Saturday, March 2, 2019
Chrissy Cerniglia, Davida Finger, Luz Herrera, JoNel Newman, and I have posted our working paper, In Times of Chaos: Creating Blueprints for Law School Responses to Natural Disasters. We each have recent, intense experience guiding our schools' responses to natural disasters through legal clinics and pro bono programs. In the article, we gather lessons and ideas from these experiences and offer guidance for law schools who will face more, and more destructive, natural disasters in the "new abnormal."
UPDATE: 80 Louisiana Law Review --- (forthcoming 2019).
A recent onslaught of domestic natural disasters created acute, critical needs for legal services for people displaced and harmed by storms and fires. In 2017, Hurricanes Harvey, Irma, Maria and Michael struck much of Texas, Florida, and Puerto Rico, displacing millions from their homes. Wildfires burned throughout California and tested the capacity of pro bono and legal aid systems across the state. In 2018, Hurricane Florence flooded North Carolina, and Hurricane Michael devastated the Florida Panhandle. California again suffered wildfires, the largest and most devastating in recorded history. Natural disasters are both more common and more destructive, the “new abnormal.”
Social and economic inequities emerge sharply after each natural disaster. Low-income and vulnerable people both suffer more from disasters and experience heightened barriers to accessing the post-disaster resources necessary to survive, rebuild, and return home. Marginalized and vulnerable populations, in particular, need legal assistance and expertise to overcome these barriers.
Natural disasters also inspire law students, law clinics, law schools and law faculty to help. Law school responses to assisting with post-disaster legal needs have been diverse. Some efforts have been law student initiated, while several law school clinics have provided legal assistance in a variety of ways. Some law schools have launched clinics with a devoted budget and strict focus on disaster practice. Some took on disaster work because it was the greatest need for existing clients and communities. Others shifted the focus of existing clinics to disaster needs, and still others launched temporary clinics in various forms to respond to acute crises. Some wanted to help but did not have ready relationships or resources to be responsive.
Each of the authors has direct experience surviving natural disasters and providing legal assistance from within the academy. This article provides necessary information about the nature of natural disasters, the ecosystem of response systems, and common legal issues for law schools and clinical programs interested in providing legal assistance to disaster-affected communities. It then describes varying models of law school institutional responses to increasingly common natural disasters. Building on lessons learned through these experiences, law schools can develop a blueprint for community-engaged disaster response. Building a framework for institutional responses in the legal academy can advance and improve access to justice for vulnerable communities recovering after a disaster and can provide students with an opportunity to learn from this social justice engagement.
Monday, January 21, 2019
1. "I've got a bad feeling about this." -- Han Solo
It's a new semester. You have brand new cases and deadlines... and at least one of those deadlines is comin' in hot. You've got a sick feeling in your stomach. You can see dread in the students' faces. Your fresh take on the court's refusal to grant an extension or continuance? A bad feeling. But it can't stop there.
2. “I need someone to show me my place in all this.” -- Rey
The role of the clinical law professor is twofold: to represent clinic clients in a zealous and professional way and to teach clinic students their "place in all this." Sometimes that means subdividing sections of a brief or a larger project; sometimes it's suggesting research terms and leading a brainstorming session. But it's also more than that: students look to their clinical law professors to help them make sense of their lawyering experiences to assess their own path. Deadlines are important- but clinical students are more than research assistants or interns. Fundamentally, law clinics are lab courses in which students' work is also twofold: representing their clients and reflecting on their own professional development.
3. "Do or do not. There is no try." -- Yoda
Clinic litigation often doesn't have the luxury of extended pontification, and it certainly can't stop with "try." Behind every clinic case is a client relying on students' work product. There's no "A for effort" here, though grades and feedback also cannot be based on a court result. Clinical learning outcomes are the skills gained, the words written (and edited and rearranged and rewritten). We may all get writer's block or paralysis, but we can't stay there for long.
4. "The time to fight is now." -- Jyn Erso
Clinic briefs filed in an adversarial system are our weapons in the battle for justice for our clients, and the fight is on. We can count on opposing counsel to make the case against our client's claims, and we have to meet each of them head on. Clinical faculty and our students are bound by rules of professional conduct, and I am a strong believer in the powers of civility toward opposing counsel. But within those bounds, we are zealous. It doesn't hurt us to own the mantle of a freedom fighter; at our best, that's what we are.
5. "Look, Your Worshipfulness, let's get one thing straight. I take orders from just one person: me."-- Han Solo
I've mostly included this as a tongue-in-cheek counter-example of the kind of coachability we need in clinic students. Our students are smart, intuitive, hardworking, solid writers. But they still have to listen. Only once or twice have I encountered a student who didn't love taking heavy edits on a brief, and with a deadline clock ticking, it wasted valuable time.
