Saturday, December 15, 2012

Take The Classroom Back

Newberry College in Columbia, South Carolina, will offer a major in social media.
The college, for its part, explains that this is one of the first interdisciplinary social media majors. It says it blends graphic design, communications, business, marketing, psychology, and statistics, and that social media is such a vital part of marketing and other business habits that it'll be a valuable qualification with a likely career path ahead of it. One way students will learn mobile marketing, the college says (via Fox 57), is by designing QR codes, "those little black and white scanners you use with your smartphone." Apparently this is the "hot new way" to do marketing with mobile phones.
So...last time we looked, the QR code was frowned upon by almost everyone, everywhere (though it does linger in the U.S.). And surely one worry is that by the time students graduate in 2017, with the course starting in 2013, the rocket-speed development of social media itself will have outpaced their education.
No, this isn't from the Onion, but from educators who are trying to become relevant in a young person's world by getting ahead of the curve, even though there is neither a chance of success nor a need to turn culture into coursework, and cater to the interests of children.

What teenager wouldn't be enticed by a major in Facebook with a minor in Pinterest?  Of course, if they offered this a decade ago, the major would have been Netscape and they would be working the counter at Dairy Queen today, if they were lucky.

What type of educator panders to youth culture in this way?  All types, actually.

Having taken lawprofs to task for the inexcusable failure rate on the bar exam, it's worthwhile to consider what has gone terribly wrong in the classroom. It's not that lawprofs aren't smart enough to adequately educate law students, though their interest in pedagogy as compared to indulgent scholarship is in question. But, from what I know of law professors in general, they want to teach students well, even if it's not their primary focus.

So if it isn't their capability to teach or knowledge of the law, then what? 

My surmise is that a core problem is that lawprofs have allowed the inmates to take over the asylum. Law students today have a very different perspective of their relative worth. They believe their opinions are important. Stemming from an excess of unwarranted self-esteem and entitlement, borne of years of coddling, they view themselves as peers of their professors.

They have questions, and demand not only prompt answers, but answers that validate them. The will not tolerate the Socratic Method, as it belittles them and reflects a lack of respect.  There are no longer wrong answers in law school, but just answers not as right as they could have been. And when a student disagrees, asserting that his answer is every bit as good as the one the professor "suggests," they have no qualms about informing the professor of her error.

What does not happen anymore is a professor informing a law student that they are wrong. Dead, completely wrong. Totally wrong. There is no Kingsfield to hand Hart a dime.  Any lawprof foolish enough to do so would learn that he was "condescending and disrespectful." 

And why, an old lawyer wonders, would any lawprof care what a law student thought of him? The dark side of empiricism, evaluations. I asked a lawprof for whom I have enormous respect what drives lawprofs to give a damn about evaluations. This is what I was told:
Deans probably give popular teachers a bit more money in salary, although it's hard to know for sure and varies Dean to Dean. Bad teaching evals can make a lateral move less likely and tenure harder, too, although that's probably only if the evaluations are really bad.   But I suspect the real reason professors care is that everyone wants to be popular, and to feel like their work is valued.  And for professors, evaluations are like their grades, and professors tend to be Type A people who are competitive and want to get high grades.
This is a shocking and deeply disturbing explanation.  A law professor cannot, by definition, be "condescending" to a law student. There is a reason why one is the teacher and the other the student. The teacher possesses superior knowledge. The student is an empty vessel, waiting to be filled with the teacher's knowledge.  At least that was the old concept, before they needed the permission and approval of students to teach them.
Plus, law students tend to be a pretty nice people, and it's natural to want the nice people you work with to like you back.
Law professors do not "work with" law students. They teach law students. Or at least they used to, and many of us thought that was still the job. 

Even though practicing lawyers may not know what happens in the classroom these days, we can see the attitude on blogs, Twitter, Facebook, etc., where law students are so bold as to school us on the law. One of my favorite examples was on Twitter, where a law student would twit her opinions on the law to me, which were ignorant and juvenile, and I told her so and explained why.  She was outraged that I didn't respect her views, at my snide, arrogant and condescending attitude.

