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.
Tuesday, November 25, 2014
The Rule of Law depends on the people trusting law makers, courts and law enforcement. The people trust these institutions if they have a franchise and a voice and if these institutions treat the people with honest dignity. Otherwise, the institutions fail, and the people seek justice, dignity and safety through other means. Without access to justice, without a voice, democracy fails.
Friday, November 14, 2014
On November 7 the Washington Post ran a column entitled "The two words that scare the World Bank" written by the U.N. Human Rights Council's special rapporteur on extreme poverty and human rights, Philip Alston. The two words? "Human rights."
The Los Angeles Times' editorial board opined on October 16 that "the human rights of all those who seek refuge must be respected" in reference to reports that our immigration border officials and courts may be turning away, and deporting, victims of human rights violations at alarming rates.
And on October 27, Jessica Lenahan testified before the Inter-American Commission on Human Rights (IACHR) about the death of her young children in a domestic violence and police incident in 2005. Ms. Lenahan, and her attorney Caroline Bettinger-Lopez who directs human rights clinics at the law schools of the Universities of Chicago and Miami, alleged to the IACHR that the United States has failed to implement changes to domestic violence laws and policies in the three years since the Commission decided that the goverment had violated Jessica's human rights--and those of her daughters--in the 2005 incident.
Why is discourse about human rights so closeted in law- and business-related discourse, particularly in the U.S.? What keeps it in the closet?
Philip Alston, in his column for the Post, asserts that the "official reason" for the World Bank's "long-standing aversion to discussing human rights" is its proscription from considering political matters according to the Bank's Articles of Agreement. Alston points out that after the Cold War, many nations had an understandable aversion to human rights debates.
As a teacher of those who will populate our justice system for a generation or so, I profoundly hope that aversion is waning. And although it may appear an empty gesture to some, I offer for consideration the September 2014 Proclamation issued by President Obama "reaffirm[ing]" the basic human right to be free from violence and abuse" to mark the 20th anniversary of the Violence Against Women Act. That proclamation resulted, in no small part, from the work of Professor Bettinger-Lopez and her colleagues, some of whom are contributors to this website. Slowly but surely in the wake of the 2011 IACHR decision, they have lobbied U.S. cities large and small for the passage of proclamations declaring freedom from domestic violence a fundamental human right.
And in September, 136 law professors signed onto a letter authored by my Penn State Law colleague Shoba Sivaprasad Wadhia urging the President to offer amnesty to undocumented workers. Although this week's USA Today column by attorney Paul Reyes does not expressly use the possibly-scary words "human rights," the message is clear. Like Professor Bettinger-Lopez and her colleagues, Attorney Reyes, Professor Wadhia, and the other law professors who submitted that "Dear Mr. President" letter are the ushers leading human rights out of the closet.
Thursday, November 13, 2014
This week, Profs. Charles Auffant and Mary Jo Hunter, co-chairs of the AALS Section on Clinical Legal Education, announced that Professor Ann Shalleck of American University Washington College of Law is the 2015 recipient of the AALS Section on Clinical Law William Pincus Award. Here is their announcement:
We are pleased to announce that Professor Ann Shalleck has been chosen as the recipient of the AALS Section on Clinical Legal Education’s William Pincus Award for outstanding contributions to the cause of clinical legal education. The award will be presented at the Section’s luncheon on Friday, January 3rd at the AALS Annual Meeting in Washington DC.
The Section’s Awards Committee (Margaret Martin Barry and Mary Lynch, co-chairs) recommended Professor Shalleck from among a number of worthy nominees based on Professor Shalleck’s extraordinary contributions in the realms of scholarship, program design and implementation, elevation of the status of clinicians, mentoring clinical professors, and advancement of the cause of justice. The following is a brief synopsis drawn from the Awards Committee’s report:
Ann was described as a tireless advocate on behalf of the clinical movement. She received CLEA’s Outstanding Advocate for Clinical Teachers in 2009; as a member of the AALS Executive Committee from 2010 to 2013, she represented the AALS at ABA Standards Review Committee meetings and hearings during the contentious re-evaluation of all of the accreditation standards; she has been on at least 10 AALS conference planning committees and done countless presentations at AALS conferences -- she even created a primer for clinical conference or workshop presentations; she has hosted the Women and the Law Breakfast in conjunction with the AALS Annual Meeting for over 15 years; she has been a member of the Georgetown Summer Institute faculty for each of its four years; is a co-founder and co-facilitator of the Rounds About Clinical Teaching for Experienced Clinicians in Washington, DC; she is a past member of the SALT Board; and she has contributed in other venues, such as Law & Society and the Southern Clinical Conference.
