Tuesday, February 3, 2015
Twice a year I have that Academy Awards moment when the envelope arrives in my inbox and my hands start to shake. An image of Sally Fields pixelates in my mind as I wonder, “Did they like me? Did they really like me?” It is a humiliating image, but there it is, every January and May, year after year, as much as I fear and despise it.
Clinical teaching is a bare your guts kind of experience. Raw and intense, our students see us at our best and our worst. They see us at our clients’ funerals, holding our clients while they vomit after losing custody of their young children, cranking out briefs side-by-side with our students at 3:00 a.m., and being berated by judges--on the record, no less. It is not always a pretty picture.
Despite being sincere and hard-working and deeply devoted to supporting our students as they emerge as attorneys, many of us hold our envelopes in our hands and wonder what our course evaluations will say. What did they really think of this exhausting clinical course that is so very real--immersed in real life and real learning and real law?
A pattern has emerged such that I have come to expect much of what I read—the high expectations I have for my students, my directness, and intensity. What I was not expecting this semester was the warning about my, shall I call it “girl talk”? For years, I have very consciously and openly talked about gender equality both in and out of the classroom. I am familiar with the voluminous research that shows the inequality that emerges between genders in academic settings from a young age.
Girls are called on less, speak for shorter periods, and are interrupted more than boys. This gender inequality begins at least in elementary school and continues on into college and even graduate school, before embedding itself solidly into lifelong workforce inequality, as demonstrated by both pay and position.
The issues created by gender discrimination are multifold. Not only is it a violation of our female students’ rights, and compromises their learning, it will have a significant economic impact on them individually, on organizations that fail to fully engage their minds and professional energies and talent, and on society overall.
And so I talk about these issues openly and directly when gendered dynamics appear in my classrooms or clinics. For example, both in and out of class, I look for discussion participation that is representative of the population by gender (and race). If the class is fifty percent male and fifty percent female, I expect the discussion to be approximately representative of those figures. When discussions become lopsided, I expressly invite members of the underrepresented group to talk more, and often draw the students’ attention to gendered dynamics and their negative consequences.
In clinic, I often witness gendered dynamics in client interviews or weekly meetings. It is not unusual, especially at the beginning of the semester, for me to observe client interviews where a female student is thoroughly prepared, sometimes more prepared than her male partner, and yet he does most of the talking. I see female students who talk quietly or hesitantly or infrequently, sometimes using a high pitched voice, accompanied by a sorority head tilt, and a few filler words such as “like.” Afterwards, we debrief and explore together why the female student did not participate more actively in the interview, especially if she is lead on the matter or was the most prepared. We work on voice and body language and volume for both men and women, but I witness these issues with my female students more.
In our weekly meetings, the students prepare the agendas and facilitate the discussion. I usually remain silent about roles until and unless we are in our third meeting and the female student still has not led or facilitated the meeting, which happens with at least one team almost every semester. We talk about the importance of attorneys conveying leadership and confidence, when and how best to demonstrate these traits, and why and how women and men need to support each other in developing professional personas and leadership skills.
And yet, there it was, at the very end of my very last evaluation. The anonymous student wrote that he or she did not say this or necessarily agree with this point of feedback, but thought it was important for me to know that another student said that, in advocating for women, I needed to be careful not to create a situation that placed male students at a disadvantage.
Does trying to provide and nurture and support equal participation by our female students place our male students at a disadvantage? Or is it the advantage of inequality that some are afraid of losing? In trying to rid our classrooms of gender bias, are we creating a classroom that some of our students feel are biased against them? These are just a few of the questions that I have been asking myself since nervously opening my envelope two weeks ago, now wondering if we should stop talking openly and directly about these issues.
Or maybe the issue is that there is not enough “girl talk” in clinics and law schools and higher education. As Sheryl Sandberg and Adam Grant pointed out in their December editorial in the New York Times, when people are told that discrimination is widespread, it can actually make discrimination worse by legitimizing it. The only way to actual reduce discrimination is by acknowledging its widespread existence and then changing the message slightly to add, “and most people want to overcome their biases.” But, do we?
