Tuesday, October 3, 2017
Inspirational post by Carolyn Grose over at her blog on why we do what we do . . . as spotted on a sign at a march in recent months: "No mud, no lotus": http://profgrose.com/the-real-work-and-why-we-do-it/
Tuesday, September 26, 2017
Is peer review a part of your law teaching world? Do your colleagues observe you in the classroom or clinic and give you valuable feedback? No? If you want to know more, take a peek at Albany Law Prof. Mary Lynch's piece over at the Best Practices in Legal Ed Blog: https://bestpracticeslegaled.albanylawblogs.org/2017/09/25/experience-with-peer-support-peer-review-and-feedback-on-teaching/#comment-60827
Thursday, September 21, 2017
This week, Pepperdine University convened an event to rededicate a portrait of Larry Donnell Kimmons, but this was more than dedicating a portrait and displaying a plaque. It was an act of critical remembrance, confession, repentance, and hope.
In 1969, George Pepperdine College was on its original campus in Watts. On March 12, a white campus security officer shot and killed, murdered, Larry Donnell Kimmons. Kimmons was a 15 year-old black high school student from the neighborhood on his way to a basketball game in the college gym with his friends. The Graphic reported on this killing and its aftermath in this 2016 feature.
Pepperdine had admitted black students since its founding in 1937, but through the 1950s it limited campus housing to white students. In 1965, the Watts Revolt erupted around Pepperdine’s campus and sparked the decision to move to Malibu by the early 1970s. The University’s response to Kimmons’s killing sealed the deal to evacuate South Central.
For years, the University forgot this trauma in its history. Except for a few who kept the story and its shame alive, the move to Malibu afforded an escape and a gloss to let the unpleasantness fade. After student protests in 1969 and 1970, the University erected a plaque and portrait at the old campus, but they never made it to the new campus and vanished from sight.
This week, however, Pepperdine remembered. Pepperdine confessed and repented. Pepperdine made good on its old promise to honor the “handsome man-child” who bled out his life on our campus. Now and henceforth, Pepperdine will honor Kimmons and his life, and remember his traumatic, unjust death, with pride of place in newly renovated Payson library.
Calling on Christian and Jewish practices of remembrance and markers, the Pepperdine community recalled the moment of blood and trauma as a pivotal moment in our history, erected a marker that will remind the people of the loss and injustice, and committed itself to continuing pursuit of justice and dignity for all people.
Public memory is essential for justice, dignity, and healing from public trauma. Last night was a remarkable and important reckoning for our school.
May we be faithful to the truth and love we witnessed there.
Two of my colleagues, Jennifer Oliva and Valena Beety, recently collaborated on an article discussing the disadvantages faced by criminal defendants when questioning expert forensic evidence. The existing system does not provide equivalent pre-trial discovery protections for civil and criminal defendants. Civil litigants benefit from the Daubert standards, ensuring any forensic evidence (and similar expert witness evidence) is automatically disclosed and vetted pre-trial. Prosecutors, however, do not automatically disclose evidence in the same manner. Instead, this information is shared shortly before trial. But what happens if you never go to trial? Simple – you remain unaware of the evidence. Beety and Oliva advocate for the importance of parity for criminal defendants, especially given the prevalence of plea deals. The lack of automatic disclosure translates into many defendants entering the plea stage completely unaware of exculpatory forensic evidence. It is unsettling to think an insurance company has greater ability to access and vet evidence than a criminal defendant. Criminal defendants risk the loss of their very freedom and suffer a host of civil, collateral consequences post-incarceration or post-conviction. Civil collateral consequences alone can render them unemployable, increase their risk of homelessness and housing insecurity, and impact their ability to maintain custody of their children. A just system warrants equal, if not greater, protections for these defendants.
There are a number of issues with the existing system that are eloquently explored by the authors in the article. As Clinical Professors, Beety & Oliva exemplify the important role that clinicians can play in the development of legal scholarship and law reform advocacy.
The full article is available here: http://scholarlycommons.law.northwestern.edu/nulr/vol112/iss1/5/
You can also hear Professor Oliva’s commentary on Edward Chang’s the “Excited Utterance” podcast available here: https://www.excitedutterancepodcast.com/listen/2017/9/11/32-jennifer-oliva
Tuesday, September 19, 2017
Assistant Professor of Law and Director of Medical-Legal Partnership Clinic
University of Memphis Cecil C. Humphreys School of Law
The University of Memphis Cecil C. Humphreys School of Law invites applications for a tenure-track Assistant Professor of Law to direct and teach its Medical-Legal Partnership (MLP) Clinic starting in the 2018-19 academic year. In accordance with the Law School’s commitment to a unitary-track faculty, this position will entail full tenure rights and equal voting privileges on all faculty issues.
Launched in Fall 2015, the MLP Clinic is the academic centerpiece of the Memphis Children's Health Law Directive (Memphis CHiLD), an innovative alliance of the School of Law, Memphis Area Legal Services, and Le Bonheur Children’s Hospital. The Clinic is designed to address legal and social issues impacting the health of low-income children and families throughout Memphis.
Among his or her principal responsibilities, the successful candidate will supervise MLP Clinic students in providing civil legal services to Le Bonheur patients and their families; teach an interdisciplinary curriculum in an accompanying Clinic seminar; engage in outreach to healthcare professionals; partner with the Law School’s Institute for Health Law & Policy and other community stakeholders; and lead efforts to continue the development of Memphis CHiLD and to evaluate its impact.
Candidates must possess a J.D. or equivalent law degree, a minimum of three (3) years of legal practice experience, active membership in at least one state bar, and the ability to obtain Tennessee bar admission upon appointment. See Supreme Court Rule 7, Section 10.02 (allowing special admission to practice for attorneys employed in law school clinical programs). Among other qualifications, candidates should also have a strong desire to supervise and work with students; substantial experience or interest in serving lower-income individuals and communities; demonstrated experience or interest in working with healthcare professionals and students; a commitment to building community relationships and programs; and a demonstrated potential for excellence in teaching and scholarly productivity.
Applicants should apply through the University of Memphis Work Forum (https://workforum.memphis.edu/) and submit a letter of interest, resume, and list of three references to Professor Daniel Kiel, Chair, Faculty Recruitment Committee, email@example.com. Please include “MLP Clinic Director Application” in the subject line of the email.
While the School of Law does not treat race, color, religion, national origin, gender, age, disability, or sexual orientation as dispositive in hiring decisions, the School has a strong institutional commitment to hiring persons who will add to its diversity. The University of Memphis is an EEO/AA employer.
Thursday, September 14, 2017
Via Prof. Robert Kuehn:
The Center for the Study of Applied Legal Education’s (CSALE) report on “The 2016-17 Survey of Applied Legal Education” is now available: http://www.csale.org/results.html.
Over 1,100 law clinic and externship faculty from 187 law schools (94% of ABA accredited U.S. schools) participated in CSALE’s latest tri-annual survey. The 2016-17 survey (CSALE’s fourth) provides the most comprehensive, accurate picture to date of clinical legal education programs, courses, and faculty. The report summarizes the collective responses from schools and their faculty on questions relating to program design, capacity, administration, staffing, funding, and pedagogy, and the role of clinical legal education and educators in the legal academy.
In addition to the report, upon request CSALE provides customized information on various aspects of the data to law schools, legal educators, scholars, and oversight agencies.
