This chapter discusses the childcare and custody rights of incarcerated parents. According to the U.S. Department of Justice, an estimated 809,800 state and federal prisoners were parents to children under the age of eighteen in 2007. There are approximately 1,706,600 children under the age of eighteen who have a parent in prison.
As a parent in prison, you may fear that your child will not be cared for, that you will lose your child, or that your relationship with your child will suffer while you are incarcerated. This Chapter focuses on New York state law and describes how the law provides parents in prison with various tools to prevent these things from happening.
Kimberly D. Ambrose, William H.D. Fernholz, Catherine F. Klein, Dana Raigrodski, Stephen A. Rosenbaum, and Leah Wortham
Since the publication of Best Practices for Legal Education, the globalization of both legal education and law practice has exploded. Today’s lawyers increasingly serve border-crossing clients or clients who present with transnational legal issues. As law schools expand their international programs, and enroll increasing numbers of non-U.S. law students, law students transcend cultural and legal borders. As a result, they deepen their understanding of—and sharpen their critical perspective on—their own national systems. Similarly, U.S. law teachers are increasingly called to engage in border-crossing teaching and other academic pursuits. Best Practices did not address these issues. The primary aim of this chapter of Building on Best Practices: Transforming Legal Education in a Changing World (Lexis 2015) is to identify best practices for law teachers engaged with non-U.S. or “international” learners who study or train in a U.S.-style learning environment, either in the United States or abroad.
This chapter also addresses collaboration of U.S. law teachers with their counterparts abroad in such areas as developing innovative teaching and clinical legal education, training and research. It identifies eight guiding principles that cut across types of international learning and then applies these principles to three specific contexts: 1) teaching international students in U.S. law school settings; 2) integrating international students in U.S.-based clinics; and 3) collaborating in legal education and reform efforts with law teachers abroad.
Lisa Radtke Bliss and Deborah Maranville
As law schools seek to better prepare students for the profession, they are expanding experiential education in traditional contexts such as theory and practice simulation skills courses, clinics, and externships. At the same time, they are also searching for opportunities to expose students to practical learning opportunities during the entire course of their legal education by incorporating experiential education throughout the curriculum. It is a best practice to develop conscious strategies for pursuing this effort. While Best Practices for Legal Education called for the integration of teaching theory, doctrine, and practice, it did not address strategies for integrating experiential education across the curriculum.
Law practice continues to become more complex and demand a broader range of specialized knowledge. Business and financial literacy skills, once viewed as only important in business school or for law students who intend to become lawyers representing business owners or entities, are being viewed differently by legal educators who desire to ensure that law students are prepared for practice.
The world is driven by business, and core business and financial issues routinely surface in various types of legal disputes, transactions, and planning challenges. At a minimum, knowledge of basic business and financial concepts will help a lawyer deal with personal consumer, credit, financial, investment, and business challenges and enhance the lawyer’s ability to serve others, even when retained for a non-business matter.
The importance of understanding core business and financial concepts is heightened for the lawyer who wants to serve business owners or executives at any level. Best Practices for Legal Education did not address the need for business and financial literacy. Given the growing recognition of this as a potential area for curricular development, it is a best practice for schools to identify whether students have opportunities in the curriculum to learn the knowledge, skills, and values of this subject.
This section explores why such knowledge, skills, and values are important and aims to identify the core elements of business and financial literacy for educators exploring this topic.
Best Practices for Legal Education organized its discussion of experiential courses around the “simulation-based courses, in-house clinics, and externships” typology without specifically defining what structures fall within each category or discussing the variations. The discussion of in-house clinics focused on fundamental principles for effective teaching and supervision and the need for appropriate facilities and office support. It only implicitly addressed the range of issues presented by alternative structures for clinics and did not address alternative externship structures or variations that combine features of both.
A key characteristic of effective education is that students are able to retain and build on the information, skills, and values they learn in their work in later courses and in the world. Doing so is known as transfer of learning. Ultimately, for law students that means they are able to transfer what they learn into the work they do as professionals. Best Practices for Legal Education did not delve deeply into the educational literature on transfer of learning.
