Journal of Legal Education (Association of American Law Schools)

Cox, Barbara J.

English

Time for a Change: 20 Years after the “Working Group” Principles

Woo, Margaret Y.K.

Paul, Jeremy R.

699
From the Editors 
At the time of this symposium “Sexual Misconduct, Title IX and Academic 
Policies” held at Georgetown, we were in the midst of a presidential campaign 
with a candidate whose comments on an Access Hollywood tape called into 
question his suitability for the office. Clearly, sexual misconduct is not dead, 
and may even be on the rise. How should schools handle sexual misconduct 
on campus? How should we reconcile policy and procedure aimed at reducing 
sexual misconduct and guaranteeing victims’ security with core values of 
academic freedom, and protection of an accused’s individual rights? Like 
other social issues, politics of sexual misconduct are polarized with survivors 
and their allies lobbying universities to take action against sexual violence 
and civil rights advocates challenging disciplinary practices as violative of 
civil liberties. The Obama Office of Civil Rights’ (OCR) key 2011 guidance, 
commonly known as the “Dear Colleague Letter,” provoked vocal debates 
questioning its fairness to students accused of gender violence. While the new 
Trump administration has yet to reveal its Title IX agenda, it is clear that 
another round of conversation is in order as change is on the horizon.
This symposium issue begins with a thoughtful essay based on an 
opening address delivered by Hiram E. Chodosh, President of Claremont 
McKenna College. “Let’s Get It Together” highlights the delicate balance 
and interdependence of safety and freedom and what it takes to shape the 
balance into a virtuous relationship. It is a triad of Let’s get real—a candid 
acknowledgement of the existing ineffectiveness, gaps or infirmities; Let’s get 
facts—a deeper understanding of the nature of the problem; and Let’s get better—a 
targeted and strategic response at a collaborative, national level.
In the spirit of Let’s Get It Together, Joan W. Howarth draws from her prior 
experience as a former dean and Title IX adjudicator to focus on three 
interrelated concerns with Title IX compliance efforts: 1) overly broad 
definition of sexual assault; 2) failure to deal appropriately with vast variation 
in how campus women feel about and experience sexuality and 3) resolution 
processes that ignore the complex web of relationships involved in many 
allegations of Title IX violations. Specifically, Howarth argues persuasively 
how gendered “shame” shaped Title IX complaints process and how better 
understanding of this “shame” can assist in prevention of sexual misconduct. 
Howarth also urges a new category of sexual misconduct—“sexual infraction” 
—one that captures infringing conduct that is not assault and should not be 
sanctioned as such and suggests that restorative justice responses could be 
more effectively used to take account of the range of injuries currently being 
adjudicated and to change campus culture more profoundly.
Journal of Legal Education, Volume 66, Number 4 (Summer 2017)
700 Journal of Legal Education
Moving us away from the complaint process, in “Assaultive Words and 
Constitutional Norms,” Catherine J. Ross reminds us of the historic tension 
between the competing demands of the First Amendment’s express guarantee 
of free speech and the Fourteenth Amendment’s implicit promise of dignity 
and equality. She expressly addresses gendered verbal assaults and the 
conundrum that a college is more than a public space or workplace—it may 
also be a student’s home. Finally, she proposes some solutions by analyzing 
what college (and law school) administrators, faculty, and students can do 
within the confines of constitutional doctrine to temper the incidence of and 
harms caused by verbal assaults.
