Op-Ed: A New Voice for Disabled Students and Allies

Written by Chantalle Hanna, with additional reporting by Aditi Juneja

Americans with disabilities comprise about 22 percent of the non-institutionalized population and 30-40 percent of people who are incarcerated. They are employed at a rate that is less than half the national average and are twice as likely to live under the poverty line. These gaps are exceedingly profound among people with cognitive disabilities or mental health conditions. 23 percent of people shot and killed by police so far this year have a mental health condition, while an estimated 33-50 percent of individuals killed by law enforcement had some disability. Disability is pervasive, yet all too often, it is forgotten in decision making by policymakers, professors, and peers.

I became interested in disability issues when a family member was diagnosed with autism, which at the time seemed devastating. In time, I discovered that I was most troubled not by inherent differences in cognition, communication, or behavior, but by what amounted to a prognosis of a marginalized life. To unburden a diagnosis of difference from despair, we must dismantle societal barriers, including stigma.

Disability rights frameworks envision a more inclusive society. By applying a disability lens to society, we can see our undeniable interdependency. This realization promotes respect for our differences and respective contributions.

I am troubled that professors at the law school are not always thoughtful in discussing disability when it intersects with the material being covered. This can happen, for example, by referring to people with cognitive impairments not as people first but merely incompetents, or through erasing from the curriculum how society has decided to allocate the right to contract and who is implicitly excluded from participating in that right.

I believe that in order to be effective lawyers we need to be intersectional and inclusive advocates. Furthermore, I believe that disability advocacy is often not about advocating in place of, but rather amplifying, the voices of those that are disabled and using my (temporarily) able-bodied privilege to promote access for those that are too often excluded from these spaces. This, of course, is part of a broader conversation about how to be an effective ally regarding all aspects of identity. There are plenty of people with disabilities who are self-advocates. Two of them are my co-founders of a new student group called the Disability Allied Law Students Association.

Our goal is to create both community and advocacy for those with disabilities and their allies. Our focus for the coming year will be to collaborate with other student groups to make sure disability is included in the important conversations already happening around campus surrounding topics such as criminal justice reform, employment, and immigration. We hope you’ll join us in this quest for disability rights, inclusion, and social justice.

Op-Ed: Law Schools Can Help Crack the Glass Ceiling

Written by Aditi Juneja

As many public interest 3Ls interview for post-graduate opportunities and 2Ls interview for internships, there may be one thing we are forgetting: the glass ceiling. Students applying to firms have access to the Chambers Associate Guide to inform them about benefits, vacation time, flexible work arrangements, paid parental leave, retirement plans, and healthcare coverage. The Chambers Guide also provides students applying to firms with statistics regarding diversity, both at the associate and partner level, for women, ethnic minorities, and LGBT people. However, students interested in public interest organizations may have to research this information independently. As a result, a range of information may or not be available to public interest law students depending on the employer. Thus, public interest students don’t have the information necessary to choose internships and jobs with employers where they will be supported and have the greatest chance of advancement.

Of course, the glass ceiling in law firms also continues to be a problem. Although the reasons are unclear, a recent study found that female partners at law firms earn 44% less than male partners. In fact, three black women were so frustrated with the culture at law firms that they banded together (beginning on Twitter) to start their own law firm. But law students choosing the firm route have the information to know which law firms make more or less of an effort to retain lawyers through their benefits policies and which law firms actually promote lawyers who are not straight, white, men.

Law students interested in public interest, who may not find these to be immediate concerns, are often only in a position to learn this information if they ask during the hiring process. Unfortunately, women who “lean in” and negotiate about money often face a backlash for doing so. Women might be equally hesitant to ask about employee benefits. Similarly, a recent study shows that women and minorities who promote other women and minorities receive worse performance reviews by their bosses. It would, therefore, make sense that women and other minorities would be reluctant to ask about diversity numbers during hiring.

Fortunately for us, NYU Law has a wonderful Public Interest Law Center that puts together information about the hiring practices of public interest employers, including information on the experiences of interns and recent graduates employed at those places full time. They also work with the Office of Career Services to bring many public interest employers to NYU for On Campus Interviews and the Public Interest Legal Career Fair. As an institution, NYU Law can go beyond asking the basic questions like starting salary and expected responsibilities of newly hired attorneys and ask public interest employers what benefits they provide and statistics on diversity within the organization. This would allow public interest students to have access to the same information that students applying to firms have, without risking any potential backlash from interviewers for asking the questions.

Public interest students should also be able to assess if an employer has supportive policies and if they are likely to face challenges in advancing within an organization. And, as a highly-ranked law school, NYU has the opportunity to be a leader amongst law schools in asking these questions on behalf of their students.

The current JD student body is diverse: we are fifty percent women, thirty-one percent students of color, and we have a thriving LGBT community. I know that NYU works hard to constantly improve in creating an inclusive environment for its students. Shouldn’t we also work hard to make sure that our students are taking jobs with employers who will support them in achieving their full potential?

