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 email@example.com
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 (firstname.lastname@example.org, email@example.com, and firstname.lastname@example.org) 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.email@example.com.
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 firstname.lastname@example.org.
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.
Tuesday, January 14, 2020
On Friday, Feb. 21, the ABA and Pepperdine Caruso School of Law are hosting a Disaster Response Symposium. We're hosting national, state, and local experts in disaster legal responses, and if you're affected by natural disasters or serve those who are, please consider joining us. It'll be a great day of learning and collaboration.
Tuesday, December 17, 2019
University of Colorado
Natural Resources, Energy, and Environmental Clinic
The University of Colorado is looking for a permanent clinical professor for our Natural Resources, Energy, and Environmental Clinic. The clinic’s mission and vision allow for the clinical professor to cultivate a diverse docket of cases and projects, including matters addressing environmental and climate justice as well as traditional litigation and agency advocacy.
Founded in 1978, the Getches-Green Natural Resources and Environmental Law Clinic is one of the country's first environmental law clinics. Originally, Clinic students worked under the supervision of staff attorneys at the National Wildlife Federation. In 2010, the Clinic moved in house to the Law School, where the Clinic continues its mission of training future attorneys through the representation of clients in environmental cases.
The clinical faculty member is responsible for developing a docket of projects dealing with natural resources, energy, and environmental law issues. The clinical faculty member also has primary responsibility for supervising students in their case or project work, and for organizing and teaching a companion clinical seminar. The clinical faculty member will also work closely with the Getches-Wilkinson Center and the doctrinal faculty members who teach environmental law and related subjects. The clinical faculty member is expected to become an active member of the natural resources law community and develop relationships with experts, attorneys, and relevant organizations. This is a full-time academic year position. Rank and appointment classification will depend on qualifications and experience.
Candidates must have a JD degree and a minimum of five years of relevant practical experience. Teaching experience is strongly preferred. Candidates must be licensed to practice law in at least one state and be eligible to sit either for the Colorado bar or waive admission into Colorado.
To apply, candidates should submit the following materials through the CU Boulder job site:
- Cover letter addressed to the Search Committee describing your interest, your initial thoughts on the kinds of projects you would develop for the clinic, relevant practice experience, and any prior teaching experience.
- Resume or CV
- Names and contact information for three references
If you are selected as the finalist, your degree will be verified by the CU Boulder Campus Human Resources department using an approved online vendor. If your degree was obtained outside of the United States, please submit a translated version as an optional attachment.
The committee will begin reviewing applications February 1, 2020. The position will remain open until filled. The candidate is expected to be on campus by this summer; the semester begins in August, 2020.
The University of Colorado is an Equal Opportunity Employer committed to building a diverse workforce. We encourage applications from women, racial and ethnic minorities, individuals with disabilities and veterans. Alternative formats of this ad can be provided upon request for individuals with disabilities by contacting the ADA Coordinator at: email@example.com.
The University of Colorado is one of the largest employers in Boulder County and offers an inspiring higher education environment and excellent benefits. Learn more about the University of Colorado by visiting https://www.cu.edu/cu-careers
Monday, November 25, 2019
This morning, we celebrated our last class of the semester in the Community Justice Clinic. We ate cupcakes and reflected on the students’ work for clients. The students signed the flag that hangs in my office, joining every other student who has worked in the CJC.
This semester, these ten brilliant students and I worked on twenty-nine matters for nineteen clients. Their matters involved clients, projects, and laws in the US and thirteen other nations on four continents.
Across our work, these students worked with clients to build sustainable and compliant nonprofits doing critical work in communities with great need; to address homelessness and housing in LA and Malibu (the defining issue of our generation in this place); to support a global network of pro bono lawyers combining their capacity for high impact work on human rights and human dignity; to promote sustainable, healthy, and necessary agriculture projects nationally and in LA neighborhoods; analyze our own nation’s human rights compliance on the border (and finding it lacking); to evaluating legal responses to human trafficking and slavery in South Asia and many other places; to promote access to health care for women in east and west Africa; and to build organizations that increase access to education and develop leadership and power for high school kids in tough parts of LA.
