Wednesday, November 23, 2016
I am very proud of our brilliant students in the Ninth Circuit Appellate Advocacy Clinic, under the direction of Prof. Jeremy Rosen. Please see this story with video of their recent oral argument in San Francisco where they represented our client, a detainee suing the Maricopa County (Arizona) Jail for civil rights violations. They did excellent work.
Here is a brief description of the case:
The Ninth Circuit appointed the Pepperdine Ninth Circuit Clinic to represent pre-trial detainee Charles Byrd who filed a section 1983 lawsuit challenging Maricopa County’s practice of having female guards routinely observe male inmates at extremely close quarters while they are using the toilets and taking showers. Such cross-gender observations have been routinely disallowed when the guards are male and the prisoners are female and case law suggests the same should be the case here. The district court exercised its authority under the Prison Litigation Reform Act to dismiss Byrd’s lawsuit at the screening stage. The students argued on appeal that such dismissal was improper because Byrd plainly stated a claim for constitutional violation.
Friday, November 11, 2016
I have the honor of running a mediation clinical program at Columbia Law School with Alexandra Carter. I should note that Alex is the Director of the Clinic and I am the Associate Director. I have to note that distinction to help you understand how much of an honor it is to run this clinic with her. Because, even though Alex is the boss, it never feels that way to me. She never treats me like she’s the boss. When she introduces me, she always says, “This is my colleague.” My ideas for curriculum, for projects, for partnerships, etc. all the way down to the minutia are considered with equal merit to her own—and, if I’m wrong about that, then she does such a great job of making it seem that way that the factual difference is meaningless.
That little preface above brings me to this: her ideas are better than mine. A clear example of this fact seems worth sharing, now more than ever. When our President Elect Designate was still just the Republican nominee a report hit the media about his various sexual assaults. These weren’t accusations and they weren’t second-hand accounts. These were descriptions of assaults that he, himself, admitted willingly to a reporter on a tour bus in 2005. He offered a defense of his comments: these remarks were made in private (or so he thought), and they were mere locker room talk amongst the boys.
I had plans to take a minute and address the comments in our class. Alex had a different idea, and, like I said, her ideas are better than mine.
I was supervising a case a team of our students were mediating on the Tuesday after the story broke. It was a difficult, emotionally charged mediation that drained the team of students and me. So, when I got a text from Alex saying that we were holding class in the Dodge Fitness Center on Columbia’s main campus I didn’t have the mental or emotional capacity left to think anything about it other than I needed to make a mental note not to go to our regular classroom. The mediation ran long which made the students and I late to class. When we arrived there the class sat, in a tiny, sweltering locker room in a circle, passing a talking piece, talking about “locker room talk.” Alex decided to depart from our regularly scheduled program to bring us an important message about law school education: we oughtn’t forget that the law affects people. Our leaders’ words and actions affect people.
Any professor reading this knows how precious classroom time is. Alex willingly gave away 3 hours of class time to find a way for our students to talk about the law, our leaders, and the people they affect. She also modeled responsible reaction for our students. She honored their emotional response to President Elect Designate Trump’s words and facile explanation, but didn’t allow them to live in the righteousness of outrage. She showed them that taking offense wasn’t enough--they also had to take action. She showed them how to reclaim the locker room space for a new and better kind of “locker room talk.”
Oh, and remember how I told you above that Alex treats my ideas with equal merit to her own? Well, having the class sit in a circle and pass a talking piece is a technique she learned from me. It’s a technique American Indian tribes have been using since time immemorial to prevent and address conflict. It’s a technique that I was able to show Alex because when I was a law student in her mediation clinic I undertook a project to design a curriculum to begin teaching tribal dispute resolution in law schools. It’s a project, a student project mind you, that she took so much interest in that it became a course of legal study at Columbia Law School. From there it spread to several law schools: New Mexico, Oklahoma, Yale, to name a few. It was my idea to create a curriculum to make tribal dispute resolution a course of legal study in law schools. It was Alex’s idea to actually implement the curriculum and actually launch a course—the first course of its kind in an ABA accredited law school. Like I said, her ideas are better than mine.
