As a lawyer who examines the development of civil rights throughout Latin America it is quite remarkable to observe the explosion in the adoption of affirmative action policies in the Global South just as the United States Supreme Court is considering further limitations or extermination of affirmative action in the case of Fisher v. Texas.  As a decision is expected within the next two weeks, one thing I hope the Court will consider is that research in the field of cognitive psychology reveals that we all harbor biases and that affirmative action policies assist in addressing those biases.

Part of the reason for enduring social hierarchies is that individuals rely on stereotypes to process information and have biases that they don’t know they have.  These implicit biases, as psychologists call them, are picked up over a lifetime, absorbed from our culture, and work automatically to color our perceptions and influence our choices.

Over a decade of testing with six million participants of the collaborative research venture between Harvard University, University of Virginia, and the University of Washington, called “Project Implicit,” demonstrates pervasive ongoing bias against non-Whites and lingering suspicion of Blacks in particular.  Some 75% of Whites, Latinos, and Asians show a bias for Whites over Blacks.  In addition, Blacks also show a preference for Whites.

In the educational context, studies of school teachers indicate that teachers generally hold differential expectations of students from different ethnic origins, and that implicit prejudiced attitudes were responsible for these differential expectations as well as the ethnic achievement gap in their classrooms. This is because teachers who hold negative prejudiced attitudes appear more predisposed to evaluate their ethnic minority students as being less intelligent and having less promising prospects for their school careers.

The pervasive existence of implicit bias in society and its manifestation in the educational setting, strongly suggests that the selection of students can be similarly affected by unexamined stereotypes and implicit biases.  Bluntly stated university Admission Offices are not immune from the operation of implicit bias.

But we are not slaves to our implicit associations.  The social science research indicates that biases can be overridden with concerted effort.  Remaining alert to the existence of the bias and recognizing that it may intrude in an unwanted fashion into judgments and actions, can help to counter the influence of the bias. Instead of repressing one’s prejudices, if one openly acknowledges one’s biases, and directly challenges or refutes them, one can overcome them.

Affirmative action programs provide Admission Officers the needed space for acknowledging and addressing implicit bias.  Having a race-conscious admissions policy encourages decision makers to consider the accomplishments and potential of students that their unexamined implicit bias might have otherwise overlooked.  When institutionally activated, egalitarian goals undermine and inhibit stereotyping.

Furthermore, affirmative action policies also provide the needed sense of accountability with the expectation that Admission Officers may be called on to justify their aggregate decision results to others.  Research finds that having a sense of accountability can decrease the influence of bias, and encourage decision makers to self-check for bias.  Numerous social psychology studies demonstrate that fair-minded people are usually unable to detect unfairness in their decision making in the absence of aggregate data.  Affirmative Action provides the systematic aggregate data to ferret out unconscious bias in admissions decisions by showing any patterns of exclusion however unintentional.

This is why Jerry Kang and Mahzarin Banaji in a California Law Review article, propose that the law of affirmative action be expanded to conceive of the program participants as “de-biasing agents” that help to diminish discrimination. This is because the research demonstrates that exposure to racial group members in non-stereotyped positions helps to decrease implicit bias routed in stereotyped perspectives.  Envisioning affirmative action program participants as assisting in the fight against racial discrimination rather than as the recipients of a benefit reinforces the continuing legality of government-based affirmative action as a compelling state interest.

In short, affirmative action simply acts like a pair of corrective lenses for decision-makers for whom a long history of race-based stereotyping would otherwise influence them to unconsciously view applicants of color as presumptively less desirable.  The corrective lenses of affirmative action don’t in of themselves grant applicants of color coveted positions – they simply permit applicants of color to be seen and thus considered fairly in the first place despite the continuing existence of racism in our society.  As long as racism continues to impair our societal vision, affirmative action will be needed as one small corrective measure to ensure the fair consideration of all applicants.

This article was published on 6/15/13 by Huffington Post.  Read it here.

For nearly three weeks, thousands of protestors have gathered peacefully at Occupy Gezi in Taksim Square in Istanbul. Turkish police have unleashed a brutal crackdown, resulting in three confirmed deaths and nearly 5,000 injured. According to Turkish lawyer Kerem Gulay, a Fulbright Scholar and doctoral student at Cornell Law School, police tactics include excessive beatings with police batons and rifle handles, and the use of pepper spray and other chemicals, rubber bullets, and, allegedly, real bullets.

In order to provide a pretext for police aggression against peaceful protestors, undercover police officers, acting as agents provocateurs, threw Molotov cocktails Tuesday at police, after which police launched a vicious attack on protestors.

A broad coalition of groups courageously gathered in Taksim Square is protesting neoliberal governmental policies, including economic, agricultural and environmental policies, human rights abuses, mass detentions, privatization of water resources, attacks on freedom of the press and on freedom of religion, and the treatment of Kurdish citizens of Turkey. The protestors’ politics range from moderate to center right to nationalist to left liberal to extreme leftist. “All these people have in common,” Gulay told me, “is they are critical of government policies.”

When lawyers were issuing a press statement decrying the mass detentions of their clients, some 50 lawyers were arrested and dragged on the ground by riot police. Many lawyers were injured before they were released 10 hours later. Nearly 3,000 lawyers gathered at the courthouse Tuesday to protest these detentions.

There is an ongoing and dangerous process of criminalization of lawyers in Turkey. Nine of fifteen lawyers arrested on January 18, 2013, for representing unpopular clients, remain in custody without charges or access to legal papers about their cases. On that date, police raided the Istanbul and Ankara offices of the Progressive Lawyers Association (CHD), a member organization of the International Association of Democratic Lawyers (IADL). Twelve CHD officers or members were violently detained under vague terrorism-related allegations. They were interrogated about their representation of clients. They were denied water and the use of a bathroom.

