Sunday, October 7, 2018
Like many of you who were concerned about the confirmation and hasty swearing in of our newest Supreme Court Justice, I woke up this morning tempted to despair. As I caught up with the public statements of McConnell, Collins, and others, however, I realized that there’s no need to fear for the independence of the judiciary—especially as it relates to criminal justice reform and mass incarceration. Indeed, those of us who spend our days in prisons, jails, courtrooms, and classrooms—worried about the school to prison pipeline; implicit (and explicit) racial bias; institutionalization; and whether our indigent clients can ever get a fair shake in this country—now know for certain that we have new champions in our corner, new converts to our cause: Republican Senators!
Mitch McConnell, who for years has played a leadership role in the Senate, supporting, for example, the war on drugs, disparities between sentencing for crack cocaine and powder cocaine convictions, the federal death penalty, and limitation of federal habeas relief, has now proclaimed himself the Standard Bearer for the Presumption of Innocence! Mitch, welcome to the team! I would never have guessed that this was your pet issue! Criminal defense attorneys don’t judge, however; it’s never too late to start spending time with people of color just hoping they can get a jury of their peers to see them as human beings! As they say on The Price is Right (not a reference to your donor base)… Come On Down!
And Senator Susan Collins, dang girl! I’m totally borrowing from your statement in my next appeal challenging the sufficiency of the evidence of a criminal charge! This is good stuff:
...we will be ill served in the long run if we abandon the presumption of innocence and fairness, tempting though it may be. We must always remember that it is when passions are most inflamed that fairness is most in jeopardy...
I literally couldn’t have said it better myself. I know it must have taken a good deal of principle to risk alienating your base, which—let’s be honest—has supported you more for your votes supporting, say, withholding federal funding from sanctuary cities and authorizing (and extending) the Patriot Act. But you did it!! You planted your feet and stood up for the little guy facing the awesome power of the federal government arrayed against him. Well, not quite—but close enough.
So this is just an educated guess, but I suspect our new Presumption of Innocence Champions are going to start with national bail reform. I mean, that’s kind of low-hanging fruit, so it only makes sense. Divorcing considerations of wealth from considerations of whether a (presumed innocent) defendant will show up for court is a no-brainer! First, it supports the new Republican cause celebre (sweet! political points scored!). Second, it saves money (which is Republicans’ second favorite thing!) related to the expense of housing presumed-innocent defendants as they await trial—some for as many as several years. Third, it keeps families together until there has been a definitive adjudication of guilt. That only makes sense for Senators Collins and McConnell. I can’t wait to stand with them on this!
The next steps in criminal justice reform are anyone’s guess, really, and the sky’s the limit! There are so many many many many opportunities in America to support the ideal of the presumption of innocence and protect those facing charges when “fairness is most in jeopardy,” according to Senator Collins. All I know is, I want in! I mean, I’ve been waiting my whole career for someone to listen to the voices crying out in the wilderness for true justice for those facing criminal accusations. Oh me of little faith.
Saturday, September 29, 2018
I write to share with my experiential educator colleagues a fairly recent addition to our work in the Immigration & Human Rights Clinic work at the University of the District of Columbia’s David A. Clarke School of Law (UDC Law).
On Friday September 28, we had the pleasure of partnering, for a second time, with non-profit Human Rights First(HRF). In Fall 2017, we worked with HRF to serve Central American families fleeing violence and seeking protection in the United States. Building on that success, we decided to do it again this year.
Clinic students and other UDC Law student volunteers met yesterday with 10 asylum-seeking families from Honduras, Guatemala, and El Salvador. These families were previous detained at one of the nation’s three family detention centers, but were released to pursue their asylum claims while living with family and friends in Maryland. The families are all currently in removal proceedings before the Baltimore immigration court. None of the families have yet found legal representation for their asylum claims.
In an era of immigration court backlogs, the court in Baltimore, Maryland, has actually has seen the highest increase since the beginning of FY2017 -- a stunning 96% increase in the last year of individuals put into removal proceedings–- doubling the court’s caseload. Increases have also been dramatic in Massachusetts, Georgia, and Florida. As a consequence, the access to counsel gap is severe and many individuals appearing in Baltimore lack legal representation. In the immigration context, although only around 37% of non-detained immigrants are represented, legal representation makes it five times more likelyan individual will be granted relief.
As a small step in trying to address the justice gap, yesterday UDC Law’s Immigration Clinic completed 17 asylum applications total for the 10 families– the families will file these with the court in just a few days. Many of these cases presented complex legal issues, including those past the one-year filing deadline for asylum. While our Clinic lacks the capacity to take on full representation for each of these families, we hope that our work will set them on the right path and enable them to more easily find pro bono or low bono representation for their future hearings.
