University of Louisville Law Faculty Blog

Legal Injection Case Argued Today


The latest Kentucky case in the Supreme Court spotlight, Baze v. Rees, will be argued today and the Court has decided to provide same-day (but not live) audio of the of the oral argument. This extraordinary treatment only happens on rarely and reflects high public interest in the case. Recently the Meredith v. Jefferson County Board of Education and Guantanamo Bay cases received this attention.

Supreme Court will release the audio recording of oral argument in the case, scheduled at 10 a.m. today, January 7, 2008, shortly after the conclusion of the argument. The audio recording “will be provided to the network pool, which will in turn provide an offsite, simultaneous feed to member news organizations.” My guess is that it will be available on the websites of 24/7 news channels CNN and MSNBC by this afternoon.

UPDATE: From SCOTUSBlog: The transcript of today’s argument in Baze v. Rees (07-5439) is now available here. I still haven't found an audio feed.

Decanal Legacies


 The best deans leave enhanced institutions and positive feelings in their wake.  In other words, they leave strong "legacies" on which their successors can build. At the University of Louisville, even though he has been dead for years, many faculty still speak with reverence regarding the deanship of James Merritt. Lots of other deans have left, or are in the process of creating, similar legacies at other institutions.  Don Polden, Tom Galligan, Steve Smith, Ian Holloway, Bruce Elman could be mentioned. 

What do successful deans have in common? Jim Merritt and David Partlett (formerly of Washington & Lee and now dean at Emory) provide good examples. Both individuals display (or displayed) visions for their institutions, tremendous interpersonal skills, a healthy emotional balance, respect for their colleagues, and an ability to build a working consensus among their faculties.

When I arrived at Louisville, my more senior colleagues frequently told me that Dean Merritt was never taken by surprise by a faculty vote. This was no accident.  Jim regarded himself as a "first among equals," rather than as an "emperor" or a "dictator" or a "boss," and was in constant communication with his "faculty colleagues."  In other words, Jim actively sought to work with his faculty to find ways to push the institution forward.   

Of course, an important aspect of all successful deanships is core self-esteem. A dean who lacks self-esteem is more likely to make decisions based on personal, rather than institutional, considerations.  In addition, a dean without core self-esteem is less likely to do what is right for the institution. As a result, relations with "faculty colleagues" (if, indeed, the dean regards his or her faculty as "colleagues") are likely to be strained or dysfunctional.

Dsyfunctional deans ultimately pay the price, as (unfortunately) do their law schools. In addition, they leave a tattered legacy in their wake. Instead of throwing a "going away" party when the dean steps down, the faculty throws a "gone away" party.

At the new dean's workshop, or so I'm told, the following joke was circulating at one point: A faculty member goes to the dean's secretary and demands to see the dean. The dean's secretary expresses sorrow at being the bearer of bad news, but explains that the dean died last night.  The faculty member goes away, but comes back the next day demanding again to immediately see the dean. Even though the secretary is a bit preturbed at receiving the same request, especially in light of the conversation of the day before, the secretary patiently explains again that the dean has died, and that a meeting is not possible. The faculty member goes away, but returns the following day with the same request that is made somewhat more emphatically. In frustration, the secretary reminds the faculty member regarding the prior conversations, and inquires how it is possible to convey the fact that the dean has died. The faculty member responds: "Oh, I got it the first time.  I just wanted to hear the good news again."  

More on Decanal Narcissism


A colleague at a California law school sent me the following missive regarding his law school's experience with a narcissistic dean:


I was reading your missive on decanal values. Quite interesting! I would characterize our former dean's relationship with the faculty as adversarial. In our case, it did not have an appreciable impact on the dean's power. That may reflect poorly on us as a faculty or the downside of a private-freestanding law school that is dominated by a board of trustees selected by the person the board is supposed to oversee. My take on the experience was that it was uncomfortable, but not unbearable. The dean becomes a force opposed to change because he can't lead the faculty to agree to change. Eventually he moves on.

Mental Illness in the Academy

Next week my review of Professor Elyn R. Saks' acclaimed book The Center Cannot Hold:  My Journey Through Madness will appear in the Hastings Women's Law Journal (it should appear on my SSRN site on my Brandeis School of Law Web page before then).  In that review I discuss my unique perspective on Professor Saks' story, as I am the only legal academic other than Professor Saks to acknowledge having a severe mental illness (in my case, bipolar disorder, formerly known as "manic depressive illness").  Like Professor Saks, I have been hospitalized multiple times for mental illness, take antipsychotic medications (with side effects like tardive dyskinesia, weight gain, sedation, high cholesterol, etc.), and was granted tenure and full professor status by a law school faculty that had no idea I have any mental illness, much less a severe one like bipolar disorder.  A fuller version of my story will appear in an article entitled Walking the Tightrope of Bipolar Disorder:  The Secret Life of a Law Professor which will appear next spring in the Journal of Legal Education.  Going public like Professor Saks was a hard decision, but I believe disclosures like we have made are necessary in the battle to create a world free of stigma and discrimination against those with severe mental illness.

