Friday, December 5, 2014
These last few weeks have been devastating. I find myself at extremes—on the verge of tears or boiling over with anger. I do not understand the range of responses to the loss of human life. I cannot understand the lack of civility, accountability and respect for the sanctity of human life, regardless of technicalities, action, inaction, past action, body size or skin color…
But what has been most devastating is the silence. The silence of my colleagues, my students, my profession….Never have I found so many of us with so little to say. And while the silence may be benign, it certainly does not feel that way. I cannot explain why the silence seems so deafening, so sinister, so dark, so loud, but it does. The silence feels like indifference or defeat.
And I understand that we are silent for so many reasons. Because we aren’t ready to, aren’t sure how to, don’t want to talk about it. Because we don’t want to offend, admit, deny, accept, acknowledge or be complicit in it. Because it’s complicated, nuanced, jumbled, overwhelming and there are just no clear solutions, resolutions or easy answers.
But silence cannot be the answer, especially not for us.
This is ours. We create it, sustain it, perpetuate this system. We are not outsiders, on the periphery, the borders, or the edge. We are in the belly of the beast; we are the beast. We are in it, we are it. It is us. This is ours. And so it is our responsibility to act, to fix, to change, to remedy. How? There is no clarity here, the path undefined, hazy. But we start by owning it. This is ours. We own it and we march. We talk, we debate, we blog, we discuss, we bring it to light – in forums, in conferences, on the news, individually, in the classroom – we are unceasing. We use our tools: facts, precedent, policy and logic. We.Do.Not.Stop. Because this is ours.
Wednesday, December 3, 2014
Over Thanksgiving, VOX published a post, 26 Charts and Maps to be Thankful For, showing how the world is getting better. Extreme poverty has fallen globally. Hunger is falling. Child labor is in decline. Life expectancy is rising. Death is childbirth is rarer. Teen births in the US are down. War is on the decline. Homicide rates are falling in Europe and the US. Violent crime is down in the US, and there are far fewer nuclear weapons in the world. Democracy is spreading, and far more people are going to school around the world.
These are all data points demonstrating progress, however halting and grinding, across fundamental human experiences. I was happy to see it and share it, especially after weeks of bad news about racial injustice, police violence, brutal fundamentalism and vicious anger toward immigrants and the poor, but what is the cost of celebrating incremental systemic improvement?
Falling infant mortality rates are cold comfort to a mother who cannot feed her baby healthy meals in a food desert. Improving statistics on violent crime do not comfort the kid whose big brother is shot in the street. The Dreamer who can stay to learn and work still sleeps in fear that she can lose her family at any moment.
Celebrating progress can deaden the fierce urgency of now, and marking progress can give cover to those who would stonewall and apologize for the status quo. “Look, it’s better than it was. Calm down.” All of these trends threaten someone’s power or wealth; otherwise, the progress would not be incremental.
Ignoring or rejecting signs of progress, however, can generate more problems. At some point, the lesson of history becomes clear, and the scales tip toward justice. The advocates of justice and progress in the face of entrenched power eventually can claim with strength that they are on the right side of history and can put the inertia of power on defense. The narrative changes to favor justice, to regard demonstrators not at agitators but as heroes. Everyone will want to claim that they were on the side of justice all along, not waiting to see which way the battle will end. The social struggle continues, but the outcome is more secure.
In an interview this week, Chris Rock responded to a question critical of incremental change in the 50 years since the Civil Rights Act, citing examples of cruel rhetoric in our politics:
. . . . The stuff you’re talking about is pockets though. There’s always going to be people that don’t know that the war’s over. I’m more optimistic than you, but maybe it’s because I live the way I do. I just have a great life, so it’s easier for me to say things are great. But not even me. My brothers drive trucks and stock shelves. They live in a much better world than my father did. My mother tells stories of growing up in Andrews, South Carolina, and the black people had to go to the vet to get their teeth pulled out. And you still had to go to the back door, because if the white people knew the vet had used his instruments on black people, they wouldn’t take their pets to the vet. This is not some person I read about. This is my mother.
Without hope that the world can and does change, the struggle for justice becomes a fruitless, foolish chasing after the wind. It is the bulwark of the status quo, of the powerful, to convince the oppressed that they should be oppressed, always will be and always have been. Claims to the natural order of hierarchy or the divine imprimatur to rule need the world to be static. Marking progress and demonstrating change proves that the world is not static, and perhaps, just maybe, the long arc of the moral universe does bend toward justice.
De facto segregation is stubborn. De jure segregation died hard, though, and this shows that segregation is not inevitable. Systemic sexism promotes objectification and exploitation of women and girls. Women have voted for a century, though, and their suffrage has radically changed the substance of our laws, politics and governance, showing that patriarchy and misogyny are not necessary to the natural order. Systemic racism permeates our society and our institutions. No one serious or respectable will claim to be a white supremacist or will claim Jim Crow, and the shame of saying it out loud shows how the narrative can change. People still hunt for health care that does not bankrupt their families. Systemic healthcare reform and access to insurance demonstrate that quality care is not ordained for some and forever elusive to others.
Claiming victory and marking progress prove that injustice is not static and entrenched but that we can achieve it in increasing measure, however incrementally.
Marking progress can energize the urgency of movements toward justice by giving hope of success, while risking the despair of disappointment. In a 1988 Ebony article, Rosa Parks said, “I find that if I’m thinking too much of my own problems and the fact that at times things are not just like I want them to be, I don’t make any progress at all. But if I look around and see what I can do, and go on with that, then I move on.”