I responded that the fact that I acknowledged her existence at all was a demonstration of respect far beyond what she deserved. In what universe does a law student get to demand the attention of an experienced lawyer?  In her universe, I was told. In her universe, she was entitled to demand my attention and respect, and my failure to comply with her demands, and in the manner she demanded, made me unworthy.

Dear Lawprofs:  Take back your classroom.  These are not your peers, your colleagues. Perhaps one day they will be, but not now. When you seek their approval, you forfeit your authority to teach them.  If they are wrong, someone must tell them they are wrong. If they lack the capacity to become a lawyer, someone must give them a dime and tell them to call their mother. 

But they won't like you?  Too bad. Your job is not to be liked, but to teach blobs of clay to become lawyers. You do not need any more permission than the fact they sit in your classroom.  They disagree with what you say? Too bad. They are students. They know nothing. That's why they're there.  Their feelings will be hurt if you don't apologize for anything less than glowing validation of their every thought, and they will take it out on you in their evaluations?

That's why they pay you the big bucks.

The expectation of students is that you will honor and respect them, no matter what.  They can be wrong, yet you will find something positive to say because they cannot handle the slightest hint of criticism. They are fragile. They are delicate. They are special.  And since you want them to like you, you pander to their demands. 

As the bar exam results prove, this hasn't helped them to meet the minimal level of competency to become a lawyer. As unemployment rates prove, they are about to learn what real disappointment means. And as their skill in the representation of clients proves, real life will not be nearly as kind to their fragile self-esteem as you were.

You have done them no favors. You have not done your job. Perhaps they are now your dearest pals, but they didn't need a friend. They needed a teacher.

As I pay attention to what lawprofs say and do, I also pay attention to what law students and new lawyers say and do. Some are remarkably astute. Some are mind-bogglingly misguided. They hate me for telling them when they are wrong. They call me snide, arrogant and condescending. And I don't give a damn. They are not my peers, but children in dire need of guidance that no one else is willing to give them. 

Of course, they won't listen to me. I don't coddle them and rub their little tummies. So as long as you concern yourselves more with sweet words on their evaluations, law students will continue to emerge from your classrooms incapable of the rigors of law and unsafe for clients. But who cares, as long as they like you. 

This is the pedagogy you've created and perpetuated. If you have any balls at all, take back your classroom and teach your students well.  Hurt their feelings whenever their feelings need to be hurt. That may be the most important lesson you can ever teach them.  And stop caring more about your validation than what these ignorant, entitled misfits will do to clients some day.

Cross posted at Simple Justice.

Monday, December 3, 2012

Time for universalizing international criminal justice

by Max du Plessis

It has become fashionable to criticize the International
Criminal Court (ICC) for its exclusive focus on African cases.  The critical perception of the ICC and its
work in Africa is a problem of history and international politics.  Developing nations, particularly from the
South, now repeatedly and rightly complain about the skewed power relations
reflected in the Security Council.  Those
power relations – and the imbalance of power within the Council – have come
sharply into focus in the case of the ICC. 
That is because of the role reserved for the Security Council, through
the Rome Statute that created the ICC, within the ICC regime.  After a decade of the ICC’s work, we have
witnessed as the Security Council referred two African situations to the ICC
(Sudan, and Libya) – but has repeatedly failed to do so in respect of equally
deserving situations (in relation to crimes committed by Israel, and most
recently in respect of the crimes unfolding before our eyes in Syria).  Geographically we now have ten years of the
ICC’s work, and the reality that all the cases opened by that Court are in

