We often worry that clients' voice is lost in the process of representation. The story that gets told, though not false, is a story keyed to the elements of the case, or to some other persuasive need, rather than to the client's understanding of the narrative of his or her life. But my co-author Ann Shalleck, in her chapter on "Narrative Theory and Narrative Practices" in our new book (Lawyers and Clients: Critical Issues in Interviewing and Counseling (2009) -- see my previous post for the book announcement) emphasizes that clients' own narratives change over time, and in part as a result of the influence of the lawyer. Sometimes those changes are benign. Sometimes they may not be.
In his fascinating book Arc of Justice: A Saga of Race, Civil Rights, and Murder in the Jazz Age (2004), Kevin Boyle tells the story of Dr. Ossian Sweet and his trial. Dr. Sweet was an African American physician, living in Detroit, who in 1925 made the decision to move with his family into a house in an all-white neighborhood. The results were disastrous. A white crowd swelled around his house on each of his first two nights in it; the second night, members of the crowd began hurling stones at the house, and as the stones fell someone (or someones) in the house fired into the crowd, wounding one person and killing another. Dr. Sweet and the 10 other people in the house were all arrested and charged with murder.
As Boyle tells the story, Dr. Sweet emerges as a conflicted man, who was almost overcome by anxiety as the mob surrounded his house. He seems not so much to have decided to risk everything for the sake of his right to purchase this house as to have been unable to back down from the purchase as the extent of the peril he and his family faced became clear. None of this is to his discredit; the fact is that he did exercise his right to purchase a house anywhere he could afford, and he determined to defend the house against attack, and he did so. (He did not, however, fire any shots himself.)
Boyle tells us that after their arrests, Dr. Sweet and most of the others initially told the authorities, falsely, that they weren't in the house that night to defend it but rather were just waiting for dinner when the trouble began. (Boyle, at 173-74.) Apparently it was Clarence Darrow, perhaps accompanied by Walter White of the NAACP (which had made this case a cause), who persuaded the defendants to tell the story more fully. In Boyle's words:
"For the longest time, Darrow sat with Ossian and the others, listening to them recount the evening on Garland Avenue, gently pressing them to admit to the shooting rather than cling to the unlikely stories they had concocted the night of the police interrogation, quietly reassuring them that the case could be won even if they had fired into the crowd, bridging the chasm between the famous white lawyer and ten desperately afraid colored men with his remarkable gift for empathy." (244)
Along the way, however, Dr. Sweet's understanding of his own story changed. "[H]e began to see the road he had followed to Garland Avenue as much straighter, his steps more purposeful, than they had actually been." (247) Perhaps Dr. Sweet was influenced by his sense of what a jury might respond to, and perhaps he was moved by the praise that his supporters offered for him. I don't mean that he falsified any concrete fact of his story, just that he came to see it as a story of his own manifest heroism.
That may have been fine for the two trials, at the first of which Dr. Sweet responded to cross-examination "with a dignity so fierce it was inspiring" (290), and at the second of which "he seemed to straighten in his seat as the questions were asked.... Now the fear was gone, replaced by unbending pride, the terrified little boy of Bartow given way to a New Negro willing to risk everything in defense of his family, his home, and his principles." (327-28) And the trials ultimately ended in complete legal victory for the defendants.
Unfortunately, it was not fine for Dr. Sweet as a person. Between the two trials, Dr. Sweet and his wife, Gladys (also a defendant), went on a tour planned by the NAACP. A pastor accompanying them said that "Each day he [Dr. Sweet] got more egotistic." (306). The same man said that "I averted no fewer than four scenes ... [and] abated five quarrels between the Sweets." (306-07)
Perhaps all would have been well in time. But as it turned out, Gladys Sweet and the Sweets' one-year-old daughter Iva contracted tuberculosis, very possibly from the jail in which they were confined after the arrests, and both died of it. (344) Dr. Sweet lived in the house he had bought for many years, but his life went awry in multiple ways, and at the age of 64 he shot and killed himself. (344-46) Would he have handled better the challenges he faced if he had not come to see himself, at one point in his life, as a more unambiguously heroic man than he (or almost anyone else) could be? We don't know. But the book leaves the strong impression that the case, the cause, became so great that it changed even the individuals whose cause it was, and not entirely for the better.
*******************
For me, reading Arc of Justice raised another, more personal question. In 1925, my grandfather, James Ellmann, was a young attorney practicing in Detroit and raising a family along with his wife Jean. He would go on to be active in civil rights issues, but the first trace of that activity that I've found so far on the web is in the mid-late 1930s. There's no sign that he was involved in any way in the Sweet case. I can't help but think, though, that he must have been inspired by this celebrated, dramatic case, involving local people and the most prominent lawyer of the age. So I hope that one of the effects of this case -- which brought Dr. Sweet freedom but not happiness, and helped launch the NAACP's legal challenges to racism even while Northern cities' residential segregation intensified (342-43) -- was to play some part in my grandfather's political development, and so my father's, and so mine.
Saturday, October 31, 2009
Friday, October 30, 2009
Shameless self-promotion: "Lawyers and Clients: Critical Issues in Interviewing and Counseling" now published!
I'm very happy to return to this blog with a book announcement -- the result of a lot of hard work by Bob Dinerstein, Isabelle Gunning, Kate Kruse, Ann Shalleck, and me. All of us hope you'll like it!