Tuesday, January 27, 2015
The LA Times just reported that The US Supreme Court has denied stay to Warren Lee Hill. "A man with the emotional and cognitive ability of a young boy," according to Brian S. Kammer, Mr. Hill's attorney.
If you aren't aware of this case, here are a few quick links to bring you up to speed:
For an external perspective, see these pieces from the UK (a country who seems to be providing more coverage than our own):
My head and heart hurt, and I am so very exhausted from the many battles we have been fighting these days on issues surrounding #Blacklivesmatter. I suppose this is just one more horrific story to add to that growing list. So for now, I have little to say except this...I am making a commitment to my clinical colleagues to talk about this with the faculty, staff and students here at Gonzaga and in my community.
Despite the wrongs you may have committed, your life matters Warren Lee Hill.
Wednesday, January 21, 2015
Experiential Learning Across The Curriculum
Call for Presentation Proposals
The Institute for Law Teaching and Learning invites proposals for conference workshops addressing the many ways that law teachers are incorporating experiential learning in all types of courses. With the rising demands for legal-education reform and "practice-ready" lawyers, this topic has taken on increased urgency in recent years. The Institute takes a broad view of experiential education, encompassing learning that integrates legal theory and knowledge, practice skills, and guided reflection, with the goal of teaching students how to learn from experience. Accordingly, we welcome proposals for workshops on incorporating experiential learning in doctrinal, clinical, externship, writing, seminar, hybrid, and interdisciplinary courses.
The Institute invites proposals for 60-minute workshops consistent with a broad interpretation of the conference theme. The workshops can address experiential learning in first-year courses, upper-level courses, required courses, electives, or academic support teaching. The workshops can present innovative teaching materials, course designs, curricular or program designs, etc. Each workshop should include materials that participants can use during the workshop and when they return to their campuses. Presenters should model effective teaching methods by actively engaging the workshop participants. The Institute Co-Directors are glad to work with anyone who would like advice in designing their presentations to be interactive.
To be considered for the conference, proposals should be one page (maximum), single-spaced, and include the following information:
- The title of the workshop;
- The name, address, phone number, and email address of the presenter(s); and
- A summary of the contents of the workshop, including its goals and methods.
The Institute must receive proposals by February 1, 2015.
Submit proposals via e-mail to:
Associate Dean Sandra Simpson
Institute for Law Teaching and Learning
For more information, please contact:
Associate Dean Sandra Simpson
Professor Emily Grant
Professor Kelly Terry
The conference workshops will take place on Saturday, June 13, and until the early afternoon on Sunday, June 14 at Gonzaga University School of Law in Spokane, Washington. Gonzaga is hosting a welcome reception on the evening of June 12, 2015, from 5 p.m. to 7 p.m. at Barrister Winery, located in the downtown area.
The conference is self-supporting. The conference fee for participants is $450, which includes materials, meals during the conference (two breakfasts and two lunches), and a welcome reception on Friday evening, June 12, 2015. The conference fee for presenters is $350.
Friday, January 16, 2015
The Los Angeles Incubator Consortium Program, a collaborative project among Pepperdine, Southwestern and UCLA and others, is seeking applications for a part-time Attorney Development Director.
Wednesday, January 14, 2015
Via a note from Co-Presidents, Profs. Janet Thompson Jackson and Mary A. Lynch, CLEA has filed an amicus brief in the case of Rogers v. McDonald in the United States Court of Appeals for Veterans Claims. The case involves a successful claim by Harvard's Veterans Clinic and the VA's refusal to pay attorneys fees under the Equal Access to Justice Act.
From the introduction:
A federal judge once said, “[W]hen all else fails . . . , consult the statute.” Here, the Equal Access to Justice Act (“EAJA”) is clear. Under the terms of the statute, Mr. Rogers is the prevailing party, the government’s position was not substantially justified, and there are no special circumstances that make an award unjust. The Department of Veterans Affairs (“VA”) does not dispute any of these points. Therefore, the plain language of the statute dictates that the “court shall award . . . fees and other expenses.” 28 U.S.C. § 2412(d)(1)(A).
