Clinical Law Prof Blog

Liberty, Security and Imagination: Teaching Law Students in the Age of Ferguson

The last night of seminar for the Community Justice Clinic was the same night a New York grand jury chose not to indict the police officer who killed Eric Garner.  The protests in New York that night joined protests underway in the wake of Michael Brown’s killing and the decision of a grand jury in Missouri not to indict the police offer who shot him to death. 

In class I asked my students what would make them demonstrate in the streets, what would make them disrupt freeways, commerce and public spaces.  They answered that they would take to the streets if they did not feel heard or if they felt as if they had no power to effect change otherwise.  They would take to the streets to change a system that would not listen to them, to hold power accountable, to bear witness.    

We discussed why protests turn to riots and what might make a demonstrator burn business and structures in their own neighborhoods.  No one condoned looting and burning for their own sake or as effective political moves.   We had good discussions about seeing a blighted neighborhood as a symbol of oppression in its own right, how a ghetto might be a prison build on systemic, generational racism, so that burning one’s own neighborhood might just be rage at the ever-present symbol of one’s own confinement and disenfranchisement. 

We read King’s answer to those who challenged him about demonstrations turning to riots: 

Now I wanted to say something about the fact that we have lived over these last two or three summers with agony and we have seen our cities going up in flames. And I would be the first to say that I am still committed to militant, powerful, massive, non-violence as the most potent weapon in grappling with the problem from a direct action point of view. I’m absolutely convinced that a riot merely intensifies the fears of the white community while relieving the guilt. And I feel that we must always work with an effective, powerful weapon and method that brings about tangible results. But it is not enough for me to stand before you tonight and condemn riots. It would be morally irresponsible for me to do that without, at the same time, condemning the contingent, intolerable conditions that exist in our society. These conditions are the things that cause individuals to feel that they have no other alternative than to engage in violent rebellions to get attention. And I must say tonight that a riot is the language of the unheard. And what is it America has failed to hear? It has failed to hear that the plight of the negro poor has worsened over the last twelve or fifteen years. It has failed to hear that the promises of freedom and justice have not been met. And it has failed to hear that large segments of white society are more concerned about tranquility and the status quo than about justice and humanity.

We compared and contrasted those who would interrupt commerce and disrupt a marketplace in protest of injustice with the old American heroes who destroyed the private property of business owners shipping tea to be taxed by the Crown, by dumping it into Boston Harbor. 

I asked the students, these future lawyers, what conditions must exist for a loser, someone who receives an adverse decision or must endure an unfavorable legal or political outcome, to accept it.  In a democracy, how must the system operate to ensure that losers accept an outcome rather than resorting to violence, vigilantism or self-help?  They answered that the party who loses must feel that the process was fair, that the case received a neutral hearing, that they could trust the people in the process.  If a loser trusts the system to adjudicate a claim fairly and without bias or favoritism, then the loser is more likely to go peacefully.      

This led us to discuss the profession’s historic, moral call to public citizenship.   The ABA Model Rules of Professional Conduct express the call that lawyers (every lawyer, not just bleeding hearts) are “public citizens” who should “further the public's understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance.”

Last week, the national discourse changed again when New York City Police Officers Wenjian Liu and Rafael Ramos were assassinated by a violent man who had shot his girlfriend hours before he shot the officers.  The killer claimed to target police because of Ferguson.  This crime is abhorrent, the vicious murders of public servants bound to protect and serve their communities.    

For some, this changes the rhetoric of the debate, and they demand that citizens silence their grievances against police excess and corruption.  Some blame recent protests against police use of deadly force, systemic racism and mass incarceration for inciting this violence against the police.   Some have blamed the civilian political leadership for undermining police authority by pushing for reform and accountability.    

Brutal and discriminatory police practices do not justify violent attacks against the police.  Perceptions of ambiguous threats by unarmed citizens do not justify deadly force by the police.  Neither justifies the suspension of the Rule of Law, civil rights and social morality.  In America, the state’s police power cannot rightfully silence and suppress dissent and the people’s call for a redress of grievances, and the people should not return violence for violence.  

When blood flows, the rift grows between the police and the policed.   As trust deteriorates, deference to authority becomes increasingly tenuous, and the authority may respond with more force and power to ensure the subjects’ deference.  A street occupied by a militarized police force may experience more violent protest than one patrolled by a civilian police presence, because the people will oppose the excessive force with greater force.  An overwhelming presence of police can bring security but can also heighten fears and chill community engagement. 

We are not bound to these binary choices, either capitulation to absolute police authority or surrender to violent crime.  As Ben Franklin advised us, we cannot trade liberty for security and keep either.   We must imagine new paths of justice and peace.  New paths require trust among the police and policed, the state and the citizen, the sovereign and the subject, neighbor and neighbor.  If we are serious about avoiding the persistent mistakes of the past, we must include more people, more communities, more voices, more criticism and more ideas in our discourse.  So long as discrete communities are alienated, targeted and excluded by the power of the state and our economic systems, we will reap what we sow. 

