Menstrual Products and the Bar: Advocacy Seeks to Create Equal Bar Exam Testing Conditions for Menstruators

By: Elizabeth B. Cooper, Fordham Law School; Margaret E. Johnson, U. Baltimore Law (visiting at American); and Marcy L. Karin, UDC David A. Clarke School of Law

We can all recall the stress, fear, and worry that accompany taking the bar exam.  About half of us also were anxious we would have to manage our period in the middle of this awful two-to-three-day ordeal.  Bar examiners across the country have made this prospect far more daunting than it needs to be by not treating menstruation as the natural biological process that it is.

Without proof of any test-taker having ever cheated using a tampon or pad, some states have chosen to stigmatize and potentially penalize people who have their periods with draconian policies prohibiting bar examinees from bringing their own menstrual products with them.  Other states have failed to adopt or communicate clear policies on the subject, increasing test-takers’ anxiety: one should not have to waste time researching the Bar Examiners’ hard-to-find policies  or calling their offices for answers—which may, or may not, yield consistent information. 

The harm here is four-fold: 1. It is wrong to make test-taking conditions more challenging for people based on the fact they menstruate; 2. It is wrong to limit test-takers to random products selected by Bar Examiners that could put test-takers’ health and menstruation management at risk; 3. It is wrong to exclude text-takers from any menstrual products simply because they do not use the women’s restroom; and 4. It is wrong to convey the harmful message that all people who menstruate are untrustworthy and do not belong in the legal profession. 

Some states, including Texas and Pennsylvania, prohibited exam-takers from bringing in their own menstrual products, offering to provide a limited and unpredictable set of products in the women’s bathroom.  (After much advocacy, Texas changed its rule for the September exam, though it is unclear if this is a permanent change.)  This does not solve the problems these states created in the first place by banning test-takers from bringing in their own products.  People who menstruate need their own products because menstrual products are not “one size fits all”: menstruaters require different sizes and levels of absorbency in their products to best fit their body and menstrual flow.  

Use of the wrong size product can lead to everything from pain and discomfort to toxic shock syndrome (if too large) and time-consuming, uncomfortable, and disruptive leaks (if too small). Further, some individuals require hypoallergenic products to protect against allergic reactions.  If not provided, applicants may experience vaginal itching or other problems caused by using allergen-containing tampons or pads inside or adjacent to their bodies.  All of these consequences are awful enough on their own; here, they create an unconscionable risk of derailing exam performance.

In addition, by limiting test-takers from bringing in their own products and then providing products only in the women’s restrooms, Bar Examiners relegate transgender men and nonbinary persons who may menstruate, and who may use the men’s restrooms or all-gender restrooms, to having no access to menstrual products during the bar exam.

Other states allow test-takers to bring their own products, but require them to be packaged in a clear plastic bag—with some states mandating that the product be unwrapped.  This last requirement makes no sense: the wrapper both keeps the product hygienic before being inserted into or placed adjacent to one’s body and provides an efficient way to safely dispose of used products, reducing janitorial staff’s exposure to bodily fluids.  Further, removing the wrapping exposes the adhesive on the bottom of some pads, rendering them practically useless when the menstruator tries to unstick them from the clear plastic bag.

As much as we want to destigmatize menstruation and eradicate the embarrassment and taboo of being seen with a tampon or pad, it remains an invasion of privacy to require test-takers to carry their products in a clear plastic bag, revealing to a proctor (and possibly a classmates, colleagues, or future opposing counsel) that one has or expects to get their period during the exam.  (One North Carolina bar exam test-taker reported that a proctor asked her if she “really needed those” while inspecting her plastic bag of menstrual products.)  Finally, this intrusion is even more painful for, and potentially outs, transgender men and non-binary law graduates who may not be public about their biological sex.  It may even set them up for bigoted harassment—during the biggest exam of their lives.

Other states allow test-takers to bring their own products and do not require them to be carried in a clear bag—but, they must check them with a proctor or retrieve them outside the exam room before heading to the restroom.  This “solution” means that a menstruating person with will have to take vital time away from the exam (or a break between sections of the exam) to obtain their menstrual products before using the restroom.  This “time tax” is as unacceptable as the other approaches described above.

At least some states treat people who menstruate without such bizarre suspicion, allowing them to bring in and keep their own products with them during the exam, and use them as needed during the test—without having to ask a stranger for their own personal possessions.  To date, there have been no known accusations of test-takers trying to do the impossible: write helpful information on a pad or tampon to give them an edge on the exam or smuggle in written answers inside the product’s wrapping.

The lack of uniformity of equity-based rules permitting access to one’s own menstrual products is unacceptable and must be changed. Thankfully, in the age of social media, law graduates have taken the lead on this advocacy, sharing the hurdles they are facing on social media and asking state Bar Examiners to eliminate these outrageous rules, largely under the #bloodybarpocalypse hashtag. 

Once we saw their posts, the three of us, working with fantastic former clinic students of Fordham and UDC, began advocating that all state Bar Examiners adopt better menstrual products policies.  We drafted a letter to the National Conference of Bar Examiners (NCBE)—co-signed by over 2800 law professors, law students, law school graduates, and lawyers in under 24 hours.  We also sent letters to Bar Examiners in each state that administered an in-person July bar exam and did not have a clear, acceptable policy in place.  All of these efforts led to some quick changes. 

The NCBE contacted state Bar Examiners and informed them that menstrual products were not included in the NCBE’s “prohibited paper” category and that test-takers should be able to bring in their own products.  The press started asking questions of the state Bar Examiners.  And state Bar Examiners began changing or clarifying their policies, with some confirming to examinees that they could bring personal menstrual products to the exam.  For instance, West Virginia Bar Examiners insisted that they permitted products in the exam room, even though their website said differently. Texas state Bar Examiners changed their policy from not permitting products to permitting them at its September exam.  (The state has issued contradictory statements, however, about whether this change is permanent.)

This positive change is not, however, uniform: even those states that have adopted equitable policies must be monitored to ensure they are adopting best practices.  In our efforts to get accurate and honest information from state Bar Examiners across the country, it has been deeply disconcerting to learn how many jurisdictions are silent on whether examinees may bring in their own menstrual products; have informal policies that contradict written statements about what items are allowed in the exam (e.g., not listing menstrual products in the list of items test-takers can bring in, but informally allowing them); or have stubbornly held onto their recalcitrant policies.  

Equally unacceptable, many Bar Examiners will not share the documentation that they say embodies their policies (e.g., generic letters to test-takers informing them what they can and cannot bring into the exam; postings on their web sites behind a security wall).  Without this proof, there is no accountability and the true practices of these states remain unknown.   

As we reach out to jurisdictions administering in-person exams in the coming months, our demands are clear: Bar Examiners must issue explicit policies permitting examinees to bring their own menstrual products in to bar exams, in an opaque container or on their person, and to publish these policies on their websites.  Other bar-related policies that can have disproportionate effects also must be changed.  For instance, examinees needing to pump their breastmilk must be given ready accommodations and bathroom access must not be limited as it affects both pumpers and menstruators.

To learn more about all of the advocacy efforts in this area, check out Menstrual Equity and the Bar Exam: Round Up of Op-Eds and Other Media Coverage on the Feminist Law Professors blog and follow the hashtag #MPandTheBar.  If you want to get involved in this work, let us know. And no doubt other activists working on the pumping and bathroom access issues would welcome assistance too. There is, unfortunately, plenty of work to be done.

Addressing Structural Racism in Law School: CUNY Law Faculty Issues Statement and Demand for Action

At law schools across the country, we are grappling with how to respond to internal and external conversations about the role of the legal profession in addressing structural racism, white supremacy, and racist policing. At CUNY Law School, Black faculty and non-Black faculty of color recently drafted and published a Statement and Demand for Action that was endorsed by the full faculty. The impressive and comprehensive statement outlines action steps, policy demands, and faculty dynamics that must change, addresses CUNY’s problematic relationship with the NYPD, and pushes for specific action to create an anti-racist campus.

As we collectively consider the path forward, what steps in CUNY’s plan resonate? What similar discussions are taking place at other law schools, and what is changing? Let us know in the comments.

 

Full text of the statement appears below this line: 

Statement and Demand for Action to Create an Anti-Racist Campus

By Black Faculty and Faculty of Color at CUNY Law

June 30, 2020

Black Faculty and Faculty of Color of CUNY School of Law issue the following statement, endorsed by the full faculty. We believe unequivocally that Black Lives Matter. We grieve with the families of Ahmaud Aubery, Rayshard Brooks, George Floyd, Tony McDade, Breonna Taylor, and every victim of anti-Black violence. We stand in solidarity with those who are demanding justice for their deaths, and who are fighting to dismantle white supremacy in all its forms, and specifically, systemic anti-Black racism. We join in solidarity with those in New York City and around the country who are challenging not only structural racism and racist policing, but anti-Blackness and racism in all of our institutions. The legal academy, including CUNY School of Law, are not exempt from these legacies of slavery and subjugation.

Statement and Demand for Action to Create an Anti-Racist Campus

As Black and non-Black faculty of color, we support the Movement for Black Lives Policy Platforms and stand in solidarity with the movement to defund and abolish police and redefine public safety and accountability through non-carceral investments in Black communities. Accordingly, we reject reforms that preserve the status quo.  As lawyers and educators, we acknowledge our profession’s history of upholding white supremacy and thwarting these demands. However, we are also uniquely situated to further them. Below are preliminary areas in which the law school must work in furtherance of these goals:

Our role in the legal profession: We heartily embrace the dual mission of our law school — to facilitate access to underrepresented communities historically excluded from the profession by white supremacy, and particularly anti-Blackness, and to act as an entrée into providing legal support to communities fighting against systems entrenched in white supremacy. Our view of social justice calls for a complete reimagining of the state and society. Accordingly, we seek to serve those students who will genuinely and fearlessly pursue transformative racial and economic justice.