Underlying its preparation for practice theme, however, was an implicit recognition that both individual law teachers and law schools as institutions must educate students in a manner that facilitates transfer. Law teachers know all too well the challenges of achieving transfer: students often deny having encountered a legal doctrine that was unquestionably covered in another class. While this phenomenon raises other important questions, such as to what extent and for how long do students retain information conveyed in the classroom, it also potentially raises the question of transfer of learning. Even if students remember the information in its initial context, can they draw on it in a new one?
Transfer is a core issue for effective teaching and learning, especially in the context of professional education where students are expected to be able to use their skills–even if the skills in question are solely the analytical ones supposedly taught in the conventional law school classroom–when they encounter new problems. Yet, until recently, how to create conditions that will lead to transfer has been a neglected question in legal education.
Transfer of learning is critical if law schools intend to educate skilled professionals, but the research suggests that achieving transfer is neither easy nor automatic. Thus, for both the individual teacher and law schools responding to the call to either improve or truncate legal education, it is a best practice to attend to educational strategies to improve transfer of learning, both from individual courses and the curriculum as a whole.
Deborah Maranville and Cynthia Batt
Law school course offerings have proliferated in recent decades. This development reflects the addition of specialized doctrinal courses, a growing emphasis on interdisciplinary knowledge, and the incorporation of practice-oriented courses. From the perspective of the individual student, an expanded curriculum may create exciting educational opportunities while posing trade-offs between a generalist education and specialization.
Law schools face two key challenges. First, they must structure the curriculum so that the experiences of individual law students have some coherence, or, if you will, seem integrated. Second they must incorporate the full range of what the Carnegie Reports referred to as the apprenticeships of formal knowledge, professional skill, and identity and purpose and what the MacCrate Report and Best Practices for Legal Education previously articulated as knowledge, skills, and values.
This section discusses three approaches–not mutually exclusive–to structuring the law school curriculum. One way to strive for that goal is through course advising with structured pathways through the curriculum and concentrations. A second approach is to integrate the curriculum: connect the individual courses that a student takes, both those taken concurrently and across the years the student is enrolled in law school. The objective is that students have a sense that the learning in the various courses relates to and reinforces the learning in others. A third approach is to engage in a particular type of integration: sequence the curriculum by structuring offerings from introductory to intermediate to advanced, so that later classes build on the concepts and skills learned in earlier ones.
Although scattered integration and sequencing efforts date back decades, empirical research is not available to definitively confirm their status as best practices. Further experimentation with integration and sequencing is warranted as a best practice.
Deborah Maranville, Cynthia Batt, Lisa Radtke Bliss, and Carolyn Wilkes Kaas
In discussing experiential education, Best Practices for Legal Education focused primarily on the three traditional types of separate experiential courses: in-house clinics, externships, and simulations, and treated them in a separate chapter. These courses were defined as those where “experience is a significant or primary method of instruction” rather than a secondary method, and where “students must perform complex skills in order to gain expertise.”
Arguably, this separate treatment reinforced what has too often been a divide between doctrinally-focused teaching and practice-focused teaching. Best Practices recognized that “experiential education can be employed as an adjunct to traditional methodologies regardless of class size” through methods such as incorporating simulation exercises into doctrinally-focused courses. It did so, however, only as part of its discussion of best practices for legal education generally.
This section builds on Best Practices by emphasizing the need to incorporate experiential education throughout the curriculum in order to maximize its educational impact. The term “experiential education” is, therefore, used to encompass both separate experiential courses and what will be termed “experiential modules.” Because a key distinction in experiential education is between simulated and real experiences, the term “clinical legal education” will be restricted to separate courses involving real experiences—law clinics, externships and offerings using alternative models, often termed “hybrids.” The term “law clinics” will be used to include both traditional in-house clinics taught by full-time faculty, and other structures that provide a similar level of intensive, integrated teaching and supervision.
