A lawsuit seeking to force a Rutgers University legal clinic to
disclose client information under New Jersey's open-records act poses a
serious threat to the work of public law schools elsewhere, several
higher-education associations argue in friend-of-the-court briefs
recently filed in the case.
The lawsuit was brought against Rutgers University and the Rutgers
Environmental Law Clinic by a real-estate developer whose plans to
build an outlet mall were unsuccessfully opposed by a citizens' group
that the clinic had represented. Although the developer, Sussex Commons
Associates, has not stated why it is seeking a wide array of the
clinic's records dealing with the citizens' group, it has accused the
group of receiving financial support from the owner of two existing
outlet malls in the region and has criticized the clinic's expenditure
of "a significant amount of public funds" in opposing the mall
development.
Among the law-clinic records being sought by Sussex Commons are
minutes of meetings, documents received from expert witnesses, and
various billing and payment records associated with the clinic's
representation of the anti-mall group, Citizens for Responsible
Development at Ross's Corner. Sussex Commons initially sought the
records from Rutgers in May 2006—as the battle over the outlet mall was
still being waged—and filed its lawsuit that September, after the
university's custodian of records refused to give up any of the
documents requested.
A New Jersey Superior Court judge, Travis L. Francis, dismissed the
lawsuit last year in a decision holding that the state's public law
clinics are exempt from its open-records act because they need to
protect the confidentiality of those they represent. Sussex Commons,
which has argued that New Jersey's open-records law should be
interpreted as fully covering public institutions like Rutgers, is
challenging Judge Francis's decision before a state appeals court.
Teaching Law Students a Lesson
The friend-of-the-court briefs that higher-education associations
have filed on behalf of Rutgers show that they see the dispute as
involving much more profound stakes than proximity to an Old Navy or
Cinnabon.
In one such brief, filed late last month, the American Association
of University Professors, the Clinical Legal Education Association, and
the Society of American Law Teachers have joined in arguing that a
ruling in the developer's favor would seriously harm the ability of
public law-school clinics to provide students with hands-on training.
Academic Freedom Comes Under Fire at Law-School Clinics
By PETER SCHMIDT
Many faculty members at law-school clinics feel pressure from their
bosses to steer clear of cases that might incur the displeasure of
donors, lawmakers, or others who could complicate life for their
institutions, the results of a recent survey suggest.
The survey of about 300 faculty members at law-school clinics found
that nearly 10 percent reported having been urged by their law school's
dean to avoid a particular case, and nearly 15 percent report having
been urged by their clinic's director to avoid one. The survey,
conducted by an associate dean at the University of Michigan Law
School, was discussed at a conference on academic freedom held last
week by the American Association of University Professors.
Faculty members were not asked why they had been urged to avoid
cases, leaving open the possibility that in some situations their
bosses were motivated purely by educational or financial concerns. And
most respondents did not report any interference.
Yet responses to other survey questions suggest that worries about
political repercussions could play a role in decisions to shy away from
certain cases. Well over half of the respondents characterized their
law school's dean as at least somewhat concerned with how their cases
would be viewed by alumni or potential donors, and more than a fourth
described their deans as caring at least somewhat about how cases are
perceived by politicians, state courts, their state's bar association,
and groups representing businesses or other interests.
The survey was done last year by Bridget M. McCormack, associate
dean for clinical affairs at the University of Michigan Law School and
a co-chair of an Association of American Law Schools panel focused on
political interference in law-school clinics. Ms. McCormack has not
formally published her findings, but they have been circulated among
legal educators and were made available to The Chronicle.
The survey's results shed new light on the long-running debate over
the proper role of law-school clinics and the question of how much
freedom their faculty members have — or should have — in their work,
which often involves providing legal representation to the indigent.
Clients
may like the new apprenticeship programs being tried by a few law
firms, but associates taking a pay cut to participate may not be as
enthusiastic.
Carter Phillips, managing partner of Sidley Austin's Washington, D.C., office, tells the National Law Journal
that law students interviewing for jobs may be unwilling to give up the
money. "If you're a top-flight law student and you talk to one firm
offering $80,000 or $100,000 to take extra classes and then you talk to
another firm offering $160,000 to do work you can bill to a client, I
don't see that as much of a choice," he said.
Howrey managing partner Robert Ruyak disagrees. His firm announced last week
that associates participating in its new apprenticeship program will
earn $100,000 the first year and $125,000 the next year, along with a
$25,000 bonuses to start and another $25,000 to complete the training.
