While the First-Amendment gets a lot of the constitutional attention in craft beer law in terms of advertising restrictions, another constitutional issue has been stealing some of that focus recently.  More specifically, the Dormant Commerce Clause has been the subject of several high-profile litigation matters across the country. To be transparent, the Dormant Commerce Clause is the subject of a new law review article that I am working on for the summer, but I digress.

So what is the Dormant Commerce Clause? In fact, it is no clause at all. Rather, the Dormant Commerce Clause has been inferred by the Supreme Court as a restriction on states’ ability to favor in-state commerce over out-of-state competitors. The Commerce Clause grants Congress the power to regulate interstate commerce; but the Dormant Commerce Clause acts conversely and prohibits states from favoring their own at the expense of out-of-state actors through either prohibitions or unduly burdening interstate commerce. Boiled down and simplified, any state law that affects interstate commerce must not (1) discriminate against out-of-state competition or favor in-state actors, and (2) must not “unduly burden” interstate commerce. There are a few notable exceptions for important local interests like health and safety.

How does the Dormant Commerce Clause impact craft beer? Most, if not all, states prohibit beer manufacturers from shipping beer out of state and prohibit importing alcoholic beverages without going through a licensed wholesaler/importer. This obviously impacts interstate commerce by favoring in-state manufacturers over out-of-state manufacturers. As one example, California Business & Professions Code section 23661 prohibits direct shipments of alcoholic beverages from manufacturers outside of California into California without much procedural morass and licensing.  See also Bus. & Prof. Code § 23661.3 (allowing direct shipments of wine only if the manufacturer complies with wine shipment permitting requirements). But California breweries cannot directly ship beer to consumers outside of California, and breweries outside of California cannot directly ship their beer to California consumers.  Does that seem fair? Does it seem like favoring one group over another?  It should.

Several lawsuits have popped up recently concerning the direct shipping conundrum, and each of them have raised the Dormant Commerce Clause to argue that such laws disfavor out-of-state manufacturers or that they unduly burden interstate commerce. The United States Supreme Court recently denied certiorari in Lebamoff Enterprises, Inc. v. Whitmer which argued the Dormant Commerce Clause prohibited Michigan’s restrictive import/export laws that allows in-state retailers to sell wine online but prohibits out-of-state retailers from doing so.  See Mich. Comp. L. § 436.1203(3)(15); see also Lebamoff Enterp., Inc. v. Whitmer, — U.S. –, 2021 WL 78088 (denying certiorari).  In addition, the Ninth Circuit just this week upheld California’s Section 23661 that requires retailers to source their alcohol from in-state wholesalers by affirming a District Court’s dismissal of the Dormant Commerce Clause challenge.  See Orion Imports LLC v. Appelsmith, 2021 WL 733286.

There is at least a circuit split regarding whether the Dormant Commerce Clause prohibits such regulations, and the Supreme Court has written in the past that such conduct at least arguably violates the Dormant Commerce Clause.  See Granholm v. Heald, 544 U.S. 460, 487 (2005).  It is important to note that the precedents all concern wine. Why is it that wineries can ship between states (at least sometimes) but breweries cannot? Stay tuned for a forthcoming law review article this summer that explores this topic in-depth and argues that such laws do in fact violate the Dormant Commerce Clause.

The law school at the William and Mary College is the very definition of “Old School” — it has been around for quite some time (indeed, it is the oldest law school in the nation, sorry, Ivies). The Quick Take, a new law blog produced by the students and faculty at the Brigham-Kanner Property Rights Project at the Law School, has, by contrast, a much newer pedigree. But we don’t think that holds us back, and we’re okay being the new kid on the block, because we’re publishing The Quick Take to support the mission of the Law School’s Property Rights Project (now in its 15th year) to “promote the exchange of ideas between scholars and members of the property rights bar through lectures, an annual conference, and publications.”

The Quick Take a means to disseminate information about the Project’s work, to keep current on new and important developments in property rights law, and to add to our understanding of the law. Topics we’ll cover include the annual Brigham-Kanner Property Rights Prize and Conference, takings and eminent domain (hence our title), cases, legislation, and even careers in Dirt Law (something that law students should always be thinking about).

The blog is produced and published by students and alumni of the Law School – with faculty supervision and guidance – and will also function as a learning platform. No better way to learn about the law than to follow new developments and write about them.

So stay with us, follow along, and join in.

