LEX Magazine, Issue 3 by Drexel University Thomas R. Kline School of Law

CONTENTS DEAN’S WELCOME Daniel M. Filler

LISTENING TO THE LAW: THE RISE OF THE LEGAL PODCAST by Nancy J. Waters

BECOMING A LAWYER DOESN’T HAVE TO KILL YOU: HOW LAW SCHOOLS ARE HELPING STUDENTS BE WELL by Caren Chesler

SUBVERSIVE INHERITANCE AND LIBERATED LEGACIES by Deborah S. Gordon

MARY ANN FRANKS AND THE CULT OF THE CONSTITUTION by Francisco Alvarado

FRANKS AND CITRON IN CONVERSATION

THE NEW PRISONER’S DILEMMA: CONFRONTING COVID-19 BEHIND BARS by Analisa Goodmann

U CITY DIGEST

KLINE RANKS IN TOP TIER FOR PRIVACY LAW

“MY DATA, MYSELF” CONFERENCE EXPLORES THE SCIENCE, LAW AND ETHICS OF GENETIC DATABASE RESEARCH

KLINE CLINIC STUDENTS SCORE VICTORIES IN FEDERAL COURTS

MASTHEAD

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lawdean@drexel.edu

It’s a strange time to come out with this third issue of Lex, which has as its theme “Versions and

LEX VERSIONS & SUBVERSIONS

Subversions.” When we kicked off the planning for this issue, our minds were focused on the dualities embodied by the topics explored in these pages. But between then and our final wrap, the world changed. Radically. First, the COVID-19 pandemic arrived, dramatically altering the nature of legal education—and the practical realities of everyone’s day-to-day existence. Then, the murders of George Floyd and Ahmaud Arbery were documented on video, shocking many people who had been living in ignorance and denial of the ongoing injustices that Black Americans still confront and spurring a broad-based and growing coalition of Americans to embrace a new civil rights movement. The Kline School of Law moved online in mid-March, like our peer law schools, creating new, remote versions of our standard curricula. The strong instructional design team that we had already built to support our large online Master of Legal Studies program stepped up to help our faculty complete this difficult but ultimately successful effort. Our unique—and uniquely disrupted—pandemic semester, we realized, presented a learning opportunity. What, we asked, had Kline and its peer institutions learned about how to deliver high quality legal education under such constrained conditions? So, after classes ended, we welcomed more than 500 participants, representing every single law school accredited by the American Bar Association, to join us virtually for a remarkable conference titled Leaning in: Ensuring Quality Legal Education during Coronavirus. In fact, our virtual semester fits right in with our theme of “Versions and Subversions.” Our goal with this issue was to highlight alternative approaches to business as usual, and the disrupted and suddenly remote semester, here and at our peer institutions, constitutes arguably the biggest subversion of the way law is taught in the history of American legal education. Our two lead articles explore alternative approaches to legal education and legal communication. Caren Chesler tackles the increasingly central role of wellness in law schools, while Nancy Waters explores the rise of the podcast as an accessible medium for public education around the law. In this issue we also profile Professor Mary Ann Franks, a scholar activist who hasn’t shied from ideological tangles with powerful groups like the American Civil Liberties Union and the National Rifle Association—both of whom she terms “constitutional fundamentalists.” Working alongside Professor Danielle Citron, Franks has had great success helping policy makers craft laws criminalizing revenge pornography, and our reporter, Francisco Alvarado, sat in on one of their public conversations. My colleague Professor Deborah S. Gordon revisits the typically staid topic of estate law with her somewhat subversive look at inheritance laws and practices. And, in her very timely contribution, Analisa Goodmann reports that additional subversion of normal prison release policies may be necessary to protect vulnerable inmates in Pennsylvania’s state prison system from a pandemic disaster. Coronavirus arrived suddenly—we were not given much time to prepare. The racial discrimination and brutality that thousands of people took to the streets to protest in recent months, on the other hand, has ancient and enduring roots here. Led by Kline Law’s DiveIn Diversity and Inclusion Committee, we are taking a close look at our own institution to both ameliorate the impact of discrimination and actively engage in anti-racism efforts. Each year, I tell students that lawyers are pillars of our democracy—a “fourth branch.” Consequently, we are duty-bound to examine our own domain. In my view, law schools must work to actively subvert racism, both obvious and subtle, in all our activities, from teaching, to hiring, to the quotidian interactions of community members. This kind of subversion is challenging—the pillars of white supremacy in American society and institutions are built strong—and we will sometimes fail to achieve our mission. But I am committed to honoring our responsibility to keep working to build a better, truer democracy. — Dean Daniel M. Filler

Each year, I tell students that lawyers are pillars of our democracy— a “fourth branch.”

LEX VERSIONS & SUBVERSIONS

LISTENING TO THE LAW

by Nancy J. Waters

Legal cases make great stories. They are full of drama, conflict and suspense, directly affect human lives and can feature unexpected reversals and surprising twists. They may explore complex moral dilemmas or seek to answer weighty philosophical questions, and some have great and lasting political impact. And they are built on a foundation of wordsâ€”pages and pages of testimony, motions and judgements that, when sufficiently pruned, lend themselves to the creation of pages and pages of juicy dialogueâ€”and even some lofty rhetoric.

THE RISE OF THE LEGAL PODCAST

Matthew Schwartz and Michael Vuolo are the creators and hosts of the

Unprecedented podcast.

Authors have known this, of course, going back as far as ancient Greece, where Plato chronicled the trial of

Reaching New Audiences

his friend and mentor Socrates, and the playwright

Podcasts, pre-recorded broadcasts that can be down-

Aeschylus gave Athenian audiences the first court-

loaded from the web or via a dedicated podcasting

room drama (as far as we know) in the form of the

platform at the listener’s convenience, have been with

Orestia trilogy. In between the Ancient Greeks and today, we see legal cases form the narrative core of both classic lit-

us since 2004. But in the last five years or so, podcasting has exploded in popularity. And legal stories and legal topics have been part of that boom.

erature and popular entertainment. Charles Dickens

The soundscape of law-oriented podcasts is vast,

used a real-life probate case that persisted for decades

ranging from highly specialized professional practice

as inspiration for his novel Bleak House, considered

advice for lawyers to dramatic and suspense-filled

by many critics to be his best. A trial is the dramatic

serials in the “true crime” tradition. But in between

centerpiece of Harper Lee’s To Kill a Mockingbird—

those extremes, curious non-lawyers can now find a

ranked in many reader polls as among the most

range of thoughtful and compelling legal storytelling

beloved American novels. (That book and its popular

and analysis provided by lawyers, journalists, scholars

film version are also said to have inspired a generation

and even litigants themselves.

of law students.)

Podcasting is a particularly effective way of

And since at least the first incarnation of Perry

reaching “the world of people interested in law—and

Mason in the 1950s to the ubiquitous Law and Order

certainly Supreme Court and constitutional law—who

franchise—which has been airing in one form or

aren’t lawyers,” said Daniel Filler, dean of the Drexel

another for 30 years—television drama has been all

University Thomas R. Kline School of Law.

but obsessed with the maneuvers of lawyers, clients, juries and judges. But with the rise of the podcast, the law may have met its perfect, non-fiction media match.

Journalist and podcaster Dahlia Lithwick agrees. The Slate magazine columnist has hosted the popular Amicus podcast since 2014. Its mission, she explained, is to break down the barriers that separate ordinary

LEX VERSIONS & SUBVERSIONS

people from cases and decisions that affect their lives, particularly those handed down by the U.S. Supreme Court. She rejects the notion that audiences need spe-

Finding the Humor Unprecedented follows and extends the storytelling

cialized expertise to understand the social and political

tradition of such popular public radio shows as This

impacts of the law.

