Faisal Kutty is Assistant Professor of Law, at Valparaiso University School of Law. He previously served as vice-chair and legal counsel to the National Council of Canadian Muslims. Kutty also co-founded a full-service Toronto-based law firm prior to shifting to full-time law teaching.
In 2010, 2011 and 2012 he was named as one of The 500 Most Influential Muslims (science, technology, medicine, law) by The Royal Islamic Strategic Studies Centre, Amman, Jordan.
Q: What first attracted you to the legal realm of human rights and civil liberties?
Kutty: My father was identified as a political activist during Prime Minister Indira Gandhi’s administration in the mid 1970s and one of my earliest childhood memories is having to run from safe house to safe house, until we were finally able to leave India. In university I wrote for the newspaper and became an activist on various issues which drove my interest in international law, human rights and civil liberties. My first published academic piece was a review of a book on human rights during states of emergencies, when nations believe that they can bend the normal rules and derogate from the rule of law.These experiences helped shape my in interest in human rights, national security and constitutional order. This of course took a life of its own after the tragic events of 9/11 when governments around the world – led by the United States – enacted anti-terror laws which deviated from the rule of law. My practice at the time focused on human rights, discrimination, national security and community advocacy and grew in leaps and bounds as a result.
Q: You spoke about 9/11. Boston was a different situation but is there anything about how that was handled that drew some red flags from you?
Kutty: Most of the mainstream media and pundits were much more responsible when it came to Boston, so that’s one of the positive things. On the negative side some commentators, policy makers and legislators kept reiterating that there was a huge problem of radicalization among Canadian and American Muslims. In fact, it’s a problem, but not to the extent it’s made out to be by some of these self-proclaimed terrorism experts. I teach an Islamic law course at Valpo and one of my non-Muslim students pointed out that right after the Boston bombing, somewhere else a number of people were killed, but the story was all but buried and got very little coverage. How is it that one issue is so sensationalized while other similar situations are minimized. If you analyze the statistics and the type of incidents, terrorism is made out to be a bigger problem than it is, partly to justify increased expenditures on law enforcement, intelligence gathering, national security and overseas operations. In the wake of the Boston bombing, I wrote an Op-ed on this issue in the leading Canadian daily addressing some of these issues (see below).
Q: What about the emergency waiver of the Miranda Rights and the declaration of the suspect as an enemy combatant, drew your attention?
Kutty: This is all part of the broader issue of trying to deal with potential national security emergencies by bending the rule of law. It is understood that even in our liberal democracies we may sometimes limit or restrict some personal freedoms and civil rights subject to the right checks and balances. Indeed, it may be necessary to do so sometimes during times of crisis, but how and when do we do it? The problem is the development of so-called “gray holes” which are voids produced by legislative or executive action and inaction, that allow democratic governments to get away with violating their own Constitutions and international norms. When you have prominent people justifying torture, defending drone strikes against American citizens without due process, etc., that’s worrisome. When you give power to a government and they use certain justifications without the appropriate accountability and checks and balances, then there is the risk that it will spread and creep into other areas. Take drone strikes, for instance. In early 2000 they were first used for limited surveillance and military support. Then after 9/11 drones were used to carry out a targeted killing in February 2002. Since then there have been more than 370 strikes with more than 3500 deaths, including targeted American citizens. All of this without any due process. More recently, law enforcement has started to use drones to spy on American citizens as well. So the suspension of laws during times of national security or what’s considered a temporary aberration, ends up slipping into a prolonged or permanent state. If we can use torture on suspects what’s the big deal about waiving their Miranda rights? What’s the problem with detaining them without charges? We don’t know where it’s going to stop; Americans have to start thinking about this on a broader level.
Q: Is there a particular issue happening within the human rights, civil liberties realm that the mainstream media or average citizen might not be aware of?
Kutty: Whenever the executive branch or some secret arm of the government is given unfettered power to “protect” the nation and they say “Trust us, we’re acting in your best interest,” we have to be worried. Drone strikes, ghost flights (where our governments make people disappear), rendition (outsourcing of torture) and other such practices violate many different laws and norms (both international and domestic), but some of us may have initially said: “Yes, but it doesn’t affect us.” But now that American citizens are fair game it may cause more of us to sit up and pay attention. While ethicists and some pundits might talk about the expansive nature of these dangers, the general public needs to start to pay attention to these issues as well.
Q: What are you working on now?
Kutty: Primarily I’m focused on teaching but right after the Boston bombing and arrests in Toronto of some alleged terror suspects, I wrote an Op-ed in the Toronto Star about getting the Muslim community to work with law enforcement and intelligence. How would that be possible? The article argues that in the Toronto case, the community was credited with passing on information to intelligence sources which led to the arrest of the alleged mastermind. So there is a need to win over the Muslim community. Unfortunately, given the way policies are shaping up in the United States and Canada many Muslims question why they should cooperate given the lack of trust and differential treatment. I am also working on a number of articles in the area of law and religion, particularly Islamic Law. This has become the rage with various states trying to ban the supposed use of Islamic law in American courts. From my perspective, it seems to be a solution looking for a problem. I think it is important for Americans to appreciate and understand what Islamic law is and why it does not pose a threat.
Q: In the four years you have been at Valparaiso Law what are some characteristics of the school that you value?
Kutty: For me it is the people, and I don’t say that lightly. The school is really focused on making people feel welcome. The diversity that they are striving to reflect in the faculty and student body is admirable. In addition, as long as I give priority to my classroom work and to students which is, of course, the most important thing in a school, I have full freedom to explore the issues that are of interest to me. Some faculty may disagree on many of the things I say and write, but they encourage me nonetheless. The academic freedom, supportive environment, the people, the diversity, the welcoming nature – are all things I value at Valpo.
Q: As a Lutheran institution how does interfaith collaboration play out among students of different faiths on campus?
Kutty: I believe the University, Campus Ministries, the International Student office and the various religious groups all play their part in making this a cooperative and accepting environment. Many of the groups go out of their way to interact with other groups. As an advisor to the Muslim Students’ Association I can say that Muslim students feel very welcome here. The university has tried its best to accommodate their needs in terms of prayer space, acceptance and encouragement. Last year when a Muslim student passed away, an interfaith service was held at the chapel and the majority of those attending were not Muslims. I’m on the Interfaith Council, represented by various religious groups, and our goal is to make all stakeholders feel welcome and to learn from each other on how to improve campus life for everyone.
Q: What words of wisdom do you have for your students who are graduating and will be pursuing their careers, or perhaps even first-year students?
Kutty: Think outside the box. Times and circumstances are different now and likely may change in the future. Don’t be constrained by conventional wisdom. Be persistent. You have to take a lot of no’s before you might get a yes. When I started writing Op-eds during my undergrad years, for instance, I accumulated hundreds of rejection letters. Eventually, my persistence forced a couple of editors to take the time to edit my pieces and return them to me with comments pointing out what I needed to focus on. Eventually my articles got published. Now my articles are routinely accepted for publication in major newspapers and publications. If I had given up, then the avenues would have closed. Similarly, when I set up my own practice after leaving a relatively large Bay Street (Canada’s Wall Street) law firm many people said it would fail because I lacked experience. Some even suggested that I must be crazy, but I did not let this influence me. I thought positively and grew the firm from a one-person operation to an eight-lawyer firm at its peak. So never take “no” for an answer. If the front door is closed, try the back, if that is closed then try the side, and if none of the doors are open then crawl in through the window. Just to be clear, I am not encouraging anyone to break and enter :)
Q: What would you say to someone on their first day as a professor at Valpo that are the characteristics of an effective law professor?
Kutty: Aside from the obvious knowledge of the field of law itself at an academic level, it also helps to be able to translate this knowledge to a practical level. I also believe that knowledge of human behavior is very important. Get up to speed on how to teach a new language because ultimately that’s what teaching law is about, especially the first year. Be passionate about the subject and teach it with the same passion and this will reflect in your work. Have compassion for students for the stage they are at in their lives and careers and appreciate the time pressures they are under. Often when I say to students “Look, I know you have a lot of things on your plate and I know where you are. I feel for you. I’ve been through that experience too,” they open up.
