Works in Progress
Immigration and Families
Moderator: Denise L. Gilman, The University of Texas School of Law
H-4 Visaholders and the U.S. Immigration System
Sabrina Balgamwalla, University of Baltimore School of Law
The H1-B “specialty occupation” visa program created a path to immigration and permanent residence for tens of thousands of workers in the technology industry and other professional sectors. The program also offers visas to spouses and children in the form of H-4s—what would appear to be an improvement over early U.S. labor-based immigration policies that did not allow for immigration of family members. In practice, these H-4 spouses enjoy a fraction of the rights accorded to their spouses. Immigration laws systematically deny H-4 visa holders autonomous rights, including the rights to work, independently regularize their immigration status, and preserve family unity. What rights H-4s do have—including the right to remain in the United States—are under the exclusive control of the H1-B and are contingent on the marriage. The H-4 program is a natural outgrowth of an immigration system that commoditizes immigrant labor, fails to consider the dynamics of dependence and abuse it perpetuates, and effectively restricts the reproduction of immigrant families and communities. This paper puts forth a framework for employment-based immigration reform that considers the rights of H1-Bs and other admitted workers in the context of their family units and accords independent rights to their spouses, specifically in according H-4s the right to work, self-petition for permanent residence, independently preserve their access to U.S.-born citizen children, and petition for other family members.
Collateral Advocacy for Immigrant Youth and Families
Theodor S. Liebmann, Hofstra University School of Law
This essay focuses on the collateral obligations of lawyers for immigrant youth and families in family court. While there has been much recent scholarship and discussion among academics and practitioners concerning the collateral consequences of criminal convictions, and a much more limited, but growing, discussion of the collateral consequences of juvenile delinquency findings, there is a crucial, yet unexplored, flip side to these discussions. Specifically, in the realm of family court practice, the involvement of the family court system in the lives of youth and families does not just create collateral consequences, it also can create many collateral opportunities for advocates to assist clients with immigration-related issues. Informed and effective “collateral advocacy” in family court on these issues can make life-changing, and even life-saving, differences for youth and families. After a brief initial exploration of the current discourse on collateral consequences, this essay argues that a complementary discourse should be undertaken on collateral obligations, specifically in the context of immigration-related issues for youth and families in family court. The essay examines how informed advocacy – or a lack thereof – in certain areas relating to immigration status dramatically impacts youth and families. The essay then explores the ethical mandates, practice guidelines and systemic realities which suggest that advocacy in those areas is necessary and arguably, in some situations, mandated. Finally, the essay addresses some of the barriers to such collateral advocacy, including a lack of training and a lack of resources for lawyers who work in family court.
Immigration and the New Enforcement
Moderator: Ragini N. Shah, Suffolk University Law School
Rising Arizona: The Legacy of the Jim Crow Southwest on Immigration Law and Policy After 100 Years of Statehood
Kristina Campbell, University of the District of Columbia, David A. Clarke School of Law
This year, the State of Arizona marked its 100th year of statehood. This Article discusses recent developments in Arizona immigration law and policy and, by providing an overview of the history of race-based exclusion laws and policies in the Arizona Territory and the State of Arizona, argues that Arizona’s modern anti-immigrant laws and policies are merely the newest incarnation of the State’s long history of discriminatory laws against racial and ethnic minorities, particularly Latinos and American Indians.
Immigrants on a Silver Platter: Lopez-Mendoza and the Exclusionary Rule in the Age of Secure Communities
Maureen A. Sweeney, University of Maryland Francis King Carey School of Law
Changes in immigration enforcement have incentivized and normalized the racial profiling of the poor and communities of color. This trend is enabled by the Supreme Court's INS v. Lopez-Mendoza decision, which held the Fourth Amendment is not usually enforceable in removal proceedings. This paper will explore many of the ways that the factual and legal underpinnings of Lopez-Mendoza have been eroded over the years. For example, Lopez-Mendoza was decided based on a calculation of the risks of unconstitutional behavior by then-INS agents charged with the civil enforcement of immigration laws. The Court presumed (rightly or wrongly) that these agents would be well trained in and adhere to INS policy and regulations on proper procedures for seizures and arrests. However, increasingly more of immigration enforcement is now conducted by or in conjunction with state and local law enforcement officers who are untrained in the constitutional limits on their enforcement of civil immigration law, through state laws or federal programs like Secure Communities. With untrained local officers and in a political context in which racial and anti-immigrant sentiment runs high, these programs have led to record numbers of removals and unacceptably routine racial profiling of "foreign"-looking or sounding people. This fundamental factual shift has undermined the Court’s assumption of a well trained and centralized enforcement force, part of the basis for the Lopez-Mendoza court’s cost-benefit analysis on application of the exclusionary rule in immigration proceedings. In addition, the shift in enforcement affects the balance of costs and benefits in allowing a federal enforcement agency to profit from the unconstitutional behavior of state and local officers – the question of whether state and local authorities can deliver noncitizens to federal immigration officers “on a silver platter” that absolves them of liability for unconstitutional arrests.
