Wednesday, April 5, 2017
I have spent most of my education and career in Christian universities. They, like all institutions, struggle with their identities in various ways, wrestling to understand themselves as parts of ancient traditions, within rapidly evolving worlds, seeking the ideals of liberal education while adhering to faith commitments and obligations.
This Inside Higher Ed piece from my friend and colleague, Prof. Michael Helfand, is wise and right. He writes from his experience as an Orthodox Jew at our university affiliated with the Churches of Christ, my home tradition. He discusses a commitment to religious diversity as a core commitment for a university with a faith mission, not as an exception to it. This is one of the things we get right, I think, at Pepperdine Law, and our Jewish, Sikh, Muslim, Catholic, Mormon, Church of Christ, Episcopal, Evangelical, Etc. law faculty is all the stronger because of it.
Next year, I will be one of the faculty advisors for our Interfaith Student Council, and I believe Michael's words are true:
The key to maintaining this balance is a university administration and faculty that does not simply expect faculty members of other faiths to work parallel to the university’s faith-based mission. Capitalizing on religious diversity within a faith-based university works best -- both from a student and from a faculty perspective -- when the university actively seeks to incorporate that religious diversity into the faith-based mission of the school. It gives students a more multifaceted educational experience and gives faculty an increased sense of institutional value -- and, in turn, increases buy-in to the institution’s mission.
Monday, April 3, 2017
A few weeks ago, I had a moment. I suppose you could call it a “teaching moment,” since it occurred in the classroom, but really, it felt more like a moment, moment. You know, the kind where the world seems right, even if just for a few minutes. When somehow it all falls into place with stunning alignment and grace and we are a taught a lesson; the kind that resonates deeply in the body, like ancient knowledge that you can’t quite name or fully grasp but you know it when you see it.
At 10:00 pm the night before the first ever REEL (Re-imagining Excellence through Empowering Leadership) Conference, I quickly agreed to jump in and teach a 45 minute workshop on restorative justice when one presenter cancelled. My audience would be teenage boys, who attend the Kingston YMCA alternative education program. Most of the boys live a very difficult reality; they come from garrison communities where violence and retribution are the norm. Looking back, I realize the arrogance and potential foolishness of my haphazard decision, but I’m glad I didn’t have that awareness at the time, as my second-guessing could have easily turned into a “no.” One lesson I will most certainly take with me from my time here in Jamaica is that sometimes I just need to get it done, loosen the choke hold of that perfectionist bent, settle on “some is better than none,” and handle it.
After the haze of the late-night, last minute decision wore off, I acknowledged how stunningly out of my depth I would be. My Americanness, including my comparative wealth, which allows me augmented “safety” and “control” over my environment was directly at odds with the boys’ lived experience. The story I played in my mind was one of doubt: am I going to be able to convey, and in such a short amount of time, an alternative to retribution, another potential way of being in the world, a chance for possible repair instead of reprisal and the creation of more harm. Is that even possible? Is it even my place to try?
Luckily, another story simultaneously played. I’ve attended enough Clinical Law Conferences to have developed a fairly sturdy (even if at times tentative) trust in the power of teaching techniques, and so I would rely on those. Tactile learning, a circle and intuition would be my guides. In the classroom, I was adamant that the chairs, which were in rows had to be in circle. This meant the 20 minute task of re-arranging them prior to the boys arrival, but put those chairs in a circle we did (it must have seemed silly to everyone -- even to myself to a degree -- but I just knew we needed to see each other). Once everyone walked into the room, I patiently but diligently stuck to the format. I made all of us, including the teachers, sit inside the circle and we removed all empty chairs. We started with my request “tell us your name, your favorite junk food (a universally important question) and what you want to be in the future.” Pulling this information was difficult, the boys did not have much confidence or practice in speaking this way. I had to ask several times for quiet, push through the snickering, re-direct, constantly re-affirm the importance of each person’s response and ask countless times for everyone to speak up. And though there were fleeting moments of wondering whether this was the best use of our time together, I felt a strong pull; the act of naming and staking a claim on the future felt important and so even though it was a little tenuous, the circle held.
Next, I had the boys pretend to be actors (victim, police, community members, judge, offender, lawyers, etc.) in both the traditional and the restorative justice systems, using physical space and proximity to illustrate the concepts. The method seemed effective and we had fun. On the grand scale, I moved the room from the immediate “I would shoot his family dead” response to a consideration of “maybe” when asked if anyone would be willing to listen to the offender’s story. I considered this a success, but I’m kind of a glutton; I wasn’t satisfied, I pretty much always want more and because it just didn’t quite feel like enough or like it was done, I scrapped the script and started talking from the heart. It was messy, but it provided the opening we needed.
First, I acknowledged my privilege and then we talked…about anger, about witnessing horrific events, about endless cycles of violence, and about how as a society we instruct people not to do harm often through the use of state sanctioned forms of harm, control and force. The teachers, feeling more confident in this space, joined in, and together we validated feelings and passed along information about the effects trauma can have on our lives. We did our best to try and affirm the worth and dignity of everyone in the room (the future firefighter, graphic designer, lawyer, the one who likes KFC, Lavonte, “Tony,” and the one I ran into at the bus station…) Looking around, I could tell the boys heard it, many even appreciated the sentiment, but there was still a disconnect, a gap that I was desperate to, but didn’t have the words or experience or time to close.
And then it happened, as it often does, at the last minute, when you’ve got nothing left…
One of the teachers, who had been participating and asking questions throughout the workshop (which if I’m being honest, unnerved me a bit because of our tight time frame and because I thought “this is a workshop for the boys, not the teachers”) raised her hand again just in time for the final comment. By her insightful questions, I could tell that she was working through something and so even though the questions took us a little of “my course,” I had done my best to provide space and answer them.
And so in those last minutes of our time together, Ms. Taylor closed us out and brought us home. And somehow, she did it, she managed to fuse it all together: my words, their words, my knowledge, and their lived experiences. She spoke in the way that only a Jamaican woman could, only in a way that someone who has worked for a long time to gain trust and garner respect could, and only in a way that a mother who intimately knows suffering could.
She opened up and told us her story. It was a deeply personal story, one that I’m not sure her colleagues even knew, filled with pain, loss, restitution and redemption; one of those stories where the universe delivers both the poisonous sting and the antidote simultaneously rolled into one bitter-sweet pill. She was restorative justice personified. And we were stunned and silent; the room reverent as the energy shifted and stilled. We heard and finally we understood the power of forgiveness and the healing that can bring. I have no doubt that her story has wedged itself into the hearts of those young men the way it flowed directly into mine. And as we go forward to maneuver the difficulties of this life, I know we will all hear her words echoing inside us, providing us with choices which we couldn’t see before, a wider spectrum of possibilities that now exist in all our worlds.
And so I learned once again about the real value of restorative justice and why I do this work, and I learned once again about myself. Ms. Taylor’s lesson was the re-enforcement of what so many have tried to teach me over and over again...trust the process, trust yourself, check your ego at the door along with those western, hierarchical methods of learning, get out of the way, and just be the bridge, let it simply be an honor to be the conduit that facilitates the real knowledge residing in all of us.