We uplift and honor the legacy of W. Haywood Burns, the first Black law school dean in New York State, who was also the second dean of CUNY School of Law and tirelessly fought for Black liberation in and outside of the walls of CUNY Law. We are cognizant that among the central tools of oppression under white supremacy is the law, particularly as meted out by police, military and prosecutors of all stripes — be they police who criminalize or cage, police who alienize or deport, or purportedly protective agencies who demonize or separate families.

As Black and non-Black faculty of color, we are committed to dismantling these tools of oppression through a pedagogical approach that deploys critical and radical analyses to challenge our students and by offering a robust and humble praxis in service of movements that seek transformative and restorative justice.  We further reiterate the importance of affirming CUNY Law’s dual mission, from admission to graduation and beyond, through a commitment of  institutional self-reflection that is unflinching, inclusive, and continual.

Curriculum: Black students routinely call on the CUNY Law faculty to recognize and confront the negative impact that the traditional legal curriculum has had on Black students. We call on faculty to acknowledge the concerns of students of color and incorporate the feedback into their teaching.

To work towards becoming an anti-racist campus, we demand that, starting in Fall 2020, faculty mobilize pre-existing resources like the Race, Privilege, and Diversity and Professional Development committees toward educating ourselves across the administration and faculty — including adjuncts, visitors, tenure-track, and tenured faculty — on anti-Blackness, racial capitalism, state overreach into communities of color and abolition movements, particularly by engaging with work authored by Black people, incorporating critical frameworks like critical race feminism and queer theory, disability justice, abolition, and decoloniality, among others, throughout every course, and centering intersectional Black perspectives in the classroom.

To achieve these goals, we demand that CUNY Law provide the material resources so that all faculty may take the time necessary to engage in this learning and unlearning. To ensure accountability and transparency, we demand that these committees and others apprise the full faculty in writing each semester on their progress and any challenges encountered in this process.

Non-Curricular Policy Points

  • The various departments that constitute the law school make powerful choices that should be calibrated to center and uplift anti-racist objectives. We demand increased outreach to Black and non-Black students of color in admissions by the career planning office and heightened engagement with Black and non-Black alumni of color. Understanding that internships and initial jobs are key to a student’s ability to practice law over the long-term and practice in the frontlines of social justice movements, we also demand that the career planning office provide increased support to Black and non-Black students of color, particularly first-generation higher education students, whose resumes and cover letters can and should reflect the valuable perspectives and skills that each of our students has to offer the legal profession. We call on the relevant committees to report back on these developments to the full faculty in Fall 2020.
  • For too long we have participated in maintaining barriers to the legal profession even as we seek to break those down. Accordingly, we demand that, starting Fall 2020, the minimum LSAT requirement for all scholarships, including the Graduate Fellowship, be abolished and that the law school keep records of and make public the distribution of scholarship and summer fellowship funds by race. Similarly, we demand that admissions data collection be expanded beyond the required ABA categories to include more detailed, granular, and less reductive categories to better account for the multiple and diverse identities our students bring to the school. We call on the Admissions committee to report back on these developments to the full faculty on a bi-semesterly basis.
  • CUNY Law offers the services of a Nurse Practitioner and Mental Health Counselor on the premises, but otherwise, students are not offered health insurance and are instead invited to enroll in Medicaid programs during open enrollment each period. The limited resources made available are not sufficient for CUNY’s student body. Particularly given the dynamics described above, we call on the law school to consider allocation of funds to mental health services and other medical insurance.
  • Some of our academic standing policies — such as the threshold for academic probation — have a disparate impact on Black and non-Black students of color. We demand that those policies be immediately reconsidered and amended. We call on the Academic Standing committee to report back to the full faculty on these developments on a bi-semesterly basis.
  • We reiterate the importance of the role of Black and non-Black faculty of color on the faculty appointments committee. We call on the Committee on Committees to report back to the full faculty on developments to this end in Fall 2020.
  • Like many law schools, CUNY Law relies on faculty with non-secure positions for critical teaching positions. Our adjunct, visitor, instructor, and other non-tenure track faculty contribute immensely to our institution yet lack job security, opportunities for training and development, and other benefits that permanent faculty enjoy. We demand meaningful job security for our colleagues in these positions, especially Black and non-Black faculty of color. We call on all relevant committees to report back to the full faculty on progress to this end in Fall 2020.

Faculty Dynamics

  • Invisible institutional service and labor of Black and non-Black faculty of color: In 2019, 88% of lawyers were white and in 2018, 8 out of 10 law professors were white. CUNY School of Law boasts a more racially diverse faculty. We especially acknowledge the school’s laudable efforts to bring ten faculty of color, including 4 black faculty, onto the tenure track in the past 3 years alone. Nonetheless, we must do more to dismantle anti-Blackness in our governance. Black and non-Black faculty and staff of color, both at CUNY Law and throughout the U.S., routinely perform unrecognized labor beyond their job descriptions and in the service of their institutions, to confront anti-Blackness and other forms of racism. A wealth of research shows these contributions both sustain diversity and inclusion efforts in the academy and create additional demands that detract from the time required for fulfilling traditional expectations of all faculty.

Faculty of color devote significant time to mentoring and supporting Black and non-Black students of color, ensuring that our institution can retain the most marginalized students after they matriculate.  We advocate explicitly and in more personalized ways for Black and non-Black students of color, who suffer regular indignities, while we also abide microaggressions from colleagues, the profession, and indignities from broader society ourselves. We disproportionately bear the burden of ensuring equitable distribution of labor among faculty and scholarship and fellowship awards among students.

We highlight the lack of recognition (both in salary/pay and formal acknowledgement through evaluation, tenure, and promotion standards) of the amount of invisible institutional service and labor that Black and non-Black faculty and staff of color contribute to the law school.  We demand that similar to our institution’s commitment to recognizing advocacy work product as scholarship, CUNY Law change provisions in promotion, hiring, assignment to and distribution of labor on committees, and tenure policies to honestly and explicitly reflect the now hidden workload of Black and non-Black faculty and staff of color.  For example, we need more conscientious reappointment and annual review reporting policies and re-conceptualized categories of “teaching, scholarship, and service” across the faculty.  We call on all relevant committees to report back to the full faculty on progress to these ends in Fall 2020.

  • Recognition of privilege and power: We note the complex conditions inherent in participating in governance discussions. We demand that faculty be mindful of their privilege and hierarchies of power and reflect on the ways in which they participate in committees, faculty meetings, and other spaces — stepping back where appropriate.

Policing: Generations of faculty, students, and staff of color have repeatedly expressed concerns about the relationship between CUNY Law’s public safety and the New York City Police Department (NYPD). We demand that any memoranda of understanding governing the role or presence of CUNY Public Safety, of the NYPD, or of any other law enforcement agency on the CUNY School of Law campus be shared immediately with the full faculty, staff, and student body of the law school. In keeping with the demands and concerns of generations of students, faculty, and staff, we’re calling on CUNY Law School to discontinue any formal or informal relationship with NYPD and reimagine campus security by supporting the safety and well-being of the people on campus through divestment from punitive policing systems and investment in alternatives, including de-escalation, conflict resolution, and transformative and restorative justice training for all faculty, staff, and designated student representatives. The Public Safety committee was explicitly tasked with addressing these issues in the Fall of 2019. We call on that committee to report back to the full Faculty by October 2020 on progress to these ends.

Finally, we stand by Brooklyn College’s Black Faculty and Staff (BFS), Faculty of Color (FOC) Group, Latino Faculty and Staff (LFSO), and other caucus groups in the CUNY system, and we adopt our Brooklyn colleagues’ statement, slightly adapted to the law school’s context, as follows: This moment in our country is the culmination of systemic denial of dignity that typifies antiblackness. As lawyers fighting for racial and economic justice, we know that structural inequality cannot be addressed through empty statements of standing in solidarity and promoting “diversity.”

We advocate a transformational solidarity with an ethos of social justice that is action- oriented. Transformational solidarity means that the systemic racism, surveillance, and austerity that have become a normal feature of society is aggressively challenged on campus. Transformative solidarity understands that struggles against domination are shared and that anti-Blackness and austerity work in tandem and must be fought hand-in-hand. This is a fight that involves Albany and state politics but it begins with us on campus. We demand a shift in the current institutional logic of the administration that urges faculty and staff to do more for our students with less. By embracing this moment of profound possibility in response to this crisis, we hope to imagine and create a life-affirming campus we do not have, but require.

  • Chris Adams
  • Beena Ahmad
  • Naz Ahmad
  • Saba N. Ahmed
  • Bahar Ansari
  • Nermeen Arastu
  • Ann Cammett
  • Eduardo R.C. Capulong
  • Janet Calvo
  • Asima Chaudhary
  • Natalie M. Chin
  • Frank Deale
  • Farah Diaz-Tello
  • Pamela Edwards
  • Golnaz Fakhimi
  • Raquel Gabriel
  • Mary Godfrey-Rickards
  • Natalie Gomez-Velez
  • Victor Goode
  • Fareed Hayat
  • Julia Hernandez
  • Carmen Huertas-Noble
  • Chaumtoli Huq
  • Tarek Z. Ismail
  • Ramzi Kassem
  • Donna Lee
  • Degna Levister
  • Julie Lim
  • Gregory Louis
  • Lynn Lu
  • Shirley Lung
  • Princess Masilungan
  • Michelle Pinzon
  • Missy Risser-Lovings
  • Jeena Shah
  • Charisa Kiyô Smith
  • Nicole Smith
  • Yasmin Sokkar Harker
  • Cynthia Soohoo
  • Rafael Varela
  • Shomari Ward

 

We call on all of our faculty colleagues to endorse this statement, mindful that such an endorsement carries with it the responsibility of ensuring the statement’s implementation.