6. "Never tell me the odds"-- Han Solo
I run an appellate and habeas clinic. The odds are never in our favor. Why bog ourselves down with the reversal rate of the appellate court hearing the case? Irrelevant. Next issue.
7. "It's a Trap!!"-- Admiral Akbar
There comes a point in all justice work when we become too enamored with our own perspective. We don't want to become paralyzed by bad odds, but we also need a healthy perspective on the court's view of our client's case record and issues. What arguments will be persuasive? What will the State argue? Where are the weak spots, and what will shore those places up? Better to consider these weaknesses before the filing deadline instead of after.
8. "That's impossible-- even for a computer!"-- Rebel pilot
As someone who learned legal research in the stacks of the law library, I'm always amazed with the newfangled bells and whistles of our research resources. Ever have a program create a beautiful table of authorities? E-filed remotely when you used to have to make 9 hard copies with heavy covers, stapled down the side, all FedExed before 9 pm? A thing of beauty... plus, it saves hours in clinic work time.
9."Use the Force, [class]." -- Obi-Wan Kenobi
In the last few days before a filing or other court deadline, accumulated stress takes its toll. Students have other courses to study for, clinical faculty have other teaching obligations. We've all put our lives on hold. But there's still final editing left to do. A brief isn't finished 'til it's filed... and sometimes we need that extra boost of adrenaline (and The Force) to make sure we create clinic work product we're proud of. We have to dig deep for motivation, and I generally find that in our clients' confidence in us and in what is at stake for them if we lose.
Monday, November 19, 2018
Legal Interviewing & Language Access Film Project -- Videos & Teacher's Guide for Use in Teaching Client Interviewing
Friday, November 17, 2017
As a clinical teacher, how much of your self do you share with the students you are supervising? What effect does that sharing, or lack of sharing, have?
Thanks to a thought-provoking session at the Northwest Clinical Conference earlier this month, led by the University of Montana’s Eduardo Capulong, and Kim Ambrose and Lisa Kelly from the University of Washington, I have been mulling over these questions for the last few weeks.
In their session, titled Teaching Professional Identity and Values through Narrative and Our Own Stories, Professors Ambrose, Capulong, and Kelly, asked participants, including myself, to think about how law professors are perceived by our students. Then they asked us to look inward with a partner, sharing how we saw ourselves first and then how our students saw us.
The question is, when do you self-disclose with students, and what are the risks and benefits? In many ways, in a clinical setting we are asking students to become reflective lawyers. We ask that they constantly assess their goals, their progress, and what they bring to the lawyering experience. In a way, with self-disclosure, we are modeling for students what we ask them to do in terms of being introspective and self-aware attorneys.
One faculty member at my institution recently recounted an experience with a student years ago. The student was having panic attacks in class and requested to sit by the door. Rather than simply saying “yes” and moving on, this Professor shared that she too had the same anxiety challenges. She gave the students two options – “sit by the door, or, sit in the front row so that when I am struggling, you can help me out and we can support each other.” This message communicated to the student that she was not alone—that she and her Professor are on a learning journey together. The Professor humanized herself and made clear to the student that someone who struggled with anxiety can be a lawyer, and, eventually even a law professor.
With students struggling with statutory interpretation, do you share that in law school you in fact bombed the exam for course you are now in fact teaching because you neglected to closely read the statute? Do you share experiences of professional failure or struggle? How much do you share with students regarding your own career? Would you ever share the anxiety or stresses associated with promotion, tenure, renewal of your contract, or funding?
On an even more personal level, in many of our clinics, we introduce students to the concept of secondary or vicarious trauma or Post-traumatic Stress Disorder. Studies show that raising awareness of the issue can actually lower the chances of manifesting secondary trauma symptoms. In teaching this topic, do you share your own experiences with trauma? Does this empower students to do the same, or, can it pressure them to reveal experiences they would rather not share? In the moments where I have decided to share my own past trauma with students, I have felt that it has empowered them to think about how their own trauma experiences influence their lawyering and approach to working with their clients.
Do you share personal losses, such as the loss of a family member or a pregnancy? In the past year, I have been open with my students about the fact that I am grieving the loss of my beloved father, who passed away after battling with pancreatic cancer nine months ago, just two days after his 60th birthday. That openness has actually enabled me to be there for my students, one of whom lost her father not long before. Because she knew I faced the same new reality, she shared with me when her mid-semester evaluation was scheduled the same day as her father’s birthday. This semester, another student tragically lost a sibling. She was initially reluctant to even share the fact of the death, for fear of being given less meaningful clinic work, but after she did disclose, the fact that she knows about my own loss means I am able to connect with and support her in these difficult times in a more genuine way.
