Clinical Law Prof Blog

iDon't type my class notes

A recent Washington Post article (here) outlines findings of a joint Princeton-UCLA study that appeared in Psychological Science (here) in April.  The study found, in the smallest of nutshells, that students who take notes longhand achieve better learning outcomes than students note-taking electronically.  It also seems to find that analytical skills are heightened in longhand note-takers, potentially because the process of taking notes with pen and paper necessitates some analysis of the material because one can't write it all down, while mindlessly transcribing quotes is much easier at 60+ WPM.

Our summer semester is just starting at Faulkner Law, and this week Prof. John Craft and I have been busy with an intensive "boot camp" training for our summer clinic students.  This afternoon, I took the students to OnePlace Family Justice Center, where our Family Violence Clinic conducts initial client intake and conducts client meetings.  Our office there is large and informal, with a couch, a small round conference table, and a desk.  No student desks, no PowerPoint, none of the traditional classroom trappings.  It is (and is intended to be) a law office. That is where we met today.

The training consists of reviewing intake procedures, studying the Alabama Protection From Abuse Act, and a brief introduction to the psychology of abusers and survivors.  I've done the training in a classroom before, and the students would all take out their laptops and iPads to tap out the pearls of wisdom rolling from my tongue.  It's certainly a boost to the ol' ego to have someone taking down your every word, but I find that I end up repeating myself a lot more and answering a lot of questions later on, when students have finally processed the information. 

In my session this afternoon, there were no electronic devices.  My students had paper handouts, took notes on them, and asked some of the most thoughtful and insightful questions I've been asked.  I could see them moving from an information gathering state-of-mind to a preparing-to-practice state of mind almost instantaneously. Even to my clinician's brain, the impact of teaching this material outside the traditional setting was impressive.

The findings of the Mueller/Oppenheimer study will carry over for students beyond graduation--and bar passage.  It's important for all of academia, and law school in particular, to focus more attention on demonstrating responsible and effective use of technology to our students. Today's super-typists will still be tomorrow's lawyers one way or another, but will they be able to sit down, relate to a client, and focus on realtime problem-solving?  Will they feel comfortable truly listening to their clients, absent the distraction of note-taking to the point of taking dictation?  Will they bill any hours the day their computer gives them the blue screen of death? Are we (institutionally) providing them with learning experiences in every course that facilitate their ability to do those things?  After today, I'm rededicated to making sure of it.

Good Teaching: Day 171

Today is the 171^st day of school at my daughters’ elementary school.   I know this because our Second Grade teacher sends out an email to all of her classroom parents every day to report on what they have done during the day.    It has been a gift, especially for parents familiar with fairly bland reports from their kids. 

“How was your day?” 

“Fine.”

“What did you do?”

“I don’t know.” 

“Anything interesting?” 

“No.” 

Here is some of her daily email for today, the 171^st day:

Happy Wednesday!

You have 4 things to return this week: yellow Field Day permission slip, $10 donation to go towards the inflatables, 3 pages of math homework and the stamped envelope for your child's 10 year letter. 

Friday is the last day to turn in a new toy for …. our project for Children's Hospital.

What did we do today?

double dose of Harry Potter

CGI Math

measuring and graphing activity-- the kids measured objects and showed the data on a line plot

Word of the Week-- the kids alphabetized ALL of their word of the week pages to be bound in a personal dictionary that will come home Monday with our last at-home project

Writer's Workshop

Language Arts--we "popcorn" read Brothers and Sisters and the kids worked on comprehension, vocabulary and phonics

Reader's Workshop

Have a wonderful night!

She does this every single day. 

Besides being good for teacher-parent collaboration, the pedagogy really is wonderful.   First, the teacher’s organization is incredible.   Of course, all good elementary school teachers need precise lesson plans, but Ms. H pulls off an astonishing and unrelenting feat to execute this every day.    As I have spent today planning for a new clinic course that meets for two hours, once per week, I stand amazed at this teacher who plans down to the minute for over six hours of teaching, five days per week, for 171 days so far.  

Second, she always demurs when I have praised her for these emails, saying that it only takes her a few minutes and that she has the kids’ help.   Not only does this further demonstrate her organizational discipline, it illuminates really good teaching.   At the end of each day, she asks the students to help her fill in the topics of her email, at once making them reflect on their day, helping them learn to communicate and organize, and preparing them for further reflection with the parents.  

Third, it creates accountability for her.   She has committed to this report to parents every day.  She is transparent and pleasant, but it also must generate continuing motivation on days when she must get exhausted.  Although we have never discussed it, I imagine that the looming email motivates her when she’d rather rest or let the kids goof off for a day.     

For this clinical professor, she first inspires me to consider the need for precise, detailed, relentless planning.   Second, she prompts me to integrate constant student reflection on the work of the day but also to invite the students into the work of the classroom itself, to bring them into the pedagogy and the method of the class.  Third, to volunteer to impose such a mechanism for accountability on oneself can be a very powerful tool to maintain the pace and productivity of the  school year.  

Let us all hail the elementary school teachers. 

Article of Note: “How May We Help? Perspectives on Law Librarian Support of Students in Law School Clinics”

Via Tamar Birckhead on the LawClinic listserv:

Virginia Neisler, a 2013-14 Graduate Assistant in [UNC's] law library and recent UNC Law graduate who just completed her Masters degrees in Library Science at UNC, has won the American Association of Law Libraries (AALL) Call for Papers Award in the Student Division! 

Her paper, “How May We Help? Perspectives on Law Librarian Support of Students in Law School Clinics,” was written as part of her Master’s requirements at the UNC School of Information and Library Science.  Sara Sampson, Deputy Director of [UNC's] law library, served as Virginia’s thesis advisor and praised Virginia’s work for expanding law library literature with groundbreaking analysis of open-ended interviews of clinic faculty around the country to identify best practices for law librarians to contribute legal research instruction and library collection development to support law students in the clinical setting. 

 Presently, it is unpublished but is available here:  Neisler. How May We Help (via listserv 5.28.14)

 

 

Thoughts on Mass Violence, Guns, Sexism, the Law and our Hearts

Last year, my friend, Dr. Chris Dowdy, and I had a dialogue about gun policy, violence and the effect of the law on hearts and minds.  Chris is a brilliant social ethicist and writer, and he asks good questions.  I made a note of it as a potential blog post here whenever it became timely again.   This was not a question of if it would be ever timely, because it would be inevitably current, soon enough. 

In the wake of the Isla Vista terrorism, I point back to that conversation on Chris’s blog and hope that it may be useful:

Yes, people will be violent. People will be cruel. People will murder and maim. Even so, we can and do make the means harder to obtain, and we make the means harder to obtain quite successfully. Automatic machine guns are illegal, and the shooters in Aurora and Newtown did not use them. Rocket-propelled grenades are illegal, and they were not the weapon of choice, because they are much, much harder to obtain. The FBI has been quite successful in keeping terrorists from bombing on American soil since 2001, because gathering the materials for a bomb and assembling it are illegal and because law enforcement is pretty good at enforcing the law.

We are not faced with a binary choice, to either flood the world with weapons or to ban them altogether. That choice is a failure of just and righteous imagination.

Also, this article by Laurie Penny is a strong and right diagnosis of what we saw last week at UCSB:  misogynist extremism.   The killer was a warped man, fed by sexist ideology, armed by society, and unleashed by a subculture that validated his fear.  

This is how extremism works. It takes the valid and substantial anger of the dispossessed and tortures it into something twisted. It promises the lost and despairing that they will have the respect and sense of purpose they have always longed for, if they only hate hard enough. 

As we seek justice and good teaching, we must confront the horror and injustice in our society and prepare our students and ourselves to understand and subvert it.   

Baker's Good Advice and Strong Suggestions for the Bar Exam

Law school graduation is one of the most anticlimactic moments of a student’s life. After years of study, students celebrate a massive achievement on the weekend, then start studying for the bar exam on Monday, knowing that they face months of sedentary stress and boredom, followed by the acute anxiety of the test, followed by months of waiting in suspension for results, followed by 40 years of work. It’s a drag.