As Prof. Laurent wrote earlier, this is ours.  We are lawyers.  We are the keepers of the justice system, operatives of the Rule of Law.  When we prescribe more trust in the system, we are calling for more trust of the people in the system, and the people in the system are lawyers.   Our students, the students with whom we practice law in our clinics, the students before whom we model our own public citizenship will carry that weight and that obligation into the world.  This is the work of lawyers, to reform the law and to advocate for a sustainable, accessible justice system that invites fulsome and fair participation.     

We can mourn both the loss of police killed in the line of duty and those killed by police without justification. We can fight against the outrage of systemic racism and denounce the brutality of an assassination of public servants. We can enforce our laws vigorously and demand democratic accountability of state police power. We can build trust in our legal system and public servants while resisting violent crime without militarizing our streets. We can defend ourselves without going to war with neighbors. We can achieve liberty, security, justice and liberty for all, but the social contract always and ever requires humility, presence, discipline, conviction, inclusion, patience and nonviolence.

Igniting Law Teaching 2015

LegalEd is now accepting proposals for Igniting Law Teaching 2015, which is scheduled for March 19 and 20, 2015, at American University Washington College of Law in Washington, D.C. All proposals must be received by January 15, 2015.

Igniting Law Teaching 2015 is not a traditional law conference. Participants prepare 5-10 minute engaging presentations on legal education in TedX-style formats that will be digitally recorded and distributed online on the Legal Ed website, which can be found here. Igniting Law Teaching 2014 produced nearly three dozen legal education videos from professors all over the country, including a number of clinical professors. The recordings have been viewed hundreds of times by law school faculty, administrators, students, and alumni both in the U.S. and abroad, and the Journal of Legal Education is devoting an entire issue (Spring 2015) to the research underlying the 2014 Ignite Law Teaching recordings.  

If you are interested in modernizing legal education to make it more effective, efficient, and relevant, I encourage you to consider participating in the 2015 Ignite Law Teaching event. More information about the event and submitting a proposal can be found here.

Proposals Due January 15 for GAJE's 8th Worldwide Conference

As you get ready to swap out your 2014 calendar for your 2015 calendar, make sure that you note that proposals for presentations at GAJE's 8th Worldwide Conference are due January 15, 2015. The conference will be taking place at Anadolu University in Eskişehir, Turkey, from
22 July through 28 July, 2015. More information can be found at http://www.gaje.org/8th-worldwide-conference/.  The general theme is "Justice Education for a Just Society" with eight streams ranging from regional and international collaboration to innovations in justice education to creating clinics that are sustainable. The conference will be combined with the 2015 Conference of the International Journal of Clinical Legal Education. A limited number of grants will be made available to participants from developing countries. Grant applications are also due by January 15.

I hope to see you in Eskişehir next July!

 

AALS Winter 2014 Newsletter

Today, Prof. Liz Keyes of Baltimore published the AALS Winter 2014 Newsletter on behalf of the AALS Section on Clinical Legal Education.   (In full disclosure, I sit on the Section's communication committee.)   Prof. Keyes, coordinating with this blog's Prof. Tanya Cooper who edits CLEA's newsletter, has overseen a new format for the AALS newsletter.   

The newsletter is organized by themes and topics, not by school, and it includes these new sections:  Committee Reports & Updates, Announcements and Clinical Program News.   Clinical Program News includes updates on schools' experiential requirements, innovations, collaborations, new or expanded clinics, awards, successes and other news.

Download the newsletter here and enjoy:  AALS Winter 2014 Newsletter

 

This is Ours.

These last few weeks have been devastating.  I find myself at extremes—on the verge of tears or boiling over with anger.  I do not understand the range of responses to the loss of human life.  I cannot understand the lack of civility, accountability and respect for the sanctity of human life, regardless of technicalities, action, inaction, past action, body size or skin color… 

 

But what has been most devastating is the silence.  The silence of my colleagues, my students, my profession….Never have I found so many of us with so little to say.  And while the silence may be benign, it certainly does not feel that way.  I cannot explain why the silence seems so deafening, so sinister, so dark, so loud, but it does.  The silence feels like indifference or defeat.  

 

And I understand that we are silent for so many reasons.  Because we aren’t ready to, aren’t sure how to, don’t want to talk about it.  Because we don’t want to offend, admit, deny, accept, acknowledge or be complicit in it. Because it’s complicated, nuanced, jumbled, overwhelming and there are just no clear solutions, resolutions or easy answers.  

 

But silence cannot be the answer, especially not for us.  

 

This is ours.  We create it, sustain it, perpetuate this system.  We are not outsiders, on the periphery, the borders, or the edge.  We are in the belly of the beast; we are the beast.  We are in it, we are it.  It is us.  This is ours.  And so it is our responsibility to act, to fix, to change, to remedy.  How? There is no clarity here, the path undefined, hazy.  But we start by owning it.  This is ours.   We own it and we march.  We talk, we debate, we blog, we discuss, we bring it to light – in forums, in conferences, on the news, individually, in the classroom – we are unceasing.  We use our tools:  facts, precedent, policy and logic.  We.Do.Not.Stop. Because this is ours.  

