Wednesday, October 28, 2020
By Melissa Toback Levin, Lewis Steel Racial Justice Fellow, New York Law School
The Racial Justice Project (“RJP”) is a legal advocacy organization housed in New York Law School dedicated to protecting the constitutional and civil rights of people who have been denied such rights on the basis of race, and to increasing public awareness of racism and racial injustice in, among other areas, the areas of education, employment, political participation, economic inequality, and criminal justice. The RJP’s work includes impact litigation, appellate advocacy, legislative advocacy, training, and public education. Professor Penelope Andrews and Professor Alvin Bragg co-direct the RJP; they are aided by post-graduate fellows and students in the Project’s work.
Recently, the RJP has been keenly focused on efforts to promote police transparency and accountability as well as efforts to end the criminalization of poverty. The following provides an overview of two RJP matters:
Carr v. de Blasio
In late August 2019, the RJP filed a petition on behalf of Eric Garner’s mother, sister, and police accountability advocates against the Mayor of New York City, the New York City Police Department (“NYPD”) Police Commissioner, and other New York City officials. The petition was brought under Section 1109 of the New York City Charter, a “sunlight” provision which allows a judge to preside over a summary inquiry at which City employees and officers can be made to testify about violations or neglect of duties.
The respondents moved to dismiss the petition. On September 24, 2020, Justice Joan A. Madden granted the majority of the petition for a summary inquiry. The Court granted the petition for a summary inquiry with respect to alleged violations and neglect of duty in connection with: (1) the stop, arrest, and use of force against Mr. Garner; (2) the filing of false official documents concerning Mr. Garner's arrest; (3) the leaking of Mr. Garner's alleged arrest history and medical condition in the autopsy report; and (4) the alleged lack of medical care provided to Mr. Garner by police officers.
The respondents filed a notice of appeal and are seeking to invoke an automatic stay. If the inquiry proceeds, Mayor Bill de Blasio, former Police Commissioner O'Neill, among others with knowledge or information concerning the four areas of inquiry, will be required to testify and a transcript of their testimony will become a public record.
In addition to the lawsuit, the RJP submitted a Freedom of Information Law (“FOIL”) request to the NYPD and the Civilian Complaint Review Board (“CCRB”) relating to Mr. Garner’s arrest and death.
The lawsuit and FOIL request were part of a broader campaign to repeal New York State Civil Rights Law Section 50-a, which provided protections for police officer personnel records and had been interpreted in an overly broad manner. (The City had pointed to Section 50-a as a basis for the lack of key disclosures concerning Mr. Garner’s death.) In October 2019, New York Law School Professor Alvin Bragg testified at a hearing before the New York State Standing Committee on Codes on the repeal of Section 50-a on behalf of the RJP. On June 12, 2020, Governor Andrew Cuomo signed an act to repeal Section 50-a into law. As a result, the public has access to police disciplinary records as they are considered “presumptively open for public inspection and copying” under New York’s Freedom of Information Law (“FOIL”). One week after the law’s repeal, the City pledged to release all disciplinary records – this is now the subject of litigation brought by law enforcement unions, including the Police Benevolent Association.
Driving While Black and Latinx: Stops, Fines, Fees, and Unjust Debts
In February 2020, the RJP produced a report entitled “Driving While Black and Latinx: Stops, Fines, Fees, and Unjust Debts.” The report examines the disparate impact that a law which authorizes driver’s license suspensions for non-payments of traffic debt and nonappearances in traffic court has on communities of color. It notes that between January 2016 and April 2018 New York issued nearly 1.7 million driver’s license suspensions for traffic debt and highlights how the practice unduly targets and harms communities of color, forcing people to choose between, on one hand, stopping driving and not being able to get to work or, on the other hand, risking criminal charges by driving on a suspended license.
The report was utilized in a campaign to help secure the passage of the Driver’s License Suspension Reform Act, which passed both chambers and now awaits Governor Cuomo’s signature.
Monday, October 26, 2020
The Clinical Law Prof Blog is once again putting together a scholarship round-up so we can share and amplify the amazing work of our community. Please take a moment to complete the form below. Multiple submissions are welcome!
Sunday, September 20, 2020
The Clinical Law Review seeks applications for five vacancies on the Board of Editors. The Board urges you to think about whether you would be interested, and to think about others whom you would encourage to apply.
Members of the Board of Editors serve for a term of 6 years. The term of the new Board members will commence in January 2022. The primary role of the Board members is to edit articles for the Review. Because this is a peer-edited journal, the editing process is collaborative. Board members also serve as small group facilitators in the annual Clinical Law Review Workshop. There is at least one meeting per year of the Board, usually held at the annual Workshop.
Applicants should submit (1) a C.V. and (2) a statement explaining their interest in the position and highlighting relevant aspects of their experience. The Board seeks applications from people committed to the work of the Review and will prioritize applicants from underrepresented groups and applicants with diverse experiences in and approaches to clinical legal education. Applications must be received no later than January 31, 2021. Please e-mail them to CLRBoardApps2021@gmail.com.
The committee to select new Board members is always co-chaired by two current Board members whose term is expiring. We (Jeff Selbin & Jennifer Koh) will be serving this year as the co-chairs of the Selection Committee. The other members of the committee will be designated by the three organizations that sponsor the Clinical Law Review -- AALS, CLEA, and NYU -- each of which will designate two committee members.
We encourage you to contact us or other current or former Board members with any questions or for information about service on the Board. We and other Board members have found the experience to be very rewarding.
The other current members of the Board are: Muneer Ahmad, Sameer Ashar, Susan Bennett, Warren Binford, Marty Guggenheim, Margaret Johnson, Jen Lee, and Alex Scherr. The current members whose terms are ending, along with ours, are: Muneer, Susan, and Warren.
The current Editors-in-Chief are Phyllis Goldfarb, Randy Hertz, and Michael Pinard.
Those who previously served on the Board are: Jane Aiken, Amna Akbar; Tony Alfieri, Wendy Bach; Bev Balos, Margaret Martin Barry, Ben Barton, Juliet Brodie, Angela Burton, Stacy Caplow, Bob Dinerstein, Jon Dubin, Cecelia Espenoza, Keith Findley, Gay Gellhorn, Michele Gilman, Carolyn Grose, Peter Toll Hoffman, Jonathan Hyman, Peter Joy, Minna Kotkin, Deborah Maranville, Bridget McCormack, Binny Miller, Kim O’Leary, Ascanio Piomelli, Mae Quinn, Paul Reingold, Brenda Smith, Jim Stark, Paul Tremblay, Nina Tarr, Kim Thomas, Rod Uphoff, and Leah Wortham. The Emeritus Editors-in-Chief are Richard Boswell, Isabelle Gunning, and Kate Kruse. The late Steve Ellmann was a founding Editor-in-Chief of the Review.
We look forward to hearing from you. -- Jennifer Lee Koh & Jeff Selbin
Wednesday, September 9, 2020
Sunday, August 23, 2020
Ohio State Visiting Assistant Clinical Professor
The Moritz College of Law at The Ohio State University is hiring a Visiting Assistant Clinical Professor to launch a new Immigration Clinic in January 2021. OSU is located in Columbus, Ohio, a thriving and growing city, named as “One of the 52 Places to Go in 2019,” by the New York Times.
This opportunity will offer the VAP the chance to build a clinic from the ground up, with the support of Moritz’s other clinical programs faculty. The Visiting Assistant Clinical Professor will have responsibility to develop the immigration clinic, including conducting an assessment of immigration law needs in central Ohio, building ties to community partners, and creating opportunities for the law students to contribute to these activities and earn course credit through participation in the immigration clinic. The Visiting Assistant Clinical Professor will teach up to 8 students per semester in a 4-credit course offering, with responsibility for course design, classroom instruction, and student conferences. The Visiting Assistant Clinical Professor will have autonomy over both clinical pedagogy and selection and handling of all cases; serve as counsel of record in all cases; and be the primary supervisor of the clinic students.
This is a one-year position, with hopes that the College will secure additional funding to continue the Clinic in the future. The position will begin late this calendar year in preparation to teach next January. The post is here: https://www.jobsatosu.com/postings/102958. Applicants can submit materials to Michelle Brown at firstname.lastname@example.org. Applications will be reviewed beginning September 1, 2020.
