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Pamela Joy

About Pamela Joy

Palma Joy Strand graduated from Stanford Law School in 1984 and then clerked for Judge Skelly Wright of the U.S. Court of Appeals for the D.C. Circuit and Justice Byron White of the U.S. Supreme Court. She spent the next twenty years (1) teaching law part-time at the University of Maryland and the Georgetown University Law Center; (2) raising three kids; and (3) working as a civic organizer in her community of Arlington, Virginia, where she focused on the public schools. She is now at Creighton Law School, where she works closely with the Werner Institute for Negotiation and Dispute Resolution. She teaches what she thinks of as “real people” classes in which the law touches the lives of everyday people: Local Government Law, Trusts and Estates, Civic Organizing and Democracy, Street Law, and Professional Responsibility. Her academic work is grounded in her community experiences and focuses on how law and community are connected and on how inequalities undermine civic integrity. In her spare (!) time, she tries to keep from becoming hopelessly outdated technologically, sews quilts inspired by those from Gee’s Bend, pores through catalogues of native plants for her garden, and spends as much time outdoors as is possible for a transplanted Californian in Nebraska...
1 Aug, 2012

Rights versus right?

Author |Opinions|0 Comments

Guest post by Elaine Sylvester

 

12 people were killed when a gunman entered a theater in Aurora, Colorado, and proceeded to open fire on the captive audience.

Like many news-hungry Americans, I spent a sizable percentage of the days after combing the Internet for insight into the cruelties that we witnessed from afar. And though I still […]

7 Sep, 2011

Of Famines and Lawyers

Author |Legal Profession|0 Comments

Query:  What is the connection between famine (on the one hand) and the current tangle of issues regarding the undersupply or oversupply of lawyers and legal services (on the other)?

Answer:  The problem in both instances may be one of distribution.    

As to famine…

Thomas Keneally’s new book Three Famines traces the great Irish Potato Famine of the mid-1800’s, the Bengal Famine of 1943, and the Ethiopian famines of the 1970’s and 1980’s.

His conclusion is that overreliance on one source of food leaves a population vulnerable to famine, but it is only when other factors such as inept government or idealogy come into play that the initial trigger balloons into catastrophe.

Hearing Keneally interviewed on NPR’s Marketplace recently reminded me (once again) of the wisdom of so much of Nobel Laureate Amartya Sen’s work.  Sen made the case almost 30 years ago that famine is caused not by a lack of food per se but by a lack of distribution of food. Hence his much-repeated declaration that there has never been a famine in a functioning multiparty democracy.

Famine as maldistribution diagnoses the primary cause of the current famine in the Horn of Africa, for example, not as a lack of food worldwide but as food not getting to people who are desperate for it.  Which may, according to both Keneally’s and Sen’s insights, have a lot to do with why destabilized and dysfunctional Somalia is at the epicenter of the famine.

Famine as maldistribution also explains why famine in one place doesn’t mean that other places don’t have enough or even too much food.  Think, for example, of rising levels of obesity here in the United States.

* * *

As to lawyers and legal services…

What if the undersupply of legal services for poor and moderate income Americans is like famine in Somalia, Ethiopia, and Kenya? 

The New York Times recently highlighted a “Justice Gap” – a serious unmet need for lawyers –  in the U.S.   A 2009 Legal Services Corporation report,  for example, concluded that for every qualified low-income person provided legal aid, another person seeking legal assistance is turned away for lack of resources.  And that is only those who seek help: The same report estimates that only about one in five low-income person needing legal help receives it. […]

11 Jul, 2011

JDB and Brown: Kids-(and Parents?)-and the Constitution

Author |Constitutional Law|1 Comment

Two cases from the mopping-up phase of the recent Supreme Court term—J.D.B. v. North Carolina and Brown v. Entertainment Merchants Assn.—have me thinking about kids and the Constitution.