VA fails to identify any statutory text modifying this clear directive or otherwise supporting its position that the EAJA does not authorize recovery for work performed by law students in law school clinics. Instead, VA relies on misapplied law and misplaced policy in proposing a bar on EAJA awards that would decrease access to legal counsel, disincentivize work done by law school clinics, and diminish law students’ ability to serve unrepresented citizens. . . .
Tuesday, January 13, 2015
Conference: Engaging the Entire Class: Strategies for Enhancing Participation and Inclusion in Law School Classroom Learning
Engaging the Entire Class - Strategies for Enhancing Participation and Inclusion in Law School Classroom Learning
From the website:
The UCLA School of Law and the Institute for Law Teaching and Learning (ILTL) present a one day teaching workshop conference in which all law faculty (full-time and part-time) can learn more about developing techniques for engaging diverse and distracted law students. Each workshop session will be presented by a teacher featured in the recent Harvard University Press book, What the Best Law Teachers Do.
Sunday, January 11, 2015
On January 1, 2015, there was one fewer law school clinic in America. The Lewis & Clark Legal Clinic, one of the oldest and most well-respected clinics in the Northwest, silently closed its doors.
The Lewis & Clark Legal Clinic provided debtor-creditor, landlord-tenant, and family law services, including a significant amount of work representing victims of domestic violence. The clinic was founded in 1971, and together its full-time faculty, Dick Slottee, Teresa Wright, and Mark Peterson had spent approximately fifty years combined at Lewis & Clark. All had security of position; in fact, Professor Slottee, who was the clinic director, had tenure. The clinic served approximately 230 low-income and indigent clients per year and involved 35 to 70 students.
As recently as last summer, Lewis & Clark Law School touted the clinic’s work in Advocate Magazine. In the words of one recent Lewis & Clark alumna, “The value derived from the Lewis & Clark Legal Clinic is immeasurable. It teaches practical skills and it provides students a special opportunity to put the legal theories we learn in an abstract manner in the classroom into practice . . . The focus is on the students and the students are wholly supported.”
According to the Lewis & Clark Law School Dean, Jennifer Johnson, the decision to close the clinic was driven by budget constraints. She indicated that the goal was to offer lawyering skills and opportunities “for all students in a cost effective manner” and stated that “Going forward, we must focus our in-house clinics on those with significant fund raising potential,” while asserting that “current budget realities-for both the law school and our students-make this move necessary.” The rumor is that Lewis & Clark had an unexpected million-dollar shortfall and had already significantly cut the library budget (the largest budget item other than personnel), and so moved to the next largest item in the budget: the law school’s clinic. True or not, Johnson’s own framing of the decision exclusively as a financial one is worrisome.
In Pricing Clinical Legal Education, 92 Denver University Law Review 1 (2014), Robert Kuehn of Washington University Law finds that offering clinical opportunities to law school students has no net impact on tuition and concludes that offering clinical opportunities to students is determined by the law school’s will to offer such opportunities to students. As law schools consider how to balance the budget and keep the lights on during the worst downturn in law school enrollment in modern history, it is natural that some administrators may be tempted to conduct a casual analysis and conclude that high enrollment courses are the answer and try to cut costs by reducing smaller experiential courses.
However, a familiarity with effective pedagogies and the retention yields of various methods reveals that not all courses are equal when it comes to learning outcomes. The value of courses and teaching methods should not be measured predominantly by teaching or staffing inputs, but rather by learning efficiencies, efficacies, and outcomes. After all, if we hold ourselves out as educators, we owe it to our students to have a reasonable familiarity with effective educational methods and to utilize and prioritize those, rather than continue to offer course and curricula designs that have been scientifically proven by study after study to be ineffective.
Accepting tuition in exchange for enrollment in courses designed around learning methods that have been scientifically proven to be ineffective is unconscionable. Those simulated practice courses, externships, and clinics may cost more than placing 80 students in the room with a single lecturer, but they are far more likely to produce better learning outcomes for our students. Can you imagine a law school committed to designing and offering courses according to learning outcomes rather than cost input?