American Life, RadioLab and On the Media by going

“You don’t need a J.D. to do this,” she said, “any-

in depth on a particular case. Participants’ voices

more than you need to be able to do a triple axel to

describing their own experiences are interspersed

watch figure skating.”

with contemporaneous news reports and back-and-

At Kline, Filler and his colleagues were so convinced

forth narration from the hosts as well as commentary

of the promise of podcasting to engage audiences

by NPR’s veteran and much-beloved Supreme Court

NPR Supreme Court

that the school partnered with WAMU, Washington

reporter Nina Totenberg, whom Vuolo and Schwartz

reporter Nina Totenberg

D.C.’s National Public Radio station, to sponsor the

refer to admiringly as “the tenth justice.”

provides legal

first eight-episode season of the Unprecedented pod-

Totenberg’s participation and her rapport with

cast. Unprecedented bills itself as “a podcast about

Schwartz and Vuolo make the podcast particularly

the First Amendment and the people who fought for

entertaining—and unexpectedly humorous. Totenberg,

it.” Each carefully crafted episode tells the story of a

Vuolo said, has a “fascinating sense of humor and is

momentous Supreme Court decision involving the

fun to be around.” If NPR fans have not heard that side

interpretation of the First Amendment’s guarantee of

of her, he said, it’s because her NPR colleagues “treat

free speech from the perspective of the case’s actual

her too respectfully.”

plaintiffs and defendants. Unprecedented is the brainchild of its hosts, veteran radio journalists Matthew Schwartz and Michael Vuolo. The pair met when they both worked at Slate in 2016 and discovered their mutual passion for the storytelling possibilities of First Amendment cases. Schwartz’s interest dated back to his law school encounters with “these really fascinating stories about the First

This parody

Amendment... and these incredible Americans who

of a magazine

pushed the boundaries of their freedoms because they

believe that the Constitution afforded them those

appeared in

freedoms.” Similarly, Vuolo’s interest was sparked in jour-

Hustler, prompting Reverend Jerry

nalism school where he read about important First

Falwell to sue the

Amendment cases in a class taught by Anthony Lewis,

magazine. That

the Pulitzer Prize winner credited with inventing legal

case is the subject

journalism in the United States. “It dawned on me:

of an episode of

these were great stories,” he said.

Unprecedented.

commentary on the Unprecedented podcast.

THE RISE OF THE LEGAL PODCAST

Fans who have followed Totenberg’s reporting

But Schwartz and Vuolo admitted they must exer-

faithfully over the years may have never before heard

cise care when exploiting the comic possibilities of a

her sing, but in the series’ introductory teaser she

given case—some are simply too serious, and no laugh-

does just that: “Call me irresponsible” becomes “Call

ing matter for the participants who lived through the

it constitutional.” And in the episode that dissects

initial conflict. For example, there’s little humor in the

the groundbreaking Hustler Magazine v. Falwell case,

episode devoted to the Snyder v. Phelps case, which

in which the Supreme Court ruled unanimously that

was filed to prevent members of the Westboro Baptist

even extremely offensive speech against public figures

Church from harassing mourners at military funerals.

is protected, Totenberg participates in an especially

(Spoiler: The Supreme Court ruled that the church’s

funny bit in which she laughs as she reads the racy and

funeral protests were also protected free speech.)

double-entendre laden magazine advertisement that

The first season of Unprecedented was well received.

inspired the Hustler parody that started all the trou-

The episode titled “A Thousand Ways to Kill You” was a

ble by making obscene suggestions about Evangelical

finalist for the American Bar Association’s Silver Gavel

leader Reverend Jerry Falwell.

Award for Media and the Arts, and the vast majority of

The hosts see humor as key to their legal storytelling.

the hundreds of listeners who have posted reviews on

“One of the biggest failings of most legal journalism,”

Apple Podcasts have been effusive in their praise. But

said Schwartz, “is that it is too dry.” Filler agrees that

Vuolo and Schwartz already had several new episodes

humor makes legal lessons more accessible, and pro-

in production, focusing again on First Amendment

fessors have told him they find Unprecedented to be

issues, when the pandemic struck and WAMU was

useful for explaining constitutional law to students at

forced to cancel several projects. So, as of mid-summer,

both the undergraduate and law school levels.

Unprecedented is in search of a new home.

The Unprecdented podcast devoted an episode to the ground-breaking Snyder

v. Phelps case, which was filed to stop members of the Westboro Baptist Church from harassing mourners at military funerals.

THANK GOD FOR

DEAD

AMERICA

SOLDIERS

DOOMED

LEX VERSIONS & SUBVERSIONS

“There is no possible reason to justify putting the audio behind a curtain.”

All Eyes on SCOTUS Schwartz and Vuolo are not alone among podcasters in

litigator—who host the Strict Scrutiny podcast, which

their fascination with the First Amendment. Litigator

had its one-year anniversary this summer.

Ken White’s Make No Law, one of more than 30

It was the behavior of the Supreme Court, Lithwick

podcasts to be found on the lawyer-focused Legal Talk

explained, that finally compelled her to step into the

Network, shares that theme.

podcasting booth. “At Slate, I famously resisted the

The Supreme Court and its workings are particularly

podcasting craze,” she said. But she was increasingly

popular podcast fodder. Among the shows that inspired

frustrated with the court’s policies regarding the

Unprecedented, Vuolo cited More Perfect, a spin-off of

release of same-day audio of oral arguments—some

WNYC’s Radiolab, which is hosted by Jad Abumrad and

years they did so only for exceptional cases and some

premiered in 2016. In its first two seasons, More Perfect

years not at all. “I had a total bee in my bonnet about

examined the impact of Supreme Court decisions on

that,” she said.

such areas as capital punishment and jury selection,

Then the court adopted the current rule, which is

and devoted several episodes to the historical evolution

to release all the audio for that week’s oral arguments

of the court and its role. (In the third season, the show

on Friday evening, when the reporters who cover the

shifted to focus on the United States Constitution itself,

court are presumably elsewhere. “I always had this

specifically its 27 amendments.)

notion that this is a court that works for us, and not

The popular podcast First Mondays also focused on

vice versa. There is no possible reason to justify putting

the Supreme Court, eventually becoming a partner of

the audio behind a curtain,” Lithwick continued. “So,

the highly influential SCOTUS Blog. The doings of the

I put it in people’s ears on Saturday morning. And that

court are also the subject of conversation for the four

was the original intent of the show: So people could

women—three law school professors who have clerked

listen in to those arguments as though they were there

for Supreme Court justices joined by an appellate

because, in a correct democracy, they would be there.”

THE RISE OF THE LEGAL PODCAST

The Supreme Court is not Amicus’s exclusive concern, however. Lithwick and guests have devoted considerable airtime to other weighty and timely issues, among them election access, last year’s impeachment of President Donald Trump and Robert Mueller’s investigation of Russian interference in the 2016 election. The show falls into the conversation and interview category, in contrast to the feature story approach taken by Unprecedented and More Perfect. Guests have included Supreme Court Justice Ruth Bader Ginsburg, Senator Jeff Merkley and civil rights leader Reverend William J. Barber. (In 2019, University of Miami professor Mary Ann Franks stopped by to discuss the cult of the Constitution; see related story on page 24.) The We the People podcast, a project of the Philadelphia-based National Constitution Center (NCC), takes a similarly eclectic look at the U.S. Constitution. Host Jeffrey Rosen, a highly regarded legal analyst as well as the center’s president, interviews a range of experts with the stated goal of offering listeners the “best arguments on all sides of the constitutional issues at the center of American life.” In addition to dissections of Supreme Court decisions, recent topics have included efforts to control hate speech on social media and what the Constitution has to say about policing.

Tools for Educators The NCC’s overall mission is explicitly educational and it offers an array of courses and publications for teachers and students at all levels. But the educational promise of podcasting has become clear even to those who didn’t initially see students as their audience. Lithwick urges her guests not to get too technical in their discussions to preserve accessibility, but to not talk down to the audience either. “I tell them ‘talk to me like you’re talking to a really smart college sophomore,’” she said. And she has been gratified to hear from civics teachers who reported that they have assigned Amicus to their eighth-grade students. Like her colleague Dan Filler, Kline Law professor Lisa Tucker thinks the form is particularly well suited for translating legal ideas for lay audiences. She has an interest in translational law, which encompasses efforts to make legal concepts more broadly understandable and relevant. From 2009 to 2011 she wrote the SCOTUS Blog’s Plain English column, whose motto is “cases made simple.” She has also written several books about Supreme Court justices for children and a novel about law school, and edited a book that examined what the Broadway musical Hamilton has to say about contemporary legal issues.

The educational promise of podcasting has become clear even to those who didn’t initially see students as their audience.

LEX VERSIONS & SUBVERSIONS

Dahlia Lithwick hosts the Amicus podcast.