Have a sense of humility. Even if you think you know everything now, there was a time when you knew very little. Remember, many of the students enter with a lot more knowledge and experience than we have in areas outside of our own fields. Be approachable. These students are our clients and they’re paying fees to be here. They’re adults. They’ve been selected after having jumped many hurdles to get here and deserve to be treated with respect. Have a send of humor to laugh some things off, and bring humor into the classroom and discussions. Laughter is not only the best medicine but also the best ice-breaker.
Discussion with Rebecca Huss, Professor of Law
Q: I understand you will be taking on a new role in the ABA TIPS Animal Law Committee. What will your responsibilities include?
Huss: I will be the Chair of the ABA TIPS Animal Law Committee beginning in August 2012. My responsibilities will be like chairing any other organization. I will monitor the activities of the subcommittees, work to set policies for the committee, and help decide what the committee will focus on. I only have a one-year term so a lot of what the committee will be doing during my term as Chair are issues that I’ve already been working on. For example one of the things that we’re planning is a half-day CLE (Continuing Legal Education) program, on shelter law. That is an area of interest to a lot of people who do pro bono work. They might not otherwise do animal law work, but may volunteer as a board member for their local shelter or rescue organization.
Q: How long have you been involved with the ABA?
Huss: I’ve been involved since the animal law committee began in 2004. Of course I have been a member of the America Bar Association since I graduated from law school.
Q: What did it mean to you to be honored by the ABA TIPS ALC with the Excellence in the Advancement of Animal Law award in August 2011?
Huss: It was a great honor for me to be awarded the Excellence in the Advancement of Animal Law award because I have so much respect for the other recipients of that award. Previous recipients of the award are people that have been involved in animal law for many years and who were at the forefront of animal law. For me to be given that award by my peers in the animal law community really was incredible, it really was quite a privilege.
It’s interesting how much animal law actually intersects with other areas of the law. For example, Jeremy Telman, one of my colleagues wrote an article on a case that we study in our business associations class that relates to an animal law issue. It relates to the production of foie gras, and so he had the opportunity to analyze the use of shareholder proposals in a way that promotes animal advocacy.
Another example is that in animal law, we study constitutional law cases that they might have already looked at in their constitutional law class – but may focus on different aspects of the cases. In this last year we examined two recent Supreme Court cases: one was U.S. v. Stevens, which was a case that found a federal law that purported to ban the distribution of crushed videos (it is pretty unpleasant to talk about what they are) was unconstitutional because it was too broad. Another case that came out this year dealt with the issue of preemption. It was related to a California law that dealt with the slaughter of downed animals.
Q: Was it through your work with the ABA that you became the guardian of the dogs in the Michael Vick case?
Huss: No, that was totally separate. I had been on a couple of panels with a woman who at the time was working for the ASPCA. The ASPCA had been working with the federal government and had put together a team to evaluate all the dogs. They had thought that they would evaluate each of the dogs individually to determine if the dogs could be rehabilitated or the dogs were just too aggressive to handle. The ASPCA team found that all but one of the dogs had the potential, either through a foster home at the lowest level or a sanctuary of being rehabilitated. At that point then the federal government wanted somebody to help them with the rescue organizations. They didn’t want to try to place the animals without having somebody make recommendations to the court or help with that process. So the woman I knew from the ASPCA put my name forward. I didn’t know any of this was happening. Then the U.S. Attorney’s Office called me, essentially out of the blue, and asked if I wanted to act as a special master. After talking to my colleagues I agreed to do it.
It was a fascinating experience.
Q: Have you always had pets?
Huss: Well, like the over two-thirds of American households that have companion animals, I grew up with a family dog and I have dogs now.
Q: Have you ever been approached by any other associations like PETA?
Huss: One of the reasons I think the federal government felt comfortable asking me to ask act as guardian/special master, was that I don’t have any professional affiliation with any of the national animal welfare organizations. Personally, I foster for a local dog rescue organization but that’s not a national animal advocacy organization, and it is not involved in setting policy. I think that because I was viewed as independent was one of the primary reasons why the federal government thought I would be a good person to make a recommendation to the court. I wasn’t bound to, nor had any obligation to, any organization, so I could recommend what I thought was best without that potentially impacting my decision-making.
Q: What made you decide to join the law school faculty after working in a firm? Was there something that was most appealing to becoming a professor rather than staying at a firm?
Huss: When I was practicing both at law firms and in-house, I found that the aspect of practice that enjoyed the most was actually the teaching part of the job. It was teaching less experienced colleagues about issues relating to their work or essentially teaching clients what the law said and how it worked in order to help them achieve their goals was most rewarding to me. So that aspect of practice, the teaching aspect, was what inspired me to try to find a full-time academic position.
One of the things I liked about Valpo Law when I first started researching law schools, was that Valpo was clearly focused on the students and the students’ experiences. It has a strong reputation and culture of research, but it was very clear to me that they felt that teaching was going to be the most important part of my job.
Q: Do you have your own philosophy with your own classes? Do you try and bring in speakers? Do you try to immerse them in the doctrine? Do you have your own techniques or philosophies for your own classes that you’ve brought to Valpo?
Huss: Well it’s interesting because I teach very different classes. For example, I teach business associations which is a required course. For that class I have students who have a business law background and students who don’t have a strong grasp of what a corporation is and how it works. There’s a wide range of backgrounds and quite frankly interest level in the course. For that course, I focus a lot why this course is relevant to what the students want to do, whether you are going to practice transactional law or whether you think you’ll never deal with a corporate entity after you graduate – which is just not going to happen. As I tell people in that class, maybe you’re already on the dark side with me in corporate law or you need to learn enough about the dark side to combat it when you are in practice. That course is very different than my animal law course.
In my animal law course, I also have students from a wide variety of backgrounds and wide variety of experience levels with the area of the law. That course for many people is eye opening because often the presumption is that the law is much more protective of animals than it really is in reality. We start with understanding what the law is but in that course especially, I talk a lot about and try to inspire the students to consider what they think the law should be. I am very fortunate that I have been able to bring in several people who are nationally known to speak to the class. Not only do they speak to substantive areas of the law that are really emerging and on the cutting edge, but they also can inspire students to know that, although might not be their entire practice; they can indeed practice animal law after they graduate.
Q: Have you noticed a slight increase in interest in animal law in your years at Valpo?
Huss: Not just a slight increase, it is a substantial increase. I just finished my 13th year of teaching and I’ve been active in animal law for most of that time and it is amazing to me how much more interest there is in animal law. And not just at Valpo Law, but also across the country. From the time I started dealing with animal law issues to now, the number of animal law courses at law schools has increased substantially. There are just many more opportunities once you graduate with state and local bar associations in addition to the Animal Law Committee with the ABA TIPS section. There are more externship opportunities; there are more opportunities with non-profits. Although it is very competitive to get one of those jobs, there are just so many more opportunities than there was even five or ten years ago.
Q: Do you think you could identify a tipping point that really opened this up? Could it be a result of the digital media making these into national stories? Is it maybe that trend that’s causing people to pay attention or was it a Vick-like incident that you think maybe opened up more people’s eyes?
Huss: I think you’re right in the sense that because it’s easier for people to share, whether it’s on Facebook or other types of social media, that it’s much easier for people who have an interest in animal advocacy to get together. Before the internet was widely accessible to people, if you wanted to adopt a dog, it wasn’t as easy as going to Petfinder.com and typing in your zip code and putting in the breed of dog you wanted. You had to contact individual organizations. It is much easier now to be educated about things that are important to people. Also, I think in some ways it’s generational. Every generation that comes up is indoctrinated, so to speak, into the expectations of the community. It’s not that long ago that it was less common for dogs to be kept inside. Now not only are dogs kept inside, but they’re often times sleeping in our bedrooms, if not on our beds. That makes a difference in how people view their animals I think. Then they are curious about, well, if something happens to my animal what are my options? Is there legal recourse if something happens?
