February 2011 Archives
 By Jenny Chung C’12
Mike Feinberg C’91, cofounder of the Knowledge Is Power Program (KIPP), the largest charter school network in the nation, addressed an audience of students from Penn Law, the Graduate School of Education, the Fels Institute of Government and the Wharton School of Business at the Levy Conference Center Feb. 23, saying that education reform is critical so that “demographics don’t have to define one’s destiny,” for low-income students. Comparing the prevailing problem with education reform to a “kindergarten soccer game” in which players are constantly looking to “move on to the next new shiny thing,” Feinberg cautioned against prioritizing quick fixes over incremental, long-term solutions. “There’s no 100-percent lever to pull, but there are 100 one-percent levers,” he said. “Unfortunately we keep looking for the one lever that will transform [the current system].”
Feinberg identified school leadership as the “critical path” to facilitating education reform. “Any school will work well if there’s great teaching, and more of it,” he said. “It’s the secret sauce—what goes into the culture will motivate kids, parents and teachers.” After joining Teach for America (TFA) upon graduation from college and completing three years as a bilingual teacher in Houston, TX, Feinberg collaborated with fellow TFA alumni Dave Levin to launch KIPP, a national network of free public schools that has since garnered national acclaim for preparing students in underserved communities for success in college. With 99 schools in over 20 states, the program currently serves 27,000 students nationwide. Eighty percent of KIPP students come from low-income families, and 85 percent of KIPP alumni enroll in college. To bring “great teaching” and qualified leadership to KIPP classrooms, the program hires outstanding instructors from around the country, provides them with one year of training and equips them with the resources to found a school of their own based on the KIPP definition, which encompasses five key tenets. The first, according to Feinberg, is “more time on task.” While the average school day lasts for seven hours and the school year about half a year, KIPP offers 9.5-hour school days and holds classes both on Saturdays and throughout the summer. Although “more time in the classroom may not guarantee success,” Feinberg asserted that it “sets students up for success” by ensuring two solid hours of language arts and math courses a day while leaving time for other subjects like history and fine arts. The time constraints imposed by a typical school day, he said, pressure teachers and principals to be “miracle workers… especially if kids come to school already two grade levels behind.” Feinberg then emphasized the necessity of empowering parents and teachers to choose their commitment to a given school. “Choice does exist, but only for people with resources,” he explained. “Low-income kids and families are often locked into one choice, and if they don’t have a choice there’s a monopoly [in the school system].” According to Feinberg, once a school district establishes a monopoly over the education options in a community, it no longer has the incentive to improve. “Within public education, it’s important to break that monopoly mindset,” he said. “If people have true choice, that’s a game-changer… schools have to realize students and parents are customers they’re there to serve, and who have options.” In addition, Feinberg asserted, for effective reform to occur, schools must grant staff members the freedom to implement necessary changes without facing bureaucratic limitations. With such freedom “comes accountability for results,” he said, stressing the importance of the “human” resource. “The basic premise is that people make a difference, and we often lose sight of that at the policy level. We start thinking, what little gizmo can we invent to improve education in the classroom? That makes sense for cooking popcorn, not for teaching children how to read.”
He named “high expectations” and a “focus on great results” as the final two pillars of the KIPP approach. “Is college for every single child? Not necessarily,” Feinberg said. “But the skills necessary to go to college are for everyone. Let’s have the doors of opportunity all open—if [students] choose to do something else, let’s give them the skills to do that.”
Feinberg voiced his confidence that while public education currently confronts a wide range of issues, they are “fixable if we have the political will.” He likewise called for a “mindset shift” at the societal level: “We have different expectations of our kids depending on which zip code they live in, and that’s what needs to change.”
He then read excerpts from one of children’s author Dr. Seuss’s lesser-known works, On Beyond Zebra, to the audience. The book, which details the adventures of a boy who goes “beyond the letter Z” in the alphabet, contains valuable inspiration to those working to effect education reform. “If we want extraordinary results, we can’t do regular work and planning,” Feinberg said. “Let’s push it beyond ‘Z’.”
The current education infrastructure, he pointed out, offers no real incentive for change. “The only people who would benefit from change are the children, and they don’t have a voice,” said Feinberg. “We have to question whether the public education system exists to serve the children or the adults.”
Feinberg concluded by encouraging students with advanced degrees across all disciplines to get involved with education reform. “Take your legal, policy or business background and come teach—there’s a need for everyone to jump in and help,” he said.
Amy Feinman L’12, said Feinberg “really spoke to the different types of graduate students in the audience,” and effectively “put charter schools in perspective within the grand scheme of education reform and promoted collaborative efforts among students and practitioners to move them forward.”
Erin Staab L’12 added that the speaker “did a great job explaining his goals, initiatives and where education reform can go and where we can help it.”
Both Staab and Feinman helped organize the event on behalf of the Leaders in Education Advocacy and Reform Network (L.E.A.R.N.), a student group which aims to create a cross-disciplinary discussion among law and business students about the role they can assume in education reform. Comprised of three core components—community outreach, pro bono initiatives and career-based initiatives—the group enables students from Penn’s graduate and professional schools to assist local schools, provides a venue for law students to perform pro bono work for parents and students and holds events designed to help students at Penn Law navigate their future career paths.
