Wednesday, February 3, 2016
As clinicians we know that our students do amazing work. A lot of what we associate as clinical work falls into the client-case-court realm, but clinicians like Prof. Fran Quigley at Indiana University Robert H. McKinney's Health and Human Rights Clinic have expanded that work into the larger forum of policy advocacy, and with some amazing results.
Starting in Fall 2015, Prof. Quigley's students identified legal barriers faced by their clients, researched those issues, and then took it a step further by creating comprehensive manuals that, according to Prof. Quigley "...outline the scope of Indiana’s problem [regarding drivers license suspension fees], explain how it relates to the national landscape, and make thoughtful recommendations for how lawmakers can solve it."
Prof. Quigley's work is another inspiring reminder that we have many options as clinicians to engage our students in multiple types of advocacy, making our impact even greater for our communities as a whole. To read more about this process and access the students' report, click on the link below.
Thursday, January 28, 2016
With thanks to my colleague and co-blogger, Prof. Tanya Cooper, and her team who edit the CLEA Newsletter, I am cross-posting my article on California's TFARR proposals from the Winter 2015-2016 issue. This is a variation on a theme I've addressed previously on this blog.
In November 2014, the State Bar of California’s Task Force on Admissions Regulatory Reform (“TFARR”) completed twenty-eight months of work considering new standards for admission to the bar. TFARR followed dramatic new standards for admission to the New York bar that require pro bono and increased experiential learning requirements in law school. (New York announced its final, amended rules in December 2015, available through links here.)
TFARR’s policy is to protect the public and to promote the profession by ensuring law students are better prepared to be ethical professionals when they enter practice. TFARR’s proposals do not bind law schools directly. Rather, they would impose requirements for admission to the California bar that would implicate every law student’s experiences and curricular choices in law school. In early 2015, the Bar’s Board of Trustees adopted the report and proposed new rules. They are not effective yet but await approval and enactment from the California Supreme Court.
Complete information and the text of the proposed rules are available at the TFARR pages on the Bar’s site here.
TFARR’s proposed rules include two important enhancements to experiential learning that will affect all law schools in California and any law student in the country who seeks admission to the California bar. First, the proposed standards would require students to complete fifteen academic units of experiential course work. This “practice-based experiential competency training” would include clinics and externships. It would also include typical simulation and “professional skills” courses (now known as “experiential” under recent ABA revisions) as designated by the law schools. TFARR also permits law schools to designate an experiential component within a standard doctrinal course to count toward this training. First year legal research and writing courses will not count toward the fifteen units. (TFARR’s requirement exceeds the new ABA standard that requires students to complete six units of experiential course work, and the ABA rules do not permit schools to carve out a portion of otherwise doctrinal classes as experiential.)
The proposed rules provide for an alternative path to fulfill a portion of the competency training through “apprenticeships” outside of law school curriculum. An apprenticeship is supervised legal work, with or without pay, like traditional judicial or law firm clerkships or summer associate jobs, which meets expressed pedagogical standards. A student could earn up to six units toward the required competency training through an apprenticeship. Every fifty hours working in a qualifying apprenticeship can count as a unit toward the fifteen required for bar purposes, although these would not be academic credits toward law school graduation.
Second, the TFARR admission rules would require applicants to provide fifty hours of supervised pro bono legal services. The new rules aim for increased access to justice, but the principle policy is to provide experience in practice that inculcates virtues and values of public citizenship and ethical lawyering. The TFARR definition for pro bono is very similar to Rule 6.1 of the ABA Model Rules of Professional Conduct. From the proposed requirements:
“Pro bono” means providing or enabling direct delivery of supervised legal services without expectation of compensation from the client other than reimbursement of expenses to
(1) persons of limited means . . . ;
(2) charitable, religious, civic, community, governmental and educational organizations in matters that are designed primarily to address the needs of persons of limited means; or
(3) individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights, or charitable, religious, civic, community, governmental and educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization’s economic resources or would be otherwise inappropriate.
Qualifying pro bono experiences can be in law school clinics, field placements in these categories, or other volunteer or internship opportunities with lawyers in these categories. Some questions remain about whether placements with prosecutors or courts would qualify, but the general consensus is that these placements do not qualify because they do not fit the definitions.
Under the proposals, students could earn “dual credit” toward both requirements in law school clinics and qualifying field placements. This provision creates great incentives for students to enroll in experiential courses that satisfy the pro bono requirement simultaneously. This, in turn, creates incentives for law schools to increase capacity in diverse clinical and externship courses.
The proposals create new challenges and opportunities for law schools and collaborating public interest lawyers. Very often, law students earn externship credit with public interest legal services providers, and the new rules may create dramatic new demand for these placements where students can earn dual credit. The rules could increase talent and capacity available for public interest lawyers, but it could also impose new burdens on training and resources to supervise law students who work for a relatively short time. At once, TFARR will require increased collaboration among law schools and legal services providers while deepening the need for more capacity within law schools to provide these experiences.
Some law school administrators, most notably not from California, have leveled reactionary criticism that TFARR rules intrude on law schools’ priorities and pedagogy. A few deans have argued that these new rules would limit law student options and squelch innovation. This criticism runs counter to the experiences at law schools that are preparing for the new standards instead of opposing them. TFARR does not stifle innovative teaching; TFARR promotes it.
Pepperdine University School of Law is the first California law school to adopt the TFARR standards as its own graduation requirements. Beginning with the Class of 2017, students must complete fifty hours of pro bono service and fifteen units of experiential courses. This has spurred efforts to use existing resources and to experiment with new course forms to build internal capacity so that students have sufficient opportunities to complete the requirements across diverse practice areas. In addition to existing clinics, externships, and experiential courses in alternative dispute resolution, Pepperdine has developed new clinics devoted to corporate and policy practice for nonprofits, multidisciplinary practice around gender-based crimes, and tax practice for indigent clients. The law school is experimenting with practicum courses focused on federal criminal practice and on diversionary sentencing and civil legal services for veterans. It is launching new practice-based initiatives for entrepreneurship and tech start-ups. Doctrinal professors are designing practice-based components in substantive courses like torts, ethics, intellectual property, entertainment, and privacy law. Faculty, students and staff are generating pro bono opportunities with collaborators in Los Angeles, rural Southern California, Washington D.C., and abroad in Europe, Asia and Africa.
TFARR reforms would formalize policies that most law schools already tout as aspirational virtues. The new rules would promote professional formation and client-readiness. They are consistent with moves toward formative assessment. In the marketplace of legal education and law practice, the bench and bar have been pushing applied, apprenticeship education back onto law schools for a generation. Law schools have responded in varying degrees of cheerful creativity or reactionary opposition, but with TFARR, and the New York rules before it, the bar has gotten serious as law schools have slowed their responses in the present enrollment and economic crises. These moves are the market signaling to law schools that they must do a better job teaching students how to be ethical, useful professionals, for the sake of justice, the rule of law, the public, and the profession itself.
Wednesday, January 13, 2016
“Does it matter?” he asked. We were standing at a sundries kiosk at JFK. I had placed an item on the counter and asked the cashier if they had a different version. “No,” she replied, and while doing so, a white man in his late 30s reached across me and handed the cashier his intended purchase. “Actually, I was next,” I asserted, and he dismissively replied, “No, you weren’t.” I wondered how he logically could believe that he arrived first when I was already engaged with the cashier. She took his item, ignoring mine on the counter, and began to ring him up.
“In fact, I was,” I assured him. “I was standing here, my item was on the counter, and I was talking to the cashier when you just reached across me.” Dismissively, he shrugged while the cashier continued with his transaction. “Does it matter?” he asked.
It was the fourth time in twenty-four hours that people had cut in front of me in lines. Was this just New York culture assaulting my delicate Oregon sensibilities or was something more going on? All four incidents involved white or Middle Eastern men appearing to be between their mid-twenties and their mid-forties. All treated me like I was invisible. Did they feel emboldened by privilege or cultural preemption or did they really not see me?
Was it my packaging of 112 pounds in five feet, half an inch? My female gender? My middle age? I had read research about how people stop listening to women in their 50s. Still in my forties, I wondered whether this was the beginning of my obsolescence.
