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The Online Version
of the Magazine
of Cornell Law School

 

Fall 2014

 

Volume 40, No 2

Learning 1
Learning 2

Advocacy for Lesbian Gay Bisexual and Transgender (LGBT) Communities Clinic

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Learning 3

International Human Rights Clinic

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Learning 4

Students from the team in Nepal, including Naureen Shameem (second from left)

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Learning 5

Immigration Appellate Law and Advocacy Clinic

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Learning 6

Capital Punishment: Post-Conviction Litigation Clinic

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Learning 7

Labor Law Clinic

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Table of Contents Featured Article

Learning by Doing in the Real World

by KENNETH BERKOWITZ | LIBRARY PHOTOGRAPHY by JASON KOSKI
Ever since the 1970s, Cornell Law School has been at the forefront of clinical legal education, providing opportunities for students to move beyond the classroom to work with real clients on real issues of law. Over time, other schools have embraced the practice, and in the past decade, it's become an important emphasis at law schools all around the country.

 

Cornell currently offers fifteen courses to teach practical skills, either through clinics or externships, and by the time they graduate, two-thirds of students will have taken at least one. The reasons are clear: There are things students learn in clinics that they can't learn any other way.

 

"In the rest of their classes, our students work as individuals," says Eduardo M. Peñalver, the Allan R. Tessler Dean of Cornell Law School, who would like to see the clinics expand into new areas, including intellectual property and transactional law. "In the clinics, students collaborate as part of a team, which is how the great majority of law is practiced. Working together is an invaluable part of their education, enhancing their training, sharpening their skills, and broadening their perspectives."

With an array of options, ranging from child advocacy to capital punishment, criminal defense, human rights, immigration, labor, LGBT, prosecution, and securities, students choose the ones that best suit their interests, working alongside faculty members who are experts in their field.

"The most important part of any clinical program is to give students the chance to have a client and be that client's attorney," says Susan Hazeldean, director of the LGBT clinic. "To counsel them at important junctures in the case. To make strategic decisions. To do legal work that has a real impact on people's lives. To take initiative on a case. To take responsibility for a case, which is both a great opportunity and a tremendous, weighty thing to take on as a brand new lawyer. And to have the success of achieving something concrete."

That might mean helping a lesbian couple legally adopt their son, preparing a federal habeas petition for an inmate on death row, filing an appeal for a detained immigrant asylum seeker, or providing research for impact legislation in South Asia. Along the way, students learn to research cases, gather evidence, interview witnesses, draft briefs, and file motions-all practical skills they'll experience in the working world.

"This is clearly the direction in which legal education is heading, and that's a good thing," says John H. Blume, director of Clinical, Advocacy, and Skills Programs. "Our students are serving people who would otherwise have difficulty getting access to justice, and the experience they're getting in the clinics will not only make them better lawyers, it will make them better people. No matter what kind of law they choose to pursue, this experience will make them more willing to give back over the course of their career. We're promoting their sense of justice, which is at the center of the Law School's mission."

Advocacy for Lesbian Gay Bisexual and Transgender (LGBT) Communities Clinic

On the surface, Angie and Betsy seemed to have a fairly simple request: They wanted to legally adopt the boy they'd been raising since he was nine months old. But that turned out to be the only simple thing about it.

Michael has autism; he can't communicate verbally and is easily overwhelmed by any change in his routine. His biological mother, who has struggled with drug addiction, left him with Angie and Betsy because she was unable to cope. Without a legal adoption, Angie and Betsy knew that Michael could be taken away from them at any time. But the couple lives in a small town in a rural area of upstate New York. They worried that court officials might not approve of their relationship and could try to place Michael with another family. The couple had very little money, certainly not enough to pay for a lawyer-one partner stayed at home to care for Michael, and the other worked for minimum wage.

Luckily, a social service agency referred them to Cornell's LGBT Clinic, which provides free legal assistance to the low-income lesbian, gay, bisexual, and transgender community in and around Tompkins County. For Professor Susan Hazeldean, who directs the clinic, the urgency-and the challenge-was clear.

"They both wanted to be legal parents to their son, and to have that family relationship legally recognized," says Hazeldean, who founded the clinic in 2012. "Given Michael's special needs as a nonverbal child with autism, it was even more important. The struggle for recognition has been a cornerstone of the LGBT movement. Part of that is the fight for marriage equality, but it's obviously not the whole answer. All this couple wants is to be the full legal parents of their son, and all their son wants is to have a permanent, loving home. What could be more important than having the protection of a legal relationship with the people you love?"

Christie Diaz '15 started work on the case in September 2013. She and her clinic partners spent the next two semesters working closely with the family, helping the couple become precertified as adoptive parents and negotiating with Michael's birth mother about consenting to the adoption. The formal petition for adoption is now pending, and the couple expects to receive a response from the Surrogate's Court by the fall.

"In meeting our clients, I saw how passionate they were about this boy who had come into their lives," says Diaz, who kept working for the clinic over the summer. "I saw the greater goal for which the clinic was created and why our work is important. It was rewarding to experience how we are able to offer our skills to help clients achieve something they otherwise might not be able to do on their own."

"When I started at the LGBT clinic I wasn't sure yet about a career in public service," she continues. "But after my training, and all the contact with my clients, all the affidavits, all the motions, all the small successes, my decision has been completely solidified."

For her first experience in international human rights advocacy, Joanne Joseph '15 traveled to Kathmandu, Nepal, with Shayona Dhanak '15, Carolyn Matos '15, and Naureen Shameem, a fellow at the Avon Global Center for Women and Justice. There, at a case development workshop sponsored by the Center for Reproductive Rights (CRR) and its South Asia Reproductive Justice and Accountability Initiative (SARJAI), they joined attorneys from Bangladesh, India, Nepal, Pakistan, and Sri Lanka to compare strategies for using impact litigation to advance reproductive rights.

"It was really powerful to see that all these litigators were South Asian women," says Joseph, whose parents emigrated from India to Canada before she was born. "I've always wanted to be a lawyer who stands up against injustice, and speaks for those who can't speak for themselves. Being able to go to another country, and helping create real change in women's issues, was a way to remind ourselves why we've been going to law school, and to see the law being used for good."

In the spring 2014 semester, Dhanak, Joseph, and Matos collaborated on three related projects with CRR and SARJAI. They created a background memorandum on regional access to emergency contraception for survivors of sexual violence, which was distributed to all the participants in the workshop and will inform upcoming litigation in Nepal. They prepared an amicus brief that was filed in the High Court of Punjab and Haryana, calling on the Indian government to provide access to a full range of contraceptive methods, information, and services. They drafted a shadow report to the United Nations Committee on the Elimination of Discrimination Against Women, highlighting questions the Indian government needed to be asked about its implementation of international obligations regarding such key issues as child marriage, maternal mortality and morbidity, safe abortion, and access to contraception.

"The International Human Rights Clinic gives students an opportunity to engage in local, regional, global, and transnational efforts to advance human rights," says Elizabeth Brundige, who directed the clinic last year. The Law School's human rights clinical offerings will expand in 2014-15, with Sandra Babcock, who recently joined the Cornell faculty, directing the Human Rights Clinic and Brundige launching a new Global Gender Justice Clinic that will focus on women's human rights. "Our goals are to give students experience in the diverse forms of advocacy in which lawyers engage to advance human rights; provide them with the knowledge and skills that are essential to human rights lawyering; help them to integrate theory and practice; and afford them a chance to engage critically with issues of human rights, approaching their advocacy with thoughtful self-reflection,"

Brundige says. "Ultimately, we seek to contribute to the advancement of human rights at home and around the world by providing high-quality legal assistance to individuals, organizations, and international bodies."

For Joseph, the greatest satisfaction came in seeing workshop participants carefully reading the documents she'd prepared, and the greatest challenge came in evaluating her own positions. "I'm pro-life, which made this clinic very interesting, because writing about safe access to abortion isn't necessarily the easiest thing for me to do," she says. "I chose this project knowing that it wouldn't be perfectly aligned with what I believe, and knowing this would not be the first time I'd take on a project where I'd need to think through the issues on my own. It was a struggle, but a good struggle, and I came away with a sense of respect for the ways people work on each side of the issue.

"That's exactly what I want from a clinical experience," continues Joseph. "To face tough problems and figure out what it means to be an advocate."

Between 1958 and 1986 Betsy Landis published numerous articles in the ACOA journal Africa Today, and began to identify herself in them as a "sometime specialist-consultant to the United Nations on Southern African affairs." In 1975 she gave extensive testimony on Namibia to the Senate Foreign Relations Committee's Subcommittee on African Affairs. In short, she was devoting her efforts to work on Africa, whether in official or unofficial capacities.

"That's exactly what I want from a clinical experience," continues Joseph. "To face tough problems and figure out what it means to be an advocate."

Immigration Appellate Law and Advocacy Clinic

By the time his case reached Cornell's immigration clinic, "G," a greencard holder, was being held in detention, awaiting deportation. In 2005, eight years earlier, he'd been arrested for aggravated assault in Texas, found guilty, and in a one-sentence decision, ordered back to Ethiopia. That set immigration proceedings into motion, starting a long series of appeals about whether he was mentally competent to understand the charges against him, and if he was, where he would be sent.

As an Ethiopian national and an ethnic Eritrean, he could be deported to whichever country would take him. But there was good reason to believe he'd be tortured in either place: for his ethnicity in Ethiopia, or for his avoidance of compulsory military service in Eritrea.

"When we first started, I thought it was going to be a hard case," says Stephen Yale-Loehr '81, who co-directs the clinic, which generally focuses on four cases each spring. "Because G had serious problems of mental illness, including schizophrenia, we didn't have a lot of facts to work with, and the facts that were already in the record didn't look very strong. There was no clear error by the immigration judge, and when you have a weak evidentiary record, with no opportunity to submit new evidence, it's hard to win an appeal unless you have a convincing legal argument. We were looking at some long odds."

Yale-Loehr assigned the case to Meredith Carpenter '13 and Alex Harris '14, who traded strategies back and forth until they found two that looked promising. First, they argued that the immigration judge had failed to properly evaluate G's mental competency, and that by allowing G to represent himself without counsel, the judge had not provided proper due process safeguards to ensure G's right to meaningfully participate in the proceedings. Second, using the United Nations Convention Against Torture, Carpenter and Harris gathered evidence, in general as well as in G's specific case, to satisfy the legal standard that he was "more likely than not" to be tortured if he were deported to Ethiopia, Eritrea, or both.

"I had never worked on a case with such a large record before, so being able to go through the file, pick out the relevant facts, come up with a theory, and structure a brief was a very important experience," says Carpenter. "It was completely different from being in a classroom- it was real life, with a real client, and a real-world application of our skills. Alex and I divided our duties, taking charge of different sections, then trading our work back and forth, so each of us took responsibility for the whole brief. Professor Yale-Loehr provided guidance at every step. He advised us on which theories would be best to pursue, reviewed every draft, and gave us constructive comments. He didn't make his own changes to the brief- he gave us the information we needed to make the changes and submit the brief ourselves."

It worked. The Board of Immigration Appeals agreed that G was not mentally competent, and by allowing G to defend himself pro se, the judge had failed to provide sufficient safeguards. In May 2013, the board remanded the case back to immigration court, where the immigration judge ruled that the risk of torture was too great to return G to Ethiopia or Eritrea, and that G should be permitted to remain in the United States.

"On remand, G was given full relief, which we were very happy about," says Yale-Loehr

"It was a pleasant surprise, because Meredith and Alex had some serious challenges in preparing their argument. They had to do a lot of research to put together a compelling brief on the client's behalf. And they did."

Capital Punishment: Post-Conviction Litigation Clinic

On a trip to South Carolina, Moriah Radin '07 and Amanda Scheldorf Steenhuis '08 visited the former homes of Dorothy Edwards, who'd been murdered in 1982, and Edward Lee Elmore, who'd been convicted of the crime less than 90 days later. The trial barely lasted eight days, including two for jury selection, and in the decades since, Elmore had been sitting on death row while the government's case slowly unraveled.

"To meet a man who's been sentenced to death for a crime he didn't commit gave us a sense of the seriousness of the work we had to do," says Radin, who currently works as a deputy federal public defender in Los Angeles. "Here was a real person facing real consequences, and it was a quick awakening of what it actually means to be a lawyer, and to have that huge responsibility of representing a client. It took a lot of creative thinking and an unstoppable commitment, just to keep overcoming whatever hurdles were presented, because if we didn't, someone was going to die. That's not something you can get by sitting in a classroom."

Elmore's first trial, where he was found guilty of sexual assault and murder, was a textbook example of everything that can go wrong in a capital case, complete with issues of race, class, and mental retardation. The crime scene was poorly documented. Physical evidence was mishandled, misidentified, and misplaced, only to be found sixteen years later. The prosecution withheld information about Elmore's innocence, the defense consistently failed to cross-examine the witnesses, and the judge parroted pieces of the state's argument verbatim.

"The students were able to see how the criminal justice system doesn't work," says John H. Blume, who argued Elmore's 1987 appeal, and continued on the case for the next twenty-five years. "The lawyering at the original trial was horrible, and the racism was palpable. Mr. Elmore's own lawyer referred to him as a 'redheaded n-----.' That's how he talked about his client. And ultimately, when we were successful in proving that Mr. Elmore was intellectually disabled, the students were able to see the system actually work."