As Best Practices suggested, it is helpful to distinguish “experiential learning” and “experiential education.” Both happen in law school, and in life; both are important. Experiential learning is simply a primary way that people learn on their own, whereas experiential education involves active and purposeful design and teaching. A focus on experiential education directs law schools and individual legal educators to their role in ensuring that maximum learning takes place beyond raw experience. The way in which each teacher integrates experiential education methods will often determine how far the students develop as lawyers in response to those methods. The way in which a law school designs and delivers a coherent array of courses to allow a student to progress from novice to (reasonably) competent professional in three short years will, more and more, define its efficacy, reputation, and leadership as a provider of legal education.
Deborah Maranville, Ruth Anne Robbins, and Kristen K. Tiscione
Legal education has expanded to incorporate practice-oriented topics and courses over the past several decades, and student academic support services have multiplied in response to changing student populations. As a consequence of these changes, law schools are overdue to address the issue of the status of the individuals they hire to fill the multiple and ever expanding needs and interests of students.
Should law schools hire new personnel as teachers, staff, or administrators? If hired as teachers, what titles and governance rights should they be given? Should they be eligible for tenure, presumptively renewable long-term contracts, or short-term contracts? What workloads are appropriate and what courses permitted?
Status and fairness issues for law teachers accompanied the rise of experiential programs, including clinical and legal research and writing programs. More recently, similar issues have arisen with academic support teachers, whose courses may be mandatory for certain students, and have intensified for externship teachers at many schools.
Best Practices for Legal Education identified as a “best practice to enhance the effectiveness of faculty in experiential courses” that “a school uses qualified faculty, provides professional development opportunities, and assigns reasonable workloads in its experiential education courses.”
Faculty status is a key dimension of enhancing the effectiveness of faculty, and this section provides an overview of the issues involved in debates over faculty status.
Elizabeth G. Porter
The Socratic method, one of Langdell’s most well-entrenched reforms to legal education, remains the law’s signature pedagogical technique. Although the term means different things to different people, its essence in the law school classroom is student analysis of cases led by a teacher, who calls on students to articulate gradually deeper understandings of a legal doctrine or theory.
Socratic learning requires students to think on the spot, answer precisely, and take intellectual risks. For over a decade now, the Socratic method has been out of fashion among those who write about legal pedagogy. In addition, the method’s critics describe what they view as the alienation and humiliation of students, an inattention to legal theory and professionalism, and a lack of clear learning outcomes.
Indeed, both Best Practices for Legal Education and Educating Lawyers: Preparation for the Profession of Law criticized or downplayed the value of the Socratic method. Best Practices concluded that the Socratic method should be “used sparingly.”
These critiques undervalue the Socratic method. As the Carnegie Report acknowledged, the Socratic method is an easily scalable, effective, deeply engaging way to achieve active student learning, particularly but not only in larger doctrinal classes. Similarly, Best Practices recognized that “[t]ailored and applied flexibly, the case method . . . can provide a logical, overall methodology for approaching and thinking about all sorts of situations.” Those positive findings remain true. The Socratic method gives students a strong incentive to prepare well for class every day, and during class it forces both students and the teacher to focus intensely, to listen to others, and to express their ideas in a cogent, persuasive, and professional manner.
These qualities—thorough preparation, focus, listening skills, cogent analysis, and good judgment—are fundamental to successful lawyering. Finally, contrary to its reputation, the Socratic method is also a wonderful way to create a sense of community and shared learning purpose among students, even in a large class. These attributes of Socratic teaching look even stronger in comparison with the most commonly used alternative—lectures, perhaps punctuated by text-heavy PowerPoint slides.
Indeed, while the method has fallen from favor in law schools, cutting-edge colleges are now seeking to expand Socratic-type interactive teaching in order to raise the level of engagement among students. In recognition of the continuing centrality and vitality of the Socratic method, this section therefore focuses on best practices for optimizing the effectiveness of this active learning style. The basics of the Socratic method are well described elsewhere (and will have been experienced by almost all readers of this volume).Therefore, this section will not describe the methodology in detail. Instead, it will situate the Socratic method within a framework describing the level of active learning of the most frequently used pedagogical techniques in the non-clinical law school classroom. Then it will focus on three fundamental tools for creating and maintaining a successful course that uses the Socratic method for active learning.