Because podcasts are usually pre-recorded and

positive feedback from teachers at both the law school

edited, they present fewer ethical issues for the

and undergraduate levels. “Faculty are always look-

lawyer guest than live television and radio interviews

ing for ways to bring law and history alive,” he said.

do, including the risk of the unexpected question.

“The idea that we could help deliver a fun way into an

“Lawyers cannot answer a question unless we are 100

incredibly important topic, the First Amendment, was

percent certain about the law,” she explained, and even for experienced legal commentators that may require preparation.

gratifying.” Filler sees supporting a medium that promotes broader public understanding of the law as a natu-

When Tucker appears on a podcast to comment on

ral fit for his school. Podcasts like Unprecedented, he

a court decision, she continued, she follows a standard

explained, have the potential to become “part of the

audience-friendly procedure, describing the case, the

democracy curriculum” from high school through

decision, the dissents and the immediate impact, but

graduate school. “And law schools,” he continued,

also considers what’s likely to happen in the future. How,

“are part of the infrastructure of democracy.”

for example, will other cases in the judicial pipeline play out? What would change if new justices were appointed? This structure appeals to audiences, Tucker said, because the impact of these cases and what could happen is “what they want to talk about at the dinner table.” To further exploit the pedagogical promise of Unprecedented and provide students with additional legal context, Filler and his colleagues at Kline created introductory videos, as well as links to case documents, appellate decisions and relevant law review articles, for each episode so far. Like Lithwick, he has received

Nancy J. Waters is a freelance writer and editor, and managing editor of this issue of Lex.

BECOMING A LAWYER DOESNâ€™T HAVE TO KILL YOU

LEX VERSIONS & SUBVERSIONS

by Caren Chesler

Peter Huang, a professor at the University of Colorado School of Law, was a bit of a child prodigy. At 14, he studied mathematics at Princeton University, and, by 17, he was enrolled in a graduate program in applied math at Harvard University. He attended law school at the University of Chicago, ultimately earning his J.D. from Stanford Law School. But all these accomplishments came, he said, at the cost of great anxiety and stress. He was ultimately able to cope and thrive because of a mindfulness meditation practice that he picked up from his grandmother as a child.

In an article on the benefits of mindfulness

BECOMING A LAWYER DOESN’T HAVE TO KILL YOU

in education, Huang wrote, “It is not even a slight exaggeration to say that mindfulness 1

has saved my life and helped me to achieve and sustain calmness, confidence, happiness, meaning and peace.” Jon Kabat-Zinn, a retired professor of

medicine at the University of Massachusetts Medical School and a pioneer in the use of mindfulness to reduce stress and manage pain, has described the practice as “awareness that

arises through paying attention, on purpose, in the present moment, non-judgmentally... in the service of self-understanding and wisdom.” Meditation, which is perhaps the bestknown mindfulness activity, focuses particularly on breathing. When the meditator’s mind

wanders, she should let go of the thought or emotion that distracted her and bring her attention back to breathing. Huang believes law students, in particular, can benefit from such a practice. Mindfulness, he explained, can reduce their cognitive biases, rumination and unhappiness, helping them make better,

more ethical decisions and develop stronger leadership skills. Chapin Cimino, a professor at Drexel University’s Thomas R. Kline School of Law, agrees. She has studied mindfulness and the law and incorporates mindfulness concepts

into her own teaching. “It’s a practice of acceptance,” she said. From her own experience, Cimino believes mindfulness not only reduces stress but can help practitioners bet-

1 — Crown Chakra (Sahasrara)

ter manage life’s inevitable disappointments and frustrations.

5 — Solar Plexus Chakra (Manipura)

Corresponds with the emotion anger

This chakra, also known as the City of

and is responsible for energies like

Gems, closely corresponds with the emo-

desire, vitality, inner strength and

tion anger and is responsible for energies

self-control.

like desire, vitality, inner strength and

2 — Third-Eye Chakra (Ajna) Third eye lies between the eyebrows

self-control. 6 — Sacral Chakra (Swadhisthana)

and is the only chakra in the mental

Sacral chakra relates to the water ele-

body. As such, it’s the center of com-

ment and is believed to control emotions

mand and corresponds with intuition,

that center around relationships, sexual-

insight and psychic awareness. 3 — Throat Chakra (Vishuddha)

ity and intimacy. 7 — Root Chakra (Muladhara)

This chakra is thought of as the energy

The root chakra is connected to the

center for creativity, speech, individual

earth element and relates to your natural

needs and will.

survival instincts and emotions — espe-

4 — Heart Chakra (Anahata) The heart chakra lies in the middle of the chest and is said to guide emotions and feelings like love, forgiveness, compassion and self-esteem.

cially fear.

“They [students] are in an environment that threatens their psychological needs—their feelings of being good at something, at being the chooser of their actions, of being meaningfully connected to others.”

LEX VERSIONS & SUBVERSIONS

Stressed-Out Students When it comes to their well-being, law

as attorneys, judges and in related fields) in

desperate, trying for anything within reach

students certainly need the help. A steady

four states with the goal of identifying which

that others seem to think is valuable.”

drumbeat of studies published over the past

specific conditions promote lawyers’ well

In 2017, more bad news for the legal pro-

few decades have shown that law school can

being and satisfaction. Interestingly, they

fession arrived with the publication of a report

be bad for students’ health. Students fre-

found almost no correlation between the study

by the American Bar Association’s National

quently become stressed out, riddled with

participants’ well being and “external” fac-

Task Force on Lawyer Well-Being. Both practicing lawyers and law students, the ABA

anxiety and downright unhappy by the end

tors related to wealth and status, including

of their first semesters—and their distress

their law school’s rankings, their class rank,

study concluded, experience chronic stress

can extend beyond law school and into their

whether or not they made law review, the

and high rates of depression and substance

legal careers.

extent of their law school debt, their salaries

use. The task force identified several ways to

Kennon Sheldon, a professor of psychology

and whether or not they made partner in a

prioritize well-being within the legal profession and also made recommendations for law

at the University of Missouri, and Lawrence

firm. In fact, the internal and psychological

Krieger, a professor at the College of Law at

factors, like the intrinsic motives and values

schools. Among these: Law schools should

Florida State University, have been studying

that previous research has shown erode in law

better detect which students are in psycholog-

the psychology of law students and lawyers

school, appear to be the most important pre-

ical distress, keep better attendance records

for years, and their findings offer plenty of

dictors of lawyers’ satisfaction and happiness.

(which can reveal early warning signs of trou-

Why do law students and lawyers focus

ble), hire additional professional counselors,

cause for concern. For a study published in 2004, they evaluated changes in the subjec-

so much on extrinsic goals, like making law

create recovery networks and discourage alco-

tive well-being (SWB), motivation and values

review or partner, when those pursuits often

hol-centered social events.

of law students and found that they entered

make them unhappy? “Because when you are

law school in better shape than a control group

unhappy and dissatisfied,” Sheldon hypoth-

rience is hardly surprising—much of it seems

of undergraduates, but by the end of the first

esized, “you lose perspective and get a little

to arise from the harshly competitive realities

year, their well-being had plummeted. The results were consistent with previous studies indicating that the happiness and well-being of law students decline measurably during their first year in law school. “They are in an environment that threatens their psychological needs—their feelings of being good at something, at being the chooser of their actions, of being meaningfully connected to others,” Sheldon said. “The cultural context is one that disdains student needs and feelings in favor of a sort of elitist detachment.” Sheldon and Krieger revisited the topic again in 2015 with a focus this time on practicing lawyers rather than students. They surveyed more than 6,000 people (working

Indeed, the stress that law students expe-

BECOMING A LAWYER DOESN’T HAVE TO KILL YOU

Kline is one of many law schools trying to mitigate the damage that a legal education seems to inflict on students’ psyches. more severe things that could happen to them with respect to mental health, and that they

Law Schools Respond

should pay attention to those red flags. Now, for the last five years, we’re trying to approach this in a much more holistic way with a focus

Kline is one of many law schools trying to

on helping them develop positive habits of

mitigate the damage that a legal education

mind and practices for wellness and commu-

seems to inflict on students’ psyches. Law

nity building.”