At a conference recently held in Nuremberg in early October
2012, the new Prosecutor of the Court, Ms Fatou Bensouda, correctly responded
to African critics by proclaiming powerfully, in her words, “that if you don’t
wish to be targeted by the ICC, then don’t commit the crimes”.  And Ms Bensouda is right to highlight that
there are good reasons for why each of the African situations are currently
before the Court, not least of all because the bulk of the cases being
investigated are on account of African governments “self-referring” cases to
the ICC. Furthermore, we might pause to note that African victims of the
heinous crimes committed against them in the DRC, or in Uganda, or in Cote d’
Ivoire, or in Kenya, or in Sudan, or in Libya, don’t particularly care that the
ICC’s focus is on African situations only – probably in their minds they are
only too satisfied that the ICC (somebody, anybody!), is attempting to deal
with the perpetrators of these crimes.  
It would be a double-tragedy to assume that their victims share the
self-serving criticisms of the ICC by African despots and powerful elites.  And self-serving criticisms they all too
often are – one cannot imagine African leaders or the African Union caring much
to criticize the ICC if it had decided to pursue a worthy case against the head
of state from, say, a South American country. 
We are closer to the truth if we accept the obvious – which is that African
criticisms of the ICC’s focus on President al-Bashir of Sudan arise precisely
because his case brings home to others geographically and graphically that they
may be next. 

Nevertheless, it is time to accept that all these African
cases give rise to a perception problem, the sum of which can no longer be
ignored, and which threatens to undermine the credibility of the court.  Let me tell you why, for three reasons.

The first reason is because this exclusive African focus
undermines claims that the international criminal justice project is truly
universal in its justice aspirations; or free from the vicissitudes of
international politics.  At the same Nuremberg
conference at which Ms Bensouda spoke, Judge Song, the President of the ICC,
drew attention to the importance of the ICC being independent and universal in
its aspirations, and Judge Hans Peter-Kaul, also of the ICC, spoke about
equality before the law.  However, there
is a disconnect between these goals – laudable as they are – and the practice
of international criminal justice. 
Ultimately, it is a question that any first year law student is taught
to identify: being a question of fairness and equality.  So long as the Security Council and the ICC
ensure that the Court busies itself exclusively with African situations, and
ignore or evade dealing with the sins of Syria, or the plight of the
Palestinians, the Court will suffer from a credibility problem. 

We would all have seen in early September this year that
Archbishop Desmond Tutu refused to share the stage with Tony Blair at a
leadership conference in Johannesburg. 
His refusal was motivated by his concern about the double-standard of
international criminal justice.  The concern expressed by the revered
Archbishop symbolizes a powerful and morally profound view that the
international criminal justice project is shot-through with hypocrisy.  While it is easy to dismiss the self-serving
criticisms of the ICC by African despots and warlords, it is not possible to do
so in response to the criticisms of Archbishop Desmond Tutu.  Tutu while no friend of tyrants, is a firm
friend of equality and fairness.

That leads to a second reason why the ICC perception problem
can no longer be ignored.  Aside from the
justice principles of equality and fairness, this exclusive focus on Africa
affords the selfsame African tyrants and powerful elites a gift; an excuse; a
weapon.  It allows them to draw deserving
attention away from African crimes and the plight of African victims, by
insisting that the spotlight be kept trained on the skewed nature of
international criminal justice.  And
ironically, it allows them to do so with a straight face.  It gives them a stick with which to beat the
ICC and the international criminal justice project.  It is no coincidence that the African Union’s
resistance to the ICC reached its shrillest levels the moment the ICC, through
the Security Council’s referral of the Sudan situation to the Court, decided to
focus on the crimes allegedly committed by an African sitting head of state in
the form of President al-Bashir.  As the
net fell on him, it became clear in a flash to others similarly situated on the
continent, that his fate might be shared by other elites – that the net might
be extended to them. 

The backlash by the AU against the ICC is well
chronicled.  Whether out of a real
concern to ensure equal justice under law, or to shield powerful African
leaders, it is enough here to note that the AU has taken various steps to
reflect its deep displeasure with the work of the Court on the continent.  We know about the repeated requests by the AU
for the Security Council to defer the case against al-Bashir; about Resolutions
adopted by the AU commanding AU member states not to cooperate with the ICC in
arresting African heads of state; and about the invidious position that a
majority of African states have found themselves in, torn between fidelity to
their regional motherbody, the AU, and their commitments to the ICC as treaty
members of the Rome Statute.