These arrests, detentions, and seizure of property—including confidential client files—violate theInternational Covenant on Civil and Political Rights. The cases are pending in the Special Heavy Penal Courts, which have jurisdiction over “terrorism” proceedings. Their use of secret evidence and repressive procedures have been condemned by several international and regional human rights monitoring bodies and mechanisms. The United Nations Special Rapporteur on the Independence of Judges and Lawyers, Gabriela Knaul, who recently visited Turkey, strongly criticized [PDF] the Special Heavy Penal Courts, saying their “special authority” does not comply with human rights standards on fair trial, and they should therefore be abolished.

A group of 500 lawyers who went to the courthouse to protest the lawyers’ detention in January were assaulted by police. The Istanbul Bar Association lambasted the unlawful raids as an “explicit attack towards the legal profession and its honor, as well as the people’s right to legal remedies.”

When I visited Istanbul as a representative of IADL in April, I met with officers of the Istanbul Bar Association, and I spoke with lawyers who had been arrested and released after the January raid. Some are members of CHD. Many specialize in defending victims of torture, arbitrary detention, extrajudicial executions, police brutality and other human rights violations. They also provide free legal assistance in terrorism-related cases, and those involving freedom of expression or protection of the environment. Because of their work in defending clients who challenge government policies, CHD lawyers have been targeted by the government and the police.

Knual also reaffirmed the principle that a government should not identify lawyers with the causes of their clients. The United Nations Basic Principles on the Role of Lawyers mandate that governments ensure lawyers are able to perform their professional functions without intimidation, hindrance, harassment or improper interference. They also provide that lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions.

The president of the Istanbul Bar Association has been accused of contempt of court for protesting the January detentions of lawyers. According to the 2010 US State Department country report on Turkey, there are more than 10,000 people suspected of “terrorism” in Turkey (one-third of the world’s terrorism suspects). Several hundred students, as well as army officials, journalists, lawyers, academics, Kurdish activists, nationalist activists, soldiers and members of the Turkish parliament are in prison, Gulay said.

Frequent and systematic repression against political and human rights activists in Turkey, particularly lawyers and journalists, has been well documented. This year alone, representatives of IADL witnessed evidence of the Turkish state’s enforcement of broad and oppressive laws to suppress political dissent from journalists, lawyers, trade unionists and citizens.

The Turkish government must immediately halt all police repression against Turkey’s protestors, including police beatings, the use of tear gas and other chemicals; release all detained protesters who were expressing their fundamental right to freedom of expression; and launch an immediate investigation into the human rights abuses committed against the Turkish people since the beginning of the protests, including an investigation into the unlawful use of tear gas and other chemicals.

Taksim Solidarity, the group that was organized before the recent demonstrations to stop the notorious Taksim project of the government, and which has become the voice of the resistance, has declared June 13 International Day of Solidarity with the resisting people in Turkey. Taksim Solidarity invites progressive people around the world to condemn the police violence carried out by the direct order of the government and to show their solidarity. CHD has also issued a call for international solidarity and asks lawyers organizations and human rights organizations to express their concerns to the Turkish government and state bodies. IADL calls upon people throughout the world to join us in demanding an end to the violence against Turkish protestors and accountability.

This article was published on June 13, 2013 by the Jurist.  Read it here.

by Marjorie Cohn

Just as Bradley Manning’s court-martial was getting underway, another brave whistleblower dropped a bombshell into the media: The Obama administration is collecting data on every telephone call we make. Nearly 64 years to the day after George Orwell published his prescient book 1984, we have learned that the “Thought Police” are indeed watching every one of us. “They quite literally can watch your ideas form as you type,” Edward Snowden told the Washington Post.

A former undercover CIA employee who has worked at the National Security Agency (NSA) for four years, Snowden provided a secret order of the Foreign Intelligence Surveillance Court to the Guardian. The order requires Verizon on an “ongoing daily basis” to provide the NSA information about all phone calls in its system both in the United States and other countries. Glenn Greenwald wrote that it “shows for the first time that under the Obama administration the communication records of millions of U.S. citizens are being collected indiscriminately and in bulk – regardless of whether they are suspected of any wrongdoing.” That secret order is scheduled for declassification on April 12, 2038.

The order, issued under Section 215 of the Patriot Act, mandates that Verizon provide daily phone records for all “communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.” The government is collecting “metadata” on our phone communications. That is, the identities of the sender and recipient, and the date, time, duration, place, and unique identifiers of the communication. Administration officials defending the program claim they are not reading the content of our calls.

But, as ACLU’s Ben Wizner and Jay Stanley note, “Even without intercepting the content of communications, the government can use metadata to learn our most intimate secrets – anything from whether we have a drinking problem to whether we’re gay or straight … The ‘who,’ ‘when’ and ‘how frequently’ of communications are often more revealing than what is said or written.” For example, “Repeated calls to Alcoholics Anonymous, hotlines for gay teens, abortion clinics or a gambling bookie may tell you all you need to know about a person’s problem.” And, they add, “URLs often contain content – such as search terms embedded within them,” so that “the very fact that we’ve visited a page with a URL such as ‘www.webmd.com/depression‘ can be every bit as revealing as the content of an email message.”

“Under the Bush administration, officials in security agencies had disclosed to reporters the large-scale collection of call records data by the NSA,” Greenwald wrote, “but this is the first time significant and top-secret documents have revealed the continuation of the practice on a massive scale under President Obama.” He added, “The unlimited nature of the records being handed over to the NSA is extremely unusual. FISA court orders typically direct the production of records pertaining to a specific named target who is suspected of being an agent of a terrorist group or foreign state, or a finite set of individually named targets.”