Monday, September 11, 2017
5 Questions with Professor Helen Kang (Environmental Law and Justice Clinic-Golden Gate University SOL)
Another academic year has begun and it’s important to stay connected and learn from each other and about the impactful clinical work taking place. Given the recent natural disasters we are seeing, not to mention continuing changes in the federal administration, one can’t help but think of the potential environmental impact. I had the opportunity to interview Professor Helen Kang, the Director of the Golden Gate University SOL’s Environmental Law and Justice Clinic.
- You are the Director of the Environmental Law and Justice Clinic at Golden Gate University SOL. Please explain the types of clients you represent and the particular issues the clinic is focused on addressing.
Our clients are extremely diverse, but their goals are unsurprisingly similar. These clients want to improve the health and welfare of their communities by reducing toxic air, soil, or water pollution; and make their opinions matter by ensuring meaningful public participation. Our current and recent clients include grassroots groups without staff, let alone lawyers, to large environmental groups with legal resources in-house. We represent, for example, neighborhood groups from areas known to be most polluted in the San Francisco Bay Area. One such group is Bayview Hill Neighborhood Association headed by a grandmother who’d rather be spending time with her grandchildren but is instead leading the charge to make sure that her community doesn’t get hurt from ill-conceived development decisions that the famously liberal City of San Francisco ironically makes, without considering the adverse impacts to nearby residents. Then there are environmental justice groups working statewide like Greenaction for Health & Environmental Justice, for whom we filed a Title VI complaint with the U.S. EPA’s Office of Civil Rights and successfully obtained a settlement. It obligates California agencies to issue policies geared at equitable language access and criteria for hazardous waste permit issuance. For the same client, we just filed a petition before the Nuclear Regulatory Commission to revoke a federal contractor’s materials license for widespread fraud that compromised cleanup of radiological waste at a shuttered shipyard. We also represent traditional environmental groups like California Coastkeeper Alliance, Monterey Coastkeeper, Santa Barbara Channelkeeper, and other keeper organizations to tackle agricultural water pollution. We even represent a city and a trade association called Pacific Coast Federation of Fishermen’s Association. Overall, big efforts we are undertaking right now with these groups are about government accountability for agricultural water pollution and urban air and soil pollution. As you can see, the laws we use to accomplish our clients’ goals are just as diverse.
- Congrats on the recent CA Supreme Court win (Friends of the Eel River v. North Coast Railroad Authority, 222472 (Cal. Jul. 27, 2017)! This case involved years of hard work by the ELJC. Briefly explain why this client and the issues raised were chosen for representation by the clinic, and perhaps some of the work the students were able to complete for the client.
This case establishes that California public agencies can’t rely on federal preemption to shirk their responsibilities under the California Environmental Quality Act. Our client in the case is Californians for Alternatives to Toxics (CATs). The published decision bears the name of the other petitioner whose case was consolidated with our case. Our clinic had worked with CATs in a federal Clean Air Act case in which we had obtained a better settlement than the one U.S. Environmental Protection Agency had negotiated with a pulp mill. After this case finished, CATs then was faced with fighting off a removal of a California Environmental Quality Act case to federal court – the client wanted us to become involved to move for a remand to state court. We did get the remand; from there, we thought the case would not take too long because there are tight deadlines in environmental review cases, and I thought it would be a great experience for our students. I was right and wrong! Students worked on the merits of the case and prepared me for oral argument. They were justices in moot court and grilled me. So I’d say it was a great experience for our students, working alongside our co-counsel, including the Stanford Environmental Clinic. But I was wrong that this would be a short trek. We’ve been working on this case for five years. The case went up to appellate court two times before it finally went to the California Supreme Court. Because the issue before the Court was preemption and not the merits of the case, we are still not done. We initially took this case based on toxic impacts to communities from a large rail reconstruction project, but the importance of the federal statute under which rail carriers are licensed really intrigued us as the case moved forward. Fossil-fuel interests like refineries and coal companies are trying to use the statute, the Interstate Commerce Commission Termination Act, to bypass local and state laws intended to protect communities. So along the way, we have become experts and have successfully worked on other matters to ensure that federal preemption is not abused.
- Recently, there have been many changes coming from the administration in Washington D.C. Have any of these impacted the work you do? If so, in what ways?
Certainly, the rollbacks are devastating to communities everywhere. Environmental burdens unquestionably fall on people of color and low-income communities; they will most acutely feel the impact of the rollbacks. Just look at what’s happening now with climate regulation. Take a look also at Houston after the hurricane – in addition to the unprecedented damage to people and property, it’s wreaked havoc with pollution: initial reports are that more than 5 million pounds of air pollutants have been released (in addition to those allowed under permits). This environmental disaster is occurring against the backdrop of federal funding cuts affecting the very programs that are needed there on the ground now. So, certainly, the effect on us as people is undeniable, and the lack of morals and values being displayed in D.C. is a crisis. But I’d say that the clinic’s work is no different. We have always had our work cut out for us, even before this administration. Systemic and institutional denial of rights to the communities we typically represent has existed since the founding of this nation; and that’s what we are fighting. In fact, one of the most surprising things to my students is how deeply our institutions are complicit in environmental degradation. They can’t understand why agencies don’t do their basic job.
- As clinicians, we love to learn from what others are doing! Can you please share an insight, “aha moment”, or idea, that has helped make the ELJC successful and impactful not only to its clients but also to the students involved.
Three things that help make us successful are unremarkable but important. First, we accept complex cases. It’s difficult at times to bring students up to speed, but clients need lawyers in complex cases and it’s worth it educationally. The second is when we meet with clients, especially for the first time. We generally don’t limit the amount of time we sit with them. Nor do we have a strict agenda. We listen and listen for a long time. Our clients have a story to tell and knowledge to share. Many of our clients know so much about the environmental condition in which they live and the politics that influence their lives. Trust comes out of the relationship. But we have also made mistakes. It’s so tempting to fit in working on a matter just because a group desperately needs help. In those cases, we can be less successful long-term in problem solving. I think that just means that we need to be transparent with the clients in discussing the consequences of our limited involvement rather than denying services. The last thing that contributes to our success is having two young lawyers who come out of our own program to serve as graduate fellows. They go so far as to sit down and do research together with a student and provide extensive feedback on writing. They can do so much more than I can on my own. They are also able lawyers who do great work on our cases.
- Let’s talk about your research and specialization in legal education in Korea. This is definitely a focused, niche area of interest so I’d love to understand the tie-in with clinical work.
I immigrated to the U.S. from South Korea as a 12-year old child with my family. I still read and speak Korean, although I wouldn’t be able to do a law lecture in Korean. So when our school was developing a relationship with schools there, I went and gave a lecture – in English – about clinical education. From that experience, I developed an interest in writing about clinical legal education there and elsewhere and have traveled to Egypt, Spain, and the Philippines on legal education projects. One project was with the ABA-ROLI and another was with the International Senior Lawyers Project. In Spain, I was so impressed that Universitat Rovira I Virgili in Tarragona was so forward thinking in considering environmental justice in its curriculum. In the Philippines, I saw that students were working several jobs going to school, a bit like my students here who have to make ends meet while they put themselves through school. These opportunities force you to think more deeply about clinical education. It’s sometimes hard to sit down and think about theory when you’re up against a briefing deadline. Traveling to less developed places also open your eyes to the privilege I have here. Honestly, I also love to travel.
Friday, September 8, 2017
In clinic this week, we had the traditional discussion about how each thing we do as lawyers reflects something about us to others. Clients, judges, government officers, opposing parties, teachers, and others gauge us as we interact with them. What seems irrelevant to our role in working with them may matter a lot in whether they first decide to trust and respect us. Although many of us wish that people would decide these things based on our reasoning or work product, often it is things like how we sound or look that bring early assessments that are hard to overcome.