More on Decanal Virtues


As I mentioned previously, the purpose of this blog is to write about issues related to deans and deaning, and I generally try to avoid writing about individual deans. However, in some instances, individuals are particularly worthy of mention. In a prior posting, I mentioned former Dean Thomas Galligan of the University of Tennessee.

Another extraordinary dean was Tom Read who may hold the modern record for deanships (five). Tom deaned at a large public law school (the University of Florida), as well as at an array of other types of institutions (Chicago Kent, Richmond, S. Texas). 

Tom, who I had the great pleasure to serve under for one year on a visiting basis, used to say that a dean who took two deanships could be referred to as a "recidivist." Tom referred to himself as a "serial dean."

Tom was absolutely extraordinary for a number of reasons.  First, Tom was able to inculcate in his faculty a "rising tide raises all boats" philosophy. As a result, rather than competing against each other, the faculty seemed to be working together towards a common objective.  In a profession like law teaching, where individuals function in some respects so individualistically, this was an extraordinary achievement.  In addition, by his enthusiasm and support, Tom enabled and encouraged faculty to perform to the best of their abilities.

During my visit, I came to understand the regard with which Tom was held, not only by his own faculty, but also the greater law school community. Tom, who attended SEALS (Southeastern Association of Law Schools meetings) as dean at Florida and Richmond, inquired whether South Texas College of Law might be able to join SEALS. My suggestion that Houston and Texas might be more Southwestern looking than Southeastern looking was met with his argument that Houston is only 90 miles from Louisiana.  The long and short of it is that I presented Tom's request to SEALS' membership. Although a number of Steering Committee members had doubts about whether Houston could legitimately be defined as "Southeastern," a large majority were willing to admit STCL and the other Houston schools based on the high esteem in which they held Tom.   

Decanal Narcissism


In his terrific article, The Seven Deadly Sins of Deaning, Dean Steven Smith identifies decanal narcissism as one of the deadliest of sins.  He refers to it as one of those sins that will rot a deanship and prevent a faculty from moving forward.

In an ideal world, there will be mutual respect between a dean and his/her faculty.  Indeed, the best deans find ways to encourage and promote their faculty, and help them excel.  In a prior posting, I mentioned Dean Tom Galligan (now President Tom Galligan) who was formerly the dean at the University of Tennessee College of Law. Tom was one of these rare individuals who had a strong relationship with his faculty, and who actively promoted the faculty's interests.  

Unfortunately, when a dean suffers from narcissism (obviously not the case with Tom Galligan), there is a significant (and likely) risk that the dean will place his own narcissistic interests above those of the institution.  If that happens, the result can be deadly and the psychology of an institution can be absolutely destroyed. The self-serving narcissist dean can affect both a faculty's morale and productivity.  And, if a narcissistic dean continues in office over a long period of time, the deanship can severely damage the institution.

Of course, institutionally, a narcissistic dean may come with a silver lining.  In some instances, an incompetent or malevolent dean may divide a faculty and create severe schisms or divides.  In a few instances, such a dean may unwittingly help to create a more cohesive faculty. The narcissistic dean may stand as a common enemy for the faculty, and may unify the faculty against that enemy (who actually might come to regard the dean as a "foreign invader" if the dean came from the outside). Under such circumstances, the dean may have the beneficial effect of healing old rifts, and this "halo" effect may continue (in the sense of improved faculty relationships) once the narcissist is gone. 

In my 26 years of teaching law, I have seen a range of deans.  However, almost without exception, one knows that a deanship is in trouble when the dean is no longer the leader of the institution. When a dean is a respected leader, the faculty may follow the dean in a suggested course of action simply because they respect the dean's judgment (even if they may have mild reservations).  In a troubled deanship, the dean's support produces the opposite effect.  Not often, but I have seen situations when the dean's support for a proposition would guarantee a number of votes against the dean's position. I believe that this is what Steve Smith meant when he said that narcissism will "rot" a deanship and prevent an institution from progressing.

As Professor Ron Krotoszynski (Washington & Lee University School of Law, but visiting at Alabama this year) said, a dean can get away with holding her faculty (individually or collectively) in contempt, but she better not show it.  I might add an addendum to this sentiment: a dean might place her own personal interests ahead of the institution's interests, but she had better not reveal that bias either.   


"Credentials of Legal Writing Faculty at Hiring Time"


Susan Leimer and Hollee Temple have recently posted on SSRN their article Did Your Legal Writing Professor Go to Harvard?: The Credentials of Legal Writing Faculty at Hiring Time.  It is forthcoming in our very own University of Louisville Law Review (formerly Brandeis Law Journal).

It was heartening to read about how well-qualified our nation's legal writing faculty is.  Like me, 28% of legal writing faculty hold a degree from a top-twenty law school, 67% were on law review, over a third clerked for a court, over a third practiced in more than one type of law practice, and over half have more than three years of law practice experience.

