Wednesday, November 26, 2014
. . . . Now that the grand jury has determined Wilson committed no indictable state crime, we must respect that legal process and the outcome. But to respect the process, outcome and rule of law does not mean we should not interrogate, investigate and improve upon the process and the rule of law so that they work for all of us. . . .
Now is not the time to retreat. While we can mourn the unspeakable loss of a young man and the anguish Brown’s parents and family endure, the outrage over the killing was not just about Brown. The grand jury’s decision should be a clarion call to faithfully address issues that have poisoned Ferguson and communities around the nation far too long: the militarization of inner city policing; the presumption of criminality based on gender, geographies, neighborhoods, attire and skin color; the overreaching (and even violent) responses to peaceful protests and journalists engaged in their work; and municipal governments, through racially disproportionate levy of criminal fines and penalties, profiting on the poor. To say nothing of racial profiling, police brutality and use of excessive force.
We cannot even begin to address these ills if we choose to stay inside our comfort zones. While affording us measures of cognitive safety, confirmation bias engenders intellectual laziness, sameness and, importantly, overshields us from other viewpoints — profound, thoughtful, clumsy, intolerant, crazy or, yes, even racist.
Though it will be difficult, ugly and even maddening, we must get to the place where we can constructively discuss, examine and eliminate the ways race and racism are embedded in these pressing social issues. Surely people of goodwill — across race, professions, institutions and communities — can come out of their ideological silos to begin the conversations.
Tuesday, November 25, 2014
The Rule of Law depends on the people trusting law makers, courts and law enforcement. The people trust these institutions if they have a franchise and a voice and if these institutions treat the people with honest dignity. Otherwise, the institutions fail, and the people seek justice, dignity and safety through other means. Without access to justice, without a voice, democracy fails.
Friday, November 14, 2014
On November 7 the Washington Post ran a column entitled "The two words that scare the World Bank" written by the U.N. Human Rights Council's special rapporteur on extreme poverty and human rights, Philip Alston. The two words? "Human rights."
The Los Angeles Times' editorial board opined on October 16 that "the human rights of all those who seek refuge must be respected" in reference to reports that our immigration border officials and courts may be turning away, and deporting, victims of human rights violations at alarming rates.
And on October 27, Jessica Lenahan testified before the Inter-American Commission on Human Rights (IACHR) about the death of her young children in a domestic violence and police incident in 2005. Ms. Lenahan, and her attorney Caroline Bettinger-Lopez who directs human rights clinics at the law schools of the Universities of Chicago and Miami, alleged to the IACHR that the United States has failed to implement changes to domestic violence laws and policies in the three years since the Commission decided that the goverment had violated Jessica's human rights--and those of her daughters--in the 2005 incident.
Why is discourse about human rights so closeted in law- and business-related discourse, particularly in the U.S.? What keeps it in the closet?
Philip Alston, in his column for the Post, asserts that the "official reason" for the World Bank's "long-standing aversion to discussing human rights" is its proscription from considering political matters according to the Bank's Articles of Agreement. Alston points out that after the Cold War, many nations had an understandable aversion to human rights debates.
As a teacher of those who will populate our justice system for a generation or so, I profoundly hope that aversion is waning. And although it may appear an empty gesture to some, I offer for consideration the September 2014 Proclamation issued by President Obama "reaffirm[ing]" the basic human right to be free from violence and abuse" to mark the 20th anniversary of the Violence Against Women Act. That proclamation resulted, in no small part, from the work of Professor Bettinger-Lopez and her colleagues, some of whom are contributors to this website. Slowly but surely in the wake of the 2011 IACHR decision, they have lobbied U.S. cities large and small for the passage of proclamations declaring freedom from domestic violence a fundamental human right.
And in September, 136 law professors signed onto a letter authored by my Penn State Law colleague Shoba Sivaprasad Wadhia urging the President to offer amnesty to undocumented workers. Although this week's USA Today column by attorney Paul Reyes does not expressly use the possibly-scary words "human rights," the message is clear. Like Professor Bettinger-Lopez and her colleagues, Attorney Reyes, Professor Wadhia, and the other law professors who submitted that "Dear Mr. President" letter are the ushers leading human rights out of the closet.
