Law Commons^™

The End Of Asylum Redux And The Role Of Law School Clinics, Elora Mukherjee

Faculty Scholarship

The Biden Administration has perpetuated many of the prior administration’s hostile policies undermining access to asylum at the southern border. This Essay first examines these policies and then identifies emerging opportunities for law school clinics to address these new challenges, including by serving asylum seekers south of the U.S.-Mexico border.

Curriculum-Based Professional Learning: The State Of The Field, Elizabeth Chu, Grace Mccarty, Molly Gurny, Naureen Madhani, Mahima Golani, Joanna Pisacone

Center for Public Research and Leadership

Providing curriculum-based professional learning at scale is challenging, complex, and contextualized. It requires time, people, money, and expertise at the systems-level and at the ground-level. No single school system, organization, or actor can accomplish it alone. Instead, scaling the curriculum-based professional learning on which HQIM relies requires a field of diverse, interdisciplinary actors from across the education sector who collectively co-produce improved professional learning through research, strategy, policy, and direct service. Put another way, to strengthen educational experiences and outcomes for students, proponents of HQIM and curriculum-based professional learning must build a strong, resilient field of individuals and organiza­tions working …

Lawyering Paradoxes: Making Meaning Of The Contradictions, Susan P. Sturm

Faculty Scholarship

Effective lawyering requires the ability to manage contradictory yet interdependent practices. In their role as traditionally understood, lawyers must fight, judge, debate, minimize risk, and advance clients’ interests. Yet increasingly, lawyers must ALSO collaborate, build trust, innovate, enable effective risk-taking, and hold clients accountable for adhering to societal values. Law students and lawyers alike struggle, often unproductively, to reconcile these tensions. Law schools often address them as a dilemma requiring a choice or overlook the contradictions that interfere with their integration.

This Article argues instead that these seemingly contradictory practices can be brought together through the theory and action of …

Law’S Contributions To The Mindfulness Revolution, Elizabeth F. Emens

Faculty Scholarship

These are phenomenally challenging times. Mindfulness is a tool that can help lawyers support themselves, each other, their clients, and their collaborators in the hard work needed to build community and take action. For these and other reasons, mindfulness has made major inroads into law and legal institutions. Law firms, law schools, and courthouses offer training in mindfulness meditation to support the cognitive clarity and emotional self-regulation necessary for the demanding work of analyzing problems, resolving conflicts, overcoming bias, and doing justice. A growing literature, from empirical social science to legal scholarship, catalogs these and other benefits of mindfulness for …

Clinicians Reflect On Covid-19: Lessons Learned And Looking Beyond, The Association Of American Law Schools (Aals) Policy Committee, Deborah Archer, Caitlin Barry, Lisa Bliss, Gautam Hans, Vida Johnson, Carolyn Haas, Lynnise E. Pantin, Kele Stewart, Erica Wilson, The Clinical Legal Education Association (Clea) Committee For Faculty Equity And Inclusion, Priya Baskaran, Jennifer Fernandez, Crystal Grant, Anjum Gupta, Julia Hernandez, Alexis Karteron, Shobha Mahadev

Faculty Scholarship

As a result of the unprecedented COVID-19 pandemic, clinical faculty had to abruptly adapt their clinical teaching and case supervision practices to adjust to the myriad restrictions brought on by the pandemic. This brought specialized challenges for clinicians who uniquely serve as both legal practitioners and law teachers in the law school setting. With little support and guidance, clinicians tackled never before seen difficulties in the uncharted waters of running a clinical law practice during a pandemic.

In this report, we review the responses of 220 clinicians to survey questions relating to how law clinics and clinicians were treated by …

Building A Law-And-Political-Economy Framework: Beyond The Twentieth-Century Synthesis, Jedediah S. Purdy, David Singh Grewal, Amy Kapczynski, K. Sabeel Rahman

Faculty Scholarship

We live in a time of interrelated crises. Economic inequality and precarity, and crises of democracy, climate change, and more raise significant challenges for legal scholarship and thought. “Neoliberal” premises undergird many fields of law and have helped authorize policies and practices that reaffirm the inequities of the current era. In particular, market efficiency, neutrality, and formal equality have rendered key kinds of power invisible, and generated a skepticism of democratic politics. The result of these presumptions is what we call the “Twentieth-Century Synthesis”: a pervasive view of law that encases “the market” from claims of justice and conceals it …

Reflections On Us Involvement In The Promotion Of Clinical Legal Education In Europe, Philip Genty

