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Abstract:
The purpose of this essay is to explore the normative implications of risk management practices for lawyers, law firms, and professional regulation. The thesis of the essay is that the widespread adoption of risk management mechanisms (e.g., in house advisors and internal controls, outside consultants and external audits, conflicts of interest protocols and continuing legal education training) actually diminishes the appreciation of the moral choices facing lawyers in practice and the other-regarding obligations of lawyers in society. Indeed, the technology of risk assessment and regulation, implemented through internally and externally prescribed policies, subtly discounts the daily necessity of moral discretion and the constant calling of public obligation. As a result, lawyers and law firms underestimate the burdens of moral agency in the discretionary decision-making of advocacy and counseling. Equally important, they neglect the duties of social responsibility to clients, third parties, and the public. In sum, they discard the highest ambitions of professionalism displayed in traditions of independence, service, and trust.

Abstract:
This essay examines the theory/practice dichotomy in legal education through the prism of the Carnegie Foundation's Educating Lawyers: Preparation for the Profession of Law. Descriptively, it argues that the Foundation's investigation of law school curricular deficiencies in the areas of clinical-lawyer skills, professionalism, and public service overlooks the relevance of critical pedagogies in teaching students how to deal with difference-based identity and how to build cross-cultural community in diverse, multicultural practice settings. Prescriptively, it argues that the Foundation's remedial call for the curricular integration of clinical-lawyer practices similarly overlooks the utility of critical pedagogies in teaching students not only how to understand difference, but also how to represent difference-based clients and communities here and abroad. The essay is divided into two parts. Part I explores the Carnegie Foundation's assessment of law schools in preparing students through contemporary case-dialogue and in integrating alternative practice pedagogies. Part II analyzes the ramifications of the Foundation's report for alternative curricular frameworks, particularly critical pedagogies grounded in difference-based identity and community, here briefly sketched in a study of the West Coconut Grove Historic Black Church project at the University of Miami Law School's Community Economic Development and Design Clinic. The case study demonstrates both the difficulty and the necessity of developing theory/practice pedagogies effective in dealing with difference-based identity in the context of representing communities of color.

Abstract:
This Essay explores the racial norms animating the prosecution of the Jena Six in LaSalle Parish, Louisiana, a set of norms I will call Jim Crow legal ethics. By Jim Crow ethics, I mean the professional norms of practice in a time of de jure or de facto racial segregation. The Essay evaluates the prosecution of the Jena Six against three conceptions of professional norms applicable to the criminal justice system: District Attorney Walters's colorblind conception, David Luban's dignitary conception, and a difference-based, outsider conception. Part I describes the legal and political history of the Jena Six. Part II considers the prosecution of the Jena Six under District Attorney Walters's colorblind conception of prosecutorial discretion. Part III analyzes the same prosecution under Luban's dignitary conception. Part IV revisits that prosecution in light of a race-conscious outsider conception favoring dignity-restoring relations over identity-degrading and community-disempowering relations.

Abstract:
This essay endeavors to show that the politics of community-based legal action is a remedy too often out of the reach of liberal lawyers, even when their springboard is the work of John Hart Ely in Gideon v. Wainwright. Part I describes the history of Gideon v. Wainwright, documenting Gideon's personal background and the procedural contours of the litigation. It chronicles Ely's participation in the litigation and its continuing hold on his legal imagination. Part II uncovers the jurisprudential roots of Ely's vision of lawyering in a legal process conception of political access rights and minority equality rights developed through his writings on civil rights, constitutional law, and criminal procedure. It explores how Ely's process vision was enlarged by the civil rights movement and at the same time tempered by separation of powers considerations of role competence, institutional function, and political legitimacy. Part III exposes the legal process underpinnings of client-centered lawyering models erected in defense of the unrepresented. It demonstrates that these liberal-lawyering models of representation in the fields of poverty law and criminal justice focus on adversarial rights and material outcomes at the expense of democratic empowerment and minority collaboration. Part IV examines Ely's work for lessons of clinical legal education, criminal defense practice, and poverty law advocacy in impoverished communities of color. It seeks to discern in Ely's work a core set of democratic norms and narratives of political access and minority equality generalizable to multicultural clients and communities. Further, it sketches community-centered guidelines for lawyers laboring to advance the legal, political, and economic interests of unrepresented individuals and groups.

Abstract:
The effective delivery of scarce legal goods to disadvantaged clients requires more than the provision of equal access, case-by-case representation, and zealous advocacy. Scarcity requires that effective legal change be measured not by the outcomes of individual cases, but rather by the progress of social change: specifically, by the degree to which individuals are able to collaborate in local and national alliances to enlarge civil rights and to alleviate poverty. This Essay argues that, by incorporating the theory of covering into their work, legal practitioners in civil rights and poor people's movements can facilitate such collective action. This Essay also makes the general claim that forming links between theory and practice should be a principal goal of clinical and nonclinical legal education.