Issues Facing Teenagers
Moderator: Jenny Roberts, American University, Washington College of Law
Contraception and Adolescent Girls: Coercion, Reproductive Self-Determination, and the Failure of Policy
A. Rachel Camp, Georgetown University Law Center
In December 2011, the Secretary of the Department of Health and Human Services (HHS) overruled for the first time a recommendation by the FDA to make Plan B One-Step emergency contraception (EC) available to girls under the age of 17 without a prescription. HHS based its rejection on the “significant cognitive and behavioral differences between older adolescent girls and the youngest girls of availability of this product for all ages.” HHS’s denial issued despite an FDA finding that there was well-supported and science-based evidence that Plan B One-Step was safe, effective, and should be approved for nonprescription use for all females of child-bearing age. Only days after the HHS denial, the Centers for Disease Control issued an unrelated report detailing alarmingly high rates of continued sexual and intimate partner violence against women and girls in this country. Other studies show a strong correlation between sexual coercion and intimate partner violence, with the risk of unintended pregnancy doubled for teenagers who have been physically or verbally coerced into sex, or who have had their birth control sabotaged by their partner. Within the context of this coercion and violence, this article explores the HHS' denial by exposing its flawed protectionist reasoning and its gender bias. It proposes reframing the EC discussion from one focused on paternalistic notions of the naiveté of adolescent girls, to one that emphasizes the right for teens to self-determination over their reproductive health and one that focuses on real harm, including partner abuse, that can befall an adolescent girl either in becoming pregnant, or once pregnant. Part I of this article looks at the history of Plan B One-Step and challenges the assertion that “cognitive and behavioral” limitations of adolescent girls serve as an adequate basis for its denial. Part II explores the connection between intimate partner violence, coercion, and birth control sabotage in teen dating relationships and the relevance of EC to those forms of control. Part III provides a historical overview of adolescent reproductive rights, including access to non-emergency contraception, and explains why the decision by HHS infringes upon those rights. Finally, Part IV argues that beyond making Plan B available to adolescents under 17 without a prescription, broader protections from unwanted or coerced pregnancies should be afforded to teenage girls, including easier access to non-emergency birth control and enhancement of civil protection order statutes for teenagers who have experienced rape and reproductive coercion.
Bathrooms and Bullycides: What Schools Need to do to Protect Lesbian, Gay, Bisexual, and Transgender Youth From Harassment
Susan Hazeldean, Cornell Law School
Anti-gay and transphobic harassment in schools is a public health crisis. With tragic regularity lesbian, gay, bisexual, and transgender (LGBT) young people take their own lives after being taunted because of their sexual orientation or gender identity. Effective action is desperately needed to improve the lives of LGBT students in their schools. Unfortunately, the legal regimes currently in place to protect students’ safety do not create incentives for schools to respond effectively to anti-gay bullying. As a result, schools acting to safeguard LGBT youth exacerbate their social isolation and vulnerability rather than ameliorate it. Officials purport to protect LGBT youth by, for example, forbidding a transgender girl from using the girls’ bathroom or prohibiting a student wearing a “Gay? Fine by me.” T-shirt. But making support for LGBT people literally unspeakable or labeling a transgender child unfit to use the same toilet as her peers does not prevent harassment, it encourages it. Such actions tell students that that LGBT youth do not deserve to participate openly at school, which is the very attitude that fuels anti-gay and transphobic harassment. I argue that a new approach is needed to encourage schools to focus on making LGBT students full participants in school life rather than excluding them for expressing their identities. Only then will schools be keeping LGBT children genuinely safe.