Also, more recently, we have seen how the AU’s discontent
with the ICC has fueled efforts to create a regional international criminal
chamber, grafted onto the extant African Court on Human and Peoples’
Rights.  In November 2011 a draft
protocol for the creation of such a chamber was rushed into existence under the
AU’s stewardship, and in May 2012 Ministers of Justice and Attorneys-General at
an AU meeting considered and adopted the draft protocol for the establishment of
international criminal jurisdiction for the African Court.  We are now at a stage where the Protocol has
been recommended for adoption by the AU Assembly, set for early in 2013.  Given the continent’s human rights
atrocities, some (again) with a straight face can claim that this is a laudable
development.  For my part, I’m not so
sure – as I’ve written in detail elsewhere. For one thing, the Protocol has been rushed
into existence with unseemly haste. 
While the AU has for some time been thinking about the creation of a
regional international criminal tribunal (particularly because of perceived
abuses of universal jurisdiction by European States), it is quaint to think
that the invigorated push for the African Court’s expansion has no connection
with the AU’s backlash against the ICC. 
The fact is that the protocol has been drafted with little or no
meaningful consultation with African governments or civil society – being
driven from the top-down by powerful players within the AU.  A second difficulty is the Court’s proposed
subject-matter jurisdiction.  Aside from
the African Court being asked to tackle the traditional international crimes of
genocide, crimes against humanity, and war crimes, the proposal is for the Court
to also tackle a raft of continental plagues – including terrorism, piracy,
mercenarism, corruption, money laundering, trafficking in humans and drugs, and
aggression.  Again, these no doubt are
crimes that deserve a response, but the obvious question is whether a
meaningful one could ever be expected from the African Court, which to date has
struggled even to fulfill its human rights aspirations.  That the Court struggles is hardly the fault
of its judges.  The fault lies with the
continent’s politicians and their fudging and obfuscating within the AU,
including their poor grasp of finances. 
The risk now facing the Court is that it is expected to do too much,
with too little.  Certainly there is no
realistic prospect of doing justice to this wide panoply of offences that are
to be included on the Court’s docket. 
Aside from the difficulty of complementing the Court’s judicial role
with fully capacitated prosecutorial and investigatory bodies that can
meaningfully pursue cases against the accused, there is the little problem of
money.  A single unit cost in 2009 for an
international criminal trial was estimated to be in the region of US $ 20
million, nearly double the approved 2009 budgets for the African Commission and
African Court combined.  Put differently,
the ICC budget for 2012 – for investigating just three of these international
crimes – is just about double the entire budget of the African Union as a whole
for the same year!  The question must
therefore be asked: where is the money to come from?  The answers to the question are vital.  Without money the AU can’t capacitate the
African Court to do the type of international criminal justice work that the
ICC is already doing on the continent, in the service of African victims.  It is just as well to reiterate that the
African Court in its more modest role as a human rights court is already
struggling (discussions with African Court judges confirm this to be the case,
including their complaints about resource constraints).  To over-expand the Court might be a headshot
to a body that is already kneecapped. 

The short point is that serious questions arise about the
effectiveness, desirability and impartiality of an international criminal
chamber within the African Court.  Given
these and other difficulties associated with the AU’s recent rush to capacitate
the African Court with international criminal jurisdiction, a fair argument
might be made that the AU’s decision to embark upon this expansion is less
about regional justice, and more about regional obfuscation.  Isn’t the real motive behind this push by
powerful AU figures aimed at throwing sand in the ICC’s gearbox, by placing
speed-bumps in the path of African states that are already party to the ICC,
and by sending confusing signals to those thinking of ratifying the Rome
Statute?   Are we not witnessing what
might be called cynical complementarity? 
Of course, one does not want to be read as unduly negative about the
prospects for an African regional criminal chamber; or worse, as an
Afro-pessimist.  So let me say conclude
this portion of the paper by saying the following: if in due course the African
Union were to unveil a sufficiently funded, meaningfully resourced, legally
sound, and capacitated African criminal court that would fearlessly and
independently prosecute the likes of President al-Bashir or Hissen Habre, or
other African warlords, while simultaneously performing without compromise the Court’s
parallel mandate of protecting African human and peoples’ rights … then we
should all applaud, and I would clap loudest.

