Thursday, March 28, 2019
Thanks to everyone who participated in the call for recent scholarship. Members of our community have produced a number of truly interesting articles. They are divided into broad categories below for easy perusal. Congrats to all the authors!
ASYLUM & IMMIGRATION
Kathryn Banks, The Trickle Up Effect: Incorporating an Understanding of Immigration Law and Polices into Best Interest Analysis in State Child Welfare Proceedings, 17Wash. U. Glob. Stud. L. Rev. 627 (2018).
Jon Bauer, with Katherine McKenzie and P. Preston Reynolds, Asylum Seekers in a Time of Record Forced Global Displacement: The Role of Physicians, 34 Journal of General Internal Medicine 137 (2019), This article discusses the role of medical evaluations in asylum cases and best practices for collaboration between physicians and legal advocates for asylum-seekers.
Julie Dahlstrom, The Elasticity of Human Trafficking, 108 Calif. L. Rev. __ (forthcoming 2020). This Article examines the historical and continuing expansion of trafficking definitions in the United States with a particular focus on sex trafficking. It posits that further broadening must be approached with careful consideration of the proposed benefits and the potential dangers of overreaching.
Lindsay Harris, Withholding Protection, Colum. Hum. Rts. L. Rev. Vol. 50.3 (forthcoming Spring 2019). This article explores the interplay of two forms of "speedy deportations" -- the expedited removal system and the practice of reinstatement of removal. Together, they can prevent an asylum seeker from meaningfully gaining protection in the United States. The article proposes one solution to this problem in the form of body worn cameras for Customs and Border Protection officers at the border.
Lindsay Harris, Contemporary Family Detention and Legal Advocacy, 21 Harvard Latino Law Rev. 135 (2018). This piece paints a picture of the practice of detaining immigrant families under the Obama and Trump Administration and the attendant legal advocacy. The piece advocates for robust attorney engagement in representing asylum seeking families detained in Texas and Pennsylvania.
Danielle Jefferis, Constitutionally Unaccountable: Privatized Immigration Detention, 95 Indiana L.J. ___ (2019). This Article is the first to expose and examine the absence of a constitutional tort remedy for the people behind the walls of for-profit immigration prisons.
Danielle Jefferis, It’s Just Like Prison: Is a Civil (Nonpunitive) System of Immigration Detention Theoretically Possible? (with René Lima Marín), 96 Denv. L. Rev. ___ (2019). This Article questions a fundamental premise on which the U.S. immigration detention system is built: Is a civil—that is, nonpunitive—system of immigration detention even possible?
Natalie Nanasi, Are Domestic Abusers Terrorists? Rhetoric, Reality, and Asylum Law, 91 Temple Law Review 215 (2019). This article critically examines the impact of reconceptualizing intimate partner abuse as “terrorism in the home,” with a focus on asylum law. It argues that even though reframing may accurately describe the political and societal implications of domestic abuse (as well as the state’s complicity in perpetuating it) and has the potential to expand access to asylum for survivors, the terrorist label should be applied with caution due the racial and religious disparities in the application of the term and the significant criminal and immigration consequences for those who are branded terrorists as well as those who harbor or materially support them (potentially including survivors themselves).
Anita Sinha, Defining Detention: The Intervention of the European Court of Human Rights in the Detention of Involuntary Migrants, 50 Colum. Hum. Rts. L. Rev. (forthcoming May 2019). This Article examines the consequences of a crisis moniker to frame the recent rise in involuntary migration into Europe. The Article addresses first how a migration “crisis” has normalized carceral migration control in the region, and then analyzes the European Court of Human Rights’ post-“crisis” judgments on migrant detention.
CLINICAL EDUCATION & LEGAL EDUCATION
Deborah Archer, Political Lawyering for the 21st Century, forthcoming in the Denver Law Review. This article contends that clinical education needs to embrace and reimagine political lawyering for the 21st century in order to prepare aspiring lawyers to tackle both new and chronic issues of injustice through a broad array of advocacy strategies.
Jodi S. Balsam and Margaret Reuter, Externship Assessment Project: An empirical study of supervisor evaluations of extern work performance, 25 Clinical L. Rev. 1 (Fall 2018). Qualitative data analysis of field supervisors’ evaluations of student externs to reveal how educational opportunities vary among different field placement settings and practice areas, and the extent to which student characteristics and demographics correspond to the student practice experience.