This week, however, I began thinking that perhaps I have gone too far. As it does most semesters, the discussion began when a student asked what he should wear to clinic. Usually, students regret the question because of my answer, which those of you who know me will have guessed: “Well, what do you think you should wear to clinic? Should I think it matters? Will anyone else?” It devolves into what I hope is a teaching moment. It is one of the first times in the semester for students to learn about clinical pedagogy and what it means to really reflect on all you do. In fact, many clinical teacher readers of this blog may consider the question a “gimme.” Every action matters, from how lawyers and students present themselves to what witnesses they call. They must reflect on all of them and the decisions will have consequences. What they wear is strategic: do we dress down so the client thinks we are like them? Do we dress up so they think we are professionals? If we dress down, do we have to do something else to show we can be real lawyers? Whatever the answer, it must be thought through. The discussion also helps students grasp that they are really going to be responsible for all the decisions they make in the clinic and that they really will be the primary lawyers for their clients. Students often have a hard time getting this otherwise. I write it all over my syllabus. I say it explicitly many times. However, it is this discussion that starts to help them get it—they are going to be asking themselves questions before they ask me and their decisions on everything from what to wear to what witnesses to call will be honored as much as possible.
I also learn a lot about my students in this discussion, perhaps judging them unfairly. Some of them take the discussion in, understand the method, transfer it to other discussions, make a conscious choice about what to wear, and later do or don’t explain their choice to me. Others half-heartedly listen and try to figure out what I want as they do in many other student-teacher relationships. And others have this look in their eyes or will say something to the affect of “Can he just f(*&king tell me what to wear? I know it matters to him. It’s not that hard.” I learn I am going to have a hard time teaching these students and will have to adjust how I teach them to make us both happy. (For those non-clinical teacher readers not understanding this reflection thing, think about whether blog writers like me should use the word “f(*&king” in blog posts and what you think about a)what I am trying to say about the professionalism of students or my relationship with them by putting the word in students’ mouths in this blog and b) what you think you know about me when you saw I wrote “f(*&king” in the blog instead of spelling out the real word.)
Which leads me to why I feel I may have gone too far with this clothes discussion. I came back to the office and started thinking about all the things I do other than teaching that send signals to my students about me. I began to go a little nuts. What did I wear to class? Why did I choose not to wear a tie that day? Was it a conscious choice? What should I generally wear? I teach a clinical class and a few non-clinical ones like Poverty Law and soon an interviewing counseling and negotiation class. In all these classes, I want to teach students about practicing with a social justice lens. Do I have to wear a shirt and tie so they think of me like a teacher? Would they think more about social justice if I was the hippy-ish flannel shirt guy they sometimes expect to find sitting in my first floor/basement office with my guitar in the corner eating homemade granola (I am that old). Would that be a problem with my colleagues or clients if I choose to look that way with how they see me? What other things am I doing that show my students who I am so that they can best learn from me? Must I insist they call me Spencer instead of Professor Rand to be the social justice guy? I have two pictures in my office. One is a picture I made at a painting party for my daughter where we painted Boathouse Row, a Philadelphia landmark. The other is a Pop Art picture “seja marinal seja herói,” which I understand to mean “Be an outlaw; Be a Hero!.” It was painted in honor of a man who was killed by Brazilian resistance in the 1960’s who was known to the artist and others for working to empower lower class movements. Is only the second one okay? Is even that poster bad because it is in Portuguese and too stuck up-ish?
For now, I think I have at least learned that maybe my students who only partly engage in this exercise are keeping their sanity and I should respect them more than I have. The ones who do engage I will have to give credit and think of how I can help sort through those choices that matter more than others and how to not drive oneself crazy doing so, once I figure it out. And maybe I’ll go out to a thrift shop and find a good jeans and flannel shirt collection for the rest of the semester and see how it goes. At least I'll think about it.
This post asks you to participate in a poll about real-world practice courses that fall between traditional in-house clinic and externship models. Sometimes called “hybrids,” “external clinics,” or “practitioner-supervised clinics,” these models may involve a faculty member (either part-time or full-time) supervising law students in practices outside the law school, a faculty member and practitioners sharing student supervisory responsibilities, and different approaches to teaching the clinic seminar. We plan to use the information in the first instance in connection with a plenary session at the 2017 Midwestern Clinical Conference.
The poll itself will take at most 5-10 minutes and includes space for you to describe and assess a particular course. The poll describes our inquiry more fully and offers some examples. You can find the poll here:
We will close the poll a week from Monday, September 18.
We look forward to your responses and descriptions.
Claudia Angelos, firstname.lastname@example.org
Phyllis Goldfarb, email@example.com
Alex Scherr, firstname.lastname@example.org
Ann Shalleck, email@example.com
Tuesday, September 5, 2017
This Fall, clinicians at the University of the District of Columbia’s David A. Clarke School of Law boldly embarked on what was, for us, a new collaboration to create a clinic-wide orientation. As many readers will know, UDC-DCSL has a rich clinical history and our clinical program is central to our curriculum. Each graduating student, in both our full-time and part-time (evening) program, must complete two seven-credit clinics. We offer a range of clinics and this semester the five of our clinics slated to operate for full-time (day) students undertook just what we ask our students teams to do, intensive collaboration, in furtherance of our shared goals.
Over the summer we met to try to determine what common ground we shared throughout our clinics – ranging in substantive areas from Legislation to Juvenile and Special Education to General Practice, Housing, and Immigration. (Our Tax Clinic, Community and Economic Development Clinic, and the Government Accountability Project are offered in the evening this semester and did not participate in the day clinic orientation). A primary goal was to create a common set of values and a culture across our clinics. Another goal was to set the stage for conversations that would continue within our individual clinics throughout the semester.
We determined that we would first meet for two hours in our individual clinics and then come together as a group. Fueled by pizza and after a round-robin of introductions to all of our clinical faculty and fellows, ably facilitated by Professor Marcy Karin, who directs the Legislation Clinic and with a welcome from UDC-DCSL Dean Shelley Broderick, we launched into the substance for the four hour afternoon session. Practicing what we preach, we circulated a detailed agenda for students outlining our plan for the afternoon.
First, Professor Lindsay M. Harris, Co-Director of the Immigration and Human Rights Clinic led a session focused on clinical pedagogy. Using text-polling and word cloud technology, we opened up the session with an exercise asking students to share just one word to describe what they had heard, around campus, about the clinic which they were now entering. This ice-breaker served as a Launchpad to consider the goals of clinical education broadly. We shared the concept of “zones of learning and how, in clinic, we aim to work in our “stretch zone.” Students individually mapped out the tasks or skills within their comfort zone, stretch zone, and panic zone.
Next up, Professors Faith Mullen and Tianna Gibbs, Co-Directors of our General Practice Clinic led a discussion on professional responsibility and ethics. All UDC-DCSL students must take Professional Responsibility as either a pre or co-requisite to clinic, but this session served to focus on ethical issues specifically within clinic. Professors Mullen and Gibbs, unphased by an unexpected fire alarm mid-session(!), ably guided our students through key topics including unauthorized practice of law, student practice, file maintenance, attorney client privilege, confidentiality, and more. This primed the students to start to think about their role as student attorneys, we hope, throughout the rest of the semester.