Q: Was there a time when you were growing up when you thought to yourself that being a lawyer was the thing for you?
Huss: My mother tells me that I started saying when I was seven that I was going to be a lawyer. I always knew I did not want to litigate but wanted to be a transactional lawyer. I knew enough about the law to know that and my mother also tells me, and this was of course before we had our first woman Supreme Court Justice, that I said at a very young age I was going to be the first woman Supreme Court Justice. Later in time, I had the opportunity to meet Sandra Day O’Connor and I told her that. She said she’d met a lot of women who also thought they were going to be the first woman Supreme Court Justice. [Laughter.]
Q: What was it about the law when you were seven?
Huss: I have no idea. I was seven. I don’t know what I saw. No one in my family was a lawyer. But seven is pretty young to decide to be an attorney.
I am not sure why I decided that, but there was never a time growing up that I didn’t think I was going to law school and going to be a lawyer.
Q: What about if you could be anything else besides a lawyer?
Huss: A librarian. There is actually a shortage of librarians now, so worst case scenario, I’ll go back to school and get another degree. I am maxed out on the careers after that though. Loving to read is actually an essential part to being a lawyer and one of the things that is challenging for some students is that they don’t read in the same way that people have read before. At least the students in the next generation because they are not used to having to read every word and it is sometimes a challenge for people when they get to law school to really have to read again rather than skim, or rather than limiting their reading to 140 characters at a time. That is something that I think really helps students in the summer before they start law school, read for pleasure, read anything, read science fiction, read mysteries, just get back into the habit of reading because once they get to law school, they are going to have to do a lot of it.
Q: Speaking of your ordeal with the Michael Vick case and your experience working with the media, was there was a single takeaway when it was over?
Huss: I think ordeal is a good word. It was more of an ordeal dealing with the media than any other aspect of the project. One of the things I took away from it was, my focus at the time was all about these particular dogs although people in the animal welfare community were telling me that this is going to make a difference. I kept being told this is really important: what happens with these dogs is going to make a difference. I think seeing afterwards what happened, specifically the fact that the final few states that didn’t have dog fighting as a felony finally got those laws passed; that the after next big Federal dog fight bust, the dogs weren’t automatically euthanized; that now it’s not uncommon for dogs to be individually evaluated regardless of whether they are on dog-fighting property or not. Also it was clearly not just me.
There were so many people that had to get on the same page, and so many people that had to lay the groundwork. To be part of a case that really did have an impact on dogs moving forward, in a way that I think I didn’t even recognize at the time I was working on it because I was so focused on the individual dogs and the case. That was really in some ways stunning and in some ways an amazing thing to be part of. Again, just like with other aspects of animal law, I really felt like it was a privilege to work with the people that I worked with on that case. The government employees were really incredibly receptive and worked incredibly hard to get the dogs out to the rescue organizations and of course the rescue organizations do the very difficult day-to-day work every day with those dogs and every other dog that comes into rescue and all the other animals that go through that type of process.
Discussion with Professor Rosalie Levinson on the Voting Rights Act and Affirmative Action
Q: In the coming months, the Supreme Court will be addressing issues such as the Voting Rights Act and Affirmative Action both of which have been in the news recently. What are your thoughts on the Affirmative Action case?
Levinson: I have been a constitutional law professor for 35 years and have watched the court change positions on this issue. But as recently as 2003 the Supreme Court upheld an affirmative action program at the University of Michigan Law School where race was used as a factor, but not a determinative factor in deciding admissions. The Court reasoned that the University had a compelling interest in admitting a diverse student body because this enriches the education for all the students. It is ironic, but Justice O’Connor, who wrote the opinion, remarked that she hoped that in 25 years we will have a society that has overcome the need for affirmative action. Of course it’s only been nine years since she said that and yet the Court has decided to revisit the issue. This raises what is always an interesting question for me: what has changed that would make the Court decide to hear it again? I certainly don’t think that we have overcome the negative effects of racism. Nor do I think that diversity is no longer a critical component in providing students a better educational environment. So the only thing that’s changed is the composition of the Supreme Court and Justice O’Connor’s replacement with the more conservative Justice Alito means that there may very well be five votes to reverse the 2003 decision.
Q: How does this debate affect VUL?
Levinson: Unlike the University of Michigan Law School, VUL is a private school not bound by the Equal Protection Clause of the Constitution. However, the court ruling may affect us because federal law bars private schools that receive any form of federal financial assistance, i.e. student loan money, from engaging in racial discrimination. This a critical issue for us because I think one of VUL’s key strengths is that we have been able to attract a diverse student body. That’s been one of our key goals for the past decade actually and we’ve been very successful as, I think, one-third of our entering class consists of minority students. We nurture diversity. We have very strong, active minority student organizations. We also participate in an American Bar Association Minority Judicial Clerkship program that exposes minority students to working as a clerk for state and federal judges. They spend three intense days at the ABA mid-year meeting, writing an order for the judges and learning what it means to be a law clerk, what the opportunities are and how to get there.
Q: You have many activities outside of teaching which keep you very busy. One of those interests is the Federal Judge Externship program.
Levinson: I am especially proud of the Federal Judge Externship which I started in 1982. It was our first externship at the law school and it came as a result of talking to some of the federal court judges in the area. We had two judges when we started in 1982 and now have ten federal judges in Hammond, South Bend and Chicago who participate. About 20 third-year students participate every year and, in addition, some of our top 1Ls and 2Ls secure positions during the summer. Over the years, many of the Federal judges have hired their 3L extern as their regular law clerks. The program has also helped students get jobs as clerks for State Supreme Court and Appellate Courts, as well as positions with big law firms. It’s very impressive to have this experience on your resume. Our program is unique in that we require students to complete two semesters, three credits each, 270 hours of doing research and writing opinions for judges and observing federal proceedings. It’s just a great learning opportunity for our students.
Q: That connects to the work you do on the faculty committee. It seems like a lot of the work you do, even when you’re not teaching, is to the benefit of your students.
Levinson: Yes. Certainly that to me is one of the most important things and one of the most gratifying things that I do. This is true of my role as director of the Honors Program, as well as my job as the Director of our Career Planning Committee. The latter serves as a liaison between the faculty and the career planning office. The faculty is very concerned that our students, like law grads across the country, face an extremely tough job market and we thought it would be helpful to have faculty work with Career Planning to make suggestions and offer our assistance. The faculty has been involved organizing the alumni mentor database, personally inviting alumni who have served as our research assistants or who we’ve helped mentor and asking them to serve as career mentors for our grads and current students.
Q: It’s obvious that you’re extremely passionate about the law and in turn the role of the professor. When did you know that this is what you wanted to do?
Levinson: It’s a long story but very, very briefly. In the late ’60s, when I was in college, few women went to law school. My husband joined the Army and because of basic training, was going to miss his first two weeks of his third year of law school, so I went to class for him. I was in a PhD comparative literature program and had a master’s degree in French, but the following year I switched to law school.
Q: Is there anything that has changed on campus that maybe people wouldn’t even know unless they were there 30 years ago?
Levinson: Yes. There are many changes. When I started there were 12 faculty members, one dean, and one secretary. There were no women faculty. In fact, I was the first female faculty member at VUL in the 20th century. Another major change is the huge increase in experiential education. Originally we had one clinic, a Federal Courts Clinic. We now have nine clinics. I started our first extern program about 30 years ago. We now have close to 100 different externships available to our students. Add to that several mock trial/moot court competitions, and you can see that students have the opportunity to experience many diverse areas of the law while they’re here in law school. This is a huge change, and a great improvement in legal education.
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Professor of Law, Mike Straubel
Q: You are considered a preeminent legal expert in the field of doping. How did you get into sports law?
Straubel: Well, I have had a general interest in sports and I’ve been competing for a long time. I still compete. There were a lot of interesting cases developing in the late 1990s, early 2000s, involving doping, particularly in the track and field world, which really caught my interest. I started doing some research on these cases and I saw an international aspect to a lot of it. At that time I was teaching public international law and international business transactions and my LL.M is in the area of international law. So those two things combined to pique my interest in these cases. I did a great deal of research and wrote an article or two. That was the transition to a real interest in sports law. Then, as part of teaching international law we put on a couple of conferences – two of which involved the international aspects of alternative dispute resolution in the sports world, and particularly the anti-doping world, because those were the areas that were catching a lot of attention at that time.