Abstract:
In previous work investigating the role of race, lawyers, and ethics in the American criminal justice system, I analyzed the use of racial identity, racialized narrative, and race-conscious representation by prosecutors and defenders in cases of racially-motivated violence. This Article extends that project by examining the race-conscious practices and dilemmas of lawyers representing communities of color in combating the public and private forces of urban impoverishment. Part I surveys law school clinical practices of community lawyering. Part II assesses theories of community lawyering, drawing on the record of community economic development, the rise of the theoretics of practice movement, the history of community organizing, and the still evolving rebellious lawyering tradition. Part III considers critiques of community lawyering distilled from contemporary clinical legal scholarship. Part IV appraises the normative and practical dilemmas of race-conscious community lawyering practices.

Abstract:
This Article is part of a larger, ongoing project investigating the role of race, lawyers, and ethics in the American criminal-justice system. The purpose of the project is to understand the race-based, identity-making practices of prosecutors and defenders in order to craft alternative civil rights and criminal-justice strategies in cases of racially-motivated violence. To that end, the Article revisits the 2006 prosecution and defense of the Jena Six in LaSalle Parish, Louisiana in the hope of uncovering the professional norms of practice under de jure and de facto conditions of racial segregation, a set of norms I call Jim Crow legal ethics. Jim Crow ethical norms condone and oftentimes encourage coded claims of race-based identity in describing individual black offenders as culturally and socially inferior, and, thus, in publicly shaping the collective histories of black offender communities.

Instead of rehearsing the Jim Crow norms and narratives typically constructing the identity and history of black offenders, such as "rotten social background" and "black rage," this Article addresses a more provocative claim: the "natural" criminal pathology of black male offenders, what I call the antebellum defense. Proffered as an excuse or as a mitigating circumstance, the antebellum defense offers coded racial narratives to diminish the mental capacity and moral character of black offenders and their communities. Under the standard conception of criminal defense ethics, the antebellum defense permits defenders to excuse black male lawbreaking for reasons of "innate" criminal character rather than environmental deprivation, cultural deviance or socioeconomic oppression. Heard at trial and on appeal, the defense finds justification in the instrumental reasoning of conventional lawyer adversarial discretion.

The defender discretion to assert the antebellum defense in the Jena Six case and elsewhere raises troubling questions of lawyer morality in the criminal- justice system. To evaluate the morality of the antebellum defense for the Jena Six, the Article turns to David Luban's recent writings on legal ethics and human dignity, juxtaposing the standard adversarial conception of criminal-defense ethics against his dignitary conception of ethics, here enlarged by identity-affirming, dignity-restoring, and community-empowering norms of advocacy. Guided by these and other integrity norms, Luban's alternative dignitary conception provides moral direction to civil rights and criminal-justice advocates in cases of racially motivated violence.

Abstract:
This essay explores the story of Floride Norelus, an undocumented Haitian immigrant, her civil rights lawyers, and the judges who didn’t believe them. The backdrop for Norelus’s story comes out of Ariela J. Gross’s new book What Blood Won’t Tell: A History of Race on Trial in America. In What Blood Won’t Tell, Gross, an elegant historian and eloquent storyteller, enlarges an already distinguished body of work on slavery, race, and antebellum trials to investigate the changing meaning of identity in law and litigation. Bridging the study of law and culture, she constructs or rather reconstructs identity - both race and gender - from the artifacts of local knowledge expressed in social performance and scientific expertise. Gross points to two “key moments” in the twentieth century American history of racial and gender identity occurring initially when “racial identity trials shifted from more routine adjudications of ancestry to intense contests about science and performance,” and subsequently when jingoist and nativist movements ignited “efforts to define the boundaries of citizenship racially.”

During these moments, she notes, the forum for the “determination” of racial identity moved to the local courthouse, “a key arena through-out the nineteenth century for struggles over identity.” At local courthouses, Gross explains, trials of racial and gender identity “reverberated through American culture.” Indeed, for Gross and others, the “cultural arena” of a courthouse and the “legal case” at stake “could fix the identity of an individual or an entire national group with a conclusiveness that was hard to overturn.” Because of its cultural import, Gross argues, “law has been a crucial institution in the process of creating racial meaning at every level.” Both trials and trial transcripts, she observes, disclose “glimpses of ordinary people’s, as well as lower-level legal actors’ understandings of legal and racial categories and of their own places in the racial hierarchy.” Race trials, Gross emphasizes, “brought to the surface conflicting understandings of identity latent in culture, and brought into confrontation everyday ways of understanding race with definitions that fit into the official, well-articulated racial ideology that supported the maintenance of slavery and post war racial hierarchy.” Witnesses, lawyers, and litigants entangled in this cultural conflict “learned to tell stories that resonated with juries” and judges; in doing so, they actively participated in “the day-to-day creation of race.”

