Clinical Law Prof Blog

Featured Scholarship: The New Rehabilitation

Dan Filler has co-authored a new article, The New Rehabilitation, that will appear in Volume 91 of the Iowa Law Review.  Filler's scholarship focuses on the social production of law.  In this article he challenges the common notion that juvenile courts have lost their rehabilitative focus.  Filler and his co-author, Austin Smith, describe how judges, lawyers, and court personnel created rehabilitative "specialty courts" that have "transformed American juvenile justice policy from the ground up." 

You can check out the abstract below or download the article from SSRN. 

    

According to the standard account offered by most progressive observers of the juvenile courts, the goal of rehabilitation has virtually disappeared. While America's juvenile courts were explicitly designed to treat and rehabilitate children, these critics argue that these goals have been abandoned for a more punitive agenda. Most observers blame the demise of the rehabilitative ideal on the criminal procedural revolution of the Warren Court. In this narrative, the Court's well-intentioned decision to provide children constitutional safeguards unwittingly undermined the unique flexibility of the juvenile courts. Thus, the downfall of progressive juvenile justice policy provides yet another example of the conservative political backlash to 1960's liberalism.

The problem with this accepted history is that it is seriously incomplete. Rehabilitation remains vibrant in many juvenile courts throughout the country. This article exposes an important development in how America addresses juvenile crime: specialty courts. Drug courts, gun courts, mental health courts, and other tribunals all target offenders whose lives can be reclaimed through intensive intervention. Hundreds of such programs exist nationwide, including at least one in every state, transforming the experience of justice for tens of thousands of children. These courts are the product of local judges and other juvenile court regulars, rather than legislative edict.

Why are people ignoring this explosive rebirth of the rehabilitative ideal? It appears that scholars are looking in the wrong place to determine the nature of juvenile justice policy. The academic community has long assumed that these agendas are drawn up by legislatures, and implemented by local court officials. But as this paper explores, ordinary court functionaries - trial judges, lawyers, and other employees seeking to solve practical problems on the local level - have subverted the popular get-tough legislative agenda, and implemented their vision of sound juvenile punishment. We analyze these employees through the lens of political science literature about street level bureaucrat. We show that these individuals, motivated by a variety of things - ranging from personal policy preferences to self-interest - have actually transformed American juvenile justice policy from the ground up.

The Sixth International Clinical Conference Will be Held Oct. 27-30 in Arrowhead, California

The UCLA School of Law and the University of London Institute of Advanced Legal Studies have announced the Program and Registration for the Sixth International Conference on Clinical Legal Education and Scholarship to be held at Lake Arrowhead, California, from Thursday afternoon, October 27, through Sunday morning, October 30, 2005.  Conference organizers report that this year's theme of "Enriching Clinical Education" has drawn a remarkable range of papers from clinicians around the nation and across the world.

Full information about the conference, including the conference program, the panelists, registration and travel information, can be found at:  http://www.law.ucla.edu/sixth_international_clinical_conference/

Conference theme: The conference is centered on four broad themes: Skills Training Revisited, Structuring the Clinical Experience, Learning from Other Perspectives and the Globalization of Clinical Legal Education.  Under these broad rubrics, the schedule offers a series of panels that describe and evaluate ways in which clinical pedagogy is responding to the challenge of preparing our students to work in an increasingly complex, multi-party, technologically sophisticated, interdisciplinary, global legal world. 

Conference structure: Panel topics range from broad themes of revisiting the relationship between social justice and the clinic; to individual perspectives on how to design an effective clinic; and discrete topics of client counseling and interviewing such as how using an interpreter changes the lawyer-client relationship or prediction issues in client counseling. Other panels take a look at empirical work on measuring lawyer competence and structuring sophisticated simulations.   Given the remarkable growth of the clinical movement worldwide in recent years, we have also scheduled significant conference time to an examination of this phenomenon.  We are pleased to report that panelists include clinicians from Australia, China, England, India, Israel, Japan, Russia, and Scotland.

Contact for further information:

Susan Gillig, Assistant Dean for Academic Programs & Centers

Gillig@law.ucla.edu

Summer Rose, Conference Administrator

Rose@law.ucla.edu 

Wendy Haro, Conference Administrator

Haro @law.ucla.edu

Vermont Environmental Clinic Wins Howlin' Success

"The wolves are howlin"' in celebration, said Patrick Parenteau, director of the environmental law clinic at Vermont Law School after a federal judge Friday ordered the Bush administration to step up efforts to restore the gray wolf to four northeastern states. 

Parenteau, lead attorney in the case, said his students "did all the hard labor in the case. It's a nice victory for our students."

In an Associated Press story it was reported that Judge J. Garvan Murtha found that the Department of the Interior violated federal law in 2003 when it issued a rule saying no further efforts to restore the wolf were needed. The ruling covers Maine, New Hampshire, Vermont and New York state.

