• October 19, 2016
    Guest Post

    *This piece was originally posted on the Brennan Center for Justice's blog

    by Andrew Cohen, Fellow, Brennan Center for Justice

    There used to be an old saying about legal education in America: Law school does not prepare you to take the bar exam and the bar exam does not prepare you to be a lawyer. I do not know if that is still true or not, although I suspect it is. It sure was 25 years ago when I graduated from law school, took the bar exam and then began practice as a baby lawyer in Denver.

    Next week I will be in my beloved Boston—what, no World Series game at Fenway?—to speak to law school students, professors and alumni and I cannot help thinking that there is one critical course that is missing from the curriculum at even the most forward-thinking law schools across the country. Too many of those schools teach students about what they wish the law to be rather than what the law really is.

    First-year students take criminal law and criminal procedure and they learn about mens rea and the Model Penal Code. What’s missing from law school curricula, however, is a required course that ought to be titled: “Criminal Injustice.” The course would track the countless ways in which our nation’s justice systems fail to provide justice to countless Americans. Only such a class would adequately prepare new lawyers—whether they end up being prosecutors, defense attorneys, judges or not—for the reality of what is happening in the nation’s courtrooms, prisons, jails and police stations.

    The imaginary syllabus I have conjured almost writes itself. It would begin with a section on police training, recruitment and unions so that students could better understand why police reform is so hard to achieve. We would also address in this section the culture of prisons and how they are so often staffed with overworked and underpaid men and women, to understand why our prisons are a national disgrace. The culture of silence, of a lack of accountability and transparency, helps explain why there are so many excessive force cases and wrongful convictions and documented instances of abuse and neglect in confinement.

  • October 19, 2016
    Guest Post

    by Thomas Nolan, Associate Professor of Criminology, Merrimack College; 27-year veteran of the Boston Police Department 

    The statement from the International Association of Chiefs of Police (IACP) at their annual conference in San Diego has been described as “historic” and “significant” in acknowledging and apologizing for “actions of the past and the role that our profession has played in society’s historical mistreatment of communities of color.”  This apology is “historical” in coming from an organization that has long remained mute in the face of the oppression, racism, discrimination, violence and criminal wrongdoing that have characterized policing for many black and brown men and women in the United States. 

    Terrence Cunningham, the IACP President, offered, “There have been times when law enforcement officers…have been the face of oppression for far too many of our fellow citizens,” but “that this is no longer the case.” (Author emphasis). And so, according to Cunningham, “today’s officers are not to blame for the injustices of the past,” as if what has gone on in Baltimore; Ferguson, Missouri; Chicago; New York City; Cleveland; Waller County, Texas; North Charleston, South Carolina; Washington, DC; Charlotte, North Carolina; Baton Rouge; Tulsa; and Falcon Heights, Minnesota, since 2014, is some distant, forgettable and forgivable part of the history of long ago and far away. 

    Observers and commentators have called Cunningham’s remarks a commendable first step and it is. And one should acknowledge that the IACP necessarily needs to frame its “apology” in terms that are palatable to the 800,000 law enforcement officers who work in the 18,000 law enforcement agencies in the United States. Words need to be chosen very carefully so as not to offend the sensitivies of the members of the Fraternal Order of Police (FOP) who are suffering the debilitating symptoms of the so-called “Ferguson Effect,” while simultaneously fighting the so-called “War on Cops.” 

  • October 19, 2016

    by Caroline Fredrickson

    From First Lady Michelle Obama’s speech in New Hampshire to accusations by Fox News’ Gretchen Carlson against Roger Ailes, sexual harassment and sexual assault have been dominating the headlines for months. 

    Also in the news has been the topic of forced arbitration agreements that limit victims’ ability to have their day in court. Very much a part of the Wells Fargo scandal has been the bank’s argument that it shouldn't have to face its clients at trial.