That brings me almost to the end of this short piece.  Allow me now to focus on the positives.

The first is to herald, despite all the AU’s naysaying, the
leadership role that Africa has taken in respect of the ICC.  We have the world’s first examples of
self-referrals from this continent (whereby African leaders invited the ICC to
open investigations into crimes committed in Uganda, and the DRC), most
recently continued in the case of Mali calling for the Court’s intervention in
respect of atrocities committed in that country.  This is smart politics too: while African
states contribute a relatively small amount to the overall budget of the ICC,
they receive disproportionality high levels of the ICC’s service in the form of
highly paid professional investigators, prosecutors and judges focusing
attention on solving and prosecuting crimes committed in African states. 

The second is to celebrate the important role that
complementarity has played – positively – in the work of civil society and
domestic institutions in responding to African crimes.  Again, despite the AU’s bitter contestation
with the ICC at the political level, on the ground domestic investigations and
prosecutions of international crimes have shown promising signs of a home-grown
form of international criminal justice that should serve as an example beyond

In this respect, there is an important judgment recently
handed down by the South African High Court confirming that South African
authorities are under an obligation to act as a complement to the ICC in
investigating – through the use of South Africa’s universal jurisdiction
provisions in South Africa’s ICC implementation legislation – purported acts of
torture committed in Zimbabwe by Zimbabwean police officials against Zimbabwean

Not only that, but for all the AU’s attempts to coordinate
an “African” response to the ICC, various examples have undermined the attempts
at a homogenous continental position. For example, South African civil society
mobilized in 2009, after reports that al-Bashir (by then sought by the ICC) had
been invited to attend the inauguration of President Zuma in Pretoria.  Civil society threatened to seek a court
order for the arrest of al-Bashir if he attended the inauguration, and
ultimately the Government publicly stated that it was committed to the Rome
Statute and undertook to arrest al-Bashir if he did arrive in the country.  Al-Bashir chose not to visit South Africa on
that occasion – and hasn’t attempted to visit since. In respect of Kenya,
al-Bashir tried his chances on one occasion, turning up as a guest at the country’s
celebration of its new Constitution in August 2010.  In response to varied criticism of its
decision to host al-Bashir, and in reaction to a reported follow-up visit by
al-Bashir to attend a summit in Kenya two months later, Kenyan civil society went
to court and obtained a court order for the provisional arrest of al-Bashir
should he enter Kenya’s territory.  He
hasn’t been back there since.

These positive examples are but a few amongst many – more
fully explored in a recent paper published by the Institute for Security

Ultimately, in closing, it remains for the international
community to take seriously the call by Archbishop Desmond Tutu for less
double-speak and hypocrisy when it comes to international criminal
justice.  While it is so that the
Security Council is often singled out as the source of this skewed unfairness,
that would be to miss the full picture. 
It is also vital to recognize missed opportunities – and to learn from
them – when it comes to the ICC and its various organs.  Most notably in this regard has been the
decision of the Office of the Prosecutor, under the leadership of the former
Prosecutor, Luis Moreno Ocampo, effectively to avoid investigating the crimes
committed by Israel during Operation Cast Lead. 
In April 2012, Ocampo indicated, in an official statement , that he was
not competent to decide whether Palestine is a State such that
it can accept the jurisdiction of the ICC under Article 12(3) of the ICC
Statute. As a result, the ICC Prosecutor took the view that he could not
take any action as a result of the January 2009 declaration made by the
Palestinian National Authority, accepting the jurisdiction of the ICC over
crimes committed on the territory of Palestine.

