Sunday, June 17, 2012
This article is by Professor Vicenç Feliú (Villanova) and Associate Library Director Helen Frazer (David A. Clark School of Law) and can be found at 61 J. Legal Educ. 540 (2012). It is also available here via SSRN. From the abstract:
The current movement for reform of legal education focuses on teaching both knowledge and practical skills in combination, as recommended in the 2007 Carnegie Report, Educating Lawyers. In light of technology that now makes masses of law and related information available online, unorganized and seemingly unmanageable, this article proposes that law schools draw on the professional skills of their law librarians to teach students advanced legal research and analysis by embedding them in law school clinics. It outlines a pedagogy for teaching legal research in clinics as a lawyering skill, complete with ethical responsibilities and professional standards, consonant with the recommendations of the Carnegie Report, Educating Lawyers, the 2009 Boulder Statement on Legal Research Education, and the 1992 ABA Taskforce on Law Schools and the Profession, Legal Education and Professional Development (the MacCrate Report). It examines how the relatively new trend of embedding librarians in practice settings, offering assistance at the point of need, could be effective in law schools. Finally, it advances a model for embedding law librarians in law school clinics based on the experiment conducted at the UDC David A. Clarke School of Law, begun by first embedding one librarian in the Juvenile and Special Education Law Clinic and then continued by adding on other clinics. This article has been accepted for publication in the Journal of Legal Education.
Courts are supposed to rely on facts that are on the record, facts that the litigants have had the opportunity to vet. However, a recent article documents numerous instances in which Supreme Court Justices have used Google to find other information that they then treat as correct. This practice should raise some eyebrows. The article by Professor Alli Orr Larsen is “Supreme Court Fact Finding.” Here is the abstract:
Supreme Court justices routinely answer factual questions about the world – such as whether violent video games have a harmful effect on child brain development or whether a partial birth abortion is ever medically necessary. The traditional view is that these findings are informed through the adversary system: by reviewing evidence on the record and briefs on appeal. Routinely, however, the justices also engage in what I call “in house” fact-finding. They independently look beyond the briefs and record to answer general questions of fact, and they rely on their discoveries as authorities. To be sure, judges have always done this, and the Federal Rules of Evidence contain no rule restricting it. But times have changed. The world has recently undergone a massive revolution in the way it receives and evaluates information. No longer do justices need to trek to the library to look up factual questions. Instead they can access virtually infinite amounts of factual information at the click of a mouse.
This article discusses how that change in technology has and will affect the Court’s fact-finding practice. It collects over 100 examples of factual authorities relied on in recent decisions of the U.S. Supreme Court that were found “in house” – i.e. that cannot be found in any of the party briefs, amici briefs, or the joint record. These are not insignificant rarities: almost 60% of the most important Court opinions in the last ten years rely on in house research at least once. The article then examines the potential dangers of in house fact finding in the digital age – specifically the possibility of mistake, the systematic introduction of bias, and notice/legitimacy concerns. It concludes that these concerns require an update to our approach to Supreme Court fact finding. It then offers two independent and contrasting solutions: new procedural rules that restrict reliance on factual authorities found in house, or alterations to the adversary method to allow for more public participation.
I rarely agree with Maureen Dowd, but her latest column on moral dystopia in our public institutions is one that everyone can agree with. She focuses on the infamous case of Jerry Sandusky, who is currently on trial for allegedly molesting several young boys over a period of more than 15 years at and around Penn State University. According to reports, many officials at Penn State, which included the head football coach and the university's president, allegedly knew of some of the incidents for many years, but they did little or nothing.
She writes, "Eight tortured young men offered searing testimony in Bellefonte, Pa., about being abused as children by Jerry Sandusky in the showers at Penn State, in the basement of his home and at hotels. But the most haunting image in the case is that of a little boy who was never found, who was never even sought by Penn State officials."
She continues, "NBC’s Michael Isikoff reported on a secret file discovered in Penn State’s internal investigation, led by Louis Freeh, the former F.B.I. chief. Graham Spanier, a former university president, and Gary Schultz, a former vice president, debated whether they had a legal obligation to report the 2001 shower incident, and in one e-mail, agreed it would be "humane" to Sandusky not to inform social service agencies." Similarly, she states, "How could so many fine citizens of this college town ignore the obvious and protect a predator instead of protecting children going through the ultimate trauma: getting raped by a local celebrity offering to be their dream father figure?"