Elizabeth Cooper, 100 YEARS OF WOMEN AT FORDHAM: A FOREWORD AND REFLECTION, 87 Fordham L. Rev. Online 39 (2019). Elizabeth Cooper reviews the checkered history of women at Fordham Law. She was the 22nd woman to be hired at Fordham Law. Among Fordham’s most famous alumna was Geraldine Ferraro
Jill C. Engle, There Isn’t Any Dumpster, American University Journal of Gender, Social Policy and the Law, Volume 27 (2019). Through the Marshall-Brennan Constitutional Literacy Project while I was in law school, I taught at a Washington, D.C. high school and wrote a reflection essay at the end of my experience about how the principal, and the school’s unsung hero, helped me recognize the systematic flaws that disadvantage low-income, students of color in schools today. The article discusses what those students taught me: that the law should reflect their humanity, it should diminish their marginalization, and it should speak about that work in their voice.
Lindsay Harris, Learning in Baby Jail: Lessons from Law Student Engagement in Family Detention Centers, 25 Clinical Law Review155 (2018). This article examines the phenomenon of law student engagement in family detention centers and shares the results of a national survey of professors leading trips to engage in detention centers in Texas and Pennsylvania. The article proposes a best practices framework for law school engagement in crisis lawyering in this context and beyond -- for example in adult detention centers and at the border.
Peter Joy, The Uneasy History of Experiential Education in U.S. Law Schools, 122 Dick. L. Rev. 551 (2018)
Robert Kuehn, A Study of the Relationship Between Law School Coursework and Bar Exam Outcomes, 68 J. Legal Educ. (forthcoming 2019) (co-author)
Lynnise Pantin, The Legacy of Civil Rights and the Opportunity for Transactional Law Clinics, Tennessee Journal of Race, Gender, and Social Justice, Vol 7, No.2, 2019. This Article describes how not much has changed with respect to economic justice since the 50 years since the end of the Civil Rights Movement and describes the potential opportunities for Transactional Law Clinics
Victoria Phillips, Intellectual Property Gets Experienced, 59 IDEA 249 (2018). In this recent essay, I reflect on developments in the decade since publication of that piece and explore the growth and maturing of the new community of law school intellectual property law clinics. I find that in most respects these new clinics stand comfortably on shoulders of the pioneers of the clinical legal education movement.
Victoria Phillips & Cynthia L. Dahl, Innovation and Tradition: A Survey of Intellectual Property and Technology Legal Clinics, 25 Clinical L. Rev. 95 (Fall 2018). This article distills the results of a comprehensive survey of 72 directors of IP and Technology Clinics into themes that analyze the focus and aspirations of this new clinical community.
Jeff Selbin, Colleen Shanahan, Anna Carpenter & Alyx Mark, Measuring Law School Clinics, 92 Tulane L. Rev. 547 (2018). This article presents findings that shed some empirical light on the teaching-service mission of law school clinics. Analyzing thousands of unemployment insurance cases involving different types of representation, we found that: (1) clinical law students perform similarly to practicing attorneys in their use of legal procedures, and (2) clinical law students' clients experience similar case outcomes to clients of practicing attorneys, suggesting that clinics are delivering on their promise both to train new lawyers and to serve underrepresented clients.
Hina Shah, Radical Reconstruction: (Re)Embracing Affirmative Action in Private Employment, 48 U. of Baltimore L. Rev. 203 (2019).
COMMUNITY ECONOMIC DEVELOPMENT & TRANSACTIONAL LAW
Priya Baskaran, The Economic Justice Imperative for Lawyers in "Trump Country", Tennessee Journal of Race, Gender, and Social Justice, Vol 7, No.2, 2019. This article is a call to action for rural law schools to meaningfully incorporate economic justice into transactional legal education, and in doing so, train much needed rural advocates, legal experts, and local leaders.
Ted DeBarbieri, Lawmakers As Jobs Buyers, 88 Fordham Law Review ___ (forthcoming 2019). Following high-profile state and city tax breaks for companies like Amazon and others, this Article argues for a two-step proposal to limit subnational government actions to incentivize business location decisions.
Ted DeBarbieri, Urban Anticipatory Governance, 46 Florida State University Law Review 1 (2019). This Article offers a framework for how local government can promote resident participation in influencing how land use and economic development projects are carried out. It borrows from existing forward-looking, flexible, and inclusive public engagement examples such as New York City’s response to global climate change.
Ted DeBarbieri, Thematic Overview: Race, Place, and Pedagogy in Achieving Access to Justice Through Community Economic Development, 27 Journal of Affordable Housing and Community Development Law 467 (2019). In recent years, scholars and practitioners have advanced the conversation about CED methods and efficacy. This piece is a brief thematic overview of the discussion that occurred in January 2018, and a synopsis of the abstracts that follow.
