Clinical Law Prof Blog

Cunningham-Parmeter: Redefining the Rights of Undocumented Workers

Keith Cunningham-Parmeter (Willamette) has just posted Redefining the Rights of Undocumented Workers, American University Law Review, Forthcoming. Here is the abstract: 

Should a nation extend legal rights to those who enter the country illegally? The Supreme Court recently addressed this question when it held that unauthorized immigrants who are fired illegally for unionizing cannot recover monetary remedies. This has led to a significant decline in employment protections for unauthorized immigrants beyond the unionized sector. For example, some courts now question whether unauthorized immigrants can receive full remedies for sexual harassment, workplace discrimination, or on-the-job injuries. 

Scholars have criticized these losses but have yet to formulate a coherent framework for evaluating the employment rights of unauthorized immigrants. This article does so by distilling and applying several core principles at issue when employment laws conflict with immigration laws. I begin by explaining how the text and purpose of selected immigration and employment statutes show that Congress never intended to restrict unauthorized immigrants’ employment rights. Remedial restrictions not only harm the workplace protections at issue, they fail to discourage illegal immigration. Thus, neither legislative intent nor national immigration goals justify limiting the workplace remedies available to unauthorized immigrants. 

Although the future rights of unauthorized workers will turn partly on the issues of statutory purpose and immigration policy discussed in the early sections of the article, equally important are the consequences of diminished rights. Accordingly, I conclude the article by explaining why restricting workplace protections based on status harms citizens as well as immigrants. I contend that employment protections are “rights of partial inclusion” that reflect a distinctive sphere - the workplace - where unauthorized immigrants should be placed on par with citizens in pursuing collective interests. In contrast to arguments that favor limiting resources to lawful residents, partial inclusion explains how employment protections can effectively preserve national identity while simultaneously enhancing unauthorized immigrants’ incentives for social investment. In doing so, partial inclusion furthers the community’s self-definition, while providing unauthorized immigrants with a sense of belonging in a world increasingly focused on their exclusion. -jl

Northwestern Law - Empirical Legal Scholarship Workshop

The upcoming Conducting Empirical Legal Scholarship Workshop presented by Northwestern University School of Law and Washington University School of Law, will take place May 20-22, 2009, at Northwestern University School of Law in Chicago. The workshop is for law school faculty interested in learning about empirical research.  Leading empirical scholars, Lee Epstein, and Andrew D. Martin will teach the workshop, which provides the formal training necessary to design, conduct, and assess empirical studies, and to use statistical software (Stata) to analyze and manage data. Participants need no background or knowledge of statistics to enroll in the workshop.  Click here for more detailed information including the schedule.  Payment is available via check or credit card.  Note: The registration deadline has been extended to May 13, 2009.  -jl

ARTICLE: 'I' Before 'E', Except in Mediation

Kelly Anders teaches Mediation, Interviewing & Counseling, and Professional Responsibility and is the Associate Dean for Student Affairs at Washburn University School of Law.  Her article, ‘I’ Before ‘E’, Except in Mediation: Training Introverts to Use Extroverted Techniques to Become Stronger Mediators, will be published this year in the Oklahoma City University Law Review. Abstract & SSRN Link below.

SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1313344

ABSTRACT:
Little research has been conducted on the personality types of law professors and others who train law students and lawyers to work as mediators, but if the assessments of attorneys and students are any indication, it is likely that professors and other instructors probably tend to fall into the "introvert" category. As a result, several questions arise. How important is a feelings-centered approach in order to be an effective mediator? Can introverts teach other introverts to behave as extroverts? Which traits of introverts and extroverts are most valuable for mediators to possess? And, can a mediator be sensitive to the parties' feelings on either side and remain neutral?

This article discusses traits of introverts and extroverts, provides examples of mediation training techniques that strengthen the extroverted traits most beneficial for effective mediators, and concludes by suggesting methods for law schools and other mediation training programs to consider in developing students into mediators with balanced introverted and extroverted skills.

Newman: Re-Conceptualizing Poverty Law Clinical Curriculum and Legal Services Practice

JoNel Newman (Miami) has published Re-Conceptualizing Poverty Law Clinical Curriculum and Legal Services Practice: the Need for Generalists, Fordham Urban Law Journal, Vol. 34, 2009. Here is the abstract:      

This essay discusses how the legal profession - including legal services providers to the poor - became so specialized. The essay also discusses how the clinical legal education movement has tracked this increasing trend to specialization. The essay argues that specialization hurts impoverished clients, and argues for greater recognition of the value of poverty law "generalists." The paper identifies several models for the provision of more general poverty law services and discusses the use of this model in a law school clinic.

-jl

Herring: Clinical Legal Education - Energy and Transformation

David J. Herring (Pittsburgh) has posted Clinical Legal Education: Energy and Transformation, University of Toledo Law Review, Vol. 31, 2000. Here is the abstract:

The clinical movement has had a dramatic impact on the nation's law schools. Administrators and faculty members cannot successfully ignore it or wish it away. Instead, they must address it and seek ways to harness its energy. My perspective on this subject stems from my entry into academia as a clinician. I was a faculty member in the University of Michigan's Child Advocacy Law Clinic for three years before joining the faculty at the University of Pittsburgh in 1990 with the charge to create and implement an in-house clinic program. Over the past ten years, I have assisted in the creation of the Child Welfare, Corporate Counsel, Elder, Environmental, Health, and Low Income Taxpayer Clinics. Thus, my actions indicate that I am a supporter of clinical legal education. However, my support is not unconditional.

