by ·Comments Off on Reflections on the Retirement of Justice Kennedy

With the announcement of Justice Kennedy’s retirement, there will no doubt be many constitutional law commentators who will opine about his jurisprudence and impact. My perspective is more personal – I clerked for him 40 years ago when he was a relatively new and young judge on the Court of Appeals for the Ninth Circuit.

Let me begin by setting the stage with what the judicial clerkship market looked like 40 years ago. When I started law school, only about 25 percent of law students were women. But beyond that, it was a time when many legal employers, including federal judges on the Court of Appeals, thought it was completely acceptable to decline to hire women, solely because they were women. I know this because a Court of Appeals judge from the D.C. Circuit said this explicitly. I had interviewed with this judge, and following the interview he called for me at my home and ended up talking with my mother. He explained to her that he hoped I would apply for a different job in the clerk’s office (“We’d love to have some women applicants for this position”), but that he would not be offering me a job because he, “like many of [his] colleagues,” would not be comfortable having a woman as a personal law clerk. Against this backdrop, I headed to San Francisco for a summer job and while out there interviewed with then Judge Kennedy. Unlike his colleague on the D.C Court of Appeals, he was quite comfortable having a woman for a law clerk and offered me the job almost immediately.

Over the course of my year as a clerk, I saw a judge who was open-minded, and who understood that opinions were not merely expositions of legal doctrine but that they had consequences for real people. He was a natural storyteller and I think that sometimes he was more attracted to the “story” of the case than the details of the underlying legal doctrine. He was also a natural consensus-builder. He relished the cases that went en banc and would work the phones looking to garner a majority. He was more interested in building the consensus than in maintaining doctrinal purity. If the consensus required adding a fifth factor to a four-part balancing test or dropping a qualifying footnote, he would do so. The result was that sometimes the opinion lacked the analytic sharpness that some might prefer, but it reflected an innate pragmatic streak. His open-minded instincts extended beyond his approach to judicial decision-making. I remember well reviewing with him a stack of resumes for the next year’s clerks. I had pulled the resume of an applicant who had gone to Stanford as an undergraduate, followed by Harvard Law School and the London School of Economics.  “He sounds like a copy of me,” replied the judge. “Do you have somebody different?”

Justice Kennedy is also a truly kind and thoughtful person. Nothing illustrates this more than a conversation I had with him about a year ago when he called me out of the blue. My son was clerking for him that year and the reason for his call, he said, was that he just wanted to tell me what a terrific lawyer my son was and how much he was enjoying working with him. Constitutional scholars will, appropriately, focus on Justice Kennedy’s judicial opinions and their impact, clarity, and consistency. But in a world of increasing coarseness, it is worthy of note when a person of exceptional power has chosen to comport himself with dignity, modesty, and kindness.

–Wendy Perdue

 

by ·Comments Off on Martin Luther King, Jr. Day – A Message from Dean Perdue

Dear Friends,

Today we once again honor the life and legacy of Dr. Martin Luther King, Jr., though the celebration seems particularly poignant since this year marks the 50th anniversary of his assassination.

Looking back, I find myself wondering: Fifty years ago, where did we think we would be today? On the one hand, did we think we would have seen our first African American president? On the other, did we think that white supremacist ideology would still be alive and well? Amidst progress, there is still work to be done.

So where will be fifty years from now? The answers depends on us. Dr. King offered good advice in that regard when he observed, “The time is always right to do what is right.”

Peace and best wishes to all,​

Wendy Perdue

by ·Comments Off on Building Bridges: Highlights from Dean Perdue’s AALS 2018 Address

A recent survey by the Pew Research Center found that political polarization has increased dramatically over the last 20 years. It is not just that people strongly disagree about important social and policy issues – that has always been true. But there are two new and disturbing trends that we’re seeing. First, there are fewer political moderates: people who hold what we would think of as liberal views on some issues and conservative views on others. That means not only is there just less common ground, but more than that, people who inhabit these ideological silos tend to cut themselves off from those who do not share their full constellation of views. And second, our politics have become increasingly personal with an almost tribal cast. We see those who disagree with us as unintelligent, ignorant, selfish, or even evil.

As our society struggles with this problem of deep polarization, lawyers and law schools have an important role to play. Lawyers are, after all, in the dispute resolution business. Resolving conflict is central to what we do. And today, perhaps more than ever before, the skills that we as lawyers have, and we as law professors teach, is of critical importance.

Lawyers are not social workers, but they are, as Lon Fuller put it, architects of social structure. And in that role as architects, they can be – we can be – enormously helpful in reconnecting a fractured world. That is to say, in building bridges.

So that is my theme for the year: building bridges. Over the last few years, there has been much focus within the legal academy on bridging theory and practice. And that work should continue. But at this moment in time, we lawyers, and educators of lawyers-to-be, need to be building other bridges as well, and teaching our budding lawyers to build bridges in a different way too. Society needs us to model listening skills, so that we can openly and honestly build dialogue with respect for one another’s views.