 

Endorsed by:

  • Mary Lu Bilek
  • Beryl Blaustone
  • Rebecca Bratspies
  • Sue Bryant
  • Janet Calvo
  • Nina Chernoff
  • Douglas Cox
  • Lisa Davis
  • Ryan Dooley
  • Dave Fields
  • Laura Gentile
  • Julie Goldscheid
  • Florence Kerner
  • JM Kirby
  • Jeffrey L. Kirchmeier
  • Sarah Lamdan
  • Stephen Loffredo
  • Matthew Main
  • Camille Massey
  • Andrea McArdale
  • Haley Meade
  • Laura Mott
  • David Nadvorney
  • Jason Parkin
  • Talia Peleg
  • Allie Robbins
  • Ruthann Robson
  • Joe Rosenberg
  • Merrick T. Rossein
  • Jonathan Saxon
  • Franklin Siegel
  • Richard Storrow
  • Erin Tomlinson
  • Sarah Valentine
  • Kara Wallis
  • Alan White
  • John Whitlow
  • Sofia Yakren
  • Deborah Zalesne
  • Steven Zeidman
  • Jean Zorn

MOVING FORWARD: DAY TWO OF DREXEL (and some favorite poetic quotes)

Congratulations are in order to Drexel University Thomas R. Kline School of Law, to Dean Dan Filler and to all who planned and presented at the virtual conference.  LEANING INTO UNCERTAINTY: ENSURING QUALITY LEGAL EDUCATION DURING CORONAVIRUS.  Previously,  I wrote a few thoughts about Day One of the conference.  In this post, I will focus on Day Two. But first, good news for those of you who were unable to join virtually: Drexel’s Associate Dean for Faculty Development and Research, Alex C. Geisinger, plans to create a digest of the ideas and questions raised and discussed at the conference. As law schools face the evolving uncertainty presented by both the virus and the conflicting responses of our state and federal leaders, they will benefit from the kind of collaborative efforts and stimulating exchange of ideas that the Drexel conference organizers skillfully facilitated.  As I work with my law school colleagues to plan an exciting and enriching Fall 2020 Semester, I am using the wisdom gained from the conference. A few maxims from yesterday’s gathering stayed with me:
  • Acknowledge and name your biggest WORRY.
  • In crisis, there is OPPORTUNITY.
  • There is always ANOTHER crisis, we just don’t know what it will be.
I was reminded by the wise words of William Butler Yeats

Things fall apart; the centre cannot hold  

Below I share five conference discussions which interested me. 1.  Relationships Still Matter and Matter Even More We know from LSSSE that for health and wellness and law students “Relationships Matter.”  How do we prioritize and facilitate those in a virtual or partly virtual world?
  • Phone call contact with each incoming 1L to find out worries, concerns, and hopes and model that relationships with individuals at the school matter.
  • Throughout semester, should teachers, staff, and administrators be polling the mood of the day or the week?
  • Set up a more systematic “social work case management system” to keep tabs on individual student, staff, and faculty wellness.
  • Provide in a simple format directly to each student in a personal phone call, meeting, or interaction a single document which outlines who the actual person and contact is when in trouble – academically, financially, emotionally, physically.  Maybe start this process over the summer using all employees  throughout the law school?  (CALI worked on a lesson that each school can use to modify the system or contact flow Lesson is at https://www.cali.org/lesson/18103)
  • Prioritize peer-to-peer opportunities for mentoring, collaboration, and synergy.
2.    Create Distinct “Places” for Students To Be
  • Virtual Libraries
  • Virtual Study Spaces
  • Virtual Social Spaces
  • Dedicated physical place for experiential learners to access supplies – not necessarily in clinic office space.
Makes me think of having students feel they have in the words of poet Mary Oliver’s a “place in the family of things”
Whoever you are, no matter how lonely, the world offers itself to your imagination, calls to you like the wild geese, harsh and exciting— over and over announcing your place in the family of things.
3. Anticipate Enforcing Safety and Health Regulations During A Polarized Presidential Election Season
  • Messaging and Communication of Community Rules
  • Incorporate into Student and Personnel Regulations
  • Harder to Anticipate What Will Happen in a Public School Setting
4.  What changes are Temporary? What Will Continue after the Pandemic? Although forced to engage in Remote Emergency Teaching, Professors became facile with useful pedagogical online tools and will incorporate them into their general toolbox.
  • Investment already made in technology will accelerate usage.
  • This was all going to happen anyway as part of Law School 2.0?
  • Increasing options for law students? For institutions growing online programming?
  • Will law schools and universities be more open to allowing staff to work remotely?
  • Will we better appreciate, celebrate, and prioritize the importance of presence and in-person relationship in Higher Ed Learning?
5. With the impact of COVID-19 elevating the issues of access disparity and the diverse needs of our students, how can law schools minimize the threat to learning continuity and academic success?
  • Continue to modify assessment and grading practices?
  • Financial Insecurity?
    • Loss of Employment
    • Food Insecurity  – Virtual Food Pantry
    • Rent and Housing
    • Alums offered physical space (offices) for students without good space to study and take exams.
  • Supporting caregivers and others with outside responsibilities.
  • Evolving accommodations for students with disabilities and immune-suppressed students as we change the manner and methods of teaching.
The above five are a poor summary of the many ideas and queries raised at the conference and thus I look forward to the report back. As we arrive at the end of May 2020, take courage and know we are all in this TOGETHER!
One isn’t necessarily born with courage, but one is born with potential. Without courage, we cannot practice any other virtue with consistency. We can’t be kind, true, merciful, generous, or honest.  Maya Angelou

Disparate Impact Magnified: Holding a Bar Exam during the COVID 19 Pandemic year of 2020

Yesterday the Harvard Law Review blog posted an excellent piece by a powerhouse group of legal educators who describe the prospect of a “licensing abyss” just when non-privileged folks and small businesses will need extra legal assistance to navigate the health, employment, housing and government benefits legal landscape.  On the same day, the ABA also urged states that cancel or delay the bar exam to  license law grads on an emergency basis “to help address the increase in legal needs for individuals and businesses caused by this pandemic.”

The Harvard blog authors note, in addition, the the reluctance of bar examiners and courts to find alternatives to the “closed-book, two-day exam anchored in 200 multiple-choice questions” despite the option of so many good alternatives that may well better predict competence to practice law. The authors ask,

Why do our courts and bar examiners place so much faith in this high-stakes exam to predict who is competent to practice law?

This question has puzzled readers and contributors of this blog particularly in light of the discriminatory nature of “speeded” exams  and the economic call for practice-ready lawyers. It is also puzzling when the profession itself is so deficient in diversity and standardized tests are used in ways that preference the privileged.

For 2020, the issue of disparate impact with respect to timed, closed-book exams anchored in multiple choice questions is further exacerbated by law students’ quarantine and sheltering conditions while studying for the bar exam- see the excellent piece in the NYT on how students returning home to attend classes removes the veneer that all are equal. Even more disturbing and heartbreaking is the information surfacing this week about the horrific disparate impact of COVID19 deaths on Americans of color.  Pre-existing disparities in trauma, housing, employment, healthcare, opportunity, discrimination and historical DNA exacerbate the distress and fatalities for communities of color and for those whose families and friends are populated by people of color.  Some of us – particularly our students of color – will be affected in disproportionate ways and in ways no one can predict or control over the course of the coming months.

As the authors of the Harvard Law Blog wrote, “Crises challenge assumptions and demand action. For this year, emergency licensing based on diplomas and periods of supervised practice would offer proof of competence.”  To do otherwise would demonstrate an inability of our profession to adapt and experiment, and a shocking refusal to recognize and correct disparate impacts.

Is Mandatory P/F An Opportunity to More Accurately Assess Competency to Practice Law and For Bar Admission?

As our knowledge of COVID19 and its impact becomes more extensive each day, each workplace, profession and community is facing some common and some unique questions. Those working on the front lines in hospitals – such as several of  my relatives in NYC and NJ – are experiencing the kind of trauma, shortages, emotional overload and duress that is usually experienced in wartime. It can only be weakly imagined by the rest of us.   For those of us not experiencing  people suffering and dying in front of us on a daily basis, some less horrific choices are before us:  How do we modify “business as usual”?  How do we evolve and adapt with each days new tsunmai of information and data?  How do we support our best selves and our core values in this historically momentous time on our shared planet? 

Before turning to the topic of grading and assessment, I want to pause to give a shout-out to my home institution. Our multi-talented leader Dean Alicia Ouellette has been holding  community town halls every day since Friday March 20th. (BTW Dean Ouellette  just shared on Facebook  that she had been suffering from “presumptive COVID 19” fever and symptoms but thankfully is now symptom free). During our daily town halls, my faculty colleagues and I have expressed our wonder and gratitude for the  character, resilience and grit of our law students who are balancing so much right now, and facing so many financial, tech-related, health and extended family burdens. Our students’ engaged and forgiving response to “tech-curious but not necessarily tech-savvy” teachers and their community-minded empathy for those hardest hit keeps the faculty motivated and inspired.

One of the COVID19 decisions for legal educators involves whether and how we assess and sort — which in reductive  vernacular means “grade and rank.”  Maintaining appropriate expectations, options, rigor and excellence in law teaching  may assume primacy for those  who have been long focused on ensuring that law students receive real value for the time, talent and treasure they expend on law school.   For others focused on fairness in law placement,  transparent employer signals about how they will view Spring 2020 legal education may be most influential.  For those concerned about our profession’s  reputation for lack of wellness and lack of diversity, those concerns are elevated at this moment when those least advantaged are most hard pressed.  For those struggling with equity, there are so many permutations and consequences of COVID19 – whichever choice a school makes – that voting faculty could become as immobilized as Chidi Anagonye on THE GOOD PLACE. (BTW Good idea for escape television for those who love philosophy or Kristen Bell).

