Sunday, April 24, 2011

The rule of law ... in New Jersey

New Jersey's Republican Governor, Chris Christie, is threatening a state constitutional crisis. Over the past twenty-five years, in the Abbott decisions, the state Supreme Court has read the state constitution and laws to impose extensive obligations on New Jersey to finance equal educational opportunity for disadvantaged residents of the state. Facing the possibility that the state Supreme Court will rule, in a case just argued before it, that the state has violated those obligations, Christie told a radio interviewer that he might not obey the court's ruling: "That's an option," he said. "I'm not going to sit here and speculate. . . . There are a whole bunch of options in the contingency plan." Ginger Gibson, "If N.J. Supreme Court orders increased school aid, Gov. Christie says not complying is among 'options,'" (originally published in The Star-Ledger, April 22, 2011, at 1).

If Christie were actually to defy a court order, that would mark a constitutional crisis. While many people disobey many laws, and yet the legal order still stands, for a Governor to deliberately disobey an order of the highest court of a state really does undercut the idea of a rule of law. (Why is this a state rather than a federal matter? Because the constitutional guarantee of a "thorough and efficient system of free public schools" is an element of the New Jersey state constitution (Article VIII, Section 4(1)), not the federal constitution. As a result, it seems very unlikely that Christie could appeal an adverse decision by the state Supreme Court to US Supreme Court, which does not deal with state law issues.)

Threatening to disobey a court order isn't the same as disobeying one -- though it does bring the idea of disregarding the courts' decisions into the realm of legitimate public discourse, which is no small matter. Why would Christie do this? One possibility, of course, is that he actually is prepared to defy the courts. But I doubt that. The stakes just seem too high to me; Christie is an ex-United States Attorney, and I can't believe he's willing to say that the duty of obedience to court orders -- which undergirds every criminal and civil case -- actually can be disregarded. (Though I might be wrong.)

More likely, I think, Christie is engaged in one or two high-stakes games. The first is one to be played out just in New Jersey, and its name is "chicken." Christie is apparently trying to intimidate the court into finding some way to decide this case that does not bring it into absolute confrontation with the Governor. There may be ways (columnist Bob Braun of the Star-Ledger has suggested some) that the court could preserve what it might deem the essence of the Abbott decisions without directly flouting Christie's tax and spending policies -- and American constitutional adjudication has long recognized that the courts have no armies, and therefore may sometimes need to use prudence in their dealings with the other branches of government. Of course, the court can play chicken too -- it is one thing for it to issue an order contradicting some positions taken by the Governor, another for it to enforce it by such steps as contempt orders. This struggle may take quite a while to play out. And it may be further complicated by the fact that the state legislature must pass any spending legislation, and so, as Paul Mulshine, , another Star-Ledger columnist, points out, the question of complying with the court order isn't (at least isn't entirely) up to Christie; the legislature may become the immediate target of the court's pressure, while Christie gets to wait in the wings.

The other game is one of Presidential politics. What Christie's intentions are no one knows, but it's clear enough that Republican presidential candidates today must find a way to appeal to the Tea Party side of their party. Christie has made a national reputation for himself with YouTube videos recording his tough talk, and tough talk about liberal courts -- not necessarily linked to much concrete action -- may play well too. The problem for him is that the "tough talk" bar among Republican candidates seems to be set pretty high, and sooner or later may require confirmation in the form of action. How far Christie will want to take this particular appeal remains to be seen.

None of this is good for the ideal of the rule of law. But that ideal has survived a lot, and New Jersey is not in crisis yet.