Ron Wyden and Mark Udall, members of the Senate select committee on intelligence, have been reviewing secret intelligence collections operations for a long time. “We believe most Americans would be stunned to learn the details of how these secret court opinions have interpreted Section 215 of the Patriot Act,” they wrote in a letter to Attorney General Eric Holder last year.

“After years of review,” Wyden and Udall wrote after Snowden’s revelations, “we believe statements that this very broad Patriot Act collection has been ‘a critical tool in protecting the nation’ do not appear to hold up under close scrutiny. We remain unconvinced that the secret Patriot Act collection has actually provided any uniquely valuable intelligence.” They added, “As far as we can see, all of the useful information that it has provided appears to have also been available through other collection methods that do not violate the privacy of law-abiding Americans in the way that the Patriot Act collection does.”

According to Wyden and Udall, “When Americans call their friends and family, whom they call, when they call, and where they call from is private information. We believe the large-scale collection of this information by the government has a very significant impact on Americans’ privacy, whether senior government officials recognize that fact or not.”

In addition, Greenwald, and the Washington Post, reported on the existence of PRISM, the NSA’s Internet surveillance system that collects data from Google, Yahoo, Microsoft, Facebook, PalTalk, AOL, Skype, YouTube and Apple. Established pursuant to Section 702 of the Foreign Intelligence Surveillance Act (FISA) and the 2008 FISA Amendments Act, PRISM allows national security officials to collect material including search history, the content of emails, file transfers and live chats, if targeted at foreigners “reasonably believed” to be abroad, even if the surveillance takes place on US soil. The law forbids intentionally targeting data collection at American citizens or anyone in the United States. But, according to Greenwald, “The law allows for the targeting of any customers of participating firms who live outside the US, or those Americans whose communications include people outside the US.”

According to materials obtained by the Post, “NSA reporting increasingly relies on PRISM” as its primary source of raw material, and accounts for one in seven intelligence reports.

After the surveillance became public, a senior intelligence official who spoke anonymously to the New York Times claimed that PRISM thwarted a 2009 plot by Najibullah Zazi to bomb the New York City subway system. But public legal documents reveal that “old-fashioned police work, not data mining, was the tool that led counterterrorism agents to arrest Zazi,” according to Ben Smith at BuzzFeed.

Snowden revealed the secret information because, he said, “What they’re doing” poses “an existential threat to democracy.” He leaked the documents at great risk to himself. “I’m willing to sacrifice [his home and family] because I can’t in good conscience allow the US government to destroy privacy, internet freedom and basic liberties for people around the world with this massive surveillance machine they’re secretly building.”

Snowden said, “Everyone, everywhere now understands how bad things have gotten – and they’re talking about it. They have the power to decide for themselves whether they are willing to sacrifice their privacy to the surveillance state.”

The contrast between liberty and security is not a new one. Benjamin Franklin warned, “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor security.” Throughout our history, we have grappled with this apparent tension. Unfortunately, all too often, we have lost our liberties – with no tangible benefit.

Senator Dianne Feinstein, chairwoman of the Senate Intelligence Committee, defended the massive intelligence-gathering program, while admitting she did not know how the collected data was being used. The New York Times called her defense “absurd.” Greenwald tweeted, “The reason there are leakers is precisely because the govt is filled with people like Dianne Feinstein who do horrendous things in secret.”

When Obama ran for president in 2008, he promised change – change from the policies of the Bush administration. The only change he has made in the Bush surveillance policy is to increase it to dragnet-like proportions.

Both Congress – by dutifully rubber-stamping the executive’s requests for almost unlimited snooping powers – and the courts – by affirming those policies – have acquiesced in the unprecedented surveillance of us all. It thus remains for We the People to pressure the government to heed Benjamin Franklin’s chilling admonition. As Snowden said, “It’s important to send a message to government that people will not be intimidated.” If we don’t, we will live in nothing less than a police state.

Copyright, Truthout.org. Reprinted with permission.  Read it here.

Although whistleblower Bradley Manning pled guilty to 10 offenses that will garner him 20 years in custody, military prosecutors are pursuing further charges – aiding the enemy and violation of the Espionage Act – that carry life in prison.

The court-martial of Bradley Manning, the most significant whistleblower case since Daniel Ellsberg leaked the Pentagon Papers, has begun. Although Manning pled guilty earlier this year to 10 offenses that will garner him 20 years in custody, military prosecutors insist on pursuing charges of aiding the enemy and violation of the Espionage Act, carrying life in prison. The Obama administration, which has prosecuted more whistleblowers under the Espionage Act than all prior presidencies combined, seeks to send a strong message to would-be whistleblowers to keep their mouths shut.

A legal duty to report war crimes

Manning is charged with crimes for sending hundreds of thousands of classified files, documents and videos, including the “Collateral Murder” video, the “Iraq War Logs,” the “Afghan War Logs” and State Department cables to Wikileaks. Many of the things he transmitted contain evidence of war crimes.

The “Collateral Murder” video depicts a US Apache attack helicopter killing 12 civilians and wounding two children on the ground in Baghdad in 2007. The helicopter then fired on and killed the people trying to rescue the wounded. Finally, a US tank drove over one of the bodies, cutting the man in half. These acts constitute three separate war crimes.

Manning fulfilled his legal duty to report war crimes. He complied with his legal duty to obey lawful orders but also his legal duty to disobey unlawful orders.