Friday, August 21, 2020
University of South Carolina Law Hiring Tenured or Tenure-Track Faculty
The University of South Carolina School of Law seeks to hire at least two entry-level or lateral faculty members. We have needs in business law, commercial law, professional responsibility, sales, or a criminal practice clinic; however, outstanding candidates from other areas will be considered and are encouraged to apply. The University of South Carolina School of Law is deeply committed to an inclusive community. We are particularly interested in candidates who will enrich the diversity of our faculty and welcome applications from women, underrepresented minorities, persons with disabilities, LGBTQI+ individuals, and others whose backgrounds, experiences, and viewpoints would contribute to the diversity of our institution.
Candidates should have a juris doctorate or equivalent degree. Additionally, a successful applicant should have a record of excellence in academia or in practice, the potential to be an outstanding teacher, and demonstrable scholarly promise.
The University of South Carolina School of Law also invites applications for a non-tenure track faculty position of Graduate Program Director. The Graduate Program Director is responsible for all aspects of the School of Law’s non-J.D. graduate programs, including program oversight, marketing and recruitment, admissions, student affairs and career services. The Graduate Program Director’s initial responsibilities will focus upon implementation of a Master of Studies in Law (MSL) in Health Systems Law and a Health Care Compliance Certificate program. Candidates should have a juris doctorate or equivalent degree. Additionally, a successful applicant will have program development experience in instruction, admissions, student affairs, online course development, or related area in higher education; and experience supervising faculty and/or staff. Interested persons should apply by clicking the link for the position for which you are interested and complete the application by selecting “Apply for this Job” at the top of the page.
Assistant, Associate or Full Professor (Criminal Practice Clinic)—FAC00071PO20 http://uscjobs.sc.edu/postings/85944
Assistant, Associate or Full Professor (Business Law, Commercial Law, Sales)—FAC00072PO20 http://uscjobs.sc.edu/postings/85860
Assistant, Associate or Full Professor (Professional Responsibility, Other)—FAC00073PO20 http://uscjobs.sc.edu/postings/85947
Professor of Practice (Graduate Program Director)—FAC00074PO20 http://uscjobs.sc.edu/postings/85862
Although a formal application is required in order to be considered, candidates are welcome to contact the hiring committee with any questions regarding the application process at email@example.com.
The University of South Carolina does not discriminate in educational or employment opportunities on the basis of race, sex, gender, gender identity, transgender status, age, color, religion, national origin, disability, sexual orientation, genetics, protected veteran status, pregnancy, childbirth or related medical conditions
Thursday, August 20, 2020
Strategies for remote clinical supervision
A post by Emma Sokoloff-Rubin
Director of the San Francisco Affirmative Litigation Project and Lecturer in Law
Yale Law School
When Yale Law School, like schools across the country, sent students and faculty home virtually overnight, I worried about a lot of things. I worried about my students. I worried about people I loved getting sick, getting lonely, getting lost in so much change. I worried about ever getting any work done with my toddler underfoot. But I didn’t worry about the clinic I help run weathering the sudden change. I knew that the clinic would continue to work well with a remote supervision model, because we’ve been running it that way all along.
The San Francisco Affirmative Litigation Project—SFALP for short—is by design a cross-country partnership. The clinic and its students are based in New Haven, and we partner with the San Francisco City Attorney’s Office. Because of the distance, we have found creative ways for students to build relationships with their supervisors, produce strong work product, and receive meaningful feedback with phone, video, and email as the primary means of communication.
Of course, the sudden shift to online teaching this spring changed things for us, too. We missed our in-person clinic seminar and social gatherings. While students have always worked remotely with the attorneys who supervise their legal work, they’re used to having mentors on campus as well. It takes a lot of effort from instructors and students alike to create via Zoom the kind of magic that happens in a classroom, and our clinic seminar is no exception. Like everyone else, we’re trying to face the sadness we feel about what we don’t get to do while also being creative about what we can. But we’re lucky, in a way, because we’ve been working all along with some of the limitations many clinics are facing for the first time.
Some background on our clinic: SFALP pairs students with lawyers from the San Francisco City Attorney’s Office to conceive, develop, and litigate cutting-edge public interest cases. The students work directly with deputy city attorneys through every stage of the process, from dreaming up new lawsuits to filing complaints, from motions practice to appeals. The clinic’s assignments are wide-ranging and fast-paced, and the attorneys rely on the students to produce top-notch work. The program has become a model for other city attorneys’ offices and law schools, with many of SFALP’s cases making national news.
I spent two years in SFALP as a student, and now I help run the clinic alongside Dean Heather Gerken, who founded it fourteen years ago. So I bring the perspective of both student and teacher, and I’ve seen what works and what doesn’t from both sides. I also get to build on the hard work of the thirteen clinical fellows who came before me and developed many of the strategies I describe here.
The main thing I’ve learned is that clarity surrounding expectations for students and supervisors matters more than ever when you’re operating remotely. Clear policies and expectations free students and supervisors alike to focus their energy on the substance of the collaboration – the relationships and the cases. In short, a well-organized clinic allows us to focus on the work. It also means that when things aren’t working, when the phone conversations are awkward or the memo misses the mark, we have a clear sense of what we have been doing and can better pinpoint areas that need change.
Of course, what works for us won’t work for all clinics. Because we’re essentially working with in-house counsel—the San Francisco City Attorney’s Office, tasked with representing the city and county of San Francisco—we don’t need to navigate remote client interactions to the degree that many direct services clinics do. Likewise, we don’t face the unique responsibilities and tight deadlines that come with being an individual client’s only attorney. But like any clinic, and like many externship and internship programs, we aim to teach through practice and also produce meaningful work. Strong relationships between students and supervisors are at the heart of what makes that possible. Here are some of the structures and policies that have worked well for us when students and supervisors can’t be in the same room:
- Working group calls are sacred: Each semester, students are divided based on their interests into working groups, with each group focusing on one case or issue area. One group is always devoted to developing new case ideas. There are usually two to four students in a group, with two supervising deputy city attorneys. Most groups have an hour-long call every other week, and the group decides whether to use phone or video. Whenever possible, the calls are scheduled far in advance. This time is precious, and barring emergencies, students and attorneys are expected to attend each one. Attorneys make a real effort to get to know students during that time because it’s all they have.
- Clarify assignments in writing: After each call, students send a follow-up email within 24 hours summarizing their assignment to make sure everyone is on the same page. This allows supervisors to intervene early if the summary doesn’t reflect what they had in mind. Sometimes what the student heard is different from what the supervisor said, but just as often, students’ efforts to summarize their understanding of the assignment help supervisors clarify for themselves and for the students what they had in mind. The back-and-forth might clarify, for example, whether the supervisors envisioned a persuasive memo or a more neutral analysis of a potential claim; if they wanted a formal memo or a bullet-point list of key findings; if they’re interested in persuasive authority or just looking for binding precedent on a particular issue.
We also encourage students to call and email their supervisors with questions as they work, rather than waiting until the next working group call. It usually takes some prodding to get students to let go of concerns about bothering their supervisors and realize that the attorneys like hearing from them in between calls, and that asking questions allows the students to produce better work. We enlist returning students to emphasize that the supervisors really want to hear from students. In my experience, what usually works best is simply picking up the phone and calling a supervisor when a question arises. If that doesn’t work, the next step is to send an email and arrange a time to talk.
- Mentorship requires intention: We select supervisors who are invested in getting to know the students and mentor them, who are drawn to that and recognize it as part of what they are giving in exchange for having students collectively spend thousands of hours per semester helping to litigate and develop cases. Crucially, the supervising attorneys have the support of their supervisors, who recognize the time spent mentoring students as an essential part of the office’s work.
Until Covid hit, most students met their supervisors in person at least once over the course of their time in the clinic when we brought deputy city attorneys to campus to co-teach a class. (We ask new students to commit to two semesters in the clinic; some stay for as many as five.) We also asked the attorneys to hold one-on-one office hours on the day of their class, so as to deepen mentoring relationships with the students. We’re still figuring out how well the office hours system translates for remote guests.
We also do everything we can to communicate that mentoring between students is at the heart of the clinic’s work. At the start of the semester, we pair new clinic students with returning students for one-on-one coffee or Zoom conversations. When clinic application season rolls around, we encourage prospective students to reach out to students already in the clinic to learn more about the workload and clinic structure. And students in their third or fourth semester in the clinic often volunteer to share specific expertise with newer students, such as strategies for attacking thorny questions around standing when proposing new case ideas. We recognize the time students spend on these conversations as an essential contribution to the clinic and take care to highlight this mentoring work in our syllabus, in information sessions for prospective clinic applicants, and during clinic meetings.
This approach has a practical effect—busy students are more likely to make time for mentoring when they feel that the clinic values it—and also communicates an important lesson about law practice: building relationships and talking about cases and ideas counts as work and is part of what we are doing together. It’s all part of lawyering and learning.