These two cases join prior Court decisions that delineate the constitutional rights of minors—cases such as Tinker v. Des Moines School District (1st Amendment—children have free speech rights in schools); New Jersey v. T.L.O. (4th Amendment—students possess rights against search and seizure but those rights are less, at least in schools, than adult rights); and Roper v. Simmons (8th Amendment—death penalty prohibited for crimes committed by persons under 18).

Justice Thomas’s dissent in Brown notwithstanding, it is abundantly clear that the train has left the station in terms of kids having constitutional rights.   (As Sean Bradley noted in his blog entry on Brown, even uber-originalist Justice Scalia doesn’t go so far as to claim that because children had no rights of their own at the time of the framing they have no rights today.)

But it is also apparent, though less clear, that the level of protection afforded children by the Constitution  remains unsettled and unpredictable.

J.D.B. posed the question whether the age of a suspect matters in determining whether Miranda standards have been met. (The case involved questioning of a 13-year-old by a police officer at school with a vice-principal but no parents present.) The Court said yes, age matters. Kids have rights, but kids’ rights are different than adults’.

Brown posed the question whether California could impose free speech restrictions on minors that would be impermissible for adults. (The case involved the sale/purchase of violent video games.) The Court said no, age doesn’t matter. Kids have rights, and kids’ rights are the same as adults’.

Pardon me, but….what? […]

14 Jun, 2011

Implicit Bias and Equal Protection: A New Game of “Pick up Sticks”?

Author |Constitutional Law|1 Comment

Two Fridays ago, I attended the daylong Washington, DC, Judicial Conference on implicit bias.

Implicit bias, as I observed in my prior post on Connick v. Thompson, is bias that is unconscious rather than conscious.  The fact that bias is implicit, however, does not mean that it is not invidious.  Implicit bias can have real, tangible discriminatory effects–in the criminal justice system and elsewhere.

I found several aspects of the DC Conference worth noting.

First, the mere fact of the conference and its subject.  Implicit bias—especially racial bias—is difficult to acknowledge.  By simply discussing implicit bias, the DC Judicial Conference took a leadership role in this area.

Second, Judge Kathryn Oberly and her Committee on Arrangements secured Dr. Mahzarin Banaji as the cornerstone presenter for the Conference. Dr. Banaji is a preeminent researcher on implicit bias, one of the developers of the Implicit Association Test (IAT), and a presenter who can hold an audience of several hundred lawyers enrapt for almost three hours—no small feat. If you EVER have the chance to hear her, jump at it.

Dr. Banaji walked us through the psychological evidence regarding implicit bias. She explained how our brains operate at two different levels, with our subconscious often making unsupported and incorrect assumptions. And she emphasized that law “gets it wrong” by looking only to the conscious brain and intentionality.

Getting Dr. Banaji to speak was, I believe, a strategically sound move by the Conference planners.  People tend to be skeptical about that which they cannot see, and implicit bias thus needs to be proven.  This skepticism may, as one of the later presenters noted, be particularly strong in lawyers in large part because we are, at the conscious level, committed to fairness and so have a difficult time believing that we ourselves might be discriminatory at the unconscious level.

Third, the final speaker of the day, federal Judge Mark Bennett of the Northern District of Iowa, a pioneer in the field of concrete innovations to counteract implicit bias in actual courtrooms, made reference to the fact that an awareness of implicit bias may have substantial implications for discrimination law.

Let’s walk through that. […]

26 May, 2011

Jerry Brown, Meet Jerry Madden

Author |Constitutional Law|0 Comments

The Supreme Court’s recent decision in Brown v. Plata puts Governor Jerry Brown in the hot seat.   Prison reform in California is now mandated by law.

The good news is that California can look to other states for help. One of those states, somewhat surprisingly, is Texas.

This is not just because Texas is the only state with a prison population in the same ballpark as California’s.  (According to the Pew Center on the States’ Prison Count 2010, California’s is 169,000+ and Texas’s is 171,000+, with the next largest being  Florida at 103,000+.)

It is also, and more to the point, because Jerry Madden, one of the leading prison reformers of the past decade, comes out of Texas.