Section 499 of the Army Field Manual states, “Every violation of the law of war is a war crime.” The law of war is contained in the Geneva Conventions.

Article 85 of the First Protocol to the Geneva Conventions describes making the civilian population or individual civilians the object of attack as a grave breach. The firing on and killing of civilians shown in the “Collateral Murder” video violated this provision of Geneva.

Common Article 3 of the Geneva Conventions requires that the wounded be collected and cared for. Article 17 of the First Protocol states that the civilian population “shall be permitted, even on their own initiative, to collect and care for the wounded.” That article also says, “No one shall be harmed . . . for such humanitarian acts.” The firing on rescuers portrayed in the “Collateral Murder” video violates these provisions of Geneva.

Finally, Section 27-10 of the Army Field Manual states that “maltreatment of dead bodies” is a war crime. When the Army jeep drove over the dead body, it violated this provision.

Enshrined in the US Army Subject Schedule No. 27-1 is “the obligation to report all violations of the law of war.” At his guilty plea hearing, Manning explained that he had gone to his chain of command and asked them to investigate the “Collateral Murder” video and other “war porn,” but his superiors refused. “I was disturbed by the response to injured children,” Manning stated. He was also bothered by the soldiers depicted in the video who “seemed to not value human life by referring to [their targets] as ‘dead bastards.’ ”

The Uniform Code of Military Justice sets forth the duty of a service member to obey lawful orders. But that duty includes the concomitant duty to disobey unlawful orders. An order not to reveal classified information that contains evidence of war crimes would be an unlawful order. Manning had a legal duty to reveal the commission of war crimes.

No reason to believe leak could harm US or aid foreign power

To prove Manning violated the Espionage Act, prosecutors must prove beyond a reasonable doubt that he had “reason to believe” the files could be used to harm the United States or aid a foreign power. When he pled guilty, Manning stated, “I believed if the public, particularly the American public, could see this, it could spark a debate on the military and our foreign policy in general as it applied to Iraq and Afghanistan.” He added, “It might cause society to reconsider the need to engage in counterterrorism while ignoring the situation of the people we engaged with every day.” These are hardly the words of a man who thought his actions could harm the United States or help a foreign power. To the contrary. Manning will be permitted to introduce evidence about his belief that certain documents would not cause harm to national security if publicly released. It was after Wikileaks published evidence of the commission of war crimes against the Iraqi people that Iraq refused to grant criminal and civil immunity to US troops if their stay in Iraq was prolonged, causing Obama to withdraw them from Iraq. This saved myriad American and Iraqi lives.

Making an example: cruel, inhuman and degrading treatment

Manning was 22 years old when he courageously committed the acts for which he stands criminally accused. For the first 11 months of his confinement, he was held in solitary confinement and subjected to humiliating forced nudity during inspection. In fact, Juan Mendez, UN special rapporteur on torture, characterized the treatment of Manning as cruel, inhuman and degrading. He said, “I conclude that the 11 months under conditions of solitary confinement (regardless of the name given to his regime by the prison authorities) constitutes, at a minimum, cruel, inhuman and degrading treatment in violation of article 16 of the Convention against Torture. If the effects in regards to pain and suffering inflicted on Manning were more severe, they could constitute torture.” Mendez could not conclusively say Manning’s treatment amounted to torture because he was denied permission to visit Manning under acceptable circumstances. Mendez also concluded that, “Imposing seriously punitive conditions of detention on someone who has not been found guilty of any crime is a violation of his right to physical and psychological integrity as well as of his presumption of innocence.”

Obama himself has also violated Manning’s presumption of innocence, saying two years ago that Manning “broke the law.” But although the Constitution requires the President to enforce the laws, Obama refuses to allow the officials and lawyers from the Bush administration who sanctioned and carried out a regime of torture – which constitutes a war crime under Geneva – to be held legally accountable. Apparently if Bradley Manning had committed war crimes, instead of exposing them, he would be a free man, instead of facing life in prison for his heroic deeds.

This article was published on 6/3/13 copyright, Truthout.org. Reprinted with permission.  Read it here.

Here’s where I disagree with Professor Tamanaha.  It’s not that SALT has been silent or callous about the rise of student debt.  As Dean Van Cleave so passionately stated in her recent blog, to solve the economic problem the profession faces, we have to answer the hard and existential question of who lawyers are and what role we play within a democratic society.

Since its inception in 1974, SALT has been trying to change what it means to be a lawyer.  We have tried by introducing more clinics, more jurisprudence focused on vulnerable populations, and an urgent sense that law can balance inequality. We have tried to transform the law schools where we teach to attract a new generation of students who will make it their task to increase access to justice.  In seeing so much unemployment and underemployment among recent law graduates, loaded with student debt, while as much as 80% of legal needs of low and moderate income residents remain unmet, well, this is where we have failed.  We haven’t connected getting graduates employed with this unmet need.  Focusing only on a way to cut the cost of legal education seems shallow and ruthless; it turns law schools into businesses at the hands of acquiring hedge funds.  Finding a way to use the resources of law schools to incubate new, cost-effective ways to provide legal serves to those in need, beyond the categorically poor, seems a visionary opportunity.

SALT has worked to change the culture of legal education by insisting upon a curriculum rich with a principled critique of our liberal democracy and an understanding that it is an attorney’s professional responsibility to improve the quality of the legal system and increase access to justice.  For over twenty-five years, we have organized public interest retreats across the country, so that law school students can meet each other and regional public interest practitioners to reinforce a commitment to use the law as an instrument for social change.  That battle over curricular content has not succeeded in striking down the pervasive myth, fueled by a culture of greed, that a career in law is the road to a Bentley, a Rolex, and a private jet.