Efforts to restore wolves had been successful in Minnesota, Wisconsin and Michigan. The government wanted to lump those states in with the Northeast in a new, 21-state eastern region, and declare that enough had been done to restore wolf populations throughout the eastern United States.

Anthony Tur, a Fish and Wildlife Service field officer in Concord, N.H., said the agency's headquarters in Washington would decide whether to appeal the ruling.

He questioned the push to build gray wolf populations in the Northeast on two fronts, saying it wasn't clear that the public would support such a move and there was dispute in the scientific community about whether gray wolves ever populated the region.

Environmental groups, including the National Wildlife Federation and state groups in Vermont, Maine and New York, joined in the lawsuit. They argued that good wolf habitats exist in northern Maine and in New York's Adirondack Mountains, and that northern Vermont and New Hampshire likely would become an important corridor for wolves migrating between those two habitats.

Suit Filed By Vermont Environmental & Natural Resources Clinic Leads to Change in Handling of Marble Waste

Omya Inc., a mining company, has proposed  a more environmentally friendly approach to dealing with chemically treated marble waste.  The Rutland Herald reported that this action came two months after the Environmental and Natural Resources Law Clinic at Vermont Law School, sued Omya Inc. on behalf of neighbors of Omya's Florence calcium carbonate plant.  The federal lawsuit sought to stop Omya from further dumping its waste which neighbors were concerned was leaching into groundwater or nearby Otter Creek.

Omya filed an application for interim certification of its plan with the Agency of Natural Resources to use what's referred to in the mining industry as paste technology to dispose of its future marble waste or tailings.

The tailings, which contain chemical residues used in the calcium carbonate manufacturing process, have been stored in old quarries near the plant for the past 25 years.

James Reddy, Omya's president for North American Operations, said use of the technology would deal with future tailings, eliminating most of the water in the marble waste, which is then recycled back into the plant.

"We recover about 90 percent of the water and it goes right back into the plant and we continue to use it over and over again," Reddy said.

When a small amount of clay is added to the remaining waste, a paste-like substance is left over that dries quickly, binding the chemical residues making it safe to store, he said.

"It's as impermeable as a clay liner that you'd put at the bottom of a municipal waste landfill," Reddy said.

While calling Omya's proposal a "positive step," Pat Parenteau, a lawyer with the Environmental and Natural Resources Law Clinic, said Omya would never have taken action to address the problem if not for the pressure from its neighbors.

"… If it weren't for the legal pressure that the residents, through our help, have brought to bear on the state, they would have continued dumping these tailings into these quarries until they were finished," Parenteau said.

The state Health Department concluded nearly two years ago that chemicals found in monitoring wells near the Florence plant in Pittsford were "at levels of regulatory concern."

Those chemicals include tall oil, which is used as a flotation agent to separate the tailings from the calcium carbonate product, biocides (used as a preservative), acetone, tolune, chloroform, and lubricating oil.

Based on the potential threat, the Department of Environmental Conservation ruled in April that Omya's tailings require a solid waste facility certification.

If Omya's treatment and disposal plan receives state approval, Reddy said the company would invest in the neighborhood of $10 million in paste technology equipment, including a dewatering facility at the plant that would siphon the water from the marble waste.

As far as the 25 years' worth of tailings that have been stored on site, Reddy said the company is exploring the prospect of using that calcium carbonate to neutralize the acid waste at the Ely copper mine site in Vershire. He also said the Elizabeth copper mine in Strafford is also a potential site as well. Both sites are on the Environmental Protection Agency's Superfund list.

Reddy said Golder Associates, the company's consultant, and the EPA are conducting a study at the University of Vermont to determine the feasibility of using Omya's tailings to neutralize the acid mine drainage at the Ely site.

Since half the tailings consist of calcium carbonate, he said, another other possibility is to come up with a method to recover the calcium carbonate from the existing tailings.

If neither alternative proves feasible, Reddy said, the tailings "will stay there until we can figure out how to recover it or find another use for it."

Parenteau said if the tailings could be used at the old copper mines, "that could be a good solution to a couple of different problems but we have to await some further testing to see if that might work."

While the interim certification process is conducted administratively without a public hearing, Reddy said Omya is seeking public input.

"We requested a public hearing because we thought it much better to get this it out in the open and discuss it right from the start rather than do this behind closed doors," he said.

Calcium carbonate is used as a filler or extender in the paint, paper, plastics, food and pharmaceutical industries. The company's North American headquarters is located in Proctor.