Clinical legal education poses uncomfortable challenges and significant problems for legal educators. Several are mentioned in this work. Yet no matter what one thinks about clinical teaching methods, clinical faculty status, or even clinical education in general, I believe that the creation of clinics can transform a law school's curriculum and environment in many positive ways.

-jl

CALL FOR PAPERS - THE LONG ROAD HOME: PERSPECTIVES ON OLMSTEAD TEN YEARS LATER

The Georgia State University College of Law will hold a one-day symposium on Friday, October 23, 2009, to mark the tenth anniversary of the United States Supreme Court’s integration mandate in Olmstead v. L.C., 527 U.S. 581 (1999), a landmark decision considered by some to be the disability law parallel to Brown v. Board of Education.  Attorneys and the surviving plaintiff from the Olmstead litigation, which
originated in metropolitan Atlanta, will participate in the Symposium. United States District Court Judge Marvin Shoob, who ruled on the original summary judgment motion in Olmstead, will speak at the luncheon.

The Symposium is co-sponsored by the College of Law, the Center for Leadership in Disability, the Atlanta Legal Aid Society, Sutherland Asbill & Brennan LLP and the Georgia Advocacy Office.  Attorneys from Atlanta Legal Aid and Sutherland participated in the original Olmstead litigation. 

The Symposium will examine the current status of the right of individuals with disabilities to receive services in community-based settings and explore the next steps in implementing and expanding the Olmstead decision. The College of Law welcomes papers, essays, and symposium-length articles on these topics and related subjects.  The format is flexible in order to encourage academics, advocates,
attorneys, practitioners, and providers alike to participate.  Selected conference papers will be published in a future issue of the Georgia State University Law Review.

Those interested in participating should e-mail a one-page abstract by March 20, 2009.  Participants will be notified by late April if their papers have been accepted for publication.  For more information, please contact Laurice Rutledge, Law Review Symposium Editor, or Talley Wells.   

-jl

Exploded Dream: Desegregation in the Memphis City Schools

Daniel Kiel (Memphis) has published Exploded Dream: Desegregation in the Memphis City Schools, Law and Inequality: A Journal of Theory and Practice, Vol. 26, No. 2, 2008. Here is the abstract:

This article is a comprehensive look at the story of school desegregation in the Memphis City Schools. Beginning with the Brown v. Board of Education decision that ended segregation in schooling, the article traces the steps taken in Memphis to put the Brown decision into practice. Following a period of inaction and delay, the Memphis City Schools experienced a relatively peaceful transition as token desegregation took place in the early part of the 1960s. However, after the assassination of Dr. Martin Luther King, Jr., in Memphis in 1968, the community's polarization was globally exposed and further progress on school desegregation was limited. After federal courts ordered busing to implement the Brown mandate, a quarter of the district's white students departed for the nearby Shelby County Schools or for a growing, and uniquely successful, system of private schools. Since the busing order, the white population in the Memphis City Schools has steadily declined so that by the 50th anniversary of the Brown decision, a district that had been 58% white and 42% black in 1954 was 86% black and 9% white in 2004. Using the Northcross v. Board of Education of the Memphis City Schools litigation as a guide, this article traces that history, putting Memphis in the context of the larger desegregation story.

-jl

After Brown: What Would Martin Luther King Say?

Martha Minow (Harvard) has published After Brown: What Would Martin Luther King Say?, Lewis & Clark Law Review, Vol. 12, No. 3, 2008. Here is the abstract:

The occasion of the first Martin Luther King Jr. Day Speech at Lewis and Clark Law School, following on the heels of the Supreme Court's rejection of two voluntary racial school integration plans, warrants revisiting the conception of equality that called for school integration, the prospects for equal opportunity without education, and remaining arguments for integration. "Integration" here means more than terminating legally-enforced segregation, and more than sheer mixing of people with different races and identities in the same setting. As Dr. King described it, integration involves the creation of a community of relationships among people who view one another as valuable, who take pride in one another's contributions, and who know that commonalities and synergies outweigh any extra efforts that bridging differences may require. Before the disillusionment accompanying the apparent failure of judicially-mandated school integration, integration was inseparable from access to opportunity as a goal of civil rights reformers from the 19th century through the middle of the 20th. W. E. B. DuBois and Martin Luther King, Jr. separately emphasized that racially separate instruction by teachers who believe in their students' capacities would be better than racially-mixed instruction by teachers who disparaged African-American children - but integration would be still better. Opposition to court-ordered desegregation remedies and judicial retreat occurred just as approval of racial mixing and even integration succeeded as cultural and political ideals. Current educational wisdom identifies strategies for equal educational opportunity apart from integration. These include curricular and academic supports that demand high standards, prepare minority students to achieve in a sometimes hostile world, and craft for each student the social identity of an achiever who is a member of a community of learners. Focused school reforms aligning the curriculum with standards, more "time-on-task" with longer school days, initiatives to recruit and support effective teachers, and shifts in school finance guided by standards of adequate education and comparable opportunities can mitigate the disparities still associated with racially distinct school communities. But as even the good arguments for socioeconomic integration reveal, failure to pursue racial integration - including efforts to create truly inclusive communities of mutual respect - can recreate racial segregation through tracking, special education assignments, and students' own divisions in lunch tables and cliques. Racial integration informed by the demographic changes making this a multicultural and multi-racial society remains a distinctive goal apart from other efforts to ensure equal educational opportunities. Justice Kennedy's separate opinion in Parents Involved in Community Schools v. Seattle School District No. 1 along with the four dissenters create a fragile majority that would permit school systems and housing developers to local schools with the aim of encouraging racial integration, to develop programs designed to attract racially diverse groups of students, and to hold meetings and recruitment efforts to attract diverse groups of students and teachers. Contrary to the Court's majority opinion, pretending to have achieved color-blind as well as open opportunity - when we have not - disables individuals and communities from understanding what is going on and from becoming equipped to deal with it. In addition to the strategies for integration left open, families and students can choose integrated schools by their residential choices and by making their own lives look like the high-concept ads celebrating integration.