schools currently offering courses that focus

Brooks has incorporated sessions on

on student wellness include the University

“Becoming a Self-Aware Professional” into

of the professional legal landscape as well

of California Berkeley, the University of

several of her classes and workshops. Her goal

as the adversarial nature of our legal sys-

Colorado Boulder, the University of Florida,

is to help students harness their individual

tem. Some employers won’t even interview

Florida State University, the University of

strengths and values, cultivate self aware-

students who weren’t in the top 10 percent

Missouri, the Penn State Dickinson Law

ness, build resilience and develop strategies

of their classes, said Leonard Riskin, a visit-

School, the University of San Francisco and

for well-being. She asks students to identify

ing professor at Northwestern University’s

Suffolk University.

what makes them react negatively and how

Pritzker School of Law. “It’s very intense for a lot of people, in part,

More traditional wellness offerings include massages, therapy dogs, and yoga—extra-cur-

they manage situations and people that may provoke them to respond in counterproductive

because grades have strong impact on your

ricular approaches aimed at reducing stress

ways. Is it the Socratic Method of teaching?

surface qualifications for getting a job,” Riskin

and helping students feel better. But at Kline,

The pressure to get good grades or make law review? Job searches?

said. “It should not be that way, because the

wellness has also become an integral element

grading system is not that accurate, but gener-

of the curriculum. Faculty teach courses that

ally, employers want to know.”

focus on such themes as healing and justice

students and attorneys titled “Cultivating SelfAwareness, Resilience, and other Relational

In a session she has offered to both

Another problem is inherent in the way

as well as less adversarial ways to resolve

law is taught: For their primary texts, students

disputes. Some are now required courses for

Skills for Effective Lawyering,” Brooks has

are typically assigned judicial opinions of

first-year law students, to help them better

focused students on such relational skills

cases that have been litigated, and the parties

navigate what is understood to be a particu-

as effective listening, how to take account

involved usually end up as winners or los-

larly stressful period.

of context and culture, and how to act with

ers. “It’s a win-lose situation, and that kind

“We’ve now tried to institutionalize a

empathy and compassion. Students recount

of thinking pervades legal education,” Riskin

component of wellness and well-being, as

their experiences of overcoming their own

said. “There’s a rivalry built in.” Finally, there

part of our orientation and programming for

challenges. What did they say? What internal

is the stress of being called on by profes-

all first-year students,” said Susan Brooks,

resources did they draw upon? The session

sors, a phenomenon that occurs much more

the associate dean for experiential learning at

also examines trauma and its effects on the

frequently in law school than in the typical

Kline. “It used to be that a large focus of that

brain and explores constructive strategies for

undergraduate class.

was cautioning or sensitizing them about the

managing panic-inducing situations.

LEX VERSIONS & SUBVERSIONS

In these courses and programs, Brooks

Students, Chapin Cimino explained, often

Several years ago, Cimino began lead-

have a zero-sum mindset, believing that if

ing a mindfulness book discussion group that

classmates perform better than they do, they

eventually evolved into a drop-in meditation

themselves must therefore be doing worse, a

group. This past spring, she offered a class

encourages her students to develop holis-

notion that’s perpetuated by the grading curve.

called “Contemplative Lawyering,” which

tic strategies for managing the stress and

“No matter how much you tell them they’re not

has appealed in particular to third-year law

discomfort that can arise from their chosen

competing with their classmates, that they’re

students seeking ways to manage the stress

profession. “It’s not about, ‘Can I get up

doing their own personal best, they don’t hear

associated with their upcoming bar exam. The

in the morning and meditate every day?’”

it that way” she said. “I think law schools,

class encourages students to consider whether

Brooks said. “I think this idea of wellness and

through pedagogy, are trying to change

it’s possible to be happy in a profession built on conflict, and, if so, can a practice of mindfulness

self-care is how to apply the increased aware-

that,” she continued. “Most law schools

ness of situations that might be challenging

are really paying attention to how they can

serve that end? Cimino leads students in guided

and cultivate appropriate tools so that stu-

make this experience better, because they’re

meditations and asks them to meditate at home

dents have more ability to navigate through

finding people learn better when their expe-

for five minutes each day and then record their

those situations successfully.”

rience is better.”

mindfulness experiences in a journal.

The Magic of Mindfulness

BECOMING A LAWYER DOESN’T HAVE TO KILL YOU

Empirical research on mindfulness supports Cimino’s confidence in its effectiveness. Mindfulness, studies confirm, improves practitioners’ perspective-taking abilities and

10 steps to mindfulness meditation

makes them more compassionate—toward others and themselves. Because mindfulness can help students manage stress, it can also make them better test takers, according to new research. In one recent study, 47 first-year law students at the University of Missouri volunteered to take mindfulness training in the eight weeks leading up to final exams, which is considered to be the most anxiety-filled time

1— Create time and space

6— Direct attention to your breath

for a new law student. Baseline measures showed that students in the test group were significantly more stressed, less focused and more unhappy than those in a control group. Study author Richard Reuben, a law and journalism professor at the University of Missouri, hypothesized that their higher stress levels may have prompted the volunteers to participate in the study in the first place.

2— Set a timer

7— Maintain attention to your breath

“The first half of that semester is like spring training. Everyone thinks, ‘Oh, I really got this. I’m going to be at the top of the class.’ It’s the second half of that semester that is the official freak-out period of law school. That’s why we chose that period,” Reuben said. “We wanted to see what students did in extreme pressure.”

3— Find a comfortable sitting position

When the two groups of students were

8— Respect steps 6 and 7

surveyed again at the end of the semester, both groups reported similar levels of stress. Given the pressures they faced over those eight weeks, Reuben said it would have been reasonable to expect that the well-being scores of both groups would have declined, but that the scores of the mindfulness study participants might have declined by less. So, he was surprised to discover that the scores of the students in the test group actually improved.

4— Check your posture

9— Be kind to yourself

“They were in better shape at the end of the semester, in terms of stress. They were less stressed, more focused and happier,” Reuben said. “That’s striking.” In fact, one student, who had a history of being anxious before taking tests, approached him after the training and told him she was looking forward to her exams.

5— Take deep breaths

10 — Prepare for a soft landing

“I don’t hear that from first-year students,” Reuben said. “I asked her what she was going to do when the exam hits the desk and your life flashes before your eyes, and she said, ‘I’m going to know that it is just a fearful thought that I can let go of, and I’ll bring my attention back to the exam.’ ”

Mindfulness, studies confirm, improves practitioners’ perspective-taking abilities and makes them more compassionate—toward others and themselves.

Reuben thinks the mindfulness training taught the students how to both concentrate

LEX VERSIONS & SUBVERSIONS

benefit from having a room on campus dedi-

should be—or ever will be—easy. The chal-

cated solely to meditation and yoga.

lenge, explained Susan Brooks, is finding the

and let go of distractions. “That is the essence

Leonard Riskin, who has practiced and

balance between well-being and manageable,

of the mindfulness practice. It’s about being

taught mindfulness for decades, became

healthy levels of discomfort. Having a comfort

in the present and not being distracted by

interested in the topic because, he said, he was

zone is great, and everyone likes to be in that

worries about the past or fears of the future—

“very anxious and miserable” in law school.

zone, but it’s not a place of learning, she said.

But it wasn’t until he became a law professor

Becoming a lawyer, she said, will inevitably

that he realized he had not been alone in his

“require a lot of stretching and discomfort,

simply being present,” he said. Cimino’s colleague Gwen Roseman Stern, who directs Kline’s trial advocacy program, also incorporates mindfulness exercises into

law school misery. In addition to mindfulness classes,

and yet there’s a productive discomfort that represents important growth and will serve

her courses. Like Reuben, she has seen first-

Northwestern’s Pritzker School also offers

students well throughout their future profes-

hand how mindfulness exercises can help

yoga, a running group and a program called

sional careers.”

students gain insight into themselves and their

“Circles,” which is borrowed from Native

fears. For example, following a guided medita-

American traditions. Law students and faculty

tion, she has asked students to write down what

sit in a circle and pass around an object and

they hope to get from her course in trial advo-

talk about whatever they want to talk about,

cacy and also what scares them about it. “I get

with the stipulation that you may only speak

answers,” she said, “that blow me away.” The

when holding the object. “A lot of our stu-

stillness and clearness they gain from the med-

dents love that,” Riskin said.

itation, she explained, enable them to honestly

Law schools are waking up to the reali-

identify and state “fears they never would have

zation that the process of becoming a lawyer

shared without the chance to be still.” Stern

doesn’t need to be so painful and psycholog-

believes strongly that Kline students would

ically destructive. But that doesn’t mean it

Caren Chesler is a journalist whose work has appeared in The New York Times, The Washington Post, Smithsonian and Wired UK, among others.