- Clear structure for feedback: In most cases, students are required to submit memos 48 hours in advance of their working group call to allow supervisors time to read their memos thoroughly before the call. This fall, we plan to ask students to read their teammates’ work during the 48-hour period between memo deadline and working group call. Many students have already been doing this, but we realized we hadn’t yet concretized the practice as a policy. This is how a lot of our policies evolve, from an informal practice that we don’t want to lose as one generation of students graduates and the next gets to work.
In addition to oral feedback during working group calls, supervising attorneys automatically redline one of the first two assignments that students complete for a working group. Supervising attorneys will decide which assignment to redline unless students reach out with a preference. The redlines get emailed directly (and only) to the individual student. We call this the “quick edit,” designed to bolster the substantive feedback that attorneys regularly give students and provide an opportunity for students to remedy relevant legal writing or research issues early in the semester. Then there’s the “deep edit,” a more in-depth edit that students initiate by reaching out to a supervisor. The supervisor provides written feedback on one piece of work product, often including suggestions for further student research and written work, and schedules a one-on-one call with the student to discuss the edits.
I don’t mean to paint an overly rosy picture of remote supervision or suggest that we have it all figured out. Until the pandemic hit, Heather, the students, and I were together in New Haven and saw a lot of each other on a regular basis. Even this past spring, we had a couple of months of normalcy before the world seemed to change overnight. We worked with our student directors to host happy hours, organize small group conversations, and encourage informal collaboration and conversation in the clinic workroom. We hosted a community dinner at the start of the semester. This fall will be our first time starting off the semester without our usual community touchstones. We’re hoping to teach parts of the clinic seminar in person, but some students will opt to participate remotely for personal and public-health reasons. Instead of crowding around a single table in a small seminar room, we’ll be spaced 6+ feet apart in a room that usually seats 150 students. We’ll be masked, and probably nervous. It’s all so new.
We’re also still trying to figure out what kinds of social gatherings will work over Zoom and what will feel stilted and exhausting. We know it doesn’t work simply to move our typical in-person events online. But we also don’t want to skip them entirely. In April, I decided to skip our usual end-of-semester celebration rather than face trying to replicate it over Zoom. In retrospect, that was a mistake. The semester petered out without any sense of closure or celebration, and our 3Ls graduated without any clinic-specific farewell. I think we can do better this fall. We want to try more brown-bag lunch style chats with alumni, since Zoom makes it easy to bring in guests. Heather may teach an optional cooking class for the wannabe chefs among us. My toddler and her ukulele will probably make an appearance on screen. We’re looking around to see what others are doing to build community and what’s working for them. We’re enlisting students to help us figure out what online events are meaningful, and to find the sweet spot between too few events and too many.
None of this makes up for the pre-pandemic world we all wish we lived in. We’re all worried sick about so many things. But I think we’ll figure out together how to build community without our usual tools. If anything, the pandemic has heightened the desire we share with our students to use law to protect vulnerable consumers, promote civil rights, and create lasting change.
Wednesday, August 19, 2020
This is not a posting for clinical positions, but I want to cast a wide net for these doctrinal, entry-level, tenure track positions at Pepperdine Caruso School of Law, per Dean Caron's post on the big blog:
Pepperdine University Caruso School of Law is seeking to fill two entry-level, tenure-track positions on our faculty. We welcome candidates across all areas of law to apply, with some areas of particular interest including Criminal Law, Evidence, Tax, and Torts.
The School of Law is an ABA-accredited, AALS member law school located in Malibu, California. Pepperdine is a Christian university committed to the highest standards of academic excellence and Christian values, where students are strengthened for lives of purpose, service, and leadership. The School of Law welcomes applications from people of all faiths and is particularly interested in receiving applications from candidates who may bring greater racial, ethnic, and gender diversity to the faculty. Pepperdine University is an equal opportunity employer.
For further information, please contact Professor David Han, Chair, Faculty Appointments Committee.
Thursday, June 18, 2020
Cross-posted from the Human Rights at Home blog:
The murder of George Floyd is a moral outrage that violated his human rights. Like countless Black people before him, a state agent summarily and brutally executed Mr. Floyd with no legal justification, due process, or expectation of accountability. The police officer, knowing he was on camera, acted with supreme confidence that he had the power to kill a Black man in the street.
Americans often discuss human rights abuses as events that happen elsewhere. We are apt to discuss civil rights at home, even while we’re quick to critique other nations’ human rights abuses. This may be due to convictions about sovereignty, suspicions about international organizations, or an assumed moral superiority, but I suspect we do not look to human rights principles because we have made sure our international human rights obligations are rarely legally operable. That is, the U.S. has not consented to meaningful enforcement of international human rights laws. We have chosen to trust ourselves and to reject accountability outside our vaunted sovereignty.
Human rights arise from ineffable conscience that transcends positive law, but human rights laws codify some of those ideals in operable language. The U.S. has signed and ratified a few conventions that create international human rights law, so by ratifying them, the conventions become part of the constitutional, supreme law of the land. Notwithstanding weak enforcement mechanisms, they are law, so the U.S. must reckon with its obligations.
The Universal Declaration of Human Rights founds modern iterations of human rights on a bedrock: “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” Every convention enumerating human rights builds on this precept, including the Convention Against Torture and Other Forms of Cruel, Inhuman and Degrading Treatment or Punishment, ratified by the U.S. in 1994.
Under the Convention, torture means “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person . . . punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official. . . “
The state obligation is “to take effective legislative, administrative, judicial or other measures to prevent acts of torture.” “Each State Party shall ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel . . . who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment.”
These rights are non-derogable, and “[s]tates parties are obligated to eliminate any legal or other obstacles that impede the eradication of torture and ill-treatment; and to take positive effective measures to ensure that such conduct and any recurrences thereof are effectively prevented. . . .”
Did the Minneapolis Police violate the Convention? Have our governments done enough to eradicate torture and ill-treatment by public officials?
For nearly nine minutes after being restrained in handcuffs, a uniformed police officer ground George Floyd into the asphalt, even as Mr. Floyd begged for his life, gasped for air, called out for his mother, and stopped breathing and moving. The State of Minnesota charged the police officer with murder and the attending officers with related crimes, but, by these officers’ actions, the State very likely violated human rights law against ill-treatment. Per the Convention:
States bear international responsibility for the acts and omissions of their officials. . . acting on behalf of the State, in conjunction with the State, under its direction or control, or otherwise under colour of law. Accordingly, each State party should prohibit, prevent and redress torture and ill-treatment in all contexts of custody or control. . . .
These abuses are common in our history, certainly no mystery to Black people. As social media and smart phones force all of us to bear witness, again and anew, they shock our collective conscience because these murders by state actors are affronts to indispensable human dignity. They always have been, but now we cannot look away, diminish or evade our collective burden to confront and eliminate them.
The state obligation is the people’s obligation. Because formal enforcement of international human rights laws is so weak, the bulwarks for human dignity are our democracy, politics, and the conscience of our people. Our governments must protect human rights. If we remain a self-governing republic, then we all bear a profound obligation to vote, speak, and govern to defend the inherent dignity of every person.
Friday, June 12, 2020
Via Alisha Hennen:
Please find below a call for submissions for a new journal, The Disparity Law Journal, which is being published as an imprint of the Journal of Law.
The theme for our inaugural issue is Disparity in Legal Citation. We seek to present both commentary and empirical work on the patterns we see in legal citation practice, which we understand to generally favor authors who are White men at the most highly-ranked institutions. We are also interested in commentary on how the use of citation metrics to judge law schools may institutionalize and reify bias and discrimination. HeinOnline's ScholarRank and its work towards incorporating citation metrics into law school rankings would be just one example of the phenomenon we seek to explore in this issue.
Dates for submission:
Submit a proposal by 7/15/2020
Notification of Acceptance by 8/1/2020
Final draft due on 10/1/2020
This journal, an imprint of the Journal of Law, is a periodic attempt to highlight, challenge, and address inequality and inequity in law through the publication of readable and practical articles. We welcome both scholarly and unconventional submissions on this topic. Our vision is that we will produce a place for discussions about systemic unfairness in law and law schools. Our approach to dismantling traditions of disparity provides space for all at the table.
Disparity means the condition of being unequal. This journal is an attempt to challenge and shape the conversation about this condition in law and justice through innovative approaches to legal research, scholarship, and theory.
Lawyers, judges, law professors, law school staff, law librarians, law students. Specifically, those who have been or continue to be disenfranchised in the law or by the American legal academy and have innovative ideas to reform, grow, change and shape the future of legal education and the legal profession.
