Seeing Black: Unconscious Bias and Pro Bono Lawyers

ABA Center for Pro Bono Exchange

Lillian Moy Lillian Moy

The events of the last year in Ferguson, Staten Island and Baltimore have focused the public and the legal community on racism and unconscious bias in the criminal justice system, particularly in policing. Seeing Black, an article by Jennifer Eberhardt and three other psychologists, discusses their research and findings that many law enforcement officers “see black” resulting in their unconsciously seeing criminal activity and criminal defendants. It’s not much of a leap to conclude that others in the justice system, including lawyers, also unconsciously and automatically “see black.” and may make negative judgments about key aspects of our work, e.g., the credibility of your client or a key witness.

I cannot explain unconscious or implicit bias in this blog. I commend to you this video which talks about one community’s study of implicit bias and their attempts to mitigate bias in their juvenile justice system. In the…

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Teaching Reading and Access to the Profession

A couple of weeks ago, I had the good fortune to listen to Doug Lemov speak about his new book on the WAMC radio show “To The Best of Our Knowledge.”  The book, co-authored with Colleen Driggs and Erica Woolway, is entitled Reading Reconsidered:  A Practical Guide to Rigorous Instruction.  Doug is an expert on teaching and education (focusing on the K-12 space).  He happens to live in my town, and our daughters have crossed paths on the soccer field, so I’ve had the opportunity to chat with Doug from time to time about his work.

In the interview, Doug speaks about the latest research in reading instruction.  He makes a number of points that resonated with me as a practicing lawyer and law school teacher.  Any errors in summarizing Doug’s remarks are, of course, my own:

  • Interacting with difficult texts:  Doug explains how important it is for students to learn how to read difficult tests – particularly dense, non-fiction, and often highly specialized texts.  These are, of course, exactly the kind of texts one is likely to encounter in law school and law practice.
  • Developing close reading skills:  Doug offers a definition of close reading, and then explains why close reading is so important for developing readers.  He talks about the importance of moving beyond “gist” conversations (i.e., conversations where students recount and respond to the main idea, or gist, of a text) to conversations involving a more in-depth and nuanced consideration of language, themes, choices, etc.  Again, from my perspective, these are exactly the sort of skills one needs to develop to succeed in law school and law practice.
  •  Working with archaic textsDoug makes the point that archaic texts can be challenging for readers.  He argues that students who do not have the opportunity to interact with archaic texts during middle school and high school may find it difficult to make the jump to this sort of material  in college – where they will regularly encounter older texts such as the Declaration of Independence, The Canterbury Tales, Darwin’s Origin of Species, etc.  As someone who teaches contracts, this is (ancient?) music to my ears.  Try teaching cases like Hadley v. Baxendale to readers who have never encountered older British texts, for example!
  • Developing autonomy as a reader:  Finally, Doug talks about what it means to be an autonomous reader – i.e., a reader who can engage deeply with written material; a reader who asks his or her own questions and does not simply respond to the teacher’s prompts; a reader who examines author perspective, bias, etc.  This, too, seems relevant to my experience as a teacher and practicing lawyer.

For all of these reasons, my first thought was that Doug’s book might have useful teaching tips for me.  I am reading — and highlighting — the book for this purpose now!  In chatting with Doug over email, however, we identified another issue associated with reading skills and reading instruction – namely, justice and access to the profession.  If a student does not develop strong reading skills by the time he graduates from high school, that student may struggle in college.  If a student struggles in college, she may not be in a position to apply to law school.  And, if a student is not in a position to apply to law school . . .  well, it’s hard to become a lawyer if you don’t have the degree.  Reading and writing – along with legal reasoning – are at the core of the work of a lawyer.  The idea that talented students may not be in a position to apply to law school — or may struggle in law school —  due to gaps in reading instruction or experience pains me.

Here in New York, Doug’s points likely will get linked to debates about the common core.  The common core is, of course, a highly controversial issue in education.  Teachers, students, and parents have raised questions about the rollout of the common core (and common core testing) here in New York.  There have been discussions about the quality of the tests and curricular materials; debates about whether to let your child take the tests, or whether to opt out, etc.  As the mother of two children in the thick of standardized testing, I feel the pain on these issues on a personal level.  And, because I have to deal with the reality of the bar exam in my teaching, I think about strengths and weaknesses of standardized testing on a professional level, as well.