Ann has authored over 25 works, including her recent work as co-author of TRANSFORMING THE EDUCATION OF LAWYERS: THE THEORY AND PRACTICE OF CLINICAL PEDAGOGY (2014). We will say what you all undoubtedly know, that Ann has had a profound effect on the teaching of and thinking about clinical legal education.
Ann founded WCL’s Women and the Law Program, a key part of which is the Women and the Law Clinic which she has directed since its inception in 1984. Ann was also involved in creation of the school’s Domestic Violence Clinic and continues as lead teacher for the joint Women and the Law-Domestic Violence Clinic seminar. As director of the law school’s clinical program from 1997-2000, Ann created the Practitioner-in Residence programs as a means of expanding the clinical program and to help practitioners learn about clinical teaching and develop scholarship. The program’s success in meeting its goals of helping practitioners transition is seen in the letter written by 12 of the former practitioners. “Transformative” and “I consumed [Ann’s article on supervision] in huge gulps, thrilled by Ann’s description of the supervisory relationship as a series of intentional choices by the teacher” and “instrumental” were some of the descriptors used by the practitioners.
In addition to her clinical scholarship and teaching, Ann is a feminist scholar. Her latest focus is developing the Women and the Law Program’s Student Debt and Education Justice Project Inaugural Conference.
We hope you will join us in honoring our colleague Professor Shalleck in person in Washington DC.
Congratulations, Professor Shalleck!
Wednesday, November 12, 2014
Dr. Artika Tyner, formerly of the University of St. Thomas legal clinics, now of St. Thomas's College of Education, Leadership & Counseling, recently gave this excellent Tedx Talk on Education for Social Change.
This is in support of her new book, The Lawyer as Leader: How to Plant People & Grow Justice.
Thursday, November 6, 2014
Emerging Family Law Scholars
University of Illinois College of Law
January 19, 2015
The Family Law and Policy Program at the University of Illinois College of Law—in conjunction with the University of Minnesota Law School, the Brooklyn Law School, and the University of South Carolina School of Law—is pleased to invite paper proposals for the inaugural HARRY KRAUSE EMERGING FAMILY LAW SCHOLARS WORKSHOP. The workshop is named for Professor Krause, who as a member of the Illinois law faculty mentored many budding family law scholars across a half century of teaching.
The Workshop will take place on Monday, January 19, 2015 at the University of Illinois College of Law, Champaign-Urbana, Illinois. The Workshop is designed to assist and mentor emerging scholars in family law and related fields – such as reproductive rights, biomedical ethics, children and the law, law and gender, and law and sexuality – to hone draft papers and works in progress for submission to journals for publication. The Workshop provides not only a mechanism for senior scholars to mentor emerging scholars, but also is an opportunity for emerging scholars writing in these fields to connect with one another.
The Workshop is designed for emerging scholars who have been in tenure track positions for seven years or less. Visiting Assistant Professors, Fellows, Adjunct Professors and lecturers seeking full-time positions as law teachers may also apply. (For purposes of calculating “seven years or less” of teaching, fellowships, adjunct positions, and lectureships do not count against the total.)
Working accepted papers not yet finalized for publication may be submitted, as well as earlier drafts where guidance from senior scholars in the field can assist the author. Co-authored papers will be considered as long as one of the authors has been involved in teaching for seven years or less or is seeking law teaching positions.
