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Part 4 of a four-part series about the 2011 Sparer Symposium. 

By Jenny Chung C’12

The 2011 Edward V. Sparer Symposium concluded with remarks from Sister Mary Scullion, co-founder, executive director and president of Project H.O.M.E., who characterized the legal profession as a “powerful tool for social progress and securing fundamental liberties and opportunities” in spite of the many challenges and difficult choices it currently faces.

“The legal system was established with the highest ideal of preserving democracy, human rights and helping society realizing the greatest well-being,” she said.

Despite this, many lawyers prioritize “selling their talents to the highest bidder” over achieving genuine justice, Scullion said, at times resulting in instances in which “the law blunts human rights and individual liberties.”

She cautioned those in attendance against “committing adultery of the brain”—a far more egregious offense than its fleshly counterpart—and encouraged them to “use [their] gifts for social and economic justice,” an ideal “more difficult to come by than it sounds.”

Scullion then commended the audience for its efforts toward aiding the impoverished and homeless, which she termed “invaluable contributions.”

“Because of your commitment, hard work and intelligence, we have seen important victories in securing the right to shelter for Philadelphians, and winning the right to vote for people who are homeless,” she said.

One such triumph, Scullion said, occurred on Fairmount Avenue, where Project H.O.M.E. had attempted to develop a residence for formerly homeless men and women. Both community groups and political forces had initially opposed the project.

“The fight went on for four years in courts, on streets and in the arena of public opinion,” she said. “This wasn’t a fight over a building in a particular neighborhood: it was a fight for civil and human rights.”

With the assistance of a legal team in Philadelphia along with other allies, the group won a decision in its favor based on the Federal Fair Housing Act. The results of this landmark fair housing case enabled 1515 Fairmount Avenue to serve as a home to 48 men and women.

Ironically, Scullion observed, after the project was under way the neighborhood around the building experienced significant rises in property values.

“Those who once vigorously opposed us are now supporting a second development in the same area,” Scullion said. “But without the law and without such talented lawyers as the graduates and teachers at Penn,” she added, the victory could not have been realized.

Calling for the legal community to “reframe the discussion around homelessness,” Scullion maintained that while it may be tempting to perceive homelessness as “intractable” and an “inevitable part of the urban landscape,” she is confident it can be resolved.

“We know the kinds of programs and services that work. We know that there are no throwaway people or children, and with your leadership and talent we believe collectively we can make America the land that it beckons us to be—a land of meaningful opportunity for every single person to succeed,” she said. “As our communities become more divided and segregated economically, we must figure out new ways to use our legal talents and skills to provide more inclusion and opportunity for every child to get the type of education you’ve gotten.”

Flickr: 2011 Public Interest Week Pictures

Part 3 of a four-part series about the 2011 Sparer Symposium. 

By Jenny Chung C’12

According to School of Social Policy and Practice Professor Dennis Culhane, approximately 150,000 people are chronically homeless across the United States. 

Culhane spoke as a panelist at “In Search of Shelter: Local and National Strategies for Alleviating Homelessness,” during which he named Housing First programs as a highly effective solution to reducing the prevalence of homelessness.

“Intervention costs less to the taxpayer than having people continue to be homeless,” he said, citing the reduced hospitalization and incarceration rates of Housing First participants as evidence of the programs’ efficacy.

Culhane added that federal and local governments must allocate resources toward solving homelessness directly rather than keeping the homeless population in shelters.

Under the Homeless Emergency Assistance and Rapid Transition to Housing (HEARTH) Act, he said, communities will be rewarded for keeping the average length of a shelter stay as low as possible by offering shelter residents temporary rental assistance with the expectation that many will find employment. 

Dr. Ralph da Costa Nunez, President of the Institute for Children, Poverty and Homelessness, however, argued that rapid rehousing should not be regarded as an ideal solution.

“We’re really talking about poverty, not just housing issues,” Nunez said, adding that the problems afflicting low-income families—for instance, employment challenges and domestic violence—make “maintaining a home extremely difficult.”

Advocating the transformation of shelters into “communities,” Nunez contended that “[telling] a family coming into a shelter the first thing we do is give you housing” can be viewed as “a crime.”

He maintained that New York, the “capital of homelessness in the U.S.,” is currently on its third rapid rehousing program after the previous two had failed.

While “rapid rehousing is becoming the buzzword of the day,” he said, reconceptualizing shelters is substantially more likely to reduce the incidence of homelessness. “Shelters need to move to a new stage and no longer offer just services, but be developed as community resources.”

Nikki Johnson-Huston, who had been homeless for part of her childhood and is now an attorney at the City of Philadelphia Law Department, spoke to the difficulties of long-term planning while homeless.

“You’re thinking hour by hour, day by day,” she said, adding that poverty issues present another obstacle to those attempting to lift themselves out of homelessness.

According to Dr. Edward J. Speedling, Manager of the Homeless Veterans Internship Program at Project H.O.M.E., rehabilitating the homeless hinges on helping individuals find meaningful work and contributing to their ability to become self-sufficient.

“We are very aware that the journey back from homelessness entails rebuilding the foundations of people’s lives to reclaim independence and dignity,” he said, “especially those whose lives have been impaired by addiction, mental illness or both.”

Project H.O.M.E., which currently houses over 300 residents in nine residences, employs a model that “uses the restorative powers of work, education and community to help formerly homeless veterans remake their lives,” Speedling said. The program assesses participants’ skills and interests upon entry in order to match them with employers offering training and internships later on.

President and CEO of People’s Emergency Center Farah Jimenez affirmed that “defining success” in the field of homelessness programs is based on “understanding the model of providing services.”

She outlined two models—the first based on securing permanent housing for families, the second on assuming greater involvement in the lives of families such that once they obtain permanent housing, they enjoy a greater likelihood of success.

According to Jimenez, People’s Emergency Center can be understood in terms of the second model. “A lot of the families we are now seeing in shelters are young women who have aged out of foster care or grown up in public housing—they find themselves in a shelter but haven’t been given any model of parenting,” she said. “Our focus is on teaching them parenting skills.”

Nunez, another proponent of the “recovery” model, asserted that while “shelters cost a lot of money, prisons and foster care cost even more.”

“The sentiment that ‘no child should live in a shelter’ is very true—that’s why no shelter should be a shelter,” he said, adding that “shelters have become the front lines of the war on poverty in America.”

In response, Culhane argued that there has been a significant lack of data indicating transitional housing is more effective than permanent housing, and that poverty cannot be addressed by placing people into homeless shelters.

“We have to make mainstream social welfare systems more effective—not grow the homeless system,” he said.

As the dialogue approached its conclusion, Speedling highlighted the need for public-interest lawyers and other concerned individuals across Philadelphia to contribute to anti-poverty efforts.
“These issues are really destroying the fabric of this city,” he said.

Flickr: 2011 Public Interest Week Pictures

Part 2 of a four-part series about the 2011 Sparer Symposium.  

By Jenny Chung C’12

Opening with an excerpt from Hungry in America, a documentary slated to open this winter, “Poverty’s Youngest Victims: Ethical Choices for First Responders and Advocates in the Fight for Healthy and Affordable Food” centered on issues of food security and approaches to partnerships between medical and legal professionals.

Dr. Mariana Chilton, associate professor at the Drexel University School of Public Health, provided a brief explanation of the Witnesses to Hunger photo advocacy project, which equipped 42 Philadelphia women with cameras so they could document the process of raising children in poverty.

Chilton said she was inspired to launch Witnesses to Hunger after being called to testify before Congress on the impact of public policy with regard to the health of young children. Disappointed in the House of Representatives’ response to her testimony and “total lack of understanding” of the realities of poverty, Chilton found it “unacceptable that [she] would be there as an ‘expert witness’ when there’s someone who’s homeless and hungry and completely disregarded in the national dialogue.”

Chilton, who also serves as principal investigator for the Philadelphia Grow Project and co-principal investigator of Children’s Health Watch, stressed that Witnesses to Hunger—which has since produced 10,000 photographs exhibited nationwide—is not about “voyeurism,” but social action.

The principal objective of the project, Chilton said, is one of “[cutting] through indifference and [bringing] to light the experience of hunger that is generally muffled and hidden by those who experience it.”

To shed light on the magnitude of hunger in the United States, she cited statistics indicating approximately 49 million people—14 percent of the general population—are food insecure and, as such, lack access to enough food to maintain an active and healthy lifestyle.

University of Maryland School of Law Professor David Super voiced “emphatic agreement” with Chilton’s view of hunger as a “problem that defies isolation.”