I am not writing today to comment on the common core or standardized tests, though I am an enthusiastic participant in debates about these issues.  Instead, I simply wanted to react to Doug’s thoughtful work as a fellow teacher.   As a teacher, I cannot assume that my students have had exposure to difficult or ancient texts prior to law school, nor can I assume that my students are trained in close reading.  I also cannot assume that my students are autonomous readers.   For all of these reasons, I need to commit — every single day – to helping my students master the reading skills that are necessary to thrive in law school and in the practice of law.    I also need to do more to ensure that students who want to be lawyers get to my classroom in the first place.

. . . 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.



John Laude recently wrote a great article describing how faculty might anticipate changes that would affect legal practice and how to adjust their teaching accordingly.  Within the article, John specifically refers to dispute resolution.  This is the link to the great read:

AALS Video Series on Law Teaching

Recently, a fellow blogger sent us a very helpful tool, that we wanted to share with our readers.  Last year, during the 2015 AALS Clinical Conference, a series of informative videos was created for law professors about the complications associated with law teaching.  The entire series is about an hour long, with each individual video being only about 5 minutes long.  These videos address some of the important pedagogical issues that law professors are currently grappling with, such as assessment, adding experiential learning to doctrinal courses, reflection, and technology.

This in the link to the entire series:

A Modest Proposal (for more coordination)

I recently attended the Emory Transactional Law conference (which was excellent, as always).  The conference is held every two years; this was their fifth.  Earlier in the spring semester, while I was putting together my talk (on What Law School Curriculum Committees Can Learn From Architecture Schools) I noticed that the Institute for Law Teaching and Learning 2016 conference would be going on at the same time, as well as the Third National Symposium on Experiential Learning in Law.

There are differences in emphasis among the three conferences.  But it’s fair to say that most, if not all, of the attendees at all three events are in what might be termed the “reform wing” of legal education.  While the ideas being circulated at all three conferences may be familiar to most readers of this blog, and while those ideas are being incorporated into law school curriculums throughout the country, the reform movement (broadly construed) still does not command a majority position in legal education.  So I have to ask – why would three such conferences be scheduled at the same time?  I know there is no commissioner or czar of legal education, let alone a single leader of each of the various components of the reform movement.  I also know that with the limited travel budgets many professors have, attending more than one conference in a year might be out of reach.  But I wonder if there isn’t some way to better coordinate scheduling of such conferences for those who would want to attend more than one of them.  I don’t know who put their marker down first, and I don’t know if any of the players knew of what the others were planning.  But perhaps more coordination, and more deference to others, might have been in order.

“Distance Learning”

by Steve Friedland, Elon University

Sometimes I wonder why we call mobile, on-line education “distance learning.” I understand that on-line education occurs at a distance, but even in regular bricks-and-mortar classes, learning frequently occurs at a distance as well. Students may participate and take notes in class, but often the great bulk of their learning occurs elsewhere. Students often need additional time to untangle the points and structures discussed in the course. In fact, a class session might not offer the time or space needed to process what has occurred. This means students will dissect or “unpack” the rules or policies and their application after class, when they are resolving problems, reviewing their notes, or simply recalling what happened.   When I was a student, most of my light bulbs went off when I was studying in depth in the library late at night or right before a final exam, when I was trying to reconstruct the mosaic of the entire course.

Several inferences can be drawn from these premises:

1. Creating time to repack a class. It would be useful to give students time to play with ideas and organize them after a class, perhaps in informal sessions with the professor. Some of the best sessions I had with students this past semester were over coffee in the school’s lounge after difficult property classes. I could see that just by discussing what happened in the class made for better and deeper understanding of the concepts. It really brought to mind the old saying, say 1000 times, hear 100 times, understood 10 times. I don’t rely just on my own experience or this venerable bromide. The brain science studies suggests that every time we revisit a subject we tend to reorganize it – something I found true with teaching a course multiple times – and it would be interesting to give students time after a class in a relaxed setting to discuss with the teacher what has occurred for the purpose of developing course structures

2. Engage students at a distance. Instead of just asking students to read cases or statutes, it might be preferable to flip the classroom and give them tasks that require precisely stated deliverables, such as arguing for or against parties or a position. In this way, we could continue threads in class started at a distance beforehand.

3. Directed Review. Since learning experts have found that ‘spaced repetition’ is a very useful way to promote recall, it might be helpful to direct students on how to review material.  Students can be asked to create very short PowerPoint mini-reviews of one of the class topics and present that review in class at the end of the semester. In this way, the professor can observe what students are learning, students can learn by creating a review, and other students can benefit from the mini-reviews by opening up the on-line site where the presentations have been posted.

These are just some of the ways we could start to transform learning at a distance, as well as not view it as a lesser form of education. In fact, it may just be the wave of the future.


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