Friday, August 25, 2017

Call for Proposals: Externships 9: Coming of Age

Athens Logo


Externships 9: Coming of Age

March 9-11, 2018 

University of Georgia School of Law, Athens, Georgia

DEADLINE: Monday, October 16, 2017

EXTERNSHIPS 9 marks the 20th anniversary of the first Externships Conference in Washington DC, in March 1997, at the Catholic University Washington College of Law. Since that seminal conference, the externship community has come of age. It is time to celebrate and to take stock.

Externship pedagogy has matured, a development displayed in recent editions of the Best Practices Project and of Learning from Practice. Changes to the ABA Standards confirm this maturation, by more clearly defining externship pedagogy as experiential teaching. Teachers and directors of externship courses are now transitioning into faculty roles, with an increased awareness of their contributions to their schools. We recognize and can assess the impact of externship courses on student learning, on student professional and career development, and on institutional outcomes. Research and scholarship regarding externships has flourished with diverse perspectives and values. Finally, we have greater clarity and passion about externships as a way to foster a sense of the public dimension of the lawyer’s role.

The Externships 9 Conference, from March 9–11, 2018 at the University of Georgia School of Law in Athens, Georgia, will develop these themes by assessing the past, present, and future of externship teaching. Its five themes will allow us to explore the potential and the challenges of externship teaching:

            Theme 1: Foundations and innovations in externship pedagogy

            Theme 2: Defining and developing your role within your law school

            Theme 3: The impact of externships on law schools and communities

            Theme 4: Research and scholarship on the externship experience

            Theme 5: Externships and fostering the public dimension of the lawyer’s role

These themes overlap, as they do in our work more generally. The Conference will explore them separately and in their various interactions. We will not offer separate tracks for each theme; presenters need not restrict proposals to one theme. That said, separate tracks for new and for experienced teachers will offer both familiar and new ideas on core externship challenges: how to deliver a seminar; how to work productively with seminar faculty and site supervisors; how to teach the skill of reflection; and how to translate what students learn into transferable skills, enduring values, and professional identity.

We encourage attendance and proposals from clinical faculty (both field placement and in-house clinicians), from deans and associate deans, from career services professionals, and from others interested in both the possibilities and the practical realities of externship courses. We also solicit active participation by international clinicians, both as participants and presenters.

Possible Topics

We encourage you to propose a topic that will develop the conference themes. We append to this RFP a list of specific ideas as prompts for proposals.

The Conference will offer programming for those new to field placement work and for experienced clinicians. To help us plan, we ask that you identify which audience you plan to address – new or experienced or both – when submitting your proposal.

Presentation Formats and Publication

The Planning Committee seeks proposals in several formats:

— Concurrent session

— Workshop or affinity groups by geographic region, topic, or practice area

— Scholarly work-in-progress

— Short presentation (10-20 minutes, TED Talk or similar format)

— Poster presentation

We also seek topics for and facilitators to convene affinity groups, designed for those attendees who would like to meet with others to discuss common issues. Groups may form according to geographical region, practice type (e.g., prosecutorial externships), or concerns (e.g., ABA site visit issues).

We encourage proposals to present scholarly works-in-progress. We may also offer sessions consisting of short, “TED Talk-like” presentations of 10–20 minutes. We also invite proposals for poster presentations.

The Clinical Law Review has agreed to consider papers emerging from the Conference (whether from a works-in-progress session or any other conference session) for publication in a special issue. No guarantee of publication exists; all papers will be reviewed in accordance with the Clinical Law Review’s normal standards. Potential authors must submit final drafts of manuscripts no later than June 1, 2018, for consideration.

Proposal Selection 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 will also have a preference for proposals that:

– demonstrate innovation either in new topics or in new approaches to familiar topics;

– include both new and experienced presenters with expertise in the topic or a base of experience that provides a unique or useful vantage point on the topic;

– indicate specifically how the presentation will encourage active learning by attendees, including specific methods for engaging in interaction with the audience; and

– describe the takeaways that attendees can use when they return to their schools.

We value diversity, both in the composition of presenting teams and in your topic’s presentation of diversity and inclusiveness as a concern in field placement work. The Organizing Committee will give preference for diversity in terms of race, gender, ethnicity, disability, sexual orientation, geographical location, years of experience, type of school, type of program and other factors.

Help with Proposals:

We are ready to talk over your ideas as you develop them. We are also ready to help anyone who is new to presenting at conferences or who wants assistance finding possible co-presenters. Feel free to contact members of the Working Group responsible for conference content to discuss your ideas as you prepare a proposal.