I am largely immune from the bad statistics, largely safe from the bad outcomes and systemic injustices. King is right that injustice anywhere is a threat to justice everywhere, so inasmuch as we can, we enter the struggle for the sake of every community. As a person of privilege across several intersections, I must learn the stories and lessons from Rosa Parks and Chris Rock without appropriating their stories as my own. I must guard against the comfort that I can take from abstract statistics even as I provide legal services to vulnerable clients who are facing immediate crises that are not at all abstract. I want to learn from history and from those we serve in struggles for justice to give proper weight to hope and progress, to urgency and criticism. I want to learn from the progress of justice movements without diminishing the anguish of current events, but I also take courage, strength and inspiration from the battles so far.
Self-destructive injustice is not inevitable or ordained in nature. The arc really does bend, so long as we work to bend it.
Wednesday, November 26, 2014
. . . . Now that the grand jury has determined Wilson committed no indictable state crime, we must respect that legal process and the outcome. But to respect the process, outcome and rule of law does not mean we should not interrogate, investigate and improve upon the process and the rule of law so that they work for all of us. . . .
Now is not the time to retreat. While we can mourn the unspeakable loss of a young man and the anguish Brown’s parents and family endure, the outrage over the killing was not just about Brown. The grand jury’s decision should be a clarion call to faithfully address issues that have poisoned Ferguson and communities around the nation far too long: the militarization of inner city policing; the presumption of criminality based on gender, geographies, neighborhoods, attire and skin color; the overreaching (and even violent) responses to peaceful protests and journalists engaged in their work; and municipal governments, through racially disproportionate levy of criminal fines and penalties, profiting on the poor. To say nothing of racial profiling, police brutality and use of excessive force.
We cannot even begin to address these ills if we choose to stay inside our comfort zones. While affording us measures of cognitive safety, confirmation bias engenders intellectual laziness, sameness and, importantly, overshields us from other viewpoints — profound, thoughtful, clumsy, intolerant, crazy or, yes, even racist.
Though it will be difficult, ugly and even maddening, we must get to the place where we can constructively discuss, examine and eliminate the ways race and racism are embedded in these pressing social issues. Surely people of goodwill — across race, professions, institutions and communities — can come out of their ideological silos to begin the conversations.
Wednesday, October 15, 2014
The Northwest clinical law community often views itself as one of the most happy and energetic groups in legal education. It is easy to see why they are such a jubilant group. First, they work in a natural setting that rivals some of the most beautiful regions in the world (within a short drive of a rugged forested coastline, the volcanic Cascades, and wine country world-renowned for its pinot noir). Second, the social justice-minded cultural values of the Northwest closely align with core values of clinical legal education, which creates a natural environment for clinical opportunities integrated with the larger community. Third, the region allows room for personhood and pioneering individuality in a way that is well suited to clinical educators trying to inspire their students through transformative professional experiences.
However, not even the breathtaking setting of the Columbia River Gorge could distract the Northwest clinical community from the somber mood that hovered over the group’s regional conference this past weekend. From the group’s first gathering at Friday’s reception, all were mindful and reflective of the recent unexpected decision to close one of the oldest and most respected clinics in the Northwest, the Lewis & Clark Legal Clinic. That closing threatens the continued participation and contributions of three of the most well-respected and valued clinical faculty in the Northwest: Mark Peterson, Richard Slottee, and Terry Wright. Their expected absence in years to come, as well as the planned retirement of Larry Weiser of Gonzaga after 33 years, could mark the end of an era in the Northwest clinical community.
Despite the pall in the air, the conference moved forward with presentations and discussions from a variety of new as well as experienced faculty from Seattle University, University of Washington, Gonzaga, University of Oregon, Lewis & Clark, University of Montana, the University of British Columbia, and Willamette. The community learned about new clinics at the University of Oregon and the University of Washington, examined models of collaborating with volunteer attorneys, externships, legal writing faculty, and law librarians, considered the ethical challenges of representing children in law school clinics, and provided feedback on a book Deborah Maranville is co-editing on legal education. A new organization was even created to support externship directors in the region. All in all, it was a productive conference.
The group has already scheduled the dates for next year’s conference: October 2-4, 2015, at Sleeping Lady in Leavenworth, Washington (http://www.sleepinglady.com/). Before they left though, the conference participants did something that this group rarely does. They entered a formal session, discussed the tragedy unfolding at Lewis & Clark, and unanimously agreed to express their deep concern over the decision to close the Lewis & Clark Legal Clinic to the Lewis & Clark administration, the AALS Section on Legal Education, and the ABA Section on Legal Education. When those letters are available, I will post them here. In the meanwhile, I encourage you to contact our colleagues at Lewis & Clark with any suggestions or insights you have that may be helpful to them in these deeply disturbing circumstances.
Wednesday, October 1, 2014
Federal Education Loan Relief and Forgiveness: An Important Resource for Law School Graduates is at Risk
By: Kim Bart, Assistant Dean for Public Interest & Pro Bono at Duke Law School, and Isaac Bowers, Associate Director for Law School Engagement & Advocacy at Equal Justice Works
Class of 2013 law school graduates who took out loans to fund their legal educations accumulated an average debt of $109,756 according to U.S. News & World Report data. In taking on that level of educational debt, many law school students were aware of, and perhaps counting on, long-established federal loan repayment and forgiveness programs. Some of the programs, however, may soon be constricted.
President Obama’s proposed budget, released in March 2014, includes a proposal to cap the level of federal loan forgiveness at the aggregate loan limit for independent undergraduate students, which is currently set at $57,500. This may leave graduate and professional students, including law students, out in the cold. Congress is likely to take the issue up next year as part of its ongoing reauthorization of the Higher Education Act.
Federal Loan Repayment and Forgiveness Programs
Federal loan repayment and forgiveness programs currently can help high debt borrowers in two main ways: (1) income-driven repayment plans set monthly student loan payments at an affordable percentage of borrowers’ incomes and allow cancellation of any remaining debt after 20 or 25 years; (2) Public Service Loan Forgiveness allows borrowers who commit to working in the public interest sector to earn forgiveness after 10 years of loan repayment. Only federal student loans are eligible for these federal programs.
