Hot off the presses, Episode 28 of the Class Re-Action podcast is here…for all your insomnia needs.

Hope you enjoyed your Fourth of July.

Episode 27 of the Class Re-Action is up. Show topics include Oliver v. Konica Minolta Business Solutions U.S.A., Inc. (June 24, 2023).

I’ve spent most of my career trying to suppress any mention of my personal opinions about political matters because I practice on the plaintiff’s side of the bar and most of that bar is populated with rabid social justice crusaders (in a frequently hypocritical sort of way, as they talk a good game but enjoy an incredibly insulated lifestyle and don’t live up to their preaching). But the Wuhan coronavirus nonsense spewed by our supposedly wise leaders in California and beyond was the last straw. I decided that I would comment on the rights-trampling insanity of locking in healthy people on the basis of highly suspect “expert” advice. Once I did that, it was easy to quit trying to hide my opinions generally.

I will say that a number of plaintiff’s attorneys were incensed that I questioned the rationality of staying home to keep everyone safe. I tried to elicit some rational commentary about when economic destruction would be a factor in the calculus and got nowhere. A good chunk of America is so polarized in the opinions held that I wonder if we will achieve a new social compact without violence. In any event, my point in writing this is to say that if you don’t like the opinions I am expressing, don’t read my stuff. Seriously. If you are that butt-hurt over me calling out the intellectual void that we call leadership in California, just stop reading what I write.

As for my write-ups on caselaw, they generally reflect an initial reaction only. Those reactions might change as I dive into an issue, so read any write-up with the understanding that I’m usually sharing first thoughts, concerns, or critiques.

But turning back to my social/political issue opinions, they are mine, I am not sorry that I have them, they are not my firm’s opinions on issues (that’s for sure), and I do not care at all if you disagree or are unhappy about them. I’m not even going to give you a fake apology and say that I’m sorry you feel that way like politicians do when they fake apologize. I’m not sorry. Zero percent. And I will not relent in the slightest to the cancel culture mob, so don’t bother.

A serious problem in Word threatened to derail work on a brief today. Once I sorted out the cause, I realized that I’ve seen an issue like this many years ago, and it is insidious. I was trying to copy text from one Word document and paste it into another one. As soon as I tried to copy the target text, Word crashed and closed. I made new copies of the documents. I updated Office. I shut down and restarted my computer. I eventually uninstalled my Office365 suite and reinstalled it. It made no difference. I searched online and found nothing. I considered disabling the Office clipboard, but you lose a lot of convenient functionality doing that.

Eventually I realized that the text I was copying included a footnote. When I selected text ending above the footnote, it worked fine. I then copied the footnote text, deleted the footnote entirely, added the footnote back in and pasted the footnote text back into the blank footnote. Copying worked as advertised from that point forward.

I have seen footnotes cause some sort of document corruption in the past. The only solution that I have found is to do as I did today, copy the footnote text, delete the footnote entirely, add a new footnote, and paste the text back into the footnote. This seems to cut out whatever corruption has crept into the document in the footnotes.

William Jacobson created Legal Insurrection, a blog/web site of some significance, having covered major stories mostly of a legal nature. Jacobson is also a clinical law professor at Cornell.

While Jacobson’s blog has long been known for its fairly conservative viewpoint, he has managed to survive Cornell. Until now. With the mob feeling its oats, Jacobson was identified as having committed a thought crime. He criticized the Black Lives Matter organization. Explaining, Jacobsen wrote [with no corrections or edits]:

There is an effort underway to get me fired at Cornell Law School, where I’ve worked since November 2007, or if not fired, at least denounced publicly by the school.

Ever since I started Legal Insurrection in October 2008, it’s been an awkward relationship given the overwhelmingly liberal faculty and atmosphere. Living as a conservative on a liberal campus is like being the mouse waiting for the cat to pounce.

For over 12 years, the Cornell cat did not pounce. Though there were frequent and aggressive attempts by outsiders to get me fired, including threats and harassment, it always came from off campus.

I made great efforts to keep this website separate from my work. I did not write about Cornell that frequently, and rarely about the law school itself. Nonetheless, the website and my political views were the elephant in every room, because the website is widely read, particularly by non-liberal students.Over the years, many students approached me privately and behind closed doors to express gratitude that someone was able to speak up, because they remained politically silent out of fear of social ostracization with the related possible career damage from falsely being accused of one of the “-ists” or “-isms.”

Not until now, to the best of my knowledge, has there been an effort from inside the Cornell community to get me fired.

The impetus for the effort was two posts I wrote at Legal Insurrection regarding the history and tactics of the Black Lives Matter Movement:

Reminder: “Hands up, don’t shoot” is a fabricated narrative from the Michael Brown case (June 4, 2023)

The Bloodletting and Wilding Is Part of An Agenda To Tear Down The Country (June 3, 2023)

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From Saturday, June 6, through Monday, June 8, over 15 emails from CLS alumni were received by the Dean of the law school, demanding that action be taken against me ranging from an institutional statement denouncing me to firing. I don’t know whether and to what extent that number has increased since Monday. The Dean properly has defended my writings as protected within my academic freedom, although he strongly disagrees with my views.

The effort appears coordinated, as some of the emails were in a template form. All of the emails as of Monday were from graduates within the past 10 years.

Only one of the emails was shared with me, with names removed, on the condition that I not post it or quote from it. I am permitted to characterize the complaint: My views are not consistent with the law school Dean’s public statement on police violence and my writings were hurtful and divisive, and the person could not understand why I am still on the faculty. [As an aside, my writings are consistent with the Dean’s statement, but that’s another matter.]