Due to the recent economic crisis, Super said, state governments are largely understaffed and undergoing attrition at a time when the number of applicants for assistance has been rising.

“Tens of thousands of households that remain eligible for assistance are being arbitrarily cut off because the state doesn’t have the staff to handle the paperwork that keeps them in [the food stamp program],” he said, adding that the most vulnerable sector of the population is the “new poor”—that is, aid applicants who had not required assistance before the economic downturn and are consequently unfamiliar with the availability of legal services and welfare programs.

Because many of those in need do not seek out legal aid on their own, Super advised public advocacy lawyers to locate clients by “working closely with healthcare providers.”

According to Dr. Kathleen Conroy, Medical Director at Medical-Legal Partnership and Children’s Hospital Boston pediatrician, “medicine…is really the tip of the iceberg” given the fact that low-income families are often facing a variety of poverty-related stressors.

She then presented the findings from a 2007 study indicating that while patients are willing to discuss food insecurity with their physicians, healthcare providers consistently fail to inquire into this area of their patients’ lives.

“As a medical person it’s shocking to realize the legal services available to low-income people are so few,” Conroy said, characterizing legal needs as a subset of social needs requiring legal intervention. “Medical staff can help fill the information gap.”

Jonathan Stein L’67, General Counsel at Community Legal Services, speculated that much of the “nonasking” Conroy describes is grounded in “doctors thinking they can’t do anything” and can be remedied by empowering medical personnel to expand the range of assistance they provide to patients.  

“Poverty requires a broad attack on many fronts,” he said, urging law students interested in public advocacy to participate in pro bono work and seek externships with nonprofits.

“The critical component of any profession is having a vision of systemic reform,” Stein said. “[Law students] can [use] their individual casework experience to [see] broader problems that need impacting.”

Flickr: 2011 Public Interest Week Pictures

Partnering Against Poverty: Examining Cross-Disciplinary Approaches to Public Interest Lawyering
By Jenny Chung C’12

A diverse array of panelists ranging from public-interest lawyers to academics to experts across various disciplines convened to discuss poverty issues within both Philadelphia and the broader national context at the University of Pennsylvania Law School’s 30th annual Edward V. Sparer Symposium, held March 18 at the Levy Conference Center.

Comprising a full day of presentations and discussions on subjects relevant to the practice of public-interest advocacy, this year’s symposium concluded with remarks from Sister Mary Scullion, co-founder, executive director and president of Project H.O.M.E., a program offering solutions to homelessness and poverty that has garnered national acclaim.

Breaking Down Barriers to Re-entry: A Conversation about Life After Conviction
Titled “Breaking Down Barriers to Re-entry: A Conversation about Life after Conviction,” the first of the day’s panels aimed to initiate dialogue on the potential of cross-disciplinary collaboration to address challenges faced by individuals with criminal records.

According to moderator Lisa Margulies L’12, the panel focused primarily on two layers of impact—the individual and community—and examined efforts to empower those with criminal records by enabling them to start afresh.

“Only by putting these puzzle pieces together can we maximize impact and create lasting change,” she said.

Prior to the panelists’ discussion, a short video on employment challenges faced by those with convictions, which was created by third-year students enrolled in Professor Regina Austin’s legal advocacy seminar, was shown to illustrate the societal impact of obstructing formerly convicted persons from finding employment.

According to the video, which will be exhibited at the Penn Visual Legal Advocacy Video Festival on April 12, it is now more difficult for formerly convicted individuals to find work than ever due to the ease with which employers can conduct criminal background checks.

Panelist Wayne Jacobs named removing the box inquiring into an applicant’s prior criminal history from employment applications and securing the right to vote for formerly convicted persons among the group’s most significant successes.

Jacobs, himself a formerly incarcerated person who had “spent the last 20 to 25 years going back and forth through the prison system,” co-founded X-Offenders for Community Empowerment, an advocacy organization dedicating to securing the interests of formerly convicted persons attempting to reintegrate into society. He now serves as the initiative’s executive director. 

According to Philadelphia Councilwoman Donna Reed Miller, two of the “biggest reasons” constituents approach her as an elected official are employment and housing concerns.

Miller, who had worked in collaboration with Jacobs to “ban the box” on job applications asking whether an individual had ever been convicted, characterized the resulting legislation as a means of “combating discrimination” against those with criminal records.

“I’m aware that many times when an employer looks at the application and sees that box checked, they put it aside, never to be seen again,” she said. “There is a whole movement in the U.S. to get these laws passed—Philadelphia wasn’t the first, and we won’t be the last.”

Miller likewise affirmed the necessity of assisting formerly convicted persons with securing employment, citing the statistic that “easily half of [Philadelphia’s] population has someone within their relationships or family that’s a formerly convicted person.”

Thomas J. Innes III, who serves as Director of Prison Services for the Defender Association of Philadelphia, then gave an overview of “Roots to Reentry,” a successful reintegration program through which inmates learn valuable gardening and landscaping skills before being placed with a permanent employer in either industry. According to Innes, of the 11 inmates who completed the program last year, 10 are now employed and doing well on parole.

Magistrate Judge of the Eastern District of Pennsylvania L. Felipe Restrepo likewise recounted his involvement with the Supervision to Aid Reentry (STAR) program, launched to prevent those who have served long prison sentences for violent crimes from being rearrested. STAR identifies employers friendly to formerly convicted persons and requires participants to meet with magistrate judges every two weeks. After 52 consecutive weeks of satisfactory performance, participants are presented with a motion to reduce their term of supervision by one year. “The transition when folks come home is difficult [and] participants require mentorship,” he said.

In addition to emphasizing the importance of collaboration between city government and local nonprofits, Deputy Mayor for Public Safety Everett Gillison maintained that expanding educational opportunity for inmates is key to preventing recidivism.

“Approximately 35 to 40 percent of people in our jails read at a first or second grade level,” he explained, adding that the City has since tripled its ability to provide GEDs to those awaiting trial and is currently providing opportunities for one-fifth of people earning GEDs in prison.

“It’s about making sure everyone has equal opportunity,” he said. “Ninety percent of people in the criminal justice system will come home—the question is, what kind of home are they returning to? They may have been guilty of a misdemeanor but will end up serving a life sentence [in the absence of opportunity.]”

Flickr: 2011 Public Interest Week Pictures

In today’s economic climate, community development through the successful creation and growth of small businesses is a critical challenge for most U.S. cities, including Philadelphia.

So when Praveen Kosuri, practice associate professor at Penn Law, came to the Law School in 2007 to lead its Entrepreneurship Legal Clinic (ELC), he started by reaching out to local community economic development experts to determine how pro bono legal services could help revitalize Philadelphia neighborhoods and the broader area. His approach met with immediate success.

As Kosuri created relationships and found clients for the Clinic, he learned that The Enterprise Center, a West Philadelphia ‘business accelerator,’ was looking for ways to support local businesses and create sustainable jobs. “The Enterprise Center had identified a parcel of land--a boarded-up grocery store at 48th and Spruce in West Philly--that it wanted to acquire and transform into something that could anchor the community, but they weren’t quite sure what it would look like,” said Kosuri. “But the first step was to acquire the parcel.”

Thus during the 2008 spring semester, Kosuri received a call from The Enterprise Center asking for a referral for someone who might be able to help negotiate with the owner of the grocery store.  “I said, well, we can do that,” Kosuri noted. He pitched the services of the Clinic to Della Clark, the president of The Enterprise Center whose brainchild the project was, and convinced Clark and her team that the Clinic could be of assistance.

The ELC is one of nine clinics at Penn Law’s Gittis Center for Clinical Legal Studies, which engage the Law School’s students in direct legal representation of individual and organizational clients in a range of domestic and international venues.

The commercial real estate transaction for which the ELC agreed to provide its services would launch the Center for Culinary Enterprises (CCE), an innovative multi-use commercial kitchen and educational restaurant, designed to be an engine for creating food-related jobs and businesses and to provide resources to emerging food entrepreneurs in Philadelphia.

The project sought to transform the unoccupied 12,500 square-foot former grocery store on South 48th Street into a major economic development project that will provide jobs, education and opportunity to Philadelphians. Upon opening in early 2012, CCE will include three fully licensed commercial kitchens; Little Louie’s BBQ, a restaurant with a training program that will provide high school juniors and seniors with real-world experience in restaurant management; two retail spaces available to local food businesses; and a multimedia learning center called the eKitchen, which includes a 36-seat classroom with a demonstration kitchen.