Domestic Violence Clinics
Moderator: Sarah Rogerson, Albany Law School
When Enforcing Restraining Orders Collides with Economic Security: What’s the Role of the Lawyer
Camille Carey, University of New Mexico School of Law
Robert A. Solomon, University of California, Irvine School of Law
The authors co-taught a Domestic Violence Clinic at Yale Law School, following a holistic model in which the clinic students represented victims of domestic violence in a full range of civil legal problems, including family law, immigration, tort actions against abusers, mortgage foreclosure, landlord-tenant, and tax matters. In this practice, we found that many clients were forced to balance the issue of physical abuse with the threat of severe financial stress. Many of those clients were loath to enforce existing restraining orders or criminal protective orders, fearing that enforcement would result in incarceration of the abuser, which would interrupt financial support. The authors analyze this situation through the lens of one of their clinic cases and in the context of a clinical program, examining the Rules of Professional Responsibility, the role of economics, duress, coercion, and other factors for a client who places herself in harm’s way, the tension between proponents of mandatory arrest and opponents who urge individual and therapeutic decision making, cause lawyering versus individual service, feminist legal theory, and recent social science work on the ability to predict future domestic violence based on current behavior.
Transforming Domestic Violence Representation
Jane K. Stoever, Seattle University School of Law
The dominant theories used in the law to explain domestic violence, namely, the Power and Control Wheel and the Cycle of Violence, provide only limited insight into intimate partner abuse. Both theories focus exclusively on the abusive partner’s wrongful actions, consistent with recent decades’ concentration on criminalization, but fail to educate about the survivor’s needs and efforts to end violence. The Stages of Change Model, conversely, reveals that domestic abuse survivors end relationship violence through a five-stage cyclical sequence and identifies the survivor’s needs and actions at each stage. This critical information should inform the representation of abuse survivors, however, this model remains unknown in the legal profession and this article is the first scholarship to apply this model to lawyering. Domestic violence representation presents unique challenges to lawyers as they struggle with limited conceptions of their role, assumptions about abuse victims and how they should respond to violence, and feelings of fear and frustration when clients return to abusive partners. This article evaluates the contributions and shortcomings of the dominant models, how the Stages of Change Model fills a significant void, and how insights from the Stages of Change Model can transform the representation of abuse survivors. As I explore the implications this model has for client representation in domestic violence law, I draw on my experience teaching domestic violence clinics and the transformation my students report when they learn and apply this model.
Domestic and International Law
Moderator: David B. Thronson, Michigan State University College of Law
Secrecy and Accountability: Rethinking Freedom of Information In the Age of Domestic Surveillance
Jenny-Brooke Condon, Seton Hall University School of Law
This article explores the Freedom of Information Act’s (“FOIA”) promise of government transparency in the face of a growing national intelligence apparatus. In Extraterritorial Interrogation: The Porous Border Between Torture and U.S. Criminal Trials, 60 Rutgers L. Rev. 3 (2008), I addressed the blurring of lines of sovereign responsibility for torture and the need for clearer standards and greater judicial skepticism when statements obtained via foreign interrogations are sought to be admitted in U.S. criminal trials. In my current project, I again critique excessive judicial deference to the government in the national security context. The starting point of my analysis is a long line of cases in which courts have allowed the Central Intelligence Agency (“CIA”) to keep secret under FOIA any and all information deemed by the agency to be an “intelligence source or method”—irrespective of the legality of the purported “method” sought to be withheld. Under these precedents, the CIA may maintain the secrecy of patently unconstitutional activities such as programs implementing enforced disappearance, secret detention, and abusive interrogation so long as it declares such methods to be “intelligence sources or methods.” In this article, I probe the disconnect between the robust judicial deference extended to the CIA under FOIA and the Agency’s history of bureaucratic incompetence, malfeasance, and illegality—problems that the disinfecting light of public access under FOIA was meant to curtail.
Lenahan (Gonzales) v. United States: Wake-Up Call or Words on a Page?
Jill C. Engle, Pennsylvania State University The Dickinson School of Law
The landmark 2011 decision by the Inter-American Commission on Human Rights (IACHR) found that the United States government had violated the human rights of Ms. Lenahan (formerly Gonzales). It stands in stark contrast to the United States Supreme Court’s 2005 decision denying Gonzales’s procedural due process claim against the town of Castle Rock, Colorado, for failing to enforce a domestic violence restraining order against her estranged husband. The incident in question resulted in the deaths of her three young daughters at the hand of their father, who also took his own life. Among the many questions raised by the IACHR’s decision are whether it will affect the influence, or lack thereof, of international law on American jurisprudence. I argue in this paper that not only should it increase the already growing influence of international law in American courts, that it is in fact a “wake-up call” for our system to come into compliance with global standards or fall perilously behind.
