Op-Ed: Why Don’t We Teach Empathy in Law Schools?

by Aditi Juneja, Columnist

We teach law students and young lawyers to zealously advocate for their clients. Lawyers are taught to think through arguments and counterarguments, but are rarely taught to consider the morality of their advocacy. We defer to the adversarial process, which is supposed to yield fair and just results. What is our responsibility when it does not? What happens to lawyers when our only goal is winning?

There is, of course, nothing inherently wrong with zealous advocacy. The problem with valuing success above all else is that fear of being shamed if we fail can lead to desperation to win at any and all costs.

Brene Brown, a shame researcher, distinguishes shame from guilt by identifying shame as the feeling that, “I am bad and therefore unworthy of connection.” Alternatively, guilt is simply, “I did something bad.” It is the difference between “I am stupid and shouldn’t be in law school,” and “I didn’t know an answer to a question when I was called on.”

I believe that legal education, and the Socratic Method, seeks to motivate students through shame. Interestingly, we are taught to feel shame when we fail, but not for the consequences of our zealous advocacy.

Lawyers place a high value on walling off emotions. Susan A. Bandes wrote an op-ed arguing that the culture of lawyering falsely equates the ability to numb feelings with toughness, and toughness with competence. The problem, according to Brene Brown, is that we cannot selectively numb emotion. When we numb pain, discomfort and frustration, we also numb joy, engagement, and connectedness.

Bandes believes that the imperative to numb feelings is why more than a third of lawyers are problem drinkers and over a quarter are clinically depressed. She notes that, “medical students and doctors have far lower rates of alcoholism and depression, although they, too, engage in high-pressure, expensive schooling and stressful work.” Furthermore, the percentage of alcoholic and depressed lawyers was nearly identical a quarter-century ago, making it unlikely that the high rates are due to recent changes in employment prospects.

According to Brown, another way numb people is through blame—and lawyers are in the business of blame. Whether through accountability in criminal proceedings or liability in civil ones, we spend our lives immersed in a profession preoccupied with assigning fault and blame. Brown describes blame as the discharge of discomfort and shame. So, the real question is, do we want our nation’s lawyers to be motivated by shame?

Brown believes that we cannot practice compassion toward others without first practicing it toward ourselves. Do we want the rule-makers of society to feel shame when they do not know something or are wrong? If we are not compassionate towards ourselves, will we practice understanding when others make mistakes? Will we create compassionate systems of justice? We teach law students to be right and to win. Should not we also teach them how to be wrong and to lose gracefully? Why don’t we teach empathy in law schools?

Op-Ed: The Oscars Got it Right

by David Wang, Columnist

Amidst the controversies regarding diversity and #OscarsSoWhite, the Academy of Motion Picture Arts and Sciences presented its annual awards on Feb. 28, 2016. With six wins and a virtual sweep of the technical awards, Mad Max: Fury Road took home the most little gold men, but Spotlight won the big prize of Best Picture. For this writer, Mad Max was the best film of the year, while Spotlight was the most consequential.

Set in the aftermath of a nuclear apocalypse, Mad Max stars Tom Hardy as the titular protagonist, a role first popularized by Mel Gibson 30 years ago. Max eventually finds himself in a high-octane car chase through the desert, joining forces with the indomitable Imperator Furiosa (portrayed by Charlize Theron) to free the imprisoned wives of the evil dictator Immortan Joe. With fast-paced scenes and nonstop graphic spectacles, Mad Max is the visual embodiment of an adrenaline rush.

While it is easy to dismiss Mad Max as a run-of-the-mill action movie, director George Miller elevates his film, creating dazzling and beautiful scenes while telling a heroic story about redemption and autonomy that empowers female characters. In fact, most of the film centers on Furiosa’s fierce determination to defy Immortan Joe’s tyrannical patriarchy. As Joe’s wives tell him before they escape, “We are not things.”

Towards the climax of the film, our heroes are joined by a matriarchal motorcycle tribe, a group of older women soldiers who join in the fight against Joe. Mad Max creates a world where women stand up for themselves and take control of their own destinies against oppression. Furiosa is not just a foil or backup to Max—she is the leader of the pack.

As Mad Max swept the technical categories on Oscar night, what was particularly striking was that the film was a story about women made by women; out of Mad Max’s six Oscars, four were won by women (Best Film Editing; Best Costume Design; Best Makeup and Hairstyling; Best Production Design). As Charlize Theron herself said, “George [Miller] has this innate understanding that women are just as complex and interesting as men, and he was really interested in discovering all of that.”