So over the course of the year, I hope to celebrate and encourage law schools as leaders of civil discourse, reasoned debate, and productive dispute resolution. As we go about that work, let us remember the admonition of Justice Thurgood Marshall which appears on the Virginia Civil Rights Memorial: “The legal system can force open doors and sometimes even knock down walls, but it cannot build bridges. That job belongs to you and me.”

by ·Comments Off on The Foundations for Success

A recent article in the Economist caught my attention: a study of what types of training has the biggest impact in assisting small business owners. Conducted in Togo, West Africa, the study divided small business owners in to three groups. One group got basic business education on such subjects as financial management, marketing, and creating a business plan. The second group got training, inspired by psychology research, that focused on teaching personal initiative, goal setting, and resilience in the face of setbacks. The traditional business training had virtually no effect while the group that received the psychology training saw sales and profits rise significantly.

Employers understand the importance of character and mindset. In a 2016 survey, 24,000 lawyers were asked what skills and characteristic were essential for young lawyers to have immediately, and most of the “skills” at the top of the list were matters of character – characteristics such as diligence, persistence, and initiative.

For law schools, it is too easy to conclude that our students are already fully formed adults and that therefore education focused on character and habits of mind is either not our responsibility or not likely to have an effect. But the studies such as the Togo project suggest otherwise. Programs on resilience, mindfulness, emotional intelligence, and other “soft skills” are beginning to make their way into law schools, including at the University of Richmond. For those who think that attention to these soft skills means law schools have gone soft, my response is this:  There is nothing soft about focusing on the foundations for success.

by ·Comments Off on A Message from the Dean: Events in Charlottesville

The following message was sent to the students, faculty, and staff of the University of Richmond School of Law.

The recent events in Charlottesville are a harsh reminder that white supremacist ideology is not a historical relic. It’s an ideology that persists, and one that cannot be ignored.

The constitutional right of free speech allows all ideas to be spoken, no matter how hateful they may be. We should claim that same right to voice our rejection of such ideas and vehemently oppose racism and bigotry. Moreover, as lawyers, we have a unique responsibility to promote the values of equality that underlie our legal system.

As white supremacists try to sow dissension, it is my hope that the Richmond Law community will instead use this as an opportunity to unite. Unite behind an opposition to racism. Unite behind the principles of civil, non-violent discourse. And unite behind a strong commitment to establishing justice for all.

by ·Comments Off on Proposed ABA Change Could Compromise Quality

It is no secret that the last six years have been difficult ones for law schools, with student enrollment down significantly. Fewer students means less tuition revenue, and as a result schools have had to either find other sources of revenue or cut costs. For regulators, bar examiners, and those who care about the quality of legal education, a core concern is (or should be) whether these revenue enhancements or cost cutting measures adversely affect the quality of the education.

On the revenue side, the ABA has always been attentive to impact on quality. The ABA does not accredit or regulate non-J.D. programs, but any ABA accredited school that wants to add a non-J.D. program must complete a detailed questionnaire which is designed to demonstrate that the new degree program will not divert necessary resources from the J.D. program.

However, a recent proposed rule change to Standard 403 suggests that the ABA is less concerned about quality impacts on the cost-cutting side. Currently, the accreditation rules require that full-time faculty teach substantially all of the first-year classes and at least half of all credit hours offered by the school. A proposed rule change would eliminate any requirement concerning full-time faculty in the upper class curriculum. In other words, the entire upper-class curriculum could be taught solely by part-time adjuncts.

Nearly every law school uses practicing lawyers and judges to teach skills and specialty courses, and their presence enriches the curriculum. Indeed, for certain specialized courses, adjuncts are undoubtedly better teachers than full-time faculty. But as valuable as part-time adjuncts can be, they are no substitute for full-time faculty, for whom teaching, mentoring of students, and curriculum review and assessment are a full-time job, and require a full-time focus of attention.

Teaching core foundational subjects requires more than a practitioner’s knowledge of the area. When I moved from practicing antitrust law to teaching it, I needed to spend many, many hours preparing in order to be able to provide the appropriate conceptual framework. The problem is not that practicing lawyers lack the ability – it is that they lack the time. Full-time faculty keep up not only with their subject area but also with pedagogical innovations. For example, here at Richmond Law, over the past several years our full-time faculty members have participated in multiple workshops, presentations, and discussions about teaching, adult learners, implicit bias, feedback, and assessments. And that doesn’t include the hours that colleagues have spent in each other’s offices offering feedback and ideas. We do hold training programs for our part-time faculty, but they are much shorter and attendance is much lighter.

I don’t mean to suggest that no part-time teacher could ever adequately teach a foundational course, but I don’t think it is likely that a school could appropriately staff an entire upper-class curriculum with only part-time teachers. And unlike the rules on adding new programs, this proposed rule change has no requirement that a school demonstrates that it has systems in place to assure that an entire upper-class curriculum taught only by part-time teachers will be adequate.