Mandating Precontractual Disclosure: Compensating for the Limits of Good Faith
Eric Franklin, University of Denver College of Law
To what do we owe parties with whom we negotiate? Obviously, we have laws proscribing fraud and misrepresentation. Absent such clear violations, however, how must we conduct ourselves? Is passive honesty enough, or do we owe positive disclosure obligations to our contracting counterparts? If we owe something, what exactly do we owe? A duty of disclosure is inherent in the duty of good faith and fair dealing that applies to all contracting parties through the Uniform Commercial Code and the Restatement (Second) of Contracts. This duty, however, generally does not extend to activities conducted prior to the execution of a contract (i.e., negotiation). This article proposes a test by which legislative drafters and policymakers might determine when it is appropriate to mandate a precontractual duty of disclosure.
Reframing Family Court
Moderator: Jeffrey J. Pokorak, Suffolk University Law School
Accountability in Family Court
Matthew Fraidin, University of the District of Columbia, David A. Clarke School of Law
Which accountability mechanisms operate in child welfare court cases, and are they helpful or harmful? Accountability, an expectation that a decision or decision-making process will be visible, can guard against decisions being made on the basis of mental shortcuts not useful or appropriate for the context. Research indicates that a decision may be more accurate, and a process more thorough, if there is an audience, and if the views, opinions, or desires of the audience are unknown. Accountability to an audience with unknown views may produce highly deliberative, analytic, critical thinking. Under other circumstances, however, accountability mechanisms can generate unhelpful responses, such as "buckpassing" (i.e., avoidance) and "bolstering" (the search for any available data supportive of the decision, regardless of the presence of contrary data). In this paper, I explore the accountability forces which affect five major decisions in child welfare cases - removal, adjudication, disposition, the setting of a permanency goal, and termination of parental rights - and argue that new mechanisms - including opening sealed courtrooms - should be implemented to improve judicial decision-making.
A Father’s Race to Custody: How Implicit Bias and Unconscious Racism Affect Custody Proceedings
Jennifer Kim, University of Baltimore School of Law
The Implicit Association Test (IAT), made famous in the 1990s, concretely exposed the implicit biases and unconscious racism many held towards certain racial groups. As an example, when participants were told to pair pictures of black faces to descriptive words, time measurements indicated that it took subjects longer to pair black faces to positive words. This implicit bias and unconscious racism play a role in our legal proceedings today, as studies have shown that in criminal cases, participants had an easier time recalling aggressive facts when the actor was black as compared to when the actor was white. In this work in progress, I argue that, due to implicit bias and unconscious racism, the race of the father has a significant impact on custody proceedings. As an example, I concentrate on black men and the various stereotypes that are associated with black fathers. I apply Professor Frank Rudy Cooper’s theory of the “bi-polarity of black men,” and reiterate how there are two extreme stereotypes of black men: 1) the “Bad Black Man,” who is seen as animalistic, inherently criminal, and sexually unrestrained; and 2) the “Good Black Man,” who is seen as passive, nonassertive, and nonaggressive. As a result of these competing stereotypes, I argue that implicit bias and unconscious racism force the factfinder to categorize black fathers as either a “Good Black Man” or a “Bad Black Man,” depending on the varying characteristics the black father presents in court. Because of the particular subjective nature of custody cases, I argue that this categorization deeply impacts the fact-finder’s decision in determining whether the black father should receive custody based upon the “best interest” of the child.
Economic Development and Community Justice
Moderator: Spencer Rand, Temple University, James E. Beasley School of Law
Local Occupations and the General Assembly Model: New Directions for Community Economic Development
Michael L. Haber, Hofstra University School of Law
Community Economic Development (“CED”) law is rooted in the idea that community-led efforts to create housing, jobs, and social services in low-income neighborhoods not only fight poverty and inequality by meeting community needs, but also can lead to client and community empowerment. Since the 1990s, however, a number of critics have charged that CED fails to meet these goals, arguing: CED tends to depoliticize anti-poverty advocacy; CED privileges local incrementalism over the struggles for broader, structural change; CED’s local focus prevents the formation of alliances across communities and racial and ethnic groups; and CED, especially as it has become increasingly driven by fundraising and “market-based” government programs, fails to empower low-income communities. This article presents the Occupy Movement in the context of these critiques of CED and describes how the Occupy Movement, like CED, seeks to not only fight income inequality, but also, through procedural mechanisms like the General Assembly, aims to organize and empower individuals who may feel otherwise unable to fight the structural inequities around them. It argues that the Occupy Movement is an example of a “loosely-structured” group client, and that the Occupy Movement, while imperfect, presents important new ways to overcome many of the critics’ challenges to CED. It explains three ways that CED lawyers can work with, and be influenced by, the Occupy Movement to help create new variations on CED lawyering that have the potential to return CED practice to its more activist roots.