Where is Atticus Finch!  Law is a service profession.  Somehow that has gotten lost. Consequently, as the popularity of law schools increased, as guaranteed student loans funded wild expansion of facilities, faculties, and student services, as U.S. News & World Report rankings fired up competition among law schools, progressive faculty were complacent, because we saw our influence working as the curriculum expanded to include our contributions and scholarship.

According to the most recent Lawyer Demographics, issued in April 2012, in 2011, there were 1,245,205 licensed attorneys in the United States. Big law has always been the exception not the prevalent mode of practice: only 1% of law firms have 101 or more attorneys.  That percentage has remained consistent since at least 1980.  Yet that setting became the centerpiece of too much marketing about what it means to be a lawyer. Mergers, technology and globalization have shifted where attorneys practice. Government and private industry have both seen decreases since 1980 in the percentage of lawyers practicing there.  Private practice settings have risen from 68% in 1980 to 75% in 2005.  Like everything else, the profession itself is morphing.

Solo practice consistently remains nearly half of the private bar.  Smaller law firms are disappearing: in 1980, 22% of private practice lawyers were in firms with 2-5 lawyers, decreasing by over a third to 14% in 2005.  Firms with 6-10 lawyers have fallen by a third as well, from 9% to 6% of the private bar.  And mid-sized firms are disappearing, with firms of 51-100 members falling by almost a half from 7% in 1980 to just 4% in 2005.  Median annual pay for a lawyer in May 2010 was $112, 762.

We have failed to stop our law schools from marketing themselves to prospective students as the way to become rich and famous.  At SALT’s first B.A. to J.D. Pipeline event, held in November 2011 at St. John’s University School of Law, Sarah Redfield, now professor emeritus at University of New Hampshire School of Law, confronted Robert Morse, director of data research at U.S. News & World Report, and the man in charge of the annual college and law school rankings.  She threw a pile of law school marketing materials intended to attract high performing students and improve the reputations of individual law schools into a waste basket and declared it was time for us to just say no to “law school porn.”

Turning our backs on those pernicious rankings is a lofty goal.  Doing so is nearly impossible. Too often our hubris gets in the way.  Most of us don’t teach at the top ten law schools. We teach at law schools where students can graduate with the skills and insights to serve local populations of ordinary people.  Those U.S. News & World Report rankings, no matter how much we hate them, drive too much of each law school’s annual budget.   So where we have been complacent is not fighting back as we saw the culture of our schools shift, no matter what tier, dangling a starting salary of $160,000 instead of desperately trying to attract students who might have an interest to open a community-serving practice. With student debt so high, and the economics of law practice evolving, that career path faded under the false promise of celebrity and riches.

Progressive faculty could not turn back the tide of the cost of law school as guaranteed student loans became so prominent.  The cost of higher education has soared because of the availability of loans just as the cost of health care increased with the availability of insurance.  That’s American capitalism at its worst.  We could not have stopped our deans from hiring more administrative staff, development, and marketing folks to promote the school in the mad rush for recognition by U.S. News.  We did continue to fight for justice by demanding more clinical education, more diversity jurisprudence, more opportunities for students to see that they could effect the quality of justice.  We did continue to fight because SALT cares about who is admitted to law school, what is taught, and who is teaching.  However, the economic reality caught up with all of us throughout higher education.

That’s why CUNY School of Law’s Incubator for Justice, conceived by Professor Fred Rooney (who is on a Fulbright this year)  and the low bono model developed by Luz Herrera at Thomas Jefferson are examples of what law schools should be engaged in: developing new models for the delivery of legal services that allow students to work where they’re needed and qualify for the College Cost Reduction and Access Act of 2007, which includes loan forgiveness as a way of making law school affordable.

There is no better place than SALT to have this complex discussion about our responsibility to the profession and to our students.  This isn’t just a discussion about cost.  This requires an examination of what it means to be a lawyer, the role law plays in promoting democracy and fairness, and, yes, how the structure of law school and how reform, not just cost cutting, can improve the profession.

A working group appointed by the NJ Supreme Court released on May 16, 2013 a report and recommendations dated April 30,2013 in which it urges adoption of a 50 hour law-related pro bono service requirement as a condition of admission to the NJ Bar.  The proposed rule is modeled on New York’s rule, but differs in various respects, as described below.  NJ is the third state, after California and Connecticut in which a recommendation to adopt a pro bono service requirement inspired by the NY model is now awaiting final approval.  The  NJ Court has invited submission of comments on the proposed rule by June 21, 2013.

In its report, the working group explained that adoption of the requirement is warranted in order to:

Tuesday, May 7, 2013
Future of the legal profession
Many books and articles in the last few years describe a ”profession in crisis” with no shortage of demons to blame: many equity partners in large law firms pursuing ever increasing profits, tenured law professors sitting on big salaries with no incentive to change how they teach, accrediting institutions imposing expensive regulation on law schools, and the examples of finger-pointing continue. In the words of YouTube sensation Kid President, “I think we all need a pep talk.” I believe that the future of the profession requires all of us, regardless of practice sector or role, to answer the critical existential question of who lawyers are. Our future will be stronger and brighter if we come together to answer this question collectively and focus on the positive opportunities and valid roles of each sector. We don’t have to look far to find the words that answer this question. We need only return to the fundamentals and the foundation of the role and responsibility of being a lawyer. What are those essential values?