On the other hand, might this be a moment to look for the opportunities for reform and improvement that only come when the status quo is disturbed and rocked to its foundations as is happening now.  Here is what I am thinking:

Might Mandatory P/F force educators and employers to admit that traditional law school grading and ranking is a misleading and reductive proxy for measuring potential success as a lawyer?

Could it force employers to use other ways to learn about the WHOLE STUDENT with all her strengths, gaps, and individual aptitudes including the situation she faced during law school?

Might it accelerate a move to a more qualitative than quantitative assessment of each law student? Or, at least might it prioritize learning which enables a school to assemble a portfolio of student recommendations ( demonstration of knowledge, skills, aptitudes, and professionalism)?

Foundational resources include of course Educating Lawyers, Best Practices in Legal Education, and Building on Best Practices: Transforming Legal Education in a Changing World, which also provide helpful wisdom points. In addition, looking back through the dozen or so years of this blog’s existence, there are lessons from which we can pull core knowledge and core values to assist in our continued educational deliberations at this turbulent time. 

CORE KNOWLEDGE AND REFLECTIONS

Valuing Legal Education over Sorting – For example, focus on the difference between assessment and grading.  Educating Tomorrow’s Lawyers conferences have brought employers, law schools, and legal education stakeholders together to tackle the disconnect between our current sorting systems (primarily used to help elite employers looking for a simple and reductive initial screening system) and the needs of society and most employers for competent new attorneys and the needs of students and the profession for fairness.

Focus instead on formative and evaluative assessment of law students and graduates

Focus on growth mindset, on reflection and learning from mistakes or experience

Recognize the limits and problems with GPA’s or LSAT scores to create a more competent profession with more able and diverse learners.

Acknowledge that the media and the academy is still stuck in a mindset that focuses on sorting methods rather than on better preparation and assessment of law students to serve clients and society.

Class rank does not predict who will become a competent, healthy and ethical lawyer

Effective Education includes

CORE LEARNING VALUES

Growth Mindset 

Inclusion and Diversity

Student-centered Learning  and the Introduction to the original Best Practices – “One of our basic tenets is that law schools should become more student-centered”

Wellness  

Collaboration and Innovation

Integrity 

Character 

Justice

Situational Excellence

There is a common theme here: P/F with alternative assessment information and measures should be seen not as temporary emergency expedients to “sort and rank”, but rather as long overdue components of a better educational program and more nuanced assessment paradigm.

I would love to hear your thoughts in the comments below.  I wish all our readers and citizens of our little blue planet moments of peace, love, safety, and compassion. May someone be kind to you today and let’s pay it forward.

 

 

 

World Mental Health Day and Multicultural Awareness

October 10th is World Mental Health Day, instituted by the WHO to raise “awareness of mental health issues around the world” and mobilize “efforts in support of mental health.”  Many members of our profession, are challenged by depression, anxiety and other mental health disorders.  In 2016, the ABA created the National Task Force on Lawyer Well-Being partly in response to the increased ubiquity and pressure of the digital age.

The ubiquity of email, text and other technological advances, all of which make the advent of the fax machine feel downright quaint, have only exacerbated our legal responsibilities. The pressure is constant. And in the midst of taking care of everyone else, we all too frequently ignore our own stressors and health in the process.  Over time, the subtle adverse effects go unnoticed and mask the existing crisis …..

The Task Force was conceptualized and initiated by the ABA Commission on Lawyer Assistance Programs (CoLAP), the National Organization of Bar Counsel (NOBC), and the Association of Professional Responsibility Lawyers (APRL). In August 2017, the Task Force released The Path to Lawyer Well-Being: Practical Recommendations for Positive Change (Wellness Study).  Many state bar associations – such as New York’s – highlighted the need for lawyer health. 

Law students, too, are subject to similar ubiquitous demands of the digital age while competing, learning, interning, seeking permanent employment, representing clients under supervision, and, for many, accruing debt. My law school, like many others, takes seriously the need to educate and support law students’ well-being and has been fortunate to receive funding from a loyal alum and board member for a Wellness Initiative. This week our Dean of Students and her office have planned a series of educational and supportive events.

Mental Health Week

Another project run by students partnered with alums helps with the economic stress of having to purchase professional clothing and suits. And our Center for Excellence in Law teaching sites provide links to self-help apps for students .

This focus on well being is not simply an administrative task. It is incumbent upon law teachers to discuss these subjects in doctrinal classes, seminars and experiential learning courses while mainstreaming ethics, professional identity and multicultural awareness into the curriculum.  Wellness intersects with several of my law school’s learning outcomes  for JD students. In particular, wellness and mindfulness are important tools in mitigating implicit bias and facilitating students ability to

Demonstrate an awareness and understanding of the knowledge, skills, and values necessary to be competent and effective lawyers in a multicultural world. (Albany Law JD Learning Outcome #6)

I experimented with linking the two in class this week. I started the class by reminding students that it was Mental Health Awareness week and the reading a poem by Mary Oliver to get them to slow down.  We also meditated for about 1 minute and 30 seconds by placing a raisin on our tongue and using that time to “Uni-task” by just focusing on the  smell, taste, feel and effects of saliva on the raisin.

We discussed vicarious trauma, implicit bias and how it affects Science.  For homework students had taken implicit association tests,   acquired some new cultural knowledge, read about transgender killings and viewed Hidden Injustice: Bias on the Bench.”  We then discussed how Implicit Bias might work against victims/survivors of domestic violence or privilege abusers which led into discussions of voir dire and Batson.  Students expressed surprise that judges cared about Implicit Bias and that NYS now requires a 1 credit CLE in Diversity and Inclusion. 

We ended class with discussing how to mitigate our own implicit biases.  This is where well-being and mindfulness come in:

  1. Reflection is a tool for mitigating bias. Emphasizing the importance of reflection as a life-long lawyer habit is something we teachers can embrace. Thus mindfulness is not only an important part of well-being, it is a tool to become a more competent lawyer.
  2. When we are tired and exhausted, we are more apt to rely on unconscious patterns, which swings the door wide open to implicit bias reactions and away from thoughtful and considered responses.

The students appeared to understand the connection and to acknowledge its potential. In the final moments of class, I led the students in a LION yoga pose. This was a real treat for me.  As the days get shorter and mid-semester stress hits, there is nothing better than seeing law students laugh at themselves (and me) as they loosen up their tight facial and jaw muscles.

How are you honoring Mental Health Awareness Week at your school or organization?  Do you see the link between mitigating bias and wellness/mindfulness?

After All These Years: Another Bar Exam Over, Another Entering Class, but Still a Disconnect between the Licensing Exam and What We Need Lawyers to Be and Do

I was never a Journey fan but I truly am astonished that after all these years of preparing lawyers for practice, and after two years of an unprecedented undermining of  the rule of law in our nation, law schools still live with a disconnect between the profession’s  licensing exam and what business, government and society needs lawyers to be and do, which includes protecting  the rule of law. 

The National Law Journal recently discussed two new major studies which will analyze whether the current exam is the best measure of new lawyer competence.  The National Conference of Bar Examiners (NCBE) is in the midst of a three year study  to “ensure that the bar examination continues to test the knowledge, skills, and abilities required for competent entry-level legal practice in the 21st century.”  (Hmm, continues? that’s a bit biased) and has already held 30 listening sessions.  

The second study, “Building a Better Bar: Capturing Minimum Competence” is an initiative of  the Institute for the Advancement of the American Legal System in partnership with Ohio State Law Professor Deborah Merritt, and aspires to develop a “fair, evidence-based definition of minimum competence” to improve the current licensing process.  Funded by Access-Lex, the researchers:

will be holding 60 focus groups in 12 locations around the country. While these focus group participants will primarily be new lawyers, we will also hold a number of specialized groups with supervisors. Additional specialized groups will include only women and only people of color, as well as groups in rural areas; traditional job analyses can mask the views of these lawyers, yet their perspectives are essential to create a more fully representative view of minimum competence and how to test for it effectively. Through these focus groups, we will be able to capture key information from a diversity of perspectives and provide concrete data on the definition of minimum competence that the profession can use to improve the bar exam and how lawyers are licensed.

 

Readers may remember that IAALS has provided helpful research in the past through its Foundations for Practice  research, which identified the  competencies over 24,000 legal employers value in new hires (most of which go untested by the current licensing process) as well as the evaluation of the graduates of the Daniel Websters Honors alternative to the bar exam in “Ahead of the Curve:  turning Law Students into Lawyers

I suppose I should be delighted that more studies are being launched. They are addressing the exact issues so many of us have raised for decades. However, my reaction is uncharacteristically pessimistic.  (Readers here who have tolerated my enthusiastic use of exclamation points and emphasis will agree it is uncharacteristic).  Perhaps it is the August humidity. Perhaps, it is the sorrow surrounding our nation after a week of grief from senseless gun violence But more likely, it is the fact that I am feeling frustrated that we have already studied this to death! For example, working with state bar associations The Foundations for Practice Project already studied new lawyer competencies with 24,000 lawyers from all 50 states participating and found

… the foundations that entry-level lawyers need to launch successful careers in the legal profession.

In a first-of-its-kind survey, we asked, “What makes a new lawyer successful?” More than 24,000 lawyers from all 50 states answered.

What we learned is that new lawyers need more than IQ and EQ to be successful. They also need CQ: Character Quotient. In fact, 76% of characteristics (thinks like integrity, work ethic, common sense, and resilience) were identified by a majority of respondents as necessary right out of law school.

Beyond character, new lawyers are successful when they come to the job with a broad blend of legal skills, professional competencies, and characteristics that comprise what we call the “whole lawyer.”

So why is the NCBE, who clearly has a stake in the outcome, refusing to respond to the outcome of that 3 year old study but instead promising only to do its own study. JEESH! We tweak here and there, we add more pro bono or experiential requirements, but no one truly influential will admit that our insistence on anchoring the gateway to the profession to a timed, written exam instead of clinical excellence is the problem.