Q: How did the Sports Law Clinic come about?
Straubel: In 2005 the Law School put on an ambitious conference on Sports Law. At that conference we spoke with John Ruger, the U.S. Olympic Ombudsman about the many U.S. Olympic athletes who could not afford representation and therefore went unrepresented in all kinds of sports law matters. So, Dean Conison and Dean Vandercoy saw an opportunity and we created the clinic to serve that unmet need.
Q: You took three students from the Sports Law Clinic to Torino, Italy for the 2006 Winter Olympic Games and provided free advice to athletes in need of some type of legal support. What types of questions were most common?
Straubel: It was an experience of a lifetime for me and the students. Fortunately no U.S. athletes got in trouble and needed our help, but we did speak to some athletes about anti-doping questions and related matters.
Q: The U.S. DOJ has had a number of doping-related perjury cases flop in a somewhat embarrassing manner lately. Barry Bonds and Roger Clemens come to mind as two recent examples. Why do you think the DOJ is failing to win any of these cases and should they perhaps try a different route of enforcement?
Straubel: The DOJ, when it brings criminal charges against an athlete is up against several hurdles. First, perjury is a very hard charge to prove because the government has to prove a knowing and intentional lie. Proving intent is always hard. Then, famous sports figures are often seen as heroes. Heroes are hard to convict because juries give them the benefit of the doubt. USADA [United States Anti-Doping Agency], on the other hand, when it charges a doping violation, does not have to prove intent and it legally has an easier burden of proof then the government in a criminal charge. That makes USADA’s job easier.
Q: Does the perception of doping seem to differ based on the sport?
Straubel: There does seem to be a different view and attitude by the public toward doping in some sports like cycling and track versus sports like football. Football seems to get a pass. The public, or at least football fans, are not disturbed by doping like cycling or track fans are disturbed. There might be something about the culture or nature of the sport that causes that difference.
Q: For those athletes being caught for doping in London, what is the most likely drug being used? With strategic cycling, how likely is it for an athlete to be doping and still pass a blood test?
Straubel: The most used drugs will fall into three categories: stimulants, steroids, and blood boosters like EPO. To use a banned substance and pass a test, the athlete will likely have to cycle off the drug in time for it to clear their system before testing, take the drug in doses small enough to avoid detection, or find a drug that testing does not yet detect. All of these methods require planning, technical sophistication, and resources. The successful doper is likely well financed.
Q: Will it ever stop or will people always be looking for an edge? Even with positive tests trending downwards, is it likely that there may always be a minority of well-funded, savvy individuals who may have the resources to beat the system?
Straubel: Some athletes, hopefully a minority, will always see doping as part of competing, and will do anything to win. But as the testing procedures get more thorough and effective, the cost of cheating will go up and that alone will deter some. I think some of the athletes that get involved in doping rationalize it. They don’t see it as cheating, but otherwise see it as just another aspect of competing: like finding the best training techniques and plans, they are searching for the best drugs. They see themselves as being smart competitors.
Q: You’ve been at Valparaiso Law for almost 30 years. How did you find yourself at Valpo and what’s kept you around?
Straubel: After I finished my LL.M. at McGill in Air and Space Law, I started exploring teaching and Valparaiso had an opening. I had interviewed at a couple of schools, but the size of the community and the size of the school attracted me to Valparaiso. I turned down a couple of jobs with bigger schools in bigger cities, just because I liked the size of the community, primarily, and the school. I still enjoy the size of the school and community. Plus, I have the perfect job description here. I get to teach sports law, practice sports law, and coach. I don’t think I could find that combination anywhere else in the world.
Q: How do you balance being the longest tenured coach at Valpo, competing in triathlons, and being a full time professor?
Straubel: It is hard. There are long days. My day usually starts around 7:30 and ends around 6:30, and weekends. I have to give up Saturdays, sometimes Sundays, for coaching and sometimes catching up with the work that I do for my regular day job. So it is kind of demanding. But there’s a benefit or synergy from doing both. I think coaching gives me certain insight into what goes on in the sports world that I otherwise wouldn’t have that I can hopefully bring to the classes and to the cases we handle. And the reverse, teaching helps me understand the athletes and their demands as student athletes in school. I see the same attributes that lead to a successful cross country or track and field athlete working in the classroom with the law students. The motivation and the discipline, that’s what makes a good law student, that’s what makes a good cross country runner. I sometimes find myself trying to figure out how I can motivate the students in my classroom the same way I try and motivate the athletes on my team to excel and perform well.
Professor of Law, Bernard Trujillo
Q: The presidential election is now behind us. Immigration wasn’t as significant of a topic in the debates and surrounding discourse as some were expecting. Moving forward, what would you hope to see as far as immigration reform and what do you actually expect to see happen?
Trujillo: I think all of us who study or follow immigration are hoping for comprehensive immigration reform. I think both sides of the aisle and most people in the industry believe that the system we have now, especially as it pertains to labor migration and particularly Mexican migration, is broken. It really doesn’t meet the needs and realities of the 21st century and we’ve really been locked in a stalemate for several years. So the hope, and we’ve had this hope for a long time, is that both sides, with some leadership from the President, will sit down and try to amend the INA, the Immigration and Nationality Act, so that the rules meet with reality, and actually regulate migration.
Q: Exit polls show a dramatic increase in support for immigration reform. Does that indicate that perhaps not only do we have an economic need and a political need, but that more people are behind this than ever before?
Trujillo: Yes, definitely. I think the numbers are really quite encouraging. One of the things I noticed in the numbers of the exit polling is the increasing importance of non-Whites, non-traditional voters and I think both parties are quite eager to position themselves to say, yes, we’re here to serve that population. I noticed they were tracking the numbers of both Latinos and Asians and both of those populations went very heavily for the President. Everybody is paying attention to those numbers and I think the Democrats want to keep the advantage that they’ve established and I think the Republicans would like to get a piece of that pie.
Q: Besides immigration, what other areas within your expertise do you expect to gain traction in the next months or years?
Trujillo: With bankruptcy, one thing that’s notable is the election of Elizabeth Warren to the U.S. Senate representing Massachusetts. She is, I would say, the preeminent bankruptcy law scholar, I use her book, which is an excellent book, when I teach. She’s a professor at Harvard Law. Her work is primarily in the bankruptcy and consumer finance field and is quite significant. She was in charge of TARP. She’s been responsible for a lot of important initiatives protecting women and children in bankruptcy. It is exciting that there is now a legislator who knows this stuff as well as anybody. In 2005, we saw a big round of amendments which favored lenders over consumers after years of lobbying by banks and it’s possible that we may see some revisiting of the bankruptcy statute. I see Senator Warren at the head of those efforts.
Certainly immigration is a big deal. It would be difficult, but I think quite possible and important to have bipartisan legislation that’s comprehensive. Both sides now see how much of a no-brainer it is to proceed with the Dream Act. That’s something that President Obama tried to deliver unilaterally through a device called deferred action, which is obviously not legislation. It’s essentially an assurance by the executive that they won’t prosecute people who are out of status, but it’s an uneasy resolution to the issue. Both sides — Obama on one side and Rubio, a senator from Florida for the Republicans – should have a meeting of the minds about the proper resolution for young people who are out of status typically through no fault of their own and their proper integration into U.S. society.
Q: Your book, “Immigration Law and the US-Mexico Border,” was honored at the 14th Annual International Latino Book Awards as 1st Place in the Best Reference Book in the English Category. Tell us a little about how this book came to be.
