Grades, Law, and Love in the Time of Pandemic: Pass/Fail with Written Evaluations

On Friday, I sent my first-year students an email titled “Law and Love in the Time of Pandemic.” I had sent them an anonymous survey about grades, asking for their thoughts on whether to keep letter grades or switch to pass/fail. I received 60 survey responses and at least two dozen emails from current (as well as former) students, and they were evenly split. (The ranked-choice voting was also evenly divided along a spectrum of five options, roughly 20% each). I appreciated how candidly, respectfully, and openly they shared – both anonymously and non-anonymously. A lot of students are struggling out there, in ways professors can imagine, and in ways professors might not imagine. Going home for some is easy. For others, going home is much harder, and some cannot get home or have no family home to return to.

Tonight, I read Jonathan Adler’s thoughtful post “Grading in the Time of Coronavirus” on Reason. I have a lot of respect for Jonathan and his valid points. His bottom line: “A better alternative is to allow students pass/no-credit option (either before, or even after, receiving their grades).” 

My bottom line: The better alternative is mandatory Pass/Fail, with a formal requirement that professors write a reasonable amount of short letters of evaluation for students who excelled on the exam and/or performed well despite particularly challenging situations. They can be used like mini-letters of recommendation if the student so chooses.

(As a compromise, I would be open to Honors/Pass/Fail. I find it only a second-best, but better than pass-fail without sufficient faculty participation in written evaluations).

Continue reading “Grades, Law, and Love in the Time of Pandemic: Pass/Fail with Written Evaluations”

Social Distancing: This is Not a Snow Day

Our friend Asaf Bitton, director of Ariadne Labs/Harvard Medical School, offers this advice in a thorough and insightful post:

By Asaf Bitton, MD, MPH

I know there is some confusion about what to do next in the midst of this unprecedented time of a pandemic, school closures, and widespread social disruption. As a primary care physician and public health leader, I have been asked by a lot of people for my opinion, and I will provide it below based on the best information available to me today. These are my personal views, and my take on the necessary steps ahead.

What I can clearly say is that what we do, or don’t do, over the next week will have a massive impact on the local and perhaps national trajectory of coronavirus. We are only about 11 days behind Italy and generally on track to repeat what is unfortunately happening there and throughout much of the rest of Europe very soon.

At this point, containment through contact tracing and increased testing is only part of the necessary strategy. We must move to pandemic mitigation through widespread, uncomfortable, and comprehensive social distancing. That means not only shutting down schools, work (as much as possible), group gatherings, and public events, but also making daily choices to stay away from each other as much as possible to Flatten The Curve below.

 

Our health system will not be able to cope with the projected numbers of people who will need acute care should we not muster the fortitude and will to socially distance each other starting now. On a regular day, we have about 45,000 staffed ICU beds nationally, which can be ramped up in a crisis to about 95,000. Even moderate projections suggest that if current infectious trends hold, our capacity (locally and nationally) may be overwhelmed as early as mid-late April. Thus, the only set of strategies that can get us off this concerning trajectory are those that enable us to work together as a community to maintain public health by staying apart.

The wisdom, and necessity, of this more aggressive, early, and extreme form of social distancing can be found here. I would urge you to take a minute to walk through the interactive graphs — they will drive home the point about what we need to do now to avoid a worse crisis later. Historical lessons and experiences of countries worldwide have shown us that taking these actions early can have a dramatic impact on the magnitude of the outbreak. So what does this enhanced form of social distancing mean on a daily basis, when schools are cancelled?

Here are some steps you can start taking now to keep your family safe and do your part to avoid a worsening crisis:

1. We need to push our local, state, and national leaders to close ALL schools and public spaces and cancel all events and public gatherings now.

A local, town by town response won’t have the adequate needed effect. We need a statewide, nationwide approach in these trying times. Contact your representative and your governor to urge them to enact statewide closures. As of today, six states have already done so. Your state should be one of them. Also urge leaders to increase funds for emergency preparedness and make widening coronavirus testing capacity an immediate and top priority. We also need legislators to enact better paid sick leave and unemployment benefits to help nudge people to make the right call to stay at home right now.

2. No kid playdates, parties, sleepovers, or families/friends visiting each other’s houses and apartments.

This sounds extreme because it is. We are trying to create distance between family units and between individuals. It may be particularly uncomfortable for families with small children, kids with differential abilities or challenges, and for kids who simply love to play with their friends. But even if you choose only one friend to have over, you are creating new links and possibilities for the type of transmission that all of our school/work/public event closures are trying to prevent. The symptoms of coronavirus take four to five days to manifest themselves. Someone who comes over looking well can transmit the virus. Sharing food is particularly risky — I definitely do not recommend that people do so outside of their family.

