Clinical Law Prof Blog

2020 Update from the Pepperdine Caruso School of Law Program of Clinical Education

This is the season of annual reports from clinics across the country, and it's been inspiring to read about the great work happening from so many schools. 

Here is our report from the Pepperdine Caruso School of Law Program of Clinical Education.  Please click through to see details and stories from our nine clinics; robust, global externship program; practicums and pro bono initiatives; and faculty news on our practice, scholarship, service, and leadership. I love my partners and colleagues and our students. It's a rich honor to do this work, even in - maybe especially in - such a fraught year. 

My introductory message: 

2020 is an extraordinary year, a traumatic inflection point that has presented astonishing and unexpected challenges to everyone. The Legal Clinics at Pepperdine Caruso School of Law have risen to those challenges with vision, discipline, creativity, and patience to continue excellent teaching for our students and critical work for our clients.

Our nine clinics, two practicums, and extensive externship program have adapted, taking lessons that we learned from the Woolsey Fire and other interruptions, to advance and expand our work even during the pandemic. Our clinics practice across vast Los Angeles County in widely diverse practice areas among those in the greatest need and at the forefront of our most pressing issues. In a season of profound crisis, our students and faculty are doing remarkable work.  

Petition to Establish AALS Community Economic Development Section

Over the past year, a critical mass of law school faculty and staff have expressed interest in establishing an AALS Section on Community Economic Development (CED). The proposed section will provide a dynamic, collaborative environment to enhance the scholarship, activism, and direct legal work of CED-focused faculty and professional staff. Notably, the section will help bridge existing gaps between various actors in the CED universe by increasing opportunities for networking and enabling greater synergy and collaboration between scholars and experts in various substantive subjects and disciplines related to CED. Interested faculty and professional staff are invited to read the full petition and sign here. 

Pepperdine Launches a New Clinic for Mediating Religious Divorces

This fall, Pepperdine is launching the Jewish Divorce Mediation Clinic. The name is a work in progress (considering variations on theme, like Religious Family Mediation Clinic, etc.), but the work is innovative and important. In partnership with the Jewish Divorce Assistance Center of Los Angeles, and with generous funding from Ms. Chavi Hertz, the Clinic will mediate cases with Jewish families progressing through civil and religious courts.

For divorcing Jewish couples, parties often must receive a religious divorce in addition to a civil divorce. Students of all faiths or of none will work and learn in the clinic under supervision of Prof. Sarah Nissel who has deep roots and expertise in this work. 

The Clinic’s work lies at the intersection of two of our strongest commitments: conflict resolution and interfaith practice. It also fills an important curricular need for family law practice. Students will engage practice in California family law and divorce mediation, and students will study divorce practices from multiple religions, including Jewish, Christian, Muslim, and Sikh traditions.   

We are excited to enter this complex and fascinating practice. Our aim is for students to learn family law and family mediation, religious competence, cultural sensibility, and engagement across traditions and communities. We hope to serve our community and neighbors in profound ways that can promote families’ peace and healing during some of life’s most stressful and traumatic moments. 

The new clinic joins nine other clinics at Pepperdine for 2018-2019. The other general JD clinics include the Community Justice Clinic, Legal Aid Clinic, Low Income Taxpayer Clinic, Ninth Circuit Appellate Advocacy Clinic, and Restoration & Justice Clinic. The Straus Institute for Dispute Resolution offers the Investor Advocacy Clinic, Mediation Clinic, and Fair Employment and Housing Mediation Clinic. The Palmer Center for Entrepreneurship and the Law continues offering its new Entrepreneurship Clinic. 

Professor Valena Beety Featured as Eyewitness Identification Expert on the Undisclosed Podcast

Our always amazing West Virginia College of Law colleague, Valena Beety, Professor of Law and Director of the West Virginia Innocence Project, is featured on the March 16, 2018 Undisclosed podcast, State v. Ronnie Long – Addendum 1 – Projecting Innocence.  Professor Beety is interviewed by Colin Miller, Professor of Law at the University of South Carolina College of Law and noted expert in the fields of evidence, criminal law, and criminal procedure.  Professor Beety discusses her evolution from an Assistant United States Attorney to an innocence advocate, then addresses the eyewitness identification that caused Ronnie Long to spend forty years in prison.  She identifies multiple factors that render the eyewitness identification unreliable in Mr. Long's case, while also acknowledging how research has reformed police protocols on interviewing eyewitnesses today.  Professor Beety wraps up the interview by sharing her experience litigating habeas corpus cases in which the admission of faulty bite mark and shaken baby syndrome expert evidence led to wrongful convictions.  

Prof. Bob Kuehn's Post on the Demographics, Diversity, and Salary Data Within Clinical Legal Education

In the Winter 2017-2018 CLEA Newsletter, Prof. Bob Kuehn of WashU published data on the demographics, diversity, and other data within clinical legal education. 

Read the entire piece cross-posted here at the Best Practices blog.

Here's the introduction: 

Though clinical faculty have largely moved out of the proverbial basement, they remain a distinct sub-group within most law faculties. Often labeled as something other than law professors (“clinicians”) because of their teaching methods and goals, faculty that teach law clinic and externship courses also differ as a group by gender, race, employment status, and salary from “podium” faculty teaching doctrinal courses. And unlike the movement out of the basement, it’s not clear that clinical and doctrinal faculty are moving closer to each other on those attributes.

 

CLEA's Winter 2017-2018 Newsletter

Edited by Prof. Tanya Cooper with the CLEA newsletter committee, here is CLEA's Newsletter for Winter 2017-2018.

This first issue of Volume 26 includes articles on clinical teaching by Robert Kuehn (Washington Univ.-St. Louis), Joshua Medina (Alabama), and Millicent Newhouse (Baltimore); messages from the outgoing Co-Presidents and incoming President; CLEA committee reports; several announcements about upcoming events at the AALS Annual Meeting in San Diego; and clinical news from our colleagues around the country.

The CLEA Newsletter Committee is Lauren Bartlett (Ohio Northern), Tanya Asim Cooper (Pepperdine), Susan Donovan (Alabama), D'lorah Hughes (UC Irvine), and Kate Kruse (Mitchell Hamline).

(This year, I'm serving as CLEA president and as editor of this blog so will make my interests and roles clear when our content requires it.)

 

 

 

Clinical Writers' Workshop Scheduled for September 22, 2018, at NYU Law

The Clinical Law Review will hold its next Clinical Writers’ Workshop on Saturday, September 22, 2018, at NYU Law School.