The two most common income-driven repayment plan options are Income-Based Repayment (IBR) and Pay As You Earn (PAYE). IBR has been available to borrowers since 2009. It caps most borrowers’ monthly loan payments at 15% of discretionary income, with discharge of the loan balance after 25 years. Borrowers with no federal student loan balance who receive loans on or after July 1, 2014 have a monthly payment cap of 10% of discretionary income and discharge after 20 years.
PAYE, which has been available since 2012, also caps a borrower’s monthly loan payment at 10% of discretionary income and allows discharge of the loan balance after 20 years. To qualify for PAYE, borrowers must have received a loan on or after Oct. 1, 2007 and have had no outstanding federal student loans at the time they received it, and must receive a disbursement of a federal loan on or after Oct. 1, 2011.
Public Service Loan Forgiveness
Under the Public Service Loan Forgiveness (PSLF) program, the length of repayment is reduced from 20 or 25 years to just 10, in return for the borrower working in qualifying public interest employment. Qualifying employment includes work with federal, state, local or tribal government, or work with a 501(c)(3) nonprofit organization.
The prospect of loan forgiveness after 10 years of loan repayment has allowed many high debt recent law school graduates to consider public interest or public service employment, even though starting salaries for the public sector are significantly below those of the private sector. Median entry-level salary for public interest employment hover around $48,000, according to the 2014 NALP Public Sector and Public Interest Attorney Salary Report. This compares unfavorably with a median first-year salary of $125,000 for private firms. PSLF allows high debt law school graduates to realistically consider devoting themselves to long-term public service legal careers. A cap on Federal Loan Forgiveness would have a deleterious effect on the ability of law school grads to successfully manage law school debt, and remove an incentive for lawyers to choose lower-paying, but much-needed, public service work over private law firm employment.
To learn more, join the Equal Justice Works free live webinar: “JDs in Debt: What Law Students & Lawyers Need to Know about Managing Student Loans & Earning Public Service Loan Forgiveness,” which will be offered on October 8th, November 25th and December 18th, 2014. To register, visit http://equaljusticeworks.org/ed-debt/webinars.
Tuesday, September 16, 2014
I admit that the one email I dread every September is the announcement of the MacArthur Fellows --nothing like feeling totally inadequate three weeks into the new school year by reading about the exceptional accomplishments of this extraordinarily creative and hardworking group of individuals. I personally much prefer the announcement of the Darwin Awards.
But this year when I saw the dreaded email from the MacArthur Foundation, I quickly noted that the clinical community’s own Sarah Deer has been selected! Professor Deer is on the faculty of William Mitchell College of Law and is co-director of their Indian Law Clinic. She is a tireless advocate who has been instrumental in developing legal protections for Native American victims of domestic violence. A description of Professor Deer’s work can be found here. A full list of this year’s MacArthur Fellows can be found here. Congratulations, Professor Deer, on a truly extraordinary and well-earned distinction!
September 16, 2014 in Clinic News, Clinic Profile, Current Affairs, Domestic Violence, Faculty Profile, Family Law, Job Opportunities & Fellowships, Promotions, Honors & Awards | Permalink | Comments (0)
Sunday, September 14, 2014
Last week, The Economist published an article called "Generation i." The “i” was not a capital “I”—a reference to self-centeredness, a characteristic we often assign to the next generation coming of age, both out of a reflexive stereotype, as well as with an enduring familiarity with the characteristics of late adolescence. Rather, it was the more humble and humbling lower-case “i,” and referred to one of the most ethically confounding components of the law school curriculum today: externships. The Economist article referred to externship by its synonym, “internship,” (hence, the “i”) and considered the—ideally, educational and professional—experience in the context of a global trend in which internships have become widely required for entry into the most elite professions, such as law, finance, corporate management, journalism, and government.
The Economist article highlighted that with the rise of internships expected prior to hiring, the market has also seen an increasing number of these internships being unpaid, which effectively serves to segregate poor potential interns from wealthier ones. After all, it is far more difficult for a poor student and her family to support her for several months while she works for free. But it gets worse. As legal educators are well aware, many young people not only have to work for free, but they have to pay to do so in today’s market. In the case of law school students, some will be paying $15,000 or more to work full-time in law offices off-campus over the course of one semester. Is there a point at which this becomes exploitative?
One generation ago, in the late 1990s, I racked up approximately 3,500 hours of law practice experience between my first day of law school and my graduation day and was paid close to $100,000 in the process. If one were to add in my field experience with human and children’s rights, my experiential hours would have approached 4,000. Of those, only approximately 100 were earned through a law school-sponsored externship.
What did my law school do while I was off campus getting thousands of hours of legal experience? It treated me like an adult and tried to support me with flexibility and funding. It granted me a one-year leave to take a paid position working in an international law firm in Tokyo, let me complete my third year in another law school on the other side of the country where I clerked at the law firm where I happily spent the first eight years of my legal career, gave me two grants to support my field work in children’s rights, and allowed me to spend a January term researching child labor in Asia. In other words, the school allowed me a significant amount of freedom to design an educational and professional experience that worked for me as an individual. In exchange, I took my law school classes seriously, participated actively in the law school community, paid full tuition for three years, and despite the income I earned, still graduated six figures in debt with a studio apartment overlooking a parking lot and driving a 1987 Volkswagen Jetta. But I had experience and purpose and was positioned to launch, so I was happy.
Can we offer law students similar opportunities to individualize their legal education and professional development today? I think we can. The ABA’s recent decision to stop limiting law students’ ability to work more than 20 hours a week is a step in the right decision, as is the standard requiring law schools to mandate that students take more experiential courses. But, these changes do not go far enough. In today’s market of declining enrollment for law schools, some deans will be tempted to balance the budget on the backs of students and satisfy the experiential course requirements by offering low-quality externship opportunities. Every law school in the country must resist the temptation to allow our students to mortgage their futures with government-backed student loans in exchange for the “opportunity” to work for free off campus without substantial support from the law school.