This work not only benefitted the asylum-seeking families, but our students, requiring them to engage in:
- Quick rapport building
- Interviewing survivors of trauma
- Fact investigation and information gathering
- Credibility assessment and checking internal consistency with records from previous government interactions
- Legal drafting and editing to ensure that each application made out a prima facie case for asylum, meeting all required legal elements.
- Concise, direct writing to communicate a compelling narrative
- Explaining legal standards in an accessible way
- Wrestling with recently changed and evolving law, thanks to Attorney General Sessions in Matter of A-B-,for individuals fleeing domestic violence and gang targeting.
- Address changing facts and emerging details – for example one team started the day thinking they were working with a mother and three teenagers with asylum claims based on the same facts, but as it turned out, one of the teenage boys had been persecuted based on his sexual orientation and another had been recruited by gangs and threatened with death. This team had to deal with very delicate family dynamics around the disclosure of sexual orientation status.
Participants in the workshop included 3L and 4L Immigration Clinic students, 2L students, including several who had served as Clinical Associates as 1Ls in their first year as part of UDC Law’s required community service, and two of whom who participated in our spring 2018 service-learning tripto Berks family detention center in Pennsylvania, an extended clinic student, 1L students, and a UDC 2018 graduate. Clinic Co-Directors Kristina Campbell and Lindsay Harris along with Clinical Instructor Saba Ahmed supervised students working for the day, along with HRF staff attorney Alexander Parcan and Legal Services Coordinator Sugeily Fernandez. HRF’s two undergraduate interns and social worker were also on hand to assist.
Photo above -- Many of the Clinic students and other volunteer students for the day, fresh-faced and ready to work in the morning, along with Professors Campbell & Harris and HRF staff.
Volunteer students are invited to debrief what was an intense, challenging, and at times no doubt emotional day along with students enrolled in the Immigration Clinic during our clinic seminar
Clinicians interested in replicating this program should feel free to be in touch with Professor Lindsay M. Harris. While there are numerous logistical challenges and hurdles, we find this experience well worthwhile and have tips to share. In many ways the day is a preview of what it is like to work in faster-paced legal services setting, contrasted with many traditional law school clinic models where “law in slow motion” may be the norm. The workshops also provides an opportunity to generate interest in Clinic work and for 1L and 2L students not yet in Clinic to gain hands on experience and insight into an area of law in which many seek to gain exposure.
We are grateful to UDC Law staff and faculty for their support of this program.
Saturday, July 1, 2017
If you are closely tracking the ongoing federal legislative efforts to repeal and replace the Accountable Care Act (ACA), you might find interesting my recent piece, U.S. Senate Unveils Health Care Bill Designed to Dismantle the ACA. A huge thanks to the Oxford Human Rights Hub for publishing my take on the Better Care Reconciliation Act of 2017 and the formidable procedural and substantive obstacles the bill faces in the United States Senate. The Hub also published my post, How an ACA Repeal Would Devastate Appalachia, as part of a three-part series on American health care reform this Spring. I intend to continue to watch--and write about--federal legislative attempts to dismantle the ACA over the summer and will provide links to new posts as they as they go live on this blog site.
Thursday, June 15, 2017
The AALS Section on Africa is pleased to announce a Call for Papers from which 2-3 additional presenters will be selected for the section’s program to be held during the AALS 2018 Annual Meeting in San Diego on “Children’s Rights and Responsibilities in Africa.” The program is co-sponsored by the AALS Section on Children and the Law and the AALS Section on International Human Rights. The call for papers seeks authors of published or unpublished papers that consider the rights and responsibilities of children on the African continent.
Background: The United Nations Convention on the Rights of the Child is the most widely ratified human rights treaty in the history of the world. A look at the drafting history of the CRC indicates that African countries were not proportionally represented in the drafting process, arguably due to a lack of resources and a dearth of diplomatic representatives in post-colonial Africa. Although some feared that the North-South divide in the drafting process would prevent the universal acceptance of the treaty, the fact is that the continent was strongly represented among the first countries to sign and ratify the treaty.
African countries did not stop there. They criticized the CRC for not going far enough in protecting children’s rights and taking into consideration African cultural values (such as the notion that children also have concurrent responsibilities) and issues, such as apartheid, child marriage, child labor, child trafficking, children in armed conflict, and harmful cultural practices. African nations converted this criticism into the first regional children’s treaty, the African Charter on the Rights and Welfare of the Child. Africa also is home to the first nation, the Republic of South Africa, to include many of the principles of the CRC and the African Children’s Charter in the nation’s constitution.
Despite the leadership that the African continent has offered in developing an international legal framework for children’s rights and responsibilities, the consequences of colonial occupation has led to a perception that children’s rights have not been recognized in many areas, ranging from gender discrimination to education to economic security and more. This call for papers is intended to advance the dialogue related to both the creation and fulfillment of children’s rights and responsibilities, especially as they relate to children in Africa.