Local Government Calls for Rutgers Clinic to Withdraw From Lawsuit

The Bridgeton county freeholders passed a resolution demanding that Rutgers Law Clinic cease its involvement in a lawsuit opposing the building of the New Jersey Motorsports Park, a proposed 700-acre, $100 million complex.  In a story appearing in the Bridgeton News it was reported that county freeholders unanimously voted to hire a law firm to assist the Millville Planning Board in fighting the lawsuit brought by environmental groups being represented by Assistant Clinical Professor Carter H. Strickland Jr., of the Rutgers Environmental Law Clinic.

Additionally, the county freeholders unanimously passed another resolutions passed in closed session demanding the withdrawal of the lawsuit by Citizens United to Protect the Maurice River and Its Tributaries Inc. "The freeholder board is going to speak with one voice that the litigation should be withdrawn -- that Rutgers should be withdrawn," said Freeholder Lou Magazzu, late Thursday night. "If not, we're going to stand shoulder-to-shoulder with the elected officials of Millville to preserve the 1,500 jobs and the ratables this project will bring."
    
New Jersey Motorsports Park, a proposed 700-acre, $100 million complex, promises to generate over $1 million in tax revenues, according to Millville officials.

By spring 2006, the developers hope to break ground and have Phase One of the project complete by 2007.

Citizens United to Protect the Maurice River and Its Tributaries Inc., the Association of New Jersey Environmental Commissions and the New Jersey Audubon Society filed the lawsuit against the city's planning board on March 30.

The suit is an attempt to declare the general development plan for the proposed motor sports park null and void.

It alleges the project will have an adverse effect on endangered and threatened species living in the area and their habitat, as well as create a significant noise problem.

Thursday's decision comes two days after a resolution was passed 11-1-1 by the Cumberland County Board of Economic Development also urging for the lawsuit to be withdrawn.

Jane Galetto, representing Citizens United, said Tuesday the environmental groups had no plans to withdraw their suit.

Budget Cuts Threaten University of Missouri Law School Child Protection Clinic

State budget cuts threaten to close down the University of Missouri-Columbia’s School of Law Child Protection Clinic.  A recent story appearing in the newspaper the Missourian reported that the Child Protection Clinics in Columbia and Kansas City are among a slew of programs that lost funding because of state budget cuts.  Both clinics, which help find permanent placement for children in the foster care system, were funded 100 percent by state grants. 

The cuts will mean the end of the programs unless the state or private grants emerge, said Tracy Gonzalez, MU law professor and director of the clinic.

Each grant — $150,000 per year — funded the professors’ salary and benefits.

“It’s very hard to handle - that just in an instant - it’s gone,” Gonzalez said. “I’m sorry to see it go because I worked so hard personally to create it, and we were just at the point where we were taking off.”

Both clinics provided legal assistance to the Department of Social Services Children’s division. “The goal was to assist kids out of foster care,” Gonzalez said.

A former public defender and child abuse/neglect prosecutor, Gonzalez helped establish the program three years ago. “Kids are better off in permanent placement than sitting in foster care for years and years,” Gonzalez said.

Gonzalez said that during the clinic’s three years, she and students found permanent placement for 85 to 90 children.

“This last year, we were well-established,” Gonzalez said. “People knew who we were. We served over 45 kids in one year. The judiciary is trusting us, the juvenile office is trusting us - we’re doing quality work. They became confident in the work the clinic students were doing.”

UMKC Child Protection Clinic director, Mary Kay O’Malley, said that since 2002 her clinic helped more than 300 children; 132 of those children received guardians as a result of the clinic.

Each semester, up to eight MU students took on an average of two to five cases. “One case could take up two huge, expandable file folders,” Gonzalez said.

The clinics represented the children’s division in cases where the division was seeking to terminate the parents’ rights to their children because of abuse or neglect. Terminating parental rights is a key step in moving the children toward adoption, said Gonzalez.

Students represented the childrens’ case workers, though not the children directly. They interviewed clients, drafted petitions, sat in on family planning sessions, held trials before judges and cross-examined witnesses.

They also participated in a class on child abuse/neglect law, taught by Gonzalez and O’Malley. The programs held mock trials in which students learned to question social workers as witnesses. The social workers, in turn, learned how to testify in court. The training was a free service to the Department of Social Services, Gonzalez said.

“The law school is known for its great clinics, and this was one of several,” said Larry Dessem, dean of the law school. “The legal profession is saying, ‘Why don’t law schools do more in practical training?’ There is simply no substitute for that sort of representation. When you have someone else’s livelihood or life in your hands, that’s a different experience.”

Ami Patel, a recent graduate and former clinic student, said the clinic helped her obtain her job as a prosecuting attorney in Springfield.

“One of the reasons they hired me is because of my experience with the child protection clinic,” said Patel, who was originally interested in tax law and accepted into several specialty programs. She chose state work instead because of her experience in the clinic. “They wanted people who are strong child’s advocates because there are a lot of abuse/neglect cases to prosecute.”