These projects helped lay the foundation for future engagements to address human trafficking and slavery in the Americas, to expand health resources for women in Central America, to build supporting partnerships with Black Farmers in the Deep South.
I’m always grateful and astonished by the work our students do and the clients they serve.
Tuesday, November 19, 2019
The Sleeping Lady Resort (Leavenworth, WA) on the ancestral land of the Yakima and Wenatchi tribes provided a stunning mountain backdrop and intimate meeting space for the Northwest Clinical Conference November 8-10, 2019. We paused to breathe, reflect, and plan for the year to come. We shared and learned from different schools, different disciplines, and different countries. We brainstormed and strategized. We nourished our minds and bodies (the food was not exaggerated). We walked, listened to poetry, sang, and embraced new mottos complete with stickers ("Transcend the Bullshit.") Our northwest clinical colleagues kindly welcomed those of us who work outside the traditional boundaries of the Northwest. The founder’s quote on the back page of the resort’s notebook was spot on:
“I want people to leave here and feel as though they can change their corner of the world.” – Harriet Bullitt
Many thanks to all of the planners!
Thursday, November 7, 2019
Cross-posted from CLEA's series on Social Justice in Legal Clinics.
At the 2014 Clinical Conference, Professors Donna H. Lee, David J. Reiss, Carol M. Suzuki, and I presented a concurrent session entitled: “Just Do It? Whether to Incorporate Social Justice Theory in Every Clinical Experience and If So, How?” In this session, we explored how social justice is implicit in any clinic’s casework. We also thought it might be helpful to provide a means to examine the elements of social justice that may arise in a clinical context recognizing that students come to clinics with differing levels of commitment to social justice. In light of the proliferation of clinics that do not focus on poverty law or represent poor clients, such as some transactional clinics, securities arbitration clinics (representing low-income investors against Wall Street brokers), intellectual property clinics and tax clinics, we presented and explored pedagogical rationales for incorporating social justice into these clinics and critically examined what techniques for doing so are effective.
At the session, we distributed the attached “Social Justice Audit for Your Clinic,” a guide to review systematically a clinic or externship to determine whether or not it explicitly addresses social justice issues and, if not, where it could address these issues.
Two trends make this topic timely. The private sector is increasingly demanding that students graduate “practice ready,” and there has been a push to incorporate pro bono work into law schools to fulfill bar admission requirements. These trends may lead to an increasing number of clinical students who are not interested in pursuing a career in government or non-profits, but are more focused on learning skills and fulfilling a pro bono requirements.
We hope the audit guide is helpful, and invite your thoughts: firstname.lastname@example.org.
Thursday, October 31, 2019
Once again, so many of our incredible clinical colleagues have produced a number of important and timely articles. The full list along with ssrn or other links are below.
ASYLUM AND IMMIGRATION
Jaclyn Kelley-Widmer and Hillary Rich: A Step Too Far: Matter of A-B-, "Particular Social Group," and Chevron, Cornell Legal Studies Research Paper No. 19-30. This paper describes the 2018 Attorney General decision in Matter of A-B-, a case that severely reduced protections for asylum seekers fleeing gender-based violence. Using statutory interpretation, we argue that A-B- is a misinterpretation of the refugee definition term "particular social group" and does not merit Chevron deference.
Jason Cade: Restoring the Statutory Safety-Valve for Immigrant Crime Victims: Premium Processing for Interim U Visa Benefits, 113 Nw. U. L. Rev. Online 120 (2019). This essay focuses on the U visa, a critical government program that has thus far failed to live up to its significant potential. Congress enacted the U visa to aid undocumented victims of serious crime and incentivize them to assist law enforcement without fear of deportation. The reality, however, is that noncitizens eligible for U status still languish in limbo for many years while remaining vulnerable to deportation and workplace exploitation. This is in large part due to the fact that the agency has never devoted sufficient resources to processing these cases. As a result, the potential benefits of the U visa remain under-realized and communities are left less safe. In an era of sustained focus on enforcement and increased instability within immigrant communities, the situation becomes ever more urgent. This Essay introduces and defends a simple administrative innovation that would dramatically improve the process: a premium processing route for interim approvals and employment authorization. Although our proposal cannot resolve all the underlying problems, it is pragmatic, easily implemented, and superior to the status quo.