Length of articles:
No more than 18k. Preference for shorter, readable works.
Type of author:
We accept articles from anyone interested in furthering scholarship on disenfranchisement and disparity in legal academia and the US legal system.
Original works or reprints:
We welcome original works and reprints.
Ana Isabel Delgado Valentin, Suffolk University Law School
Nicole P. Dyszlewski, Roger Williams University School of Law
Alisha Hennen, Mitchell Hamline School of Law
Rebecca Sherman, United States Courts for the 9th Circuit
Genevieve B. Tung, University of Pennsylvania Carey Law School
Submissions and questions can be sent to Alisha Hennen at firstname.lastname@example.org
Thursday, June 11, 2020
This week, many of our faculty at Pepperdine Caruso School of Law signed a statement of mourning and commitment to confront racism and racial injustice in our work, teaching, school, and legal systems. It gathered broad support from across the diversities of our faculty - races, genders, generations, faiths, parties, and faculty statuses.
I add this note personally; this statement is the least we can do. We will and must advance these principles and commitments in real, transformative, critical, and bold work to combat racism and racial injustice in our lives, school, communities, laws, and the justice system.
I ask our students, alumni, clients, colleagues, and communities to hold us accountable to these commitments.
We, the undersigned faculty members of Pepperdine Caruso School of Law, stand united in the national mourning of the death of George Floyd. As Pepperdine University President James Gash has declared, “[t]he tragic killing of George Floyd has brought into sharp focus again the need for action to eradicate racism and to right the wrongs of centuries of oppression of Black people in our nation. … I stand with you believing all forms of racial violence or oppression are abhorrent and that we need to be agents of change. … God calls us and empowers us to be instruments of justice and to actively oppose racism in every form, and especially right now against our Black brothers and sisters.”
As legal educators and members of the legal profession, we wish to join in declaring our firm support of these principles, particularly with respect to the administration of criminal justice and law enforcement throughout America. As Dean Paul Caron has emphasized in his recent letter to the Pepperdine community, “The Caruso School of Law embraces our responsibility to address systemic injustices in our society. Our mission is to provide our students with the tools they need to become future leaders who will effect positive change in the world.”
As faculty at Pepperdine Caruso School of Law, we recommit to the principles of diversity, of equity (so that each member of our community is treated fairly), and of inclusion (so that every member of the community will know that they belong). We also recommit to serving the student body with fairness, justice, and equality, while empowering our students to use their legal education to lead the change that we seek in our country. As legal educators at a faith-based institution, we remember the prophet Micah’s call in Micah 6:8: “What does the Lord require of you but to do justice, to love kindness, and to walk humbly with your God.” We are committed and compelled to act now in fulfilling the call for justice in our country and to listen to the voices of the Black community as we seek to eradicate racism in all forms.
Some faculty members prefer to express individually, by their own words and conduct, rather than by signing a letter, their commitment to racial equality and to equal justice under the law.
We encourage our fellow legal educators across the nation to commit to fostering intellectual curiosity, debate, cultural competency, human compassion, and critical thinking concerning racism in America. We also encourage them, where appropriate, to teach students and others about the ways in which pathways may be created that would allow individuals and communities to thrive, as we seek to eradicate racism and to eliminate its impact in America and globally.
June 10, 2020
Jeffrey R. Baker
Carol A. Chase
Jack J. Coe, Jr.
Tanya Asim Cooper
Catherine K Dodds
Chris Chambers Goodman
Gregory S. McNeal
Grant S. Nelson
Alan Tzvika Nissel
Sarah M. Nissel
Brittany Stringfellow Otey
Robert G Popovich
Shelley Ross Saxer
Stephanie R. Williams
Tiffany M. Williams
Wednesday, May 6, 2020
Call for Authors
Feminist Judgments: Rewritten Criminal Law Opinions
The U.S. Feminist Judgments Project seeks contributors of rewritten judicial opinions and commentary on those opinions for an edited collection entitled Feminist Judgments: Rewritten Criminal Law Opinions. This edited volume is part of a collaborative project among law professors and others to rewrite, from a feminist perspective, key judicial decisions. The initial volume, Feminist Judgments: Rewritten Opinions of the United States Supreme Court, edited by Kathryn M. Stanchi, Linda L. Berger, and Bridget J. Crawford, was published in 2016 by Cambridge University Press. Subsequent volumes in the series have focused on different courts and different subjects. This call is for contributions to a volume of criminal law decisions rewritten from a feminist perspective.
Feminist Judgments: Rewritten Criminal Law Opinion editors Sarah Deer, Corey Rayburn Yung, and Bennett Capers seek prospective authors to rewrite criminal law opinions covering a range of topics. With the help of an Advisory Committee, the editors have chosen a list of cases to be rewritten (as noted below). Potential authors are welcome to suggest other cases, though certain constraints (including a preference for avoiding cases that have already been or soon will be rewritten for other volumes in this series) may preclude their addition to the volume. We also seek authors to provide brief commentary on the original and rewritten cases.
Rewritten opinions may be reimagined majority opinions, dissents, or concurrences, as appropriate to the court. Feminist judgment writers will be bound by law and precedent in effect at the time of the original decision (with a 10,000-word maximum for the rewritten judgment). Commentators will explain the original court decision, how the feminist judgment differs from the original judgment, and what difference the feminist judgment might have made going forward (4,000-word maximum for the commentary). The volume editors conceive of feminism broadly and invite applications that seek to advance, complicate, or critique feminist ideas and advocacy. We are “big tent” and welcome all types of feminism, from liberal feminism to abolitionist feminism. We certainly welcome an intersectional analysis of cases where sex or gender played a role alongside racism, ableism, classism, and other concerns.
Those who are interested in rewriting an opinion or providing the commentary on one of the rewritten criminal law cases should email the volume editors (email@example.com, firstname.lastname@example.org, and email@example.com) and put “Feminist Judgments: Rewritten Criminal Law Opinions” in the subject line. In the body of the email, please indicate whether you are interested in writing an opinion or providing a commentary, and specify one or more of the cases from the list below that you would like to rewrite or comment on. You are also free to suggest a case not listed.
Please note that the editors are committed to diversity in all of its forms, and committed to including a diverse group of authors in this volume. If you feel an aspect of your personal identity is important to your participation in this volume, please feel free to include that in your expression of interest.
Applications are due by June 1, 2020. The editors expect to notify accepted authors and commentators no later than July 1, 2020. First drafts of rewritten opinions will be due on October 1, 2020. First drafts of commentaries will be due on November 1, 2020.
List of cases:
1. Oliphant v. Suquamish, 435 U.S. 191 (1978) (tribal criminal jurisdiction)
2. Winnebago v. BigFire, 25 Indian L. Rptr 6229 (1998) (strict scrutiny for gender cases)
3. Elonis v. United States, 575 U.S. 723 (2015) (threatening communications case)
4. U.S. v. Nwoye, 824 F.3d 1129 (2016) (domestic violence/duress)
5. Keeler v. Superior Ct of Amador Cnty, 470 P.2d 617 (Cal. 1970) (killing of fetus)
6. Whitner v. State, 492 S.E.2d 777 (1977) (criminalizing prenatal activity)
7. Coker v. Georgia, 433 US. 584 (1977) (death penalty and rape)
8. McCleskey v. Kemp, 481 U.S. 279 (1987) (death penalty and race)
9. People v. Berry, 556 P.2d 777 (1976) (provocation)
10. Girouard v. State, 583 A.2d 718 (Md. 1991) (provocation)
11. People v. Helen Wu, 286 Cal. Rptr. 868 (1991) (cultural defense)
12. State v. Norman, 324 N.C. 253 (1989) (self-defense)
13. State v. Rusk, 424 A.2d 720 (1981) (acquaintance rape)
14. Massachusetts v. Blache, 880 N.E.2d 736 (Mass. 2008) (rape/intoxication)
15. McQuirter v. State, 36 Ala. 707 (1953) (rape/race)
16. State re M.T.S., 609 A.2d 1266 (N.J. 1992) (juveniles/rape)
Tuesday, May 5, 2020
CLEA: Social Justice in Legal Clinics: Tennessee and Memphis Collaboration on Housing and Eviction Justice During the COVID-19 Pandemic
Cross-posted from CLEA's Social Justice in Legal Clinics series.