 The nature of poverty in the garrison constituencies in Jamaica, http://journals.sagepub.com/doi/pdf/10.1177/095624780501700207
Wednesday, February 1, 2017
Prof. Kendall Kerew of Georgia State has announced the launch of the new Lextern website.
Lextern is an invaluable resource for externship and other field placement programs.
Kendall describes the new project:
It is with great pleasure that we announce the launch of a new version of LexternWeb (https://www.lexternweb.org/). As many of you know, Professor Sandy Ogilvy of Catholic University Columbus School of Law created LexternWeb in 2009 for the benefit and use of faculty and administrators engaged in teaching and coordinating legal externship programs. With Professor Ogilvy's support and input, the AALS Clinical Section's Externship Committee has created this new version of LexternWeb to continue Professor Ogilvy's work to promote information sharing and collaboration among externship faculty nationwide.
Like its predecessor, the new LexternWeb is a one-stop shop for every kind of Externship Program resource. The site includes a variety of materials related to law school programs, externship teaching, site supervision, scholarship, and professional organizations. Moving forward, AALS Externship Committee Co-Chair Kendall Kerew will work in conjunction with the Committee and Professor Ogilvy to administer the LexternWeb site. To post your program-related materials, please email them to Kendall at email@example.com.
Special thanks to the many colleagues and friends who helped us bring the LexternWeb to you. In particular, we would like to again thank Sandy Ogilvy for his inspired work with LexternWeb over so many years and for being so supportive of this update.
Sunday, January 8, 2017
Everyone in our work encounters students who are in crisis about their callings, opportunities, and direction. Most of us are sympathetic because we have all passed through those years, bedraggled and anxious about what we should do and how we should get there. Some of us still are.
Students seek counsel and advice as they try to choose between their several options or as they despair at having too few. Many students (and professors and people) suffer profound questions about their lives and purpose as they finally achieve admission to law school with great dreams of how they imagine it to be, only to be utterly confused and depressed at the reality. Many students (and professors and people) are paralyzed by the fear of missing out, worried into stasis because choosing one path will necessarily eliminate others. They cannot square their reality with their expectations, and they are terrified of making an early step that will lead them into the wilderness instead of their home. In my experience, I meet many students who are people of faith, praying desperately and waiting to learn what God wills for their lives.
Today, I listened to a very wise episode of The Hidden Brain with Shankar Vedantam, applying design thinking to the problem of people feeling stuck in lives that do not reflect who they see themselves to be. I recommend it for teachers and students looking for a useful framework for thinking about work, vocation, purpose, and decision-making.
Many of his students come to him saying they don't know what to do with their lives. They want to find the "right" answer. He tells them, 'There is more than one you in there.'
"So the problem with the current approach that lots of people are taking," he says, "is it starts with the wrong question. And the wrong question is, how do I figure out that one, best solution to my life?"
Design thinking is about recognizing your constraints, realizing there isn't just one answer, and then trying something: "Building a prototype," getting information from it, and then trying something else.
This reflects some of the advice I often give students, hard won as the wisdom of my own failures and struggles.
It’s important to understand the difference between a problem and a circumstance, the “gravity problem” in the podcast, that can help us set more realistic expectations as a basis for our decisions.
Rather than slogging through anguish trying to decide what to do in their work, students should imagine what kind of life they want to live. Making decisions consistent with values and preferences can be more liberating than pining for the perfect job. This also addresses the fear of missing out, because many options might be consistent with values and preferences along an evolving path. As the podcast suggests, there are many different potential versions of our lives, so we experiment with prototypes to refine the best possible options in a moment within our circumstances.
The episode suggests design thinking, not as self-help or mystical psychology, but as a framework to guide decisions and reflection for students stuck at the end of education and the beginning of a career. This is a critical moment, but it is only one more step in a long journey.
Thursday, January 5, 2017
In a post at the Best Practices blog, Prof. Robert Kuehn examines empirical data on the performance of law schools in preparing students for practice. He finds and demonstrates that most law schools continue to fall short of preparing students for practice, even many years after the ABA and most law schools declared preparation for practice to be a principal goal of legal education.
More recent studies have not reflected any improvement in the role of legal education in preparing graduates for practice. The American Bar Foundation’s After the JD study tracks the careers of a sample of lawyers who passed the bar in 2000. It asked lawyers three and seven years of out of school if “law school prepared me well for my legal career.” On this fundamental objective of legal education, law schools failed miserably — 40% of lawyers after three years of practice and 50% after seven years said that law school did not adequately prepare them. Both groups overwhelmingly agreed that law school was too theoretical and unconcerned with real life practice. In another study of early-career lawyers, only 28% believed that law school prepared them to practice law.
Friday, November 11, 2016
I have the honor of running a mediation clinical program at Columbia Law School with Alexandra Carter. I should note that Alex is the Director of the Clinic and I am the Associate Director. I have to note that distinction to help you understand how much of an honor it is to run this clinic with her. Because, even though Alex is the boss, it never feels that way to me. She never treats me like she’s the boss. When she introduces me, she always says, “This is my colleague.” My ideas for curriculum, for projects, for partnerships, etc. all the way down to the minutia are considered with equal merit to her own—and, if I’m wrong about that, then she does such a great job of making it seem that way that the factual difference is meaningless.
That little preface above brings me to this: her ideas are better than mine. A clear example of this fact seems worth sharing, now more than ever. When our President Elect Designate was still just the Republican nominee a report hit the media about his various sexual assaults. These weren’t accusations and they weren’t second-hand accounts. These were descriptions of assaults that he, himself, admitted willingly to a reporter on a tour bus in 2005. He offered a defense of his comments: these remarks were made in private (or so he thought), and they were mere locker room talk amongst the boys.
I had plans to take a minute and address the comments in our class. Alex had a different idea, and, like I said, her ideas are better than mine.
I was supervising a case a team of our students were mediating on the Tuesday after the story broke. It was a difficult, emotionally charged mediation that drained the team of students and me. So, when I got a text from Alex saying that we were holding class in the Dodge Fitness Center on Columbia’s main campus I didn’t have the mental or emotional capacity left to think anything about it other than I needed to make a mental note not to go to our regular classroom. The mediation ran long which made the students and I late to class. When we arrived there the class sat, in a tiny, sweltering locker room in a circle, passing a talking piece, talking about “locker room talk.” Alex decided to depart from our regularly scheduled program to bring us an important message about law school education: we oughtn’t forget that the law affects people. Our leaders’ words and actions affect people.
Any professor reading this knows how precious classroom time is. Alex willingly gave away 3 hours of class time to find a way for our students to talk about the law, our leaders, and the people they affect. She also modeled responsible reaction for our students. She honored their emotional response to President Elect Designate Trump’s words and facile explanation, but didn’t allow them to live in the righteousness of outrage. She showed them that taking offense wasn’t enough--they also had to take action. She showed them how to reclaim the locker room space for a new and better kind of “locker room talk.”
