'Clinton' honorific draws fire at Arkansas law school

"The Clinton Law School"
was not to be.

An op-ed in The Arkansas Democrat-Gazette by Mike Masterson on Saturday reported a mess at the "William H. Bowen" law school at the University of Arkansas, Little Rock, since a professor there started calling himself the "William J. Clinton Professor."  The ADG quoted an email from my friend and colleague, Distinguished Professor J. Thomas Sullivan, obtained under the Arkansas Freedom of Information Act (FOIA):

I don't recall when the Law and Public Policy Professorship was re-named for President Clinton.... I first noticed this reference in the signature block on an email sent by ["Dean Emeritus and William J. Clinton Professor of Constitutional Law and Public Service"] John DiPippa in March.

This professorship was originally designated as the Law and Public Policy professorship and was created, as I recall, after we moved into the current building. There was discussion that the Law School itself would be named for Clinton, but that was scuttled because there was serious concern that he would be subjected to some adverse legal action ... for giving false testimony in the civil action brought by Paula Corbin Jones....

I couldn't find any reference to the professorship as the "William J. Clinton Professor of Constitutional Law and Public Service" on the Bowen web site. In fact, John's faculty page describes him as: Dean Emeritus and Distinguished Professor of Law and Public Policy.

It may be that I missed an announcement ... but I am not aware of the re-designation of the professorship in the name of William J. Clinton or the reference to "Constitutional Law and Public Service." Had this been brought to the faculty for discussion ... I would have opposed the change in designation for a number of reasons:

First, President Clinton was disbarred from practice before the United States Supreme Court and the Arkansas courts following the impeachment trial, in 2000 or 2001. I believe that John took the opportunity to defend him against disbarment at the time, but conceded that some form of censure was appropriate, being quoted at the time by The Washington Post: ... "But DiPippa also said Clinton should be punished more severely because of his position. He suggested a suspension of his license for some period of time. Disbarment ought to be reserved for what I've called incorrigible lawyers—lawyers who are just going to repeat their offenses and continue to harm clients, he said." ....

I simply do not think it appropriate for a law school to honor a disbarred lawyer—it strikes me as hardly sending a deterrent message to law students or practitioners. But beyond the disbarment, I have grave concerns about Bowen being aligned with significant policy decisions taken by Clinton that have [caused] irreparable damage to our legal system.

The mass incarceration of Americans, particularly affecting the poor and African American communities, was accelerated during the Clinton administration in an effort to deflect potential Republican claims that Democrats were/are soft on crime....

Second, the 1994 law shaped Democratic Party politics for years. Under the leadership of Bill Clinton, Democrats wanted to wrest control of crime issues from Republicans, so the two parties began a bidding war to increase penalties for crime. The 1994 crime bill was a key part of the Democratic strategy to show it can be tougher-on-crime than Republicans.

Of particular importance, Clinton signed the Anti-Terrorism and Effective Death Penalty Act of 1996 which effectively eliminated federal habeas corpus as a protection against state court criminal convictions tainted by procedural irregularities and failure of state courts to correctly apply U.S. Supreme Court precedent in disposition of claimed violations of federal constitutional protections.

Sullivan is right about the naming of the law school; I was there then, too.  The money was coming from Bowen, an Arkansas banker—over faculty objections that UALR was selling itself to a donor for less money than any law school had ever taken for the honor—and Bowen's name was substituted when Clinton's became politically problematic.  In the op-ed, Professor Rob Steinbuch, a colleague of Sullivan's and co-author of mine on transparency research, confirmed Sullivan's take on the unilateral impropriety of the name change.

Sullivan wrote further:

Of general importance is the usurpation of faculty governance by the law school administration. At a minimum, the question of re-designating a named professorship should be announced to the faculty for purposes of eliciting legitimate concerns. The faculty originally adopted the rule regarding named professorships that was altered to give the dean sole authority for designation—apart from specific directions given by a donor.

I don't recall whether there was faculty input in altering terms of the original rule, but I do recall the faculty were generally notified of the current rule, as published. In either event, the legitimate authority of the faculty to advise and consent, if not promulgate, a policy that may have significant consequences for the law school in terms of our mission and reputation, shouldn't be dismissed by expediency or political interests of a dean, advisers or supporters answering only to the dean.

Sullivan has his own history with named professorships at UALR.  He was stripped of his in the past for the sin of dissent.  The professorships are better measures of academic-political compliance than of merit.  They're awarded only for five-year terms so as to incentivize continuing obedience to the dean among tenured faculty who otherwise might be hard to wrangle.

Such is academics.  My school, too, punishes anyone who dares not be a "team player," or fails to dumb down her or his own performance to the median.  The problem of "workplace mobbing" to enforce group-think and tame high achievers is so severe in academics that sociologist Kenneth Westhues wrote books about it.