Faculty Scholarship

What is the influence of the United States on European clinical legal education? The first reaction of many would be that this is not a particularly difficult question to answer. After all, clinical legal education is largely a US invention. Although one can find early examples of clinics in European law schools, the large-scale development of law school clinical education happened in the United States beginning in the 1960s. At present, there are clinical programs in each of the 207 American Bar Association (ABA)-approved US law schools. The Clinical Legal Education Association now lists 1,325 clinical teachers in its membership …

Measuring Law School Clinics, Colleen F. Shanahan, Jeffrey Selbin, Alyx Mark, Anna E. Carpenter

Faculty Scholarship

Legal education reformers have long argued that law school clinics address two related needs: first, clinics teach students to be lawyers; and second, clinics serve low-income clients. In clinics, so the argument goes, law students working under the close supervision of faculty members learn the requisite skills to be good practitioners and professionals. In turn, clinical law students serve clients with civil and criminal justice needs that would otherwise go unmet.

Though we have these laudable teaching and service goals – and a vast literature describing the role of clinics in both the teaching and service dimensions – we have …

Advocacy In Ideas: Legal Education And Social Movements, Monica Bell, Tanya K. Hernandez, Solangel Maldonado, Rachelle Perkins, Chantal Thomas, Olatunde C.A. Johnson, Elsie Lopez

Faculty Scholarship

Panel moderated by Professor Olatunde Johnson, featuring Professors Monica Bell, Tanya K. Hernández, Solangel Maldonado, and Chantal Thomas. Introduced by Elise Lopez.

Triumphs Of Commission, Eric L. Talley

Faculty Scholarship

Willis L.M. Reese Prize commencement address to the Columbia Law School class of 2017.

Jerry L. Mashaw And The Public Law Curriculum, Peter L. Strauss

Faculty Scholarship

Jerry L. Mashaw’s magisterial account of the first one hundred years of Administrative law sharply distinguishes between internal and external administrative law – between those contributions to the regularity and legality of agency behavior that emerge from its own institutions and practices, and the constraints imposed by external actors – legislative, executive, and judicial. The “systems of internal control and audit” he found common to nineteenth-century governance are subordinated, if not suppressed in today’s thinking about administrative law.

In our world of multiple transsubstantive statutes and ubiquitous judicial review, we tend to think of our administrative constitution as a set …

Race Liberalism And The Deradicalization Of Racial Reform, Kimberlé W. Crenshaw

Faculty Scholarship

Recent works by neoconservatives and by Critical legal scholars have suggested that civil rights reforms have been an unsuccessful means of achieving racial equality in America. In this Article, Professor Crenshaw considers these critiques and analyzes the continuing role of racism in the subordination of Black Americans. The neoconservative emphasis on formal colorblindness, she argues, fails to recognize the indeterminacy of civil rights laws and the force of lingering racial disparities. The Critical scholars, who emphasize the legitimating role of legal ideology and legal rights rhetoric, are substantially correct, according to Professor Crenshaw, but they fail to appreciate the choices …

The Ph.D. Rises In American Law Schools, 1960-2011: What Does It Mean For Legal Education?, Justin Mccrary, Joy Milligan, James Cleith Phillips

Faculty Scholarship

At a time when some perceive law schools to be in crisis and the future of legal education is being debated, the structural shift toward law professors with Ph.Ds is an important, under-examined trend. In this article, we use an original dataset to analyze law school Ph.D hiring trends and consider their potential consequences. Over the last fifty years the proportion of law professors with Ph.Ds has risen dramatically. Over a third of new professors hired at elite law schools in recent years come with doctoral degrees in fields outside the law. We use our data to consider the scope, …

Christopher Columbus Langdell And The Public Law Curriculum, Peter L. Strauss

Faculty Scholarship

Teaching materials in public law courses typically rely almost wholly on judicial opinions as their primary materials, amplified by selections from the secondary literature. Constitutional text may appear independently, but statutory text rarely does, and the materials of the legislative process are generally absent. In administrative law course books, administrative opinions and the materials of rulemaking rarely fever appear. Yet these are primary materials with which lawyers must deal with increasing frequency. Lawyers encounter statutes, rules, administrative policies, and administrative disputes without judicial guidance, looking forward and not backward in time. The growth of courses in legislation and the regulatory …

Developing A Pedagogy Of Beneficiary Accountability In The Representation Of Social Justice Non-Profit Organizations, Amber Baylor, Daria Fisher Page