The firm is hiring 20 associates to participate, down from 27 the
previous year. During the two-year training period, they will attend
classes, shadow partners and get additional experience from pro bono
work or secondments to clients.
Ruyak says the program will keep new associates away from the grunt
work of document review, which will be handled by staff attorneys.
Associates will do less client work during their training, and when
they do handle client matters, it may not be billed to the clients.
"The old model is broken," he told the NLJ.
Other law firms that have or are adopting apprentice programs
include Drinker Biddle & Reath of Philadelphia; labor law firm Ford
& Harrison; Frost Brown Todd, with offices in Ohio and Kentucky;
and Strasburger & Price in Dallas.
Howrey expects the apprentice program to cost between $3 million and
$4 million, including lost billable hours and training costs, the NLJ
says. But the firm’s first-year salary costs will drop from $4.16
million to $2.5 million.
How academics dress for a lecture doesn't affect how students perceive them — at least in the long run.
That was the conclusion of a study at North Hennepin Community
College that measured students' perception of an instructor based on
what type of clothing she wore to her lectures.
Yasmine L. Konheim-Kalkstein, who holds a doctorate in educational
psychology, grouped four sections of an introductory psychology course
she taught last fall into two "casual" classes and two "formal"
classes, each of which were held at different times and on different
days.
On the first day of the study, Ms. Konheim-Kalkstein wore jeans, a
drab-colored T-shirt, and gray sneakers to the casual class, and black
pants, a button-up, black-and-white-striped shirt, and a small heel to
the formal class. Students were surveyed about their initial
impressions of her approachability, her ability to teach, her age, and
her teaching style.
Dressing casually "felt very awkward at first, but I got over it
very quickly," she says. "As soon as you start lecturing you forget
about it."
For the next four weeks, she continued the routine, but often wore
the same shirt — either a button-up blouse or a plain T-shirt — with
both her casual and formal outfits. Students were surveyed again at the
end of four weeks.
The data showed that Ms. Konheim-Kalkstein's clothing made a small
difference in perceptions of her on the first day of class, with those
students in the "formal" classes finding her more qualified and
approachable than did those in the informal classes. But four weeks
into the semester, wearing less-formal clothes had about the same
effect on student perceptions as wearing formal clothes.
Ms. Konheim-Kalkstein says she still prefers teaching in formal
clothing, but now she feels more comfortable wearing casual clothes in
lectures as well. She says she'd like to do further research that takes
into account gender differences, as well as the environmental context
of the college or university.
"I work at a college where professors wear a variety of things," she
says, "Some wear suits and ties and others wear shorts, so regardless
of which class I was dressing for, I didn't really stand out."
That would not be true at every institution, Ms. Konheim-Kalkstein
observes. "My husband is going to start teaching at West Point," she
says. "If he showed up in sneakers, I think he would have a much
stronger reaction there from his students."
On
the Cutting Edge: Charting the Future of Sexual
Orientation and Gender Identity Scholarship
AALS Annual
Meeting January 6-10, 2010 in
New Orleans, Louisiana
Thirty
years ago, Rhonda Rivera published “Our Straight-Laced Judges: The Legal
Position of Homosexual Persons in the United States,” the first
comprehensive law review article of its kind. Since then, the sexual
orientation and gender identity legal literature has exploded, with hundreds of
articles considering all imaginable aspects of the law’s relationship to gender
identity and sexual orientation. At the same time, political demands of
lesbians, gay men, bisexuals, and transgender have both multiplied and moved to
the center of cultural debates, and the body of case law addressing these issues
has likewise grown exponentially. What, then, are the next steps for legal
scholarship?
The program’s aim is
to highlight new issues, new theories, possibilities for linking theory and
practice, and visions of the field for the decade(s) to come.
Because the program
aims to spark new ideas, this Call for Papers is for short essays – from 1000 to
2000 words – rather than for full-length papers. Submissions will be
considered for two purposes:
Program participation
– One submission will be selected for presentation at the SOGII program at the
Annual Meeting, which will be held from 10:30 a.m. to 12:15 p.m. on Saturday,
January 9, 2010, in New Orleans. The selected author will have to rely on his
or her own institution for funding to attend the conference.
Publication –
Up to twenty submissions will be selected for publication in a special
volume of the Sexuality & Law Journal(published at Tulane Law
School) dedicated to the panel topic.