In a remarkable partnership from opposite sides of their state, Prof. Wendy Bach’s clinic at the University of Tennessee College of Law (which she teaches with Joy Radice and Sherley Cruz) collaborated with Prof. Katy Ramsey’s clinic at the University of Memphis Cecil C. Humphreys School of Law to empower attorneys and clients facing eviction procedures during the COVID-19 disaster.
This post from UT explains their innovations in teaching, practice, and partnerships when the pandemic disrupted law schools and heightened vulnerability for renters during the pandemic:
When the threat of COVID-19 led to the cancellation of in-person classes, legal clinic professors at the University of Tennessee College of Law and the University of Memphis School of Law began scrambling to reinvent their curriculum.
Professor Wendy Bach’s legal practice history with eviction defense in New York City had given her firsthand knowledge of how economic crises can lead to homelessness.
“I was looking for something meaningful for our students to take on that was a direct response to this crisis,” Bach said. “Legal services attorneys are facing a wave of eviction-related work. There is a moratorium on eviction proceedings now. But when that’s lifted, the number people dealing with these situations will skyrocket. And the proceedings will move very fast.”
Bach reached out to legal services organizations throughout the state to determine whether students could assist in some way related to eviction law. Her queries led Bach to Professor Katy Ramsey at the University of Memphis who also had eviction law experience.
. . . .
Bach and Ramsey began brainstorming and about how they could collaborate. They realized their clinic classes were scheduled to meet at the same time and that they could bring their students together – via classroom Zoom sessions – to partner and find solutions for Tennessee’s COVID-related eviction issues.
“Tennessee does not have strong tenant protection laws so evictions are always a problem and tenants don’t have lot of recourse,” Ramsey said.
. . . .
The students drafted model pleadings that attorneys can use as templates to request emergency hearings.
. . . .
In partnership with Tennessee Alliance for Legal Services, students in the two classes also took on the task of surveying counties and sheriff’s departments throughout the state to learn how they were handling evictions.
County courts have discretion about whether they will accept eviction filings during this time, and sheriffs can interpret how they want to proceed with executing writs that were issued prior to court closures throughout the state.
“The information was important for TALS to have when they receive calls their helpline,” Bach said. “They wanted to be able to accurately answer questions for clients about how to best deal with situations in their home counties.”
The students also gathered information about Tennessee eviction laws in relation to public health emergencies then crafted opinion pieces to share with Tennessee newspapers.
“We looked into what happened during the Spanish Flu pandemic in 1918, and if what happened then carries over to today, we’re about to have a significant housing crisis,” Tennessee College of Law student Allen Heaston said.
Heaston, who will work in family, civil and criminal law through Neighborhood Defender Services of Harlem after graduation, said learning about housing law through the Legal Clinic was a worthwhile experience.
“It was just a very different area of study for me,” he said. “Just the vast amount of knowledge we were able to absorb in a short period of time has been incredible.”
Bach, Ramsey and Heaston agree there were significant benefits to the collaboration that allowed students to gain new experiences while helping people throughout Tennessee.
“This is definitely a collaboration I hope the College of Law will continue,” Heaston said.
Tuesday, April 21, 2020
April 21, 2020
The Clinical Legal Education Association (“CLEA”), the nation’s largest association of law professors, urges State authorities in charge of attorney licensure to promulgate rules and policies in response to the current pandemic that expand the availability of legal representation for underserved clients and equitably account for the impact of the COVID-19 crisis on recent law school graduates. In the face of this unprecedented crisis, we are called to work together to protect each other. We must be pragmatic, flexible and caring. While we are strongly drawn to precedent and tradition, as are all lawyers, we urge that strict adherence to the current model of a single, high stakes, timed bar examination as the primary gatekeeper to the profession will needlessly exacerbate inequality and further injustice during this pandemic.
As this crisis has developed, a number of approaches to bar licensure have emerged. Some jurisdictions have announced plans to postpone the bar exam a few months and then require applicants to sit for the traditional exam. These plans seem not to fully grapple with the difficult situation in which we find ourselves. CLEA joins others in calling for jurisdictions to adopt alternatives to the bar exam, such as supervised practice, sequential licensing, and diploma privileges. We recognize that one size may not fit all and that solutions will vary according to the needs and circumstances of each locale. Nevertheless, one thing is certain – this is not a time for business as usual.
CLEA has long expressed concerns about the deficits of the bar exam in the licensure system for American lawyers. This position is rooted in CLEA’s mission, which promotes justice and diversity as the core values of the legal profession and recognizes that licensure regulations inevitably shape legal education, particularly clinical legal education. CLEA has consistently urged that direct assessment of relevant professional skills, on analogy to training in medicine, would be better than inferring those skills from academic performance. Bar exam scores correlate well with law school GPAs and, to a lesser extent, with LSAT scores, but neither of these measures has been shown to relate to success in the profession or competence in lawyering. The bar exam is not designed to measure competence in representing clients or advancing justice, as is required of all lawyers. We have repeatedly urged that supervised practice and other experiential assessments would much better protect our clients and foster professional excellence. These deficits of the traditional bar exam are thrown into high relief by the bright light of the virus.
First, there is an unprecedented need for legal counsel for low and moderate income people, so many of whom will need legal assistance on issues of employment, housing, business and finance during and after this crisis. The need for advice and representation in family law, criminal law and immigration matters is also acute. Licensing alternatives such as supervised practice, graduated licensing and admission by diploma privilege would expand the availability of legal services at this crucial time and permit law graduates to serve their communities.
Second, the COVID-19 crisis has impacted law students unequally. Some are infected, while others are caring for family members. Many are dealing with severe economic dislocation and beset by daily crises; they are caring for children, older relatives and in some cases, face illness themselves. In the coming months, the results of any exam will turn upon the circumstances of the test taker rather than their ability to ethically practice law and meet their professional obligations. Most law schools have recognized that reality by adopting some form of pass/fail grading for this semester. In this moment, limiting admission to practice to those capable of sitting for and passing the traditional bar exam will only exacerbate these inequities; it will adversely impact those facing personal challenges brought on by this crisis while rewarding the fortunate and the wealthy.
Third, we must recognize the impracticality of administering a bar exam now or in the near future. Some states have announced their intention to move forward with the July 2020 exam and others have postponed the July exam to September. Although we cannot be sure, given the dynamism that characterizes this moment, there seems little likelihood that large groups of graduates could safely take an exam in person during the coming months.
We urge the state licensing bodies to recognize that this state of emergency requires us to seek creative, sensible and realistic solutions. We must try to better meet the legal needs of underserved groups and respond with care, concern and thoughtful reforms to the very serious challenges those striving to enter our profession face in this unprecedented time of crisis. Let us not look back and regret that we did not give enough attention to the least fortunate among us and let inequality flourish in disaster.
Thursday, April 16, 2020
I taught our Veterans Legal Clinic at the University of Georgia School of Law in the spring semester 2020. Because of the COVID-19 pandemic, we were compelled to transform the clinic into a virtual law practice in mid-March. The transition was relatively smooth; this post does not address how we did it. I am sure others have found great solutions to this puzzle.
Instead, I recognized that students in this course had practiced live for a little over half of the semester and remotely for the rest of the time. So I decided to elicit feedback and prompt reflection about the experience by running the following exercise. By way of context, students in this clinic work in teams of two and work on roughly 5-8 cases in the semester, including long term cases and quick advice. The practice itself is primarily an administrative law practice, with relatively infrequent and already mostly videoconferenced hearings.
I describe the exercise first, the summarize the student's feedback.
1) Pre-assign students to breakout rooms in Zoom. For this class, I divided 11 students into 4 groups, making sure that students were not in the same group as their clinic teammate. I wanted to encourage cross-team sharing of experiences.
2) Assign the task:
-- Discuss the experience of virtual practice.
-- Ask what it would be like to remain a virtual practice, even after we regain access to our physical space.
-- Identify and come ready to report back:
1) at least one benefit or gain from virtual practice.
2) at least one cost or loss from virtual practice.
3) one lesson that might affect your future life as a lawyer.
3) Break into breakout rooms.
4) Bring back and ask for reports:
-- I chose to go question by question, with all groups reporting on one question before moving to the next
-- I typed notes in a document as each group reported, pre-formatted into columns for each question.
-- After all reports, I shared those notes using Zoom’s share screen feature
-- and asked students to reread and consider whether they had additional thoughts.
Here is the list that resulted with this group on this occasion. This is not especially organized and includes only light editing for clarity.
Benefits / Gains:
-- for a permanently online practice: lower costs and lower rent, although we’d still need a room with a copier/scanner and a way to deal with the still unavoidable, old school physical mail.
-- increased efficiency, assuming effective use of the available cloud-based tools (such as Google Drive, Slack, CLIO).