Sullivan publishes on ethics, criminal appeals, and seeking Supreme Court certiorari

My friend and colleague Professor J. Thomas Sullivan has published, Ethical and Aggressive Appellate Advocacy: The Decision to Petition for Certiorari in Criminal Cases, 51:3 St. Mary's L.J. 585 (2019).  The article is especially salient in light of the U.S. Supreme Court's recent decision requiring unanimous juries to convict in criminal trials for serious offenses.  Here is the abstract.

Over the past six decades, United States Supreme Court decisions have dramatically reshaped the criminal justice process to provide significant protections for defendants charged in federal and state proceedings, reflecting a remarkable expansion of due process and specific constitutional guarantees. For criminal defendants seeking relief based on recognition of new rules of constitutional criminal procedure, application of existing rules or precedent to novel factual scenarios, or in some cases, enforcement of existing precedent, obtaining relief requires further action on the Court’s part. In those situations, the Court’s exercise of its certiorari jurisdiction is the exclusive remedy offering an avenue for reversal of conviction or order vacating the sentence. Petitioning for review by writ of certiorari is essential to the defendant’s chances for obtaining relief and is what might be characterized as the “final tool” in the appellate lawyer’s “toolbox.” There are at least five scenarios in which the petition for writ of certiorari is critical, and counsel must be aware of circumstances dictating strategic decisions that need to be made in order to protect the client’s options for relief in the direct appeal and post-conviction processes.

As Sullivan explains in footnote:

This is the third in a series of articles addressing appellate practice from a different perspective than that usually taken by appellate courts with respect to counsel’s duty in representing the client. It differs from Chief Justice Warren Burger’s approach to attorneys serving as an officer of the court, as he expressed while writing for the majority in Jones v. Barnes, 463 U.S. 745 (1983). For the author’s prior articles addressing a more aggressive approach to appellate advocacy than that taken by the Jones majority, see J. Thomas Sullivan, Ethical and Aggressive Appellate Advocacy: Confronting Adverse Precedent, 59 U. Miami L. Rev. 341 (2005), and J. Thomas Sullivan, Ethical and Aggressive Appellate Advocacy: The “Ethical” Issue of Issue Selection, 80 Denv. U. L. Rev. 155 (2002).

See also the multi-talented Professor Sullivan recently playing Taps.

Law prof joins 'Taps Across America,' honors Texas soldier, attorney, Justice Floyd A. Shumpert

My longtime colleague, mentor, and friend, Professor J. Thomas Sullivan, joined Monday's "Taps Across America" remembrance (Facebook), organized by CBS News correspondent Steve Hartman.

Justice Shumpert

Emphatically, if unnecessarily to my ear, asserting his amateur proficiency, Professor Sullivan played especially to honor his father-in-law, Floyd Allen Shumpert.  In 2008, Professor Sullivan dedicated a law review article to Justice Shumpert, writing:

This article honors my father-in-law, Floyd A. Shumpert of Terrell, Texas, who served as an Associate Justice on the Texas Court of Appeals for the Fifth Judicial District from his appointment in 1983 until his defeat in the 1984 general election. Judge Shumpert began his career in public service following his return to Kaufman County, Texas, after World War II. During the War, he served in the 8th Infantry Division, 28th Infantry Regiment, 2nd Battalion of the United States Army. He suffered a severe injury requiring amputation of his lower leg when he stepped on a land mine in the Huirtgen Forest in Germany only a few days before commencement of the German counter-offensive known today as the Battle of the Bulge. He was awarded the Silver Star and Purple Heart. Upon his return from Europe, he was elected County Clerk and later, after earning his law degree from Baylor University, County Judge. He left the bench for private practice for over fifty years in Kaufman County, interrupted only by his appointment to the court of appeals. He is the most courageous and the kindest man I have ever known.

J. Thomas Sullivan, Danforth, Retroactivity, and Federalism, 61 Okla. L. Rev. 425, 425 n.* (2008) (direct download).  The video is © 2020 J. Thomas Sullivan, used here with permission.

Arkansas profs champion academic freedom as bipartisan cause

Most recently in June, I wrote about the faculty lawsuit against the University of Arkansas System to protect academic freedom, as the university tries to cut back on tenure protection for both past and future hires.  The case is tracked by Professor Josh Silverstein, at his blog, Jurisophia, where the most recent filing is a September reply brief in support of defendants' motion to dismiss.

I had lost track in my inbox of this short segment (click box below) from Fox News in June, below, in which Arkansas named plaintiffs, my friend and mentor Professor-Attorney Tom Sullivan among them, schooled anchors on how academic freedom and tenure should be a bipartisan cause.



The case is Palade, Borse, and Sullivan v. Board of Trustees of the University of Arkansas System, No. 4:19-cv00379-JM (E.D. Ark. complaint filed May 31, 2019).

I've freshly endured my own reminder at UMass Law of how readily academics turn on each other.  As I nurse the knife wound in my own back, I find myself re-sensitized to how American university administrators today exploit the ruthless faculty penchant for self-preservation to further the faculty's own fall and the rise of bureaucratic hegemony in its place.  Ultimately if indirectly, the most devastating impact of this dynamic is visited on the students who should be the beneficiaries of the educational mission.