The SOGII Section
executive committee will serve as the selection committee. For both purposes,
essays must be no longer than 2000 words, including footnotes.
The deadline to
submit a draft essay is Tuesday, September 1, 2009. Essays can be
revised, subject to the approval of the Journal editors, through the fall
semester, although 2000 words will remain the outer length limit. Please submit
the draft paper to Professor Suzanne B. Goldberg, Chair of the Section on Sexual
Orientation and Gender Identity Issues, as an attachment to an e-mail at
suzanne.goldberg@law.columbia.edu. Submissions will
be reviewed by members of the SOGII Section's Executive Committee. Decisions
will be communicated by late September 2009.
Glen Weissenberger, the popular dean of DePaul University’s College of Law, has been ousted — and he claims it was because he exposed “inaccurate’’ information given by the school to its accreditors.
Weissenberger, the school’s dean since 2002, said in an e-mail to law school staff that he was fired for alerting the American Bar Association that DePaul administrators had recently given the ABA “inaccurate” information on its funding.
But DePaul spokeswoman Denise Mattson on Friday disputed Weissenberger’s claims. She said he was terminated because the relationship between the dean and university administrators was “poor and it wasn’t improving.”
DePaul Provost Helmut Epp said in an e-mail to to faculty and staff this week that “the working relationship between the dean and the administration had deteriorated to the point where it had become difficult to accomplish the college’s work, hence my recommendation to the president for this action.”
Epp, who praised the Law School’s accomplishments under the dean’s tenure, didn’t offer any specific examples in his email of that deteriorating relationship.
Weissenberger couldn’t be reached for comment Friday. But in his e-mail to the law faculty and staff, he said “I want to assure you that I was not terminated for any wrongdoing of any kind.”
He said his firing was “based specifically” on a June 16 letter he sent to the ABA claiming the university gave wrong information about the distribution of law school tuition funds during its accreditation process. He claimed the university had violated an agreement to give 75 percent of tuition funds paid by law students back to the law school — a charge the university denies.
A group of mostly law school students — both past and present — is circulating a petition in support of Weissenberger’s reinstatement.
“It has upset many of us and has disheartened us that the university has made this decision,” wrote DePaul’s Student Bar Association President Patrick Tran. “Though the university’s reasoning has been vague, the university has always been resistant to Dean Weissenberger’s initiatives to improve our law school.”
Weissenberger was appointed to a second five-year term in 2007. Before coming to DePaul, he spent 27 years teaching at the University of Cincinnati Law School.
He remains a tenured member of the DePaul faculty.
An interim dean of the College of Law has been hired, and his name will be made public early next week, Mattson said.
Epp has scheduled a private meeting with the law school’s faculty and staff Monday to answer questions about the administration’s decision to fire Weissenberger and about the future of the law school.
In 1996, when Barack Obama was running for the Illinois Senate, he was asked in a survey by Outlines, a gay community newspaper in Chicago, if he supported same-sex marriage. Unlike most candidates, who merely indicated yes or no, Obama took the unusual step of typing in his response, to which he affixed his signature. Back then not a single state permitted same-sex marriage, and sodomy was a crime. Nonetheless, Obama took a position on the progressive edge of the Democratic Party, and he did so with unmistakable clarity: "I favor legalizing same-sex marriages, and would fight efforts to prohibit such marriages."
Since then, as Obama traced his dazzling arc to the presidency, his stance on gay rights has become murkier, wordier, less courageous, more Clintonian. During his 2004 US Senate bid, he stated that he supports domestic partnerships and civil unions instead of same-sex marriage. When speaking to gay audiences, he explained his new position as "primarily just...a strategic issue." But on bigger stages he cited his Christian faith as grounds for his belief that marriage is between a man and a woman, a view he reiterated during the 2008 presidential election even while he also asserted, inconsistently, that religion should not dictate a state's approach to gay rights.
As president, Obama has made similar equivocations on gay rights. As a senator and as a candidate, he won the vocal support of the vast majority of gays and lesbians by calling for the repeal of both the Defense of Marriage Act (DOMA) and the miserable failure that is "don't ask, don't tell," and by supporting full federal partnership rights (but not same-sex marriage) and the Employment Non-Discrimination Act (ENDA), which would make it illegal to fire someone because of his or her sexual orientation. But he has so far spent no political capital to turn these promises into reality. Quite to the contrary, Obama's slide hit what one hopes will be a nadir on June 12 when his administration filed a brief defending the legality of DOMA by comparing same-sex marriage to incest and pedophilia.