LEX VERSIONS & SUBVERSIONS

by Deborah S. Gordon

Legacy, defined as “something trans mitted by or received from an ancestor or predecessor,” powerfully influences human behavior. What we do and create during life often stems from our desire to make a mark on this world that will outlast our sentient selves. In words credited to Franz Kafka, “the meaning of life is that it stops.” This recognition—that life’s one certainty is certain death—has been the source of great creativity and inspiration, artistic and otherwise. Today, it mani fests itself in the ways we discuss the future impact of a broad range of current behaviors and policies in such areas as the environment, government debt and health care.

SUBVERSIVE INHERITANCE AND LIBERATED LEGACIES

Why, then, do so many people die without writing wills? Well, for one reason, owners often pass their property on in other ways, for example, through mechanisms that don’t require probate (joint tenancies, insurance,

This multifaceted and emotionally complex version of leg-

retirement accounts, for example), and through the

acy contrasts sharply with the law’s version, at least at first

laws of intestacy (default rules that take effect when

glance. The will is inheritance law’s primary vehicle, and

someone dies without a will). These mechanisms are

many people think of wills as dry, technical documents

arguably more reflective of the beneficial and fiduciary

that simply dispose of people’s money and other property

preferences of the larger community. Intestacy laws for

when they die. And this definition is, of course, accurate.

example, prioritize how and to whom property descends

But we can also think of wills more expansively, both for

and who will administer it generically (e.g. the surviv-

what they are now and for what they have the potential

ing spouse receives a specific proportion of the estate,

to be. Wills are powerful because they identify and make

children divide the rest, etc.). But these laws do not

publicly available what people own, whom they care most

reflect individual preferences or the preferences of any-

about and whom they most trust. A will may therefore be

one whose definition of “family” or choice of loved ones

thought of as a documentary history of individual owner-

differs from that of the majority. Other forms of owner-

ship, families and relationships over time. Each is unique,

ship that rely on beneficiary designations likewise have

even if collectively they often seem much alike.

default rules about how the property descends if the

This free expression of individuality lies at the very

designation is incomplete or out of date. And, of course,

foundation of inheritance law: that someone who owns

when people who are left behind challenge what any of

property of any type may decide to whom to leave that

these forms of inheritance provide, courts too have their

property, regardless of the wisdom, whimsy or justice

own preferences about how property should pass.

that informs and resonates from this decision. She may

We might accept that inheritance law, one form of

choose to disinherit blood relatives and leave a legacy

legacy, is therefore a mirror of individualized desire and

to a stranger instead, or establish a trust for a pet, or

intent, supplemented by interstitial communal rules

favor one child over others. She is also free to choose

that fill inevitable gaps. Fortunately, a cohort of criti-

representatives, for example a trustee or an executor,

cal inheritance scholars is actively questioning whether

to administer the property and make decisions about it

other versions of legacy exist or could be created. Many

long after she is gone. Assuming she had capacity and

questions arise during interpretation—of existing stat-

was not manipulated, all such choices are equally valid

utes, documents and cases governing the transmission

under inheritance law. And those decisions potentially

of property at death. Some examples of these questions

express what and whom that property owner cares about

include: Have reproductive technologies changed what is

and trusts, during life and at death.

meant by “child,” and, if so, how? Has the transgender rights movement changed what is meant by “son” and

Wills are so dry and impersonal that many see them as inscrutable and irrelevant for their own circumstances.

“daughter” and has same-sex marriage changed what is meant by “spouse”? Such initiatives as the Feminist Judgments project, whose series of monographs includes the volume Feminist Judgments: Rewritten Trusts and Estates Opinions, have sought to re-envision how judicial opinions might have been written from a different, more critical perspective. Indeed, these critical interpretations of inheritance law are burgeoning.

LEX VERSIONS & SUBVERSIONS

A second plausible explanation for why people die

item that the owner associates with her history, identity,

without wills is, as noted above, that wills are so dry

values or relationships. The story explaining that sym-

and impersonal that many see them as inscrutable and

bolic connection between that item and its owner often

irrelevant for their own circumstances. The common

embodies some quality of the owner, some value she

perception that wills dispose of property deemed to be

holds dear, some “life-transcending project.”

valuable only in narrow monetary terms combined with

Although disputes about personal possessions can

the belief that making wills is expensive may especially

spark epic battles among heirs, bequests of specific items

encourage those without much property to see them as

of personal property are often viewed as trivial by estate

unnecessary and not worth the effort.

planning lawyers and others professionally engaged in

This disconnect between what wills might be and

the inheritance system. Stories about cherished pos-

what they are has led me to question whether we might

sessions, however, provide a unique opportunity for

ask parallel questions about critical legacy creation to

testators to connect with their survivors and infuse testa-

those we are already asking about legacy interpreta-

tion with meaning. The result? More people may see wills

tion. Surely, the language of disposition should strive

as applying to them.

to be crisp, clear and unambiguous, as testamentary

Encouraging people to include narratives in the

documents are meant to provide closure during an

documents that they use to dispose of their personal

emotionally charged, psychologically demanding and

property could also benefit survivors: research studies

complicated time. But recognizing that the language of

have shown both a relationship between family stories

testamentary documents is so often forbidding to anyone

and resilience and that sharing stories helps survivors

without legal training or experience, we might wonder

better manage their grief.

how wills could be drafted so that they speak more to

But perhaps more important, reimagining wills to

the property owner’s personal and individual legacy. Is it

incorporate individual stories benefits the inheritance

possible that more people would write wills if some part

system more holistically. Reducing people’s reliance on

of their life stories—their legacies—were integrated into

approaches that may be ill-suited to their own individual

the legal documents that deal with death? I believe cher-

circumstances and preferences could help to democratize

ished personal possessions provide a vehicle for creating

estate planning. Unsurprisingly, at least one empirical

a different version of the will. Dispositions of cherished personal possessions—

study has confirmed that younger and less wealthy individuals as well as women and members of minority

regardless of their financial worth—have a special and

groups are less likely to participate in estate planning.

often unrecognized part to play in estate planning

Implementing such approaches would make the process

because of the associations so many owners have with

more meaningful and accessible and thus ensure that the

this type of property and because surviving loved ones

stories that inheritance law tells us are more reflective of

possess corresponding attachments to those cherished

the richness, complexity and diversity of our society.

items. On the one hand, not every “thing” has a meaningful history, tale or value associated with it, and indeed a will telling a story about every knickknack or heirloom would be cumbersome, to say the least. On the other hand, however, nearly every person owns at least one

Deborah S. Gordon is an associate professor at the Kline School of Law. She has also served on the Executive Board of the American Association of Law Schools’ Trusts and Estates section.

LEX VERSIONS & SUBVERSIONS

by Francisco Alvarado

When it comes to battling over the meaning and intent of the United States Constitution, Mary Anne Franks is on the front line. For more than a decade, Franks, a professor at the University of Miami School of Law, has been examining, reexamining and questioning the nationâ€™s founding document and taking aim at proclaimed allies of free speech in the process. She has gained renown for her work advocating on behalf of the victims of revenge pornography, who are predominantly women whose intimate photos and videos have been shared online without their consent. In pushing 46 states and Washington D.C. to pass laws outlawing the non-consensual distribution of intimate images with intent to cause harm, Franks has gone toe-to-toe with an adversary that some might see as unexpected: the American Civil Liberties Union (ACLU).