Thursday, November 13, 2014
This week, Profs. Charles Auffant and Mary Jo Hunter, co-chairs of the AALS Section on Clinical Legal Education, announced that Professor Ann Shalleck of American University Washington College of Law is the 2015 recipient of the AALS Section on Clinical Law William Pincus Award. Here is their announcement:
We are pleased to announce that Professor Ann Shalleck has been chosen as the recipient of the AALS Section on Clinical Legal Education’s William Pincus Award for outstanding contributions to the cause of clinical legal education. The award will be presented at the Section’s luncheon on Friday, January 3rd at the AALS Annual Meeting in Washington DC.
The Section’s Awards Committee (Margaret Martin Barry and Mary Lynch, co-chairs) recommended Professor Shalleck from among a number of worthy nominees based on Professor Shalleck’s extraordinary contributions in the realms of scholarship, program design and implementation, elevation of the status of clinicians, mentoring clinical professors, and advancement of the cause of justice. The following is a brief synopsis drawn from the Awards Committee’s report:
Ann was described as a tireless advocate on behalf of the clinical movement. She received CLEA’s Outstanding Advocate for Clinical Teachers in 2009; as a member of the AALS Executive Committee from 2010 to 2013, she represented the AALS at ABA Standards Review Committee meetings and hearings during the contentious re-evaluation of all of the accreditation standards; she has been on at least 10 AALS conference planning committees and done countless presentations at AALS conferences -- she even created a primer for clinical conference or workshop presentations; she has hosted the Women and the Law Breakfast in conjunction with the AALS Annual Meeting for over 15 years; she has been a member of the Georgetown Summer Institute faculty for each of its four years; is a co-founder and co-facilitator of the Rounds About Clinical Teaching for Experienced Clinicians in Washington, DC; she is a past member of the SALT Board; and she has contributed in other venues, such as Law & Society and the Southern Clinical Conference.
Ann has authored over 25 works, including her recent work as co-author of TRANSFORMING THE EDUCATION OF LAWYERS: THE THEORY AND PRACTICE OF CLINICAL PEDAGOGY (2014). We will say what you all undoubtedly know, that Ann has had a profound effect on the teaching of and thinking about clinical legal education.
Ann founded WCL’s Women and the Law Program, a key part of which is the Women and the Law Clinic which she has directed since its inception in 1984. Ann was also involved in creation of the school’s Domestic Violence Clinic and continues as lead teacher for the joint Women and the Law-Domestic Violence Clinic seminar. As director of the law school’s clinical program from 1997-2000, Ann created the Practitioner-in Residence programs as a means of expanding the clinical program and to help practitioners learn about clinical teaching and develop scholarship. The program’s success in meeting its goals of helping practitioners transition is seen in the letter written by 12 of the former practitioners. “Transformative” and “I consumed [Ann’s article on supervision] in huge gulps, thrilled by Ann’s description of the supervisory relationship as a series of intentional choices by the teacher” and “instrumental” were some of the descriptors used by the practitioners.
In addition to her clinical scholarship and teaching, Ann is a feminist scholar. Her latest focus is developing the Women and the Law Program’s Student Debt and Education Justice Project Inaugural Conference.
We hope you will join us in honoring our colleague Professor Shalleck in person in Washington DC.
Congratulations, Professor Shalleck!
Wednesday, November 12, 2014
Dr. Artika Tyner, formerly of the University of St. Thomas legal clinics, now of St. Thomas's College of Education, Leadership & Counseling, recently gave this excellent Tedx Talk on Education for Social Change.
This is in support of her new book, The Lawyer as Leader: How to Plant People & Grow Justice.
Thursday, November 6, 2014
Emerging Family Law Scholars
University of Illinois College of Law
January 19, 2015
The Family Law and Policy Program at the University of Illinois College of Law—in conjunction with the University of Minnesota Law School, the Brooklyn Law School, and the University of South Carolina School of Law—is pleased to invite paper proposals for the inaugural HARRY KRAUSE EMERGING FAMILY LAW SCHOLARS WORKSHOP. The workshop is named for Professor Krause, who as a member of the Illinois law faculty mentored many budding family law scholars across a half century of teaching.