The Trouble with Hope, the Problem of Despair

Over Thanksgiving, VOX published a post, 26 Charts and Maps to be Thankful For, showing how the world is getting better.   Extreme poverty has fallen globally.  Hunger is falling. Child labor is in decline.  Life expectancy is rising.  Death is childbirth is rarer.  Teen births in the US are down.  War is on the decline.  Homicide rates are falling in Europe and the US.  Violent crime is down in the US, and there are far fewer nuclear weapons in the world.  Democracy is spreading, and far more people are going to school around the world. 

These are all data points demonstrating progress, however halting and grinding, across fundamental human experiences.    I was happy to see it and share it, especially after weeks of bad news about racial injustice, police violence, brutal fundamentalism and vicious anger toward immigrants and the poor, but what is the cost of celebrating incremental systemic improvement?

Falling infant mortality rates are cold comfort to a mother who cannot feed her baby healthy meals in a food desert.   Improving statistics on violent crime do not comfort the kid whose big brother is shot in the street.   The Dreamer who can stay to learn and work still sleeps in fear that she can lose her family at any moment. 

Celebrating progress can deaden the fierce urgency of now, and marking progress can give cover to those who would stonewall and apologize for the status quo.   “Look, it’s better than it was.  Calm down.”  All of these trends threaten someone’s power or wealth; otherwise, the progress would not be incremental.   

Ignoring or rejecting signs of progress, however, can generate more problems.  At some point, the lesson of history becomes clear, and the scales tip toward justice.   The advocates of justice and progress in the face of entrenched power eventually can claim with strength that they are on the right side of history and can put the inertia of power on defense.   The narrative changes to favor justice, to regard demonstrators not at agitators but as heroes.    Everyone will want to claim that they were on the side of justice all along, not waiting to see which way the battle will end.   The social struggle continues, but the outcome is more secure.   

In an interview this week, Chris Rock responded to a question critical of incremental change in the 50 years since the Civil Rights Act, citing examples of cruel rhetoric in our politics:

. . . . The stuff you’re talking about is pockets though. There’s always going to be people that don’t know that the war’s over. I’m more optimistic than you, but maybe it’s because I live the way I do. I just have a great life, so it’s easier for me to say things are great. But not even me. My brothers drive trucks and stock shelves. They live in a much better world than my father did. My mother tells stories of growing up in Andrews, South Carolina, and the black people had to go to the vet to get their teeth pulled out. And you still had to go to the back door, because if the white people knew the vet had used his instruments on black people, they wouldn’t take their pets to the vet. This is not some person I read about. This is my mother.

Without hope that the world can and does change, the struggle for justice becomes a fruitless, foolish chasing after the wind.    It is the bulwark of the status quo, of the powerful, to convince the oppressed that they should be oppressed, always will be and always have been.   Claims to the natural order of hierarchy or the divine imprimatur to rule need the world to be static.   Marking progress and demonstrating change proves that the world is not static, and perhaps, just maybe, the long arc of the moral universe does bend toward justice. 

De facto segregation is stubborn.  De jure segregation died hard, though, and this shows that segregation is not inevitable.  Systemic sexism promotes objectification and exploitation of women and girls.   Women have voted for a century, though, and their suffrage has radically changed the substance of our laws, politics and governance, showing that patriarchy and misogyny are not necessary to the natural order.  Systemic racism permeates our society and our institutions.   No one serious or respectable will claim to be a white supremacist or will claim Jim Crow, and the shame of saying it out loud shows how the narrative can change.  People still hunt for health care that does not bankrupt their families.   Systemic healthcare reform and access to insurance demonstrate that quality care is not ordained for some and forever elusive to others.   

Claiming victory and marking progress prove that injustice is not static and entrenched but that we can achieve it in increasing measure, however incrementally.       

Marking progress can energize the urgency of movements toward justice by giving hope of success, while risking the despair of disappointment.   In a 1988 Ebony article, Rosa Parks said, “I find that if I’m thinking too much of my own problems and the fact that at times things are not just like I want them to be, I don’t make any progress at all.  But if I look around and see what I can do, and go on with that, then I move on.” 

I am largely immune from the bad statistics, largely safe from the bad outcomes and systemic injustices.  King is right that injustice anywhere is a threat to justice everywhere, so inasmuch as we can, we enter the struggle for the sake of every community.  As a person of privilege across several intersections, I must learn the stories and lessons from Rosa Parks and Chris Rock without appropriating their stories as my own.  I must guard against the comfort that I can take from abstract statistics even as I provide legal services to vulnerable clients who are facing immediate crises that are not at all abstract.   I want to learn from history and from those we serve in struggles for justice to give proper weight to hope and progress, to urgency and criticism.   I want to learn from the progress of justice movements without diminishing the anguish of current events, but I also take courage, strength and inspiration from the battles so far.  

Self-destructive injustice is not inevitable or ordained in nature.   The arc really does bend, so long as we work to bend it. 

JOBS: OneJustice Senior Staff Attorney

From our friends at OneJustice: A position announcement for a Senior Staff Attorney to manage the SoCal office and Pro Bono Justice Program.