Saturday, April 23, 2011

What prepares students for practice: new empirical data, and new empirical questions

The “2010 Survey of Law School Experiential Learning Opportunities and Benefits,” just published by NALP (The Association for Legal Career Professionals) and the NALP Foundation, provides striking evidence that law graduates – or at least associates at firms almost all of which had 100 lawyers or more – regarded their clinic and externship experiences as valuable in preparing them for the practice of law is important. But like most surveys it raises at least as many questions as it answers. Here are some that struck me, based on what I’ve digested so far from the survey report (full disclosure: my colleague Meg Reuter, Assistant Dean for Career Planning at New York Law School, was a vice-chair of the NALP work group that helped develop this study):

First, as important as the core finding about the value of clinics and externships is, there is more that would be good to know about it. The survey asked students to list all the sorts of practice courses they had taken, and the report provides the ratings of “usefulness” of various sorts of courses and experiences – clinics, externships, (classroom) skills courses, and pro bono work – by the students who took those particular kinds of courses. It’s very interesting to know that students who took clinics rated them as valuable, and students who took externships rated those just about equally highly (and that students who took simulation courses were less impressed, and students who did pro bono work even less so). But it would also be interesting to know – and it seems the survey data could tell us – how students who had more than one of these courses or experiences rated them: how, for example, students who took clinics and simulation courses rated those two kinds of classes, or students who took clinics and externships. Because they have a basis for comparison, the judgments these students make may be worth careful study. It would also be revealing to know more about which clinic experiences and which externship experiences correlate with high assessments of usefulness; the survey collected some data on types of clinic and externship experiences and so perhaps these correlations can be reported and studied, but they’re not in the current report. (Rebecca Sandefur and Jeffrey Selbin have noted the importance of breaking out the various different sorts of clinics in their analysis of another study of preparation for practice, the "After the J.D." study, in their article The Clinic Effect, 16 Clinical Law Review 57, 84 (2009).)

Second, although the report demonstrates a striking difference between clinics and externships on the one hand, and other skills courses on the other, the difference needs to be carefully assessed. It’s striking that much higher percentages of respondents considered clinics or externships very useful (63.1 % and 60.1 %) than said the same about classroom skills courses (38.5 %). But these figures by themselves may overstate the real differences between the graduates’ perceptions of these courses. The survey asked for answers on a 1 to 4 scale, with 1 being “not at all useful” and 4 “very useful.” The total percentage giving clinics a 3 or a 4 was 84.3 %; for externships, 83.5 %; and for classroom skills courses, 76 % -- many graduates who’d taken classroom skills courses gave them 3’s and so narrowed the cumulative gap between the various types of courses. According to the report, the “average usefulness rating” for clinics was a 3.4; for externships the same; and for skills courses not much less, 3.1.

On the general question of how to deliver effective skills training, it’s also noteworthy that about twice as many students took one of the classroom skills courses as took clinics or externships (637 in skills courses; 279 in clinics; 333 in externships). So it might be said that the classroom courses delivered “pretty useful” instruction to a much larger number of students than either one of the two types of more experiential courses did. One other point to consider here: the classroom skills courses covered a wide range, including trial advocacy, advanced drafting, “subject matter specific skills,” law practice management, leadership, and “other.” Of those that students took most, all except advanced drafting may fall in the general category of simulation skills training, but it’s not entirely certain which particular classes the students found more or less useful.

One other point about the general effectiveness of skills training in law school: how much difference does it make to those who hire the new graduates? Another commenter has asked whether there are data on whether law firm hiring partners take such courses into account. That I don’t know. The NALP survey asked a related question of the graduates -- which, if any, of their skills courses they discussed in their hiring interviews -- but this report does not include data on what the answers were. It would be heartening to learn that the programs graduates regard as having helped them prepare for practice were in some tangible way being taken into account by those who hired these graduates for their practice jobs – but this happy possibility may turn out not to be the reality of the matter.

