Clint Bamberger’s Death Kicks In the Gut

We heard today of Clint Bamberger’s death, at age 90.  The New York Times obituary focuses mainly on his landmark Supreme Court case of Betts v. Brady, establishing the obligation on prosecutors to disclose exculpatory evidence.

But for generations of lawyers committed to access to justice, that case, while critical, is far from the most important piece of his massive legacy.  As one of the tiny group of visionaries who envisioned the original legal services program, as its first director, as a founder of clinical legal education, as one of the founders of Harvard’s Legal Services Center, as one of the originators of the Reginald Huber Smith fellowship program, and as an endless advocate for innovation and access, Clint really was the trailblazer who build the foundations on which all of us try to build.  Much more of Clint’s story is told in the Baltimore Sun obituary.  The LSC statement is here.

I got to meet Clint during my second year of law school, when he, Garry Bellow, Jeanne Charn, Bill Simon, Isaac Borenstein, and Michael Lipsky were setting up the Harvard program.  My wife Joan was one of the first students in the only year that the program actually functioned as a full year 100% clinically focused program, and then she was hired to work for the program.

So, for some reason Clint’s death, foreshadowed on December 6th by that of his beloved and equally contributing wife Katharine, hits particularly hard in the gut.

I think it’s because Clint and Katharine managed to make me feel like they thought I was an equal.  They were always full of respect and interest in even my crazier ideas, and always just as humanly interested in every aspect of our lives.  We always parted from them, most recently a couple of years ago, I think, reinvigorated and with greater self-acceptance.

Clint and Katharine were born healers, both of individuals and society as a whole.

I hope to be able to put together a more detailed appreciation, but will not be at peace till at least this has been said.

My wife Joan adds:  Clint and Katharine were wonderful friends, mentors, and models of mine.

P.S.  Alan Houseman’s obituary, prepared for the Equal Justice Library, is here.


Posted in Access to Justice Generally, Law Schools, Legal Aid, LSC, Obituaries and Appreciations | 1 Comment

A New Era of Jury Nullification?

Trump threat tweeted today that “the spotlight has finally been put on the low-life leakers! They will be caught!”

That leaves a big loophole, since the vast majority are probably not”low-life” at all, but patriots.  They should be safe.

But then, grammar was never a strong point for the Donald.

Seriously, time to dust off our jury nullification research.  And, surely the necessity defense would be strengthened by Trumps prior expressions of support for hacking.

Do you really think that today you could get a conviction out of a DC area jury on these leaks?  Good luck on that one.

Posted in Criminal Law, Policing, White House | Leave a comment

The Totally Unbalanced Amici List in the Ninth Circuit Tells the Whole Story

As a general matter, the line up of amici in a significant case provides some indication of how institutions are lining up on the issue.  If this were an issue on which the country were split, one might expect that those in support of the administration and those challenging Trump’s Executive order would be in rough balance.

So, I engaged in a quick research project and looked at the Ninth Circuit docket entries, which are here.

There are approximately twenty briefs, and only two were in support of the Executive Order.  One is from from Freedom Watch., and the other does round up a number of the usual suspects, with the list reading as follows:

Amici Curiae U.S. Justice Foundation, Citizens United, Citizens United Foundation, English First Foundation, English First, Public Advocate of the United States, Gun Owners Foundation, Gun Owners of America, Conservative Legal Defense and Education Fund, U.S. Border Control Foundation, and Policy Analysis Center

In contrast to the outpouring of states, technology businesses, law professors, advocacy organizations, etc supporting the challenge to the Order, this is a remarkably weak display.

No states, no Republican officeholders, no businesses.  Only a few frequent litigators and a few far-right frequent fliers, heavy on guns, English language monopoly, and border control.  Not a cross section of even just conservative America, let alone America as a whole.

That suggests to me the deep ambivalence of the institutional structures of our society, not only about the Order, but about the administration from which it came.

This adds to the increasing evidence that the policies of the last three weeks are built on shifting sand in terms of support.  At a minimum, this gives the courts far more freedom to follow the law, knowing that if that triggers a formal constitutional crisis (rather than just the de facto one we already have), the courts will have almost all the system on their side.

Posted in Constitution, Judicial Supremacy | Leave a comment

Rebranding and Revitalizing the Legal Profession

Whatever you make think about the Trump administration, one thing is clear, the public is being reminded of the importance of the availability of lawyers.  Maybe also, the profession itself is remembering also how much helping real people with real problems can give meaning to life.  The last para of the Washington Post piece on the legal volunteers at Dulles airport reads as follows:

“It’s a good feeling,” Fezan Rizvi, a psychiatrist who lives in Loudoun County, said as he nodded toward a half-dozen sign-holding lawyers amid the crowd. “If you have any questions, they’re right there, and it’s pro bono. That feels like America.”

Meanwhile earlier in the article:

Welborn [one of the 1200 volunteers who have signed up to help at Dulles] said she had come because it felt right. “Yeah, we are the good guys,” she said. “Sam and I were talking in the car on the way here, about how we’re proud that it will be the lawyers who will be the ones fighting on the front lines.”

Helps us remember why we went to law school — sadly something many of us had forgotten just three years later.  You don’t have to hang out at Dulles to get a feeling of caring juice flowing through your veins again.

Read the whole piece and share.



Posted in Access to Counsel, Access to Justice Generally, Immigration, Pro Bono | 1 Comment

What Emma Lazarus Would Write Today

Christine Webb is a British poet of great accomplishment and also a close multi-generational family friend.

I feel honored that we are able to share this magnificent poem that Christine has written in response to recent actions taken in the name of the United States.  It is an almost unbearable reminder of the contrast between what our country used to be seen as, and what we are now doing.

