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.

The Elusive Search for Justice

By Dean Michael Waterstone

Recently, the state of Mississippi and federal government announced they were ending efforts to bring any further cases in the 1964 civil rights murders of Andrew Goodman, Michael Schwerner and James Chaney. This is unfortunate. Successfully bringing cold cases so many years later is incredibly difficult. Many of the culpable individuals have died and memories of witnesses have faded. But despite being understandable as a legal matter, this decision saddens me. There was only one prosecution by the state of Mississippi against any of the individuals involved in this atrocity, and the effort demonstrated how difficult justice can be to obtain but how crucial it is to pursue.

I know because I was there. In 2005, the state of Mississippi brought murder charges against Edgar Ray Killen, a self-avowed “preacher” who had coordinated the connection between the gang of Klansman and sheriff's office. At the time, I was a first-year law professor at the University of Mississippi, teaching civil rights law. I went down to Neshoba County for the murder trial, and brought one of my students from the area with me. It was a moving experience that I will never forget.

Remember, this had been a crime that had captivated the entire nation. The three civil rights workers were in Mississippi to register black voters during Freedom Summer. They were murdered by Klansmen working in direct connection with the sheriff's office. President Johnson sent the National Guard to find the bodies of the missing civil rights workers. But the state of Mississippi, the entity primarily responsible for seeking justice, did nothing. Forty years later, a community coalition of whites, blacks, and Native Americans issued a “call for justice,” urging officials to bring prosecutions against anyone who was still alive. This culminated in Killen’s trial.

Bringing Disability into Constitutional Law Discussions

By Professor Michael Waterstone
 
This was originally posted on American Constitution Society for Law And Policy as part of their 2015 Constitution Day Symposium.

Disability should be included in constitutional discussions. For the most part, it has not been. The doctrinal resting place of disability constitutional law is a bad one – under Cleburne, government classifications on the basis of disability are only entitled to rational basis scrutiny. Especially given that there is a statute, the Americans with Disabilities Act, that in many ways goes further than what constitutional law could require, disability cause lawyers have not brought cases under constitutional theories. And, tracking this, the progressive academic discussions of the Constitution’s future and potential do not usually include any discussion of disability.

Prof. Waterstone Comments on State Bar Mentoring Proposal

The California State Bar recently created a State Bar Attorney Mentoring Program designed to "further public protection through mentoring, education and the training of young lawyers to promote the pursuit of excellence, professionalism, and ethics in the practice of law."

Part of the pilot for this program includes asking members of the bar for public commentary in hopes of designing a program that would best fit the needs of California law students and their possible mentors. Professor Michael Waterstone's commentary appears below.

Disability Constitutional Law

By Professor Michael Waterstone
 
This was originally posted on American Constitution Society for Law And Policy

This week is the 25th anniversary of the Americans with Disabilities Act (ADA). The ADA prohibits discrimination on the basis of disability in employment, government programs and services, and privately owned places of accommodation. It was and remains an ambitious law, requiring employers and business owners to make reasonable accommodations, at their own expense, to be more accessible to people with a wide range of disabilities. And although there is still a long way to go, the ADA should be celebrated for its role in moving people with disabilities into the mainstream of society.

What Obama Left Unsaid on Helping the Long-Term Unemployed

Associate Dean Michael Waterstone

This op-ed originally appeared in Roll Call.

People who have been without work for a long period of time are hurting. Even the most tenacious job seeker becomes discouraged over time, and their skills inevitably erode. The longer you are out of a job, the less attractive you become to employers, who wonder why you cannot find work. It is a vicious cycle, and your ability to support yourself and your family deteriorates.

Although some things have improved since the Great Recession, the job prospects for the long-term unemployed have not. Many companies now explicitly advertise that they will not accept job applications from people who are not currently working elsewhere. That is why it is a good thing that President Barack Obama used his State of the Union address to address the issue. The president's call to help the long-term unemployed is right in line with his larger theme of creating good jobs to help bolster the middle class as part of an "opportunity agenda."

Read the complete op-ed.

Book Review of Talent Wants to Be Free

By Associate Dean Michael Waterstone

This book review originally appeared in the Daily Journal.

Ideas. Collaboration. Drive. In the world we live in, these intangible resources can be the most valuable assets a business has. In the two professional worlds with which I am most familiar, law practice and legal academia, this is certainly the case. Law firms routinely raid one another, both for talent and for books of business (and potential for future business). At law schools, we regularly look to other faculties to see whose talents in the classroom, as scholars, and as administrators would benefit our students, and try to recruit those faculty members to join our ranks. And we expect that other schools will do the same to us. Even more than in the legal arena, the competition between technology companies like Facebook, Google, Microsoft and Apple is even fiercer. All of these companies fight vigorously with one another for the best talent, and routinely acquire (or as it is now known, acq-hire) entire start-ups, only to discard the actual product but keep the teams, founders and engineers.

Professor Orly Lobel's important new book, Talent Wants to Be Free: Why We Should Learn to Love Leaks, Raids, and Free Riding addresses what role business and government should play in the talent wars, not just in the legal profession but across industries. Combining insights from law, economics, psychology and business, and with the benefit of experimental studies, Lobel offers a powerful critique of our dated ways of thinking about competition, which center around command and control of human capital. But she also offers a hopeful vision of how law and business can foster innovation and the competitive edge necessary for our country's success in a new and more challenging global environment.

Introducing Guest Alumni Blogger James Gilliam

It is with great pleasure that I introduce our third guest alumni blogger: James Gilliam '03. James has long been a champion of social-justice issues -- a topic area on which he will blog in this space. James teaches the Public Interest Law Practice Seminar, Sexual Orientation and the Law and other subjects as an adjunct professor at the Law School, where he was a public interest scholar. James has served as the deputy executive director of the ACLU of Southern California since 2010. Previously, he was a litigation associate and associate pro bono coordinator at Paul Hastings, where he helped the firm notch its first appearance on The American Lawyer's "A-List Pro Bono Score Card."

-Associate Dean Michael Waterstone

Comments on EEOC Enforcement Priorities

By Associate Dean Michael Waterstone

The Equal Employment Opportunity Commission recently approved a Strategic Plan for Years 2012-2016. This is an important document. The EEOC is the primary federal enforcement agency for the nation's employment laws, with responsibility for the Americans with Disabilities Act, Title VII, the Age Discrimination in Employment Act, and the Genetic Information Nondisclosure Act, amongst others. The Strategic Plan sets enforcement priorities for the EEOC. The EEOC invited input on what the EEOC's national priorities should be for the next three years to have the greatest impact in combating discrimination in the workplace; and recommendations for improving enforcement, outreach and prevention, and customer service.

I submitted these comments, suggesting that the EEOC emphasize failure-to-hire claims in the disability discrimination context. This type of discrimination is the hardest to prove, and these are the hardest cases for the private bar to bring. Yet all evidence suggests this type of discrimination is still happening and limiting the employment opportunities of diverse categories of people with disabilities. Specifically, I advocate that the EEOC should identify cases where employers appear to have a pattern of not hiring employees with disabilities, and that the EEOC consider a testing strategy to ferret out this discrimination, a method which has proven effective in other civil rights contexts.