Even if one is not motivated by effective pedagogy, from a business perspective, we know that students care about clinics. A recent survey indicates that clinics and externships are one of the most significant factors students consider when deciding where to attend law school (location is number one).
After the decision to close the Lewis & Clark Legal Clinic was announced in September, another faculty member, Kathy Hessler, sent an email to the national clinic listserv informing the members of our community. She pointed out that the Lewis & Clark Legal Clinic was the only one at the law school that was funded directly by the law school. It is hard to imagine other law school courses being expected to go out and procure their own funding.
When one considers the effectiveness of clinical pedagogy, as well as the new ABA accreditation standards mandating experiential education, it is deeply concerning that an educational program built around one of the most effective learning methods known to us would be singled out to be "self funded."
Even more concerning, though, was the resounding silence of the national clinical community to the news of the decision. Just a handful of emails were sent in response. At the Northwest Clinical Conference in October, attendees voted to send a letter to the Lewis & Clark Dean expressing our deep concern over the decision and offering our support to reverse the decision. In response, Dean Johnson emailed each signatory and the dean of the person’s home law school, and directed them to have our dean contact her if we would like “further input into this issue.” Was she trying to intimidate us into silence with this power play? Perhaps, but apparently, there was no need. I have said nothing since. Have you?
This is the way a clinic ends. This is the way a clinic ends. This is the way a clinic ends. Not with a bang, but with silence.
PEPPERDINE UNIVERSITY SCHOOL OF LAW invites qualified and experienced candidates to apply to teach and direct its new Restoration and Justice Clinic to commence academic year 2015-16. This is a long-term contract position with rank of position to be determined in light of a candidate's qualifications and other factors.
The School of Law seeks a talented, creative professor to launch, teach and direct the Restoration and Justice Clinic. The Clinic’s practice will provide legal services to victims and survivors of domestic abuse, sexual assault, human trafficking, prostitution or other gender or sex crimes, including matters related to civil protection orders, civil and human rights, family law, immigration, consumer protection, or housing. Along with the School of Law’s administration and faculty, the professor appointed to direct the Clinic will have significant responsibility for initiation and coordination in defining the clinic’s mission, parameters, clients and scope of practice. The Clinic will develop curriculum and cultivate multidisciplinary partners in the university and community with whom to collaborate formally.
The new Clinic is part of Pepperdine’s expanding program of clinical and experiential education. Pepperdine law students must complete 50 hours of pro bono service and 15 units of professional skills classes, and they can receive dual credit in clinics, practicums and qualifying externships. The Restoration and Justice Clinic will promote diverse curricular offerings with a multidisciplinary, client-centered practice with various and intersecting forms of advocacy. The Clinic’s director will have opportunities to participate in the School of Law’s Global Justice Mission and to collaborate with existing clinics to serve local, national and international clients.
The successful candidate will be responsible primarily for teaching and directing the Restoration and Justice Clinic, will also teach externship workshops periodically and will likely have opportunity to teach other courses.
The position is a 12-month appointment.
Candidates must hold a J.D., be licensed to practice law in California (or be willing to obtain a California license as soon as possible), and preferably have experience working with law students on client cases in a clinical, externship or similar setting. The candidate’s record should demonstrate superb lawyering skills, leadership and management experience, strong teaching ability, and the communication and interpersonal skills essential to being an effective clinical teacher. Scholarship in the field will be a positive factor in considering candidates.
The School of Law is an ABA accredited, AALS member law school located in Malibu, California. Pepperdine is a Christian university committed to the highest standards of academic excellence and Christian values, where students are strengthened for lives of purpose, service, and leadership. The School of Law welcomes applications from people of all faiths and is particularly interested in receiving applications from candidates who may bring greater racial, ethnic, and gender diversity to the faculty of the School of Law.
Interested applicants should submit letter of interest and current resume or curriculum vitae to Professor Richard Cupp via email at email@example.com.