The preamble to the Model Rules of Professional Conduct (MRPC) set out a number
of great and grand principles about the role of lawyers. In addition to serving her client
and being an officer of the court, a lawyer has a “special responsibility for the quality of
justice.” Specifically, “as a public citizen, a lawyer should seek improvement of the law,
access to the legal system, the administration of justice and the quality of service
rendered by the legal profession.” The MRPC goes even deeper by distinguishing the
legal profession from others. Lawyers are not products of trade schools. Rather,
lawyers are members of a “learned profession.” As such, “a lawyer should cultivate
knowledge of the law beyond its use for clients, employ that knowledge in reform of the
law and work to strengthen legal education.” In essence, lawyers are builders,
thoughtful and courageous architects constantly striving to construct a more just and
fair legal system, one client at a time, as well as at a broader level. This role of lawyers
is essential for a stronger democratic society.

It is easy enough to read these words, but how can we best to internalize and live
these values as individuals and as a profession? How do we get there in the context of
so much noise and criticism about hourly rates topping $1,000, litigation as an
investment, and “churn that bill, baby,” regarding large law firms, and about law schools
not adequately encouraging prospective students to consider carefully the pitfalls of
practice in big law firms. The blame game is simply not productive. Instead, there are
other ways to reach a place of strength and legitimacy.

First, we must recognize that large law firms, while they exert a large influence, make
up only one part of the profession. Not all law students aspire to join Big Law. Not all law
schools train their students for careers in large law firms to the exclusion of other types
of practice. Lawyers work in government as public defenders and district attorneys.
They work as in-house counsel and in business. According to the ABA, 70 percent of
private practice lawyers work in solo practices or small firms (fewer than 20 lawyers).
Recognizing the multi-faceted nature of the profession, two coalitions of law schools
that make up Educating Tomorrow’s Lawyers and the Alliance for Experiential Learning
emphasize curricula that focus on a myriad of skills to prepare students for a variety of
practice areas and for a rapidly changing profession.

Lawyers are not products of trade schools. Rather, lawyers are members of a “learned profession.” Second, we must recognize the impact technology will have on the future of the
profession by creating new opportunities for young lawyers. Richard Susskind’s recent
examination of the legal profession, “Tomorrow’s Lawyers; An Introduction to Your
Future,” describes new legal careers that will be technology-driven to provide more
efficient, less costly, legal services. One example is using technology to address the
need for inexpensive dispute resolution to help the sluggish court system. High tech
entrepreneurs in California also take advantage of companies like LegalZoom, an
online service that helps clients create their own legal documents. Pearl.com contracts
with lawyers to offer online legal advice to clients. Firms are likewise responding to consumer demand for more efficient, lower cost services. Fenwick & West LLP, for example, launched Flex, a program that offers legal services at a fixed price.

Indeed, what emerges from Susskind’s book is a vision of lawyers as entrepreneurs
creating opportunities in a market more decentralized than the traditional corporate
clients served by large firms. Many law schools recognize that students have infinite
access to information, and thus continue to focus more and more on skills that will help
graduates create their own careers. Skills such as critical reading and thinking, legal
analysis, effective research skills, oral and written communication, fact investigation
and collaboration – all instilling confidence and resilience, as well as cultivating sound
judgment – are vital to supporting this entrepreneurial spirit and future. Law schools are
creating programs to help students capitalize on this highly innovative time while
ensuring they remain grounded in the fundamental values set out in the MRCP and the
important role of a lawyer as counselor and advocate for fairness and justice.
Third, in addition to focusing on the existential question, we should look for more
ways to collaborate to build a stronger community of lawyers. Experienced lawyers in
various sectors often serve as mentors for law students as part of externship clinics
that many law schools continue to develop. Expansion of these types of programs can
help forge and strengthen collegiality as well as a greater sense of professional identity.
Law schools should continue to discover more ways to collaborate among themselves
and with local bar associations. Such partnerships have the potential to provide
students with more career options and professionally enriching experiences.
Finally, and perhaps most importantly, we all need to find a way to quiet the noise
around us in order for us to cultivate a less anxious and reactive posture. Responding
to “the crisis” with a reflective, purposeful and mindful approach can help us internalize
and live up to the aspirations of our profession. Over the last 10-15 years, more
lawyers, judges, legal educators and law students have incorporated mindfulness
practices into their lives and careers. A number of law schools offer courses on
“mindfulness for lawyers.” Reflection and mindfulness helps law students and lawyers
of all sectors become better listeners, better problem solvers, better counselors at law,
and better colleagues. A focus on conscious lawyering has great potential for helping
lawyers develop attributes that are essential to happiness and satisfaction: empathy,
resilience and wisdom. I believe that such an approach can allow law students and
lawyers to respond with flexibility and calm in rapidly changing times.
Artist Jacob Lawrence’s 1989 piece, “To the Defense,” offers a quintessentially
positive vision of lawyers. He depicts a lawyer helping people. At the heart of the vital
principles of the MRPC quoted above, is the lawyer as adviser, advocate and
peacemaker. Lawrence stated of his print, “I tried to show that the lawyer was a very
important symbol of something, even beyond the law.” Lawyers are an important symbol
of access to justice, fairness, and thoughtful attention to solving problems without
violence. Lawyers are a symbol of the rule of law rather than the rule of men or women.
This is critically important for lawyers practicing in all of the different sectors. I believe
that by returning to the core of lawyering, the heart of what it means to be counselors at
law, law students and lawyers can have fulfilling and satisfying careers while they assist
and serve their clients and in so doing contribute to a more inclusive, just and equitable
society.
Rachel Van Cleave is dean and professor of law at Golden Gate University
School of Law.

