Thursday, January 28, 2016
With thanks to my colleague and co-blogger, Prof. Tanya Cooper, and her team who edit the CLEA Newsletter, I am cross-posting my article on California's TFARR proposals from the Winter 2015-2016 issue. This is a variation on a theme I've addressed previously on this blog.
In November 2014, the State Bar of California’s Task Force on Admissions Regulatory Reform (“TFARR”) completed twenty-eight months of work considering new standards for admission to the bar. TFARR followed dramatic new standards for admission to the New York bar that require pro bono and increased experiential learning requirements in law school. (New York announced its final, amended rules in December 2015, available through links here.)
TFARR’s policy is to protect the public and to promote the profession by ensuring law students are better prepared to be ethical professionals when they enter practice. TFARR’s proposals do not bind law schools directly. Rather, they would impose requirements for admission to the California bar that would implicate every law student’s experiences and curricular choices in law school. In early 2015, the Bar’s Board of Trustees adopted the report and proposed new rules. They are not effective yet but await approval and enactment from the California Supreme Court.
Complete information and the text of the proposed rules are available at the TFARR pages on the Bar’s site here.
TFARR’s proposed rules include two important enhancements to experiential learning that will affect all law schools in California and any law student in the country who seeks admission to the California bar. First, the proposed standards would require students to complete fifteen academic units of experiential course work. This “practice-based experiential competency training” would include clinics and externships. It would also include typical simulation and “professional skills” courses (now known as “experiential” under recent ABA revisions) as designated by the law schools. TFARR also permits law schools to designate an experiential component within a standard doctrinal course to count toward this training. First year legal research and writing courses will not count toward the fifteen units. (TFARR’s requirement exceeds the new ABA standard that requires students to complete six units of experiential course work, and the ABA rules do not permit schools to carve out a portion of otherwise doctrinal classes as experiential.)
The proposed rules provide for an alternative path to fulfill a portion of the competency training through “apprenticeships” outside of law school curriculum. An apprenticeship is supervised legal work, with or without pay, like traditional judicial or law firm clerkships or summer associate jobs, which meets expressed pedagogical standards. A student could earn up to six units toward the required competency training through an apprenticeship. Every fifty hours working in a qualifying apprenticeship can count as a unit toward the fifteen required for bar purposes, although these would not be academic credits toward law school graduation.
Second, the TFARR admission rules would require applicants to provide fifty hours of supervised pro bono legal services. The new rules aim for increased access to justice, but the principle policy is to provide experience in practice that inculcates virtues and values of public citizenship and ethical lawyering. The TFARR definition for pro bono is very similar to Rule 6.1 of the ABA Model Rules of Professional Conduct. From the proposed requirements:
“Pro bono” means providing or enabling direct delivery of supervised legal services without expectation of compensation from the client other than reimbursement of expenses to
(1) persons of limited means . . . ;
(2) charitable, religious, civic, community, governmental and educational organizations in matters that are designed primarily to address the needs of persons of limited means; or
(3) individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights, or charitable, religious, civic, community, governmental and educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization’s economic resources or would be otherwise inappropriate.
Qualifying pro bono experiences can be in law school clinics, field placements in these categories, or other volunteer or internship opportunities with lawyers in these categories. Some questions remain about whether placements with prosecutors or courts would qualify, but the general consensus is that these placements do not qualify because they do not fit the definitions.
Under the proposals, students could earn “dual credit” toward both requirements in law school clinics and qualifying field placements. This provision creates great incentives for students to enroll in experiential courses that satisfy the pro bono requirement simultaneously. This, in turn, creates incentives for law schools to increase capacity in diverse clinical and externship courses.
The proposals create new challenges and opportunities for law schools and collaborating public interest lawyers. Very often, law students earn externship credit with public interest legal services providers, and the new rules may create dramatic new demand for these placements where students can earn dual credit. The rules could increase talent and capacity available for public interest lawyers, but it could also impose new burdens on training and resources to supervise law students who work for a relatively short time. At once, TFARR will require increased collaboration among law schools and legal services providers while deepening the need for more capacity within law schools to provide these experiences.