Annie Eisenberg, Distributive Justice and Rural America, __ B.C. L. Rev. __ (forthcoming 2020). This article argues that rural communities did not just "die" as many suggest, but that decades of intentional policy decisions undermining rural livelihoods contributed to the ruralization of economic distress. These decisions ultimately effectuated a "sacrifice" of rural welfare in the name of the greater good, the justice of which warrants examination.
Annie Eisenberg, Just Transitions, 92 S. Cal. L. Rev. 2 (2019). This article discusses why and how environmental decisionmaking should contemplate economic displacement, with a focus on the challenges facing coalfield communities as policymakers increasingly embrace decarbonization goals.
Jay A. Mitchell, Whiteboard and Black-Letter: Visual Communication in Commercial Contracts, 20 U. Pa. Bus. L. J. 815 (2018). The paper discusses why visual methods are useful in transactional work and why visuals are not often observed in contracts; assesses existing scholarship regarding visual methods and contracts; explores treatment of visuals under U.S. contract interpretation and evidentiary principles; identifies characteristics of transactional situations where visual executions may be especially helpful; and proposes actions intended to build the case for such use.
Lynnise Pantin, The Wealth Gap and the Racial Disparities in the Startup Ecosystem, St. Louis University Law Journal, Vol. 62, No. 2, 2018. This Article explains how the United States’ history of bolstering wealth creation for some, while inhibiting wealth creation for people of color, matters for understanding the startup ecosystem today. The Article describes how access to traditional and innovative sources of capital raising perpetuates the racial wealth gap, and this Article makes concrete proposals for addressing these shortcomings.
Priya Baskaran, Respect the Hustle: Returning Citizens, Necessity Entrepreneurship, & Social Enterprise Strategies, 78 Md. L. Rev. (2019 Forthcoming). This Article addresses a pervasive and growing problem for returning citizens – high rates of economic insecurity – and as a novel solution, proposes the creation of Economic Justice Incubators a new municipally led social enterprise strategy.
Josh Gupta-Kagan, The Intersection Between Young Adult Sentencing and Mass Incarceration, 2018 Wisc. L. Rev. 669 (2018).
Danielle Jefferis, Delegating Care, Evading Review: The Federal Tort Claims Act, the Discretionary Function Exception, and Private Prisons, 80 La. L. Rev. ___ (2019). This Article highlights and focuses on a discrete—but critical—way in which the federal government evades judicial review of its conduct: through its reliance on the Federal Tort Claims Act’s discretionary-function exception when faced with prisoners’ claims of inadequate medical care in private prisons.
Peter Joy, Attempted Ethics Violations, 33 Crim. Justice 55 (Winter 2019)
Peter Joy, Police Misconduct and Release Dismissal Agreements, 33 Crim. Justice 31 (Fall 2018)
Peter Joy, Prosecutors and Use of Subpoenas, 33 Crim. Justice 44 (Spring 2018)
Peter Joy, Postconviction Prosecutorial Duties, 32 Crim. Just. 53 (Winter 2018) (co-author)
Zina Makar, Displacing Due Process, DePaul Law Review, (Spring 2018). This piece identifies pretrial detention as a contributor to mass incarceration and attributes this problem to a theory I coined called prospective procedural displacement. I argue that procedural displacement occurs often in the criminal justice system, but that prospective displacement on the front end is illegitimate because it wrongly relies on the assumption that trial procedures will correct and prejudices that occurred in the pretrial stage.
Tiffany Murphy, Prosecuting the Executive, San Diego Law Review Vol. 56:105 (2019). This Article considers when criminal acts by those in the Executive Branch rise to the level warranting the appointment of a special prosecutor. By examining prior uses of the special counsel, it becomes clear why special counsel are suited to investigate criminality within senior members of the executive branch.
Jenny Robert, The Innocence Movement and Misdemeanors, 98 B.U. L. Rev. 101 (2018). This Article analyzes the eighty-five documented misdemeanor exonerations on the National Registry of Exonerations. It then discusses how the Innocence Movement’s nascent interest in misdemeanors, in addition to exonerating a small number of wrongfully-convicted individuals, will highlight systemic causes of such errors in reform efforts that will ultimately benefit others facing misdemeanor charges. The Article also cautions how an innocentric focus on misdemeanors could overtake a developing narrative of the disproportionate and unfair direct and collateral consequences of misdemeanor convictions.
DISABILITY & HEALTH LAW
Natalie M. Chin, Group Homes as Sex Police and the Role of the Olmstead Integration Mandate (August 1, 2018). N.Y.U. Review of Law & Social Change, Vol. 42, 2018.