With the build up to the big award of the evening (and some memorable moments along the way, such as a guest appearance by Vice President Joe Biden and Leonardo DiCaprio’s long overdue win for Best Actor), actor Morgan Freeman presented the Best Picture Oscar to Spotlight, a true story of how a team of Boston Globe reporters exposed a massive child sex abuse scandal and cover-up in the Catholic Archdiocese of Boston. The film is the very definition of ensemble acting, with each character masterfully coordinated with another to bring this story to light.

I named Spotlight the most consequential film of the year because it is a story about the great power and responsibility of storytellers across the world: speaking for those who are so often silenced and overlooked by society. The film depicts the bureaucratic red tape that covered up survivors’ stories and their brave efforts to come forward with the truth.

Director Tom McCarthy left no stone unturned and also documented the role that, unfortunately, lawyers played in the scandal, profiting by contributing to the cover-up. Spotlight forces us to confront difficult ethical quandaries that challenge the legal profession. Those hard truths form the very theme of Spotlight, making it the most important film of 2015. The film’s tagline reminds us of just that: “Break the story. Break the silence.”

Mad Max: Fury Road and Spotlight could not be more different in style and substance. However, both films share remarkably powerful social messages about the power and significance of good storytelling. In a year when the Academy has made several questionable and controversial decisions, it has at least brought attention to films that are important and relevant.

 

Op-Ed: A Law Student’s Plea to Fund Indigent Defense Services

by Aditi Juneja, Columnist

As a law student pursuing a career in prosecution, I often find myself in the strange position of advocating for more robust legal services for indigent defendants. I have chosen to pursue a career in prosecution because I believe in accountability for choices and want the privilege of spending my career focused on the pursuit of justice, rather than zealously representing a client.

However, inherent in my desire to pursue the amorphous concept of justice is the understanding that the defendants I prosecute will be represented by competent counsel with sufficient resources. I worry that, over fifty years after Gideon v. Wainwright was decided, which ensured defendants the right to counsel, we still fall woefully short. Given that some of the bipartisan support for criminal justice reform comes from concerns about the limited benefits, given the enormous costs, of the current system, I wondered why no one was talking about the long-term costs of not funding indigent defense.

There is not a lot of data available on the savings indigent defense attorneys provide because indigent defense service providers are made up of a patchwork of institutional providers (organizations like Orleans Public Defenders or Legal Aid Society) and panel attorneys (individual lawyers who apply to be put on a list and have cases assigned to them by the court), with every state employing a different system. Furthermore, unified, state-wide case management systems are rare, meaning that the data that is collected is limited by how an organization or individual attorney keeps records. This limits the government’s ability to know what indigent defense service provider system works best and how to efficiently direct taxpayer dollars to those systems.

There appear to be significant opportunities for cost-savings by providing defendants with lawyers at bail hearings. Pre-trial detention makes up for 99% of the incarceration growth in the last fifteen years. A randomized control study in Baltimore, Maryland found that by giving 4,000 defendants a lawyer at bail hearings, there was a net savings of approximately 6,000 bed days. This doesn’t just yield a financial savings, but also a public safety savings. There are strong correlations between the length of time low-risk and moderate-risk offenders are detained before trial and the likelihood that they will fail to appear and reoffend both in the short and long-term. Simply, pre-trial detention increases the likelihood that a low-risk or moderate-risk offender will reoffend or fail to appear.

Since we are only charging defendants who we believe are guilty of a crime, it can be hard to remain open to new information, a phenomenon known as confirmation bias. But this is exactly why we need defense attorneys present to advocate for their clients, and for judges to make decisions anchored in the recommendations of an impartial third-party. Too often, this isn’t what happens.

Even in New York City, where we do have defense attorneys at bail hearings, it was found that judges’ decisions were most correlated with prosecutors’ recommendations even though the Criminal Justice Agency’s recommendations were better at ensuring a defendant would return to court. As a future prosecutor, concerned with public safety, I want safeguards to make sure that while I’m acting in good faith on an individual case, so that my actions don’t have negative, long-term consequences.

The Exonerations in 2015 Report suggests this concern is not unfounded given the record number of exonerations last year. The 149 exonerated defendants and their families can’t get their collective 2,161 years back and the citizens of those jurisdictions can’t get the cost of incarcerating those defendants back. That is a waste of over $67.5 million dollars, based on an average annual cost of incarcerating an inmate of $31, 286.

The potentials for savings in correcting sentences downwards, not exonerations, are also huge. The Michigan’s State Appellate Defender Office, which is publicly funded, showed that they were able to save over six million dollars for the state in 2013 alone. It is important to note, however, that none of these numbers include the costs of correcting these errors through often lengthy litigation processes. Nor do they account for how else these people might have contributed to society, if they were free. It would, obviously, be better for everyone if mistakes were not made in the first place.

