Tuesday, April 21, 2020
April 21, 2020
The Clinical Legal Education Association (“CLEA”), the nation’s largest association of law professors, urges State authorities in charge of attorney licensure to promulgate rules and policies in response to the current pandemic that expand the availability of legal representation for underserved clients and equitably account for the impact of the COVID-19 crisis on recent law school graduates. In the face of this unprecedented crisis, we are called to work together to protect each other. We must be pragmatic, flexible and caring. While we are strongly drawn to precedent and tradition, as are all lawyers, we urge that strict adherence to the current model of a single, high stakes, timed bar examination as the primary gatekeeper to the profession will needlessly exacerbate inequality and further injustice during this pandemic.
As this crisis has developed, a number of approaches to bar licensure have emerged. Some jurisdictions have announced plans to postpone the bar exam a few months and then require applicants to sit for the traditional exam. These plans seem not to fully grapple with the difficult situation in which we find ourselves. CLEA joins others in calling for jurisdictions to adopt alternatives to the bar exam, such as supervised practice, sequential licensing, and diploma privileges. We recognize that one size may not fit all and that solutions will vary according to the needs and circumstances of each locale. Nevertheless, one thing is certain – this is not a time for business as usual.
CLEA has long expressed concerns about the deficits of the bar exam in the licensure system for American lawyers. This position is rooted in CLEA’s mission, which promotes justice and diversity as the core values of the legal profession and recognizes that licensure regulations inevitably shape legal education, particularly clinical legal education. CLEA has consistently urged that direct assessment of relevant professional skills, on analogy to training in medicine, would be better than inferring those skills from academic performance. Bar exam scores correlate well with law school GPAs and, to a lesser extent, with LSAT scores, but neither of these measures has been shown to relate to success in the profession or competence in lawyering. The bar exam is not designed to measure competence in representing clients or advancing justice, as is required of all lawyers. We have repeatedly urged that supervised practice and other experiential assessments would much better protect our clients and foster professional excellence. These deficits of the traditional bar exam are thrown into high relief by the bright light of the virus.
First, there is an unprecedented need for legal counsel for low and moderate income people, so many of whom will need legal assistance on issues of employment, housing, business and finance during and after this crisis. The need for advice and representation in family law, criminal law and immigration matters is also acute. Licensing alternatives such as supervised practice, graduated licensing and admission by diploma privilege would expand the availability of legal services at this crucial time and permit law graduates to serve their communities.
Second, the COVID-19 crisis has impacted law students unequally. Some are infected, while others are caring for family members. Many are dealing with severe economic dislocation and beset by daily crises; they are caring for children, older relatives and in some cases, face illness themselves. In the coming months, the results of any exam will turn upon the circumstances of the test taker rather than their ability to ethically practice law and meet their professional obligations. Most law schools have recognized that reality by adopting some form of pass/fail grading for this semester. In this moment, limiting admission to practice to those capable of sitting for and passing the traditional bar exam will only exacerbate these inequities; it will adversely impact those facing personal challenges brought on by this crisis while rewarding the fortunate and the wealthy.
Third, we must recognize the impracticality of administering a bar exam now or in the near future. Some states have announced their intention to move forward with the July 2020 exam and others have postponed the July exam to September. Although we cannot be sure, given the dynamism that characterizes this moment, there seems little likelihood that large groups of graduates could safely take an exam in person during the coming months.
We urge the state licensing bodies to recognize that this state of emergency requires us to seek creative, sensible and realistic solutions. We must try to better meet the legal needs of underserved groups and respond with care, concern and thoughtful reforms to the very serious challenges those striving to enter our profession face in this unprecedented time of crisis. Let us not look back and regret that we did not give enough attention to the least fortunate among us and let inequality flourish in disaster.
Thursday, April 16, 2020
I taught our Veterans Legal Clinic at the University of Georgia School of Law in the spring semester 2020. Because of the COVID-19 pandemic, we were compelled to transform the clinic into a virtual law practice in mid-March. The transition was relatively smooth; this post does not address how we did it. I am sure others have found great solutions to this puzzle.
Instead, I recognized that students in this course had practiced live for a little over half of the semester and remotely for the rest of the time. So I decided to elicit feedback and prompt reflection about the experience by running the following exercise. By way of context, students in this clinic work in teams of two and work on roughly 5-8 cases in the semester, including long term cases and quick advice. The practice itself is primarily an administrative law practice, with relatively infrequent and already mostly videoconferenced hearings.