Third, the survey seems to have asked only about skills courses and pro bono work. If that’s right, that means it didn’t include some law school experiences that may be very useful but don’t take place in courses. Moot court is the clearest possibility, but many students may find law journal work useful (because it hones their writing and research skills, or because it, like moot court, gives them experience in running an organization). It would be useful to know more about how graduates evaluate these sorts of law school experiences once they’re out in the world. It would also be useful to know whether students see any of the doctrinal courses they’ve taken as useful too. Right now we know that students consider clinics and externships very useful; we don’t know from this survey whether they find their civil procedure or labor law classes very useful too. (We do have data on this from the “After the J.D.” study; as summarized by Rebecca Sandefur and Jeff Selbin, in The Clinic Effect, the new lawyers who were that study’s respondents rated their “upper-year lecture courses,” “course concentrations,” and “first-year curriculum,” as significantly less “helpful … in making the transition to [their] early work assignments as a lawyer” than summer and part-time work, clinics, legal writing training and internships. (83-85))

Fourth, this was a survey of “law school experiential learning opportunities.” As such, it didn’t ask about non-law school experiential learning opportunities. As Rebecca Sandefur and Jeff Selbin have found from the data generated in the “After the J.D.” study some years ago, new lawyers rated their full-time summer jobs as significantly more valuable than any other experience rated in helping prepare them for the transition to practice, and rated part-time jobs during law school at the top of a category of the next most valuable experiences, which included these jobs, clinics, legal writing training, and externships. (85-86) (There is room for some doubt, however, about whether all the raters had actually had the experiences they rate (see 85), and so it’s not clear to what extent these ratings reflect judgments by people who actually had a personal basis for comparison.) But the possibility exists that what our students believe they learn most from is simply real experience. Clinics and externships provide that. I believe some other law school courses, such as project-based learning courses in which students, for example, create a website on a real-world issue, do so as well. But jobs provide real experience too.

If additional data turn out to confirm the “After the J.D.” finding that graduates value their summer jobs as much as, or more than, they value their clinics (or other law school skills instruction), would that mean that the academic instruction in clinics and elsewhere didn’t add anything to the value of experience all by itself? I think it’s quite possible the data will turn out this way, but that drawing that conclusion from them would be extremely implausible. Taking these imagined data at face value, what they’d show is that these two forms of learning are both very useful, not that the same things are learned in each setting. One might ask, also, whether these data really should be taken at face value. It’s entirely possible, after all, that graduates don’t realize all that they’ve learned in any given setting. If it turned out, for instance, that they didn’t consider their first-year courses very useful (as the “After the J.D.” data indicated), we might respond that they were mistaken, because they had to get the foundation in legal analysis and knowledge that the first year provided before they could go on to anything else.

But I think we should recognize that learners do know something about where they are learning most. If they turn out to value both jobs and law school skills training, that is a good reason to consider seriously the value of real experience as part of the overall law school learning process. It’s not, however, likely to be an argument against clinics or against skills training in law schools overall. If it turns out that law school skills experiences and jobs are both very useful forms of preparation for practice, the next question would be whether both are more useful than some or many of the doctrinal courses offered in law school. If the answer to that question turns out to be “yes” – and this is what the “After the J.D.” respondents indicate, though as I’ve just said their judgments may have been mistaken – then the implication would be that both of these forms of experiential training should be accentuated, not that one or the other should be sacrificed while the rest of the curriculum remains unchanged.

So the survey is very helpful. The question of what new lawyers believe was useful in their law school years in preparing them for law practice is an important one, and it would be good to ask it as to everything the new lawyers did during (and in the summers of) law school. Right now we have a part, a tantalizing part, of the whole story.

How we change

One other feature of Laura Hillenbrand's Unbroken (2010) particularly caught my eye: the story of Louie Zamperini's experience of being saved as a Christian, after hearing the preaching of a young Billy Graham. I don't cite this as any proof of the unique truth of evangelical Christianity (not my faith), nor even as conclusive proof of any spiritual proposition -- though I wonder what makes religious words and perceptions sometimes so tremendously powerful, and whether that power really is only a psychological reaction by the person affected.

For now, though, I'm just interested in that psychological reaction. Zamperini, as Hildebrand recounts, was very troubled by the brutal degradation he'd experienced in Japan's prison camps during the war, and was gravely off balance back in California after it was over. He was drinking heavily (338, 363); married impulsively and saw his marriage seeming to fail (338-44, 362-67); and was dreaming of the guard who had most tormented him (338, 350). His efforts to refocus, by training to regain the running form that had taken him to the Berlin Olympics in 1936, went disastrously wrong as he over-exerted himself and blew out an ankle already injured during the war (350-51).