Linked here is an article the Wall Street Journal wrote on the locker room class Alex led (caveat: it's behind a pay wall). My only note is that it describes a Peacemaking Circle as a "mediation technique" and it is not. It’s a technique Indigenous People around the world--especially in America--have been using since before history began being recorded.
Friday, July 8, 2016
In America, our founding principle is that all men are created equal, expressed within a legal document declaring independence from a sovereign who did not extend a voice to his subjects. Our pledge of allegiance binds us to a promise of liberty and justice for all. These are American ideals but so often are not American realities. America is and always has been a violent nation, and race and racism are deep in our spiritual, social, cultural, political and legal vernacular. In no season of our national history have we been at true peace, especially in matters of race and racism.
In fits and starts, we lurch in anguish and hope toward harmony and reconciliation. Inevitably, when we take a step toward inclusion and justice, the forces of exclusion lash out in death throes. The South didn’t secede until after the country elected an abolitionist. The Klan didn’t form until after emancipation. Bull Connor didn’t unleash the dogs until people started demonstrating for justice and dignity. In our present age, we witness the persistent violence of exclusion as voices rise to demand inclusion of the bodies, minds, and souls of people so tired of waiting in oppression.
This is also deeply American. “No taxation without representation!” was the rebels’ call for inclusion in the process of lawmaking and governance, and the demonstrators followed it up with war. When the sovereign refused to give his subjects a voice in making the laws that governed them, they rose up to toss off the sovereign. Then, tragically, the new republic founded for government of, by and for the people, systemically excluded vast members of the governed.
Those excluded people have taken patient centuries to call America to account for its aspirations, to illuminate the hypocrisy of exclusion in a republic founded for inclusion. Steeped in blood and struggle, they have brought America around to itself, little by little, kicking and screaming, mourning and grieving, insisting on inclusion, demanding dignity.
In lament and anguish, punch drunk, America stumbles toward its better angels, shaking off its ghosts, battling its demons, as we realize that inclusion is our only hope to keep the republic our ancestors won and handed down to us. Generous inclusion is national life. Reactionary exclusion is national suicide.
When people are excluded, when America denies their dignity by telling them to comply without complaining, to thank God for their liberties, while murdering them if they dare to demand a voice, then the whole edifice will crumble. Who among us Americans wouldn’t object, maybe violently, if we were excluded from the system of laws that governs us? Who among us Americans would not create our own communities of dignity, power and self-determination if we were excluded from a state that makes false promises? Who among us is ever satisfied being governed in the third-person?
As law teachers, we have the privilege to observe and the obligation to train. We observe the law in its promise, success and failings, and we train lawyers to represent the people and their government, to make and improve the law, to sit in judgment with the law.
In an age of violence, what can we do to stem tides of death, cultures of fear, and cycles of vengeance? We can teach like we know how high the stakes are. We can observe exclusion and train for inclusion. We can refuse to ratify laws and systems that deny voice to the aggrieved, and we can train up lawyers who are alert, vigilant and ready to make the law better.
Teaching civil rights is not academic abstraction; it is the lifeblood of a liberal, constitutional republic of limited government and individual liberty.
Teaching cultural competence is not political correctness; it is the essential tool to promote inclusion of the excluded, to build bridges instead of bunkers, to make the law responsive, not exclusive.
Teaching self-reflection is not coddling; it creates wisdom and awareness that will inoculate against blindness to the others outside our field of vision.
Teaching ethics is not for passing an examination; it is to prepare students for a profession that must be much, much more than utilitarian and mercenary.
Teaching alternative dispute resolution is not a trendy distraction from real lawyering; it equips peacemaking and creativity and dialog among opponents.
Teaching critical thinking and criticism is not partisan; it is essential to conscious, thorough understanding of our laws, their sources, their effects, their realities.
Requiring pro bono is not charity; it is the transmission of a virtuous legacy of public citizenship that is historically necessary to the profession, demonstrating to law students the power of lawyers to empower the excluded.
Morality and virtue are not electives. Justice is not secondary to power.
Inclusion and plurality are necessary to democracy and justice. These are not liberal luxuries. Diversity is not a vague objective of democracy but is an essential component of democracy. The rule of law is sustainable only when everyone governed by the law has a voice in the law. The rule of law is only operable and just when the law embraces all of the governed with equity.