Thus, the Section on Africa invites any full-time faculty member of an AALS member school who has authored a published or unpublished paper, is writing a paper, or is interested in writing a paper on this topic to submit a 1- or 2-page proposal to the Chair of the Section by August 31, 2017. The Executive Committee will review all submissions and select proposals for presentation as part of our AALS 2018 Program.
Please share this call for papers widely and direct all submissions and questions to the Chair of the AALS Section on Africa:
Professor Warren Binford
Willamette University College of Law
Wednesday, June 14, 2017
I registered for the conference as a bit of continuing education. In the Pepperdine Community Justice Clinic, our students and I counsel nonprofits and NGOs in corporate and policy matters, so I seized an opportunity to learn more about the nonprofit ecosystem, the market, and its trends. The 501(c)onference is a gathering of world-class nonprofits and nonprofit leaders in Southern California, to exchange ideas, network, and improve collaborations. Like most lawyers and most academics I spend most of my time with other lawyers and academics, so it was nice to break away and see the work from the clients’ point of view. (This had the double benefit of new insight for the great boards on which I get to serve: Counsel to Secure Justice, Medicine for Humanity, The Abundant Table, and the Clinical Legal Education Association.)
The time away from the ivory silo was refreshing and useful, and that was my first professional lesson for the week. All we lawyers should spend time with our clients in their markets, especially when they do not need us. We learn more about them so can serve them better. All we academics should spend time in the fields we study and teach to ground our scholarship and classes in lived experience.
At this brief conference, a rising energy and resilient optimism pervaded the conversations. Everyone acknowledged the conflict and tension of our present political and social anxieties. People presented bleak, striking data about the economy, communities, and policies. Speakers identified troubling trends rooted in systems and cycles, but there was little despair in the room. Instead, there was a calm, fierce, determined air to stay at work in new and better ways. Plenty of people spoke of resistance, but it is a resistance against division, inequity, and deceit.
That spirit infused righteous talk of alliance. We talk a lot about collaboration, but this deeper discussion of alliance meant more than projects in common. It meant more than MOUs. Alliance calls for mutuality, humility, and shared burdens in a righteous cause. Even as these organizations may vie for the same grants and funders, they were all speaking to the need to join forces in defense of our social contracts and the community ligaments than bind us together.
Those conversations invited talk of innovation and new ideas to fund and sustain organizations and their work. Some brilliant panelists discussed the emerging trends of social-impact investing, B-Corps, pay-for-performance, and other market-driven social enterprises. This is an important new trend that we must explore and improve. No one does this work for the money, but money is necessary for the work. Angel investors, equities, bonds, and other start-up financing mechanisms promise new means of big money for socially responsible enterprises who can find the right mix of markets and economic development. Some of us, however, had good counterpoint discussions about the temptations of profit and the reality of issues that defy markets. Sometimes folks can get rich while doing great good in the world. Very often, social needs and solutions will not respond to market fixes and will require the generosity of donors and the tenacity of scrappy activists whose work is not measured in profit.
These conversations stood in stark contrast to a meeting of Black Lives Matter that my family and I attended earlier in the week. BLM intentionally and explicitly is not part of the traditional nonprofit system or economy. As it fights for empowerment and reform, it takes a radically different, disciplined strategy. The nonprofit conference was in gleaming, corporate quarters in spaces built for teaching and learning. BLM met in a well-worn, hard-working community center covered in local art, a place with sharp edges made warm, hospitable, and loving by a fierce commitment to inclusion and dignity. BLM opts for deep, patient community organizing and development built on relationships, teaching, dialog, and amplified voices. It is not profitable and does not seek to be.
And this contrast informs another great lesson for me this week. I believe in All-of-the-Above, each of these extraordinary people and organizations seeking the light in their respective worlds and calling others to join their alliances. From the veteran community organizers in Inglewood to the rich foundations Santa Monica, from the scrappy new nonprofit laboring without an office to the global NGOs who can call on millions, their work all bends toward the dignity of every person. To seek the dignity of the oppressed and to empower the poor is to love everyone, including ourselves. We need them all.
To empower the vulnerable people on the margins of our society and economy is to strengthen all the bonds on which we all rely. This morning, we saw again the great and awful cost when we allow those bonds to fray and snap. While we gathered in conference, a man took intentional, deadly aim at our representatives, our Congress. He chose a moment when they were actually engaged in friendly, healthy, democratic, bipartisan, American government, even in an era of harsh polarization and distrust. Just hours later, another person unleashed death on co-workers in another workplace shooting that we can only ever seem to call senseless.
This violence is a failure of many things, and we must own them together if we going to resist the breach of our social contract, our commitments and reliance on each other. If we cannot trust each other, then the center will not hold.