Instead, law schools should see the new ABA standard requiring six credits of experiential coursework as an opportunity to strengthen and diversify course offerings that have long been neglected in the legal academy. These offerings should include a variety of law practice simulation courses leading into multiple clinical practice opportunities followed by a successful externship placement or paid clerkship that could lead to a permanent job offer, such as those described in last week’s article in The Economist. In other words, we need to ensure that our students are competitive to launch in a market very different than you and I entered one or two generations ago.
At every stage of this learning process, law schools should ensure that experiential course offerings are high quality and well-resourced, even when they occur off campus. When a student writes a check for thousands of dollars to a law school to work for free, the law school has a heightened moral obligation to ensure that the student has adequate support and supervision from the law school to help ensure that the experience is truly educational and professional and the student is successful. The student should complete the semester, or at his or her least law school career, feeling that, even in a market that many of us fear is increasingly exploitative, the law school had the student’s back. Law schools should not be seen as part of the exploitation and class stratification of “Generation i” being witnessed on a global basis.
Instead, we should transform our approach to “Generation i” into “Generation U,” getting to know our students individually, discovering their dreams and aspirations, and then helping to design an educational and professional program that is all about them. Sometimes that will mean providing high levels of support, other times, it will mean just getting out of their way, but always it should include high-quality choices, both academic and experiential. In doing so, let’s ensure that internships are all about education with our students at its core—in other words, a capital “U” bringing together us, the University, and You, our students.
Thursday, July 17, 2014
The International Journal of Clinical Legal Education just completed its 12th Conference titled “Clinic without Borders,” in Olomouc, a town in the Haná region of the Czech Republic dating back to the 10th Century A.D. The conference was co-organized with the European Network for Clinical Legal Education, and was held at Palacký University, which is nearly 450 years old, and is one of the oldest universities in Central Europe.
The conference was attended by nearly 200 law faculty members and social justice advocates from all over the world. Countries represented included Japan, Cambodia, China, Nigeria, Australia, Belarus, the United Kingdom, Ireland, Brazil, Italy, India, South Africa, Indonesia, Poland, Russia, Georgia, Spain, Canada, Kenya, Hungary, Sumatra, Bali, Finland, Turkey, New Zealand, and more. Approximately ten percent of the delegates were from the United States and included faculty from the Catholic University of America, NYU, American, University of California, Cornell, University of New Mexico, University of Georgia, Columbia, Rutgers, Albany, Georgetown, Washington and Lee, George Washington University, Willamette, and more.
Themes included “Clinic in the Wider Curriculum,” “Growing Clinics around the Globe,” “Multi-Disciplinary Clinics,” “The Growth of Clinics in Europe,” and “Virtual Clinics,” and the papers presented ranged from “The Path to Clinics in the Middle East” to “Clinic in an Era of ‘Crisis’ for Legal Education” to “Developing a Cross-Border Clinical Legal Education Project.” It was a rich exchange of ideas, resources, and collaborative opportunities that reinvigorated many of those who participated.
One area of disappointment expressed during a debrief of the conference was the dearth of paper proposals submitted in relation to the theme of “Virtual Clinics.” According to Johnny Hall of Northumbria University (UK), digital technologies could easily become the “Fourth Wave” in clinical legal education. What caused the lack of interest in presenting on this topic?
One possibility considered is that clinical law faculty members are as uncomfortable with digital technologies as the rest of legal educators. Most of us have not been leaders in integrating education technologies into the law school curriculum, clinical or otherwise. At the same time, we recognized that many clinical faculty and students utilize digital technologies in our law school courses, practices, and lives almost every day in the form of email, course websites, word processing software and files, messaging, social media, digital document storage, internet conferencing, smart phones, tablets, laptops, Internet, scanners, practice management software, social media, clinic websites, digital recordings, and more. We just don’t think the use of these technologies converts our face-to-face clinics into “Virtual Clinics.” Thus, the issue may simply have been one of terminology in the “Call for Proposals.”
After all, we heard stories at the conference of law faculty who were actually operating clinics without a “bricks and mortar” home where students never actually meet their clients in person. Most of us who are integrating these technologies into our law school clinics still rely very heavily on the face-to-face interactions between students and clients and faculty and students that make the clinical experience so rich, especially in certain practice areas such as domestic violence, refugee law, child advocacy, family law, and more.
What would be the consequences both for our students and the populations we serve if we converted a significant number of law school clinics into “virtual” ones? On the one hand, we could better serve rural, disabled, remote, or international clients who normally would not have physical access to our law school clinics, but we also might start to favor certain practice areas such as business law that lend themselves better to remote representation than others. Having a virtual clinic could also exclude those individuals who are too poor to afford the technology needed to access the clinic. These are some of the consequences that we must consider as an educational community in the Digital Age and respond with awareness and intent in designing our courses and curricula within a world of rapidly changing technology and limited resources.
As we met at IJCLE’s 12th Conference and considered the technologies that we already have integrated into our clinical courses and practices in whole or in part, we recognized that many of us have not undergone the thoughtful and intentional design and due diligence that is normally so characteristic of clinical pedagogy. Why? What is it about technology that eschews intention, analysis, and reflection in the clinical community?
We may soon find out. The planners of IJCLE’s 13th Conference are considering organizing next year’s conference around this potential “Fourth Wave” in clinical legal education. The conference will be held July 22-28 in Turkey and will overlap with the meeting of the Global Alliance for Justice Education. Pencil the dates in your calendars now. Regardless of the topic finally selected, if it is anything like this year’s conference, it will be well worth the flight.