Oh, and remember how I told you above that Alex treats my ideas with equal merit to her own? Well, having the class sit in a circle and pass a talking piece is a technique she learned from me. It’s a technique American Indian tribes have been using since time immemorial to prevent and address conflict. It’s a technique that I was able to show Alex because when I was a law student in her mediation clinic I undertook a project to design a curriculum to begin teaching tribal dispute resolution in law schools. It’s a project, a student project mind you, that she took so much interest in that it became a course of legal study at Columbia Law School. From there it spread to several law schools: New Mexico, Oklahoma, Yale, to name a few. It was my idea to create a curriculum to make tribal dispute resolution a course of legal study in law schools. It was Alex’s idea to actually implement the curriculum and actually launch a course—the first course of its kind in an ABA accredited law school. Like I said, her ideas are better than mine.
Linked here is an article the Wall Street Journal wrote on the locker room class Alex led (caveat: it's behind a pay wall). My only note is that it describes a Peacemaking Circle as a "mediation technique" and it is not. It’s a technique Indigenous People around the world--especially in America--have been using since before history began being recorded.
Thursday, October 27, 2016
In this annual season of program updates, I am happy to share news from Pepperdine about our continuing efforts to expand and improve the programs of clinical and experiential education. This has been a busy year of new projects and curricular reforms.
As I noted here, in 2014, Pepperdine became the first school in California to proactively adopt a version of the California State Bar’s TFARR proposals. Our current 3Ls will be the first class to graduate with a requirement of 15 units of experiential education and 50 hours of pro bono service. This year, we refined that requirement to accommodate student demand and to balance other important experiences in law school. Now, students must complete 15 units of experiential courses or their equivalent, and the equivalent may include limited legal work outside of credit bearing courses. Here are more details on our new experiential learning requirements.
The 50-hour pro bono requirement has driven exceptional student demand for clinics and practicum courses, in addition to co-curricular pro bono opportunities. We are constantly working to generate and promote pro bono opportunities for students. For example, with generous grant support, we have developed an excellent partnership with OneJustice to offer multiple Rural Justice Bus trips throughout the year to underserved areas of Southern California. These limited-scope clinics focus primarily on veterans services in Ventura and Santa Barbara counties. We have developed these trips largely for 1Ls, so they can have early live-client experience before they are eligible for clinics, externships and practicums. Some are meeting clients under supervision within weeks of beginning law school. Here are more details on the pro bono requirement.
In the wake of the ABA’s dramatic revisions to field placement standards at the beginning of this semester, we undertook a thorough examination of our externship program (timely as the ABA just completed a site visit last week). After provisional experiments this semester, and considering significant student demand, Pepperdine now permits paid externships in addition to our typical, unpaid placements in judicial, governmental, public interest, and corporate offices. In Los Angeles, this is especially advantageous for our students working in entertainment, media, and sports practices.
Our students may take up to 22 units of out-of-classroom credit during law school, which includes all field placement courses, and they may take up to 10 units of externship credit per term. These full-time externships are common for students working in federal circuit court their second year, and they are essential for our Washington, DC Externship Semester. Here are more details on the externship programs.
In 2016, we launched two new clinics. In the Restoration & Justice Clinic, students represent victims of domestic violence, sexual assault, and human trafficking in Los Angeles. Prof. Tanya Cooper has developed important partnerships with the Legal Aid Foundation of Los Angeles and CAST LA to advocate for clients of gender-based crimes, seeking remedies and orders to ensure liberty, safety and empowerment for our clients.
On the foundation of an IRS grant, we launched the Low Income Taxpayer Clinic in downtown Los Angeles. This clinic has a particular focus on ESL clients in downtown and East LA. In its first full semester, the clinic had a full wait list within days of opening registration. Under the exceptional direction of Supervising Attorney Isai Cortez, the LITC is thriving on Skid Row alongside the Legal Aid Clinic.
Now with six standard JD clinics and three clinics in the Straus Institute for Dispute Resolution, Pepperdine offers about 160 seats in clinical courses each year, accommodating about 80% of all law students by the time they graduate.
Here are more details on all of our clinics: Community Justice Clinic, Fair Employment & Housing Mediation Clinic, Investor Advocacy Clinic, Legal Aid Clinic, Low Income Taxpayer Clinic, Mediation Clinic, Ninth Circuit Appellate Advocacy Clinic, Restoration & Justice Clinic, and Special Education Advocacy Clinic.
New Practicum Courses:
To increase live-client courses, and to offer more specialized practice areas, we have developed several practicum courses in fruitful collaboration with excellent partners. Practicums give us a platform to innovate and experiment, especially when institutional resources are tight. These are exciting works in progress.
Practicums are field placement courses in collaboration with partners in focused practice areas, reserved for Pepperdine students who apply directly to the partner agencies. The partners provide supervision in practice, and law professors provide academic framing and guided reflection. Presently, we offer three active practicum courses with others in development.
The Employment Law Practicum is our newest practicum course. Students work with Neighborhood Legal Services of Los Angeles County in its Workers’ Rights Clinic. Their work involves individual representation, policy research, and program development in immigrant communities.
We also work with the great lawyers at NLSLA in the Veterans Law Practicum (Los Angeles). Students represent veterans in diverse controversies, applications, and appeals for benefits in LA area Veterans Administration offices through NLSLA's Veterans Initiative.
In the Veterans Law Practicum (Ventura), our largest and longest running practicum course, students work with the Ventura County Public Defender to represent clients in Veterans Treatment Court, a collaborative court with restorative justice, diversionary sentencing, and rehabilitative programs for veterans.
We have set an ambitious standard that every student will graduate with diverse, intensive practice experience with live-clients and committed experiences in public interest practice. This is a demanding expression of our mission and pedagogical priorities, and it creates perpetual challenges to improve existing programs and to expand into new forms, partnerships, and practice areas. We have all hands on deck, from our dedicated clinical faculty, to adjuncts and supervising attorneys, to doctrinal faculty who are taking on faculty advising, imagining new clinics, and integrating experiential components into their courses.
This is an exciting season for clinical and experiential education at Pepperdine. Like so many schools, we are pressed between rising demand for clinics, externships and experiential learning and intensifying pressures in enrollment and budgets. We have had a full year building these programs to better serve our students, clients, and communities.
Monday, August 1, 2016
This year, I am serving on my law school’s curriculum committee, outcomes assessment task force and our self-study committee for an upcoming ABA site visit. These posts involve many of the most pressing questions of the day in legal education, and they intersect often with clinical and experiential learning.
For these reasons, I was very happy and a bit intimidated to receive an invitation from the Journal of Legal Education to review Building on Best Practices: Transforming Legal Education in a Changing World, edited by Deborah Maranville. Lisa Radtke Bliss, Carolyn Wilkes Kass, and Antoinette Sedillo Lopez, and written by many others. I have the privilege of friendship and collaboration with many of these authors and editors, and they are doing innovative, wise work on the hardest issues of our enterprise. Their work and insight hit home.
Please read and use the book; it will make our law schools better. It will make us better teachers and scholars and will promote better outcomes for the students who trust us. It takes its place within the canon of legal education theory and practice, from McCrate to Carnegie to the original Best Practices. It is not the destination of our work, but it is a useful, important stop along the way.
Here is an excerpt from my review, available on SSRN here and at 65 J. Legal Educ. 988 (2016).