 

I remember two things from working as an intern at OSHA: accidents happen all the time and safety is usually an afterthought. The leading cause of death for people aged 1-44 is unintentional injury; accidents. For people aged 10-34, suicide is number two.

So when I read “Reducing the Stigma: The Deadly Effects of Untreated Mental Illness and New Strategies for Changing Outcomes in Law Students,” the statistics seemed relevant. Well, sort of anyway. I kept obsessing over one line of the law review article:

CNN reported that suicide by occupation (as calculated by the CDC) lists lawyers in the top five.

What CNN actually reported was that “[l]awyers ranked fourth when the proportion of suicides in that profession is compared to suicides in all other occupations in the study population (adjusted for age)” (emphasis added). But CNN does not reference the report from the CDC. The only regular CDC publication regarding suicide and occupation is the Morbidity and Mortality Weekly Report (MMWR). Also, yikes.

Before looking at the data, it is important to note that these statistics are based on civilian, noninstitutionalized, working persons aged 16-64. This means we already have gaps (military, institutionalized, unemployed, and possibly incarcerated).

When compared by sex, male-bodied people are committing suicide at over 3x the rate of female-bodies people. The table below shows the the rates by sex for selected occupations with highest rates (suicides per every 100,000 people).

Occupation Male Occupation Female
 Legal 16.3  Legal 7.9
 Average 27.4  Average 7.7
 Fishing & Hunting Workers 119.9  Artists & Related Workers 45.5
 Artists & Related Workers 93.5  Laborers & Freight, Stock, & Material Movers (Hand) 20.9
 Structural Iron & Steel Workers 79.0  Personal Care Aides 12.1
 Automotive Service Technicians & Mechanics 64.8  Retail Salespersons 11.5
 Chefs & Head Cooks 47.8  Wait Staff 11.3
 Farmers, Ranchers, & Agricultural Managers 43.2  Registered Nurses 10.1

Maybe something changed between 2014 and the current CDC data. Maybe I’m looking at different data. What I’ve found makes me think in a different direction: what impact does the law have on the suicide rates of other occupations?

For example, let’s pretend we are part of a deep sea fishing crew chasing crabs in the Pacific.

Statistically, deep sea fishing crew members are committing suicide at 4x the male average (or 12x the female average). What safeguards have been put into place? Is there annual screening? Victim compensation funds? 10-year plans for industry reform? I know everyone wants to buy king crab at Costco, but don’t we have an obligation to look out for these vulnerable people?

A gross oversimplification of the English common law system is that the law aims to punish evil and protect property. More often than not this gets shunted into the categories of criminal and civil law. In the age of monarchy and feudal obligations, the legal profession was relegated to an even smaller minority of literate people. Often times this minority was composed of clerics from which we get the word “clerk.1” The legal system was extremely formalized and even minor derivations from the prescribed form may result in a case being tossed out. The power of the law was limited in the types of remedies it could provide. To achieve greater fairness or equity, at least since King Edward IV the Crown established the court of Chancery to adjudicate a variety of property cases2.

In England, the Chancellor was a special judge appointed by the Crown to oversee these cases. The Lord chancellor still exists in England to this day. The Chancery courts were different from the “courts of law” in evidentiary requirements, procedure, and most notably the relief they could provide. The Chancery focused almost exclusively on issues of property and contract, thus the remedies are focused on those issues. Equitable remedies included injunctions, specific performance, rescission of contracts, and restitution. For example, if you entered into a contract for the sale of land and a person refused to honor that contract the Chancellor could force the sale. Another example is if a neighbor is repeatedly violating your property by stealing your fruit the court of Chancery could issue an injunction on the neighbor. If the neighbor violated that injunction they could be subject to punishments for contempt of court.

In the United States, the courts of Chancery became fused together with courts of law. Thus, if an individual is seeking both monetary damages, which is a function of law, and an injunction, which is a function of equity, they can achieve both in a single court. A notable exception is that the US still has bankruptcy courts which were traditionally an issue of equity. An even more notable exception is Delaware which still has courts of Chancery. This is part of why so many businesses are incorporated there.

In the late 19th Century with the rise of capitalism, an investor seeking to profit off a venture would purchase a portion of a company. These cumulative shares comprise an individual’s equity in the company. Equity in this instance means the ownership of the company. In bankruptcy, the remaining assets are distributed to those who have equity.

