Bias CLE 599 to 1
Sunday, February 22, 2004
WE COULD TELL YOU, BUT THEN WE'D HAVE TO KILL YOU
(WITHOUT ANY MEDIATION)
The January/February issue of the Hennepin Lawyer has an ad for the Mediation Center for Dispute Resolution. One of the upcoming programs listed qualifies for 3.5 Elimination of Bias credits. Here is the entire course description:
"30-Hour General Mediation Skills; March 24-27, 2004; (8:00-5:30); Tuition: $745; This four-day training focuses on mediation skills development for civil issues, both court-related disputes and those outside the legal system. A facilitative model of mediation is taught using hands-on exercises, group discussions, and multi-media presentations.; 30.25 CLE credits; 4.0 Ethics credits; 3.5 Bias credits"
What is the Bias portion about?????
There is no elaboration on the group's website. Yet another demonstration why a list of courses, even 600 of them, does not adequately describe the content of the offerings.
MILE MARKER: "Rest in Peace"
The Minnesota Institute of Legal Education (MILE) has announced that it will no longer sponsor courses. MILE and the various arms of the Minnesota State Bar Association (MSBA) combined to sponsor about half of the courses approved for Elimination of Bias credit in Minnesota.
Although MILE has never offered a significant ideological alternative to the MSBA's Elimination of Bias courses, this strengthening of the MSBA market control is troubling. For offerings outside the Twin Cities, the MSBA has a near monopoly. Frank Harris, who coordinates most of the bar association's CLE offerings, has said that he did not present conservative opinions because he did not believe that there was a market for it. This is not surprising, since the bar association sponsored the 1994 petition to implement the Elimination of Bias requirement.
WHAT JENNIFER LECTURED ABOUT
Clarion Legal presented an Elimination of Bias CLE this past Thursday entitled "What Jennifer Saw." The title is from a PBS Frontline program about the wrongful conviction of Ronald Cotton for the rape of Jennifer Thompson.
The Cotton case raises some interesting issues about eyewitness identification, as well as race. It is unclear whether evidence of Cotton's prior conviction for assault with intent to rape was admitted in either of his two trials. Amendments to federal and state rules of evidence in the past decade have made it easier to admit such evidence of prior crimes. Although liberals and conservatives generally agree that this is a positive development in the rules of evidence, it would have operated to the detriment of an innocent person in this particular case.
This important, difficult, and emotional case also happens to illustrate a paradox in the debate about bias in the legal system. Some people may argue that efforts to address purported prejudice against women by amending the rules of evidence have an unintended effect. They would argue that the unintended effect is to increase overall conviction rates in an area where there is already a racial disparity, thus increasing the overall racial disparity.
None of this is to minimize the importance of pursuing convictions for rape, or pursuing exoneration for the innocent. But it does point out that reasonable people can disagree about the existence, extent and remedies for bias, as well as who the victims are. This particular CLE seminar demonstrates even a prescribed liberal ideology leads to disagreement.
This seminar also demonstrates how difficult it is to define the parameters of the rule just by looking at a list of courses that were approved. There is a paragraph about the seminar in the Winter/Spring 2004 issue of The Clarion, but race is not even mentioned. One can guess at the content of this particular seminar because there is an entire Frontline documentary about the case. However, this is not true of most other seminars. The CLE Board requires course sponsors to provide a narrative explaining how the seminar meets the rule, but the CLE Board does not retain these narrative explanations. The alleged ideological variety (600 different ones) is worthless because there is no way to pick out the alleged conservative options, nevermind non-ideological courses.
The founder of Clarion Legal, Jennifer Kramer, is also a board member of the Innocence Project of Minnesota. The mission of the Innocence project is to investigate claims of actual innocence and promote DNA testing on those claims. When contacted on an earlier date, Ms. Kramer was coy about whether she supports allowing different ideologies, or even substantive law courses, to receive bias credit.
Saturday, February 21, 2004
TEACH IN AT ST. OLAF
My friend and colleague, Scott Johnson, caused quite a stir today at St. Olaf College. Read about it here. What does this have to do with the ideological imbalance in continuing legal education courses? I'm glad you asked. It seems that there is an ideological imbalance at the Nobel Peace Conference, too. Perhaps they will start a weblog entitled "Nobel Peace 49 to 1." If the conference organizers were smart, they would have welcomed the conservative alternative with open arms. Then they could have claimed (falsely) that the conference was ideologically balanced.
The controversy at St. Olaf illustrates one point I have been asserting. The presence of a single conservative alternative does not mean that a set of course offerings is ideologically balanced.