            Carole Heyward,

            Carrie Kaas,

            Kendall Kerew,

            Meg Reuter,

            Alex Scherr,

Submitting a Proposal:

To submit a proposal, please use the form available on the conference web page, here:


Submission deadline: 11:59 p.m., Monday, October 16, 2017.

We expect to make decisions about your proposal by Monday, November 13, 2017. We will notify the contact person for each proposal and may contact you sooner to discuss modifications or to suggest collaborations. After confirming your participation, we will identify a contact person from the Planning Committee who will help you prepare so that your presentation and materials contribute to an excellent conference.

We look forward to working with you,

The Conference Planning Committee:

Tim Floyd, Mercer University School of Law

Alexi Freeman, Sturm College of Law at the University of Denver

Carole Heyward, Cleveland-Marshall College of Law

Bob Jones, Notre Dame Law School

Carrie Kaas, Quinnipiac University School of Law

Kendall Kerew, Georgia State University College of Law

Lisa Mead, UCLA School of Law

Millicent Newhouse, University of Baltimore School of Law

Bridgett Ortega, John Marshall Law School (Atlanta)

Esther Park, University of Washington School of Law

Meg Reuter, University of Missouri Kansas City School of Law

Sue Schechter, U.C. Berkeley School of Law

Alex Scherr, Chair, University of Georgia School of Law

Sarah Shalf, Emory University School of Law


We offer these as suggestions only. Use them as prompts: we welcome your creativity and thoughtfulness. We recognize the possibility that your topic might address more than one theme and welcome proposals that advance one theme or several.

Theme 1: Foundations and innovations in externship pedagogy

  • Developments and innovations in the design and delivery of externship courses
  • Best practices in externship teaching
  • Models for externship teaching in non-US law schools
  • Compliance with ABA regulations on field placements and experiential courses
  • “How to” sessions on supervising students, teaching the seminar, working with site supervisors, fostering reflection, and administering externship courses

Theme 2: Defining and developing your role within your law school

  • How externship faculty contribute through teaching, scholarship, and service
  • Working across the curriculum, with in-house clinic, simulation, or non-experiential faculty
  • Collaboration with legal writing, simulation and doctrinal faculty
  • Working with administration, including an “experiential dean”
  • Working with multiple roles as an externship teacher, such as career services or student services

Theme 3: The impact of externships on law schools and communities

  • Externship courses and the assessment of a law school’s institutional outcomes
  • Externships, hybrids, and practicums: assessing different program models
  • Externship courses and a student’s career development and post-graduate opportunities
  • The impact of externship courses on clients, communities, and the law

Theme 4: Research and scholarship on the externship experience

  • Developing your own scholarship
  • Works in progress on law and policy, empirical research, and clinical pedagogy
  • Using data to assess the impact of externship teaching on students and on service

Theme 5: Externships and fostering the public dimension of the lawyer’s role

  • Externship teaching to develop student commitment to public service / public interest work
  • Externship courses and the teaching of social justice
  • Externship teaching in fostering students’ values and professional identities

August 25, 2017 in Clinic News | Permalink | Comments (0)

Thursday, August 24, 2017

What do we teach about community protests and working for causes?

As my mother gets older and cannot do what she once did, she does not protest or work on social causes as much anymore.  She did, though.  A lot.  One of my strongest memories at age 7 was going door to door canvassing for Eugene McCarthy because Robert Kennedy was not liberal enough and might send more blacks to be killed in the Vietnam War. Oddly, Kennedy was killed the next day, and I was relieved when I found my mother distraught and sad that Kennedy had been killed, and I figured out that we did not have a nefarious part in his death.  But the canvasing had shown me that she knew that part of our role was try to take stands for justice. 

My mother did not stop then.  When I was about 10, she was a social worker doing home visits in Cabrini Green, a Chicago housing project, trying to help in a place so crime-ridden that she was once turned away by police who did not think it safe for a middle-class white woman to be there.  At age 18, when I went to the post office to register for the draft, I had to walk past my mother, who was protesting outside, perhaps egged on by her new husband/my new father who had his own protesting to do.  When the Gulf War happened in 1990, he joined her and they protested together, and when we invaded Iraq in 2003, they were picketing on the street.  They were snow birds by then, but I knew I could not call them on Saturday because that was their day for standing on a bridge somewhere or outside a military base holding a sign, sometimes being yelled at by the passersby. 

What is extraordinary about this other than the commitment my mother has shown is the type of person she is.  She is quieter than some.  She hates confrontation.  Further, she has not had an easy life.  When we were canvasing together, she was already for four years a widow with three kids who at the time of my father’s death were 6, 3, and 21 months.  She was going to school so she could earn enough so that she did not have to depend on Social Security (she started turning down the parents’ share when she started earning enough, though keeping the kids’ share for her kids).  She certainly had other things to do.  When she remarried 9 years after being widowed, our family became 9 people living in a house together, 6 of us between 11 and 17 who were not always so happy to be in the experience.  She had these and other commitments, too. But she protested.