David R. Katner, Up In Smoke: Removing Marijuana from Schedule I, 27 Boston University Public Interest Law Journal 167 (Winter 2018). This tracks the history of the Marijuana Tax Act and the racist factors that help pass the initial federal regulation of marijuana, then it focuses on the difficulties for investigators and researchers to access marijuana for medical research. It identifies state legislation that acknowledges the medical applications of marijuana, a condition which precludes the Schedule I classification, and it cites internet footage of infants with seizures being treated with non-THC infused medications distilled from marijuana.
Medha D. Makhlouf, Health Justice for Immigrants, 4 U. Pa. J.L. & Pub. Aff. 235 (2019). The Affordable Care Act was supposed to expand access to affordable health insurance and promote greater health care equity, but it largely left out the 23 million noncitizens living in the United States. This Article makes the case for a more inclusive health law and policy that addresses disparities in immigrants’ access to affordable health care.
Medha D. Makhlouf, The Public Charge Rule as Public Health Policy, 16 Ind. Health L. Rev. __ (2019). On October 10, 2018, the Department of Homeland Security (DHS) released a Notice of Proposed Rulemaking that would transform more than a century of public charge policy, which relates to the admission of noncitizens based on the likelihood that they will not become dependent on the U.S. government for support. This article identifies concern for public health as a factor in the development of public charge policy and demonstrates how the proposed rule abandons this rationale
Claire Raj, Disability Law as an Agent of School Reform, 94 Wash. L. Rev. ___ (forthcoming December 2019)
Claire Raj, Coerced Choice: School Vouchers and Students with Disabilities, Emory L.J. ____ (Forthcoming May 2019).
Blake Reid, Internet Architecture and Disability, Indiana Law Journal (forthcoming). This article uses the Internet law literature on internal and external perspectives to analyze new areas for pursuing Internet accessibility for people with disabilities.
Natalie Nanasi, Disarming Domestic Abusers, Harvard Law and Policy Review (forthcoming 2020). This article addresses legal and procedural gaps that inhibit the enforcement of federal and state laws prohibiting the possession of firearms by perpetrators of intimate partner violence. It proposes strategies – including legislation, implementation and litigation – that can stem the tide of intimate partner homicide.
EDUCATION & SCHOOLS
Leah A. Hill, DISTURBING DISPARITIES: BLACK GIRLS AND THE SCHOOL-TO-PRISON PIPELINE, 87 Fordham L. Rev. Online 58 (2019). The most recent data from the U.S. Department of Education Office for Civil Rights reveals that one of the harshest forms of discipline—out of school suspension—is imposed on black girls at seven times the rate of their white peers.
Josh Gupta-Kagan, Reevaluating School Searches Following School-to-Prison Pipeline Reforms, 87 Fordham L. Rev. __ (forthcoming 2019).
Emily Suski, The Title IX Paradox, 108 California L. Rev. __ (forthcoming 2020)
Emily Suski, The School Civil Rights Vacuum, 66 UCLA L. Rev. __ (forthcoming 2019)
Leah A. Hill, Loving Lessons: White Supremacy, Loving v. Virginia, and Disproportionality in the Child Welfare System, Fordham Law Review, Vol. 86, 2018. It is widely accepted that anti-miscegenation laws worked to preserve white supremacy—particularly, the superiority of white people to blacks—but these laws also worked to forestall the creation of interracial families. … By focusing on the harm—or “damage”—of being biracial, these laws foreshadowed the pervasive disproportionality in the child welfare system today.
Lisa Martin, No Right to Counsel, No Access Without: The Poor Child’s Unconstitutional Catch-22, __ Florida Law Review __ (forthcoming). This article evaluates a federal court rule that requires parents who bring civil cases on behalf of their minor children pro se to retain private counsel or face dismissal of the case. As such courts are not required to appoint counsel for indigent parents and children and rarely do so, the article critiques the rule as a deprivation of fundamental constitutional rights and a denial of access to justice for children.
Shanta Trivedi, The Harm of Child Removal, N.Y.U. Journal of Law & Social Change, (forthcoming Spring 2019). This article is the first to comprehensively examine why the harm of removal should be a featured part of every child welfare decision and how to incorporate this information into existing legal frameworks to achieve the stated purpose of the child welfare system and truly protect our children.
Anthony Alfieri, Black, Poor, and Gone: Civil Rights Law’s Inner-City Crisis, 54 Harv. C.R.-C.L. L. Rev. (2019) Today, in the post–civil rights era, new socio-legal research on the inner city casts a specially instructive light on the past, present, and future work of community-based advocacy groups, anti-poverty and civil rights organizations, and law school clinical programs. To understand the crisis of civil rights law in failing to alleviate poverty and ameliorate segregation in the nation’s urban and suburban areas, this Article maps the current landscape of poverty, displacement, and segregation in American metropolitan areas, examines fair housing litigation theories of disparate impact and segregative effect liability, and evaluates the promise of fair housing law reform campaigns in combating concentrated poverty and residential segregation.