I just received news that I passed the February administration of the California Attorneys Exam. This is my third bar in 14 years, so I feel like giving some advice to students climbing down into the bar hole.

Do what you do. The bar exam is an extraordinarily demanding test, but it’s just a test. After college, law school, entrance exams and finals, you know how to take a test. Whatever has gotten you to this point will work; you just need more of it. Do not abandon your study rhythms and techniques. Do not abandon what works for you in a panic for this last, big test. The task is not new, even if the volume, pace and stakes are on a steeper trajectory.

Be confident that you know what you know. You are facing a mountain of information to memorize and digest. You are relearning subjects and maybe learning new subjects from scratch. You do not have time to relearn and drill everything all the time. Rather, as you proceed through practice tests, measure the things you do well and not so well. If you are getting 80% of the Torts questions right, stop studying torts; you’ve got it. You won’t forget it. If you’re killing Con Law; set it aside for Property. Focus increasingly on the subjects where you’re weakest. Start with long outlines of everything, then narrow them progressively until you’re spending the last week drilling flash cards or lists of only the subjects where you’re weakest.

Get to know the test and practice it. In addition to your prep courses, consume all the information you can find on your bar’s website and elsewhere. Devour the bar’s study guides and old exams. Understand the game, the grading metrics, the weights and percentages. You can learn the law plenty well enough, but understanding the test is your secret weapon. You can and should eliminate all the surprises from the exam, except the questions themselves. Practice, practice, practice, and practice every element of the test. Time yourself and learn your pace. If you need to answer a question per minute on the MBE, practice it. If you need to write an essay an hour, practice it. If you are handwriting the test (like I did, see note infra), but you don’t usually handwrite anything, practice. You need to work on your handwriting, and you actually need to exercise the muscles in your shoulder, arm and hands to write for that long. It’s an endurance sport.

Take the simulated NCBEX MBE. About 4 – 6 weeks out from the test, block off a day to take the simulated MBE by the National Conference of Bar Examiners. It costs a little, but the psychological effect is worth it. Your prep courses will offer many practice exams, but there is no substitute for the real thing. Get a feel for real-live MBE questions to calibrate yourself and to compare your progress against the practice tests. It is scaled and timed, so I believe it is the best measure of your actual progress. It will either give you renewed confidence and peace of mind, or it will wake you up and give you increased motivation, which are both good for you. (Try not to freak out, though. Anxiety yields diminishing results.)

Rest for a day or two before the test. The test functions just like an endurance race. I am a runner and train for races throughout the year, and every coach, runner and article will advise the athlete to taper. Tapering is the gradual reduction of training and work in the run-up to a race so that you can start with fresh legs. For the test, rest your mind and your body. You will not forget what you learned, and you will be much, much sharper if you have gotten good sleep and cleared your head. This is not skating on your preparation; rest is the preparation. Be fresh for the test. Seriously, sharpen your No. 2s, get a good night’s sleep, and eat a good breakfast.

Don't forget the rest of your life. Take care of the people you love, and let them take care of you. Take breaks. Don't give up your exercise and fitness. Avoid excessive sugar and alcohol and stimulants. (Except caffeine; there's no such thing as too much caffeine.) Sleep in moderation. Inevitably, all of these parts of your life will degrade as you draw nearer to the test; don't sweat it. Just remember, the healthier you are, physically and spiritually, the better you'll do on the test.

Remove Distractions, Prepare for Everything, Avoid Decision Fatigue. On test day, remove all conceivable, foreseeable distractions that will create stress or impede your timely appearance at the test. Avoid decision fatigue. President Obama famously only wears blue or gray suits and has a certain number of shirts and ties and eats the same meals during the day, to save brain space to make real decisions. Do the same. Before you leave home the day before the test, pack and plan all your clothes and food for every day and time of the test. Make a list, make a chart, make a schedule. Lay out your clothes the night before. Set four alarm clocks. Take food for your hotel room so that you do not have to travel to restaurants before or during the test.

Although it may be more expensive, stay in a hotel adjacent to or within walking distance of the testing site. Arrive the night before, and do not leave. Do not drive to the test the morning of, if you can afford it. Do not risk traffic or accidents. In February, I parked my car in the hotel garage next door to the testing site in Pasadena and did not move it until I finished the test, three days later.

I also did not take elevators on test days, but took the stairs every time to avoid the risk of an equipment failure.

With thanks to my wife, I had a great bag of nonperishable but healthy food in the room so that I did not have to worry about it. Especially during the lunch break during the tests, you should not have to worry about standing in line with scores of other people strung out on fear and talking about the questions they just botched. At my second bar exam, in Alabama, seven years after law school, I ate PB&Js in the parking lot.

I also chose to write my exams instead of risking the complications of using my laptop and relying on internet service in the testing site. If my pen crashes, I have ten more at my seat. If the computer crashes, I would have been in a panicked crisis. In California this year, there were some limited IT issues during the test, and students had to shuttle back and forth to the proctors or to switch to writing and disrupt their flow. Problems are rare and getting rarer, but I was not willing to risk the distraction.

Play the odds. At the risk of being too cynical or cocky, look around the room and imagine the respective pass rate for the test you’re taking. Discount that rate for re-takers, then tell yourself that you’re at least as smart and talented as, say, 20% of the people in the room. Somebody is going to fail, but the odds are that it is not you, especially if you have put in the time, the effort and the miles to load this stuff into your head. You’re smart enough. You’re good enough, and, doggone it, people like you.

You are smart enough for this test, and you know that you are because you have completed law school. The test is about knowledge, but it is also about memory, timing, practice, calmness and sharp writing. Practice, practice, practice.

Time for Summer Writing

By now, most of us have donned our academic regalia for commencement and wished our new alumni well on their bar preparations and the launch of their legal careers.  Time to take a deep breath, plan your well-deserved family vacation, and drop off that seven-pound load of professional clothes at the dry cleaner (finally!).  We now have twelve weeks ahead of us before we start ramping up for the Fall 2014 semester.

Twelve weeks?  Not coincidentally, twelve weeks is just enough time to write a high-quality law review article.  Now you might think that as clinicians we are not bound by scholarship obligations, and at your school you might be right technically, but the fact remains that we have chosen to work in a profession in which scholarship, not practice, is the coin of the realm.  Thus, regardless of your school’s published criteria for the advancement of clinical faculty, you should consider using a substantial portion of your summer for scholarship so that your purse is full of academic currency.

If you want to get "rich" this summer, academically speaking, here are ten basic tips for productive writing:

1. Even though classes may have ended, do not change your schedule.  Go to the office every day, all day and write.  Our academic associate dean here at Willamette once told me that the first step to being a productive writer is putting your backside in your chair and keeping it there.
2. Block your time and be disciplined.  I remember reading that we are only highly productive for a few hours per day.  Identify what those hours are for you and schedule your writing blocks during those periods.  During your writing periods, turn off email and close the Internet browsers.  ALWAYS.  Do not open them until your writing time has ended.  Use the other four hours or so for less demanding work such as reading, researching, and answering emails.
3. Quantify your writing.  Some professors I know mandate that they write a certain number of words per day.  Others require that they write for a certain length of time.  Regardless of how you measure your output, set quantitative writing goals and allocate sufficient time to achieve them.
4. Set qualitative writing goals.  It is not enough to write a lot or even regularly.  You must improve your writing through researching, outlining, developing, drafting, revising, proofreading, and external editing and feedback.  Develop a 12-week writing plan that includes all of these stages to ensure that your work is high-quality.  A resource to help you can be found here. 
5. Don’t wait for days of uninterrupted time.  They will never come, or at least, not very often.  Even during the summer, requests for letters of recommendation and bar references continue to stream in, some clinic cases are still active, and many of us are engaged in summer teaching, supervision, and are presenting at conferences.  Do not let these prevent you from writing this summer.  When I first joined the academy, I read a book about how to be a successful professor.  It referenced a study that showed that professors who worked on their scholarship every day, even for just one hour, were far more likely to get tenure than those who wrote in blocks of uninterrupted time.  So write every day.
6. Ask for (and offer!) help.  I suspect that many doctrinal law professors are introverts and many clinical law professors are extroverts (which is what makes our conferences such a riot!).  The consequence of this is that we may need to develop writing partnerships or even writing support groups with whom we can talk about our writing, set goals, exchange drafts, and hold one another accountable.
7. Write your first draft from your own ideas.  One of the criticisms of my early academic writing is that my voice did not come through.  I was lacking confidence and so would hide behind third-party authorities and quotations from “experts.”  The suggestion of Martha Minow, Dean of Harvard Law School, for overcoming this very common characteristic in emerging academic writers is that we should write the first draft without reference to resources.  Simply write your own ideas down and then build out from there.  That way, your voice and ideas form the core of your piece.   
8. Tap into your passions.  At a workshop for new clinical professors, I remember being in a working group about scholarship led by Philip Schrag.  An intelligent young woman said that she did not have any expertise or ideas to share in scholarship.  Professor Schrag spent just seven minutes asking her about her experiences and background and identified 3-4 topics for law review articles based on her interests and experience.  Don’t undervalue your ideas and experiences.  If you need to brainstorm, call someone.  If you don’t know whom to call, call or email me (916-719-7796; [email protected]) and I will try to help you brainstorm or get you matched with a mentor.
9. Remember that the prime submission cycles are August and late January/February.  Plan to submit your summer work during those periods for the best placement.  ExpressO is a popular portal for submitting law review articles to numerous journals simultaneously. 
10. If you would like to present your article in a supportive and scholarly workshop before submission to a law review, consider applying to the Clinical Law Review’s Writers’ Workshop to be held at NYU Law on September 27, 2014.  The deadline for applying is June 30.  More information and the application can be found here.