It is impossible to accept that a president who owes so much to movements for civil rights and social justice, never mind the Obama of 1996, believes in such right-wing bigotry; the only plausible explanation can be one of political calculation. The memory of Bill Clinton's early failure to integrate the military, as well as the aftermath of the 2004 election, when same-sex marriage was blamed for John Kerry's loss, looms large in the minds of top Democratic strategists. Guided by veterans of the Clinton-era culture wars like chief of staff Rahm Emanuel, the prevailing wisdom in the White House seems to be that a forward push on gay rights can only endanger what the Democratic Party hopes will be a lasting majority and would squander precious political capital better used on issues like healthcare and economic reform.
Such logic, however, is quickly becoming obsolete. Six states have legalized gay marriage. Democrats like Connecticut Senator Christopher Dodd and New Jersey Governor Jon Corzine have renounced support for civil unions and embraced same-sex marriage, with Corzine having done so as a centerpiece of his re-election bid. Gen. John Shalikashvili, Clinton's chairman of the Joint Chiefs of Staff, and a cadre of military leaders have publicly called for an end to "don't ask, don't tell." Huge majorities of Americans, 89 percent in a 2008 Gallup poll, support workplace rights for gays and lesbians. Steve Schmidt, John McCain's campaign manager, and former Vice President Cheney have announced their support for same-sex marriage; and Utah's Republican governor, Jon Huntsman, came out in favor of civil unions, a switch that has not eroded his popularity in Mormon country one bit. At this rate, Obama is in danger of being outpaced on gay rights not just by the American people but by the nonsuicidal wing of the Republican Party.
There is still time for a course correction. In the wake of an uproar from gay activists and progressives, Obama signed a memo extending limited benefits to partners of gay federal employees (but not healthcare or inheritance rights); reiterated his intent to repeal DOMA; and voiced support for legislation that would, in the interim, give healthcare to same-sex partners of federal workers. But words are no longer enough. Now is the time for Obama to act with the full authority of his office and his character to pass a gay rights agenda that, in the end, will be seen as neither particularly radical nor particularly partisan but as a simple matter of fairness under the law.
A promising first step would be to fast-track passage of ENDA. A previous version passed the House by a vote of 235 to 184 in 2007, with thirty-five Republicans in favor, before dying under the threat of a Bush veto. Congressman Barney Frank introduced a stronger version that includes protections for transgender people on June 24, just before the fortieth anniversary of the Stonewall riots in New York City, which ignited the modern gay rights movement.
In those forty years, and especially in the past decade, the arc of the moral universe, as Obama is fond of saying on other matters, has bent toward justice. So much so that the question is no longer, Can the Obama administration afford to support gay rights with full-throated passion—but rather, Can it afford not to?
This
exchange of letters picks up where Professors Adrienne Davis and Robert Chang
left off in an earlier exchange that examined who speaks, who is allowed to
speak, and what is remembered. Here, Professors Davis and Chang explore the
dynamics of race, gender, and sexual orientation in the law school classroom.
They compare the experiences of African American women and Asian American men
in trying to perform as law professors, considering how makeup and other gender
tools simultaneously assist and hinder such performances. Their exchange
examines the possibility of bias that complicates the use of student
evaluations in assessing teaching effectiveness. It hypothesizes that the mechanism
by which this bias manifests itself is a variant of stereotype threat, one that
they call projected stereotype threat, where stereotypes of incompetence or
accent are projected onto the bodies of teachers marked by difference. They
examine how institutions respond or, as is more typically the case, fail to
respond to these problems. They conclude with some suggestions for change,
asserting that if institutions want to pay more than lip service to the goal of
diversity, the success and employment conditions of women and minorities will
improve only through the hiring of more women and minorities and by addressing
directly the issue of bias to educate students about bias and its
discriminatory effects on instructors whose bodies are marked by perceived differences
and how such bias interferes with their learning.
An online law school
graduate who sued the high court of Massachusetts for the opportunity to take
that state's bar examination is now a newly minted Massachusetts lawyer. Last
November, Ross Mitchell won his case against the state's Board of Bar
Examiners, which denied his bid to bypass a requirement that U.S.-trained
applicants be graduates of an American Bar Association-accredited law school.
The court allowed Mitchell to sit for the bar because the ABA is mulling
changes to its accreditation standards.