 The Workshop provides an opportunity for clinical teachers who are writing about any subject (clinical pedagogy, substantive law, interdisciplinary analysis, empirical work, etc.) to meet with other clinicians writing on related topics to discuss their works-in-progress and brainstorm ideas for further development of their articles. Attendees will meet in small groups organized, to the extent possible, by the subject matter in which they are writing. Each group will “workshop” the draft of each member of the group.

Participation in the Workshop requires the submission of a paper because the workshop takes the form of small group sessions in which all members of the group comment on each other’s manuscripts. By June 30, 2018, all applicants must submit a mini-draft or prospectus, 3-5 pages in length, of the article they intend to present at the workshop.  Full drafts of the articles will be due by September 1, 2018. 

As in the previous Clinical Law Review Workshops, participants will not have to pay an admission or registration fee but  will have to arrange and pay for their own travel and lodging. To assist those who wish to participate but who need assistance for travel and lodging, NYU Law School has created a fund for scholarships to help pay for travel and lodging. The scholarships are designed for those clinical faculty who receive little or no travel support from their law schools and who otherwise would not be able to attend this workshop without scholarship support. Applicants for scholarships will be required to submit, with their 3-5 page prospectus that is due by June 30, a proposed budget for travel and lodging and a brief statement of why the scholarship would be helpful in supporting their attendance at this conference.  The Board will review all scholarship applications and issue decisions about scholarships in early July. The scholarships are conditioned upon recipients’ meeting all requirements for workshop participation, including submission of drafts by the deadlines set forth above, and will be capped at a maximum of $750 per person.

 If you have any comments or suggestions you would like to send us, we would be very happy to hear from you. Comments and suggestions should be sent to Randy Hertz at [email protected].

 -- The Board of Editors of the Clinical Law Review

UDC David A. Clarke School of Law Offers Clinic-Wide Orientation in Fall 2017

This Fall, clinicians at the University of the District of Columbia’s David A. Clarke School of Law boldly embarked on what was, for us, a new collaboration to create a clinic-wide orientation. As many readers will know, UDC-DCSL has a rich clinical history and our clinical program is central to our curriculum. Each graduating student, in both our full-time and part-time (evening) program, must complete two seven-credit clinics. We offer a range of clinics and this semester the five of our clinics slated to operate for full-time (day) students undertook just what we ask our students teams to do, intensive collaboration, in furtherance of our shared goals.

Over the summer we met to try to determine what common ground we shared throughout our clinics – ranging in substantive areas from Legislation to Juvenile and Special Education to General Practice, Housing, and Immigration. (Our Tax Clinic, Community and Economic Development Clinic, and the Government Accountability Project are offered in the evening this semester and did not participate in the day clinic orientation). A primary goal was to create a common set of values and a culture across our clinics. Another goal was to set the stage for conversations that would continue within our individual clinics throughout the semester.

We determined that we would first meet for two hours in our individual clinics and then come together as a group. Fueled by pizza and after a round-robin of introductions to all of our clinical faculty and fellows, ably facilitated by Professor Marcy Karin, who directs the Legislation Clinic and with a welcome from UDC-DCSL Dean Shelley Broderick, we launched into the substance for the four hour afternoon session. Practicing what we preach, we circulated a detailed agenda for students outlining our plan for the afternoon.

First, Professor Lindsay M. Harris, Co-Director of the Immigration and Human Rights Clinic led a session focused on clinical pedagogy. Using text-polling and word cloud technology, we opened up the session with an exercise asking students to share just one word to describe what they had heard, around campus, about the clinic which they were now entering. This ice-breaker served as a Launchpad to consider the goals of clinical education broadly. We shared the concept of “zones of learning and how, in clinic, we aim to work in our “stretch zone.” Students individually mapped out the tasks or skills within their comfort zone, stretch zone, and panic zone.

Next up, Professors Faith Mullen and Tianna Gibbs, Co-Directors of our General Practice Clinic led a discussion on professional responsibility and ethics. All UDC-DCSL students must take Professional Responsibility as either a pre or co-requisite to clinic, but this session served to focus on ethical issues specifically within clinic. Professors Mullen and Gibbs, unphased by an unexpected fire alarm mid-session(!), ably guided our students through key topics including unauthorized practice of law, student practice, file maintenance, attorney client privilege, confidentiality, and more. This primed the students to start to think about their role as student attorneys, we hope, throughout the rest of the semester.

Professor Laurie Morin, who directs the Gender Justice Project and currently teaches within the Legislation Clinic, then led a session on professional communication. During the session, Professor Morin shared with the students tips, strategies, and wisdom, but also carefully connected what they had learned during their first year legal research and writing course to their writing within clinic. Professor Norrinda Brown Hayat, Director of the Housing and Consumer Law Clinic, followed up on this presentation with a hands-on presentation for students on using track changes within Microsoft Word and clarifying our clinic writing portfolio graduation requirement.

Freshly armed with a heightened understanding of Mindfulness in the Law thanks to the two-day conference-within-a-conference at SEALS in August, Professor Harris led a brief meditation followed by an introduction to mindfulness. We learned about the growing traction mindfulness has within law schools, companies, and bar associations, and the potential physical and mental health benefits. We concluded the session by walking through the Jeremy Hunter’s Reactivity Map exercise, essentially considering the value of inserting an extra reflective step in between interpreting a situation and subsequent action as a student attorney.

Our final substantive session was focused on acknowledging professional identity and discussing the concept of feeling “othered” within the legal profession. Professor Hayat, using a thought provoking and contemporary video clip to open the discussion, asked each student in the room to contribute just a one word reaction to what they had seen. Professor Hayat then skillfully set the stage for necessary conversations about race, gender, religion, and sexual orientation, and other arenas where personal and professional identity intersect and come into play throughout the semester.

Professor Lauren Onkeles-Klein, Visiting Professor and Director of our Juvenile and Special Education Clinic took on the less-than-desirable task of walking through the nuts and bolts of some key administrative tasks at the end of the day. Through this, students were introduced to key staff and began to develop an understanding of online case management procedures, printing options, interpretation & translation, supplies, copying and mailing documents.

This new collaboration required a great deal of effort by our clinical faculty over the summer, but, we hope that it will sow the seeds for working across clinic and collaborating throughout the semester. We are currently assessing the program and have solicited feedback from student participants in the form of a survey.