Now, enjoy your summer and write on!

 

 

 

One of Inga's "Must See Movies" for the Summer

Below is a trailer for a movie that I am planning on seeing this summer...that is if I can find it within a 300 mile radius of Spokane, Washington.  "The Rules of Racism" is the third movie in the series "Hidden Colors" from New York Times bestselling author, Tariq Nasheed.  The previous two films in the series are "Hidden Colors: The Untold History of People of Aboriginal, Moor, and African Descent" (2011) and "Hidden Colors 2: The Triumph of Melanin" (2012).  

WARNING: If you watch this video on YouTube and glance below the video to the comments section, prepare to be outraged, amused, befuddled, disheartened and a host of other emotions...

  

 

Immigration Debates and a Theory of Love

I wrote earlier about a working theory of citizenship in an essay I have written for the 2014 Christian Scholars Conference.   The question for the session is whether and how Christian scripture and teaching could inform the policy of our present national debates on immigration reform.  We are addressing the issue to discern whether Christian scripture and teaching would require a policy that includes citizenship for presently undocumented immigrants.   This lightly edited excerpt includes some of my thoughts on the tricky project of deriving contemporary, civil policy from Christian religious teaching. 

 

(Two notes, first, I write this essay from an explicitly Christian perspective for dialog at the Christian Scholars Conference.   I do not believe that Christianity has an exclusive claim to wisdom, knowledge and conviction about love and justice, but that love and justice lie or should lie at the roots of all major traditions among people of faith.  Second, I treat this project of theology and policy with greater depth in my article, Trifling Violence:  The U.S. Supreme Court, Domestic Violence and a Theory of Love, 42 CUMBERLAND L. R. 65 (2012) )     

 

 

This project of deriving legal policy from scripture is fraught with risks of interpretation.  The Bible holds itself as many things, but rarely as a legal code, occasionally as case law, but never as a constitution.  If we Christians are to shape policy after Christian ethics, we should look to the principles revealed in the narrative of scripture, not seeking direct analogs to contexts and circumstances essentially foreign to our present. 

 

The principles that guide our policy must be those teachings that undergird the ancient, local policies; that is, love, human dignity, hospitality, service to the poor, advocacy for the oppressed, nourishment for the hungry.  The principles guiding us are reflected in the codified Mosaic law, illuminated by Christ, described by Paul, and explored in every tradition and religion.  They are the rule of love, the gospel of human dignity, the imago dei, agape and the Golden Rule.   Deriving contemporary legal policy from the ancient sacred texts, specifically from the Old Testament and the New Testament, is an interpretative journey to discern whether and how to articulate love in the law. 

 

Scripture does not provide a definition of justice, but it does give us many examples of justice in practice.   Justice in the scripture, Jewish and Christian scriptures, is a function of power and privilege, as those in positions of relative power over others act righteously and in love.   Justice in scripture rarely is getting what one deserves, but is the local and national use of power and resources for the benefit of the vulnerable and oppressed.   Justice is making broken relationships whole, restoring those who have been abused, punishing those who abuse, and bringing all things to reconciliation.   Justice in the Bible abhors divisions, caste and coercive hierarchy.  

 

Injustice is the rich exploiting the poor for their own devices and profit.   Injustice is the king taking a woman for his own and killing her husband because he can.   Injustice is the subjugation of the people for political gain.   Injustice is massing of wealth without sharing it with those who have need.  Injustice is ostracizing the weak, afflicted and foreigner from the community.   

 

Isaiah declares that God’s preferred fasting is “to loose the chains of injustice and untie the cords of the yoke, to set the oppressed free and break every yoke.   Is it not to share your food with the hungry and to provide the poor wanderer with shelter?” (Isaiah 58:6)

 

James admonishes the wealthy in his epistle, “You have hoarded wealth in the last days.  Look!  The wages you failed to pay the workman who mowed your fields are crying out against you.  The fields are crying out against you.  The cries of the harvesters have reached the ears of the Lord Almighty.” (James 5:3-4)

 

Jesus declares in Luke 4 that he is to fulfill Isaiah’s prophecy, “to preach good news to the poor. . . to proclaim freedom for prisoners and recovery of sight for the blind, to release the oppressed.”  This is justice, that we seek to liberate the oppressed, to take up the cause of the weak and vulnerable.    In Matthew 25 teaches that the Kingdom of God is those who visit those in prison, those who clothe the naked, those who feed the hungry.    This is an explicit view of justice in scripture, and it flows from the two greatest commandments.

 

All the law and the prophets hang on two commands, to love God and to love our neighbors as ourselves. (Matthew 22:37-39)   In Leviticus, Moses told the people to treat their fellows as themselves, and Jesus interpreted this expansively, teaching that everyone is our fellow, our neighbor. (Leviticus 19:18; Luke 10: 25 – 37)   Loving neighbors as selves finds articulation in the Golden Rule from the Sermon on the Mount, that we ought to do to others as we would have done to ourselves.  (Matthew 7:12) It is reflective and contextual:  If I were an immigrant without status, what would have I done to make my plight just?

 

Jesus rejects the class distinction of the Samaritan when naming him a neighbor, worthy of love at the highest level.  The Good Samaritan is a radical parable that destroys the barrier between the privileged citizen and the resident alien as a matter of theological principle.   If that is to be the basis of our law, then Jesus would have us welcome the immigrant into full inclusion in our system and society.

 

Isaiah prophesied of a day when the divisions established by the Mosaic Law would dissolve. (Isaiah 25:6-9)  There, on the mountain of the Lord, were no Hebrews, Assyrians, Egyptians or Philistines; they were just God’s people at God’s big table.     

 

These principles of love flow from the imago dei, the idea, rooted in the creation narrative, that every person bears the image of God.   Every human is in the image of God, and Jesus made the incarnation real, sealing the lesson that God is with us and is in us. 

 

Thus, if we are to seek guidance for legal policy in scripture, the answer is not in the code of the old law.  The guidance does not come from treating scripture as case law.  Rather, the guidance comes from Jesus’ descriptions of the Kingdom of God.   In the Kingdom of God, every human bears the image of God, so every human should be dignified as an image bearer.  Every human is to love every other image-bearer as they would love themselves.  Every person should seek justice, where the rich and powerful related and live with the poor and exposed as the rich would have done in their place.  

 

If legal policy is to flow from the Bible, from religious precepts and ethics, then all the law hangs on love.   Love is the root of the law, and love is the Golden Rule.   The instant issue of immigration then must be whether we citizens of this Republic would treat the migrant laborer as we would be treated.   If we are serious about deriving civil law from our religion, then we must consider how we would be treated by the state if we were driven by poverty to seek sustenance, shelter, opportunity, education and hope for our families.  