-- easier remote access, especially for us in a state-wide practice focusing on rural areas for some clients (but see losses below.)
-- greater flexibility in scheduling within the clinic, including team meetings and class sessions.
-- greater flexibility for student advocates (and lawyers) in deciding when to do work.
-- in preparing clients/witnesses for videoconferenced hearings, a more accurate role-play of the videoconference experience.
-- especially now, in this unexpected situation, the chance to see people’s private spaces and, to some extent, to see how they act in their private space. One student noted they preferred lying down during Zoom calls. Another self-identified as regularly chewing on some food when they logged into a meeting.
Costs / Losses:
-- decreased efficiency on shared small-scale tasks, when compared to “I’ll just pop into X’s office to ask this question.” In some situations, immediate live interaction is the most efficient way to move a task forward.
-- decreased access for clients: who do not have reliable internet and related equipment; who have limited minutes on a prepaid phone; or who for other reasons find it difficult to use computers or to share with strangers over the phone.
-- decreased efficiency in responding to incoming calls. We have been using a Google Voice number to mask students’ home phones. After leaving voice mail, clients would often call back immediately; but our protocol required our administrator to offload messages and send them to the right person, resulting in delay.
-- less sensory information about clients and witnesses during meetings and interviews and so:
-- a) fewer or at least different non-verbal cues that might prompt different lines of questioning;
-- b) a decreased ability to read body language and tells, affecting assessments of credibility;
-- c) a slightly more impersonal feel.
-- especially for text and email, the risk of miscommunicating tone and attitude, resulting in the need to be more thoughtful and intentional about these ways of connecting. On this point, see this Key and Peele video, which one student sent me after class.
-- partly because of the risks of impersonality and miscommunication, an increased need for reflective listening and for intentionally conveying compassion, empathy, and the sense that you have ‘heard’ the client.
-- the distraction of having a screen in front of you at all times during interpersonal interactions, for those of us who are distracted by things on a screen.
-- the almost complete loss of casual group interaction that usually occurs in the clinic workspace, resulting in less informal sharing of ideas, brainstorming, and (especially) off-topic conversation.
-- the need for greater discipline, or at least a different set of habits, for those who have difficulty working at “home,” with all its powerful distractions, pleasures, and responsibilities.
-- a need for greater discipline in documenting work activities, especially for team-based work.
-- a new or revived appreciation for how large a percentage of law practice can in fact occur remotely.
-- despite that, resistance to losing the opportunity for full interpersonal contact with colleagues, clients, and others.
-- a sense that a hybrid approach might work best, combining live contact with remote work.
-- a specific recommendation that the clinic move to a hybrid model. For example, requiring a minimum number of hours live but allowing for additional hours to be worked remotely.
-- an assumption that advance scheduling of shared work times still has value, so as to ensure that the someone at the other end of a text or chat or email will see and respond in something close to real time. (See “I’ll just pop into X’s office” above.)
-- a starting appreciation for the way in which remote practice can alter efforts to integrate work with other life commitments, resulting in a different set of challenges to maintaining well-being overall.
-- a worry about how to set and maintain boundaries between work and home, if you have them or want them.
Monday, April 6, 2020
The Saint Louis University Law Journal is proud to announce the twenty-second installment of the Journal’s Teaching series, Teaching Law Online.
The Journal created the Teaching series in 2000 as a forum for scholars, judges, and practitioners to discuss key topics and methods of teaching legal subjects. Since then, the Journal has published a teaching issue annually, such as Teaching Civil Procedure (47:1), Teaching Constitutional Law (49:3), Teaching Federal Courts (53:3), and our forthcoming issue, Teaching Property (64:3).
Our Teaching Law Online issue, in line with our past issues, will include articles by prominent scholars and practitioners, sharing their thoughts on teaching legal subjects remotely, a topic that is especially relevant in the rapid transition to remote learning that has occurred this semester in the wake of the COVID-19 pandemic. We hope to represent teachers with all levels of experience teaching legal subjects online, and we welcome submissions on any subject matter within the context of remote and online learning.
Articles for our Teaching Series are usually between 3000–4000 words (approximately 12–15 double-spaced pages) long, although we regularly publish articles as long as 30 pages and as short as 10 pages. Because the articles focus on the author’s own thoughts on teaching, only limited reference to outside sources is needed. We anticipate publishing this issue in the spring of 2021, and therefore ask that you submit your article for review via e-mail by August 1, 2020. If you have any questions, please feel free to contact Michael McMahon, the Managing Editor of the Teaching Issue at Michael.firstname.lastname@example.org.
Wednesday, April 1, 2020
Zero-Tolerance: The Trump Administration's Human Rights Violations Against Migrants on the Southern Border
My friend and co-author, Allyson McKinney Timm, observes that when Americans invoke the language of "human rights" the picture often shifts to some faraway land, somewhere else less concerned with law and liberty. But the principles of inherent human dignity, justice, and morality at the foundation of modern human rights laws are also at the foundation of American independence and constitutional rights. Human rights are and must be an integral part of our politics, law, and government in the United States.
In our article forthcoming in the Drexel Law Review, Zero-Tolerance: The Trump Administration's Human Rights Violations Against Migrants on the Southern Border, we analyze the Trump Administration’s zero-tolerance immigration policies through lenses of humans rights laws and principles. It’s available for download at SSRN here.
The article arises out of long connections and relationships in the clinical community. Ally and I met at least a decade ago at an AALS Conference on Clinical Legal Education in a session on religion, faith, and clinical practice and pedagogy. Ally was a fellow in Yale’s Human Rights Clinic. She completed seminary at Yale Divinity School after her season in the clinic, and she has developed critical, compelling work at the intersection of faith, religious communities, and human rights – centering the inherent dignity of individuals (the imago dei in our Christian traditions) in law and policy.
In recent years, Ally founded Justice Revival. It became a client and stalwart partner for the Community Justice Clinic that I direct at Pepperdine Caruso School of Law. Justice Revival is committed to advancing human rights education and advocacy in the United States, especially within communities of faith.
In this spirit, Justice Revival and the Community Justice Clinic embarked on a multi-year project to analyze the Trump Administration’s immigration policies through lenses of human rights and international human rights laws. Clinic students worked closely with Ally through structured, progressive research to consider whether zero-tolerance enforcement, family separations, child detentions, and other features of Trump’s immigration policies complied with international human rights.
We found that they do not. The Trump Administration’s policies and actions amount to profound, gross violations of human rights under treaties the United States has ratified, conventions it has signed but not yet ratified, and under customary international law. These policies led the United States to violate even deeper, more fundamental, moral principles that are the foundation of human rights law.
Our article merely builds on the mighty advocacy of many more heroic, dedicated, brilliant lawyers, clinicians, and journalists who work tirelessly to illuminate these policies and their effects on people migrating across the southern border and seeking asylum. We are witnesses, helping amplify their voices to create an analytical record of these catastrophic, immoral, illegal actions under the Trump Administration.
During the COVID-19 pandemic, there may seem to be only one story, and this may seem like old news to some. But the story of the Trump Administration’s callous cruelty to migrants and asylum-seekers continues to this day. It shows us much of this President’s values and the lengths to which his administration will go to impose its fearful, impulsive will.
The zero-tolerance story reveals the utter necessity of a government that prioritizes the inherent dignity of all people as its greatest end. Cruelty cannot be our national policy; we are only great when we lead with faith, hope, and love. The United States simply cannot survive by building cowardly, brittle walls against the world. We will only ever flourish when we embrace all our neighbors and ourselves with dignity and justice.
Friday, March 20, 2020
A JOINT STATEMENT OF THE AMERICAN ASSOCIATION OF LAW SCHOOLS CLINICAL SECTION* AND THE CLINICAL LEGAL EDUCATION ASSOCIATION
March 19, 2020
We are clinical law professors working all around the United States, in rural and urban settings, representing vulnerable families, incarcerated people, small business owners, immigrants, community associations, veterans, low-income taxpayers, and many, many more groups of people with whom we seek the full protections and rights afforded by our laws. Across the country, our clinical programs provide more than three million hours of free civil and criminal legal services each year.
From this wealth of experience in diverse communities, we know that much of the mainstream outlook on coronavirus preparation and mitigation, as well as vulnerability to the virus, misses crucial issues facing large swathes of our nation. We are writing to add these missing perspectives and to urge immediate action at the local, state, and federal levels.
