The Tenth Circuit Same Sex Marriage Panel

For those of us who have been closely following the same sex marriage cases, this is an exciting month to live in a Tenth Circuit state. A three-judge panel of the court will hear an appeal from the district court decision in Kitchen v. Herbert striking down Utah’s ban on same sex marriage on Thursday April 10, and will hear an appeal from a district court decision in Bishop v. Smith similarly striking down Oklahoma’s ban on Thursday April 17.

As is often the case with cases reach the federal appellate level, intense scrutiny focuses on the three judges who comprise the panel. Overall, the Tenth Circuit is fairly evenly split with respect to the party of the president who appointed its judges: the court has five judges appointed by Republican presidents and — with the recent confirmation of Carolyn Hughes in Utah — six judges appointed by Democratic presidents.

Against that backdrop, the panel is selected by a random computerized lottery.  In this case, the judges selected were Judges Paul Kelly, Carlos Lucero, and Jerome Holmes.  Speculation about how the judges will rule only takes us so far, but it’s also fun up to a point, and so I thought I’d offer a few brief thoughts about the panel for those who are interested. Continue reading

Male Lawyers Dressing Badly

When I was applying for jobs after law school, I did a few interviews with various divisions of the Department of Justice.  At one interview, the male attorney interviewing me decided to come sit on my side of his desk.  Our chairs were angled toward one another. He then decided to put his feet, legs crossed at the ankles, up on the desk. I can only assume this was an effort to generate a we’re-just-two-buddies-hanging-out interview dynamic. His pants were made out of thin, light-colored fabric.  As a result, I spent the entire interview looking at the outline of his testicles.

Also not long after law school, while I was clerking, a male attorney made a court appearance in a thin, tight polo shirt.  I could literally see his nipples from a distance of twenty feet. Moreover, he rubbed his nipples absentmindedly throughout his appearance, both while he was talking and while he was simply sitting at counsel table. I’m not quite sure what it is with male lawyers and the contemplative nipple rub, but I have seen similar behavior from male lawyers on a number of occasions, beginning while I was in law school and continuing to the present.

I can certainly continue in this vein. Male lawyers wear pants in aspirational sizes, with the result that the outline of their genitalia is clearly on display.  Male lawyers wear suits in linen and other thin fabric that I’m sure is very comfortable, but that – in certain lighting – is also exceedingly translucent. Male lawyers wear thin shirts that cling to every curve of their torso, leaving little to the imagination. Continue reading

The False Promise of the Master’s House

On April 5, 2014, I had the pleasure of participating in a panel at the 2014 Yale Critical Race Theory Conference called “The Master’s House: Navigating Race in Institutions of Power.” My co-panelists were Thandeka Chapman, Randall KennedyLuke Harris, and Cheryl Harris.  I reproduce my remarks here, edited for a written rather than spoken format.  I’ve also added links to support some of the propositions I describe, along with some of the materials from a Power Point presentation that I used to illustrate my remarks.

Hello everyone, and I’m so pleased to be here today.  As an entry point into our discussion of the master’s house, I’m going to discuss a piece of legislation recently passed by the California Senate that would have paved the way to repeal Proposition 209′s ban on race-conscious admissions in higher education. The bill was called SCA5, and it would have allowed voters in November to decide whether to eliminate that provision of Prop 209.

After the California Senate passed the legislation, it went to the state Assembly. But a few weeks ago, the Assembly withdrew the legislation, meaning that California voters won’t consider it in 2014. One significant reason for withdrawing the legislation was that three Asian American members of the house, in response to their Asian American constitutiencies, reversed their initial support of SCA5. Continue reading

Sanders on Online Harassment in Academia

I wanted to draw readers’ attention to this piece by Joshunda Sanders about navigating online harassment as a woman of color in academia.  Sanders skilfully weaves together a discussion of several recent instances of harassment, describing the circumstances and reactions to each one.  And she concludes with something that too few articles about online harassment discuss.  That is, she considers how people who are neither harassers or targets of harassment should behave in the face of harassment.

I’ve also added Sanders’ article to the non-academic cyberharassment bibliography I created here.

Privilege in the Checkout Line

I used my race and class privilege today.

It happened at Whole Foods. (Please note that we’re already in class privilege territory.)  A lot of days I go for an early-morning run in my neighborhood.  Depending on my route, I sometimes plan to finish my run either at Whole Foods or Safeway and do my grocery shopping.