 

Reinhold Niebuhr suggests that the “love ideal” might be too aspirational to find purchase in real policy but that we should strive toward it:

 

    The love ideal which Jesus incarnates may be too pure to be realized in life, but it     offers us nevertheless an ideal toward which the religious spirit may move. . . .      Real  religion transmutes the social impulses until they transcend the limits set     them by     nature (family, race, group, etc.) and include the whole of human     community. . . .     The fight for justice in society will always be a fight.  But                wherever the spirit of  justice grows imaginative and is transmuted into love, a     love in which the interests of the other are espoused, the struggle is transcended     by just that much.

(Reinhold Niebuhr, The Ethic of Jesus and the Social Problem, in LOVE AND JUSTICE: SELECTIONS FROM THE SHORTER WRITINGS OF REINHOLD NIEBUHR (D.B. Robertson, ed., 1957)(originally published in Religion in Life, 1932)).

 

Paul Ramsey provides a test by which we might measure our civil, political and legal progress toward the metric of love:

 

    Christian love formulates social policy by taking into account every concrete element     in the situation which determines how in fact some actual good may be done for the     neighbor in the state of civil society and the relationship among people existing at     present.

    . . . .

    Whether conforming to the old or helping to create a new mode of conduct, a     Christian . . . subjects everything to this imperial test: let every [person] now consult     [the] neighbor’s need. This may call for respecting the tried and tested ways of doing     things. When however we observe how these have failed in so many ways to keep     pace with the world in which we and our neighbors live, who can doubt that     Christian love today requires of us willingness to take some new departure? Even     the humblest Christian .... must rapidly become willing to have the structures and     customs of [the] world otherwise than they now are.

(Paul  Ramsey, BASIC CHRISTIAN ETHICS 341, 342-43, 345-46, 351 (1950)).   

 

The best framework for a Christian legal policy is not command, example or necessary inference or reading the Bible as constitution.  Rather, the policy should arise from the Golden Rule.   If we were in their place, how would we treat ourselves?   Very likely, we would like the hope of citizenship in our adopted land, to participate fully in the life in the nation, to make our investment count.  

 

The Torah may have permitted resident aliens, and the gospel may be silent on the policy.   The gospel is not silent on the necessity of love.  The gospel is the constant expansion of inclusion into the Kingdom, the reduction of barriers among the people.   From Abraham’s clan, to the People of Israel, to the coming of Christ, to the inclusion of the Gentiles, to Paul’s declaration that there are no divisions of gender, race, nationality and economics in the church, the arc of history bends toward inclusion, dignity and equality.   Paul describes our ministry of reconciliation, through which all people are drawn together as they are drawn to God.   Jesus and the gospel, the coming kingdom,  intentionally and expressly include those who are on the margin, the perimeter, the outside, the weak, the vulnerable, the abused, the poor, the outcast. 

 

If our American immigration policy is to conform to the gospel, then we have little choice but to welcome the immigrants into citizenship among us who enjoy it by the privilege of our birth.

 

Reckoning the minimum amount of justice to be done in policy is extraordinarily difficult, and it should not be our objective.  Rather, we should seek expansive justice, justice that empowers, embraces and welcomes the poor to our prosperity.   We should honor those who would risk so much to leave their homeland to find peace, sustenance and hope among us.     

 

Call for Nominations: SALT Great Teacher Award and M. Shanara Gilbert Human Rights Award

Via Peter Joy on the LawClinic listserv:

 

SALT holds an annual dinner each year during the January AALS meeting. Mark your calendars: This year the dinner will be on January 4, 2015 at a location TBA in Washington D.C.

 

A highlight of the dinner is the presentation of SALT'ʹs Great Teacher Award and the M. Shanara Gilbert Human Rights Award. SALT invites you to submit a nomination for one or both of these awards.

 

If you would like to make a nomination, please submit the name of the person or organization and a 1-2 page statement supporting the nomination, along with the name of the award. The statement should explain why the person or organization deserves the award, including how they contribute to the values of SALT. You must be a current member of SALT to make a nomination. You can check the status of your membership with Blake Johnson in the SALT Office (702) 895-2476.

 

Please submit all nominations by May 31, 2014, to Margaret Kwoka at [email protected] and Blake Johnson at [email protected]

 

We strongly encourage you to re-nominate candidates who have been nominated in past years, as we always have many more worthy nominees than we can honor each year. 

 

2014 SALT Great Teacher Award: The Great Teacher Award recognizes individuals or institutions that have made especially important contributions to teaching, legal education, and mentoring.

The following is a list of previous recipients of the Great Teacher award, starting with the most recent: Holly Maguigan, Margaret Montoya, Keith Aoki, Phoebe Haddon, Francisco Valdés, Steve Wizner, Fran Ansley, Stephanie Wildman, Eric Yamamoto, Howard Glickstein, Bill Quigley, Charles Lawrence & Mari Matsuda, SALT Founders, Sylvia Law, Marjorie M. Schultz, Anthony Amsterdam, Jim Jones, W. Hayward Burns, Barbara Aldave, Trina Grillo, Norman Dorsen, Cruz Reynoso, Mary Jo Frug, Marilyn Yarborough,

Rhonda Rivera, University of Wisconsin Law School, Howard Lesnick, Barbara Babcock, Clinton Bamberger, CUNY Law School, Derrick Bell, Herma Hill Kay, Charles Black, Arthur Leff, Harry Edwards, Ruth Bader Ginsburg, Rennard Strickland, Thomas Emerson, Charles Miller, David Cavers.

 

M. Shanara Gilbert Human Rights Award: SALT recognizes the contributions of activists whose passion for social justice has driven their lives. The M. Shanara Gilbert Human Rights Award is named

after a CUNY Law School professor who dedicated her life to equality, equity, and justice. She was killed at the age of 45, along with Haywood Burns, in a car accident while visiting South Africa. In her memory, SALT honors those who believe in fighting for a better world. The Award is not bestowed annually, but when there is an exceptional person or institution whose struggle for human rights requires recognition from our community. Past M. Shanara Gilbert Honorees, starting with the most recent: Florence Roisman (2014); Norris Henderson (2013); Prison Law Office (2011); Rhonda Copelon (2009); Jennifer Harbury and Sister Dianna Ortiz (2008);

Joshua Rosenkranz (2007); David Cole and Center for Constitutional Rights (2006); Eva Patterson (2005); Congressman John Lewis (2004); Steven Bright and Bryan Stevenson (2003); Honorable Barney Frank (2000); Dr. Jesse N. Stone, Jr. (1999); and M. Shanara Gilbert (1997).

Second National Symposium on Experiential Education in Law

Via Patricia Voorhies:

The Second National Symposium on Experiential Education in Law, organized by the Alliance for Experiential Learning in Law, will be June 13 - 15, 2014, at Elon University School of Law in Greensboro, North Carolina.  From the website:

The symposium will focus innovations to improve legal education and enhance the relevance of lawyers in the rapidly changing 21st century. Presentations and discussions will emphasize effective and integrated experiential education to accommodate financial and structural challenges in law and legal education, addressing the following questions:

• What do we mean by experiential learning?
• What are the → Innovations → Barriers → Successes in producing integrated and effective curricula?
• What ideas have the Alliance Working Groups developed since the Inaugural Symposium?
• What perspective can other disciplines provide regarding our efforts?

The symposium is being hosted by the Alliance for Experiential Learning in Law and Elon University School of Law. Visit law.elon.edu/aell to register and to learn more about the symposium. The registration fee is $100. Contact Jane Law at Elon University School of Law with any questions related to registration: [email protected] or (336) 279-9325.