And though I couldn’t tell her, I disagreed with her protests.  Why do you protest?  A lot of good your McCarthy support did.  Humphrey won and then Nixon!  Really?  Do you really think that your sign on Route 1 against the war is going to change whether we go to war or keep fighting?  It seemed fruitless.  If I had to be honest, perhaps her protesting meant more than the law review article I am sitting in my office writing on social justice as a competency and “social justice manifestos,” an article which will be read by a few and be just one among a pantheon of others already written on social justice.  Maybe she did more by protesting.  But how do these protests help?

Which brings me to last Sunday, when I found myself at a demonstration against the white supremacists who marched and then killed and injured some of those that disagreed with them in Charlottesville, oddly enough a town in which my mother lived while my father went to law school.  The protest I attended over Charlottesville had all the makings of the protests that I would find fruitless.  First, it was in my suburban town, where it might be noticed by the community but would go largely unnoticed by anyone outside our community.  Second, it would be particularly unseen by those who held an opposite opinion about what was being protested.  Why protest if it changes no one’s mind?  Third, there was no doubt that the speakers would all say the same thing, as they did.  The listeners would clap at appropriate times but no direct action would be planned that day, which it wasn't.  But I went.  And I did not find it fruitless.

I found some of my neighbors were there, and learned that they were willing to demonstrate, at least when the issue was so obviously outrageous.  I was not alone in my neighborhood.  Then, I saw people from my temple and my rabbi, who must satisfy people of many different political persuasions but was ready to stand for this as he does for other causes.  I am not alone in that community.  Even the repetitive speakers made a difference to me by their presence, including among others our sheriff’s office, our congressman, and our state senator, all of whom I learned were not only supporting the protest but demonstrated that they were willing to speak out for a cause like this.  I found that the predominantly black speakers, whom this directly affects more than me and many of my neighbors, were listened to and their speeches could describe problems better than the whites who were less affected.  I began to feel a little like there could be change despite overwhelming odds when much of our federal government will not take a stand.  I felt a little less hopeless. 

And I thought about what I could tell my students. As their teacher, I will talk with them about the social justice lawyering perspective to protest.  We'll talk about political reasons to protest, some of which include potential change. I'll believe that a little more.  We'll talk about why as lawyers for causes  of communities with which we are working but don't belong should listen to what those closer to the cause are saying and get ideas from them.  We should remember they are better at choosing strategies and be the ones on the front lines--not their attorneys. I'll know that more.  But I’ll also tell them that protests can matter to form community and help people belong. They'll know that when I was part of this protest community, the protest itself helped me belong.  

I’ll go back to my law review article, and if it's accepted (a few weeks late in the cycle), I'll share some ideas with my academic colleagues and maybe with my students about what law school should teach and what I hope they will learn from me and others about social justice.  But I will also talk about my mother and what I learned from her about standing up and demonstrating a little, even if it seems fruitless.

August 24, 2017 | Permalink | Comments (2)

Wednesday, August 23, 2017

California Bar Exam - Call for Comments

Dear Colleagues,
The State Bar of California is in the process of conducting a comprehensive review of its bar exam.  As part of that review, a Standard Setting Study was recently conducted for the purpose of setting the cut score for the July 2017 California Bar Exam.  The State Bar is now seeking public comments on two options: 
(1) maintain the current cut score of 1440, or (2) lower the cut score to 1414.  The State Bar is also soliciting comments more generally about the study and recommendations, including those regarding study methodology.
CLEA today submitted the attached Comment to the California State Bar  Download 8.23.17 Comment. California State Bar .  As you will note, CLEA has not taken a position on the bar exam cut score; rather, we have used this as an opportunity to urge the State Bar to consider the limitations of the current format of the bar exam, and to propose development of an exam that assesses the full range of competencies required for law practice.
We encourage you to submit additional comments, especially those of you who teach at California schools.  Comments are due this Friday, 8/25 through an online form, accessible at 
Because CLEA believes the Standard Setting Study was flawed, we did not indicate agreement with either option listed on the form.  Rather, the attached statement was submitted.
If you agree with CLEA’s position, a comment that reinforces it would be helpful.  Here is suggested language:
“I strongly urge the California State Bar to consider the limitations of the current bar exam and to weigh alternatives, beyond adjusting the cut score.  The bar exam should assess applicants on foundational lawyering skills and competencies, rather than only substantive legal knowledge and analysis.  A licensing process that assesses the full range of competencies required for the profession would allow California to better guarantee that those admitted to practice will offer competent legal assistance to those they serve.”
Below are links to (1) general background information about California’s comprehensive review of the bar exam, (2) the Final Report of the Standard Setting Study, (3) reports of two external evaluators, and (4) the Call for Comments.
General information regarding comprehensive review:
Final Report – Standard Setting Study:
External Evaluations of the Study:
Call for Comments:
Many thanks to CLEA’s Advocacy Committee, led by co-chairs Joy Radice (University of Tennessee) and Kendall Kerew (Georgia State), for its work on these important issues.
Benjie Louis & Beth Schwartz
CLEA Co-Presidents