I thought of the ways I try to make myself bigger, stronger, less subject to being dismissed. I often wear suits and make up and shoes intended to convey confidence. I hold my shoulders back and my head high and talk an octave lower than I did before law school. I look people in the eye and talk directly and with authority. I have read the research. I use my middle name because it is more masculine and add my initials when I need to. When people are condescending, I sometimes have to call them on it and disclose my experience or education or qualifications.
And when someone cuts in front of me in line, I will sometimes assert myself and say, “Actually, I was next,” and they usually agree and step back. But he did not. Instead, he denied reality and then asked, “Does it matter?”
“Why, yes, it matters!” I want to respond passionately. Seeing other people matters. Treating one another with respect matters. Taking turns matters. Not relying on privilege to fast track through life matters.
I thought of all the ways that privilege blinds us to those and that before us—the very tragic and profound ways in which we have told groups of people that their time doesn’t matter, their voice, their opportunities, their health, their education, their very lives don’t matter. We don’t see some people and when they assert themselves—their rights or needs or desires—we, at best, marginalize them and, at worst, are threatened and ostracize and occasionally kill them.
I thought of the implicit bias embedded in his mind that may have made me invisible to him, and the discrimination that is inherent in our cultural DNA—discrimination against women, minorities, immigrants, and those who are disabled, very young or growing old.
I thought of the dual tragedy inherent in our blindness to others. Not only are others dehumanized and subjugated by our blindness, we are dehumanized as well. We are less human and our minds and lives are less rich for not seeing so many varied and lively and colorful human beings who are so very different—in language and appearance and dress—and yet not very different from us at all.
I thought of the threat to society when we are blind to one another, when inequality or privilege is seen as acceptable, if not preferable. What happens to a society where fairness is lacking, and justice does not reign?
Emboldened with these cascading thoughts, I assured him that, “Yes, it matters,” and as I drew my breath to explain all the reasons why, he simply said, “Then you just go ahead,” as the cashier handed him his change and he picked up his item and walked to his gate.
Tuesday, December 15, 2015
With a memo to deans and other interested people on December 11, the ABA is seeking notice and comment to significant revisions of Standards 304 and 305. These would move the standards governing field placements from 305 to 304 which governs clinics and simulation courses.
The memo describes these proposed revision:
In moving field placements to Standard 304, requirements are added that are commensurate with those required for clinics and simulation courses—a means of guided reflection; opportunities for performance, feedback, and self-evaluation; and direct supervision. The new Standard also defines a field placement course as one that provides substantial lawyering experience and calls for the creation of a written understanding for the experience. It also imports components from Standard 305 such as the requirement for appropriate prerequisites or sufficient training, and the need for credit granted to be commensurate with the time and effort required. The revision removes any distinctions in the requirements for these programs based on credits offered, and mandates that records should be maintained for all placements. The revision also requires that law schools maintain sufficient control of the student experience at the field placement site to ensure that the requirements of the Standard are met.
Most significantly, "this proposal eliminates current Interpretation 305-2 (“A law school may not grant credit to a student for participation in a field placement program for which the student receives compensation.”) and does not include a similar prohibition in revised Standard 304."
Instructions for submitting comments are in the memo here: Notice and Comment - December 11 2015.
Friday, December 4, 2015
On Wednesday, I posted an angry lament on Facebook in the wake of the violent atrocity in our Southern California community. It spawned a hot, predictable social media debate on guns and religion. Here is my summary comment to that conversation that has helped me clarify my own thinking.
We have a crisis of violence, hatred, fear and radicalization across many spectra in our nation. This may not even be new; it may be written into our national roots and character. It is ours, though, here and now, and this crisis is not inevitable or invincible. We do not have to live like this and fortify ourselves in bunkers of fear and arms, suspicious of everyone and ready for a quick-draw.
When I say we need to do something, I mean we need to do everything.
Yes, I favor very strict and highly regulated gun control. I also favor intense, compassionate, wise policing and intelligence, under the rule of law and accountability. I favor public investment in resources that will keep our communities safe and vibrant. I favor political discourse and journalism that does not radicalize us but informs and illuminates us. I favor rich, deep, accessible, extensive, and excellent public education for every child in America from preschool to graduate school. I favor public policy and private responses that invite inclusion and empowerment of marginalized, impoverished and vulnerable communities. I favor racial reconciliation and an end to the corrupt and violent state-complicity in the school-to-prison pipeline. I favor restorative justice and diversionary, alternative sentencing programs. I favor a capable and expert military, and I even favor the draft. I favor rich public and private investment in art, music and beauty. I favor the defiant, unyielding insistence that every single human being is a dignified soul entitled to love, hope and inclusion. I favor politics that seek solutions through compromise, creativity, negotiation and optimism. I favor wise laws that keep us safe and that respect the human, civil and constitutional rights we claim, and the only things that keep us from that balance are fear, greed and a lack of imagination. I favor the cultivation and care of communities of peace, sharing, mutual dependence, hope and empathy.
Fundamentalism of any and every species is the enemy, and fear is its weapon. We must stand against the tides of fear, ignorance, apathy, violence and exclusion, the forces that drive us apart. Our weapons must be wisdom, courage, love, creativity, humility, illumination, education, hope, and a fierce, tangible commitment to inclusion and dignity.
As Reinhold Niebuhr wrote, "The fight for justice in society will always be a fight. But wherever the spirit of justice grows imaginative and is transmuted into love, a love in which the interests of the other are espoused, the struggle is transcended by just that much."
Tuesday, October 20, 2015
This week, I received my annual ballot from U.S. News & World Report to rank law school programs for “clinical training.” Clinical program directors get to vote on peer schools with notoriously slim guidance and standards. Each year, CLEA issues a statement criticizing the process and offering some standards for consideration. CLEA attempts a balance among the idealistic desire to eliminate the entire process, the cynical temptation to utterly game the rankings, and a sincere attempt to guide us all to handle it the best we can. We are all at once frustrated and complicit with the regime.
This year, however, I note a new and strange oversight that belies the integrity of the enterprise.
The survey includes instructions and scant standards, but this year’s are extra perplexing. For the “Annual Peer Assessment of Law Schools Clinical Training,” the instructions include this guidance (emphasis added):
2. Identify up to fifteen (15) schools that have the highest quality alternative dispute resolution courses or programs. In making your choices, consider all elements that contribute to a program’s academic excellence, for example, the depth and breadth of the program, faculty research and publication, etc.
Now, my colleagues down the hall in the Straus Institute for Dispute Resolution have been ranked #1 in their category for 11 straight years, and I sometimes teach on the Straus faculty. Maybe this will help our clinical program ranking, but probably that’s not what USN has in mind.
In my pained ambivalence, I will assume that the USN folks mean to inquire about clinical programs, but apparently they are paying us very little attention and care. I intend to follow CLEA’s much better advice, but perhaps USN should consider whether proof reading might make its product more reliable.
UPDATE: We are not alone.
UPDATE II: On Oct. 23, 2015, USN sent out revised surveys, correcting for the mistake and seeking rankings on the "highest quality clinical training courses and programs," due on Nov. 16.
Thursday, October 8, 2015
Paul Caron at the TaxProf Blog has posted a letter from our dean, Deanell Tacha, to the AALS Deans Forum Steering Committee, to express her support of the TFARR proposals and processes in California.
The TFARR process in California has resulted in significant ways in bringing the profession and law schools together. Whether any of the recommendations is adopted remains to be seen, but I can say with some confidence that the process itself has strengthened relationships within the profession. Mutual respect and understanding characterized the process. Most important, the TFARR work, in my judgment, served the people of California by highlighting so many of the challenges that lie ahead in delivering high quality, affordable legal services in this state and in providing the rigorous grounding for new lawyers that will equip them for the intellectual and practical issues they will confront in a changing legal landscape. TFARR has helped focus the profession on the need to work together to serve the noble ends of justice to which we are all committed.
Tuesday, August 18, 2015
Thank you to Prof. Jayesh Rathod, 2015 Chair, AALS Section on Clinical Legal Education, and the executive committee for good work on this statement and these defining issues.