    These two stories actually have more in common than is often mentioned. First, of course, Fox tried to shut down Carlson’s suit by saying her contract’s arbitration clause prevented her from using that public forum. Few realize how common it is for women and men who allege harassment at work to be shunted into a secretive process that often prioritizes the interests of the employer.

    As I described in my book, Under the Bus: How Working Women Are Being Run Over, while many Americans may think that they can always bring a lawsuit if their employer violates the law, for almost a third of nonunion workers (or approximately 36 million people) that is no longer true. Using a new weapon to undermine workers’ rights, more and more companies are forcing prospective and current employees to sign away their right to sue in order to get hired or to avoid being fired and to agree that all disputes will be resolved in private arbitration, rather than in normal courts.

  • October 19, 2016
    Guest Post

    *This post is taken from the ACS publication: What's the Big Idea? Recommendations for Improving Law and Policy in the Next Administration

    by Sen. Elizabeth Warren

    Ideas matter.

    Eight years ago, the United States was facing the worst economic crisis since the Great Depression. Wall Street firms had gambled away the hard-earned savings of hard-working Americans and sent the stock market into a tailspin. Ordinary folks who were conned into purchasing homes they could not afford saw their homeownership dreams slip away. College graduates ready to enter the workforce were stranded with mountains of debt and no meaningful job prospects.

    There is no question that the Obama Administration had its work cut out for it. And it took some big ideas to make real change. A record stimulus pumped money—and jobs—into an imploding economy. The Dodd-Frank Wall Street Reform and Consumer Protection Act helped reel in some of the shadiest Wall Street practices and created a new consumer watchdog, the Consumer Financial Protection Bureau. The Affordable Care Act expanded health insurance coverage to over 11 million Americans.

    The country stepped back from the brink, but the problems were bigger and more systemic — and the continued attachment to the ideas born of trickle-down economics cramped our response and prevented full recovery.

    Now, as the country continues to wrestle with pressing questions that will define this generation and the next, the need for big ideas is clearer than ever. The next administration must confront a tangle of interwoven problems. How will we address the growing income and wealth gap between the top 1% and everybody else? How will we rethink and rebuild a broken criminal justice system that disproportionately locks up and disenfranchises black and brown Americans? How will we ensure that the water our kids drink and the air they breathe are clean and safe? How will we expand and defend gender equity and LGBTQ rights? How will we ensure that non-citizens are treated fairly and humanely? How will we make our government work to advance the interests of all Americans, not just those with the deepest pockets and the highest-paid lobbyists?

  • October 17, 2016
    Guest Post

    by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    The Constitution has very few requirements for a person to be President of the United States. The individual must be 35 years old, 14 years a resident within the United States and a “natural born citizen.” Although the meaning of this phrase is debated and was an issue concerning Ted Cruz, there is no doubt that Hillary Clinton and Donald Trump meet all of these requirements.

    Fitness to be president, then, is not about constitutional prerequisites. Rather, it is about the criteria that voters use – and should use – in evaluating the candidates. I believe that in assessing the candidates in this or any presidential election, five criteria are most important.

    First, what are the candidates’ values, views on the issues and priorities? For many voters, this is answered by whether the candidate is Republican or Democrat. In this election, there is an enormous difference between Clinton and Trump on issues ranging from immigration to tax policy to racial policy to abortion to gun control. If this were the only consideration, it is hard to imagine a person who identifies as liberal voting for Trump or one who identifies as conservative voting for Clinton.

    Second, does the candidate have the good judgment and temperament to be president? Crises will happen that require quick decisions. Challenges that cannot be anticipated at the time of the election are inevitable, perhaps a foreign war or an attack on the United States or a recession.  Although voters likely strongly disagree over which candidate will exercise better judgment or over who has the temperament better suited to be president, few would disagree as to the importance of these personality traits in choosing a Chief Executive. One benefit to the long campaign season for the presidency is that people get much more chance to get a sense of the judgment and temperament of the candidates.