FEATURED SPEAKERS

• William C. Hubbard, President Elect, American Bar Association; Chair, Board of Directors, World Justice Project; Partner, Nelson Mullins Riley & Scarborough
   
• Bill Henderson, Professor of Law, Indiana University Maurer School of Law; named the second most influential person in legal education by National Jurist (2012 & 2013)
   
• Experiential learning leaders from other disciplines including: architecture, business, engineering and medicine
   
• Change and innovation experts from: Casa Myrna Vazquez, Inc., ExperiencePoint and Legal OnRamp
   
• Law scholars and teachers from: CUNY School of Law; Elon University School of Law; Hamline School of Law; Indiana University Mauer School of Law; New York Law School; Northeastern University School of Law; Notre Dame Law School; NOVA Southeastern University Shepard Broad Law Center; University of Denver Sturm College of Law; University of Minnesota School of Law; Vermont Law School; Washington College of Law

Five Questions for Tamar Birckhead

Last month the University of North Carolina School of Law appointed Professor Tamar Birckhead as Director of Clinical Programs.   Today she is the first subject of a new series for the blog, Five Questions, in which we ask professors to reflect on their work and life in the academy. 

1. What first drew you to clinical legal education?

I had been practicing as a public defender for ten years (in both state and federal court), and I was ready to take a step back and think about the broader questions and issues raised by my experiences in and observations of the criminal justice system.  Legal academia was very appealing to me, though I wanted to find a way to continue to spend time in the courtroom as well as serve the same client population.  I had loved my clinical experiences during law school and I come from a family of teachers, so clinical legal education seemed to be a natural fit.  Also, I was an English major in college and have always loved writing and research, so I have appreciated the opportunity to write traditional legal scholarship; several years ago, I switched to the tenure track and then became a tenured member of the faculty.  

2.  What advice about teaching would you give to yourself if you could chat with you as a rookie prof? 

I would emphasize that the “political” aspects of serving as a law school faculty member – including establishing good working relationships with administrators, deans, and faculty outside of the clinic – are vitally important, and that the way in which I teach my students to advocate on behalf of their clients is not necessarily the best strategy for approaching advocacy for one’s self or one’s program within the legal academy.  Most of my faculty colleagues are not and have not been practicing lawyers, meaning that the culture and the tenor of the institution can be very different than that which exists among litigators.  I’d encourage carefully picking one’s battles and remaining focused on the aspects of the job that I most enjoy – working closely with and serving as a mentor to my students, advancing social justice, and contributing to the welfare of underserved communities.  In other words, I’ve mellowed and matured within the past ten years; I try to maintain a positive attitude no matter what the circumstance and to enter potentially difficult situations with an expectation that understanding and agreement can and will be reached.       

 3. What adjustments in your own work do you anticipate as you take responsibility for directing the program?

As the director of clinical programs, I now supervise six students per semester in the Youth Justice Clinic instead of eight.  I also still teach the companion course to the Clinic with my wonderful colleague, Barbara Fedders, and I wouldn’t want to give that up.  I do anticipate, however, that given my administrative responsibilities it will be much more difficult to be a productive scholar, though I also don’t want to stop contributing to the conversation around issues of juvenile justice and the criminalization of poverty. 

4.  What plans do you have for UNC’s clinical program?

I served as interim director this past year, and I have tried to develop more collaboration and cohesion among the seven clinical faculty who teach in our five clinics and to improve morale.  We began the school year with an all-day faculty retreat, during which we discussed our short and long-term professional goals, our individual and collective needs as clinical faculty, and our ideas for what it takes to be a great clinical program.  We had nine monthly clinic faculty meetings, focusing on such topics as clinical teaching, scholarship (clinical and traditional), supervisory rounds, and administrative issues and concerns.  We also held meetings with other units in the law school, thereby building bridges beyond the Clinic by opening lines of communication and encouraging collaboration with faculty from the Externship Program and the Writing, Learning, and Research Center as well as meeting with the staff from the Development Office to discuss fundraising for Clinical Programs via an electronic mail solicitation in the fall.

Initiatives that directly benefitted the sixty-five students participating in UNC’s Clinical Programs this year included an all-clinic case rounds session, which was introduced in the spring and will be repeated once/semester next year, and an end-of-year awards celebration and luncheon in which each faculty member spoke of the work their clinic students had accomplished and the Second Annual CLEA Outstanding Student Award was presented.    We also restructured our fall orientation meeting for students and our clinic informational and lottery meetings in the spring so that each faculty member addressed the group and a panel of current clinic students spoke about their experiences and took questions.

As for administration and staff, in July we hired a new program assistant who worked with our current program assistant under the supervision of our business manager to ensure that our program runs smoothly and efficiently.  We successfully implemented a new phone system, allowing for individual voicemail accounts for each student, and we abandoned our old intercom system.  Working in collaboration with Communications, our website has been updated (see http://www.law.unc.edu/academics/clinic/)  and the work of our clinic faculty and students was highlighted in the Fall/Winter 2013 issue of Carolina Law alumni magazine, which focused on the ways in which the law school serves the people and communities of North Carolina.  

In addition to the new initiatives described above, we have several other developments planned for the upcoming year. We recently began a Clinical Programs blog, which will serve as the primary source for a twice/annual electronic newsletter to be distributed to the UNC Law community as well as the national law school clinic listserv (see http://blogs.law.unc.edu/clinic/).  Also, we have partnered with faculty in the N.C. State University School of Social Work to serve as a field placement for an MSW student for the 2014-15 academic year.  We have hired a second year MSW student, who will be on site for 24 hours/week, primarily assisting law students in the Youth Justice Clinic with advocacy on behalf of children in the delinquency court and school disciplinary proceedings in which we appear.  We are also in the planning stages of refurbishing the clinical suite and are outfitting two of our rooms with video cameras that will record client interviews for both real-time viewing by faculty supervisors as well as subsequent review by students.  

In short, we are building on the expansion of our Clinical Programs in recent years with initiatives that enhance the quality of the educational experience for our students and, as a result, the rigor with which we represent our clients.    

5. Since 2004, have you cultivated a thorough hatred for Duke basketball?

I can answer that question with only four words: LET’S GO TAR HEELS!

Please Forget Me in the Morning

A high-impact decision was issued by the European Court of Justice today when it held that Google must adhere to the requests of individuals to erase links to information that is “inadequate, irrelevant or no longer relevant” (http://www.bbc.com/news/world-europe-27388289).  The case was brought by a Spanish man who did not want an auction notice for a repossessed home he had owned to be retrieved in response to searches of his name.  The emerging legal concept, the “right to be forgotten,” is largely European and grows from the region’s well-established and widely-recognized body of privacy rights.  

George Washington University Law Professor Jeffrey Rosen, who is also the Legal Affairs Editor of The New Republic, calls the “right to be forgotten” the “biggest threat to free speech on the Internet in the coming decade” (http://goo.gl/pq4UHC).  A more comprehensive treatment of this right was published by Steven Bennett and can be found here:  http://goo.gl/0nY227.  Professor Rosen’s response to the emergence of the right to be forgotten is hardly surprising in a society like ours whose passion for free speech is only matched by our love of guns and money.  But at what price? 

Viviane  Reding, the European Commissioner for Justice, Fundamental Rights, and Citizenship praised the ruling as a step out of the “digital stone age.”  That stone age is one in which our children are often among the most vulnerable.  Over ten years ago, Michigan State University Law Professor Kevin Saunders published a book examining the effects of the First Amendment on our nation’s children, Saving Our Children from the First Amendment  (http://nyupress.org/books/book-details.aspx?bookid=9489#.U3Jqumjn-1s).  Since then, we have witnessed an exploding occurrence of cyberbullying, sextortion, sexting, and exchange of sex abuse images involving our children and youth.  While there are clearly exceptions to First Amendment freedoms for some of the challenges our children and youth face in the Digital Age, the fact remains that many of our children will carry a burden that we have never experienced as their youthful impulses, indiscretions, and, in some cases, victimizations, will be forever published and available on the Internet for others to witness again and again, unless the United States begins to more widely recognize a right to privacy.

Who among us isn’t thankful that those cellulose acetate images of a certain Spring Break in the Bahamas or that post-college graduation train ride across Europe or the election night victory party are degrading in someone’s attic right now?  After all, as Scientific American reminded us yesterday, even the brains of mice, Chilean rodents, and guinea pigs know that some things are better forgotten (http://www.scientificamerican.com/article/new-brain-cells-erase-old-memories/?&WT.mc_id=SA_DD_20140512).