MARY ANNE FRANKS AND THE CULT OF THE CONSTITUTION

Wherever Franks has lobbied for legislation that

aisle interpret the Constitution self-servingly and selec-

criminalizes revenge porn, the ACLU has pushed back.

tively in ways that harm and devalue women, minorities,

The organization argues that criminalizing such behavior

and gay and transgender people.

is an unconstitutional overreach and that revenge porn

Franks sees groups she refers to as “constitutional

laws may disproportionately target vulnerable people,

fundamentalists” as not very different from Christian

especially teenagers and young adults who don’t neces-

evangelicals who bolster their arguments with bibli-

sarily intend harm when sharing private images of others,

cal passages that confirm their worldviews. “A prime

according to a legislative memo that the ACLU released

example are people who use the Bible to condemn homo-

outlining its position. “It’s disappointing and frustrating,” Franks said in an

sexuality,” Franks says. “They will find some passages and ignore everything that comes in the New Testament

interview. “We would work with legislators to craft the

about accepting people and not judging them. There are

best law possible and then at the eleventh hour, an ACLU

people who do the same thing with the Constitution.”

representative would show up and scare everyone in the

In the book, she argues that constitutional fundamen-

legislature by telling them that these laws will be ruled

talists elevate certain rights, such as those enumerated in

unconstitutional.”

the Second Amendment, above all others for the benefit

Her tangles with the ACLU helped inspire Franks’

of the most powerful members of society.

most recent book, The Cult of the Constitution: Our Deadly

Second Amendment proponents qualify as con-

Devotion to Guns and Free Speech (2019). In the book,

stitutional fundamentalists, Franks said, because they

Franks challenges extreme conservative and liberal

interpret “the right of the people to keep and bear arms”

interpretations of the First and Second Amendments,

as sacred text that allows every American to own, buy

concluding that partisans on both sides of the political

and sell firearms with little oversight and minimal regulation and because they frame gun control legislation as persecution of gun owners. “In my book, I call this victim claiming,” she said. “It’s inherently contradictory. The idea that men with guns are the ones who need protection and gun violence victims are their oppressors is shocking.” Civil libertarians, Franks continued, play similar roles when they defend the actions of revenge-porn perpetrators and accomplices as protected free speech. “It’s an argument that completely discounts freedom of expression for the victims, who are usually women,” she explained. “When some of your most intimate moments are displayed to the public for self-gain, entertainment or profit, your voice is silenced.” From an early age, Franks observed how individuals bolster their own ideologies by cherry-picking passages from documents deemed sacrosanct. The daughter of a white American World War II veteran and a Taiwanese mother, she grew up in Pine Bluff, Arkansas—a town she described as “not the most racially sensitive place”—where her family attended a conservative Southern Baptist church. As a teen, she noticed how her fellow churchgoers would read scriptures in a way that validated their existing world view. “If a person disagrees, that person is a heretic,” Franks said. “You see the same tendencies with people who only use passages from the Constitution that they find personally validating.” Franks left rural Arkansas for New Orleans, where she obtained an undergraduate degree in philosophy and literature at Loyola University. She won a Rhodes Scholarship to Oxford University, where she received a master’s and a doctorate in literature, and earned her law degree from Harvard.

LEX VERSIONS & SUBVERSIONS

From her perch at the University of Miami School of Law, Franks has become one of the nation’s highest profile constitutional law scholars. She is also president of the Cyber Civil Rights Initiative, a nonprofit organization that combats online abuse and discrimination, and she was recently appointed to an advisory council assisting the social media company TikTok to develop guidelines to help ensure child safety and prevent the dissemination of hate speech and misinformation. Franks’ work has generated intense criticism and opposition from across the political spectrum, but especially from gun rights and free speech advocates. She acknowledged that many of the insults hurled her way

“We shouldn’t necessarily lock people up for promoting violent bigotry, but we can decide who we allow to take over the airwaves and influence other people. You shouldn’t give them oxygen.”

come with the territory, but some responses have crossed the line into threats and harassment—much of which is misogynistic in nature. “You shouldn’t have to face attacks on your physical safety,” Franks said. “You shouldn’t have people saying you should get raped or die in a ditch. This happens to women every day, including me.”

Her law school encounters with online message boards—where female students were regularly exposed

Franks grew interested in constitutional law during

to considerable harassment—helped crystallize her theo-

her final year in college, when she wrote and published

ries. “I was dealing with the downside of online speech,”

a peer-reviewed article about the totalitarian perils of the

she said. “It was clearly on my radar in law school.” She

Internet. “As a philosophy student, I was concerned where

focused on how the Internet, in theory a space of great

the Internet was taking us as far as amplifying people’s

social promise in which true free speech could thrive

worst impulses,” Franks said. “I came back to it when I

without regulation, ultimately amplified misogynist and

found myself embarking on my legal career and what I

racist speech.

wanted to focus on as a law professor and legal scholar.”

“It was going to be a marketplace of ideas and everybody was going to be equal,” Franks said. “But do we really think the Internet has made us more informed, more civilized and more balanced? The answer is no.” She cited, for example, the ease with which white supremacist groups used the Internet to find each other to promote anti-Semitic violence. The advent of social media platforms such as Facebook, Twitter and YouTube gave racist organizations greater opportunity to disseminate their propaganda, Franks said. “We think we have to allow it to be promoted, but we do not,” she said. “We shouldn’t necessarily lock people up for promoting violent bigotry, but we can decide who we allow to take over the airwaves and influence other people. You shouldn’t give them oxygen.” In 2012, Franks found a common ally in Holly Jacobs, who founded the Cyber Civil Rights Initiative the same year. At the time, Jacobs had been a victim of revenge porn after an ex-partner shared nude photographs of her on the Internet along with her contact information. Jacobs launched an online petition seeking support for a federal law against nonconsensual pornography and

Mary Ann Franks participates on a panel on “The Freedom of Speech and the Equality of Citizenship” as part of the “Not Your Father’s First Amendment” symposium at the

advocating for technological, social and legal innovations to fight online abuse. Jacobs approached Franks and other prominent

Drexel University Thomas R. Kline School of Law in November 2019. The day-long

female legal scholars to provide victims with legal rep-

symposium was sponsored by the Drexel Law Review and featured experts from

resentation and legislative support. “Holly was the living

across the United States.

embodiment of the things I was worried about, such

MARY ANNE FRANKS AND THE CULT OF THE CONSTITUTION Mary Anne Franks

Franks and Citron in Conversation: Vindicating the Constitution

Danielle Citron

In early January, Mary Anne Franks joined

capital. The gun-rights rally had sparked fears

Individuals and groups such as the

Danielle Citron in a South Florida bookstore

that it would devolve into the type of violence

National Rifle Association that support lax gun

for a wide-ranging discussion on how various

that took place in nearby Charlottesville four

control are not fighting for the protection of

groups, from civil libertarians to gun rights

years ago when white supremacists clashed

domestic violence victims or unarmed Black

proponents, use the United States Constitution

with civil rights protestors there.

men. “Even if having a gun is a good form of

to suit their particular agendas—and the perils this presents to American democracy.

The rally illustrated perfectly Citron and

self-defense, the people who need it are not

Franks’ contention that Second Amendment

the people advocating for it,” Franks said.

The two law school professors typically

supporters who oppose gun restrictions cast

“We, as a country, have never marginalized or

team up in state capitol buildings during leg-

themselves as victims who face discrimina-

persecuted white men for being white. Yet, we

islative sessions to advocate for victims of

tion for exercising their right to bear arms.

revenge pornography whose private nude

“There’s a disconnect between who really

got to the point where they are feeling more threatened than other groups of people.”

photos and videos have been posted online

suffers from the passage of gun control laws,”

without their consent. Franks and Citron have

Citron said. “The people who are vulnerable

pants in Richmond had been predominantly

Citron noted that if the gun rally partici-

helped pass legislation criminalizing revenge

are not the guys walking around with tiki

African American, they would have been

porn in 46 states and Washington D.C. Citron,

torches or the guns.”

called terrorists. “Because they were mostly

a 2019 MacArthur Fellow who teaches law at

Second Amendment fundamentalists,

Boston University, and Franks, a professor at

Franks said, argue that their access to guns

the University of Miami School of Law, have

shouldn’t be restricted because self-defense

Citron and Franks concluded that gun rights

also co-authored several scholarly articles on

is a personal right. “Yet, there are a lot of

proponents interpret the U.S. Constitution in

the subject.

people who are not allowed to defend them-

ways that only benefit the people already in

selves,” Franks said. Making an argument

power: white men. “We need to fight for a

Just a day before the bookstore conver-

white, it became about the sanctity of Second Amendment rights,” Citron said.

sation, thousands of heavily armed civilians

that has only grown more powerful in recent

Constitution that guarantees every woman the

had marched through Richmond, Virginia, to

months in the wake of the killings of George

personal right to express herself and every Black

protest legislation that would restrict access

Floyd, Ahmaud Arbery and Breonna Taylor,

man the right to defend himself,” Franks said.

to firearms in that state. News outlets across

she said, “Ask any Black man standing at a

“We don’t have to give up on the Constitution. What we have to try to do is vindicate it.”

the globe broadcast images of predominantly

Walmart with a toy gun who gets shot down

white men openly brandishing guns and long

by police because he is perceived as a threat.

rifles as they made their way to the state’s

Does he get the right to self-defense?”