Trujillo: The book came to me through the generosity of co-author Kevin Johnson, dean at the University of California at Davis Law School and a very prominent scholar in the field of immigration. The book is designed as an entry level text. We also hope it could perhaps supplement a law school course. It’s something that you could hand to anybody in the general readership who’s interested in learning more about migration in general, but migration particularly as it applies to US/Mexico relations which both Kevin and I specialize in and we both believe is really understudied. Kevin and I were actually surprised when we looked around the literature and didn’t see a book like it. We thought this book should have been written a long time ago, so we were happy to put this volume together and get it out there. The reception has been quite good.
Q: As someone who is an expert in quantitative analysis of legal systems, how do you integrate data into your approach to the law?
Trujillo: With quantitative analysis, we try to find something we can measure or count. If so, then we can use all that mathematics and statistics have to offer. The hard sciences, and social sciences like economics, have been quite heavily quantitative for a long time and I think we’re seeing a need for all disciplines to have some working knowledge of basic quantitative reasoning. I introduce my students to basic quantitative analysis, how to think about things quantitatively, how to use basic ideas from fields like mathematics and applied mathematics, such as statistics describe things. So if it’s about migration we want to know exactly what we’re dealing with in terms of who’s coming from where to where and what are they doing when they get here. Once you have that definition, you’re in a position to stand back and observe structures, certain things that hold together and certain things that really aren’t necessary and can be ignored with the problem still being properly identified. So I’m a big fan of quantitative analysis.
Q: What are some characteristics of Valparaiso Law that might not show up in the U.S. News rankings?
Trujillo: One thing that I think captures a lot of what’s unique about this law school is this idea of teaching law as a calling. When I heard that back before I even joined the faculty, it hit me as quite interesting. When I came and started to work with the wonderful faculty here, I began to see it in practice. What does it mean? When one practices law one is, in a sense, responding to a call. We’re not doing something that’s our own initiative, that’s our own idea, that’s our own creation, that we’re responding to the call of something else or someone else. I find it quite compelling. It’s something that I try to integrate as an idea that orders some themes and materials when I teach. The nature of this discipline is really quite unique. We are at the service of people in a very important way and I think it’s continuous with the fact that attorneys are not very well regarded. A lot of people have very low opinions of lawyers, but they also have low opinions of nurses and janitors and people who are also very much at the service in a real and important and indispensable way, so I’m quite pleased with this idea of law as a calling. I don’t know how you measure it or how you communicate it to a news magazine.
Q: What is some advice you would give to current law students?
Trujillo: I think it’s important that they be flexible. When they embark on the vocation, things are going to change. The demographics are changing. The profession is changing. Things will always be changing. I think we see more rapid changes now than perhaps we have in the past. Commit to the core, but be flexible.
Associate Dean for Faculty Development & Professor of Law, D.A. Jeremy Telman
Q: What do you think is special about Valparaiso Law that doesn’t necessarily show in the rankings:
Telman: We are blessed here with unbelievably gifted teachers. Now, this is something that every law school thinks they have. But what really brought home to me just how truly extraordinary the teaching is here, is that every year we get student evaluations. I do pretty well, but at Valpo I’m kind of the middle of the pack. But last year, I visited another law school and I was a rock star. The students had never experienced teaching like mine. The students and other law professors would come up and tell me the students really love me. “What is it that you do?” they would ask. That really brought home to me how special the quality of teaching is here.
Also, I really believe that we have an unbelievable setting for a law school here because law school is a completely transformative educational process. Your brain has to be re-shaped and it’s an extremely intense process. You want as few distractions as possible, so Valpo is a great setting for the first year of law school. But by the time you’re in the second year of law school, you want to break out of the cloistered setting. We’re an hour from Chicago which means that our students, when they have time to explore, can do that very easily in Chicago. Also, by the second year, you’re looking for interesting experiences and we’ve got one of the great cities in the world, just an hour away full of all sorts of legal opportunities for our students. So it really is the best of both worlds being here at Valpo but within striking distance of the city.
Q: You are responsible for the faculty workshops held in Valparaiso and in Hyde Park. Besides just faculty growth and development, what are other goals that you hope to accomplish?
A: I want to build community; an identity. That’s my goal. So with three workshops planned for this year, we have 30 regional faculty members who will come here or will come to our Chicago, Hyde Park venue. And what we’re doing is unique. There will be six papers discussed with six people who are not the authors to lead the discussion. So 12 people come, and they get the papers two weeks in advance and the participants come having read the paper – and you have to have read the paper because it will not be presented to you. The 10-minute introduction is going to be just that, a summary and a critique and an invitation to the conversation. So each paper gets a 45-minute session which is three times as long as you get at a typical conference. (You’re usually on a panel and you get 15 minutes which is not long enough to present a paper.) It’s really a unique opportunity to get substantive feedback from your peers and at the same time an opportunity to socialize with your peers. These things are intense and they’re fun. It’s a good way to build community and to introduce our faculty members to other faculty members, to build ties, to make connections, and hopefully, it will lead to a lot of reciprocal invitations.
Q: Could you tell us about the various lecture series that you oversee at Valparaiso Law in your role as Associate Dean for Faculty Development?
A: We now have five lecture series: Tabor, Seegers, Monsanto, Indiana Supreme Court and Martin Luther King Jr. Martin Luther King is more recent and Tabor, Seegers and Monsanto are all endowed lecturers. Tabor focuses on legal ethics, broadly defined. Law students have a mandatory course in legal ethics — we usually call it professional responsibility — where you learn basically how not to avoid disciplinary board actions of your state bar association. But the Tabor Institute is more about ethical lawyering in general and not just about professional ethics. So Tabor has been going on for 20 years and we’ve had all of the big names in legal ethics come through here.
The Seegers lecture is on jurisprudence, and perhaps because I’m something of a legal theorist, this one, to me, has always had the biggest draw, because we’ve had absolute luminaries come through. This year we’re having Brian Leiter, who is not just a famous law professor, he’s a famous intellectual, equally well known for his scholarship and for his blogging. He’ll be speaking about his main scholarly interest, which is jurisprudence.
The Monsanto lecture is about torts so we always have that one during the spring semester when all of our first-year students are taking torts.
This year we’re having our Indiana Supreme Court lecture. Frank Sullivan, who was on the Indiana Supreme Court and was one of the people whose idea it was to have this lecture series, is now retired from the court, so we invited him. Finally, we’ve always had a week of activities associated with Martin Luther King Day and my predecessor, JoEllen Lind, initiated a more high-profile lecture associated with that week of activities.
The key for these lectures is that they’re not just lectures. They enable us to bring really cutting-edge scholarship to the law school, and we don’t let the speakers just give their lecture and leave. Thursday afternoons we have a public lecture that ends up getting published in our law review, and I think this is one of the main reasons why our law review is so highly ranked – we have these endowed lecturers that attract really top-notch scholarship which then gets cited a lot.
So, after the public lecture, we have dinner with the speaker on Thursday night. They stay over on Thursday night and then on Friday they have a colloquium with the faculty.
Q: On November 9th, the Law School is hosting a conference titled: “Exploding Prison Population and Drug Offenders: Rethinking State Drug Sentencing.” Could you tell us about this?
A: As the Associate Dean for Faculty Development, I like things to come from the faculty. It’s important to have major scholarly events, and I prefer for the faculty to really be the initiators and that’s certainly the case with the drug sentencing conference. My colleagues who do criminal law: Derrick Carter, Geneva Brown, Dave Vandercoy, Del Wright, Ivan Bodensteiner, Sy Moskowitz, came up with the idea along with JoEllen Lind. We tried to refine what the idea was and decided who we wanted to invite so this conference is special and different from other conferences that we’ve done or that other law schools do in that it’s really just a kick-off to a campaign for reform of state drug sentencing laws. That’s why, if you look at the list of invitees or people who are presenting, it’s not just a handful of academics. We’ve got judges, including a drug court judge and a federal judge from Wisconsin, we’ve got public defenders, and we’ve got practitioners, a clinical law professor, and a legislator. In fact, our legislator is the minority leader for the Democrats in the state of Indiana. The idea is to generate ideas and buzz and to use the momentum from the conference to set up a task force to work on either legislation to change drug sentencing laws in Indiana or model legislation that we would offer to any state.
