A Student-Led Initiative to Promote the Public Good in all Classes

“The first thing I lost in law school was the reason I came.” This famous line from Bill Quigley’s Letter to a Law Student Interested in Social Justice represents the disheartening reality for countless law students. Many scholars have documented and studied how ingrained and widespread this disenchantment and disengagement with public interest law has been in legal education. Because of this, some progress has been made in law schools; schools are diversifying offerings, expanding experiential opportunities that are based in communities, and more. Despite these efforts, the struggle to maintain one’s vision and identity remains challenging.

Faced with this reality, a student group at Denver Law – the Chancellor’s Scholars – successfully created and launched the Pledge for the Public Good, an effort that aims to elevate and embed the idea of serving the public good within all classes. With over 20 student organizations in support, more than 60 full-time professors voluntarily signed the Pledge. The Pledge has been a remarkable example of faculty responding to student calls for action, and of student and faculty collaboration more broadly. We wrote about this effort in a law review article published this past spring. (Alexi Freeman & Katherine Steefel, The Pledge for the Public Good: A Student-Led Initiative to Incorporate Morality & Justice in Every Classroom, 22 Wash. & Lee J. Civil Rts. & Soc. Just. 49 (2016)).

Textually, the Pledge is quite simple. It asks professors to pledge that they are dedicated to fostering consciousness of the public good in students and to helping students develop their professional identities from day one in law school. To fulfill this dedication, the professor commits to helping students understand the moral dimensions and social context of the law. The Pledge then lays out examples of ways this can be done, such as incorporating a discussion concerning the social context of cases, explaining how a particular topic in the course relates to the greater public good, or bringing in a practitioner to share a perspective.

Many professors already engage in one or more of these suggested methods. The Pledge validates the efforts of those professors and encourages them to continue to embrace such techniques. For those who may not already intentionally seek out ways to integrate a public good component in their classrooms, the suggestions are not hugely burdensome, but can make a real difference in the student experience. In fact, a survey of students after the first semester of implementation indicated that 72% of them identified professors making connections to the public good.

When the students initially proposed the Pledge, some questions arose. Is this a loyalty oath? What about academic freedom? How about elevating other important skills and values? Are we still preserving the 1L classroom? How can professors find the time? As discussed in the article, our students developed an intentional organizing strategy that ultimately addressed these questions and allowed the initiative to achieve success.

There are many different ways to fully immerse public good values and ideals into legal education and ultimately, we need initiatives like the Pledge and countless others to pop up at every law school across the country to truly make an impact. Our article provides a mini template to help others develop something similar that aligns with their school’s vision, culture, and history. Share this with your students, and more importantly, we encourage you to ask them whether there’s something they can do to impact their law school experience, promote the public good, and help others never forget the reason why they came to law school, AND how you can help them achieve their goals. The Pledge was Denver Law’s students’ vision. What’s yours?

-This was written by 3L Denver Law student Katie Steefel and Alexi Freeman, Denver Law faculty and advisor to the Chancellor’s Scholars

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.

 

Lessons in the Delicate Art of Confronting Offensive Speech

A New York Times article with that headline observes that we are “in a political season when ethnic, racist and sexual slurs, not to mention general insults, seem to have become part of everyday chatter.”

Dealing with offensive comments can be hard for people generally and there are particular challenges for lawyers.

The article states that listeners’ objections can curb the behavior, but listeners understandably fear damaging relationships and inviting retaliation.  On the other hand, when people are uncomfortable and don’t speak up, this can effectively encourage speakers to continue their offensive remarks.

“A body of psychological research shows that even mild pushback against offensive remarks can have an instant effect — as difficult as that can be, especially with a boss, a friend or a celebrity.”

One expert said that “sexual banter often takes place among men who are friends, and that ‘the function of it is to promote bonding.’”  She said that “[m]en may feel that if they challenge conversation they find tasteless, or simply don’t join in, ‘they’re spoiling the mood at a minimum and possibly putting their relationship to the group at risk,’ she said.  And sometimes they worry that ‘it will raise doubts about their masculinity or heterosexuality,’ or that they will become targets of bullying.”

Challenging others’ comments that feel inappropriate can trigger strong reactions about both people’s identities and whether they are good or bad human beings.

Experts quoted in the article suggest tactics such as changing the subject, engaging in diversionary behavior, and humor.  For example, one expert suggested a response, “I love satire. It’s so weird that people believe that for real and it’s so cool you called that out.”