-jl

Dr. King and the Battle for Hearts and Minds

Wendy Scott (Maryland) has published Dr. King and the Battle for Hearts and Minds, New York University Review of Law & Social Change, Vol. 35, 2009. Here is the abstract:

In 1954, a unanimous Supreme Court held that laws requiring dual public school systems, separated solely on the basis of race, violated the rights afforded to African American children under the Fourteenth Amendment Equal Protection and Due Process clauses. Brown v. Board of Education marked the beginning of a judicial assault on what the Court in Loving v. Virginia called statutory schemes and state court decisions that served as "an endorsement of the doctrine of White Supremacy." Both Chief Justice Earl Warren and Dr. King recognized that the practice of White Supremacy did more than keep people separated. In Brown, Warren's opinion also validated the relevance of the psychic injury caused by what Dr. King often referred to as "the iron feet of oppression." Warren wrote that the segregation of children solely based on race "generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone." While Warren's conclusion remains hotly debated, Brown introduced personal stigmatic injury into school desegregation discourse. Dr. King embraced the centrality of the heart and mind in the struggle for social justice.

Part II juxtaposes Dr. King's thoughts on the evils of segregation and the necessity of integration with the development of desegregation jurisprudence after Brown. Part III traces the short-lived efforts of the federal judiciary to integrate public schools following Dr. King's death up to Parents Involved . Part IV summarizes the Parents Involved decision and compares the plurality's legal and social visions to that of Brown and Plessy. Part V hypothesizes about Dr. King's reaction to Parents Involved and takes a closer look at the importance of the heart and mind in the Brown opinion and Dr. King's thinking. In conclusion, I attempt to answer the prophetic question posed by Dr. King near the end of his life: "Where do we go from here?" in achieving and sustaining racial diversity in public education.

-jl

Rand: Is Case Theory Value Neutral in Public Benefits Cases?

Spencer Rand (Temple) has published Creating My Client's Image: Is Case Theory Value Neutral in Public Benefits Cases?, Washington University Journal of Law and Policy, Vol. 28, 2008. Here is the abstract:

Effective case theory demands that an attorney consider with the client the way that pursuing the theory comports with the client's self-image. This is particularly evident in public benefit cases as they are very value laden. Benefits are doled out using a two-tier system of social insurance and public assistance depending on whether we favor the reason that help is sought. People categorized as having personal traits leading to their need, like old age, blindness, and disability, benefit from our FICA social insurance system, getting higher benefits and having their welfare marketed as a pension with little stigma. People who are unemployed long term or just need help to support their families do not benefit from the FICA system, even if they have paid into it. They are confined to our public assistance system with fewer benefits and the stigma of welfare. Many people do not want to see themselves or be seen as getting welfare. Case theories that push people to into the social insurance or public assistance system fail when they do not consider this factor.

This article uses the public benefits case to suggest a teaching a method for creating effective case theories that recognizes the need to determine if self-image is at issue for the client. Students study master narratives developed around legal issues. The master narrative surrounding public benefits is gone into in some detail. Students also study community narratives or alternative narratives that could influence personal narratives in the stories and decision making of their clients. After doing so, students are to listen for these narratives and personal narratives of their clients to develop effective case theories for their cases that comport with their client's self-image.

-jl

National Taxpayer Advocate Releases 2008 Report to Congress

From the IRS Newsroom:

National Taxpayer Advocate Urges Tax Simplification and Compassionate Treatment of Taxpayers Hit by Recession
 
WASHINGTON — National Taxpayer Advocate Nina E. Olson today released her annual report, urging Congress to greatly simplify the tax code and recommending measures to reduce the burden on taxpayers who are struggling to pay their tax bills.

The report takes note of the serious financial difficulties facing many Americans in light of the ongoing economic downturn. “It is imperative for the IRS to consider the circumstances of taxpayers facing economic hardship before initiating enforcement actions,” Olson wrote.

When the IRS contemplates taking an enforced collection action such as a levy, a lien or an asset seizure, both the tax code and IRS procedures require that IRS personnel consider whether the collection action will impose an economic hardship on the taxpayer. Despite these requirements, “current IRS guidance provides little direction to help IRS employees identify taxpayers who are experiencing economic hardship and prevent undue economic burden,” Olson wrote.

Call for Tax Simplification

The report designates the complexity of the tax code as the most serious problem facing taxpayers. According to data compiled by Olson’s office, U.S. taxpayers and businesses spend about 7.6 billion hours a year complying with tax-filing requirements. “If tax compliance were an industry, it would be one of the largest in the United States,” the report says. “To consume 7.6 billion hours, the ‘tax industry’ requires the equivalent of 3.8 million full-time workers.”