Starting as early as 2008, this blog has discussed the problems with the bar exam and its role as an unhelpful, anxiety producing, discriminatory, skewed, and unnecessarily speeded, gate-keeping device.  For a sporadic history of posts between then and now, in fairly chronological order, click on the links below.

Did You Know That “Bar Courses” Don’t Matter? 

New Article: No Excuses Left for Failing to Reform Legal Education

Working with State Bar Associations on Best Practices

Bar Passage and Best Practices for Legal Education

One BAR to rule them all?

The Daniel Webster Scholar Honors Program

NYSBA Task Force on the Future of the Legal Profession Report

New Requirements for Bar Exam Stress Clinical Education

Existential Crisis and Bar Exams: what is really cruelest?

The Bar Exam Inhibits Curricular Reform

NEW YORK STATE BAR ASSOCIATION VIGOROUSLY OPPOSES PROPOSAL TO BRING UBE TO NY THIS JULY

Preparing Students for the Multistate Bar Exam

Musings on the Bar Exam and Legal Education’s Attitude toward it

Bar Exam Musings, Part II: Skillfully Changing the Bar Exam Narrative

Experts in the Legal Field Question the Bar Exam…

What’s going on in California? “TFARR- recommended” 15 credits of competency training

New York Proposes “Experiential Learning Requirements” as Condition of Licensure: CLEA and NYS Bar Committee Respond

Examining the Bar

Keeping an experiential identity in bar passage reform

Whither Clinical Courses and Bar Passage – by Prof. Robert Kuehn

DO LAW SCHOOLS ADEQUATELY PREPARE STUDENTS FOR PRACTICE? SURVEYS SAY . . . NO! – Robert Kuehn, Washington University School of Law

Professor Merritt’s Blog post on attorney discipline and bar exam WORTH A READ!

Studying Better Ways to Test Bar Applicants for Minimum Competence: Another Reason to Care about the California Bar Exam (Besides the Cut Score Debate)

Scholarship on Bar Exam Alternatives Needed

ABA Commission on Future of the Profession & ABA Vote on Bar Passage Proposal

Drafting Exams With Test-Taking Speed in MindConcrete Suggestions for Bar Exam Reform

We have to talk about the bar exam

What can Law Schools Learn about Bar Passage from Medical Schools’ Approach to Studying Students Who Struggle with Licensing Exams?

More Resources Re Teaching, Learning, and Bar Passage

A Fresh Look at the Uniform Bar Examination

Letters raise concerns about changes to the bar pass accreditation standard

Time to Remedy the Ills Afflicting ABA Council’s Standard 316 Proposal

Are the Students Failing the Bar Exam Today Canaries in the Coal Mine warning us of a More General Need to Change Legal Education?

Shifting the Focus of Legal Education Back to Just That: Education

How Practice Tests Reduce Anxiety in Bar Preparation and the Exam

Quite a listing, huh? I suspect that the IAALS and Merritt project will provide us with extraordinarily helpful insights into measuring minimum competence. But political clout is also needed. Will this BLOG simply be adding more posts for years to come on the unfairness and inappropriateness of a slightly modified, unnecessarily stressful, timed, bar exam — a continued hazing tradition?  I hope the NCBE and other institutional influencers proves me wrong.

New Blog on Leadership for Lawyers, Law Students, and Legal Educators

Readers of this blog may be interested in following the new blog Leading as Lawyers. Recognizing that all lawyers are called upon to lead, the blog explores leadership and professional development topics of interest to law students, lawyers, and legal educators. The first posts on this new blog have explored topics like self awareness, leadership in developing diversity in an organization, and addressing novel situations with authenticity, competence and candor.

The Kids Are Alright

Regardless of your position on gun regulation, the work of the students of Marjory Stoneman Douglas High School in Parkland, the latest victims of yet another act of senseless gun violence, has to be inspiring, if not a little humbling.  They are putting adults to shame, literally and figuratively.  Their eloquence, passion, and even their social media smarts, are creating a moment of reckoning in this country.  The so-called “adults in the room” cannot hold a candle to these students’ capacity to mobilize, empathize, reach across difference, and move a nation to action.

Many seem surprised by this. As an educator who teaches many millennial law students, I am not.  I see my students accomplish amazing things, and am constantly inspired by their intelligence, willingness to roll up their sleeves, and go to work.  Moreover, as a former law student myself (although, admittedly, nearly three decades ago), I saw students work together in the face of resistance, and the stories I have read about the work of the Parkland students and the thousands more who have taken up this fight resonate and are reminiscent of work that has occurred and will continue to occur, carried out by eager and passionate students who won’t take no for an answer and continue to “Call BS” when necessary.

What we are seeing in action is perhaps the greatest student project ever undertaken.  From the outside looking in, it looks like the students are working collaboratively and sharing the spotlight among themselves and with others outside their immediate circle.  They appear incredibly supportive of one another, are pressing ahead in support of a cause larger than themselves though grounded in their personal experiences of tragedy, and are reaching out to others to build bridges across geographies and communities. They are accomplishing slow and steady wins that help to build momentum, sustain their energy, and create confidence to take on the next challenge. In short, they are doing all of the things that a group needs to do in order to produce meaningful change.

In academia, many fear the group project.  But it is how the world functions, and how humans have been operating for millennia.  In fact, our capacity for cooperation is probably what makes us human.

Such group activity can also can have its downsides, and not just in terms of the free rider who benefits from the work of others.  Rather groups can take on a life of their own, and distorted and harmful collective understandings can emerge as a result.  In the wake of the collective tragedies of Nazism and Stalinism, “groupthink” became a source of serious academic study. But on the brink of World War II, Hungarian sociologist Karl Mannheim wrote about how industrialization and urbanization was impacting our collective capacity for this sort of groupthink as follows: “life among the masses of a large town tends to make people much more subject to suggestion, uncontrolled outbursts of impulses and psychic regressions than those who are organically integrated and held firm in the smaller type of groups.  Thus industrialized mass society tends to produce the most self-contradictory behavior not only in society but also in the personal life of the individual.”

The students of Parkland and the many others who are emerging into the broader spotlight are organizing themselves at the local level, school-by-school and community-by-community, and helping the rest of us see the disastrous and ruinous groupthink that has captured the collective imagination around gun control.  And they are doing it in remarkable ways, sustaining their collective energy in the wake of tragedy.

Recent research into how groups can work effectively, carried out by Google in what it called “Project Aristotle,” identified a series of common components in effective groups, including the following:

  • Dependability: getting things done on time and accurately;
  • Structure and Clarity: having clear goals and clear roles;
  • Meaning: the work is personally important to the team members;
  • Impact: team members think their work matters and will bring about change;
  • Psychological Safety: team members feel safe to take risks and be vulnerable in front of others.

From the outside looking in, the Parkland students and the many others who have been working for meaningful responses to gun violence who have gained greater attention because of the Parkland tragedy, appear to meet these criteria for successful groups.  They pulled off hundreds of simultaneous rallies across the country in a matter of weeks.  They could not have done so had they not had some structure and clarity to their work, did not see the importance of their work, and did not derive meaning from it.  And it would appear that they are incredibly supportive of each other, both within their own groups and in relation to each other.  For example, during Saturday’s march in Washington, when a student, Samantha Fuentes, who was wounded in Parkland, was addressing the crowd, she paused a moment, turned away from the lectern, and vomited.  Other students rushed to her side, urged her to keep going.  She emerged from being doubled over to proclaim: “I just threw up on international television and it feels great!”

The students leading this campaign should be an inspiration to everyone who wants to bring about change, and can help us understand how we can do it collectively, because it is in such group efforts that real change is possible. I have written about my own experience as a law student working on a case, brought by a law school clinic, that challenged the U.S. government’s treatment of Haitian refugees in the early 1990s, a case which ultimately went to the Supreme Court.  In ways that echo the work of the Parkland students, but by no measure on the same scale or with the same impact, the team effort there, led by students, invoked many of these themes as well, and can help show how law schools can harness the collective capacities law students have for bringing about change.

In an oft-quoted phrase, Margaret Mead said to “never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it’s the only thing that ever has.”  How such groups should actually go about doing that is another question, and the Parkland students and the thousands of others who have been inspired by their work, or who have finally gotten the attention they deserve, may just show us the way.

Jumpstart Outline: Ideas to Help You Make a Plan to Teach “Public Citizen” Lawyering in Any Law School Class

Best Practices for Legal Education and Building on Best Practices urge legal educators to help students develop their professional identities. One aspect of a lawyer’s professional identity is performing the role of “public citizen.” The Preamble of the professional conduct rules in most jurisdictions explains that lawyers are “public citizen having special responsibility for the quality of justice.”

We can help students begin to understand what it means to be a “public citizen” if we address the issue in concrete ways across the curriculum. The following outline provides some ideas for integrating public citizen lawyering into your course.  This is a long list, but there should be an idea or two that will work for your course, whatever its focus.