Deborah Archer, The New Housing Segregation: The Jim Crow Effects of Crime-Free Housing Ordinances, forthcoming in the Michigan Law Review. This Article contends that crime-free housing ordinances enable racial segregation by importing the racial biases, racial logics, and racial disparities of the criminal legal system into private housing markets. In addition to foregrounding how crime-free housing ordinances reinforce and perpetuate racially segregated communities, this Article proposes an intervention: a “segregative effects” claim, an underutilized cause of action under the Fair Housing Act of 1968, to challenge this segregative impact.
Nicole Summers, Setting the Standard for Proximate Cause in the Wake of Bank of America Corp. v. City of Miami, 97 N.C. L. Rev. 529 (2019). This Article addresses the open question of how courts should determine the meaning of proximate cause in statutory claims. It argues that courts should apply the scope of liability framework, as set forth in the Restatement (Third) of Torts, to set the standard for proximate cause in statutory claims. It then applies this framework to arrive at the proper standard for proximate cause under the Fair Housing Act.
Nicole Summers, The Limits of Good Law: A Study of Housing Court Outcomes, U. Chi. L. Rev. (forthcoming 2020) This Article presents results from an empirical study of the effectiveness of the warranty of habitability in New York City. In the context of nonpayment of rent eviction cases, it finds that the overwhelming majority of tenants with meritorious warranty of habitability claims do not benefit from the law at all.
Brandon Weiss, Locating Affordable Housing: The Legal System's Misallocation of Subsidized Housing Incentives, Hastings Law Journal, 2018, Volume 70:1, This 50-state survey analyzes why low-income housing tax credit units are over-represented in areas that already have a surplus of similarly-priced housing. It argues that states should revise their tax credit allocation rules to ensure that subsidized units offer a rent advantage.
Susan Akram, The Search for Protection for Stateless Refugees in the Middle East: Palestinians and Kurds in Lebanon and Jordan, International Journal of Refugee Law, Volume 30, Issue 3, October 2018, This article examines two main protracted refugee cases, the Palestinians and the Syrian Kurds, to illustrate the problem and possibilities of the double jeopardy in which stateless refugee populations in the Middle East find themselves: neither recognized as stateless nor as refugees, with durable solutions and national status remaining out of reach for generation after generations.
Susan Akram, Assessing the Impact of the Global Compacts on Refugees and Migration in the Middle East, International Journal of Refugee Law, The overwhelming burden of the global refugee and migrant crisis is borne by the Middle East region, where most states have not adopted the international treaties that provide guarantees for refugees and stateless persons. This article examines the possibilities for addressing these vulnerabilities by building on the promise of the Global Compacts
Melissa Joy Deehring, The Emerging Legal Profession in Qatar: Diversity Realities and Challenges (forthcoming). During the past quarter century the number of women studying law in Qatar has significantly increased, yet the number of women practicing law as prosecutors, judges and lawyers has not directly correlated. This article will use Qatar as a case study to analyze how culture and modern development affect the feminization of the country’s bar and bench.
LABOR & EMPLOYMENT
Elizabeth Cooper, The Appearance of Professionalism 70 Florida L. Rev. ___ (forthcoming 2019). Appearance conformity raises profound issues of autonomy and core identification that go well beyond style preferences. They can also have deep and lasting employment consequences.
Jennifer J. Lee, Regulating Wage Theft, Washington Law Review 94 (forthcoming 2019). This Article provides the first comprehensive analysis of state and local anti-wage theft laws. Our evaluation of these laws shows that they are unlikely to meaningfully reduce wage theft. It concludes by recognizing promising regulatory innovations, identifying new collaborative approaches to enhance agency enforcement, and looking beyond regulation to nongovernmental strategies.
Faith Mullen, Another Day Older and Deeper in Debt: Mitigating the Deleterious Effect of Wage Garnishments on Appalachia’s Low-Wage Workers, West Virginia Law Review, Spring 2018, 120 W. Va. L. Rev. 973. This article examines the consequence of wage garnishment coupled with high post-judgment interest rates on low-wage workers in Appalachia. It argues that states are not striking the right balance between the collection of just debt and driving low-wage workers out of the job market and into poverty.