The Workshop will take place on Monday, January 19, 2015 at the University of Illinois College of Law, Champaign-Urbana, Illinois. The Workshop is designed to assist and mentor emerging scholars in family law and related fields – such as reproductive rights, biomedical ethics, children and the law, law and gender, and law and sexuality – to hone draft papers and works in progress for submission to journals for publication. The Workshop provides not only a mechanism for senior scholars to mentor emerging scholars, but also is an opportunity for emerging scholars writing in these fields to connect with one another.
The Workshop is designed for emerging scholars who have been in tenure track positions for seven years or less. Visiting Assistant Professors, Fellows, Adjunct Professors and lecturers seeking full-time positions as law teachers may also apply. (For purposes of calculating “seven years or less” of teaching, fellowships, adjunct positions, and lectureships do not count against the total.)
Working accepted papers not yet finalized for publication may be submitted, as well as earlier drafts where guidance from senior scholars in the field can assist the author. Co-authored papers will be considered as long as one of the authors has been involved in teaching for seven years or less or is seeking law teaching positions.
The Workshop Committee will consist of Illinois Law Professor Robin Fretwell Wilson, who directs the law school’s new Program in Family Law and Policy, and Professors June Carbone, Marsha Garrison, and Marcia Yablon-Zug.
The Workshop can accommodate four scholars. One slot will give preference to an international emerging scholar and one to individuals seeking law teaching positions.
Proposals should be no more than two pages or 1000 words in length and sent to Professor Wilson at email@example.com before December 1, 2014. The Workshop Committee will notify selected Scholars by December 15, 2014.
If accepted, the Family Law Program will provide accommodations and meals for the Workshop. Invited scholars are expected to pay their own travel to the University of Illinois, although “modest” travel support will be available to scholars who have no funds from their home institution.
Of the four selected of the scholars, one will receive a Best Paper Award.
Sunday, November 2, 2014
Prof. David Barnhizer recently posted the ominous “‘Drumbeats of Doom’ and the Downsizing of Law Faculties” at LawNext. He projects the potential for a “civil war” among classes of law faculty during this disruptive moment in the market for legal education. Prof. Barnhizer is wise and has a good will, and he may be right. He has many useful observations in the piece.
I write in response because he and others borrow trouble by pitching the conversation into a distilled narrative of internecine camps bent on defending their own frontiers.
He sets forth the familiar parade of horribles in legal education and the well documented forces at work in vulnerable law schools: plunging applications, decreasing enrollments, falling metrics, depressing post-grad job prospects, university budgetary obligations and increasing demands for more productivity with fewer resources. He also observes the “aggressive push” for law schools to increase experiential education, but almost as if that pressure is unrelated to the root crises besetting legal education.
I respond here to build on his observations, first, to suggest that a “civil war” is not inevitable, but that speaking in bellicose and binary terms is more likely to generate it; second, to observe that the existence of “classes” in the first place disposes our landscape to be a battlefield; and third, to offer some hope that epistemic humility, creativity and collaboration can deliver us from destructive power struggles.
With imagination, we’ll get there.
Prof Barnhizer writes:
We can expect that many law schools will be entering a period of ‘civil war’ between traditional tenure track and tenured faculty and Legal Writing and Clinical faculty as well as people hired for an expanded set of administrative tasks that have consumed increasing amounts of law school budgets previously allocated to those hired on the tenure track. . . .
. . . [A]s resources shrink and demands on faculty increase, including the expansion of teaching loads for tenure track faculty and the marginalization of scholarship, there will be nasty battles between the “classes” of law faculty of a kind rarely seen before.
He may be right, and such conflict may occur in certain schools.
(Indeed, many clinical law professors would say that they have been thus engaged for a very long time and that the inconstant terms of security and status prove it.)