Use (or Adapt) Existing Course Materials, Exercises, and Activities to Make Explicit Connections Between the Course and the Lawyer’s Work as a Public Citizen

  • Find the Public Citizen Lawyers in Your Current Textbook. Are there lawyers in your textbook that are fulfilling the public citizen role? Discuss them when you see them.
  • Use Course Materials to Help Students Identify and Discuss Injustice. Help students become justice-seeking lawyers by helping them identify injustice. In the chapter Social Justice Across the Curriculum (in Building on Best Practices), Susan Bryant identifies seven questions that can be used in any class to help students explore injustice.
  • Discuss Needs for Law Reform in the Subject Area of the Course. When you encounter areas of needed law reform in course material, discuss how lawyers can play a part in making that change.
  • Use Writing Assignments to Give Students Experience Advocating for Law Reform. For writing assignments that require students to recommend or draft proposed changes to the law, make the explicit connection that this one way that lawyers fulfill the public citizen role: they advocate for improvement in the law. Provide them avenues to publish, discuss, and otherwise publicize their work.
  • Lawyer Speakers Should Be Asked to Discuss How they Serve. If you ordinarily invite lawyers to class to talk about course related topics, prompt them to talk about the things they do to serve the public and the legal profession.
  • Integrate Social Justice Issues Into a Course Exercise. Is there an exercise you currently use to develop knowledge or a skill in which you can introduce an issue of social justice? For thoughts on designing and debriefing that exercise, see Susan Bryant’s chapter Social Justice Across the Curriculum in Building on Best Practices: Transforming Legal Education in a Changing World, at pp. 364-66
  • Prompt “Public Citizen” Discussion in Journaling Exercises. Prompt students to reflect upon public citizen issues in their course journals. What are areas where they see a need for law reform? What could they do to address those issues now and in practice? Suggest that students talk to lawyers (with whom they work) about how they serve the public and the profession. Ask the student to reflect on those discussions in their journal.

Create New Activities and Exercises that Integrate Course Material and the Lawyer’s Role as Public Citizen

  • Prompt Students to Create a Professional Development Plan.Particularly in classes where students may have common career goals (such as in an externship or capstone class), prompt students to write about their values, interests, and strengths, and to make a plan for the future, including a plan for service.
  • Integrate Pro Bono or Service Learning Into the Class. Find an opportunity for the class to represent a client or clients or serve a community organization or population that is connected to the subject matter of the class.
  • Create a Law Reform Activity for the Class. Engage in action as a class to reform the law in an area of need connected to course material. For suggestions see Mae Quinn’s article Teaching Public Citizen Lawyering: From Aspiration to Inspiration, 8 Seattle J. for Soc. Just. 661 (2010).
  • Require Students to Interview a Lawyer. The interview should cover course-related material as well as the lawyer’s service to the poor, the public, and the profession.
  • Organize a Book Club. Identify a non-fiction law-related book with a connection to your course material and that provides a springboard for discussing the lawyer as public citizen. A great book about pro bono service and its impact on both client and lawyer is William H Colby’s Long Goodbye, The Deaths of Nancy Cruzan. A book that prompts lawyers to think about the ingredients of a happy life – including pro bono work and “serving a larger social purpose”– is Nancy Levit and Douglas Linder’s book The Happy Lawyer: Making a Good Life in the Law.

Share Information about Yourself as a Public Citizen

  • Be Inspiring. Tell an inspiring story about what another lawyer’s service meant to you or about what your service may have meant to someone else – and how that made you feel.
  • Talk About Yourself as a New Lawyer. Tell stories about your experiences as a new lawyer attempting to fulfill the public citizen role. What did you learn from those activities? Did you have mentors that inspired or encouraged you?
  • Note the Times When You Struggled. Share the times in your career when you have struggled with balancing the demands of practice, your personal life, and serving the public. What worked for you and where do you continue to struggle?
  • Incorporate Examples Connected to Course Subject Matter. Weave in examples of what you currently do to serve the public and the profession and explain why you serve.
  • Revise Your Faculty Webpage to Emphasize Your Public Citizen Work. Include your pro bono service activities, service to the profession (committees, CLEs, etc), and board service on your law school profile – not just your C.V.
  • Promote Your Service to the Public and Profession on Social Media. Alert your law school communications person to stories about your service activities so that students and alumni can learn about what you do through law school social media. Also, promote these same things in your own use of social media.

Fulfill the Public Citizen Role with Students Outside of the Classroom (Not Necessarily Connected to a Course)

  • Provide Access to Justice. Participate with students in organized pro bono events or service activities.
  • Improve the Law. Enlist students to help you prepare to testify or do research about a suggested change in the law – and bring the student along when possible.
  • Serve the Profession. Ask students to help you with a CLE – from preparation to attending and presenting with you. Or invite students to participate in a bar committee or bar event with you.
  • Identify a Need and Fill It. Work with student organizations you advise to identify a group with interests related to the organization. Find out their needs and make a plan to partner with them.

 

Professor Merritt’s Blog post on attorney discipline and bar exam WORTH A READ!

Our blog has often posted about many issues related to licensing lawyers, experiential requirements for admission, the monopolizing power of the NCBE and the pros and cons of the UBE.  Thus, I recommend to our readers an excellent post by our blogger friend Professor Deborah Merritt over at Law School Cafe on bar exam scores and lawyer discipline. Professor Merritt analyzes an article by Pepperdine Professors Robert Anderson and Professor Derek Mueller entitled The High Cost of Lowering the Bar Exam.   Professors Anderson and Mueller opine that “lowering the bar examination passing score will likely increase the amount of malpractice, misconduct, and discipline among California lawyers.” Merritt objects to any causal inference noting,

Two key facts, however, weigh strongly against drawing that type of causal inference. First, as Anderson and Muller point out, “[t]here is virtually no discipline in the first 10 years of practice.” If the bar exam measured qualities related to attorney discipline, one would expect to see disciplinary cases emerge during those 10 years. Wouldn’t attorneys with marginal competency (as measured by the current bar exam) reveal their deficiencies during their early practice years?

Second, attorney discipline almost never rests on lack of knowledge about legal doctrine, poor reasoning skills, or bad writing–the skills currently measured by the bar exam. Levin and her colleagues reported that attorneys most often received discipline for failing to communicate with clients (20.0%), lack of diligence (17.93%), and failure to safeguard client property (11.26%). Only 4.14% of disciplinary sanctions related to “competence”–and even some of those cases may have reflected incompetence in areas that are not tested by the bar exam.

My favorite comment by Professor Merritt provides another example from which we should not infer causality (however tempting it might be to some of us who have been hurt by patriarchy),

We should not exclude individuals from a profession based on qualities that merely correlate with misconduct.

To underscore that point, consider this: The strongest predictor of attorney discipline is the y chromosome. Male attorneys are much more likely than female ones to be disciplined. If we want to use correlations to reduce instances of attorney discipline, it would be much more efficient to ban men from the profession, subject them to special character exams, or require them to achieve a higher bar exam score than women. Those actions, of course, would raise special issues of gender discrimination–but they illustrate the drawbacks of predicting malfeasance based on correlations.

These questions and assumed correlations are important ones. Many defend the decreasing bar passage statistics as appropriate market correction to prevent “undesirables” from entry into the profession — a consumer protection argument. However, as Professor Merritt points out, there is so much more to unpack here. For example, most misconduct challenges occur against solo practitioners or small firms. This raises overlapping socio-economic questions: which lawyers could be perceived as easiest to challenge, which lawyers have the best legal defense teams, and which kind of clients have the most reason to complain.

After teaching for over 28 years and observing which graduates pass the bar on the first try and which do not , I am skeptical of the Anderson-Mueller argument. I would love to see the NCBE and other scholars engage in a socio-economic analysis of bar passage and of disciplinary misconduct.

Why Don’t People Complain? Implications for Defense Counsel. And Some Practical Ethics Hypos for Students.

 

The presidential election campaign this year has provided several teachable moments for law students and lawyers and this post focuses on one of them.

Unless you have been hibernating for the past few weeks, you know that a number of women have accused Republican candidate Donald J. Trump of sexual misconduct.  Mr. Trump and his supporters have denied the claims, arguing that the fact that the women did not complain at the time of the alleged incidents undermines their credibility.

Rather than focusing on the merits of these particular claims, this post uses dispute resolution literature to describe why people often don’t complain, especially about sexual misconduct and discrimination.  Then it discusses implications for defense counsel and their clients of the lack of complaints by people with potentially valid claims.  And finally it offers some hypothetical situations for law students to consider about how they would act when representing defendants.

Naming, Blaming, and Claiming

The following two classic, companion articles analyze how complaints do or do not occur.  William L. F. Felstiner, Richard L. Abel, & Austin Sarat, The Emergence and Transformation of Disputes: Naming, Blaming, Claiming . . . , 15 Law and Society Review 631 (1980-81);  Richard Miller & Austin Sarat, Grievances, Claims and Disputes:  Assessing the Adversary Culture, 15 Law and Society Review 525 (1980-81).

To illustrate the evolution of disputes, consider the case of Lilly Ledbetter v. Goodyear.  Ms. Ledbetter worked for Goodyear from 1979 until she retired in 1998.  Shortly before she retired, she received an anonymous note with the salaries of three men doing the same job as she did but who earned 15% to 40% more than her.  She sued Goodyear and the jury awarded her about $3.3 million, which was later reduced to about $300,000.  In 2007, in a 5-4 decision, the U.S. Supreme Court ruled that she could sue only for actions occurring within the prior 180 days, and that she did not prove that discrimination occurred within that period.  In response, Congress enacted the Lilly Ledbetter Fair Pay Act of 2009, providing that the statute of limitations for presenting an equal-pay lawsuit begins on the date that the employer makes the initial discriminatory wage decision, not at the date of the most recent paycheck.

Naming – “Perceiving Injurious Experience” (PIE).  The first step is that potential complainants must perceive that they have suffered an injury.  Until Ms. Ledbetter received the anonymous note, she did not perceive that she had experienced an injury.  After receiving the note, she perceived that she had been injured by receiving lower compensation than similarly situated men.

I picked the Ledbetter case because it dramatically illustrates this first step in the process that can lead people to complain (or not).  Many other situations aren’t so clear.  If someone bumps into you in public, for example, you may feel that your body or dignity has been injured – or you may just write off the experience as a normal part of life.

What is perceived as injurious is subjective and a matter of social definition.  In the Mad Men era, before sexual harassment was legally and socially recognized as wrong, for example, female employees experienced bosses’ sexual conduct as a hazard but not the source of personal injury.

There are individual differences in propensity to perceive things as injurious.  Some people regularly feel victimized by a lot of things that others would simply accept without much thought.

Some, including the courts, might not recognize certain experiences as injuries but people may feel that they were injured nonetheless.