Friday, January 9, 2015
Congratulations to our friends at the Best Practices for Legal Education blog, edited by Prof. Mary Lynch. The ABA Journal named it among the Top 100 Blawgs for 2014. (You can find it under the Careers/Law School tab.)
It is a terrific, thoughtful resource for teaching materials and ideas and contributes much to contemporary discourse about American legal education.
Well done, y’all.
Wednesday, January 7, 2015
There are few better ways to start the New Year than with a smooth, slow descent over the Potomac at night with the Capitol and the Washington Monument illuminated in the distance. It provides a few moments to reflect on the past year, and to try to envision what we need to do to ensure that our students, children, and grandchildren have the same professional, personal, and economic opportunities with which we ourselves have been blessed. Our world is changing.
In 2014, the China overcame the United States as the world’s leading economy. But don’t worry. We still have a number of other distinctions. For example, we continue to lead the world in environmental pollution per capita (China leads when measured by total volume). We also remain the world’s largest military power. In fact, our military spending is more than the next ten highest military spending countries combined. We also are far ahead when it comes to the percentage of our population in prison (700 inmates per 100,000 people), and the U.S. population continues to experience the greatest inequality in the world among developed nations. We remain a world leader in some ways, unfortunately.
So when I walked into the 2015 AALS Annual Meeting boasting the title, “Legal Education at the Crossroads,” I was hopeful that there would be discussions rich and lively focusing on the ways that we, as legal educators, can provide leadership—through scholarship, teaching, and service—to a nation in decline. The crisis that we are witnessing in legal education is not unique to us. But our opportunity is. Would we embrace it, I wondered?
A “Hot Topic/Bridge Program” focused on our nation’s racial issues kicked off the annual meeting on Saturday, but as I talked to colleagues from around the country in the hallways of the Wardman Park Hotel, I heard tales of lukewarm responses by many law schools to racial inequality issues, and at least one tenured colleague at a Midwestern law school told me of her experience being aggressively criticized by her law school administration for providing legal advice to students who were arrested during Ferguson-related protests.
As I sought panels and presentations focused on diversity, inclusivity, and justice, I was greeted with a variety of sessions focused on overcoming persistent discrimination in legal academia, strategies for nurturing diverse leaders in law schools, and the identification of higher education as a public good whose integrity must be protected from the widespread corporatization of America and transformation of our democracy (at least ideally) into a plutocracy. But, at times, even these disappointed as some panelists conveyed a deep entrenchment in a defensive position of academic entitlement that none of us can afford to embrace.
This is not 1973 and none of us is Professor Kingsfield. No longer can we stand at the podium and look down at our students, assured that both their futures and ours are assured. They are not. Law school teaching in the 21st century requires us to stand next to our students, and to partner with them. Our success is tied to theirs, as is America’s. If we cannot effectively and efficiently train the next generation of attorneys to understand the rule of law without burying them in massive debt, they will be unable to promote and passionately defend that same rule of law, which underpins our entire civilization.
Instead of asking these big questions, many discussions focused on travel funding and course loads and the potential of externships to save us from our obligation to create “practice ready” law school graduates. Don’t get me wrong. I had a fabulous time hearing marriage advice from Justice Ginsburg and getting a hug from Anita Hill—two of my heroines. But when the excitement of legal celebrity sightings wears off, I couldn’t help but return to room number 4216, and wonder how many more smooth landings I will be able to enjoy over the Potomac. There seems to be rough weather ahead, at least to me.
Tuesday, January 6, 2015
In most courses I teach, I have taken to distributing a list of writing guidelines at the first class meeting. This began as guidance for students on graded written assignments, so that when I bled red ink on their passive voices they would be on notice. Admittedly, some of these are personal bugaboos, but I am not shy about my subjective preferences. Students will have to write for picky partners and cranky courts for their careers, so conforming their writing to my rules is good training.