Tuesday, June 10, 2014
Our nation is currently witnessing headlines about the busing of hundreds of unaccompanied children across the Southwest from Texas to Arizona, where they are being warehoused, but there are tens of thousands more unaccompanied children in our nation who are not making headlines. All need our help. Tomorrow Gannett is publishing an op-ed I wrote about the need to provide legal representation for these children. It can be found here.
Law school clinics interested in this issue should consider applying for the AmeriCorps grants that the Obama administration announced on Friday to provide legal representation for these and other migrant children who are in similar circumstances (see NYT article). Information about the grants can be found at this site. The targeted jurisdictions for the grants are: Arlington, VA; Atlanta, GA; Baltimore, MD; Bloomington, MN; Boston, MA; Charlotte, NC; Chicago, IL; Cleveland, OH; Dallas, TX; Denver, CO; Detroit, MI; El Paso, TX; Hartford, CT; Kansas City, MO; Las Vegas, NV; Memphis, TN; Miami, FL; New Orleans, LA; New York, NY; Newark, NJ; Omaha, NE; Orlando, FL; Philadelphia, PA; Phoenix, AZ; Portland, OR; San Antonio, TX; San Diego, CA; San Francisco, CA; and Seattle, WA.
If you need background in preparing your application, an excellent study about these children was just published by UC Hastings with the support of the MacArthur Foundation. I recently wrote a brief law review article arguing for the appointment of government-funded attorneys and personal representatives to help unaccompanied children navigate the legal labyrinth they face. If you would like to talk or need help with your application, please don’t hesitate to contact me. You will also find tremendous resources among our our colleagues who are immigration law faculty. They are a font of knowledge, passion, and commitment. Good luck!
Wednesday, May 21, 2014
Below is a trailer for a movie that I am planning on seeing this summer...that is if I can find it within a 300 mile radius of Spokane, Washington. "The Rules of Racism" is the third movie in the series "Hidden Colors" from New York Times bestselling author, Tariq Nasheed. The previous two films in the series are "Hidden Colors: The Untold History of People of Aboriginal, Moor, and African Descent" (2011) and "Hidden Colors 2: The Triumph of Melanin" (2012).
WARNING: If you watch this video on YouTube and glance below the video to the comments section, prepare to be outraged, amused, befuddled, disheartened and a host of other emotions...
Tuesday, May 13, 2014
A high-impact decision was issued by the European Court of Justice today when it held that Google must adhere to the requests of individuals to erase links to information that is “inadequate, irrelevant or no longer relevant” (http://www.bbc.com/news/world-europe-27388289). The case was brought by a Spanish man who did not want an auction notice for a repossessed home he had owned to be retrieved in response to searches of his name. The emerging legal concept, the “right to be forgotten,” is largely European and grows from the region’s well-established and widely-recognized body of privacy rights.
George Washington University Law Professor Jeffrey Rosen, who is also the Legal Affairs Editor of The New Republic, calls the “right to be forgotten” the “biggest threat to free speech on the Internet in the coming decade” (http://goo.gl/pq4UHC). A more comprehensive treatment of this right was published by Steven Bennett and can be found here: http://goo.gl/0nY227. Professor Rosen’s response to the emergence of the right to be forgotten is hardly surprising in a society like ours whose passion for free speech is only matched by our love of guns and money. But at what price?
Viviane Reding, the European Commissioner for Justice, Fundamental Rights, and Citizenship praised the ruling as a step out of the “digital stone age.” That stone age is one in which our children are often among the most vulnerable. Over ten years ago, Michigan State University Law Professor Kevin Saunders published a book examining the effects of the First Amendment on our nation’s children, Saving Our Children from the First Amendment (http://nyupress.org/books/book-details.aspx?bookid=9489#.U3Jqumjn-1s). Since then, we have witnessed an exploding occurrence of cyberbullying, sextortion, sexting, and exchange of sex abuse images involving our children and youth. While there are clearly exceptions to First Amendment freedoms for some of the challenges our children and youth face in the Digital Age, the fact remains that many of our children will carry a burden that we have never experienced as their youthful impulses, indiscretions, and, in some cases, victimizations, will be forever published and available on the Internet for others to witness again and again, unless the United States begins to more widely recognize a right to privacy.
Who among us isn’t thankful that those cellulose acetate images of a certain Spring Break in the Bahamas or that post-college graduation train ride across Europe or the election night victory party are degrading in someone’s attic right now? After all, as Scientific American reminded us yesterday, even the brains of mice, Chilean rodents, and guinea pigs know that some things are better forgotten (http://www.scientificamerican.com/article/new-brain-cells-erase-old-memories/?&WT.mc_id=SA_DD_20140512).
Thursday, May 8, 2014
In my first post about service-learning, I asked the question: who is serving whom? In this post, I want to reflect on why I think service-learning is important in the law school curriculum, and how it is different from and expands upon the skills and values we teach in law school clinics.
My first experience with service learning was almost twenty years ago, when I was an undergraduate student at Saint Mary's College. As part of our exchange with our neighbor, the University of Notre Dame, I participated in several alternative spring break experiences through Notre Dame's Center for Social Concerns. In fact, it was my participation in the Migrant Experiences Seminar as both an undergraduate and as a law student that set me on the path toward immigrant advocacy in my legal career.
Experiential learning generally - and service-learning in particular - has recently gained more traction in the law school curriculum. But what is the specific value of integrating service-learning more fully into the law school experience, and how is it different from other experiential learning opportunities? My UDC-DCSL colleague, Professor Susan Waysdorf - who has written extensively about service-learning in the law school curriculum - describes service-learning as programs that "place primary value on the service contribution and on the humanitarian participation of the students and teachers."
Professor Waysdorf's definition of service-learning resonates with me because it emphasizes the value of service-learning in the law school curriculum not just to our students, but to us as educators, as well. What do we, as teachers, gain by "giving up" our spring break to spend time with our students on these trips? What are we ourselves learning and teaching our students about the skills and values of the legal profession, and how do we distinguish it from what we teach in clinic?