Hamilton Taught Me That I Can Be an Excellent Lawyer and Be Myself

Written by Aditi Juneja

This summer I wrote Lin-Manuel Miranda a letter to thank him for his contribution to my legal education. I told him that his musical, Hamilton, taught me a lesson that is not taught in any law school classroom: we do not need to deny who we are to be excellent.

Hamilton is a musical that uses the music that Mr. Miranda (and many of us) grew up with, hip hop, to tell the story of the founding of the United States. It purposefully casts people of color as the Founding Fathers and Mothers. Mr. Miranda wrote a musical in his authentic voice and it has been deemed revolutionary.

Seeing his success, I started thinking about how I could draw from, rather than deny, my experiences in aspiring to legal excellence. For example, I realized that my thoughtfulness and concern about other people’s emotions can be an asset. I learned that my preference to acknowledge and address discomfort is useful. Aspiring to be a lawyer who has no feelings and is only logical and analytical is not only unrealistic, but that model of lawyering fails to consider all factors influencing the decision-making of others. There is value to being our authentic selves.

Even more powerful than Mr. Miranda’s artistic choices, is the way he speaks about his writing process. He has publicly discussed the moments of self-doubt and fear that he had while writing Hamilton. He unapologetically talks about the uncertainty that accompanies creating a new world from your imagination, particularly when there is no guarantee that other people will want to travel to that world with you.

The biographies I’ve read of great civil rights lawyers are filled with their humanity, but did not discuss the vulnerability necessary for greatness. I can only imagine that civil rights lawyers, who spend their days advocating for a world that does not yet exist, feel that same trepidation. As a law student, I’ve found comfort in the reminder that those insecurities are normal and to be expected.

Finally, the most important lesson I learned from Hamilton is that we can extol the virtues of the Founding Fathers while recognizing their imperfections. The appreciation and irreverence with which they’re portrayed makes me believe that, despite my flaws, I can and should try to change the world. After all, if someone who has all the opportunities afforded by an NYU legal education doesn’t work toward a more perfect union, then how can I expect that from anyone else?

Whenever I start to doubt my choice to spend my life in pursuit of that goal (loan repayment is only so comforting when you know you have a mountain of debt and a chronic illness), I am emboldened by Lin-Manuel Miranda’s University of Pennsylvania commencement speech. In it, he says, “Sometimes we say no to good opportunities, so that we can say yes to the best opportunities.”

I hope that in the coming school year, we keep that in mind. Welcome back!

Can the American Bar Association’s New Anti-Discrimination Rules Stop Donald Trump?

Written by Aditi Juneja, Columnist

The American Bar Association’s (ABA) amended model ethics rule may create problems for lawyers advising Donald Trump on policies such as a temporary ban on those from Muslim majority nations (now shifted to a ban on nations with a record of terrorism). The new amendment to the ABA’s Model Rule 8.4 would make it professional misconduct to behave in ways an attorney knows or should reasonably know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status in conduct related to the practice of law.

Reading about this amendment, I began to wonder if it would be possible for a lawyer to ethically advise a presidential candidate to pursue discriminatory policies. The amendment does not require that a lawyer have discriminatory intent, per my reading, merely that it has that effect. Thus, the only way I can imagine a lawyer could ethically propose policies, such as a ban on those from majority Muslim nations, in a way that falls under the exception of “legitimate advice or advocacy consistent with these rules” is if advising a candidate to pursue discriminatory policies is not “related to the practice of law.”

Coded racial appeals, or “dog whistles,” are nothing new in presidential politics. Kevin Phillips, a lawyer and political strategist for Richard Nixon was open about the “Southern Strategy” to win an emerging Republican majority through “hostility to blacks and browns among slipping Democrats.” In fact, Paul Manafort, Trump’s former campaign chairman and a lawyer, ran Reagan’s Southern operation in the 1980s with racially tinged appeals. It is not surprising, given the background of his former advisor, that Donald Trump made similar efforts to appeal to racist ideologies in ways reminiscent of post-slavery Reconstruction-Era politics that played off of the discontent of voters opposed to those changes.

However, opposition to this new rule was not based in the ethics of lawyers who represent politicians. Rather, it focused on an attorney’s free speech rights and duties to advocate zealously for their clients. In response, Professor Noah Feldman wrote it is possible to advocate zealously without crossing the line into harassment or discrimination. I believe that if lawyers are going to craft the rules of society, it is about time that we are obligated to do so in a way that is inclusive of all of its members.

As a law student, I have been taught to comfort myself about the moral implications of advocacy by deferring to the adversarial process, which is supposed to yield fair and just results. Lawyers are taught to think through arguments and counterarguments, but rarely taught to consider the morality of advocacy. If we hope to learn from our history, and avoid repeating it, it would seem that making it unethical for lawyers to engage in discrimination and harassment in their legal practice is a good first step.

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: 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.