My biggest fear as a future prosecutor is that I will someday be responsible for a mistake that puts someone unjustly in prison. Legislatures should share this fear—if not for their constituents, then for their budgets.

 

Breaking into Art Law: Advice from Attorneys at Christie’s Auction House

Written by Sallie Oliver, Guest Contributor

Art law is a choice for mindsets with creative solutions on an international scale. What does art law tackle? Students met with the legal in-house counsel for Christie’s Auction House on Friday, February 26th, regarding the state of the practice of art law and how budding attorneys may break into this growing field successfully.

Meeting Room at Christie's
A meeting room at Christie’s Auction House New York.

 

The workspace at Christie’s is beautiful. Picture a boardroom overlooking Rockefeller Plaza and a box of cookies sliding across the table, a scene that may remind one of a Vegas croupier dealing precious cards. While offering sweets, Senior Vice President and General Counsel Jason Pollack shared notable advice, “Find success where you are no matter where that is.”

Pollack joined Christie’s nine months ago, and with a smile, admitted his real passion was in becoming NFL Commissioner. The cross-disciplinary study habits for an aspiring art lawyer prove beneficiary when you are engaging in daily transactions with all different sorts of personalities.

Showroom at Christie's
A recently renovated showroom at Christie’s Auction House New York.

 

Counsel member Sandy Compton highly recommends clerking, and being flexible with a range of interests, as she did herself. Few museums besides those in large cities have in-house legal counsel and will instead visit boutique law firms regarding contract mediation. Not surprisingly, the New York City Auction Regulations, which are in use today, Compton stated, “were created in the 1800s and, believe it or not, horse and buggy,” are still part of its language.

Regulatory contracts are typically tolerated long after relevancy comes into question and it is no different regarding art law. Therefore, art law has different challenges. An example includes leveraging litigation to ensure a $170,000,000 sculpture does not present too much liability for Christie’s Auction House or art collectors themselves. Also, acting on behalf of art collectors to ensure that stolen art stays off of the market by partnering with international policy makers.

While buying art is still largely unregulated, art law provides a degree of risk management that creates powerful investment opportunities.

Editor’s note: An earlier version of this article appeared on the author’s website: http://sallieoliver.me/.

Writer’s note: Thank you to Sali Salfiti, scholar at Brooklyn Law, for reaching out to Christie’s for this event. And please note that local and international internship listings can be found via Christie’s.com.

Dear 1L: You Survived Your First Semester of Law School. Now What?

By David Wang

Dear 1L,

Right now, you’re uncertain, stressed, and anxious. I know it’s easy for someone who has already been through the baptism by fire that is 1L to say this, but as former Gotham City District Attorney Harvey Dent vowed in The Dark Knight, “The night is darkest just before the dawn. And I promise you, the dawn is coming.”

Now, I’m nowhere near as charming as Harvey Dent, but he’s right. There are many moods post-1L semester that permeate throughout the class: anxiety, elation, relief, disappointment, and doubt. These are all normal feelings, but I hope you’ll take it from someone who’s been there and back: the game is nowhere near over yet. So, here are a few tips and tricks to help you navigate the second semester, passed down by classmates and friends:

1) If you are disappointed with grades, start from the beginning. Contact your professors to see if you can come review your exam and ask about areas for improvement. You may be surprised by the feedback, but it is important to conduct this “post-mortem” to understand exactly what you need to do to improve. Of course, each class is different by content, but look for transferrable test-taking and studying skills you can apply to your future exams.

And if you’re concerned about EIW, the best thing you can do is to finish the semester strong academically. I firmly believe that it’s not about how you start, but how you finish. An academic record with a significant upward trend is an amazing comeback story to tell at EIW. It shows humility, self-reflection, and most importantly, perseverance. So, put EIW in the back of your mind and concentrate on the keys that will unlock the kind of EIW you want.

2) Don’t be afraid to ask for help. Outside of regular class attendance and office hours, you should look into the great tutoring services provided by the law school, free of charge. Your tutors can work with you on a one-on-one basis on both specific class content and general exam preparation strategies. Sign up here.

3) Please do not panic based on the clamor around the student body about 1L summer jobs. Internship opportunities and offers roll in at different times, and some of my friends with the coolest experiences did not hear back until May. You alone control your own fate, so ignore the noise and look for the best opportunities for you. If you need help, please contact alumni, 2Ls and 3Ls, or the Office of Career Services (OCS). We’re all here to help!