And then, after his wife persuaded him -- much against his will (371) -- to go to Billy Graham's revival preaching in September, 1949, he remembered a moment in the war when, near death in an open raft on the Pacific after his plane had crashed, he had promised God that “If you will save me, I will serve you forever.” (375) That recollection completed something going on inside him. Back at his apartment, he poured his liquor down the sink. He never dreamt of the guard again. (376) His life was restored to him.

What most astonishes me about this story is that it seems that a single experience, perhaps even a single deeply recalled memory, transformed him. Post-traumatic stress disorder, which Zamperini and many other US soldiers held by the Japanese seem to have suffered (346-49), is presumably -- like every mental event -- a physical condition. Brain cells connect, react, in physical ways -- ways that I would assume are more and more deeply established as physical, neural patterns as the sufferer's state worsens.

If our habits of mind are deeply grooved physical processes, we can perhaps understand how a succession of thoughts, over months or years, might slowly carve new patterns of feeling and experience, as rivers carve canyons through rock. Often that is how people grow and change. But not always.

Sometimes, it seems, a thought can change a mind’s functioning in a single fundamental reordering of mental processes. This sudden transformation doesn’t come out of the blue, I’m sure; the person transformed has suffered and sought release for a long, painful time. That long suffering may have marked, or accompanied, a gradual accumulation of mental resources aimed at restoring the mind to health. But still, at a particular moment a particular thought operates on the mind like an earthquake on the planet – rearranging the massive tectonic plates of our minds. Whether religion has anything integrally to do with such moments or not, the effect does seem a bit miraculous.

When our soldiers were treated as unlawful combatants

Laura Hillenbrand's story of Louie Zamperini, Unbroken (2010), also features another unnerving reminder of more recent events. (I wrote about its bearing on the waterboarding debate in my previous post.) Hildebrand recounts that Zamperini, a captured US Air Force bombardier, was placed in “a secret interrogation center called Ofuna, where ‘high-value’ captured men were housed in solitary confinement, starved, tormented, and tortured to divulge military secrets.” The prisoners held at this secret camp, moreover, were not acknowledged by their captors to be POWs. Instead, the Japanese maintained they were “‘unarmed combatants’ at war against Japan and, as such, didn’t have the rights that international law accorded POW’s. In fact, they had no rights at all. If captives ‘confessed their crimes against Japan,’ they’d be treated ‘as well as regulations permit.’ Over the course of the war, some one thousand Allied captives would be hauled into Ofuna, and many would be held there for years.” (192)

Can one read this and not be reminded of Guantánamo?

Saturday, April 9, 2011

On what is torture

One way to tell whether a particular act is torture is to see what company it keeps. This idea, embodied in the Latin phrase "noscitur a sociis," is actually a venerable tool for interpreting the language of statutes -- but the logic applies to interpreting the nature of other practices as well.

On that score, here's a striking sentence from Laura Hillenbrand's book Unbroken: A World War II Story of Survival, Resilience, and Redemption (2010) -- the story of an American air force officer named Louie Zamperini and the tremendous suffering he endured in World War II, especially the terrible treatment he experienced at the hands of Japanese prison-camp guards. Writing about one of Zamperini's fellow American prisoners, Hillenbrand says: "The Japanese had attempted, in vain, to torture information out of Fitzgerald, clubbing him, jamming penknives under his fingernails, tearing his fingernails off, and applying the 'water cure' -- tipping him backward, holding his mouth shut, and pouring water up his nose until he passed out." (201)

Hillenbrand does not mention the obvious analogy to the United States' use of what's now called waterboarding. But it seems clear enough that in using this technique what we did was to take a technique that had historically been part of the repertoire of torturers. We sought to sanitize it, at least in appearance, but we meant precisely to take advantage of its brutal coercion. Putting aside all intricate questions of the meaning of torture as defined in our statutes -- one should not expect to borrow from torturers and escape their taint.