LAW PROFESSORS AS PLAINTIFFS.

• Author: Jarvis, Robert M.

I. INTRODUCTION

Law professors show up regularly in lawsuits. Their best-known roles, of course, are serving as expert witnesses, (1) acting as pro bono counsel, (2) filing amicus briefs, (3) and having their scholarship cited by the court. (4) They also routinely appear as defendants, such as when they are sued by a disgruntled law school applicant, student, or staff member. (5) In addition, they intercede on behalf of friends and relatives (6) and occasionally are picked to sit on juries. (7)

Some law professors, however, are in the courthouse for an entirely different reason--they are there as plaintiffs. Usually, their interest is a principled one: for example, lending their name and prestige to an action involving a threatened civil or constitutional right, (8) or suing on behalf of their students. (9) But every so often, they have a more direct interest in a case's outcome. This most often occurs in the employment realm in suits involving, for example, the denial or loss of tenure.

To date, it appears no one has systematically examined lawsuits brought by law professors. (10) Yet doing so provides a different way to look at the academy and obtain a sense of what it means to work and have a career as a law professor. What is particularly striking is how often the same three issues are at the root of these lawsuits: dissatisfaction with, and professional jealousy of, faculty colleagues; (11) disagreements with, and distrust of, administrators; (12) and a feeling that others are receiving better, and undeserved, treatment. (13)

Several other things stand out about these cases. First, although a few early decisions do exist, these types of actions did not really take off until fairly recently. (14) Second, the defendants in these cases are not always employers--sometimes, they are outside parties. (15) Third, law professors generally do a poor job assessing their chances, for they lose much more often than they win. (16) And fourth, many law professors are guilty of a shocking level of thin-skinnedness.

It is not possible, of course, to find every lawsuit filed by a law professor. (17) But a sense of such litigation can be gained by looking at reported cases. Accordingly, what appears below is a summary of these decisions.

A few caveats are in order. First, I do not claim to have located every reported case brought by a law professor. Indeed, no one could, because most cases give no hint that the plaintiff was a law professor. (18)

Second, I have not included cases that mention the plaintiff is a law professor if they have nothing to do with the plaintiff's occupation as a law professor. A good example is Raskind v. Ryan. (19) In describing the parties, the court wrote, "Plaintiff Leo J. Raskind ('Raskind') has been a [University of Minnesota] law professor for over twenty years, and is the landlord of commercial rental premises located at 226 and 218 Water Street, Excelsior, Minnesota (the 'Properties')." (20) The remainder of the case is a garden-variety landlord-tenant holdover dispute, with Raskind's job as a law professor playing no role in its outcome. (21)

Third, I have omitted cases in which the plaintiff sued for acts that occurred before he or she became a law professor. (22) By the same token, I have not bothered with cases in which the plaintiff sued for something that occurred after he or she stopped being a law professor. (23) I also have excluded cases in which the plaintiff was a law professor in a non-law school. (24)

II. HIRING DECISIONS

A. Successful Candidates

Becoming a law professor often means relocating to a new city. This fact has led to two reported cases. (25)

After receiving his LL.B. from Yale University in June 1970, James F. Blumstein moved to Nashville to join the Vanderbilt University faculty. (26) In July 1970, he attempted to register to vote but was turned away because he did not meet either the state's one year, or the county's three months, residency requirement. (27) When he challenged these provisions, both a three-judge district panel and the U.S. Supreme Court (in an opinion by Justice Marshall) agreed that the rules served "no valid purpose." (28)

In 1973, F. Patrick Hubbard earned an LL.M. from Yale University and landed a job with the University of South Carolina. (29) To get his family's belongings from New Haven to Columbia, he hired a professional mover. (30) The trip did not go well and Hubbard and his wife ended up suing the company for negligence. (31) They also sought recovery for emotional distress and asked for punitive damages. (32)

In an unpublished order, the district court struck their latter two requests. In restoring these counts, the Fourth Circuit explained:

We hold that a private right of action exists under 49 U.S.C. [section] 316(d) [of the Interstate Commerce Act], and that in a proper case punitive damages and damages for mental distress may be recovered. The allegations of plaintiffs' complaint were sufficient to entitle them to introduce proof supporting the recovery of such damages. (33) Successful lateral candidates can also be plaintiffs. In Westin v. Shipley, (34) for example, Dean David E. Shipley hired Richard A. Westin, a law professor at the University of Houston, to fill the Laramie L. Leatherman Distinguished Professorship of Tax Law at the University of Kentucky. (35) According to Westin, Shipley told him the position was permanent and carried a $25,000 annual salary supplement. (36) When neither of these statements turned out to be true, Westin sued Shipley for negligence and fraudulent misrepresentation. (37) The trial court granted Shipley's motion for summary judgment, but the Kentucky Court of Appeals reversed: "[I]f the Dean did negligently misrepresent the compensation package to Professor Westin, the jury could find liability. Of course, we are assuming for purposes of summary judgment that there was a misrepresentation, not just a misunderstanding." (38)

B. Unsuccessful Candidates

Most candidates who fail to get hired as law professors simply continue on with their lives. Some, however, sue. In Avins v. Gould, (39) for example, Alfred Avins sued the State University of New York at Buffalo when the university denied him a job as a law professor. (40) According to Avins, he had been rejected because of his conservative political views. (41) In upholding the dismissal of Avins' lawsuit, the New York State Supreme Court, Appellate Division, Third Department, wrote: "Appellant has failed to produce any evidence upon which it can be concluded that respondent's determination was based on considerations other than his professional qualifications and ability." (42)

Similarly, Teresa R. Wagner sued the University of Iowa when it did not hire her to be a legal writing instructor. (43) According to Wagner, her candidacy had foundered because of her conservative political beliefs. (44) The district court ruled against Wagner, but on appeal the Eighth Circuit reversed and remanded. (45) A trial then ensued, at which the jury deadlocked. (46) Following motions by both sides, the district court entered judgment for the university. (47) Finding this to be error, the Eighth Circuit ordered a new trial. (48)

In Reise v. Board of Regents of University of Wisconsin System, (49) Edward H. Reise, a disappointed white job applicant, filed a four million dollar lawsuit in which he claimed that "his race and sex account[ed] for the decision, [because] in recent years the Law School has been unwilling to consider anyone, no matter how skilled, who is not black, female, or otherwise eligible for preferential treatment." (50) The district court denied Reise's request for interim injunctive relief, a decision with which the Seventh Circuit agreed:

Reise sought a preliminary injunction that would require the Law School to obtain the court's approval before hiring or promoting anyone, or spending money for two programs designed to support minority teachers and scholars. The judge denied this request. Reise's demand is so extravagant that we need know nothing about the merits to conclude that the district court did not abuse its discretion. "Remedies" of this kind would be problematic even if Reise were to prevail at trial. As demands for preliminary relief, they are absurd. (51) The district court also ordered Reise to undergo a psychiatric examination due to his allegation that the law school's actions had caused him mental distress. (52) Because such orders are not appealable, the Seventh Circuit refused to review it. (53)

The remaining three reported cases each involved a claim that the plaintiff was not hired due to age discrimination. In the first, Linda A. Scott, fifty-four, was passed over for a legal writing position at the University of Mississippi in favor of Anne B. Gullick, who was thirty-three. (54) A jury found in Scott's favor and the district court entered an order awarding her back and front pay. (55) On appeal, the Fifth Circuit reversed: "[W]e conclude that Scott's evidence, taken as a whole, is insufficient to create... a reasonable inference that age was a motivating factor in the University's decision.... We accordingly hold that the district court erred in denying the University's motion for judgment as a matter of law." (56)

In the second, Donald S. Dobkin, fifty-six, sued the University of Baltimore when its job opening for an immigration law professor went to a woman (whose identity was not revealed in court) who was thirty-two. (57) A state trial court entered summary judgment for the school, which was affirmed by the Maryland Court of Special Appeals:

On the record before us, we conclude that U.B. has presented a legitimate, non-discriminatory reason for its refusal to hire appellant. Appellant further failed to adduce sufficient evidence to meet his burden of establishing that U.B.'s reasons were pretextual, and its motive was discriminatory. Additionally, appellant did not establish that U.B.'s hiring...