We share with the wider clinical community in the hopes of stimulating thought and discussion – do you conduct orientations within your individual clinics? Have your schools tried to provide a broader program, orienting students across clinics? What have been your successes? Your failures? Could this work at your institution, why or why not?

Call for Proposals: Externships 9: Coming of Age

CALL FOR PROPOSALS

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, [email protected]

            Carrie Kaas, [email protected]

            Kendall Kerew, [email protected]

            Meg Reuter, [email protected]

            Alex Scherr, [email protected]

Submitting a Proposal:

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

            http://www.law.uga.edu/X9

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

POSSIBLE TOPICS FOR PROPOSALS

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

Transactional Clinical Conference in Philly tomorrow and Friday

90 transactional (CED, IP, Small Biz, and Entrepreneurship) clinicians from across the country will meet in Philadelphia June 1-2.  Here's the Program:

Clinical Program Rankings in U.S. News and The National Jurist

The National Jurist magazine has released its rankings for law schools' programs for practical training. National Jurist bases its rankings on data reported to the ABA for opportunities available to students in clinics, externships, simulation courses, interscholastic advocacy competitions, and other factors, like pro bono requirements. These are the top 20 schools for practical training according to these rankings:

1. Northeastern University
2. University of St. Thomas - Minnesota
3. Yale Law School
4. University of Arizona
5. Pepperdine University
6. University of California - Irvine
7. Valparaiso University
8. University of Wisconsin
9. University of Denver
10. University of Colorado
11. Northwestern University
12. University of Utah
13. University of Cincinnati
14. Cardozo School of Law
15. Golden Gate University
16. Liberty University
17. Washington & Lee University
18. Pacific McGeorge School of Law
19. Brigham Young University
20. University of Mississippi

U.S. News has released its annual rankings in higher education, including for law schools and clinical programs. U.S. News bases its rankings of clinical programs on peer-reputation voting. This year, these are the top 20 clinical programs according to these rankings:

1. Georgetown University
2. American University
3. CUNY
4. New York University
5. Yale University
6. University of the District of Columbia
7. University of Maryland
8. Washington University in St. Louis
9. University of Michigan
10. Stanford University
11. Northwestern University
12. University of Balitmore
13. University of Denver
14. University of New Mexico
15. University of California - Irvine
16. University of California - Berkeley
17. Suffolk University
18. Seattle University
19. Rutgers
20. Harvard University

 

Providing Pro Bono Services to Dreamers and Others in the University

This week, at the direction of our university administration, Pepperdine announced several new initiatives to provide focused services on students across the university who are affected by changes and potential changes in immigration law and international travel rules.   These services include projects by the counseling center, chaplain's office, and point people in each of our five schools.

They also include the new Pepperdine Law Immigration Clinic.  This is not a standard, credit-bearing course in the clinical curriculum but is a pilot project with four clinical faculty supervising students who can earn pro bono credit. We are providing advice and counsel under California's limited-scope representation rules.  The representation is limited to basic advice, counsel, and referrals for students with questions and concerns about their visas, residency status, documentation, international travel, and immigration matters. The clients are Pepperdine students who are Dreamers, undocumented immigrants, or international students holding passports from affected nations.  (Here is our announcement to the law school this week.)

The university also funded a retainer for an outside, expert immigration attorney to handle more complex matters for students, short of appearing in adversarial proceedings.  The retained lawyer is one of our former supervising attorneys in the clinics and is one of the leading immigration lawyers in Los Angeles. 

In frustrating times, it has been wonderful to see our university mobilize for its students, to marshal its resources quickly, and gather committed people from across the university ecosystem who are eager and willing to add work their portfolios.  

Several other schools and organizations have been at work on similar projects, and their resources have been invaluable to us as we get up to speed on this work.  Our colleagues in immigration clinics around the country have been generous in sharing insight, materials, and ideas as we get started.

Here are some important and useful resources from our University of California neighbors for which are very grateful:

We Stand With Our Students (an initiative of UCLA profs)

University of California Undocumented Legal Services Center

 

A Clinic Mural

Like many clinicians, I found this past semester challenging. (And yes, “challenging” is code for all of the other descriptors and curses best left off this blog.) I was fortunate to work with 10 especially engaged UC Davis law students in a clinic serving victims of intimate partner violence and sexual assault. But the semester seemed unusually fraught with health issues for students, staff, and faculty alike, and our clients faced particularly frustrating setbacks in court. Then there was the election…

But there was also a new kind of energy in our building - involving scaffolding, paint, and pizza. Professor Maceo Montoya and the undergraduate students* enrolled in his Fall 2016 Chicana/o Studies Mural Workshop created and painted a mural for a large wall in our clinic cottage. (The picture does not do it justice.) The left side depicts “trapped,” portraying isolation, hardship, and the lack of accessibility to lawyers for our clients. The center represents “agency,” portraying our clinic law students, the history of our building as a farmworker cottage, and the hope the rising sun brings. The right side shows “liberation,” including the chains of oppression transforming into quetzals, the safe space provided through our clinic, legal successes for clients, and “justice” written in several languages.

Thanks to connections made by one of our Immigration Clinic Directors, Professor Holly Cooper, and the creativity and hard work of Professor Montoya and his students, our workspace is more colorful, more inviting, and more meaningful. And we now have an everyday reminder of the reason we do the work we do.

Happy New Year!

*The students who painted the mural were: Vanessa Barajas Orozco, Castro, Anllely, Monica Duarte Martinez, Jose Espinoza, Jazmin Guerrero, Daisy Hernandez, Kristi Lin, Cecilia Lopez, Jeannette Martinez, Raul Mercado, Annette Miramontes, Briana Nunez, Jessica Orozco, Derick Romero, Shelby Sanders, and Natalie Villalobos Gomez. Several mentioned an interest in social justice lawyering, so keep an eye out for their law school applications.  

In Praise of a Colleague

I have the honor of running a mediation clinical program at Columbia Law School with Alexandra Carter. I should note that Alex is the Director of the Clinic and I am the Associate Director. I have to note that distinction to help you understand how much of an honor it is to run this clinic with her. Because, even though Alex is the boss, it never feels that way to me. She never treats me like she’s the boss. When she introduces me, she always says, “This is my colleague.” My ideas for curriculum, for projects, for partnerships, etc. all the way down to the minutia are considered with equal merit to her own—and, if I’m wrong about that, then she does such a great job of making it seem that way that the factual difference is meaningless.