A civil war is not necessary, though. First, to essentialize “traditional tenure track and tenured faculty” and “Legal Writing and Clinical faculty” is not useful or accurate and is needlessly provocative. There are no such essentialized populations except as they exist in individual institutions, so to suggest that these camps exist in any kind of cohesive way across the academy is not useful. (Clinicians are probably the best organized as a discipline, but we don’t vote in blocs and are usually vastly outnumbered on faculties.) Also, Legal Writing and Clinical faculty have different functions, roles and modes of teaching. We ought not impose a hierarchy on our respective roles, but these professors do not necessarily share the same positions and preferences.
If a faculty interprets itself in essentialist terms, then probably it will go to war.
If a faculty can reinterpret itself to see itself as a collaboration of variously talented professionals with common cause in an uncertain environment, then they are less likely to fight and more likely to solve their common, strategic problems.
If the faculty can recognize that they sink or swim together in a competitive, disruptive season, then they are more likely to innovate, adjust and grow. If some segments of a faculty insist on defending a dying status quo against seismic forces of change, to resist the emergence of new partners, then they might all go down in their burning ship.
If tenured, “doctrinal” faculty think that clinicians are mounting a mutinous revolution, then they likely will respond with all the force their privileged governance affords them. If clinicians actually are mounting a mutinous revolution (or act like it), then they likely are ensuring a conflict they cannot win. In the meantime, as Prof. Barnhizer quotes Dylan, they both will “sink like a stone, For the times they are a-changin.”
The assumption that the production of scholarship for the sake of scholarship is the heart of legal education is a foundational problem. Likewise, to think that scholarship is extraneous to good, practical teaching is to neglect the great virtue of our role in society.
Teaching law students is the heart of our enterprise. Scholarship, good, elite, provocative, critical, creative, theoretical and normative scholarship, makes us better teachers and serves our students. Scholarship serves the purposes of lawyers to improve the law, to educate the nation, to seek just law reform, to explore the dark corners of democracy and potential for the Rule of Law. This is the work of lawyers, some who are scholars and exercise their vocation in scholarship, but the work of scholarship in law schools should be in principal service of pedagogy, increasing our expertise, expanding knowledge for our students, modeling critical and theoretical prowess in practice, contributing to our fund of ideas and insight.
Scholarship by itself, however, is only sufficient to teach other scholars and theorists. We are in the business of educating lawyers, not professors. As scholarship informs good teaching, so practice informs good learning. Our students are not paying for law review articles, and they are not paying for technical training.
The Carnegie Report is onto something good with its description of three apprenticeships in professional education: the cognitive apprenticeship, the apprenticeship of skills and practice, and the apprenticeship of professional identify and values. A good legal education requires all three.
In theory, “traditional” professors teaching podium classes provide the cognitive work. LRW professors provide the skills and practice training. Clinicians teach and model professional identities and values. In reality, we all should be teaching all three at the same time, in varying degrees and weights of emphasis. None of us can afford to do them all well on our own, but none of us are dispensable to the enterprise done well. For one part of this body to go to war with another only leads to self-destruction.
For the sake of our school and our students, I should want my doctrinal colleagues to be utter and undeniable stars in their fields. For the sake of our school and our students, my doctrinal colleagues should want our clinics to thrive with excellent, creative and dedicated lawyer-teachers. (For the record, mine actually do.) If there are actually faculties at war in these camps, then perhaps those schools indeed will succumb to the drumbeats of doom, because they are not serving their students well.
To pit “scholars” versus “clinicians” is unnecessary and shortsighted. If we share common goals of teaching students well, of seeking justice and the improvement of the law, then perhaps we can recalibrate the conflict to address those who do their jobs well and those who do not.
Regarding the classes of the legal academy, Prof. Barnhizer does well to identify the pressures on law schools created by tenure, but he comes close to ratifying the implicit position that those privileged with tenure are the most oppressed and distressed by the emerging new order. Tenure exists for two historically essential reasons, to protect the intellectual freedom of scholars from political pressure and retribution and to entrust governance of the school with those whose work is at the heart of the enterprise. It is not a gift; it is an obligation.
The work of law professors is and ought to be of such quality and import that it speaks uncomfortable truth to power. We are lawyers first, public citizens obligated to seek improvement in the law, who necessarily challenge and criticize prevailing structures. If a scholar needs protection for the political voice of a law review article, how much more does a clinician need similar protection when the clinic files a suit, takes a client, organizes for reform and advocates zealously for justice.