Q: You are the editor of the Contracts Prof Blog. Your Jane Austen contract law post was shared in a lot of places. Tell us about incorporating pop culture into teaching.
A: I have a wonderful colleague on the contracts prof blog, Nancy Kim, who’s at California Western Law School, and she’s like that kid in the Sixth Sense except instead of seeing dead people, she sees contracts everywhere. And that’s what you become like when you’re constantly moving through my world and seeing things and thinking, “Oh, what’s the contract angle on that?” So I like to read 19th century novels. Actually I’m lying. I don’t like to read them, I listen to them in the car and when something pops up, when a contract pops up I’m delighted. So it happened a few times in Jane Austen. I think there’s a Vanity Fair one that I came across, some Dickens, so yes, and that’s just reading. When I read the newspaper every day, one of the things I’m doing is looking for fodder for the blog. But I also think even if I weren’t a blogger, it’s very important as an instructor to make the subject matter real for the students.
Six years ago Justice Scalia was here, and he gave a talk about how one can see the Constitution as being akin to a contract, and one of my colleagues in the theater department was very angry about this because he thought that Justice Scalia was making the Constitution, which he viewed as a political document, into some sort of dead legal text, because my colleague in the theater department said most of us have never been privy to contracts in our lives. And that’s precisely the attitude that I’m combatting because you cannot avoid contracts. Contracts are everywhere. You’re binding yourself to a contract every time you click ‘agree’ on a website and invariably there are all sorts of hidden terms associated with that clicking of ‘agree’. And I want to bring home to my students just how much a part of their lives this is, and most of the contracts that they’re a party to are contracts of adhesion, that is to say, some party with superior knowledge and superior bargaining power slapped a form in front of them and they had no opportunity to bargain or negotiate. All they can do is sign and they’re still bound by those terms, and that’s a basic thing that they need to know.
Q: Can you talk about other upcoming events?
A: We’ve got our law review symposium, which is in honor of Justice Randall Shepard who just stepped down as the Chief Justice of the Indiana Supreme Court and that one is on the future of legal education and especially the diversity of legal education. So I think that one is extremely timely given all of the criticisms that are being leveled at law schools. This is an opportunity for us to weigh in on those issues while also putting our little spin on it since I think we’ve distinguished ourselves through our ability to promote diversity among our student body and thereby promote diversity in the legal profession. Most of the papers from this symposium are going to appear in our law review. I can’t overstate how important that is in terms of our ability to attract scholars who otherwise wouldn’t submit to our law review.
Next year our big conference is going to be a joint project on law and religion. We were approached by the editor of the Journal of Law and Religion which is the leading peer-reviewed journal on the subject. She found out that we were establishing this partnership with the Lutheran Theological Seminary in Chicago, and she suggested that that would be a good setting for a conference. We’re also contemplating establishing our own institute on law and religious aspects. Capitalizing on our strengths in that area, we have Zachary Calo, Faisal Kutty and more senior people who certainly have thought about these issues: Ed Gaffney, Richard Stith. So I think we have a critical mass there that could be the basis for an institute. If all goes well, this conference may indeed be the kickoff for our new institute.
Q: What characteristics make a law professor truly effective in your opinion?
A: A law school needs people who are good at all sorts of different things and it’s hard to be good at all of them. There is teaching, there is scholarship, there is mentoring and placing students, there is working on law reform. There is getting involved in university or city or county governance. So an effective law professor is somebody who’s good at some combination of those things and nobody is good at all of them. And similarly, with teaching, there are a zillion ways to be an ineffective teacher and about 10 ways to be an effective teacher and you can’t fake it. You have to find what works for you. So I have colleagues who teach in ways that I could never teach. I have colleagues who are strict Socratic, who call on one student repeatedly over and over again until that student is able to cite the law and get it right. I can’t teach that way. I’m too obsessed with losing students so the way I teach is infotainment. Basically, I try to keep up a constant patter of jokes and pop culture references so that I can keep student interest going. A lot of my colleagues are very creative about group work, getting students involved, having students do demos, role playing. It doesn’t work for me but I see the way it works for them. There is a story about how Gershwin went to Arnold Schoenberg to ask Schoenberg to train him to write music, and Schoenberg responded, “Why would you like to write music like Schoenberg? You’re Gershwin.” And I really think teaching is like that. We’ve got a lot of exemplary teachers here and there’s an extraordinary diversity in the way they teach.
Q: What is some advice that you’d give to your students here at Valparaiso?
A: I think it comes down to five things. I give it unbidden and I give it repeatedly. First, is that most students can’t be passive. The whole point of the pedagogy of legal education is that we have to force students to be able to, and we have to give them the tools so that they can learn on their own. Too many students come out of college expecting to be shown the answers, to memorize the answers and then to regurgitate the answers, but when they go out there and practice, not only don’t you know what the answers are, you don’t even know yet what the questions are. Your client just comes and tells you a story and you have to translate that story into legal issues. Or your client wants to do a deal and your client doesn’t know what legal hurdles need to be overcome before she can complete that deal. So you can’t just be a passive receptor of information in law school.
The second thing I tell them is it’s very sad, but they have arrived at the time in their lives when excuses no longer matter. If they’re not in class, I don’t care why they weren’t in class. And the reason I don’t care is because their bosses aren’t going to care. If the brief is late, the brief gets bounced. It doesn’t matter that you had a car accident or that you had a head cold or that you were nervous about your cat. None of those things matter.
After that incredible bummer of advice I tell them, number three is that they have to stay positive, and this is especially vital when you’re interviewing. I know from experience on both sides of the interview chair that nothing good comes out of saying anything negative about any experience, past or future. It has to become an outlook that everything that you’ve done, you’ve done for a reason and you benefited from, and all the people that you’ve interacted with, that you can find something positive in those interactions and that’s what you have to exude going forward: that you are a person with a positive outlook who is optimistic about your own possibilities and your own abilities.
The fourth piece of advice is very specific to my law students which is they have to distinguish themselves and it relates to not being passive. Do something! Join Moot Court, join mock trial, join the mediation team, join International Moot Court, get involved in the Student Bar Association, go out and get a killer externship. You’ve got to have something on your resume that says I have this unique set of experiences and unique skill set.
And the final thing I say is that a lot of our students come with a relatively narrow job prospect; that is, they want to do a particular kind of law. And my experience in the law is that it doesn’t really matter whether you’re doing art law or immigration law or transactional law, it’s all law and so you’re not going to be happy in your lives as lawyers regardless of the subject matter unless you love the law and that’s what you’ve got to learn how to do in law school. You’ve got to learn to be interested in legal problems and in legal approaches and dare I say, even in legal theories because it’ll help a lot with loving the law.
Find out more about the Associate Dean for Faculty Development & Professor of Law, D.A. Jeremy Telman.
Congratulations! As a new law student, you are beginning what will be an exciting academic and experiential adventure. It is important for you to develop the qualities and skills that will help you succeed at Valparaiso Law and in your legal career.
The development of these qualities is fully within your control and transcends your past experiences, including your GPA and LSAT score. By following these recommendations, you are fostering a proactive approach to law school and building a foundation for success in the profession:
- Build relationships, build your network – Your fellow students are your current and future colleagues. Appreciate that, along with your law professors, they represent your primary network during your years in law school. Treat all with consideration and respect not only because you want the same in return, but because they can and should be a key resource throughout your career.
- Develop your lawyering skills – This is the time to lose your fear and learn how to speak well and authoritatively in front of others. Successful law students are courageous—they recognize that law school is a laboratory and they experiment fearlessly. Experiment and work to master your verbal skills, including active listening. And read-read-read, even when it means you exclude other activities (like texting and TV!). Most importantly, determine to become the best legal writer and researcher you can become—these are enduring skills that you must seek to build throughout your career. Now is the time to master the basics.