More theoretically, Katharine K. Baker looks at physical sexual assaults and 
compares these complaints with other types of claims (race discrimination, 
academic integrity, drunk driving) that have been taken more seriously with far 
less process and asks why. Is it rape exceptionalism? Baker argues persuasively 
that the problem may be a lack of consensus on what constitutes “harm” in sex 
based incidents and a lack of understanding that the post procedure harm can 
be equally devastating as the assault itself. Robin West, meanwhile, moves us 
away from the issue of “consent” and asks us to turn our attention to harm that 
could exist even with sex that is fully consensual and entirely nonassaultive, 
but unwanted. Focusing on consent “transactionalized” and devalued sex, 
leading to a view that transgressions on sex may be “wrong and criminal, but 
hardly a crime of great moral turpitude.” To address violations of Title IX then 
may mean changing the culture of how we view the “moral goodness of sex” as 
not only consensual but wanted, desired, desirable or pleasurable.
Alexandra Brodsky defends the Title IX complaints process by resisting 
“false equivalencies between political factions” to focus on the unifying 
principle that motivates those who labor to end sexual abuses and those who 
work to ensure adequate protections for the accused in disciplinary hearings. 
Certainly, the long-term realization of accused and victimized students’ interests 
depends on the legitimacy of disciplinary procedures. Brodsky systematically 
analyzes how the Title IX guidance and Campus SaVE Act are not merely 
compatible with due procedure but in fact, provide more robust procedural 
protections for both victims and accused than does the Constitution or any 
other federal law or regulation. They are a “rising tide” for student disciplinary 
rights writ large.
In “Mapping the Title IX Iceberg: Sexual Harassment (Mostly) in 
Graduate School by College Faculty” Nancy Chi Cantalupo and William C. 
Kidder give us a chilling picture of the Title IX iceberg of faculty harassment 
of graduate students in their mapping of the issue by using social science 
literature, court cases, and OCR investigations. Cantalupo and Kidder 
conclude that contrary to assumptions, a sizable majority of the cases resolved 
by OCR investigations or decided in court involve physical contact rather than 
purely verbal conduct and that many of these cases involve serial harassers. 
The article “Trigger Warnings:  From Panic to Data” by Francesca Laguardia, 
Venezia Michalsen and Holly Rider-Milkovich looks at the state of research 
701
on the impact of trigger warnings on student learning and mental health, and 
concludes with recommendations about how to construct and use trigger 
warnings to enhance rather than constrict classroom conversation.
Two articles are featured in our At the Lectern.  Carol Goforth focuses on how 
to integrate “Transactional Skills Training Across the Curriculum.” James 
Grimmelmann challenges the property course’s historic focus on real property. 
Grimmelman details how to give greater attention to personal property, 
intellectual property, and intangible property, and offers a suggestion of 
doctrinal concepts around which these topics can be organized.
Three book reviews round out this volume. Jennifer W. Reynolds reviews 
Laura Underkuffler, Captured by Evil: The Idea of Corruption in Law (New Haven: Yale 
University Press, 2013); Richard Abel reviews Wendy Nelson Espeland and 
Michael Sauder, Engines of Anxiety: Academic Rankings, Reputation, and Accountability 
(New York, NY: Russell Sage Foundation, 2016); and Paula A. Monopoli 
reviews Tracy A. Thomas, Elizabeth Cady Stanton and the Feminist Foundations of 
Family Law (New York, NY: New York University Press, 2016). Enjoy!
Margaret Y.K. Woo
Jeremy R. Paul
From the Editors