The director of an LGBT project sends volunteers to go door to door to talk with people. He said, “We are seeking out people who are prejudiced, and they’re using offensive language.  And if you correct that language, just use different words yourself, and your tone and demeanor are kind, people are very responsive, and you don’t have to get into a screaming match.”

This approach seems to be based on deliberate use of empathy.  The volunteers’ kindness presumably conveys understanding and sympathy with people who use offensive language.  And it reciprocally invites the speakers to empathize with the volunteers and the people they seek to help.  The program director said that it “softens” the attitudes of about ten percent of people, so it is far from changing the attitudes of most people.  But perhaps even that ten percent is significant.

While it may be tempting to directly characterize others’ statements – such as saying, “That’s sexist! [racist, a lie, etc.]” – that approach risks stimulating escalation and defensiveness.  It may stop the immediate behavior but it may also lead to counterproductive arguments, cause resentment, and actually reinforce problematic attitudes.

Lawyers not only have to deal with their own personal reactions but also have to manage their professional responsibilities to be respectful.  This may be especially difficult when they encounter problematic attitudes from their own clients.  Lawyers often worry that clients will doubt that the lawyers will fight hard enough, so it can be particularly difficult for lawyers to challenge their clients.

While it may seem counter-intuitive to demonstrate empathy with people who express ideas that feel offensive, it may be an effective tactic.  And it may open people to be more empathetic with others.  This approach may also be helpful strategically by getting people to consider their situation more realistically, recognizing the other person’s perspective as well as that of potential third party decision-makers.

All that said, these interactions can be extremely difficult to navigate, and there is no guarantee of success.

This election can provide some teachable moments for law students about how they might handle problems when they are in practice.

Survivor: Law School Edition?

I admit, I haven’t watched the TV show Survivor for years, but I’m intrigued by this season’s version, Millennials v. Gen X, as I occasionally feel that very conflict playing itself out in my classroom.

There comes a time every fall semester, usually around the end of September, when the generational differences between me and my current crop of 1L’s become evident. It usually coincides with the due date of their first memorandum and the expectations crystalize in students’ brains. Their questions typically begin as “I have a question about citation” and end as “you really expect us to do this?” with an air of incredulity.  While I may remember my law school experience somewhat hazily at this point, I do know that if I had a question about something which was covered in class, I assumed that I had missed the information, not that my professor had either failed to convey it or had unreasonable expectations. I try to convey that it’s not me who expects something unrealistic from them, but, rather, that I am preparing them to meet the expectations of cadre of Gen X or even more seasoned attorneys who will have high expectations of their interns and associates.

Many experts have identified areas where the generations differ. Here are just a few. Gen X’ers want independence and to be given time to grapple with issues on their own, they respect authority, and do not like to be overly supervised. On the other hand Millennials crave constant communication and mostly positive feedback, do not believe that those in authority deserve respect due to rank alone, and they want supervision to the point that they collaborate with supervisors rather than producing something on their own in the first place. The conflicts are apparent. Yes, these are generalizations, but I see these conflicts play out in the classroom and anecdotally when those students first experience workplace expectations and report back to me.

Each generation has positive and less positive attributes (even my use of the term “less positive” is a nod to the Millennial to whom my comments usually go, and who would be unreasonably upset by reading that there was anything “negative” in their work). It has helped me to understand and appreciate that certain characteristics I may have viewed as laziness or lack of initiative are not individual characteristics, but simply a different mental approach to work and how it is produced. I have tried to adopt some of the positive attributes they bring to the classroom, such as embracing technology, engaging in more group work, and providing more opportunities for ungraded assessment. By doing so, I let go of a characteristic of my generation:  reluctance to change.

Just as sure as the fall brings the conflict, I can also say that by the spring semester and beyond, the conflict subsides and we co-exist. Everyone survives, and my students generally report being very well prepared for their work. Unfortunately, though, none of us wins a million dollars!

 

 

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.

 

Albany Law’s New Two-Year JD

In recent years, the late Antonin Scalia questioned whether the traditional law school education has to take three years, with the justice griping that too many upper-level classes explore fluff and are not focused on educating students in the law.  Similarly, law school critic Brian Tamanaha has also said there should be a two-tiered system of law schools: one elite track that promotes legal scholarship, and another, non-elite track, that has a program of study that transfers basic legal skills to its students and takes just two years to complete.