August 23, 2017 | Permalink | Comments (0)

Friday, August 18, 2017

JOBS: Temple University Beasley School of Law

Via Prof. Colleen Shanahan:

Temple University Beasley School of Law is seeking to fill two faculty positions beginning in fall 2018. The first is for the Murray H. Shusterman Professorship in Transactional and Business Law. For this position, we expect to hire an established, tenured expert in the field. We particularly invite applicants whose scholarship and/or teaching focus on commercial law, broadly construed (e.g., secured transactions, sales, bankruptcy, consumer protection, e-commerce, and related fields), though we also invite highly qualified applicants from other areas of business and transactional law to apply. The second is an entry-level or junior lateral position, where our subject matter interests include intellectual property, law & technology, and criminal law. Potential candidates for either position may contact Brishen Rogers, at Temple University is an equal opportunity/affirmative action employer, and we strongly encourage women, minorities, individuals with disabilities, LGBTQ individuals, and members of other groups that traditionally have been underrepresented in law teaching to apply.

August 18, 2017 in Jobs | Permalink | Comments (0)

Thursday, August 17, 2017

JOBS: Cal-Western School of Law

Via Prof. Nancy Kim:

California Western School of Law (CWSL) is seeking applications from entry-level and junior-lateral candidates for a tenure-track position to begin on or about August 1, 2018.  We are looking for candidates with strong academic backgrounds, a commitment to excellence in teaching, and demonstrated potential to be productive scholars. The Appointments Committee is particularly interested in candidates with a strong desire to teach civil procedure, family law, immigration law, tax, or trusts/estates. CWSL welcomes applications from individuals who would contribute to the vibrancy and diversity of our faculty.


Established in 1924, CWSL is an ABA accredited and AALS member, non-profit law school located in downtown San Diego, California.  We have the distinction of being San Diego’s oldest law school and are known for our commitment to preparing students to be practice-ready lawyers.  Notably, our graduates regularly outperform the statewide average on the California bar exam.  CWSL is the recipient of numerous community service awards, including the State Bar of California President’s Pro Bono Service Award, and the federal government’s President’s Higher Education Community Service Honor Roll.  We are also home to numerous outstanding programs, including the California Innocence Project, Community Law Project, and the New Media Rights Program.  Members of the faculty have national and international reputations for their scholarly contributions.  Our faculty is dedicated to the community, teaching, and scholarship.


A substantial percentage of CWSL students come from diverse cultural, ethnic, and socioeconomic backgrounds.   We are committed to developing a faculty that better reflects this reality, and to this end, we are particularly interested in candidates who are committed to teaching a diverse student body.   All candidates are encouraged to submit a statement to our Appointments Committee addressing their commitment to diversity and how they can contribute to the educational experience of our students.


Please direct application materials (including cover letter, CV, and diversity statement) and questions to the chair of the Appointments Committee, Professor William Aceves, at the following email address:  The other committee members are Professors Hannah Brenner, Nancy Kim, and Joanna Sax.  The Appointments Committee is attending the AALS faculty recruitment conference in November 2017.  Please reference your AALS FAR form number in any correspondence. For candidates seeking consideration outside of the AALS faculty recruitment conference, we encourage the submission of applications before September 1, 2017

August 17, 2017 in Jobs | Permalink | Comments (0)

Wednesday, August 16, 2017

JOBS: University of Arkansas - Fayetteville Immigration Clinic

Via Prof. Annie Smith:

The University of Arkansas-Fayetteville invites applications from both entry-level and lateral candidates for a tenure-track position to direct a well-established Immigration Law Clinic.  All applicants for the position should have significant practice experience in immigration or asylum law and some familiarity with supervising law students or new attorneys.  Any successful applicant will be expected to gain admission to the Arkansas bar.  

In furtherance of the law school’s fundamental commitment to experiential learning, clinical professors and legal research and writing professors have full tenure rights and equal voting privileges on all faculty issues. All candidates should have demonstrated scholarly promise, strong classroom teaching skills, a distinguished academic record, and a commitment to service within the law school and broader university community. 