- Acquire the skills of an interdependent problem solver – The greatest intellectual challenge entering law students face is understanding, analyzing, and articulating foundational legal concepts. Be a savvy law student—one who quickly realizes that, in addition to individual study efforts, it is vital to work in groups to problem solve. By doing so, you can develop insights, knowledge, and mastery that expands what you acquire through independent study. Many of our most academically successful law students have not entered law school with the highest GPAs or LSAT scores but they have actively participated in group problem solving to assist them in their mastery of basic legal concepts.
- Be goal driven yet flexible – As you keep the end goal in mind, attaining your JD and launching your career, remain open to opportunities that can unexpectedly appear. Weigh these possibilities and pursue them, even if at first glance they do not fit into the your chosen area of interest. For example, if you’re set on a career in business law, don’t overlook the broadened perspective an externship with a judge can afford you.
- Keep learning – You have chosen the law: as a rooky professional, it is vital for you to stay current with new research, ideas, and changes in the field. Enhance your learning by reading law publications and participating in career-related activities. By joining the national ABA and your local ABA chapter (either in northwest Indiana or in your home region), you will have access to a wide range of publications and events. Not only will you receive ABA updates and news but you will have opportunities to network and build relationships with practicing attorneys.
- Pursue career development opportunities — Proactive law students accept that the legal job market is highly competitive and they need to take full advantage of career opportunities while in school. Decide that you will draw on every resource: the knowledge of faculty, the experiences of alumni, other attorneys and law students, and the assistance of the Career Planning Center. Use the resources of the Center early and often. In your first month, complete and regularly update your profile and resume. On an ongoing basis – weekly if you can – review, research and, when able to, apply for the externships, internships, and work positions presented. Develop a professional on-going relationship with at least one of the Center Directors—seek their advice, listen and take notes, network with them, and regularly discuss your action plans with them.
- Expect to be transformed — As Aristotle famously wrote: “We are what we repeatedly do. Excellence, then, is not an act, but a habit.” Decide that you will develop new habits of excellence as you pursue your law degree by:
- Directly engaging in the new ways of thinking and communicating that the law curriculum demands;
- Experiencing a wide range of academic, community, and profession-related activities where you make meaningful contributions;
- Building and nurturing a lifelong network of professional colleagues;
- Embracing the fact that your life will be changed in more positive ways than you can possibly imagine.
Law school will reshape the way you think and open many new doors for you, personally and professionally. Follow these few suggestions and you will be well on your way to a fulfilling and successful new career.
July 10, 2012
Q: Professor Carter, you make an annual pro-bono trip to New Orleans with students. How did this get started and what made you pick New Orleans?
Derrick Carter: The annual New Orleans trip began in the aftermath of Hurricane Katrina when the nation was seeing the distressed state of the region, and in particular the city of New Orleans. Many of our law students traveled there to work on rebuilding homes, as did I. I took my son and we worked at a Lutheran Association to tear down homes and rebuild them, which eventually worked its way into doing pro-bono legal.
After Hurricane Katrina, New Orleans made some changes to their legal system including a shift to a centralized public defender system. Before, when it was entirely contract, different attorneys would handle cases for the poor. After centralizing the system, we saw so many new attorneys who barely knew what to do. They needed a lot of help. Many of the buildings down there, the jails even, are still flooded. It’s harrowing to see.
I first got the idea for this trip after discussing the matter with several law students. As a former Michigan public defender myself, I thought, why don’t we simply reach out to see if they can use help? So that’s what we did. Each year I have approximately 25 students meet me there. The trip usually occurs during spring break, and sometimes in the summer. The trip this year had about 24 students and they worked hard. That’s the key, they have to work hard. I look for proficient students, who are accomplished in criminal procedure. Our aim is to get work done within 24 hours for the attorneys. We’ll conduct research, write briefs, perform investigations, whatever they need, in a very short span. That has become our claim to fame, and that’s why they love us in the New Orleans public defender’s office.
Q: Do you take students on other trips? Is getting them outside the classroom part of your philosophy?
Derrick Carter: Absolutely. In my classes the students have to taste the doctrine; they need to breathe light into these academic doctrines. Frequently, people say that with classes, they’re either practical or academic. In my opinion, it’s both. We’ve spent time in Indianapolis where students get a firsthand look into the entire criminal justice system. I’ve taken students everywhere from the governor’s office to the Supreme Court. Students see the system from all angles – from public defenders to prosecutors to federal court. I’ve actually taken students to view autopsies in Chicago. For my students, this investment of their time and energy promotes their own individual discovery and their own ideas. That’s the beauty of it all. It’s quite symbiotic.
Derrick Carter: Yes, this is the City of Chicago allowing me to bring my forensic students into the actual room while they’re conducting the autopsy. You’re standing right next to the bodies. Now, of course, we are studying how to acclimate them. It’s not a lark, because we’re studying pathology, the causes of death, but that trip is memorable. For those students that study ballistics, we take them to a gun range and then it’s off to the Indianapolis City Police crime lab.
Students also hear from Indianapolis medical examiner, John Pless. This semester we introduced the students to two DNA experts and later that week, they witnessed a polygraph demonstration. Valpo students truly see and hear it all.
Q: Is this a philosophy that the entire university subscribes to?
Derrick Carter: Each law professor at Valpo has their thing, their niche, something that they invest their energy in. There’s one professor who has a family law practicum, where he teaches family law and takes students to family court. There’s Professor Ed Gaffney, who has done two documentaries, the second one being on the Holocaust. There are two civil rights professors – Ivan Bodensteiner and Rosalie Levinson, who have written several influential books. Ivan is Mr. Civil Rights in the Midwest. Valpo as a whole has that friendliness, the opportunity to get attached, get engaged with professors, with the legal community, the social community, religious community, wherever the students’ drive leads them.
Q: Is this the way forensics is taught in other law schools? Are other students visiting ballistics labs?
Derrick Carter: No. In fact, forensics isn’t taught in many law schools. Very few schools encourage professors to take students outside the classroom. It takes so much time and energy. In my trips, I don’t even use a school bus. I just tell my students “meet me in Shiloh, Indianapolis, DC, New Orleans,” and they do. To me, that’s a story in and of itself. One student took a 30 hours bus trip to New Orleans.
Q: Are you seeing an increase in interest in forensics?
Derrick Carter: Yes, and people think it’s because of TV shows like CSI, but it’s not. Forensics is growing because of DNA. DNA has undermined the state and federal criminal justice system. They’re discovering through DNA that they’ve done numerous false confessions. They’ve done false eyewitness identifications. We can’t trust what we’ve relied on for years to convict people. The number of crime labs that have discovered that their drug tests have been incorrect is staggering. The reliability and the trust these experts had accrued over years have been found to be inaccurate. With arson, you can no longer rely on arson investigators to identify the cause of fires. A whole series from the National Academy of Science brought into question the reliability of fingerprints.
But this has also resulted in an increased in collaboration. It’s wonderful to see how this new criminal justice system is about working together as much as it is about fighting and advocacy, prosecution against defense. Those who go into forensics really want to know is the truth. In my forensics classes, the student isn’t the star, the lawyer isn’t the star; the science is the star.
Q: What first got you into law, and what drew you into public defense and forensics?
Derrick Carter: There are so many reasons why people get into law. It could be because you like politics, you might like debate, if you’re interested in making a difference in social issues, the list goes on. One thing I have noticed is that when you go anywhere around the world and you hear someone’s a lawyer, you know you’re going to have a pretty intelligent conversation. At the very least, you’ll hear some interesting insight into something. What surprises me is the number of students who come to law school not even knowing why. They’re just coming because it’s an occupation.
The only thing I say to the students in regards to coming to law school, is “you don’t have to know exactly what type of lawyer you want to be, just that you want to be one and that you want to make a difference. It’s right there in your heart, and it’s in your mind.” When those things connect you have the energy flow and that’s the Holy Grail. That’s how I see my job. It’s not practical or academic – I hate the word practical. I hear students say, “Professor Carter, he makes things practical.” Like hell I do. It’s not practical to take a 30 hour bus ride down to New Orleans. It’s about bringing something to the table, finding a purpose in life, finding where you fit. Many of these students are white students who haven’t even seen a whole bunch of black people. They go down to New Orleans, and with the strong racial issue component, they have a lot of questions. We spend evenings with ministers and social workers and it’s all very eye-opening.
Q: What attracted you to Valpo Law?
Derrick Carter: I’m from Detroit and when I was looking at law schools to attend, I wanted to come to a Midwest-ish place. When I arrived here as a student, I ended up really liking the professors and my peers. It’s really a friendly place. Surprisingly, I have more friends from law school than I do from college. A few years ago, they needed someone to replace a law professor, and at that time I was an adjunct at the University of Michigan Law School. I was asked if I would step in as a visiting professor to teach criminal law and some other courses. Lo and behold, I have been teaching for 17 years. When they extended a full offer, I had just received another offer from the mayor of Detroit, Dennis Archer, to be in his administration. I was newly married with a newborn so as much as I liked Dennis Archer, I decided to stay as a law professor, and what a great decision it was. Growing up in this community has been wonderful. My son now is 21, and he attends DePaul University in Chicago. We’ve had a wonderful time in Valparaiso.
You walk around campus and you truly feel that you’re engaged. Students nod and say hi. When I took my son to the east coast for visits at colleges, people didn’t even look at you. They were so involved in their own work. Young people also enjoy that they can go downtown and there is a robust nightlife. Plus, it’s only 50 minutes to Chicago. As I leave the campus, I always see the students playing soccer. I like that. It’s very picturesque in a Norman Rockwell kind of way.
June 11, 2012
Q: Law schools have been criticized lately in some high-profile publications; why do you think law schools seem to be a target now?
Jay Conison: Law schools have become targets because of the dramatic shift in the way people think about higher education. I am speaking about a shift toward seeing higher education mainly as a path to a job or a career. There has always been an understanding that higher education can help you become more successful in your professional or business life and in your economic well being generally. This view is in contrast to the understanding of higher education as having the basic purpose of personal development, intellectual growth, and ethical development. These two views have always been in tension. But now the economic view of higher education is becoming dominant.
The reasons for this change include the economic stresses our country has been under and the impact on job opportunities, on people’s financial well-being, and on their sense of financial security. This has affected all of higher education but law schools more intensely for a couple of reasons. First, law school is already positioned as a postgraduate path to a career. Second, higher education tuition has increased but law school tuition more so than most others. This is coupled with the fact that most people who go to law school borrow to pay for their education and borrow very heavily. Third, lawyers are always under attack and so it is easy to turn the attack on the institutions that produce lawyers.
Q: Originally, were more people going to law school for personal development? Weren’t they always going to law school for a job?
Jay Conison: Yes, as I said, law schools are positioned as postgraduate paths to a career. But the positioning is more complex than that.
About a century ago, law schools came to be integral parts of universities. They saw themselves, and they were seen by others, as part of the grand university tradition where the main function is learning and transmission of knowledge. In traditional, mainstream higher education, the focus is on intellectual development, not on vocation. That is the culture of higher education. So law schools became part of that culture and were most concerned with the academic and intellectual development of law students. Yes, it is academic and intellectual development for a purpose, to allow you to become a lawyer or a person who uses his or her law training. But the career outcome was subordinated to the more broad based intellectual training. And because of this, law schools were held accountable mainly for the intellectual development of their students rather than for vocational outcomes.
Seeing this helps us understand what is happening now to law schools. Up until recently, the general standard for satisfaction with legal education has been: Does this school help prepare you to be a good lawyer? Does it provide you with a good legal education? Now everything has changed. Read the papers, read the blogs, listen to the news commentators. The new standard of satisfaction, the new measure for the success of a law school education, is becoming: Do you have a job at the end of the day? That is a very different measure of success and satisfaction.
Q: What is something that a student can expect at Valparaiso Law that they might not be able to expect from other law schools?
Jay Conison: One of Valparaiso’s signature characteristics is a very strong commitment to the professional success of our students. That is one reason why we invest so heavily in providing practical opportunities for them with a lot of clinics and externships. We have a building that is specifically dedicated to clinical and skills training. We have a new site in Chicago that was established for purposes of launching a clinic there. All of this involves a very personalized form of education. Clinical education is one professor and about eight students. It is not like teaching torts where one professor can teach eighty students.
We also seek students who have a strong interest in the larger, service aspect of being a lawyer or law-trained person. We certainly do not neglect the need for graduates to have good jobs to achieve economic security—far from it, we also make substantial investment in our career service operation, for example. But in our admissions process we look for people who find rewards and satisfaction not just in the financial benefits of being a lawyer but in serving larger societal purposes. Those are the kinds of people that we look for and with whom we work to cultivate that same dedication. Not just in classes but in all the activities that are part of the law school. We have a tremendous wealth of student organizations and most of them are focused on providing structure and opportunities for students to serve others.
A second signature characteristic is that at Valparaiso, we have created a truly diverse environment. It has taken time and effort to build it but it is now self-sustaining. Valparaiso Law is a good place for people of any background, any religion, any race, any sexual orientation, any political preference, to be. Anyone can be a leader, anyone can be successful, so long as the person has the skills and character. Students can and do learn from each other. It is a richer and more natural environment for personal and professional development as a result.
Q: In the last ten years, what would you say is the most significant change in legal education from your perspective as a law school dean?
Jay Conison: I think that the most significant shift is that law schools are increasingly forced to think of themselves as actors in a marketplace. And there are a number of marketplaces that they are competing in.
One is the marketplace for students but even that has sub-markets—for high LSAT students, for diverse students, and for international students, to take a few examples. There is tremendous competition for students. This is not entirely new. I can cite you some interesting data from fifty years ago to show you that it was going on even then. But it has grown at an accelerating pace.
Second, there is just as much competition for job opportunities for students. Law schools are out there making connections with employers for their students, so that they will be positioned to compete for jobs. And thoughtful law schools are also competing for talent in the career field to help their students take advantage of these connections.
Third is competition for faculty. There are a lot of people who want to be law faculty, far more than there are jobs. But while the number of faculty applicants has gone up, the competition for the most qualified has become even more intense.
As a result of all this, deans increasingly have had to think of themselves as leaders of business organizations and be concerned with the business side of law schools. Law school deans today are often much more like university presidents than like deans of some other types of colleges or schools in universities.
Q: What are the qualities shared by the most effective law professors at Valparaiso?
Jay Conison: One is, as I mentioned earlier, a deep commitment to the professional and personal development of our students. We hire people who are willing to make the investment of time and emotional energy in students, which is very important because there is only so much that you can do in class.
Two: we find well-rounded people in the sense that in addition to their teaching they pursue other important and interesting professional activities that will benefit their students, their own professional growth, and the law school. It could be engaging in scholarship on law and religious ethics; contributing to international conferences and programs; or helping with the development of new uniform laws. Whatever it is, we want people who want to make that commitment. And, of course, we want people who will be good colleagues and invested in the life and betterment of the school.
Q: Do you believe law students are relying more heavily on their institutions for job and externship placement assistance?
Jay Conison: Law students are independent in the sense that they are not financially dependent on their parents, as undergraduate students are. Many of them have been out in the workplace for years already and they are on their own financially. However, they are not independent in the sense of being able to accomplish everything on their own. Law schools have to provide many services beyond just classroom teaching and advising.
In particular, there is a very substantial demand by students for opportunities to have a real client representation or other practice experience. It could be in the form of clinics, or externships—where students work in a law office, a judge’s chamber or a non-profit organization for academic credit. There has been huge growth here over the past ten or fifteen years. I think students are coming to expect this from law schools. I can’t say how much students who are applying to a law school and choosing a law school use clinics and externships as a basis for making a selection but it certainly is something that law schools nowadays promote to prospective students.
Student expectation of services from law schools is even more true regarding job and career assistance. As I said in my answer to your first question, law schools today have to be more focused on being a path to a job or career, and are being held accountable. Law schools can’t provide students with jobs, but they can, and they should, provide a wide range of career services—from counseling, to research support, to developing interview skills, to teaching networking, to providing alumni support for the job search process. I do not see this reliance on law schools changing any time soon.