By Elliott S. Milstein
A recent New Yorker Cartoon depicts a lawyer entering an empty jail cell saying, ?Hi, I?m your court-appointed lawyer. Whoa! Don?t tell me you?ve been executed already.? Although that cartoon tragically captures the situation of poor people with the most serious need of quality legal representation, the recent study of the error rate in death penalty cases led by Professor James S. Liebman of Columbia Law School will no doubt have a greater impact on public policy. The study, A Broken System: Error Rates in Capital Cases, 1973-1995,1 which found that a large majority of death sentences subjected to judicial inspection nationally and in nearly all death-sentencing states were found to be seriously flawed and were reversed by the courts,2 also found that the most frequent causes of reversal were the incompetence of defense counsel or prosecutorial misconduct.3
Among the many interesting things about the Liebman study, particularly in comparison to nearly all other legal scholarship, is that it was widely reported in the press and has had a perceptible effect on the recent shift in public perception regarding the fairness of death penalty adjudication. It is not yet clear whether this will lead to better lawyers for the accused?skilled advocates with the kind of resources and independence sufficient to provide an effective defense?but it is reassuring that the debate is informed by reliable data. The role that the Liebman study is playing in the debate reinforces our hope as law professors that legal scholarship will influence public opinion and policy.
At the same time, Liebman?s study makes me optimistic that the series of colloquia that will begin this September as part of the AALS Equal Justice Initiative will have the intended result. We hope to entice many of our colleagues, particularly non-clinical faculty, to attend these colloquia and to become part of a national effort to reduce the multitude of injustices caused by the unavailability of lawyers for low-income people and communities with legal problems.
These Colloquia, part of the AALS initiative entitled ?Pursuing Equal Justice: Law Schools and the Provision of Legal Services,? will be held in 19 law school locations spread throughout the country during the course of this academic year. They will bring together faculty members who are already innovating with teaching, scholarship, service and demonstration projects designed to promote equal justice and faculty who are not yet involved with providers of legal services from the particular locale.
The purposes of the project include:
It is not the purpose of the project to recruit law teachers to take on pro bono representation of poor people, although that is a laudable activity and is no doubt of use to the clients represented. Although we very much favor encouraging pro bono lawyering, we don?t believe that pro bono work alone will ever satisfy the need that our legal system generates. It is also not the purpose of the project to encourage clinical programs to take on larger caseloads, since the primary goal of most clinics is to teach students the skills and values of lawyering, goals that can best be accomplished by supervising them intensively on a small number of cases. We don?t believe that law students themselves can or should provide the quantity of direct client services necessary to significantly improve the situation. Instead, it is our expectation that the unique capabilities of law professors to teach, engage in scholarship, and to direct demonstration projects can be engaged to educate and inspire students, train and support lawyers, challenge unjust laws and processes, propose and evaluate reform, experiment with new ways of delivering and supporting client service, and create whole new ways to think about these problems.
The Equal Justice Steering Committee has been working on these Colloquia since January and I am grateful for its hard work and the commitment of its members. Chaired by Professor Dean Hill Rivkin of the University of Tennessee, the Committee includes Professors Alicia Alvarez of DePaul University, Bill Ong Hing of University of California at David, Minna Kotkin of Brooklyn Law School, Mary Helen McNeal of the University of Montana, Brenda V. Smith of American University and Randolph N. Stone of the University of Chicago. It had to choose from the nearly 50 schools that offered to host one of the meetings the 19 sites for the colloquium. Wherever feasible, schools that are geographically proximate were asked to serve as co-hosts, and choices were informed by the likelihood that host-schools could attract faculty from surrounding institutions.
Each Colloquium will be locally planned and focused on the problems of that region. Local planning committees are chaired by a faculty member at each school and include representatives from other schools as well as legal services programs, public defender offices and public interest law firms.
Even though each will be different, we expect all of the colloquia to spend some time identifying needs, highlighting successful activities that are underway, and working on ideas for the future. Participants should have the opportunity to share teaching materials, exchange articles, and discuss opportunities for involvement.
We want to collect information from all over the country about the interesting, rewarding, and potentially successful activities that are already underway. We intend to disseminate what we learn in hopes of providing other interested people with a head start in doing work of their own. I imagine that there are many of our colleagues who have not often enjoyed the gratification of having their scholarly or pedagogical work produce tangible results. Perhaps some of them will find in these examples opportunities to enrich their own efforts.
Some of the work underway is particularly encouraging. The City University of New York School of Law, University of Maryland School of Law and Northeastern University School of Law, are working together on the Law School Consortium Project, experimenting with different models of providing educational, organizational and information services to enable solo and small-firm practitioners to earn a living while providing services to low and moderate income individuals and communities.4 The Brennan Center for Justice at New York University School of Law, among a number of activities intended ?to help ensure effective, enduring, and unrestricted civil legal assistance for low income individuals and communities,? is engaged in a public education campaign regarding the effect to potential clients of the restrictions Congress has imposed on the legal services programs. Their booklets, The Access to Justice Series, effectively communicate the history, politics and consequences of these restrictions.5
The Stein Center for Ethics and Public Interest Law at Fordham University School of Law collaborated with New York Lawyers for the Public Interest and the Fordham Urban Law Journal to produce So Goes a Nation: Lawyers and Communities, a documentary video highlighting three innovative approaches to community lawyering. They have published a companion book of teaching materials,6 that will enable the use of the video in the classroom. The University of Michigan Law School coordinates the Michigan Poverty Law Program, a venture to provide training, advocacy and support for legal aid programs in that state.7 The University of California at Los Angeles has created the Program in Public Interest Law and Policy. As part of that program, students taking a course in public policy advocacy, along with their teachers, conducted an investigation and wrote a report on the conditions of the public schools in California.8 My own school, American University, Washington College of Law, hosts the National Equal Justice Library, a project of the American Bar Association, the National Legal Aid and Defender Association and the Association of American Law Libraries. It is an archival collection of materials dealing with the establishment of legal aid, public defender and pro bono programs.9
These examples are, no doubt, a mere sample of the varied activities that are taking place in law schools all across the country. The Equal Justice Colloquia will permit us to inventory what is happening and to publicize and honor this creativity. Furthermore, the Plenary Session at the AALS Annual Meeting will feature stories about some of this work. Perhaps we can create a permanent network of individuals and schools engaged in equal justice work, colleagues who both learn from each other and inform others who wish to follow. I urge you to attend the Colloquium at a law school near you and to get involved in this important struggle. More information about the Equal Justice Project, including a schedule of the 19 events, is available on our website,10 or from the AALS office.
* This article appeared in the August 2000
AALS Newsletter
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