Lawyers and Clients: Critical Issues in Interviewing and Counseling
Stephen Ellmann, New York Law School
Robert D. Dinerstein, American
Isabelle R. Gunning, Southwestern
Katherine R. Kruse, UNLV
Ann C. Shalleck, American
ISBN 978-0-31423-531-2
Lawyers and Clients: Critical Issues in Interviewing and Counseling will be published in October, is available for spring 2010 classes, and is now available for viewing on West's Law School Exchange. Going beyond the basics of interviewing and counseling, this book examines practical and theoretical challenges lawyers face with clients. Each chapter explores a critical issue in interviewing and counseling, such as developing connection across difference; dealing with atypical clients; using engaged client-centered counseling; bringing narrative theory to bear on lawyer-client encounters; seeking truth; pursuing moral dialogue; discussing law; and understanding how expertise affects practice. The book investigates these issues primarily through detailed analysis of multi-layered lawyer-client conversations, arising in a variety of contexts, which invite the reader to consider and critique the lawyer’s choices. A key theme is “engaged client-centered lawyering,” which emphasizes the importance of client choice and the impact of lawyers on clients, and affirms lawyers’ ability, through attending to the evolving contexts of clients’ lives, issues of technique, ethics, and law, to achieve open-hearted and wise engagement with clients.
Join Law School Exchange today to view a complimentary digital copy of this text and to take advantage of the site's many other features. Law School Exchange allows law school faculty to share, digitally publish, and find scholarship and teaching materials in collaboration with an online community of peers.
Review Copy: Lawyers and Clients: Critical Issues in Interviewing and Counseling will be sent to all full-time law professors teaching interviewing and counseling. Other professors who would like to review this textbook may request a complimentary copy by emailing their account manager at westacademic@thomsonreuters.com. When placing an order with your bookstore, please refer to ISBN 978-0-31423-531-2.
For current Westlaw® information, visit: lawschool.westlaw.com
© 2009 Thomson Reuters610 Opperman Drive, Eagan, MN 55123-1396L-346170
Lawyers and Clients: Critical Issues in Interviewing and Counseling
Stephen Ellmann, New York Law School
Robert D. Dinerstein, American
Isabelle R. Gunning, Southwestern
Katherine R. Kruse, UNLV
Ann C. Shalleck, American
ISBN 978-0-31423-531-2
Lawyers and Clients: Critical Issues in Interviewing and Counseling will be published in October, is available for spring 2010 classes, and is now available for viewing on West's Law School Exchange. Going beyond the basics of interviewing and counseling, this book examines practical and theoretical challenges lawyers face with clients. Each chapter explores a critical issue in interviewing and counseling, such as developing connection across difference; dealing with atypical clients; using engaged client-centered counseling; bringing narrative theory to bear on lawyer-client encounters; seeking truth; pursuing moral dialogue; discussing law; and understanding how expertise affects practice. The book investigates these issues primarily through detailed analysis of multi-layered lawyer-client conversations, arising in a variety of contexts, which invite the reader to consider and critique the lawyer’s choices. A key theme is “engaged client-centered lawyering,” which emphasizes the importance of client choice and the impact of lawyers on clients, and affirms lawyers’ ability, through attending to the evolving contexts of clients’ lives, issues of technique, ethics, and law, to achieve open-hearted and wise engagement with clients.
Join Law School Exchange today to view a complimentary digital copy of this text and to take advantage of the site's many other features. Law School Exchange allows law school faculty to share, digitally publish, and find scholarship and teaching materials in collaboration with an online community of peers.
Review Copy: Lawyers and Clients: Critical Issues in Interviewing and Counseling will be sent to all full-time law professors teaching interviewing and counseling. Other professors who would like to review this textbook may request a complimentary copy by emailing their account manager at westacademic@thomsonreuters.com. When placing an order with your bookstore, please refer to ISBN 978-0-31423-531-2.
For current Westlaw® information, visit: lawschool.westlaw.com
© 2009 Thomson Reuters610 Opperman Drive, Eagan, MN 55123-1396L-346170
Saturday, September 5, 2009
"End-of-life" discussions and lawyer-client communications
A remarkable article in the NY Times not long ago, by Anemona Hartocollis, "At the End, Offering Not a Cure but Comfort" (August 20, 2009, starting at page A1).
First, it reports that "Dr. Nicholas Christakis, an internist and social scientist at Harvard who has studied end-of-life care, has found that doctors are generally bad at making prognoses. The better they know a patient, the worse they are at prognosticating, possibly, Dr. Christakis has theorized, because they view death as a personal failure. Most predictions are overly optimistic, he has found, and the sicker the patient, the more likely the doctor is to overestimate the length of survival." (Page A16) Without having seen Dr. Christakis' study, it seems to me that another factor here may simply be empathy -- the better the doctors know the patients, the more they feel for them and the more they hope they'll survive and the more their predictions are shaped by their hopes. If accurate predictions are what we want here -- far from a self-evident proposition, as the article reflects -- then this would be a reason for doctors not to know their patients so well. It would, similarly, be a reason for lawyers not to know their clients so well.
Second, the article vividly illustrates the central role that communication without explicit words may play in some end-of-life discussions. The article tells the story of a patient with "an uncertain future" as a result of a recurrence of her cancer. Her doctor asks a range of questions, beginning with "What are your biggest concerns?" and moving on to "What's your understanding of the status of the tumor?" That question leads to an exchange in which the patient, having heard that treatments are available that can achieve some results, says "But there is no way of knowing it, right?" The doctor replies, "There are no established cures. Think very carefully about what treatments you do and don't want to have as these issues arise." The article says that the patient then "fired back with her wish to be 'alive again'"; that is, she replied ""It's more or less, I want to be alive again. Going here, going there. My husband, I want to be able to do things for him." And the doctor then asks, "What gives you strength?" and this question leads to discussion of shopping and the patient's husband teasing her about dressing up to watch TV at home. (The dialogue is recounted twice, with different details, at A1 and A16.)