When, how, and with whom to share is definitely a question and a question that will be resolved differently at different times. This summer, when teaching a five week refugee law course, I did not disclose to my students, in standing up to teach the day after a miscarriage, what I had endured. One week I was pregnant and looking forward to growing my family, one week later, standing behind the same lectern, I was not. They had no idea. At that time, of course, the loss was too raw and I hadn’t done any processing myself. But, several months later, in discussing the topic of pregnancy with students during a long car ride to a detention center, it felt inauthentic to refrain from sharing with my students that I too had lost a pregnancy a few months earlier. What feels right and enables connection in one moment will not always in another.
In the personal arena, as a parent, do you share the joys (and challenges!) of parenting? Does this present as unnecessary bragging (or whining?) or is it helpful insight and modeling being a working professional parent? On this line of sharing, I have erred on the side of sharing when a student asks or seems interested. I was pregnant and then delivered my first child as a clinical teaching fellow at Georgetown. Students obviously knew that I was pregnant and then that I had a small infant. A couple of female students wrote in my evaluations how much they appreciated our discussions of work-life balance and parenting and how it gave them hope for figuring out how career and family could work together.
Obviously, self-disclosure is context and situation dependent, but I appreciated the way in which Professors Kelly, Ambrose, and Capulong opened up this conversation. Does sharing some of our personal journeys make us vulnerable to our students? Will they judge us and think less of us as “Professors?” Or, are we normalizing conversation around difficult topics and reducing stigma associated with so many experiences we have in life. Are we making ourselves more approachable and relatable? In sharing, are students more likely to share what is happening in their own lives with you? Is this a positive development, or are you crossing the line into quasi-therapist/friend? Is that so dangerous in the end – hierarchy and grading aside, are we not just human beings interacting inside and outside of the classroom in all the messy and confusing ways that human present?
In practicing self-disclosure, are you actually working to humanize a profession that is so often disconnected from emotion? Given that lawyers are prone to self doubt, drug and alcohol abuse, stress and over work, could self-disclosure by leaders in the profession, including law professors, work to undo some of those complicated and negative dynamics? Can self-disclosure help to humanize professors to help to undo some of the ways in which law school is an environment rife with the challenges posed by implicit bias and stereotype threat?
I think I tend to self-disclose more than average, and increasingly wonder whether this may introduce an unhelpful dose of casualness into the professor-student relationship. It’s possible that bringing our more authentic and complete selves to the table could potentially undermine students’ respect for us. This may be of particular concern for young professors of color and women who face documented biases in the classroom due to gender, race, sexual orientation, class, age, or other differences. As a female law professor in my mid-thirties, I know students find me more accessible and less intimidating than my male and older colleagues. In disclosing tidbits of my personal or professional struggles here and there, am I encouraging a lack of respect? Am I crossing lines in a way that undermines my students’ ability to hold me in the same category of “professor” as some of my colleagues? Or, am I actually humanizing myself and enabling students to relate to me more easily human to human?
In conclusion, I have reached none, except that it is worth us asking ourselves, as clinicians, where we draw our lines and when, and what effect that may have. It is also worth opening up conversations with one another to understand how self-disclosure has played out, particularly across race, gender, age, sexual orientation, and other differences.
For myself, I am often a fairly open book. But, that book will be opened to various pages as and when I feel appropriate. There may sometimes be pages I wish I had not shared in that moment, but I am willing to experiment with self-disclosure because I believe that the potential gains in truly connecting with students outweigh the risks.
Sunday, July 16, 2017
“Come see me in my office when we get back,” Mr. Becker said to me at my first lunch with him. “I’ve got some work for you.”
“Yes, sir.” I was thrilled because I had been hunting these invitations. I’d been with that century-old firm for just a week, chomping at the bit for a chance to prove myself anew after a long rookie year of discouragement and failure.
I’d fled my first Big Law firm when they and I came to the clear, mutual, finally explicit realization that we were a bad fit. I thought they’d hired me under false pretenses then followed through with poor management. They thought I was immature, out of my depth, and not worth their investment. We both may have been right, but for sure I wanted to be in a courtroom and out in the world. For sure, they weren’t letting me out of my office or the Federal Register.
So I was on the market again too soon. I put on a brave face and some false confidence to convince other firms that it made perfect sense for me to be seeking a new job eighteen months out of law school at the ripe old age of twenty-five.
A couple of firms bought my ruse, and one, Watkins & Eager in my home state of Mississippi, welcomed me warmly. They taught me how to be a lawyer. At the interview, I told them I most wanted to litigate and hadn’t even been able to attend a single deposition since I passed the bar, much less take one. Rebecca Wiggs, a partner in the firm, laughed at me, “What are you doing this afternoon? I can make your dreams come true.”
They also explained - to my undying relief - that they had no billable hour quotas and hadn’t since 1895. “Do the work on your desk. Everything else will take care of itself.” The associates did the work for clients and the cases, not for their own desperate billable hour salvation. That just seemed right.