Some law school administrators, most notably not from California, have leveled reactionary criticism that TFARR rules intrude on law schools’ priorities and pedagogy. A few deans have argued that these new rules would limit law student options and squelch innovation. This criticism runs counter to the experiences at law schools that are preparing for the new standards instead of opposing them. TFARR does not stifle innovative teaching; TFARR promotes it.
Pepperdine University School of Law is the first California law school to adopt the TFARR standards as its own graduation requirements. Beginning with the Class of 2017, students must complete fifty hours of pro bono service and fifteen units of experiential courses. This has spurred efforts to use existing resources and to experiment with new course forms to build internal capacity so that students have sufficient opportunities to complete the requirements across diverse practice areas. In addition to existing clinics, externships, and experiential courses in alternative dispute resolution, Pepperdine has developed new clinics devoted to corporate and policy practice for nonprofits, multidisciplinary practice around gender-based crimes, and tax practice for indigent clients. The law school is experimenting with practicum courses focused on federal criminal practice and on diversionary sentencing and civil legal services for veterans. It is launching new practice-based initiatives for entrepreneurship and tech start-ups. Doctrinal professors are designing practice-based components in substantive courses like torts, ethics, intellectual property, entertainment, and privacy law. Faculty, students and staff are generating pro bono opportunities with collaborators in Los Angeles, rural Southern California, Washington D.C., and abroad in Europe, Asia and Africa.
TFARR reforms would formalize policies that most law schools already tout as aspirational virtues. The new rules would promote professional formation and client-readiness. They are consistent with moves toward formative assessment. In the marketplace of legal education and law practice, the bench and bar have been pushing applied, apprenticeship education back onto law schools for a generation. Law schools have responded in varying degrees of cheerful creativity or reactionary opposition, but with TFARR, and the New York rules before it, the bar has gotten serious as law schools have slowed their responses in the present enrollment and economic crises. These moves are the market signaling to law schools that they must do a better job teaching students how to be ethical, useful professionals, for the sake of justice, the rule of law, the public, and the profession itself.
Wednesday, January 27, 2016
Conference: Responding to the New ABA Standards: Best Practices in Outcomes Assessment (Boston U. April 1-2)
I am pleased to provide the conference schedule for “Responding to the New ABA Standards: Best Practices in Outcomes Assessment,” which the Boston University School of Law and the Institute for Law Teaching and Learning are co-sponsoring. The schedule is attached and also copied below. The conference will take place on Saturday, April 2, at the Boston University School of Law. It will include a presentation on the new standards by Bill Adams, Deputy Managing Director of the ABA Section of Legal Education and Admissions to the Bar, and workshops led by legal educators who specialize in the area of assessment. There is an opening reception on the evening of Friday, April 1.
Here is the Schedule: Schedule BU Outcomes Assessment Conference
Sunday, January 24, 2016
Recently in talking with one of my clinical colleagues regarding a particularly negative student evaluation the colleague received, one constituting more of a personal attack than a teaching evaluation, I said all the things I think useful in this situation . . . “You’re focusing on the one negative comment that makes little sense, rather than all of the outstanding evaluations from your other students;” “This student obviously took advantage of the anonymous evaluation to let out his or her frustrations, no doubt some related to clinic, and some not;” “Let’s look at those comments that offer some constructive suggestions and focus on how you might want to address some of them in the coming semester;” and finally, “Consider the theme song from Frozen, and Let it go!. If you don’t, your disappointment and frustration may spill in to your new class of students.”
I also shared that the irony in all of this advice was that I had, just two days earlier, struggled with my own devastating student evaluation. In fifteen years of teaching, I could not recall a more critical assessment of my approach to students. I was crushed. The evaluations sent me into a tailspin of self-doubt so overwhelming that I shared them with the administration so they would see them from me first. Thankfully, my wise colleague wrote back that there were tremendously positive things in the evaluations that I should be very proud of, and that it appeared to her that I had one particularly critical and unhappy student who was the author of the comments that were so distressing. She also thanked me for taking the evaluations so seriously and finding the feedback important to my teaching.
Once I had that rational frame of reference I looked back. There were several useful suggestions that could still be incorporated for the spring semester. There was laudatory praise for the clinic experience and my teaching and supervision. Yet all that registered when I first read them were the comments that expressed dissatisfaction and criticism. Since then I have been reflecting on why the negativity was the priority when my colleague and I each reviewed our evaluations.