In all this, the doctor never delivers a prognosis (the article says that he "had been called in to tell her the bad news: she was sicker than she realized, and the progrnosis did not look good"), and in fact the patient dies -- less than four months later -- without ever having been "told ... directy that she was going to die." Why not? The doctor felt that the essential precautions had been taken to protect her, through the appointment of her husband as a health care proxy, and that she had signalled to him that she wanted to "focus on the details of her everyday life, rather than a desire to foresee the future."
It's clearly part of autonomy for a person to know her fate as well as it can be known. But it also seems clearly part of autonomy for a person to decline this knowledge. The problem is that this is knowledge that is hard to explicitly decline when it is explicitly offered. So doctor and patient need to proceed by indirection. The patient does not say, "Don't tell me" and the doctor doesn't say "Would you rather not know?" Instead, the doctor asks the patient what her concerns are, and when the concerns she articulates have to do with everyday living, the doctor infers that she wants to focus on the elements of her life in her remaining time rather than on how much that remaining time is. If that decision does her no concrete harm, there's every reason to honor it -- except that there remains inescapable uncertainty about whether it was in fact her decision.
The article's account of this patient's grim final months seems to reflect that doctors continued to try to fight her cancer, rather than turning solely to "palliative care," though this isn't entirely clear. It would have been much more troubling if they had taken the conversation I described above as an authorization to provide only palliative care thereafter, since that course of action could very easily have done the patient concrete harm, defined as shortening her life. A patient might very reasonably choose that course, preferring not to endure the rigors of heroic treatments, or her health care proxy might make the same decision, but for the doctor to make the decision without the approval of the patient or the person she's chosen to speak for her would be hard to square with autonomy.
But if the doctors continued to fight the cancer, based on the requests of this patient, it must be said that the patient made those requests without explicitly knowing the best available answer to a relevant question, namely how long she had. (Her husband may have known, but the article seems to indicate that he didn't take over decisionmaking until almost the very end.) It's possible to argue that the likely prognostications would have been so uncertain and so error-prone that they wouldn't have had any relevance, but I doubt this. The problem with the information isn't that it would have been totally irrelevant, but that its degree of relevance might have been much less than its impact on the patient and on her thoughts and feelings. The doctor felt the patient was telling him that this was so, and that he was following her guidance. He may very well have been right. But, again, he could not ask her in so many words, nor could she answer in so many words. The critical communication had to take place implicitly and indirectly.
End-of-life discussions are far from the standard fare of doctors or lawyers. But I wonder how many critical pieces of information may also pass, and perhaps must pass, between lawyers and clients by similarly uncharted paths.
It's also hard not to think that the emotions that affect doctors' erroneous prognostications will also affect their assessments of when their patients wish to hear those prognoses -- and that the same will be true for lawyers. The particular palliative care physician at the center of the Times story wears "coolness" as "his armor," and seems disinclined to attempt prognoses in terms of days or weeks anyway, but surely the effort to respond to death with coolness itself affects what a physician hears his patients saying. So would a more emotional engagement with the patients. There is no entirely objective position from which to have conversations like this. Perhaps there is, in truth, no entirely objective position from which to have any conversation with a patient or client.
First, it reports that "Dr. Nicholas Christakis, an internist and social scientist at Harvard who has studied end-of-life care, has found that doctors are generally bad at making prognoses. The better they know a patient, the worse they are at prognosticating, possibly, Dr. Christakis has theorized, because they view death as a personal failure. Most predictions are overly optimistic, he has found, and the sicker the patient, the more likely the doctor is to overestimate the length of survival." (Page A16) Without having seen Dr. Christakis' study, it seems to me that another factor here may simply be empathy -- the better the doctors know the patients, the more they feel for them and the more they hope they'll survive and the more their predictions are shaped by their hopes. If accurate predictions are what we want here -- far from a self-evident proposition, as the article reflects -- then this would be a reason for doctors not to know their patients so well. It would, similarly, be a reason for lawyers not to know their clients so well.
Second, the article vividly illustrates the central role that communication without explicit words may play in some end-of-life discussions. The article tells the story of a patient with "an uncertain future" as a result of a recurrence of her cancer. Her doctor asks a range of questions, beginning with "What are your biggest concerns?" and moving on to "What's your understanding of the status of the tumor?" That question leads to an exchange in which the patient, having heard that treatments are available that can achieve some results, says "But there is no way of knowing it, right?" The doctor replies, "There are no established cures. Think very carefully about what treatments you do and don't want to have as these issues arise." The article says that the patient then "fired back with her wish to be 'alive again'"; that is, she replied ""It's more or less, I want to be alive again. Going here, going there. My husband, I want to be able to do things for him." And the doctor then asks, "What gives you strength?" and this question leads to discussion of shopping and the patient's husband teasing her about dressing up to watch TV at home. (The dialogue is recounted twice, with different details, at A1 and A16.)
In all this, the doctor never delivers a prognosis (the article says that he "had been called in to tell her the bad news: she was sicker than she realized, and the progrnosis did not look good"), and in fact the patient dies -- less than four months later -- without ever having been "told ... directy that she was going to die." Why not? The doctor felt that the essential precautions had been taken to protect her, through the appointment of her husband as a health care proxy, and that she had signalled to him that she wanted to "focus on the details of her everyday life, rather than a desire to foresee the future."