The report estimates that U.S. taxpayers spend $193 billion a year complying with income tax requirements, an amount that equals 14 percent of the total amount of income taxes collected. One count shows the number of words in the tax code has reached 3.7 million, and over the past eight years, changes to the tax code have been made at a rate of more than one a day – including more than 500 changes in 2008 alone. Individual taxpayers now find the tax rules so overwhelming that more than 80 percent pay transaction fees to help them file their returns – about 60 percent pay a preparer to do the job and another 22 percent purchase tax software

Two examples of tax law complexity:

The Alternative Minimum Tax (AMT) effectively requires taxpayers to compute their taxes twice — once under the regular rules and again under the AMT regime — and then to pay the higher of the two amounts. Absent repeal or continuing AMT patches, the AMT will affect 33 million taxpayers in 2010. Although the AMT was originally conceived to prevent wealthy taxpayers from escaping tax liability through the use of tax-avoidance transactions, 77 percent of the additional income subject to tax under the AMT today is attributable to the disallowance of deductions otherwise allowed for state and local taxes and personal and dependency exemptions. “Few people think of having children or living in a high-tax state as a tax-avoidance maneuver, but under the unique logic of the AMT, that is essentially how those actions are treated,” the report notes.

The tax code provides tax breaks to encourage taxpayers to save for education and retirement. However, the number of such tax incentives has grown to at least 27 and the eligibility requirements, definitions of common terms, income-level thresholds, phase-out ranges and inflation adjustments vary among the provisions. This complexity undermines the intent of the incentives, as taxpayers can only respond to incentives if they know they exist and understand them.

Olson recommends that Congress substantially simplify the tax code. The report includes a series of recommendations, including recommendations to repeal the Alternative Minimum Tax; streamline education and retirement savings tax incentives; simplify the family status provisions of the tax code; simplify the rules under which workers are classified as employees or independent contractors; reduce sunset and phase-out provisions and revise the overall penalty structure. More broadly, Olson recommends six core principles on which fundamental tax reform should be based. (For details, see Most Serious Problem: The Complexity of the Tax Code and corresponding items in the Legislative Recommendations section of the report.)

The full news release is available here, a full copy of the report is here and the Executive Summary is here.  -jl

Conversations on 'Community Lawyering': The Newest (Oldest) Wave in Clinical Legal Education

Karen Tokarz (Washington-St. Louis), Nancy Cook (Minnesota), Susan Brooks (Drexel), and Brenda Bratton Blom (Maryland) have published Conversations on 'Community Lawyering': The Newest (Oldest) Wave in Clinical Legal Education, Washington University Journal of Law and Policy, Vol. 28, 2008. Here is the abstract:

This Article explores the pedagogical and professional challenges and rewards of community lawyering and clinical legal education. The authors are clinical law faculty who self-identify as community lawyers and teachers of community lawyering clinics. They have gathered in recent years with a larger group of similarly engaged colleagues to discuss what is meant by community lawyering, how it is taught, and how it is practiced. This Article seeks to capture some of those conversations, crystallize some of the ideas that have arisen out of the discussions, and examine the implications of these ruminations for future directions in clinical legal education.

-jl

Alfieri: Against Practice

Anthony Victor Alfieri (Miami) has published Against Practice, Michigan Law Review, Vol. 107, April 2009. Here is the abstract:

This essay examines the theory/practice dichotomy in legal education through the prism of the Carnegie Foundation's Educating Lawyers: Preparation for the Profession of Law. Descriptively, it argues that the Foundation's investigation of law school curricular deficiencies in the areas of clinical-lawyer skills, professionalism, and public service overlooks the relevance of critical pedagogies in teaching students how to deal with difference-based identity and how to build cross-cultural community in diverse, multicultural practice settings. Prescriptively, it argues that the Foundation's remedial call for the curricular integration of clinical-lawyer practices similarly overlooks the utility of critical pedagogies in teaching students not only how to understand difference, but also how to represent difference-based clients and communities here and abroad. The essay is divided into two parts. Part I explores the Carnegie Foundation's assessment of law schools in preparing students through contemporary case-dialogue and in integrating alternative practice pedagogies. Part II analyzes the ramifications of the Foundation's report for alternative curricular frameworks, particularly critical pedagogies grounded in difference-based identity and community, here briefly sketched in a study of the West Coconut Grove Historic Black Church project at the University of Miami Law School's Community Economic Development and Design Clinic. The case study demonstrates both the difficulty and the necessity of developing theory/practice pedagogies effective in dealing with difference-based identity in the context of representing communities of color. -jl

Skinner: A Clinical Model for Bringing International Human Rights Home

Gwynne Skinner (Willamette) has published A Clinical Model for Bringing International Human Rights Home: Human Rights Reporting on Conditions of Immigrant Detention, Seattle Journal for Social Justice, 2009. Here is the abstract:

This article describes the model an international human rights clinic designed and implemented in preparing an international human rights report regarding the conditions immigrant detention at the Northwest Detention Center in Tacoma, Washington. This article describes the project's design, why the project was chosen, and how it was developed. It also measures the project's pedagogical outcomes against accepted legal clinical pedagogical principles. -jl

Binford: Reconstructing a Clinic

W. Warren H. Binford (Willamette) has posted Reconstructing a Clinic, Clinical Law Review, Forthcoming. Here is the abstract:

Over the last 40 years, clinical legal education has undergone considerable expansion. More clinics are being offered, more students are enrolling in clinical courses, and more clinical professors are receiving tenure than ever before. However, simultaneous with these successes, some schools continue to wrestle with underperforming clinical law programs. While much has been written about how to start a law school clinic, little has been written to advise law schools on how to turn around a clinic that is struggling. This article tells the story of one such clinic. It describes the financial commitment, facilities acquisitions, programmatic improvements, and personnel changes that were necessary to reconstruct one of the oldest law school clinics in the country. The lessons told remind readers that there are no "quick fixes" to reconstructing a clinical law program. However, with commitment, collaboration, and the support of the entire law school community, it can be done. -jl

Montana: Lessons from the Carnegie and Best Practices Reports

Patricia Grande Montana (St. John's) has published Lessons from the Carnegie and Best Practices Reports: A Look at the Street Law Program as a Model for Teaching Professional Skills, Journal of Practical and Clinical Law, Vol. 11, No. 2, 2009.  Here is the abstract:

There has been much discussion over the impact the Carnegie Report and Best Practices Report has had and will continue to have on legal education. This article offers a unique way that law schools can meet some of the challenges of the reports.

The reports focused, in part, on the academy's role in preparing students for practice. They concluded that law schools must devote more attention and resources to helping students develop the professional skills they will need in practice. The consensus was that the traditional case method of teaching is insufficient on its own to train students for practice. Thus, they recommended that law schools broaden the ways in which they teach their students to become lawyers by, for example, incorporating "settings and pedagogies different from those used in the teaching of legal analysis." (Carnegie Report at 14). They suggested that law schools can unite "formal knowledge" and "the experience of practice" by also offering non-traditional curricular offerings, such as clinics, externships, simulations, and other like opportunities. (Carnegie Report at 12).

The Street Law program, a course that allows students to teach a law-related education course to high school students in the community, uniquely incorporates many of the recommendations of the reports. Through their teaching, law students learn the practical applications of legal concepts and practice important lawyering skills. Using the Street Law program as an illustration, this article demonstrates how non-traditional course offerings can provide powerful professional development opportunities for students. Thus, the program serves as an excellent model for how law schools can integrate the teaching of knowledge, skills, and values into their curricula.

-jl

Call for Papers - Human Rights/Civil Rights and Global Resource Allocation

Florida A&M University Law Review invites article submissions for publication in the Special Edition Symposium Journal for Spring 2009.  The journal seeks articles that explore current legal issues in human rights and civil rights as they pertain to resource allocation around the world.  The Symposium theme focuses on legal issues that have adversely affected People of Color including policies on resource allocation that include but are not limited to: food, water, housing, air, energy, intellectual property, etc.  The journal is a student-edited periodical that celebrates excellence in scholarship and contributes to the development of the law. Articles may be submitted no later than January 9, 2009 via e-mail.

Authors may also mail their printed article and a disk in Microsoft Word format to:  Florida A&M University, College of Law, c/o Law Review, 201 Beggs Avenue, Orlando, Florida 32801.  Articles should have footnotes and conform to the most recent edition of the Bluebook.  Also, please attach a current resume or curriculum vitae with your contact information.  Every submission will receive prompt and serious consideration by law review staff.  Articles of 5 to 60 pages in length, single-spaced (approximately 35,000 words, including footnotes) are welcome.  The Executive Editor may be contacted with questions or concerns via email. -jl

Call for Papers - Colloquium on Commercial Litigation in the Electronic Age

On December 1, 2008 the New York State Judicial Institute will sponsor a Colloquium on the Future of Commercial Litigation: Developing a Cost-Efficient Judicial Process for the Electronic Age.  Chief Justice Judith Kaye will open the event and will be followed by distinguished members of the judiciary, the bar and the educational academy.

The Journal of Court Innovation will be publishing a symposium edition in cooperation with this program and is soliciting articles to be included in this edition.  Articles can concern the federal or any state justice system and there is no page length requirement.

The Journal of Court Innovation is a peer reviewed journal published by the New York State Judicial Institute, the Center for Court Innovation and Pace Law School.   The journal's mission is to promote innovation among the 50 state court systems and seeks to "bridge the worlds of theory and practice."  It is targeted to court administrators, judges, lawyers, scholars, non-profit executives, legislative and executive branch officials and other professionals interested on improving court systems and the administration of justice. Additional information about the journal is available online.

If you are interested in submitting a paper for consideration please contact Prof. Leslie Yalof Garfield.  Final drafts should be submitted by December 30, 2008 for consideration in this edition.

The Journal also welcome articles on any topics that consider court innovation for publication in future editions.  -jl

Primer on Clinical Legal Education: Second Installment (a.k.a. "The Mother Lode")

Since my first installment, Professor Vanessa Merton delivered a wonderfully complete answer to a prospective clinical law prof's query: "What Resources Exist for Folks Interested in Entering the Academy as a Clinical Law Professor?"  Professor Merton has graciously allowed me to post her response, which could very well make further posts on this subject superfluous:

Here's a compendium of ideas I've sent to folks over the years. If you’re serious about this academic thing, you need to gear up the way you’d gear up for a heavy trial.  Learn some of the history so you better understand what’s happening now: start with overall perspective from Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s.  Then focus on the history of clinical education, e.g., Margaret Martin Barry, Jon C. Dubin & Peter A. Joy, Clinical Education for This Millennium: The Third Wave, 7 Clinical L. Rev. 1 (2000).