The University of Arkansas–Fayetteville, located in the northwest corner of the state, is the flagship campus of the University of Arkansas. The University is an equal opportunity, affirmative action institution and welcomes applications without regard to age, race, gender (including pregnancy), national origin, disability, religion, marital or parental status, protected veteran status, military service, genetic information, sexual orientation or gender identity.  Persons must have proof of legal authority to work in the United States on the first day of employment. All applicant information is subject to public disclosure under the Arkansas Freedom of Information Act.

Applicants with questions may contact Professor Annie Smith, Chair, Faculty Appointments Committee, at




August 16, 2017 in Jobs | Permalink | Comments (0)

Tuesday, August 15, 2017

Welcoming Sophia Hamilton as Pepperdine's New Director of Externships and Pro Bono Programs

At Pepperdine, we are excited to welcome Prof. Sophia Hamilton as the new Director of Externships and Pro Bono programs.  She will also teach in our Academic Success Program and Bar Preparation Workshops.  Sophia is a graduate of our law school and is an excellent lawyer and teacher who is already a great asset to our law school.

Please read more here at our press release. 

Go Waves!

August 15, 2017 | Permalink | Comments (0)

Thursday, August 3, 2017

Call for Authors – Feminist Judgments: Rewritten Torts Opinions

Via Prof. Kathryn Stanchi of Temple:

Call for Authors – Feminist Judgments: Rewritten Torts Opinions

DEADLINE: Friday August 25, 2017

The U.S. Feminist Judgments Project seeks contributors of judicial opinions rewritten to reflect a feminist perspective, and commentaries on the cases and rewritten opinions, for an edited book collection tentatively titled Feminist Judgments: Rewritten Torts Opinions.  This edited volume is part of a collaborative project among law professors and others to rewrite, from a feminist perspective, key judicial decisions in the United States.  The initial volume, Feminist Judgments: Rewritten Opinions of the United States Supreme Court, edited by Kathryn M. Stanchi, Linda L. Berger, and Bridget J. Crawford, was published in 2016 by Cambridge University Press.  Subsequent volumes in the series will focus on different areas of law and will be under review by Cambridge.

Torts volume editors Lucinda Finley and Martha Chamallas seek prospective authors for fourteen to sixteen torts opinions covering many major topics in tort law. The editors have selected the cases with an eye towards issues and injuries of particular salience to women’s lives, and with insights from feminist torts scholarship and input from leading torts scholars.  Potential authors are welcome to suggest other opinions that they would like to address, but the overall number of cases finally included in the volume must remain limited.

Interested prospective contributors should submit a proposal to either: 1) rewrite an opinion (subject to a 10,000 word limit), or 2) comment on a rewritten opinion (4,000 word limit).  Rewritten opinions may be majority opinions, concurrences, or dissents. Authors of rewritten opinions should abide by the law and precedent and supplemental materials in effect and available at the time of the original decision.  Commentators should explain the original court decision and its context, how the feminist judgment differs from the original judgment, and what difference a feminist judgment might have made.  The volume editors conceive of feminism broadly and invite applications that seek to advance, complicate, or critique various feminist theories and advocacy.

Those who are interested in rewriting an opinion or providing commentary should apply no later than Friday August 25, 2017, by e-mailing the following information to Lucinda Finley,,  and Martha Chamallas, :

  1. Your CV, your areas of torts interest or expertise, and why you are interested in and well suited to participate in this project.
  2. Your top three preferences of cases to write about, and whether you have a preference to do a rewritten opinion or a commentary.
  3. Any time constraints and other obligations that may impact your ability to meet the submission deadlines.
  4. If you have another case that you feel strongly should be included instead of one of the selected cases and that you would like to write about, provide information about the case and the reasons you think it should be included.


This list of cases that the editors have selected for consideration to be included in the volume Feminist Judgments: Rewritten Torts Opinions, is as follows:

  1. The “Classics”:  Tort cases that appear in almost every U.S. Torts casebook, and thus shape generations of lawyers’ understanding of tort doctrine.


  1. Tarasoff v. Regents of Univ. of California, 551 P.2d 334 (Cal. 1976): the classic “psychiatrist’s duty to warn” case, with an underappreciated subtext of intimate partner violence.


  1. Farwell v. Keaton, 240 N.W.2d 217 (Mich. 1976), establishing a limited affirmative duty to “rescue,” or come to the aid of someone in peril.


Negligence:  Is the “Learned Hand” formula for negligence just an economic cost/benefit calculation, or should it include a broader array of social factors (as Hand himself intended)?

  1. McCarty v. Pheasant Run, Inc., 826 F.2d 1554 (7th Cir. 1987). In a case involving a woman who was assaulted in her hotel room by a stranger who gained access through a sliding glass door, Judge Posner applied an economic cost/benefit analysis to the question of negligence and upheld a jury verdict for the defendant hotel. This case involves attempted sexual violence against women, and also provides fertile ground for a feminist critique of a law and economics perspective on tort law.