So today I went to Whole Foods, picked out my food, and got in one of the checkout lines. Not until the cashier had scanned most of my stuff did I realize that I’d left my wallet at home. I was embarrassed, and apologized about seventeen times to the cashier and the people in line behind me, explaining that I’d come directly from a run. The cashier was nice and said she would ring everything up and I could run home, get my wallet, and my groceries would be waiting at customer service when I got back. Continue reading

A Brief Note About My Law School

Apparently there are some rumors going around about buyouts at the University of Denver Sturm College of Law, where I teach.  While I’m junior, as-yet untenured, and therefore not privy to every administrative conversation, for whatever it’s worth, these two posts on TaxProfBlog and Brian Leiter’s blog are both entirely consistent with my understanding of the situation.

UPDATE 3/28/2014: Based on information my faculty received today, the school would like nine faculty members to take retirement incentive packages over the next five years. The packages are available to tenured faculty who have been teaching for more than twenty years, and my understanding is that the options are pretty flexible (for example, you could agree now to take a package in two years).  And the target number of retirement incentive packages would be reduced if, for example, someone decided to pursue a different route on their own.  So, just to reiterate in light of a little confusion flowing from the Above the Law story, there are no buyouts of untenured tenure-track faculty, and no untenured tenure-track faculty are being asked to leave. I tend to think Dan Rodriguez (Northwestern) has a good take on how to think about situations where faculties decrease in size to match their student bodies.

My Tumblr

As some readers already know, I have a tumblr.  While I’m still getting it off the ground, it will ultimately includes short blurbs about everything I’m doing (writing, teaching, pro bono, etc.).  So it serves a different function from the longer-form material I post here.

For visual variety, it will also include pictures of roads, not for any other reason except that I like them.  There’s just a few so far and they’re all tagged “roads.”  Enjoy!

Chinese Translation: Why Asian Americans Should Support Affirmative Action

I have now made available a Chinese translation of my piece on why Asian Americans should support affirmative action.  The translation is available here.

Please note that the piece was published in Chinese before SCA5 was temporarily removed from the California legislature’s agenda, while the English version on my blog was published after SCA5 was removed.  There are some minor phrasing discrepancies as a result, but the substance of the piece is the same.

Internships and Employment Discrimination

“Imagine the greatest amusement park you went to as a kid.  Now imagine nothing like it and a million times better. That’s where we are.”

Nick, played by Owen Wilson, in “The Internship”

As the epigraph suggests, Americans tend to mythologize our internships as rites of passage. We see them as unpaid positions that, while superficially menial and ostensibly short-term, present the opportunity for an ambitious young person to impress a superior and win permanent employment.

Yet the reality of internships is quite different. Interns often work long hours in grueling conditions with no realistic possibility for advancement. Indeed, in many instances the only similarity between the fantasy and the reality is the lack of pay.

Unsurprisingly, interns are beginning to protest their working conditions. For example, the plaintiffs in a recent federal lawsuit, Glatt v. Fox Searchlight Pictures, successfully challenged the lack of compensation for their work as interns.  The court held that they were “employees” within the meaning of the Fair Labor Standards Act and New York Labor Law and were thus entitled to minimum wages and overtime. Continue reading

Why Asian Americans Should Support Affirmative Action

Affirmative action in higher education remains one of the most contentious issues in America today. The U.S. Supreme Court considered affirmative action last term and will do so again this term.  California’s legislature recently considered a bill, SCA5, that would have paved the way for voters to overturn Proposition 209, the state’s existing ban on race-conscious admissions in higher education. Although the California Senate passed the bill, members of the House recently announced that the bill would not move forward in time for voters to consider it in 2015. But the issue remains very much alive in California and will likely be reconsidered for 2016.

The debate over affirmative action raises unique considerations for Asian Americans.  While research has shown that a substantial majority of Asian Americans support affirmative action, some vocal opponents of SCA5 have claimed the bill would have dramatic negative consequences for Asian Americans applicants.  These claims are unfounded.  Speaking both as a law professor who has taught in the UC school system and as a proud Asian American, I believe that Asian Americans should support SCA5 in the California legislature and affirmative action in higher education nationwide. Here are ten reasons: Continue reading