Faith Mullen, Fifty Years After the Consumer Credit Protection Act: the High Price of Wage Garnishments, Mitchell Hamline Law Review, (Spring 2019). This article argues that states should be informed by 50-years’ experience with the federal wage garnishment act and that the time is right to amend state laws. The article examines the uniform wage garnishment act proposed by the National Conference of Commissioners on Uniform State Laws and concludes that many of its provisions would benefit employers and creditors. The article argues in favor of reforms that would benefit consumers.
Jacqueline M. Nolan-Haley, Mediation, Self-Represented Parties, and Access to Justice: Getting There from Here, 87 Fordham Law Review Online (2019). Professor Nolan-Haley offers a proposal that develops a set of best practices specifically directed towards self-represented parties and where the stakeholders would then work towards establishing an Index that would rate the performance of court mediation programs serving unrepresented parties.
David R. Katner, Endorsing Pedophiles for Elected Office? 97 Nebraska Law Review 469 (Winter, 2018); This article examines the current literature concerning pedophiles following the endorsement of Roy Moore by the President of the United States for a position in the U.S. Senate.
PROPERTY, IP, & PRIVACY
Annie Eisenberg, Rural Blight, 13 Harv. L. & Pol'y Rev. 187 (2019). This article discusses rural local governments' unique law and policy needs in tackling the widespread proliferation of vacant, abandoned, and dilapidated properties in light of rural population loss.
Dustin Marlan, Unmasking the Right of Publicity, 71 Hastings Law Journal (forthcoming). This Article examines the potential influence of Judge Jerome Frank’s psychoanalytic jurisprudence on the creation and development of publicity as a right distinct from privacy.
Rachel Moran, Police Privacy, 10 UC Irvine Law Review ___ (forthcoming 2019). This article examines the question of whether to permit public access to police misconduct records through the lens of privacy law and theory. The article scrutinizes whether and to what extent privacy law supports the non-disclosure of police misconduct records.
TAX & NONPROFITS
Jaclyn Cherry, Nonprofit Governance: Who Should be Watching? A Look at State, Federal and Dual Regulation, 12 Ohio St. Bus. L.J. 1 (2018) (forthcoming)
Jaclyn Cherry, Commercial Activity and the Operational Test, 29 Tax’n Exempts 9 (2018)
Michael Haber, The New Activist Non-Profits: Four Models Breaking from the Non-Profit Industrial Complex, U. Miami Law Review, Volume 73. Inspired by recent social movements and the solidarity economy and commons movements, and sensitive to criticisms of the non-profit industrial complex and movement capture, a new generation of activists has developed organizational structures that radically depart from the 50-year trend toward non-profit centralization and professionalization. This article describes four activist approaches to re-thinking non-profit corporate structures--sociocratic non-profits, worker self-directed non-profits, hub-and-spoke counter-institutions, and swarm organizations--and describes some best practices for navigating concerns over directors' fiduciary duties.
WOMEN & THE LAW:
Margaret Johnson, Menstrual Justice, U.C. Davis L. Rev. (forthcoming 2019).
Friday, March 22, 2019
Pepperdine's Office of the Chaplain is hosting a Spiritual Life Blogcast. The Chaplain is asking members of the Pepperdine community to write about how our work informs and illuminates spiritual life. This is my contribution, cross posted here:
How Practicing Law Teaches Me to Love My Neighbor
Being a lawyer and a clinical law professor ushers me into a sacred space of vulnerability and trust with many lives and communities. Law school famously teaches students to "think like a lawyer," but the real work of thinking like a lawyer is in service to a client. Moving from the classroom to practice is a profound shift when we realize that a client is not a hypothetical fact pattern posing a theoretical question.
Clients are neighbors who entrust us with their very liberties, fortunes, dreams, families, and governments. Lawyers step into a place of trust and confidence that can reveal some profound truths about ourselves and our communities. Among those realities is the elusive tangle of individual rights with inescapable forces in society and community. All people are luminous individuals bearing the image of God who are utterly dependent on each other to flourish. When we approach these relationships with rigorous love, paths appear toward justice and peace.
The imago dei of the creation story is the foundation for the greatest commands: to love God with whole hearts and to love our neighbors as ourselves. God loves us. We love each other because we love God, and we love God by loving each other. This is the organizing principle of Christian life. The Golden Rule creates a radical rule of life that requires us to treat everyone else like we want to be treated. If we would not be erased, replaced, or ignored ourselves, so we should not erase, replace, or ignore. If we would be heard, we should listen. If we would have power ourselves, we should empower others. If we would have a place at the table, we should put in the leaves and pull up some chairs so everyone has room.
In law practice, we lawyers quickly learn that every client has a very specific story. We have to listen closely. This is why lawyers say, "It depends," so much. Every decision will turn on specific facts, specific goals, nuanced laws, and relationships. Context is everything.