Professor Laurie Morin, who directs the Gender Justice Project and currently teaches within the Legislation Clinic, then led a session on professional communication. During the session, Professor Morin shared with the students tips, strategies, and wisdom, but also carefully connected what they had learned during their first year legal research and writing course to their writing within clinic. Professor Norrinda Brown Hayat, Director of the Housing and Consumer Law Clinic, followed up on this presentation with a hands-on presentation for students on using track changes within Microsoft Word and clarifying our clinic writing portfolio graduation requirement.
Freshly armed with a heightened understanding of Mindfulness in the Law thanks to the two-day conference-within-a-conference at SEALS in August, Professor Harris led a brief meditation followed by an introduction to mindfulness. We learned about the growing traction mindfulness has within law schools, companies, and bar associations, and the potential physical and mental health benefits. We concluded the session by walking through the Jeremy Hunter’s Reactivity Map exercise, essentially considering the value of inserting an extra reflective step in between interpreting a situation and subsequent action as a student attorney.
Our final substantive session was focused on acknowledging professional identity and discussing the concept of feeling “othered” within the legal profession. Professor Hayat, using a thought provoking and contemporary video clip to open the discussion, asked each student in the room to contribute just a one word reaction to what they had seen. Professor Hayat then skillfully set the stage for necessary conversations about race, gender, religion, and sexual orientation, and other arenas where personal and professional identity intersect and come into play throughout the semester.
Professor Lauren Onkeles-Klein, Visiting Professor and Director of our Juvenile and Special Education Clinic took on the less-than-desirable task of walking through the nuts and bolts of some key administrative tasks at the end of the day. Through this, students were introduced to key staff and began to develop an understanding of online case management procedures, printing options, interpretation & translation, supplies, copying and mailing documents.
This new collaboration required a great deal of effort by our clinical faculty over the summer, but, we hope that it will sow the seeds for working across clinic and collaborating throughout the semester. We are currently assessing the program and have solicited feedback from student participants in the form of a survey.
We share with the wider clinical community in the hopes of stimulating thought and discussion – do you conduct orientations within your individual clinics? Have your schools tried to provide a broader program, orienting students across clinics? What have been your successes? Your failures? Could this work at your institution, why or why not?
Friday, September 1, 2017
The CLEA Elections Committee is soliciting nominations of individuals to serve on the CLEA Board starting in January 2018. In addition, we are also seeking nominations for the Vice-President and Secretary positions on the Executive Committee. Nominations are due October 1, 2017..
All positions require a three-year commitment. We have attached a memo prepared by the CLEA Elections Committee, which sets forth the activities and responsibilities of CLEA Board members in more detail.
Current CLEA members are invited to nominate themselves or other CLEA members as candidates for one of these positions. The committee also encourages “new clinicians” (defined as clinicians with fewer than 6 years of experience) to run for the CLEA Board. Our Bylaws create a separate election process for candidates identified as “new clinicians,” to ensure that the identified “new clinician” candidate who receives the greatest number of votes will be assured a place on the Board.
The Committee strongly encourages CLEA members to nominate individuals from groups that are currently underrepresented within the leadership of various clinical institutions, including CLEA, the AALS Section on Clinical Legal Education, and the Clinical Law Review.
The nomination process is simple. Nominate yourself or someone else by replying to this email (please do not reply-all). If you are nominating yourself, please include a paragraph or two about why you are running and a link to your faculty profile, which will be included with the elections materials to be sent later in the fall. If you are nominating another CLEA member, there is no need to include such a paragraph; the name of the individual and institution will suffice, and the Election Committee will contact the nominee for further information. If you have fewer than six years of clinical teaching experience and wish to be identified as a “new clinician” candidate, or if you want to nominate a candidate for the “new clinician” category, please indicate that as well. Although the process of nomination is easy, our Bylaws set a strict deadline for receiving nominations. All nominations must be received by October 1, 2017.
If you have questions about the CLEA Elections process, please reply to this email or contact the Chair of the Elections Committee, D’lorah Hughes, at firstname.lastname@example.org.
Friday, August 25, 2017
CALL FOR PROPOSALS
Externships 9: Coming of Age
March 9-11, 2018
University of Georgia School of Law, Athens, Georgia
DEADLINE: Monday, October 16, 2017
EXTERNSHIPS 9 marks the 20th anniversary of the first Externships Conference in Washington DC, in March 1997, at the Catholic University Washington College of Law. Since that seminal conference, the externship community has come of age. It is time to celebrate and to take stock.
Externship pedagogy has matured, a development displayed in recent editions of the Best Practices Project and of Learning from Practice. Changes to the ABA Standards confirm this maturation, by more clearly defining externship pedagogy as experiential teaching. Teachers and directors of externship courses are now transitioning into faculty roles, with an increased awareness of their contributions to their schools. We recognize and can assess the impact of externship courses on student learning, on student professional and career development, and on institutional outcomes. Research and scholarship regarding externships has flourished with diverse perspectives and values. Finally, we have greater clarity and passion about externships as a way to foster a sense of the public dimension of the lawyer’s role.
The Externships 9 Conference, from March 9–11, 2018 at the University of Georgia School of Law in Athens, Georgia, will develop these themes by assessing the past, present, and future of externship teaching. Its five themes will allow us to explore the potential and the challenges of externship teaching:
Theme 1: Foundations and innovations in externship pedagogy
Theme 2: Defining and developing your role within your law school
Theme 3: The impact of externships on law schools and communities
Theme 4: Research and scholarship on the externship experience
Theme 5: Externships and fostering the public dimension of the lawyer’s role
These themes overlap, as they do in our work more generally. The Conference will explore them separately and in their various interactions. We will not offer separate tracks for each theme; presenters need not restrict proposals to one theme. That said, separate tracks for new and for experienced teachers will offer both familiar and new ideas on core externship challenges: how to deliver a seminar; how to work productively with seminar faculty and site supervisors; how to teach the skill of reflection; and how to translate what students learn into transferable skills, enduring values, and professional identity.
We encourage attendance and proposals from clinical faculty (both field placement and in-house clinicians), from deans and associate deans, from career services professionals, and from others interested in both the possibilities and the practical realities of externship courses. We also solicit active participation by international clinicians, both as participants and presenters.
We encourage you to propose a topic that will develop the conference themes. We append to this RFP a list of specific ideas as prompts for proposals.
The Conference will offer programming for those new to field placement work and for experienced clinicians. To help us plan, we ask that you identify which audience you plan to address – new or experienced or both – when submitting your proposal.
Presentation Formats and Publication
The Planning Committee seeks proposals in several formats:
— Concurrent session
— Workshop or affinity groups by geographic region, topic, or practice area
— Scholarly work-in-progress
— Short presentation (10-20 minutes, TED Talk or similar format)
— Poster presentation
We also seek topics for and facilitators to convene affinity groups, designed for those attendees who would like to meet with others to discuss common issues. Groups may form according to geographical region, practice type (e.g., prosecutorial externships), or concerns (e.g., ABA site visit issues).
We encourage proposals to present scholarly works-in-progress. We may also offer sessions consisting of short, “TED Talk-like” presentations of 10–20 minutes. We also invite proposals for poster presentations.
The Clinical Law Review has agreed to consider papers emerging from the Conference (whether from a works-in-progress session or any other conference session) for publication in a special issue. No guarantee of publication exists; all papers will be reviewed in accordance with the Clinical Law Review’s normal standards. Potential authors must submit final drafts of manuscripts no later than June 1, 2018, for consideration.