Building on Best Practices charts the path for institutional and curricular reform within the prevailing structure of outcomes assessment. Like the refined demands of new ABA accreditation standards, Building on Best Practices draws from the trend toward objective measurement of identifiable goals. Institutional assessment follows a constructive, progressive cycle: identifying outcomes and goals, developing means to measure progress toward those goals, measuring performance in light of the desired outcomes, evaluating results, and developing and implementing changes, before starting again.
Thus, rather than evaluating a school based on its inputs, like the metrics of an incoming class, the library budget, or faculty research assistance, a school should measure its success based on how well it achieves the goals it sets for itself. Building on Best Practices proposes this process as the means to strengthen and improve the enterprise of legal education. Each law school must reckon what it wants to be in a topsy-turvy environment, then mark out a course to achieve it well within its own contexts and markets. It is not enough for schools to add or remove programs, to build a space, or to invest in a class with higher entrance metrics. Instead, schools must be able to articulate why they should do those things, to have a clear purpose for making the moves they make, and to use good tools to determine whether they work.
Friday, July 8, 2016
In America, our founding principle is that all men are created equal, expressed within a legal document declaring independence from a sovereign who did not extend a voice to his subjects. Our pledge of allegiance binds us to a promise of liberty and justice for all. These are American ideals but so often are not American realities. America is and always has been a violent nation, and race and racism are deep in our spiritual, social, cultural, political and legal vernacular. In no season of our national history have we been at true peace, especially in matters of race and racism.
In fits and starts, we lurch in anguish and hope toward harmony and reconciliation. Inevitably, when we take a step toward inclusion and justice, the forces of exclusion lash out in death throes. The South didn’t secede until after the country elected an abolitionist. The Klan didn’t form until after emancipation. Bull Connor didn’t unleash the dogs until people started demonstrating for justice and dignity. In our present age, we witness the persistent violence of exclusion as voices rise to demand inclusion of the bodies, minds, and souls of people so tired of waiting in oppression.
This is also deeply American. “No taxation without representation!” was the rebels’ call for inclusion in the process of lawmaking and governance, and the demonstrators followed it up with war. When the sovereign refused to give his subjects a voice in making the laws that governed them, they rose up to toss off the sovereign. Then, tragically, the new republic founded for government of, by and for the people, systemically excluded vast members of the governed.
Those excluded people have taken patient centuries to call America to account for its aspirations, to illuminate the hypocrisy of exclusion in a republic founded for inclusion. Steeped in blood and struggle, they have brought America around to itself, little by little, kicking and screaming, mourning and grieving, insisting on inclusion, demanding dignity.
In lament and anguish, punch drunk, America stumbles toward its better angels, shaking off its ghosts, battling its demons, as we realize that inclusion is our only hope to keep the republic our ancestors won and handed down to us. Generous inclusion is national life. Reactionary exclusion is national suicide.
When people are excluded, when America denies their dignity by telling them to comply without complaining, to thank God for their liberties, while murdering them if they dare to demand a voice, then the whole edifice will crumble. Who among us Americans wouldn’t object, maybe violently, if we were excluded from the system of laws that governs us? Who among us Americans would not create our own communities of dignity, power and self-determination if we were excluded from a state that makes false promises? Who among us is ever satisfied being governed in the third-person?
As law teachers, we have the privilege to observe and the obligation to train. We observe the law in its promise, success and failings, and we train lawyers to represent the people and their government, to make and improve the law, to sit in judgment with the law.
In an age of violence, what can we do to stem tides of death, cultures of fear, and cycles of vengeance? We can teach like we know how high the stakes are. We can observe exclusion and train for inclusion. We can refuse to ratify laws and systems that deny voice to the aggrieved, and we can train up lawyers who are alert, vigilant and ready to make the law better.
Teaching civil rights is not academic abstraction; it is the lifeblood of a liberal, constitutional republic of limited government and individual liberty.
Teaching cultural competence is not political correctness; it is the essential tool to promote inclusion of the excluded, to build bridges instead of bunkers, to make the law responsive, not exclusive.
Teaching self-reflection is not coddling; it creates wisdom and awareness that will inoculate against blindness to the others outside our field of vision.
Teaching ethics is not for passing an examination; it is to prepare students for a profession that must be much, much more than utilitarian and mercenary.
Teaching alternative dispute resolution is not a trendy distraction from real lawyering; it equips peacemaking and creativity and dialog among opponents.
Teaching critical thinking and criticism is not partisan; it is essential to conscious, thorough understanding of our laws, their sources, their effects, their realities.
Requiring pro bono is not charity; it is the transmission of a virtuous legacy of public citizenship that is historically necessary to the profession, demonstrating to law students the power of lawyers to empower the excluded.
Morality and virtue are not electives. Justice is not secondary to power.
Inclusion and plurality are necessary to democracy and justice. These are not liberal luxuries. Diversity is not a vague objective of democracy but is an essential component of democracy. The rule of law is sustainable only when everyone governed by the law has a voice in the law. The rule of law is only operable and just when the law embraces all of the governed with equity.
In America, we are governed and government. We are subject and sovereign. We are citizen and state. When we neglect those roles, we invite violence. When we exclude any of our neighbors from law making, law enforcement, or the legal system, we dare the excluded to take care of their own social order, and that inevitably generates violence and oppression in the shadows of society.
Not all problems are legal problems. The law exists within an ecosystem with constant cycles among culture, society, politics, religion, and economics. But we can do our part as law teachers with an obligation to our nation and communities.
We can train up lawyers who understand their critical role in sustaining our society and the rule of law in a liberal, constitutional republic.
We can study the law to improve it and promote inclusion.
We can promote access to justice, not as charity, but as civic morality.
We can illuminate weaknesses and places of exclusion and prepare our students to confront them.
We can listen and learn from those who are excluded and follow their lead in struggles for dignified inclusion.
We are necessary to building a trustworthy system of law.
Our students become lawyers who become leaders, representatives, advocates and public citizens. We inherit an ancient project that will continue long after we are gone. The stakes are only as high as life and death and justice.
Let’s teach like it.
Friday, June 3, 2016
Judgment By Social Media and Tweeted "Expertise" - Three Cases From The Cincinnati Zoo, The Forests of Japan, and Amber Heard's Marriage
As lawyers we oftentimes have to suspend our personal judgment of our clients, their choices and their circumstances. As clinicians we regularly train and remind our students on this suspension. Not only does this suspension preserve rapport, but it also allows for better representation of the person, as we just have to take them for who they are, not who we think they should be. Best practices and professional rules also remind us of client-centered representation, directing that choices are the client's choices and not ours, and that's its not all about us. Professionally this suspension of judgment can be a struggle - as a lawyer you may know "what's right" or "what's best" but the client chooses otherwise. And we must accept that.
If only we as a society were charged with this suspension of judgment - but as anyone can tell from the news this week, people are quick to judge others, and their choices, and proffer various social media statements to tout their judgment and expertise. (Ironically we also have a process for declaring and establishing expertise in the legal field, via our rules of evidence, which Twitter appears not to follow). Anyone can judge or be an expert in social media - just take a look at this week's fodder:
1) The Death of Harambe: Let's face it. Everyone loses in this situation. If the zoo didn't kill the gorilla, the child might have died and folks would be standing outside the exhibit with candles and posters in memoriam of the boy. Instead the zoo kills the gorilla, and even though they saved a child, someone must be to blame - distracting iPhones, parents, zoo architecture - you name it. Mom apparently is an administrator at a preschool, leading many to now call for her resignation. Because the two go hand in hand.