From the Editors

Baker, Katharine K.

Campus Misconduct, Sexual Harm and Appropriate Process:  The Essential Sexuality of It All

Hersch, Joni

Increasing Diversity by a New Master’s Degree in Legal Principles

Miller, Zinaida

Book Review of A World of Struggle: How Power, Law, and Expertise Shape Global Political Economy by David Kennedy

Rosen, Dan

Japan’s Law School System: The Sorrow and the Pity

Testy, Kellye Y.

O\u27Neill, Kate

455
From the Editors
We are pleased to present two sets of articles that provide detailed and 
diverse perspectives on two issues of signal importance to the legal academy. 
Also, we have three book reviews—Alan Morrison’s informed and informative 
description of The Burger Court and the Rise of the Judicial Right by Linda Greenhouse 
and Michael Graetz; David Ziff ’s thoughtful and engaging defense (!) of that 
most maligned of texts, The Bluebook: A Uniform System of Citation; and William 
Slomanson’s tongue-in-cheek poetic tribute to one of The Bluebook’s most 
succinct competitors, Practical Citation System (from the Berkeley Journal of 
Gender, Law & Justice). 
The fi rst set of articles provides an in-depth history of the founding of the 
Association of American Law Schools (AALS) Section on Sexual Orientation 
and Gender Identity Issues and that section’s signal work on combating 
discrimination within and without the legal academy. Dean Kellye Testy, 
AALS Past President and Dean at the University of Washington School of 
Law, along with Julie Shapiro, Professor of Law at Seattle University School 
of Law, provide a more detailed introduction to those articles below.
The second set of articles addresses American Bar Association Accreditation 
Standard 405(c), a standard that has generated controversy since at least 
2008. Standard 405 sets minimum standards for the employment terms of 
all law faculty at accredited law schools. Some critics object, saying that the 
ABA should not use the accreditation process to regulate faculty terms of 
appointment. Others believe that the ABA should do so, but have concerns 
that the standard is unclear, unfair, or both. For readers new to this topic, it will 
be helpful to understand that Standard 405(c) establishes diff erent minimum 
terms of employment, depending upon whether the faculty are tenured or 
tenure-track, clinical, or legal writing faculty. Subsection (c), in particular, 
provides that clinical faculty should be eligible for multiple-year contracts and 
should have job security “reasonably similar to tenure.” As law schools face 
pressure to provide students with more experiential-learning opportunities 
and skills training, it will likely become more important for the academy to 
understand what Subsection (c) means and to engage (yet again!) in dialogue 
about whether and how Standard 405 could be improved. These articles are 
meant to start that conversation. A more detailed introduction appears below.
Kate O’Neill
Kellye Testy

Journal of Legal Education, Volume 66, Number 3 (Spring 2017)
456 Journal of Legal Education
Introduction to
The AALS Section on Sexual Orientation and Gender Identity Articles
With great honor, we are delighted to introduce the articles in this 
symposium exploring the founding, development and work of the AALS 
Section on Sexual Orientation and Gender Identity. The section was fi rst 
founded in 1983 as the Section on Gay and Lesbian Legal Issues, and its 
story is the story of the struggle for LGBTQ equality. Early leaders of the 
section, the eight symposium authors have lived this history personally and 
professionally while profoundly infl uencing the academy, the legal profession, 
and our society in the struggle for greater equality for LGBTQ people. 
We are fortunate to capture these narrative essays of many of the section’s 
leaders so that we can preserve a thick description of what has been 
accomplished in what is now almost thirty-fi ve years (dare we say, a generation) 
of the section’s existence. In publishing this collection, we thank and recognize 
the authors not only for sharing their remembrances and refl ections, but also 
for the defi ning infl uence that they have had, individually and collectively, 
in advancing justice and equality through the integration of their teaching, 