Duty of care:  A significant Torts issue, heavily influenced by policy concerns, and often involving women and children plaintiffs who have been assaulted – and thus fertile territory for feminist analysis.

  1. Kircher v. City of Jamestown, 74 N.Y.2d 251 (N.Y. 1989).  A case involving the “limited public duty” doctrine, which severely restricts the obligation of police or other protective service workers to affirmatively aid crime victims.  This limited duty has serious adverse implications for women and children experiencing family violence.  It is the civil tort law analogue to the limited constitutional affirmative duty to protect adopted by the US Supreme Court in infamous cases such as DeShaney and Castle Rock v. Gonzales. The NY Court of Appeals has been a “leader” in crafting the rules that circumscribe when a victim can sue the police for failure to protect.  While there are numerous cases that one could choose to include in this volume, including several that directly involve domestic violence and police failure to enforce protective orders, Kircher has been selected for several reasons.  It comes after several NY Court of Appeals opinions in this area, and thus provides a good vehicle to explore, critique, and consider expanding the doctrinal limitations. There are two dissenting opinions that call for a relaxation of some of the doctrinal limitations.  And it subtly demonstrates the problem of police callous attitude towards presumed family violence that often underlies their inaction.  Kircher was abducted by a stranger from a drug store parking lot, who drove her around and raped her. The eye witnesses to the abduction reported it to a police officer, who dismissively assumed it was probably a domestic dispute, and thus did not follow the abductor’s car.
  2. Sharon P. v. Arman, Ltd., 21 Cal.4th 1181, 989 P.2d 121 (1999). A woman was raped in late morning in the underground parking garage of the office building where she was a tenant. The California Supreme Court held that the risk of sexual assault in this particular parking garage was not sufficiently foreseeable to impose a duty on the landlord to provide reasonable security, even though the court acknowledged the demonstrated risk of underground parking garages in general. The case highlights the way in which courts can use the duty issue and landlord protective policy concerns to keep cases form juries and erect significant barriers to tort recovery for sexual assault victims – especially the first sexual assault victim on a particular property.


Vicarious Liability


  1. Lisa M. v. Henry Mayo Newhall Memorial Hospital, 12 Cal.4th 291, 907 P.2d 358 (1995). A young pregnant patient was digitally sexually molested during her ultrasound exam by the ultrasound technician employed by the hospital. The issue was whether he was acting within the scope of his employment so as to trigger respondeat superior liability for the employer hospital. In notable contrast to cases where they had ruled that employees committing physical assaults on other workers or customers were acting in the scope of employment, the court held that the sexual assault was done for purely personal “lust” reasons, so that the ultrasound technician was not acting within the scope of employment.


Damages:  Damages issues have received significant attention from feminist torts scholars, and they remain extremely important for whether there are hidden barriers to equal access to the tort system and fair compensation for women and people of color.  

  1. Simpkins v. Grace Brethren Church of Delaware, 2016 Ohio 8188, 2016 Ohio Lexis 2961 (December 2016).  A teenage girl was sexually assaulted by her pastor.  In her suit against the church that employed him and that ignored his history, a jury awarded her a verdict in excess of $2 million dollars.  But Ohio has a general cap on non-economic damages for all tort claims, and the application of this cap significantly reduced the compensation that she could recover.  She appealed, contending that the damage cap, as applied to sexual assault victims, was unconstitutional. The Ohio Supreme Court upheld the cap finding that it survived rational basis review.  


  1. G.M.M. v. Kimpson, 116 F.Supp.3d 126 (E.D.N.Y. 2015).  A case involving harm to a young Latino boy from lead based paint. The economists who projected future earnings for the child used earnings tables based on race.  The case directly raises the issue of whether courts should permit the use race-based earnings tables (and by extension sex-based earnings tables) to calculate future lost earnings.  It also illustrates the racially disparate impact of many environmental harms.


Compensable harms:  Emotional Distress and Reproductive Harm. Tort law’s traditional devaluing of emotional, relational and reproductive harm has worked to the detriment of women.  Cases involving various aspects of reproductive harm raise important issues about  reproductive health and autonomy which are often overlooked by courts.


  1. Dillon v. Legg, 441 P.2d 912 (Cal. 1968), the landmark case that first recognized a tort claim for “bystander” emotional distress suffered from watching a family member get gruesomely injured, regardless of whether the plaintiff was in the “zone of danger.”  Would such claims be better characterized as harms to important relational interests that are deserving of protection?