In America, we are governed and government. We are subject and sovereign. We are citizen and state. When we neglect those roles, we invite violence. When we exclude any of our neighbors from law making, law enforcement, or the legal system, we dare the excluded to take care of their own social order, and that inevitably generates violence and oppression in the shadows of society.
Not all problems are legal problems. The law exists within an ecosystem with constant cycles among culture, society, politics, religion, and economics. But we can do our part as law teachers with an obligation to our nation and communities.
We can train up lawyers who understand their critical role in sustaining our society and the rule of law in a liberal, constitutional republic.
We can study the law to improve it and promote inclusion.
We can promote access to justice, not as charity, but as civic morality.
We can illuminate weaknesses and places of exclusion and prepare our students to confront them.
We can listen and learn from those who are excluded and follow their lead in struggles for dignified inclusion.
We are necessary to building a trustworthy system of law.
Our students become lawyers who become leaders, representatives, advocates and public citizens. We inherit an ancient project that will continue long after we are gone. The stakes are only as high as life and death and justice.
Let’s teach like it.
Friday, June 3, 2016
Judgment By Social Media and Tweeted "Expertise" - Three Cases From The Cincinnati Zoo, The Forests of Japan, and Amber Heard's Marriage
As lawyers we oftentimes have to suspend our personal judgment of our clients, their choices and their circumstances. As clinicians we regularly train and remind our students on this suspension. Not only does this suspension preserve rapport, but it also allows for better representation of the person, as we just have to take them for who they are, not who we think they should be. Best practices and professional rules also remind us of client-centered representation, directing that choices are the client's choices and not ours, and that's its not all about us. Professionally this suspension of judgment can be a struggle - as a lawyer you may know "what's right" or "what's best" but the client chooses otherwise. And we must accept that.
If only we as a society were charged with this suspension of judgment - but as anyone can tell from the news this week, people are quick to judge others, and their choices, and proffer various social media statements to tout their judgment and expertise. (Ironically we also have a process for declaring and establishing expertise in the legal field, via our rules of evidence, which Twitter appears not to follow). Anyone can judge or be an expert in social media - just take a look at this week's fodder:
1) The Death of Harambe: Let's face it. Everyone loses in this situation. If the zoo didn't kill the gorilla, the child might have died and folks would be standing outside the exhibit with candles and posters in memoriam of the boy. Instead the zoo kills the gorilla, and even though they saved a child, someone must be to blame - distracting iPhones, parents, zoo architecture - you name it. Mom apparently is an administrator at a preschool, leading many to now call for her resignation. Because the two go hand in hand.
2) Abandonment in Hokkaido: To leave or not to leave a seven year old boy on the side of a mountain road in deep bear country forest for throwing stones? That was the question. Parent's call? To leave. Is it neglect or within the boundaries of discipline? You decide. Everyone else is.
3) Let's all kick Amber Heard while she's down: Maybe, in a couple of weeks, we will forget doing so, just like her husband allegedly did. It's times like these that make those us of doing domestic violence work cringe. Who is Amber Heard? If you hadn't heard of her (no pun intended) you certainly have now. Heard is the much younger wife of actor Johnny Depp who filed for, and was granted, a restraining order against him. Various photos of her with injuries have emerged, injuries that were allegedly caused by Depp - but where does the public support lie? Mainly with Depp. Why? Because it's her fault, of course, that this happened. She "exacerbates Depp's 'jealousy issues'" as allegedly Depp is incredibly insecure about her. She's also just in it for the money apparently, there being no prenuptial agreement and their divorce filed in California (the laws in California entitling her to fifty percent of what he has made during the marriage). Lastly, her bringing these issues out publicly just confirms that their marriage, and her involvement in it, have just been "nonstop drama".
As lawyers we have standards for these sorts of judgments and admissible statements. We also have a saying, "innocent until proven guilty". Yet as social media shows us time and time again, judgement is swift, fleeting and generally contained within 140 characters. Perhaps we should remind ourselves that #glasshousesarefullofhotair.
Wednesday, June 1, 2016
"Greetings from the Section's Technology Committee!!
We write to announce two new initiatives.
First, we are in the midst of creating a new webinar series that will focus on using technology in our teaching and our clinics. The webinar will begin in September and run through the academic year, with one webinar a month. Stay tuned for more details.
