereignty: A concept in flux?
  • CALL FOR PAPERS (deadline: 31 January 2019) 
  • ESIL Interest Groups will be invited to arrange events on Thursday 12 September 2019
  • Further information is available on the conference website 

Call for Papers follows.

Saturday, December 22, 2018

Call for Papers: Global Business and Human Rights Scholars Association 5th Annual Conference 12 - 13 September 2019 .

2019 Global Business and Human Rights Scholars Association at Essex
December 21, 2018 / hrcessex

Tara Van Ho

Next year, the University of Essex School of Law and Human Rights Centre will host the 2019 Global Business and Human Rights Scholars Association, 12-13 September 2019.

This is a workshop to discuss research-in-progress; papers must be unpublished at the time of presentation. In addition to presenting a paper at the conference, participants are expected to read and be prepared to comment on and discuss the papers of other participants.

Papers may be presented in English, Spanish or French. The deadline for submission of abstracts is 1 March 2019. If sufficient proposals are made, a panel in Portuguese will also be organized. The working language for common sessions will be English.

The call for papers (in pdf) is below in English, Spanish, French and Portuguese.

Call for Papers – 2019 gbhrsa – final English
Call for Papers – 2019 gbhrsa – final French
Call for Papers – 2019 gbhrsa – final Portuguese
Call for Papers – 2019 gbhrsa – final Spanish

Friday, December 14, 2018

Call for Papers and Panels: ICON-S Conference 1-3 July 2019, Santiago Chile

ICON·S Conference
"Public Law in Times of Change?"
July 1-3, 2019


Dear Member of ICON·S,
ICON·S | The International Society of Public Law is pleased to announce that its 2019 Annual Conference will be held at the Pontifical Catholic University of Chile in Santiago, on July 1-3, 2019. This will be the sixth Annual Conference of ICON·S, following the five Annual Conferences (Florence 2014, New York 2015, Berlin 2016, Copenhagen 2017, Hong Kong 2018) which have been overwhelmingly successful, thanks to the support of our Members.

ICON·S now invites panel and paper submissions for the 2019 Annual Conference on "Public Law in Times of Change?".

Public law is facing a myriad of new challenges – including rising popular distrust in government, increasingly closed borders, and complex economic and technological change. We are arguably living in hard times for global public law. But will these challenges result in radical changes to the field as we know it, or will public law adapt and respond in ways that reinterpret and reinvigorate its core commitments to democracy, the rule of law, and human rights in a manner that is continuous with our current practices?

Countries around the world are witnessing the reversal of longstanding democratic gains, and new authoritarian threats. Yet there are signs of resilience in the global and national public law order: popular referenda have delivered gains as well as losses for democracy; women and young people have marched in defence of public law values; and justice is being crowd-sourced and data-driven, not just undermined by foreign cyber-attacks and “fake news”.

Under the strain of technological changes and shifts in economic globalisation, the world is also confronting large-scale changes in the structure and scope of global governance and of the “administrative” state. The Welfare State is under “siege” and at both international and domestic levels the problem of economic injustice is dominating the political and socio-economic debate around the globe.

International and regional bodies are re-orienting their focus to respond to these new challenges. And commitments to constitutional and administrative reform likewise remain strong in many legal orders. They continue to engage in formal processes of constitutional review, often as part of a transition from authoritarian to democratic, and colonial to post-colonial rule: from Chile to Myanmar, Bolivia to Tuvalu, Yemen to Sudan, and from the Philippines to Gambia. Many countries are actively debating proposals for major constitutional and legal reform. Others are grappling with the legacies of past reforms and transitions, and asking whether they were sufficient to address legacies of colonialism, and the abuse of human rights, and flagrant disregard for the rule of law.

But how far can public law go in responding to these issues? Are the sources of the current democratic crisis so deeply economic and structural that they evade any meaningful public law response? Are they rooted in debates over national identity and borders, which public law can address only partially and indirectly at best? Or does public law have the resources to adapt and respond to these challenges? Can public law, for example, help shape the future direction of state and global governance, or will changes in national and international governance in fact reshape public law as we know it?

This Annual Conference will seek to address these and related issues, bringing together leading scholars, political leaders and jurists from around the world to debate these questions, and their relevance to Latin America, their own countries, and the world.

The Conference will feature a keynote address by Justice Luís Roberto Barroso of the Supreme Federal Court of Brazil, as well as three plenary sessions featuring prominent jurists, intellectuals and judges, focused on the general themes of the Conference. A provisional programme can be found here. At the heart of the Conference, however, are the concurrent sessions during the three-day conference which will be devoted to the papers and panels selected through this Call.

ICON·S particularly welcomes proposals for fully-formed panels, but also accepts individual papers dealing with any aspect of the Annual Conference’s themes. Paper and panel proposals may focus on any theoretical, historical, comparative, empirical, jurisprudential, ethical, behavioral, ethnographic, philosophical or practical, policy-oriented perspective related to public law, including administrative law, constitutional law, international law, criminal law, immigration and citizenship law and human rights and may address domestic, subnational, national, regional, transnational, supranational, international and global aspects of public law.