It's clearly part of autonomy for a person to know her fate as well as it can be known. But it also seems clearly part of autonomy for a person to decline this knowledge. The problem is that this is knowledge that is hard to explicitly decline when it is explicitly offered. So doctor and patient need to proceed by indirection. The patient does not say, "Don't tell me" and the doctor doesn't say "Would you rather not know?" Instead, the doctor asks the patient what her concerns are, and when the concerns she articulates have to do with everyday living, the doctor infers that she wants to focus on the elements of her life in her remaining time rather than on how much that remaining time is. If that decision does her no concrete harm, there's every reason to honor it -- except that there remains inescapable uncertainty about whether it was in fact her decision.
The article's account of this patient's grim final months seems to reflect that doctors continued to try to fight her cancer, rather than turning solely to "palliative care," though this isn't entirely clear. It would have been much more troubling if they had taken the conversation I described above as an authorization to provide only palliative care thereafter, since that course of action could very easily have done the patient concrete harm, defined as shortening her life. A patient might very reasonably choose that course, preferring not to endure the rigors of heroic treatments, or her health care proxy might make the same decision, but for the doctor to make the decision without the approval of the patient or the person she's chosen to speak for her would be hard to square with autonomy.
But if the doctors continued to fight the cancer, based on the requests of this patient, it must be said that the patient made those requests without explicitly knowing the best available answer to a relevant question, namely how long she had. (Her husband may have known, but the article seems to indicate that he didn't take over decisionmaking until almost the very end.) It's possible to argue that the likely prognostications would have been so uncertain and so error-prone that they wouldn't have had any relevance, but I doubt this. The problem with the information isn't that it would have been totally irrelevant, but that its degree of relevance might have been much less than its impact on the patient and on her thoughts and feelings. The doctor felt the patient was telling him that this was so, and that he was following her guidance. He may very well have been right. But, again, he could not ask her in so many words, nor could she answer in so many words. The critical communication had to take place implicitly and indirectly.
End-of-life discussions are far from the standard fare of doctors or lawyers. But I wonder how many critical pieces of information may also pass, and perhaps must pass, between lawyers and clients by similarly uncharted paths.
It's also hard not to think that the emotions that affect doctors' erroneous prognostications will also affect their assessments of when their patients wish to hear those prognoses -- and that the same will be true for lawyers. The particular palliative care physician at the center of the Times story wears "coolness" as "his armor," and seems disinclined to attempt prognoses in terms of days or weeks anyway, but surely the effort to respond to death with coolness itself affects what a physician hears his patients saying. So would a more emotional engagement with the patients. There is no entirely objective position from which to have conversations like this. Perhaps there is, in truth, no entirely objective position from which to have any conversation with a patient or client.
Saturday, August 22, 2009
"The Clinical Year"
On the question of how to bring law schools and lawyers together in the work of educating law students for the practice of law, I've recently posted online a short article I published in spring 2009 in my school's law review, the New York Law School Law Review. The piece is called "The Clinical Year." Here's the abstract:
"This article makes the case for the value -- and the feasibility, under current accreditation and related rules governing law schools -- of a clinical rotation for law students, modeled on the rotations that are a key part of medical school education. The 'clinical year,' which would engage students in almost full-time practice/study for their third year of law school, could be a significant step in building the complete apprenticeship that the Carnegie Foundation for the Advancement of Teaching has urged. It would also rely to a large extent on the supervision, and teaching, that adjunct law school faculty -- supervisors at the rotation settings -- would provide. In that respect, the 'clinical year' differs from in-house clinical education. The article addresses the differences in students' experience that this approach to bridging the gap between theory and practice would generate, and argues that this model is worth exploring, despite -- and in some respects because of -- these features."
You can download the full text from my Social Science Research Network page.
"This article makes the case for the value -- and the feasibility, under current accreditation and related rules governing law schools -- of a clinical rotation for law students, modeled on the rotations that are a key part of medical school education. The 'clinical year,' which would engage students in almost full-time practice/study for their third year of law school, could be a significant step in building the complete apprenticeship that the Carnegie Foundation for the Advancement of Teaching has urged. It would also rely to a large extent on the supervision, and teaching, that adjunct law school faculty -- supervisors at the rotation settings -- would provide. In that respect, the 'clinical year' differs from in-house clinical education. The article addresses the differences in students' experience that this approach to bridging the gap between theory and practice would generate, and argues that this model is worth exploring, despite -- and in some respects because of -- these features."
You can download the full text from my Social Science Research Network page.
Friday, August 14, 2009
Legal education and the limits of resources
If we start from the premise that students learn better if they have the opportunity to work closely with a faculty member than if they do not, we immediately face the problem of scarcity: how can a relatively limited number of faculty members engage on an individualized or small-group basis with a large number of students? There are many possible answers, but no simple ones.
We could, for example, double the number of faculty, but only by either doubling the cost of law school or halving aggregate faculty salaries. If we chose to double the cost of law school, in turn, we could either double tuition or find other revenue sources -- but it is hard to believe that our society wishes to double its investment in legal education, by whatever mechanism.
We could keep the number of faculty constant, but double the amount of teaching that we do, but only by reducing something else that we do by the same amount; unless that "something else" is of no value (and just to avoid being misread, I do think that scholarship has value!), reducing it will be a cost.
We could find ways to impart the knowledge and understanding currently conveyed in classes by some more efficient means that required less of faculty members' time, thereby freeing up faculty time for more individualized teaching; but it's not clear to me that there are more efficient means for helping large numbers of people to learn and work with law than our current Socratic classes. This doesn't abandon the original premise that students learn better from working closely with a faculty member; our large classes may be ideal for teaching up to a certain point, but at that point another, more individualized approach may be needed to help the students go further.