So I end this reflection returning to work as a teaching lawyer (or a practicing professor). Our communities and commerce depend on the rule of law. The rule of law depends on our social contract, these deep commitments to each other. These commitments depend on trust, and trust depends on dignity. Everyone's dignity depends on the dignity of everyone else, and that mutuality is under assault.
Fundamentally, this must be the work of lawyers. We must guard and defend the conditions necessary to thrive in liberty and peace.
So we must teach our students accordingly. Violence is a failure of our morality and care. Rampant deceit is a failure of our discipline to hold ourselves accountable. Injustice thrives when our alliances degrade. The Republic will fall when we abandon our mutuality. This is the jurisprudence we need to teach and study. This is how community emerges from chaos.
Wednesday, March 15, 2017
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:
- Northeastern University
- University of St. Thomas - Minnesota
- Yale Law School
- University of Arizona
- Pepperdine University
- University of California - Irvine
- Valparaiso University
- University of Wisconsin
- University of Denver
- University of Colorado
- Northwestern University
- University of Utah
- University of Cincinnati
- Cardozo School of Law
- Golden Gate University
- Liberty University
- Washington & Lee University
- Pacific McGeorge School of Law
- Brigham Young University
- 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:
- Georgetown University
- American University
- New York University
- Yale University
- University of the District of Columbia
- University of Maryland
- Washington University in St. Louis
- University of Michigan
- Stanford University
- Northwestern University
- University of Balitmore
- University of Denver
- University of New Mexico
- University of California - Irvine
- University of California - Berkeley
- Suffolk University
- Seattle University
- Harvard University
Saturday, February 18, 2017
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:
Tuesday, December 20, 2016
The ABA issued this statement describing its suit against the Department of Education to protect the Public Service Loan Forgiveness Program after recent actions by the DOE to redefine qualifying work.
Here is an excerpt from the ABA's statement:
The suit, which also includes four individual plaintiffs who were denied eligibility under PSLF, details how the Department of Education changed the eligibility requirement for work that was clearly “public service” after already approving the work and after individuals made decisions and loan repayments based on those approvals. . . .
The complaint contends that the individual plaintiffs (Geoffrey Burkhart, Michelle Quintero-Millan, Jamie Rudert, and Kate Voigt) made financial and life decisions based on the program. Not only did they follow the rules of the program by making loan payments while employed in public service jobs, but three of the plaintiffs received verification from the DOE that their jobs qualified under the program. A fourth plaintiff, Quintero-Millan, believed she qualified because she worked in a public service job for a nonprofit that the Department of Education had already certified as qualifying for the program. The plaintiffs were later informed that their jobs no longer qualified and their previous payments did not count towards the program.
Wednesday, November 23, 2016
I am very proud of our brilliant students in the Ninth Circuit Appellate Advocacy Clinic, under the direction of Prof. Jeremy Rosen. Please see this story with video of their recent oral argument in San Francisco where they represented our client, a detainee suing the Maricopa County (Arizona) Jail for civil rights violations. They did excellent work.
Here is a brief description of the case:
The Ninth Circuit appointed the Pepperdine Ninth Circuit Clinic to represent pre-trial detainee Charles Byrd who filed a section 1983 lawsuit challenging Maricopa County’s practice of having female guards routinely observe male inmates at extremely close quarters while they are using the toilets and taking showers. Such cross-gender observations have been routinely disallowed when the guards are male and the prisoners are female and case law suggests the same should be the case here. The district court exercised its authority under the Prison Litigation Reform Act to dismiss Byrd’s lawsuit at the screening stage. The students argued on appeal that such dismissal was improper because Byrd plainly stated a claim for constitutional violation.
Friday, November 11, 2016
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.
Friday, July 8, 2016
In America, our founding principle is that all men are created equal, expressed within a legal document declaring independence from a sovereign who did not extend a voice to his subjects. Our pledge of allegiance binds us to a promise of liberty and justice for all. These are American ideals but so often are not American realities. America is and always has been a violent nation, and race and racism are deep in our spiritual, social, cultural, political and legal vernacular. In no season of our national history have we been at true peace, especially in matters of race and racism.
In fits and starts, we lurch in anguish and hope toward harmony and reconciliation. Inevitably, when we take a step toward inclusion and justice, the forces of exclusion lash out in death throes. The South didn’t secede until after the country elected an abolitionist. The Klan didn’t form until after emancipation. Bull Connor didn’t unleash the dogs until people started demonstrating for justice and dignity. In our present age, we witness the persistent violence of exclusion as voices rise to demand inclusion of the bodies, minds, and souls of people so tired of waiting in oppression.
This is also deeply American. “No taxation without representation!” was the rebels’ call for inclusion in the process of lawmaking and governance, and the demonstrators followed it up with war. When the sovereign refused to give his subjects a voice in making the laws that governed them, they rose up to toss off the sovereign. Then, tragically, the new republic founded for government of, by and for the people, systemically excluded vast members of the governed.