I describe the exercise first, the summarize the student's feedback.
1) Pre-assign students to breakout rooms in Zoom. For this class, I divided 11 students into 4 groups, making sure that students were not in the same group as their clinic teammate. I wanted to encourage cross-team sharing of experiences.
2) Assign the task:
-- Discuss the experience of virtual practice.
-- Ask what it would be like to remain a virtual practice, even after we regain access to our physical space.
-- Identify and come ready to report back:
1) at least one benefit or gain from virtual practice.
2) at least one cost or loss from virtual practice.
3) one lesson that might affect your future life as a lawyer.
3) Break into breakout rooms.
4) Bring back and ask for reports:
-- I chose to go question by question, with all groups reporting on one question before moving to the next
-- I typed notes in a document as each group reported, pre-formatted into columns for each question.
-- After all reports, I shared those notes using Zoom’s share screen feature
-- and asked students to reread and consider whether they had additional thoughts.
Here is the list that resulted with this group on this occasion. This is not especially organized and includes only light editing for clarity.
Benefits / Gains:
-- for a permanently online practice: lower costs and lower rent, although we’d still need a room with a copier/scanner and a way to deal with the still unavoidable, old school physical mail.
-- increased efficiency, assuming effective use of the available cloud-based tools (such as Google Drive, Slack, CLIO).
-- easier remote access, especially for us in a state-wide practice focusing on rural areas for some clients (but see losses below.)
-- greater flexibility in scheduling within the clinic, including team meetings and class sessions.
-- greater flexibility for student advocates (and lawyers) in deciding when to do work.
-- in preparing clients/witnesses for videoconferenced hearings, a more accurate role-play of the videoconference experience.
-- especially now, in this unexpected situation, the chance to see people’s private spaces and, to some extent, to see how they act in their private space. One student noted they preferred lying down during Zoom calls. Another self-identified as regularly chewing on some food when they logged into a meeting.
Costs / Losses:
-- decreased efficiency on shared small-scale tasks, when compared to “I’ll just pop into X’s office to ask this question.” In some situations, immediate live interaction is the most efficient way to move a task forward.
-- decreased access for clients: who do not have reliable internet and related equipment; who have limited minutes on a prepaid phone; or who for other reasons find it difficult to use computers or to share with strangers over the phone.
-- decreased efficiency in responding to incoming calls. We have been using a Google Voice number to mask students’ home phones. After leaving voice mail, clients would often call back immediately; but our protocol required our administrator to offload messages and send them to the right person, resulting in delay.
-- less sensory information about clients and witnesses during meetings and interviews and so:
-- a) fewer or at least different non-verbal cues that might prompt different lines of questioning;
-- b) a decreased ability to read body language and tells, affecting assessments of credibility;
-- c) a slightly more impersonal feel.
-- especially for text and email, the risk of miscommunicating tone and attitude, resulting in the need to be more thoughtful and intentional about these ways of connecting. On this point, see this Key and Peele video, which one student sent me after class.
-- partly because of the risks of impersonality and miscommunication, an increased need for reflective listening and for intentionally conveying compassion, empathy, and the sense that you have ‘heard’ the client.
-- the distraction of having a screen in front of you at all times during interpersonal interactions, for those of us who are distracted by things on a screen.
-- the almost complete loss of casual group interaction that usually occurs in the clinic workspace, resulting in less informal sharing of ideas, brainstorming, and (especially) off-topic conversation.
-- the need for greater discipline, or at least a different set of habits, for those who have difficulty working at “home,” with all its powerful distractions, pleasures, and responsibilities.
-- a need for greater discipline in documenting work activities, especially for team-based work.
-- a new or revived appreciation for how large a percentage of law practice can in fact occur remotely.
-- despite that, resistance to losing the opportunity for full interpersonal contact with colleagues, clients, and others.
-- a sense that a hybrid approach might work best, combining live contact with remote work.
-- a specific recommendation that the clinic move to a hybrid model. For example, requiring a minimum number of hours live but allowing for additional hours to be worked remotely.
-- an assumption that advance scheduling of shared work times still has value, so as to ensure that the someone at the other end of a text or chat or email will see and respond in something close to real time. (See “I’ll just pop into X’s office” above.)
-- a starting appreciation for the way in which remote practice can alter efforts to integrate work with other life commitments, resulting in a different set of challenges to maintaining well-being overall.
-- a worry about how to set and maintain boundaries between work and home, if you have them or want them.
