April 30- May 3, 2005
Chicago, Illinois
Works-In-Progress Monday, May 2, 2005 3:45 – 5:00 p.m. <<<Back to Clinical Legal Education Program Five Concurrent Sessions Coordinators:
Session 1: Child and Family Issues Moderator: Daniel M. Filler, The University of Alabama Protecting Victims or Respecting Autonomy: How Should Judges Decide When to Vacate Civil Protection Orders? Tamara Kuennen analyzes the challenges judges face when a victim of domestic violence voluntarily seeks to terminate her order of protection in civil court. Given that victims of domestic violence are coerced by batterers, she focuses specifically on how a judge should measure coercion in the vacate posture, and if the judge finds that the victim has been coerced, what factors she/he should consider in reaching a decision about whether to grant the motion to vacate or to continue the order against the victim’s will. Requiring Attorneys to Report Child Abuse Harms Victims of Domestic Violence and Their Children Adrienne Lockie details how mandatory child abuse reporting harms women with children who are fleeing abusive relationships and argues that attorneys should be exempt from mandatory child abuse reporting. She also frames the problem of mandatory reporting within the current legal debate over penalizing battered mothers for exposing their children to domestic violence. Foster Children Paying for Foster Care: Unresolved Questions After KeffelerDaniel Hatcher, University of Baltimore School of Law As a part of revenue maximization strategies often developed through contracts with private companies, foster care agencies are engaged in the systemic practice of screening for foster children who are disabled or have deceased parents, applying to manage the children’s resulting Social Security benefits, and then using the children’s benefits to reimburse state foster care costs rather than for the children’s specialized needs. The Supreme Court upheld the practice in Wash. State Dep’t. of Soc. and Health Servs. vs. Guardian. Estate of Keffeler but left many questions unresolved. This article considers the competing policy concerns between the specialized needs of individual foster children and the fiscal interests of the state agencies, addresses flaws in the Supreme Court’s reasoning, and analyzes several possible legal challenges that were not decided in Keffeler. . Session 2: Models for Teaching Lawyering and Justice Issues in Clinics Moderator : Christine N. Cimini, Denver University Can You Be a Good Person, a Good Clinician and a Supervisor of Student Prosecutors? The history of clinical education in American Law Schools is closely intertwinedwith the civil rights movement, with the call for providing equal access to our legal justice system, and with the establishment of constitutional rights to preserve and safeguard individual liberty. Long before Professor Abbe Smith wrote “Can You Be a Good Person and a Good Prosecutor?,”1 the clinical community identified itself strongly with the criminal defense community and as suspicious of state and prosecutorial power. Proud as we are to be part of a community which openly celebrates that historyand works still towards achievement of those goals, those of us teaching in prosecutions clinics sometimes perceive that such clinics are viewed as a necessary evil instead of an opportunity to incorporate important social justice and good lawyering goals. As clinical education has integrated into the academy, fiscal and status realities have resulted in the increase of externships, simulation courses and government-linked clinics. There are benefits and costs to this reality. Should clinics continue to consider social justice in development of new clinical programs? Should clinics devote faculty resources to prosecution projects? Can such resource allocation be consistent with social justice goals? Doing the "Right" Thing: An Analytical Model Examining the Interplay between Ethical Professional Conduct, Morality, and Justice This work in progress will discuss the often difficult decisions that attorneys and clinical law students must make in balancing their professional ethics, moral beliefs and sense of justice. It will offer an analytical model to help those making these difficult decisions do so in a methodological manner. In addition, it will apply the proposed model to several scenarios derived from legal practice and clinical teaching. Structuring the Clinical Experience: Should Clinics be Focused on Substantive Law Areas? Within the literature on legal pedagogy, there has been a fair amount of controversy about whether in-house, live-client clinics should be organized around client populations, such as the residents of a particular low-income neighborhood, or around specific legal issues, such as family law. For many years, the University of Wisconsin Law School's Frank J. Remington Center's in-house clinical project, the Legal Assistance to Institutionalized Persons Project (LAIP), served a particular client population, Wisconsin prison inmates. In 1998, we divided LAIP into four clinical projects, all of which continue to serve inmates but which now focus on different areas of substantive law. In my paper, I outline both the opportunities and challenges posed by our new substantive law-based approach. . Session 3: Civil Law and Civil Litigation: Moving Us Forward Moderator: Elizabeth B. Cooper, Fordham University Tort Reform, Products Liability, Innovation, the "Y2K Effect," and Playground DesignBenjamin H. Barton, The University of Tennessee Have you ever wondered what the connection is between playground design, product liability law, innovation, and the "Y2K effect?" OK, probably not. But, I have and I’ve learned that together they actually prove that in many circumstances our much reviled product liability law has encouraged and enhanced (not inhibited) innovation. In many cases the process of redesigning a dangerous product from the ground up has produced not only safer, but substantively superior, products – such as modern playgrounds. Come see why the disappearance of concrete floors and jungle gyms are – according to legal theory – has led to safer and better playgrounds. At