New Article: Paul R. Tremblay, Rebellious Strains in Transactional Lawyering for Underserved Entrepreneurs and Community Groups, 23 Clinical L. Rev. (forthcoming 2016).
In his 1992 book Rebellious Lawyering: One Chicano’s Vision of Progressive Law Practice, Gerald López disrupted the conventional understandings of what it meant to be an effective poverty lawyer or public interest attorney. His critiques and prescriptions were aimed at litigators and lawyers similarly engaged in struggles for social change. His book did not address the role of progressive transactional lawyers. Today, transactional lawyers working in underserved communities are far more common. This Essay seeks to apply López’s critiques to the work of those practitioners.
I argue here that transactional legal services, or TLS, on behalf of subordinated clients achieves many of the aims of the Rebellious Lawyering project. I separate TLS on behalf of individual entrepreneurs from a more collective TLS on behalf of community or worker groups. For practitioners working with entrepreneurs, the Essay observes that client power, control, and autonomy are more readily achieved, albeit through what López might describe as quite regnant practices. Those practices, I argue, are fully justified in this context. What TLS for entrepreneurs does not accomplish, though, is community mobilization, a downside that is regrettable but not a reason to eschew that kind of work. Collective TLS provides all of the upsides of entrepreneurial TLS while not sacrificing mobilization goals. That version of TLS, though, does present two of its own challenges, one triggered by the complexity and sophistication of the legal issues involved in may community economic development projects, and the second resulting from the nature of group representation.
New Teaching Resource: “Guerrilla Guides to Law Teaching” which are being put together by:
So far there are special guides on criminal law, clinical law, and integrating biography into teaching.
New Article: Eli Wald, Serfdom Without Overlords: Lawyers and the Fight Against Class Inequality, 54 U. Louisville L. Rev. 269 (2016). Abstract below:
Lawyers are not very engaged in the public discourse about class inequality in America, reflecting a belief that class inequality is primarily an economic and political problem rather than a legal one. Because lawyers are not commonly perceived to be a cause of the class problem, some believe that lawyers should not be part of the solution. This article challenges the legal profession’s passive stance on class inequality, arguing that all lawyers have an important role to play in the fight against inequality.
The article first identifies a class challenge for lawyers, the rise of an increasingly segregated and stratified legal profession, based on attorneys’ socioeconomic status, showing that the well-documented and growing opportunity gap among our kids will result in a growing opportunity gap among our lawyers. It then disproves an enticing retort dismissing the growing opportunity gaps among our kids and lawyers as somebody else’s problems, asserting that lawyers in their (neglected) role as public citizens have a special duty to address inequalities affecting our kids, and that lawyers as officers of the legal system must combat inequality within the profession.
The rest of the article explores the means by which law schools, law firms, lawyers and the organized bar can and should help fight class inequality. Its main claim is that all lawyers must take part in a capital campaign designed to narrow our kids’ and lawyers’ opportunity gaps, a campaign involving no expenditure of economic capital. Rather, American lawyers, the affluent as well as the less prosperous, possess ample social and cultural capital — connections, relationships, and ties, as well as knowledge, information, and experience — which are the very assets that explain the opportunity gaps.
Law schools amplify lawyers’ opportunity gap by using admission, teaching and grading policies that privilege the affluent at the expense of the less fortunate, and can become part of the solution by replacing these criteria with policies that give everybody an equal opportunity to be admitted and excel based on merit considerations. Law firms systematically, if implicitly, trade in and rely on their lawyers’ social, cultural, and identity capital to make hiring and promotion decisions. They can become part of the solution by transparently acknowledging the role of social, cultural, and identity capital in their practices and providing all lawyers equal opportunities to acquire the requisite capital needed for success within their ranks. Lawyers, in turn, must lend their social and cultural capital assets to help build the capital endowments of the underprivileged. Finally, the organized bar must act as an intermediary connecting lawyers with disadvantaged kids and lawyers, and support the roles of lawyers as public citizens and officers of the legal system. In sum, the legal profession can and should play a meaningful role in narrowing the opportunity gap afflicting our kids and our lawyers.
New Article: Jonathan D. Glater, Student Debt and the Siren Song of Systemic Risk, 53 Harv. J. on Leg. 99 (2016).
New Article: Sameer M. Ashar, Deep Critique and Democratic Lawyering in Clinical Practice, 104 Calif. L. Rev. 201 (2015). Abstract below:
The crisis in legal education has been defined and accentuated by urgent and existential critiques. This body of complaint and suggestion — in the form of books, foundation reports, law review articles, major media entries, and blog posts — has two gaping holes that this Essay seeks to fill. First, the critiques fail to attend to the diminishing of social justice values and commitments in legal education in the period leading up to the 2008 recession, especially as clinical education — often designated as the carrier of justice values in law schools — faced generational shifts and law schools extended “practical” education to more students. Second, with the exception of the work of Robin West, there is little in the way of a forward-looking, progressive, and justice-oriented response to the crisis of legal education. The reform discourse since the 2008 recession is composed almost exclusively of proposals, such as those by William Henderson and Brian Tamanaha, undergirded by neoliberal assumptions and constructs. Leading reformers accept the accelerated disaggregation and commodification of legal practice without attention to aspects of the profession that privilege the public good over market norms and rationales. This Essay draws on clinical practice rooted in pedagogies focused on the development of critical analysis and political engagement to make the case for a progressive vision of law school reform — and, more generally, the legal profession — that emphasizes justice, connection, and cogeneration by lawyers and communities of approaches to entrenched social problems.
Though this is more of an internal law school topic as opposed to strictly poverty law, I thought this issue of the Wisconsin Law Review worth highlighting because of the connections to clinics and other ways in which law students can do poverty law related work.
Three articles from Wisconsin Law Review on Experiential Learning
Jason Webb Yackee
This short article provides an empirical examination of the link between law school experiential learning opportunities and JD employment outcomes. The paper is motivated by the so-called “law school crisis” that has accompanied the bursting of the housing bubble and the ensuing Great Recession. As most readers know, the market for new lawyers collapsed during the recession. Applications to law schools initially rose, but have since fallen dramatically. Entry-level legal hiring remains sluggish, and law school applications remain at or near historic lows.
Keith A. Findley
My colleague Jason Yackee offers some interesting data on comparative rates of law-related job placement for graduates of the top 100 U.S. law schools.1 In the end, his analysis in part reaches the entirely unsurprising conclusion that higher-ranked law schools are more successful at placing their graduates in full-time law-related jobs than are lower-ranked schools (although it turns out that holds true only for those in the top 50). ⇓. . . Read more
Robert R. Kuehn
Clinical training is one of the most significant developments in legal education over the last century. Legal education experts and bar committees have praised clinical education’s ability to teach law students the competencies necessary for the practice of law and a sense of their professional identity and obligations. Some even identify the added benefit of aiding J.D. students in securing employment and possible negative impact of inadequate skills training on the job market for graduates.
New Article: Harold A. McDougall, The Rebellious Law Professor: Combining Cause and Reflective Lawyering, 65 Howard Univ. J. L. of Ed. 2 (2015).
Blog Post: Nancy Leong, “Preparing for Law School,” ms-jd.org, Juky 6, 2015. Not exactly poverty law, but good advice for prospective law students so I decided to repost it.
Unbound: the Harvard Journal of the Legal Left has published an issue full of contributions celebrating and reflecting on the work and career of Duncan Kennedy, who recently retired. My own mini-essay about Duncan is here.