Second, we are petitioning the AALS to Establish New AALS Section: Leveraging Technology for the Academy and the Profession. We are seeking signatures of those in the academy who support the creation of this new section. If you are interested in joining the section as a founding member, please add your name to the list, available here. (AALS requires that we obtain at least 50 signatures from full time faculty members and/or professional staff from at least 25 different schools).
The new section would bring together academics and staff who share a common interest in the advancing scholarship and teaching about role that technology is playing and will continue to play in legal education and the practice of law. We believe that it is important that members of the legal academy become familiar with and take a lead in driving the changes being made and affordances provided by technological innovations in the delivery of legal services.
The new Section will work with this committee to advance understanding within the academy of these two topics:
Technology and the practice of law: The Leveraging Technology Section will provide space for legal academics to consider and shape how evolving technologies are impacting and could impact law and legal systems. It will encourage law professors to engage in cutting edge research and scholarship that can help to craft the new normal and create a space to share that scholarship with the broader community. The Section hopes to address how law school faculty can understand the rapid and profound technological change that could well remake law practice and how they can be at the forefront of framing a “new normal” for legal practice and lawyering. The section will also help law professors access materials that will assist them in preparing law students using emerging technologies in the practice of law.
Technology and legal education: The Section will (1) lead a conversation about whether educational technologies that have been developed and used successfully in legal education may be able to scale to other law school classes; (2) introduce law professors to new educational technologies being developed for use in other areas of education so as to inspire this group of educational leaders to be at the forefront of change as it relates to technology and the legal academy, and (3) introduce law professors to pedagogies used to expose students to emerging technologies that are being used in the practice of law.
If there are others on your faculty who may be interested in this initiative, please feel free to distribute this to them.
We look forward to working with you to advance this agenda.
Valena Beety (West Virginia)
Warren Binford (Willamette)
Michael Bloom (Michigan)
Alyson Carrel (Northwestern)
Jenny Brooke Condon (Seton Hall)
Ron Lazednik (Fordham)
Michele Pistone (Villanova) Chair
Jeff Ward (Duke)
Leah Wortham (Catholic)"
Wednesday, April 20, 2016
Ah Coachella. California's yearly music and arts festival affords lot of opportunities for its attendees - amazing music, lots of star sightings, entire websites devoted to the fashion strategies to employ while attending, and being able to file your taxes unsuccessfully. Wait? What?
At least ten people tried to file their taxes from the Coachella campground post office this past weekend. Ironically the "post office" isn't a real post office, nor sponsored by USPS, and "acts more as an intermediary" between the festival "and the real local post office" according to the California Mercury News. Megan Hampton, who runs the Coachella "office, was quoted as saying "No, I can't 'just take it...How do they have their taxes here? I don't know."
Jeff Baker @JRBProf - better get that clinic outreach #JusticeBus ready for this weekend. Sounds like there are folks who could use your clinic's help - maybe even Kanye or Kesha. If not this year then perhaps we need to plan a road trip and ask Prof. Paul Caron @SoCalTaxProf to tag along. As long as actress Vanessa Hudgens @VanessaHudgens can tell us what to wear. I'm in @hagan_carrie. Maybe I'll have a #Suitsy by then.
Monday, April 11, 2016
If you are anything like me around this time of the year, when the weather slumps and with exams approaching, you look for hilarity where you can find it (when you are avoiding all press about the upcoming political chaos that represents our electoral system). That's why I was so excited to learn about being able to vote for Boaty McBoatface. That's right - Boaty McBoatface. Because, despite best intentions, when you allow the internet to assist with what seems like an innocuous naming endeavor, sometimes funny wins out.
NERC - the United Kingdom's Natural Environment Research Council, opened up the ability to suggest a name for their newest polar research ship in early March of 2016. With initial names suggested being what you might expect for this sort of thing - Shackleton, Endeavour and Falcon for example, they might have thought that they were safe. Not so fast, thanks to James Hand, who submitted the name and who's Twitter feed profile lists him as being a reason we can't have nice things, along with the hashtag #BoatyMcBoatface.
Should you want to cast your vote - you'd better hurry. Voting closes April 16, 2016. You can cast your vote here or by visiting: https://nameourship.nerc.ac.uk/entries.html. Let this be a lesson to all of us - and may the best name win!