4) Talk to someone. 1L year is already overwhelming. Now add to that the fast-paced playground that is New York City. If you ever need to talk with someone outside of the law school, NYU offers free counseling through Counseling and Wellness Services (212-998-4780). Sometimes, it can be really helpful just to air your frustrations or discuss your concerns confidentially with an independent third party who won’t give you advice from a law school perspective.

Prefer to talk to someone you know? You’d be surprised how calming it can be     just to hang out with friends outside of the NYU Law bubble. Chances are, you’ve     let some of your past relationships slide because of the insane workload and     endless stresses of law school. Use this opportunity to reconnect with old friends and get a fresh perspective.

5) Continue to dream. There are only so many ways to say “Never give up!” without sounding cliché.  We all came to law school for a variety of reasons, but whatever your reason is, your dreams are valid and nothing else matters. Need inspiration? Check out this remarkable story about US Supreme Court Justice Elena Kagan’s 1L grades in The New York Times.

I’ll end with a quote from Randy Pausch, late author of The Last Lecture: “We cannot change the cards we are dealt, just how we play the hand.” So, play strategically, play smartly, and most importantly, play true to yourself. Expect as good as you give. You may not have been dealt a royal flush, but do not forget: the dawn is coming.

NYU Law Foodie’s Guide to Cheap Eats: Best Place to Put Someone in the Friend Zone

Written by Katherine Tandler

Maybe you’re hungry in the library and she just asked if you want to grab some food? Maybe he asked you out and you need to take control of the situation? Or maybe you’re interested in fostering a friendship and want to make sure you give off the right signals? Whatever the reason, you need a good local place to eat that says “Friend Zone.”

Clearly, the area around NYU Law School is rife with culinary options. Not all of them, however, will accomplish the delicate task at hand. Most notably, you don’t want to find yourself in a prolonged, white-tablecloth situation. Yet there are also other things to look out for.

For example, Saigon Shack, an excellent meal under different circumstances, would not be a good choice. The inevitable queue will prolong your time together, thus increasing the opportunity for them to swoop in with “date-like” conversation (beware of all questions about your life outside of law school). The long line will also highlight the fact that the place you’re going to is extra-special—something worth waiting for that you want to experience with an extra-special person.

However, you also don’t want to make the mistake of going too casual. If you head to a location that is primarily a bar (like Thunder Jacksons) or that is known for its cocktails (e.g., Carroll Place) you run the risk that the experience will become “drinks”—a common first date move. Likewise, I need not remind all you Bar Review denizens that drinking alcohol can lead to a loss of inhibitions\…and you don’t want to end the meal having done precisely the opposite of what you set out to do.

Speaking of inhibitions, you’ll also want to avoid the myriad Macdougal Street establishments that are casual, but cramped (Turkiss, The Kati Roll Company, Meltkraft, etc.). Close quarters could give your non-date an excuse to get a little too close. While of course you can (and should) always tell that person to back off, the best way to emphasize the friend-zone-ness of the situation, without embarrassment, is to avoid close proximity at all costs.

I haven’t yet mentioned the most friend-zone threatening moment of any meal: getting the check. Clearly, the friend-zone-friendliest move would be to split the bill, since you don’t want that person to be able to say they “took you out.” To make this a little bit easier, consider choosing a restaurant that is cash only (and bring cash). Doing so makes it more likely that your suitor will not, in fact, be able to help pay at all. Even if they brought cash, it’s at least somewhat unlikely they will have enough to cover the whole bill. Problem solved.

My final vote? The NY Dosas cart in Washington Square Park. It’s quick and cheap—which sends good signals—not to mention delicious and filling. Because it’s outdoors, there’s no excuse for unwanted touching, and you can easily find a well-populated, unromantic place (e.g., Kushner/Golding) to enjoy your meal. Plus, it’s cash-only and they don’t sell alcohol. Go forth and break some hearts!

Introducing Our Paper

by Naeem Crawford-Muhammad, Editor-in-Chief

Welcome to The Commentator, NYU Law’s official student newspaper. We chronicle all things related to New York University School of Law and its students, faculty, and administration. The Commentator presents its content in three sections: News, Opinion, and Lifestyle.

The News section will keep you up-to-date with the latest happenings at the Law School. Opinion will feature students lending their voices to the pressing issues of the day. And in the Lifestyle section, students are invited to share their creative energies with the world.

The first version of The Commentator was a student-run, print publication at NYU Law. Renowned for its wit and biting edge, it was distributed biweekly in a black-and-white, tabloid format. Our new incarnation of The Commentator will be online-only. This allows us greater flexibility in getting news and information to our audience faster. It will also allow us to experiment with and better incorporate photography, video, and social media.

If you’re interested in writing for us or would like to share your thoughts or feedback, contact us.

We hope you enjoy our company. Visit often and stay awhile.