As you can probably imagine this is a very very simplified version of the history of equity. However, I think the key points to remember are that (1) Courts of law and equity were separate. (2) Courts of equity called the Chancery focused on providing a set of remedies relating to property and contracts. (3) Issues of equity functionally different from law even if today they may be adjudicated in a court of law.

Next time we will look at definitions of equity as it is presently used and distinguishing it from its historical and etymological roots.

1. Oxford, The Oxford Dictionary of English Etymology 181 (C.T. Onions, 1966)
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2. Thomas A. Robers, Esq., The Principles of the High Court of Chancery, and The Powers and Duties of Its Judges; Designed as The Student’s First Book on Equity Jurisprudence 5 (Wildly and Sons, 1852).
For the remainder of this post, you can assume I am getting my information from this book. If you wish to read it yourself there is a free copy available here.
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For reasons I will never quite understand, breweries are often treated differently than wineries in California’s alcohol statutes and regulations (ok, I do understand, it is the powerful wine lobby).  When I tell friends and colleagues that beer law has lots of constitutional nooks and crannies, I often wonder if they believe me.  Here’s some proof.

Today, the California Craft Brewers Association (the “CCBA”) and several independent breweries sued Governor Newsom and California State Public Health (“CDPH”) Officer Sandra Shewry in federal court (Central District of California # 8:20-cv-02372) for violations of the Equal Protection and Due Process Clauses of the United States Constitution for how breweries have been treated during the pandemic and will be treated when things start clearing up.  The Complaint seeks a declaration that the Governor’s executive orders and CDPH Guidance violates both clauses, for an injunction prohibiting California to require breweries to serve sit-down, dine-in meals in order to serve their beer in their tasting rooms (unlike wine), and for attorneys’ fees.  I think the lawsuit has merit.  Of course, the Complaint recognizes the importance of promoting California citizens’ health and safety, but doing so while favoring one class of alcohol manufacturer (wine) over another (beer) is arbitrary.

In response to the COVID-19 pandemic, Governor Newsom issued a series of orders, including a prohibition on beer manufacturers from operating tasting rooms unless they provide meals with any beer served at the tasting room—even if the tasting room never previously sold meals.  Wine tasting rooms, on the other hand, do not have to serve food with wine at their tasting rooms.  Oddly, the Complaint notes that even wineries that share tasting rooms with breweries can sell and serve wine without food, but the beer manufacturer must still serve food.  The Complaint further points out that the state has provided no scientific evidence or explanation for this differing treatment.  The bottom line is that the CCBA and the brewery plaintiffs allege that winery tasting rooms and brewery tasting rooms are similarly situated, if not identically situated, and therefore there is no basis to treat them so differently.  I agree, especially with many breweries facing closure and an inability to move product at all.  This is a discrimination case.

Here is what seems to be the crux of the problem.  On May 12, 2020, the CDPH issued an order stating, “Brewpubs, breweries, bars, pubs, craft distilleries and wineries should remain closed until those establishments are allowed to resume modified or full operation unless they are offering sit-down, dine-in meals.  Alcohol can only be sold in the same transaction as a meal.”  Ok, so far.  Everyone is being treated equally.

Then, on June 28 and July 1, 2020, the CDHP eliminated the need for wine manufacturers to serve meals with their wine. Specifically, the July 1 closure Guidance ordered “all brewpubs, breweries, bars, and pubs in these counties must close, both indoors and outdoors, unless they are offering sit down, din-in meals….”  What happened to wine tasting rooms?  They got a pass.  The CDPH offered no explanation as to why wineries can sell wine only, but breweries must serve sit-down, dine-in meals to sell a pint.  Later, the CDPH attempted to justify the differing treatment in a letter to the CCBA by alleging, essentially, that brewery tasting rooms are in urban areas and wineries are not and that wineries are generally not social hubs for people to meet.  That’s just not true.

Regarding the Equal Protection Clause, the complaint proceeds as follows:  (1) the Fourteenth Amendment forbids any state to “deny to any person within its jurisdiction equal protection of laws”; (2) beer and wine manufacturers are similarly situated; (3) Governor Newsom and the CDPH have treated beer manufacturers differently than wine manufacturers regarding the sit-down meal requirement; (4) there is no rational basis for the differing treatment; and, therefore, (5) the order and guidance are unconstitutional.  In a nice stroke of the pen, the Complaint alleges that “imposing the sit-down, dine-in meal requirement on beer manufacturers does not keep California citizens who seek an alcoholic beverage at home entirely, it just sends them to the winery instead—which is likely to be very nearby (or even next door) to the beer manufacturer they would have visited.”