Faculty Scholarship

This article seeks to begin a conversation on how we teach the problem of beneficiary accountability in the representation of organizations with social justice missions: How do we guide students towards a fuller understanding of the moral responsibility to engage and respect the voices of the communities most directly affected by the non-profit organization’s mission? We look at the issue through the pedagogical lens of our experience supervising clinic students, deconstructing the problems of beneficiary accountability that students faced in the representation of two social justice organizations, surveying relevant legal scholarship on organizational representation and community lawyering, and considering alternative …

The Digital Revolution And The Future Of Law Reviews, Thomas W. Merrill

Faculty Scholarship

Let me begin by congratulating the Marquette Law Review on reaching the threshold of its 100th anniversary. As you may know, Harvard established the first student-edited law review in 1887. Once the Harvard experiment was seen to be a success, other schools followed suit. Marquette was an early adopter, establishing its law review in 1916. By comparison, the school I attended, the University of Chicago, did not start a law review until 1933.

The title of my remarks could be “Will the Marquette Law Review Survive Another Hundred Years?” Or, perhaps, “Will the Marquette Law Review Survive Another Hundred Years, …

Teaching The Newly Essential Knowledge, Skills, And Values In A Changing World, Eliza Vorenberg, Cynthia F. Adcock, Eden E. Harrington, Elizabeth Kane, Lisa Bliss, Robin Boyle, Conrad Johnson, Susan Schechter, David Udell

Faculty Scholarship

This chapter of Building on Best Practices: Transforming Legal Education in a Changing World has contributions from many authors:

• Section A, Professional Identity Formation, includes:
  • Teaching Knowledge, Skills, and Values of Professional Identity Formation, by Larry O. Natt Gantt, II & Benjamin V. Madison III,
  • Integrating Professionalism into Doctrinally-Focused Courses, by Paula Schaefer,
  • Learning Professional Responsibility, by Clark D. Cunningham, and
  • Teaching Leadership, by Deborah L. Rhode.
• Section B, Pro Bono as a Professional Value, is by Cynthia F. Adcock, Eden E. Harrington, Elizabeth Kane, Susan Schechter, David S. Udell & Eliza Vorenberg.
• Section C, The Relational Skills of the …

A Crib Sheet For Contracts Profs, Victor P. Goldberg

Faculty Scholarship

Over the last two decades I have been digging into the facts on a number of contracts cases, many of them featured in casebooks. I have collected the material in two books; one appeared in 2006 and the other is hot off the presses. This brief paper provides a roadmap for professors who might want more depth on the cases than is provided in the decisions or the casebooks. A recurring theme in the two books is that parties designing their contractual relationships must deal with change. This shows up in the manner in which they price the option to …

The Influence Of Juridical Cant On Edificatory Approaches In 21st-Century America, David Pozen

Faculty Scholarship

This essay reframes the debate over the "growing disjunction" between legal scholarship and legal practice. Law review articles continue to make the world a better place, the essay stipulates. But are judicial opinions becoming less useful to students and scholars? A rigorous analysis and concrete prescriptions follow.

An Examination Of The Challenges, Successes And Setbacks For Clinical Legal Education In Eastern Europe, Dubravka Aksamovic, Philip Genty

Faculty Scholarship

The authors first met in 2000, and have collaborated in conferences, workshops, and other projects since then. We also represent two sides of an international exchange that has frequently occurred in the past 15 years: a European law teacher who attends training sessions, networks with colleagues from other European universities, learns about American models of clinical education, and possibly receives some outside funding; and an American law teacher who is graciously hosted by Europeans, promotes American models of clinical education, and, one hopes, observes, listens and learns about the European system. We are also experienced teachers within our own universities …

(Anti)Canonizing Courts, Jamal Greene

Faculty Scholarship

Within U.S. constitutional culture, courts stand curiously apart from the society in which they sit. Among the many purposes this process of alienation serves is to “neutralize” the cognitive dissonance produced by Americans’ current self-conception and the role our forebears’ social and political culture played in producing historic injustice. The legal culture establishes such dissonance in part by structuring American constitutional argument around anticanonical cases: most especially “Dred Scott v. Sandford,” “Plessy v. Ferguson,” and “Lochner v. New York.” The widely held view that these decisions were “wrong the day they were decided” emphasizes the role of independent courts in …

Deals Or No Deals: Integrating Transactional Skills In The First Year Curriculum, Lynnise E. Pantin

Faculty Scholarship

This article joins a growing body of scholarship on the pedagogy of transactional law and skills. This article challenges the traditional pedagogy of teaching law students to think like a lawyer and argues that law schools should shift the analytical framework of a litigation-dominated model, which is typically taught in the first year, to a model that incorporates transactional skills teaching into the first year law school curriculum. This approach will (1) create a greater balance of skills taught in the first year and (2) address the mandate to train more practice-ready lawyers. This article argues that the best place …