In that statement, the Prosecutor decided that “competence
for determining the term “State” within the meaning of article 12 rests, in the
first instance, with the United Nations Secretary General who, in case of
doubt, will defer to the guidance of General Assembly. The Assembly of States
Parties of the Rome Statute could also in due course decide to address the
matter in accordance with article 112(2)(g) of the Statute.”

A group of eminent international law scholars took up the
Prosecutor’s suggestion and wrote to the President of the Assembly of States
Parties to the Rome Statute to urge her to place the question of the Statehood
of Palestine, for the purposes of Article 12(3) of the Statute, on the agenda
of the next meeting of the ASP – just recently held in The Hague.  While the President of the ASP declined to do
so, it is notable that in their letter to the President the academics,
including Professors John Dugard and William Schabas, highlighted what they
believed is really in issue.  The
professors wrote that “[w]e believe it is in the interests of international
criminal justice and the reputation of the ICC that the question of the
statehood of Palestine for purposes of Article 12(3) of the Rome Statute be
properly resolved as soon as possible”.

That question of the statehood of Palestine, in my view,
might be recast more broadly.  I think it
is in the interests of justice of the reputation of the ICC that the Court
stretch its work beyond Africa.  By doing
so the Court will deny the powerful African elites the stick which they so
easily and distractingly wave at the ICC. 
It will also – where the evidence shows a need for the Court’s intervention
– be a means by which to pay homage to the principle of equal justice under
law.  At the same time we should embrace
and encourage the existing work that is being done by the ICC in Africa. 

There is then, a potential for a win-win situation.  For the ICC to do justice as it should to the
African victims of the cases that are rightly before it and to do justice to the victims of such crimes outside of Africa
who equally deserve the Court’s and the international community’s

Sunday, December 2, 2012

National Jurist's 25 most influential people in legal education

The National Jurist has named its 25 finalists for the title of the most influential person in legal education. I am honored and humbled to have been named as a finalist.

These are the finalists, in alphabetical order:

  • Catherine Carpenter, Professor, Southwestern Law School
  • Paul Campos, Professor, University of Colorado Law School
  • Erwin Chemerinsky, Dean, University of California Irvine School of Law
  • Jim Chen
  • Hiram Chodosh, Dean, University of Utah S.J. Quinney College of Law
  • The Faculty of Washington and Lee School of Law
  • Bryant Garth, Dean Emeritus and Professor, Southwestern Law School
  • John Garvey, Professor, University of New Hampshire School of Law
  • Claudio Grossman, Dean, American University Washington College of Law
  • Phoebe Haddon, Dean, University of Maryland Francis King Carey School of Law
  • William Henderson, Professor, Indiana University Maurer School of Law – Bloomington
  • Kevin Johnson, Dean, University of California Davis School of Law
  • David Levi, Dean, Duke University School of Law
  • Lizabeth Moody, Professor and Dean Emeritus, Stetson University College of Law
  • Jerry Organ, Professor, University of St. Thomas School of Law — Minneapolis
  • John O'Brien, Dean, New England Law Boston
  • Sophie Sparrow, Professor, University of New Hampshire School of Law
  • Richard Sander, Professor, University of California at Los Angeles School of Law
  • Brian Tamanaha, Professor, Washington University School of Law
  • William Treanor, Dean and Executive VP, Georgetown University Law Center
  • Kyle McEntee, Co-founder, Law School Transparency
  • Blake Morant, Dean, Wake Forest University School of Law
  • Patricia White, Dean, University of Miami School of Law
  • Philip Weiser, Dean, University of Colorado Law School
  • Frank H. Wu, Chancellor & Dean, University of California, Hastings College of the Law

Update: Paul Caron of the Tax Law Prof Blog has provided coverage of this list. For me, the honor of being named to this list closes a circle that began when the National Jurist quoted me in an article on change in legal education — like its glacial equivalent, slow to progress but inexorable and epochal in its eventual effect. I do hope to live long enough to see the triumph of reform over reaction.