As clinicians, we teach less students than our doctrinal colleagues. Typically, we spend much more one-on-one time with our students, and it is our lawyering, as well as our teaching, that we share with them. It is a personal relationship, as the one of mentor and mentee always is, and, I suspect all of you give as much of yourselves to your client representation, student supervision and teaching, as I do myself. So a negative reaction from a student, even one, can take on monumental importance because they are evaluating us not only as teachers, but also as colleagues. Our students see us in times of crisis with clients, in stressful case situations, juggling teaching and practice, and we allow them to see us professionally, and, on occasion, personally. We cannot hide behind a podium or scholarship, and we cannot always be “on” in front of our students. Sometimes what we do in clinic and as teachers is messy, as are the challenges our clients bring to us.
So I am going to do my best to follow my own advice and “Let it go!” Because one of the best things about teaching is that every semester is a new beginning, and a fresh opportunity to refine our skills as lawyers, teachers, and people. I need to model this rational reaction to evaluations for my clinical colleagues, and also give my new students the benefit of a clean slate. I always have room for improvement, and a new semester is just the place to start.
Friday, January 22, 2016
Today, January 22, 2016, is the deadline to submit Comment to the ABA regarding its proposals regarding externships, including to permit paid field placements. The details of the proposals and instructions for submitting comments are here.
The AALS Section on Clinical Legal Education and the Clinical Legal Education Association (CLEA) have submitted comments.
The CLEA statement is here: CLEA Comments on Proposed Standard 304(c) and Retention of Interpretation...
Here is the full text of the comment from the AALS Section:
AALS Section on Clinical Legal Education
Statement of Position on the Proposed Revisions to ABA Standards 304 and 305 Relating to Field Placements and the Elimination of ABA Interpretation305-2 Prohibiting Paid Externships*
The Association of American Law Schools Section on Clinical Legal Education (“the Clinical Section”) expresses the following position on proposed revisions to ABA Standards 304 and 305 relating to field placements. The Clinical Section is composed of 690 legal educators who have dedicated their professional lives to preparing students for the practice of law through in-house clinics, externships, and other experiential educational offerings. Based on this collective experience, the Clinical Section believes that the relocation of provisions specifically addressing field placements from Standard 305 to Standard 304 and the proposed additional requirements are steps forward. However, the proposal to eliminate Interpretation 305-2, which would repeal the prohibition on compensation to students enrolled in field placement (externship) programs, will have an adverse impact on the quality of externship courses. No set of regulations will effectively counteract the compromised and subordinated educational mission that would result from the introduction of payment into the field placement setting.
The proposal to move the regulations concerning field placements to Standard 304 and much of the language reflected in the proposed revisions from Standard 305 to Standard 304 acknowledges field placements as academic courses that, like law clinics, provide students with substantial lawyering experiences. The addition of Interpretation 304-1 further acknowledges that a field placement, like certain simulation courses and law clinics, may qualify as an experiential course under Standard 303 if the requirements set forth in Standard 304 and Standard 303(a)(3) are met.
That proposed Standard 304(c) aligns the requirements for field placement courses with those of law clinics and simulations appropriately recognizes the educational nature of field placement courses. Like clinics and simulations, the proposal focuses on the similar need for careful supervision, the opportunity for performance, feedback, and self-evaluation, and faculty-led instruction. At the same time, the retention of many of the requirements previously part of Standard 305 and the inclusion of certain new requirements recognize the unique nature of field placements in providing substantial lawyering experiences through partnerships between law school faculty and site supervisors outside the law school. As relocated to and revised in Standard 304, these requirements will help ensure that the educational focus of field placement courses remains paramount by emphasizing the continued development of externship pedagogy and providing improved guidelines for defining programmatic expectations.
