i think it is more a comment on the relative lack of weight of a jdversus a

Thu Dec 6 22:50:55 PST 2007

I rarely agree with Earl Maltz about anything; and David Bernstein and I
are hardly political pals.  But I want to come to their defense on at
least one point.  Surely it is reasonable to argue that Brandeis hired
Hill for reasons that are not entirely based on her scholarship.  She
was involved in civil rights policy at the federal level -- that seems
to be a reasonable background for someone in a public policy slot.  She
was an outspoken public intellectual involved in some very  high profile
issues.  

My question is this:  How does her appointment differ from that of other
high profile people with even weaker -- much weaker -- scholarly
records.

Consider for example, the Duane & Kelly Roberts Professor at Pepperdine
Law School.

 A quick Westlaw search found only ONE article by him, in a not very
highly ranked law review.   25 Okla. City U. L. Rev. 813 Oklahoma City
University Law Review Fall, 2000 Symposium: Federalism and the Supreme
Court: the 1999 Term REFLECTIONS ON FEDERALISM.  Again, like Eugene's
study of Hill's work, I have not looked for books or non-law review
articles. But surely one article does get you an endowed chair, unless
you are a famous person, as Ken Starr is.

I am sure we can find scores of people who have tenure at good and great
and not so good and not so great institutions who were hired for things
beyond their scholarship.  Hill may in part be one of them, but as
Eugene shows below, she has a far longer publication record that at
least one prominent chaired professor at Pepperdine.  I would not
suggest Ken Starr got tenure because he is a white man, but maybe that
had something to do with it?  Who knows?

(No doubt he wrote some opinions on the bench, but my sense is that
judicial opinions don't count as scholarship.)

Paul Finkelman
President William McKinley Distinguished Professor of Law
     and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
pfink at albanylaw.edu
>>> "Volokh, Eugene" <VOLOKH at law.ucla.edu> 12/07/07 1:04 AM >>>
Before we accuse fellow list members of racism and sexism, might it be
worthwhile to look at Prof. Hill's scholarship record, at least in a
cursory way?  Prof. Hill was hired by Brandeis in 1999; I take it this
was with tenure, or was followed shortly by tenure, because she had been
a tenured professor at the University of Oklahoma.  Her articles as of
then that I could find on Westlaw (all citation counts include post-1999
citations as well as pre-1999; most of them were indeed pre-1999):

Thomas v. Clinton, in Debating Sexual Correctness: Pornography, Sexual
Harassment, Date Rape, and the Politics of Sexual Equality (1995) -- 1
citation.

Marriage and Patronage in the Empowerment and Disempowerment of African
American Women, in Race, Gender and Power in America 275 (Anita F. Hill
& Emma C. Jordan eds., 1995) -- 6 citations.  (I counted only the
citations to this chapter, not to the whole book, which Prof. Hill
coedited but which included works by other writers.)

A TRIBUTE TO THURGOOD MARSHALL: A MAN WHO BROKE WITH TRADITION ON ISSUES
OF RACE AND GENDER, 47 Okla. L. Rev. 127 (1994) (12 pages) -- 0
citations.

Is The UCC Dead or Merely Languishing?, 26 Loy. L.A. L. Rev. 651 (1993)
-- 4 citations.

SEXUAL HARASSMENT: THE NATURE OF THE BEAST, 65 S. Cal. L. Rev. 1445
(1992) (5 pages) -- 11 citations.

The Relative Nature of Property in the Context of Bankruptcy: Resolution
of a Conflict Between Federal Pension Law and Bankruptcy Law, 40
KAN.L.REV. 643 (1992) -- 1 citation.

Bankruptcy, Contracts and Utilitarianism , 56 Mo. L. Rev . 571 (1991) --
2 citations.

A COMPARATIVE STUDY OF THE UNITED NATIONS CONVENTION ON THE LIMITATION
PERIOD IN THE INTERNATIONAL SALE OF GOODS AND SECTION 2-725 OF THE
UNIFORM COMMERCIAL CODE, 25 Tex. Int'l L. J. 1 (1990) (22 pages) -- 5
citations in law reviews, all before 1999, plus 7 in what seem like
practitioner publications.