  1. Boyles v. Kerr, 855 S.W.2d 593 (Tex. 1993). In a case involving the sexual exploitation of a woman by her boyfriend who videotaped their consensual sexual intercourse and showed the tape around the college campus, the Texas Supreme Court declined to permit tort claims for negligent infliction of emotional distress. The case provoked a great deal of outcry by women’s advocacy groups, and provoked a dissent by the lone woman Justice on the court, who characterized the result as overtly gender biased.


  1. Broadnax v. Gonzales, 2 N.Y.3d 148 (2004). Overruling precedent that barred emotional distress claims for pregnancy loss unless the pregnant woman suffered a separate physical injury, the NY Court of Appeals permits a woman to recover for emotional distress against physicians whose negligent prenatal care caused the death of her fetus. This case and its precedents highlight the implications of characterizing a pregnant woman and her fetus as separate beings, so that loss of a pregnancy is not understood as physical harm to the woman.


  1. Greco v. U.S., 893 P.2d 345 (Nev. 1995). Physicians negligently failed to diagnose severe fetal defects in time for woman to consider whether to terminate the pregnancy.  The parents brought a “wrongful birth” claim, and the disabled child brought a “wrongful life” claim.  Surveying case law from many other jurisdictions, the court permitted the wrongful birth claim, while denying the wrongful life claim. While there are many cases from which to choose that explore these issues, Greco is selected because it discusses both wrongful birth and wrongful life in a single case, discusses the policies involved and the decisions of many other jurisdictions, represents the evolving majority approach, and like most cases, fails to fully comprehend the reproductive autonomy dimensions of these tort claims.


Intentional Torts


  1.  Robinson v. Cutchin, 140 F. Supp.2d 488 (D. Md. 2001). An African-American woman was involuntarily sterilized by a physician who performed a tubal ligation without her consent during an emergency C-section to deliver her 6th child. The case discusses the difference between battery claims and informed consent medical malpractice claims, which sound in negligence.  The opinion displays remarkable insensitivity to women’s reproductive autonomy and to the racially biased attitudes of the doctor, and to the history of forced sterilization of minority women.
  2. Reavis v. Slominski, 551 N.W.2d 528 (Neb. 1996).  This case explores the issue of consent as a defense to intentional torts. Reavis had sex with her employer at an office holiday party; several years earlier, she had also acquiesced to his repeated sexual advances, claiming she could not turn him down because she desperately needed the job, and because her prior history of sexual abuse amounted to an incapacity that made her extremely fearful of not acquiescing.  She sues for battery, and the issues involve apparent consent, coercion, duress, and incapacity as vitiating apparent consent.  The case resulted in multiple opinions, with a debate between majority, concurrences, and dissent over the relevance of her prior history of sexual abuse, and over whether fear for one’s job is sufficient to constitute duress that would vitiate apparent consent.


  1. Guthrie v. Conroy, 567 S.E.2d 403 (Ct. App. N.C. 2002). A workplace sexual harassment hostile environment case brought as a tort claim for intentional infliction of emotional distress. The opinion, while acknowledging that the conduct would amount to a Title VII hostile environment claim, dismisses it as merely juvenile and boorish behavior that does not meet the stringent tort standard for “outrageousness.” The opinion summarizes the factors and types of conduct in the workplace harassment context that would push the behavior into the “outrageous” category.  The case highlights the interactions between statutory Title VII civil rights law and common law tort claims, and whether they are intended to vindicate different interests and should be assessed by different standards.


  1. Lyman v. Huber, 10 A.3d 707 (Me. 2010). An i.i.e.d. case arising out of an emotionally abusive and controlling intimate partner relationship. The court focused on the “severe” emotional distress element of the claim, and overruled a verdict for the plaintiff, concluding that she did not suffer emotional distress more severe than what the “reasonable person” would be expected to tolerate. This case highlights the difficulties facing domestic violence victims who try to bring tort claims against their abusers, with courts often interpreting the elements of the i.i.e.d. tort more strictly than in commercial relationship or stranger relationship contexts.  It is also a vehicle for exploring the potential for bias in the supposedly objective notion of the “reasonable person.”

August 3, 2017 in RFP | Permalink | Comments (0)

Wednesday, August 2, 2017

Law Study and the Buddhist Wisdom of Emptiness: Defining and Facing the "Lawyers' Dilemma"

“I am not; I will not be.

I have not; I will not have.

This frightens all children, and kills fear in the wise.”



By Ashley Sillay and Sarah Gerwig-Moore


            Lawyers as a whole are statistically unhappy. Drug and alcohol addiction, divorce, personal ruin, and professional missteps plague the profession.[1] It is estimated that 1 in 5 lawyers is addicted to alcohol.[2] Even worse, it is estimated that 60% of lawyer malpractice is attributed to alcohol abuse.[3]

            Eileen Zimmerman’s recent piece in The New York Times Magazine, “The Lawyer, The Addict,” touched millions of hearts and minds as the author chronicled her former husband’s secret and deadly addiction. He was a high-functioning lawyer and a high-functioning addict. He was working until his final days- desperately billing and responding to clients’ concerns.