Read through Best Practices for Legal Education – all of it – takes about four hours to eyeball the pages, get the basic concepts. (You can get it for free.) Or read it more carefully if you really want to impress (and learn).  If you’re determined to wow, do the same with the Carnegie Foundation’s Educating Lawyers and Greg Munro’s Outcomes Assessment for Law Schools. Read the MacCrate Report, a/k/a Legal Education and Professional Development: An Educational Continuum, published by the ABA Section of Legal Education and Admissions to the Bar. Poke around that website for a while. You could benefit from reading through the ABA’s Standards for Approval of Law Schools and three of the Section's recent Committee reports on Outcome Measures, Security of Position, and Transparency.

Look through the materials generated by the Institute for Law School Teaching at Gonzaga Law, which you should be able to find in any decent law school library.

Go to the CLEA website:  Just a wealth of ways to learn the vocabulary -- read the Mission Statement, dive into past CLEA Newsletters to get a sense of current and perennial issues, read through the CLEA Bibliography of Clinical Teaching and Scholarship, read the New Clinicians Handbook, etc.

You should be familiar with LexternWeb and the AALS Section on Clinical Legal Education, and perhaps Washburn Law's list of Best Law Teacher nominees.

Read some classics: Tony Amsterdam’s Clinical Legal Education - A 21st Century Experience, 34 J. Legal Educ. 612 (1984); Learning from Practice (2d ed.) by Ogilvy et al. and Chavkin’s Clinical Legal Education. If you can get your hands on them, read through The Lawyering Process: Materials for Clinical Instruction in Advocacy, by Bellow and Moulton, and Dvorkin, Himmelstein and Lesnick, Becoming a Lawyer: A Humanistic Perspective on Legal Education and Professionalism.

It'd be useful to skim through as many back issues of the Clinical Law Review as you can -- available at any law school library, and abstracts of most CLR articles are accessible from the CLEA website.  Then there's the Journal of Legal Education –- reading through several back issues (you did say this is what you want to do for a living, didn’t you?) can help you pick up on what's happening in legal academe in general. 

Go to the Society of American Law Teachers website and browse.  Attend a SALT Public Interest retreat where you will meet the coolest law professors. 

Natch, if you can find out who is actually interviewing you, it wouldn't hurt to peruse one or two of their latest articles and read their bios. 

Also could check out:

Breaking into the Academy: The  University of Michigan Journal of Race and Law Guide to Programs for Aspiring Law Professors. The Guide was designed to help law students and lawyers break into legal academics.  It contains advice on negotiating the application process, addresses and phone numbers of helpful organizations and citations to articles about the demographics of the law teaching profession.  In addition, the Guide contains listings of Law Teaching Fellowship Programs, Graduate Law Degree Programs and Legal Methods Teaching Programs which might be of interest to those considering law teaching.  Additional resources are available in Eric Goldman's piece Careers in Law Teaching, as well as Douglas J. Whaley, Teaching Law: Advice for the New Professor, 43 Ohio St. L. J. 125 (1982).

A good way in may be through one of the numerous teaching fellowships now available.

Also you should be aware of, if not regularly following, blogs like:

Best Practices for Legal Education

clinicians with not enough to do, and

Clinical Law Prof Blog

Write a book or two, of course.  Failing that, find a book or two that really intrigues you or pisses you off and write a book review. You’ll quite possibly be able to get it published quickly.

Good luck!

Again, heartfelt thanks to Prof. Merton. -jl

Primer Series on Clinical Legal Education: First Installment

In assisting the re-launching of the Clinical Law Prof Blog, I thought it might be useful, particularly for newer clinicians, to highlight Clinical Legal Education scholarship and reports. When I started down the Clinical Legal Education path, I had the good fortune of doing so at the University of the District of Columbia – David A. Clarke School of Law (UDC-DCSL). Just starting out, I was surprised to learn that the ABA did not have uniform standards for clinical programs, so clinics across the country were not required to offer a set amount of credit hours per clinic, and each credit hour awarded was not related to a fixed amount of student hours worked each week.

As a newer clinician, I find Clinical Legal Education scholarship and reports are invaluable to my growth as a teacher and as a lawyer. When I was on the AALS market, I interviewed for doctrinal and clinical positions. I often found myself thinking it would be wonderful to have the opportunity to teach in both disciplines within the same institution. Colleagues who do so unsurprisingly state their clinical teaching informs and positively influences their doctrinal teaching, and vice versa. I have also been privy to doctrinal faculty singing the praises of teaching by declaring, “It’s so much better than the practice of law.” I sing the praises of teaching because Clinical Legal Education allows me to continue to practice law and to work in the public interest. At UDC-DCSL, I was in the classroom four hours each week, teaching in the tax clinic seminar where we examined tax law, and tax practice and procedure through case law, the Code, the IRS, and in turn discussed how tax policy affected our clients. It was a wonderful integration of theory and practice.

So, the first installment in this Primer Series is the lauded 2007 Carnegie Foundation for the Advancement of Teaching report, entitled Educating Lawyers: Preparation for the Profession of Law. A summary of the findings is available in PDF format and a copy of the report may be purchased for $40.

The report hones in on five key observations:

1. Law School Provides Rapid Socialization into the Standards of Legal Thinking
2. Law Schools Rely Heavily on One Way of Teaching to Accomplish the Socialization Process
3. The Case-Dialogue Method of Teaching Has Valuable Strengths but Also Unintended Consequences
4. Assessment of Student Learning Remains Underdeveloped
5. Legal Education Approaches Improvement Incrementally, Not Comprehensively.