In my years of practice representing victims of domestic violence and sexual assault, I have learned that while there are some classic, common features in abusive relationships, each relationship is hyper-local. A partner's polite suggestion in one relationship can be a violent threat in another, so lawyers, police, and courts cannot get at real justice unless they work hard to hear each story. But for anyone in these positions of power, after hearing case after case for years on end, the tendency is to treat clients as cases, to see people as problems.
But people are not problems. We often speak in the widest terms to characterize entire populations as the problems we suppose they represent: the homeless, "illegal" immigrants, criminals, veterans, victims. Not one of the individuals in those categories is essentially one thing, and we cannot serve or understand the people if we do not know their stories. None of us will stand for being defined categorically, so we should not stand to define anyone else by a category.
The undocumented immigrant is not a national emergency, but he is a father working himself to an early death to elevate his children. The veteran is more than a political talisman, and she is more than her diagnosis or a disability rating. The person sleeping on the street is more than a project for ministry but is a person bound in a cycle with a thousand little decisions, often made by others, and compounded by a layers of trauma. Everyone is more than their worst category, and everyone is more complex than their greatest privilege.
But we can mistake the dignity of every human being with rugged individualism. We should and ought to value every single person as a liberated child of God, but we must resist the temptation to view anyone as an atomized entity moving alone through a predatory state of nature. The temptation is to think that there is such a thing as a "self-made man." The lie is to think that someone "chooses" to be homeless. The mistake is to insist that parents desperate to get their kids to safety should somehow stand in an interminable line to immigrate "the right way" when murderous forces are decimating their families. The risk is to think that anyone truly deserves to live in luxury with a fortune built on others' labor. The danger is to say Not In My Back Yard then wonder where everyone went when we needed them.
Instead, upon closer inspection, we realize that all of us liberated children of God cannot live in isolation and survive, but we must live together. We are not merely to love ourselves, but to love our neighbor as ourselves. We're even supposed to love our enemies, because if we don't, everything goes to hell. We are like a body, as Paul says, a living, interdependent system. We are like the ingredients in bread, as Jesus says, interacting with each other in our component parts to make something wonderful.
For lawyers, we recognize the kid in juvenile detention is not just a "bad kid" from a bad home who chose to commit a crime, but we should recognize all the reasons she got there. What about her family's poverty and the segregation that created her neighborhood? What about the inequitable funding of her high school and the misogyny that objectifies her, all pressed in on her to lead to decisions that lead to juvie?
For the veteran facing charges for drug possession, what about the educational opportunities that led him to enlist, the choices of politicians that marched him to war, the violence of combat, the pain of a traumatic brain injury, and the politics of nation that will not fund his healing?
For the billionaire funding political campaigns or evading taxes, what about the rule of law that creates stability for investment, the public services that make a factory possible, the labor of thousands in wage-paying jobs, the tax-benefits that our representatives provided?
For the start-up enterprise, how will its innovative founders balance their ambitions to disrupt and profit with an ethical responsibility to consumers and the communities they enter?
What do we owe to each other but an acknowledgement that we are all in this together?
The sacred, spiritual space of being a lawyer and law professor generates rich opportunities to witness human beings who bear the image of God. We witness the extravagant complexity of liberated individuals making decisions within a cosmic web of relationships. We see the need for individual justice and social justice. We receive invitations to places of power and privilege, into intimate vulnerability with people in great need. We play critical roles in society, government, and public life. The responsibility is immense.
Lawyers have a call to advocate for individuals in our care while reckoning with the deep complexities of our communities across generations. If we're not a little afraid, then we haven't realized the burdens of our vocation. If we have eyes to see and ears to hear, we will witness the miracles of souls striving together toward love.
Wednesday, March 20, 2019
Please join us for the 11th Feminist Legal Theory Conference at University of Baltimore School of Law sponsored by the Center on Applied Feminism, University of Baltimore Law Review, and CLEA. The focus of the conference is “Applied Feminism and #MeToo,” and our keynote speaker is Debra Katz, who represented Christine Blasey Ford in the Justice Kavanaugh confirmation hearings. The conference is being held at the University of Baltimore School of Law April 11 and 12, 2019. There is no registration fee, but we do ask that people RSVP.