“How it worked is that in January of 2008 our students met with the client and figured out exactly what it was The Enterprise Center wanted to do. In that first semester, students worked to devise a negotiation strategy, and then helped the client negotiate with the seller,” Kosuri said.

The value of the commercial kitchens to the community is that while many entrepreneurs seek to apply their skills in the food industry, “One of the biggest barriers to formal entry and business growth for entrepreneurs is often that they don’t have a health-certified commercial kitchen where they can produce their products,” said T. Stephen Jenkins L’11, who worked on the project during the fall 2010 semester. “The CCE will help to lessen this burden by providing access to these kitchens to local entrepreneurs at an affordable cost.”

As the Entrepreneurship Legal Clinic has between 20 to 30 clients at any given time and 16 students per semester, students are teamed for more complex clients.

Jenkins worked with Angela Redai L’11 on the CCE case. “It was valuable to see the structure of the organization and to get a feel for the steps they needed to take to realize their end goals,” said Redai. “Building on what students had done in the past, one of our responsibilities was organizing all of the CCE’s funding, as it is a non-profit organization, so that the lenders would know going forward how these loans would be repaid.”

“From reading the transition memos [from the previous semester’s students] and speaking with the client directly,” Jenkins explained, and working primarily with Gregory Heller, managing director, Economic Growth & Community Revitalization at The Enterprise Center and the CCE’s project manger, “Angela and I were able to come up with a game plan for what we wanted to present to our client.”

For the teams of students each semester who worked on the matter, “the first part of it was acquiring the land,” Kosuri noted. “And as we progressed, the second part was, how do you structure this larger enterprise, and what’s it going to look like?  We needed to figure out a structure that would protect The Enterprise Center from liability associated with the food businesses and wouldn’t jeopardize its 501(c)(3) status.” 

As part of the clinical experience, “Students are in the role of coordinating the entire deal,” Kosuri said, “just like they would be as associates in a law firm. What we seek to do here is to provide students with an experience that will last years into practice rather than merely months.”

From the very beginning until the present the students, Kosuri pointed out, “reviewed and commented on the architect contracts. There have been several pieces of financing – the students have been involved in all of that."

"Under our supervision,” Kosuri said, “students have been doing basically everything – from the acquisition of the parcel to obtaining the property tax exemption to securing zoning variances from the City [of Philadelphia] to the bidding process to select a general contractor, to the various rounds of financing, and even the commercial leases.”

“The Entrepreneurship Legal Clinic has been a tremendous partner on the Center for Culinary Enterprises, and we at The Enterprise Center are very grateful for the Clinic’s support,” said The Enterprise Center’s Heller, who has worked with the Clinic’s students since heading up the project in the summer of 2009.

He added: “There are substantial legal costs associated with commercial real estate, and as a not-for-profit organization that develops projects to benefit the community, we work hard to focus our limited resources directly on building projects and investing in community-based programming. Thanks to the Clinic’s pro bono support, we have been able to redirect dollars that would have been spent on legal counsel directly into the project’s community-based outcomes.”

In addition, the Clinic was able to draw on the pro bono counsel of the attorneys at the Philadelphia office of Dechert LLP. “We partnered with them from the beginning, and they’ve been outstanding,” said Kosuri. “If there’s something about which we need their guidance, we can go to them. But as part of their professional development, our students manage the process as opposed to the Dechert folks managing the process.”

Working in the Clinic and with the CCE, “It definitely honed my eye for detail and my attention to how language needs to be framed to achieve certain objectives,” said Redai. “For example, we were meeting with Greg [Heller], hearing his perspective as the client, hearing where they were with the project at the CCE and everything they needed to move forward. Then, working with our clinical supervisors, we had to figure out what steps we needed to take legally to help them achieve their goals. The client work was pretty much entirely on our shoulders.”

“One of the things that I was interested in during law school was to get some hands-on practical skills,” said Jenkins. “And being involved with the Entrepreneurship Legal Clinic allowed me to do that, including substantive experience with corporate/transactional work.”

“The Clinic’s students and staff, led by its Director Praveen Kosuri, have done a very professional job, consistently worked with us to overcome challenges, meet our deadlines, and fulfill all of the legal needs of a complex project,” said Heller. “The Clinic is a fabulous resource for Philadelphia’s communities, and we are proud to be one of the Clinic’s partners.”

For more information about Penn Law’s clinical programs, please visit http://www.law.upenn.edu/clinic.

Center for Culinary Enterprises: A Recipe for Economic Development

(A Penn Law VLA Production)

By Sophie Jeewon Choi C’13

Kenneth A. Richieri, senior vice president and general counsel of the New York Times Company, opened the Penn Intellectual Property Group’s 4th Annual Symposium on Copyright Law on March 22 with a keynote address that offered a practical perspective on copyright issues for news and information providers. Richieri addressed an audience of faculty, students, attorneys and community members gathered in Penn Law’s Levy Conference Center. 

According to Richieri, news and information providers face a unique situation in protecting their copyrights because of the ambiguous distinction between the facts they report and the expressions they use. “Copyright protects expression, not facts,” he explained. “Creative works, things like novels, movies [and] songs, receive the highest protection because they’re one hundred percent expression.”

News providers also face a new challenge with the development of digital media. “The Internet world has severely changed the economic play in a very material sense,” Richieri said, adding that the changes are in large part due to the nature of Internet search engines. “For news articles, this generally means headlines, and the first sentence or so, limited to 40, 35 characters,” he said. Because the search results are considered informative, such headlines are not protected by copyright and are considered a fair use case.

The growing use of “apps” and user interfaces complicates the issue further. “Apps are often designed to allow the user to change his or her experience,” Richieri pointed out. “The changes can be relatively simple, like fonts or something like that, or more complex, like organization or presentation.” Richieri emphasized, “[Such changes] have very serious economic consequences.” For clients looking for guidance in developing apps given the complex copyright environment, he said “there is no easy or uniform answer.”
 
Following the keynote address, the Symposium included three panel discussions. The first discussion, moderated by Penn Law Professor R. Polk Wagner, was titled “Music Licensing and Distribution.” Panelists Bruce Rich, a senior partner at Weil, Gotshal & Manges LLP who heads the firm’s IP & Media practice, Jeff Farmer, in-house counsel and vice president of Legal Affairs at Lime Wire LLC, and Roger Cramer, counsel to Selverne & Company PLLC, explored contemporary copyright issues in the music industry in the face of changing technologies. They covered a wide range of issues, including the protection of artists and the streaming and downloading of music online.

The second panel, titled “Open Source and Derivative Works,” was moderated by Penn Law Professor Christopher S. Yoo and focused on copyright issues surrounding software development. The panelists included Van Lindberg, associate at Haynes and Boone, Aaron Williamson, counsel at Software Freedom Law Center, and J. (Jay) T. Westermeier, counsel at Finnegan, Henderson, Farabow, Garret & Dunner LLP. They spoke of the unresolved discourse on the open source movement and copyrights of adapted work.

Penn Law Professor Shyam Balganesh moderated the final panel, “Copyright and Authors,” with panelists Nina Paley, author, director, cartoonist, and an artist-in-residence member of QuestionCopyright.org, and Marcia Paul, a partner at Davis Wright Tremaine LLP who concentrates on media and intellectual property litigation and counseling. Drawing on their professional experiences, the two panelists shared their perspectives on copylefts and the necessity of copyright laws.

Attorney John Papianou, who attended the Symposium, said of the discussions, “I thought [Nina Paley’s] challenging the copyright laws was very interesting.” Charlene Kwuon, an online cartoonist and writer, also commended the final panel. “I thought it was great that they were actively pitted against each other,” she said. “It made the arguments for or against copyrights feel very active.”

Coy Burcell, a corporate and health law attorney in the audience and the associate director of Penn’s Office of Research Services, said, “I thought they were all great presentations. They were all interesting. I think it’s remarkable to get the different panels and the speakers to all come to this event.”

Flickr: Penn Intellectual Property Group Symposium: Copyright Law in the 21st Century Pictures

In his latest book, The New Financial Deal: Understanding the Dodd-Frank Act and Its (Unintended) Consequences, David Skeel, the S. Samuel Arsht Professor of Corporate Law at Penn Law, analyses the 2,300-plus pages of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2008, passed into law in the immediate aftermath of the global economic crisis, and representing the greatest financial regulation reform in the U.S. since the Great Depression.

Professor Skeel sat down with Penn Law’s Office of Communications to discuss the impacts and unintended consequences of the Dodd-Frank Act.

Penn Law (PL):  Why did you decide to write this book?

Prof. David Skeel (DS):  I had been working on these issues for two years by the time the legislation was nearing enactment.  I’d been writing articles about the financial crisis, focusing especially on the role that bankruptcy might play and on the regulation of the derivatives industry. I also had talked with a number of Congressional staffers who were involved in the legislation, and had had the privilege of testifying at several hearings on the crisis and possible reforms. Having spent so much time thinking about and discussing the financial reforms, I thought it would be great to put everything together in a book, but I had concluded it would take too long for the book to come out for it really to be worthwhile. 

Then in May I got an email out of the blue from an editor, asking if I would be interested in writing a book about the reforms. The good news was that they would publish the book very quickly; the bad news was that they would need the manuscript by the end of the summer.

Ordinarily, my answer would have been, "No way. I can’t write a book in a summer."  But it was an opportunity to put everything together in one place, to explain what the legislation would do and what its implications might be. So I took a deep breath and said yes.

PL:  What are some of the key issues of Dodd-Frank?

DS:  To very quickly put the legislation into context, people talk about the Dodd-Frank Act being an incoherent mess, 2,319 pages of chaos. But it really isn’t. The legislation has two main responses to the financial crisis: first, it tries to limit the risk of the instruments (such as derivatives) and institutions (the giant banks and other “systemically important” financial institutions) of contemporary finance; and second it tries to limit the fallout in the event a systemically important financial institution nevertheless falls into financial distress. 

Parts of the legislation actually work pretty well, I think.  I think the derivatives regulation is likely to be effective. Lots of other parts of it don’t work so well, and in my view will have unintended negative consequences. 

PL:  Such as?

DS:  The legislation solidifies the status of the largest financial institutions as too big to fail.  It singles the giant banks out for special treatment, but it doesn’t try to limit their size or break them up – it just assumes that we’re going to have these giant banks dominating our financial services industry. 

I fear that this will have unfortunate consequences. For example, it’s going to be very difficult for small- and medium-sized banks to compete with the giant banks. As a result, I think we may see less innovation in the financial services industry than we otherwise would. We also may well have less lending to small- and medium-sized businesses, because the small- and medium-sized banks are the ones that, historically, have lent to small- and medium-sized businesses.

I also fear that the legislation could create a “partnership” between the government and the largest banks. The legislation contains a number of provisions that could be used to extract concessions from the largest banks, which creates the risk of political policy dictating banking decisions rather than just economics dictating banking decisions. So, one set of unintended consequences has to do with the fact that we are accepting these giant banks and taking them as a given rather than really trying to do something about them. 

PL:  And what if these giant banks fail?

DS:  Well, the second set of concerns has to do with just that. Dodd-Frank’s new resolution rules  give regulators the power to take over one of these giant institutions if it runs into trouble.  The premise of this system is that what we do with small-and medium-sized banks now is a good model for how to deal with giant institutions when they fail. In my view, this strategy—which gives bank regulators sweeping authority—makes far less sense for giant financial institutions than for small banks. I think that lawmakers should have taken a much closer look at bankruptcy, which relies much less on the discretion of regulators.

PL:  What kind of regulatory guidance does the legislation provide?

DS:  The short answer is, not a lot. Part of the conventional wisdom about Dodd-Frank is it leaves everything up to the discretion of regulators. This is one context in which I believe the conventional wisdom is right. The new law invites regulators to impose new capital standards on the big financial institutions and even, in theory, to limit their risk taking in a variety of ways. But it doesn’t suggest how to do this. The main regulators are already struggling mightily, and falling behind, as they try to crank out all the regulations that Dodd-Frank calls for.

PL:  Why, in your view, is a market-based approach involving bankruptcy a better approach than bailouts?

DS:  The danger, in my view, of a regulatory approach to the insolvency of these institutions is two-fold. First, regulators tend to not know that a collapse is coming until it’s too late. Yes, Dodd-Frank is going to help by requiring more oversight and a lot more disclosure. But very frequently, the managers know there’s a problem long before regulators do. So, to the extent you can encourage decision makers who do know what’s going on, such as the managers of the business and its creditors, to make the decision when it's time for insolvency proceedings, as they do with bankruptcy, I think that’s a good thing.

The second concern I have is that there is an inevitable incentive for regulators to bail out a giant institution when there’s trouble. If they don’t bail out one of these institutions and it blows up, that’s egg on their face. Everybody points a finger at the regulators and says: "You dummies, why did you let it fail?" If they bail the institution out, regulators might get some criticism but we typically don’t know until a few years later whether that was a mistake. 

That said, I’m not saying that bankruptcy is always the best solution in these situations.  Occasionally you do need to inject money into the marketplace. My claim is an argument that whenever possible, it’s better to use a more market-oriented approach like bankruptcy that assures companies aren’t bailed out; and assures that creditors do, in fact, take losses if the company they’ve lent money to does badly. 

And in my view, Dodd-Frank pushes things too much in the other direction.  It creates, if anything, disincentives to use bankruptcy.

PL:  What do you think works about the legislation?

DS:  Before Dodd-Frank, derivatives were for the most part simply unregulated. Dodd-Frank now requires that most derivatives be submitted to a clearinghouse, which will be responsible for guaranteeing the performance of both sides of the derivatives contract. Dodd-Frank also requires that most derivatives be traded on exchanges, so they can no longer be secret, private deals between two banks. Now they have to be publicly disclosed and their terms will be a little bit more standardized. 

The Dodd-Frank innovation that I like is the new consumer financial protection bureau. The consumer bureau was first proposed by Elizabeth Warren; it was her idea, and as you know she used to teach at Penn Law (although this isn’t the only good reason to support the new bureau!).   Supporters of the consumer bureau argued that none of the regulators who were supposed to protect consumers were in a position to effectively champion consumers’ interests. The Federal Reserve, for instance, had primary responsibility but also suffered from a serious conflict of interest.  The Fed’s primary mission is to preserve the stability of the banking system, which can directly conflict with protecting the interests of consumers. Sometimes gouging consumers is a way to preserve bank stability. 

The beauty of the consumer bureau, in my view, is that it creates a new consumer champion that’s not conflicted, whose primary responsibility is to focus on consumers and to make sure consumers are protected in the financial marketplace.

PL:  What will happen if there’s a change in presidential administration, will Dodd-Frank change at all?

DS:  The legislation is intended to be independent of a particular administration, in the sense that a number of the key regulators are, at least to some extent, insulated from political changes. For example, the director of the new consumer bureau will serve for five years; the director can’t be removed simply because the party in power changes.   

This and other aspects of  Dodd-Frank areintended not to be politically sensitive. But in other respects, politics will inevitably play a role. The regulator that arguably came out strongest as a result of Dodd-Frank is the U.S. Treasury, which possesses a number of powers. The legislation assumes that the Treasury will make the first move to take over a giant financial institution that falls into distress, for instance, and a major new research center will be housed in the Treasury. The Treasury, obviously, is very politically sensitive. If we move from one administration to another, we may get a very different Secretary of the Treasury, which will have substantial regulatory implications. 

PL:  How does Dodd-Frank deal with the international dimensions of financial services regulation? 

DL:  There is frequent reference to international issues in Dodd-Frank; the word “foreign” appears in Dodd-Frank dozens of times. But when you add all this up, all it amounts to is an exhortation for U.S. regulators to cooperate with their foreign counterparts. 

Basically, what Dodd-Frank says is, please coordinate in the event there is financial distress. Dodd-Frank doesn’t do much more than that internationally, in part that’s because there’s only so much a U.S. law can do to deal with international issues.

But even with that caveat, it is surprising that Dodd-Frank doesn’t do more because a lot of what blew up in 2008 did so on an international scale. When Lehman Brothers failed, it wasn’t just a US problem, it was a huge problem in England—in many respects, much more of a problem than in the US; it also was a significant problem in Japan. 

Dodd-Frank does do one thing that I think could be very helpful internationally as well as domestically. The new law requires every systemically important financial institution to prepare a “living will,” or “rapid resolution plan,” every year. 

The idea is, these big banks have to prepare a fire drill. They have to inform regulators how, in the event of a crisis, they are going to make sure that the damage is contained.  In other words, how they will make sure that one bank’s crisis doesn’t become a worldwide crisis. 

To the extent this is aggressively enforced, and bank regulators require that the banks prepare a serious plan explaining what the organization of the bank is, and how they’re going to deal with the potential fallout from a crisis, the living wills could actually have a pretty significant effect. It’s the one part of the international response that I think really could make a difference.

This year Penn Law’s Public Interest Week coincides with Sunshine Week, a national effort to promote dialogue about open government and freedom of information. We sat down with Director of the Penn Program on Regulation and Penn Law Professor Cary Coglianese to discuss how information technology affects the transparency of the federal rulemaking process. 

By Jenny Chung C’12

According to Joan Messing Graff, the 2011 Penn Law Public Interest Week Honorary Fellow in Residence, guaranteeing fairness and equality in the workplace is imperative because work fosters “self-worth, a sense of value, a sense of identity and a sense of purpose,” she said as part of a Public Interest week lecture she delivered the evening of Mar. 16 in Silverman 245A.

Named the first female executive director of the Legal Aid Society of San Francisco-Employment Law Center (LAS-ELC) in 1981, Graff shared her extensive public advocacy experience with Penn Law students and faculty in attendance. 

Graff opened her talk with a brief overview of her personal and professional background, during which she ascribed her enduring passion for justice to an upbringing “grounded in social values.”

She earned her undergraduate degree from the Cornell School of Industrial and Labor Relations before entering law school at Columbia University, where she was one of the few women in her class at a time when the presence of women lawyers, she recalled, “was not embraced.”

Graff went on to co-found the San Francisco-based Equal Rights Advocates, one of the first nonprofit legal organizations in the U.S. dedicated to advancing women’s rights, which achieved significant success toward opening employment opportunities for women.

She now heads LAS-ELC, which has been in continuous operation since it was founded in 1916 to represent low-wage workers and train law students in public-interest practice.

According to Graff, LAS-ELC clients are poor and face problems ranging from nonpayment of wages to discrimination to harassment. She added that since the recession, the number of clients approaching LAS-ELC for legal assistance has “increased exponentially.”

Graff characterized the Center as “one of the rare organizations that have been able to marry direct services to impact litigation,” fields which require “very different skill sets and attract very different types of people.”

When she first arrived in San Francisco, Graff said, relations between the two sectors were “very tense.”

“Public interest lawyers viewed direct service lawyers as constantly governed by political correctness,” she explained. The former, in turn, were perceived by their direct service colleagues as “elitist [and] arrogant.”

Graff said that while there initially existed some friction between direct service lawyers and impact litigators at the Center, it was soon overcome. “We worked through it and reached a successful model,” she said. “The cultures of both these sides of the office were completely merged—it’s a thriving practice that integrates them both.”

Emphasizing the importance of responding to the needs of client communities instead of “litigating from on high,” Graff explained that the Center’s litigation priorities are determined by input from nightly clinics it holds around the Bay Area.

To illustrate the nature of her clients’ concerns, Graff outlined an ongoing case brought to litigation through the clinic: a woman who worked at Foster Farms for 20 years was unlawfully fired for taking a family leave—granted by her employer—to visit her gravely ill father in Guatemala. According to Graff, to justify the firing, Foster Farms contended the client had fabricated her father’s illness.

Graff followed this with an account of a “groundbreaking” case which had been brought on behalf of black firefighters systemically excluded from positions in the San Francisco Fire Department. 

The case was significant in light of the fact that “fire departments have historically closed doors to minorities and women and handed down desirable jobs through nepotism,” according to Graff.

She told her audience that 15 years elapsed before this particular case was resolved, during which period the Center collaborated with coalitions that represented minorities and women firefighters.

Even after a settlement was reached, she said, its enforcement required years of monitoring due to the “extraordinary” level of resistance. The Center’s efforts, however, were amply rewarded when two of the plaintiffs became, respectively, the first African-American and woman fire chiefs.

“When you break down boundaries,” Graff said, “there need not be a long time to achieve immense successes.”

Graff expounded on another case brought by a client who had worked for over two decades as a mailroom clerk at a bank despite a developmental disability. Regardless of his years of reliable service, the client was fired after his employer outsourced the functions he was performing.

“They didn’t find him responsive enough or understand his disability,” she said. “He was devastated—for him, his job was himself. It showed him he was a meaningful, contributing member of the community.”

Graff reflected that her clients have become increasingly vulnerable since the recession as they work “low-level jobs and are viewed as dispensable.” Additional sources of employment instability, she asserted, can be found in outsourcing and the increased classification of workers as independent contractors who can be denied an hourly wage and health benefits. 

“The latest numbers say more than 14 percent of Americans are living below the poverty line,” she said. “This is shocking in our country—we tend to think of ourselves as ahead of the game on that.”

According to Graff, a substantial part of the problem is that low-wage workers are frequently considered “fungible” to employers. “They aren’t seen as real people—here today, gone tomorrow. It’s tragic as we assist our clients to see their pain at being treated as if they’re nothing, which often happens.”

She added that because many of her clients were employed by underfunded firms, “complete justice” is often impossible due to employers’ inability to pay their settlements.

Graff cited domestic workers as a group that finds it especially difficult to assert their legal rights because of their relative isolation and lack of community.

“We represented a 70-year old Spanish-speaking housekeeper who worked for a family in Hillsborough, California—she was paid from $3 to $4 an hour working 14-hour days, six days a week without any breaks, overtime, vacation pay or sick leave in a hostile environment,” Graff said.

In response to the case—which concluded with a settlement—a newly-formed group organized around domestic worker issues held a respectful march through Hillsborough to communicate with and educate other domestic workers on their rights.

Graff noted the client herself eventually became an active member of the National Domestic Workers Alliance.

Under her direction, the Center is now working on securing jobs for low-wage workers in San Francisco, extending requirements for sick leave in California and granting domestic workers basic rights like sick leave and overtime pay, among other issues.

“Employment law is ever-changing—that is the joy and wonder of practicing in the field,” Graff said. “Employment is a civil right that needs to embrace every right that people have.”

From Monday, March 14 through Friday, March 18 the Toll Public Interest Center (TPIC) at Penn Law is hosting the Law School’s annual Public Interest Week, a series of workshops, conferences, and events which explores pressing issues in pro bono and public interest lawyering. The focus of the week is on the pursuit of justice – and it will help students explore the many ways in which they can engage in advocating for social justice.

From Monday, March 14 through Friday, March 18 the Toll Public Interest Center (TPIC) at Penn Law will host the Law School’s annual Public Interest Week, a series of workshops, conferences, and events which will explore pressing issues in pro bono and public interest lawyering. The focus of the week will be on the pursuit of justice – and it will help students explore the many ways in which they can engage in advocating for social justice.

The week will culminate in the 30^th anniversary of the Sparer Symposium on Friday, March 18, the theme of which is “Partnering Against Poverty: Examining Cross-Disciplinary Approaches to Public Interest Lawyering,” and which will convene legal academics and practitioners to provide insight into the dynamic relationship between scholarship and practice in the area of poverty law.

Joan Messing Graff, executive director of the Legal Aid Society – Employment Law Center, will serve as Honorary Fellow in Residence for Public Interest Week. She will be an active participant in the week’s events and will lecture on “Putting Justice to Work: Defending the Rights of Workers” on Wednesday, March 16 at 5 p.m.

Additional Public Interest Week events will include:

• A public interest practice area fair and reception;
• A panel discussion on advocating for justice on consumer matters;
• A screening of the film Lost Souls and discussion with the film-maker on issues of immigration, migration, and family;
• A workshop for students on how to thrive as a public interest lawyer;
• A discussion on racialized tracking in American schools;
• A panel discussion on litigation strategy in the context of disability rights;
• A workshop on the nuts-and-bolts of post-graduate public interest fellowships;
• The week will end with the third annual Penn Law Public Interest Alumni Dinner, bringing current students together with the legal professionals in whose footsteps they hope to follow.

For a complete list of events, see the Public Interest Week Calendar.

As part of Public Interest Week, the Sparer Symposium on Friday, March 18, will explore novel solutions to the poverty crisis in the U.S., addressing both the advantages and difficulties of cross-sector and cross-profession collaboration. The Symposium has been designed to facilitate critical discussion among participants, and will include practitioners from diverse backgrounds as well as people facing the myriad problems associated with poverty.

Sparer Symposium panelists will address issues related to the law and poverty, such as prisoner re-entry; the poverty-environment connection; digital approaches to poverty mitigation; and advocating for healthy and affordable food. Sister Mary Scullion, Co-Founder, Executive Director and President of Project H.O.M.E. in Philadelphia, will present a talk on Friday, March 18 at 5 p.m. at the closing reception. The Symposium has been approved for 6 hours of substantive CLE credit and 1.5 hours of ethics CLE credit for Pennsylvania lawyers.