When a virus spreads into a deeply unequal society, we should not be surprised to see deeply unequal impacts. Some of the particular vulnerabilities worrying us include:
Our massive prison population. This population includes those serving criminal sentences after convictions, the large number of people held before trial who could safely be released to the community but for the unaffordability of bond, and the tens of thousands of migrants being held either at the border or in massive facilities in the interior of the country. In all these settings, where people have limited access to health care and cannot avail of the social distancing recommended by the Center for Disease Control and Prevention (CDC), the virus will spread quickly. And while incarcerated people cannot access the world outside, correctional officers may be bringing the virus from the outside into these facilities.
Low-wage and service workers. People in the most public-facing occupations are necessarily more exposed than office workers, remote workers, and many others who are being encouraged to self-quarantine. People working in pharmacies or grocery stores where we get our medicine and our food, people working in restaurants, people cleaning our schools and office buildings — they all face a far greater exposure to the virus than people who are able to limit their time outside of their homes or outside of other carefully sanitized spaces.
Low-income families who rely on public transportation. When the only way to get to work is a crowded bus, social distancing is impossible.
Immigrants without health care. From green card holders to the undocumented, immigrants have been deterred from seeking health care. The Trump Administration’s “public charge” rule makes people ineligible for citizenship if they receive certain public benefits. Even when a benefit does not make people ineligible, the fear and confusion around this issue — as well as the possibility that something allowed today might make problems with a change in policy tomorrow — has led to a massive drop in people accessing programs that improve baseline health. And those who lack legal status have no access to health insurance under the Affordable Care Act.
Participants in overcrowded court systems. Courts that serve poor people do not look like the courts we see on TV or in the movies. We regularly appear in courts with crowded waiting rooms, where thirty cases or more might be called in a single two-hour period. Whether that is a criminal court where defendants (and their lawyers) are awaiting arraignment, or an immigration court where dozens of people wait side-by-side in standing-room-only courtrooms, far too many of our courts are ill-equipped to keep people safe. And yet those same people, vulnerable to infection in those crowded, unsanitized spaces, would bear exceptionally high costs if they did not show up to court: evictions, warrants for arrest, defaults that could result in seizures or wage garnishment, orders of deportation, the loss of child support or unpaid wages, and more. We are grateful that, increasingly, jurisdictions are taking smart, timely measures to reduce these risks.
Health Care Workers. All health care workers, even those who otherwise occupy privileged positions in our society, are working the frontlines of the response to coronavirus, which is an extraordinary commitment and service. Among this category, though, are people facing extra vulnerabilities. With a median hourly wage of $13.72, nursing assistants and orderlies have limited resources to keep themselves healthy, even while working in contaminated locations.
People Experiencing Homelessness. Already highly vulnerable to a host of illnesses, those who rely on shelters face acute difficulties in maintaining social distance from those who may be infected with coronavirus, because shelters can be terribly overcrowded. They may also lack reliable access to soap and water. And with more than 30% already suffering from chronic lung diseases, the virus is likely to present more severely amid this population.
Unaffordability of Preparation
Much of the good, common-sense advice about preparing for coronavirus asks people to have supplies on hand for about two weeks, in the event that self-quarantine is needed. In Midwestern cities, the average consumer spends a little over $300 for food and personal items for two weeks. In more expensive cities in the Northeast, that number rises to about $350. Those amounts are well over half of the two-week take-home pay for a minimum wage worker. And the Federal Reserve has found that fully 12% of Americans would be unable to find any way to cover an unexpected $400 expense — meaning that 12% of the U.S. population is unlikely to be able to afford the supplies needed for an effective self-quarantine.
The Challenges of Social Distancing
We have already demonstrated why the vulnerable communities we work with are more likely to come into close contact with the coronavirus. Once exposed, people need to self-quarantine, according to the CDC. For three distinct reasons, this is a difficult solution for many of the people we work with.
Necessity of Work. People without paid sick leave face the choice between staying home — which will help prevent the spread to others — and providing for themselves and their families. Without paid sick leave, we leave these individuals in an impossible situation. Today 34 million Americans lack paid sick leave, and the first wave of federal coronavirus legislation left millions of these workers still unprotected. Some SNAP food benefits recipients are also limited to three months of aid in a 36-month period if they are out of work or underemployed, although those requirements are in flux for many states starting in April. For those still subject to those requirements, missing work may mean missing out on crucial nutrition. We applaud the emergency efforts, like legislation in Washington, D.C. and elsewhere, aimed at assuaging economic insecurity to help people comply with social distancing.
School Closures, Poverty, and Childcare. One of the mitigation strategies we are increasingly seeing is school closures. Although essential, these closures are especially difficult for the communities we serve for three reasons. School may be the only place where a poor child can reliably access nutritious meals provided by school lunch programs. Also, when a child is home from school, someone needs to care for that child. Parents without childcare risk child protective services or criminal investigations if they work and leave their children home alone. School closures also create inequities between well-resourced school districts that can move learning online, and districts without those capabilities (and within districts, there may be disparate access to computers and reliable internet).
Intimate Partner Violence. Self-quarantine may leave people in dangerous situations. The economic stress of lost wages and work opportunities will harm some low-income people who are victimized by intimate partners and other family members, depriving them of the resources they need to maintain their safety. Moreover, the loss of employment may drive increases in violence; intimate partner violence against women is highly correlated with male under- and unemployment. Quarantine will mean that people in violent relationships may find themselves sharing small spaces under stressful conditions with those using violence against them, without the ability to seek other shelter or assistance, for significant periods of time. The World Health Organization attributes a connection between disasters and increases in domestic violence and child and elder abuse to the lack of provisions, the dismantling of social networks, and the stress of lost earnings. As one clinician noted, “For survivors who haven’t escaped yet, telling them to stay home is telling them to stay in the most dangerous place possible.”
Lack of Access to our Clients. Prisons are banning visitors, and lawyers will have greater-than-normal difficulty accessing clients. As universities close down, we will have greater challenges communicating with and meeting other clients. While clinical professors across the country are rapidly adapting our intensive teaching and supervision methodologies to use online tools, we also know that many of our clients lack access to the internet at home, and nothing will be able to substitute for in-person meetings with many whose cases are moving ahead even as the virus inhibits the ability of lawyers to do their job.
We fear that as the economy lurches toward a recession, the very nonprofit agencies whose services do so much to meet all the challenges laid out above, will lose vital grant, private, and government funding, making all of this much more difficult. Our clinical programs across the country support many innovative community organizations who make profound differences in small, unsung ways — and those organizations will need tremendous support to continue their critical work in these times.
We also have great concern that, even with some short-term moratoria in place, evictions will ultimately rise as people choose between medical care and paying rent. We fear the virus will depress responses to the census, which will have massive down-the-line harms for funding of vital government programs.
We greatly worry about what will happen as courts close or limit access to civil litigants. Domestic violence survivors will not be able to secure final protection orders or enforce child support orders. Workers cannot hold employers to account for unpaid wages — and risk missing statutes of limitation on filing those claims (though we hope courts will extend, or “toll,” those deadlines). Enforcing these rights matters. Court closures will make much of that work impossible.
The coronavirus exposes structural injustices that have long existed. This crisis shows that the boundaries we draw amongst ourselves are profoundly porous, whether it is the corner-office law partner exposing the low-wage contractor cleaning his building after hours, or the wealthy family whose elderly mother is cared for by an underpaid nursing aide who took three contaminated buses to get to work.
We hope that by revealing our deep and mutual interdependence, this crisis helps move forward policies that would benefit us all by reducing some of the inequalities embedded in our society. Paid sick leave and universal health care are obviously relevant to this current moment. But so are challenges to our sky-high rates of incarceration and the use of cash bail, and the efforts to raise the minimum wage and end immigration detention.
For decades, we, as clinicians, have seen the many ways that injustice flourishes in our society. We hope that, if nothing else, the COVID-19 pandemic shows us the importance of interconnection, and how all of us do better when society works for all of us. We call on our elected leaders to make justice a core part of all responses to this pandemic. And we ask everyone to consider how a more just society would make so many things better than what we see today.
Monday, March 16, 2020
We're all making necessary and difficult adjustments to clinical teaching and practice. I met my Community Justice Clinic seminar remotely today for the first time; my students are scattered. The beauty of clinics is that everything is a teaching moment as we prepare for practice. I started my class today with a long discussion on lawyers' duties to clients when we have conflicts and crises, whether a global pandemic or really bad traffic.
This is not revolutionary or groundbreaking, but here I share my general notes that guided our conversation today. We shared more stories and questions and discussed other situations and scenarios, but this was my scaffold for the class. I hope this may be helpful.
Lawyering During Disruption
Last Year: Woolsey Fire.