President Obama, highlighting ways to make law school more affordable and lower student debt burdens, joined in the chorus, opining that perhaps law school could be completed in two years.  Obama’s concerns are shared by Tamanaha: i.e., that law school is too pricey at current tuition rates and one way to provide value to students while keeping costs down is to eliminate one year of training.

At the same time that these critics from without and within the academy have argued that law schools spend too much time with their students, the practicing bar has long lamented that when law students graduate, they are not “practice ready”: their law school training was not sufficient for them to engage fully in the practice of law when they leave law school.  Moreover, going back at least over twenty years, to the American Bar Association’s MacCrate Report, law schools have been told they are not instilling in law students the skills and values essential to the practice of law.  Echoing such concerns, and weighing in on the law-school-in-two-years debate, Justice Ruth Bader Ginsburg said that two years would be fine for a law degree, but it would not teach students the craft of lawyering nor would it instill in them the values of the profession.  Similarly, I have argued elsewhere that so-called “Law and…” courses, which Scalia decried, help round out the law school education and expose students to new ways of looking at the law and their place within the legal profession.

Indeed, it is hard to square the “law schools are doing too much” argument with the “law schools are doing too little” one.  Responding to the latter argument, schools have expanded their offerings to include more experiential components and more values-based training in an effort to prepare students to serve clients and participate fully in the profession immediately  upon graduation.

In an effort to respond to the first argument, though, a number of law schools have begun to offer two-year juris doctor degrees, including all of the credits one would earn in three years into a two-year course of study.  One would think that this would mean schools are offering students a bargain, lopping off one year of tuition for the ability to graduate a year early.  Surprisingly, most schools offering a two-year JD are not reducing tuition; they are charging students three years of tuition for a two-year course of study.

Recently, however, my institution, Albany Law School, responding to the critics, like the President, who argue that law school is too expensive, has announced it will offer a two-year JD, at the cost of two years of tuition.  Like other two-year JD programs, the academic program of study is the same in terms of how many credits students must complete to earn their degree, whether they do it in two or three years, but the cost of the program is one-third less than the traditional JD.

We believe the program will appeal to prospective students who are interested in pursuing a degree on an accelerated track so that they can get back to work sooner after starting their studies and save some money while they are doing it.  We anticipate that this will attract students who are already in the working world, who are cost conscious, sensitive to losing the three years in their professional development that a traditional three-year program would cost, and hope to enhance their credentials and earning potential in as short a time as possible.

The program is being launched with a January 2017 start date.  Time will tell whether such an approach will attract students and offer them real value, both in the short and long run.

Let Me Introduce Myself

My name is John Lande and I just became a blogger with BPLE.  I want to tell you about my background and interests and the kinds of things I expect to write about in this blog.  This post also includes links to some resources you might be interested in.

I taught at the University of Missouri starting in 2000 and I retired a year ago, beginning what I call “unbundled retirement.”  I don’t teach or attend faculty meetings anymore, but I still want to stay involved in things that I care about.

Two years ago, I started blogging on Indisputably, a blog of law professors who focus on dispute resolution.  I love blogging, which I will continue in retirement.

Here’s a link to my website, which includes more information about me and links to my publications, some of which are not on ssrn.

Focus on Dispute Resolution

My career has focused on dispute resolution.  I graduated from law school in 1980 and practiced law for a while.  I felt uncomfortable with the adversarial dynamics of legal practice and I took my first mediation training in 1982 and then practiced law and mediation for several years.

In 1989, I went to grad school in sociology at the University of Wisconsin, studying sociology of law and dispute resolution.  For my masters thesis, I interviewed people who handled employment discrimination disputes within their organizations.  For my doctoral dissertation, I interviewed business lawyers and executives about their attitudes about litigation and ADR.

Most people in the “ADR” field, including me, think that it is misleading to refer to it as “alternative dispute resolution,” but the label has stuck.  I don’t think that there’s an ideal alternative and many of us simply use the term “dispute resolution” or “DR,” even though that’s problematic too.

Many people in the DR world think of “ADR” as involving neutrals (other than judges).  But focusing only on neutrals doesn’t fit because unmediated negotiation is recognized as a major sub-field.  Indeed, much of what we teach and do is advocacy in processes like mediation and arbitration.  Here’s one post I wrote musing about what ADR is and isn’t and here’s another one.  They reflect my view that lawyers and judges are dispute resolution professionals, not just mediators and arbitrators.