Saturday, February 14, 2004
ETHICAL MISC(haracterization)
Here is my response to Ethical Esq. in the controversy noted below.
peter swanson [1] sent this email to you through ethicalEsq & haikuEsq... [2] regarding this page [3].
I noticed your post from January 12 criticizing what you believed to be my position on the mandatory "Elimination of Bias" training. I am sure that you understand the space limitations in a publication like National Law Journal. To see my argument fully fleshed out, I recommend reading my brief, including the appendix, at biasbattle.com.
With regard to publicly revealing one's ideology, by taking on this case, Elliot Rothenberg has already done so. So have I. I am sympathetic to your suggestion that lawyers should just quit whining and stand up for what they believe. One of my frustrations has been lawyers from across the political spectrum who agreed with my position, but were unwilling to say so publicly.
In my brief and appendix, you will note the organized effort by political liberals in the bar association to send monitors to the lone conservative course. You will also note the partially successful efforts to deny credit to future courses that question the existence of bias.
I agree that it is important to broaden one's horizons. Sure, one can choose to attend something that is sponsored by one's political adversaries. You might actually learn something. But this is not about voluntary personal growth. Bias CLE is a mandatory requirement. The premise is that, if left to their own devices, attorneys would not attend. So if there were truly a variety of ideological choices (a doubtful proposition in Minnesota's experience), there would be a large segment of the legal community who would simply attend the seminar with which they already agreed.
One irony of this case is that all seven justices of the Minnesota Supreme Court were invited to the 2004 version of "What Bias?" to defend the Racial Bias Task Force Report. No justice was willing to attend the Federalist Society seminar. This has been outlined in powerlineblog.com.
You should recall that judicial and cabinet nominees are now asked whether they have ever been a member of the Federalist Society. As far as I can tell, what makes one a member is going to seminars. It follows that there could be career consequences for going to a seminar with the wrong sponsor.
The question is not whether these timid lawyers ought to have the courage of their convictions (they should). Rather, the question is whether the constitution protects their choice to be timid.
The Minnesota Supreme Court has suggested that the CLE rule is Constitutional because a lawyer can pick an ideology with which he already agrees. That was the gist of a significant portion of the oral argument and the Respondent's brief. This is a stunning concession if carried to its logical conclusion. It concedes that a truly mandatory program is not constitutional. The implicit opt out is the ability _not_ to broaden one's own horizons by attending a seminar with an ideology different from one's own.
However, the constitutional analysis does not stop there. Understand that substantive law courses do not, by themselves, qualify for credit. There is no apolitical or non-ideological option to satisfy the requirement. This is very much like mandatory church attendance. Broadening the choices to include mosques and synagogues does not cure the constitutional defect.
And what are we to make of the prohibition on self-study? Why must every class be "participatory"? The rule is not to ensure proper attendance records, as individual attorneys (not course sponsors) are responsible for reporting their hours. Whatever benefit is deemed to be derived from making the classes "participatory" has to do with the interaction between attendees. It follows that some attorneys may find this interaction violates their right to keep their ideology to themselves.
[1] http://www.biasbattle.com
[2] http://blogs.law.harvard.edu/ethicalesq/
[3] http://blogs.law.harvard.edu/ethicalesq/2004/01/12
DON'T BELIEVE THE HYPERBOLE
OK. This blog is dedicated to countering the fallacy that there are 600 ideologically varied options for lawyers to satisfy their "Elimination of Bias" continuing education. Here is one blogger who bought into the deception by the CLE Board. Ethical Esq. assumes that since censoring the viewpoint of courses that are accredited would be clearly unconstitutional, the CLE Board must not be engaging in such behavior. A subsequent post confuses the issue by asserting that lawyers either ought to (1) have the courage of their convictions to be open about their political beliefs (I agree), or (2) even seek to broaden their horizons by listening to political adversaries (I also agree). These assertions do not address the constitutional issue of whether lawyers should be required to do either of these two things.
Monday, February 09, 2004
DIAL 599-2-1....
Do you want to contact me? The domain is visi dotcom. My address begins "lawdog." Put them together and you have my e-mail address. Also, you can go to biasbattle.com and look for my contact information.
WELCOME
Welcome to the Bias CLE 599 to 1 weblog. Where does the name come from? Well, all Minnesota lawyers must complete two hours of "Elimination of Bias" continuing legal education within a three-year reporting period. The requirement is an attempt to promote certain views on controversial issues like affirmative action. Apologists for the requirement point to the 600 different courses that satisfy the requirement in a given reporting period. The problem is that only one or two of them are right of center, while none of them are apolitical or neutral on these issues. The ratio of 599 to 1 describes the ideological balance of the mandatory offerings.