The report also provides a list of recommendations in the section entitled “Toward a More Integrated Model: a Historic Opportunity to Advance Legal Education” The report recommends law schools should:

1. Offer an Integrated Curriculum
2. Join “Lawyering,” Professionalism and Legal Analysis from the Start
3. Make Better Use of the Second and Third Years of Law School
4. Support Faculty to Work Across the Curriculum
5. Design the Program so that Students—and Faculty—Weave Together Disparate Kinds of Knowledge and Skill
6. Recognize a Common Purpose
7. Work Together, Within and Across Institutions.

-jl

Penland: Identifying and Implementing Competencies for Transactional Lawyers

Lisa Penland (Drake) has published What a Transactional Lawyer Needs to Know: Identifying and Implementing Competencies for Transactional Lawyers, Journal of the Association of Legal Writing Directors, Vol. 5, 2008. Here is the abstract:

While many law schools are beginning to teach transactional skills to train transactional lawyers for the practice of law, a gap remains between the minimal transactional skills a young lawyer should have and those that the recent law school graduate actually possesses. The primary purpose of this article is to identify basic transactional competencies for transactional lawyers and provide resources and direction for obtaining those transactional competencies. The article will take a brief look at the history of formal transactional training in law school; identify basic transactional skills necessary to prepare a lawyer for transactional practice; and provide insight into attaining transactional competency.

Both the MacCrate Report and available statistics support the assertion that transactional practice is more than alive and well; it is equal and perhaps dominant to litigation practice. Additionally, even those litigation attorneys who proclaim they have never engaged in transactional practice have undoubtedly drafted the most basic of transactional documents - a settlement agreement. So, indeed, transactional competency is a must. However, while law schools are beginning to meet this real need, there is still a gap between what a transactional lawyer needs to know and what a law student learns in law school. -jl

Scholarship Spotlight: Clinical Legal Education and the Public Interest in Intellectual Property Law

Christine Haight Farley, Peter A. Jaszi, Victoria F. Phillips, Joshua Sarnoff and Ann Shalleck (American) have published Clinical Legal Education and the Public Interest in Intellectual Property Law, St. Louis University Law Journal, Vol. 52, 2008.  Here is the abstract:

Clinical legal education provides a powerful methodology for students to learn about the relationships among intellectual property law theories, policies and practices; to encounter the experiences of persons who seek protection or who feel the legal regimes of intellectual property impinging on their ability to engage in educational, creative, innovative and culturally significant work; and to develop as lawyers. We describe in this article our motivations for forming an intellectual property law clinic at the American University Washington College of Law, the goals that we seek to achieve, and the tripartite pedagogical structure that we adopted - (1) a seminar built around a year-long simulation that addresses multiple lawyering skills and legal practice settings, (2) a wide variety of live-client student representations performed under close faculty supervision, and (3) weekly case rounds discussions focusing on public interest issues experienced directly by the students in their representations. We provide an example of a particular student representation that illustrates some of the benefits of our clinical model for teaching students about the public interest and intellectual property law doctrines within the framework of teaching about lawyering. We conclude with our reflections on student experiences and the ability of our clinical program to teach intellectual property law and lawyering in concrete factual and policy contexts, helping students better understand the interaction of theory, doctrine and practice in shaping the meaning and consequences of intellectual property regimes. Students came to understand law and lawyering and to see ways to shape their lives as lawyers, through analyzing and evaluating their responses to the interests of their clients, their actions in meeting the demands of a case, their understanding of the relationships among doctrinal areas, and the connection of their activities to the public interest. -jl

McGinley: Reproducing Gender on Law School Faculties

Ann McGinley (UNLV) has posted Reproducing Gender on Law School Faculties on SSRN.  Here is the abstract:      

This article demonstrates that there is a gender divide on law school faculties. Women work in inferior sex-segregated jobs and teach a disproportionate percentage of female-identified courses; more than 80% of law school deans are men. Men teach the more prestigious male-identified courses. Women suffer from differential expectations from colleagues and students and often bear the brunt of their colleagues' bullying behaviors at work. Using masculinities studies and other social science research to identify gendered structures, practices, and behaviors that harm women law professors, this article provides a theoretical framework to explain why women in the legal academy do not enjoy status equal to that of their male colleagues. Many of these practices appear to be gender-neutral, but tacitly perpetuate stereotypes and segregation that is harmful to women. This article makes visible the gendered nature of these structures and practices and challenges the notion of natural difference or "choice" as a cause of the disparity between men and women law professors. It concludes that only by making these gendered practices visible will women attain equal status on law school faculties. -jl

Joy & Kuehn: The Evolution of ABA Standards for Clinical Faculty

Peter A. Joy (Washington-St. Louis) and Robert R. Kuehn (Alabama) have published The Evolution of ABA Standards for Clinical Faculty, Tennessee Law Review, Vol. 75, No. 2, 2008.  Here is the abstract:

The value of clinical legal education courses and the faculty teaching those courses has long been contested. A focal point for this opposition has been resistance to the American Bar Association (ABA) accreditation standard that requires law schools to establish long-term employment relationships with clinical faculty and provide them with a meaningful voice in law school governance. By integrating clinical faculty into law schools, the ABA aims to advance the value of clinical legal education and the professional skills and values it promotes. In the decades since the ABA created the first clinical faculty standard, clinical legal education in the United States has developed as pedagogy and the number of clinical faculty has greatly increased. Despite these trends, a recent decision by the ABA Accreditation Committee approving short-term contracts and the denial of meaningful participation in faculty governance for clinical faculty demonstrates that the debate over the appropriate status continues. In this debate, there is often little or no mention of the history of the accreditation standard in question, perhaps because no historical account of its evolution exists. In this article, the authors fill that gap in the literature by tracing the evolution of the ABA standard concerning clinical faculty status.