SALT CoPresidents Jackie Gardina & Ngai Pindell

Brian Tamanaha’s recent article, The Failure of Crits and Leftist Law Professors to Defend Progressive Causes (24 STAN. L. & POL’Y), raises important concerns about the current cost of legal education and student debt. SALT agrees that these problems need to be addressed and that all law professors should be contributing to the conversation. SALT also believes that the cost of legal education is a complex problem that cannot be solved by simply eliminating tenure or making adjustments to the curriculum premised solely on cost reduction.

Tenure is not the cause of the rising cost of legal education nor is eliminating tenure the best path for lowering costs. Quality legal education requires that faculty be free to research, teach, and perform service (including through clinical representation) without fear of reprisal, and all faculty (doctrinal, clinical, and legal writing) must have an effective voice in shaping the educational program of the law school through full participation in faculty governance. In recent years, SALT has focused attention on protecting the academic freedom that we think full-time faculty must have to fully perform their responsibilities with respect to scholarship, teaching, clinical representation, governance, and service, and we have criticized the current hierarchies that undermine the ability of faculty in historically marginalized categories to contribute effectively to the law school mission, including enhancing student learning and practice-readiness.

SALT has been skeptical of legal education reforms that rely predominantly on cost-cutting measures that change the composition of faculties to depend more heavily on individuals with short- rather than long-term commitments to legal education. Proposals to change the composition of law school faculties and the focus of legal education have to be evaluated with an eye towards the long-term costs to students and communities. We believe that lawyers play a critical role in ensuring a just society and that legal education reform should be premised on how to best prepare new attorneys for that role.

High law student debt and high law school tuition have class implications as Tamanaha notes. The composition of law school faculties and the substantive content of law school curricula also significantly impact class concerns. SALT has consistently encouraged initiatives that open faculty and administrative ranks to under-represented groups, that help students from diverse economic and racial backgrounds view themselves as important components of a law school community, and that help both groups envision and explore the many ways that a legal education can positively impact the communities these students come from and care about.

The cost of legal education certainly impacts who is able to access these educational experiences. The SALT Board and SALT members have repeatedly engaged the intersection of cost, pedagogy, and practice. During the October 2012 SALT Teaching Conference in Baltimore, Maryland (Teaching Social Justice, Expanding Access to Justice: The Role of Legal Education and the Legal Profession), several panels addressed education costs directly, including “Costs in Legal Education: An Interactive Conversation with Deans” and “The Role of Law Schools in Supporting Solo and Small Firm Lawyers to Address Access to Justice.” One of the articles published from the Teaching Conference explores how the current political and economic pressures on law schools create an opportunity to transform legal education and address access to justice deficits in practice (Cathryn Miller-Wilson, Harmonizing Current Threats: Using the Outcry for Legal Education Reforms to Take Another Look at Civil Gideon and What it Means to be an American Lawyer, U. MD. L.J. RACE, RELIGION, GENDER & CLASS, forthcoming 2013). At the conference we also discussed the forthcoming “SALT Consumer Guide for Social Justice Minded Law Students.” The Consumer Guide educates students about the costs associated with law school and encourages them to consider those costs when determining whether and where to attend school. The guide directly confronts issues relating to the costs of law school and law school debt but it also examines other pressing issues that challenge legal education including admissions; the role of the LSAT and U.S. News & World Report rankings; the need for students to carefully assess the “fit” with a law school’s curricula and community; and the obligation of the legal profession (as well as its aspiring students) to serve social justice and the public interest.

We encourage our members to continue this conversation. What do progressive, liberal law professors think law schools and law professors ought to do about the rising cost of legal education? We encourage you to post your response here on the SALTBlog. SALT also plans to continue this conversation at the September 13, 2013 Diversity in Legal Education Leadership Conference at the University of Washington and there will also be opportunities at the upcoming LatCrit conference (October 3-5, 2013 in Chicago, Illinois) to engage this issue. Please keep the conversation going!

(with great appreciation for a dialogue with Sheila Willamowski, 3L, University of Toledo College of Law)

Kidnapped off the street, hustled into a vehicle, disappeared into a structure, tortured, sexually assaulted, beaten, degraded, shackled, and so held as a captive for over ten years with no end in sight by a man.  Amanda, Gina, and Michelle and the little girl surge from that dark Cleveland hell into our collective conscious.  As we watch the first court appearance of the alleged perpetrator of these horrors and read the stories of the brutally forced miscarriages and the other degradation of these human beings, I for one am just left in shock at how this could have happened.  We hear the stories of people who saw the kidnapping of Gina and spoke to the police.  Of people who saw a naked woman running through the backyard before it was covered by the brutalizer and called the police.  Of people who saw a woman banging on a window and holding up that little girl to get a neighbor’s attention who said they contacted the police.  All to no  avail.  Only with the combination  of Amanda’s relentless desire to escape this hell, and the most sublime of innocent bystanders – Charles Ramsey, Angela Cordero, and Ms. Tejeda - was this decade long descent into the deep abyss of the human soul ended.  As we saw Amanda and Gina returned to their families and as we pray for the recovery of Michelle and the little girl too, we see the outpouring of love from their families and their neighbors.  We read of the heartache of Gina’s mom who died of a broken heart after all these years.  We are relieved that this brute will face his day in court and be held accountable.

The natural reaction that I have and that everyone I know has is that this man should be taken out and shot.  And, if I was Amanda’s father or brother, I might be tempted to do that.  I understand that these three women are not suffering from Stockholm Syndrome but are feeling and expressing the profound hate they have for their captor.  We share that hate and look for answers as to the source of his sociopathy – maybe genetic or maybe from his environment – neither of them being an excuse for his depravity.

But, consistent with a civilized society, their captor is not being taken out and shot.  He is to be tried, and if convicted, punished for his alleged crimes.  That is as it should be though I regret this did not happen years ago.