This Essay extends Gross’s historical scrutiny of identity trials to contemporary civil rights debates over the construction of race in law and litigation. The Essay is divided into three parts. Part II maps Gross’s analysis of racial identity trials, explicating her notions of racialized common sense and performance. Part III examines the trial and appellate litigation in Floride Norelus’s civil rights case. Part IV considers alternative approaches to civil rights litigation embodied in identity performance and empowerment strategies.

Abstract:
The purpose of this essay is to examine the form and substance of post-racialism in legal education and lawyering within the fields of civil rights and poverty law. Building on the work of the eminent urban sociologist William Julius Wilson, the essay discusses the structure and culture of race and racial inequality in American law and society, and proffers an alternative structural and cultural discourse about race in legal-political advocacy. By discourse, I mean a way of seeing, speaking, and thinking about the world. Structural discourse speaks to the material effects of economic and social structures, such as low-skilled labor markets and housing segregation, on the physical environment of the inner-city. Cultural discourse speaks to the behavioral effects of these larger structures on individuals, families, and institutions, such as churches and nonprofit community organizations, within the inner-city. Both structural and cultural discourse focus on the interaction between individuals and their environments – cultural, economic, and social. In this way, the essay revisits the debate over color-conscious jurisprudence in scholarship, advocacy, and public policy.

The essay is divided into four parts. Part I describes the Community Economic Development and Design Clinic’s Historic Black Church Project and the school-to-jail crisis in Miami. Part II reviews the structure and culture of difference, and outlines difference-based critical pedagogies and practices emerging in legal education and the lawyering process. Part III examines Wilson’s recent work on the structure and culture of the inner-city black poor, particularly the concentrated poverty affecting black men and black families. Part IV considers alternative post-racial pedagogies and practices to combat the structure and culture of contemporary inner-city black poverty exemplified by Miami’s school-to-jail crisis. The essay concludes that the crisis of inner-city concentrated poverty compels civil rights and poverty lawyers to reconfigure their understanding of structural and cultural effects when representing individuals, groups, and communities of color.

Abstract:
This essay describes the first decade history of the University of Miami Law School's Center for Ethics and Public Service highlighting the contributions of its junior faculty in developing innovative clinical, ethics, and interdisciplinary education programs for undergraduate and graduate student in the fields of immigration law, professional responsibility, and public policy. Founded in 1996, the Center is an interdisciplinary clinical program devoted to the values of ethical judgment, professionalism, and public service in law and society. The Center's in-house clinics and educational programs provide legal representation to low-income communities in the areas of children's rights, public health entitlements, and nonprofit economic development, as well as legal ethics education and professional training to the Law School, University, and Florida business, civic, and legal communities. The Center observes three guiding principles: interdisciplinary collaboration, public-private partnership, and student mentoring and leadership training. Its mission is to educate law students to serve their communities as citizen lawyers.

Abstract:
This essay will examine the impact of risk management norms and practices on lawyer integrity under contemporary models of large law firm economics. In a prior work, I argued that the widespread adoption of risk management mechanisms diminishes the appreciation of the moral choices facing lawyers in practice and the other-regarding obligations of lawyers in society. Drawing on the work of Milton Regan and William Simon I maintained that the technology of risk assessment and regulation discounts the daily necessity of moral discretion and the calling of public obligation. As a result, I asserted, lawyers and law firms underestimate the burdens of moral agency in the discretionary decision-making of advocacy and counseling. Equally important, I added, they neglect the duties of social responsibility to clients, third parties, and the public and, thus, discard the highest ambitions of professionalism displayed in traditions of independence, service, and trust.

In a powerful rebuttal, Anthony Davis contends that risk management actually enhances individual ethical deliberation. Davis argues that risk management institutionalizes ethical values and gives them concrete technical form. Indeed, he discerns a complementary relationship between the goals and the mechanics of risk management and the principles of legal ethics and professionalism. On this collaborative view, risk management educates, supports, and reinforces ethical decision-making on individual and institutional levels.

The purpose of this renewed inquiry is to test Davis’s “collaborative” thesis in the context of the large law firm legal services industry. To that end, the essay will reconsider the 1997 federal criminal prosecution of John Gellene, a former partner at the Wall Street law firm of Milbank, Tweed, Hadley & McCloy (“Milbank”), in order to assess the impact of risk management norms and practices on lawyer and law firm ethical integrity and aspiration. The Essay is divided into three parts. Part I revisits my prior critique of risk management norms and practices in lawyer regulation and law firm organization. Part II mounts a defense of risk management norms and practices culled from Davis’s writings. Part III considers norms of integrity carved from David Luban’s body of work on the legal profession.