Blaming – Feeling Grievance.  Blaming is the next step in what Felstiner et al. call the “transformation” of PIEs into disputes.  Blaming is when a person believes that someone or some entity is at fault for the person’s perceived injury.  Of course, people don’t always blame someone else for their injuries.  Instead, they may consider an injury as just a fact of life, an act of God, or their own fault.  Sadly, some blameless victims blame themselves for acts that abusers are solely responsible for.  And people sometimes unfairly blame others for things that the others are not responsible for.

In Ms. Ledbetter’s case, once she learned of the disparity in pay, she blamed Goodyear, her employer.  While this may seem like an obvious response these days, we used to justify paying men more than women on the theory that they had to support their families.  Given that mindset, many women accepted that this was just “the way things are” and didn’t particularly blame their employers.

Claiming – Demanding Redress.  Of course, when people blame others for their perceived injuries, they may demand some form of redress.  These demands may take many forms such as payment of money, restoration of the prior status quo, cessation of injurious behavior, and apologies, among others.

Sometimes people make claims even when they don’t believe that they are injured and/or don’t blame others.  For example, people who commit insurance fraud presumably don’t believe that they have been injured but demand payment.  Indeed, some wealthy individuals and business fear (sometimes with good reason) that some people file fraudulent claims against their targets assuming that the claimants can get payments to make them go away.

In Ms. Ledbetter’s case, she demanded payment from Goodyear.  However, people who blame others may make no demands for many reasons.  Some believe that it wouldn’t be worth the effort because they believe that their demands wouldn’t be satisfied or the time and effort required would outweigh the benefit.  Some fear negative consequences such as retaliation or damaged reputations.  For some, the process of pursuing a remedy would keep them stuck in dealing with the problem when they would just prefer to move on with their lives.

Disputing – Pursuing Rejected Demands.  Some people respond to complaints by promptly taking action satisfying the complainants, at least enough for the complainants to stop pursuing their complaints.  Of course, some people reject the complaints in whole or part and the complainants continue to pursue the complaints.  Pursuing unsatisfied complaints is disputing.

In Ms. Ledbetter’s case, Goodyear did not satisfy her demands and she pursued the dispute all the way to the Supreme Court.  Sometimes unsatisfied complainants consult lawyers and/or file lawsuits, but not always.  In addition, complainants may drop complaints for many of the reasons that some people do not make complaints at all.

Empirical Data on Naming, Blaming, and Claiming.  The Miller and Sarat article presents data from the classic Civil Litigation Research Project about patterns of naming, blaming, and claiming in what they call “middle-level” disputes, i.e., those involving claims of at least $1000.  (When the data were collected in 1980, this was the equivalent of almost $3000 in today’s dollars.)  The article uses helpful graphics of pyramids to illustrate the patterns of attrition as some people who blame others do not complain, and some complaints do not turn into disputes, and some complaining disputants do not consult lawyers or file suits.

The following table shows how patterns of attrition vary in different types of problems.  The data refer to the percentages of situations for people who perceive injuries.  It shows the percentages of these situations that lead to complaints, disputes, and use of lawyers and court.

indisputably-133-why-dont-people-complain-table

 

 

The general pattern in the study was that 71.8% of grievances became complaints against others, 44.9% of the grievances were disputed, in 10.3% of the grievances the grievants consulted lawyers, and in only 5.0% of the grievances, the grievants filed lawsuits.

For situations that would be considered torts, there was a higher percentage of situations that turn into claims (85.7% vs. 71.8%) and a much smaller percentage that turned into disputes (20.1% vs. 44.9%).

The pattern in situations involving perceived discrimination was quite different.  There was a lower-than-average incidence of complaints (29.4% vs. 71.8%).  However, almost three quarters of discrimination complaints turned into disputes (21.6 / 29.4) whereas less than a quarter (20.1 / 85.7) of tort complaints were disputed.

What accounts for this difference?  For torts, the insurance system is designed to receive and resolve complaints and there generally isn’t much stigma or risk of retaliation for filing complaints.  For the large number of relatively small complaints, insurance companies and other defendants typically prefer to pay the claims promptly than spend resources disputing them.

People with discrimination grievances may doubt that they will receive satisfaction by making complaints.  Issues of discrimination often are ambiguous and difficult to prove. Filing complaints may invite scrutiny of the grievants’ own behavior.  Indeed, employees often are wary of being branded as “troublemakers” and this may be particularly true for discrimination complaints.  They risk subtle and not-so-subtle forms of retaliation, which could make their situations worse.  So the low rate of complaining should not be surprising.  People who have decided to complain presumably have decided to do so despite the risks just noted and once they have done so, they may be particularly determined to pursue their claims.

The data analyzed by Miller and Sarat is more than 35 years old but I suspect it generally reflects modern reality.  I haven’t looked for recent studies, but if you know of any, please share them in a comment below.

Complaining About Sexual Misconduct

Since the publication of the Access Hollywood tape of Mr. Trump’s comments about his interactions with women, a number of women have come forward publicly to describe what they experienced as sexual misconduct by Mr. Trump.  He has categorically denied all the claims, argued that the women have improper motives, and threatened to sue the complainants.  He has argued that the fact that they did not make any demands on him soon after the alleged incidents casts doubt on the veracity of their claims.  I do not express any opinion here about the merits of the particular claims about and by Mr. Trump.

Instead, let’s consider why people who perceive that they have been injured by sexual misconduct often would not make demands on the people who committed those acts.

The Trump controversies have prompted an outpouring of reaction by women who felt injured but didn’t press any claims as well as by analysts of these phenomena.   Columnist Dahlia Lithwick provided an historical review, which may be particularly useful for younger law students.

Clearly, many women identified with the experiences described by Mr. Trump’s accusers.  Soon after the Hollywood Access tape was released, author Kelly Oxford tweeted, “Women: tweet me your first assaults,” under the hashtag #notokayWithin a few days, 27 million people had responded.  Similarly, the hashtag #Whywomendontreport has also attracted a lot of responses.  Many women never told anyone of their perceived injurious experiences except perhaps some close friends or relatives.

In an article entitled Women Know Why Donald Trump’s Accusers Stayed Silent for So Long, Rachel Sklar wrote, “Women who dare to come forward to report stories of being sexually molested find their stories doubted, their behavior questioned, their credibility impugned.  Did they imagine it?  Do it for the attention?  Were they lying about it (because reporting sexual assault is always the path to riches and respect, right?)  Why didn’t they stop it?  The litany of responses is familiar by now:  You were flirting, weren’t you?  What were you wearing?  My, that was a short skirt.  Wait, were you drinking? Boys will be boys! . . . This is grotesquely magnified when accusations are leveled at famous or powerful men. . . . Not only are women expected to receive and submit, but they are expected to laugh off behavior that is otherwise invasive and threatening, to ‘not make a big deal’ about it.”

Mr. Trump’s attacks on his accusers reflect a general fear about complaining.  Liz Plank wrote that “Trump isn’t just trying to attack these women;  he’s signaling to others who may come forward.  By metaphorically naming and shaming them, and implicitly inviting his followers (who have a history of horrifying harassment) to do the same, he wants to terrify any other women from coming forward too.”  Indeed, Mr. Trump has threatened to sue his accusers.  This reinforces a message to women that it generally is dangerous to complain even when there aren’t explicit threats.

Slate writer Christina Cauterucci wrote, “Female friends and acquaintances, including several Slate colleagues, have told me that Trump has resurfaced deeply buried or forgotten memories of sexual assault, some stretching back to childhood. . . .Trump has also caused some women I know to rethink past sexual violations they’d previously explained away to themselves as misunderstandings or petty instances of ‘boys being boys.’  Trump’s talk and his accusers’ allegations are awakening long-dead zombies in our memories, forcing us to confront assaults we’d never labeled as such.”

The Miller and Sarat data and the recent outpouring of personal testimonies demonstrate the low level of complaining about perceived sexual misconduct and discrimination.

This is a serious problem for many reasons.  It is simply wrong that large classes of people feel injured but are too intimidated to present their claims.  This violates our notions of procedural justice, which are based on the assumption that people have reasonable opportunities to complain and be heard fairly.  Although some of unclaimed grievances may not be valid, presumably a substantial proportion of the grievances have real merit.  Even people with good-faith claims that are not valid are entitled to present them.  The wrongdoers’ pattern of behavior violates our social policy embodied in laws to protect people from sexual assault and discrimination.  Meritorious grievances that are not pursued constitute an undeserved transfer of wealth to wrongdoers from the people they have victimized.  And the low level of enforcement of legal protections effectively encourages people to continue a pattern of wrongful behavior because of the low probability that victims will complain.

These are complex problems that deserve serious efforts for social remedies.  These issues are beyond the scope of this post, however.

Implications for Defendants and Defense Counsel

In our legal system, parties are assumed to advance their own interests, not advance any other party’s interest or social policy.  Under the logic of the adversary system, it is up to would-be plaintiffs to complain if they wish, on the assumption that truth and justice will be produced through the adversary process.

This theory may approximate reality when the parties have roughly equal power and there aren’t serious impediments to use of the system.

The theory doesn’t work so well when there is a serious mismatch of power and social deterrents to use of the dispute resolution system as in the case of many sexual assault and discrimination grievances.

Of course, would-be defendants have no duty to encourage grievants to bring complaints against them.  Indeed, that would seem crazy in what Professor Jonathan Cohen calls The Culture of Legal Denial, 84 Neb. L. Rev. 247 (2005), where the “normal practice within our legal culture is for injurers to deny responsibility for harms they commit.”

Indeed, some defendants and their lawyers regularly use the Bart Simpson defense strategy: “I didn’t do it, nobody saw me do it, there’s no way you can prove anything!”