Reaching Backward And Stretching Forward: Teaching For Transfer In Law School Clinics, Shaun Archer, James P. Eyster, James J. Kelly Jr., Tonya Kowalski, Colleen F. Shanahan

Faculty Scholarship

In thinking about education, teachers may spend more time considering what to teach than how to teach. Unfortunately, traditional teaching techniques have limited effectiveness in their ability to help students retain and apply the knowledge either in later classes or in their professional work. What, then, is the value of our teaching efforts if students are unable to transfer the ideas and skills they have learned to later situations? Teaching for transfer is important to the authors of this article, four clinical professors and one psychologist.

The purpose of this article is to provide an introduction to some of the …

Adaptive Clinical Teaching, Colleen F. Shanahan, Emily Benfer

Faculty Scholarship

Teaching is an exercise in adaptation and clinical legal teaching is no exception. Clinical teachers develop effective approaches through instinct, training, pedagogy, skill, and trial and error. Building on the trials, errors, and instincts of clinical teachers, this article offers a more intentional approach: "adaptive clinical teaching" (ACT). ACT is a structured method of guided analysis and reflection that applies to any clinical teaching situation, allowing a clinician to make her teaching choices based on as much knowledge and with as much intentionality as possible. ACT provides clinicians with an approach for new issues as they arise and builds a …

If Only We Knew What We Know, Conrad Johnson, Brian Donnelly

Faculty Scholarship

This article contributes to the broader themes surrounding law and technology raised in this symposium by taking a look at lawyering and knowledge management. This topic is presented both as a theory and with a case study. The first part provides a brief summary of the basic lawyering paradigm used in the Lawyering in the Digital Age Clinic at Columbia Law School – that all lawyering activities can be understood within the context of gathering, managing and presenting information. The second category of the paradigm is expanded upon to review the activity of managing knowledge. Then, knowledge management is positioned …

Law Schools, Leadership, And Change, Susan P. Sturm

Faculty Scholarship

Law schools train many of the nation’s leaders. As Professor Fred Rodell observed, “it is the lawyers who run our civilization for us – our governments, our business, our private lives.” The legal profession was already closely linked to leadership at the founding of the country, when lawyers constituted almost half of the signers of the Declaration of Independence and more than half of the members of the Constitutional Convention. Lawyers now bear major responsibility for leading the institutions that structure the governance, education, and day-to-day lives of the polity. Ten percent of the CEOs of the top fifty companies …

Educating The Invincibles: Strategies For Teaching The Millennial Generation In Law School, Emily Benfer, Colleen F. Shanahan

Faculty Scholarship

Each new generation of law students presents its own set of challenges for law teachers seeking to develop competent and committed members of the legal profession. This article aims to train legal educators to recognize their students' generational learning style and to deliver a tailored education that supports the development of skilled attorneys. To help legal educators better understand the newest generation of law students, this article explores the traits associated with the Millennial Generation of law students, including their perspective on themselves and others, on education and on work. It then provides detailed and specific strategies for teaching millennial …

The First Year: Integrating Transactional Skills, Lynnise E. Pantin

Faculty Scholarship

My name is Lynnise Pantin. I teach at New York Law School, and my talk today focuses on integrating transactional skills into the first-year curriculum.

As a first premise, the law school curriculum is dominated by litigation oriented skills, and I can argue that there is a litigation bias that is pervasive in legal education. I am hoping that, by engaging with those of you who teach first year students, we can start to talk about creating and developing transactional skills within a context that is already there in the first-year curriculum.

Dichotomy No Longer? The Role Of The Private Business Sector In Educating The Future Russian Legal Professions, Philip Genty

Faculty Scholarship

In his 1916 work The Law: Business or Profession?, Julius Henry Cohen describes an American legal system in which uniform standards for regulating, disciplining, and educating the profession are just beginning to be developed, albeit unevenly. In discussing the differences between a business and a profession, he argues that a profession requires a uniform set of standards to guide it in matters of ethics, as well as a system of rigorous legal education that includes a firm grounding in these ethical principles.

Perhaps most surprising for a book written in the early twentieth century – long before the …

Keynote Discussion: Just Exactly What Does A Transactional Lawyer Do?, William J. Carney, Ronald J. Gilson, George W. Dent

Faculty Scholarship

Panel discussion from the Center for Transactional Law and Practice at Emory University School of Law’s second biennial Transactional Law Conference, “Transactional Education: What's Next?” (June 2010).