2) Abandonment in Hokkaido: To leave or not to leave a seven year old boy on the side of a mountain road in deep bear country forest for throwing stones? That was the question. Parent's call? To leave. Is it neglect or within the boundaries of discipline? You decide. Everyone else is.
3) Let's all kick Amber Heard while she's down: Maybe, in a couple of weeks, we will forget doing so, just like her husband allegedly did. It's times like these that make those us of doing domestic violence work cringe. Who is Amber Heard? If you hadn't heard of her (no pun intended) you certainly have now. Heard is the much younger wife of actor Johnny Depp who filed for, and was granted, a restraining order against him. Various photos of her with injuries have emerged, injuries that were allegedly caused by Depp - but where does the public support lie? Mainly with Depp. Why? Because it's her fault, of course, that this happened. She "exacerbates Depp's 'jealousy issues'" as allegedly Depp is incredibly insecure about her. She's also just in it for the money apparently, there being no prenuptial agreement and their divorce filed in California (the laws in California entitling her to fifty percent of what he has made during the marriage). Lastly, her bringing these issues out publicly just confirms that their marriage, and her involvement in it, have just been "nonstop drama".
As lawyers we have standards for these sorts of judgments and admissible statements. We also have a saying, "innocent until proven guilty". Yet as social media shows us time and time again, judgement is swift, fleeting and generally contained within 140 characters. Perhaps we should remind ourselves that #glasshousesarefullofhotair.
Wednesday, June 1, 2016
"As you may know, when Building on Best Practices: Transforming Legal Education in a Changing World was published by LexisNexis, we had an agreement that it would be available for free as an e-book, on line, with printed copies for sale. However, Carolina Academic Press recently bought out Lexis Nexis’ print inventory, causing some confusion regarding availability. Negotiations are still underway. The book is currently available in hard copy for sale for $50 ($45 internet discount – to order, go to http://www.cap-press.com/books/isbn/9781630443207/Building-on-Best-Practices ) We expect that the ebook will remain available at no cost from Lexis Nexis through the end of 2016. In order to obtain a free copy, the instructions have changed. Please submit a request for a free copy of the eBook by sending your request to ReviewCopy@lexisnexis.com. After December 31, 2016 there will likely be a fee to obtain a copy of the e-book.
We hope you will strongly encourage your Deans, Academic Deans, Experiential Deans, and your school’s curriculum committee members to read the book. The book provides helpful guidance and answers on the most important topics in legal education, even the dreaded learning outcomes and assessment projects that are underway at every law school."
Lisa Radtke Bliss and Carrie Kass and the Best Practices Implementation Committee:
"Greetings from the Section's Technology Committee!!
We write to announce two new initiatives.
First, we are in the midst of creating a new webinar series that will focus on using technology in our teaching and our clinics. The webinar will begin in September and run through the academic year, with one webinar a month. Stay tuned for more details.
Second, we are petitioning the AALS to Establish New AALS Section: Leveraging Technology for the Academy and the Profession. We are seeking signatures of those in the academy who support the creation of this new section. If you are interested in joining the section as a founding member, please add your name to the list, available here. (AALS requires that we obtain at least 50 signatures from full time faculty members and/or professional staff from at least 25 different schools).
The new section would bring together academics and staff who share a common interest in the advancing scholarship and teaching about role that technology is playing and will continue to play in legal education and the practice of law. We believe that it is important that members of the legal academy become familiar with and take a lead in driving the changes being made and affordances provided by technological innovations in the delivery of legal services.
The new Section will work with this committee to advance understanding within the academy of these two topics:
Technology and the practice of law: The Leveraging Technology Section will provide space for legal academics to consider and shape how evolving technologies are impacting and could impact law and legal systems. It will encourage law professors to engage in cutting edge research and scholarship that can help to craft the new normal and create a space to share that scholarship with the broader community. The Section hopes to address how law school faculty can understand the rapid and profound technological change that could well remake law practice and how they can be at the forefront of framing a “new normal” for legal practice and lawyering. The section will also help law professors access materials that will assist them in preparing law students using emerging technologies in the practice of law.
Technology and legal education: The Section will (1) lead a conversation about whether educational technologies that have been developed and used successfully in legal education may be able to scale to other law school classes; (2) introduce law professors to new educational technologies being developed for use in other areas of education so as to inspire this group of educational leaders to be at the forefront of change as it relates to technology and the legal academy, and (3) introduce law professors to pedagogies used to expose students to emerging technologies that are being used in the practice of law.
If there are others on your faculty who may be interested in this initiative, please feel free to distribute this to them.
We look forward to working with you to advance this agenda.
Valena Beety (West Virginia)
Warren Binford (Willamette)
Michael Bloom (Michigan)
Alyson Carrel (Northwestern)
Jenny Brooke Condon (Seton Hall)
Ron Lazednik (Fordham)
Michele Pistone (Villanova) Chair
Jeff Ward (Duke)
Leah Wortham (Catholic)"
Tuesday, May 31, 2016
Over recent semesters, the Ventura County Public Defender’s Office and Pepperdine University School of Law have been developing the Veterans Law Practicum. In the Practicum, upper-level law students from Pepperdine work with the Public Defender to represent clients in Veterans Treatment Court. Vet Court is part of the Collaborative Court Program of the Ventura County Superior Court. Pepperdine law students work in a rich, immersive experience alongside expert attorneys to improve and expand restorative justice for veterans.
I have rarely seen a field placement as committed, organized and expert in the supervision of law students while ensuring that their work is effective and useful for clients.
Chief Deputy Rod Kodman, other attorneys at the Public Defender’s Office, and Pepperdine law students have prepared the attached guide for Public Defender Law Clerks in Veterans Court and Veterans Sentencing Programs. This is a detailed kit with standard operating procedures, forms and guidelines for students in the practicum. The Ventura Public Defender has been generous to share this material with defenders throughout California, and we are making it available nationally through several communities committed to veterans’ services.
From the Introduction:
This guide is designed to assist other jurisdictions in making optimum use of Public Defender law clerks as part of programs that give effect to veterans sentencing statutes, including Veterans Courts. The goal of such programs is to establish a secure pathway for veterans to restorative, alternative sentencing, which greatly increases access to justice for vulnerable veterans. The Ventura County Veterans Court is a collaborative effort, but other jurisdictions can implement the practices outlined here as part of a more adversarial process. Also, this guide refers throughout to the activities of “law clerks.” Other jurisdictions may wish to assign some of these roles to social workers, paralegals, sentencing mitigation specialists, or other professionals. In doing so, they should be careful to follow all applicable rules regarding the unauthorized practice of law.
The guide informs students’ work at arraignment, in the defenders’ office, at the Vet Court team meeting, before and in court, then in the delivery of legal or other benefits to clients.
We hope these materials can be helpful, and we welcome questions, suggestions and ideas to make them better.
Wednesday, May 25, 2016
Pepperdine Scotland is a company in our theater department, and they are producing an original play for debut at the Edinburgh Fringe Festival this summer. Irish playwright Lynda Radley is developing an intense, complex story of sexual assault on American college campuses, with production and direction from Alex Fthenakis and Cathy Thomas-Grant. I have had the singular opportunity to serve as a consultant for the play and to share time with the cast and crew.