I've put all these in extreme ways, to be sure. There may be ways to make some valuable changes in each of these three respects (perhaps a subject for future posts). While legal education is often said to be a conservative institution, law schools have in fact developed more small-group, practice-related education over the past 30 years -- this is what the clinical legal education movement has been about -- and it's turned out to be quite possible to move in this direction without up-ending our institutions. Though we have not gone as far as many (myself included) would like, we may well be able to go further, and to do so by a relatively organic process in which this form of education gradually spreads as both existing and new faculty find it meaningful and worth carrying out.
But I wonder if we also need to "broaden the frame." Law school lasts only three years for full-time students. Put differently, full-time students normally go to school for 6 semesters, each with 14 weeks of classes, or 82 weeks of classes in all -- just over a year and a half of in-class instruction. That really isn't a great deal of time. It seems very likely (and there's some survey evidence to confirm) that much of what students learn in their law school years that prepares them for practice they are learning from their part-time or summer jobs, and that much of what newly admitted lawyers are actually doing is learning on the job. These observations suggest that we should try to understand our students' education as a process that continues in between classes and after graduation. If law schools can contribute to their students' out-of-class education as well as their in-class learning, they may be on the path to broaden the frame and the effectiveness of their students' preparation for practice.
We could, for example, double the number of faculty, but only by either doubling the cost of law school or halving aggregate faculty salaries. If we chose to double the cost of law school, in turn, we could either double tuition or find other revenue sources -- but it is hard to believe that our society wishes to double its investment in legal education, by whatever mechanism.
We could keep the number of faculty constant, but double the amount of teaching that we do, but only by reducing something else that we do by the same amount; unless that "something else" is of no value (and just to avoid being misread, I do think that scholarship has value!), reducing it will be a cost.
We could find ways to impart the knowledge and understanding currently conveyed in classes by some more efficient means that required less of faculty members' time, thereby freeing up faculty time for more individualized teaching; but it's not clear to me that there are more efficient means for helping large numbers of people to learn and work with law than our current Socratic classes. This doesn't abandon the original premise that students learn better from working closely with a faculty member; our large classes may be ideal for teaching up to a certain point, but at that point another, more individualized approach may be needed to help the students go further.
I've put all these in extreme ways, to be sure. There may be ways to make some valuable changes in each of these three respects (perhaps a subject for future posts). While legal education is often said to be a conservative institution, law schools have in fact developed more small-group, practice-related education over the past 30 years -- this is what the clinical legal education movement has been about -- and it's turned out to be quite possible to move in this direction without up-ending our institutions. Though we have not gone as far as many (myself included) would like, we may well be able to go further, and to do so by a relatively organic process in which this form of education gradually spreads as both existing and new faculty find it meaningful and worth carrying out.
But I wonder if we also need to "broaden the frame." Law school lasts only three years for full-time students. Put differently, full-time students normally go to school for 6 semesters, each with 14 weeks of classes, or 82 weeks of classes in all -- just over a year and a half of in-class instruction. That really isn't a great deal of time. It seems very likely (and there's some survey evidence to confirm) that much of what students learn in their law school years that prepares them for practice they are learning from their part-time or summer jobs, and that much of what newly admitted lawyers are actually doing is learning on the job. These observations suggest that we should try to understand our students' education as a process that continues in between classes and after graduation. If law schools can contribute to their students' out-of-class education as well as their in-class learning, they may be on the path to broaden the frame and the effectiveness of their students' preparation for practice.
Sunday, August 9, 2009
Apprenticeship and accreditation
This post, as you'll see, is not about South African law specifically but about legal education (another of my main professional interests, which I hope to discuss more in the future). I'll start with a reasonably modest proposition: if legal education should be a more complete apprenticeship for practice than it now is (the central argument of the Carnegie Foundation for the Advancement of Teaching's recent study of law schools), then it might be a good idea to eliminate those accreditation rules that block students from engaging more directly in apprenticeship while in law school. There are a number of these rules, and there may be good reasons to retain some or even all of them. Moreover, they are by no means absolute bars to apprenticeship experiences. But they share the characteristic that they divide legal education away from the legal profession itself, and so the logic of apprenticeship suggests they should be reexamined. For example:
Standard 304(c) requires 45,000 minutes of attendance in regularly scheduled class sessions at the law school, out of a total of 58,000 minutes of all sorts, for graduation. Using a 50-minute hour, this requirement calls for 900 hours of classroom study; assuming 14 hours per credit, the result is 64 credits of classroom study out of the 83 credits required for graduation. Obviously this simply doesn't leave very much room for nonclassroom study -- especially since a variety of activities, including moot court and law review, typically claim some of the nonclassroom credits. (In-house clinic work, however, can be counted towards the 45,000 minutes of classroom attendance.)
Standard 304(f) bars students from being "employed" for more than 20 hours per week in any semester in which they are taking courses totaling more than 12 class hours. It is striking that there is no such limit on, for example, students' work on a law review. This rule is especially troubling because it is so significantly paternalistic; while restricting students' work hours may encourage students to actually engage in their classes, to the benefit of others, the principal impact seems to be to tell each student what is good for him or her. Paternalism in education is not necessarily out of place, but this particular rule -- which bars students from too much of an experience that may actually be educational (as an apprenticeship), and that certainly defrays the cost of law school -- not only constrains students based on what it claims is good for them but may not be right in its claims. If students disregard it, its main effect may be to teach them to dissemble. Its exact impact, moreover, is unclear and could be quite startling. The term "employed" is not defined; if it includes work in an externship placement, or in a mandatory pro bono activity, or in a volunteer position, then the impact on student choice and experience would be even greater than if the provision applies only to paid work.