A DRAWEE'S RIGHT TO RESTITUTION OF MISTAKEN PAYMENTS UNDER ARTICLES 3
AND 4 OF THE U.C.C.: A PLEA FOR CLARIFICATION, 7 J.L. & Com. 293 (1987)
(34 pages) -- 1 citation.

Perhaps there are articles I missed, in law or in other disciplines, or
citations I missed in other disciplines.  Perhaps there are also books
that I missed, despite checking her Brandeis site (which admittedly
doesn't include older articles, so maybe there are older books it
misses) and amazon, or perhaps there are book chapters that I've missed.
It's certainly possible that I erred in my queries.  And of course I
should acknowledge that counting pages and citations is an extremely
rough cut at measuring marketability; maybe her works on "Social Policy,
Law, and Women's Studies" (which is what she's professor of at Brandeis)
are very good, though some are short, or maybe she had some superb
manuscripts that I haven't seen.  If others on the list have read her
works and can vouch for their excellence, I'd love to hear that.

But I think this suggests that reasonable people who don't care a whit
about Hill's race or sex might still infer that Brandeis was in large
measure influenced by Prof. Hill's having been a cause celebre, and not
solely by her scholarship (which is what I understood Earl Maltz, David
Bernstein, and others to be saying).  Perhaps this inference is mistaken
for one of the reasons I mentioned above, or for some other reason.  But
it's hardly clear why it would be a racist or sexist inference.

Incidentally, I recognize that there's something unsavory about
dissecting a fellow academics publication history on the discussion list
this way -- nonetheless, it seemed to me necessary given the charges
being made about Prof. Maltz.

Eugene

________________________________

	-----Original Message-----
	From: Michael Zimmer <zimmermi at shu.edu>
	To: Earl Maltz <emaltz at camden.rutgers.edu>
	Cc: conlawprof-bounces at lists.ucla.edu;
CONLAWPROF at lists.ucla.edu; DavidEBernstein at aol.com
	Sent: Thu, 6 Dec 2007 11:16 am
	Subject: Re: Justice Thomas's Memoir

	What is your source of information about this?  Unless you come
forward with evidence, this sounds remarkably like a claim that an
African American woman could not be qualified for a chair at Brandeis.

	Michael J. Zimmer
	Professor of Law
	Seton Hall Law School
	One Newark Center
	Newark, NJ 07102
	973.642.8833
	973.642.8194 fax 

	Earl Maltz <emaltz at camden.rutgers.edu> 
	12/05/2007 08:19 PM 

		To
		Janet Alexander <jca at stanford.edu>,
DavidEBernstein at aol.com, zimmermi at shu.edu, jfnbl at earthlink.com 
		cc
		conlawprof-bounces at lists.ucla.edu,
CONLAWPROF at lists.ucla.edu 
		Subject
		Re: Justice Thomas's Memoir	

	Are you seriously claiming that at the time of her appointment
Anita
	Hill had a"written record that...compare(s) with the record of
others
	appointed to similar posts," i.e., chairs at Brandeis?