Lindsay M. Harris: Withholding Protection, 50.3 Columbia Hum. Rts. L. Rev. 1 (2019). Exploring split-second decisions made by CBP officers at our border to deny access to asylum protection and render individuals eligible only for withholding of removal. Considering the use of body-worn cameras to provide a measure of process and oversight.
Jean C. Han: The Good Notario: Exploring Limited Licensure for Non-Attorney Immigration Practitioners, 64 Vill. L. Rev. 165 (2019). This article proposes a way to safely and significantly close the justice gap for immigrants in the United States on a more effective scale: to harness an existing resource and call for the accreditation of non-attorneys through more robust regulation by the Department of Justice.
CLINICAL AND LEGAL EDUCATION
Carolyn Grose & Margaret E. Johnson: Braiding the Strands of Narrative and Critical Reflection with Critical Theory and Lawyering Practice, 26 Clinical L. Rev. 203 (2019). This Essay builds off of our previous work on narrative and critical reflection, including LAWYERS, CLIENTS & NARRATIVE: A FRAMEWORK FOR LAW STUDENTS AND PRACTITIONERS. Lawyers with clients braid together narrative, critical reflection and normative theory in a double-helix spiral to create normative narratives that further their clients' goals and strive toward justice. Critical reflection and narrative theory work together to guide us to ask questions and broaden our perspectives in gathering information and constructing cases and projects. By intentionally adding in the strand of normative theory, comprising client-centeredness, justice and professionalism, and critical theory, we create a spiral of lawyering focused on the client, aware of power dynamics and attentive to structural forces, designed to achieve client's goals, and consistent with making the world a more just place. This Essay walks through each component of the double-helix spiral and explains how they work together to create normative narratives.
Jason Cade: Teaching Tomorrow’s Lawyers Through a (Semi-)Generalist, (Mostly-) Individual Client Poverty Law Clinic: Reflections on Five Years of the Community Health Law Partnership, 53 Ga. L. Rev. Online 143 (2019). Design options when starting a live-client clinic from scratch can be somewhat overwhelming. Should the clinic focus on systemic impact or individual representation? Appellate work or hearings? Should the clinic specialize or cover multiple legal issues? Another set of issues concerns how the clinic should find and accept its clients, and whether students should have a role in the intake process. The list of choices goes on. In this Essay, written for the Georgia Law Review’s Online Issue celebrating 50 years of clinics at the University of Georgia School of Law, I describe how I have navigated these and other choices in designing the Community Health Law Partnership Clinic (Community HeLP), which just completed its fifth year of operation. My experience suggests that there may be significant pedagogical benefits to forging a middle-path through some of the central divides in clinic design. Specifically, there are deep service and learning opportunities for students who engage in a combination of individual representation and larger advocacy projects concerning multiple — but not unlimited — areas of poverty law. This Essay unfolds as follows. Part I describes the origin and development of Community HeLP in its first five years. Part II outlines the trade-offs between specialization and generalization, and evaluates the middle path thus far taken by Community HeLP. Part III then explores the value of a clinic that primarily engages in individual representation, but in which students also take on larger advocacy projects that flow from the clinic’s case work.
Jeffrey R. Baker, Christine E. Cerniglia, Davida Finger, Luz E. Herrera, JoNel Newman: In Times of Chaos: Creating Blueprints for Law School Responses to Natural Disasters, 80 La. L. Rev. __ (Forthcoming 2019). Drawing on their experiences in responding to natural disasters, the authors examine the legal needs and community contexts of natural disasters, describe the distinct responses to natural disasters in their clinics and schools, offer methods and models for disaster response, suggest best practices, and consider systemic and justice needs in these moments of crisis and rebuilding.