Here is the statement in full:
AALS Section on Clinical Legal Education
Statement of Position Regarding the State Bar of California Task Force on Admissions Regulation Reform (TFARR) Experiential Education Requirement
The Association of American Law Schools Section on Clinical Legal Education (“AALS Clinical Section”) applauds the Trustees of the State Bar of California for unanimously adopting the proposal of the Task Force on Admissions Regulation Reform (“TFARR”) to require applicants to have completed 15 credits of experiential education prior to sitting for the California Bar. The AALS Clinical Section is made up of hundreds of legal educators, including many in California who have dedicated their professional lives to preparing students for the practice of law through in-house clinics, externships, and other experiential educationalofferings. In recent years, we collectively and individually have been involved in efforts to ensure that our JD students are more ready for practice, consistent with calls for such training made by bar associations, alumni, prospective students, and fellow educators. Many of us have participated actively in state bar associations and on bar committees, allowing us to appreciate the goals of both the legal academy and state regulators. With these experiences and perspectives in mind, we believe that the TFARR proposal, which encourages the integration of 21st century lawyering skills into the core of legal education, presents a significant opportunity to better prepare students to meet the demands of clients upon admission to the bar.
As the Clinical Legal Education Association (CLEA) and other stakeholders have noted, the legal profession has lagged far behind every other profession in regards to required pre-licensing professional skills education. Numerous studies over the past four decades by the American Bar Association (ABA) and others have decried this lack of practical training and called for reforms to the required law school curriculum.1 As a result of these reports, the ABA recently increased the number of credits of experiential education required of JD students from 1 to 6 credits.2 While this represents a significant increase for law students, it corresponds to less than 8% of the JD program. It is also 4 times less than the practical training required of social workers and nurses and more than 6 times less than the practical training required of physicians.3
A. The Proposal Reflects an Increased Demand for Experiential Opportunities
Law students also have been clamoring for more experiential education opportunities. The greatest evidence of this demand is the criteria students rely upon when choosing a law school. These choices have become ever more important for law schools facing declining application numbers. A Law School Admission Council study in 2013 found that clinics/internships were among the most influential factors for prospective students in deciding whether to enroll at a given law school, behind only location and employment of graduates (77% of respondents considered location to be a very important factor and 68% classified clinics/internships as very important).4 In fact, experiential offerings were more important to these prospective students than the cost of the institution, the personal attention they would receive, a school’s ranking, and the reputation of faculty. In addition, a survey conducted in 2004 of recent law school graduates found that opportunities for professional skills training (including clinical courses and legal employment) were rated as the most helpful law school experiences in successfully transitioning to practice.5 Surveys conducted by the National Association for Law Placement in 2010 and 2011 likewise found that lawyers in the private, government, and non-profit sectors attached great value to their law school clinic experiences.6 Thus, from the viewpoints of prospective law students, recent graduates, and more senior lawyers, practical training is vital.
B. The Proposal Permits Great Flexibility and Aligns with the ABA Rules
We are aware that TFARR took these factors into account and that it crafted and revised the final proposal over several years during which it worked closely with California law schools, practitioners, and the judiciary, and engaged in extensive information gathering, including numerous opportunities for public comment. The result is a proposal that gives law schools guidance on developing and evaluating experiential learning offerings while simultaneously giving schools flexibility to design these offerings in ways that suit particular institutional missions, student bodies, and relevant legal markets. First and foremost, the proposed California bar rules provide a “safe harbor” for courses that comply with the revised ABA standard, thus allowing ABA-accredited schools to offer programs that simultaneously satisfy both requirements. Under both sets of rules, virtually any topic taught in a real-client or simulated setting will satisfy the ABA and the California Bar, including interdisciplinary courses developed in collaboration with other professional schools. Skills learned can be as diverse as law practice management, client counseling, practical writing (including transactional writing), and pre-trial preparation.
In addition, under the California rules, the settings in which these skills can be learned include traditional courses, clinics and externships, uncredited clerkships, and apprenticeships. The proposal even allows for portions of a course to count, such that a 3-credit course that uses a contract-drafting exercise for 1/3 of the class time could count the 1-credit module towards the 15-credit requirement. Moreover, in a nod to schools experimenting with their first-year curricula, all but the first 4 units of first-year legal research/writing courses can count towards the 15 credits if they are taught through real or simulated client work. Finally, summer work that is uncredited is specifically allowed to count for up to 6 of the 15 required units. Thus, there are virtually limitless permutations of course, field, and uncredited work that law schools can offer to their students in order to meet both the ABA and California rules.
Moreover, the emphasis on skills (as opposed to substantive practice areas) provides schools the ability to tailor offerings to the local marketplace (e.g., oil and gas offerings in Texas or maritime law offerings at coastal schools). The result is that virtually any legal experience a student gains, whether in a law and policy reform organization or at the U.S. Patent and Trademark Office, can potentially count towards the 15-credit requirement. This provides a great deal of room for innovation, allowing institutions to experiment with the delivery of skills and professional training and draw upon generally under-utilized resources such as alumni.
As with any new undertaking, there will be a period of adjustment as schools begin to grapple with both the new ABA requirements as well as state requirements like those proposed by TFARR. TFARR has wisely taken this adjustment period into account by offering exemptions for licensed attorneys from other jurisdictions and allowing post-graduate apprenticeships (which can be paid) to meet the 15-credit requirement. This will ensure that schools have plenty of time to audit and/or ramp up their offerings, that lawyers who had not planned to practice in California still have access to that state’s bar, and that students have every opportunity to learn about and meet the requirements prior to their first bar admission.
Overall, the TFARR proposal presents a significant opportunity to improve the overall competency of new admittees to the State Bar of California. As students enter a rapidly changing and expanding legal marketplace, it is incumbent upon the Bar to ensure that law graduates have the doctrinal knowledge and professional and interpersonal skills needed to effectively and ethically represent clients in California. The TFARR proposal would advance this important obligation of the Bar and help legal education fulfill the demands of our students, their future clients, and the legal profession.
*. Disclaimer in accordance with AALS Executive Committee Regulation 1.4: The opinions expressed here are not necessarily those of each member of the Section and do not necessarily represent the position of the Association of American Law Schools. ^
1. The ABA’s 1979 Report and Recommendation of the Task Force on Lawyer Competency: The Role of the Law Schools (“the Crampton Report”) proposed that law school curricula pay more attention to providing professional experiences. The ABA’s 1983 Task Force on Professional Competence shared this perspective and recommended that the ABA make enhanced law school training in lawyering skills a top priority. A decade later, the 1992 ABA Report of the Task Force on Law Schools and the Profession: Narrowing the Gap (“the MacCrate Report”) recommended that law schools “develop or expand instruction” in fundamental lawyering skills and professional values; and the most recent, the ABA Task Force on the Future of Legal Education Report and Recommendation reiterated the “calls for more attention to skills training, experiential learning, and the development of practicerelated competencies” and noted that the “balance between doctrinal instruction and focused preparation for the delivery of legal services needs to shift still further towards [the latter].” In addition, the Carnegie Foundation for the Advancement of Teaching publication, EDUCATING LAWYERS: PREPARATION FOR THE PROFESSION OF LAW (2007), found that courses that included real-life experience with lawyering could teach students all of the relevant professional competencies: intellectual, practical, and formation of professional identity and judgment. ^
2. ABA Standard 303(a)(3). ^
3. Robert R. Kuehn, Pricing Clinical Legal Education, 92 DENVER L. REV. 1, Appendix A (2015) (citing MOLLY COOKE ET AL., EDUCATING PHYSICIANS: A CALL FOR REFORM OF MEDICAL SCHOOL AND RESIDENCY (2010); and COUNCIL ON SOCIAL WORK EDUC., EDUCATIONAL POLICY AND ACCREDITATION STANDARDS, at Educ. Policy 2.3., Accreditation Std. 2.1.3 (2012)). ^
4. The survey ranked factors based on the percentage of respondents who rated each factor as “4” or “5” on a 5-point scale, with “3” as “somewhat important” and “5” as “extremely important.” See Law School Admission Council, LSAC REPORT, May 2013, at 12. ^
5. NALP FOUNDATION FOR LAW CAREER RESEARCH AND EDUCATION & AMERICAN BAR FOUNDATION, AFTER THE JD: FIRST RESULTS OF A NATIONAL STUDY OF LEGAL CAREERS 81 (2004). ^
6. NATIONAL ASSOCIATION FOR LAW PLACEMENT & THE NALP FOUNDATION, 2010 SURVEY OF LAW SCHOOL EXPERIENTIAL LEARNING OPPORTUNITIES AND BENEFITS 6 (2011); NATIONAL ASSOCIATION FOR LAW PLACEMENT & THE NALP FOUNDATION, 2011 SURVEY OF LAW SCHOOL EXPERIENTIAL LEARNING OPPORTUNITIES AND BENEFITS: RESPONSES FROM GOVERNMENT AND NONPROFIT LAWYERS 7 (2012). ^
Wednesday, August 12, 2015
I wrote previously about Pepperdine’s proactive approach to these rules. Our faculty has adopted these standards as graduation requirements beginning with the Class of 2017, in advance of the rules' formal enactment, to ensure that our students and our school are prepared and to accomplish these objectives well and eagerly. We are actively building capacity in our program of clinical education, adding clinics, creating practicums, developing new experiential opportunities across every law school center, examining our curriculum, and building a flexible, compliant program to generate pro bono opportunities for students. The new rules have given us great incentive to innovate and adapt, with a renewed focus on professional formation, and to live into our own mission.