scholarship, service, and activism.
The essays cover a lot of ground. In a wonderful “call and response” format, 
Professors Pat Cain and Jean Love share their now more-than-thirty-year love 
story, one that is deeply connected with the section’s founding and many of 
its most signifi cant developments. Professor Art Leonard, a critical leader in 
the section’s founding and development, details not only how many of the 
section’s goals have been accomplished but also how signifi cantly entwined 
the section’s development was with many social issues, including the AIDS 
crisis.
Professors Elvia Arriola, Nancy Polikoff  and Ruthann Robson share 
refl ections on their personal journeys in the legal academy as they encountered 
instances of support and exclusion as early openly lesbian law professors. 
Professor Arriola probes the complexities she encountered as both a racial and 
sexual minority and how the exclusion and hostility she encountered also led 
her to become one of the academy’s most insightful critical scholars. Professor 
Polikoff ’s refl ections on incorporating her activism and legal practice into 
her scholarship and Professor Robson’s nuanced refl ections on teaching and 
mentoring should both be required reading for all law faculty.
Professor Frank Valdes shares his refl ections on a particularly contentious 
period in the late ’90s as the legal academy saw hard-fought progress on 
equality for LGBTQ persons encounter signifi cant resistance, especially in 
the form of the Solomon Amendments. Professor Barbara Cox, who played 
an especially important role in helping AALS forge a successful compromise 
in the 1990s for interpreting its nondiscrimination bylaw in the context of 
religiously affi  liated law schools, eloquently argues that the compromise may 
no longer be appropriate in the context of signifi cant legal and social gains for 
LGBTQ equality. 
457
While these outstanding essays speak perfectly well for themselves, we off er 
a brief refl ection that we hope adds to our readers’ enjoyment and appreciation 
for them. It is evident in each of these essays how much the section was shaped 
and directed by people who were immersed in the struggle in their own lives. 
We do not think that is a coincidence. While allies are surely important to all 
movements, only those in the midst of things can really say “here is what we 
need, here is what is useful, here is what we should do.” Experience matters. 
The personal is, after all, political.
At the same time, like us, all the authors have a necessarily partial view. 
(This is virtually inevitable when work is shaped by the passions of a well-lived 
life.) We have spent our careers in the legal academy. Many of our struggles 
are set in that context. While we may spend time working as community 
organizers or with community organizers, we are not primarily community 
organizers. We are teachers, mentors and scholars. Further, we are all of a 
specifi c generation—or perhaps several specifi c generations. We all came of 
age well before Massachusetts permitted marriage between people of the same 
sex and a pro-LGBTQ president inhabited the White House.
The connection between lived experience and political and legal struggles 
is further instructive. As deeply as we respect these authors (and, to be clear, 
we are part of the same generation and walked many of these miles together 
with them), those “in the midst of things” are no longer this group. That does 
not mean that the struggle for LGBTQ equality is complete—far from it—or 
that there are not signifi cant diff erences among and between us. Neither does 
it mean that there is not much to learn from these refl ections that can inform 
current struggles. But others are now more with/in/amid the current struggles. 
Those struggles have become ever more complicated and contested. 
Challenges to the very idea of a gender binary are critical in the eyes of some 
and undermine the very defi nition of lesbian and gay to others. Trans rights 
have become a political lightning rod. Clearly it is a time for new generations 
to step in and, drawing on their own passions and experiences, off er the 
frameworks that will help us all fi nd the way forward.
Julie Shapiro
Kellye Y. Testy
This group of articles begins on page 460 of this issue.

