Teaching Ferguson

As a law professor who teaches in Saint Louis, the conflict around the death of Michael Brown and the ensuing questions about the investigation and grand jury proceedings have been the subject of daily conversation.  On the day following the grand jury’s issuing a no bill, our phone rang at 4:00 in the morning, and an automated message informed us that our schools were closed because of “civil unrest.”  Yesterday, at a mall a ten-minute drive from where I live, and a short drive from Ferguson, protesters staged a peaceful demonstration to protest what they view as an unjust decision by the grand jury.  They chanted “Black lives matter,” and they assumed a position on the floor of the mall to represent Michael Brown’s body.  Our new President at Saint Louis University, Fred Pestello, after on-campus protests prompted concerned e-mails and calls from parents and students, issued a number of letters to the university community.  Several of my colleagues who have been involved with events in Ferguson in various ways have been sought after for commentary by national news media.

Prior to the decision about the grand jury, I worried and thought a great deal about how to talk to students about the process, and the ethical questions it raises.  I know that I was in good company; educators across the country have struggled with this question.  Like others, I have opinions about almost every aspect of the situation.  But conveying an opinion about the ethical implications of a situation is easy, while presenting the facts, the law, and the questions in a value-neutral way is trickier.  Even more challenging is the question of which of the various ethical determinations are a matter of personal opinion, and which are irrefutable.

On the Legal Ethics Forum (http://www.legalethicsforum.com/blog/2014/11/unethical-prosecutors-conduct-in-ferguson-case.html) Hofstra Professor, Monroe Freedman wrote:

As a result of McCulloch’s conflict of interest, however, he was determined to see that officer Wilson was not charged with a felony.  McCulloch has therefore conducted this extraordinary three-month grand jury, so that he can put the responsibility on the grand jury for declining to indict Wilson.

In a reply, Jack Marshall of ProEthics, Ltd. wrote:

Oddly, this analysis ignores the dilemma a prosecutor faces when the media and politically motivated advocacy groups demand an indictment based on erroneous, dubious or slanted accounts of what may have occurred and the character of participants in it. The prosecutor may decide, legitimately and fairly, that no charges are warranted, but because of national commentary, meddling from Washington, D.C., public emotion and other pressures, that option is unrealistic. . . “Can anyone doubt that if Michael Brown had killed police officer Darren Wilson, Brown would immediately have been taken into custody and charged with first degree murder?”—would we applaud that decision? I wouldn’t, not on the same facts and evidence. Is Monroe seriously making the argument that treating Wilson fairly is unethical because Brown might not have been treated as fairly?

Finally, U.C Hastings Lecturer in Law, Richard Zitrin, posted:

A key issue to me, then, is why the pro forma indictments of the poor, minority accused and the thorough all-evidence GJ presentation for a cop? Maybe the issue is that the poor and disadvantaged, without access inside the system, suffer from indictments just as flawed as this one arguably would have been, but they have no voices complaining.

This discussion illustrates the complexity of the situation: this is not discussion about a single problem, but a conversation about the interaction of multiple factors.  In order to have a full and responsible conversation with students, an educator should acknowledge all of the relevant factors: institutional practices and traditions, the role of cultural differences, the influence of emotions, the power of media in shaping opinions, the flaws and strengths of our legal processes, the ability of individuals and communities to be heard on issues, and so on.

From my perspective, there are a few certainties: (1) all lives are equally valuable; (2) public pressure can be beneficial when it results in increased transparency and scrutiny of vital social issues; (3) public pressure generated by media attention should not dictate how our legal system operates; (4) law enforcement agencies must be able to perform critical functions; (5) selective targeting of certain members of a community for any purpose—particularly when the force of the law is brought to bear—is counterproductive and destructive.

I am comfortable communicating these views to students.  Beyond this, I try hard to refrain from making determinations for students.  I am not the final word on anything, nor should anyone else be.  My reluctance to communicate conclusions to my students stems from the most important lessons I hope to teach – listen to all viewpoints, keep an open mind, challenge your own views, and subject them to constant and meaningful testing.  At the risk of sounding naïvely optimistic, if we can  raise the next generation of lawyers, judges, law makers, community organizers, leaders, educators, and members of society to adhere to these tenets, we increase our chances of living in a just and peaceful world.

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Scholarship Update

One mission of the BLE Blog is to highlight recent legal scholarship that addresses behavioral ethics.  An example, well worth the read, is Michael Colatrella‘s article, “Learning ‘the True, the Good and the Beautiful’ in Law School: Educating the Twenty-First Century Litigator.”  The entire abstract is posted below, but those with an interest in behavioral ethics may find the discussion of the cognitive bias and heuristics literature (in Part II) and the psychology of ethical decision-making (in Part III) of particular interest.

Abstract:

The author uses the ancient Greek ideal of learning “the true, the good and the beautiful” to form a basis from which legal education can produce lawyers who will be more valuable to their clients and more fulfilled in their twenty-first century careers. To begin, the Article advocates that law schools can foster the Greek ideal of learning “the true” by increasing its focus on “collaborative advocacy” in the core curriculum instead of relying so heavily on “adversarial advocacy” that dominates the required curricula at most law schools. To pursue learning outcomes that are better aligned with the skills needed to practice law in the twenty-first century, legal institutions should require courses that teach collaborative advocacy, such as negotiation and mediation. In a profession that is traditionally defined by its winners and losers, the modern legal arena is shifting toward being open to working with one’s opponent to find a mutually agreeable solution earlier in the dispute, which saves the client time and money. Next, the Author discusses how law school students can achieve “the good” through their legal education. Ethical education remains a staple of law school curriculum. Yet, most institutions require their students to learn only the black-letter ethical rules. When encountering difficult ethical dilemmas, however, lawyers often must decide between two or more competing values that require them to make moral choices about which the black-letter law provides little guidance. A law school curriculum that also fosters thinking about the moral dimension of legal ethics and the psychology of ethical decision-making can help aspiring attorneys to become conscientious practitioners who make better ethical, moral and strategic decisions for their client, themselves and the legal profession. Finally, the Article examines how law schools can help their students embrace “the beautiful” in legal practice. Today, lawyers need the ability to propose creative, efficient and cost-effective solutions to their clients’ problems. As intelligent technology and foreign labor performs a growing percentage of routine legal tasks cheaper, attorneys must find new, smarter ways to provide value to their clients. Law schools can help future lawyers succeed in this economically and technology driven atmosphere by embracing the increasing role that creativity will play in modern legal practice and integrating more creative problem solving techniques into their core curricula. By molding their curricula with guidance from the ancient Greek ideal of learning “the true, the good and the beautiful,” law schools can develop lawyers who can more effectively meet the demands of the twenty-first century legal practice.