That little preface above brings me to this: her ideas are better than mine. A clear example of this fact seems worth sharing, now more than ever. When our President Elect Designate was still just the Republican nominee a report hit the media about his various sexual assaults. These weren’t accusations and they weren’t second-hand accounts. These were descriptions of assaults that he, himself, admitted willingly to a reporter on a tour bus in 2005. He offered a defense of his comments: these remarks were made in private (or so he thought), and they were mere locker room talk amongst the boys.

I had plans to take a minute and address the comments in our class. Alex had a different idea, and, like I said, her ideas are better than mine.

I was supervising a case a team of our students were mediating on the Tuesday after the story broke. It was a difficult, emotionally charged mediation that drained the team of students and me. So, when I got a text from Alex saying that we were holding class in the Dodge Fitness Center on Columbia’s main campus I didn’t have the mental or emotional capacity left to think anything about it other than I needed to make a mental note not to go to our regular classroom. The mediation ran long which made the students and I late to class. When we arrived there the class sat, in a tiny, sweltering locker room in a circle, passing a talking piece, talking about “locker room talk.” Alex decided to depart from our regularly scheduled program to bring us an important message about law school education: we oughtn’t forget that the law affects people. Our leaders’ words and actions affect people.

Any professor reading this knows how precious classroom time is. Alex willingly gave away 3 hours of class time to find a way for our students to talk about the law, our leaders, and the people they affect. She also modeled responsible reaction for our students. She honored their emotional response to President Elect Designate Trump’s words and facile explanation, but didn’t allow them to live in the righteousness of outrage. She showed them that taking offense wasn’t enough--they also had to take action. She showed them how to reclaim the locker room space for a new and better kind of “locker room talk.”

Oh, and remember how I told you above that Alex treats my ideas with equal merit to her own? Well, having the class sit in a circle and pass a talking piece is a technique she learned from me. It’s a technique American Indian tribes have been using since time immemorial to prevent and address conflict. It’s a technique that I was able to show Alex because when I was a law student in her mediation clinic I undertook a project to design a curriculum to begin teaching tribal dispute resolution in law schools. It’s a project, a student project mind you, that she took so much interest in that it became a course of legal study at Columbia Law School. From there it spread to several law schools: New Mexico, Oklahoma, Yale, to name a few. It was my idea to create a curriculum to make tribal dispute resolution a course of legal study in law schools. It was Alex’s idea to actually implement the curriculum and actually launch a course—the first course of its kind in an ABA accredited law school. Like I said, her ideas are better than mine.

_____________________________________________________________________________________

Linked here is an article the Wall Street Journal wrote on the locker room class Alex led (caveat: it's behind a pay wall). My only note is that it describes a Peacemaking Circle as a "mediation technique" and it is not. It’s a technique Indigenous People around the world--especially in America--have been using since before history began being recorded.

News and Notes on Clinical and Experiential Education at Pepperdine University School of Law

In this annual season of program updates, I am happy to share news from Pepperdine about our continuing efforts to expand and improve the programs of clinical and experiential education. This has been a busy year of new projects and curricular reforms.

Curriculum  Reform:

As I noted here, in 2014, Pepperdine became the first school in California to proactively adopt a version of the California State Bar’s TFARR proposals. Our current 3Ls will be the first class to graduate with a requirement of 15 units of experiential education and 50 hours of pro bono service. This year, we refined that requirement to accommodate student demand and to balance other important experiences in law school. Now, students must complete 15 units of experiential courses or their equivalent, and the equivalent may include limited legal work outside of credit bearing courses. Here are more details on our new experiential learning requirements.

Pro Bono:

The 50-hour pro bono requirement has driven exceptional student demand for clinics and practicum courses, in addition to co-curricular pro bono opportunities. We are constantly working to generate and promote pro bono opportunities for students.  For example, with generous grant support, we have developed an excellent partnership with OneJustice to offer multiple Rural Justice Bus trips throughout the year to underserved areas of Southern California. These limited-scope clinics focus primarily on veterans services in Ventura and Santa Barbara counties. We have developed these trips largely for 1Ls, so they can have early live-client experience before they are eligible for clinics, externships and practicums.  Some are meeting clients under supervision within weeks of beginning law school. Here are more details on the pro bono requirement.

Expanding Externships:

In the wake of the ABA’s dramatic revisions to field placement standards at the beginning of this semester, we undertook a thorough examination of our externship program (timely as the ABA just completed a site visit last week). After provisional experiments this semester, and considering significant student demand, Pepperdine now permits paid externships in addition to our typical, unpaid placements in judicial, governmental, public interest, and corporate offices. In Los Angeles, this is especially advantageous for our students working in entertainment, media, and sports practices. 

Our students may take up to 22 units of out-of-classroom credit during law school, which includes all field placement courses, and they may take up to 10 units of externship credit per term. These full-time externships are common for students working in federal circuit court their second year, and they are essential for our Washington, DC Externship Semester. Here are more details on the externship programs.

New Clinics:

In 2016, we launched two new clinics.  In the Restoration & Justice Clinic, students represent victims of domestic violence, sexual assault, and human trafficking in Los Angeles.  Prof. Tanya Cooper has developed  important partnerships with the Legal Aid Foundation of Los Angeles and CAST LA to advocate for clients of gender-based crimes, seeking remedies and orders to ensure liberty, safety and empowerment for our clients.  

On the foundation of an IRS grant, we launched the Low Income Taxpayer Clinic in downtown Los Angeles. This clinic has a particular focus on ESL clients in downtown and East LA.  In its first full semester, the clinic had a full wait list within days of opening registration. Under the exceptional direction of Supervising Attorney Isai Cortez, the LITC is thriving on Skid Row alongside the Legal Aid Clinic.

Now with six standard JD clinics and three clinics in the Straus Institute for Dispute Resolution, Pepperdine offers about 160 seats in clinical courses each year, accommodating about 80% of all law students by the time they graduate. 

Here are more details on all of our clinics: Community Justice Clinic, Fair Employment & Housing Mediation Clinic, Investor Advocacy Clinic, Legal Aid Clinic, Low Income Taxpayer Clinic, Mediation Clinic, Ninth Circuit Appellate Advocacy Clinic, Restoration & Justice Clinic, and Special Education Advocacy Clinic.

New Practicum Courses:

To increase live-client courses, and to offer more specialized practice areas, we have developed several practicum courses in fruitful collaboration with excellent partners. Practicums give us a platform to innovate and experiment, especially when institutional resources are tight. These are exciting works in progress. 