Standard 305 permits credit for nonclassroom study, for example in externships. The number of credits is limited by Standard 304, since these credits don't fall within the 45,000 required classroom minutes. In addition, Interpretation 305-3 bars granting credit to students for work for which they are paid. Clearly this Interpretation presses students to choose between earning income and participating in externship programs designed by law schools to have educational value (more educational value, by assumption, than simple employment would have -- though Northeastern's co-op program, and the theory of "ecological learning" that supports it, raise some questions about this assumption). The Interpretation also implicitly suggests that where students earn income for their work they are not being educated. Nothing could be more contrary to the ideal of lifelong learning that law schools aspire to impart to their students.
This Interpretation also makes it harder for students to earn the money to cover part of the cost of their education, and it likely makes it harder for students to invest in their placements the numbers of hours that would enable them to become more valuable members of those legal staffs. It's also possible that potential employers, though they undoubtedly get a benefit from having free externs under the current system, would be more willing to invest resources in educating students on the job if the students, by virtue of being paid, were encouraged to work enough hours to make that investment more likely to pay off.
Standard 306 permits distance education, but not for more than 4 classroom credits for a student in a term or more than 12 overall. Those limits mean, it would seem, that distance learning can be an adjunct to classroom learning, but not a substitute. Whatever the merits of that choice in terms of comparing the pedagogical value of a distance learning hour to a classroom hour -- a question now being examined by various innovators, including my New York Law School colleague Michael Perlin -- the impact of restricting the role of distance learning is to limit the degree to which students can make law school classroom study an adjunct to intensive out-of-class learning through apprenticeship experiences (at least for students who are not enrolled in a part-time program).
There are larger issues, to be sure. For instance, it might be argued that the provisions I've cited do not undercut educational apprenticeship, because that apprenticeship should be provided primarily within the law school itself, rather than in large or predominant part through work/learning experiences elsewhere. In that case, the rules to focus on would be those that constrain, or do not sufficiently support, the offering of clinical experiences to students. Those rules do deserve attention, but I think the rules I've mentioned here also need reconsideration, because in the long run it seems to me that an effort to provide apprenticeship education that relies solely on law schools' internal resources is unlikely to be successful. I hope to say more about that, and other related questions, in future posts.
Standard 304(c) requires 45,000 minutes of attendance in regularly scheduled class sessions at the law school, out of a total of 58,000 minutes of all sorts, for graduation. Using a 50-minute hour, this requirement calls for 900 hours of classroom study; assuming 14 hours per credit, the result is 64 credits of classroom study out of the 83 credits required for graduation. Obviously this simply doesn't leave very much room for nonclassroom study -- especially since a variety of activities, including moot court and law review, typically claim some of the nonclassroom credits. (In-house clinic work, however, can be counted towards the 45,000 minutes of classroom attendance.)
Standard 304(f) bars students from being "employed" for more than 20 hours per week in any semester in which they are taking courses totaling more than 12 class hours. It is striking that there is no such limit on, for example, students' work on a law review. This rule is especially troubling because it is so significantly paternalistic; while restricting students' work hours may encourage students to actually engage in their classes, to the benefit of others, the principal impact seems to be to tell each student what is good for him or her. Paternalism in education is not necessarily out of place, but this particular rule -- which bars students from too much of an experience that may actually be educational (as an apprenticeship), and that certainly defrays the cost of law school -- not only constrains students based on what it claims is good for them but may not be right in its claims. If students disregard it, its main effect may be to teach them to dissemble. Its exact impact, moreover, is unclear and could be quite startling. The term "employed" is not defined; if it includes work in an externship placement, or in a mandatory pro bono activity, or in a volunteer position, then the impact on student choice and experience would be even greater than if the provision applies only to paid work.
Standard 305 permits credit for nonclassroom study, for example in externships. The number of credits is limited by Standard 304, since these credits don't fall within the 45,000 required classroom minutes. In addition, Interpretation 305-3 bars granting credit to students for work for which they are paid. Clearly this Interpretation presses students to choose between earning income and participating in externship programs designed by law schools to have educational value (more educational value, by assumption, than simple employment would have -- though Northeastern's co-op program, and the theory of "ecological learning" that supports it, raise some questions about this assumption). The Interpretation also implicitly suggests that where students earn income for their work they are not being educated. Nothing could be more contrary to the ideal of lifelong learning that law schools aspire to impart to their students.
This Interpretation also makes it harder for students to earn the money to cover part of the cost of their education, and it likely makes it harder for students to invest in their placements the numbers of hours that would enable them to become more valuable members of those legal staffs. It's also possible that potential employers, though they undoubtedly get a benefit from having free externs under the current system, would be more willing to invest resources in educating students on the job if the students, by virtue of being paid, were encouraged to work enough hours to make that investment more likely to pay off.
Standard 306 permits distance education, but not for more than 4 classroom credits for a student in a term or more than 12 overall. Those limits mean, it would seem, that distance learning can be an adjunct to classroom learning, but not a substitute. Whatever the merits of that choice in terms of comparing the pedagogical value of a distance learning hour to a classroom hour -- a question now being examined by various innovators, including my New York Law School colleague Michael Perlin -- the impact of restricting the role of distance learning is to limit the degree to which students can make law school classroom study an adjunct to intensive out-of-class learning through apprenticeship experiences (at least for students who are not enrolled in a part-time program).
There are larger issues, to be sure. For instance, it might be argued that the provisions I've cited do not undercut educational apprenticeship, because that apprenticeship should be provided primarily within the law school itself, rather than in large or predominant part through work/learning experiences elsewhere. In that case, the rules to focus on would be those that constrain, or do not sufficiently support, the offering of clinical experiences to students. Those rules do deserve attention, but I think the rules I've mentioned here also need reconsideration, because in the long run it seems to me that an effort to provide apprenticeship education that relies solely on law schools' internal resources is unlikely to be successful. I hope to say more about that, and other related questions, in future posts.