In the last decade, I wrote a series of articles about collaborative law and cooperative law, which are processes in which lawyers and clients start by trying to negotiate instead of starting in litigation and negotiating at the end of a case, after most discovery has been completed.

I think that these processes have real value though they are used almost exclusively in family law cases and only by agreement of both sides.  Collaborative law involves a “disqualification agreement,” which precludes the collaborative lawyers from representing the clients in litigation if needed.  This makes the process a non-starter for many lawyers and parties, especially in cases other than family law.

I wrote a book, Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money, in which I applied some concepts from collaborative and cooperative law to describe an approach that lawyers can use unilaterally in any type of case.  This book was based, in part, on interviews with lawyers who actually use this general approach as opposed to lawyering with unplanned late negotiation.  I later did another study along the same lines based on more interviews with lawyers, Good Pretrial Lawyering: Planning to Get to Yes Sooner, Cheaper, and Better.

Focus on Legal Education

I developed and maintain a website, Dispute Resolution Resources for Legal Education (DRLE), which includes syllabi, teaching materials, and a list of DR programs and links.  It also includes instructions for subscribing to a listserv promoting discussion of issues relevant to DR in legal education.

In 2010, I wrote my first article on legal education, co-authored with Jean Sternlight, The Potential Contribution of ADR to an Integrated Curriculum: Preparing Law Students for Real World Lawyering.  This piece describes how ADR concepts and skills are integrated into other courses and suggests ways that this could be done more.

This article inspired the development of the Legal Education, ADR, and Problem-Solving (LEAPS) Project of the ABA Section of Dispute Resolution.  LEAPS developed a great website with lots of resources about how to increasingly incorporate “practical problem solving” into law school curricula.  Perhaps of particular interest to BPLE readers, this website has a list of textbooks in a wide variety of subjects which include a problem-solving approach as well as a list of colleagues who would be happy to help you incorporate problem-solving techniques in your courses in particular subjects (e.g., civ pro, contracts, etc.).

In 2012, I organized a symposium at Missouri entitled, “Overcoming Barriers in Preparing Law Students for Real-World Practice.”   For the symposium, I wrote an article, Reforming Legal Education to Prepare Law Students Optimally for Real-World Practice, which incorporated major themes in the symposium and included my ideas about legal education reform.

That year I also started teaching negotiation and I experimented with lots of techniques in that course.  In Teaching Students to Negotiate Like a Lawyer, which I wrote as I embarked on this experiment, I described these techniques.  In Lessons from Teaching Students to Negotiate Like a Lawyer, I described what worked and what didn’t work so well the first time I taught it.

One of my major insights from this experience was the great value of using multi-stage simulations in addition to one-stage simulations.  Most DR courses rely primarily or exclusively on one-stage simulations in which students are given fact patterns to enact for perhaps 10-60 minutes.  While these simulations are useful in prompting students to get into roles of lawyers, clients, and others, students don’t get into their roles in single-stage simulations as much as multi-stage simulations.

I described my use of multi-stage simulations in the two articles I just mentioned about teaching negotiation.  I prepared an eight-page document with suggestions for instructors who want to use multi-stage simulations in their courses.  And I solicited descriptions from colleagues about how they use multi-stage simulations in a wide range of courses, which are posted on the DRLE website.

I recently wrote my “Last Lecture” article, summarizing advice for law students based on my teaching and scholarship.

Blogging for BPLE

As a blogger on Indisputably, I have written various posts about legal education, generally tagged “for teachers and students.”  I have written some on particular topics that BPLE readers might be interested, including simulations, legal skills and techniques, and student assessment and grading.

I have occasionally passed along some posts to Mary Lynch that I thought BPLE readers would be interested in.  After I wrote one recently, I thought it would make sense for me to post some myself from time to time.

For example, you might be interested in my posts Non-Apology Apologies, Ethics, and Lawyers and Training Law Students to be Leaders.

By joining BPLE, I hope that I can serve as a bridge between faculty particularly interested in dispute resolution and those particularly interested in legal education issues.  If you have some interest in DR, you might check out or subscribe to Indisputably.  Conversely, I am encouraging my friends on Indisputably to check out or subscribe to BPLE.

I hope that you enjoy my posts.  I welcome your comments online or off.

 

 

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