We have already taken extreme social measures to address this serious disease — let’s not actively co-opt our efforts by having high levels of social interaction at people’s houses instead of at schools or workplaces. Again — the wisdom of early and aggressive social distancing is that it can flatten the curve above, give our health system a chance to not be overwhelmed, and eventually may reduce the length and need for longer periods of extreme social distancing later (see what has transpired in Italy and Wuhan). We need to all do our part during these times, even if it means some discomfort for a while.

3. Take care of yourself and your family, but maintain social distance.

Exercise, take walks/runs outside, and stay connected through phone, video, and other social media. But when you go outside, do your best to maintain at least six feet between you and non-family members. If you have kids, try not to use public facilities like playground structures, as coronavirus can live on plastic and metal for up to nine days, and these structures aren’t getting regularly cleaned.

Going outside will be important during these strange times, and the weather is improving. Go outside every day if you are able, but stay physically away from people outside your family or roommates. If you have kids, try playing a family soccer game instead of having your kids play with other kids, since sports often mean direct physical contact with others. And though we may wish to visit elders in our community in person, I would not visit nursing homes or other areas where large numbers of the elderly reside, as they are at highest risk for complications and mortality from coronavirus.

Social distancing can take a toll (after all, most of us are social creatures). The CDC offers tips and resources to reduce this burden, and other resources offer strategies to cope with the added stress during this time.

We need to find alternate ways to reduce social isolation within our communities through virtual means instead of in-person visits.

4. Reduce the frequency of going to stores, restaurants, and coffee shops for the time being.

Of course trips to the grocery store will be necessary, but try to limit them and go at times when they are less busy. Consider asking grocery stores to queue people at the door in order to limit the number of people inside a store at any one time. Remember to wash your hands thoroughly before and after your trip. And leave the medical masks and gloves for the medical professionals — we need them to care for those who are sick. Maintain distance from others while shopping — and remember that hoarding supplies negatively impacts others so buy what you need and leave some for everyone else. Take-out meals and food are riskier than making food at home given the links between the people who prepare food, transport the food, and you. It is hard to know how much that risk is, but it is certainly higher than making it at home. But you can and should continue to support your local small businesses (especially restaurants and other retailers) during this difficult time by buying gift certificates online that you can use later.

5. If you are sick, isolate yourself, stay home, and contact a medical professional.

If you are sick, you should try to isolate yourself from the rest of your family within your residence as best as you can. If you have questions about whether you qualify or should get a coronavirus test, you can call your primary care team and/or consider calling the Massachusetts Department of Public Health at 617.983.6800 (or your state’s department of health if you are outside of Massachusetts). Don’t just walk into an ambulatory clinic — call first so that they can give you the best advice — which might be to go to a drive-through testing center or a virtual visit on video or phone. Of course, if it is an emergency call 911.

Continue reading “Social Distancing: This is Not a Snow Day”

Rose Garden Parade of CEOs

This Friday afternoon, I had some concerns about Trump’s Coronavirus parade of CEOs…
But it all made sense after he announced that Trump University developed a beautiful Coronavirus test.
And if you test positive, you get a free Trump Steak & Trump Wine and a federally subsidized deal on quarantine in a Trump Hotel.
(If you want to know what all that CEO advertising was about, the Dow went up by about 1000 points (5%) during the CEO parade.)

Fordham Constitutional History Workshop Schedule, Spring 2020

Fordham Constitutional History Workshop

Saul Cornell and Jed Shugerman

Wednesdays, 2 to 3:50 PM, Fordham Law School (Lincoln Center), Room 4-06.

Jan. 29: Workshop: Jed Shugerman and Ethan Leib, “Faithful Execution, Fiduciary Constitutionalism, and Good Cause Removal” (paper related to Selia v. CFPB, to be argued March 3, 2020)

Feb. 5: Workshop: Julie Suk, CUNY Graduate Center, chapter “We working women, because we are mothers”:  Legacies of the 19th Amendment” from forthcoming book, We the Women: The Forgotten Mothers of the Equal Rights Amendment.