Those excluded people have taken patient centuries to call America to account for its aspirations, to illuminate the hypocrisy of exclusion in a republic founded for inclusion. Steeped in blood and struggle, they have brought America around to itself, little by little, kicking and screaming, mourning and grieving, insisting on inclusion, demanding dignity.
In lament and anguish, punch drunk, America stumbles toward its better angels, shaking off its ghosts, battling its demons, as we realize that inclusion is our only hope to keep the republic our ancestors won and handed down to us. Generous inclusion is national life. Reactionary exclusion is national suicide.
When people are excluded, when America denies their dignity by telling them to comply without complaining, to thank God for their liberties, while murdering them if they dare to demand a voice, then the whole edifice will crumble. Who among us Americans wouldn’t object, maybe violently, if we were excluded from the system of laws that governs us? Who among us Americans would not create our own communities of dignity, power and self-determination if we were excluded from a state that makes false promises? Who among us is ever satisfied being governed in the third-person?
As law teachers, we have the privilege to observe and the obligation to train. We observe the law in its promise, success and failings, and we train lawyers to represent the people and their government, to make and improve the law, to sit in judgment with the law.
In an age of violence, what can we do to stem tides of death, cultures of fear, and cycles of vengeance? We can teach like we know how high the stakes are. We can observe exclusion and train for inclusion. We can refuse to ratify laws and systems that deny voice to the aggrieved, and we can train up lawyers who are alert, vigilant and ready to make the law better.
Teaching civil rights is not academic abstraction; it is the lifeblood of a liberal, constitutional republic of limited government and individual liberty.
Teaching cultural competence is not political correctness; it is the essential tool to promote inclusion of the excluded, to build bridges instead of bunkers, to make the law responsive, not exclusive.
Teaching self-reflection is not coddling; it creates wisdom and awareness that will inoculate against blindness to the others outside our field of vision.
Teaching ethics is not for passing an examination; it is to prepare students for a profession that must be much, much more than utilitarian and mercenary.
Teaching alternative dispute resolution is not a trendy distraction from real lawyering; it equips peacemaking and creativity and dialog among opponents.
Teaching critical thinking and criticism is not partisan; it is essential to conscious, thorough understanding of our laws, their sources, their effects, their realities.
Requiring pro bono is not charity; it is the transmission of a virtuous legacy of public citizenship that is historically necessary to the profession, demonstrating to law students the power of lawyers to empower the excluded.
Morality and virtue are not electives. Justice is not secondary to power.
Inclusion and plurality are necessary to democracy and justice. These are not liberal luxuries. Diversity is not a vague objective of democracy but is an essential component of democracy. The rule of law is sustainable only when everyone governed by the law has a voice in the law. The rule of law is only operable and just when the law embraces all of the governed with equity.
In America, we are governed and government. We are subject and sovereign. We are citizen and state. When we neglect those roles, we invite violence. When we exclude any of our neighbors from law making, law enforcement, or the legal system, we dare the excluded to take care of their own social order, and that inevitably generates violence and oppression in the shadows of society.
Not all problems are legal problems. The law exists within an ecosystem with constant cycles among culture, society, politics, religion, and economics. But we can do our part as law teachers with an obligation to our nation and communities.
We can train up lawyers who understand their critical role in sustaining our society and the rule of law in a liberal, constitutional republic.
We can study the law to improve it and promote inclusion.
We can promote access to justice, not as charity, but as civic morality.
We can illuminate weaknesses and places of exclusion and prepare our students to confront them.
We can listen and learn from those who are excluded and follow their lead in struggles for dignified inclusion.
We are necessary to building a trustworthy system of law.
Our students become lawyers who become leaders, representatives, advocates and public citizens. We inherit an ancient project that will continue long after we are gone. The stakes are only as high as life and death and justice.
Let’s teach like it.
Friday, June 3, 2016
Judgment By Social Media and Tweeted "Expertise" - Three Cases From The Cincinnati Zoo, The Forests of Japan, and Amber Heard's Marriage
As lawyers we oftentimes have to suspend our personal judgment of our clients, their choices and their circumstances. As clinicians we regularly train and remind our students on this suspension. Not only does this suspension preserve rapport, but it also allows for better representation of the person, as we just have to take them for who they are, not who we think they should be. Best practices and professional rules also remind us of client-centered representation, directing that choices are the client's choices and not ours, and that's its not all about us. Professionally this suspension of judgment can be a struggle - as a lawyer you may know "what's right" or "what's best" but the client chooses otherwise. And we must accept that.