Thus it was that my new firm hired me to do exactly what I declared that I wanted to do. Now I had to do it, but that brave face and false confidence were rooted in the brutally real pain of being asked to leave my first job. That’s not how careers are supposed to start, even if I had already been sending out resumes for months.
My new office overlooked the governor’s mansion in Jackson, and it was next door to Mr. Goodman, the grandson of the firm’s founder, our chief, who was then in his seventies. The family firm had over sixty lawyers, and I was the newest and youngest.
He and Mr. Becker, the patriarchs, took me to lunch. These were Southern gentlemen lawyers of a fading era: genteel, unfailingly polite, honest, practical, charming, ambitious, erudite, attentive, and calm. They were progressive in their ways. Mr. Goodman’s aunt had been one of the first women admitted to the Mississippi Bar. (I found her penciled notes around a paragraph I needed in the firm library one day, in a reporter from the Thirties that still smelled like her cigarette smoke.)
Mr. Becker had been with the firm nearly as long as Mr. Goodman, and he’d been one of Mississippi’s preeminent trial lawyers for forty years before he called me in for my new matter. His office was a gallery, and half the art was his own work. He’d taken up folk painting in his sixties, but he’d been a collector for far longer. I’d heard tales that the firm had been alarmed at the furniture he’d had shipped back from Europe to decorate at the firm’s expense. My wife and I have an original Becker on our wall to this day. He painted it after giving us a tour of his grand gallery of a house with more Spanish wine that we realized we were drinking until he ushered out to prepare for a dinner party.
Ultimately, I would spend long hours with Mr. Becker over those years in the firm. I tried my very first case with him, which we lost. He might have expected that result in advance, which might be why he made me first chair, but that’s a story for another day. That first visit to his office is the one I remember best.
He handed me a file and told me about the case. It was a medical malpractice case, and we represented the doctor. He had a summary judgment hearing coming up and wanted me to argue it.
Honestly, my young professional dream was coming true. But don’t forget that brave face, false confidence, and painful failure. “Mr. Becker, I’m happy to handle this, but I feel like I should tell you that I haven’t done this before, in case you need someone who knows what they’re doing.”
He was already looking at another letter or his calendar and glanced up at me with a little irritation. “Go do it, lad.”
With that vote of confidence, I wandered out into the hallway with my first hearing in my hands. Rule 56 rushed back into my mind: no genuine issue of material fact, entitled to judgment as a matter of law. I knew I’d need to learn the standards for professional liability in Mississippi, and I knew where to research and how to write my argument. I knew the theory, the procedure, and the stakes. I had a gilded brain educated at fine institutions. But I was beating back panic about appearing alone in court for the first time.
I stood in the hall, a little dazed. Then Ms. Wiggs walked by, she who couldn’t wait to send me to her depositions. “Hey, Jeff, how are you doing? Getting settled in?”
“Yes. Thanks. But Becker just have me a summary judgment motion, and I don’t know where the courthouse is.”
She laughed at me again and glanced at her watch. “Do you have time for a walk?”
“Let’s go.” She didn’t literally take my hand, but nearly. We walked the five or six blocks to the Hinds County Courthouse. She greeted the bailiffs and deputies and introduced me. She pointed at the clerk’s office and asked me who had my case. I told her the judge, and she pointed me up the stairs. She pushed open the door to the empty courtroom, walked around the bar to counsels’ table on the left, and put her hands on the back of the first chair.
“You sit here.” She pointed at the lectern in the well. “When it’s your turn, you stand there.”
It was a beautiful, generous act of mercy.
I don’t remember what came of the hearing or the case. I remember having tunnel vision. I was keenly aware of a judge and an opponent. I’m sure I argued from my notes on a legal pad, but that’s about it. Probably there were clerks and bailiffs, other parties and clients, but my brain couldn’t process them. No one came to see my debut, but that’s probably for the best. I did just fine and didn’t act, look, or feel too stupid, after it was over.
Whatever the outcome, those conversations gave me more applied legal education than I ever had in a single day.
“Go do it, lad.” Becker gave me a shot of encouragement, a dose of professional confidence, a reminder of humility, and a proper dose of fear. He trusted me with his work.
“You sit here.” Wiggs gave me the great gift of orientation. I could focus on my argument and my preparation without worrying about literally being lost or looking like an outright fool. She told me that she always tried to visit a new courtroom and watch a new judge before having to argue there. It’s basic, brilliant, wise lawyering.
Like many of our students now, I graduated with great credentials and deep knowledge of the law but without the practical ability to do much with it. Watkins & Eager taught me how to be a lawyer, by inviting me to practice law.
I carry these lessons with me in clinical teaching. It was excellent pedagogy. An empowering supervising attorney trusted me with an assignment that he knew I could handle, even if I didn’t, and it was non-directive to an extreme. Another empowering attorney caught me in the fall and helped me prepare and understand my role, always instilling wisdom and knowledge, answering my questions, without taking the work away from me. With grace and generosity, she prepared me to be a better lawyer the next day and the next day after that, without embarrassment or condescension.
