Imagining A Greater Justice: Criminal Violence, Punishment and Relational Justice

By Professor Samuel H. Pillsbury 

This excerpt of the book Imagining A Greater Justice: Criminal Violence, Punishment and Relational Justice originally appeared in the Friday, May 10, 2019 edition of the San Francisco and Los Angeles Daily Journal

As a society, our most pressing need for justice comes after criminal violence. A young man is shot in a crosswalk on a summer's night and bleeds to death on the asphalt. A wife is punched and choked by her husband. A girl is sexually molested by her basketball coach. Hearing about these events, our feelings move quickly from sympathy for victims to anger at perpetrators. We hope to see their swift arrest, conviction and punishment. Then we can say that justice has been done.

But we need more than law to do justice in these cases. We need a justice commensurate with the harm. This means we need a justice that comprehends the grief of the young man's family, the soul hurts of the beaten woman, and the girl whose world has been utterly transformed by sexual violation. We need a justice that comprehends how violence shatters survivors' sense of trust and place in community. Can we imagine this? I think we can. But we should not stop here.

Can we imagine a justice that respects an offender's humanity? Can we imagine a justice that treats someone who has spent half of his life locked up for serious crime as a human being capable of change? Can we imagine an ideal of justice that says we should try to reconcile with him to make a lasting peace in our communities? Can we imagine a justice that acknowledges the racial violence of the past and the racial denials and misunderstandings that undercut the trust needed for effective law enforcement? Can we imagine a justice concerned with healing the community after violence?

Imagining a justice this big will be a stretch for many.

I know it has been for me.

I have spent most of my professional life working on justice defined by what happens in the courtroom. As a young man I swore allegiance to justice under law as an officer of the court – a federal prosecutor. And I believe in it as much today, in my 60s, as I did when I was in my 20s.

As the years have passed, though, my view of justice has changed according to my experience of life. I have slowly, often reluctantly, but with increasing conviction come to believe that our conception of justice in the United States is too small. It is too focused on the conduct and character of a few identified wrongdoers. Its concern with individual blame and punishment leaves unaddressed the deep needs of those most hurt by crimes of violence. It flatly ignores, even righteously dismisses, the needs of the incarcerated and their families.

Against the grain of an American culture that celebrates individual freedom and independence, I have come to appreciate how closely tied we are to each other, by bonds chosen and unchosen. The experience of surviving violence makes the strength of these bonds awfully clear. Our conception of justice should respect the reality of how we live in dynamic, interdependent relationship. In addition to holding persons responsible for their chosen actions, we need to take collective responsibility for legal and social structures that determine who belongs in society, and who does not. Belonging, it turns out, is the foundation of just and peaceful community.

We need to imagine what I call relational justice, which includes the rules and processes of the criminal law, but which is bigger in both scope and heart.

***

Law School Clinics Key to Bridging Access-to-Justice Gap

By Dean Michael Waterstone

This op-ed originally appeared in the Feb. 14 edition of the Los Angeles Daily Journal.

Legal education has been a source of vigorous debate and criticism. Some is no doubt warranted. High tuition. A challenging job market for new grads. President Barack Obama opined that the third year of law school is unnecessary. These are all important and complex topics, and worthy of public discussion.

But another issue is of pressing importance, and law schools have an important story to tell. There is an access-to-justice crisis in this country. Three quarters of litigants in state courts are unrepresented. In California, there is one legal aid lawyer for every eligible 6,000 poor people. The most vulnerable members of our society, facing some of the most challenging struggles of their lives, are being forced into the legal system on their own, where they will unquestionably meet worse outcomes. This is undermining confidence in one of our most prized national assets — our commitment to the rule of law. The World Justice Project currently ranks the United States 94th out of 113 nations on the “Accessibility and Affordability of Civil Justice” 2016 Index.

This is a society-wide problem, and law schools have a crucial role to play. One of the primary ways we do this is through clinical legal education. Based on the medical residency model, clinical legal education gives law students an opportunity to represent actual clients under the supervision of clinical law professors. Most states, including California, have student practice rules that allow qualified law students to do this.

Our law school, Loyola Law School, Los Angeles, has a longstanding commitment to clinical legal education. It is a key way we fulfill our social justice mission to train our students to be lawyers for others. Our Loyola Immigrant Justice Clinic represents some of the most vulnerable members in our community. They recently held an event where they helped 100 Deferred Action for Child Arrivals recipients with their renewals.

A Conversation with Dean Michael Waterstone

On June 1, 2016, Michael Waterstone became the 18th dean of Loyola Law School, Los Angeles. Waterstone, who also is senior vice president at Loyola Marymount University, is a nationally recognized expert in disability and civil rights law. He has consulted on projects for the National Council on Disability, authored a case book, and worked with foreign governments, non-governmental organizations and academic institutions on disability rights laws. He also is an associated colleague with the Harvard Law School Project on Disability.