If only we as a society were charged with this suspension of judgment - but as anyone can tell from the news this week, people are quick to judge others, and their choices, and proffer various social media statements to tout their judgment and expertise. (Ironically we also have a process for declaring and establishing expertise in the legal field, via our rules of evidence, which Twitter appears not to follow). Anyone can judge or be an expert in social media - just take a look at this week's fodder:
1) The Death of Harambe: Let's face it. Everyone loses in this situation. If the zoo didn't kill the gorilla, the child might have died and folks would be standing outside the exhibit with candles and posters in memoriam of the boy. Instead the zoo kills the gorilla, and even though they saved a child, someone must be to blame - distracting iPhones, parents, zoo architecture - you name it. Mom apparently is an administrator at a preschool, leading many to now call for her resignation. Because the two go hand in hand.
2) Abandonment in Hokkaido: To leave or not to leave a seven year old boy on the side of a mountain road in deep bear country forest for throwing stones? That was the question. Parent's call? To leave. Is it neglect or within the boundaries of discipline? You decide. Everyone else is.
3) Let's all kick Amber Heard while she's down: Maybe, in a couple of weeks, we will forget doing so, just like her husband allegedly did. It's times like these that make those us of doing domestic violence work cringe. Who is Amber Heard? If you hadn't heard of her (no pun intended) you certainly have now. Heard is the much younger wife of actor Johnny Depp who filed for, and was granted, a restraining order against him. Various photos of her with injuries have emerged, injuries that were allegedly caused by Depp - but where does the public support lie? Mainly with Depp. Why? Because it's her fault, of course, that this happened. She "exacerbates Depp's 'jealousy issues'" as allegedly Depp is incredibly insecure about her. She's also just in it for the money apparently, there being no prenuptial agreement and their divorce filed in California (the laws in California entitling her to fifty percent of what he has made during the marriage). Lastly, her bringing these issues out publicly just confirms that their marriage, and her involvement in it, have just been "nonstop drama".
As lawyers we have standards for these sorts of judgments and admissible statements. We also have a saying, "innocent until proven guilty". Yet as social media shows us time and time again, judgement is swift, fleeting and generally contained within 140 characters. Perhaps we should remind ourselves that #glasshousesarefullofhotair.
Wednesday, June 1, 2016
"Greetings from the Section's Technology Committee!!
We write to announce two new initiatives.
First, we are in the midst of creating a new webinar series that will focus on using technology in our teaching and our clinics. The webinar will begin in September and run through the academic year, with one webinar a month. Stay tuned for more details.
Second, we are petitioning the AALS to Establish New AALS Section: Leveraging Technology for the Academy and the Profession. We are seeking signatures of those in the academy who support the creation of this new section. If you are interested in joining the section as a founding member, please add your name to the list, available here. (AALS requires that we obtain at least 50 signatures from full time faculty members and/or professional staff from at least 25 different schools).
The new section would bring together academics and staff who share a common interest in the advancing scholarship and teaching about role that technology is playing and will continue to play in legal education and the practice of law. We believe that it is important that members of the legal academy become familiar with and take a lead in driving the changes being made and affordances provided by technological innovations in the delivery of legal services.
The new Section will work with this committee to advance understanding within the academy of these two topics:
Technology and the practice of law: The Leveraging Technology Section will provide space for legal academics to consider and shape how evolving technologies are impacting and could impact law and legal systems. It will encourage law professors to engage in cutting edge research and scholarship that can help to craft the new normal and create a space to share that scholarship with the broader community. The Section hopes to address how law school faculty can understand the rapid and profound technological change that could well remake law practice and how they can be at the forefront of framing a “new normal” for legal practice and lawyering. The section will also help law professors access materials that will assist them in preparing law students using emerging technologies in the practice of law.
Technology and legal education: The Section will (1) lead a conversation about whether educational technologies that have been developed and used successfully in legal education may be able to scale to other law school classes; (2) introduce law professors to new educational technologies being developed for use in other areas of education so as to inspire this group of educational leaders to be at the forefront of change as it relates to technology and the legal academy, and (3) introduce law professors to pedagogies used to expose students to emerging technologies that are being used in the practice of law.
If there are others on your faculty who may be interested in this initiative, please feel free to distribute this to them.
We look forward to working with you to advance this agenda.
Valena Beety (West Virginia)
Warren Binford (Willamette)
Michael Bloom (Michigan)
Alyson Carrel (Northwestern)
Jenny Brooke Condon (Seton Hall)
Ron Lazednik (Fordham)
Michele Pistone (Villanova) Chair
Jeff Ward (Duke)
Leah Wortham (Catholic)"
Wednesday, April 20, 2016
Ah Coachella. California's yearly music and arts festival affords lot of opportunities for its attendees - amazing music, lots of star sightings, entire websites devoted to the fashion strategies to employ while attending, and being able to file your taxes unsuccessfully. Wait? What?