Practicums are field placement courses in collaboration with partners in focused practice areas, reserved for Pepperdine students who apply directly to the partner agencies. The partners provide supervision in practice, and law professors provide academic framing and guided reflection.  Presently, we offer three active practicum courses with others in development.

The Employment Law Practicum is our newest practicum course. Students work with Neighborhood Legal Services of Los Angeles County in its Workers’ Rights Clinic. Their work involves individual representation, policy research, and program development in immigrant communities. 

We also work with the great lawyers at NLSLA in the Veterans Law Practicum (Los Angeles).  Students represent veterans in diverse controversies, applications, and appeals for benefits in LA area Veterans Administration offices through NLSLA's Veterans Initiative.

In the Veterans Law Practicum (Ventura), our largest and longest running practicum course, students work with the Ventura County Public Defender to represent clients in Veterans Treatment Court, a collaborative court with restorative justice, diversionary sentencing, and rehabilitative programs for veterans.    

We have set an ambitious standard that every student will graduate with diverse, intensive practice experience with live-clients and committed experiences in public interest practice. This is a demanding expression of our mission and pedagogical priorities, and it creates perpetual challenges to improve existing programs and to expand into new forms, partnerships, and practice areas. We have all hands on deck, from our dedicated clinical faculty, to adjuncts and supervising attorneys, to doctrinal faculty who are taking on faculty advising, imagining new clinics, and integrating experiential components into their courses. 

This is an exciting season for clinical and experiential education at Pepperdine. Like so many schools, we are pressed between rising demand for clinics, externships and experiential learning and intensifying pressures in enrollment and budgets. We have had a full year building these programs to better serve our students, clients, and communities.  

Columbia Law School to Design and Teach Alternative Dispute Resolution Curriculum With the Educational Arm of the United Nations

Link to original story published at Columbia Law School's website is here.

 

Columbia Law School will develop a program to train U.N. diplomats and personnel in negotiation techniques and conflict resolution, under an agreement signed this week by Columbia University and the United Nations Institute for Training and Research (UNITAR), based in Geneva, Switzerland.

The partnership grew out of a multi-year effort by Columbia Law School Professor Alexandra Carter ’03 to teach alternative dispute resolution to U.N. diplomats in New York City. Since 2012, Carter—the director of clinical education at the Law School and head of the Mediation Clinic—has led UNITAR’s negotiation workshops for women diplomats.

 

A champion of mediation as a critical tool in resolving conflicts, Carter envisions a larger and evolving international collaboration between UNITAR and Columbia University. She touts the global concerns and international reach of many of the Law School’s ten clinics, and credits Law School Dean Gillian Lester, the Lucy G. Moses Professor of Law, for making “international engagement a major pillar of her deanship.”

 

“Columbia Law School’s clinics move global and national policy developments, in addition to serving many individual clients,” said Carter. “Over the last decade, the Mediation Clinic has worked with transnational organizations like the United Nations, as well as foreign governments, federal and state courts, and law schools, to advance the practice of mediation, negotiation, and global peace building.

 

“The Mediation Clinic will be the focal and contact point for the new curriculum and trainings, though over time we expect to bring together many of our experts from other schools and disciplines. We are starting in New York—with the largest diplomatic corps—but we have already received requests for proposals abroad.”

 

‘Opportunities for Our Students’

 

Under the supervision of Carter and Lecturer in Law Shawn Watts ’12, Columbia Law School students in the Mediation Clinic work to resolve a wide range of real-world cases involving commercial, employment, housing, and family disputes. Carter sees great opportunities in the new UNITAR partnership for students who have already studied the basics of negotiation.

 

“Columbia Law School students will be intimately involved in the design of these training programs, they will assist in the classrooms, and they will have an opportunity for substantive interactions with diplomats and change agents from all over the world,” she said.

 

In addition to teaching her Law School courses, Carter has taught mediation to private- and public-sector groups, as well as to international academic audiences, and she serves on the Mediator Ethics Advisory Committee for the New York State Unified Court System. In January, Carter and Watts helped conduct the first Peace Summit at Tokyo’s International Christian University, where students, faculty, and diplomats from nine nations studied the policy and practice of mediation and peace building.

 

In 2012, UNITAR asked the Mediation Clinic to participate in the Women Negotiating Peace conference at the United Nations. Carter’s workshop--a first-of-its-kind training for female delegates—was organized in response to U.N. Security Council Resolution 1325, which promotes the participation of women in peace building efforts worldwide, noting they are “underrepresented in virtually all” governments.

 

“We were proud to be part of that first summit,” Carter recalled, “and right from the beginning, we could see the impact on the diplomats and also the incredible opportunities for our students. The U.N. asked us to return because of the tremendous feedback.”

 

Since then, the workshop has become an annual event, and participants have even come to the Law School for further training, attending the initial “boot camp” weeks of each semester’s Mediation Clinic. Starting in the fall, Carter and Watts will teach an Advanced Mediation Clinic, “in large part because of the U.N. partnership and all the substantive work we know it will generate for our students,” Carter said.

 

At this week’s signing of the Law School’s agreement with UNITAR, U.N. Assistant Secretary-General Nikhil Seth stressed the importance of gender equality.  “He came up with an idea to hold training programs for women before the General Assembly and all other major U.N. meetings,” Carter said, “so that female diplomats feel equipped and empowered to enter the U.N.’s biggest arenas and advocate for themselves and their missions.”

 

In a statement released after this week’s meeting at Columbia Law School, UNITAR called the collaboration “crucial to equip members of this community with the capacity to navigate and contribute to the United Nations.”

 

Partnership with UNITAR

 

UNITAR was established in 1965 "for the purpose of enhancing the effectiveness of the United Nations.'' It provides short-term executive training to officials of member states as well as to representatives of civil society and the private sector. It works with an estimated 25,000 people around the world each year, through seminars and workshops, e-learning, and special events.

 

When Carter met earlier this year with the head of UNITAR’s New York office, Ambassador Marco Suazo, they came up with the same question: “Why are we talking about isolated programs when we could be talking about something so much greater?” remembered Carter. “We should be exploring everything that Columbia Law School and Columbia University bring to bear, in terms of teaching, intellectual leadership, and the ability to design a curriculum that will marry conflict resolution—which is a skill that cuts across all disciplines—with the U.N.’s 2030 agenda and its sustainable development goals. These goals include gender equality, eradicating poverty, access to justice, making sustainable cities, creating just institutions and protecting our environment.”