We strongly encourage the submission of fully-formed panels. Panel proposals should include at least three papers by scholars who have agreed in advance to participate, and panels must be formed in accordance with the Society’s commitment to gender balance. Such fully-formed panel proposals should also identify one or two discussants, who may also serve as panel chair and/or paper presenter. Please kindly note that each participant can present not more than 2 papers and participate – as presenter, chair or discussant – in 4 panels maximum.

Proposals of fully formed panels may be made of – or include some – papers written and presented in Spanish. In these latter cases, paper abstracts and/or panel description must in any event be submitted in English.

Concurrent panel sessions will be scheduled over two days. Each concurrent panel session will be scheduled for 90 minutes.

We invite potential participants to refer to the ICON·S Mission Statementwhen choosing a topic or approach for their papers or panels.

ICON·S is by no means restricted to public lawyers! We particularly welcome panel proposals that offer genuinely multi-disciplinary perspectives from various areas of law (including civil, criminal, tax, and labor law), as well as from scholars in the humanities and the social sciences (e.g. history, economics, political science, sociology) with an interest in the Conference’s themes. We welcome submissions from both senior and junior scholars (including doctoral students) as well as interested practitioners.

All submissions must be made through the ICON·S website by March 9, 2019.
Submit your Panel or Paper

Successful applicants will be notified by April 1, 2019.

All participants will be responsible for their own travel and accommodation expenses.

We very much look forward to receiving your paper and panel proposals.

See you at ICON·S Santiago 2019!

Lorenzo Casini & Rosalind Dixon
Co-Presidents of ICON·S

Richard Albert, Gráinne de Búrca, Mariana Canales, Claudia Golden, Ran Hirschl, David Landau, Ruth Rubio Marin, Francisco Urbina, Cristián Valenzuela, Sergio Verdugo, Joseph Weiler and Fred Felix Zaumseil
Members of the ICON·S 2019 Organizing Committee

Saturday, December 1, 2018

The AAUP Will Now Investigate the Mass Terminations at Vermont Law School

(Pix © Larry Catá Backer 2016)

Some time ago I wrote about the implications of the mass terminations at Vermont Law School (Thoughts on Mass Tenure Revocation at Vermont Law School in the Shadow of the Market and Beyond Shared Governance). For that post, I offered
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. 

Like most scandals of its kind, the scandal appeared to have a very short half life.  It was just another marker on the road to the unwinding of the American university, and its re-constitution as a learning factory within which administrators could preside over a  large factory, not so much producing knowledge--as disseminating enough of it so that its objects might be successfully inserted in appropriate slots in the American wage labor markets. To that end, tenure is an impediment--a marker of a quite different and disappearing way of life that can no longer be justified within the emerging business model of the contemporary university.  

That business model, in turn, is increasingly a function of quite straightforward quantitative markers. These were once proxies for quality; they have now become the incarnation of the quality they were meant to measure. These proxies now tell the tale of the contemporary university, not just in the measure of its production, but also in its dissemination of knowledge and in the "results" that dissemination produces for its consumers.  The value of knowledge dissemination is measured the momentary connection between the knowledge consumer and the objective for which consumption is undertaken--employment. Value is measured over time, with particular emphasis on the value of an initial insertion into wage labor markets.  Value itself is measurable in money; it is measured in the present value of anticipated earning, and in rates of return to the university--alumni donations, and the value of networks through which future students may be successfully inserted in wage labor markets, for example. The value of the quality of earning is also measured by proxy--through a detailed classifications of the status of the employment which itself serves as proxies for the value of dissemination programs. 

The value of knowledge production is measured by dollars. It's impact is now understood as a species of "clickbait," the value of which is to enhance the clickable potential of that which follows, which relentless follows, with regard only to time. For if time is now money, then the efficient use of time is measured by the artifacts, by the measurable things, with which it may be filled--graduation rates, bar passage rates, employment rates, citation rates, production rates, grant award rates, invitation rates, mention rates, collaboration rates. Quality has become its proxy precisely because it is the proxy that is valued. And in this inversion emerges the new business model of the university.  The inevitable consequence will be a parade of variations on the theme so scandalously elaborated in Vermont.

Now the AAUP has announced that it will investigate this action at Vermont Law School. It is necessary in the way that rear guard action is necessary slow the speed of transformation. And to be sure, such transformation will affect those very few institutions designated as the nurseries of power. And the forms of production will remain vibrant, as the producers of knowledge--ever sensitive to incentive and market forces--will adjust the quality of their production to suit the times. That is as it should be; but to that end, the model grounded in tenure (and its protections) will become increasingly irrelevant, except at the margins. Still, long after it will have effectively ceased to serve much of a function, its mythology will continue to inspire those who will be recruited into the learning factories that are now emerging.  Fading institutions retain their form long after its substance has vanished.  

The announcement follows.   We should all look forward to its results.