From the Editors
458 Journal of Legal Education
Introduction to ABA Standard 405(c) Articles
The papers on ABA Standard 405 ask our readers to confront the question 
of whether the academy and its accreditors are governing ourselves fairly or 
sensibly with regard to faculty employment security. The issue is whether it is 
fair or wise for the ABA, or any other body, such as the AALS, to set diff erent 
minimum employment-security terms for full-time law faculty based expressly 
on what and how they teach and perhaps implicitly and de facto on their racial 
or gender identities. At present ABA Standard 405 sets accreditation standards 
that expressly diff erentiate the minimum employment terms for tenure-track, 
clinical, and legal writing faculty. These articles explore the ramifi cations for 
law school faculty appointment, retention, and promotion practices, with 
particular emphasis on the implications for faculty who have or may acquire 
405(c) status.
Professor Melissa Weresh opens this group of articles by articulating and 
advocating “best practices” that would spell out the terms under which a law 
school could terminate a 405(c) contract or refuse to renew it for faculty who 
had earned 405(c) status and due process rights similar to, but not necessarily 
identical to, those accorded to tenured faculty. Weresh recognizes that this is a 
compromise position, as it does not require a school to adopt a unitary tenure 
track for all faculty or separate tenure tracks for diff erent faculty groups, and 
it does not depend upon revision of Standard 405.
The editors solicited the remaining articles to provide readers with more 
insight into the diverse objections to Standard 405(c) and the diffi  culties 
the ABA Standards Review Committee and the ABA Council have had 
in formulating a resolution that is reasonably acceptable to the various 
stakeholders. The articles are loosely grouped according to their principal 
theses.
Professor Linda Berger analyzes the standard’s rhetoric to expose its 
hierarchical assumptions, pointing out that the standard provides greater job 
security to categories of law teachers based on generalizations about subject 
matter and pedagogy, rather than on the quality of individuals’ teaching or 
scholarship or on the need to protect academic freedom. Instead it assumes 
the validity of and perpetuates inherited faculty status hierarchies.
Professor Kathryn Stanchi is highly dubious that even best practices can 
ameliorate Standard 405’s fl aws. She argues that its categorization of law 
teachers is irrational because it is not designed to protect and reward great 
teaching and scholarship, and that its categorizations are discriminatory 
because women and minorities are disproportionately represented in the 
categories of faculty given less job security. Professor Kristen Tiscione 
analyzes additional demographic data to support the argument that Standard 
405 may enable sex discrimination by law schools. Full-time clinical and 
legal writing faculty—those groups that have or may earn 405(c) status—are 
disproportionately female, compared with tenure-track and tenured faculty. 
459
Professor Teri McMurtry-Chubb extends the analysis to racial 
discrimination, showing that faculty of color, particularly women of color, 
who are categorized as 405(c) faculty suff er additional disadvantages, as they 
are not only aff orded less job security and status than tenure-track faculty, 
but are also disproportionately required to report to clinic and legal writing 
directors, the great majority of whom are white.
Professors Ann McGinley and Richard Neumann address the legal and 
practical implications of Berger’s, Stanchi’s, Tiscione’s, and McMurtry-
Chubb’s analyses. McGinley summarizes the elements of employment 
discrimination claims under federal Title VII and Title IX and explains what 
plaintiff s must allege to challenge Standard 405 as discriminatory on its face 
or in its impact. Neumann presents a detailed analysis of what tenure means 
and does not mean, and explains why Weresh’s best practices, if not unitary 
tenure, are both fi nancially and administratively feasible for law schools. He 
counters an assumption that law schools simply cannot aff ord to provide 
substantive and due-process protections for all full-time faculty after they pass 
a probationary period.
We close this group of papers with two articles solicited upon short notice 
to provide some broader institutional and historical context about a number 
of other issues that have contributed to the controversy over Standard 405 and 
that may help explain why considerable eff orts to revise the standard have, to 
date, failed. 
Professor Peter Joy, a current member of the ABA Standards Review 
Committee, provides a thorough history since 2008 of Standard 405, describing 
in particular why it diff erentiates among tenure-track, clinical, and legal writing 
faculty, and documenting some of the disagreements among representatives of 
that group. Although Joy believes the standard needs revision, he is pessimistic 
about the prospects, in part because of signifi cant opposition to the ABA’s use 
of its accreditation process to set any faculty terms of employment, including 
tenure. 
Dean Emeritus Donald Polden and Dean Emeritus Joseph Tomain, who 
were, respectively, the chair and secretary of the ABA Standards Review 
Committee from 2008 to 2011, add their perspectives about the history of 
Standard 405, and they add a particular focus on, and recommendations for, 
the institutional roles and responsibilities of the ABA and the AALS. Like Joy, 
they believe that revisions to Standard 405 were derailed, in part, by concern 
that the ABA would remove any standards governing terms of employment. 
They also suggest that increased attention to the new standards governing 
assessment drew attention away from 405(c).
We are most grateful to all the authors for their contributions to this 
important issue. We hope that these papers will spur further dialogue, and we 
welcome responses and additional article submissions.
Kate O’Neill
This group of articles begins on page 538 of this issue.
From the Editors


Valdes, Francisco

Sexual Minorities in Legal Academia: A Retrospection on Community, Action, Remembrance, and Liberation

Konrad Tiscione, Kristen

“Best Practices”: A Giant Step Toward Ensuring Compliance with ABA Standard 405(c), a Small Yet Important Step Toward Addressing Gender Discrimination in the Legal Academy

McGinley, Ann C.

Employment Law Considerations for Law Schools Hiring Legal Writing Professors

Not a member yet

Time for a Change: 20 Years after the “Working Group” Principles

From the Editors

Campus Misconduct, Sexual Harm and Appropriate Process: The Essential Sexuality of It All

Increasing Diversity by a New Master’s Degree in Legal Principles

Book Review of A World of Struggle: How Power, Law, and Expertise Shape Global Political Economy by David Kennedy

Japan’s Law School System: The Sorrow and the Pity

From the Editors

Sexual Minorities in Legal Academia: A Retrospection on Community, Action, Remembrance, and Liberation

“Best Practices”: A Giant Step Toward Ensuring Compliance with ABA Standard 405(c), a Small Yet Important Step Toward Addressing Gender Discrimination in the Legal Academy

Employment Law Considerations for Law Schools Hiring Legal Writing Professors

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