Tuesday, March 22, 2016
In the article, the editors explain their methodology. Clinics account for 38% of the ranking scores, derived from ABA data on the number of clinic seats filled relative to upper level enrollment. Externships accounts for 24% of the ranking scores, based on the numbers of students in externships relative to the number of upper level students, likewise based on ABA data. Simulation courses account for 21% of the ranking scores, reckoned similarly from ABA data. Interschool competitions account for 5% of the scores, and the final 10% of the scores are for other programs, like pro bono, that are not reflected in the other categories.
Here are the top 25 schools from this year's rankings:
- University of St. Thomas (MN)
- Washington & Lee
- Case Western
- Mitchell Hamline
- Golden Gate
- New Hampshire
Friday, March 4, 2016
I was walking out of our university cafeteria yesterday in my characteristically rushed state with an empty stomach, a couple of “To Go” boxes intended to last through midnight, and a 12:30 p.m. meeting with students just minutes away when a young man I did not recognize (an undergraduate student perhaps?) leaned across a poster and said something. My mind rapidly assessed my priorities as I noticed his highly corrective glasses, a discreet hearing aid, and a pronounced speech disability. The cascading moments came to a standstill, and I apologized. “Would you please promise to never use the ‘R-word’?” he repeated as he handed me a pen.
“Of course,” I said, as my hand tried to scribble a flourished signature across the top right-hand corner of the poster. The white space remained nameless. My pen was dry. As I borrowed another pen from a student sitting nearby, my eyes scanned the writing across the top of the poster: “Pledge to End the R-Word.” I wondered who this young man was, what his disability was, whether it mattered, and what would become of him and his pursuit of dignity and respect after the U.S. presidential election.
The Super Tuesday results were so definitive the night before that the leading candidates for both parties were announced well before bedtime. The night was restless. It was clear to all that the 2016 presidential election had become an interminable political version of the “The Jerry Springer Show,” but without a remote, volume control, mute function, or an on/off button.
Worse than the reality show nature of the election is the fact that support for the leading Republican candidate appears to increase with the frequency of comments and gestures and policies that are degrading to the disabled, women, minorities, and immigrants. Crowds applaud when he advocates for widespread discrimination against legally protected groups. They holler and cheer when he pours forth chest-thumping threats celebrating violence. And they laugh when he physically impersonates people, like the young man standing before me whose spine appears slightly bent, and his hands just a little curled. Yes, he is different, but not much. We all are—just a little bit different—but mostly the same.
The candidate also uses the “R-word.” Indeed, he uses a lot of words. “I know words. I know all the best words,” he has bragged with a bravado bred in fear and born from cowardice. “Is the R-word one of them?” I wonder.
And so I occasionally speak out, largely in my home or more often in my mind. Occasionally, there are hushed conversations, but mostly I am silently screaming. The first time I found myself silently screaming was the night of the Iowa caucuses. It was one of the busiest weeks of the semester, with client interviews running late into the evening. The clinic was humming and rushing with students and staff hurrying between our clients and our iPhones and computer screens watching the caucus results roll in.
As I walked into the student lab, I casually asked a student looking at the results on his computer screen, “Who are you voting for?” I immediately wanted to take my words back. Our teacher/student relationship gave me almost all of the power and privilege, and my job as an employee of a 501(c)(3) organization, especially while doing my job at my place of employment—8:00 p.m. or not—had brought me perilously close to an improper interaction.
I have been advising non-profits for nearly 20 years; teaching our students non-profit law in our Business Law Clinic for nearly ten. I knew the words nearly by heart: “[501(c)(3) organizations] may not participate in, or intervene in . . . any political campaign on behalf of (or in opposition to) any candidate for public office.” Part of the erasure I desired was that I did not want to say anything that would jeopardize my employment or the tax-exempt status of my university, but a larger part of my desire was that I did not want to abuse my relationship with a student—a relationship in which there is an inherent imbalance of power.
But it was the student’s response that fundamentally compelled my desire to unlive the moment. He proudly and cavalierly told me he was voting for the candidate who not only uses the R-word, but condones war crimes, torture, discrimination, and assault--someone who publicly observes that some women “look good on [their] knees.” And I want to scream. I knew that the candidate had a sizeable (and growing) following, but I assumed that they were comprised of “others”—not well educated, high performing students working on their doctorate degrees. Not my students.