Friday, August 7, 2009
Some thoughts about "engagement"
Still thinking about the remarkable Residents of Joe Slovo case:
In mandating engagement between the authorities (two responsible government officials and a government-created company) and the residents, the Court must walk a fine line. What exactly must each side do?
First, they must act "reasonably and in good faith," as Justice Sachs puts it (par 407). Justice Sachs in the same paragraph quotes this injunction from Olivia Road: those facing eviction must "not content themselves with an intransigent attitude or nullify the engagement process by making non-negotiable, unreasonable demands. People in need of housing are not, and must not be regarded as a disempowered mass. They must be encouraged to be pro-active and not purely defensive. Civil society organisations that support the people's claims should preferably facilitate th engagement process in every possible way." As a matter of law, one can imagine the elaboration of a body of principles and rules that explain what conduct is reasonable and in good faith, and what is, instead, intransigent or otherwise unreasonable. As a matter of practice, it seems the Court hopes that people "on the ground," such as "civil society organisations," will help to guide the process and to bring all sides to the table and to agreement or at least mutual respect. No doubt the Court would much prefer this practical accommodation to a fresh series of legal disputes, now focused on the elements of proper engagement.
Second, what if -- despite reasonable efforts on all sides -- the parties still disagree? The Joe Slovo decision makes clear that if agreement cannot be reached, the evictions that the authorities sought (and that the Court approves, after imposing a set of conditions meant to make the evictions comply with both the PIE statute and the constitution) will go forward. The residents, Justice Sachs notes, "state that engagement can only be meaniangful if the parties meet as equals without the eviction order hanging over them." (Par 402). This, however, the Court rejects. Justice Sachs writes, "It is important to note that the order of this Court requires meaningful engagement in relation to the stage the process has now reached. This does not envisage re-opening the basic modalities of the upgrading and relocation scheme." (Par 405).
Justice Ngcobo reasons similarly, saying: "What must be stressed ... is that the process of engagement does not require the parties to agree on every issue. What is required is good faith and reasonableness on both sides and the willingness to listen and understand the concerns of the others side.... Mutual understanding and accommodation of each others' concerns, as opposed to reaching agreement, should be the primary focus of meaningful engagement. Ultimately, the decision lies with the government. The decision must, however, be informed by the concerns raised by the residents during the process of engagement." (Par 244; emphasis added.)
Consistently with these views, the actual order shaped by the Constitutional Court -- an order whose detailed specification of the elements of protecting the residents in the process of eviction in itself attests to the justices' full "engagement" with the residents' plight -- requires the residents to leave the Joe Slovo Informal Settlement according to a 45-week schedule annexed to the order, unless the parties through engagement agree on different dates within 20 days from the date of the Court's decision. (Paragraph 7, sections 4-7). After that, the order directs the authorities "to engage with the affected residents in respect of each relocation that is to take place," at least one week prior to the scheduled date for the relocation; this engagement's focus is on how, rather than whether, to carry out the relocation, though no topic is ruled off limits. (Paragraph 10, section 11.)
Though the justices' attitudes to the residents' claims of lawful status varied dramatically, reflecting very different views of the relative weight of traditional legal interpretation and constitutional reconstruction, all were united in their concern for the residents. The order ultimately approved by the Constitutional Court provided the residents with many protections that they had not been able to secure from the authorities or from the lower court. Nevertheless, the Constitutional Court unanimously approved an eviction order -- in itself a painful and even ironic step in a South Africa trying to overcome the heritage of apartheid, in which "forced removals" were a notorious feature. In doing so, the Court deferred to the government's view that the Joe Slovo area could not be upgraded while the residents remained on the land, though the government's own housing policy had endorsed "a phased in situ upgrading approach [i.e., without relocations] to informal settlements, in line with international best practice" (par 364). Moreover, the Court made clear that engagement, important as it is, is circumscribed; a failure to agree would not block the evictions but instead would mean they went forward.
The Court's decision reflects the hope that engagement will still be meaningful to those facing eviction even though they do not have the power to block the evictions themselves. Whether such engagement will be viable seems uncertain; it may be that when disagreement has become as sharp as it was in this case (where residents at one point had burned tires to block a major highway running by their homes), it is too late for engagement to bring people back together. But perhaps it is not too late -- and it surely is worth the effort to try.
The Court, in any event, had no real alternative, if it believed, as it did, that the government's basic program was a reasonable exercise of its discretion in meeting its constitutional duty to provide housing. One could quarrel with this assessment, but the unanimity of the justices' decision on this score suggests that the Court felt -- reasonably, it seems to me -- that a contrary decision would have invaded the core policymaking discretion of a democratically-elected government.
The relocations had to be upheld, or the residents (and other residents in the future) would have a veto that might benefit neither themselves nor others waiting for housing. Thus Justice O'Regan writes that "a consideration that to my mind weighs heavily in the balance is that is not only the occupiers who are affected by the plan. Thousands of other households have already co-operated with the respondents [the government authorities] in the hope that their co-operation will hasten the building of the housing project and result in their receiving permanent housing." (Par 303). Justice Sachs makes a similar point, saying that the plight of these other households is "highly relevant ... to the justness and equity of requiring residents who are stalling development to accept temporary relocation." (par 398) It seems fair to read in these comments some measure of judicial impatience with the remaining residents.