Waterstone first joined Loyola's faculty in 2006, teaching civil procedure, disability law and employment law. He served as Associate Dean for Research and Academic Centers from 2009–2014, chairing the employment committee. In 2014-2015, he was a visiting professor at Northwestern University School of Law, where students selected him as the Outstanding First Year Professor.

Prior to his tenure with Loyola Law School, he taught at the University of Mississippi Law School. He also worked as an associate in the Los Angeles law firm of Munger, Tolles & Olson, LLP for three years, focusing on commercial litigation.

A native of Los Angeles, Waterstone earned his law degree in 1999 from Harvard Law School and his B.A. in political science from UCLA.

We sat down with Dean Waterstone at the law school’s Frank Gehry-designed campus located in downtown Los Angeles to talk about Loyola, his experience, and his new role as Dean.

What is special about Loyola Law School?
Our Jesuit tradition teaches us the importance of educating the whole person. One of the things that distinguishes Loyola Law School is our commitment to social justice. Our students are using their legal education to help make the world a better place, however they define that. That has always been a key part of who we are and always will be. Our pro bono commitment is a longstanding reflection of that fact.

As a lawyer at private firm you also did pro bono work.
I was a commercial litigation lawyer for three years, and I found the work interesting and I liked solving problems. At the same time, I also had a pro bono practice in disabilities rights law.

What drew you to disability rights law?
I had a cousin with muscular dystrophy. I think when you have a family member with a disability you tend to see some things differently. I wrote my third-year paper on the Casey Martin case — the professional golfer who sued [the PGA Tour for the right to use a golf cart during competition] under the Americans with Disabilities Act. I felt like there was so much up for grabs in this area. People with disabilities are a diverse community that has tended to be excluded from society and not had full rights in a number of areas. It has been a wonderful professional journey to try to use law to change that, and we’ve come a long way but there is certainly still a long way to go.

Pro Bono Bill Veto Was a Shock

By Cindy Thomas Archer
Associate Dean, Clinics & Experiential Learning

This op-ed originally appeared in the Friday, Sept. 16, 2016 edition of the Daily Journal.

On Aug. 29, Gov. Jerry Brown vetoed Senate Bill 1257, which would have required those seeking admission to the California State Bar to complete 50 hours of free legal services for those who could not otherwise afford to pay a lawyer for her services.

I was shocked, as were most of the lawyers I knew, by Brown’s veto because for years there have been signs that such a requirement seemed inevitable.

Let’s go back a few years. In 2012, the State Bar Board of Trustees approved the appointment of the Task Force on Admissions Regulation Reform. For almost four years, TFARR studied proposed competency training requirements for admittees to the California Bar. The seemingly least controversial of its proposals was the requirement that those seeking admission complete 50 pro bono service hours. I spoke with law school public interest and pro bono project directors across the state and, while other aspects of the TFARR recommendations were hotly contested and debated, everyone thought this requirement would easily be instituted.

Further, I have spent the last 16 years at Loyola Law School, Los Angeles, the first ABA-approved law school in California with a pro bono legal service hours graduation requirement. It’s an extension of Loyola’s social justice mission from its founding. It is part of our identity and a tool for helping to address the access to justice gap in the community. In fact, many students choose Loyola recognizing and appreciating the school’s commitment to service. And our students annually contribute 60,000 hours or more in pro bono services. Similarly, as of Aug. 23, the ABA Standing Committee on Pro Bono and Public Service reported on its website that of the 184 law schools responding to the survey, 41 have a pro bono or public service requirement for graduation. Another 127 have formal voluntary pro bono programs; 16 others have independent student pro bono projects.

Then State Sen. Marty Block entered the conversation with SB 1257, an answer to the access to justice gap for the masses who cannot afford a lawyer. A no-brainer, right?

Dean Paul Hayden Continues Legacy of Prosser & Keeton on Torts

Few law books are as universally recognized for their impact on a subject area as “Prosser & Keeton on Torts.” Loyola Law School Interim Dean Paul T. Hayden is carrying on the legacy of the 1941 tome that has become an essential study aid for generations of law students and lawyers. Along with two co-authors, he recently published “Hornbook on Torts,” a 1,200-page book that provides a single-volume overview of the entire field of tort law that is the successor volume to Prosser & Keeton’s work.

Originally written by William Lloyd Prosser, iconic professor and longtime dean of Berkeley Law, and later joined by Page Keeton, dean of the University of Texas Law School, the last edition of that hornbook book came out in 1984. Hayden’s collaborator Dan B. Dobbs (himself a co-author of the 1984 Prosser & Keeton edition) produced the first new edition of its replacement (titled “The Law of Torts”) in 2000. Hayden began writing the annual supplements to that book several years later. A few years ago, Hayden, Dobbs and co-author Ellie Bublick decided it was high time for second edition, which hit shelves in early January 2016.