Proposal Selection Criteria
In general, the Organizing Committee will favor proposals that address the Conference theme, are relevant to conference attendees, are well-defined and focused, are timely and important, and show care and thoughtfulness in development. We will also have a preference for proposals that:
– demonstrate innovation either in new topics or in new approaches to familiar topics;
– include both new and experienced presenters with expertise in the topic or a base of experience that provides a unique or useful vantage point on the topic;
– indicate specifically how the presentation will encourage active learning by attendees, including specific methods for engaging in interaction with the audience; and
– describe the takeaways that attendees can use when they return to their schools.
We value diversity, both in the composition of presenting teams and in your topic’s presentation of diversity and inclusiveness as a concern in field placement work. The Organizing Committee will give preference for diversity in terms of race, gender, ethnicity, disability, sexual orientation, geographical location, years of experience, type of school, type of program and other factors.
Help with Proposals:
We are ready to talk over your ideas as you develop them. We are also ready to help anyone who is new to presenting at conferences or who wants assistance finding possible co-presenters. Feel free to contact members of the Working Group responsible for conference content to discuss your ideas as you prepare a proposal.
Carole Heyward, email@example.com
Carrie Kaas, Carolyn.Kaas@quinnipiac.edu
Kendall Kerew, firstname.lastname@example.org
Meg Reuter, email@example.com
Alex Scherr, firstname.lastname@example.org
Submitting a Proposal:
To submit a proposal, please use the form available on the conference web page, here:
Submission deadline: 11:59 p.m., Monday, October 16, 2017.
We expect to make decisions about your proposal by Monday, November 13, 2017. We will notify the contact person for each proposal and may contact you sooner to discuss modifications or to suggest collaborations. After confirming your participation, we will identify a contact person from the Planning Committee who will help you prepare so that your presentation and materials contribute to an excellent conference.
We look forward to working with you,
The Conference Planning Committee:
Tim Floyd, Mercer University School of Law
Alexi Freeman, Sturm College of Law at the University of Denver
Carole Heyward, Cleveland-Marshall College of Law
Bob Jones, Notre Dame Law School
Carrie Kaas, Quinnipiac University School of Law
Kendall Kerew, Georgia State University College of Law
Lisa Mead, UCLA School of Law
Millicent Newhouse, University of Baltimore School of Law
Bridgett Ortega, John Marshall Law School (Atlanta)
Esther Park, University of Washington School of Law
Meg Reuter, University of Missouri Kansas City School of Law
Sue Schechter, U.C. Berkeley School of Law
Alex Scherr, Chair, University of Georgia School of Law
Sarah Shalf, Emory University School of Law
POSSIBLE TOPICS FOR PROPOSALS
We offer these as suggestions only. Use them as prompts: we welcome your creativity and thoughtfulness. We recognize the possibility that your topic might address more than one theme and welcome proposals that advance one theme or several.
Theme 1: Foundations and innovations in externship pedagogy
- Developments and innovations in the design and delivery of externship courses
- Best practices in externship teaching
- Models for externship teaching in non-US law schools
- Compliance with ABA regulations on field placements and experiential courses
- “How to” sessions on supervising students, teaching the seminar, working with site supervisors, fostering reflection, and administering externship courses
Theme 2: Defining and developing your role within your law school
- How externship faculty contribute through teaching, scholarship, and service
- Working across the curriculum, with in-house clinic, simulation, or non-experiential faculty
- Collaboration with legal writing, simulation and doctrinal faculty
- Working with administration, including an “experiential dean”
- Working with multiple roles as an externship teacher, such as career services or student services
Theme 3: The impact of externships on law schools and communities
- Externship courses and the assessment of a law school’s institutional outcomes
- Externships, hybrids, and practicums: assessing different program models
- Externship courses and a student’s career development and post-graduate opportunities
- The impact of externship courses on clients, communities, and the law
Theme 4: Research and scholarship on the externship experience
- Developing your own scholarship
- Works in progress on law and policy, empirical research, and clinical pedagogy
- Using data to assess the impact of externship teaching on students and on service
Theme 5: Externships and fostering the public dimension of the lawyer’s role
- Externship teaching to develop student commitment to public service / public interest work
- Externship courses and the teaching of social justice
- Externship teaching in fostering students’ values and professional identities
Thursday, August 24, 2017
As my mother gets older and cannot do what she once did, she does not protest or work on social causes as much anymore. She did, though. A lot. One of my strongest memories at age 7 was going door to door canvassing for Eugene McCarthy because Robert Kennedy was not liberal enough and might send more blacks to be killed in the Vietnam War. Oddly, Kennedy was killed the next day, and I was relieved when I found my mother distraught and sad that Kennedy had been killed, and I figured out that we did not have a nefarious part in his death. But the canvasing had shown me that she knew that part of our role was try to take stands for justice.
My mother did not stop then. When I was about 10, she was a social worker doing home visits in Cabrini Green, a Chicago housing project, trying to help in a place so crime-ridden that she was once turned away by police who did not think it safe for a middle-class white woman to be there. At age 18, when I went to the post office to register for the draft, I had to walk past my mother, who was protesting outside, perhaps egged on by her new husband/my new father who had his own protesting to do. When the Gulf War happened in 1990, he joined her and they protested together, and when we invaded Iraq in 2003, they were picketing on the street. They were snow birds by then, but I knew I could not call them on Saturday because that was their day for standing on a bridge somewhere or outside a military base holding a sign, sometimes being yelled at by the passersby.
What is extraordinary about this other than the commitment my mother has shown is the type of person she is. She is quieter than some. She hates confrontation. Further, she has not had an easy life. When we were canvasing together, she was already for four years a widow with three kids who at the time of my father’s death were 6, 3, and 21 months. She was going to school so she could earn enough so that she did not have to depend on Social Security (she started turning down the parents’ share when she started earning enough, though keeping the kids’ share for her kids). She certainly had other things to do. When she remarried 9 years after being widowed, our family became 9 people living in a house together, 6 of us between 11 and 17 who were not always so happy to be in the experience. She had these and other commitments, too. But she protested.
And though I couldn’t tell her, I disagreed with her protests. Why do you protest? A lot of good your McCarthy support did. Humphrey won and then Nixon! Really? Do you really think that your sign on Route 1 against the war is going to change whether we go to war or keep fighting? It seemed fruitless. If I had to be honest, perhaps her protesting meant more than the law review article I am sitting in my office writing on social justice as a competency and “social justice manifestos,” an article which will be read by a few and be just one among a pantheon of others already written on social justice. Maybe she did more by protesting. But how do these protests help?
Which brings me to last Sunday, when I found myself at a demonstration against the white supremacists who marched and then killed and injured some of those that disagreed with them in Charlottesville, oddly enough a town in which my mother lived while my father went to law school. The protest I attended over Charlottesville had all the makings of the protests that I would find fruitless. First, it was in my suburban town, where it might be noticed by the community but would go largely unnoticed by anyone outside our community. Second, it would be particularly unseen by those who held an opposite opinion about what was being protested. Why protest if it changes no one’s mind? Third, there was no doubt that the speakers would all say the same thing, as they did. The listeners would clap at appropriate times but no direct action would be planned that day, which it wasn't. But I went. And I did not find it fruitless.
I found some of my neighbors were there, and learned that they were willing to demonstrate, at least when the issue was so obviously outrageous. I was not alone in my neighborhood. Then, I saw people from my temple and my rabbi, who must satisfy people of many different political persuasions but was ready to stand for this as he does for other causes. I am not alone in that community. Even the repetitive speakers made a difference to me by their presence, including among others our sheriff’s office, our congressman, and our state senator, all of whom I learned were not only supporting the protest but demonstrated that they were willing to speak out for a cause like this. I found that the predominantly black speakers, whom this directly affects more than me and many of my neighbors, were listened to and their speeches could describe problems better than the whites who were less affected. I began to feel a little like there could be change despite overwhelming odds when much of our federal government will not take a stand. I felt a little less hopeless.