a minimum you will enjoy some cool pictures of innovative playgrounds . Strangled by an Invisible Hand: How Rating Agencies Kill State Predatory Lending Legislation Predatory lending is today’s most pressing consumer protection issue and a number of states have recently passed laws to curtail it. These states, however, have been frustrated by actions of the three major rating agencies, Standard & Poors, Moody’s and Fitch, which have caused some states to water down predatory lending bills under consideration and caused others to amend and dilute existing laws so that the agencies will continue to rate pools containing loans from states with such laws. States have responded to this pressure out of fear that funds for non-predatory loans will dry up if they don’t adhere to the rating agencies’ predatory lending law guidelines. This paper critiques the position taken by the rating agencies and explores ways to limit their power to unilaterally impose their will on state legislatures. Imposing Client Context Onto the Unwelcomeness Conundrum I explore the potential for using case theory to challenge and ultimately undermine the requirement that a sexual harassment plaintiff establish that the offensive conduct was "unwelcome." By creating, with the client, case theories that affirmatively present the client's reality about sex, gender, work, power - their lives - perhaps we can alter the perceptions of judge and jury, counter biased notions about women and sex that are embedded in our culture, help maintain or reclaim the client's dignity during the litigation process, and positively impact the law's treatment of these plaintiffs. The focus on context and relational reasoning inherent in sexual harassment law confers both risks and potential opportunities for using case theory to achieve these goals. . Session 4: Criminal Law Issues Moderator: Michael Pinard, University of Maryland Little Girl Lost: Secondary Victimization of Teenaged Girls: the Las Vegas Metro and the Use of Material Witness Hold The Las Vegas Metro Police Department combats prostitution that is rampant in the city by attempting to prosecute who they perceive as the source of prostitution: the pimp. The material witness holds are available to the prosecutor as a coercive tool to force already frightened girls into cooperating with Metro. Geneva Brown asserts that the coercive tactics of the police department give rise to a secondary victimization that the girls must suffer. As a potential solution, she argues that Las Vegas Metro should adhere to standards that the United Nations Commission of Human Rights has drafted regarding the trafficking of women and children. Proportionality in Criminal Sentencing: Who, What, When, Where, How, and Most Importantly Why Donna Lee asserts that the United States Supreme Court’s recent decisions in Ewing v. California and Lockyer v. Andrade highlight the ad hoc, subjective nature of its eighth amendment analysis in non-capital criminal cases. The broad principle forbidding ‘grossly disproportionate’ sentences begs many questions: Who are the stakeholders and what exactly is at stake with proportionate sentencing? When (at what point and in what process), where (in the legislative, executive, or judicial branch), and how should proportionality be measured? Given the Court’s anemic application of proportionality principles, the fundamental question is why -- what is the underlying justification for, or value served by proportionality in criminal sentencing? How the Recent Supreme Court Case of Crawford v. Washington will Impact Domestic Violence Prosecutions On March 8, 2004, the Supreme Court decided Crawford v. Washington, a case dealing with the Sixth Amendment right to confront witnesses that has changed confrontation clause jurisprudence. Josephine Ross asserts that although Crawford did not involve a domestic violence prosecution and did not concern introduction of an “excited utterance,” its largest impact will be in that area of criminal law. She then considers whether Crawford, correctly interpreted, threatens “no-drop” policies and changes the ways in which domestic violence is prosecuted in criminal courts. . Session 5: Lawyers and Client Communities Moderator: Katherine R. Kruse, University of Nevada Las Vegas The Democratic Roots of Collaborative Lawyering To date, collaborative or rebellious lawyering (an approach that urges lawyers to partner with clients and communities to jointly solve problems) has primarily been linked with postmodern social theory. Prof. Piomelli argues that it is more helpfully understood as growing out of participatory democratic theories of John Dewey, the New Left and Civil Rights Movement, and advocates of "strong democracy." Placing collaborative lawyering in such a context invites a dialogue with ideas about civic engagement, deliberative democracy, and community organizing as training in the arts of democracy. Preserving the Future by Exposing the Past Family ties to land are deep and long. In order to tell the story and save the land for future generations, students must learn to research titles. Due to changes in technology and fewer attorneys at real estate closings, title searching is becoming a lost art. Brenda Haskins explores the importance of this lost art by comparing and contrasting the experiences of three families with land-related legal problems. The three families include a latino family in Texas, an African American family in North Carolina and a Native American family in Wisconsin. All three have been affected by fractionated ownership of property and the lack of access to the legal system for an adequate remedy. Deaf Patients and Their Doctors: A Persistent Qualitative State, Or Can We Get An Article Out Now? Michael Schwartz, fluent in American Sign Language, talked with 15 deaf patients about their experiences in the medical setting as the basis for his PhD dissertation research. Now he would like to derive some lessons for lawyers. He hopes to benefit from a discussion about converting sociological material to a law-based approach that would inform judges and lawyers about the legal needs and perspectives of the deaf community. |