For a complete list of Symposium panels and participants, see the Sparer Symposium Schedule.

Penn Law’s Toll Public Interest Center, founded in 1989, provides students meaningful opportunities to provide pro bono legal service to under-represented communities. The Center’s pro bono program, which includes a 70-hour pro bono requirement and emphasizes students’ professional development, has been recognized with the American Bar Association’s Pro Bono Publico Award.

Building on its faculty, curricular, and research strengths in law and technology, the University of Pennsylvania Law School has received a major gift to establish a leading-edge intellectual property (IP) and technology legal clinic.

The new clinic will be called the Detkin Intellectual Property and Technology Legal Clinic at Penn Law in recognition of the gift by Peter Detkin EE ’82, L’85, the noted IP entrepreneur and Founder and Vice-Chairman of Intellectual Ventures, an invention investment firm, who currently serves on the Board of Overseers for Penn’s Engineering school.  The clinic will be designed to set a new standard for higher legal education in IP and technology by providing hands-on, practical experience along the technological, legal, and business pathways that comprise the commercialization of innovation.

“The Detkin Intellectual Property and Technology Legal Clinic, made possible through Peter’s wonderful generosity, will enable Penn Law students to gain tremendous insights and professional experience in the real world of IP and technology law and commercialization,” said Michael A. Fitts, Dean of Penn Law. “The clinic is a testament to Peter’s entrepreneurial spirit and to his impressive career and achievements in the legal profession and in technological innovation. And as an enterprise at the crossroads of law and technology, the clinic also epitomizes Penn Law’s leadership in cross-disciplinary legal studies.”

“My career has been at the intersection of law and technology, and I believe that all business and technology professionals need a solid understanding of intellectual property,” said Detkin. “Inventors need to understand how to secure their rights, and business people, who may or may not be the inventors, need to know what to do with those rights.”

Detkin added: “This clinic will be designed to provide Penn students throughout the University a unique opportunity to learn about how IP is handled in the real world; I'm not aware of any other clinic at another institution that can provide this kind of practical, hands-on experience for when students enter the workplace or start their own companies.”

The Detkin Clinic will be administered by and housed at Penn Law’s Gittis Center for Clinical Legal Studies and will be operated in collaboration with Penn’s Center for Technology Transfer (CTT), which is dedicated to moving the world-class research and technologies developed at Penn to the marketplace where they may be developed for the public good. The clinic will involve extensive cross-disciplinary collaboration between Penn Law and Penn’s Schools of Engineering, Medicine, Business (Wharton), Arts and Sciences, and other Penn departments and programs involved in the patenting and licensing processes, as well as related research. It will be directed by a clinical faculty member to be named in the coming months.

In addition, the clinic will be closely integrated with Penn Law’s curriculum in law and technology and build upon the strengths of its research programs, such as Penn Law’s Center for Technology, Innovation and Competition. Projects from the Detkin Clinic will be used as case studies in non-clinical courses, and students will be expected to have completed certain prerequisite Law School courses, such as Introduction to Intellectual Property and  Patent Law, prior to enrolling in the clinic.

Real-world cases on which students will likely work include invention and market evaluation, patent prosecution and patent application development, strategic decision-making related to patents and licensing, and negotiation of licensing or other commercialization deals.

The Detkin Clinic will complement nine other clinics at Penn Law’s Gittis Center for Clinical Legal Studies, which engage Penn Law students in direct legal representation of individual and organizational clients in a range of domestic and international venues.

By Tanya Barrientos. Reprinted from the Penn Current.

During his nearly 50 years in public life—30 of them as a U.S. Senator—Arlen Specter has not only witnessed some of the most historic events in modern history, he has played a role in them.

He’s been part of the national dialogue since as early as 1963 and 1964, when he served as assistant counsel to the President’s Commission on the Assassination of President Kennedy (better known as the Warren Commission). It was Specter who developed what came to be called “the single bullet theory,” asserting that gunman Lee Harvey Oswald acted alone in the shooting in Dallas. The theory was controversial then, and it remains controversial today. But controversy has never been something Specter has tried to avoid. In fact, it’s been one of the hallmarks of his notable career.

As the longest-serving U.S. Senator in Pennsylvania’s history, Specter has participated in the confirmation hearings of 14 Supreme Court nominees—including the intense questioning of nominee Robert Bork (whose nomination was rejected) in 1987, and the contentious questioning of Anita Hill, who in 1991 accused Supreme Court nominee Clarence Thomas of sexual harassment. The Senate approved Thomas’ nomination by a vote of 52 to 48. In his memoir, “Passion for Truth,” published in 2000, Specter comes about as close as he ever might to an outright apology for the Hill incident, writing that he “didn’t understand the explosive nature of the [sexual harassment] issue” back then.

During his five consecutive terms in the Senate, Specter served on the Senate Judiciary Committee, including as chairman from 2005 to 2007; he was chairman of the Senate Select Committee on Intelligence from 1995 to 1997 and was a senior member of the Senate Appropriations Committee.

In 2010, Specter lost his run for re-election. In September of this year, he will return to his alma mater as an adjunct faculty member at Penn Law School, where he will teach a course on the relationship between Congress and the U.S. Supreme Court, focusing on the separation of powers and the confirmation process. The former senator recently talked with the Current and Penn Law about having grown up in the same small Kansas town as retired Senator Bob Dole, his days as a Penn undergrad, his entry into politics and what he hopes to impart to a new generation of lawyers. 
 
Q. Your association with Penn goes back to your days as an undergraduate. How did you decide on Penn back then?
A. My beginning association with Penn was as a student in the College. I graduated from Penn in 1951, was on the debating team and I was a member of the Pi Lambda Phi fraternity. I came to Penn because my family moved to Philadelphia. We were living in Russell, Kansas, a little town of 5,000 people, and when my sister Shirley was of a marriageable age, there was only one Jewish boy in town and that was me, her brother. So the family moved to Philadelphia so she could meet and marry a fine Jewish boy and raise a fine Jewish family, which she did. I had been attending the University of Oklahoma and I decided to come with the family and that brought me to Philadelphia and the University of Pennsylvania.

Q. Russell, Kansas is the same town former Senator Bob Dole is from. Did your families know each other?
A. Our families were friends. My father had a junkyard in Russell and my father weighed his junk on Doran Dole’s [Bob’s father] scale. He ran the local granary so he had the biggest and only scale in town that could weigh a big truck. Bob’s brother Kenny and my brother Morton were contemporaries and were friends, and of course I got to know Bob very well in the Senate.

Q. What are some of your most vivid memories about your College days? You said you were on the debate team, did that spark your interest in politics?
A. The debate team took on Oxford in 1949. …We debated the team on the question that, Resolve: The British Empire was decadent. We won the debate on the judges’ balloting, and afterwards my father walked up to me and said, ‘Arlen, do you think it was very polite that those two young fellows came all the way from Great Britain and you beat them?’ and I said, ‘Yeah Dad, that’s debating.’

Q. Any other memories you hold dear?
A. Sure, the fraternity house was lively on Saturday nights. I took Joan [Specter’s wife of 55 years] to a party there on our first date in the fall of 1949.

Q. After law school why did you decide to live in Philadelphia?
A. I was in the service for two years. I was in the Air Force ROTC at Penn. The Korean War was on and I spent two years stateside with the OSI [Office of Special Investigations]. I went to law school at Yale and I had an interest in settling in Denver, where I worked for a law firm between my second and third years of law school. I was doing very well, until they found out I was Jewish. They didn’t hire Jewish fellows. I liked Philadelphia a lot and had a number of offers here, so I joined a very fine firm here— Barnes, Dechert, Price, Meyers and Rhoads—and I married a Philadelphia girl, and I’ve been here ever since.

Q. So Philadelphia came through for you when it came to battling anti-Semitism?
A. Well, anti-Semitism, like racism, bubbles just a little bit below the surface. I’m glad to say I think those days are over. Law firms all over the country and all over the world are hiring talent now. I think we are over that, but when I was in law school it was a problem. And I talk about it because I think it’s important for people to recognize it, and not to pretend that it never happened.