Defense counsel may take any legally permissible actions to resist charges against their clients.  ABA Model Rule of Professional Conduct 3.1 states:  “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous . . ..”  Rule 4.4(a) states:  In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person . . ..”  Tactics that are not prohibited are permitted.

Mr. Trump frequently has used litigation, as documented by USA Today, and frequently has threatened suit, as he did with the accusers of sexual misconduct and the New York Times for publishing an article about two of the accusers.  The American Bar Association declined to publish a report on Mr. Trump’s litigation history reportedly out of fear he would sue them (though ABA officials say that the report violated its policy of being non-partisan).

According to the Washington Post, “When Donald Trump has needed a legal brawler, he has often turned to Marc Kasowitz, a hard-edged Manhattan attorney whose website cites a description of him as one of the most ‘feared lawyers in the United States.’” The general counsel for one of Mr. Kasowitz’s clients was quoted as saying, “When there’s a tough, call it rough-and-tumble kind of litigation, those are the guys I would go to. . . . They’re not afraid to get their hands dirty.”

Of course, many defendants and their lawyers routinely take tough positions in litigation, which is considered normal in our legal culture.  Should they act any differently in cases involving sexual misconduct or discrimination because of the greater vulnerabilities described above?

As a matter of legal ethics, going easier on such (would-be) plaintiffs would be problematic because of lawyers’ duty of loyalty to their clients.

Yet some lawyers may find it distasteful to aggressively litigate against such vulnerable parties, especially if they believe that their claims are valid.  Rule 1.16(b)(4) states that a lawyer may withdraw from representation if “the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.”  Although withdrawal is possible under these circumstances, probably very few lawyers take this route.

Practical Ethics Hypos

The following are hypothetical questions for law students to consider.  Although they might seem most appropriate in professional responsibility courses, they go beyond technical issues of legal ethics.  Professors might also use them in a range of legal practice courses as well as courses on gender, discrimination, and business operations, among others.

These questions involve businesses in which you, as their lawyer, have strong evidence that they have committed wrongdoing against vulnerable parties.  Although this post has focused on allegations against Mr. Trump, the following questions do not involve him because people have such strong feelings about him that responses may be colored by those feelings.

Instead, consider run-of-the-mill corporate giants or substantial mid-size firms.  Focus primarily on grievances by people who perceive that they have been injured by sexual misconduct or discrimination committed or approved by high-level business leaders.

In a case of alleged serious sexual misconduct that you believe occurred as alleged, which, if any, of the following tactics would you use?

  • Use the Bart Simpson strategy, essentially taking the approach for your client, “He didn’t do it, nobody saw him do it, there’s no way you can prove anything!”
  • Vigorously and visibly investigate the accuser’s past, in part to intimidate her from pursuing her claim.
  • Interview the accuser’s family, friends, and associates about the alleged incident, in part to embarrass the accuser and pressure her to drop the case.
  • Make public statements consistent with your legal position, challenging the accuser’s motives, character, and behavior.
  • Vigorously litigate the case, increasing the accuser’s costs and dragging out the process, in part to pressure her to accept a heavily discounted settlement.
  • Threaten to sue the accuser for defamation or actually do so.
  • Take actions that may violate the ethical rules but that are commonly used in practice and are unlikely to result in professional discipline or malpractice liability.

What other actions might you be willing to take or not in this case?  What principle distinguishes actions that you would or would not take?  How would your responses differ, if at all, if the case involved other issues such as fraud, product liability, health and safety violations that business leaders initiated or at least knew about and failed to stop and that involved plaintiffs with relatively few resources?

Now add the following assumptions to the preceding hypothetical case.  You are a recent law graduate, a year into practice, and you have a job with a law firm that regularly represents large businesses.  The job market is tight and you feel lucky to have your job.  You like your job and hope to become a partner in the firm by demonstrating your abilities and value to the firm and its clients.  You generally are comfortable with the positions your firm takes on behalf of its clients but you feel uncomfortable in this case.  You are afraid of the reaction by senior lawyers in the firm if you express your concerns or suggest withdrawing because the client is a major client for your firm and it adamantly wants to pursue a hard-line strategy to discourage other possible plaintiffs from filing suit.

How do these assumptions change your responses to the preceding questions, if at all?  What can you do to preserve both your professional opportunities and your personal integrity?

Discuss.

 

New Article: “When Interests Converge: An Access-to-Justice Mission for Law Schools”

These are challenging times in law schools.  Law school enrollments remain low and graduate unemployment remains high.  Many claim there are too many lawyers to go around and law schools are just making matters worse by continuing to educate prospective lawyers.  But the problem is not really that there are too many lawyers.  Indeed, roughly 80% of low-income and half of middle-income Americans face their legal problems without a lawyer.  Too many face their legal issues without the benefit of legal representation at a time when too many law school graduates are unemployed or underemployed.  In order to overcome this paradox, I argue in a forthcoming piece in the Georgetown Journal on Poverty Law & Policy,  that law schools should embrace an access-to-justice mission, one that would help focus law school teaching, scholarship, and service on the justice gap and help align the interests of those who want to ensure everyone has access to a lawyer who needs one with those who want law schools to continue the important work of educating the next generation of lawyers.  Below is the abstract to “When Interests Converge: An Access-to-Justice Mission for Law Schools.”  A draft can be downloaded here.  Comments welcome.

In recent years, law schools have faced a crisis brought on by the external forces of technology, automation, and legal process outsourcing that has translated into poor job prospects for their graduates, and, in turn, a diminution in the number of students interested in attending law schools.  Such external phenomena are joined by internal critiques of law schools: that they have failed to educate their students adequately for the practice of law and have adopted dubious strategies without a defining mission, all at a time when the market for legal services seems to be changing, perhaps dramatically. Paradoxically, while graduates face diminished job prospects, there is still a vast justice gap: the inability of millions of Americans to obtain legal assistance when facing a legal problem.  There is thus an interest convergence between those who might want access to a lawyer and the law schools that strive to educate the next generation of lawyers and the ones after that.  This Article uses this interest convergence—and the late Derrick Bell’s “Interest Convergence Theory” as a lens through which to view it—as an opportunity for law schools to retool their missions to confront the access-to-justice crisis facing many Americans.  It argues that law schools should embrace an access-to-justice component to their missions to help increase demand for legal services, re-establish the value of legal assistance to the community, restore the importance of the legal profession in preserving and extending societally important rights and interests, and improve the demand for legal education.

 

. . . because there is no social justice

Yesterday, I reviewed a student reflection that broke my heart a little bit. The student responded to my prompt, which asked her to comment on her summer work experience in the context of advancing social justice, by describing an intractable problem with her indigent client. She described hours upon days of work attempting to resolve an unjustified power shutoff for the client, and she ended her piece by explaining that she would continue to work with this case, this issue, and this client “because there is no social justice.”

My response to the student in part, was as follows:

As I sit here preparing to write a piece about the disintegration of our criminal “justice” system, prompted by yet another set of police homicides of men of color this week, your comment that “there is no social justice” certainly resonates with me. The need for us as lawyers, mentors and teachers to reflect with our students about that harsh reality, and to get up and do our jobs as public interest lawyers again the next day, is sometimes overwhelming. I share your frustration, which is not even the right term. I often feel in working with domestic violence victims in my clinic as if we are just rearranging deck chairs on the Titanic. The fact that we do not stop, though, is what keeps the ship of justice afloat. Battered, barely making it, but afloat. I fear it is at greater risk now than ever in this nation, though, and advocates like you will be critical to affect change from inside. Please keep doing what you are doing.

I like the sound of that metaphor about a ship of justice. But I’m frankly not sure if it is even apt.  What ship? What justice? As my colleague Leigh Goodmark noted yesterday, “As soon as I saw the news about Dallas this morning, I thought, I can’t. I just can’t face another day of violence and death and destruction.

That’s privilege. I don’t have to face the reality that when my son leaves the house, he might not come back. That my husband–or I– could be pulled over for a broken taillight and shot as we reached for identification. I don’t have to go into the streets to protest and die trying to protect my children from sniper’s bullets. Because I don’t live in black or brown skin, with a threat hanging over me every minute of every day.

That’s why we have to keep looking. Keep talking. Keep posting. Keep letting our friends of color know that we hear them, we see them, we value their lives, and we love them. Keep demanding better from our police, our government, ourselves. Our friends don’t ever get to say, I can’t. We shouldn’t either.”

Our privilege as law professors goes beyond skin color, but make no mistake, it is seeped in elitism.  Today I am using that privilege on this blog to say these words. That is all. It is not enough. It will never be enough. But I won’t stop. I don’t know if there is social justice. But I know there is a movement towards it, and I want to be a part of it.

 

Building on Best Practices now available as eBook

Are you trying to:

  • Develop a meaningful law school mission statement?
  • Understand new accreditation requirements, learning goals, and outcomes assessment?
  •  Expand your experiential offerings?  Decide whether to use modules or courses?  An on-site clinic, an externship, or community partnership?
  •  Teach ALL of your students in the most effective ways, using a full range of teaching methods?
  • Add to your curriculum more of the professional identity, leadership, intercultural, inter-professional and other knowledge, skills, and values sought by 21st century legal employers?
  • Lead thoughtfully in the face of the challenges facing legal education today?

These and other topics are addressed in Building on Best Practices:  Transforming Legal Education in a Changing World,  now available in ebook format from LexisNexis at no charge.

The print version is not yet out.  LEXIS-NEXIS is taking advance orders for $50, plus shipping.  BUT we understand that they will make one copy available to every US legal educator for free upon on request.  Details on this and international availability still to come.

Thanks, and congratulations, to book project sponsor Clinical Legal Education Association (CLEA), the more than fifty legal educators who participated as authors, and the countless others who assisted as readers and in numerous other ways.

And, a huge shout-out to my wonderful and talented co-editors, Lisa Radke Bliss, Carrie Wilkes Kaas, and Antoinette Sedillo Lopez.

%d bloggers like this: