Lawyering

-- By SuzanAbebe - 17 Mar 2015

What Happens to a Dream Deferred?

A significant part of what led me to law school was the opportunity to learn about the complexities of the legal system, good and bad. Moreover, with my growing education I could then analyze and pursue those legal issues and injustices that I believe I would be able to effectively tackle. So much of the enthusiasm that I entered with has dissipated. I am concerned that we are not learning about lawyering i.e. “how to effect social change with words.” But even before the lack of lawyering, I am fundamentally concerned because this institution ignores the fact that racial issues permeate our legal system. I do not think you can get to “effecting social change with words” if you do not teach the social ills. If law professors continue to disregard the role of race and the law in their curriculum, then students will enter the legal profession without full comprehension of the system where it stands today.

Why is the title what it is, when the main idea of the essay, as we learn from the first paragraph, is something else? Your actual point is that law school can't teach people to be lawyers well if it doesn't talk more about race, because the system can't be described accurately without more focus on race. That idea, if it is the one your want to emphasize as the core idea of the piece, should be reflected in the title, and in more than the last sentence of the first paragraph.

…Does it Stink Like Rotten Meat?

There are countless instances where race played a significant factor or simply the sole factor in a legal decision.

In each of those "countless" instances, you are going to assert, the skin color of parties plays the only role or an important role in how a legal decision is made? You're sure that's a claim you want to stick to?

“The Central Park 5.” Five young men, four black, one Hispanic, ranging from 14 to 16 years old at the time of their arrests were wrongly convicted of raping a 28-year-old investment banker who was jogging in Central Park. She was white. The 5 had expressed that authorities coerced them into making incriminating statements, but the judge nonetheless ruled that their statements were admissible, and as a result, the young men were convicted in 1990. Their time in prison ranged from six to 13 years before the actual rapist was revealed through DNA evidence in 2002. The Central Park 5’s convictions were vacated in 2002. This example is not an isolated incident where the justice system failed these young men in particular. Instead, this narrative is common, and the 5 only garnered visibility because an award-winning documentary was able to capture the bleak attention span of Americans.

Are you suggesting that the people falsely convicted in the United States are not also people with different skin color from these people? Was this a case where a white person actually committed the crime and black or brown people were falsely convicted because of their color, or is race the "sole" factor here in some other sense?

There are others. One I personally met while in high school. He served 14 years for a crime he did not commit and “new evidence and God finally came through,” he once told me. Although he was physically “free” upon his release, he merely existed in a world he no longer knew. These stories are supported by the literature.

This is a person falsely convicted. What about his skin color is the relevant part of his story. Are you saying that "these stories" that are supported by the literature only involve non-white people? Or that the false conviction rate is higher among non-white people than among white people? You should give the reader some facts, so she can judge for herself.

Rape is a highly intra-ethnic crime; the vast majority of white victims are assaulted by white perpetrators and black victims by black perpetrators.

The two halves of the sentence appear to say contradictory things. What is to the right of the semi-colon, so far as I know, is correct. But a link or a cite would help.

However, white victim cases predominate among Black defendants wrongfully convicted of rape. (Johnson) (Capers) (La Free). More generally, Brandon Garret’s Convicting the Innocent: Where Criminal Prosecutions Go Wrong, examined the first 250 DNA exonerations in the U.S. and his data shows that 155 of the 250 cases (60%) involved black defendants and that percentage rose to 70% when including Hispanics.

Are we looking at a statistic about false convictions, or a statistic about who is convicted? They are different, not necessarily to your argument, unless your argument is specifically about false convictions alone.

I write about these statistics and stories to suggest that my law professors, the ones who are the experts in their fields, should include these disparities in our classroom discussions. In order to educate students on when the law works and when the law fails.

I'm not sure how you would work this information into a course about something other than criminal law. Maybe you should make a more precise point here.

Maybe it Just Sags like a Heavy Load

I considered the argument that law school classes are about learning the doctrine and as a result the day-to-day practical issues must take a back seat. Second, that an upper level course like Critical Race Theory is offered to those that are interested. But, I realized when taking Property first semester that race even gets removed from the dialogue when learning the doctrine. In Dred Scott v. Sanford, Justice Taney stated, “the plaintiff was a Negro slave, the lawful property of the defendant, and, as such, the defendant gently laid his hands upon him, and thereby had only restrained him, as the defendant had a right to do.” Good law or bad law, I think a property course should have addressed that African-Americans were once considered property in this very country.

This is perhaps a different argument than the one presented at first, which was that descriptive accuracy cannot be attained without showing that race is the only factor in many legal outcomes. Would that argument not call for showing instead that in the property course many legal outcomes are solely the result of the skin color of parties?

Another example was the gloss over racial covenants. It is not a fix to say there is a critical race theory upper level class, because those courses are self-selecting. Racial issues in the law need to be addressed in first year mandatory courses, because they permeate the rulings of those first year courses like civil procedure, contracts, con law and property.

I don't exactly understand the point being made. When covenants and easements are discussed in the property law course, you are saying, it would be good to point out that covenants violative of the equal protection clauses of the 5th and 14th amendments are unenforceable in US courts, and to offer Shelley v. Kraemer and other restrictive covenants cases to read? I agree. When I was a property teacher, I so taught. But it's a very small moment in a large course.

We should not have to create a separate space to talk about race.

We don't. We talk about it in our classroom, not as the subject, but as a subject, all the time.

If it is a factor in what we are learning, then professors should take the burden off of the minority students’ backs, who feel inept if they do not speak up to fill the void.

Or does it explode?

As students of the law, we should be learning about its implicit and explicit biases. As future practitioners, we will become the prosecutors, public defenders, judges, clerks, transactional lawyers, etc. To spend 3 years avoiding the obvious issues, will result in the perpetuation of this chain of ignorance and disparities regarding minorities and the law.

"Ignoring obvious issues" is plainly not good teaching. I am prepared to believe that not good teaching occurs. But doesn't your argument as set out require more than that to convince the reader of the proposition you advanced?

This is the legal field and we cannot afford to disassociate and split legal issues from racism if it is there. Especially not if it is in hopes of avoiding uncomfortable conversations. We are in the industry of service and we deal with people. In order to understand human beings you have to relate to them. Part of doing this effectively is learning their history. The history sets the foundation for understanding the struggles faced by their culture and communities. I often question whether what appears to be professors’ indifferences is actually a consequence of them splitting. Standing back to back, so they do not join the conflicts that they are trying to avoid. So instead they approach doctrines in the same manner Supreme Court justices perform constitutional avoidance, they do this act of racial avoidance, for a preservation of self, conflicts and maybe white guilt.