And I thought about what I could tell my students. As their teacher, I will talk with them about the social justice lawyering perspective to protest. We'll talk about political reasons to protest, some of which include potential change. I'll believe that a little more. We'll talk about why as lawyers for causes of communities with which we are working but don't belong should listen to what those closer to the cause are saying and get ideas from them. We should remember they are better at choosing strategies and be the ones on the front lines--not their attorneys. I'll know that more. But I’ll also tell them that protests can matter to form community and help people belong. They'll know that when I was part of this protest community, the protest itself helped me belong.
I’ll go back to my law review article, and if it's accepted (a few weeks late in the cycle), I'll share some ideas with my academic colleagues and maybe with my students about what law school should teach and what I hope they will learn from me and others about social justice. But I will also talk about my mother and what I learned from her about standing up and demonstrating a little, even if it seems fruitless.
Wednesday, August 23, 2017
Friday, August 18, 2017
Temple University Beasley School of Law is seeking to fill two faculty positions beginning in fall 2018. The first is for the Murray H. Shusterman Professorship in Transactional and Business Law. For this position, we expect to hire an established, tenured expert in the field. We particularly invite applicants whose scholarship and/or teaching focus on commercial law, broadly construed (e.g., secured transactions, sales, bankruptcy, consumer protection, e-commerce, and related fields), though we also invite highly qualified applicants from other areas of business and transactional law to apply. The second is an entry-level or junior lateral position, where our subject matter interests include intellectual property, law & technology, and criminal law. Potential candidates for either position may contact Brishen Rogers, at email@example.com. Temple University is an equal opportunity/affirmative action employer, and we strongly encourage women, minorities, individuals with disabilities, LGBTQ individuals, and members of other groups that traditionally have been underrepresented in law teaching to apply.
Thursday, August 17, 2017
Via Prof. Nancy Kim:
California Western School of Law (CWSL) is seeking applications from entry-level and junior-lateral candidates for a tenure-track position to begin on or about August 1, 2018. We are looking for candidates with strong academic backgrounds, a commitment to excellence in teaching, and demonstrated potential to be productive scholars. The Appointments Committee is particularly interested in candidates with a strong desire to teach civil procedure, family law, immigration law, tax, or trusts/estates. CWSL welcomes applications from individuals who would contribute to the vibrancy and diversity of our faculty.
Established in 1924, CWSL is an ABA accredited and AALS member, non-profit law school located in downtown San Diego, California. We have the distinction of being San Diego’s oldest law school and are known for our commitment to preparing students to be practice-ready lawyers. Notably, our graduates regularly outperform the statewide average on the California bar exam. CWSL is the recipient of numerous community service awards, including the State Bar of California President’s Pro Bono Service Award, and the federal government’s President’s Higher Education Community Service Honor Roll. We are also home to numerous outstanding programs, including the California Innocence Project, Community Law Project, and the New Media Rights Program. Members of the faculty have national and international reputations for their scholarly contributions. Our faculty is dedicated to the community, teaching, and scholarship.
A substantial percentage of CWSL students come from diverse cultural, ethnic, and socioeconomic backgrounds. We are committed to developing a faculty that better reflects this reality, and to this end, we are particularly interested in candidates who are committed to teaching a diverse student body. All candidates are encouraged to submit a statement to our Appointments Committee addressing their commitment to diversity and how they can contribute to the educational experience of our students.
Please direct application materials (including cover letter, CV, and diversity statement) and questions to the chair of the Appointments Committee, Professor William Aceves, at the following email address: firstname.lastname@example.org. The other committee members are Professors Hannah Brenner, Nancy Kim, and Joanna Sax. The Appointments Committee is attending the AALS faculty recruitment conference in November 2017. Please reference your AALS FAR form number in any correspondence. For candidates seeking consideration outside of the AALS faculty recruitment conference, we encourage the submission of applications before September 1, 2017.
Wednesday, August 16, 2017
Via Prof. Annie Smith:
The University of Arkansas-Fayetteville invites applications from both entry-level and lateral candidates for a tenure-track position to direct a well-established Immigration Law Clinic. All applicants for the position should have significant practice experience in immigration or asylum law and some familiarity with supervising law students or new attorneys. Any successful applicant will be expected to gain admission to the Arkansas bar.
In furtherance of the law school’s fundamental commitment to experiential learning, clinical professors and legal research and writing professors have full tenure rights and equal voting privileges on all faculty issues. All candidates should have demonstrated scholarly promise, strong classroom teaching skills, a distinguished academic record, and a commitment to service within the law school and broader university community.
The University of Arkansas–Fayetteville, located in the northwest corner of the state, is the flagship campus of the University of Arkansas. The University is an equal opportunity, affirmative action institution and welcomes applications without regard to age, race, gender (including pregnancy), national origin, disability, religion, marital or parental status, protected veteran status, military service, genetic information, sexual orientation or gender identity. Persons must have proof of legal authority to work in the United States on the first day of employment. All applicant information is subject to public disclosure under the Arkansas Freedom of Information Act.
Applicants with questions may contact Professor Annie Smith, Chair, Faculty Appointments Committee, at email@example.com.
Tuesday, August 15, 2017
At Pepperdine, we are excited to welcome Prof. Sophia Hamilton as the new Director of Externships and Pro Bono programs. She will also teach in our Academic Success Program and Bar Preparation Workshops. Sophia is a graduate of our law school and is an excellent lawyer and teacher who is already a great asset to our law school.
Thursday, August 3, 2017
Call for Authors – Feminist Judgments: Rewritten Torts Opinions
DEADLINE: Friday August 25, 2017
The U.S. Feminist Judgments Project seeks contributors of judicial opinions rewritten to reflect a feminist perspective, and commentaries on the cases and rewritten opinions, for an edited book collection tentatively titled Feminist Judgments: Rewritten Torts Opinions. This edited volume is part of a collaborative project among law professors and others to rewrite, from a feminist perspective, key judicial decisions in the United States. The initial volume, Feminist Judgments: Rewritten Opinions of the United States Supreme Court, edited by Kathryn M. Stanchi, Linda L. Berger, and Bridget J. Crawford, was published in 2016 by Cambridge University Press. Subsequent volumes in the series will focus on different areas of law and will be under review by Cambridge.
Torts volume editors Lucinda Finley and Martha Chamallas seek prospective authors for fourteen to sixteen torts opinions covering many major topics in tort law. The editors have selected the cases with an eye towards issues and injuries of particular salience to women’s lives, and with insights from feminist torts scholarship and input from leading torts scholars. Potential authors are welcome to suggest other opinions that they would like to address, but the overall number of cases finally included in the volume must remain limited.
Interested prospective contributors should submit a proposal to either: 1) rewrite an opinion (subject to a 10,000 word limit), or 2) comment on a rewritten opinion (4,000 word limit). Rewritten opinions may be majority opinions, concurrences, or dissents. Authors of rewritten opinions should abide by the law and precedent and supplemental materials in effect and available at the time of the original decision. Commentators should explain the original court decision and its context, how the feminist judgment differs from the original judgment, and what difference a feminist judgment might have made. The volume editors conceive of feminism broadly and invite applications that seek to advance, complicate, or critique various feminist theories and advocacy.
Those who are interested in rewriting an opinion or providing commentary should apply no later than Friday August 25, 2017, by e-mailing the following information to Lucinda Finley, firstname.lastname@example.org, and Martha Chamallas, email@example.com :
- Your CV, your areas of torts interest or expertise, and why you are interested in and well suited to participate in this project.