I spoke on a panel last year at Pepperdine’s Judicial Clerkship Institute with my dean, Deanell Tacha, who served on TFARR, Chief Judge Jonathan Lippman of New York who has led the way on these reforms, and Justice Jon Streeter, formerly president of the California Bar and chair of TFARR. We discussed the experiences students should seek and receive to prepare for elite practices and judicial clerkships, and the judges agreed with the dean and the clinical law professor that students need more courses and experiences that will generate wisdom, creativity, humility, integrity, diligence and excellence, within a pervasive understanding of lawyers' roles and obligations to society. Justice Streeter expressed confidence and optimism that the rules will be adopted.
Monday, August 10, 2015
“Not to sound cheesy, but I came to law school because I want to help create a more just society.” Yes, a student actually made this statement, and the phrase that kept rattling around my head was “Houston, we have a problem.” I acknowledge that becoming a lawyer is an arduous and academic endeavor and that we must teach analytical skills that our students will need to maneuver the complexities that exist within the law. However, if students are taking away the message that pursuing justice is “cheesy,” I think our profession may be in some serious trouble.
I teach a reflective seminar at Gonzaga University School of Law that runs concurrently with students’ externship experiences. The idea is to dissect the experiences that students are having in the field. Our discussions cover a wide-range of subjects, but typically, we discuss the issues that are most pressing for our students…the realities and imperfections of our system, the importance of effective communication, the importance of asking for help or clarifying an assignment, that collaboration often produces better results, how to face our mistakes....While most of my students humor me, I know that a significant portion of them fail to see the value of a class that is based solely on the opportunity for reflection. Of course, how can I blame them? Our curricula are heavily focused on the development of technical skills and proficiencies. Opportunities for reflection rarely exist and are usually not integrated into doctrinal and skills courses. Additionally, although supportive, many of my colleagues see the course as “touchy-feely” and lacking in academic rigor. Reflection is often devalued in law school, and I think this can be the start of the devaluation of our profession ideals.
My students are easily able to engage in a thorough, meaningful, objective discussion about the skills that excellent lawyers possess, such as empathy, diligence, self-awareness, and authenticity, but when I ask them to assess these qualities in themselves or to consider how they will emulate them in the future, the resistance (and occasionally the eye-rolling) starts mounting.
I am privileged to have the space, forum and opportunity to muse about these issues and pose questions to my fellow clinicians. So, I’m curious. How do you get your students and colleagues to value the process of reflection? How do we use opportunities to reflect as a catalyst for remembering that the pursuit of justice is not “cheesy" but a beautiful, worthwhile and, at times, even an attainable aspiration?
Monday, July 13, 2015
Harper Lee is publishing Go Set A Watchman this week, and I am worried about it. I am worried about its provenance, its timing and its quality. I am not worried that we will learn that Atticus Finch is a racist. If we read To Kill A Mockingbird closely, that will come as no surprise.
I have a tendency to talk about Atticus Finch and the events of To Kill A Mockingbird as if they are historical. TKAM is my canon, and Atticus is a hero. I’m an Alabama lawyer. I wear seersucker, even in California. I avoided seeing the Gregory Peck movie until well into my 30s because the images in my head from the novel were too sacred to interrupt with a Hollywood vision. I taught Law & Literature one summer in Montgomery, and my students joked that it should have been the Law & Atticus Finch. My second daughter’s middle name is Scout. I love me some Atticus Finch and take these matters seriously.
My love for the novel and its people and places certainly isn’t rare. It is transformative, holy writ in American letters, law and justice. Along with so many other adoring readers, the late release of Go Set A Watchman has troubled me much. I am relatively satisfied now that people and powers are not exploiting Harper Lee, although releasing the once rejected book now is bizarre and problematic. Even so, I am excited to read it, unless, as Maureen Corrigan suggests that this new-old-revised-previous Atticus is “different in kind, not just degree.”
Some, however, appear to be shocked to discover that Atticus Finch is a racist who doesn’t mind segregation all that much and just wants to treat his neighbors kindly without rocking the boat, a Southern white man alarmed at the Supreme Court’s intrusion into the equilibrium of Southern culture. We often give folks a pass on complicity by saying they are people “of their time.” Atticus is a man of his time, a thriving presence in his town, a pillar of his community. That time, town and community are all manifestations of reconstructed, impoverished, racist, segregation, and it’s not Atticus’s plan to disrupt it. His plan is to get Tom Robinson to trial alive and to try hard to make that trial fair. He does this on the strength of his own reputation, not by indicting Jim Crow.
In TKAM, Atticus is a hero lawyer, but he is not a hero for racial justice. He was a courageous, kind, benevolent, paternal white man on the top of a segregated social order, and he did nothing to change that. He’s not really offended or outraged by it. He did not challenge it among his neighbors, and his defense of Tom Robinson was not a crusade for racial reconciliation. Atticus’s heroism was in the service of the law, the rule of law, procedural fairness and access to justice. Atticus was decent and true, honest and courageous, but the causes that led him to risk his reputation and his family’s safety were his own honor as a lawyer and his devotion to the rule of law. He was no agitator, no prophet.
The New York Times’s early review susses out the new ideas of Go Set A Watchman, that Atticus Finch, decades after the Tom Robinson trial, is not a radical warrior for racial justice. Scout returns to Alabama from New York as a hard working 20-something woman to find her father and her fiancé angry about Brown v. Board of Education. Atticus resists integration and is a common white professional in Alabama in the 50s, conservative and reticent, stoic and diligent, benevolent but not interested in uprooting a social structure reliant on white supremacy and segregation.
This should not be a huge shock. When Atticus tells Jem that he shouldn’t judge a man until he has walked in his shoes, he’s talking about their white neighbors, not the black folk. When he says it’s a sin to kill a songbird, it’s a patriarchal metaphor rooted in chivalrous noblesse oblige. Atticus makes sure his white peers are not made unduly uncomfortable by his court appointed case. He wants a fair trial for Tom Robinson, but he doesn’t mean to offend anyone by it. He soft sells the town’s racism to keep the jury engaged.
Atticus guards the jailhouse from the lynch mob with astounding courage and inspiring pacifism. He guards it literally with illumination (the lamp), knowledge (the newspaper) and himself. But he was standing his ground in the defense of the American jury trial and the client to whom he owes loyalty and zealous advocacy. He was willing to put himself, unarmed and guarded only by his own ethos and honor, between the mob and his client, but it wasn’t to dismantle segregation. He and his children guarded the mob from itself, too, pulling the culture back from the brink of lawless violence to make sure the work of the court could go on.