In contrast, the proposal to eliminate the prohibition on paid externships through the deletion of Interpretation 305-2 will adversely affect the quality of externships. There is a consensus within the clinical teaching community against removing the prohibition: during the last notice and comment period in July 2015, after renewed advocacy on both sides of the issue, 100% of the comments submitted by law school clinical educators to the ABA opposed removing the prohibition. We are, of course, deeply concerned about the cost of law school, ever-increasing student debt, and students’ need for income. We note that the Council has recently provided further guidance on ‘reimbursements’, in an August 2015 Guidance Memo on reimbursement for field-placement expenses. This represents a step in the right direction, permitting limited reimbursement for transportation, housing, and food. We support further movement in this direction, such as permitting reimbursement of the cost of student tuition or the award of fellowships from third party sources. Nonetheless, the Section is extremely concerned that allowing credit for paid employment will undermine the student educational experience that is at the heart of the proposed safeguards otherwise set forth in revised Standard 304. Removing the restriction on compensation is not the way to address these student concerns.
The long-standing prohibition on paid externships ensures that the educational goal of the field placement is primary. In lieu of providing payment, site supervisors teach and mentor students while providing them with quality educational experiences through opportunities for performance and feedback in furtherance of the student’s individual learning objectives. Within this distinctive academic framework, site supervisors have an incentive to provide students a quality educational experience and both students and faculty are empowered to ensure that students receive one.
Allowing compensated student jobs to count for academic credit is without precedent, yet that is precisely what removing the prohibition would do. In a paid employment relationship, the student’s educational experience would necessarily become secondary. Because the employer is paying for the performance of specific work, there is an expectation that the student will provide value to the employer. As a result, the employer will be more likely to assign tasks that benefit the employer as opposed to tasks with the primary focus of advancing the student’s learning objectives. And because students are getting a financial benefit that may also be tied to the possibility of future employment, students will be less likely to insist that they receive meaningful opportunities for performance and feedback or to provide a candid assessment of their field placement experiences. Allowing field placements to pay students for work performed also will negatively impact the dynamic between faculty and site supervisors. Once a site supervisor pays a student to perform work, it becomes much more difficult for the faculty member to insist that the student receive a certain level of supervision or specific experiences to further the student’s learning objectives.
As revised, Standard 304(c) will not protect against the subordination of the student’s educational interests or the academic mission of a field placement course. The proposed language of Standard 304(c) cannot and does not require paying employers to offer students educationally valuable experiences that are economically disadvantageous to their business. Moreover, the requirements of a written understanding and “sufficient control of the student experience to ensure that the requirements of the Standard are met” cannot and will not overcome the power imbalance that will be a natural consequence of an employment relationship. No written understanding will trump the employer-employee relationship established once a field placement pays a student for work performed. Likewise, the “sufficient control” language does not provide guidance as to how much control is “sufficient” for any externship and, particularly, paid externships. Rather, the addition of this language underscores the control problems paid externships will create without providing any concrete methods to ensure that control of the student’s field placement experience will remain with faculty.
In addition to the consequences outlined above, paid externships will likely have the unintended impact of reducing the number of students exposed to and doing social justice work through their field placements. Law schools typically include non-profit, judicial, and government placements as part of their externship offerings. Some field placement programs also include for-profit placements. With the addition of paid externships, it is anticipated that the number of for-profit placements would rise. Although schools would not be required to offer paid externships, in the competitive law school market, it would be nearly impossible to avoid. If one school allows paid externships, there will be an increased pressure on other schools to allow them. Because for-profit placements are generally more able to pay their externs and possibly offer future employment, students may be less inclined to do an externship at a non-profit or governmental entity. Although some non-profits and governmental entities have the ability to offer a stipend or nominal pay, the majority likely will not be able to offer a stipend, pay, or possibility of future employment competitive with for-profit placements. This will make for-profit opportunities more attractive to students, a result that concerns the Clinical Section given the commitment to social justice of both the ABA and the clinical community.
Regardless of regulation, permitting compensation in field placements will severely harm, if not entirely displace, the student-first learning experience that is the aim of legal education. For that reason and others articulated above, the proposed revisions to Standards 304 and 305 relating to field placement courses should be adopted, and should continue to include current Interpretation 305-2 and its prohibition against paid externships.
* Disclaimer in accordance with AALS Executive Committee Regulation 1.4: The opinions expressed here are those of the Clinical Section and do not necessarily represent the position of the Association of American Law Schools.