The Workshop Committee will consist of Illinois Law Professor Robin Fretwell Wilson, who directs the law school’s new Program in Family Law and Policy, and Professors June Carbone, Marsha Garrison, and Marcia Yablon-Zug.
The Workshop can accommodate four scholars. One slot will give preference to an international emerging scholar and one to individuals seeking law teaching positions.
Proposals should be no more than two pages or 1000 words in length and sent to Professor Wilson at firstname.lastname@example.org before December 1, 2014. The Workshop Committee will notify selected Scholars by December 15, 2014.
If accepted, the Family Law Program will provide accommodations and meals for the Workshop. Invited scholars are expected to pay their own travel to the University of Illinois, although “modest” travel support will be available to scholars who have no funds from their home institution.
Of the four selected of the scholars, one will receive a Best Paper Award.
Sunday, November 2, 2014
Prof. David Barnhizer recently posted the ominous “‘Drumbeats of Doom’ and the Downsizing of Law Faculties” at LawNext. He projects the potential for a “civil war” among classes of law faculty during this disruptive moment in the market for legal education. Prof. Barnhizer is wise and has a good will, and he may be right. He has many useful observations in the piece.
I write in response because he and others borrow trouble by pitching the conversation into a distilled narrative of internecine camps bent on defending their own frontiers.
He sets forth the familiar parade of horribles in legal education and the well documented forces at work in vulnerable law schools: plunging applications, decreasing enrollments, falling metrics, depressing post-grad job prospects, university budgetary obligations and increasing demands for more productivity with fewer resources. He also observes the “aggressive push” for law schools to increase experiential education, but almost as if that pressure is unrelated to the root crises besetting legal education.
I respond here to build on his observations, first, to suggest that a “civil war” is not inevitable, but that speaking in bellicose and binary terms is more likely to generate it; second, to observe that the existence of “classes” in the first place disposes our landscape to be a battlefield; and third, to offer some hope that epistemic humility, creativity and collaboration can deliver us from destructive power struggles.
With imagination, we’ll get there.
Prof Barnhizer writes:
We can expect that many law schools will be entering a period of ‘civil war’ between traditional tenure track and tenured faculty and Legal Writing and Clinical faculty as well as people hired for an expanded set of administrative tasks that have consumed increasing amounts of law school budgets previously allocated to those hired on the tenure track. . . .
. . . [A]s resources shrink and demands on faculty increase, including the expansion of teaching loads for tenure track faculty and the marginalization of scholarship, there will be nasty battles between the “classes” of law faculty of a kind rarely seen before.
He may be right, and such conflict may occur in certain schools.
(Indeed, many clinical law professors would say that they have been thus engaged for a very long time and that the inconstant terms of security and status prove it.)
A civil war is not necessary, though. First, to essentialize “traditional tenure track and tenured faculty” and “Legal Writing and Clinical faculty” is not useful or accurate and is needlessly provocative. There are no such essentialized populations except as they exist in individual institutions, so to suggest that these camps exist in any kind of cohesive way across the academy is not useful. (Clinicians are probably the best organized as a discipline, but we don’t vote in blocs and are usually vastly outnumbered on faculties.) Also, Legal Writing and Clinical faculty have different functions, roles and modes of teaching. We ought not impose a hierarchy on our respective roles, but these professors do not necessarily share the same positions and preferences.
If a faculty interprets itself in essentialist terms, then probably it will go to war.
If a faculty can reinterpret itself to see itself as a collaboration of variously talented professionals with common cause in an uncertain environment, then they are less likely to fight and more likely to solve their common, strategic problems.
If the faculty can recognize that they sink or swim together in a competitive, disruptive season, then they are more likely to innovate, adjust and grow. If some segments of a faculty insist on defending a dying status quo against seismic forces of change, to resist the emergence of new partners, then they might all go down in their burning ship.
If tenured, “doctrinal” faculty think that clinicians are mounting a mutinous revolution, then they likely will respond with all the force their privileged governance affords them. If clinicians actually are mounting a mutinous revolution (or act like it), then they likely are ensuring a conflict they cannot win. In the meantime, as Prof. Barnhizer quotes Dylan, they both will “sink like a stone, For the times they are a-changin.”