The Court's response was not, however, to disregard the residents' concerns. Instead, it sought to uphold the program while restoring the link between those carrying out the program and those who were the program's subjects. The goal is to recognize the residents as people while also recognizing the rights of the whole of South Africa's people to make binding decisions. This is not an easy matter, but it is the right way to go.
In mandating engagement between the authorities (two responsible government officials and a government-created company) and the residents, the Court must walk a fine line. What exactly must each side do?
First, they must act "reasonably and in good faith," as Justice Sachs puts it (par 407). Justice Sachs in the same paragraph quotes this injunction from Olivia Road: those facing eviction must "not content themselves with an intransigent attitude or nullify the engagement process by making non-negotiable, unreasonable demands. People in need of housing are not, and must not be regarded as a disempowered mass. They must be encouraged to be pro-active and not purely defensive. Civil society organisations that support the people's claims should preferably facilitate th engagement process in every possible way." As a matter of law, one can imagine the elaboration of a body of principles and rules that explain what conduct is reasonable and in good faith, and what is, instead, intransigent or otherwise unreasonable. As a matter of practice, it seems the Court hopes that people "on the ground," such as "civil society organisations," will help to guide the process and to bring all sides to the table and to agreement or at least mutual respect. No doubt the Court would much prefer this practical accommodation to a fresh series of legal disputes, now focused on the elements of proper engagement.
Second, what if -- despite reasonable efforts on all sides -- the parties still disagree? The Joe Slovo decision makes clear that if agreement cannot be reached, the evictions that the authorities sought (and that the Court approves, after imposing a set of conditions meant to make the evictions comply with both the PIE statute and the constitution) will go forward. The residents, Justice Sachs notes, "state that engagement can only be meaniangful if the parties meet as equals without the eviction order hanging over them." (Par 402). This, however, the Court rejects. Justice Sachs writes, "It is important to note that the order of this Court requires meaningful engagement in relation to the stage the process has now reached. This does not envisage re-opening the basic modalities of the upgrading and relocation scheme." (Par 405).
Justice Ngcobo reasons similarly, saying: "What must be stressed ... is that the process of engagement does not require the parties to agree on every issue. What is required is good faith and reasonableness on both sides and the willingness to listen and understand the concerns of the others side.... Mutual understanding and accommodation of each others' concerns, as opposed to reaching agreement, should be the primary focus of meaningful engagement. Ultimately, the decision lies with the government. The decision must, however, be informed by the concerns raised by the residents during the process of engagement." (Par 244; emphasis added.)
Consistently with these views, the actual order shaped by the Constitutional Court -- an order whose detailed specification of the elements of protecting the residents in the process of eviction in itself attests to the justices' full "engagement" with the residents' plight -- requires the residents to leave the Joe Slovo Informal Settlement according to a 45-week schedule annexed to the order, unless the parties through engagement agree on different dates within 20 days from the date of the Court's decision. (Paragraph 7, sections 4-7). After that, the order directs the authorities "to engage with the affected residents in respect of each relocation that is to take place," at least one week prior to the scheduled date for the relocation; this engagement's focus is on how, rather than whether, to carry out the relocation, though no topic is ruled off limits. (Paragraph 10, section 11.)
Though the justices' attitudes to the residents' claims of lawful status varied dramatically, reflecting very different views of the relative weight of traditional legal interpretation and constitutional reconstruction, all were united in their concern for the residents. The order ultimately approved by the Constitutional Court provided the residents with many protections that they had not been able to secure from the authorities or from the lower court. Nevertheless, the Constitutional Court unanimously approved an eviction order -- in itself a painful and even ironic step in a South Africa trying to overcome the heritage of apartheid, in which "forced removals" were a notorious feature. In doing so, the Court deferred to the government's view that the Joe Slovo area could not be upgraded while the residents remained on the land, though the government's own housing policy had endorsed "a phased in situ upgrading approach [i.e., without relocations] to informal settlements, in line with international best practice" (par 364). Moreover, the Court made clear that engagement, important as it is, is circumscribed; a failure to agree would not block the evictions but instead would mean they went forward.
The Court's decision reflects the hope that engagement will still be meaningful to those facing eviction even though they do not have the power to block the evictions themselves. Whether such engagement will be viable seems uncertain; it may be that when disagreement has become as sharp as it was in this case (where residents at one point had burned tires to block a major highway running by their homes), it is too late for engagement to bring people back together. But perhaps it is not too late -- and it surely is worth the effort to try.
The Court, in any event, had no real alternative, if it believed, as it did, that the government's basic program was a reasonable exercise of its discretion in meeting its constitutional duty to provide housing. One could quarrel with this assessment, but the unanimity of the justices' decision on this score suggests that the Court felt -- reasonably, it seems to me -- that a contrary decision would have invaded the core policymaking discretion of a democratically-elected government.
The relocations had to be upheld, or the residents (and other residents in the future) would have a veto that might benefit neither themselves nor others waiting for housing. Thus Justice O'Regan writes that "a consideration that to my mind weighs heavily in the balance is that is not only the occupiers who are affected by the plan. Thousands of other households have already co-operated with the respondents [the government authorities] in the hope that their co-operation will hasten the building of the housing project and result in their receiving permanent housing." (Par 303). Justice Sachs makes a similar point, saying that the plight of these other households is "highly relevant ... to the justness and equity of requiring residents who are stalling development to accept temporary relocation." (par 398) It seems fair to read in these comments some measure of judicial impatience with the remaining residents.
The Court's response was not, however, to disregard the residents' concerns. Instead, it sought to uphold the program while restoring the link between those carrying out the program and those who were the program's subjects. The goal is to recognize the residents as people while also recognizing the rights of the whole of South Africa's people to make binding decisions. This is not an easy matter, but it is the right way to go.
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