 

 

Criticism and Deconstruction, Imagination and Virtue

A former student, and excellent young lawyer, Ashley Norgard, sent this piece my way with these words:  “This article makes so much sense to me. A liberal arts undergrad and normal law school curriculum teach us to find the weaknesses. It is only through clinics and mediation that we are forced to answer the ‘so what? What's your proposed solution?’”

Michael S. Roth, Young Minds in Critical Condition, in the New York Times's Opinionator blog:

Liberal learning depends on absorption in compelling work. It is a way to open ourselves to the various forms of life in which we might actively participate. When we learn to read or look or listen intensively, we are, at least temporarily, overcoming our own blindness by trying to understand an experience from another’s point of view. We are not just developing techniques of problem solving; we are learning to activate potential, and often to instigate new possibilities. . . . 

Liberal education must not limit itself to critical thinking and problem solving; it must also foster openness, participation and opportunity. It should be designed to take us beyond the campus to a life of ongoing, pragmatic learning that finds inspiration in unexpected sources, and increases our capacity to understand and contribute to the world — and reshape it, and ourselves, in the process.

This is right.  We have become experts in deconstruction and criticism, and this is good.   What we have come to lack is the imagination to turn deconstruction into reconstruction, the building of something better in the place of the flawed, to generate justice in the place of injustice.   We often leave our students in a posture of ambivalence, irony and detachment, rather than empowering them with a vision of what might be.  

Law school has become adept at stripping students of their humane, spiritual impulses for justice, fairness and imagination, yet we have an essential role of professional formation, not just academic deconstruction.   We teach them to think like lawyers, but we also must show them how to be lawyers, public citizens equipped to serve communities so that they flourish and thrive. 

J.N. Armstrong, first president of my alma mater, Harding University, said this about courageous teaching and our visions of justice:  

All progress of truth -- scientific truth, political truth, or religious truth -- all truth -- has depended on free speech and progressive teachers who were not afraid to teach their honest convictions.

Let us take some risks.  Let us be engaged in the pragmatic world and see through others' eyes.  May we teach our students the craft of criticism, but let us not neglect the arts of imagination and virtue.   We may not be able predict or assess what the students and we will learn, but it may be beautiful.  

CFP for SALT's Teaching Conference

The Society of American Law Teachers has issued its Call for Papers for its annual teaching conference on Oct. 10 - 11.  (It'll be a busy weekend if you're in Malibu and Las Vegas.)

 

Legal Education in a Time of Change:
Challenges and Opportunities

Call for Papers and Proposals

Society of American Law Teachers—SALT Teaching Conference
October 10-11, 2014, at University of Nevada, Las Vegas, Boyd School of Law

Debates over the value of a legal education rage in blogs, in the comment sections across the internet, and even at faculty meetings in law schools.  Although self-examination is a necessary component of any reform in legal education, this critique, often shouted in hyperbolic terms, is discouraging many progressive students from even considering law as a career.

SALT recognizes the importance of increasing access to legal education, especially as income inequality increases, as resegregation impacts public schools and communities, and government becomes more polarized.  SALT remains deeply committed to ensuring that membership in the legal profession reflects the rich diversity of this country, that we engage students throughout law school with relevant and innovative teaching methodologies, and that the academy itself be inclusive and model civil society by building consensus and community.

As we go through these transformational times, we invite you to help envision what law school can and should be.  SALT seeks to reframe this polarized debate about the value of a legal education, rejuvenate legal education, and reform the profession to ensure its path towards social justice and access to legal services for all. 

SALT welcomes a broad range of presentations, particularly those that incorporate the conference theme.  The following questions are illustrative of just some of the issues that could be addressed:

• How do we ensure that there is a next generation of lawyers and law professors who are committed to social justice? 

• How will we attract and guide progressive, diverse students who can bring their varied perspectives to define justice, fairness, equality, and democracy in a global age?

• How and what do we teach to promote the use of law to build consensus and community to solve economic, social, political, environmental, and global issues that perpetuate inequality and exclusion? 

• How does the current legal education crisis operate within the context of the neoliberal university?

• How do we contribute to the legacy of how law can and should be used to define civil democracy and global responsibility?

• How do we help transform the practice of law so that students can engage in careers that are personally and socially rewarding? 

• How do we unite scholars of doctrine and practice in our common goals of developing the law and its underlying legal theory toward justice?

 

(h/t Tax Prof Blog)

Teaching the Taming of Tigers

While on the plane to Chicago for the AALS Clinical Section conference the last week of April, I began a book that has long topped my "to read" stack: Life of Pi by Yann Martel. On the hotel gym's elliptical and cycling machines during workouts squeezed in between conference sessions, I paged through it, which made the workouts more pleasant by far.  And in the taxi to the airport home I raced to the end, savoring the last pages at the United Airlines counter before stashing it in my about-to-be checked bag. 

Normally I give away books upon finishing them.  I took this book to the conference fully intending to pass it on to a colleague to be determined. Sharing is caring, after all.  But this book I could not share.  Because as I simultaneously experienced the conference and the book I realized I wanted to write about their connections.

The tiger is both character and theme  in Life of Pi, a parable-like novel depicting a teenager lost at sea in a lifeboat with a tiger in the middle of the Atlantic Ocean.  In an ironic twist that blindsides the reader like a gut-punch [spoiler alert], the novel's ending leaves the reader wondering if the boy was actually ever with a tiger at all.  Or perhaps he is using the story of the tiger to explain his own behavior at sea, which is bewildering at best.  I was struck, as I often am in my work teaching students how to practice family law, wondering what was the truth about this story. 

Upon reflection, of course, I reminded myself the story was just that--a story, fiction.  Several times I actually scrutinized the cover for the words "A Novel" and there they were, every time, just below the title.  Yet the Author's Note at the book's outset describes Yann Martel's journey in writing the book, including a visit with an elderly man in Pondicherry, India (where the book is set) who told the author "I have a story that will make you believe in God."  Martel finishes the Author's Note, which immediately precedes Chapter One, with descriptions of the old man's story that foreshadow the novel's events.  Is this a novel or not?!  my lawyer-brain screamed.  What is the truth here?!  

This naturally led me back to ponder my own teaching about truth, and story, in my law clinic. Storytelling as a lawyering tool and a component of client-centeredness are themes my students hear from orientation throughout their time in the clinic.  As for the concept of truth, I know it's mercurial--I even title one seminar lesson "What is the Utility of a Search for Truth?" 

What did any of this have to do with taming tigers?  Quite a lot.  Earlier I mentioned the tiger was both character and theme.  As a character, the tiger in Life of Pi represents tremendous challenges faced by the lost teen sailor Pi. Pi's objective is to survive.  The tiger stands between him and survival, literally and figuratively.  The boy cannot even get to the lifeboat's provisions at first because the tiger is positioned in the way.  Pi overcomes this first challenge, which paves the way for him to cope with each subsequent challenge.  Without those lifeboat provisions he would have perished in the first few days. 

To overcome the challenges at sea--in other words to Tame the Tiger--Pi uses many of the same methods we teach our students.   He plans out his goals for each task, the options available to pursue those goals, and the pros and cons of each option.  This analysis takes considerable time, but Pi exercises patience.  Pi never begins a task without careful planning.  To better understand The Tiger, Pi uses tactics that in client-centered lawyering we call "walking in the shoes" or "parallel universe" thinking [for more on that, check out the writing of Yale Law Professor Jean Koh Peters].  What is The Tiger experiencing? What is The Tiger's mental and physical nature?  How does that affect the Tiger's behavior?

Throughout this greuling experience, Pi grows and evolves just as our clinical law students grow and evolve.  In one passage after accomplishing something that gave him some space and time without The Tiger, Pi describes a "euphoria.  My skin healed.  My pains and aches left me.  Put simply, I returned to life."  It reminds me of certain journal entries I have received from students, discussing the profound professional growth they have experienced while serving their clinic clients.

Life of Pi is an almost mystical written work.  And although the practice of law is anything but mystical, I believe when we teach law students the resiliency and self-awareness to develop into client-centered lawyers, we are making a little bit of magic happen.  We are teaching the taming of tigers.  