- Your top three preferences of cases to write about, and whether you have a preference to do a rewritten opinion or a commentary.
- Any time constraints and other obligations that may impact your ability to meet the submission deadlines.
- If you have another case that you feel strongly should be included instead of one of the selected cases and that you would like to write about, provide information about the case and the reasons you think it should be included.
This list of cases that the editors have selected for consideration to be included in the volume Feminist Judgments: Rewritten Torts Opinions, is as follows:
- The “Classics”: Tort cases that appear in almost every U.S. Torts casebook, and thus shape generations of lawyers’ understanding of tort doctrine.
- Tarasoff v. Regents of Univ. of California, 551 P.2d 334 (Cal. 1976): the classic “psychiatrist’s duty to warn” case, with an underappreciated subtext of intimate partner violence.
- Farwell v. Keaton, 240 N.W.2d 217 (Mich. 1976), establishing a limited affirmative duty to “rescue,” or come to the aid of someone in peril.
Negligence: Is the “Learned Hand” formula for negligence just an economic cost/benefit calculation, or should it include a broader array of social factors (as Hand himself intended)?
- McCarty v. Pheasant Run, Inc., 826 F.2d 1554 (7th Cir. 1987). In a case involving a woman who was assaulted in her hotel room by a stranger who gained access through a sliding glass door, Judge Posner applied an economic cost/benefit analysis to the question of negligence and upheld a jury verdict for the defendant hotel. This case involves attempted sexual violence against women, and also provides fertile ground for a feminist critique of a law and economics perspective on tort law.
Duty of care: A significant Torts issue, heavily influenced by policy concerns, and often involving women and children plaintiffs who have been assaulted – and thus fertile territory for feminist analysis.
- Kircher v. City of Jamestown, 74 N.Y.2d 251 (N.Y. 1989). A case involving the “limited public duty” doctrine, which severely restricts the obligation of police or other protective service workers to affirmatively aid crime victims. This limited duty has serious adverse implications for women and children experiencing family violence. It is the civil tort law analogue to the limited constitutional affirmative duty to protect adopted by the US Supreme Court in infamous cases such as DeShaney and Castle Rock v. Gonzales. The NY Court of Appeals has been a “leader” in crafting the rules that circumscribe when a victim can sue the police for failure to protect. While there are numerous cases that one could choose to include in this volume, including several that directly involve domestic violence and police failure to enforce protective orders, Kircher has been selected for several reasons. It comes after several NY Court of Appeals opinions in this area, and thus provides a good vehicle to explore, critique, and consider expanding the doctrinal limitations. There are two dissenting opinions that call for a relaxation of some of the doctrinal limitations. And it subtly demonstrates the problem of police callous attitude towards presumed family violence that often underlies their inaction. Kircher was abducted by a stranger from a drug store parking lot, who drove her around and raped her. The eye witnesses to the abduction reported it to a police officer, who dismissively assumed it was probably a domestic dispute, and thus did not follow the abductor’s car.
- Sharon P. v. Arman, Ltd., 21 Cal.4th 1181, 989 P.2d 121 (1999). A woman was raped in late morning in the underground parking garage of the office building where she was a tenant. The California Supreme Court held that the risk of sexual assault in this particular parking garage was not sufficiently foreseeable to impose a duty on the landlord to provide reasonable security, even though the court acknowledged the demonstrated risk of underground parking garages in general. The case highlights the way in which courts can use the duty issue and landlord protective policy concerns to keep cases form juries and erect significant barriers to tort recovery for sexual assault victims – especially the first sexual assault victim on a particular property.
- Lisa M. v. Henry Mayo Newhall Memorial Hospital, 12 Cal.4th 291, 907 P.2d 358 (1995). A young pregnant patient was digitally sexually molested during her ultrasound exam by the ultrasound technician employed by the hospital. The issue was whether he was acting within the scope of his employment so as to trigger respondeat superior liability for the employer hospital. In notable contrast to cases where they had ruled that employees committing physical assaults on other workers or customers were acting in the scope of employment, the court held that the sexual assault was done for purely personal “lust” reasons, so that the ultrasound technician was not acting within the scope of employment.
Damages: Damages issues have received significant attention from feminist torts scholars, and they remain extremely important for whether there are hidden barriers to equal access to the tort system and fair compensation for women and people of color.
- Simpkins v. Grace Brethren Church of Delaware, 2016 Ohio 8188, 2016 Ohio Lexis 2961 (December 2016). A teenage girl was sexually assaulted by her pastor. In her suit against the church that employed him and that ignored his history, a jury awarded her a verdict in excess of $2 million dollars. But Ohio has a general cap on non-economic damages for all tort claims, and the application of this cap significantly reduced the compensation that she could recover. She appealed, contending that the damage cap, as applied to sexual assault victims, was unconstitutional. The Ohio Supreme Court upheld the cap finding that it survived rational basis review.
- G.M.M. v. Kimpson, 116 F.Supp.3d 126 (E.D.N.Y. 2015). A case involving harm to a young Latino boy from lead based paint. The economists who projected future earnings for the child used earnings tables based on race. The case directly raises the issue of whether courts should permit the use race-based earnings tables (and by extension sex-based earnings tables) to calculate future lost earnings. It also illustrates the racially disparate impact of many environmental harms.
Compensable harms: Emotional Distress and Reproductive Harm. Tort law’s traditional devaluing of emotional, relational and reproductive harm has worked to the detriment of women. Cases involving various aspects of reproductive harm raise important issues about reproductive health and autonomy which are often overlooked by courts.
- Dillon v. Legg, 441 P.2d 912 (Cal. 1968), the landmark case that first recognized a tort claim for “bystander” emotional distress suffered from watching a family member get gruesomely injured, regardless of whether the plaintiff was in the “zone of danger.” Would such claims be better characterized as harms to important relational interests that are deserving of protection?
- Boyles v. Kerr, 855 S.W.2d 593 (Tex. 1993). In a case involving the sexual exploitation of a woman by her boyfriend who videotaped their consensual sexual intercourse and showed the tape around the college campus, the Texas Supreme Court declined to permit tort claims for negligent infliction of emotional distress. The case provoked a great deal of outcry by women’s advocacy groups, and provoked a dissent by the lone woman Justice on the court, who characterized the result as overtly gender biased.
- Broadnax v. Gonzales, 2 N.Y.3d 148 (2004). Overruling precedent that barred emotional distress claims for pregnancy loss unless the pregnant woman suffered a separate physical injury, the NY Court of Appeals permits a woman to recover for emotional distress against physicians whose negligent prenatal care caused the death of her fetus. This case and its precedents highlight the implications of characterizing a pregnant woman and her fetus as separate beings, so that loss of a pregnancy is not understood as physical harm to the woman.
- Greco v. U.S., 893 P.2d 345 (Nev. 1995). Physicians negligently failed to diagnose severe fetal defects in time for woman to consider whether to terminate the pregnancy. The parents brought a “wrongful birth” claim, and the disabled child brought a “wrongful life” claim. Surveying case law from many other jurisdictions, the court permitted the wrongful birth claim, while denying the wrongful life claim. While there are many cases from which to choose that explore these issues, Greco is selected because it discusses both wrongful birth and wrongful life in a single case, discusses the policies involved and the decisions of many other jurisdictions, represents the evolving majority approach, and like most cases, fails to fully comprehend the reproductive autonomy dimensions of these tort claims.