If Atticus had tried to lead a movement against segregation and white supremacy, he very likely would have lost the trial worse than he did, and along the way, he would have lost his practice, his seat in the legislature and his standing in the community. He would have exposed his client’s family and his own to terror. It would not have served his client, even if it was the righteous cause, so even if he would have railed against racism, he made a savvy move to craft a different narrative.
In the trial, Atticus’s principal move to seek an acquittal was to pit Tom’s credibility against the Ewells. Here he tries to pit one bias against another, hoping that disdain for the white-trash, irreligious rednecks will overcome the blunt racism against a black man who works hard for his family. The jury can’t do what he asks, and he never really expected them to. He fought to give Tom a fair trial, like the best kind of public citizen lawyer, and he called on the jury to do their democratic duty under the law. He did not call out their own racism or impugn the segregated system that funneled them all into the courthouse in the first place.
Atticus knew he would get an appeal and intended to take it, but Tom was shot and killed trying to escape because he realized there were forces beyond his lawyer’s control, finally. Ewell got his justice when he tried to defend his own honor on the Finch children, but even then, the Sheriff forced Atticus to concede that to prosecute or celebrate Boo Radley would be unfair to Boo and disruptive to the balance of the town. It was the hardest pill Atticus had to swallow, admitting that the law and process might not render real justice, but he realizes it only when it affects his own.
Atticus Finch is the personification of Southern duality: hospitable, honorable, generous, honest and profoundly committed to community and family, and complicit in systemic injustice, self-destructive mythology and a strong preference for nostalgic stasis. Peace, order and stability trump the disruptions and discomfort necessary for real justice and reconciliation.
Atticus Finch is my hero, but he is not a perfect archetype. He is flawed, tragically. He is a great lawyer, a great neighbor, honest and true, the kind of person and attorney who does the work that must be done regardless of the price. The lawyer whom everyone trusts to do the work they will not do themselves. He sacrificed himself and his family for his client, for the law and for the fairness of the justice system. He called his community to its better angels. He is creative, dogged and deeply devoted to the law, demanding by his presence that his client receive a fair trial.
In all of that, he does not publicly critique segregation or the systems that oppress and divide. He doesn’t call people from their inherited ways. He knows who he is, who his neighbors are, what the system is, what the culture wrought, but his is the way of a lawyer with a client. He is not a prophet with a cause. He provides comfort and courage within the boundaries of his own world and people, making an incremental nudge towards decency, not a revolution.
Go Set A Watchman may change all this and call Atticus into disrepute. I hope it doesn’t. Atticus is already plenty nuanced, human, striving and failing. As with most mythology, the reality is much more compelling than the pleasant stories we choose to remember.
Tuesday, June 2, 2015
Here is the announcement for the Clinical Writers' Workshop from the editors of the Clinical Law Review:
The Clinical Law Review will hold its next Clinical Writers’ Workshop on Saturday, September 26, 2015, at NYU Law School. The registration deadline is June 30, 2015.
The Workshop will provide an opportunity for clinical teachers who are writing about any subject (clinical pedagogy, substantive law, interdisciplinary analysis, empirical work, etc.) to meet with other clinicians writing on related topics to discuss their works-in-progress and brainstorm ideas for further development of their articles. Attendees will meet in small groups organized, to the extent possible, by the subject matter in which they are writing. Each group will “workshop” the draft of each member of the group.
Participation in the Workshop requires the submission of a paper because the workshop takes the form of small group sessions in which all members of the group comment on each other’s manuscripts. By June 30, all applicants will need to submit a mini-draft or prospectus, 3-5 pages in length, of the article they intend to present at the workshop. Full drafts of the articles will be due by September 1, 2015.
As in the previous Clinical Law Review Workshops, participants will not have to pay an admission or registration fee but participants will have to arrange and pay for their own travel and lodging. To assist those who wish to participate but who need assistance for travel and lodging, NYU Law School has created a fund for scholarships to help pay for travel and lodging. The scholarships are designed for those clinical faculty who receive little or no travel support from their law schools and who otherwise would not be able to attend this conference without scholarship support. Applicants for scholarships will be asked to submit, with their 3-5 page prospectus, by June 30, a proposed budget for travel and lodging and a brief statement of why the scholarship would be helpful in supporting their attendance at this conference. The Board will review all scholarship applications and issue decisions about scholarships in early July.The scholarships are conditioned upon recipients’ meeting all requirements for workshop participation, including timely submission of drafts, and will be capped at a maximum of $750 per person.
Information about the Workshop – including the Registration form, scholarship application form, and information for reserving hotel rooms – is available on-line at:
If you have any comments or suggestions you would like to send us, we would be very happy to hear from you. Comments and suggestions should be sent to Randy Hertz at email@example.com.
-- The Board of Editors of the Clinical Law Review
Monday, May 18, 2015
It’s been a heck of a year. Three people in my life died unexpectedly and I am witnessing four friends and colleagues battling cancer. Commencement was yesterday and I, for one, am ready for this year to end. It was my own personal annus horribilis, and so no one was surprised when I stood on the law school steps after our graduation party, tore off my academic regalia, and shouted joyously, “Bring on summer!” before heading straight to the last remaining video store in town and loading up my arms with all those movies I didn’t have time to watch this past year.
The Theory of Everything? Check. The Imitation Game? Check. American Sniper? Check. My pop culture deficit is so deep and accelerating so rapidly, it should qualify for its own deficit clock. In the past semester alone, I missed two student references to the District 12 finger sign from The Hunger Games trilogy and a case rounds cameo by Viggo Mortensen from The Lord of the Rings. If I wanted to remain a relevant authority in my students' eyes, I knew that I had to commit to a summer long bender of kettle corn binges and movies at midnight. The sacrifices one has to make for professional development….
And so last night, there I was watching The Interview. Who wasn’t curious about the movie that purportedly led to the Sony email hack and brought down Amy Pascal? Bad reviews aside, I like to laugh, so it doesn’t take much to convince me to watch a comedy, especially to kick off a private summer movie festival on my very own couch.
But the movie was bad, really bad, and morning came too quickly. The phone was ringing, our preschooler burst through the bedroom door dressed and ready to go to school, and it seemed the sun was shining even brighter and earlier than usual. For some reason, my head was hurting despite the fact that I had washed that kettle corn down with nothing more than water and a splash of Martinelli’s. Had I finally reached that age when staying up past midnight could have this effect?
As if the sobering after effects of one bad late night movie in middle age was not painful enough, I sat down to nurse my morning coffee and began flicking through my emails on my smartphone when I was jolted awake in a moment of panic by the National Law Journal headline proclaiming, “This is the Moment--for Clinics”! Now?! I was only 16 hours into the summer following my annus horribilis, and was still wearing fuzzy pajamas. Right now?!
As my thoughts began to race about this moment--our moment--in history, I began to resent the cruelty of fate. “Couldn’t we have another moment?” I wondered. Why didn’t we have 1998, before the tech bubble burst, the Twin Towers fell, the Long War began, Enron went bankrupt, the housing market collapsed, the financial crisis of 2008, and the crisis in legal education began? Who got that moment?
Why does our moment have to be now when law school enrollments are down? Budgets are being slashed. At least two law schools are merging, and another is on the cusp of closing. One of the oldest and largest law school clinics in the Northwest was closed unexpectedly last fall due to a budget deficit at the law school. Our most senior clinical faculty are retiring from coast to coast. Others are dying. Many are not being replaced with tenured or tenure-track appointments. Law school deans are throwing in the towel after 2.8 years on average, leaving us without stable leadership. Our students are less qualified, and need more remediation. We have more foreign students enrolling in our LLM programs, some seeking clinical experiences. Our schools need students and our students need jobs, and so we work to recruit, teach, train, place, and mentor them in a market that bears little resemblance to when we graduated from law school.
All the while, our nation’s clinical faculty continue to grow and adapt and lead as the market forces legal education to adapt to a new century with different needs and unique challenges including globalization, digitalization, and a rapidly changing environment. It might not have been our first choice, but this is our moment in time.
Oh well. The film festival was off to a bad start anyway. Who needs summer when there is work to be done? Let’s make history.
Monday, April 27, 2015
We have just received a call for help from our fellow clinicians in Baltimore.