I often describe clinic as a lab - in clinic, our students are able to work on a small number of cases chosen specifically for their pedagogical value, in a controlled environment and under close supervision. In service-learning, the set-up is dramatically different - both students and teachers are taken out of the safety of the clinic environment, and put in a situation where they are required to be vulnerable. Service-learning allows us to learn from those whom we are "serving" in a way that makes the experience powerful and disarming, precisely because of its lack of structure (in comparison to both clinics specifically and the law school curriculum as a whole).
In my final post in this series, I will share some stories of our service-learning experiences on the Arizona/Mexico border, and reflect further on how the addition of such opportunities to the law school curriculum can be profoundly life-changing for both students and teachers.
Teaching the Reflective Approach Within the Service-Learning Model, Laurie Morin and Susan L. Waysdorf, 62 Journal of Legal Education 4 (2013).
Returning to New Orleans: Reflections on the Post-Katrina Recovery, Disaster Relief, and the Struggle for Social Justice, Susan L. Waysdorf, 12 Univ. of the District of Columbia Law Review 3 (2009).
Katrina Disaster Family Law: The Impact of Hurricane Katrina on Families and Family Law, Mc-Carthy-Brown and Waysdorf, 42 Indiana Law Review 721 (2009).
Thursday, May 1, 2014
The day after I published my first blogpost, my 11-year-old daughter persuaded me to buy The Ultimate Worst-Case Scenario Survival Handbook. We pretended it was for her, but I knew better. Shortly after she handed me the text, I noted Chapter Five was titled “Mean Streets: Urban Survival,” which included an entry on “How to Clean Up Your Online Reputation.” One post and I already felt compelled to do damage control. The fact that the advice could be found somewhere between “How to Cross a Piranha-Infested River” and “How to Outrun a Pack of Zombies” pretty much cinched it for me.
What titles better capture the anxiety of a 40-something law professor venturing into the realm of social media? Don’t they know that law professors don’t do media? Heck. We don’t even do “social.” That is why we are professors! Many of us aren’t even trustworthy with a “Reply All” email function after a rancorous faculty meeting (http://www.uomatters.com/2014/04/uo-law-school-prof-angry-about-plan-to-use-his-raise-for-scholarships.html), let alone a digital platform that transports our late night ramblings instantly and permanently to 2.5 billion Internet users all over the globe.
But Worst-Case Scenarios can bring out the Indiana Jones in all of us, and right now, legal educators need to dig deep into our “Urban Survival” kits. Moody’s recently downgraded several independent law schools (http://www.nationallawjournal.com/home/id=1202651992392/Independent+Law+Schools+Suffer+CreditRatings+Slips%3Fmcode=1202617074964&curindex=2); The New York Times reported this month that five law schools have closed in the past two years (http://www.nytimes.com/2014/04/05/business/bold-bid-to-combat-a-crisis-in-legal-education.html?_r=0), although legal educators struggle to identify them (http://www.thefacultylounge.org/2014/04/five-law-schools-have-closed-in-the-last-two-years.html); and all the while, enrollments continue to plummet (http://www.lsac.org/lsacresources/data/three-year-volume). So we law professors are starting to do something truly radical (at least for us): we are trying new verbs. We are tweeting, blogging, posting, tumbling, linking, and more. But do we know what we are doing or why? Of course not! Thus, The Chronicle of Higher Education published a series of articles in The Digital Campus this week helping all of us to better appreciate and understand the importance of social media in the academy (http://chronicle.com/section/The-Digital-Campus-2014/715/).
If a Luddite like me (who cannot figure out how to turn off iTunes on her iPhone after listening to a little Eddie Vedder) can figure out how to Tweet, so can you! Here are some fast facts about social networking and survival tips for those of us who are Twittering on the brink.
Ever wonder what your students are doing in class? They are on Facebook posting or reading someone else’s posts or messaging, possibly about your suit, but let’s hope it is about the class discussion (in a good way, of course). Don’t believe me? Sit in the back of a large lecture hall and witness it yourself. Eighty-four percent of 18-29 year-olds and 79 percent of 30-49 year-olds are on Facebook (http://www.mediabistro.com/alltwitter/social-demographics-2013_b53515#more-53515). Heck. Even my 90-year-old grandma is on Facebook. But my grandma is not why you need to be on Facebook, it is because our students are, as are our alumni, and our competitors…er, colleagues, at other law schools.
Facebook is where our students engage, sometimes even when they are in class. It is the digital town square where people go to socialize and engage, so if you are not in the town square, you are not part of the conversation. But here’s the irony: law school social media etiquette is that most professors and students do not become Facebook friends until after they graduate. Why? Professional boundaries. You really don’t want to see that picture of your students with their buddies and a pile of empty PBR cans when they are supposed to be studying any more than they wants to see you vacationing at your cabin with your family when you are supposed to be grading.
So why do it? Once our students graduate, there is a little more distance and Facebook provides a wonderful way to keep in touch with our former students. We get to witness weddings, new babies, moves to new cities, travel, and more. It allows our professor-student relationships to be transformed into lifelong friendships, and that is worth learning new tricks, at least for this old dog.
So what social media can you use with your students while they are still your students? LinkedIn. Of all the mainstream social media platforms, LinkedIn is consistently the most formal and professional. Currently, LinkedIn is used by 15 percent of 18-29 year-olds and 27 percent of 30-49 year-olds (http://www.mediabistro.com/alltwitter/social-demographics-2013_b53515#more-53515). It is the only social networking site surveyed that is used more by people in the $75k+ salary range than in any other salary category (http://www.mediabistro.com/alltwitter/social-demographics-2013_b53515#more-53515). Given that most of our students will enter this demographic shortly after graduation, we need to model for them how to use LinkedIn and so I routinely “link” with potential new law school students whom I meet as well as students enrolled in my courses every semester. It helps them develop a professional profile and network and allows you to become updated quickly on the professional activities and positions of your students and alumni. This is especially important when you are asked to serve as a reference or write a letter of recommendation or simply help your law school compile placement data.