If tenured faculty are not producing work of such quality that it demands protection from political pressure, or if tenured faculty have not governed their institutions sustainably, then perhaps their tenure is the very problem binding law schools.
On the other hand, if more kinds of teachers with diverse gifts and talents had tenure, perhaps the governance would be more nimble, wiser and more apt to adapt.
If law schools tremble before the “aggressive push” for experiential learning, from the bar, bench, students, employers, alumni and the market, then perhaps empowering more types of professors is the wise move of those already at the helm. If tenure is to ensure the sustainable mission to teach and learn, and if schools are faltering in a changing market after a century of inertia, then including more professors with the “gift” of tenure could stabilize the uncertainty.
Further, the existence of classes promotes and perpetuates the binary angst of those with the privilege of tenure and the frustration and anxiety of those without it. The class system of legal education generates a zero-sum bloodletting in the classic contest of those privileged with more power against scrappier, highly motivated activists with less of it. It also promotes a false dichotomy between scholars and “other” professors, instead of contemplating a more cohesive idea of diverse teachers in common cause.
To defend one’s privileged place at the head of the table will ensure conflict. To welcome more people to the table with knowledge, wisdom and talent can only strengthen the institution and culture of a school.
Of course, there will be conflict in our demanding new market. Faculties, deans and universities will disagree on resources, priorities and investment. We will struggle over the weight and investment in the three apprenticeships. Crises beget reactive entrenchment and forlorn charges. Some will be defensive; others will be brazen. The question is whether these decisions mean civil war or whether they mean constructive deliberation.
In alternative dispute resolution, we mediators talk about the difference between distributive bargaining and integrative bargaining. In distributive bargaining, the parties attempt to negotiate who gets the most of a limited resource. It is often positional and confrontational, an argument over who deserves a greater portion of a scarce, finite commodity. It is arguing over who gets a bigger piece of pie, and why they deserve it by their greater worth and more righteous position.
In integrative bargaining, the parties look for ways to make the pie bigger. Constructive, integrative bargaining does not pit the parties against one another and gives less regard to the relative worth of their competing positions. Rather it honors competing interests, seeks common grounds and goals, then sets forth to imagine new paths where everyone is satisfied and everyone gets richer.
Distributive bargaining works best when the parties do not care whether their relationships will continue but only care whether they get the best deal possible, without regard to the cost imposed on the other side.
Integrative bargaining is better when the parties must exist in relationship together or will depend on each other to ensure that their respective interests thrive.
If a tenured scholar believes that clinicians are chipping away at her lucrative piece of a dwindling pie, then she may be willing to go war to deny them resources or an advance in their work. If a clinician believes that he has to agitate, shame, threaten or moan about a subjugated and neglected place on the faculty, then he may be willing to go to war in confrontational advocacy, if he has any kind of status and security of position.
Alternatively, if the professors, from their various roles in the academy, can agree that their interests are integrated and that their goals are consistent, then the possibility exists for everyone to have more pie. Everybody likes more pie.
If teachers who are primarily scholars can recognize the value and contributions of the teachers who are primarily practitioners and the lessons they teach, without imposing a tired hierarchy, then there is hope that they can create something cohesive and valuable for the students they teach together. If they can see themselves as fellow teachers in common cause, dependent on each other for success, then perhaps they can imagine better ways to teach students.
Perhaps by teaching students better, applications will increase, and enrollment will stabilize.
Perhaps by teaching students better, graduates will get more jobs and be more competitive.
Perhaps by teaching students better, alumni will consider their investments in our enterprise to be money well spent.
This requires a cohesive vision of the school’s mission and the intersecting roles of teachers, but the hard work is worth the effort to avoid civil war.
To survive and thrive in the present trouble, each faculty has a choice. War is not inevitable. Creativity and innovation are possible. Success depends on whether each teacher and each faculty will approach their work and colleagues humbly, intentionally and creatively, with a willingness to adapt for the sake of their common interests.
For those who refuse to change, to share, to work harder, to shed old canards, to reconsider the shape and work of the school, their noses will suffer for the spite of their own faces.