The Due Process cause of action proceeds similarly and focuses on breweries’ deprivation of conducting their lawful business and the detrimental impact on their liberty and property interests.  Further, the Complaint alleges the CDPH guidance is arbitrary and invites arbitrary enforcement.  Perhaps most importantly, at least for procedural due process, the Complaint focuses on the fact that the CDPH guidance was implemented without a constitutionally-adequate hearing and provides no meaningful procedure to challenge the restrictions.

Why do I think this has merit?  The Complaint alleges the disparate treatment of similarly situated “persons” and provides extensive allegations about the state’s lack of any evidence, scientific or otherwise, that could rationally justify the orders.  And if the state tries to argue that its Twenty-first Amendment powers give it broad power to regulate alcohol as it sees fit, it should read 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 516 (1996) where the Supreme Court recognized that the Twenty-first Amendment “does not license the States to ignore their obligations under other provisions of the Constitution.”  To be more specific, the Court relied on “our specific holdings that the Twenty-first Amendment does not in any way diminish the force of the Supremacy Clause, the Establishment Clause, or the Equal Protection Clause.”  Id. (citations omitted; emphasis added).  Thus, the Twenty-first Amendment will not save unconstitutional infringement on breweries’ rights.

Good luck to the CCBA and the named independent brewers.  We’re rooting for you.  Did I mention that Governor Newsom is a winery owner?

 

 

 

The Alcohol and Tobacco Tax and Trade Bureau (known as the TTB) is the federal agency charged with enforcing the Federal Alcohol Administration Act and enacting regulations governing the alcoholic beverage industry.  This includes everything from the federal tied-house restrictions (27 U.S.C. § 205(b)) to the propriety of the labels you see on your craft beers.  Oh, it also collects the taxes.  The TTB has authority over beer shipped interstate.

Under the federal tied-house law, it is illegal for a brewery to directly or indirectly induce a retailer engaged in the sale of alcoholic beverages to purchase beer from the brewery to the exclusion, in whole or in part, of other breweries.  Stated less technically, a beer manufacturer can’t induce a retailer to favor its beer over others.  See 27 U.S.C. § 205(b).  Inducements include such items as “furnishing, giving, renting, lending, or selling to the retailer any equipment, fixtures, signs, supplies, money, services or other thing of value” and by “extending to the retailer credit for a period in excess of the credit period usual and customary to the industry for the particular class of transactions.”  27 U.S.C. § 205(b)(3); see 27 CFR 6.21(c).  In other words, a manufacturer can’t pay to play.  Commercial bribery is illegal (I see you industry folks smirking).

A common violation that many are not aware of is that the sale of alcohol with the privilege of return is prohibited with some exceptions.  In other words, a brewery (or wholesaler) cannot sell its beer to a retailer and then accept a return if the beer fails to move off the shelves (known charmingly in the industry as a “shelf turd”).

The TTB is attempting to extend a helping hand to retailers (and thus breweries by extension) during the COVID crisis by relaxing some of these restrictions.  Specifically, as mentioned above, extensions of credit to retailers beyond 30 days is considered an inducement.  However, the TTB’s latest industry circular (available here:  https://www.ttb.gov/industry-circulars/ttb-industry-circular-2020-3) states that it will not enforce this restriction for extensions of credit for up to 120 days.  But this does not allow a brewery to extend credit to a retailer until the product is sold—that would still be an inducement.  Returns are now allowable if the beer was purchased for an event that was cancelled due to COIVD-19.

In addition, to help retailers in need, the TTB is allowing manufacturers to purchase prepaid gift cards to consumers as long as they are not “tied to an alcoholic beverage retailer, retailer group, or restaurant.”  It is up to the consumer to determine where to spend the gift card, but the manufacturer can encourage consumers to spend them to support retailers or restaurants of the consumer’s choice.  The gift card has to be a generic one, like a Visa gift card, and cannot be a gift card to a particular retailer.  Further, the TTB has stated that it will not investigate donations to charities that support retailers and their employees.  And of course, manufacturers can provide consumers with hand sanitizer.  These would all be considered inducements pre-COVID.