Stepping out of our clinics and law schools to participate with other disciplines in other departments can yield invigorating results. Consulting on the play has made me think more deeply about narrative structure and storytelling. Thinking about this play and this story has reminded me that these issues and relationships always exceed the bounds of legal definitions and invoke cultures, structures, societies, and deep histories. Working with creative artists, writers, and students reminds me that we can always have more and different ways to do our work. To see a production take flight from scratch inspires me to create and gives me courage to take on new endeavors with faith that we can speak to the world.
The Interference will be a powerful, important work. I can't wait to see it next year at Pepperdine.
I have the honor of contributing this guest post to the company blog, and I'm very proud to play even a small part in this production.
I am grateful and proud to contribute some ideas for The Interference this year. Lynda Radley, Alex Fthenakis, Cathy Thomas-Grant, and the Pepperdine crew and cast are undertaking a critical and hard project. The night in question will always matter: the facts, the tick-tock, the actions. But the night in question only really matters in the context of the lives and communities in question.The Interference is an ambitious attempt to explore the hyper-local relationship, on the night in question, between the young man who wants possession of the young woman’s body and the young woman who loses possession of her body to him. It is even more ambitious to explore the lives in question all around them, the life of the university, the life of fraternities, the life of friends, the life of the team and its fans, the life of the law, the life of the family.
Sunday, April 24, 2016
“Prepare to…No, I mean…. Ready about!” I shouted as I glanced up, around and behind me, then up again at the wind vane on the top of the mast. We were in a close reach, or close haul, or maybe a pinch.
“Ready!” My two crew mates grasped the jib sheets.
“Helms-a-lee!” I remembered that call properly and pulled the tiller left toward me, then corrected myself. We were turning to port, so I needed to push it to the right, I mean, to starboard, toward my instructor.
The mainsail swung across the cockpit in a short arc, the main sheet catching the boom. The jib luffed then fell as one crew mate eased off her sheet while the other hardened up as we passed through the wind.
I glanced up at the wind vane to stop the turn in a close reach, focused intently on the little arrow and its v-shaped indicators to tell me when I was out of irons and into my starboard tack. While my brain processed that little vane, it was not focused on the wind on my face or the kayaker or the sail boat or the piers, at least for a few seconds of forced decisions and information overload.
I was at the helm of a Catalina 22 in the middle of Marina Del Rey, thinking a lot about clinical pedagogy.
Our instructor sat across from me, kicked back against the stern pulpit, nonplussed, a salty-dog sailor, who was also a screenwriter with some work in IT (in LA, naturally), and with, as I would later learn, degrees from Yale and Harvard. He said, “Pick a landmark, keep it in the middle of the pulpit. Don’t steer too much. Your sail is luffing. Harden up. Okay, steer a little more than that. Keep on this line. Watch out for that boat. What tack are they on?”
“Um. Port? Port.”
“Right, so do we stand on or give way? “
“Um, we… Um, we, we stand on.”
“Right. Who’s next? Let’s rotate.”
So I shifted up to take a jib sheet while a class mate took the helm before we fell away to a beam reach, then to a broad reach, before we prepared to jibe, then actually jibed. She yelled, “Jibe ho!” which I had not gotten to do yet but which sounded cool. I relaxed my shoulders and saw everything I couldn’t notice while I was at the helm.
For my fortieth birthday, my wife got me sailing lessons, Basic Keelboat, the 101 course for the American Sailing Association at Bluewater Sailing. Since we had moved to our university overlooking the Santa Monica Bay three years ago, I had been pining for the sea, so she gave me a shot. For four days over two weekends, my crew of four and our instructor learned and practiced the basics. For a week, I had stress dreams about tying knots.
In the first week, I noticed that the terminology was my greatest distraction. Conceptually, I was getting it, but articulating all of these things quickly took the most mental focus. When we got underway, then started making way, after just an hour or so of basic orientation on shore, I was thrilled to be on the water. But when I was at the tiller, in a crowded marina, I had near-sighted tunnel vision on every task.
I had to focus on that wind vane constantly to reckon my point of sail, but I couldn’t do that while I was trying to remember to push the tiller in the opposite direction we needed to turn, while trying to remember whether to harden up or ease off the sail, to head up into the wind or to fall off, while all the time remembering the sailing words to use for all of those things. Our instructor made us narrate them every time, making us say what we were going to do before we did it, then to say it was we did it, then to do it all again. I sure hoped he or someone was paying attention to whatever we might hit, because I surely wasn’t.
He would have made a great clinical teacher, demanding but never worried we would collide with anything, even as he let us drift awfully close to disaster.
Prepare. Perform. Reflect. Prepare. Perform. Reflect.
We sailed in circles for the entire first day, through all the points of sail. Heading up from the broad reach to the beam reach to the close reach, coming about through the wind, into a close reach, falling off to a beam reach, to a broad reach, jibing away from the wind, then back again. Round and round and round, while all the other boats headed out to sea.
It reminded me of my first judicial hearing in real life, when a partner needed to tell me where to sit in the courtroom. How I was intently focused on the judge and my notes and how everything else dissolved into fuzzy notions of bailiffs, clerks, opponents, who were all there but who I couldn’t recognize while blood rushed through my ears. It reminded me of sitting in a law library in my firm, surrounded by books that I swore someone had once taught me to use when I was a 1L but that I now felt incapable of using like an expert.
It reminded me of a 3L who would ask me whether he has to cite the case he’s discussing in the memo. Yes, you always cite everything. Yes, cite it in a footnote. Yes, with the Bluebook. LRW was more than just sitting on the pier with a model. You have to take this thing out in the water and use it.
This is experiential learning.
The fourth and final day of the course, we sailed out into Santa Monica Bay with my crew, on a boat without a wind vane on the mast. We felt the wind. We could see it on the sails. We were in a port tack, and I needed to ease up that main sheet to keep our line on a broad reach. I knew how to sail that little Catalina 22 over six-foot swells and around that racing buoy and back again, because I had sailed in circles for days, chanting the turns and orders like a mantra. The final day, I didn’t have to dig deep to remember what to say. I just said it, and I knew what it meant because I could see where I wanted to go, could feel the wind on my face and could watch those sails react.
We could have talked all day about points of sail with a white board and a model, but we didn’t learn to sail on the ocean until we worked together under real sails in real wind on real water. We began confused, confounded and exposed in our novice ways, but by sailing we were becoming sailors.
The last day, I didn’t have tunnel vision. I saw all the other traffic on the water while our crew shared stories about our lives and work. We jibed all the way into the marina with the wind at our backs, calling out orders and turns while hardening up and easing off our sails, judging distance and angles, laughing and answering questions, giving and receiving advice. I was making plans to get my family out on the water as skipper of my own boat.
That reminded me of the student who was terrified to meet with a client alone for first time in a semester, who shrank from the weight of a client’s trust, who doesn’t trust herself to make a real-time decision, but who, just weeks later, is briefing her fourth client on the law with confidence in her own preparation. It reminded me of the student who is utterly stymied when he realizes his facts don’t come in a hypothetical and who can’t even identify the issue he’s supposed to spot, but who, ten weeks later, argues in court with a precise, prepared, creative presence of mind.