– Francisco Alvarado

“...we have a document that claims equality for all even as it was deliberately excluding members of the population when it was written.” It is time for “a constitutional reckoning.”

as not making any progress on civil rights along gender lines,” Franks said. Fighting on behalf of victims such as Jacobs led Franks to confront the ACLU and its opposition to criminalizing revenge porn. “Not only has the ACLU been at the forefront of challenging this legislation, it is also responsible for the discourse that naked photos shared online are free speech and not a privacy matter,” Franks said. “That is a shocking and unjustifiable position to take.” Writing The Cult of the Constitution allowed her to explore how both conservative and liberal voices use America’s founding documents to justify limiting the rights of others who are not like them, Franks said. “We all presume we are committed to the principle of equality of the Fourteenth Amendment,” she said. “The way we get out of the cult is to truly ask ourselves: ‘Will I fight as hard for the rights of people who are not from my tribe as I would my own rights?’ If the answer is ‘no,’ then what we are really after is our own self-interest.” To change those perceptions, Franks continued, American society must own up to the failings of the Constitution’s authors. School history books should teach American children about how many of the “Founding Fathers” who fought against the yoke of British tyranny kept Black slaves in chains. “We look past that in some ways,” she said. “We can’t. They were saying we should have these rights as they were consciously excluding certain people. This document was written so that white men could have all the power.” The cult of the constitution, Franks argues, is built on the grand ambitions of the country’s founders to create a supposedly free and open society. But, she said, “We know the founders were imperfect people. We have this whole cult built around them that really needs to be dismantled.” “It is essential that we acknowledge we have a document that claims equality for all even as it was deliberately excluding members of the population when

Francisco Alvarado is an investigative journalist whose work has appeared

it was written,” she continued. It is time, she suggested,

in Politico, Bloomberg, Vice, The Daily

for “a constitutional reckoning.”

Beast and The Washington Post.

LEX VERSIONS & SUBVERSIONS

THE NEW PRISONERâ€™S DILEMMA

by Analisa Goodmann

CONFRONTING COVID-19 BEHIND BARS

As COVID-19 continues to spread across the country, one of the populations hardest hit by the pandemic remains largely out of sight. The incarcerated population is, after all, intentionally disconnected from the rest of American society. But research released in early summer shows that prison inmates are nearly six times more likely to catch the virus than non-incarcerated adults and three times more likely to die from it. The New York Times reported that, as of mid-July, more than 90,000 people in U.S. prisons and jails had been infected, nearly 740 inmates and correctional officers had died, and nine of the top 10 largest outbreaks in the country had all occurred in prisons and jails.

Additionally, PPE and cleaning products are in short supply. Some cleaning products are considered contraband, like hand sanitizer with alcohol. The facilities aren’t adequately cleaned, and the burden of maintaining a clean environment typically falls on the prisoners themselves. One inmate described cleaning the walls with soap and having to split bars of soap in half to make supplies last longer. Similar challenges in facilities throughout the country have led many prisons to be “a constant source of outbreaks of COVID-19,” according to López. The largest American outbreak as of mid-summer was the cluster of 2,440 infections in Marion, Ohio at the Marion Correctional Institution, an overcrowded facility whose structure limits the ability to practice social distancing. With more than 2,300 infections, many active as of midJuly, California’s San Quentin State Prison looked likely to surpass Marion for this dubious distinction. López has seen the possibility of this catastrophe from her vantage point as director of Kline’s Andy and Gwen Stern Community Lawyering Clinic (Stern CLC). In early spring 2020, López and a group of Stern CLC students were in the process of collaborating with incarcerated individuals on a project to challenge LWOP sentences as unconstitutional for inmates who develop certain types of cognitive disabilities during their incarceration.

In many correctional facilities, implementing solutions like those used to quell outbreaks in other institutions, such as rotating schedules, enforcing social distancing and using personal protective equipment (PPE), is nearly impossible. To further complicate the problem, inmates face increased risk of complications from COVID-19, especially in those states with sizable populations of elderly inmates. In Pennsylvania, the problem is particularly acute. As one of only six states that issues determinate life without parole (LWOP) sentences—sentences with no parole eligibility—its incarcerated population skews older and is therefore particularly vulnerable to COVID-19. In fact, seniors make up nearly a quarter of Pennsylvania’s

11%

prison population. Rachel López, an associate professor at the Kline School of Law, is working to protect these vulnerable men and women. “Because of the high number of elderly incarcerated in Pennsylvania, our prisons are essentially nursing homes behind bars,” said López. “If a substantial outbreak of COVID-19 happens there, the results could be catastrophic.” In addition to the increased risk that elderly prisoners confront, all of Pennsylvania’s inmates are endangered by the state’s inability to implement safety measures in its correctional facilities. For example, overcrowding and close living quarters make it nearly impossible in many of the state’s facilities to carry out the social distancing measures recommended by the Centers for Disease Control.

of the state’s incarcerated population had been tested as of late June.

LEX VERSIONS & SUBVERSIONS

Pennsylvania’s correctional facilities have, as of this writing, apparently managed to avoid uncontrollable spread of COVID-19. Should a large outbreak occur, however, the situation could become dire. And because testing has been so limited—only 11 percent of the state’s incarcerated population had been tested as of late June—such an outbreak may have already occurred but not yet been identified. To avoid this, the authors of the report, which is titled Pandemic in PA’s Prisons, have strongly urged Wolf to expand the reprieve program that he established in April to include “all of those who are vulnerable to the virus because of their age or medical condition and pose a low risk to public safety.” Expanding the reprieve program is necessary because many of the vulnerable inmates are not eligible for release under its current scope, according to López and her colleagues. As of this writing, reprieve is only available to people who are at high risk of complications if they have the virus and are eligible for release within the next 12 months or are within nine months of their minimum eligibility release date. Furthermore, the govWhen the pandemic hit, however, Lopez and the

ernor has the authority to expand this reprieve program

CLC team realized that the elderly and vulnerable pop-

under a state law that allows him to release elderly and

ulation in Pennsylvania’s correctional facilities faced

vulnerable prisoners to avert a disaster.

a new and immediate danger. They responded to the

Other governors, including Illinois Governor J.

crisis rapidly, strongly advocating that Pennsylvania

B. Pritzker and Colorado Governor Jared Polis, have

Governor Tom Wolf grant reprieves—which would allow

already taken such steps. In early April, Pritzker issued

temporary releases—to inmates who are particularly

an order that expanded the discretion of the state’s

susceptible to the virus and don’t pose a threat to pub-

corrections department to use medical furloughs. And

lic safety. To draw attention to the problem, the Stern

Polis expanded the discretion given to authorities in

CLC quickly collaborated with the Amistad Law Project

his state to identify inmates eligible for parole and also

to publish a report in July 2020 detailing the heightened

suspended the eligibility criteria for Colorado’s special

risks that the pandemic presents in the state’s prisons.

needs parole program.

In early March, Pennsylvania implemented a lock-

As of mid-July, Wolf had not yet responded to the

down of correctional facilities statewide with the goal

calls to expand the reprieve program. López and her

of slowing the spread of COVID-19, confining many

collaborators are working to ensure that Pennsylvania’s

inmates to their cells for all but 90 minutes every day.

correctional facilities are positive models of how correc-

But the isolation and immobility these prisoners con-

tional facilities can be run during a pandemic. To drive

front also gravely endanger their mental and physical

home their concerns, the report quotes Justice Sonia

health. Brett, an incarcerated individual who spoke

Sotomayor of the Supreme Court of the United States,

with the report’s researchers, described the stress that

who wrote in May: “May we hope that our country’s

he and other inmates are confronting:

facilities serve as models rather than cautionary tales.”