I have expanded and contracted the list over time. Here is the Spring 2015 edition for Negotiation Theory & Practice of Baker's Advice and Strong Preferences for Good Writing:
To improve your writing is one of the great purposes of this course and law school. This course requires varied writing assignments, and your grade will depend on the quality, craftsmanship, strength, purpose and effect of your writing. I will grade your written work product on form and substance, compliance with instructions, correct and fruitful use of legal authority, compliance with proper citation authorities where necessary, style, grammar and spelling.
For your continued education, improvement as writers and insight into my preferences, please consider these principles of good writing style. This is not an exhaustive list, but these are common errors and weaknesses which you should seek to eliminate from your writing. I will penalize your grade for deviation from these virtues, unless your meaning and context demand deviation. Be prepared to defend your style choices with very good reasons.
1. Write intentionally, and do not assume that what you have written first and quickly is good. Good writing is deliberate writing. Good writing is a craft that requires practice and discipline.
2. Ensure that all words, sentences and paragraphs have a purpose and that you understand their purposes. If a word, sentence or paragraph does not have a purpose or if you cannot articulate its purpose, strike it. As The Elements of Style teaches, omit needless words.
3. Almost always, shorten what you have written to convey your point better. Mark Twain reportedly once wrote to a correspondent, “If I had more time, I would have written a shorter letter.” Stephen King, in his book On Writing, explains his practice of shortening every work by at least 10% after he has completed a draft, without regard for the pain. This is good practice, and the process of making your completed work shorter, while retaining its essence, will make you a better writer.
4. Use strong and diverse verbs. Verbs are the crux of strong writing.
5. Avoid passive voice, almost always. You should use passive voice only in the most discrete instances when the passive role of the object is integral and necessary for your meaning. Inevitably, passive voice weakens your writing, and it provides a lazy dodge for writers who seek to obfuscate their meaning. For instance, “Mistakes were made,” is a weak and dishonorable way of saying, “I made mistakes.”
6. Avoid beginning your sentences with “There are. . . ,” “There is. . .” and “It is. . .” Similar to the use of passive voice, although not as fatal, these are weak phrases that dilute the effect of your writing. We speak this way, but you almost always should find a better, clearer and stronger way to express your meaning.
7. Use parallel sentences and serial clauses. For example, this is not parallel: “As lawyers, we should write with honesty, wit and clearly.” “With honesty, wit…” is a prepositional phrase, but “clearly” is an adverb. This is parallel: “As lawyers, we should write with honesty, wit and clarity,” or “As lawyers, we should write honestly, wittily and clearly.” For another example, this is a poor, unparallel sentence: “Today, the place of women in the world is in a transitional age, presenting an affront to many fundamentalist religions and in that traditional societies have certain presumptions about gender.” This is better and parallel: “Today, the place of women in the world is in a transitional age, presenting an affront to many fundamentalist religions and challenging presumptions of gender in traditional societies.”
8. Avoid adverbs. Use stronger verbs instead. For example, this is poor: “The baby cried loudly.” This is better: “The baby wailed.”
9. Prefer simple, shorter sentences. Use compound or complex sentences if you must, but almost always avoid compound-complex sentences. For example, this sentence should be two or three independent clauses, not one sentence: “Although they had fallen for each other, she tried to avoid sitting too closely to him at the end of the day, because of the potential for airborne infection, and he hoped that she would consider stocking up on hand sanitizer.”
10. Show your work. Write for the ease of your reader. Do not assume that your conclusion flows obviously from the facts and the law without your own analysis. Always consider the reader and examine whether the reader can understand and follow what you have written to the conclusion you intend. Demonstrate how the facts and the law inform each other and explain how they work together to justify the conclusion for which you argue.
11. Cite every factual and legal proposition with appropriate, authoritative sources, every time. This practice makes you more careful and accurate and makes your work more persuasive and reliable.
12. Write in context. Context is everything. Write to serve your readers, not to punish them.
Friday, January 2, 2015
Tuesday, December 23, 2014
The last night of seminar for the Community Justice Clinic was the same night a New York grand jury chose not to indict the police officer who killed Eric Garner. The protests in New York that night joined protests underway in the wake of Michael Brown’s killing and the decision of a grand jury in Missouri not to indict the police offer who shot him to death.