They were stumped by the jargon then stupefied by all of the information they needed to process as their instructor told them to sail in circles. After turning through the points of sail, over and over, reciting their lines, learning the wind, watching the sails, feeling the tiller, taking in more and more of the boat’s reaction in the water, the instructor finally said, “Come about and head to sea.” Then the horizon opens up, and the glittering water reflects a bright sky. The sails fill, and the boat cruises out of the harbor.
"To study the phenomena of law in society without books is to sail an uncharted sea, while to study the law without clients is not to go to sea at all." - Professor Charles Henderson Miller, founder of the University of Tennessee legal clinic in 1947.
Friday, March 4, 2016
I was walking out of our university cafeteria yesterday in my characteristically rushed state with an empty stomach, a couple of “To Go” boxes intended to last through midnight, and a 12:30 p.m. meeting with students just minutes away when a young man I did not recognize (an undergraduate student perhaps?) leaned across a poster and said something. My mind rapidly assessed my priorities as I noticed his highly corrective glasses, a discreet hearing aid, and a pronounced speech disability. The cascading moments came to a standstill, and I apologized. “Would you please promise to never use the ‘R-word’?” he repeated as he handed me a pen.
“Of course,” I said, as my hand tried to scribble a flourished signature across the top right-hand corner of the poster. The white space remained nameless. My pen was dry. As I borrowed another pen from a student sitting nearby, my eyes scanned the writing across the top of the poster: “Pledge to End the R-Word.” I wondered who this young man was, what his disability was, whether it mattered, and what would become of him and his pursuit of dignity and respect after the U.S. presidential election.
The Super Tuesday results were so definitive the night before that the leading candidates for both parties were announced well before bedtime. The night was restless. It was clear to all that the 2016 presidential election had become an interminable political version of the “The Jerry Springer Show,” but without a remote, volume control, mute function, or an on/off button.
Worse than the reality show nature of the election is the fact that support for the leading Republican candidate appears to increase with the frequency of comments and gestures and policies that are degrading to the disabled, women, minorities, and immigrants. Crowds applaud when he advocates for widespread discrimination against legally protected groups. They holler and cheer when he pours forth chest-thumping threats celebrating violence. And they laugh when he physically impersonates people, like the young man standing before me whose spine appears slightly bent, and his hands just a little curled. Yes, he is different, but not much. We all are—just a little bit different—but mostly the same.
The candidate also uses the “R-word.” Indeed, he uses a lot of words. “I know words. I know all the best words,” he has bragged with a bravado bred in fear and born from cowardice. “Is the R-word one of them?” I wonder.
And so I occasionally speak out, largely in my home or more often in my mind. Occasionally, there are hushed conversations, but mostly I am silently screaming. The first time I found myself silently screaming was the night of the Iowa caucuses. It was one of the busiest weeks of the semester, with client interviews running late into the evening. The clinic was humming and rushing with students and staff hurrying between our clients and our iPhones and computer screens watching the caucus results roll in.
As I walked into the student lab, I casually asked a student looking at the results on his computer screen, “Who are you voting for?” I immediately wanted to take my words back. Our teacher/student relationship gave me almost all of the power and privilege, and my job as an employee of a 501(c)(3) organization, especially while doing my job at my place of employment—8:00 p.m. or not—had brought me perilously close to an improper interaction.
I have been advising non-profits for nearly 20 years; teaching our students non-profit law in our Business Law Clinic for nearly ten. I knew the words nearly by heart: “[501(c)(3) organizations] may not participate in, or intervene in . . . any political campaign on behalf of (or in opposition to) any candidate for public office.” Part of the erasure I desired was that I did not want to say anything that would jeopardize my employment or the tax-exempt status of my university, but a larger part of my desire was that I did not want to abuse my relationship with a student—a relationship in which there is an inherent imbalance of power.
But it was the student’s response that fundamentally compelled my desire to unlive the moment. He proudly and cavalierly told me he was voting for the candidate who not only uses the R-word, but condones war crimes, torture, discrimination, and assault--someone who publicly observes that some women “look good on [their] knees.” And I want to scream. I knew that the candidate had a sizeable (and growing) following, but I assumed that they were comprised of “others”—not well educated, high performing students working on their doctorate degrees. Not my students.
As my mind raced with ideas about how I could justify “setting this student straight” due to the unique role of law professors in educating our students (and our larger communities) about Constitutional rights, humanitarian law, justice, human rights, and so much more, I said nothing.
I wonder whether in trying to protect my job, I will fail to do my job. Yet, my voice remains silent and my pen is dry.
Well, at least from 9-to-5, and occasionally, from 9-to-8.
Wednesday, February 17, 2016
West Academic has announced the publication of Learning from Practice: A Text for Experiential Legal Education, 3d ed. The editors are Leah Wortham of Catholic, Alexander Scherr of Georgia, Nancy Maurer or Albany, and Susan L. Brooks of Drexel.
From the publisher’s description:
The third edition of Learning From Practice covers topics relevant to law students working in real practice settings, including externships, in-house clinics, and other experiential courses. Intended for use in course seminars and tutorials, each chapter helps students succeed in their work, reflect on their development, and plan for their lives as lawyers. The book starts with topics common to all real world experience: planning to meet goals, working under supervision, observing carefully, communicating effectively, understanding bias and cultural difference, and reflection. The book offers detailed coverage of ethical issues in experiential coursework including a new chapter on professionalism. A group of chapters address key lawyering abilities such as good judgment, client relationships, collaboration, writing for practice, and making presentations. This edition expands coverage of important practice areas including judicial, criminal justice, public interest, public service, and transactional practices. The closing chapters turn to the future and focus on developing professional identity, maintaining well-being, finding a job and career, and the future of the profession. Throughout, the book encourages students toward self-direction, reflection, dialogue and collaboration, critical assessment of law practice, and well-being and career satisfaction.
In true collaborative, clinical style, there are thirty-four authors, including three contributors to this blog, Inga Laurent, Alex Scherr, and me. The first edition of this book was very important and useful to me when I was a rookie teacher, and it’s an honor to contribute to this latest, innovative edition.
Wednesday, February 3, 2016
As clinicians we know that our students do amazing work. A lot of what we associate as clinical work falls into the client-case-court realm, but clinicians like Prof. Fran Quigley at Indiana University Robert H. McKinney's Health and Human Rights Clinic have expanded that work into the larger forum of policy advocacy, and with some amazing results.
Starting in Fall 2015, Prof. Quigley's students identified legal barriers faced by their clients, researched those issues, and then took it a step further by creating comprehensive manuals that, according to Prof. Quigley "...outline the scope of Indiana’s problem [regarding drivers license suspension fees], explain how it relates to the national landscape, and make thoughtful recommendations for how lawmakers can solve it."
Prof. Quigley's work is another inspiring reminder that we have many options as clinicians to engage our students in multiple types of advocacy, making our impact even greater for our communities as a whole. To read more about this process and access the students' report, click on the link below.