	At 08:49 PM 12/5/2007, Janet Alexander wrote:
	>Of course Professor Hill came to a lot of people's attention as
a
	>result of the hearings (and by the way, at least as much
because of
	>Arlen Specter's questioning as her own testimony).  What I said
is
	>that it is self-contradictory to say in the same breath that
(a) she
	>expected to gain professionally and hence economically from her
	>testimony and (b) she did not expect that testimony to become
known
	>to anyone outside the Judiciary members and staff.  University
	>appointments processes are replete with layers of review that
	>require appointments to be supported by a written record that
must
	>compare with the record of others appointed to similar posts.
No
	>one who has any familiarity with faculty appointments at
reputable
	>institutions would think such a conspiracy possible.
	>
	>         Janet Alexander
	>
	>At 03:22 PM 12/5/2007, DavidEBernstein at aol.com wrote:
	>>Let's go over this one more time.  Michael Zimmer wrote that
the
	>>logic of the situation is that Hill was telling the truth.
Why?
	>>"Then-Judge Thomas had all to gain by denying Professor Hill's
	>>claim and she had little to gain, but doing her civic duty,
bycoming  forward."
	>>
	>>It's not 100% whether Prof. Zimmer was addressing her initial
	>>claim, made confidentially to the Judiciary Committee, her
ultimate
	>>willingness to come forward and testify against him, or both
	>>(though the context implied to me both).  So I addressed both,
and
	>>showed that in neither case does "logic" dictate that she was
	>>telling the truth (nor does it dictate that she was lying).  I
	>>should note that she had the choice at both points not to come
forward.
	>>
	>>When the allegation was first made, confidentially, Prof. Hill
may
	>>just have been doing her civic duty, or she may have disliked
	>>Thomas for person, ideological, or other reasons.  If the
latter,
	>>than she did have something to gain--personal satisfaction at
	>>helping to defeat Thomas--but also nothing to lose, assuming,
	>>fairly I think that she trusted the committee to keep her
	>>allegations confidential.
	>>
	>>Once the allegations became public, Prof. Hill could have
demurrred
	>>from pursuing them further, or she could do what she did.  At
this
	>>point, Michael Zimmer's post suggests that he still thinks she
had
	>>little to gain.  But she did gain, as is obvious, winning
fame,
	>>fortune and adulation (though also, of course, suffering
attacks
	>>from the right).  And if she had declined to testify, not only
	>>would she not have gained, some people would have surmised
that she
	>>was unwilling to publicly assert her allegations because they
	>>weren't true to begin with, which couldn't have helped her.
	>>
	>>And, to address another of Prof. Alexander's points, Prof.
Hill was
	>>certainly obscure, having no citations in the Westlaw database
	>>(beyond here own two publications and one "thank you") as of
the
	>>end of 1990.  That doesn't make her "unqualfied," but it does
mean
	>>that she would have been highly unlikely (to put it mildly) to
come
	>>to Brandeis's attention but for the Thomas-Hill hearings.
	>>
	>>Brandeis, after all, simply doesn't go out and recruit law
	>>professors for anything.  No one else on Brandeis's legal
studies
	>>faculty is a former law professor,

>><http://www.brandeis.edu/programs/legal_studies/faculty.html>http://ww
w.brandeis.edu/programs/legal_studies/faculty.html,
	>>and I believe the rest all have Ph.Ds, as I believe was true
when I
	>>was an undergraduate there.
	>>
	>>
	>>In a message dated 12/5/2007 5:30:12 PM Eastern Standard Time,
	>>jca at stanford.edu writes:
	>>David Bernstein's original post (see below) said that
Professor Hill
	>>"did gain, big time" in that she is "now a well-known chaired
	>>professor and feminist icon at Brandeis" and that "she had
nothing to
	>>gain, but did gain, big time, doesn't make much sense."  That
is, he
	>>implies that Professor Hill expected to gain professionally
(and
	>>economically) by her testimony.  In the very next sentence, he
says
	>>that she did not expect her allegations to be made public.
So, she
	>>expected a payback in the form of a better job from testimony
that
	>>she was promised would not be made public?  It would be quite
a
	>>conspiracy that could get an endowed chair for an "obscure"
(and by
	>>implication unqualified) professor through the appointments
process
	>>at a university like Brandeis as payback for nonpublic
testimony.
	>>          Janet Alexander
	>>
	>>
	>>
	>>
	>>
	>>
	>>----------
	>>Check out AOL Money & Finance's list of the

>><http://money.aol.com/special/hot-products-2007?NCID=aoltop00030000000
001>hottest
	>>products and

>><http://money.aol.com/top5/general/ways-you-are-wasting-money?NCID=aol
top00030000000002>top
	>>money wasters of 2007.

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