Conference webpage including the RSVP is available here: http://law.ubalt.edu/centers/caf/conference/EleventhFeministLegalTheoryConf.cfm
Wednesday, March 13, 2019
New from Prof. Ted Afield on the work of Low Income Taxpayer Clinics:
Tax justice is social justice. To those regularly working to resolve tax controversies for low-income taxpayers and who are often dealing with the financial implications of life and death issues like human trafficking, the ability to afford medical care, and the risks of financial despair leading to suicide, this is an uncontroversial statement. To those for whom “tax attorney” is often the punchline to their favorite lawyer joke, however, this statement appears not to fit in with traditional conceptions of social justice. This is particularly true when social justice is defined as requiring not just improved access to representation in any type of legal matter but also as requiring specific societal outcomes that reduce poverty, improve housing access, combat racial discrimination, reduce hunger, and improve healthcare access. At first blush to those outside the tax bar who do not appreciate that most of these issues are inextricably linked to the tax system, tax justice does not appear to do any of these things. Accordingly, tax issues are often overlooked in the conversation about improving social justice.
Tax justice, however, is in fact a social justice issue. The most illustrative example of the social justice gains that can occur when tax justice is prioritized as an area of need can be found in the work of low-income taxpayer clinics (“LITCs”). LITCs engage in a combination of representation, education, and advocacy work that is essential in protecting taxpayer rights, securing economic benefits for the poor, and helping the vulnerable avoid having a tax liability impact their ability to obtain housing, healthcare, and/or employment.
Appreciating the social justice components of tax justice is not solely an academic issue of definitional precision—failing to understand the connection between tax work and social justice has negative societal consequences as well. The limited resources available to provide legal assistance to low-income individuals are often allocated towards solutions perceived to be improving social justice as well as access to justice, and tax issues are consequently often not prioritized because of a perceived lack of connection to this mission. This is particularly true in the academic clinical community, which, given the resource advantages that many academic institutions have over legal service organizations, is a critical component of both improving access to justice and advancing social justice.
Because of a misperception that tax representation is not a social justice issue, academic LITCs have not grown as quickly as one would expect given the financial incentives for such growth in the form of the availability of federal grant funds. Thus, appreciating tax justice as a social justice issue has practical implications for future LITC growth and for the benefits that such growth provides, particularly in the academic community. Accordingly, making this connection explicit to the academic community is an important step in closing the access to tax justice gap. This paper attempts to make this connection as explicit as possible and suggests changes to the LITC program that could even more directly tie in the work of LITCs to a social justice mission, regardless of how social justice is defined.
Saturday, March 2, 2019
Chrissy Cerniglia, Davida Finger, Luz Herrera, JoNel Newman, and I have posted our working paper, In Times of Chaos: Creating Blueprints for Law School Responses to Natural Disasters. We each have recent, intense experience guiding our schools' responses to natural disasters through legal clinics and pro bono programs. In the article, we gather lessons and ideas from these experiences and offer guidance for law schools who will face more, and more destructive, natural disasters in the "new abnormal."
UPDATE: 80 Louisiana Law Review --- (forthcoming 2019).
A recent onslaught of domestic natural disasters created acute, critical needs for legal services for people displaced and harmed by storms and fires. In 2017, Hurricanes Harvey, Irma, Maria and Michael struck much of Texas, Florida, and Puerto Rico, displacing millions from their homes. Wildfires burned throughout California and tested the capacity of pro bono and legal aid systems across the state. In 2018, Hurricane Florence flooded North Carolina, and Hurricane Michael devastated the Florida Panhandle. California again suffered wildfires, the largest and most devastating in recorded history. Natural disasters are both more common and more destructive, the “new abnormal.”
Social and economic inequities emerge sharply after each natural disaster. Low-income and vulnerable people both suffer more from disasters and experience heightened barriers to accessing the post-disaster resources necessary to survive, rebuild, and return home. Marginalized and vulnerable populations, in particular, need legal assistance and expertise to overcome these barriers.
Natural disasters also inspire law students, law clinics, law schools and law faculty to help. Law school responses to assisting with post-disaster legal needs have been diverse. Some efforts have been law student initiated, while several law school clinics have provided legal assistance in a variety of ways. Some law schools have launched clinics with a devoted budget and strict focus on disaster practice. Some took on disaster work because it was the greatest need for existing clients and communities. Others shifted the focus of existing clinics to disaster needs, and still others launched temporary clinics in various forms to respond to acute crises. Some wanted to help but did not have ready relationships or resources to be responsive.
Each of the authors has direct experience surviving natural disasters and providing legal assistance from within the academy. This article provides necessary information about the nature of natural disasters, the ecosystem of response systems, and common legal issues for law schools and clinical programs interested in providing legal assistance to disaster-affected communities. It then describes varying models of law school institutional responses to increasingly common natural disasters. Building on lessons learned through these experiences, law schools can develop a blueprint for community-engaged disaster response. Building a framework for institutional responses in the legal academy can advance and improve access to justice for vulnerable communities recovering after a disaster and can provide students with an opportunity to learn from this social justice engagement.