"Lawyers and law students are needed for jail support and legal observing for demonstrations in the wake of the death of Freddie Gray in Baltimore. We are building an infrastructure to support community organizations in Baltimore who are exercising their civil and human rights."
There is a immediate need for attorneys licensed in Maryland with criminal defense and civil rights experience.
If you would like more information, please see the following website: http://www.fergusonlegaldefense.com/baltimore
Wednesday, March 18, 2015
The State Bar of California has approved new admission rules that require applicants to perform 50 hours of pro bono and to complete 15 academic units of experiential courses. (These rules are pending before the California Supreme Court and the State Assembly before they are finally in effect.)
Some critics have leveled extraordinary indictments of the new rules. For example, like Prof. John O. McGinnis of Northwestern here and like the commenters on Paul Caron’s blog here, these critics variously declare that these requirements (1) are protectionist rent seeking from the guild, (2) are schemes for leftist, socialist ideological indoctrination, (3) are too expensive, (4) are only useful to students interested in litigation or public interest, (5) are slavery or involuntary servitude, (6) are ineffective to address access to justice, and (7) are unconstitutional.
At the heart of these complaints is a flawed conception of the policies. That flawed conception flows from an impoverished perception of the profession and a diminished view of lawyers’ roles as public citizens.
To hear these complaints from conservative voices is puzzling, because the call for pro bono is a call for a basic good: access to justice and the expansion of the Rule of Law through the ancient institution of the bar, provided privately and locally by citizens in their own communities. This is wholly consistent with the Catholic social teachings of subsidiarity and its Calvinist cousin, sphere sovereignty. It is a conservative virtue that civil society ought to respond to these needs rather than leaving them to government preemption, but here are critics calling the bar’s policies some kind of shady, redistributive scheme.
For centuries, our profession has embraced its calling for pro bono work, as its deepest cultural and social obligation. Pro bono draws the marginalized into the Rule of Law and the justice system, to expand republican order and to extinguish self-help, vigilantism and anarchy. Lawyers should instill trust in the system, thereby promoting the credibility of its institutions and working to ensure that the institutions of law and order sustain themselves by including everyone in the land. If lawyers live up their reputation as cynical, mercenary parasites, bent on lucre and avarice, then the Rule of Law fails when the people opt out. These moral and social obligations appear in every lawyer’s oath upon admission to the bar, in various forms.
In California, lawyers swear “to faithfully discharge the duties of an attorney and counsel at law,” which includes the duty “[n]ever to reject, for any consideration personal to himself or herself, the cause of the defenseless or the oppressed.” Calif. Business and Professions Code §6068 (h).
In 2005, the Supreme Court of Mississippi, my home and the bar of my first admission (and no liberal bastion), imposed aspirational rules and mandatory reporting of pro bono when it adopted a new rule that “[e]ach member of the Mississippi Bar . . . should (1) render pro bono legal services to the poor and (2) participate, to the extent possible, in other pro bono service activities that directly relate to the legal needs of the poor.” Miss. R. Prof. Conduct 6.1. The Court provided this comment:
Every lawyer, regardless of professional prominence or professional work load, has a responsibility to provide legal services to those unable to pay, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer. All lawyers are urged to provide a minimum of 20 hours of pro bono services to the poor annually. Pro bono legal service to the poor is an integral and particular part of a lawyer's pro bono public service responsibility. As our society has become one in which rights and responsibilities are increasingly defined in legal terms, access to legal services has become of critical importance. This is true for all people, be they rich, poor, or of moderate means. However, because the legal problems of the poor often involve areas of basic need, their inability to obtain legal services can have dire consequences. The vast unmet legal needs of the poor in Mississippi have been recognized by the Supreme Court of Mississippi. The Supreme Court has further recognized the necessity of finding a solution to the problem of providing the poor greater access to legal service and the unique role of lawyers in our adversarial system of representing and defending persons against the actions and conduct of governmental entities, individuals, and non-governmental entities. As an officer of the court, each member of The Mississippi Bar in good standing has a professional responsibility to provide pro bono legal service to the poor.
The ABA Model Rules of Professional Conduct, in the Preamble, call us “public citizens.” Public does not mean governmental. Public refers to what we do together within our social order to take care of each other. It’s not socialism. It’s human decency necessary to sustain the republic.
Now the critics may say that these merely are aspirational, not mandatory, obligations and that no authority on earth can compel someone to be moral, generous or charitable against their will. Perhaps this is so, and perhaps this is why pro bono is not mandatory anywhere for licensed lawyers. But if pro bono service is a central virtue of the profession – and it is – then it is wholly appropriate for law schools and the bar to make it mandatory for students entering the profession, to teach them how, to inculcate the virtue and value of our vocation, to transmit our common, cultural norms, and to prepare them to do it well.
Simply, it is the role of law schools to teach and train lawyers, and we legal educators are remiss if we do not teach our students the virtues of our profession and train them how to do exercise them. We make law students do things against their will and inclination all the time, every day, because we have decided somewhere along the way that they need to know it. We force them to take torts, contracts and property. We force them to write long memos and briefs. We require them to endure relentless reading assignments. We subject them to stressful exams, and we cold call them to test their critical skills under pressure. We do all of these things, and more, to prepare them to be lawyers. We make them take a bar exam. We erect barriers to the profession for good reasons. Why would we not require them to render service to the poor so that they learn about the great calling of lawyers and so that they learn how to do it well?
(Remember, these students are not free-lancing on a street corner. All of the pro bono required by the California and New York rules must be supervised by licensed attorneys who bear the professional responsibility for the client they engage, either in full or limited-scope representation. The only real criticism here is that 50 hours is not enough.)
Pro bono requirements are not slavery; they are pedagogical assignments to teach and show students how to be good lawyers. Pro bono is as essential to our profession as are zealous advocacy and confidentiality. It is fundamental to our work. It also gives the students more experience with lawyers and client, more contacts in the bar, resume enhancement, perspective on the application of law, practice interviewing and counseling, a deeper understanding of professional responsibility, and good stories to tell.
Some critics proclaim that pro bono programs or law school clinics are inherently liberal or politically ideological. These critics either lack exposure to enough programs or lack imagination to see how these programs can be empowering to the communities they serve, regardless of politics. Schools across the political spectrum - from Berkeley to St. Thomas, from Harvard to Pepperdine, from Vanderbilt to Faulkner, from American to Notre Dame - have clinics and programs committed to the professional formation of students, as lawyers of integrity, compassion, humanity and hope, led by teachers of diverse convictions and causes.
Although my politics have evolved, primarily for reasons of faith, I was reared a conservative in conservative communities. My people taught me that caring for the poor was indeed an obligation, just not the obligation of the government, that people should learn to fish for themselves to escape the “welfare mentality.” In these new pro bono requirements, we see an effort to equip lawyers to take up the cause of the oppressed and the poor, the fatherless and the widow, the least of these, as a social and moral obligation of a privileged profession. These pro bono requirements will promote better outcomes, better access to justice, and better service to clients, which will lead to less dependence, more stability, and more virtue in the commonweal.
These are not just traditional poverty law, litigation or legal aid cases either. Just this week, I have approved a pro bono project in the legal department of a nonprofit film studio producing films for children's education for a student interested in entertainment and corporate work. I have approved a pro bono project for students conducting research for international human rights policies and law reform efforts in south Asia. Lawyers are doing great work in every field of practice, and our students will learn from them.
Indeed, the call for pro bono is a call for a community of local professionals to take care of our neighbors as a mark of civil society, to address our neighbors within the system of law and to not render them up to the state (and to call the state to account). To prepare law students to do this work, so integral to the profession, is a rising tide to lift all ships. This effect is multiplied as law students become lawyers who know the responsibility of pro bono and have experience in the field.
California’s new rules are good and worthy. They may be disruptive to old models of legal education, but that disruption is righteous and useful. The requirement for pro bono will promote and sustain the profession as class after class of law students better understand the public virtue of the profession. The requirements will promote access to justice by expanding and improving the capacity of pro bono lawyers to do more with law student help, then preparing those students to take on the work themselves when they enter their rich practices.