By Jenny Chung C’12  Inaugurating Penn Law’s International Human Rights Law Speaker Series, Hauwa Ibrahim, a Bok Visiting International Professor this semester and a senior partner at Aries Law Firm in Nigeria, presented a talk Tuesday in the Berylson Family Classroom (Gittis 1) to an audience of students on the topic of justice under Shari’a--Islamic law--in Africa, focusing particularly on women’s human rights. Ibrahim opened with some general reflections on her experience thus far as a visiting professor and of the universal nature of the issues she addresses as a lawyer defending women accused of crimes under Shari’a. “They could, by extension, concern all of us,” she said, observing that international human rights advocacy in general is closely tied to the ideal of “global peace and freedom.” According to Ibrahim, while Shari’a law was officially introduced into northern Nigeria in 1999, the Nigerian constitution had even before then provided for its application. In 1999, however, a new set of punishments for five offenses were introduced. Under these provisions, for example, drinking alcohol was punishable by public flogging, theft by amputation, and marital infidelity by lethal stoning. “If you kill, you will die the way you killed -- it’s the idea of ‘an eye for an eye, a tooth for a tooth,’” Ibrahim said, adding that despite the harsh penalties it prescribes, Shari’a--like Islam--is grounded in ideas of “human dignity, justice and freedom.” During her lecture she recounted the details of her first case, which involved a 13-year-old girl who had become pregnant after allegedly being raped by her father’s three friends. After testifying in court against the men, the girl was sentenced to be flogged 180 times-- the first 100 for pregnancy out of wedlock, and the remaining 80 for falsely accusing the defendants. By 2008, Ibrahim had participated in 157 cases, all of which she undertook pro bono as her clients were too impoverished to pay legal fees. Describing the majority of her clientele as “powerless, voiceless, poor and illiterate,” Ibrahim said she tries to work within the community to secure her clients’ interests.
For example, when approached with a case, Ibrahim explained her initial response is to form a team comprised of locals. “Our team would include blind people, beggars, and lepers…they’re the most powerful in any given village, as they know what’s happening in the community,” she said, emphasizing the importance of identifying strong allies. In other cases, imams and mullahs - Islamic religious leaders - became part of her team.
Once her team is complete, Ibrahim will then turn to the issues of fact relevant to the case, specifically those concerning issues of procedure and legal technicalities. “Issues of procedure are very substantial, especially in common law systems-- when the procedure is faulty, the case may be thrown out of court,” she noted.
With regard to the technicality of law, Ibrahim argued in favor of achieving substantial justice rather than a mere technical justice. “Some of us trying to gain technical justice are throwing away the baby with the bathwater,” she said.
While working on behalf of Amina Lawal, a young woman who had been sentenced to death by stoning on adultery charges, Ibrahim faced strong opposition from local mullahs, who began publicly calling for her death after she stated in a radio interview that she did not believe the Koran provided for stoning. She responded by requesting a meeting with the mullahs, eight of whom agreed to see her at a mosque. “I chose not to hide and to make myself visible,” Ibrahim said. “If we don’t fight for this woman, it may be us [in her position] tomorrow, and there will be no one to fight for us.”
During the meeting, Ibrahim solicited insight on Islamic law from the mullahs and explained that she had no intention of challenging their authority or the legitimacy of Shari'a. After the conversation, the mullahs agreed to refrain from publicly denouncing Ibrahim’s efforts.
“That’s the most powerful statement they could have given, to not speak out against what I’m doing,” she said. Ibrahim’s cases tripled over the next six years, suggesting that the resultant reduction in stigma associated with seeking legal counsel in cases involving Shari'a law may have encouraged more women to come forward.
Over the course of her career, Ibrahim said she has experienced firsthand the value of both working within the system and keeping the larger picture in view, both approaches she advised her audience to pursue. “Within given dynamics, there is a solution,” she asserted. “I’ve learned in my practice that it isn’t about me, it’s about the bigger things—generations yet unborn, freedom, human dignity, the worth of a person…as we do one case, one time, one person at a time, we’ll get there.”
Ibrahim is currently teaching a course at Penn Law addressing the relationship between gender and Islamic law.
Jointly organized by Penn Law’s International Human Rights Advocates (IHRA), a student group which works with human rights organizations around the world on research and advocacy projects, and the International Programs office, the series aims to “give students an opportunity to hear about [speakers’] firsthand experience working with the human rights issues on which we focus our advocacy efforts,” according to Lindsay Michaelson L’12, IHRA Student Group Manager.