At least ten people tried to file their taxes from the Coachella campground post office this past weekend. Ironically the "post office" isn't a real post office, nor sponsored by USPS, and "acts more as an intermediary" between the festival "and the real local post office" according to the California Mercury News. Megan Hampton, who runs the Coachella "office, was quoted as saying "No, I can't 'just take it...How do they have their taxes here? I don't know."
Jeff Baker @JRBProf - better get that clinic outreach #JusticeBus ready for this weekend. Sounds like there are folks who could use your clinic's help - maybe even Kanye or Kesha. If not this year then perhaps we need to plan a road trip and ask Prof. Paul Caron @SoCalTaxProf to tag along. As long as actress Vanessa Hudgens @VanessaHudgens can tell us what to wear. I'm in @hagan_carrie. Maybe I'll have a #Suitsy by then.
Monday, April 11, 2016
If you are anything like me around this time of the year, when the weather slumps and with exams approaching, you look for hilarity where you can find it (when you are avoiding all press about the upcoming political chaos that represents our electoral system). That's why I was so excited to learn about being able to vote for Boaty McBoatface. That's right - Boaty McBoatface. Because, despite best intentions, when you allow the internet to assist with what seems like an innocuous naming endeavor, sometimes funny wins out.
NERC - the United Kingdom's Natural Environment Research Council, opened up the ability to suggest a name for their newest polar research ship in early March of 2016. With initial names suggested being what you might expect for this sort of thing - Shackleton, Endeavour and Falcon for example, they might have thought that they were safe. Not so fast, thanks to James Hand, who submitted the name and who's Twitter feed profile lists him as being a reason we can't have nice things, along with the hashtag #BoatyMcBoatface.
Should you want to cast your vote - you'd better hurry. Voting closes April 16, 2016. You can cast your vote here or by visiting: https://nameourship.nerc.ac.uk/entries.html. Let this be a lesson to all of us - and may the best name win!
Tuesday, March 22, 2016
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:
- University of St. Thomas (MN)
- Washington & Lee
- Case Western
- Mitchell Hamline
- Golden Gate
- New Hampshire
Friday, March 4, 2016
I was walking out of our university cafeteria yesterday in my characteristically rushed state with an empty stomach, a couple of “To Go” boxes intended to last through midnight, and a 12:30 p.m. meeting with students just minutes away when a young man I did not recognize (an undergraduate student perhaps?) leaned across a poster and said something. My mind rapidly assessed my priorities as I noticed his highly corrective glasses, a discreet hearing aid, and a pronounced speech disability. The cascading moments came to a standstill, and I apologized. “Would you please promise to never use the ‘R-word’?” he repeated as he handed me a pen.
“Of course,” I said, as my hand tried to scribble a flourished signature across the top right-hand corner of the poster. The white space remained nameless. My pen was dry. As I borrowed another pen from a student sitting nearby, my eyes scanned the writing across the top of the poster: “Pledge to End the R-Word.” I wondered who this young man was, what his disability was, whether it mattered, and what would become of him and his pursuit of dignity and respect after the U.S. presidential election.
The Super Tuesday results were so definitive the night before that the leading candidates for both parties were announced well before bedtime. The night was restless. It was clear to all that the 2016 presidential election had become an interminable political version of the “The Jerry Springer Show,” but without a remote, volume control, mute function, or an on/off button.
Worse than the reality show nature of the election is the fact that support for the leading Republican candidate appears to increase with the frequency of comments and gestures and policies that are degrading to the disabled, women, minorities, and immigrants. Crowds applaud when he advocates for widespread discrimination against legally protected groups. They holler and cheer when he pours forth chest-thumping threats celebrating violence. And they laugh when he physically impersonates people, like the young man standing before me whose spine appears slightly bent, and his hands just a little curled. Yes, he is different, but not much. We all are—just a little bit different—but mostly the same.
The candidate also uses the “R-word.” Indeed, he uses a lot of words. “I know words. I know all the best words,” he has bragged with a bravado bred in fear and born from cowardice. “Is the R-word one of them?” I wonder.
And so I occasionally speak out, largely in my home or more often in my mind. Occasionally, there are hushed conversations, but mostly I am silently screaming. The first time I found myself silently screaming was the night of the Iowa caucuses. It was one of the busiest weeks of the semester, with client interviews running late into the evening. The clinic was humming and rushing with students and staff hurrying between our clients and our iPhones and computer screens watching the caucus results roll in.
As I walked into the student lab, I casually asked a student looking at the results on his computer screen, “Who are you voting for?” I immediately wanted to take my words back. Our teacher/student relationship gave me almost all of the power and privilege, and my job as an employee of a 501(c)(3) organization, especially while doing my job at my place of employment—8:00 p.m. or not—had brought me perilously close to an improper interaction.