The impact and importance of the new book are not lost on Hayden. “The ‘Prosser & Keeton Torts Hornbook’ was one of the books I relied on heavily as a first-year law student 35 years ago,” said Hayden, the Thomas V. Girardi Professor of Consumer Protection Law. “It’s gratifying to be part of such a legacy.”

Hayden’s other works include the widely adopted casebooks “Ethical Lawyering: Legal and Professional Responsibilities in the Practice of Law,” “Torts and Compensation,” “Global Issues in Tort Law” and “The Law of Torts,” a four-volume treatise with annual supplements. But “Hornbook on Torts” possesses a unique value to Hayden.

“We hope that it will aid law students, professors, lawyers and judges as they navigate an area of law that is superficially simple but often mystifyingly complex and obtuse in application.”

The Importance of Writing Assignments in Evidence Courses

By Associate Professor Kevin Lapp

This is one of a series of guest posts on teaching Evidence at EvidenceProf Blog.

As I said before, Evidence strikes me as an ideal second-year course to incorporate skills exercises into the curriculum, so that students don't just learn the rules, but learn how practicing lawyers prepare for and resolve Evidence law issues. Aided by the problem-based approach of many Evidence textbooks, it's quite easy in the classroom to provide students with the facts of a case and some proposed testimony and to then have one or more students argue for the admissibility of the testimony while others argue for exclusion. This gets them to do the important work of applying the rule they've just learned, has the benefit of them doing so while in role as a lawyer with a particular goal, and ensures that they hear and consider both sides of the issue.

Yet, while many evidentiary issues arise in the middle of witness testimony, and require the quick-thinking objections and oral argument skills that can be developed via classroom discussion or exercises, a lot of evidentiary issues are resolved pretrial via motions in limine. And it is quite a challenge to include legal writing exercises in the Evidence course curriculum for a host of reasons. But I think it is a challenge that deserves to be confronted and overcome. Simply put, no student should leave an Evidence course without having drafted a short motion in limine.
There are several reasons for including a motion in limine assignment (beyond the fact that they are a important component of actual practice).

With Evidence, Balancing Coverage and Class Time

By Associate Professor Kevin Lapp

This is one of a series of guest posts on teaching Evidence at EvidenceProf Blog.

A comment by Frederick Moss to a prior post raised the important question of coverage in an Evidence course. Even for those with the luxury of 4 credit hours each week, there simply isn't enough class time to cover the material and accomplish all that might be accomplished in a law school course.  I'm happy to entertain thoughts on what content gets bumped when the clock is running out - burdens of proof; trial mechanics; the best evidence rule; authentication; scientific evidence. Personally, I haven't yet found room for a one-hour lesson on the limits of eyewitness testimony, which I would love to add to my course.

But coverage is not just a content issue. As the push for more practical training continues (a push I endorse), there is no reason for doctrinal courses to ignore practice skills. Indeed, in these leaner times, doctrinal courses may be the best place to insert practical training into the curriculum. And in my mind, the Evidence course is a perfect place for law school to include lawyering skills alongside the learning of fundamental doctrine. I'm trying to incorporate some skills mini-exercises throughout my course (such as in-role oral arguments in class, and short writing assignments akin to motions in limine), but making time for those requires bumping topics that I already decided couldn't get bumped.

Challenges Present a Time to Reflect and Adapt

By Associate Dean Sean Scott

This column first appeared in the Daily Journal's "New Lawyer" supplement on May 21, 2013.

The law, whether in its study or its practice, is a social institution. As such, it influences and is influenced by other social forces such as politics, economics and social-policy movements. The force that has been the subject of commentary the past few years is the national economic recession and its impact on law practice and on legal education. Much of the commentary has been pessimistic and negative. The pessimism is not unwarranted. The job market for law graduates is weak and tuition at most law schools tops $40,000, resulting in students graduating with debt often in excess of $100,000. The poor job market makes repaying this amount of debt daunting. Rather than pointing fingers at who or what is to blame for these conditions, I encourage law schools and the profession generally to view this period as a time to reflect and then adapt. The revolution brought on by economic retrenchment, technology and globalization provides the academy with the opportunity, perhaps even the obligation, to innovate. Law schools should be open to innovations in the way they teach critical-thinking skills and provide experiential offerings.

It is the obligation of law schools to best prepare their students to adapt to the shifting landscape in which the law operates. I teach Contracts and Commercial Law. Prior to the Industrial Revolution, there was no coherent, cohesive body of commercial law. However, industrialization created a greater need for standard rules to govern commercial transactions. Legal practice and academia had to respond to this new need. Just as the growth of mechanization created a revolution, so too have technology and globalization created a revolution.

There are some skills that law schools must teach regardless of the era in which they find themselves: They must teach students analytical and critical-thinking skills. The law changes and evolves because law schools give lawyers the tools to assess the policies underlying current rules and to analyze the validity of those underlying policies and concerns. Legal educators teach students to assess with a critical eye, and to question and reveal underlying assumptions. Without these skills, and the ability to move the law forward, there is no justice.