Gonzalez said the program influenced many law students to find ways to work in the public interest. “It’s teaching an area that’s needed.”

“Even if you become a corporate attorney, it’s really important that you don’t forget those most in need, and it’s the kids.”

Children and law students aren’t the only losers,  O’Malley said. State attorneys in the children’s division are “understaffed and overwhelmed with legal issues,” she said.

As to the coming semester, both programs will continue into the fall with the law schools absorbing the costs.

Rutgers Environmental Law Clinic to Sue Railraoad and Others for Using "Illegal" Waste Transfer Stations

Rutgers Environmental Law Clinic, representing the New York/New Jersey Baykeeper and Hackensack Riverkeeper annouced their intent to sue the New York Susquehanna & Western Railway Corp. and eight companies for allegedly violating federal law at a string of "illegal" waste transfer stations on the edge of the Meadowlands.

In a story appearing in NorthJersey.com, it was reported that the railroad and recycling and hauling companies are violating the Resource Conservation and Recovery Act by allowing potentially harmful pollutants to enter the air, water and environment from the "open air dumps" along the tracks.

The threatened legal action comes a week after acting Governor Codey announced the formation of a multi-agency task force to investigate the transfer facilities. The railroad was fined $2.5 million by the Department of Environmental Protection for alleged violations of state solid waste and air pollution laws at the five North Bergen sites, which opened without state approval.

New Jersey's federal lawmakers, meanwhile, have introduced legislation to close a loophole that allows rail lines to operate waste management facilities outside the purview of state and local authorities.

"I lived through the Meadowlands worst days," Sheehan said. "I'm now a big part of its renaissance ... and to have this railroad cloak themselves under some federal law and say they can continue to degrade the Meadowlands after all the work that we've done to try to clean it up, I take it as a personal insult."

While applauding the state's actions, Hackensack Riverkeeper Bill Sheehan said they are not enough to stop the problem.

"We support acting Governor Codey's call to harass these garbage dumps, and the significant fines imposed by the DEP, but public health and the environment will continue to suffer until the facilities are shut down," Sheehan declared.

"The railroad's arrogance is astounding," said Baykeeper Andrew Willner. "They think they are above the law" and are ignoring the "extremely hazardous pollution conditions" at the transfer sites.

Under the federal law, citizens can sue to abate violations but must give the defendants and governmental agencies 90 days notice before commencing legal action. The environmental groups are hoping the state will join the litigation and use it as a means to close down the transfer operations.

Clinic at Cardozo secures release of innocent man

Thomas Doswell, now 44, released after serving 18 years on a wrongful conviction. (Photo)

The Pittsburgh Post-Gazette reported August 3rd that through the legal work of the Innocence Project - a Clinical program at the Benjamin N. Cardozo School of Law at Yeshiva University, Thomas Doswell was released from prison after spending nearly 18 years behind bars for a rape he didn't commit. 

Despite his conviction, Doswell had steadfast asserted his innocence, however, until Doswell sent a letter to the Innocence Project, he could not get court permission to test the semen specimens taken after the rape.  Although the prosecutors initially argued that Doswell was not eligible for the testing, the Innocence Project moved for and received permision to get the seman sample DNA tested. The test results exonerated Doswell.  The Allegheny County district attorney, who concedes the forensic tests prove police got the wrong man, moved to dismiss the charges against Doswell.

For Doswell's full story please go to http://www.innocenceproject.org/case/display_profile.php?id=163

Rutgers Clinical Instructor Files Suit Over Paper-Free Voting Machines

Penny Venetis, Associate Director of the Constitutional Litigation Clinic at Rutgers School of Law, is representing a New Jersey citizen in a lawsuit over the state’s new electronic voting machines.  New Jersey passed a statute that requires the new machines to produce a paper record, but the law will not go into effect until January 1, 2008.  Venetis helped file the suit to ensure that voters are protected between now and the time the law takes effect.
"State law says every vote should be counted. It doesn't say they should be counted in three years," Venetis said.
The lawsuit was filed a month before elections last November, but a judge ruled that that was too late to challenge the use of the electronic machines.  The case is now on appeal before the New Jersey Court of appeals.

A Wayne Clinic Student Argues Before the Sixth Circuit

On July 27, 2005, Diana McBroom, a third-year Wayne State University Law School student, argued before the Sixth Circuit in Sallier v. Scott.  The case  involved the award of attorneys'  fees in prisoner civil  rights cases.  Adjunct Professor and Staff Attorney Daniel E. Manville supervised at the argument.  The brief was submitted by both Manville and Professor Erica Eisinger.
The energies of McBroom and the faculty who helped her moot were well spent - at the end of the argument, panel members praised McBroom's excellent performance.  Sixth Circuit Judge Daughtrey stated that this was the first time a student had argued before the circuit.