Clinical Legal Education Association Committee for Faculty Equity and Inclusion: The Diversity Imperative Revisited: Racial and Gender Inclusion in Clinical Law Faculty, 26 Clinical L. Rev. 127 (2019). This article describes trends in the racial and gender composition of clinical faculty since 1980. The percentage of people of color has grown from 10% to 21%, but the percentage of Black, Latinx, and Indigenous faculty has been stagnant. Women were underrepresented on clinical faculties in the 1980s, but now outnumber men in clinical faculty positions. The article recommends better data collection and best practices for more inclusive clinical faculty hiring and retention.
Robert Dinerstein: The Clinical Law Review at 25: What Hath We Wrought?, 26 Clinical L. Rev. 147 (Fall 2019). This article takes a look at the Clinical Law Review's 25-year history and examines the extent to which it has implemented the visions of clinical scholarship that some of those involved in its founding had for it.
Robert Kuehn: A Study of the Relationship Between Law School Coursework and Bar Exam Outcomes, 68 J. Legal Educ. (forthcoming 2019). This article reports the results of a large-scale study of the relationship between experiential and bar-subject coursework and bar exam outcomes. It finds that the number of experiential courses or credits taken by a student did not correlate with passage, positively or negatively. Enrollment in bar courses correlated positively, but modestly and only for students who are at heightened risk of failure. The results indicate that efforts to improve bar passage by capping experiential credits are not supported by empirical evidence.
COMMUNITY ECONOMIC DEVELOPMENT AND TRANSACTIONAL LAW
Jennifer S. Fan: Woke Capital: The Role of Corporations in Social Movements, 8 Harv. Bus. L. Rev. (forthcoming). The contribution of this Article is three-fold: it discusses how court cases and changing norms about the role of the corporation in society led to the rise of the modern business corporation, which in turn laid the groundwork for corporations’ involvement in social movements; provides an original descriptive account of the role of corporations in social movements using three case studies and the ways in which corporations have helped or hindered such movements; and tackles the underlying normative question about the appropriateness of the involvement of corporations in social movements in light of the legal framework in which it resides. This Article concludes that despite the perils, corporate law holds the promise of being a force for social change.
Jennifer S. Fan: Employees as Regulators: The New Private Ordering in High Technology Companies, Utah L. Rev. (forthcoming). This Article builds upon my prior work on the role of corporations and social movements, and analyzes how employees in high technology companies have redefined the contours of private ordering and, in the process, have also reimagined what collective action looks like. Because these workers are in high demand and short supply, they are able to affect private ordering in a way that we have not seen before. As a result, they have the potential to be an important check on the high technology sector.
Ted De Barbieri: Lawmakers as Job Buyers, 88 Fordham L. Rev. 15 (2019). Discusses attempts by state and local governments to influence private business location decisions for large employers, detailing policy proposals for state and local govts to mitigate associated risks.
Ted De Barbieri: Urban Anticipatory Governance, 46 Fla. St. U. L. Rev. 75 (2019). Placing focus on involving the public before large urban redevelopment projects are approved can improve the quality of those projects and their ability to respond to future challenges.
Ted De Barbieri: Connecting Community Control of Infrastructure and Economic Development with Race and Privilege, 28 J. Aff. Hous. & Cmty. Dev. L. __ (forthcoming 2019): This brief essay will address the connection between community control of local development and race and privilege within the context of community economic development.
Ted De Barbieri: Thematic Overview: Race, Place, and Pedagogy in Achieving Access to Justice Through Community Economic Development. 28 J. Aff. Hous. & Cmty. Dev. L. 467 (2019). Through discussion groups at the AALS Annual Meetings in 2017, 2018, and 2019, the annual Transactional Clinics Conference, and elsewhere, scholars and practitioners have advanced the conversation in a meaningful way. What follows here is a brief thematic overview of the discussion that occurred in January 2018, and a synopsis of the abstracts that follow.