They taught me how to practice. They also taught me how to teach rookie professionals how to practice. They trusted and taught me then, like I trust and teach my clinical students now. From Jackson to Los Angeles, those fundamental lawyer lessons ring true. These are great outlines for experiential learning: Sit here. Stand there. Go do it.
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, April 5, 2017
I have spent most of my education and career in Christian universities. They, like all institutions, struggle with their identities in various ways, wrestling to understand themselves as parts of ancient traditions, within rapidly evolving worlds, seeking the ideals of liberal education while adhering to faith commitments and obligations.
This Inside Higher Ed piece from my friend and colleague, Prof. Michael Helfand, is wise and right. He writes from his experience as an Orthodox Jew at our university affiliated with the Churches of Christ, my home tradition. He discusses a commitment to religious diversity as a core commitment for a university with a faith mission, not as an exception to it. This is one of the things we get right, I think, at Pepperdine Law, and our Jewish, Sikh, Muslim, Catholic, Mormon, Church of Christ, Episcopal, Evangelical, Etc. law faculty is all the stronger because of it.
Next year, I will be one of the faculty advisors for our Interfaith Student Council, and I believe Michael's words are true:
The key to maintaining this balance is a university administration and faculty that does not simply expect faculty members of other faiths to work parallel to the university’s faith-based mission. Capitalizing on religious diversity within a faith-based university works best -- both from a student and from a faculty perspective -- when the university actively seeks to incorporate that religious diversity into the faith-based mission of the school. It gives students a more multifaceted educational experience and gives faculty an increased sense of institutional value -- and, in turn, increases buy-in to the institution’s mission.
Monday, April 3, 2017
A few weeks ago, I had a moment. I suppose you could call it a “teaching moment,” since it occurred in the classroom, but really, it felt more like a moment, moment. You know, the kind where the world seems right, even if just for a few minutes. When somehow it all falls into place with stunning alignment and grace and we are a taught a lesson; the kind that resonates deeply in the body, like ancient knowledge that you can’t quite name or fully grasp but you know it when you see it.
At 10:00 pm the night before the first ever REEL (Re-imagining Excellence through Empowering Leadership) Conference, I quickly agreed to jump in and teach a 45 minute workshop on restorative justice when one presenter cancelled. My audience would be teenage boys, who attend the Kingston YMCA alternative education program. Most of the boys live a very difficult reality; they come from garrison communities where violence and retribution are the norm. Looking back, I realize the arrogance and potential foolishness of my haphazard decision, but I’m glad I didn’t have that awareness at the time, as my second-guessing could have easily turned into a “no.” One lesson I will most certainly take with me from my time here in Jamaica is that sometimes I just need to get it done, loosen the choke hold of that perfectionist bent, settle on “some is better than none,” and handle it.
After the haze of the late-night, last minute decision wore off, I acknowledged how stunningly out of my depth I would be. My Americanness, including my comparative wealth, which allows me augmented “safety” and “control” over my environment was directly at odds with the boys’ lived experience. The story I played in my mind was one of doubt: am I going to be able to convey, and in such a short amount of time, an alternative to retribution, another potential way of being in the world, a chance for possible repair instead of reprisal and the creation of more harm. Is that even possible? Is it even my place to try?
Luckily, another story simultaneously played. I’ve attended enough Clinical Law Conferences to have developed a fairly sturdy (even if at times tentative) trust in the power of teaching techniques, and so I would rely on those. Tactile learning, a circle and intuition would be my guides. In the classroom, I was adamant that the chairs, which were in rows had to be in circle. This meant the 20 minute task of re-arranging them prior to the boys arrival, but put those chairs in a circle we did (it must have seemed silly to everyone -- even to myself to a degree -- but I just knew we needed to see each other). Once everyone walked into the room, I patiently but diligently stuck to the format. I made all of us, including the teachers, sit inside the circle and we removed all empty chairs. We started with my request “tell us your name, your favorite junk food (a universally important question) and what you want to be in the future.” Pulling this information was difficult, the boys did not have much confidence or practice in speaking this way. I had to ask several times for quiet, push through the snickering, re-direct, constantly re-affirm the importance of each person’s response and ask countless times for everyone to speak up. And though there were fleeting moments of wondering whether this was the best use of our time together, I felt a strong pull; the act of naming and staking a claim on the future felt important and so even though it was a little tenuous, the circle held.
Next, I had the boys pretend to be actors (victim, police, community members, judge, offender, lawyers, etc.) in both the traditional and the restorative justice systems, using physical space and proximity to illustrate the concepts. The method seemed effective and we had fun. On the grand scale, I moved the room from the immediate “I would shoot his family dead” response to a consideration of “maybe” when asked if anyone would be willing to listen to the offender’s story. I considered this a success, but I’m kind of a glutton; I wasn’t satisfied, I pretty much always want more and because it just didn’t quite feel like enough or like it was done, I scrapped the script and started talking from the heart. It was messy, but it provided the opening we needed.