Thursday, January 21, 2016
Ohio State's Deborah J. Merritt gives thoughtful commentary on the false divides between clinical, legal writing, and doctrinal faculty, in a piece over at Law School Cafe blog (available here:Little Staff Attorneys). For those of you disinclined or otherwise unable to click through, here is the full text:
Law School Cafe
At the AALS meeting, a friend of mine (and tenured professor) stood chatting with a few tenured colleagues from other schools. Conversation turned to work that another professor had done in a clinic. “Yeah,” said one of the professors, impressed, “and they didn’t even have a little staff attorney to do all the work.” My friend protested this derogatory reference to staff attorneys, and the professor apologized, but the remark was telling.
This is how all too many tenured professors think of clinical work, clinical professors, and staff attorneys; the same attitude applies to legal writing professors. This work, we assume, is simplistic and doesn’t merit our full attention. It can be done by “little” people.
Professors who teach legal writing and clinics are, indeed, “little people” in most of our law schools. They earn less than tenured faculty, have less job security than tenured faculty, and share fewer governance rights. Yet these professors teach students the heart of lawyering. They teach students how to write like lawyers, how to speak with and write to a wide range of audiences, and how to solve lawyering problems.
After thirty years teaching all types of courses (doctrinal law, interdisciplinary subjects, legal writing classes, and clinics) I’m convinced that clinical and writing professors have the greatest impact in teaching students to think like lawyers. Tenured faculty prompt that work in the doctrinal law classroom, but first-year students learn how to do it in their legal writing classes. That’s where they “think” in writing and without leading questions. They also receive personalized, formative feedback that improves their thinking.
Similarly, clinics challenge students to think and strategize, not just within the narrow confines of a classroom question or appellate argument, but within the context of negotiating with an adversary or performing other multi-dimensional tasks. Analyzing an appellate opinion within the four walls of a classroom is much easier than using that opinion (along with a few other opinions, statutes, and uncertain facts) to frame a negotiating strategy for a client who depends upon you.
Why do doctrinal law faculty persist in thinking that legal writing and clinical professors do work that is less intellectually challenging or valuable than the work they do? It’s partly self interest; everyone likes to think that their own work is most important–and to protect their higher salary and earning privileges.
It’s also partly ignorance. Many tenured faculty know little about what happens in law practice, law school clinics, or legal writing classes. Some are not particularly good legal writers, despite their focus on scholarship. Even if they are good writers, they might not know how to teach someone else how to write. Ignorance can make us defensive; we diminish the importance of the things we don’t know.
I’ve also come to think that tenured law faculty constitute a type of cult. We have very specific criteria for admission to this cult, we engage in a narrow range of permitted behaviors, and we celebrate common rituals–one of the most valued of which is deciding who will be allowed to join our cult.
We need to escape this behavior and recognize the challenging, important, and time-consuming work that clinical and legal writing professors perform. We already recognize how much work they do. It’s time to acknowledge–and reward–the importance of that work.
Friday, January 15, 2016
Visiting Assistant Professor of Law
Children’s Defense Clinic
University of Memphis Cecil C. Humphreys School of Law
The University of Memphis Cecil C. Humphreys School of Law is seeking a Visiting Assistant Professor of Law to create, direct and teach a new Children’s Defense Clinic that will launch in the Fall of 2016 and play a critical role in institutionalizing reform in Shelby County’s juvenile defense system. Funding is in place to allow the Visiting Assistant Professor to begin as soon as possible during the Spring 2016 semester and teach through the 2016-17 academic year.
Under the direction of the Visiting Assistant Professor, the Children’s Defense Clinic will provide legal representation to youth who are charged in delinquency proceedings in Shelby County Juvenile Court and in related matters. In addition to representing children in delinquency cases, students may provide advocacy in non-traditional areas, such as: (1) pre-petition matters, (2) postadjudication, (3) school disciplinary hearings, (4) appeals, and (5) systemic reform through policy advocacy or litigation. Pursuant to applicable student practice rules, it is anticipated that Clinic students will engage in all types and aspects of casework, including interviewing clients and witnesses; fact investigations; drafting of motions, briefs, memoranda, and pleadings; development of pre- and post-trial strategies in trial and appellate courts, and in administrative settings; and representation of clients in trial, hearings, oral argument, and in testimony before legislative bodies. It is expected that the Clinic will emphasize team practice and collaboration, building and seizing on interdisciplinary partnerships to provide broadly focused, multi-systemic advocacy for clinic clients.