Thursday, January 28, 2016
With thanks to my colleague and co-blogger, Prof. Tanya Cooper, and her team who edit the CLEA Newsletter, I am cross-posting my article on California's TFARR proposals from the Winter 2015-2016 issue. This is a variation on a theme I've addressed previously on this blog.
In November 2014, the State Bar of California’s Task Force on Admissions Regulatory Reform (“TFARR”) completed twenty-eight months of work considering new standards for admission to the bar. TFARR followed dramatic new standards for admission to the New York bar that require pro bono and increased experiential learning requirements in law school. (New York announced its final, amended rules in December 2015, available through links here.)
TFARR’s policy is to protect the public and to promote the profession by ensuring law students are better prepared to be ethical professionals when they enter practice. TFARR’s proposals do not bind law schools directly. Rather, they would impose requirements for admission to the California bar that would implicate every law student’s experiences and curricular choices in law school. In early 2015, the Bar’s Board of Trustees adopted the report and proposed new rules. They are not effective yet but await approval and enactment from the California Supreme Court.
Complete information and the text of the proposed rules are available at the TFARR pages on the Bar’s site here.
TFARR’s proposed rules include two important enhancements to experiential learning that will affect all law schools in California and any law student in the country who seeks admission to the California bar. First, the proposed standards would require students to complete fifteen academic units of experiential course work. This “practice-based experiential competency training” would include clinics and externships. It would also include typical simulation and “professional skills” courses (now known as “experiential” under recent ABA revisions) as designated by the law schools. TFARR also permits law schools to designate an experiential component within a standard doctrinal course to count toward this training. First year legal research and writing courses will not count toward the fifteen units. (TFARR’s requirement exceeds the new ABA standard that requires students to complete six units of experiential course work, and the ABA rules do not permit schools to carve out a portion of otherwise doctrinal classes as experiential.)
The proposed rules provide for an alternative path to fulfill a portion of the competency training through “apprenticeships” outside of law school curriculum. An apprenticeship is supervised legal work, with or without pay, like traditional judicial or law firm clerkships or summer associate jobs, which meets expressed pedagogical standards. A student could earn up to six units toward the required competency training through an apprenticeship. Every fifty hours working in a qualifying apprenticeship can count as a unit toward the fifteen required for bar purposes, although these would not be academic credits toward law school graduation.
Second, the TFARR admission rules would require applicants to provide fifty hours of supervised pro bono legal services. The new rules aim for increased access to justice, but the principle policy is to provide experience in practice that inculcates virtues and values of public citizenship and ethical lawyering. The TFARR definition for pro bono is very similar to Rule 6.1 of the ABA Model Rules of Professional Conduct. From the proposed requirements:
“Pro bono” means providing or enabling direct delivery of supervised legal services without expectation of compensation from the client other than reimbursement of expenses to
(1) persons of limited means . . . ;
(2) charitable, religious, civic, community, governmental and educational organizations in matters that are designed primarily to address the needs of persons of limited means; or
(3) individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights, or charitable, religious, civic, community, governmental and educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization’s economic resources or would be otherwise inappropriate.
Qualifying pro bono experiences can be in law school clinics, field placements in these categories, or other volunteer or internship opportunities with lawyers in these categories. Some questions remain about whether placements with prosecutors or courts would qualify, but the general consensus is that these placements do not qualify because they do not fit the definitions.
Under the proposals, students could earn “dual credit” toward both requirements in law school clinics and qualifying field placements. This provision creates great incentives for students to enroll in experiential courses that satisfy the pro bono requirement simultaneously. This, in turn, creates incentives for law schools to increase capacity in diverse clinical and externship courses.
The proposals create new challenges and opportunities for law schools and collaborating public interest lawyers. Very often, law students earn externship credit with public interest legal services providers, and the new rules may create dramatic new demand for these placements where students can earn dual credit. The rules could increase talent and capacity available for public interest lawyers, but it could also impose new burdens on training and resources to supervise law students who work for a relatively short time. At once, TFARR will require increased collaboration among law schools and legal services providers while deepening the need for more capacity within law schools to provide these experiences.
Some law school administrators, most notably not from California, have leveled reactionary criticism that TFARR rules intrude on law schools’ priorities and pedagogy. A few deans have argued that these new rules would limit law student options and squelch innovation. This criticism runs counter to the experiences at law schools that are preparing for the new standards instead of opposing them. TFARR does not stifle innovative teaching; TFARR promotes it.
Pepperdine University School of Law is the first California law school to adopt the TFARR standards as its own graduation requirements. Beginning with the Class of 2017, students must complete fifty hours of pro bono service and fifteen units of experiential courses. This has spurred efforts to use existing resources and to experiment with new course forms to build internal capacity so that students have sufficient opportunities to complete the requirements across diverse practice areas. In addition to existing clinics, externships, and experiential courses in alternative dispute resolution, Pepperdine has developed new clinics devoted to corporate and policy practice for nonprofits, multidisciplinary practice around gender-based crimes, and tax practice for indigent clients. The law school is experimenting with practicum courses focused on federal criminal practice and on diversionary sentencing and civil legal services for veterans. It is launching new practice-based initiatives for entrepreneurship and tech start-ups. Doctrinal professors are designing practice-based components in substantive courses like torts, ethics, intellectual property, entertainment, and privacy law. Faculty, students and staff are generating pro bono opportunities with collaborators in Los Angeles, rural Southern California, Washington D.C., and abroad in Europe, Asia and Africa.
TFARR reforms would formalize policies that most law schools already tout as aspirational virtues. The new rules would promote professional formation and client-readiness. They are consistent with moves toward formative assessment. In the marketplace of legal education and law practice, the bench and bar have been pushing applied, apprenticeship education back onto law schools for a generation. Law schools have responded in varying degrees of cheerful creativity or reactionary opposition, but with TFARR, and the New York rules before it, the bar has gotten serious as law schools have slowed their responses in the present enrollment and economic crises. These moves are the market signaling to law schools that they must do a better job teaching students how to be ethical, useful professionals, for the sake of justice, the rule of law, the public, and the profession itself.
Tuesday, December 15, 2015
With a memo to deans and other interested people on December 11, the ABA is seeking notice and comment to significant revisions of Standards 304 and 305. These would move the standards governing field placements from 305 to 304 which governs clinics and simulation courses.
The memo describes these proposed revision:
In moving field placements to Standard 304, requirements are added that are commensurate with those required for clinics and simulation courses—a means of guided reflection; opportunities for performance, feedback, and self-evaluation; and direct supervision. The new Standard also defines a field placement course as one that provides substantial lawyering experience and calls for the creation of a written understanding for the experience. It also imports components from Standard 305 such as the requirement for appropriate prerequisites or sufficient training, and the need for credit granted to be commensurate with the time and effort required. The revision removes any distinctions in the requirements for these programs based on credits offered, and mandates that records should be maintained for all placements. The revision also requires that law schools maintain sufficient control of the student experience at the field placement site to ensure that the requirements of the Standard are met.
Most significantly, "this proposal eliminates current Interpretation 305-2 (“A law school may not grant credit to a student for participation in a field placement program for which the student receives compensation.”) and does not include a similar prohibition in revised Standard 304."
Instructions for submitting comments are in the memo here: Notice and Comment - December 11 2015.