First, I acknowledged my privilege and then we talked…about anger, about witnessing horrific events, about endless cycles of violence, and about how as a society we instruct people not to do harm often through the use of state sanctioned forms of harm, control and force. The teachers, feeling more confident in this space, joined in, and together we validated feelings and passed along information about the effects trauma can have on our lives. We did our best to try and affirm the worth and dignity of everyone in the room (the future firefighter, graphic designer, lawyer, the one who likes KFC, Lavonte, “Tony,” and the one I ran into at the bus station…) Looking around, I could tell the boys heard it, many even appreciated the sentiment, but there was still a disconnect, a gap that I was desperate to, but didn’t have the words or experience or time to close.
And then it happened, as it often does, at the last minute, when you’ve got nothing left…
One of the teachers, who had been participating and asking questions throughout the workshop (which if I’m being honest, unnerved me a bit because of our tight time frame and because I thought “this is a workshop for the boys, not the teachers”) raised her hand again just in time for the final comment. By her insightful questions, I could tell that she was working through something and so even though the questions took us a little of “my course,” I had done my best to provide space and answer them.
And so in those last minutes of our time together, Ms. Taylor closed us out and brought us home. And somehow, she did it, she managed to fuse it all together: my words, their words, my knowledge, and their lived experiences. She spoke in the way that only a Jamaican woman could, only in a way that someone who has worked for a long time to gain trust and garner respect could, and only in a way that a mother who intimately knows suffering could.
She opened up and told us her story. It was a deeply personal story, one that I’m not sure her colleagues even knew, filled with pain, loss, restitution and redemption; one of those stories where the universe delivers both the poisonous sting and the antidote simultaneously rolled into one bitter-sweet pill. She was restorative justice personified. And we were stunned and silent; the room reverent as the energy shifted and stilled. We heard and finally we understood the power of forgiveness and the healing that can bring. I have no doubt that her story has wedged itself into the hearts of those young men the way it flowed directly into mine. And as we go forward to maneuver the difficulties of this life, I know we will all hear her words echoing inside us, providing us with choices which we couldn’t see before, a wider spectrum of possibilities that now exist in all our worlds.
And so I learned once again about the real value of restorative justice and why I do this work, and I learned once again about myself. Ms. Taylor’s lesson was the re-enforcement of what so many have tried to teach me over and over again...trust the process, trust yourself, check your ego at the door along with those western, hierarchical methods of learning, get out of the way, and just be the bridge, let it simply be an honor to be the conduit that facilitates the real knowledge residing in all of us.
 The nature of poverty in the garrison constituencies in Jamaica, http://journals.sagepub.com/doi/pdf/10.1177/095624780501700207
Wednesday, February 1, 2017
Prof. Kendall Kerew of Georgia State has announced the launch of the new Lextern website.
Lextern is an invaluable resource for externship and other field placement programs.
Kendall describes the new project:
It is with great pleasure that we announce the launch of a new version of LexternWeb (https://www.lexternweb.org/). As many of you know, Professor Sandy Ogilvy of Catholic University Columbus School of Law created LexternWeb in 2009 for the benefit and use of faculty and administrators engaged in teaching and coordinating legal externship programs. With Professor Ogilvy's support and input, the AALS Clinical Section's Externship Committee has created this new version of LexternWeb to continue Professor Ogilvy's work to promote information sharing and collaboration among externship faculty nationwide.
Like its predecessor, the new LexternWeb is a one-stop shop for every kind of Externship Program resource. The site includes a variety of materials related to law school programs, externship teaching, site supervision, scholarship, and professional organizations. Moving forward, AALS Externship Committee Co-Chair Kendall Kerew will work in conjunction with the Committee and Professor Ogilvy to administer the LexternWeb site. To post your program-related materials, please email them to Kendall at email@example.com.
Special thanks to the many colleagues and friends who helped us bring the LexternWeb to you. In particular, we would like to again thank Sandy Ogilvy for his inspired work with LexternWeb over so many years and for being so supportive of this update.
Sunday, January 8, 2017
Everyone in our work encounters students who are in crisis about their callings, opportunities, and direction. Most of us are sympathetic because we have all passed through those years, bedraggled and anxious about what we should do and how we should get there. Some of us still are.
Students seek counsel and advice as they try to choose between their several options or as they despair at having too few. Many students (and professors and people) suffer profound questions about their lives and purpose as they finally achieve admission to law school with great dreams of how they imagine it to be, only to be utterly confused and depressed at the reality. Many students (and professors and people) are paralyzed by the fear of missing out, worried into stasis because choosing one path will necessarily eliminate others. They cannot square their reality with their expectations, and they are terrified of making an early step that will lead them into the wilderness instead of their home. In my experience, I meet many students who are people of faith, praying desperately and waiting to learn what God wills for their lives.