 

The agenda’s social justice goals align with the mission of the Columbia Law School clinics, which handle cases in such subject areas as international human rights, environmental law, community enterprise, and immigrants’ rights.

 

“Our clinics were founded to increase access to justice and to solve legal and social problems, to be a voice for those who need one, and to empower individuals, whether they live in New York City or Papua New Guinea, to access their rights and solve their own problems,” Carter said. “This partnership is a tremendous fit for our program.”

 

The New York diplomatic corps represents a wide variety of nations, from the world’s most- to least-developed states. Workshop participants will receive signed certificates of attendance from Columbia Law School and Columbia University, Carter notes, and the U.N. has expressed a desire to work toward a more formal credential, such as a certificate in conflict resolution and diplomacy.

 

“Our goal, over the next year and beyond, is to design and execute trainings that will reach hundreds of diplomats, and to combine our expertise in conflict resolution with substantive legal knowledge that will benefit all nations and all peoples,” Carter said.

 

Columbia Law School’s Lawyering in the Digital Age Clinic Unveils Earned Income Tax Credit Information Tool Kit and Online Portal.

The federal Earned Income Tax Credit (EITC) program brought millions of families above the poverty level last year. In 2014, 27.5 million low-and-moderate income workers received more than $66 billion in EITC. The average amount of EITC received by tax filers last year was more than $2400. Still, the IRS estimates that roughly $1 billion dollars is regularly left unclaimed.

Building on earlier work with the Legal Services Corporation (LSC), Columbia’s Lawyering in the Digital Age Clinic partnered with the Legal Aid Society of Orange County on two projects. The first is an EITC “Tool Kit” that is designed to help advocates across the country explain to their clients and constituents how to qualify for EITC benefits. The second project is an EITC online information portal. This lay-focused website provides an overview of the EITC benefit, eligibility requirements and filing process. In addition, users have access to an eligibility calculator, filing forms and a list of resources for free help with filing for the EITC. Information about both the Tool Kit and Portal has been circulated to all 134 LSC-affiliated offices as well as other prominent service providers and community organizations.

One does not have to owe taxes or expect a refund to claim the EITC. Even those who are not required to file a federal tax return can apply. Also, those eligible for the EITC can go back three years to claim it.

Both projects exemplify the work of the Lawyering in the Digital Age Clinic. In the Clinic, students use technology to create products and services that allow public interest legal organizations and the courts to expand access to justice. In this project, the Tool Kit contains information about the EITC and gives legal services attorneys an overview of the need to promote EITC awareness. It also provides advocates a convenient set of resources geared towards encouraging low-to-moderate low wage workers to claim the benefits they’ve earned. Similarly, the Portal is designed to be an online “one-stop shop” for anyone to learn more about the EITC program. The students created the portal to break down seemingly complex tax filing information into straightforward language that is accessible to the public.

These two projects aim to address the overwhelming unmet demand for free civil legal services. Because many legal aid/legal services offices are understaffed in proportion to the communities they serve, many persons do not receive the legal help that they seek. One way to close this gap is to make information about significant resources available to the community. Here, while it is important for public interest lawyers to spread the word about vital benefits, there is no need for a lawyer to actually assist applicants in filing claims. Instead, the Lawyering in the Digital Age Clinic has made the information about how to file for the EITC available for free online. In so doing, more people can receive the much needed benefits they deserve.

2016 National Jurist rankings for Practical Training

National Jurist has released its rankings of law schools for practical training.

In the article, the editors explain their methodology.  Clinics account for 38% of the ranking scores, derived from ABA data on the number of clinic seats filled relative to upper level enrollment.  Externships accounts for 24% of the ranking scores, based on the numbers of students in externships relative to the number of upper level students, likewise based on ABA data.  Simulation courses account for 21% of the ranking scores, reckoned similarly from ABA data.  Interschool competitions account for 5% of the scores, and the final 10% of the scores are for other  programs, like pro bono, that are not reflected in the other categories. 

Here are the top 25 schools from this year's rankings:

1. Northeastern
2. University of St. Thomas (MN)
3. Yale
4. UC-Irvine
5. Washington & Lee
6. Wisconsin
7. Arizona
8. BYU
9. Denver
10. Pepperdine
11. Colorado
12. UMKC
13. Utah
14. Northwestern
15. Case Western
16. Brooklyn
17. Wyoming
18. Mitchell Hamline
19. Mississippi
20. Golden Gate
21. Kansas
22. Liberty
23. New Hampshire
24. Cardozo
25. Drake

The Hope and Promise of California’s TFARR Reforms

With thanks to my colleague and co-blogger, Prof. Tanya Cooper, and her team who edit the CLEA Newsletter, I am cross-posting my article on California's TFARR proposals from the Winter 2015-2016 issue.  This is a variation on a theme I've addressed previously on this blog. 

 

In November 2014, the State Bar of California’s Task Force on Admissions Regulatory Reform (“TFARR”) completed twenty-eight months of work considering new standards for admission to the bar. TFARR followed dramatic new standards for admission to the New York bar that require pro bono and increased experiential learning requirements in law school. (New York announced its final, amended rules in December 2015, available through links here.)

TFARR’s policy is to protect the public and to promote the profession by ensuring law students are better prepared to be ethical professionals when they enter practice. TFARR’s proposals do not bind law schools directly. Rather, they would impose requirements for admission to the California bar that would implicate every law student’s experiences and curricular choices in law school. In early 2015, the Bar’s Board of Trustees adopted the report and proposed new rules. They are not effective yet but await approval and enactment from the California Supreme Court.

Complete information and the text of the proposed rules are available at the TFARR pages on the Bar’s site here.

TFARR’s proposed rules include two important enhancements to experiential learning that will affect all law schools in California and any law student in the country who seeks admission to the California bar. First, the proposed standards would require students to complete fifteen academic units of experiential course work. This “practice-based experiential competency training” would include clinics and externships. It would also include typical simulation and “professional skills” courses (now known as “experiential” under recent ABA revisions) as designated by the law schools. TFARR also permits law schools to designate an experiential component within a standard doctrinal course to count toward this training. First year legal research and writing courses will not count toward the fifteen units. (TFARR’s requirement exceeds the new ABA standard that requires students to complete six units of experiential course work, and the ABA rules do not permit schools to carve out a portion of otherwise doctrinal classes as experiential.)