Q. In your final floor statement in the Senate, you said ‘partisan gridlock’ and ‘abuse of the Senate rules’ have damaged what you called the ‘world’s greatest deliberative body.’
A. The tradition is to have a farewell address, but I used the opportunity to make what I called a closing argument, to try to bring about some changes. It used to be that the Senate was a place where any senator could offer virtually any amendment at virtually any time and get a vote. So, with unlimited debate you could bring up new ideas and debate them. It’s a pretty good forum for attracting public attention and really doing something constructive. And then there was a rule that was abused by majority leaders of both sides where they would offer amendments so that no further amendments could be offered. They called it ‘filling the tree.’ It was a procedural device, and when it was done by Republicans, the Democrats would object that they didn’t have a chance to offer amendments and they would filibuster. The filibusters were very abusive. To break a filibuster you need 60 votes and it takes about three days of the Senate’s time.

At the same time there was a lot of partisanship over judges, because the cultural wars have been fought out at times in the federal courts on questions like a woman’s right to choose, school prayer, embryonic stem cell research. And the political parties have been controlled by the fringes. They control the primary process. For example, an excellent senator like Joe Lieberman couldn’t win a primary in Connecticut [in 2006]. I couldn’t win a Republican primary in Pennsylvania [in 2010]. Bob Bennett [former Republican Senator] of Utah had a 93 percent conservative record and he couldn’t win a primary in Utah. [Republican Senator] Lisa Murkowski in Alaska lost her primary, and she was opposed by members of the Republican caucus. People that she sits with every Tuesday for lunch, and with whom she talks about party affairs, felt she wasn’t sufficiently conservative. I called that in my speech sophisticated cannibalism, and I made a mistake; I should not have called it sophisticated. It’s just raw cannibalism. The fights between the parties have descended to a level where right now it appears we are going to have two years of chaos, until the decision is made about who is going to be elected president in 2012.

Q. Of all the places you could teach, why did you choose Penn Law, and how will you incorporate your Senate experience into your course on the separation of powers?
A. I chose Penn because it’s one of the best law schools in the country. ... And I know a lot of the people at Penn, including one of the distinguished visiting professors named Shanin Specter [Arlen Specter’s son]. I taught at Penn in 1969, 1970 and 1971, so I know the Law School and it’s a terrific place. I have keen interest in developing ideas about the Supreme Court for the next generation of lawyers. I think it’s very important for people who have been fortunate enough to have had the kind of experiences as I’ve had to share the experiences with other people.

Q. One of the areas you will be delving into in your teaching is the relationship between Congress and the Supreme Court, as well as the confirmation process. Why focus on that?
A. I think the Supreme Court needs to be better understood, and one of the ways to have it understood is to televise the court, which is something I’ve been trying to do for virtually my entire Senate career. The supreme court of Great Britain is televised, as is the supreme court of Canada, the state supreme courts, the U.S. Senate and the House; but the U.S. Supreme Court has resisted. … One of the grave problems of the confirmation process is that [Supreme Court] nominees make a lot of statements that are really close to commitments—you can’t sue them for deviating—but there is such a practice of totally ignoring the statements that there really needs to be a way to deal with it. For example, [Chief Justice John] Roberts wrote a concurring opinion joined by [Justice Samuel] Alito in Citizens United [v. Federal Election Commission] that is a 180-degree U-turn from the questioning in the confirmation hearings on following precedents stare decisis and on being deferential to Congressional findings of fact. And, the Supreme Court decides all the cutting issues of the day. They need to be understood. I think the legitimacy of the Supreme Court really is under attack at the moment. Not too many people know it, but their decision in Bush v. Gore was disgraceful. I use that word knowingly. [Justice Antonin] Scalia said irreparable damage would be done to President Bush’s legitimacy if the votes were counted, which made absolutely no sense. ...And there’s Citizens United, and they’ve just made a mockery of the statute which governs changes in the rules of civil procedure, but that’s a long story. …Those are some of the thoughts on my mind, just some.

Q. Penn President Amy Gutmann has said she hopes that your presence on campus will encourage more students to pursue careers in public service.
A. I’m pleased to hear that she said that. I’ve long contended that government does not have the best and the brightest. … When I came out of law school I became a committeeman to try and work through the political ranks. Being hired in the district attorney’s office was political at the time. But once I got to City Hall I found the level of professionalism was much inferior to what there was at the big law firms. I’ve always tried to bring people into government. When I was elected DA, I had a special recruiting policy. I went to all the big law firms to try to secure a young lawyer for two years to get his services and to get experience for him. ... I’ve spoken at countless colleges and high schools and I’ve always carried the theme of ‘get involved,’ and when I interact with the [Penn Law] students I’ll be carrying that message forward. Of course my whole career has been a statement to that effect.

By Sophie Jeewon Choi C’13

Jeremy Nowak, president of The Reinvestment Fund (TRF), a community development financial institution, addressed faculty, students, attorneys and community members gathered in Penn Law’s Levy Conference Room March 2, kicking off 2011’s Law and Entrepreneurship lectures presented by Penn Law’s Institute for Law & Economics (ILE).

By Serena Zhou EAS’14

"Why is the rule from God non-binding?" was the key question posed by Dr. Asifa Quraishi during her keynote speech on Shari’a– Islamic Law-- as part of Penn Law’s Muslim Law Student Association (MLSA) fifth annual conference, Feb. 26.

The conference, the theme of which was "Constructive Roles for Islamic Law in Western Society,” attracted to the Law School’s Levy Conference Center a diverse crowd of law students, Penn graduate students, and visiting scholars from cities around the U.S. and the world to engage in dialogue about Shari’a and other topics, such as the Egyptian revolution and Islamic finance.

Of the three featured conference speakers, Dr. Quraishi centered her talk on Islamic legal theory, engaging the audience with questions and a multimedia presentation depicting Islamic judicial systems with parallels in the American legal system.

Pointing out that the literal meaning of Shari'a is “the path,” believed by Muslims to be God's law passed down through the Qur'an and seen in prophetic examples such as Mohammed, Quraishi noted however that "People will run into situations that are not addressed by either.” Quraishi elaborated that Ijtihad-- legal interpretation by private scholars-- supplements Shari’a, and highlighted the implications of that: "Scholars wrote about this, aware of their own fallibility." The interpretation of Shari'a gave rise to Fiqh, different conclusions scholars drew from canonical texts, always ending their interpretations with the phrase “God knows best.”

The collective of these interpretations became methodologies that are simultaneously valid, she explained. "In Classical Muslim society, the legal system developed to accomodate pluralism." She went on to dispel many of the misnomers and the negative connotations associated with Islam in America. Ijtihad shares its root with jihad; but jihad’s meaning, Quraishi asserted, is not holy war but literally “struggle.” Further, a fatwa given out by a mufti, unlike for example a papal edict, is not absolute.

Muftis are recognized experts in the field, but Muslims that seek their advice do not have to follow it. Choice is a centerpiece of faith; as Quraishi pointed out, if someone follows an interpretation that is not coming from their own conviction, they run against the spirit of jihad for Muslims. That is why the rule of God or the interpretation of it is non-binding, she said.

The rule of law of temporal leaders, however, is binding to maintain order and maslaha or public welfare, she added. This realm of law related to political administration is Siyasa. "The separation of these two spheres, Siyasa and Fiqh,” Quraishi said, “has its Western analogy in the separation of Church and State.

Rulers, she explained, “tried to impose belief on the people, but academic freedom won out. That is the spirit behind the first Amendment." However the similarity ends there, as Islam has bifurcated realms of lawmaking, with legal schoars as a key source of law. While in the U.S., she argued, law comes from the state or positions created by the state.

Quraishi transitioned from Classical Muslim society to the nation-state model and asserted that codes of modern Islamic states have the basic European template and Western legal concepts that are not well equipped for interpretation. As a result, the legal system has lost a sense of pluralism, nuance, and diversity. She differentiated between classical Fiqh and legislated Fiqh and warned, "If the laws uses Fiqh as a source, remember that this is a maslaha choice, and is not dictated by Islam."

Shari'a is abstract while Fiqh is specific and doctrinal. Fiqh does not have to be legislated into Siyasa in order for a state to be Shari'a mindful. (The next speaker, Dr. Fadel, addressed the issue in the context of the Egyptian revolution; Article II of the Egyptian constitution contains the clause "Shari'a is the principle source of legislation for the state.")

When the decision by lawmakers in Oklahoma to prohibit judges from considering or using international or Islamic law in their cases was raised by an audience member, Quraishi replied, "That is a question for American liberal democracy,  [whether] we can accomodate alternative dispute resolution and not a substantive debate about Shari'a."

Bilal Choksi L’12, president of MLSA, commented that in organizing the conference,"There were two goals the board had in mind as we chose the speakers. One, we wanted substantive legal dialogue.” Second, he said, “We wanted a forum to debunk the misconceptions associated with Islam."