If I need some insight into the future of
medicine, I might head over to Stanford Medical School. If I
wanted to learn about likely directions in finance and hedge funds, I
might visit Penn's Wharton. If I were looking to make investments in
computing, I might arrange a tour of a lab at MIT. If I decided to
learn something about where legal practice, law firms, and legal
departments will be in 2014, where would I go? Not to law school.
Relative
to other professional schools, law schools are extremely disengaged
from professional practice-- they seek neither to understand nor to
influence it. As I have said previously in this space, law has lagged
behind the world of global competition--and technology-driven
clients--over the last 15 years. It's now entered a whiplash period
where it must catch up. If clients have to change 20 percent, then law
firms must change 30-40 percent (see Jordan Furlong’sgreat post
on how U.K. changes will migrate to the U.S.), and the "supply chain"
to law firms (e.g., law schools and certain companies and service
providers) will experience the most dramatic change.
Over the
past six months, I have participated in a number of symposia at law
schools and have visited with eight deans, including David
Van Zandt at Northwestern and Rick Matasar at New York Law School. How
did we get here? In the simplest terms, we can identify three phases of
legal education.
Phase I was the apprenticeship system, where
folks "read" law under more senior lawyers. Some refer to this model as
"Lincoln's way" because it produced great thinkers and advocates like
Abraham Lincoln, Thomas Jefferson, James Madison, Justice John
Marshall, and most of the signers of the Constitution. This 1:1
apprenticeship model gradually evolved into a trade school model, where
practicing lawyers would supplement their meager income by lecturing on
law at the local YMCA night law school.
Phase II, pioneered by
Dean Christopher Columbus Langdell at Harvard, created the professional
school, and centered the curriculum around the case method and
classroom discussion, which is the template for every law school in the
country. The American Bar Association and later the Association of
American Law Schools worked to eradicate the trade school model,
ratcheting up admissions standards and driving the emergence of the
faculty as a distinct profession.
Phase III reflects the last
generation or so, where law schools have grown more distant from the
profession, and the legal academy has come to define itself as
primarily engaged in a scholarly pursuit (like, say, literature or
history), as opposed to a professional pursuit, like, say, medicine or
business.
Some obvious problems with the Phase III model include:
--Students
graduate
from law school with a lot of debt but without client-marketable
skills, so their
primary option is to serve long apprenticeships in law firms, beginning
with very rote work, which is less intellectually engaging than law
school or judicial clerkships. While law students who get the
higher-paying law firm jobs achieve good salaries much faster than
medical
students, their time to professional independence is longer. This is
not because law is more complex or riskier than medicine, but because
legal training is inferior.
--It's no surprise
that law
graduates don't acquire client-marketable skills, since so many law
faculty don't care much about the practice of law. Even in 1981, when I
went to law school, the faculty generally held law firms in low
regard, and clients were presumed unethical without the constant
guidance of lawyers (when I spoke to a law school dean the other day,
she immediately equated client with "Enron"). It's nuts for law school
to be primarily about understanding appellate decision making and not
at all about understanding clients.
--Law
school is weak on empiricism--unlike, for example, medical school,
which is moving in the direction of being ever more evidence-based.
Almost every argument in law school is a hypothetical grounded in
abstraction and unproved in experience.
If
law schools aren't figuring out the future, who is? Or is the future of
law practice not important? If law schools don't imagine a future any
different from the present, is it any wonder many lawyers embrace the
fallacy of an unchanging and unchangeable profession?
As I have suggested previously, general counsel are pushing for big discounts for junior associate time, and law firms are deleveraging,
which
means straight-from-law-school-hiring is going to drop for at
least three years and probably forever (tell me again why we're flying
to Duke Law School to interview so we'll have an inexperienced lawyer
for a project in 2013 and who, if everyone
is really lucky, may become eligible for partnership in 2022?). Law
schools will have to produce fully functioning lawyers who can quickly
become economically viable--not just proto appellate clerks.
Let me suggest some likely elements of change (some of which already are in play at Northwestern and elsewhere):
--An
accelerated curriculum, with no more than a year of case method, a year
of clinical, and then a year of externship with subject area focus,
along the lines of medical school.
--More practice orientation in teaching, with far more adjunct faculty
who are active practitioners (a random e-mail I received yesterday said,
"One of the reasons I chose Northwestern for law school is I believe in
the type of changes that Dean Van Zandt is trying to make. My favorite
instructors were not academics but adjuncts who were successful
practicing attorneys.")
Recent Comments