- Robinson v. Cutchin, 140 F. Supp.2d 488 (D. Md. 2001). An African-American woman was involuntarily sterilized by a physician who performed a tubal ligation without her consent during an emergency C-section to deliver her 6th child. The case discusses the difference between battery claims and informed consent medical malpractice claims, which sound in negligence. The opinion displays remarkable insensitivity to women’s reproductive autonomy and to the racially biased attitudes of the doctor, and to the history of forced sterilization of minority women.
- Reavis v. Slominski, 551 N.W.2d 528 (Neb. 1996). This case explores the issue of consent as a defense to intentional torts. Reavis had sex with her employer at an office holiday party; several years earlier, she had also acquiesced to his repeated sexual advances, claiming she could not turn him down because she desperately needed the job, and because her prior history of sexual abuse amounted to an incapacity that made her extremely fearful of not acquiescing. She sues for battery, and the issues involve apparent consent, coercion, duress, and incapacity as vitiating apparent consent. The case resulted in multiple opinions, with a debate between majority, concurrences, and dissent over the relevance of her prior history of sexual abuse, and over whether fear for one’s job is sufficient to constitute duress that would vitiate apparent consent.
- Guthrie v. Conroy, 567 S.E.2d 403 (Ct. App. N.C. 2002). A workplace sexual harassment hostile environment case brought as a tort claim for intentional infliction of emotional distress. The opinion, while acknowledging that the conduct would amount to a Title VII hostile environment claim, dismisses it as merely juvenile and boorish behavior that does not meet the stringent tort standard for “outrageousness.” The opinion summarizes the factors and types of conduct in the workplace harassment context that would push the behavior into the “outrageous” category. The case highlights the interactions between statutory Title VII civil rights law and common law tort claims, and whether they are intended to vindicate different interests and should be assessed by different standards.
- Lyman v. Huber, 10 A.3d 707 (Me. 2010). An i.i.e.d. case arising out of an emotionally abusive and controlling intimate partner relationship. The court focused on the “severe” emotional distress element of the claim, and overruled a verdict for the plaintiff, concluding that she did not suffer emotional distress more severe than what the “reasonable person” would be expected to tolerate. This case highlights the difficulties facing domestic violence victims who try to bring tort claims against their abusers, with courts often interpreting the elements of the i.i.e.d. tort more strictly than in commercial relationship or stranger relationship contexts. It is also a vehicle for exploring the potential for bias in the supposedly objective notion of the “reasonable person.”
Wednesday, August 2, 2017
“I am not; I will not be.
I have not; I will not have.
This frightens all children, and kills fear in the wise.”
By Ashley Sillay and Sarah Gerwig-Moore
Lawyers as a whole are statistically unhappy. Drug and alcohol addiction, divorce, personal ruin, and professional missteps plague the profession. It is estimated that 1 in 5 lawyers is addicted to alcohol. Even worse, it is estimated that 60% of lawyer malpractice is attributed to alcohol abuse.
Eileen Zimmerman’s recent piece in The New York Times Magazine, “The Lawyer, The Addict,” touched millions of hearts and minds as the author chronicled her former husband’s secret and deadly addiction. He was a high-functioning lawyer and a high-functioning addict. He was working until his final days- desperately billing and responding to clients’ concerns.
Zimmerman’s piece and others have explored whether there is a culture problem in law practice that promotes and allows this sort of endemic unhappiness and substance abuse, and many understand that this culture problem begins in law school.
In a few weeks (or sooner), students will enter our law school classrooms fresh-faced and hopeful. In a few weeks and three years, many of those same students will be cynical, debt-ridden, and yes, even addicted to drugs or alcohol.
So how do we define the problems- and address the issues as they develop? This essay is the first in a series of pieces exploring the “lawyer’s [and law students’] dilemma,” how it may be defined, and approaches that may provide useful perspective as our troubled profession confronts a crisis.
There may not be one answer, and there may be many answers.
It is also possible that problems faced by lawyers and law students have roots in a much deeper source than the profession itself: a fractured worldview. A fractured worldview separates ourselves from others, from nature, and from the universe. This point of view, one of self-as-separate-from the surrounding world, alienates us from sources of emotional support. For lawyers, a group whose specialized education necessarily creates barriers of understanding from “laypersons,” this alienation from the surrounding world is sharpened, resulting in what others have called the Lawyers’ Dilemma. It is also the law students’ dilemma.
Several fields have attempted to offer solutions. The field of Therapeutic Jurisprudence has emerged as a nexus fusing the legal and medical fields. Therapeutic Jurisprudence has indeed found its way into legal education, though it is not generally a required course. This exposure to various therapeutic modes of practice is meant to immerse students in and enlighten students to the emotional needs of their own future clients. During this process, one aim of the course is that law students will reflect on their own emotional lives, becoming more compassionate as a result.
While Therapeutic Jurisprudence seems a step in the right direction, it is very largely focused on the client’s emotional needs, not the lawyer’s. As a result, a pretty significant problem arises when law students begin to question precisely how to intertwine into their own practices the nurturing of their clients’ emotional needs. With the Model Rules of Professional Conduct there to dissuade them, in addition to other various ethical and moral rules dictating the professional behavior of lawyers, law students are generally hesitant to take on the role of therapist when working in their capacity as attorneys.
Although there are many solutions offered up to solve what appears to be broken about the practice of law, the Buddhist Wisdom of Emptiness may be relevant for and applicable to all lawyers, regardless of the individual’s religion or faith. Emptiness teaches us that the individual is not an island but is connected to all things. It challenges our fractured worldview. Culturally, a resurgence of meditation practice, yoga, and mindfulness exercises in the West has provided proven benefits to its practitioners. Lawyers who practice Emptiness will experience a paradigmatic shift in worldview that could result in a more balanced, supported lifestyle. It could be one option (among others) to define and face the Lawyers’ (and Law Students’) Dilemma.
For lawyers, replacing this fractured worldview by implementing an Emptiness practice may, through the unification of self and world, yield more tolerance, respect, support, and love. One result of this paradigmatic shift in worldview may be healthier, happier lawyers, who, through Emptiness, will feel less alone and will be less inclined to abuse drugs and alcohol. If the law of karma (or the law that reactions spring forth from one’s own actions) dictates that the Lawyers’ Dilemma is in fact a symptom of our fractured worldview, the medicine, then, the Buddha taught, is Emptiness.
The stresses of the legal profession are burdensome and only truly understood by those who take them on. For lawyers, professional and social isolation is part and parcel of a thriving, busy practice. We are taught in law school to think logically, as a reasonably prudent person would, when analyzing fact patterns. But many law programs struggle with showing students how handle the cumulative pressures as they layer upon us year after year, and while toiling in a litigious environment. Law students and law graduates begin to see our lives as “us against the world.” If human ignorance is the karmic cause of a fractured worldview isolating the self, then Emptiness is a potential medicine. With some simple, practical adjustments to one’s viewpoint, a new source of healing and support is free to emerge.
And so lawyers continue learning, by error and by trial, ways of coping with burnout instead of how to prevent it. Many very meaningful approaches include faith-based practice, and Buddhist practice is not in opposition to or in tension with those. In fact, just the opposite. This piece is the first of several in which we explore the whether Buddhist Wisdom can inform our law teaching, law study, and law practice. There are countless productive and useful approaches, but an Emptiness practice is worth considering- and meriting further exploration.
See http://www.benchmarkinstitute.org/t_by_t/mcle/sa.pdf, hereinafter “Benchmark Institute”
 See “Benchmark Institute”
 See “Benchmark Institute”