* * […]

19 May, 2011

The Underside of (Legal) History

Author |Books|0 Comments

Have you ever wondered about the women who ran the households of the Founding Fathers while they Declared Independence, fought the Revolutionary War, drafted and ratified the Constitution, and then governed the fledgling United States?

We know quite a bit about Abigail Adams, in large part because of the vibrant letters she and husband John wrote each other—letters that include Abigail’s famous admonition to “…remember the ladies, and be more generous and favorable to them than your ancestors.”  (John responded, “As to [her] extraordinary Code of Laws, I cannot but laugh.” Those Founding Fathers were indeed a product of their times!)

But Abigail Adams is the exception.  More often, modern efforts to construct narratives about these women founder because of the lack of contemporary evidence.

Martha Washington destroyed the letters she and George wrote to each other.  James and Dolley Madison wrote few letters because they spent little time apart.  One summary of biographical information about Alexander Hamilton’s wife admits, “[m]ost of the information on Elizabeth Hamilton must be gleaned from biographies written about her husband.”

Similarly, little beyond the essential facts is known of Martha Jefferson. Sally Hemings, a slave owned by Thomas Jefferson who is now generally acknowledged to have borne 6 children by him in the years after Martha’s death, has garnered more attention, and fictionalized accounts have sought to pierce the dual curtains of race and gender.

The late sociologist Elise Boulding referred to the silence of the historical record about women as the “underside” of history.  Boulding contended that women have always been equal actors on the stage of history but that the record of our parts routinely evaporated when the script was eventually written down.  We are left with a partial story, a play with half of the lines missing.

A More Obedient Wife by Natalie Wexler is a wonderful endeavor to fill in a few of these lines. […]

27 Apr, 2011

Black and White Update

Author |Constitutional Law|0 Comments

A couple of weeks ago, I raised the issue of implicit racial bias in the exercise of prosecutorial discretion in Connick v. Thompson.

Recently, I was paging through the April issue of the DC Bar’s Washington Lawyer.  There, on page 9, was a full-page ad for the upcoming (June) 36th Annual Judicial Conference of the […]

12 Apr, 2011

The Black and White of Connick v. Thompson

Author |Constitutional Law|5 Comments

To say that the recent Supreme Court case of Connick v. Thompson has racial undertones is akin to observing that the Pacific Ocean is wet.

Yet a majority of the Court (in an opinion written by Justice Thomas) resolutely and steadfastly averts its eyes from race throughout the entire opinion.  It is not until page 3 of Justice Ginsburg’s dissent that we learn that Thompson is African-American.  Even then, we are left to guess that Connick is White, and race is not presented as relevant to the case.

Connick concerned multiple Brady violations (improper withholding of exculpatory evidence) by prosecutors in Orleans Parish, Louisiana.  Because of those violations, John Thompson spent 18 years in prison—14 of them on death row.  The legal question presented to the Court was whether the district attorney office’s “failure to train” on the requirements of Brady was actionable under Section 1983.

The majority held that a district attorney could generally rely on law school, the bar exam, CLE requirements, and the ethical standards of the profession to ensure that all prosecutors in his or her office were aware of and would comply with the Brady requirements. […]

21 Mar, 2011

Justice White for the Apples and Justice Scalia for the Oranges

Author |Constitutional Law|2 Comments

Scalia Supreme Court dissents as judicial activism of process
7 Mar, 2011

Dancing, Quibbling, and Crocuses

Author |Opinions|0 Comments

I shouldn’t quibble.

When a law professor writes an academic article that is published in a law review, she is lucky to have it cited in other academic articles published in other law reviews.

This is, after all, what we do.

To have it not just cited but reviewed by someone who isn’t an academic…well, I should be dancing.

I am dancing. But I am quibbling too.

This is, after all, what we do.

* * *

I wrote an academic article—Inheriting Inequality: Wealth, Race and the Laws of Succession. It was published in a law review (thank you, Oregon Law Review!).

It was reviewed by Too Much, the “online weekly on excess and inequality” published by the Institute for Policy Studies. They called it a “delightfully subversive new essay.” (You understand why I am dancing.) […]