Sigh.  Thanks for the effort.  While these things might provide some relief to a limited number of retailers, there is so much more the government could be doing to help craft breweries.  How about passing the Craft Beverage Modernization and Tax Reform Act that is about to expire?  See prior post.  How about not shutting down outdoor dining when there is no evidence that it contributes to the spread of COVID-19 (state and local issue, I know)?  The bottom line is that big crises require big ideas.  Extensions of credit and hand sanitzer are but a blip on the screen.  Let’s think bigger, government, unless we don’t want craft breweries and the vibrant culture they bring to communities.  This is not hyperbole.

 

Examining the etymology of a word can reveal a lot about the relationships it has with other ideas. If you’re in a relationship, a significant milestone is meeting the parents of your romantic partner. As you get to know your partner’s parents you learn more about your partner. Likewise, a word is born from a specific cultural and historical context. How a word has been shaped and changed over time can also give clues about the values and ideas informing the context we currently inhabit.

Evolution of equityThe word equity (n.), like most of our legal words, comes to us from Latin through Old French. The Latin term aequitas (n. f. nom. sing.) entered Old French and became equite which over the march of history eventually became the English equity.1 The Latin root of the word aequitas is aequus (adj.) which means “level, even, equal, like, just, kind, favorable, impartial, fair, patient, contented.2” Aequus is also where we get the English word equal (adj.)3.

There are three things to note here. First, the root Latin word aequus and the subsequent English word equal are adjectives. They describe something. They can also be adverbs describing an action. For example: “Judge Posner ruled equitably.” Only later did these terms become nouns perhaps after being associated with the procedural institutions that now bear their name. Even when they are nouns, they still serve as modifiers of another term. For example, “She wants equity.” Inevitably, what our hypothetical person wants is for something to be equitable. It is a feature of English grammar to turn descriptive words into nouns. That in turn can distort our understanding of the terms themselves by making them objects abstracted from the realities in which they adhere.

Grammatical diagram of equitySecond, even when we use the term as an adjective or adverb, the word is rooted in physical metaphor. The most tangible is the metaphor of even ground. This is conceptually related to the idea of similarity. The ground is level when it is uniform or similar. By abstraction, we think of a game as equitable when it is on a “level playing field.” When there is no slant towards one side. As a bizarre coincidence, the term inequitable has its origin in the Latin word inequabilis which is rooted in the similar-sounding term equus which means “horse.” For the ground to be inequitable also meant it was impassable for a horse4.

Diagram of logical distinction of justice, equity, and equalityThird, equity is related, both conceptually and grammatically, to equality. Likewise, they are conceptually related and similar in grammatical function to the term justice. However, they are also distinct. As we explore the history of equity more fully we will see how to distinguish these concepts and terms more precisely. Initially, it is worth noting justice is more extensive and contains equity, while equality overlaps the two while not being contained by either5.

Next time we will look at the history of equity in the legal system.

1. Etymonline: equity
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2. Oxford, Latin Desk Dictionary, 7 (2005)
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3. Etymonline: equal
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4. Etymonline: inequitable
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5. E1 = Equity, J = Justice, and E2 = Equality. (E1 ⊂ J) | (E2 ∪ E1) | (E2 ∪  J) where E1 ≠ J ∧ ∀x, x ∈ E1 ⇒ x ∈ J. 
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Most law students will admit that law school is no easy feat. We all have our own set of circumstances that impact our ability to focus, navigate and ultimately succeed.

Finances, physical health, mental health, “imposter syndrome,” educational deficiencies, proximity to campus are just some of the factors I have witnessed peers having to grapple with on their journey to the Bar. Yet so many of us do not have access to help or we choose not to ask for help. Possibly for fear of being judged.

Law students are supposed to have it all together, right? Wrong.

I will never forget the sinking feeling in the pit of my stomach, when I finally accepted the fact, I would have to take a leave of absence from law school so I could focus on motherhood and financing our livelihood. When I became pregnant, I was a fulltime law student working fulltime; I had just returned home from a summer externship in Alaska. I had been voted into leadership positions and was selected to write on a legal journal.

I was ready to finish law school, and then, boom, LIFE happened. I found out I was pregnant. I decided to make some lifestyle changes. For one, I would not be able to continue working night shifts as a hotel auditor who would sometimes leave a nightshift, grab breakfast, and head directly to school with little to no sleep, just riding on fumes. That was not going to be healthy for the baby. We also decided it would be best for our family to move to a new neighborhood.