Tuesday, February 3, 2015
Twice a year I have that Academy Awards moment when the envelope arrives in my inbox and my hands start to shake. An image of Sally Fields pixelates in my mind as I wonder, “Did they like me? Did they really like me?” It is a humiliating image, but there it is, every January and May, year after year, as much as I fear and despise it.
Clinical teaching is a bare your guts kind of experience. Raw and intense, our students see us at our best and our worst. They see us at our clients’ funerals, holding our clients while they vomit after losing custody of their young children, cranking out briefs side-by-side with our students at 3:00 a.m., and being berated by judges--on the record, no less. It is not always a pretty picture.
Despite being sincere and hard-working and deeply devoted to supporting our students as they emerge as attorneys, many of us hold our envelopes in our hands and wonder what our course evaluations will say. What did they really think of this exhausting clinical course that is so very real--immersed in real life and real learning and real law?
A pattern has emerged such that I have come to expect much of what I read—the high expectations I have for my students, my directness, and intensity. What I was not expecting this semester was the warning about my, shall I call it “girl talk”? For years, I have very consciously and openly talked about gender equality both in and out of the classroom. I am familiar with the voluminous research that shows the inequality that emerges between genders in academic settings from a young age.
Girls are called on less, speak for shorter periods, and are interrupted more than boys. This gender inequality begins at least in elementary school and continues on into college and even graduate school, before embedding itself solidly into lifelong workforce inequality, as demonstrated by both pay and position.
The issues created by gender discrimination are multifold. Not only is it a violation of our female students’ rights, and compromises their learning, it will have a significant economic impact on them individually, on organizations that fail to fully engage their minds and professional energies and talent, and on society overall.
And so I talk about these issues openly and directly when gendered dynamics appear in my classrooms or clinics. For example, both in and out of class, I look for discussion participation that is representative of the population by gender (and race). If the class is fifty percent male and fifty percent female, I expect the discussion to be approximately representative of those figures. When discussions become lopsided, I expressly invite members of the underrepresented group to talk more, and often draw the students’ attention to gendered dynamics and their negative consequences.
In clinic, I often witness gendered dynamics in client interviews or weekly meetings. It is not unusual, especially at the beginning of the semester, for me to observe client interviews where a female student is thoroughly prepared, sometimes more prepared than her male partner, and yet he does most of the talking. I see female students who talk quietly or hesitantly or infrequently, sometimes using a high pitched voice, accompanied by a sorority head tilt, and a few filler words such as “like.” Afterwards, we debrief and explore together why the female student did not participate more actively in the interview, especially if she is lead on the matter or was the most prepared. We work on voice and body language and volume for both men and women, but I witness these issues with my female students more.
In our weekly meetings, the students prepare the agendas and facilitate the discussion. I usually remain silent about roles until and unless we are in our third meeting and the female student still has not led or facilitated the meeting, which happens with at least one team almost every semester. We talk about the importance of attorneys conveying leadership and confidence, when and how best to demonstrate these traits, and why and how women and men need to support each other in developing professional personas and leadership skills.
And yet, there it was, at the very end of my very last evaluation. The anonymous student wrote that he or she did not say this or necessarily agree with this point of feedback, but thought it was important for me to know that another student said that, in advocating for women, I needed to be careful not to create a situation that placed male students at a disadvantage.
Does trying to provide and nurture and support equal participation by our female students place our male students at a disadvantage? Or is it the advantage of inequality that some are afraid of losing? In trying to rid our classrooms of gender bias, are we creating a classroom that some of our students feel are biased against them? These are just a few of the questions that I have been asking myself since nervously opening my envelope two weeks ago, now wondering if we should stop talking openly and directly about these issues.
Or maybe the issue is that there is not enough “girl talk” in clinics and law schools and higher education. As Sheryl Sandberg and Adam Grant pointed out in their December editorial in the New York Times, when people are told that discrimination is widespread, it can actually make discrimination worse by legitimizing it. The only way to actual reduce discrimination is by acknowledging its widespread existence and then changing the message slightly to add, “and most people want to overcome their biases.” But, do we?
Tuesday, January 27, 2015
The LA Times just reported that The US Supreme Court has denied stay to Warren Lee Hill. "A man with the emotional and cognitive ability of a young boy," according to Brian S. Kammer, Mr. Hill's attorney.
If you aren't aware of this case, here are a few quick links to bring you up to speed:
For an external perspective, see these pieces from the UK (a country who seems to be providing more coverage than our own):
My head and heart hurt, and I am so very exhausted from the many battles we have been fighting these days on issues surrounding #Blacklivesmatter. I suppose this is just one more horrific story to add to that growing list. So for now, I have little to say except this...I am making a commitment to my clinical colleagues to talk about this with the faculty, staff and students here at Gonzaga and in my community.
Despite the wrongs you may have committed, your life matters Warren Lee Hill.
Wednesday, January 14, 2015
Via a note from Co-Presidents, Profs. Janet Thompson Jackson and Mary A. Lynch, CLEA has filed an amicus brief in the case of Rogers v. McDonald in the United States Court of Appeals for Veterans Claims. The case involves a successful claim by Harvard's Veterans Clinic and the VA's refusal to pay attorneys fees under the Equal Access to Justice Act.
From the introduction:
A federal judge once said, “[W]hen all else fails . . . , consult the statute.” Here, the Equal Access to Justice Act (“EAJA”) is clear. Under the terms of the statute, Mr. Rogers is the prevailing party, the government’s position was not substantially justified, and there are no special circumstances that make an award unjust. The Department of Veterans Affairs (“VA”) does not dispute any of these points. Therefore, the plain language of the statute dictates that the “court shall award . . . fees and other expenses.” 28 U.S.C. § 2412(d)(1)(A).
VA fails to identify any statutory text modifying this clear directive or otherwise supporting its position that the EAJA does not authorize recovery for work performed by law students in law school clinics. Instead, VA relies on misapplied law and misplaced policy in proposing a bar on EAJA awards that would decrease access to legal counsel, disincentivize work done by law school clinics, and diminish law students’ ability to serve unrepresented citizens. . . .
Sunday, January 11, 2015
On January 1, 2015, there was one fewer law school clinic in America. The Lewis & Clark Legal Clinic, one of the oldest and most well-respected clinics in the Northwest, silently closed its doors.
The Lewis & Clark Legal Clinic provided debtor-creditor, landlord-tenant, and family law services, including a significant amount of work representing victims of domestic violence. The clinic was founded in 1971, and together its full-time faculty, Dick Slottee, Teresa Wright, and Mark Peterson had spent approximately fifty years combined at Lewis & Clark. All had security of position; in fact, Professor Slottee, who was the clinic director, had tenure. The clinic served approximately 230 low-income and indigent clients per year and involved 35 to 70 students.
As recently as last summer, Lewis & Clark Law School touted the clinic’s work in Advocate Magazine. In the words of one recent Lewis & Clark alumna, “The value derived from the Lewis & Clark Legal Clinic is immeasurable. It teaches practical skills and it provides students a special opportunity to put the legal theories we learn in an abstract manner in the classroom into practice . . . The focus is on the students and the students are wholly supported.”
According to the Lewis & Clark Law School Dean, Jennifer Johnson, the decision to close the clinic was driven by budget constraints. She indicated that the goal was to offer lawyering skills and opportunities “for all students in a cost effective manner” and stated that “Going forward, we must focus our in-house clinics on those with significant fund raising potential,” while asserting that “current budget realities-for both the law school and our students-make this move necessary.” The rumor is that Lewis & Clark had an unexpected million-dollar shortfall and had already significantly cut the library budget (the largest budget item other than personnel), and so moved to the next largest item in the budget: the law school’s clinic. True or not, Johnson’s own framing of the decision exclusively as a financial one is worrisome.
In Pricing Clinical Legal Education, 92 Denver University Law Review 1 (2014), Robert Kuehn of Washington University Law finds that offering clinical opportunities to law school students has no net impact on tuition and concludes that offering clinical opportunities to students is determined by the law school’s will to offer such opportunities to students. As law schools consider how to balance the budget and keep the lights on during the worst downturn in law school enrollment in modern history, it is natural that some administrators may be tempted to conduct a casual analysis and conclude that high enrollment courses are the answer and try to cut costs by reducing smaller experiential courses.