If you are interested in this topic, see the article to learn more about the methodology used by the authors and about how the credentials of legal writing faculty compare to those of doctrinal faculty.  A follow-up study that uses a large enough random sample of legal writing and doctrinal faculty to ascertain statistically significant differences, delves into more detail on how credentials of legal writing professors compare to doctrinal faculty at schools of comparative rank, and sheds light on the credentials of those legal writing professors who are tenure-track or tenured would be interesting.

Using Editors to Review Legal Writing?


Here is a question raised by Mister Thorne after reading my article on Editing Tips for the Busy Attorney.


Question: why not also advise lawyers to have their work reviewed by 

editors, folks trained to spot those embarrassing (and potentially 

costly) errors that attorneys (like all writers) sometimes make?


I am interested in hearing your responses to this question.  I will forward them on to Mister Thorne.


I believe that good lawyers are good editors.  Thus, lawyers should be trained to spot writing errors.  And, as suggested by my article, each lawyer should use reliable tactics to edit her own work. 


Of course, even a well-trained editor may have difficulty spotting her own writing errors.  This is why I suggest having a colleague or someone else review your legal writing. 


I think that if expenses warrant paying someone else to review the work, then an editor could certainly be one of those a lawyer has review the work, especially if the work is of a non-technical nature.  If the editor is not trained in the law, the authoring lawyer can simply review any suggestions made by the editor in the same manner she would review any edits by a non-lawyer.  There are, of course, some legal-writing experts who are in the editing business.  I personally know Kiko Korn  and Cassandra Hill and would certainly consider using their services if expenses allowed. 

Enforcing Forest Protection Laws in Mexico

Last week, Mexican police conducted the largest raid on illegal logging operations in the nation’s history. Raiding 19 sawmills, police arrested 56 people and seized roughly 6,600 tons of illegally harvested timber. The raids occurred around the Monarch Butterfly Biosphere Reserve in Central Mexico.

Monarchs migrate to Mexico in winter, where they depend on a forest that has been severely depleted by organized illegal logging. During a cold spell in 2002, more than 250 million monarchs died due, in part, to the dwindling forest canopy.

Illegal logging is a threat not only to the butterflies, but also to the people of the area. International NGOs, such as the World Wildlife Fund, have supported a growing local opposition to the illegal industry. Such opposition can be quite dangerous, however, as the murder of local environmentalist Aldo Zamora last summer demonstrates.

Last week’s raids came shortly after Mexican President Felipe Calderon announced a plan to add over $4 million to efforts that have reduced illegal logging in the reserve nearly 50 percent over the last year. Although just a few years ago residents frequently complained that authorities failed to follow-up on tips of illegal harvesting, it seems that the Mexican government is now taking the threat seriously and realizing ecotourism and other benefits of ensuring the forest remains intact.

Pre-Impact Emotional Distress in Death Case

Wrongful Death cases have traditionally had lower damage awards then serious injury awards. There are, at least, two reasons for that. Serious injury cases usually have substantial future medical bill awards. In addition, serious injury cases have long term pain and suffering awards. For wrongful death cases, there are no pain and suffering damages. If the deceased lived for some period of time before dying, then the pain and suffering while still living could be recovered in the survival actions. For the deceased who died instantly, there would be no pain and suffering damages.


In other jurisdictions, plaintiff's lawyers have sought to recover pre-death pain and suffering in a wrongful death case. The theory is that the deceased saw a horrible accident coming and suffered substantial emotional distress prior to actually dying. That claim has been allowed in some jurisdictions.


Kentucky has ruled on that issue in Steel Technologies, Inc. v. Congleton, 234 S.W.3d 920 (Ky. 2007). The deceased was killed in a  car accident and appeared to die instantly. The plaintiffs alleged that the deceased saw the accident coming and suffered substantial pre-death emotional distress. The Kentucky Supreme Court ruled that this emotional harm would have been the result of trying to recover for negligent emotional distress. In Kentucky, negligent emotional distress cases require some impact. Although the plaintiffs alleged that there was impact and that it occurred after the emotional distress began, the Court ruled that was not a correct reading of the law. In Kentucky, the emotional harm has to be caused by the impact. Since the emotional harm was pre-impact, there could be no recovery.


There was some hint of possible change in the future in Kentucky law. The Court noted that this case was not strong on the evidence of actually showing that the emotional distress. The Court suggested that the requirement of impact might be lifted in a case where there was reliable evidence of demontrable mental distress resulting in a medical injury proven by expert testimony. 234 S.W.3d at 930.


Plaintiff's lawyers in the future may want to consider raising a negligent emotional distress case where there is clear and substantial evidence of mental distress resulting in medical injuries. If that evidence can be found, the Court will consider lifting the impact requirement. Such issues could apparently be raised as either a simple negligence case resulting in the emotional harm, or a pre-death emotional harm case.