Faculty Research Brief Series

In the United States, both constitutional law and tort law recognize people’s right to privacy: a legal entitlement to an intimate life of one’s own free from undue interference by the state and others. For lesbian, gay, bisexual, and transgender (LGBT) people seeking to protect that right, the constitutional arena has brought a modicum of well-known success. In 2003, for example, two cases suggested that LGBT people had come a long way in having their right to privacy protected under constitutional law. In Lawrence v. Texas, the Supreme Court struck down laws criminalizing consensual sexual acts between same-sex adults, and in Goodridge v. Dep’t of Pub. Health, the Massachusetts Supreme Court recognized the right to same-sex marriage.

Professional Excellence: Mentoring and Networking

Don't let the somewhat stodgy name fool you. The American Inns of Court – an association of lawyers, judges, legal academics, and law students who share a passion for professional excellence – is one of the most successful legal mentoring organizations in the country. Founded in the late 1970s by Chief Justice Warren Burger and some of his colleagues with the purpose of promoting professionalism and ethics in mentoring for young lawyers, the American Inns took the model of the British Inns and made it fit the American legal profession.

Today, Penn Law’s Inn of Court offers camaraderie, education, and a chance for true relationship-building among a vibrant community of current and future members of the bar. Members of the Penn Law Inn meet each month for a cocktail hour, "breaking bread" over dinner, and a presentation that typically involves a mock case and raises hot legal issues of the day. Students work directly with judges and practitioners in preparing and delivering the presentations, which are eligible for CLE credit.

Recently, Judge Gene E.K. Pratter L’75 spoke about her experience as a member of the Penn Law Inn of Court.

Penn Law and Public Service

Penn Law’s William Burke-White, currently on public service leave at the U.S. Department of State serving on Secretary Clinton’s Policy Planning staff, is a Professor of Law and international legal expert whose research addresses issues related to international law and institutions, with particular interests in global governance, human rights, and international financial law.

He recently spoke with Penn Law’s Office of Communications about his work in government and a recently published groundbreaking State Department review of how the United States approaches diplomacy and international development.

Penn Law (PL): What attracted you to government service, and what contributions do you think legal scholars can make in international affairs?

Prof. William Burke-White (WBW): First and foremost for me is the opportunity to serve our country. There is no greater contribution one can make than to serve in government. And 2008 was a moment when the call to service and the chance to change things was quite extraordinary. So, for me, it was a simple choice when presented with the opportunity to bring both my substantive knowledge and my commitment to serve Secretary Clinton at the State Department.

Beyond my desire to serve, as an international lawyer I have seen clearly that governments have the biggest ability to impact the international legal system. From that perspective, there was a very practical reason to come into government. And, in the process, I’ve learned a great deal that will influence my scholarship going forward.

PL: You and your colleagues on the Policy Planning staff worked on the Quadrennial Diplomacy and Development Review (QDDR), which was recently released. What is it, and why is it important?

WBW: When then-Senator Clinton was on the Armed Services Committee, she watched how every four years the Department of Defense produces the Quadrennial Defense Review, through which the Department of Defense looks ahead and asks, what capabilities it needs to meet America’s military needs in the years ahead? That is something the Department of State had never done. And so Secretary Clinton wisely decided a year and a half ago that we should undertake a Quadrennial Diplomacy and Development Review to look ahead at the challenges of the future and build the diplomatic and development capabilities America will need over the next decade. One of the surprises in government, even in the policy planning office where we’re supposed to be looking ahead, is the fact that day-to-day events to take over. Whether it’s an earthquake in Haiti or demonstrations in Egypt.

Through the QDDR Secretary Clinton tasked us with the simple question: “how can we do better?” And the answer that the Review, in all its 251 pages, is that the U.S. needs to lead in the world today through civilian power as much as through military power. In a world of budget constraint, civilian power is far cheaper, but it is also far more effective.

Another fundamental change in our foreign policy in the last 20 years is the fact that every civilian agency, whether it’s the Department of Agriculture or the Department of Health and Human Services, is active overseas. All of the things the civilian agencies of government are doing, when brought together in the service of a unified plan, constitute America’s civilian power. The QDDR lays out a blueprint for how we can harness that civilian power to deliver the results America needs today.

PL: What does the QDDR say about the importance of the rule of law and international legal regimes and institutions, as aspects of US diplomacy and diplomatic efforts?

WBW: The QDDR is a capabilities review. It examines the capabilities we need going forward. One of those capabilities is building a global architecture of cooperation: elevating our engagement with multilateral institutions; strengthening the way we deal with regional organizations; and working better with rising powers. International law itself is not a focus of the QDDR, largely because multilateral cooperation today often happens in other fora such as the G20, which is not about creating international legal rules, but rather getting governments to harmonize their domestic policies. And so the focus of the QDDR is much more on getting international organizations to work, and work well, and changing how we work with regional organizations, rather than saying we need more treaties.

PL: But the phrase “rule of law” comes up a lot in the report, along with the themes of course of international development and institution-building.

WBW: Absolutely, and there are two fundamental things that Secretary Clinton recognizes in this report. The first is that development is an equal pillar of American foreign policy, alongside diplomacy and defense. And that we need to build the capability of foreign governments to be able to be our partners in solving collective challenges, so that they can take care of their own problems themselves. Second, Secretary Clinton recognizes that a conflict or crisis anywhere in the world, where a state is weak or failing, is a threat to us, and that we need to prevent those conflicts so we’re not always responding to them in more costly ways.

And lurking in both of those recognitions, is something that the reports spends a lot of time talking about, which is the need to build effective justice systems within countries. If you don’t have a local justice system that can resolve grievances, then conflict will fester, or even after there’s been a military solution, on the country won’t be able to transition toward long-term development. And so is the QDDR charts a course toward the US role in building effective justice systems in post-conflict environments.

In the past, American’s response has often been to build security capacity in other countries, - for example, providing military assistance or training. Perhaps the best example is Haiti, where we have spent a vast amount of money building a very strong police force. And today, in Haiti, the police force is the most respected institution, domestically, within the whole government. However, we have not been as consistent or effective in helping states build justice systems that work. Haiti’s justice system has among the longest pre-trial detention times in the world. Ultimately that’s not sustainable, because you can have a good police system, but if you can’t then prove people guilty or innocent, you don’t resolve the underlying problems. So going forward from the QDDR, our approach will be far more holistic—investing in all aspects of security and justice sector reform.

PL: How will your experience in government impact your research when you return to teaching? And what would you advise your law students who may be considering careers in public or government service?

WBW: My experience has transformed my scholarship as well as the way I think in some very important ways. It’s changed the way I think about international law itself. International law is based on state practice, what states actually do. And as a scholar who previously hadn’t been in government, it is easy to assume that everything a state does is the result of a conscious choice. One of the things you quickly learn in government is that more often than not, state practice is based on the fact that a decision was not made rather than that one was made.

Also, as an international lawyer, my experience has forced me to grapple with what international law means in a world of rising powers. Separate from the QDDR, the other major project I’ve worked on is a public report on global governance – how states cooperate in the international system. And through that process, I traveled to rising powers, including China, Brazil, South Africa, India, Japan, states in the Middle East, and and talked with them about the role of international law and how states cooperate. Likely my first major academic project when I return will take a serious look at how we create international legal rules in a world of rising powers – a world in which those powers’ interests are not always aligned and in which multilateral agreements are very, very hard to reach.

It’s not a sort of skepticism of international law, but a recognition that it’s much harder to reach international agreements today than it was when the international community was defined by the trans-Atlantic alliance that shared common values, even when interests divided.

In terms of my teaching, I have always been an idealist at heart. And my teaching will still have that note of idealism, but it will be grounded in the practicality of how international law actually gets made. It will recognize the bureaucratic process as a bigger part of that how government operates than I appreciated before coming into government.

And for students who seek careers in government service with an international dimension, my biggest realization is that basically every agency of the federal government—and even many state governments—are working overseas today. The Department of Agriculture had 22 pages of comments on the QDDR precisely because of all the work it is doing overseas. So, don’t confine your job search to the Department of State or the Department of Defense, but recognize that there are jobs that involve international work, and even international law, at every single agency of the US government.

My final piece of advice is that, particularly in the kind of career environment we have today, plotting a career that brings you both into government and out of government at different times along the way makes a great deal of sense. That if you do nothing but government, one could argue it’s hard to have perspective, but that finding a path that gives you the inside as well as the outside, that lets you bring new skills, new expertise, and new ideas into government, is essential.

 Careers and Fellowships: Appellate Advocacy