Dare to Tweet
Another social media platform to consider using to engage with your students (and potential students) prior to graduation is Twitter. A 2013 Pew Research center survey found that 31 percent of 18-29 year-olds and 19 percent of 30-49 year-olds use Twitter (http://www.mediabistro.com/alltwitter/social-demographics-2013_b53515#more-5351). Twitter's use among adults under 40 years of age (law schools’ key demographic) has more than doubled since 2010 (http://www.emarketer.com/Article/Twitter-Use-Rises-Across-US-Age-Groups/1010119), and the latest data shows that 71 percent of
Twitter users are 29 years of age and younger (https://www.sysomos.com/docs/Inside-Twitter-BySysomos.pdf); in other words, the age of our students and potential students.
The beauty of Twitter is that it is a one-way street (unless you decide to reciprocate). You simply put your ideas and observations out there for any of the 300+ million Twitter users to read, and if you are interesting (at least to some) or a celebrity, you might develop a following. The pain of Twitter, especially for law professors, is that you are limited to 140 characters per Tweet. Some say it makes Tweeters better writers, but others would argue that any communication forum that encourages the dropping of vowels and the use of contractions should be shunned forever.
In any event, Twitter allows you to share links to recommended readings for your students (or other followers), post links to your publications, update your followers on lectures, and more without getting as personal as one might on Facebook, for example. At the same time, The Chronicle published an opinion this week suggesting that getting at least a little personal on Twitter might make you appear more authentic (http://chronicle.com/article/In-Defense-of-Getting-Personal/145945/). And don’t worry, as painful as limiting your thoughts to 140 characters might sound, there are plenty of resources (see, e.g., http://www.pcmag.com/article2/0,2817,2387516,00.asp) to teach you how to tweet in a way that won’t make you look too much like, well, a law professor Twittering on the brink….
Sunday, April 27, 2014
Twenty years ago today, the first elections were held in a free and democratic Republic of South Africa, and Nelson Mandela was elected the country’s first president. For many of us in the clinical community, ending the incredibly racist and violent apartheid regime was our first endeavor into seeking global justice, and was undertaken in our formative years. Although our individual efforts seem relatively immaterial, history documents that the international economic and political pressures imposed on the apartheid government played a decisive role in ending a regime that was built on the oppression, exploitation, and political and economic exclusion of others. Our witness of the ability of humanity to work together on a global basis to end apartheid in South Africa inspired many of us to make optimistic lifelong commitments to work towards global justice and to teach others to do the same. “Education is the most powerful weapon which you can use to change the world,” Nelson Mandela taught us. Today, we have the honor of witnessing and supporting so many teachers in the clinical community and beyond who continue to heed the lessons we learned from Nelson Mandela. These heroes of law and democracy use education every day to promote justice and the rule of law, and to end oppression, exclusion, and exploitation all around the world. Happy 20th Anniversary to the Republic of South Africa, and to everyone everywhere who supports and promotes freedom and democracy!
Friday, April 25, 2014
Here is an op-ed I wrote for Gannett on the U.S. Supreme Court's decision in Paroline vs. U.S.: http://www.statesmanjournal.com/story/opinion/2014/04/25/congress-listen-child-sex-abuse-victims/8172953/. The battle to help restore victims of child pornography will now shift to Capitol Hill. There is a critical role for law school clinics to play and I hope that you will consider joining the effort.
Last week at Pepperdine, in advance of the new admissions rules for the California bar, at the urging of our dean, the faculty approved new graduation requirements of 50 hours of pro bono work for students and 15 units of “practice-based, experiential course work.” These will be in effect for the incoming class of 2017.
These requirements track the new California bar rules for admission. The California State Bar’s Task Force on Admissions Regulation Reform (TFARR) has established working groups to work out the definitions and procedures for implementing the new rules. There is more here.
The Task Force plans to work until September 2014 before issuing final rules. This is the text of the pertinent rules from the site:
Pre-admission: A competency training requirement fulfilled prior to admission to practice. There would be two routes for fulfillment of this pre-admission competency training requirement: (a) at any time in law school, a candidate for admission must have taken at least 15 units of practice-based, experiential course work that is designed to develop law practice competencies, and (b) in lieu of some or all of the 15 units of practice-based, experiential course work, a candidate for admission may opt to participate in a Bar-approved externship, clerkship or apprenticeship at any time during or following completion of law school;
Pre-admission or post-admission: An additional competency training requirement, fulfilled either at the pre- or post- admission stage, where 50 hours of legal services is specifically devoted to pro bono or modest means clients. Credit towards those hours would be available for “in-the-field” experience under the supervision and guidance of a licensed practitioner or a judicial officer. . . .
These are some of the outstanding issues for the implementation committees:
What does “pro bono” include? Will the rule limit pro bono to traditional legal services placements? Will the Bar track ABA Model Rule 6.1? Will be it broader or more narrow? Will it track New York’s rule that includes judicial externships, district attorneys and governmental law offices?
Will students be able to earn “dual credit” by taking a clinic or similar course that offers “practice-based, experiential course work” and pro bono services simultaneously?
Who will certify whether a course is practice-based and experiential? Will the Bar approve specific offerings or defer to law schools to determine which courses qualify?
Should a portion of the 15 units include clinics or externships? For instance, the committee is considering whether to require that 3 or 4 of the 15 units be in-house clinics or field placements.
Can substantive, doctrinal classes carve out a portion of the traditional podium course to include experiential components that can count toward the 15 units? For instance, could a contracts class provide .5 units toward the requirement by including a simulated drafting or negotiation component?