The proposed rules provide for an alternative path to fulfill a portion of the competency training through “apprenticeships” outside of law school curriculum. An apprenticeship is supervised legal work, with or without pay, like traditional judicial or law firm clerkships or summer associate jobs, which meets expressed pedagogical standards. A student could earn up to six units toward the required competency training through an apprenticeship. Every fifty hours working in a qualifying apprenticeship can count as a unit toward the fifteen required for bar purposes, although these would not be academic credits toward law school graduation.    

          Second, the TFARR admission rules would require applicants to provide fifty hours of supervised pro bono legal services. The new rules aim for increased access to justice, but the principle policy is to provide experience in practice that inculcates virtues and values of public citizenship and ethical lawyering. The TFARR definition for pro bono is very similar to Rule 6.1 of the ABA Model Rules of Professional Conduct. From the proposed requirements:

“Pro bono” means providing or enabling direct delivery of supervised legal services without expectation of compensation from the client other than reimbursement of expenses to

(1) persons of limited means . . . ;

(2) charitable, religious, civic, community, governmental and educational organizations in matters that are designed primarily to address the needs of persons of limited means; or

(3) individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights, or charitable, religious, civic, community, governmental and educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization’s economic resources or would be otherwise inappropriate.

Qualifying pro bono experiences can be in law school clinics, field placements in these categories, or other volunteer or internship opportunities with lawyers in these categories. Some questions remain about whether placements with prosecutors or courts would qualify, but the general consensus is that these placements do not qualify because they do not fit the definitions.  

Under the proposals, students could earn “dual credit” toward both requirements in law school clinics and qualifying field placements. This provision creates great incentives for students to enroll in experiential courses that satisfy the pro bono requirement simultaneously. This, in turn, creates incentives for law schools to increase capacity in diverse clinical and externship courses.

The proposals create new challenges and opportunities for law schools and collaborating public interest lawyers. Very often, law students earn externship credit with public interest legal services providers, and the new rules may create dramatic new demand for these placements where students can earn dual credit. The rules could increase talent and capacity available for public interest lawyers, but it could also impose new burdens on training and resources to supervise law students who work for a relatively short time. At once, TFARR will require increased collaboration among law schools and legal services providers while deepening the need for more capacity within law schools to provide these experiences.

Some law school administrators, most notably not from California, have leveled reactionary criticism that TFARR rules intrude on law schools’ priorities and pedagogy. A few deans have argued that these new rules would limit law student options and squelch innovation. This criticism runs counter to the experiences at law schools that are preparing for the new standards instead of opposing them. TFARR does not stifle innovative teaching; TFARR promotes it.

Pepperdine University School of Law is the first California law school to adopt the TFARR standards as its own graduation requirements. Beginning with the Class of 2017, students must complete fifty hours of pro bono service and fifteen units of experiential courses. This has spurred efforts to use existing resources and to experiment with new course forms to build internal capacity so that students have sufficient opportunities to complete the requirements across diverse practice areas. In addition to existing clinics, externships, and experiential courses in alternative dispute resolution, Pepperdine has developed new clinics devoted to corporate and policy practice for nonprofits, multidisciplinary practice around gender-based crimes, and tax practice for indigent clients. The law school is experimenting with practicum courses focused on federal criminal practice and on diversionary sentencing and civil legal services for veterans. It is launching new practice-based initiatives for entrepreneurship and tech start-ups. Doctrinal professors are designing practice-based components in substantive courses like torts, ethics, intellectual property, entertainment, and privacy law. Faculty, students and staff are generating pro bono opportunities with collaborators in Los Angeles, rural Southern California, Washington D.C., and abroad in Europe, Asia and Africa.

TFARR reforms would formalize policies that most law schools already tout as aspirational virtues. The new rules would promote professional formation and client-readiness. They are consistent with moves toward formative assessment. In the marketplace of legal education and law practice, the bench and bar have been pushing applied, apprenticeship education back onto law schools for a generation. Law schools have responded in varying degrees of cheerful creativity or reactionary opposition, but with TFARR, and the New York rules before it, the bar has gotten serious as law schools have slowed their responses in the present enrollment and economic crises. These moves are the market signaling to law schools that they must do a better job teaching students how to be ethical, useful professionals, for the sake of justice, the rule of law, the public, and the profession itself.  

WASHINGTON'S MARIJUANA LAWS AND SOCIAL JUSTICE—OUR CLINICAL WORK AT SEATTLE UNIVERSITY SCHOOL OF LAW

Bryan Adamson          

Our Consumer Protection Clinic provides opportunities for students to represent clients in a range of civil mediation and litigation. This year, in addition to helping formerly confined citizens seek relief from their legal financial obligations (more on that in our next post), my clinic students are engaged in other advocacy and policy work. With the passage of Initiative 502 in 2012 and Senate Bill 5052 this past July, part of our Clinic advocacy involves working against the consequences of Washington’s cannabis laws on our most vulnerable populations.

These laws have given our students an opportunity to passionately pursue the ends of social justice in a fairly unprecedented legal area. Our students are 1) developing policy prescriptions regarding cannabis regulation and the poor and disabled; 2) developing a tenant advice manual for residents of federally-supported housing, and; 3) analyzing Washington state cannabis advertising for unfair or deceptive representations or regulatory violations through the lens of the our Consumer Protection Act. 

Outside of the criminal law context, a first take may not readily illuminate the panoply of social justice issues underneath the legalization of cannabis (of which marijuana is just one form). To be sure, nationwide there have been mighty efforts advocating changes in our state and federal sentencing laws. In Washington as elsewhere, generations of the most ardent advocates at every turn have, for example, fought against the disproportionate arrest and conviction rates of minorities for marijuana use and/or possession.[1] Initiative 502 has already had a profound effect on the state’s criminal justice system, economy, and overall social welfare of Washingtonians. A closer look however reveals disconcerting impacts upon poor and disabled consumers, and tenants of federally-subsidized housing.

This past July saw a major change in Washington’s existing medical cannabis regulatory framework. One major feature of the new laws prohibits unregulated medical cannabis access points unless the organization obtains a license through the Washington State Liquor and Cannabis Board (LCB), and meets all LCB requirements. Essentially, medical marijuana sales will be conducted at recreational retail shops. While in important ways, SB 5052 will benefit medical cannabis patients, the LCB requirements will have detrimental effects on those patients in two main areas:  distance proximity and affordability.