Mary D. Fan
Amid economic and political turmoil, anti-immigrant legislation has flared again among a handful of fiercely determined states. To justify the intrusion into national immigration enforcement, the dissident states invoke imagery of invading hordes of “illegals”—though the unauthorized population actually fell by nearly two-thirds, decreasing by about a million people, between 2007 and 2009 as the recession reduced the lure of jobs.
Arizona’s Senate Bill 1070—recently invalidated in part by the U.S. Supreme Court in Arizona v. United States—led the charge. By preelection-year summer 2011, several states enacted laws patterned after Arizona’s controversial Senate Bill 1070, including Alabama’s even more aggressive HB 56. A host of lawsuits are pending against the new laws, which are at least partially invalid after Arizona v. United States. Other controversial proposals circulate, such as eliminating birthright citizenship or branding the birth certificates of alleged “anchor babies” implanted in the United States by foreigners.
This chapter examines how the spurt of state legislation is a proxy way to vent resurgent racialized anxieties and engage in friend-enemy politics founded on conflict with the “Other”—the foreign enemy within—in a time of economic and political turmoil. Despite the ostensibly a-racial construct of the illegal alien used to legitimize the lashing out, it is suffused with racialized perception. Current tactics parallel the overtly racialized hostility of past episodes of states enacting out anti-immigrant legislation. The oft-raised concern in such a fiercely polarized time is racial discrimination. Antidiscrimination law, however, does not offer the remedy for this concern.
Part 1 analyzes two hot-button forms of resurgent state and local anti-“alien” laws of our times—laws patterned on the Arizona template and the anti–birthright citizenship movement. It explores the dominance of racialized anxieties behind the seemingly race-neutral construct of the vilified alien. Part 2 contrasts the friend-enemy politics and legislation of our contemporary scene with the state and local legislation and furor against the Chinese during the turbulent politics of the last quarter of the nineteenth century. Part 3 examines the polarization-ameliorating bases for decisions to cut back on overreaching state and local laws in order to make shared interests, rather than racial difference, salient while protecting underlying antidiscrimination values. The approach helps build bridges between dissonant worldviews to navigate the profoundly polarized politics and legislation of our times.
Robert T. Anderson
Canada is grappling with legal issues surrounding indigenous property rights on a scale not seen in the United States since the mid-nineteenth century. Fundamental questions of fairness and justice related to indigenous peoples’ property rights are in flux in the province of British Columbia–an area the size of the states of California, Oregon, and Washington combined. The recognition of aboriginal rights in the Canadian Constitution in 1982 and recent judicial developments made it clear to the provincial government that nearly the entire province may be subject to aboriginal title claims. Consequently, the aboriginal nations and B.C. government have embarked on a treaty process to resolve conflicting interests, but not in the fashion utilized in the United States.
In the U.S., treaties and agreements with Indian tribes generally resulted in the extinguishment of all indigenous property rights in sweeping terms. In addition, payment of compensation pursuant to the Indian Claims Commission process extinguished legal claims to lands taken previously without payment of compensation. To be sure, most of the roughly three hundred tribes in the contiguous forty-eight states reserved homelands, or were moved to other areas set aside for their use and occupancy, and some retained extensive rights to access off-reservation wildlife resources.
In British Columbia, however, no earlier treaties ceded aboriginal lands, and the provincial government has recognized that the “extinguishment” of aboriginal title is unacceptable to aboriginal nations. There are over sixty aboriginal nations engaged in forty-nine sets of negotiations with a stated goal of reconciling aboriginal rights and title with the fact the non-aboriginal people and governments are in Canada to stay. This chapter explores the foundation beneath the current negotiations.
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