Save the Date: Pepperdine's Conference on Domestic Violence in Higher Education

Pepperdine University School of Law will host Student Life, Relationships and the Law: Confronting Domestic Violence in Higher Education on October 10 – 11, 2014, on campus in Malibu, California.  

The conference will convene experts from across disciplines to discuss the phenomenon of domestic violence and intimate partner violence on campus.    Panelists and speakers will consider institutional responses in law, policy and culture to confront and reduce abuse in intimate relationships in our institutions of higher education. 

Please mark your calendars and plan to attend.   More details will follow as we confirm plans and speakers.     

Immigration Debates: Elizabeth Keyes and the Worthiness Narrative

Following up on my last post, I am learning much from this article by Liz Keyes, Assistant Professor of Law in the Immigrant Rights Clinic at Baltimore:  Defining American: The DREAM Act, Immigration Reform and Citizenship, 14 NEVADA L.J. 101 (2014).

Here is the abstract from SSRN:

The grassroots movement propelling the DREAM Act and immigration reform forward reveals how the definition of citizenship is undergoing a dramatic transformation, in ways both inspiring and troubling. The DREAM movement depends upon the compelling but exceptional stories of passionate, high-achieving, law-abiding youth who already define themselves as being American, and worthy of legal status. Situating this narrative in the rich literature of citizenship, the article shows how the DREAM movement effectively exposes the disjuncture between the DREAMers' identity as Americans and their lack of legal immigration status. The article celebrates how this narrative succeeds as a contrast to the prevailing political discourse and how the movement, led by youth from all corners of the globe, radically upends America’s history of deeming people of color unworthy of (and ineligible for) citizenship. The article also presents some unintended consequences of the movement, however, suggesting that the worthiness-based narrative strategy adopted by the DREAMers is both produced by and contributing to ever-narrowing standards for who is deemed worthy of inclusion. These narrowing standards may have negative consequences for the expansiveness of immigration reform more broadly, and even for citizenship beyond the field of immigration. This article explores how the worthiness narrative, which implicitly acknowledges a concept of unworthiness, inadvertently connects to attempts to restrict notions of citizenship, specifically by limiting the principle of jus soli citizenship, extending felon disenfranchisement and instituting voter identification laws.

 

Immigration Debates and a Working Theory of Citizenship

I am not an immigration lawyer, not a specialist or a real activist; my life is largely insulated from the burdens of migration and a life without status, except that I enjoy the comfort and sustenance provided by hard-working immigrants. 

I am an American lawyer with an intense interest in the present crisis and the fleeting moments of possibility before us.  My family and I marched alongside our neighbors of faith in Montgomery against Alabama’s awful HB56.   My friends at Alabama Appleseed joined with others in the litigation that ultimately dismantled the law.  

This spring at the 2014 Christian Scholars Conference at Lipscomb University, I will participate in two panels that will engage potential paths for reform.  People of good will may disagree about the options before us, but no one is satisfied with the injustice of the status quo.   In this project, I have considered more closely my own ideas about citizenship, what it means, who deserves it, from which it springs.  

Often in the immigration debates, we seem to assume that citizenship is a prize for the worthy, primarily intended for its benefits, to bestow rights, entitlements, profit and power.  In such a framework, to share citizenship with immigrants means to divide a zero-sum pie, to give them what belongs to us.   If citizenship is a golden ticket to a private club, then whoever does not have it is the less-than Other.   This is short-sighted and destructive.  

Here is an excerpt from my responsive essay prepared for the Christian Scholars Conference, with light edits, on a theory of citizenship and its implications for justice.  These certainly are not original ideas, and I welcome responses, ideas and reflections to make them better.   

            Citizenship is not a prize or gift bestowed on the most worthy.  Citizenship is not merely a means to access the rights and entitlements of the nation.  Almost all of us are accidental (or providential) Americans, and we enjoy the privileges and immunities of citizenship by virtue of our laws and constitution.   Citizenship is something greater than membership in an exclusive club.¹    We are a republic, so the benefit of citizenship is also the burden of self-government, participation in our civil society and submission to the Rule of Law because we have the rights make our own.²

            Citizenship in this republic imposes duties and obligations, and it calls us to engagement as our own sovereigns.   Citizenship is not an invitation to the Star Chamber or the Privy Council.  Citizenship is the calling to self-governing, civic responsibility, the high callings of voting, serving on juries, running for office, paying taxes to ensure the elements of peaceful, safe civilization.   Citizenship is making laws by which we all must abide.  

            Just as the owner of property has more incentive to maintain, improve and invest in the property than does a tenant, so does the citizen have a greater incentive and role in the well being of the nation than does the resident alien.   Citizenship indeed is a privilege, but it is also imposes a greater burden.  Citizenship is and ought to be more than a utilitarian means to profit and personal prosperity.   

            Thus, drawing the migrant laborer, the immigrant, toward citizenship is an incentive toward legal compliance, toward greater civic responsibility and investment, toward the virtues of self-government.   For the worker who has stolen across our borders to labor, to learn, to build, we should welcome her to citizenship so that she can be formed with us, her neighbors, by the calling and burden of self-government and social engagement.  To leave her ever on the margins, to leave her ever as a tenant, we leave her without the incentive to invest and to seek the good of the republic.³  She would be essentially stateless forever and subject to the endemic stress of temporary status and instability, all of which reduces her capacity to thrive in and for the nation.

            As a matter of legal policy, to promote the Rule of Law and the virtues of self-governance in the Republic, we should move immigrant without status toward citizenship for their good and for ours.⁴   The nation grows stronger as more of those within its borders feel the obligations and calling of citizenship.  

        The immigrant who labors, lives and learns in our land will invest more, will flourish more surely, will contribute more to society when they are citizens than if they exist ever on the margins of civil society and public life.   Many immigrants have worked far harder and have risked far more to enjoy the fruits of American society than most of us who were born to it. 

            Therefore, a policy that creates a status between undocumented and citizen may be better than the status quo, but it is not the best policy.    [Some call] for incremental moves toward citizenship that create incentives for the immigrants and safeguards for society.  This is good, because citizenship for the dispossessed is better for the immigrant and for the nation.    Building a massive class of permanent half-citizens will perpetuate injustice and will not create incentives to improve, grow, participate and serve the nation.   A path to citizenship is the more just policy, and it is the best economic, political and social policy, too.   This is not merely justice for the immigrant but justice for the nation, a reconciliation that promotes our common flourishing as a self-governing people.   

___________________________________________

1 Citizenship is many things:

Citizenship as a value and a construct has been conceptualized variously as the status and role that define the authority and the obligations of individual members of a community (Cooper 1984); peers who share equally in the distribution of authority (Flathman 1981; Walzer 1970), political status, and role guaranteed in terms of qualifications, rights, and obligations by constitutions and statutes (Lowi 1981); man in society (Mosher 1941); a result of the interaction between the legal and ethical dimensions of the Constitution (Long 1981); an expression of one’s membership in a political community (Kymlicka and Norman 1994); civil “temper” coupled with attitudes and values concerning the nature of political  authority (Sniderman 1981); an institutional status from within which a person can address governments and other citizens and make claims about human rights (Van Gunsteren 1988); an embodiment of virtue and moral character (Hart 1984); and an enhanced and ennobled public motivated by a shared concern for the common good (Frederickson 1991).

Kalu N. Kalu, Of Citizenship, Virtue and Administrative Imperative: Deconstructing Aristotelian Civic Republicanism, 63 Public Administration Review 418 (2003).

2 Alexander Hamilton rested his argument against George III on this principle in his pamphlet, A Full Measure of Vindication of the Measure of Congress (1774):

The only distinction between freedom and slavery consists in this:  In the former state a man is governed by the laws to which he has given his consent, either in person or by his representative, in the latter, he is governed by the will of another.  In the one case, his life and property are his own; in the other, they depend upon the pleasure of his master.  It is easy to discern which of these two states is preferable.  No man in his senses can hesitate to be free, rather than a slave.

If we build a policy that exploits the labor, talent and willingness of the immigrant, without giving her a share of self-governance, we risk imposing the same grievances that gave rise to our own revolution. 