Rachel E. Deming: Protecting Natural Resources - Forever: The Obligations of State Officials to Uphold "Forever" Constitutional Provisions, 36 Pace Envtl. L. Rev. 202 (2019). This Article analyzes the attacks on Florida’s constitutional conservation lands program since the election of a governor and state legislature opposed to environmental regulation in 2010 – a precursor to current happenings at the federal level under the Trump administration. I examine this issue of deliberately violating constitutional requirements through the lens of state constitutional provisions that protect natural resources, focusing on Florida and New York. Both states have explicit protections for conservation and forest lands.
Jason Parkin: Dialogic Due Process, 167 U. of Pa. L. Rev. 1115 (2019)
J.D. King: Privatizing Criminal Procedure, 107 Geo. L. J. 561. Many states now impose a surcharge on defendants who exercise their constitutional rights to counsel, confrontation, and trial by jury. As these “user fees” proliferate, they have the potential to fundamentally change the nature of criminal prosecutions and the way we think of constitutional rights. This intrusion of market ideology into the world of fundamental constitutional rights has at least two broad problems: it exacerbates structural unfairness in a system that already disadvantages poor people, and it degrades how we conceive of those rights. This Article proposes solutions to ameliorate the harshest effects of these rights-based user fees but also argues for the importance of resisting the trend of the privatization of constitutional trial rights.
Dustin Marlan: Beyond Cannabis: Psychedelic Decriminalization and Social Justice, 23 Lewis & Clark L. Rev. 851 (2019). This Article provides background on psychedelics and a historic overview of the laws surrounding them. It then considers several potential justifications for decriminalizing psychedelics: (1) medical value; (2) religious freedom; (3) cognitive liberty; and (4) identity politics. Lastly, the Article proposes a reframed justification rooted in principles of social justice, namely neurodiversity.
Jenny Roberts: Collateral Consequences of Criminal Conviction: Law, Policy and Practice (Third Edition), MARGARET COLGATE LOVE, JENNY ROBERTS & WAYNE A LOGAN, COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION: LAW POLICY & PRACTICE (2018-2019 ed. 2018). This book covers general types of collateral consequences, attorneys’ duties regarding consequences, constitutional challenges to consequences, access to and the use of criminal records, regulation of employment and occupational licensing, and restoration of rights after a conviction. Insights on practice guidance, historical background and future trends are discussed.
EDUCATION AND SCHOOLS
Kate Sablosky Elengold: The Investment Imperative, 57 Hous. L. Rev. 1 (2019). This Article names and identifies the “investment imperative” as the widely-held belief that higher education is necessary to increase one’s financial prosperity and social standing in America. Drawing on interdisciplinary scholarship, empirical studies, and original interviews with student loan borrowers across the country, this Article argues that the investment imperative drives and distorts students’ financial behaviors and decisions in ways that leave students vulnerable to exploitation and ignore the effects of systemic inequalities related to race, gender, and class.
Emily Suski: The Title IX Paradox, 108 Calif. L. Rev. __ (forthcoming 2020). This article argues that the courts’ assessments of Title IX’s actual notice standard create an impossible paradox for students suffering sexual harassment in the public schools. Drawing on empirical research in behavioral psychology and child and adolescent neuroscience, it contends that the courts require students to make particularized reports of their sexual harassment they naturally cannot make.
Claire Raj: Disability Law as an Agent of School Reform, 94 Wash. L. Rev. (forthcoming Dec. 2019). This article critiques recent class action litigation aimed at expanding disability rights coverage for students who have experienced “complex trauma.”
Deirdre M. Smith: Keeping It in the Family: Minor Guardianship as Private Child Protection, 82 Conn. Pub. Interest L. J. 51 (2019). Minor guardianship has been transformed from a probate tool used to protect orphans’ property interests to a strategy to keep children out of foster care when a parent is in crisis and to address their care within the family as a form of “private child protection.” The article examines the implications for children, parents, and relative caregivers of this use of guardianship and proposes changes to better serve the needs and interests of these families.
Lisa Martin: Litigation as Parenting, 95 N.Y.U. L. Rev. (forthcoming 2020). This Article proposes that constitutional doctrine establishing parents’ protected decision-making authority should make parents the default representatives for their children in federal civil litigation under Federal Rule of Civil Procedure 17(c).