Can students satisfy all or part of the apprenticeship option during traditional summer work, and, if so, how will law schools be involved in the quality control and certification of compliance?
In future posts, I will describe the competing positions, my preferences and make some predictions.
Thursday, April 24, 2014
The Merriam-Webster Dictionary defines a vocation as "a strong desire to spend your life doing a certain kind of work." This definition of vocation implies a calling to a particular field of work, a devotion to a cause or occupation that is more than just a job - a vocation is something that is, by definition, imbued with meaning and a higher purpose.
I have always thought of my career in law in its various incarnations as a vocation. As a lawyer, counselor, activist, and teacher, the connection between my daily work and what I see as one of the main purposes of my life (the pursuit of social justice) has been rich. But like anything else, the law is a tool that can be used to accomplish various ends - or, as Charles Hamilton Houston famously reflected, "A lawyer is a either a social engineer or a parasite on society."
One of the reasons I wanted to not just become a law professor, but to become a clinician specifically, is because of my view of law as a vocation. It seems to me that our society, rightly or not, presents the "parasite" model of lawyering much more prominently than the "social engineer" model. While both models of lawyering are extreme, and the truth lies somewhere in the middle, I think this false dichotomy of what it means to be a lawyer causes us to lose something much more subtle and valuable - the notion that law is an honorable profession, and that lawyering can and should be more than just a job.
I am also aware of the temptation in our society to both romanticize (John Grisham) and sensationalize (Law and Order) the practice of law. My reflection of law as vocation is meant to get at something a bit different. At its core, law is a healing profession. If law is a vocation, lawyers are not merely hired guns - we are problem solvers. Lawyers are counselors and advocates - we stand by and walk with our clients not just because the rules of professional conduct require us to, but because our vocation calls us to do so. This is what I have learned from my teachers, colleagues, and students over the course of my career, and is ultimately part of the vision of lawyering and legal education that I hope to contribute to.
Wednesday, April 23, 2014
As a clinician who devotes a substantial amount of her time promoting and working with social workers via interdisciplinary collaborations, it was rewarding to hear that social work efforts are being used in other locales, and for the benefit of those who need services most. San Francisco's library system recently hired a full time social worker who assists homeless patrons by connecting them to services and housing resources. This is not only a great service to those folks, but also a great shout out to the benefits that social work brings to clients. Way to go San Francisco! The entire story may be heard here:
This morning the U.S. Supreme Court issued its decision in Paroline v. U.S. (http://www.supremecourt.gov/opinions/13pdf/12-8561_7758.pdf). The case involved the question of how to determine restitution for victims of child pornography. Although the majority opinion, written by Justice Kennedy and joined by Justices Ginsburg, Breyer, Alito, and Kagan, agrees with the victim and the government that restitution is mandatory, it held that courts should determine on an individualized basis each defendant’s unique role in the causation of the victim’s losses and then be held liable only for that limited amount.
This interpretation renders the mandatory restitution statute (18 U.S.C. §2252) untenable. Child pornography victims are routinely harmed by thousands of perpetrators many of whom are never identified, let alone prosecuted. It places a significant burden on courts, the government, and victims to try to calculate the relative harms caused by each individual perpetrator. Moreover, perpetrators are routinely found to possess or distribute child sex abuse images involving numerous victims. Thus, courts, the government, and victims would have to make this complex determination for each individual victim. The process as described would be highly inefficient, ineffective, and will lead to victims reliving their sexual abuse trauma indefinitely through the court system.
Thus, a legislative solution must be generated. According to the dissent, which was drafted by Chief Justice Roberts and joined by Justices Scalia and Thomas, “Congress set up a restitution system sure to fail in cases like this one.” Congress simply imported a generic restitution statute “without accounting for the diffuse harm suffered by victims of child pornography.” According to the dissent, the mandatory restitution statute is untenable and Congress should be given the opportunity to fix it.
Justice Sotomayor also dissented, but on entirely different grounds. She, essentially, agrees with the victim in this case, “Amy,” that each defendant should be held liable for the full amount of each victim’s losses. She, too, invites Congress to recodify the mandatory restitution statute to make clear that its command to award full restitution to victims of child pornography. Congress should accept the invitation.
Here is Amy’s response to the decision:
“I am surprised and confused by the Court’s decision today. I really don’t understand where this leaves me and other victims who now have to live with trying to get restitution probably for the rest of our lives. The Supreme Court said we should keep going back to the district courts over and over again but that’s what I have been doing for almost six years now. It’s crazy that people keep committing this crime year after year and now victims like me have to keep reliving it year after year. I’m not sure how this decision helps anyone to really know if, when, and how restitution will ever be paid to kids and other victims of this endless crime. I see that the Court said I should get full restitution “someday,” I just wonder when that day will be and how long I and Vicky and other victims will have to wait for justice.”
Willamette’s Child and Family Advocacy Clinic originally filed an amicus brief on behalf of the Dutch National Rapporteur on Trafficking in Human Beings and Sexual Violence against Children in this case (http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs-v3/12-8561_resp_amcu_dnrthbsvc.authcheckdam.pdf) and I previously published a guest opinion on Paroline v. U.S. with Jurist (http://jurist.org/forum/2014/02/warren-binford-paroline-supreme.php).
Tuesday, April 22, 2014
Tomorrow, Wednesday, April 23rd is Administrative Professionals Day (in all actuality - it's an entire week). As I would be absolutely lost without the assistance of my program coordinator, who is the glue that holds it all together, I am attempting to write a Haiku expressing my gratitude...
Ordering Chaos (5)
Keeping me sane and steady (7)
I apologize that you all had to suffer through that, but I am more than happy to use my embarrassment as a reminder to thank those wonderful people in our lives who are the underlying force for all that we accomplish.