There was so much we had to factor in, so much to budget for; it became clear that law school was no longer within our budget. Although I took a leave of absence from law school, I began to work at a firm as a legal administrator so I could keep my skills sharp and stay immersed in the legal field. I never gave up on my dream of returning to law school, obtaining my Juris Doctorate degree, and becoming an attorney.

My daughter is the light of my life and my reason why. She is worth every sacrifice. Being a mother has brought me more joy than anything I have ever done in this world. Knowing that my child was with me (in my womb) as I took those bus rides to work as a legal administrator in downtown Seattle kept me moving forward. I have witnessed peers of mine graduate and ascend into the legal profession. Although it would have been “ideal” to complete my legal education years ago, it was not in the cards for me. Motherhood has taught me that we all have different paths on this journey, and I happen to be on the “road less travelled.”

As a first-generation college student, money has always been an issue.

Prior to law school, my family experienced a death that rocked us to the core emotionally and financially. Yet, we carried on because we have always carried on. Once I made it to law school, I was scrambling to keep up. I had to work extra hours just to pay for older edition textbooks and “professional clothes.” Super grateful for the law library and peers who had my back. And prayer. I would not have made it through my first year of law school without these resources.

There was a point where I accepted that I would never return to law school, and then I decided this was unacceptable because my lack of finances could never outweigh my passion for advocacy…

Manifest your dreams. Several months before I was re-enrolled in school, I began to review my 1L outlines, read case briefs, flip through my flash cards. Listening to the oral arguments in McGirt v Oklahoma “did it” for me. I had to go back to school, some way, somehow. So… I saved my money, I applied for scholarships, and I kept hope alive.

I am now back in law school. It has been somewhat challenging readjusting to the rigor, especially in the midst of a pandemic with a toddler in tow, yet I must keep it moving.

 

ADVICE FOR THOSE OF YOU WHO HAVE TAKEN A LEAVE OF ABSENCE FROM LAW SCHOOL AND PLAN TO RETURN AT SOME POINT:

  1. Remember who YOU are and WHY you set out on this journey in the first place
  2. Meet with a mentor, financial adviser, or a trusted peer to develop a plan
  3. Apply for scholarships
  4. Build credit and look into student loans such as Sallie Mae
  5. Stay immersed within legal field (e.g. legal administration, volunteer at mock trials)
  6. Keep in contact with your legal network via social media, occasional email, Zoom meeting, etc.
  7. Never stop reading and retaining legal material
  8. Come back full throttle, but don’t forget work-life balance

So much can change in the blink of an eye…

This time last year, I was working for lawyers, however, this year, I am working to become a lawyer.

Like so many other law students and legal professionals, my journey has not been one of perfection, rather, it has been a journey of progression. For those of you who have been caught off-guard by life circumstances, REMAIN RESIIENT REGARDLESS.

As I get ready to wrap this semester, the pressure is building up. Yet, this time I know I can and will get through it.

 

I hope I make my daughter proud.

 

“Women belong in all places where decisions are being made. It shouldn’t be that women are the exception.”    ― Justice Ruth Bader Ginsburg

 

McGeorge’s parent university, University of the Pacific, is ramping up its planning for the spring semester. These efforts made me curious about the national landscape: How are law schools responding to the pandemic in terms of conducting classes in person or online and what has worked to promote student, faculty, and staff safety? I sent an email survey to my colleagues asking three questions: (1) If you are holding in person class this fall (Hyflex or otherwise), what has been the key to you doing so successfully? (2) If you are online this fall, are you planning to be in person (Hyflex or otherwise) or online (in the spring)? (3) If you have not decided whether to be in person or online, when do you anticipate making a decision?

Seventy-nine of my 204 dean colleagues responded, which, in my experience, is a very high response rate, and their responses were interesting enough that I decided to share them via this posting. I have organized my report in three subtopics. In the first section, I will share a summary of the health and safety and other strategies my dean colleagues thought were most effective. In the second section, I will share the results regarding spring 2021 plans. A final section wraps up this post with final thoughts.

The Health and Safety Strategies that Seem to Have Worked

At least among the deans who chose to respond to my survey, law schools seem to have been able to avoid the major outbreaks seen at a number of undergraduate institutions. My hypothesis it that this result is a function of the age and maturity of law students and, perhaps, the fact that they are entering a field that, in effect, celebrates rules.

At most of the law schools, in-person classes were taught in some variation of the Hyflex model in which some students are in person and others are simultaneously participating online. However, at least two law school chose to have classes be either entirely in person or entirely online. At both, faculty took on temporarily-increased teaching loads so that social distancing protocols could be followed.