Josh Gupta-Kagan: America’s Hidden Foster Care System, 72 Stan. L. Rev. __ (forthcoming 2020). Critically examines the common child protection agency practice of causing changes in children's physical custody by demanding that parents agree to "safety plans" calling for others to take their children, and recommends various due process and administrative oversight reforms.
Deborah N. Archer: The New Housing Segregation: The Jim Crow Effects of Crime-Free Housing Ordinances, 118 Mich. L. Rev. 1 (2019). Crime-free housing ordinances are local laws that either encourage or require private landlords to evict or exclude tenants who have had varying levels of contact with the criminal legal system. Though formally race neutral, these laws facilitate racial segregation in a number of significant ways. The Article contends that crime-free housing ordinances enable racial segregation by importing the racial biases, racial logics, and racial disparities of the criminal legal system into private housing markets. While scholars have examined the important role local laws played in effectuating racial inequality, they have not paid attention to crime-free housing ordinances. In addition to foregrounding how crime-free housing ordinances reinforce and perpetuate racially segregated communities, this Article proposes an intervention: a “segregative effects” claim, an underutilized cause of action under the Fair Housing Act of 1968, to challenge this segregative impact. While this intervention would not end the pervasive nature of housing segregation across the United States, it could eliminate at least one of the causes of this persistent problem: a body of law whose formal race neutrality has obscured its racially segregative effects.
Deborah N. Archer: Exile from Main Street, Harv. Civ. Rts. – Civ. Liberties L. Rev. (2019). This Article examines how the entanglement of policing-based housing policies and the criminal legal system threatens to push already marginalized people further to the edges of society, while also circumscribing the mobility of people of color who have the means and desire to live in integrated spaces. The Article encourages a more holistic analysis of these policies and a de-coupling of the criminal legal system from housing policy to prevent unnecessary burdens on the “right” to housing.
Nadiyah J. Humber: In West Philadelphia Born and Raised or Moving to Bel-Air? Racial Steering as a Consequence of Using Race Data on Real Estate Websites, Hastings Race & Poverty L. J. (forthcoming 2019). Current fair housing laws are not entirely equipped to deal with housing discrimination on the internet, particularly the practice of racial steering. My article examines real estate websites, like ZillowGroup, and suggests that race data that has been posted on these platforms are problematic. Two recommendations for addressing the use of race data on these websites include using discriminatory effect theory as a litigation strategy and amending the FHA to cover online real estate marketplaces.
TAX AND NON-PROFITS
Jaclyn Fabean Cherry: Nonprofit Governance: Who Should be Watching? A Look at State, Federal and Dual Regulation, 13 Ohio St. Bus. L. J. 145 (2019). Recent scandals in the nonprofit sector have once again called into question the issue of nonprofit governance. Who is governing these organizations and are they doing so appropriately? Who is regulating and what law applies — federal, state, or both? This Article discusses nonprofit governance, board of director fiduciary duty, and federal, state, and common law as they pertain to nonprofit governance suggesting that dual jurisdiction with established roles and mandatory information sharing may work best.
WOMEN AND THE LAW
Jennifer S. Fan: Innovating Inclusion: The Impact of Women on Private Company Boards, 46 Fla. St. U. L. Rev. 345 (2019). This Article documents the exclusion of women from the boards of nearly all the major private high technology companies currently influencing American business, and it explains why this male-only hegemony matters. It then offers a new paradigm, the innovation imperative, for creating a business culture in which people of all genders can make valued contributions. It analyzes two potential arenas for change: the legal and business realms.
Tanya Asim Cooper: #SororityToo, Mich. St. L. Rev. (forthcoming 2020). Sexual violence is an epidemic affecting millions of students, and those who participate in collegiate Greek life are especially vulnerable. As social societies bent on secrecy, Greek life hides violence in its midst. Laws and campus policies when accessed offer little help to victims, and often secondarily traumatize them. Publicized scandals on campus and social media campaigns, however, have raised awareness and sparked public outrage against the widespread problem of sexual violence and high-risk Greek life. Systems change theory offers a useful framework to reform high-risk Greek life from many angles: education, reporting, litigation, and collective action of its system actors. Effective strategies exist to create safer Greek organizations for students but without reform, we will continue to jeopardize the education and health of millions of students.