Today, I listened to a very wise episode of The Hidden Brain with Shankar Vedantam, applying design thinking to the problem of people feeling stuck in lives that do not reflect who they see themselves to be. I recommend it for teachers and students looking for a useful framework for thinking about work, vocation, purpose, and decision-making.
Many of his students come to him saying they don't know what to do with their lives. They want to find the "right" answer. He tells them, 'There is more than one you in there.'
"So the problem with the current approach that lots of people are taking," he says, "is it starts with the wrong question. And the wrong question is, how do I figure out that one, best solution to my life?"
Design thinking is about recognizing your constraints, realizing there isn't just one answer, and then trying something: "Building a prototype," getting information from it, and then trying something else.
This reflects some of the advice I often give students, hard won as the wisdom of my own failures and struggles.
It’s important to understand the difference between a problem and a circumstance, the “gravity problem” in the podcast, that can help us set more realistic expectations as a basis for our decisions.
Rather than slogging through anguish trying to decide what to do in their work, students should imagine what kind of life they want to live. Making decisions consistent with values and preferences can be more liberating than pining for the perfect job. This also addresses the fear of missing out, because many options might be consistent with values and preferences along an evolving path. As the podcast suggests, there are many different potential versions of our lives, so we experiment with prototypes to refine the best possible options in a moment within our circumstances.
The episode suggests design thinking, not as self-help or mystical psychology, but as a framework to guide decisions and reflection for students stuck at the end of education and the beginning of a career. This is a critical moment, but it is only one more step in a long journey.
Thursday, January 5, 2017
In a post at the Best Practices blog, Prof. Robert Kuehn examines empirical data on the performance of law schools in preparing students for practice. He finds and demonstrates that most law schools continue to fall short of preparing students for practice, even many years after the ABA and most law schools declared preparation for practice to be a principal goal of legal education.
More recent studies have not reflected any improvement in the role of legal education in preparing graduates for practice. The American Bar Foundation’s After the JD study tracks the careers of a sample of lawyers who passed the bar in 2000. It asked lawyers three and seven years of out of school if “law school prepared me well for my legal career.” On this fundamental objective of legal education, law schools failed miserably — 40% of lawyers after three years of practice and 50% after seven years said that law school did not adequately prepare them. Both groups overwhelmingly agreed that law school was too theoretical and unconcerned with real life practice. In another study of early-career lawyers, only 28% believed that law school prepared them to practice law.
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.
Thursday, October 27, 2016
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.
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.
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.
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.
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.
Monday, August 1, 2016
This year, I am serving on my law school’s curriculum committee, outcomes assessment task force and our self-study committee for an upcoming ABA site visit. These posts involve many of the most pressing questions of the day in legal education, and they intersect often with clinical and experiential learning.
For these reasons, I was very happy and a bit intimidated to receive an invitation from the Journal of Legal Education to review Building on Best Practices: Transforming Legal Education in a Changing World, edited by Deborah Maranville. Lisa Radtke Bliss, Carolyn Wilkes Kass, and Antoinette Sedillo Lopez, and written by many others. I have the privilege of friendship and collaboration with many of these authors and editors, and they are doing innovative, wise work on the hardest issues of our enterprise. Their work and insight hit home.
Please read and use the book; it will make our law schools better. It will make us better teachers and scholars and will promote better outcomes for the students who trust us. It takes its place within the canon of legal education theory and practice, from McCrate to Carnegie to the original Best Practices. It is not the destination of our work, but it is a useful, important stop along the way.
Here is an excerpt from my review, available on SSRN here and at 65 J. Legal Educ. 988 (2016).
Building on Best Practices charts the path for institutional and curricular reform within the prevailing structure of outcomes assessment. Like the refined demands of new ABA accreditation standards, Building on Best Practices draws from the trend toward objective measurement of identifiable goals. Institutional assessment follows a constructive, progressive cycle: identifying outcomes and goals, developing means to measure progress toward those goals, measuring performance in light of the desired outcomes, evaluating results, and developing and implementing changes, before starting again.
Thus, rather than evaluating a school based on its inputs, like the metrics of an incoming class, the library budget, or faculty research assistance, a school should measure its success based on how well it achieves the goals it sets for itself. Building on Best Practices proposes this process as the means to strengthen and improve the enterprise of legal education. Each law school must reckon what it wants to be in a topsy-turvy environment, then mark out a course to achieve it well within its own contexts and markets. It is not enough for schools to add or remove programs, to build a space, or to invest in a class with higher entrance metrics. Instead, schools must be able to articulate why they should do those things, to have a clear purpose for making the moves they make, and to use good tools to determine whether they work.