By Lisa Pang C'13 Psychiatrist, attorney, and researcher Dr. Susan E. Rushing told a Penn Law audience of faculty, students, and attorneys gathered in the Bernard Segal Moot Court Room Feb. 17 that the law must strike a balance “between respecting patient autonomy and balancing with protecting patients and state interest in preserving life, at a time when decision-making is compromised by illness.” Rushing, whose lecture was organized and sponsored Penn Law’s Law and the Brain Student Group, explained to her audience that although guidelines exist for defining medical decision-making capacity-- patients must retain their ability to communicate, understand and appreciate the medical consequences of their actions, and remain consistent with the goals and values expressed prior to treatment – the process is still not clear cut. “People with medical capacity [have the right to] make bad decisions,” Rushing pointed out, even resulting in death. The gray area, she noted, comes in determining the medical capacity of a patient. “The sticky area is the time between suspected incapacity and determined incapacity,” said Rushing. Numerous laws and rulings are in place to protect the patient’s right to liberty as stated in the Fourteenth Amendment. Doctors who wrongly detain a patient without following proper procedure can be faced with charges of false imprisonment and battery, if physical restraining methods are used. “Hospitals are required to use the least restrictive means to accomplish restraint to prevent self-destructive behavior or harm to others,” she said. However, she pointed out, some higher forms of restraint include chemical and mechanical restraints. Rushing suggested two policy changes that could be implemented to help physicians navigate this gray area. One is the implementation of a “time-limit for detention,” she said, during which a patient with suspected medical incapacity could be kept for no more than two hours to allow the proper analysis to be completed by a psychiatrist. Since the response time by psychiatrists is usually within an hour, unless emergencies require a more rapid response time, Rushing said she was confident that this policy change would allow doctors to ensure their patient’s safety without facing backlash from having to navigate a tricky legal area. Moreover, Rushing recommended that this policy change be “added as an element of a hospital admission contract,” so that patients are made fully aware of hospital procedures before admittance. The final verdict operates on a “sliding scale”, Rushing noted. The higher risk of self-harm due to a patient’s actions, the higher the medical capacity must be to allow the patient to make the decisions that put him or herself in harm’s way. In the event that the patient is found to be medically incapacitated, several laws and rulings attempt to establish guidelines to direct doctors towards determining and following what the patient’s wishes would have been if they were medically capable. In the 1972 Cantebury v. Spense case, for example, it was ruled that, unless it was an emergency, the patient’s relatives must consent to the procedures performed on the patient. “The only generalization is that the family decides,” observed Rushing. Furthermore, the Pennsylvania Health Care Agents and Representatives Act allows patients to appoint a surrogate decision-maker, known as an agent, who makes decisions for the patient in the event that the patient becomes medically incapacitated, which can be stated in an advance directive filed by the patient. However, if the surrogate is not appointed by the patient, the law appoints surrogates, or agents, in the following order of priority: spouse, even when separated; adult children; parents; adult siblings; adult grandchildren; and an adult who understands the patient’s needs and preferences, who, as Rushing pointed out, is in the last class of priority. A surrogate decision-maker may not “refuse the treatment required to save the patient’s life unless the patient is in an end-stage medical condition or permanently unconscious,” Rushing reassured her audience. In Pennsylvania, if the “surrogate is unsure of patient’s preferences,” she explained, the surrogate must follow these mandates: “one, preservation of life; two, relief from suffering; three, preservation or restoration of function.” After Rushing's lecture, Benjamin Bumann L’11, President of Penn Law’s Law and Brain Group, expressed great enthusiasm for the speaker and the subject matter. “Dr. Rushing demonstrates the extent to which understanding human cognition is incredibly important for adequately dealing with legal matters and justice,” he said.
By Sophie Jeewon Choi C’13 Abbe F. Fletman L’88 delivered a keynote speech Feb. 16 to an audience of students, professors, alumni and attorneys gathered in Penn Law’s Levy Conference Center for the 5th Annual Penn Law Women’s Association (PLWA) Dinner. The annual event convenes scholars, practitioners, students, and others to celebrate and support women in the legal profession.  Fletman, an author and litigator at Flaster/Greenberg PC, began her speech titled, “A Charmed Life,” by reminding everyone of the reality of the still meager percentage of women in the legal profession and government. “I wish I could at least tell you that 50 percent of our judges were women,” she said. She noted the lack of women representatives for Pennsylvania in the federal government, pointing out that the state has yet to elect a female senator and that only one congresswoman currently represents the state. Fletman, quipping that she had “made everyone depressed,” then changed the mood of the speech with a humble narration of her successful life. Fletman described her childhood in Philadelphia and her early awareness of the social changes in regards to women’s rights, explaining her decision to change her career from journalism to law, expressing her desire to actively participate in the community rather than simply observe it. She also shared her experiences at Penn Law, highlighting her internship with Judge Norma Shapiro, who was present at the dinner. After outlining her successful legal career at Pepper Hamilton, Klehr Harrison Harvey Branzburg, WolfBlock, and Flaster/Greenberg PC, Fletman listed her “Top 10 Skills That Women Lawyers and Litigators Need to Cultivate to Be Successful.” Fletman first advised the women in the room to take risks. Referencing her own experiences as well as the movie Indiana Jones, she encouraged female lawyers to take “the walk of faith” even when a leap of faith seems impossible. Second, she advised, “You have to sow the seeds to be lucky.” She shared her experiences of fortunate opportunities as well as her connections that led to them, transitioning into her third piece of advice, “Tend your relationships.” Honoring Judge Shapiro as her mentor, she emphasized the importance of actively maintaining and creating relationships with mentors and clients, as well as peers and family. Acknowledging the possible discomfort many may feel networking, she revealed her next skill: “Don’t be afraid to self-promote.” She also added a useful tip for those who still feel uncomfortable, to find a trustworthy partner and promote each other. Fletman pointed out the ample opportunities and experiences available outside of the law firm office, encouraging the future lawyers to explore. She further advised students, “Take ownership of your own matters,” highlighting the value of a lawyer that actively contributes her ideas to the team. Stressing the importance of teamwork, she further advised, “Give credit to others,” reasoning that it is not only ethical but also beneficial for the team’s achievement in the future. She then advised, “Admit you’re wrong,” stressing the importance of learning from mistakes. Next, she said, “Find the support of your life partner.” She expressed gratitude to her supportive partner and underlined the importance of spending time with family. The last item on her top 10 list was, “You are the captain of your own ship,” and she concluded her speech by noting to the women in the room, “It’s your career. You are the most important judge of if you got the most out of it.” The keynote began with Dean of Students Gary Clinton’s introduction, who lauded the progress of women in the legal profession. “I’d like to raise a toast to the women pioneers in the ‘50s, ‘60s, ‘70s, ‘80s, ‘90s and now,” he said, “to all the women of Penn Law School, who are all pioneers.” He began his introduction of Fletman by reading an excerpt from her Penn Law School application essay in 1985, giving everyone a glimpse of Fletman’s strong values. Summarizing her academic journey and career achievements, Dean Clinton reminded the students of Penn Law, “You are where the talent lies.” Humira Noorestani L’11 commented that the event was a great opportunity to network and meet accomplished women, adding, “I’ve known many of the students here, but never had a chance to have these conversations.” Christopher Schmitt L’11, one of the few male students present, remarked that the dinner was a great learning experience. Expressing his support and interest for the cause, he added, “You can learn a lot. I think more guys should be here!” Alumni and firm representatives also commended the event. Yvonne Haddad L’86 said, “It’s about time for events like this. There’s enough of us [alumnae] to be of great networking resource.” William Skinner L’86, a member of Flaster/Greenberg’s executive committee, also attended the dinner to show his support for Fletman and the cause. He said, “We support women’s achievement in the profession and we’re glad to be a part of this.”
 The University of Pennsylvania Law School’s Latin American Law Students Association (LALSA) will hold a conference entitled "Fostering Growth: Diversity, Career Choice & Risk in the 21st Century" on Saturday, Feb. 19 at 4 p.m. in the Law School’s Levy Conference Center. The conference will feature a keynote address by J.P. Suarez, L’91, senior vice president of international business development for Walmart International. "This is the 35th year of the Latin American Law Students Association at Penn Law, and to commemorate this milestone, we wanted to bring back to our campus one of our most esteemed alumni,” Ryan Crosner L’11, president of LALSA, said. “Mr. Suarez has not only reached the pinnacle of success in the business world, but is also an incredibly giving person who is so enthused to be here at our conference and to share with us his experiences in both the public and private sectors." As senior vice president of international business development, Suarez is responsible for leading Walmart’s international merger and acquisition activities, international real estate and construction activities, and global format development efforts. Prior to being named to his current position in 2011, Suarez was senior vice president and general counsel for Walmart International. He joined the company in 2004 as vice president and general counsel for Sam’s Club. His previous experience includes serving as the U.S. EPA assistant administrator for enforcement and compliance, acting as a federal and state prosecutor, and working as chief enforcement officer over New Jersey’s gaming industry.
Prior to Suarez’s keynote address, LALSA will moderate an interactive panel discussion. Participants will include distinguished practitioners and professors who will address the importance of diversity in legal practice. For more information or to register, contact LALSA at lalsa@law.upenn.edu.
In late October, a massive oil refinery near Elizabeth, New Jersey sent plumes of fire into the air, visible for miles around. The fire was intentional, part of an emergency response to reduce pressure from a fuel backup that had occurred from an unexplained power failure. The plant is located just off the New Jersey Turnpike and employs over 800 workers. “The potential for an explosion was there,” the fire chief said. Fortunately, there was no explosion and no one was injured. But the power failure and resulting fuel backup and fire are reminders of the extreme risks involved in certain industries – what experts call “Low-Probability, High-Consequence Process Safety Risks." Perhaps not surprisingly, the Sierra Club released a statement calling for tighter oversight of the New Jersey refinery. Underlying the public cries for better or increased inspections that often follow an industry disaster or near-disaster is a fundamental problem of virtually every regulatory agency and regulated industry: the number of regulated firms far exceeds the resources of agencies to inspect those firms. The resulting challenge – how to improve safety given regulatory agencies’ limited resources – is the focus of much of the work of the Penn Program on Regulation (PPR), an interdisciplinary, university-wide program that analyzes regulatory policy problems and alternative strategies for solving them. Last year, several PPR faculty members published a book, Import Safety, which resulted from a PPR conference that examined in large part how to involve the private sector in increasing the safety of imported goods. This fall, PPR faculty received a grant from the Robert Wood Johnson Foundation to help improve OSHA’s ability to select workplaces for inspection so it can deploy its limited recourses more effectively to reduce injuries and fatalities. And in November – just weeks after the New Jersey refinery incident – PPR co-hosted a workshop with the Wharton Risk Management and Decision Processes Center to address a potential solution to the perennial resource shortage: using third party inspections to reduce the risk of accidents and disasters in regulated industries. “The challenge of regulation is daunting,” explained Cary Coglianese, the Edward B. Shils professor of law and professor of political science at the University of Pennsylvania and director of the Penn Program on Regulation. “Therefore you have to look at innovative alternatives. Third party auditing is a prime candidate.” He noted, however, that third party audits also can pose their own challenges. |  | The first of the workshop’s three panels focused on the distinct challenges of using third party inspectors. For example, who pays for the inspection? If the company pays, can the company’s relationship with the inspector be set up in a way that avoids a conflict of interest? What is the relationship between the third party and the regulatory agency – particularly in light of the fact that the third party has no inherent authority to enforce the regulations? The next panel examined how third party inspections could be combined with insurance protection to encourage firms to reduce their safety risks. “Since the government can’t be everywhere all the time, the question is, ‘What can the government do to create incentives for the private sector to police itself?’” Coglianese said. Howard Kunreuther, the James G. Dinan professor of business and public policy at Wharton and co-director of the Wharton Risk Center, explained that a mandatory insurance scheme could create a market incentive whereby firms that take steps to reduce risk would be rewarded with lower insurance premiums. “Because individuals tend to focus on short-term horizons and often regard potential disasters as below their threshold of concern, well-enforced long-term insurance contracts that include short-term economic incentives are needed,” Kunreuther said. |  | The final panel focused on the need to assess the effectiveness of third party auditing from a societal perspective and the challenges associated with integrating such audits into a larger system of process safety regulation. Many of the same challenges facing third party inspectors also confront government inspectors, such as how to determine during discrete visits how well a company manages its overall process safety “system” over time. Despite the challenges to deploying third party inspectors to increase safety, Rosenthal remained optimistic. Given that the United States is faced with decreasing resources for regulatory enforcement, he said, it seems likely that firms will need to be encouraged to assist in the process of keeping themselves within the law. |
Copyright 2011, Philadelphia Bar Association. Used with permission.
Penn Law Practice Professor and Clinical Director Louis Rulli serves on the Philadelphia Bar Association’s Task Force on Civil Gideon and was appointed in 2010 as the first pro bono and delivery of legal services advisor to the Association's Cabinet. Rulli and Michael Carroll, a senior attorney in the Housing Unit of Community Legal Services, wrote “Filling Gideon’s Empty Chair” for the Winter 2011 edition of The Philadelphia Lawyer.
Think of the car repair shop, the I.T. department at your job, the tax office or any setting in which you may feel unfamiliar, even helpless. Now try to imagine yourself in that position without your professional training and experience, without your middle-class life and resources. Raise the stakes and lower your ability to help yourself.
That might help you begin to understand what it is like to be a person of modest or no means at a court hearing where there is much more at risk than your oil change, brake job, or your e-mail or tax problem. What can be at risk in a court hearing is your right to your child, the roof over your head, or your income.
Ms. Smith and Ms. Jones are not the real names but they are real people and their legal problems were all too real. They are both single parents, renters and poor. They had little heat and at times no heat for most of the winter because their landlords refused to make the essential repairs that their leases required and the law demanded.
They began their winter days dressing over glowing red coils of cheap electric space heaters before huddling with young children, eating breakfast around the hinged open oven door with sputtering blue flame peaking through rust opened holes. They ate while the stench of singed crumbs and grease wafted from the cheap old gas stove.
After numerous pleas to their respective landlords were ignored, they told them: No heat, no rent. They put some of their rent money in the bank instead of paying it to the landlord. They spent the rest on space heaters, high electric and gas bills, and kerosene, to keep from freezing.
Each of their landlords hired attorneys who brought eviction actions against them. Their stories took sharply different turns because Ms. Smith had a lawyer and Ms. Jones did not.
The lawyer helped Ms. Smith organize the legal case and present it in Housing Court. He asked the questions that helped her tell her story in a way the court found acceptable within its rules. Every word of her answers was true and she burned to tell the story that had been bottled up in her for so long. Objections and interruptions came from the landlord’s attorney, but her lawyer helped her stay focused through her nervousness. Ms. Smith won her case.
The court awarded a rent reduction. She had the option of paying the reduced amount and staying or moving. After the court decision, her landlord decided to negotiate, promised to make repairs, and some financial concessions.
Ms. Jones did not fare as well. She went to court alone. She is an intelligent woman but was confused and frightened in a courtroom that was alien to her. She did not know the law or the lawyer rules. She fumbled and almost wept as she tried her best to explain herself to the judge and to answer the questions of the landlord’s attorney between his stern interruptions and objections. She did not know how to organize her case or how to obtain evidence and present it in a way that the court would find “admissible.” She answered the questions of the court and the landlord’s lawyer as best she could. She lost.
The court granted the landlord a judgment for eviction against Ms. Jones, and a judgment for money that included all the withheld rent, plus costs, late fees and attorneys’ fees. Ms. Jones could not pay the judgment with all the added costs. She had to move out quickly or be thrown out by the law. And she had to look for shelter with a substantial money judgment against her that made it difficult to rent a new place, and that can lead to seizure of her bank account or other modest assets, maybe tomorrow, next year, or 10 years down the road.
Not all eviction court cases are decided by a judge. Many end in judgments by agreements (JBAs). Agreements are fine in principle in court just as in life; in Housing Court having legal counsel or not can make all the difference between a fair agreement and a one-sided, unjust agreement. Two additional typical cases may best tell this story. Here again there is a change of names while remaining true to the facts of actual cases.
Mr. O’Donnell and Ms. Sanchez found themselves in Housing Court when they withheld rent because of serious repair problems. Mr. O’Donnell came to court with pro bono counsel but Ms. Sanchez did not. Both cases were “disposed of” in court parlance through judgments by agreements.
Mr. O’Donnell, a Social Security pensioner, had “habitability defenses.” Simply stated, he had good reasons for withholding his rent and legal justification for a rent reduction because of the time he had lived with roof leaks, faulty electric and a host of other problems. He also had a strong legal argument that his landlord actually owed him money because there was no municipal rental license for the apartment for several years preceding the filing of the eviction action. Mr. O’Donnell had had enough. He had found a better apartment where the new landlord made repairs and was responsible. His volunteer lawyer read the riot act (actually, the simple facts and the clear law) to the lawyer representing the landlord. The landlord’s lawyer appreciated the strength of the case and agreed to drop all rent claims, past and ongoing, and to give to the tenant sufficient time to make an orderly move to a new apartment. Both sides signed a judgment by agreement making the terms legally enforceable and filed it with the court. No trial, but certainly a good and fair result.
Although the legal procedures were virtually identical, Ms. Sanchez’ case was a sad contrast to Mr. O’Donnell’s. She was short of retirement age, but complications from diabetes ended her work as a home health care aide and forced her onto disability. She lived on a very tight budget and it was not always easy to pay the monthly rent. She also had serious repair problems at her apartment and finally got fed up with “throwing good money after bad.” She had read a tenants’ rights booklet about her right to withhold rent after giving notice and bravely started the process. The eviction complaint arrived and the doubts and regrets began. Had she done the right thing? She went to court, answered when her name was called by the clerk of court, and gratefully followed the court’s instruction to go to another room, try to work things out with the landlord’s lawyer, and return to go before the judge if no agreement was reached.
The landlord’s lawyer started out kindly, grew strict, and then turned mean. He warned her that she would do worse in front of the judge than she would by signing an agreement. She got more nervous by the minute. She certainly did not want to have a trial before the judge against this experienced, intimidating landlord lawyer. She signed a JBA. The JBA entered a money judgment against her for all of the rent the landlord demanded. No reduction for repairs, lack of rental license or anything else. The JBA also entered a judgment for “possession,” a softer word for “eviction.” She would have to be out in 21 days and she legally owed all the money.
The result would not have been worse for Ms. Sanchez if she had stayed home in bed.
* * *
Lawyers make a difference. They serve as gatekeepers providing citizens with access to our courts to resolve legitimate disputes. They marshal facts, research governing law, navigate tricky evidentiary issues, and use sharp questioning techniques to bring out critical facts in the courtroom. Lawyers bring needed expertise to develop all sides of a controversy which helps litigants reach fair out-of-court agreements and which gives judges the means to make informed decisions inside the courtroom when agreements are not possible.
Our justice system is strongly premised upon the belief that the adversary system, though not perfect, is able to get at the truth when each part of the system faithfully fulfills its role. A lawyer sleeping during court testimony does not meet this standard. An empty chair where a lawyer would normally sit if an indigent litigant could afford legal help undermines our promise of equal justice under law.
Clarence Gideon pressed this very point when he petitioned the Supreme Court almost 50 years ago, claiming that his constitutional rights were violated when a Florida trial court denied him a lawyer to defend against burglary charges. The Supreme Court agreed to hear Gideon’s plea for help and immediately appointed a lawyer to represent him before the high court. The Supreme Court recognized that Gideon needed a lawyer to advocate whether he was entitled to a lawyer when his liberty was at risk. Up until that point, Gideon answered criminal charges with only an empty chair next to him as he tried to advocate for himself before Florida trial and appellate courts.
The Supreme Court chose Abe Fortas, an experienced lawyer, to fill this role. Not surprisingly, Fortas brought impressive legal skills and ample resources to bear in briefing and arguing Gideon’s federal constitutional claims before the court. A unanimous Supreme Court overruled longstanding precedent established in Betts v. Brady and held that the Sixth Amendment’s guarantee of counsel was a fundamental right that was applicable to the states through the Due Process Clause of the 14th Amendment. Justice Black called it an obvious truth that a fair trial for a poor defendant could not be guaranteed without the assistance of counsel.
On remand to the Florida state court, Gideon received a new hearing with the legal help of an experienced trial lawyer who used his training and skills to cross-examine suspect eyewitness testimony and introduce compelling new evidence that directly contradicted the government’s version of the crime. This time, with a lawyer at his side, Gideon was found not guilty by a jury that needed only one hour to deliberate and render a verdict.
Lawyers are hardly surprised by this turnaround in results. In both courts and administrative agencies, litigants have a significantly greater chance of success when they are represented by counsel. Unfortunately, indigent litigants sitting next to an empty chair too often forfeit basic rights – not because of the facts or the law – but simply due to the absence of counsel.
This is why the Supreme Court’s landmark decision in Gideon v. Wainwright prompted many to question whether a civil trial could really be fair if an indigent person did not have the assistance of a lawyer. One year after Gideon, Attorney General Robert F. Kennedy asked in a famous Law Day address whether poor people didn’t also need free counsel when they faced evictions, wage attachments, repossession of their goods or loss of welfare benefits? Perhaps even more importantly, many wondered about the fairness of a civil justice system that did not even provide legal help to an indigent mother who faced the permanent loss of her child to the state in a termination of parental rights case.
Eighteen years after Gideon, this question came before the Supreme Court in Lassiter v. Department of Social Services of Durham County. There, North Carolina authorities accused Abby Gail Lassiter of not providing proper medical care to her young son. The local family court found the boy to be a neglected child and transferred his custody from Lassiter to the county department of social services. Three years later, the county department petitioned the court to terminate Lassiter’s parental rights alleging that she had no contact with her son for an extended period of time. (Lassiter had been in prison during part of this time).
Lassiter was brought from prison to a family court hearing to answer charges that her parental rights to her son should be terminated. Lassiter asked for a postponement of the hearing in order to obtain counsel, but the trial court refused. Despite Lassiter’s poverty and incarceration, the judge concluded that she had been given ample opportunity to obtain counsel.
Without counsel, Lassiter tried in vain to cross-examine witnesses against her. During the hearing, the presiding judge admonished her several times that she could only ask questions, and that her attempted questions were disallowed because they were arguments, and not really questions. Without legal training, Lassiter was wholly unsuccessful in the art of cross-examination and the government’s contentions went largely unchallenged. Lassiter’s parental rights were terminated.
On appeal, the Supreme Court rejected Lassiter’s constitutional claim that she was entitled to counsel at her parental rights termination hearing. The court reasoned that an individual’s right to appointed counsel diminishes as liberty interests diminish. In a due process challenge, the court held that the factors previously set forth in Matthews v. Eldridge must be balanced against each other and weighed against a presumption that there is no right to counsel without a potential deprivation of physical liberty. In Lassiter’s case, this meant that the constitution did not grant her a lawyer even though the permanent loss of her child hung in the balance. The Lassiter decision struck a major blow against expanding the right to counsel to civil cases.
Since the Lassiter decision, most states have recognized that an indigent parent should have the assistance of counsel when the government seeks to permanently sever the parent-child relationship. Over time, the nation has largely embraced a societal norm that the parent-child relationship is too important and the consequences of parental termination too severe to decide such a case without providing counsel to an indigent parent. Relying upon state statutes, court rules or judicial interpretations, most states now agree that a parent should not be deprived of her child by the government, or a child of his parent, without the safeguard of legal assistance. A modern notion of civil justice requires no less.
Still, in most other civil matters, poor people have no claim to counsel even when fundamental interests such as housing, income or safety are at stake. As a result, the need for legal help by the poor goes mostly unmet, with studies demonstrating that, at best, only 20 percent of those in need of a lawyer can be served with present resources. In 2006, the American Bar Association’s House of Delegates rekindled the civil right to counsel movement when it adopted Resolution 112A calling upon federal and state jurisdictions to provide counsel as a matter of right at public expense to low income persons in adversarial proceedings involving “basic human needs,” such as those involving “shelter, sustenance, safety, health or child custody.” Proudly, the Philadelphia Bar Association was a co-sponsor of this resolution.
Since 2006, there has been an active resurgence of efforts to ensure that low-income persons have a lawyer by their side when it matters most. Some states, such as California, have enacted legislation that will fund pilot programs to test how best to provide counsel as a matter of right. State and local bar associations across the country have adopted resolutions urging increased access to justice through the establishment of a right to counsel, and they have formed task forces that are initiating pilot projects and sponsoring educational forums. There is a National Coalition for a Civil Right to Counsel that maintains a website at www. civilrighttocounsel.org and provides valuable assistance to local efforts. In 2010, the American Bar Association adopted a Model Access Act for states to use in their local right to counsel efforts.
The Philadelphia Bar Association is at the forefront of these efforts. There is a Civil Gideon Task Force in place that has been studying this issue and that has formed working groups to undertake pilot projects to examine the efficacy and potential cost savings of providing counsel in housing and family law cases. The Task Force held a standing-room-only Chancellor’s Forum in 2010 that drew high praise from the judiciary and the bar in examining some of the issues involved in providing counsel as a matter of right.
The struggle to give the poor access to legal help when it matters most is a long and difficult one. Admittedly, lawyers are not the panacea for all problems of inequality in the courts and a proposed civil right to counsel raises hard questions that defy easy answers. How will an expanded right to counsel be funded, especially in difficult economic times? How will a civil right to counsel integrate with the current legal services delivery system? How will we assure that legal assistance is of high quality and not delivered in name only?
These difficult questions are unlikely to be answered any day soon. But if we are to draw closer to achieving the nation’s promise of equal justice under law, as inscribed over the entrance to the Supreme Court building, the legal profession must not shy away from these questions. Visit the Philadelphia Bar Association’s Civil Gideon Corner website at www.philadelphiabar.org/page/CivilGideon to learn more about these ongoing efforts and to get involved in one of the most important issues of our time.
Our society will be more just when we fill that empty chair.
 By Jenny Chung C‘12
“There is a need for this country to recognize that public healthcare is of paramount importance,” Angus Love, executive director of the Pennsylvania Institutional Law Project, informed an audience of Penn Law students and faculty on Feb. 9. Love spoke an at event organized by the Prisoners’ Education and Advocacy Project (PEAP), a pro bono group of Penn Law student volunteers who work with the Public Defender’s Office and other groups to advocate for prisoners’ rights and visit prisons three times a week to teach, and cosponsored by the Health Law Group.
With over 30 years of civil litigation experience, Love provides free legal assistance to institutionalized individuals and is an active board member of both the Pennsylvania Prison Society and Pennsylvania Immigration Resource Center. He also currently serves on the Board of Governors of the Philadelphia Bar Association. “My rough estimate is that 90 percent of lawyers in this country work for 10 percent of the people, and 10 percent of the lawyers work for the other 90 percent,” Love said, emphasizing the importance of expanding involvement in public interest law.
According to Love, the need for public interest advocates is more timely than ever, as Pennsylvania’s prison system now confronts a burgeoning and rapidly aging prison population with medical needs its current healthcare policies are unable to adequately address. “In general, medical care in prison…is better than nothing,” Love said. “But not nearly as good as what we can afford in the free world.” He explained that because the incarcerated lack both financial and political clout, their interests are often overlooked in a political environment increasingly driven by money.
For example, Love referenced a case on which he is currently working involving a pro se litigant who had lost his appeal in lower court because he failed to provide an expert, which constituted grounds for dismissal. Another case concerns the need for litigants to produce a doctor’s certificate legitimating their claims before filing state court action. “Pro se litigants in prison don’t have access to these requirements—it’s an impediment to poor people accessing the courts,” Love said. He then discussed his previous involvement with the treatment of chronic diseases in prisons, which routinely transfer prisoners with chronic diseases from institution to institution to reduce expenses.
While working on a class-action lawsuit in collaboration with the American Civil Liberties Union in the early 1990s, Love made significant strides toward improving the medical care provided by the state system. The team, which had hired experts in five different fields and toured facilities within the Pennsylvania correction system, had by the end of the lawsuit “achieved a lot of important advances for their medical system,” Love recalled. “They didn’t have standardized providers or protocols, which we insisted on…we got a number of staffing ratio upgrades, medical protocols for all the chronic diseases and established protocols which could be used throughout the entire system,” he said.
In spite of this progress, Love contends much remains to be done. For instance, while Pennsylvania’s criteria for determining Hepatitis C treatment eligibility excludes a significant percentage of inmates, a Philadelphia Inquirer study on Hepatitis C programs in prisons found that Pennsylvania had the best program in the country. “I couldn’t believe it,” Love said. “New Jersey had no program—only five or ten other states had even addressed the issue…I was shocked and saddened that this was the state of medical care.”
Love’s overview of the medical care in prisons and his own extensive public interest work included other alarming anecdotes. He had represented one prisoner with a torn kneecap who, after repeated misdiagnoses, received an operation two months after his injury was accurately identified and now walks with a permanent limp. “The state should be responsible for who they hire as medical provider—if they don’t make good, the state should indemnify,” he said.
In another class-action case against a halfway house, an epileptic man was denied the amount of medication he required and made to take an upper bunk. He later suffered a seizure, fell off the top bunk and was seriously injured. A resident from the same facility who suffered an asthma attack was told to visit a hospital two miles away. “The intake procedures, prescription drugs and emergency preparedness were all inadequate,” Love said.
He also cited dental care and mental health resources in prisons as areas in dire need of improvement. As a result of the Kennedy-era deinstitutionalization movement, a sizable proportion of the prison population are those with mental health issues. “Because of the prison disciplinary system, these folks don’t do well and end up in solitary confinement even if they’re obviously mentally disturbed,” Love said, adding that he is at present working on possible litigation in that area.
In addition to improving the accessibility, quality and breadth of available healthcare, Love stressed the necessity of evaluating the origins of proposed legislation. “I find it shocking that private prison companies wrote the Arizona immigration law,” Love said, explaining that the rise in post-9/11 immigration detention was instrumental to revitalizing the private prison industry. “There’s an obvious conflict of interest…now that Pennsylvania’s considering immigration laws more draconian than those in Arizona,” he said, “there needs to be a discussion about who’s making laws and who stands to benefit if they are passed.”
According to Vincent Ling, a second-year law student and the events and school relations co-coordinator for PEAP, the pro bono group that coordinated the event, a “big part of the group’s mission is to educate the community about prisoners’ issues, so one way we’re doing that is bringing guest speakers to the Law School to discuss them.” PEAP Curriculum Development Coordinator and second-year law student Rachel Harris added, “We see the prisoners face-to-face every week, and we wanted [Love] to come and share his firsthand experience for the benefit of other students who may not have that opportunity.”
 Penn Law Professor David Skeel testified before the House of Representatives Committee on Oversight & Government Reform, Subcommittee on TARP, Financial Services and Bailouts of Public and Private Programs on Wednesday, February 9. The hearing was entitled “State and Municipal Debt: The Coming Crisis?” Skeel focused his remarks on the question of whether Congress should enact a bankruptcy law for states as an option for a state whose financial crisis is otherwise insurmountable. In testimony prepared for the hearing, Skeel wrote: "Some have argued that a bankruptcy option is not necessary, because nearly all of the states will be able to muddle their way through their fiscal predicament. This is like saying there’s no need for a fire department because most homeowners never have fires in their houses and if one starts they can probably stop it in time. This is true, but we still need fire departments for the rare case where a fire burns out of control … "Now, more than ever, we need a fire department for state fiscal crises, a solution of last resort that does not depend on using a major federal bailout as a backstop. Although I believe that the concerns that have been raised by critics are exaggerated, they should be addressed by adjusting the bankruptcy law, rather than by foregoing the benefits that bankruptcy offers as a solution of last resort … "I do not mean to suggest that bankruptcy would be a simple, silver bullet solution to a state’s travails. It wouldn’t be. It would be complicated and messy, and should be used only as a last resort. But, just as we needed to enact a municipal bankruptcy law in the 1930s, we need a bankruptcy law for states now." Related media written by or featuring Professor Skeel: NPR (audio): Budget-Strapped States Might Prefer To Be Bankrupt |
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