3 Our systems of government determine the shape and virtue of citizenship:

Following Aristotle, Rousseau, and John Stuart Mill, many modern philosophers assume that political participation itself will teach people responsibility and toleration. They place their fate in the activity of participation as the means whereby individuals become accustomed to the duties of citizenship. They believe that as political participation enlarges the minds of individuals, familiarizes them with interests that lie beyond the immediacy of personal circumstances and environment, they will acknowledge that public concerns are the proper ones to pay attention to (Oldfield 1990). However, in light of the political realities of the modern state, political participation can hardly be taken for granted as a universally binding or desirable axiom. Political participation can be a result of the scope or nature of political or civil liberties granted to the citizens by the state. When these liberties are circumscribed— say, in an oligarchy, dictatorship, or other forms of authoritarian systems, or where severe discriminatory practices have become institutionalized—the vigorous exercise of political participation as a  condition of authentic citizenship becomes inconsequential.

Kalu at 421.

4 As a nation, we are deeply invested in the virtue of all of our neighbors among us:

[T]he health and stability of a modern democracy depends, not only on the justice of its 'basic structure' but also on the qualities and attitudes of its citizens: for example, their sense of identity and how they view potentially competing forms of national, regional, ethnic, or religious identities; their ability to tolerate and work together with others who are different from them- selves; their desire to participate in the political process in order to promote the public good and hold political authorities accountable; their willingness to show self-restraint and exercise personal responsibility in their economic demands and in personal choices-which affect their health and the environment. Without citizens who possess these qualities, democracies become difficult to govern, even unstable. As Habermas notes, "the institutions of constitutional freedom are only worth as much as a population makes of them" (Habermas 1992, p. 7).

Will Kymlicka and Wayne Norman, Return of the Citizen: A Survey of Recent Work on Citizenship Theory, 2 Ethics 352,  352-353 (1994).

Southern Clinical Conference: Call for Proposals

Via Patty Roberts at William & Mary: 

 

Southern Clinical Conference : Call for Proposals

 “Assessment, Outcomes and the Value of Clinical Legal Education”

 Deadline for Proposals: June 20, 2014

 The Planning Committee for the 2014 Southern Clinical Conference invites you to submit proposals for this year’s conference, which will take place from Thursday evening, October 23 to mid-day Saturday, October 25 at the William & Mary Law School in Williamsburg, Virginia. Details on registration and lodging will follow soon.

 We invite you to submit proposals addressing “Assessment, Outcomes and the Value of Clinical Legal Education.” Clinical legal educators can and do serve as leaders in the current era of reform of law school curricula. Law schools must determine how to meet the American Bar Association’s mandate for an “outcome-measured” approach to legal education. The Best Practices Project will soon issue a major new addition to its recommendations for legal education. Law faculty across the country are seeking to integrate new approaches to teaching law students, under pressure to graduate ‘practice-ready’ lawyers in an era of declining enrollment

 At the heart of these reform efforts lie long-standing questions: How do we assess both our students and our pedagogy? What outcomes do we seek for our students and our schools? How can we measure those outcomes reliably and effectively? These questions lead to more fundamental ones: what value does clinical legal education have in the current reform movement? Are we cost effective, and on what measures? How do we best articulate the value of our work both for the education of lawyers and for the pursuit of social justice?

How do we retain our value in the current era of fiscal constraint?

 We invite proposals that address these and related questions. We encourage applicants to think broadly about the topic. For example, proposals might focus on:

New or updated research on the assessment of experiential and specifically clinical learning.

Workshops on how to influence the transition to an “outcome-measured” curriculum at your schools.

Best practices, novel concepts or just workable approaches for how to assess our students and the effectiveness of our experiential courses.

Critique of the reform movement itself: does the focus on pedagogy and outcomes help or hamper our pursuit of other values, including service and social justice?

Evaluation of different types of clinical design or method (including direct service, field placement and hybrid models) as vehicles for improving assessment, achieving outcomes, or encouraging social justice.

Discussions of how to describe and increase the “value” of clinics as line-items in a law school budget.

Appraisals of integrated or sequenced designs for experiential education as ways of accomplishing designated outcomes.

Descriptions of collaborations between faculty (clinical or otherwise) and other stakeholders in law schools that affect the value of clinical learning.

Assessments of changing bar admission requirements as they affect law school curricula by altering the traditional “bar passage” outcome.

Questioning whether regional differences cause different approaches to assessment, outcome measurement or valuing clinical education? Are these questions the same in the South as opposed to other regions?

 

We welcome proposals for concurrent sessions, plenaries, works-in-progress and workshops devoted to these themes. With sufficient interest, we expect to offer sessions devoted to scholarly works-in-progress, with commentary and support to both new and experienced scholars. (Proposals for works-in-progress need not be limited to the conference theme.) We expect to offer sessions of varying length, intermingled with plenary discussions and opportunities for free-form discussion and networking.

 

CRITERIA

In general, the organizing committee will favor proposals that address the conference theme, are relevant to conference attendees, are well-defined and focused, are timely and important, and show care and thoughtfulness in development.

We value diversity, both in the composition of presenting teams, and in your topic’s presentation of diversity as a concern in your work. Diversity includes gender, ethnicity, sexual orientation, disability, geographical location, years of experience, type of school, type of program and other factors.

 

SUBMISSION OF PROPOSALS

Proposals should be submitted by e-mail to Laurie Ciccone at [email protected] no later than June 20, 2014.  Please contact her for the preferred cover sheet and template for proposals.

Clinics in the Cloud, the "Technology Question," and Teaching Technological Professionalism

If the law clinic listserv is any indicator, the “technology question” is alive and well in clinics across the country.  Many are using the summer months to do the good and complicated work of integrating new and updated client and document management technologies. In addition to the important (and possibly impossible) question of how to set up a “fail-proof” system, I’d like to suggest a second question:

“How might we use the” technology question” to teach technological professionalism?”

As we pour over the professional responsibility rules, work with our University IT departments, confer with each other on the listserv, and choose our management systems, I hope we won't confine the experience to our departmental meetings and summer objectives. Instead, let’s bring it all to the classroom.

I suggest this for a few reasons.  First, our students will often know more about the technology than we do. The Millennial students in our clinics are digital natives, and for them technology is as natural and necessary as breathing. They are the experts on what shortcuts or workarounds will be most tempting to them.  Second, these responsibilities will sit squarely on their shoulders in short time. Part of becoming a lawyer in today’s digital age is knowing the duties that come along with technology use. Out of nature or necessity, many of today’s students are going out on their own. We can no longer expect them to learn the ins and outs of technological professionalism  from their future employer. Third, while our students are familiar with technology, they often use new applications without thinking twice. Our role is to encourage and model critical thinking in regard to technology and its relationship to our professional responsibility. In essence, it is our job to teach that “second thought.”  We have a great opportunity to address these issues by working out the technology question together  in a transparent and collaborative way.

The process, messy as it is, can be a wonderful teacher. Every semester, I present the “technology question” to my students as if it were brand new….because in many ways, it is.  After providing them with the the applicable rules and corresponding best practice articles, as well as a series of technology hypotheticals I created to tease out some of the more frequent missteps, I ask the students to troubleshoot our current solution.  Where are the holes?  What have we missed? What new technologies or applications will weaken our solution or make it obsolete? How would you change our user agreement? What apps do you think would be helpful to our work? How can we assess new technologies? What will you do in practice?

The conversation often results in enlightening observations, pushback on assumptions, and a slew of new issues to troubleshoot...in short, it does just what I hope it will do. Our clinic conversations then inform our department’s ongoing conversation with University IT. This ongoing process, as technology shifts and changes, challenges us to remain relevant and informed. Clinics, once again, are in a wonderful position to prepare our students for the real world of legal practice.

(As Warren Binford so kindly pointed out in her post "Clinics in the Cloud," I presented on this process with Pepperdine University's Chief Information Security Officer, Dr. Kim Cary, at the 2012 AALS Clinical Conference. I later developed our work into an article, Millennials, Technology, and Professional Responsibility: Training a New Generation in Technological Professionalism, 37 J. Legal Prof. 199 (2013). The article includes teaching tools and a sample user agreement that I hope others will find helpful and improve upon.)

I’d love to know how others are encouraging technological professionalism. Care to share an idea or two?