In class I asked my students what would make them demonstrate in the streets, what would make them disrupt freeways, commerce and public spaces. They answered that they would take to the streets if they did not feel heard or if they felt as if they had no power to effect change otherwise. They would take to the streets to change a system that would not listen to them, to hold power accountable, to bear witness.
We discussed why protests turn to riots and what might make a demonstrator burn business and structures in their own neighborhoods. No one condoned looting and burning for their own sake or as effective political moves. We had good discussions about seeing a blighted neighborhood as a symbol of oppression in its own right, how a ghetto might be a prison build on systemic, generational racism, so that burning one’s own neighborhood might just be rage at the ever-present symbol of one’s own confinement and disenfranchisement.
We read King’s answer to those who challenged him about demonstrations turning to riots:
Now I wanted to say something about the fact that we have lived over these last two or three summers with agony and we have seen our cities going up in flames. And I would be the first to say that I am still committed to militant, powerful, massive, non-violence as the most potent weapon in grappling with the problem from a direct action point of view. I’m absolutely convinced that a riot merely intensifies the fears of the white community while relieving the guilt. And I feel that we must always work with an effective, powerful weapon and method that brings about tangible results. But it is not enough for me to stand before you tonight and condemn riots. It would be morally irresponsible for me to do that without, at the same time, condemning the contingent, intolerable conditions that exist in our society. These conditions are the things that cause individuals to feel that they have no other alternative than to engage in violent rebellions to get attention. And I must say tonight that a riot is the language of the unheard. And what is it America has failed to hear? It has failed to hear that the plight of the negro poor has worsened over the last twelve or fifteen years. It has failed to hear that the promises of freedom and justice have not been met. And it has failed to hear that large segments of white society are more concerned about tranquility and the status quo than about justice and humanity.
We compared and contrasted those who would interrupt commerce and disrupt a marketplace in protest of injustice with the old American heroes who destroyed the private property of business owners shipping tea to be taxed by the Crown, by dumping it into Boston Harbor.
I asked the students, these future lawyers, what conditions must exist for a loser, someone who receives an adverse decision or must endure an unfavorable legal or political outcome, to accept it. In a democracy, how must the system operate to ensure that losers accept an outcome rather than resorting to violence, vigilantism or self-help? They answered that the party who loses must feel that the process was fair, that the case received a neutral hearing, that they could trust the people in the process. If a loser trusts the system to adjudicate a claim fairly and without bias or favoritism, then the loser is more likely to go peacefully.
This led us to discuss the profession’s historic, moral call to public citizenship. The ABA Model Rules of Professional Conduct express the call that lawyers (every lawyer, not just bleeding hearts) are “public citizens” who should “further the public's understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance.”
Last week, the national discourse changed again when New York City Police Officers Wenjian Liu and Rafael Ramos were assassinated by a violent man who had shot his girlfriend hours before he shot the officers. The killer claimed to target police because of Ferguson. This crime is abhorrent, the vicious murders of public servants bound to protect and serve their communities.
For some, this changes the rhetoric of the debate, and they demand that citizens silence their grievances against police excess and corruption. Some blame recent protests against police use of deadly force, systemic racism and mass incarceration for inciting this violence against the police. Some have blamed the civilian political leadership for undermining police authority by pushing for reform and accountability.
Brutal and discriminatory police practices do not justify violent attacks against the police. Perceptions of ambiguous threats by unarmed citizens do not justify deadly force by the police. Neither justifies the suspension of the Rule of Law, civil rights and social morality. In America, the state’s police power cannot rightfully silence and suppress dissent and the people’s call for a redress of grievances, and the people should not return violence for violence.
When blood flows, the rift grows between the police and the policed. As trust deteriorates, deference to authority becomes increasingly tenuous, and the authority may respond with more force and power to ensure the subjects’ deference. A street occupied by a militarized police force may experience more violent protest than one patrolled by a civilian police presence, because the people will oppose the excessive force with greater force. An overwhelming presence of police can bring security but can also heighten fears and chill community engagement.