The assumption that the production of scholarship for the sake of scholarship is the heart of legal education is a foundational problem. Likewise, to think that scholarship is extraneous to good, practical teaching is to neglect the great virtue of our role in society.
Teaching law students is the heart of our enterprise. Scholarship, good, elite, provocative, critical, creative, theoretical and normative scholarship, makes us better teachers and serves our students. Scholarship serves the purposes of lawyers to improve the law, to educate the nation, to seek just law reform, to explore the dark corners of democracy and potential for the Rule of Law. This is the work of lawyers, some who are scholars and exercise their vocation in scholarship, but the work of scholarship in law schools should be in principal service of pedagogy, increasing our expertise, expanding knowledge for our students, modeling critical and theoretical prowess in practice, contributing to our fund of ideas and insight.
Scholarship by itself, however, is only sufficient to teach other scholars and theorists. We are in the business of educating lawyers, not professors. As scholarship informs good teaching, so practice informs good learning. Our students are not paying for law review articles, and they are not paying for technical training.
The Carnegie Report is onto something good with its description of three apprenticeships in professional education: the cognitive apprenticeship, the apprenticeship of skills and practice, and the apprenticeship of professional identify and values. A good legal education requires all three.
In theory, “traditional” professors teaching podium classes provide the cognitive work. LRW professors provide the skills and practice training. Clinicians teach and model professional identities and values. In reality, we all should be teaching all three at the same time, in varying degrees and weights of emphasis. None of us can afford to do them all well on our own, but none of us are dispensable to the enterprise done well. For one part of this body to go to war with another only leads to self-destruction.
For the sake of our school and our students, I should want my doctrinal colleagues to be utter and undeniable stars in their fields. For the sake of our school and our students, my doctrinal colleagues should want our clinics to thrive with excellent, creative and dedicated lawyer-teachers. (For the record, mine actually do.) If there are actually faculties at war in these camps, then perhaps those schools indeed will succumb to the drumbeats of doom, because they are not serving their students well.
To pit “scholars” versus “clinicians” is unnecessary and shortsighted. If we share common goals of teaching students well, of seeking justice and the improvement of the law, then perhaps we can recalibrate the conflict to address those who do their jobs well and those who do not.
Regarding the classes of the legal academy, Prof. Barnhizer does well to identify the pressures on law schools created by tenure, but he comes close to ratifying the implicit position that those privileged with tenure are the most oppressed and distressed by the emerging new order. Tenure exists for two historically essential reasons, to protect the intellectual freedom of scholars from political pressure and retribution and to entrust governance of the school with those whose work is at the heart of the enterprise. It is not a gift; it is an obligation.
The work of law professors is and ought to be of such quality and import that it speaks uncomfortable truth to power. We are lawyers first, public citizens obligated to seek improvement in the law, who necessarily challenge and criticize prevailing structures. If a scholar needs protection for the political voice of a law review article, how much more does a clinician need similar protection when the clinic files a suit, takes a client, organizes for reform and advocates zealously for justice.
If tenured faculty are not producing work of such quality that it demands protection from political pressure, or if tenured faculty have not governed their institutions sustainably, then perhaps their tenure is the very problem binding law schools.
On the other hand, if more kinds of teachers with diverse gifts and talents had tenure, perhaps the governance would be more nimble, wiser and more apt to adapt.
If law schools tremble before the “aggressive push” for experiential learning, from the bar, bench, students, employers, alumni and the market, then perhaps empowering more types of professors is the wise move of those already at the helm. If tenure is to ensure the sustainable mission to teach and learn, and if schools are faltering in a changing market after a century of inertia, then including more professors with the “gift” of tenure could stabilize the uncertainty.
Further, the existence of classes promotes and perpetuates the binary angst of those with the privilege of tenure and the frustration and anxiety of those without it. The class system of legal education generates a zero-sum bloodletting in the classic contest of those privileged with more power against scrappier, highly motivated activists with less of it. It also promotes a false dichotomy between scholars and “other” professors, instead of contemplating a more cohesive idea of diverse teachers in common cause.