This Year: COVID-19 Pandemic response.
Other scenarios -
Your own sickness.
Personal scheduling conflicts.
Death in the family.
You have a hearing set for a client tomorrow. Today you get sick and are sure you have the flu; tomorrow it’ll be worse. You’ll be contagious. Do you have to attend and handle the hearing for the client?
What basic rule governs this?
For California, note “reasonable diligence” and the other qualifiers.
Some scenarios from my Ethical Lawyering class, MPRE style:
Scarlett is a young associate at a mid-sized law firm. She is very talented and hard-working and makes it a practice never to turn down assignments from partners. Three partners have come to rely on her for many projects. Melanie asks her to handle document review and discovery for her mass-tort, pharmaceutical cases. Rhett asks her to work on research and drafting for his appellate practice. Ashley has asked her to cover depositions in his thriving medical malpractice work. One day, she has a discovery hearing scheduled for 9:00 in Pasadena for Melanie and a deposition scheduled at 12:00 in Encino for Ashley. She thinks she can make it and doesn’t expect the hearing to be a problem, but she is wrong. The Magistrate does not convene the hearing until 9:45, and it takes an hour to sort through all the objections. The 101 is slammed, and Waze says it will take two hours for her to get to the deposition. She doesn’t want to admit defeat or appear unprepared, so she takes surface streets to try to race to the deposition. She gets stuck in traffic near downtown and arrives at the deposition so late that everyone has left.
Has Scarlett violated Rule 1.3?
A. No, because the court is out of her control.
B. No, because traffic is unpredictable in Los Angeles.
C. No, because her supervising attorneys put her in an untenable situation by their lack of coordination and poor management.
D. Yes, because she did not make alternative arrangements for the deposition.
Charles Wallace is a sole practitioner. He employs one assistant, Denny, and one paralegal, Calvin. Charles Wallace handles a variety of matters, from wills and trusts to DUI defense and divorces. At forty years old, his office is profitable, and at any given week in a year, he has 200 paying or retained clients, and he has approximately 30 to 40 active cases. It’s busy, but his firm has a good system to handle it all. Last week, Charles Wallace had a heart attack that killed him almost immediately. He never gained consciousness before he died, so he missed several hearings and client appointments.
Has Charles Wallace violated Rule 1.3?
A. No, because his estate cannot practice law.
B. No, because his staff could communicate the sad news to his clients.
C. Yes, unless he designated another lawyer to handle his client’s business in the event of his death.
D. Yes, unless he was able to notify his clients before he died.
Let’s establish some principles:
When do our ethical duties begin with clients?
Do emergencies, conflicts, sickness, disasters, or crises suspend our ethical duties to clients?
Is this fair? Does it matter if it’s not?
How long do ethical duties survive to clients?
What are the duties most likely to be threatened or challenged by a disruption?
What are the exceptions to ethical duties we owe to clients?
With principles established, if disasters and disruptions are inevitable, if we do not know for whom the bell tolls, how should we react when they happen to fulfill our obligations to clients?
What is the worst option? (Abandoning the client, to their prejudice.)
What is the best option? (Being prepared with good systems so that no crisis is a surprise or shock to practice.)
If the conflict or problem is actually, literally unavoidable, what should you do as soon you can act?
(Alert the client. Alert the court. Communicate. Ask for help (coverage, continuance, extensions, substitutions))
How can you temper the harm to your client? (Communicate. Take all the blame coming to you. Avoid prejudice to the client.)
How can you avoid the crisis of a disruption? (Have systems and options ready. Don’t take on more than you and your systems can handle. Operate with margins. Have backup and help available. (And lend help when you can.))
Apply these ideas to current practice in the clinic, to our clients.
Do all you can to avoid harm and prejudice to clients to whom you owe duties and who trust you with their lives, liberty, fortunes, families.
Duties to clients come first, but client preferences and convenience do not necessarily come first.
Communicate (more than you think you may need to). With clients, partners, courts, opponents, others as necessary.
Be prepared in advance by building resilient systems and partnerships.
Work with margins.
Triage and prioritize.
Ask for help.
Sunday, February 23, 2020
University of South Carolina
Dean of the School of Law
Following a successful nine-year deanship that saw the hiring of 22 highly productive scholars and three teaching librarians as new faculty members, the reduction of in-state tuition by 17% (from the prior year) and the 2017 opening of an $80 million, 187,500 square-foot facility two blocks from the State House and State Supreme Court, the University of South Carolina seeks a new Dean for its School of Law.
The new Dean will have the opportunity to support the professional development and retention of a faculty that is ambitious in its scholarship and socially engaged, while enhancing and promoting programmatic strengths in children’s law, environmental law, experiential learning, healthcare law and public interest law. A new university budgeting model will benefit the School by incentivizing entrepreneurship within each academic unit and allowing the School to retain non-degree revenue, empowering the new Dean to chart a path of financial sustainability for South Carolina Law.
Founded in 1867, South Carolina Law is an incubator for the bar, bench, elected office and civic leadership in its region and across the nation. Within South Carolina, its influence and prestige exceed those of many flagship state university law schools: currently, every sitting Justice of the South Carolina Supreme Court and some 25% of state legislators are South Carolina Law graduates. Supported by direct state appropriation, the School maintains the only public law library in South Carolina. Its location in the state capital affords government access for faculty members as well as internship and career opportunities for students. The School is home to several important academic and service centers, including The Children’s Law Center and the Nelson Mullins Riley & Scarborough Center on Professionalism. The School hosts the annual National Cybersecurity Institute, and South Carolina Law faculty provide key leadership for the University’s Rule of Law Collaborative. The U. S. Department of Justice’s National Advocacy Center and Fort Jackson, the U. S. Army’s largest training post, are near neighbors to the School.
South Carolina Law currently offers only the JD degree, but it is seeking approval from state accreditors to offer partly on-line Master’s and Certificate programs in Health Systems Law. The School offers 12 dual degree programs, partnering with top-ranked programs in the Moore School of Business and Vermont Law School. Fifty-six full-time faculty members, including librarians, provide instruction together with a strong cohort of adjunct and emeriti faculty. Enrollment has remained steady since 2011, with about 210 entering students per class and 633 total students as of Fall 2019. Currently, 62% of enrolled students are South Carolina residents. Following a renewable direct legislative appropriation, in-state tuition (approximately $24k) is now closely aligned with that of the public law schools in neighboring states, and the School is able to offer a competitive non-resident scholar tuition rate to attract highly qualified out-of-state applicants. Matriculation agreements provide two paths for undergraduates enrolled in the University’s Honors College, the top-ranked in the nation, to gain automatic admission to South Carolina Law. The 3+3 Bachelor’s/JD degree program allows Honors College students to obtain both degrees in six rather than seven years.
The design of the new South Carolina Law building promotes student-faculty exchanges and supports an unusually collegial faculty culture that faculty members are eager to sustain under a new Dean. The building is state-of-the-art but also has many reminders of the School’s history, the material culture of South Carolina and the promise of the future in a Sunbelt state experiencing significant economic growth.
South Carolina Law seeks as its new Dean a prominent leader in the legal academy and/or profession, who will be a visible, credible and effective advocate and promoter for the School, while also overseeing new program development and providing expertise and service in advancing the University of South Carolina as a R1 Doctoral University. Candidates must possess a JD, at least ten years of experience in the teaching and/or practice of law and a record that meets the School’s criteria for tenure at the full professor rank. The ideal candidate will be comfortable engaging and stewarding legislators and alumni, providing mentorship for early-career law professors and leading and supporting a dedicated and deeply invested professional staff. South Carolina Law desires an accessible, student-facing Dean capable of nurturing and sustaining the familial academic community that is a hallmark of the School. An aptitude and appetite for developing non-tuition revenue streams, as well as raising endowments for enhanced named faculty chairs, scholarships and public interest funding, will be essential to success in this deanship.
Review of candidate materials will begin immediately and continue until the appointment, with a target appointment date of July 1, 2020. A complete application will include a letter of interest, a curriculum vitae or résumé and contact information for five professional references who can speak about the candidate’s qualifications for this position. Named referees will not be contacted without the candidate’s prior consent. Expressions of interest, applications, nominations and inquiries should be directed to South Carolina Law’s search consultant, Mr. Chuck O’Boyle of C. V. O’Boyle, Jr., LLC, at email@example.com.
The University of South Carolina does not discriminate in educational or employment opportunities on the basis of race, sex, gender, age, color, religion, national origin, disability, sexual orientation, genetics, protected veteran status, pregnancy, childbirth or related medical conditions.