Feb. 12: Workshop: Keith Whittington, Princeton (Politics Dept), Constitutional Crises, Real and Imagined (selections from forthcoming book)

Feb. 19: Selections from Gerald Leonard & Saul Cornell, The Partisan Republic: Democracy, Exclusion, and the Fall of the Founders’ Constitution, 1780s–1830s (2019)

Feb. 26: Workshop: Kunal Parker, U. of Miami Law, “Common Law Modernism: The Turn to Process in American Legal Thought, 1900 – 1970,” chapter from book manuscript on the idea of process in American legal, political, and economic thought (1900 – 1970)

March 4: Workshop: Jonathan Gienapp, Stanford History, selections from The Second Creation: Fixing the American Constitution in the Founding Era (2018)

March 11: Workshop: Felicia Kornbluh, University of Vermont, ‘Reproductive Rights and Justice Beyond Roe v. Wade: The View from 800 West End Ave’

March 25: Workshop: Nicholas Parrillo, Yale Law School, “Federal Tax Administration in the Early Republic.”

April 15: Workshop:  Joanne Freeman, Yale History, selections from The Field of Blood: Violence in Congress and the Road to Civil War (2018)

If the Senate won’t have a real trial, New York state prosecutors can.

The People v. Giuliani et al on federal bribery/state extortion conspiracy (and other crimes) would be justified on its own for deterrence and the rule of law.

But it is also a way to get to the bottom of Giuliani’s and Trump’s conspiracy with subpoenas of Bolton, Pompeo, Pence, Barr, Mulvaney and others.  Here is my intro, and here is a link to my Slate piece:

As the Senate votes this week on whether to subpoena witnesses like Bolton, it should understand that its vote is not the final say. For one, the House could still subpoena or begin impeachment inquiries into many of the officials at the center of the Ukraine scandal. Another intriguing possibility for immediate criminal liability turns not on Attorney General William Barr’s Department of Justice but on New York conspiracy and extortion law. If Senate Republicans vote against witnesses or otherwise create a sham trial, then New York state prosecutors have the jurisdiction and the duty to investigate—and potentially indict—Giuliani and others for extortion conspiracy, and to subpoena his possible co-conspirators inside and outside the administration.

A state trial of Giuliani and any associates involved in a Ukraine bribery plot would serve the interests of justice and deterrence, especially given recent evidence raising new questions about the possible stalking and intimidation of Yovanovitch, and given Giuliani flagrantly continuing the same scheme. Such charges would also open an alternative legal process for pursuing subpoenas of key witnesses and documents that the Senate Republicans have been blocking thus far.

Can New York prosecutors like Manhattan District Attorney Cy Vance pursue criminal charges? Under New York’s statute on criminal conspiracy jurisdiction, when two or more people agree in New York to engage in criminal conduct in another jurisdiction, it is punishable as conspiracy if that conduct is criminal in both New York and the other jurisdiction. Thus, there would be three steps to such a prosecution: First, was the conduct criminal in the other jurisdiction, in this case, possibly D.C. (or perhaps Connecticut)? Second, was it criminal in New York state? Third, was the conspiracy advanced in New York state?

The bottom line is that a state criminal prosecution of Giuliani and his team could be based solidly on a combination of federal felonies (bribery and campaign finance, and perhaps stalking), state felonies (extortion), and conspiracy law, plus perhaps a combination of stalking crimes.

Did Trump Engage in Bribery? And Why No Bribery Article of Impeachment?

I contributed to this Vox round-up of “legal experts” on the bribery charges in the House report. Six out of seven of us “legal experts” agree Trump’s conduct was bribery. And the seventh, Keith Whittington, offered some wise reasons to be more caution, but still finds it “an abuse of power.” I explain why the House Dems wisely didn’t cite a bribery felony in the articles, but then did in its report. (On the day the call summary was released, I explained here why the call itself — “I would like you to do us a favor though.” — made a probable case of bribery.)

The House Judiciary presents a solid case that Trump’s conduct constituted bribery. I would add this observation: Many people were puzzled by why the first article of impeachment was titled “Abuse of Power,” and not “Bribery,” did not cite the federal bribery statute, and did not allege bribery explicitly, even as the article deliberately laid out each element of federal bribery. I’ll offer my explanation why this was wise as a matter of constitutional law and governance.

The committee report spends six pages (p. 120-126) going step by step through the bribery statute: an exchange of a “thing of value” for “an official act” for “corrupt” purposes. As the “thing of value,” The report wisely highlights that Trump was seeking merely “announcement” of an investigation into the Bidens, because it shows Trump was not sincerely interested in a real investigation, and an announcement would usually be counterproductive for starting a background investigation under the radar, to prevent tipping off witnesses to start coordinating their stories.