The article begins with a discussion of the role of the ABA in legal education and a brief history of the development of clinical legal education. It then discusses the events leading up to the initial adoption in 1984 of a standard addressing clinical faculty and to the strengthening of the standard in 1996. The authors conclude by addressing changes to the standard in 2005 and how those changes have revived the debate over the status of clinical faculty. By surfacing the historical debates and the evolution of the standard for clinical faculty, the article provides the basis for reasoned, informed decisions by the ABA and the legal academy concerning the value of clinical legal education and the role of clinical faculty in law schools. -jl

Scholarship Spotlight: Law Clinics and Collective Mobilization

Sameer Ashar (CUNY) has published Law Clinics and Collective Mobilization, Clinical Law Review, Vol. 14, pp. 355-414, 2008.  Here is the abstract:

Poor people are not served well by the kinds of advocacy currently taught and reinforced in most law clinics. The canonical approaches to clinical legal education, which focus nearly exclusively on individual client empowerment, the transfer of a limited number of professional skills, and lawyer-led impact litigation and law reform, are not sufficient to sustain effective public interest practice in the current political moment. These approaches rely on a practice narrative that does not accurately portray the conditions poor people face or the resistance strategies that activist, organized groups deploy. At the margins of the field, a growing number of law school clinics and innovative legal advocacy organizations have played a key role in developing a new public interest practice. These lawyers and law students support and stimulate radical democratic resistance to market forces by developing litigation, legislative, and community education methods aimed at advancing collective mobilization. This article offers a typology of clinical approaches, a critique of the canon, and a description of the features of an emerging alternative clinical model that promises to reconfigure public interest law. -jl

Latest Edition of CLEA Newsletter Now Available

The September 2008 issue of the CLEA Newsletter is now available by going to the CLEA website http://www.cleaweb.org and clicking on the link for CLEA Newsletters. - jl (Hat Tip: Larry Spain)

Featured Scholarship: The New Rehabilitation

Dan Filler has co-authored a new article, The New Rehabilitation, that will appear in Volume 91 of the Iowa Law Review.  Filler's scholarship focuses on the social production of law.  In this article he challenges the common notion that juvenile courts have lost their rehabilitative focus.  Filler and his co-author, Austin Smith, describe how judges, lawyers, and court personnel created rehabilitative "specialty courts" that have "transformed American juvenile justice policy from the ground up." 

You can check out the abstract below or download the article from SSRN. 

    

According to the standard account offered by most progressive observers of the juvenile courts, the goal of rehabilitation has virtually disappeared. While America's juvenile courts were explicitly designed to treat and rehabilitate children, these critics argue that these goals have been abandoned for a more punitive agenda. Most observers blame the demise of the rehabilitative ideal on the criminal procedural revolution of the Warren Court. In this narrative, the Court's well-intentioned decision to provide children constitutional safeguards unwittingly undermined the unique flexibility of the juvenile courts. Thus, the downfall of progressive juvenile justice policy provides yet another example of the conservative political backlash to 1960's liberalism.

The problem with this accepted history is that it is seriously incomplete. Rehabilitation remains vibrant in many juvenile courts throughout the country. This article exposes an important development in how America addresses juvenile crime: specialty courts. Drug courts, gun courts, mental health courts, and other tribunals all target offenders whose lives can be reclaimed through intensive intervention. Hundreds of such programs exist nationwide, including at least one in every state, transforming the experience of justice for tens of thousands of children. These courts are the product of local judges and other juvenile court regulars, rather than legislative edict.

Why are people ignoring this explosive rebirth of the rehabilitative ideal? It appears that scholars are looking in the wrong place to determine the nature of juvenile justice policy. The academic community has long assumed that these agendas are drawn up by legislatures, and implemented by local court officials. But as this paper explores, ordinary court functionaries - trial judges, lawyers, and other employees seeking to solve practical problems on the local level - have subverted the popular get-tough legislative agenda, and implemented their vision of sound juvenile punishment. We analyze these employees through the lens of political science literature about street level bureaucrat. We show that these individuals, motivated by a variety of things - ranging from personal policy preferences to self-interest - have actually transformed American juvenile justice policy from the ground up.

One Clinician's Thoughts About Human Rights and UN Reform

As mentioned above, Michael Kagan's has an opinion piece, The Missing Third Leg of UN Accountability in the Global Politician. Kagan argues that "the moment has come for human rights advocates to join the campaign for UN reform." In Kagan's view, what the UN lacks are "mechanisms of accountability that would be accessible to the people who depend on UN agencies the most." 

Kagan cites as a prime example the need to develop accountability mechanisms to address UN agency policies toward women refugees.  For example, says Kagan "the UN agency for Palestinian refugees in the Middle East (UNRWA), [has] since the 1950s forced women to receive assistance through either their father or their husband; they cannot be registered as Palestinian refugees in their own right, and cannot pass on the status to their children. This is a direct violation of major human rights conventions, but it continues nonetheless."

Michigan Clinic Prof. Co-Edits New Publication on Child Welfare Law

From a press release at the University of Michigan's website: "The University of Michigan and a national attorney organization have released a groundbreaking publication about legal services for abused and neglected children. The book, "Child Welfare Law and Practice," defines a new specialty in child welfare law, said Donald Duquette, a clinical law professor at the University of Michigan and the publication's co-editor."  Duquette is the director of the school's Child Advocacy Law Clinic.