The Problems of Participation and Power in New Governance
Jaime Lee, University of Baltimore School of Law
Lawmakers and policymakers are increasingly employing “new governance” frameworks to craft solutions to both public and private problems. Part of new governance’s broad appeal lies in its explicit promise to incorporate the voices of traditionally marginalized stakeholders in decision-making processes that are usually controlled by the privileged and the powerful. Scholars have noted, however, that rather than empowering marginalized communities, new governance may in fact more deeply subordinate them by merely offering the semblance of inclusion, while delivering only “sham” procedures that in fact give little or no weight to marginalized voices. This article argues that for new governance to claim legitimacy as a problem-solving heuristic where severely marginalized stakeholders are involved, it must affirmatively confront and reduce its vulnerability to sham. Sham is arguably preventable only when a substantial power shift among stakeholders is induced. Using the example of urban development projects, the article assesses what such a shift in power might look like and how it might be induced through legal and non-legal mechanisms. The article concludes that while certain mechanisms might have the potential to reduce sham, real success is likely to be limited, and that before putting faith in a new governance proposal we must carefully consider whether it shifts power in a way that adequately protects against sham.
Poverty Law and Marginalized Communities
Moderator: William Berman, Suffolk University Law School
Anywhere but Anywhere: The Fallacy of Freedom for No-Property Individuals
Kathryn Loncarich, University of Baltimore School of Law
This paper will focus on the hyper-regulation of public property in the United States and how these regulations constrain the freedom of “no property” individuals under a capabilities approach. From the 1980s to the present, urban space has become increasingly regulated, and people without access to real property are subjected to multiple layers of restrictions that fundamentally constrain their functional freedom by limiting essential human activities and meaningful choice. The capabilities analysis will focus on objective capabilities – what options no-property individuals have to make meaning choices while abiding by the multi-layered “rules of the game” – and positional objective capabilities – what no-property individuals view as their options for meaningful choice given the irregular and discretionary enforcement of these rules and the psychological impact such enforcement has on individuals in assessing meaningful choices. Ultimately, access to property and privacy opens up a wide array of capabilities, allowing people not only to make choices they personally value, but also to be accountable for those choices. As regulations on public space continue to increase, property and privacy are essential to safeguarding even a minimal level of freedom for individuals living in urban environments.
The Educational Opportunity and Labor Market Decline of Young Black Men in America
Leslie Turner, University of Maryland Francis King Carey School of Law
This paper examines disparities in the funding and resources provided to public schools in low-income school districts, and the effect of these inequalities on the educational attainment and welfare of young African-American males in the labor market. The negative impact of educational inequity on black male participation in the labor market is staggering. Studies show that labor market activity among young black men is largely influenced by educational attainment. Thus, with high school graduation rates continuing to be substantially lower for black male students enrolled in high-poverty and high-minority, low-income school districts, unemployment rates among less-educated young black men continue to increase. The consequences of low pay and high unemployment rates for this demographic group are further exacerbated by the fact that present education reform efforts do not address the devastating effect that disparities in school resources have on African-American male earnings. Additionally, past and current economic and social conditions in this country, as well as gaps in existing education laws and policies, contribute to the continuing decline in educational attainment and labor force activity among young black men in the United States. A review of the educational activities and outcomes for black men show a clear link between school quality and subsequent income, and thus supports the pressing need to find a solution to this growing problem. I argue that changes to current education laws and policies are necessary, and provide specific suggestions for law reform and policy advocacy that will improve the education and labor market prospects of young black men in America.