For sixteen years, Cornell Law students worked with Elmore, writing briefs, filing a federal habeas petition, interviewing his family and friends, researching school records, and digging up any documentary evidence of their client's disability. There were more students on this case than in any other in the history of the clinic, spanning class after class. In 2010, with Blume as lead counsel, Elmore was declared mentally impaired, making him ineligible for South Carolina's death penalty. The following year, the U.S. Court of Appeals for the 4th Circuit vacated Elmore's convictions, and in 2013, after spending more than half of his life on death row, Elmore was released.

"When I started in law school, I didn't think I had made the right decision, and I struggled until the moment I started working in criminal law," says Steenhuis, who's tacked a newspaper clipping about the Elmore trial behind her desk in the New Hampshire Public Defender's office. "That was when the light bulb went off in my head, and I realized that I was at Cornell Law for a reason. I took every opportunity to do any kind of criminal defense, and did some prosecutions, too. It's the kind of law that people write stories about, that you read about in the newspapers and watch on CNN. It's high stakes, and because of that, you really go all in. It changed my life."

On March 9, 2014, the premiere episode of the CNN series Death Row Stories, "Innocence and the Intern," chronicled the case of Edward Lee Elmore, whose case had been worked on by clinic students for sixteen years. Death Row Stories is a series of one-hour documentaries. Each episode attempts to unravel the truth behind a different capital murder case. Executive produced by Alex Gibney and Robert Redford and narrated by Susan Sarandon, these stories call into question various beliefs surrounding America's justice system and the death penalty.

Labor Law Clinic

It's been a good year for the Labor Law Clinic, which handles a broad range of domestic and international labor law cases. Acting globally, Jordan Aiello '14, and Ebony Ray '15, investigated conditions in the United Arab Emirates, where migrant construction workers face high recruitment fees, squalid living conditions, and minimal medical care, finding themselves trapped inside the country as their passports are confiscated. Working in support of the International Trade Union Confederation (ITUC), Aiello and Ray reviewed UAE labor law and reports of human rights organizations to argue that the UAE is violating Convention 29 of the International Labour Organization (ILO), which prohibits forced labor.

"With the legal team at ITUC already with too much on its plate, the Cornell Law School Labor Law Clinic stepped in and helped to bring this important project to fruition," writes Jeffrey Vogt, legal advisor to ITUC.

"The complaint will be submitted shortly to the ILO, and a decision is likely in 2015, outlining measures the UAE will need to take to come into compliance with C 29. The complaint drafted by the clinic has the potential to create pressure for important reforms that will materially improve the lives of migrant workers in the UAE and may have a spillover effect across the region."

Closer to home, the clinic tackled a pair of unjust termination claims, and won them both. "These cases are demanding because the two students assigned to a case typically do everything to prepare for the evidentiary hearing," says Angela B. Cornell, clinical professor of law, who directs the clinic. "They develop the theory of the case and prepare the evidence that is necessary to convince the neutral arbitrator that the worker's termination was unjust and a violation of the collective bargaining agreement."

The two cases centered around middle-aged women who'd been fired after years of service in area plants. In the first, both sides agreed to a settlement before the case reached a hearing, and the employee was quickly reinstated. In the second, for a worker who'd been fired for coming late to work, Jeremy Amar-Dolan '14 and Benjamin Hawkins '15 first brought the case to the Federal Mediation and Conciliation Service. When that failed to produce a resolution, they took the next step: binding arbitration.

They handled all aspects of the hearing, including the opening statement, direct examinations and cross-examinations of the witnesses, arguing the evidentiary issues, and filing their post-arbitration brief. Under the collective bargaining agreement between the owners and their unionized employees, the company is obliged to provide warnings before termination. During the hearing, the two sides disagreed on the contract language at issue in the case, but Amar-Dolan and Hawkins successfully persuaded the arbitrator that their client's termination was inconsistent with just cause. In a decision at the end of the semester, the worker was reinstated and awarded back pay.

"This was one of the most enjoyable and educational experiences of my law school career," says Hawkins. "I feel incredibly lucky to be attending a law school that offers its students the opportunity to gain practical skills in the field of labor law."

"It was one of the most meaningful experiences I've had in law school," adds Amar-Dolan. "Most of all, it was great that we were able to help reach such a good result for our client."






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