Kidnapped off the street, hustled into a vehicle, disappeared into a structure, tortured, sexually brutalized, beaten, degraded, shackled, and so held as a captive for over ten years with no end in sight by a government.  As described in the most recent report of the Constitution Project (subject of a C-span presentation this morning on Capitol Hill under the auspices of the National Religious Campaign Against Torture) years of thousands of people enduring massive torture across 54 countries done by men and women in the name of our country surge again from that hell into our conscious.  We learn that among those tortured it is without doubt that there were many who are as innocent as Amanda, Gina, and Michelle.  We know that some who likely bear some guilt like Al-Qahtani have been tortured into a mental state beyond the borders of sanity.  Still others like Khalid Sheikh Mohammed have aged significantly but remain within the borders of sanity even though we learn of the massive destruction he allegedly sought to cause.

Private black site in Cleveland, Public black sites in prisons that stretch around the world with names like Abu Ghraib, Poland and Gitmo.  A common theme in both places is one or more human beings torturing one or more human beings.

Some would say that I am making a false equivalence.  For example they would say that there was no redeeming feature to the torture in Cleveland by the private man in his depravity.  On the other hand, they would say that there was a redeeming feature to the torture around the world by my government and its servitors as that depravity was done to seek actionable intelligence or to break these enemies of the state.  Any innocence in that torture are unfortunate but necessary collateral damage in that effort.

Another way we might bring this home is to imagine that someone held at one of those CIA public black sites had information about where these women were being held in the Cleveland private black site.  Some would argue that the torture at the public black site would be both legal and legitimate as a means to provide the intelligence to end the torture in the private black site.  Surely, down this utilitarian path of argument, we would say that the public black site torture in theory would be good torture because it led to the outcome of ending the Cleveland black site torture(“bad torture”).  At a minimum, in this argument, the CIA public black site torture should be excused on some ground like necessity or self-defense (defense of another) for surely in this thought experiment a greater good has been created by the ending of the Cleveland black site bad torture.

One could also frame the discussion in another way in trying to measure the extent to which the public black site torture aided the elimination of the private black site torture.  Was it of no aid, of incidental aid, a substantial aid, or a beyond a reasonable doubt aid to the elimination of the private black site torture.  The degree of valence of the public black site torture might be broken down in terms of an act and its probability of aiding the ending of the black site torture.

Darius Rejali has written on this good torture/bad torture attempted distinction from the days of the dirty wars in Latin America.  The state did good torture and the rebels did bad torture – in that rationalization.

Ah yes, the state.  So we come to the role that we ask of our state.  In cases of private black site torture, the law criminalizes that activity and the state (even with prosecutorial discretion) is granted the power by the citizenry to try and, if successfully tried, punish the perpetrator  in accordance with law.  The contours of the crime and punishment are legislated as domestic law.

In the cases of public black site torture, so far the law criminalizes that activity and the state (even with prosecutorial discretion) is granted the power by the citizenry to try and, if successfully tried, punish the perpetrators in accordance with law.  The contours of the crime and punishment are legislated as domestic law.

That domestic law criminalization also occurs in the context of the ergo omnes peremptory norms against torture in both treaty and customary international law and whether one is in  international human rights law or international humanitarian law.  While domestic law may admit of defenses to excuse private black site torture, domestic law provides few pathways for excuse and international  law strictly prohibits the public black site torture.

For international law, there is no good torture.  What would have happened at the CIA public black site notwithstanding its benefit to ending, in our hypothetical, the Cleveland private black site torture would have been a crime.

And what happened in the massive public black site torture in the real world and what happened in the horrendous private black site torture in the real world remain what they are – horrendous criminality of epic proportions.

The private black site torture is on the path to prosecution and punishment with a risk of criminal liability being found leading to deprivation of liberty or even the death sentence.  The public black site torture has been a subject of low level prosecutions of the instruments of torture but absolutely no risk for the high-level civilians or military leaders of criminal liability leading to deprivation of liberty or even the possibility of facing a death sentence.

Some may wish to see these attacks on human dignity in the Cleveland private black sites as somehow different from the attacks on human dignity in the CIA public black sites.  What I see, through my minds eye, is a person shackled in a room who is being subject to abuse by another person – in the Cleveland private black site and in the CIA public black site.

No one – whether private individual or public individual working for the state – is permitted to torture, unless all of us permit them to torture.

And, all I ask is that – like Charles Ramsey – we put down our MacDonald’s and do not turn our heads from the screams of the past ten years or the silent scream of the ongoing hunger strikes in Guantanamo of those held without end in sight (indefinite detention) and make the duplicity and horror stop.  And, like that prosecutor in Cleveland, a prosecutor take the case against the high-level civilian and military leaders who put in place these CIA public black sites and punish these people to the full extent of the law.

I have been asking for this since 2004.  And others from far earlier than that.

After Cleveland, can you hear me now?

(Update –  Above I refer to the National Religious Campaign Against Torture program last Thursday on Capitol Hill. On Monday there is a program at the Heritage Foundation where four present and former civilians responsible for detainees will do a lessons learned and looking forward type presentation. One of the few frustrations of being out here is the inability to pop over on my own dime to these meetings in DC or New York to challenge these people. Two (Waxman and Stimson) were present at least as witnesses in the detainee treatment space in government when all the horrors of the Bush Administration were occurring. Lietzau was there at the time at least of the earlier hunger strike at Guantanamo. It strains logic that we ascribe credibility to such persons given what we know now about what happened on their watch and which they either cheerleaded or did insufficient amounts including resign in protest on the torture. I hope someone is there to speak that kind of truth to that kind of power as I am financially unable to do it.)