            Zimmerman’s piece and others have explored whether there is a culture problem in law practice that promotes and allows this sort of endemic unhappiness and substance abuse, and many understand that this culture problem begins in law school.

In a few weeks (or sooner), students will enter our law school classrooms fresh-faced and hopeful. In a few weeks and three years, many of those same students will be cynical, debt-ridden, and yes, even addicted to drugs or alcohol.

            So how do we define the problems- and address the issues as they develop? This essay is the first in a series of pieces exploring the “lawyer’s [and law students’] dilemma,” how it may be defined, and approaches that may provide useful perspective as our troubled profession confronts a crisis.

There may not be one answer, and there may be many answers.

It is also possible that problems faced by lawyers and law students have roots in a much deeper source than the profession itself: a fractured worldview. A fractured worldview separates ourselves from others, from nature, and from the universe. This point of view, one of self-as-separate-from the surrounding world, alienates us from sources of emotional support. For lawyers, a group whose specialized education necessarily creates barriers of understanding from “laypersons,” this alienation from the surrounding world is sharpened, resulting in what others have called the Lawyers’ Dilemma. It is also the law students’ dilemma.

Several fields have attempted to offer solutions. The field of Therapeutic Jurisprudence has emerged as a nexus fusing the legal and medical fields. Therapeutic Jurisprudence has indeed found its way into legal education, though it is not generally a required course. This exposure to various therapeutic modes of practice is meant to immerse students in and enlighten students to the emotional needs of their own future clients. During this process, one aim of the course is that law students will reflect on their own emotional lives, becoming more compassionate as a result.

While Therapeutic Jurisprudence seems a step in the right direction, it is very largely focused on the client’s emotional needs, not the lawyer’s. As a result, a pretty significant problem arises when law students begin to question precisely how to intertwine into their own practices the nurturing of their clients’ emotional needs. With the Model Rules of Professional Conduct there to dissuade them, in addition to other various ethical and moral rules dictating the professional behavior of lawyers, law students are generally hesitant to take on the role of therapist when working in their capacity as attorneys.

Although there are many solutions offered up to solve what appears to be broken about the practice of law, the Buddhist Wisdom of Emptiness may be relevant for and applicable to all lawyers, regardless of the individual’s religion or faith. Emptiness teaches us that the individual is not an island but is connected to all things. It challenges our fractured worldview. Culturally, a resurgence of meditation practice, yoga, and mindfulness exercises in the West has provided proven benefits to its practitioners. Lawyers who practice Emptiness will experience a paradigmatic shift in worldview that could result in a more balanced, supported lifestyle. It could be one option (among others) to define and face the Lawyers’ (and Law Students’) Dilemma.


For lawyers, replacing this fractured worldview by implementing an Emptiness practice may, through the unification of self and world, yield more tolerance, respect, support, and love. One result of this paradigmatic shift in worldview may be healthier, happier lawyers, who, through Emptiness, will feel less alone and will be less inclined to abuse drugs and alcohol. If the law of karma (or the law that reactions spring forth from one’s own actions) dictates that the Lawyers’ Dilemma is in fact a symptom of our fractured worldview, the medicine, then, the Buddha taught, is Emptiness.

The stresses of the legal profession are burdensome and only truly understood by those who take them on. For lawyers, professional and social isolation is part and parcel of a thriving, busy practice. We are taught in law school to think logically, as a reasonably prudent person would, when analyzing fact patterns. But many law programs struggle with showing students how handle the cumulative pressures as they layer upon us year after year, and while toiling in a litigious environment. Law students and law graduates begin to see our lives as “us against the world.” If human ignorance is the karmic cause of a fractured worldview isolating the self, then Emptiness is a potential medicine. With some simple, practical adjustments to one’s viewpoint, a new source of healing and support is free to emerge.


And so lawyers continue learning, by error and by trial, ways of coping with burnout instead of how to prevent it. Many very meaningful approaches include faith-based practice, and Buddhist practice is not in opposition to or in tension with those. In fact, just the opposite. This piece is the first of several in which we explore the whether Buddhist Wisdom can inform our law teaching, law study, and law practice. There are countless productive and useful approaches, but an Emptiness practice is worth considering- and meriting further exploration.


[1]See, hereinafter “Benchmark Institute”

[2] See “Benchmark Institute”

[3] See “Benchmark Institute”

August 2, 2017 | Permalink | Comments (1)