A mere announcement benefited Trump’s campaign, and that’s one piece of evidence among many of “corrupt” intent. And the report offers a thorough explanation for why the arms and an official White House visit are official acts. The report rebuts the Trump defenders’ argument that an official White House visit is not an “official act” under Supreme Court precedent.

So why not spell out this felony in the article of impeachment? The House Judiciary Committee was making a crucial point now and as a clear precedent for future federal officials: high crimes and misdemeanors do not require a statutory felony. They are more fundamentally about the officer’s abuse of power. This argument notably can cut the other way. If a president cheated on his or her taxes many years before taking office, that would be a felony but probably not a “high crime or misdemeanor” in these terms of “abuse of power.” He or she may have used his office to cover up these crimes, but that abuse would be the impeachment trigger, not the past crime.

The report quotes the conclusion from our historical study (with Andrew Kent and Ethan Leib) of “faithful execution”: The Constitution’s “faithful” language imposes a duty on Presidents “to exercise their power only when it is motivated in the public interest rather than in their private self-interest.” There are many ways for presidents to self-deal and betray the public interest without committing a felony. The Judiciary Committee wisely made this point in the articles and in its reports, while also bolstering its case with a thorough explanation of several felonies including bribery, too.

A Deal Between Devils: Racism, Corruption, and the “Authentic Appeal of the Flagrant Lying Demagogues

Our era is a case study of how racism leads to authoritarianism.
Racism is the easiest quid pro quo between crook-demagogues and a racist base: The crook offers a racist agenda in return for carte-blanche for any crimes, election rigging & corruption. The deal between devils.
I know this may sound obvious. But this deal between devils helps us understand this week, when so many Republicans in Congress were so shameless in making statements that both they and their constituents know to be false. I’ve been thinking about this paper by Ezra Zuckerman Sivan, Oliver
Hahl, and Minjae Kim all week:

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Here’s their huge question:
Why would a constituency of voters find a candidate “authentic” even though they know he is a “lying demagogue” (tells lies and appeals to bias/private prejudices)?
And here’s their big answer:
For voters who want to dramatically change norms and upend the establishment political system, lying is a feature, not a bug.
(1) “Common-knowledge” lies are flagrant violations of norms; and
(2) when a system is suffering from a “crisis of legitimacy” for a constituency, that constituency is motivated to see a flagrant violator as its authentic champion.
The constituency who sees a system as illegitimate wants a leader who will blow up those illegitimate norms. That constituency will see a leader who shares their values and also flagrantly lies as a more authentic norms-shredder.
The more willing that leader is to lie about basic facts for the cause, the more sincere that leader is willing to fight for their anti-establishment cause. Lying about basic facts signals a deeper commitment to the bigger agenda: blowing up an illegitimate system: Draining swamps. Building walls. #MAGA.
A racist base more than just tolerates lying. They reward it. The lies are signals of the leader’s commitment to overturning an “illegitimate” system (and fighting that system’s elites). As some leaders are rewarded for lying (Trump), others learn to follow.

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Shocked by just how far Lindsey Graham, Devin Nunes, Jim Jordan, John Ratcliffe, Elise Stefanik, Sen. John Kennedy, etc., would go to flagrantly lie?
They’ve learned not only that there is no cost to lying… They see huge rewards with their racist base. It’s a signal they authentically fight their fight.
Historical notes:
Highly recommended reading: Hannah Arendt, The Origins of Totalitarianism, on the Nazis and Stalinist Soviets.
Some authoritarian regimes are more racist than others. The Italian Fascists were not as murderously racist as the Nazis, but racism played a signficant role in Mussolini’s rise and consolidation of power. Throughout the 1920s, Mussolini made racist claims about the global threat from non-whites to whites, and he dehumanized Slavs, Slovenes, and Croats. Before the outbreak of war, Mussolini endorsed the “Manifesto on Race,” which stated: “It is time that Italians proclaim themselves to be openly racist.”
Ruth Ben-Ghiat shows that anti-Semitism did not play a major role in Mussolini’s rise. Only after the Axis pact with Hitler did Mussolini openly champion anti-Semitism.

In 1919, Mussolini asserted that 80% of the Soviet leaders were Jews, and absurdly that Jewish bankers in London and New York City supported the rise of the Soviets. (See the flagrantly absurd lie as signal of authentic championing?) But these claims met with backlash among other Fascists, and Mussolini backed off. 

 

Racism played a significant role in Japanese imperialism, authoritarianism, and the build-up to World War II.

More reading:

Mark Neocleous, Fascism (1997), Aaron Gillette. Racial Theories in Fascist Italy (2002).