Beyond their work in the classroom, full-time faculty are essential to the governance and oversight of law schools. They set standards of assessment and review the curriculum, along with making decisions about hiring new faculty, and they function as advisors to student co-curricular activities and as personal mentors to students. A school with only enough full-time faculty to teach the first-year curriculum will be very thinly staffed.

The current rule already allows schools to have half of its credit hours taught by part-time adjuncts. This gives schools a great deal of flexibility. But allowing schools to eliminate full-time faculty from the entire upper-class curriculum without any demonstration that the school has in place the necessary safeguards to assure quality is a dangerous nod to financial exigency.

by ·Comments Off on Reflections Following Memorial Day 2017

Visitors to Arlington National Cemetery typically focus on the tomb of the unknowns and the Kennedy graves. But off the main path, at the top of a hill, behind the nurse’s memorial, you will find the grave of Chief Justice Earl Warren, located next to his former colleague, Arthur Goldberg. Inscribed on the back of Justice’s Warren’s tombstone is the following:

“Where there is injustice, we should correct it; where there is poverty, we should eliminate it; where there is corruption, we should stamp it out; where there is violence, we should punish it; where there is neglect, we should provide care; where there is war, we should restore peace; and wherever corrections are achieved, we should add them permanently to our storehouse of treasures.”

Like so many of women and men buried at Arlington, Earl Warren strove to make the world better. We should celebrate their endeavors, forgive them their errors, and hold permanently their memories in our storehouse of treasures.

by ·Comments Off on Celebrating Our Hero-Lawyers on Law Day

Today is one of those “holidays” that not many people know about, but that we take pretty seriously here at Richmond Law. It’s Law Day, the day we celebrate the role of law in our society. And there’s no better way to celebrate the role that Richmond Law lawyers play in society than by taking a look back at a few stand-out members of the Richmond Law community. These women and men have made significant contributions: to their communities, to the legal profession, and even to legal education. To us, these are just a few examples of what we like to call hero-lawyers – and they make us pretty proud to be Spiders!

As you can see, we have a lot to celebrate on Law Day – and this is just the tip of the iceberg! We’re grateful for – and proud of – the members of our Richmond Law community.

by ·Comments Off on Crucial Funding for Legal Services

In 1963, the Supreme Court decided the landmark case of Gideon v. Wainwright, holding that states are required to provide counsel for criminal defendants who are unable to afford to hire their own lawyer. Three years later in Miranda v. Arizona, the right to counsel was embedded in the ubiquitous “Miranda warnings” that anyone who has ever watched a TV cop show now knows.

As important as those two decisions are, many Americans do not understand that there is no right to a lawyer in civil cases. You can lose your home, your job, and even your children under circumstances that violate the law, but you have no right to a lawyer to assist you in protecting your rights. You can, of course, hire a lawyer – if you have the money. But for millions of Americans struggling to make ends meet, there is no way they can afford to hire a private attorney.

For over 40 years, the Legal Services Corporation (LSC) has played a critical role in filling this gap in access to justice by funding legal aid organizations throughout the country. Created during the Nixon administration with bipartisan support, LSC is the largest single funder of civil legal aid in the country. The organizations that LSC funds handle critical civil legal needs of low-income people such as assisting military families and victims of domestic violence, representing parties in guardianship proceedings, and helping with housing matters such as evictions and foreclosures.

The dollars invested in LSC are a minuscule portion of the federal budget, but President Trump has proposed eliminating all funding for LSC. What a tragedy that would be. One of the features of this country that makes it great is the aspiration of “Equal Justice Under Law.” Denying access to justice for the most vulnerable takes us a step away from greatness. I’m proud to add my name to a letter signed by over 160 law deans urging our congressional leaders to continue to support the LSC. Learn more here.

 

by ·Comments Off on More than Profession-Ready

From the Winter 2017 issue of  Richmond Law Magazine

“Why Law Matters” is this year’s theme of the Association of American Law Schools, and it is a subject on which I have been reflecting recently. Law is the invisible infrastructure that holds society together, and lawyers are the architects and engineers of that structure. At a personal level, I am proud to be a lawyer and proud, as well, to be associated with the enterprise of educating the next generation of lawyers.

Here at the University of Richmond School of Law, we educate that next great generation of lawyers who will make a difference and support our greater system of justice. Earlier this year, our students took part in our first-ever Celebrate Civic Engagement Week. They engaged in open forums and conversations on public policy; explored careers in the public sector; discussed inclusivity inside and outside the walls of the law school; and participated in outreach projects to benefit our community.

What’s exciting to me is that these activities aren’t limited to a weeklong celebration. Throughout the year, I see our students engaging in the world around them in thoughtful and substantive ways, from organizing panel discussions on timely social topics to organizing pro bono opportunities to serve those in need. At Richmond Law, our students become more than profession-ready; they become world-ready. I take great pride in that knowledge, and I hope you do, too.