As my mind raced with ideas about how I could justify “setting this student straight” due to the unique role of law professors in educating our students (and our larger communities) about Constitutional rights, humanitarian law, justice, human rights, and so much more, I said nothing.
I wonder whether in trying to protect my job, I will fail to do my job. Yet, my voice remains silent and my pen is dry.
Well, at least from 9-to-5, and occasionally, from 9-to-8.
Monday, February 29, 2016
NYU Law Review Seeking Submissions on Dollar General Corporation v. Mississippi Band of Choctaw Indians
NYU Law Review is seeking submissions for its online publication on the Dollar General Corporation v. Mississippi Band of Choctaw Indians. You can find the original message posted on the Michigan State Indigenous Law and Policy Center Blog, Turtle Talk, and also linked here.
They are looking for pieces that discuss the case itself, its legal background and importance, and its implications for Indian and non-Indian country alike—particularly Indigenous women’s issues and its insights into women’s issues in general. If your clinical practice intersects women's issues, enterprise issues, or tribal issues I encourage you to research the case. It may infuriate you, but a minimum you will have a better understanding of the legal obstacles Indian tribes face in federal courts, most especially our Supreme Court.
Wednesday, February 24, 2016
Recently pajamas and their displeasing appearance in public has made the news both here and in England. In England, the displeasure was specifically directed at parents turning up in pajamas at school for drop-offs and pick-ups. In the States, however, pajamas are not part of the accepted dress code for court settings (specifically District Court settings in Columbia County, PA).
That's right people. No pajamas in court. Go figure. Suits required. But what if one has suit pajamas? This dream can be yours via a product affectionately named "Suitsy" - a onesie designed with all of the comfort of pajamas but having the appearance of a casual business suit. Recently when I came home from work, my three year old daughter greeted me at the door with, "Okay Mom, now you can take your work jammies off." I thought to myself, wow, wouldn't it be great to actually have such a thing as "work jammies" - they sound so much more comfortable than regular suit attire. Sadly for me the Suitsy appears to have only a male version of their product - perhaps a hashtag campaign (along the lines of #wheresrey) such as #wheresaladysuitsy or #giveagirlasuitsy might generate enough attention that one can exist in the future. The major question then would be whether I would actually have the nerve to wear it professionally to court. Jury's out on that one folks.
For a full review of the Suitsy in all of its glory, check out a review on Business Insider from May 2015: http://www.businessinsider.com/greg-ferenstein-suitsy-review-2015-5
Thursday, February 18, 2016
You are not even in the ground yet and they come. They come with their disdain, their praise, their vitriol and idolatry, their mocking and memorializing.
You oh great proponent of originalism, the idea that our Constitution is frozen in time and hallowed, to be viewed not as a living, breathing document, but one that is dead, cemented with principles of the past, exactly as it was written.
And while I can understand the allure of such adherence, a clutching onto the solace that comes with certainty in this otherwise uncertain world, I could never concur. For you see at the time “We the People” was constructed, I was excluded from the very definition of the “people.” My blackness and my womanhood denied me the ability to be fully vested in those assigned rights.
And so I do not accept the idea of a dead document. See, we live in a world never envisioned or imagined. Those men who developed those past notions, revolutionary though they may have been in their moment, cannot continue to govern me from their graves, nor can you from yours.
I will never allow them or you to grip me from that bygone era, but that way of being does not mean that I am not sad over your passing. I am perplexed by the strange circumstances that now surround you; this peculiar war that is waging on around you before you are even buried and fully mourned. While I have never seen eye to eye with you, I have always seen you as my colleague, my equal, my foe to be sure, but a worthy opponent.
You were the dark to my light, the down to my up, the out to my in and through your hard and fixed gaze on originalism, I learned to set my sights on the flexibility that seems necessary to adjust to our constantly evolving realities. And through your strict adherence to the models of the old, I learned to flow into the stretch, the growth and even the pains that come with embracing the new. And so I see no reason for hatred here, just gratitude for the formation that only comes after being forged in the fires of deep dissent.
Until we meet again, dear Antonin. Until we meet again.
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). ^