We can only hope that the millions around the world who have been inspired by the best in us, even as they always saw our defects, will remember that this is in no way a majority Presidency, and that what is done in our name is not what the majority of us tried to choose.webbI am certain that Emma Lazarus would have welcomed these words, even as she cried with us. (Statue of Liberty plaque poem here.)

Note: Updated with slightly different first stanza.



Posted in Access to Justice Generally, Dept. of Justice, Immigration, International Cooperation, Personal, White House | 2 Comments

On the Need for Uncompromising Reassertions of Neutral Principles Regardless of Inevitable Political Implications

There is obviously a lot to cheer about today, as different aspects of our complex, flexible, and therefore very resilient system starts to trigger its anti-fascism-antibodies.

One of the most important, in the long term, may be the fact that institutions with nonpartisan missions are coming to realize their right, obligation and need to reassert the neutral principles that inspire them and to act in accordance with those principles.  They are coming to see that non-partisanship does not impose passivity.

To put it another way, when the inconsistent actions of others highlight the difference between those actions and the actions of the nonpartisan institution, then that does not make the nonpartisan institution partisan, rather it just illuminates the hyper-partisanship of the actions of others.

Two simple and inspiring examples, from institutions large and small.

Under the heading “We Are All Harvard,” the President of my alma mater (not a phrase I usually use) issues a clarion call:

.  .  . I write to share information about resources available to students and faculty and to underscore that our international students and scholars are essential to our identity and excellence. We are all Harvard.

In times of unsettling change, we look toward our deepest values and ideals. Among them is the recognition that drawing people together from across the nation and around the world is a paramount source of our University’s strength. Thousands of students and scholars and visitors come to Harvard each year from all over the globe—to study, to teach, to propel our research enterprise, to join in conferences and colloquia, to share insights and abilities that transcend nationality. Thousands more leave Harvard each year to travel abroad, learning from experiences they could not replicate here, gaining insight into cultures and perspectives different from their own, visiting colleagues and family and friends, forming and sustaining the human bonds essential to mutual understanding.

Our robust commitment to internationalism is not an incidental or dispensable accessory. It is integral to all we do, in the laboratory, in the classroom, in the conference hall, in the world.

Very similarly, the Executive Director of Collington, the retirement community where I live, sent all the staff a letter yesterday, including the following language:

Each and every one of you reading this is a part of a large and close knit international family here at Collington.  We represent numerous countries from all over the world and proudly celebrate that diversity throughout our community.  .  .  .

I feel it is important for you to know that Collington stands firmly shoulder to shoulder with all of you.  We welcome with open arms all individuals.

He then quoted from the values and practices document.  “To encourage and welcome all people without regard to race, color, gender, sexual orientation, religion, national origin, or any other characteristic protected by law, to live in our communities and to serve on our staffs and boards.” He added, in a cover note to the Board:

For those that may not know, a significant portion of our staff are Muslim and/or immigrants and the recent executive order has many of them fearful even though they are all either naturalized citizens or permanent residents of the US.  As one staff member said to me today, “Collington could not exist without immigrants that come here to work.”

So, I would suggest that the path forward is simple: reassert core values and principles without fear that that will be seen as partisan — it is not.  Make plans to act in direct accord with those values and principles and be transparent about the need, the relationship between values and actions, and be proud of it all.  That will result in a stronger institutions, community and country, even more deeply grounded in our common principles and values.

With respect to the courts, this is not harder than for other institutions, but it does require more clarity of thought.  All too often, neutrality has been seen as requiring passivity.  But what we do have behind us is the experience of working through in the self-represented context that, neutrality does not prevent judges from taking actions to ensure fairness.  (See also general pre-election discussion here.)




Posted in Access to Justice Generally, Constitution, International Cooperation, Judicial Ethics, Science

SRLN Conference Schedule and Early Registration Deadline

The Tentative Schedule for the SRLN Conference (Feb 23-24) in San Francisco is now available, and early price-reduced registration, link here, closes very soon, on Feb 1.  General registration will remain open after that day.

A two-day in-person national conference for lawyers, judges, clerks of court, self-help services professionals, librarians, technologists, funders and other allied professionals to explore and develop successful strategies and new thinking for providing 100% access to justice.

It will be held at the Judicial Council of California, Milton Marks Conference Center, and is in affiliation with the Judicial Council of California’s Family Law Facilitator and Self-Help Center Conference.  This change will enable a greater focus on 100% access to justice, the Chief’s Resolution, and the Justice for All Initiative, as well as the myriad innovations spreading throughout the movement.

From looking over the schedule, I would suggest these reasons for making the financial and time effort to get there.

  • This is the only gathering that gives appropriate equal weight to the courts in the access to justice triad of courts, legal aid and bar.
  • This is an important opportunity to think positively rather than defensively about the changed climate.
  • This is the first conference at which there will be specific attention to ensuring that the voice of the litigant and consumer is heard by legal institutions.
  • This is the first conference in the ATJ world that will focus on on simplification issues.
  • There is he first non-tech conference at which there will be significant focus on human design issues.
  • A track on engaged and active judging will move this critical area forward.
  • There will be a special series of workshops focusing on establishing new self-help programs.
  • With all the movement in research and indicators, this will be the first opportunity to think about how it relates to practice and how it should move forward.

Above all, take a look at the list of speakers.

As you may know, I have had to cut way back on my travel, but this is so important in setting directions for the future that this will be my first trip outside the DC area since June.  I look forward to connecting with old friends and new allies as we move forward together.

See you there.




Posted in Meetings | 2 Comments