To defend one’s privileged place at the head of the table will ensure conflict. To welcome more people to the table with knowledge, wisdom and talent can only strengthen the institution and culture of a school.
Of course, there will be conflict in our demanding new market. Faculties, deans and universities will disagree on resources, priorities and investment. We will struggle over the weight and investment in the three apprenticeships. Crises beget reactive entrenchment and forlorn charges. Some will be defensive; others will be brazen. The question is whether these decisions mean civil war or whether they mean constructive deliberation.
In alternative dispute resolution, we mediators talk about the difference between distributive bargaining and integrative bargaining. In distributive bargaining, the parties attempt to negotiate who gets the most of a limited resource. It is often positional and confrontational, an argument over who deserves a greater portion of a scarce, finite commodity. It is arguing over who gets a bigger piece of pie, and why they deserve it by their greater worth and more righteous position.
In integrative bargaining, the parties look for ways to make the pie bigger. Constructive, integrative bargaining does not pit the parties against one another and gives less regard to the relative worth of their competing positions. Rather it honors competing interests, seeks common grounds and goals, then sets forth to imagine new paths where everyone is satisfied and everyone gets richer.
Distributive bargaining works best when the parties do not care whether their relationships will continue but only care whether they get the best deal possible, without regard to the cost imposed on the other side.
Integrative bargaining is better when the parties must exist in relationship together or will depend on each other to ensure that their respective interests thrive.
If a tenured scholar believes that clinicians are chipping away at her lucrative piece of a dwindling pie, then she may be willing to go war to deny them resources or an advance in their work. If a clinician believes that he has to agitate, shame, threaten or moan about a subjugated and neglected place on the faculty, then he may be willing to go to war in confrontational advocacy, if he has any kind of status and security of position.
Alternatively, if the professors, from their various roles in the academy, can agree that their interests are integrated and that their goals are consistent, then the possibility exists for everyone to have more pie. Everybody likes more pie.
If teachers who are primarily scholars can recognize the value and contributions of the teachers who are primarily practitioners and the lessons they teach, without imposing a tired hierarchy, then there is hope that they can create something cohesive and valuable for the students they teach together. If they can see themselves as fellow teachers in common cause, dependent on each other for success, then perhaps they can imagine better ways to teach students.
Perhaps by teaching students better, applications will increase, and enrollment will stabilize.
Perhaps by teaching students better, graduates will get more jobs and be more competitive.
Perhaps by teaching students better, alumni will consider their investments in our enterprise to be money well spent.
This requires a cohesive vision of the school’s mission and the intersecting roles of teachers, but the hard work is worth the effort to avoid civil war.
To survive and thrive in the present trouble, each faculty has a choice. War is not inevitable. Creativity and innovation are possible. Success depends on whether each teacher and each faculty will approach their work and colleagues humbly, intentionally and creatively, with a willingness to adapt for the sake of their common interests.
For those who refuse to change, to share, to work harder, to shed old canards, to reconsider the shape and work of the school, their noses will suffer for the spite of their own faces.
Wednesday, October 29, 2014
On behalf of the CLEA Newsletter committee, I am happy to announce that it is once again time to send information for the CLEA Newsletter. We invite you to submit your creative writing and shorter articles on clinical pedagogy and social justice topics. We also welcome your good news: promotions, moves, new experiential teachers, retirements, publications (hyperlinks also welcome), and awards.
As a reminder, CLEA no longer publishes law school press releases or clinical program news, in part to avoid duplicating information published in the AALS Clinical Section Newsletter. We have already heard from clinicians with interesting projects, and we hope that you will consider allowing CLEA to feature your writing. The deadline for submissions for the Fall 2014 Newsletter is Monday, December 1, 2014. Please e-mail them to me at email@example.com, and please contact me with any questions.
Thanks, and best wishes,
CLEA Newsletter Committee
Tanya Asim Cooper, D’lorah Hughes & Kate Kruse