Distance Proximity

One of the most onerous requirements of a licensed cannabis store is that it must be at least 1,000 feet away from “any…public transit center[,]”[2] i.e., bus or rail stop. From the medical cannabis patient’s perspective, the 1,000 feet requirement has harmful implications. Many medical cannabis patients are mobility-impaired, and require the use of wheelchairs, walkers, or canes. As many medical cannabis patients cannot independently ambulate and/or must rely on public transportation, a walk of over 1,000 feet to gain access to their medicine can be a challenge and a health risk. Additionally, because of possession amount restrictions, medical cannabis patients must make more frequent trips to retail outlet—incurring additional costs, times, and physical exertion.

 Affordability

Medical cannabis patients currently enjoy access to a plethora of medical cannabis products in medical cannabis access points. Most importantly, edible products have been developed in access points since 1998, and companies have refined their dosages and recipes to perfection. Under SB5052, all cannabis products must be approved by the LCB and in compliance with its regulations.  Currently, edibles cannot exceed a serving size of 10mg. This presents a serious issue for medical patients, many of whom require dosages ranging from 50mg-800mg. This requires a medical patient to purchase over five times the amount of LCB approved edibles.

Not only do the patients have to purchase more products, but the products themselves are more expensive. For example, a 10mg edible in recreational stores costs upwards of $10, where a 50mg edible in medical cannabis access points only costs $5. Therefore, a medical cannabis patient would have to purchase $50 in edibles at a recreational store, where they used to pay $5 in a medical setting. Currently, there is a 37% tax assessed on all cannabis and related products, which is collected at the retailer’s point of sale. While it is worth noting that medical cannabis patients who are in a state registry are exempt from paying that tax, the higher costs still makes cannabis less affordable to for all medical patients likely on a fixed income (e.g., SSD or SSI), or otherwise least able to afford it.

The 37% tax may also not work to eliminate the black market for cannabis product. While street prices of cannabis usually stay in the area of $10/gram, prices in retail stores are $10-$20/gram, plus the 37% tax and additional 9.5% sales tax. Because cannabis is significantly cheaper to purchase on the black market, cannabis consumers in poorer communities will be inclined to avoid retail stores and procure their cannabis on the street. Consequently, instead of obtaining cannabis at state-approved retail outlets, cannabis consumers in poor neighborhoods may choose to avoid the long travel and additional taxation to obtain cannabis through illicit means via the black market instead. Aside from the uncaptured revenue, the cannabis cost structure will doubtlessly perpetuate crime in the poorest neighborhoods—doing little to solve one problem that I-502 intended to remedy. 

Housing

Currently, federal law still classifies marijuana remains an illegal Schedule I controlled substance under the Controlled Substances Act. It is a federal crime to possess, cultivate, or distribute marijuana. However, the Department of Justice (DOJ) has indicated that states which implement strong and effective regulatory and enforcement systems will not be high on its enforcement priorities. [3] However, the DOJ has not given carte blanche to those states, as federal law has not changed at all. It’s directive provides no defense to federal prosecution, especially as it regards the DOJ’s expressed enforcement priorities: eliminating channels of access by minors; organized crime; possession, use, procurement, support, or distribution through interstate commerce; trafficking in other illegal drugs; violence and firearms; drugged driving and public health; grows on public lands, and possession or use on federal property.

Federal agencies such as the Department of Housing and Urban Development have not given dispensation to landlords who receive federal housing funds (e.g., Section 8 reimbursements). In other words, it is a crime to possess, use, or cultivate marijuana (in any form, e.g. edibles) in federally financed housing. Tenants of federally subsidized or funded housing, thinking they are lawfully possessing, consuming, and/or growing marijuana (which the law allows in small amounts) risk evictions and even prosecution for violations of federal law. Such outcomes would exacerbate our already disproportionate prosecution and incarceration of people of color. Such actions would also exacerbate the collateral consequences for those people, as it erects another barrier to the ability to secure alternative housing (many landlords will not rent to anyone with a felony arrest or conviction), stable employment, and, if convicted, carceral debt.

Unfair and Deceptive Practices 

Washington’s cannabis regulations establish fairly strict guidelines on permissible means and content of advertising and product labeling.  If a harmful cannabis product enters the market, there is yet no legally-established l mechanism in place specifically tailored to cannabis product recalls. Our students are developing recommendations on that score in reference to the industry best practices, as well as the state and federal Food and Drug Administration’s recall processes.  Moreover, our students are performing image and text analysis of dozens of marijuana advertisements of state retail, production, and processing outlets to ensure they do not make representations that are likely to mislead consumers or specific audiences such as children. The endgame of their research is to present their findings to interested stakeholders to ensure that laws and regulations are followed, but those laws and regulations strike the appropriate balance between governmental interests, commercial interests, and consumer rights.

While impacting all Washingtonians as consumers in general, our cannabis laws and regulations work unique hardships and challenges upon the poor and disabled. Despite the conflict between federal and state law, students in our Consumer Protection Clinic are properly engaging in the practice of law under our states ethical guidelines as they regard giving advice and assistance to parties seeking to comply with Washington laws, or otherwise form and operate business entities pursuant to I-502 and federal law.^[4] Students in our Clinic are developing materials and programs aimed at tenant advice and education. Materials and programs will inform tenants about federal and state housing regulations, their rights and risks, as well the duties, rights, risks of landlords. Our students are also articulating policy prescriptions which urge the re-examination of current laws as they relate to the 1000 feet buffer zone rule, taxation, and product misrepresentation. It is our hope that those proscriptions will have a positive, long term impact on this virtually unchartered area of recreational cannabis laws—especially as those laws impact those most vulnerable to the adverse consequences of this new regime.

Special thanks to Bonnie Fong, 3L for her assistance in developing this article.

 

 

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^[1]In Washington State, for example, the African Americans were 2.8 times more likely than whites to be arrested for marijuana possession.  Report of the American Civil Liberties Union, THE WAR ON MARIJUANA IN BLACK AND WHITE, JULY 2013, Appendix B.

^[2] RCW 69.50.331 (8)(a). The buffer zone also applies to “elementary or secondary school, playground, recreation center or facility, child care center, public park… library, or game arcade that allows minors to enter.”

[3] See, e.g., James M. Cole Memorandum August 29, 2013 (on file with author).

[4] Washington State Bar Association Advisory Op. 201501 (2015).