She also mentions similar incidents in the Catholic Church: "That revoltingly echoes the testimony in the trial of Msgr. William Lynn in Philadelphia, where the late Cardinal Anthony Bevilacqua ordered the shredding of a list of 35 priests believed to be child molesters. Lynn testified that he followed Bevilacqua’s orders not to tell victims if others had accused the same priest of abuse, or to inform parishes of the true reason that perverted priests were removed and recirculated. When a seminarian told Lynn in 1992 that he was raped all through high school by the monstrous Rev. Stanley Gana, Lynn conceded he let it fall "through the cracks." He also admitted he "forgot" to tell the police investigating a preying priest that the diocese knew of at least eight more cases. Yet Lynn claimed he did his "best" for victims."
Based on these and similar incidents, Dowd asks, "But with formerly hallowed institutions and icons sinking into a moral dystopia all around us, has our sense of right and wrong grown more malleable?" She continues, "Inundated by instantaneous information and gossip, do we simply know more about the seamy side? Do greater opportunities and higher stakes cause more instances of unethical behavior? Have our materialism, narcissism and cynicism about the institutions knitting society — schools, sports, religion, politics, banking — dulled our sense of right and wrong?"
Dowd quotes James Davison Hunter, a professor of religion, culture, and social theory at the University of Virginia, "Most Americans continue to think of their lives in moral terms; they want to live good lives, [b]ut they are more uncertain about what the nature of the good is. We know more, and as a consequence, we no longer trust the authority of traditional institutions who used to be carriers of moral ideals."
He remarks, ""We used to experience morality as imperatives. The consequences of not doing the right thing were not only social, but deeply emotional and psychological. We couldn’t bear to live with ourselves. Now we experience morality more as a choice that we can always change as circumstances call for it. We tend to personalize our ideals. And what you end up with is a nation of ethical free agents. We’ve moved from a culture of character to a culture of personality. The etymology of the word character is that it’s deeply etched, not changeable in all sorts of circumstances. We don’t want to think of ourselves as transgressive or bad, but we tend to personalize our understanding of the good."
She also quotes Lawrence Lessig, who was abused when he was a member of the American Boy’s Choir, "You don’t want to be the outsider who betrays the institution; whistleblowers are always the weirdos. There are so many ways to rationalize doing the easy thing. And it’s really easy for us to overlook how our inaction to step up and do even the simplest thing leads to profoundly destructive consequences in our society."
Finally, she quotes, Newark Mayor, Cory Booker, who recently rescued a neighbor from a burning building: "He said his parents taught him to feel indebted to all the people who had sacrificed for his family. And he recoiled in law school at the idea that there was not always a legal obligation to help the vulnerable." He added, "We have to fight the dangerous streams in culture, the consumerism and narcissism and me-ism that erode the borders of our moral culture." "We can’t put shallow celebrity before core decency. We have to have a deeper faith in the human spirit. As they say, he who has the heart to help has the right to complain."
Does this moral dystopia apply to the law school institution? Many commentators think so. Smart Money has recently published an article on ten things law schools won’t tell you, including the lack of jobs, lawsuits by former students, shrinking salaries, raising tuition, high student loan debt by many graduates, average students footing the bill for the bright ones, fraudulent numbers, etc. (see below) Similarly, Brian Tamanaha has just published a book, "Failing Law Schools," which discusses the "law school crisis." Likewise, the New York Times, Wall Street Journal, and other periodicals have published articles on the problems with law schools, legal education, and law school debt. Finally, numerous scamblogs have sprung up, including one by a law professor.
I believe that our law schools have an especial duty to be ethical and moral because they have the institutional duty of turning out ethical and professional lawyers. Recently, a New York Supreme Court dismissed a lawsuit for fraud against New York Law School brought by some former law students, mainly on the ground that law students are sophisticated consumers. Satisfying the law is not enough for law schools. A major purpose of law schools is to create ethical and professional attorneys. How can law schools turn out ethical and professional lawyers when they are deceiving their students, as Smart Money and others have claimed? Is this a case of do as I say and not as I do?
I agree with Maureen Dowd that many of our institutions are moral dystopias. I am very saddened to say that many of our law schools are among these institutions.
More details later in the week.