My clinical faculty colleagues, apparently in consultation with the Black Law Students Association, drafted and then published in the Cornell Sun on June 9 a letter denouncing “commentators, some of them attached to Ivy League Institutions, who are leading a smear campaign against Black Lives Matter.” While I am not mentioned by name, based on what I’ve seen BLSA and possibly others were told it was about me. The letter is absurd name-calling, distorting and even misquoting my writings, to the extent it purports to be about me. According to a document I’ve seen, the letter was shared with these students before it was published in the Cornell Sun.

None of the 21 signatories, some of whom I’d worked closely with for over a decade and who I considered friends, had the common decency to approach me with any concerns. Instead they ran to the Cornell Sun while virtue signaling to students behind the scenes that this was a denunciation of me. Such is the political environment we live in now at CLS.

BLSA and other groups are working on their own effort against me. Based on documents I’ve seen, there was consideration of demanding my firing, but it appears to have moved away from that not because they don’t want me fired, but “because calling for his firing would only draw more attention to his blog and bolster his platform, and we do not want to give him that satisfaction.” The plan is to call for “the law school to unequivocally denounce his rhetoric, acknowledge the harm caused by subjecting students to his racist pedagogy, and critically examine the views of the people they employ as professors of the law.” They plan to circulate the petition to the law school community and to “inform incoming students” of the situation.

I have little doubt that many students will sign because there is no choice in this environment. BLSA has announced on its Facebook page that “Silence Is Violence.” Who would refuse to sign when failure to sign would be deemed an act of violence?

I thank people who have voluntarily shared information with me, and if there are students, faculty or staff reading this, please feel free to forward information to me at legalinsurrection@protonmail.com. This is not just about me. It’s about the intellectual freedom and vibrancy of Cornell and other higher education institutions, and the society at large.

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Throughout my legal and academic career spanning over three decades, there has never been a single instance in which I have been accused of discrimination toward any student, client or colleague. I have always treated my students as individuals, without regard to race, ethnicity or other such factors. I condemn in the strongest terms any insinuation that I am racist, and I greatly resent any attempt to leverage meritless accusations in hopes of causing me reputational harm. While such efforts might succeed in scaring others in a similiar position, I will not be intimidated.

We are living in extraordinarily dangerous times, reminiscent of the Chinese Communist Cultural Revolution, in which professors guilty of wrongthink were publicy denounced and fired at the behest of students who insisted on absolute ideological orthodoxy. It’s a way of instilling terror in other students, faculty, staff, and society, so that others shut up and don’t voice dissenting views. We are seeing monuments destroyed in Taliban-fashion because they represent an uncomfortable history, movies and TV shows cancelled, and individuals disappeared from employment due to even the slightest deviation from the prevailing political culture.

This is not going to end well unless people of good conscience, who support black lives but not the Black Lives Movement as it was founded and currently operates, to speak up and refuse to cower in fear.

The Dean of the Law School responded with a statement reading, in part:

 In light of this deep and rich tradition of walking the walk of racial justice, in no uncertain terms, recent blog posts of Professor William Jacobson, casting broad and categorical aspersions on the goals of those protesting for justice for Black Americans, do not reflect the values of Cornell Law School as I have articulated them. I found his recent posts to be both offensive and poorly reasoned…. But to take disciplinary action against him for the views he has expressed would fatally pit our values against one another in ways that would corrode our ability to operate as an academic institution.

But Jacobson did not criticize “those protesting for justice for Black Americans.” He criticized the Black Lives Matters Movement and the rioting and looting and cultural purge. Jacobson went on to observe that you generally don’t see these sort of statements issued for far-left professors. “[I]t’s a one way street and it’s just as much a part of the cancel culture as firing someone.”

I just want to be very clear so nobody is confused. I think most of the administrators in higher education are garbage humans that make too much and do little other than institutionalize single viewpoints in colleges and universities (and the Dean of Cornell looks to be one of them). I don’t happen to like the idea that Jacobson, a smart and insightful author in the legal field, could be “cancelled” because his opinion is not currently approved by the mob. The worst part is that law students and law school alums ought to be better able to hear opinions they don’t like without resorting to demands that he be fired or demoted or otherwise sanctioned for unapproved thoughts. Garbage humans.

Professor Jacobson, I apologize for quoting your post almost completely, but people who don’t get to Legal Insurrection ought to have a chance to read your statement.

I’m thinking about posting my response to the letter I received from USC Law. Still debating that, but it’s just one more example of preening to look good for the mob.

This is interesting. I draw your attention to Williams v. U.S. Bancorp Investments, Inc. (June 8, 2023), in which the Court of Appeal (First Appellate District, Division Four) concluded that collateral estoppel does not bar an absent member in a putative class that was initially certified, but later decertified, from subsequently pursuing an identical class action. The Court held that the reasoning of Smith v. Bayer Corp., 564 U.S. 299, 312–316 (2011) and Bridgeford v. Pacific Health Corp., 202 Cal. App. 4th 1034, 1041–1044 (2012) applied equally to this variation.

Episode 26 of the Class Re-Action podcast is now available for your listening pleasure. We did something a little different this time - no case discussions. This one is all about our pal coronavirus (and a little bit about my computer blowing up and podcasting setups).

Kirby v. Immoos Fire Protection, Inc., 53 Cal. 4th 1244 (2012) said that actions for failure to provide meal periods and rest breaks are not actions for non-payment of wages under Labor Code § 218.5. In Betancourt v. OS Restaurant Services, LLC (May 21, 2023), the Court of Appeal (Second Appellate District, Division Eight) says the same thing. There is a bit of discussion about what “predicate” violation was alleged (the plaintiff arguing that it was faulty record-keeping), but the Court was not persuaded to deviate from a growing list of decisions considering how to treat premium pay “penalties” and derivative claims under sections 203 and 226.