Monday, April 6, 2020
The Saint Louis University Law Journal is proud to announce the twenty-second installment of the Journal’s Teaching series, Teaching Law Online.
The Journal created the Teaching series in 2000 as a forum for scholars, judges, and practitioners to discuss key topics and methods of teaching legal subjects. Since then, the Journal has published a teaching issue annually, such as Teaching Civil Procedure (47:1), Teaching Constitutional Law (49:3), Teaching Federal Courts (53:3), and our forthcoming issue, Teaching Property (64:3).
Our Teaching Law Online issue, in line with our past issues, will include articles by prominent scholars and practitioners, sharing their thoughts on teaching legal subjects remotely, a topic that is especially relevant in the rapid transition to remote learning that has occurred this semester in the wake of the COVID-19 pandemic. We hope to represent teachers with all levels of experience teaching legal subjects online, and we welcome submissions on any subject matter within the context of remote and online learning.
Articles for our Teaching Series are usually between 3000–4000 words (approximately 12–15 double-spaced pages) long, although we regularly publish articles as long as 30 pages and as short as 10 pages. Because the articles focus on the author’s own thoughts on teaching, only limited reference to outside sources is needed. We anticipate publishing this issue in the spring of 2021, and therefore ask that you submit your article for review via e-mail by August 1, 2020. If you have any questions, please feel free to contact Michael McMahon, the Managing Editor of the Teaching Issue at Michael.firstname.lastname@example.org.
Wednesday, April 1, 2020
Zero-Tolerance: The Trump Administration's Human Rights Violations Against Migrants on the Southern Border
My friend and co-author, Allyson McKinney Timm, observes that when Americans invoke the language of "human rights" the picture often shifts to some faraway land, somewhere else less concerned with law and liberty. But the principles of inherent human dignity, justice, and morality at the foundation of modern human rights laws are also at the foundation of American independence and constitutional rights. Human rights are and must be an integral part of our politics, law, and government in the United States.
In our article forthcoming in the Drexel Law Review, Zero-Tolerance: The Trump Administration's Human Rights Violations Against Migrants on the Southern Border, we analyze the Trump Administration’s zero-tolerance immigration policies through lenses of humans rights laws and principles. It’s available for download at SSRN here.
The article arises out of long connections and relationships in the clinical community. Ally and I met at least a decade ago at an AALS Conference on Clinical Legal Education in a session on religion, faith, and clinical practice and pedagogy. Ally was a fellow in Yale’s Human Rights Clinic. She completed seminary at Yale Divinity School after her season in the clinic, and she has developed critical, compelling work at the intersection of faith, religious communities, and human rights – centering the inherent dignity of individuals (the imago dei in our Christian traditions) in law and policy.
In recent years, Ally founded Justice Revival. It became a client and stalwart partner for the Community Justice Clinic that I direct at Pepperdine Caruso School of Law. Justice Revival is committed to advancing human rights education and advocacy in the United States, especially within communities of faith.
In this spirit, Justice Revival and the Community Justice Clinic embarked on a multi-year project to analyze the Trump Administration’s immigration policies through lenses of human rights and international human rights laws. Clinic students worked closely with Ally through structured, progressive research to consider whether zero-tolerance enforcement, family separations, child detentions, and other features of Trump’s immigration policies complied with international human rights.
We found that they do not. The Trump Administration’s policies and actions amount to profound, gross violations of human rights under treaties the United States has ratified, conventions it has signed but not yet ratified, and under customary international law. These policies led the United States to violate even deeper, more fundamental, moral principles that are the foundation of human rights law.
Our article merely builds on the mighty advocacy of many more heroic, dedicated, brilliant lawyers, clinicians, and journalists who work tirelessly to illuminate these policies and their effects on people migrating across the southern border and seeking asylum. We are witnesses, helping amplify their voices to create an analytical record of these catastrophic, immoral, illegal actions under the Trump Administration.
During the COVID-19 pandemic, there may seem to be only one story, and this may seem like old news to some. But the story of the Trump Administration’s callous cruelty to migrants and asylum-seekers continues to this day. It shows us much of this President’s values and the lengths to which his administration will go to impose its fearful, impulsive will.
The zero-tolerance story reveals the utter necessity of a government that prioritizes the inherent dignity of all people as its greatest end. Cruelty cannot be our national policy; we are only great when we lead with faith, hope, and love. The United States simply cannot survive by building cowardly, brittle walls against the world. We will only ever flourish when we embrace all our neighbors and ourselves with dignity and justice.