However, a familiarity with effective pedagogies and the retention yields of various methods reveals that not all courses are equal when it comes to learning outcomes. The value of courses and teaching methods should not be measured predominantly by teaching or staffing inputs, but rather by learning efficiencies, efficacies, and outcomes. After all, if we hold ourselves out as educators, we owe it to our students to have a reasonable familiarity with effective educational methods and to utilize and prioritize those, rather than continue to offer course and curricula designs that have been scientifically proven by study after study to be ineffective.
Accepting tuition in exchange for enrollment in courses designed around learning methods that have been scientifically proven to be ineffective is unconscionable. Those simulated practice courses, externships, and clinics may cost more than placing 80 students in the room with a single lecturer, but they are far more likely to produce better learning outcomes for our students. Can you imagine a law school committed to designing and offering courses according to learning outcomes rather than cost input?
Even if one is not motivated by effective pedagogy, from a business perspective, we know that students care about clinics. A recent survey indicates that clinics and externships are one of the most significant factors students consider when deciding where to attend law school (location is number one).
After the decision to close the Lewis & Clark Legal Clinic was announced in September, another faculty member, Kathy Hessler, sent an email to the national clinic listserv informing the members of our community. She pointed out that the Lewis & Clark Legal Clinic was the only one at the law school that was funded directly by the law school. It is hard to imagine other law school courses being expected to go out and procure their own funding.
When one considers the effectiveness of clinical pedagogy, as well as the new ABA accreditation standards mandating experiential education, it is deeply concerning that an educational program built around one of the most effective learning methods known to us would be singled out to be "self funded."
Even more concerning, though, was the resounding silence of the national clinical community to the news of the decision. Just a handful of emails were sent in response. At the Northwest Clinical Conference in October, attendees voted to send a letter to the Lewis & Clark Dean expressing our deep concern over the decision and offering our support to reverse the decision. In response, Dean Johnson emailed each signatory and the dean of the person’s home law school, and directed them to have our dean contact her if we would like “further input into this issue.” Was she trying to intimidate us into silence with this power play? Perhaps, but apparently, there was no need. I have said nothing since. Have you?
This is the way a clinic ends. This is the way a clinic ends. This is the way a clinic ends. Not with a bang, but with silence.
Tuesday, December 23, 2014
The last night of seminar for the Community Justice Clinic was the same night a New York grand jury chose not to indict the police officer who killed Eric Garner. The protests in New York that night joined protests underway in the wake of Michael Brown’s killing and the decision of a grand jury in Missouri not to indict the police offer who shot him to death.
In class I asked my students what would make them demonstrate in the streets, what would make them disrupt freeways, commerce and public spaces. They answered that they would take to the streets if they did not feel heard or if they felt as if they had no power to effect change otherwise. They would take to the streets to change a system that would not listen to them, to hold power accountable, to bear witness.
We discussed why protests turn to riots and what might make a demonstrator burn business and structures in their own neighborhoods. No one condoned looting and burning for their own sake or as effective political moves. We had good discussions about seeing a blighted neighborhood as a symbol of oppression in its own right, how a ghetto might be a prison build on systemic, generational racism, so that burning one’s own neighborhood might just be rage at the ever-present symbol of one’s own confinement and disenfranchisement.
We read King’s answer to those who challenged him about demonstrations turning to riots:
Now I wanted to say something about the fact that we have lived over these last two or three summers with agony and we have seen our cities going up in flames. And I would be the first to say that I am still committed to militant, powerful, massive, non-violence as the most potent weapon in grappling with the problem from a direct action point of view. I’m absolutely convinced that a riot merely intensifies the fears of the white community while relieving the guilt. And I feel that we must always work with an effective, powerful weapon and method that brings about tangible results. But it is not enough for me to stand before you tonight and condemn riots. It would be morally irresponsible for me to do that without, at the same time, condemning the contingent, intolerable conditions that exist in our society. These conditions are the things that cause individuals to feel that they have no other alternative than to engage in violent rebellions to get attention. And I must say tonight that a riot is the language of the unheard. And what is it America has failed to hear? It has failed to hear that the plight of the negro poor has worsened over the last twelve or fifteen years. It has failed to hear that the promises of freedom and justice have not been met. And it has failed to hear that large segments of white society are more concerned about tranquility and the status quo than about justice and humanity.
We compared and contrasted those who would interrupt commerce and disrupt a marketplace in protest of injustice with the old American heroes who destroyed the private property of business owners shipping tea to be taxed by the Crown, by dumping it into Boston Harbor.
I asked the students, these future lawyers, what conditions must exist for a loser, someone who receives an adverse decision or must endure an unfavorable legal or political outcome, to accept it. In a democracy, how must the system operate to ensure that losers accept an outcome rather than resorting to violence, vigilantism or self-help? They answered that the party who loses must feel that the process was fair, that the case received a neutral hearing, that they could trust the people in the process. If a loser trusts the system to adjudicate a claim fairly and without bias or favoritism, then the loser is more likely to go peacefully.
This led us to discuss the profession’s historic, moral call to public citizenship. The ABA Model Rules of Professional Conduct express the call that lawyers (every lawyer, not just bleeding hearts) are “public citizens” who should “further the public's understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance.”
Last week, the national discourse changed again when New York City Police Officers Wenjian Liu and Rafael Ramos were assassinated by a violent man who had shot his girlfriend hours before he shot the officers. The killer claimed to target police because of Ferguson. This crime is abhorrent, the vicious murders of public servants bound to protect and serve their communities.
For some, this changes the rhetoric of the debate, and they demand that citizens silence their grievances against police excess and corruption. Some blame recent protests against police use of deadly force, systemic racism and mass incarceration for inciting this violence against the police. Some have blamed the civilian political leadership for undermining police authority by pushing for reform and accountability.
Brutal and discriminatory police practices do not justify violent attacks against the police. Perceptions of ambiguous threats by unarmed citizens do not justify deadly force by the police. Neither justifies the suspension of the Rule of Law, civil rights and social morality. In America, the state’s police power cannot rightfully silence and suppress dissent and the people’s call for a redress of grievances, and the people should not return violence for violence.
When blood flows, the rift grows between the police and the policed. As trust deteriorates, deference to authority becomes increasingly tenuous, and the authority may respond with more force and power to ensure the subjects’ deference. A street occupied by a militarized police force may experience more violent protest than one patrolled by a civilian police presence, because the people will oppose the excessive force with greater force. An overwhelming presence of police can bring security but can also heighten fears and chill community engagement.
We are not bound to these binary choices, either capitulation to absolute police authority or surrender to violent crime. As Ben Franklin advised us, we cannot trade liberty for security and keep either. We must imagine new paths of justice and peace. New paths require trust among the police and policed, the state and the citizen, the sovereign and the subject, neighbor and neighbor. If we are serious about avoiding the persistent mistakes of the past, we must include more people, more communities, more voices, more criticism and more ideas in our discourse. So long as discrete communities are alienated, targeted and excluded by the power of the state and our economic systems, we will reap what we sow.
As Prof. Laurent wrote earlier, this is ours. We are lawyers. We are the keepers of the justice system, operatives of the Rule of Law. When we prescribe more trust in the system, we are calling for more trust of the people in the system, and the people in the system are lawyers. Our students, the students with whom we practice law in our clinics, the students before whom we model our own public citizenship will carry that weight and that obligation into the world. This is the work of lawyers, to reform the law and to advocate for a sustainable, accessible justice system that invites fulsome and fair participation.
We can mourn both the loss of police killed in the line of duty and those killed by police without justification. We can fight against the outrage of systemic racism and denounce the brutality of an assassination of public servants. We can enforce our laws vigorously and demand democratic accountability of state police power. We can build trust in our legal system and public servants while resisting violent crime without militarizing our streets. We can defend ourselves without going to war with neighbors. We can achieve liberty, security, justice and liberty for all, but the social contract always and ever requires humility, presence, discipline, conviction, inclusion, patience and nonviolence.