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
"As you may know, when Building on Best Practices: Transforming Legal Education in a Changing World was published by LexisNexis, we had an agreement that it would be available for free as an e-book, on line, with printed copies for sale. However, Carolina Academic Press recently bought out Lexis Nexis’ print inventory, causing some confusion regarding availability. Negotiations are still underway. The book is currently available in hard copy for sale for $50 ($45 internet discount – to order, go to http://www.cap-press.com/books/isbn/9781630443207/Building-on-Best-Practices ) We expect that the ebook will remain available at no cost from Lexis Nexis through the end of 2016. In order to obtain a free copy, the instructions have changed. Please submit a request for a free copy of the eBook by sending your request to ReviewCopy@lexisnexis.com. After December 31, 2016 there will likely be a fee to obtain a copy of the e-book.
We hope you will strongly encourage your Deans, Academic Deans, Experiential Deans, and your school’s curriculum committee members to read the book. The book provides helpful guidance and answers on the most important topics in legal education, even the dreaded learning outcomes and assessment projects that are underway at every law school."
Lisa Radtke Bliss and Carrie Kass and the Best Practices Implementation Committee:
"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)"
Tuesday, May 31, 2016
Over recent semesters, the Ventura County Public Defender’s Office and Pepperdine University School of Law have been developing the Veterans Law Practicum. In the Practicum, upper-level law students from Pepperdine work with the Public Defender to represent clients in Veterans Treatment Court. Vet Court is part of the Collaborative Court Program of the Ventura County Superior Court. Pepperdine law students work in a rich, immersive experience alongside expert attorneys to improve and expand restorative justice for veterans.
I have rarely seen a field placement as committed, organized and expert in the supervision of law students while ensuring that their work is effective and useful for clients.
Chief Deputy Rod Kodman, other attorneys at the Public Defender’s Office, and Pepperdine law students have prepared the attached guide for Public Defender Law Clerks in Veterans Court and Veterans Sentencing Programs. This is a detailed kit with standard operating procedures, forms and guidelines for students in the practicum. The Ventura Public Defender has been generous to share this material with defenders throughout California, and we are making it available nationally through several communities committed to veterans’ services.
From the Introduction:
This guide is designed to assist other jurisdictions in making optimum use of Public Defender law clerks as part of programs that give effect to veterans sentencing statutes, including Veterans Courts. The goal of such programs is to establish a secure pathway for veterans to restorative, alternative sentencing, which greatly increases access to justice for vulnerable veterans. The Ventura County Veterans Court is a collaborative effort, but other jurisdictions can implement the practices outlined here as part of a more adversarial process. Also, this guide refers throughout to the activities of “law clerks.” Other jurisdictions may wish to assign some of these roles to social workers, paralegals, sentencing mitigation specialists, or other professionals. In doing so, they should be careful to follow all applicable rules regarding the unauthorized practice of law.
The guide informs students’ work at arraignment, in the defenders’ office, at the Vet Court team meeting, before and in court, then in the delivery of legal or other benefits to clients.
We hope these materials can be helpful, and we welcome questions, suggestions and ideas to make them better.
Wednesday, May 25, 2016
Pepperdine Scotland is a company in our theater department, and they are producing an original play for debut at the Edinburgh Fringe Festival this summer. Irish playwright Lynda Radley is developing an intense, complex story of sexual assault on American college campuses, with production and direction from Alex Fthenakis and Cathy Thomas-Grant. I have had the singular opportunity to serve as a consultant for the play and to share time with the cast and crew.
Stepping out of our clinics and law schools to participate with other disciplines in other departments can yield invigorating results. Consulting on the play has made me think more deeply about narrative structure and storytelling. Thinking about this play and this story has reminded me that these issues and relationships always exceed the bounds of legal definitions and invoke cultures, structures, societies, and deep histories. Working with creative artists, writers, and students reminds me that we can always have more and different ways to do our work. To see a production take flight from scratch inspires me to create and gives me courage to take on new endeavors with faith that we can speak to the world.
The Interference will be a powerful, important work. I can't wait to see it next year at Pepperdine.
I have the honor of contributing this guest post to the company blog, and I'm very proud to play even a small part in this production.
I am grateful and proud to contribute some ideas for The Interference this year. Lynda Radley, Alex Fthenakis, Cathy Thomas-Grant, and the Pepperdine crew and cast are undertaking a critical and hard project. The night in question will always matter: the facts, the tick-tock, the actions. But the night in question only really matters in the context of the lives and communities in question.The Interference is an ambitious attempt to explore the hyper-local relationship, on the night in question, between the young man who wants possession of the young woman’s body and the young woman who loses possession of her body to him. It is even more ambitious to explore the lives in question all around them, the life of the university, the life of fraternities, the life of friends, the life of the team and its fans, the life of the law, the life of the family.