We are not bound to these binary choices, either capitulation to absolute police authority or surrender to violent crime. As Ben Franklin advised us, we cannot trade liberty for security and keep either. We must imagine new paths of justice and peace. New paths require trust among the police and policed, the state and the citizen, the sovereign and the subject, neighbor and neighbor. If we are serious about avoiding the persistent mistakes of the past, we must include more people, more communities, more voices, more criticism and more ideas in our discourse. So long as discrete communities are alienated, targeted and excluded by the power of the state and our economic systems, we will reap what we sow.
As Prof. Laurent wrote earlier, this is ours. We are lawyers. We are the keepers of the justice system, operatives of the Rule of Law. When we prescribe more trust in the system, we are calling for more trust of the people in the system, and the people in the system are lawyers. Our students, the students with whom we practice law in our clinics, the students before whom we model our own public citizenship will carry that weight and that obligation into the world. This is the work of lawyers, to reform the law and to advocate for a sustainable, accessible justice system that invites fulsome and fair participation.
We can mourn both the loss of police killed in the line of duty and those killed by police without justification. We can fight against the outrage of systemic racism and denounce the brutality of an assassination of public servants. We can enforce our laws vigorously and demand democratic accountability of state police power. We can build trust in our legal system and public servants while resisting violent crime without militarizing our streets. We can defend ourselves without going to war with neighbors. We can achieve liberty, security, justice and liberty for all, but the social contract always and ever requires humility, presence, discipline, conviction, inclusion, patience and nonviolence.
Wednesday, December 10, 2014
LegalEd is now accepting proposals for Igniting Law Teaching 2015, which is scheduled for March 19 and 20, 2015, at American University Washington College of Law in Washington, D.C. All proposals must be received by January 15, 2015.
Igniting Law Teaching 2015 is not a traditional law conference. Participants prepare 5-10 minute engaging presentations on legal education in TedX-style formats that will be digitally recorded and distributed online on the Legal Ed website, which can be found here. Igniting Law Teaching 2014 produced nearly three dozen legal education videos from professors all over the country, including a number of clinical professors. The recordings have been viewed hundreds of times by law school faculty, administrators, students, and alumni both in the U.S. and abroad, and the Journal of Legal Education is devoting an entire issue (Spring 2015) to the research underlying the 2014 Ignite Law Teaching recordings.
If you are interested in modernizing legal education to make it more effective, efficient, and relevant, I encourage you to consider participating in the 2015 Ignite Law Teaching event. More information about the event and submitting a proposal can be found here.
Tuesday, December 9, 2014
As you get ready to swap out your 2014 calendar for your 2015 calendar, make sure that you note that proposals for presentations at GAJE's 8th Worldwide Conference are due January 15, 2015. The conference will be taking place at Anadolu University in Eskişehir, Turkey, from
22 July through 28 July, 2015. More information can be found at http://www.gaje.org/8th-worldwide-conference/. The general theme is "Justice Education for a Just Society" with eight streams ranging from regional and international collaboration to innovations in justice education to creating clinics that are sustainable. The conference will be combined with the 2015 Conference of the International Journal of Clinical Legal Education. A limited number of grants will be made available to participants from developing countries. Grant applications are also due by January 15.
I hope to see you in Eskişehir next July!
Today, Prof. Liz Keyes of Baltimore published the AALS Winter 2014 Newsletter on behalf of the AALS Section on Clinical Legal Education. (In full disclosure, I sit on the Section's communication committee.) Prof. Keyes, coordinating with this blog's Prof. Tanya Cooper who edits CLEA's newsletter, has overseen a new format for the AALS newsletter.
The newsletter is organized by themes and topics, not by school, and it includes these new sections: Committee Reports & Updates, Announcements and Clinical Program News. Clinical Program News includes updates on schools' experiential requirements, innovations, collaborations, new or expanded clinics, awards, successes and other news.
Download the newsletter here and enjoy: AALS Winter 2014 Newsletter
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.
Tuesday, December 2, 2014
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.