Candidates should be prepared to present their comprehensive vision for creating, teaching, administering, growing, and cultivating enduring support for the Children’s Defense Clinic. For duties related to the Children’s Defense Clinic, the Visiting Assistant Professor will report directly to the Director of Experiential Learning, and will work closely with the Dean, the Director of Experiential Learning, and Faculty on the development of the Children’s Defense Clinic.
Candidates must possess a J.D. or equivalent law degree, and, among other qualifications, should have a minimum of three (3) years of legal practice experience; a demonstrated interest in children’s criminal defense, substantial experience or interest in representing clients in juvenile justice settings; a strong desire to supervise and work with students; and a commitment to building community relationships and programs. If not admitted to practice in Tennessee, candidates can obtain permission to practice in Tennessee without having to sit for the Tennessee bar examination pursuant to Tennessee Supreme Court Rule 7, Section 10.02 (allowing special admission to practice for attorneys in employed in law school clinical programs).
Applicants should apply through the University of Memphis Work Forum (https://workforum.memphis.edu/postings/11744)and submit a letter of interest, resume, and list of three references to Professor Amy Campbell, Chair, Children’s Defense Clinic Faculty Recruitment Committee, at email@example.com. Write “Children’s Defense Clinic Application” in the subject line of the email. Preference will be given to applications received by January 15, 2016, although applications will be accepted until the position is filled.
The University of Memphis School of Law recently celebrated its 50th anniversary in its new building, the newly restored U.S. Customs House in downtown Memphis. A $48 million project, the structure offers a magnificent setting for learning and teaching and has been recognized as one of the finest law school facilities in the nation and the world. Memphis is a beautiful and diverse city with affordable real estate and an excellent quality of life. The city is known for its friendly atmosphere, revitalized downtown, and attractions such as Graceland, Beale Street, Opera Memphis, Memphis Symphony Orchestra, Memphis Zoo, NBA Grizzlies, Memphis Tigers basketball team, National Civil Rights Museum, and nationally recognized theatre companies.
While the School of Law does not treat race, color, religion, national origin, gender, age, disability, or sexual orientation as dispositive in hiring decisions, the School has a strong institutional commitment to hiring persons who will add to its diversity. The University of Memphis is an EEO/AA employer.
Wednesday, January 13, 2016
“Does it matter?” he asked. We were standing at a sundries kiosk at JFK. I had placed an item on the counter and asked the cashier if they had a different version. “No,” she replied, and while doing so, a white man in his late 30s reached across me and handed the cashier his intended purchase. “Actually, I was next,” I asserted, and he dismissively replied, “No, you weren’t.” I wondered how he logically could believe that he arrived first when I was already engaged with the cashier. She took his item, ignoring mine on the counter, and began to ring him up.
“In fact, I was,” I assured him. “I was standing here, my item was on the counter, and I was talking to the cashier when you just reached across me.” Dismissively, he shrugged while the cashier continued with his transaction. “Does it matter?” he asked.
It was the fourth time in twenty-four hours that people had cut in front of me in lines. Was this just New York culture assaulting my delicate Oregon sensibilities or was something more going on? All four incidents involved white or Middle Eastern men appearing to be between their mid-twenties and their mid-forties. All treated me like I was invisible. Did they feel emboldened by privilege or cultural preemption or did they really not see me?
Was it my packaging of 112 pounds in five feet, half an inch? My female gender? My middle age? I had read research about how people stop listening to women in their 50s. Still in my forties, I wondered whether this was the beginning of my obsolescence.
I thought of the ways I try to make myself bigger, stronger, less subject to being dismissed. I often wear suits and make up and shoes intended to convey confidence. I hold my shoulders back and my head high and talk an octave lower than I did before law school. I look people in the eye and talk directly and with authority. I have read the research. I use my middle name because it is more masculine and add my initials when I need to. When people are condescending, I sometimes have to call them on it and disclose my experience or education or qualifications.
And when someone cuts in front of me in line, I will sometimes assert myself and say, “Actually, I was next,” and they usually agree and step back. But he did not. Instead, he denied reality and then asked, “Does it matter?”
“Why, yes, it matters!” I want to respond passionately. Seeing other people matters. Treating one another with respect matters. Taking turns matters. Not relying on privilege to fast track through life matters.