I have been advising non-profits for nearly 20 years; teaching our students non-profit law in our Business Law Clinic for nearly ten. I knew the words nearly by heart: “[501(c)(3) organizations] may not participate in, or intervene in . . . any political campaign on behalf of (or in opposition to) any candidate for public office.” Part of the erasure I desired was that I did not want to say anything that would jeopardize my employment or the tax-exempt status of my university, but a larger part of my desire was that I did not want to abuse my relationship with a student—a relationship in which there is an inherent imbalance of power.
But it was the student’s response that fundamentally compelled my desire to unlive the moment. He proudly and cavalierly told me he was voting for the candidate who not only uses the R-word, but condones war crimes, torture, discrimination, and assault--someone who publicly observes that some women “look good on [their] knees.” And I want to scream. I knew that the candidate had a sizeable (and growing) following, but I assumed that they were comprised of “others”—not well educated, high performing students working on their doctorate degrees. Not my students.
As my mind raced with ideas about how I could justify “setting this student straight” due to the unique role of law professors in educating our students (and our larger communities) about Constitutional rights, humanitarian law, justice, human rights, and so much more, I said nothing.
I wonder whether in trying to protect my job, I will fail to do my job. Yet, my voice remains silent and my pen is dry.
Well, at least from 9-to-5, and occasionally, from 9-to-8.
Monday, February 29, 2016
NYU Law Review Seeking Submissions on Dollar General Corporation v. Mississippi Band of Choctaw Indians
NYU Law Review is seeking submissions for its online publication on the Dollar General Corporation v. Mississippi Band of Choctaw Indians. You can find the original message posted on the Michigan State Indigenous Law and Policy Center Blog, Turtle Talk, and also linked here.
They are looking for pieces that discuss the case itself, its legal background and importance, and its implications for Indian and non-Indian country alike—particularly Indigenous women’s issues and its insights into women’s issues in general. If your clinical practice intersects women's issues, enterprise issues, or tribal issues I encourage you to research the case. It may infuriate you, but a minimum you will have a better understanding of the legal obstacles Indian tribes face in federal courts, most especially our Supreme Court.
Wednesday, February 24, 2016
Recently pajamas and their displeasing appearance in public has made the news both here and in England. In England, the displeasure was specifically directed at parents turning up in pajamas at school for drop-offs and pick-ups. In the States, however, pajamas are not part of the accepted dress code for court settings (specifically District Court settings in Columbia County, PA).
That's right people. No pajamas in court. Go figure. Suits required. But what if one has suit pajamas? This dream can be yours via a product affectionately named "Suitsy" - a onesie designed with all of the comfort of pajamas but having the appearance of a casual business suit. Recently when I came home from work, my three year old daughter greeted me at the door with, "Okay Mom, now you can take your work jammies off." I thought to myself, wow, wouldn't it be great to actually have such a thing as "work jammies" - they sound so much more comfortable than regular suit attire. Sadly for me the Suitsy appears to have only a male version of their product - perhaps a hashtag campaign (along the lines of #wheresrey) such as #wheresaladysuitsy or #giveagirlasuitsy might generate enough attention that one can exist in the future. The major question then would be whether I would actually have the nerve to wear it professionally to court. Jury's out on that one folks.
For a full review of the Suitsy in all of its glory, check out a review on Business Insider from May 2015: http://www.businessinsider.com/greg-ferenstein-suitsy-review-2015-5
Thursday, February 18, 2016
You are not even in the ground yet and they come. They come with their disdain, their praise, their vitriol and idolatry, their mocking and memorializing.
You oh great proponent of originalism, the idea that our Constitution is frozen in time and hallowed, to be viewed not as a living, breathing document, but one that is dead, cemented with principles of the past, exactly as it was written.
And while I can understand the allure of such adherence, a clutching onto the solace that comes with certainty in this otherwise uncertain world, I could never concur. For you see at the time “We the People” was constructed, I was excluded from the very definition of the “people.” My blackness and my womanhood denied me the ability to be fully vested in those assigned rights.
And so I do not accept the idea of a dead document. See, we live in a world never envisioned or imagined. Those men who developed those past notions, revolutionary though they may have been in their moment, cannot continue to govern me from their graves, nor can you from yours.
I will never allow them or you to grip me from that bygone era, but that way of being does not mean that I am not sad over your passing. I am perplexed by the strange circumstances that now surround you; this peculiar war that is waging on around you before you are even buried and fully mourned. While I have never seen eye to eye with you, I have always seen you as my colleague, my equal, my foe to be sure, but a worthy opponent.
You were the dark to my light, the down to my up, the out to my in and through your hard and fixed gaze on originalism, I learned to set my sights on the flexibility that seems necessary to adjust to our constantly evolving realities. And through your strict adherence to the models of the old, I learned to flow into the stretch, the growth and even the pains that come with embracing the new. And so I see no reason for hatred here, just gratitude for the formation that only comes after being forged in the fires of deep dissent.
Until we meet again, dear Antonin. Until we meet again.