Nearly all law schools deferred to individual faculty preferences as to whether their classes would be in person and Hyflex or online. Law schools also were fairly uniform in allowing students to choose classes based in part on whether their classes would be at least partially in person or would be entirely online.

Overwhelmingly, my dean colleagues reported that having unambiguous rules and defined enforcement systems regarding face coverings, social distancing, daily self-screening, testing and tracing all played a significant role. They also cited training of both faculty and students as critical. Most of my colleagues emphasized the critical importance of testing classroom sound systems and having student tech and Zoom assistants in managing the challenge of simultaneously teaching students in person and online. At most of the responding law schools, class schedules were more staggered than normal to reduce student hallway interactions.

Less uniform but quite credible to me were recommendations of see-through masks for the professors and lavalier microphones.

Plans for the Spring

With only two exceptions, all of the responding law schools are following the same plans for the fall as they followed for the spring. In addition, all but one responding law school has already announced its plans for the spring semester. However, most of the responding deans noted that their announced plans were subject to the dictates of local health authorities and developments in cases, hospitalizations, and deaths as a result of the pandemic.

The final tallies: 54 of the 79 (68%) responding deans report that their classes will be partially in person, and the other 25 (32%) will be online. No law school will be entirely in person; in fact, most will have between 1/3 and 2/3 of classes online. Even among those law schools that will be otherwise entirely online, most have adopted a partial exception for legal clinics and externship sites that need to be in person to serve their clients. Interestingly, California law schools are over-represented among the law schools that will be entirely online.

Final Thoughts

There is a risk that my sample was non-representative. Perhaps the deans who did not respond did not enjoy as much success as those who did. It is also possible that the deans who did respond framed their responses to put their law schools in the best possible light. I certainly did not check any publicly reported health outcomes data for any of the law schools or their parent universities. Thus, it would be fair to read this post with a degree of skepticism.

I do wish to share one, final thought. It might be surprising to some non-deans that my colleagues were so responsive and so helpful in sharing their experiences. I believe the dean readers of this blog, however, are not at all surprised. I suspect that, if tested, we would be characterized as a fairly competitive group of people, but we nevertheless are also quite supportive of each other. We appreciate the challenges of each others’ jobs and help where we can. My final thought, therefore, is an expression of gratitude for my dean colleagues.

I. Introduction

There is a crisis of attention according to Matthew Crawford. Today, it’s a well-worn cliche that we are in an age of ever-increasing distraction. Many, if not most of us start on tasks only to be interrupted by a series of distracting notifications or internal itches to look at social media or other digital enticements. Those of us in the legal profession have a special obligation to make sure we pay attention to what is relevant. The purpose of this blog is to understand this new digital beast we find ourselves on. Ultimately, the food of this monster is data. If we want to steer it towards some semblance of justice, we need to get a handle on how it works, and how the law can or could reign it in. It’s either that or get swallowed up without even realizing it. That’s why I first want to lay the groundwork on understanding data and how it relates to equity.

This is an extensive topic with many dynamic parts. Each of these pieces could easily be a book on its own. Nevertheless, I think it is important for interested people to understand the framework I am using, even if it is ultimately incomplete.

The method we are going to use will examine the following: (1) the etymology of terms; (2) the history of the concept; (3) the functional definition; and (4) the application. The general framework I use is Aristotelean. Everything that exists has a cause. For Aristotle, there are four types of causes: (a) material, (b) efficient, (c) formal, and (d) final. (See Physics, 194b-195b, Aristotle, from The Complete Works of Aristotle edited by Jonathan Barnes, Sixth edition 1995). Etymology and history roughly correspond to the efficient cause or how it came to be. The definition more pertains to the form, essence, and matter of a subject. Thus, part of that is usually situating it in the genus and species. Finally, the analysis of the application deals with the effect and telos of a subject. The ultimate reason and goal for even discussing an idea.

All words retain the echo of history. In order to see things clearly, the lenses we use must be clean and firmly grounded. To be firmly grounded means to be rooted in history. Otherwise, everything will just be a blur. The tradition of looking at the origin of words stretches back thousands of years to at least the time of Plato. (See Cratylus, 404c, Plato, from Plato The Collected Dialogues, edited by Edith Hamilton and Huntington Cairns, twentieth edition, 2009). By better understanding the past we can then look to shape the future.

Next week we will begin by looking at the etymology of equity.