I thought of all the ways that privilege blinds us to those and that before us—the very tragic and profound ways in which we have told groups of people that their time doesn’t matter, their voice, their opportunities, their health, their education, their very lives don’t matter. We don’t see some people and when they assert themselves—their rights or needs or desires—we, at best, marginalize them and, at worst, are threatened and ostracize and occasionally kill them.
I thought of the implicit bias embedded in his mind that may have made me invisible to him, and the discrimination that is inherent in our cultural DNA—discrimination against women, minorities, immigrants, and those who are disabled, very young or growing old.
I thought of the dual tragedy inherent in our blindness to others. Not only are others dehumanized and subjugated by our blindness, we are dehumanized as well. We are less human and our minds and lives are less rich for not seeing so many varied and lively and colorful human beings who are so very different—in language and appearance and dress—and yet not very different from us at all.
I thought of the threat to society when we are blind to one another, when inequality or privilege is seen as acceptable, if not preferable. What happens to a society where fairness is lacking, and justice does not reign?
Emboldened with these cascading thoughts, I assured him that, “Yes, it matters,” and as I drew my breath to explain all the reasons why, he simply said, “Then you just go ahead,” as the cashier handed him his change and he picked up his item and walked to his gate.
Wednesday, January 6, 2016
From our friends at the University of Washington and the Royal Geographic Society in the UK, comes this very interesting Call for Papers:
Tuesday, January 5, 2016
I am the commuter many of you hate. Maybe I see you alone at the bus stop reading a book that looks interesting and ask you about it. Perhaps I see you looking a little confused on the train platform and ask if you need help figuring out where you are going. Or maybe I see you wearing that Phillies shirt on the train after the game and ask you the score, why you aren’t a Cubs fan like you should be, and how the Phillies will ever improve. In short, I am the overly interested in you transplanted Midwestern type that you may be trying to avoid, trying to draw you into a longer conversation to learn about you. You will succeed in chasing me away with a one-word answer—I am also Midwestern enough to know to leave you alone based on your response—but we’ll miss something. We’ll miss the chance to get to learn a little more about the world and each other together, to possibly become friends (it happens this way!), to learn about books that the other has read that we may enjoy, and to overall feel like we’ve shared a friendly moment with another. It helps me with my lawyering, too. As I listen to your responses, I learn about what is important to you and perhaps to people with whom you connect and maybe to my clients.
Your mobile phone and tablet, however, are taking this away from me. As I wait on the train platform, you more than likely are looking at your phone and checking out Facebook posts. Maybe you have headphones on and are listening to music or a podcast instead of sharing the world with me. Maybe you are reading on your tablet, no longer displaying the cover of your book and giving me no insight into what you are reading that might stimulate a discussion. And it is not just on the train. I know a lot about the people I love, from talking with them, walking and running with them, watching sports with them, and sharing other experiences. But I know less about them than I could and less about those with whom I cannot share as much time. I, too, sometimes have to learn about my actual friends from their social media posts. If I don’t seek those posts out, I may not know what they are reading, thinking, or is otherwise important to them. I hate that. It steals part of our relationship from us.
I really enjoy my brief meetings with commuters when they can happen and talk to my students about its value. Even learning little bits of people's lives helps me begin to understand them. Lawyering is empathy—it is understanding first a little and then a lot more of client’s lives from their point of view. It is the personal evaluation of problems and potential legal solutions made by coming to understand how people fit into their world and our legal system. I want my students to learn about legal empathy—to understand their clients’ stories, their clients’ definitions of their problems for which they are seeking legal interventions, their clients’ goals, and their clients’ tolerance for different legal interventions. I want them to understand enough about their clients to be effective advisors and advocates. It is the difference between the client being represented by an overburdened virtual or actual lawyer for the day or filling out online forms the client hopes can work and instead being represented by a lawyer in a way that understands them and can customize their service for their benefit. Learning about each other, beginning through brief interactions such as those with people we might otherwise have passed by in the world, is an important part of this. And losing our commuter conversations is taking away one way that we can begin to learn about each other.
Perhaps I am infiltrating your world and you are that commuter reading social media posts. How lucky—you are reading this one! If so, look for me. Maybe I am on the platform next to you. I am ready to talk!