Topics in Mediation
Moderator: Michele Estrin Gilman, University of Baltimore School of Law
Foreclosure Mediation: Bridging the Gap and Aligning the Interests of Main Street and Wall Street
Lydia Nussbaum, University of Baltimore School of Law
The foreclosure crisis in the United States began to unfold in 2008 and since then, millions of people have lost their homes and billions of dollars in real-estate investments have evaporated. The opportunity for investors to buy securities backed by mortgages, or, in other words, to invest in a homeowner’s ability to pay her mortgage, first became possible in the early 1990s and marked a radical change in the mortgage industry. With securitization, homeowners’ mortgages no longer sat on the books at the local savings and loan but were instead held by anonymous investors and managed by a third party. The presence of this third party, the loan servicer, eliminated contact between the homeowner-borrower and investor-lender. When homeowners began to default on their mortgages by the tens of thousands in 2008, the legal remedies available to homeowners and lenders had not adapted to the new dynamic established by the presence of this third party. The result was disastrous. While federal, state, and local governments responded to the emergency with a variety of programs, this paper focuses on one type of program in particular: foreclosure mediation. Foreclosure mediation and settlement programs prove surprisingly effective in compensating for the changed relationship between borrower and lender. These programs create an opportunity for homeowners and a representative of the mortgage investors to sit down together and decide whether foreclosure is in both of their best interests. But not all foreclosure mediation programs were created equally and some have unique features that make them more successful than others. This paper weighs the pros and cons of foreclosure mediation programs and asks whether, when considering the alternatives, they should become a permanent part of the foreclosure landscape.
Procedural Justice Study of Protective Order Mediation Participants
Raja Raghunath, University of Denver College of Law
Over the last thirty years, the domestic violence (DV) and mediation communities have debated whether DV cases are appropriate for mediation. Many argue that DV victims should not be ordered into mediation, due to the power imbalances in such relationships, which make mediation between batterers and battered women unavoidably coercive. The Jefferson County (Colorado) Court offers mediation for parties in civil protection order cases, which are mainly brought by victims of domestic violence against their accused batterers. This mediation program is unique in the state, and rare nationwide. The scholarship of procedural justice examines, in part, how dispute resolution processes are perceived and evaluated by the people who are subject to those processes. I intend to distribute surveys measuring the perceptions of the participants in this mediation program, to determine whether their subjective ratings of the fairness of their overall experience with the protection order court are improved, diminished, or unaffected by that experience. Each respondent will be asked to complete the same set of eight (8) to ten (10) questions, on a seven-point Likert scale, both before and after their mediation. The questions ask about the elements of procedural justice that have been identified by prior researchers, such as “voice” (whether participants feel heard by decision-makers), “trustworthiness” (whether the judge cares about the litigant and is seeking to do right by him or her), whether they are treated with respect, and whether they feel they are able to affect the outcome of their dispute.
Delivering Legal Services Effectively
Moderator: Wendy A. Bach, University of Tennessee College of Law
Against Hierarchies of Helping
Rebecca Sharpless, University of Miami School of Law
This article identifies and critiques a hierarchy within progressive scholarship about social justice lawyering that devalues direct service attorneys—nonprofit attorneys who focus on helping individuals in civil cases. Using the lenses of feminist theory and human psychology, this article analyzes the development of a hierarchy of helping in the discourse about progressive lawyering that started in the 1960s and has been carried forward through four phases of thinking about progressive lawyering. Direct service work is work done primarily by women in the service of women, has the aesthetic of traditional women’s work, and can be understood as embodying Robin West’s “connection thesis” that women have a greater existential and psychological connection to others than men. Under a feminist analysis, practice visions of progressive lawyers that rely upon a contrast with inferior direct service attorneys use a strategy of oppositional definition that is representative of binary male thinking and is harmful. Humanist psychology identifies the basic human need to fulfill the second-order desire of living in accordance with one’s values. Progressive lawyers and scholars may more fully satisfy their second-order desire for social justice if they believe that they are working toward grand scale justice rather than helping only discrete individuals. This article discusses particular concrete harms perpetuated by the pejorative rhetoric about direct service attorneys and adopts insights from critical race theory to sketch a path for moving beyond the hierarchical discourse and toward more effective dialogue and collaboration between progressive theorists and practicing lawyers.
Clinics in the Clouds: Ethical Responsibilities and Technology Mandates for Cloud Based Practice Management in a Clinical Environment
Robert R. Statchen, Western New England University School of Law
Law practice management is migrating to the cloud in private practice and law school clinics. Cloud based operations can range from Internet based email to document, schedule and billing functions. This raises numerous ethical issues including client confidentiality, due diligence and competency. Numerous state bar advisory bodies have written opinions attempting to create appropriate standards for lawyers to follow when working in the cloud. Clinicians must ensure that their implementation of this technology comports with their professional responsibilities and be able to coherently explain this to their students. This paper, co-authored by a clinical professor and an Internet security professional, hopes to establish an appropriate standard for cloud based law practice management and explain the current technology that facilitates compliance.