Wednesday, October 23, 2019
We’re having a big week at Pepperdine Law. Our alumnus, Rick Caruso, has donated $50 million to the law school with commitments for another $50 million over the next decade. This would be big enough news, but we are excited and grateful that he and the law school are committing these resources to scholarships for underrepresented students and loan forgiveness for students in public interest and public service careers. As our slogan says, we have a mission of preparing students for lives of purpose, service, and leadership. It’s a rare and good moment to watch all of these interests align in such a significant way.
We’re in an exciting season in many ways while we navigate toward national excellence and a deep commitment to our missions and communities. This year, we’re offering eleven, diverse clinics, several practicums with regional partners, and an ever expanding national and global externship program. These collaborate with the Sudreau Global Justice Program, our Global Programs, the Palmer Center for Entrepreneurship and the Law, and a robust stipend program for students in summer public interest work.
This all comes during years of reduced class sizes, so our clinical opportunities for students are greater than they ever have been. With more diverse students with greater scholarships and more opportunities for debt relief, we hope that our training and teaching yields ever greater fruit for justice, equity, inclusion, community development, and the rule of law.
Legal education, law practice, and the justice system often stoke cynicism and skepticism. There’s a lot to fix. I’m not immune to anger, frustration, and creeping despair. But in this polarized age of conflict, when the Republic shakes under the weight of corruption, racism, nationalism, and dishonesty, there’s never been a better time to set our sails to the wind and get to work.
It’s a good day at our law school. At the risk of seeming maudlin and sentimental, I am mindful of our university motto, from the Gospel of Matthew, “Freely ye received, freely give.” I am feeling that today. Even in dark days, we have bright gifts to receive and give, and we seize the moments we are given to carry on the important work of education, advocacy, empowerment, and justice.
As Rick said in the LA Times today, “If I get a bunch of these really smart lawyers who understand real social justice and real fairness in life, and you put them back in the system, I think it’ll be a real game changer.”
Tuesday, October 22, 2019
CLEA co-Presidents, Lisa Martin and Danny Schaffzin, shared this note today with CLEA's updated statement on the U.S. New Rankings for Clinical Programs and its suggested guidance for voters:
The Clinical Legal Education Association (CLEA) recognizes that many who receive U.S. News & World Report ballots in their capacity as clinical program directors find this ranking process uncomfortable. There are a number of problems with the ranking of clinical programs. First, it places us in competition with each other, when we as a group see ourselves in a shared struggle for social justice, equality, and improved legal education. Second, there are no articulated factors for ranking clinical programs, so the voting can be arbitrary to a degree. Third, some schools may unfairly suffer because they do not have the budget or the support of their administration to market their program or send their clinical faculty to annual conferences.
While we might wish the rankings did not exist or hope to solve the collective action problem that bedevils creative responses, the USNWR rankings have remained a feature of our collective landscape. So, since rankings presently exist, what can we do now as faculty who teach clinics?
CLEA, through its Board of Directors, urges those ranking clinical programs to focus on factors that promote the principles for which CLEA advocates, namely the increased presence of clinical education (law clinics and externships) in law school curricula, security of position for clinical faculty, and diversity and equity. In evaluating clinical programs, CLEA urges voters to consider: 1) the number of law clinic and externship slots available relative to the student population at a school; 2) the breadth and quality of clinical curricular offerings available to students; 3) the school's security of position, academic freedom, and governance rights for faculty who teach clinics or externships; and 4) the extent to which the school has committed to diversity and equity in hiring for clinical positions with long-term security and retaining and promoting diverse clinical faculty.
CLEA urges voters to score only those programs for which they have sufficient information to make informed decisions. It urges voters to choose the “No Answer” option when they have insufficient information to assess a particular clinical program.
Last, CLEA also urges those who receive ballots to consult their clinical colleagues for their views to increase the range of informed opinions reflected in the balloting.