Imagine being locked in a cage for 23 hours and 20 minutes a day, in close quarters with people who may have the virus. You don’t know how many are infected… You’re confused from the lack of communication. Anxious from boredom and the unknown. In fear of what is to come. Stressed from worrying about your loved ones. You can’t go anywhere. You can feel the avalanche is coming, and you hope to somehow

Despite the real possibility of a COVID-19 catastrophe, López has hope for Pennsylvania’s correctional facilities. “In Pennsylvania, we have been lucky so far,” said López. “But that does not guarantee a safe future when the second wave of the virus hits. We urge Governor Wolf to learn from the mistakes and successes of other states to prevent Pennsylvania’s prisons from becoming yet another cautionary tale of this pandemic.”

survive the oncoming storm, but you can’t get out of the way.

Analisa Goodmann is a copywriter at the Thomas R. Kline School of Law and assistant editor of Lex.

CITY DIGEST

Kline Ranks in Top Tier for Privacy Law

With cell phones that can track our every

COVID-19 pandemic. What if your doctor has

move, applications that follow us as we surf

your private medical information visible on

the Internet, companies that compile and sell

her screen when she’s on a Zoom call with

our data, the potentially hackable digitization

another patient, for example?

of our financial and medical records, and the

The growing Internet of things is another

pandemic retreat of the country’s adminis-

risk. “Your refrigerator knows what you ate,”

trative workforce to unsecured home offices,

Flanagan said. And systems that record our

the threats to our privacy have never been

energy use can figure out when we’re not home,

greater.

he continued—useful information indeed for

“We’re in the wild wild west with tech-

burglars and predators.

nology exploding and everybody’s data is

Policy makers struggle to keep up with

everywhere,” said Paul Flanagan, an assistant

the technological advances. With some nota-

professor at the Kline School of Law and direc-

ble exceptions, Flanagan asserted, “Unless

tor of the school’s Privacy, Cybersecurity and

you are protecting your privacy yourself,

Compliance program.

nobody is really looking out for you.”

Privacy risks intensified earlier this year,

The Kline School of Law is at the fore-

explained Flanagan, when so many people

front of law schools that have recognized the

began working from home in the wake of the

importance of privacy as both a human right

and as a challenging, important and growing

in privacy among policy makers. Flanagan

area of professional practice. Last year, the

cites the General Data Protection Regulation

nation’s leading organization for privacy pro-

(GDPR) implemented in the European Union

fessionals recognized the breadth and depth

in 2018 as well as the California Consumer

of the school’s privacy curriculum by includ-

Privacy Act (CCPA), which was signed into

ing Kline among the top tier of American law

law the same year, as recent attempts to

schools for its offerings in privacy law.

grapple with the issue.

The International Association of Privacy

In 2018, Flanagan explained, Kline

Professionals (IAPP), which bills itself as

became the first law school in the country

“the world’s largest and most comprehen-

to partner with the IAPP to offer in-person

sive global information privacy community,”

training for the Certified Information Privacy

reviewed the curricula of all law schools

Manager (CIPM) program, which offers a cre-

accredited by the American Bar Association

dential for professionals seeking to advance

to produce in September 2019 a report titled

their careers in this arena. “We thought this

“Privacy in U.S. Law Schools.” The report

was a perfect fit. We were already offering

places Kline into the first of three tiers, which

our own program, so partnering with IAPP

comprises schools that offer students a cer-

was a win-win,” he said.

tification or formal concentration in privacy

In addition to certification programs,

law. Just three percent of ABA-accredited law

Kline also offers privacy law components as

schools made it into the top tier.

part of its JD curriculum, as well as an LL.M

Kline’s curriculum both builds on the

degree in cyber law and data privacy and

school’s existing strengths in compliance

a Master of Legal Studies (MLS) degree in

law and also recognizes the growing interest

cybersecurity and information privacy.

Paul Flanagan 37

“My Data, Myself” Conference Explores the Science, Law and Ethics of Genetic Database Research

Stunning advances in genetic science hold

Panelists that followed Hakonarson

tremendous potential for preventing and

described the ethical issues raised by new

treating a range of devastating diseases. But

genetic research and threats to the privacy of

the acquisition and storage of genetic data also

data subjects. Michelle Holko, a Presidential

present significant privacy risks for individuals,

Innovation Fellow with the National Institutes

and when it comes to laws to protect privacy,

of Health (NIH), described the NIH’s “All of

the technology often outpaces the policy.

Us” program, a historic effort to gather data

In early March, Kline’s Health Law pro-

over many years from one million or more

gram gathered experts in genetic science, law

people living in the United States with the

and ethics to consider new developments in the

goal of identifying how individual differ-

compilation and use of genetic databases and

ences in lifestyle, environment and biological

their potential impacts on privacy rights in a

makeup influence health and disease.

day-long conference on “My Data, Myself: The

Reed Pyeritz, a professor at Perelman,

Science, Law and Ethics of Genetic Databases.”

noted a relatively new ethical and logistical

The lead-off presenter, Hakon Hakonarson,

dilemma: as scientists make new discoveries

is director of the Center for Applied Genomics

affecting the interpretation of patients’ genetic

at Children’s Hospital of Philadelphia (CHOP)

profiles, should their doctors contact them,

and professor of pediatrics at the University of

and, if so, when? And Joann Bodurtha of the

Pennsylvania Perelman School of Medicine.

Johns Hopkins University School of Medicine

He began his career in Iceland, where he

warned that insufficient guidelines for obtain-

helped create one of the world’s first genetic

ing consent, integrating direct-to-consumer

databases with samples from more than half

and patient-driven research testing, and

the country’s population.

communicating findings can strain the doc-

Hakonarson left Iceland to found the

tor-patient relationship.

Center for Applied Genomics, which created a

Sierra Luther, associate counsel at the

biobank with genotypes of 100,000 children.

genetics testing firm 23andMe, noted that

The database is valuable in finding biomarkers

current privacy law offers piecemeal guid-

for genetic diseases and has helped to advance

ance for permissible data use and described

several new molecular diagnosis and treat-

her company’s efforts to disclose its data pri-

ment techniques.

vacy practices and company-wide security

measures. Robert I. Field, a professor at both

Medicine, discussed the many limitations of

Drexel University’s Kline School of Law and

current health information privacy laws, spe-

Dornsife School of Public Health, proposed

cifically the Health Insurance Portability and

the creation of data protection review boards

Accountability Act (HIPAA) and the Genetic

to provide decentralized, expert oversight for

Information Nondiscrimination Act (GINA),

commercialized genetic databases, which are

which was enacted to allay fears regarding

largely unregulated.

discrimination based specifically on genetic

Holly Fernandez Lynch, a professor

information. “We have no privacy,” he

at Perelman, described the limitations of

asserted. “We may think we do, but there is

Institutional Review Boards (IRB) for protect-

no privacy of health information.” Creating

ing privacy in human subjects research.

sufficient protections will be difficult, he con-

Finally, Mark A. Rothstein, a professor at both the University of Louisville’s

tinued, but “not having privacy, I think, would be worse. We’d lose dignity, humanity.”

Brandeis School of Law School and School of

Robert I. Field, a professor at Drexel’s Kline School of Law and Dornsife School of Public Health, speaks at the “My Data, Myself” conference in March.

Kline Clinic Students Score Victories in Federal Courts

Two students from the Kline School of Law’s

with federal requirements to report serious

Federal Litigation and Appeals Clinic, Adam

problems that could affect customers to the

Bluestein ’19 and Sydney Melillo ’19, won their

Office of the Comptroller of the Currency.

second victory in a federal court last sum-

While denying that Jaludi was fired in retal-

mer when the United States Court of Appeals

iation, Citigroup contended that he must use

for the Third Circuit revived their client’s

arbitration to resolve his Sarbanes-Oxley claim as

whistleblower claim against

well as a second claim he filed

Citigroup. They had previ-

under the Racketeer-Influenced

ously won an asylum appeal in

and

April 2019 for a Ghanaian man

(RICO) Act, citing the com-

Corrupt

Organizations

who faced death threats in his

pany’s employment handbook.

home country.

Bluestein and Melillo argued

In a decision handed down

that Citigroup’s employment

in August 2019, the Third Circuit

policies did not require that

ruled that Abdul Jaludi, who

Jaludi resolve his dispute

was fired by Citigroup, did not

through mandatory arbitration.

need to resolve through arbitra-

(The court ruled that Jaludi must

tion his claim that the company

arbitrate the RICO allegation,

violated the anti-retaliation

but the students did not argue

provisions of the 2002 Sarbanes-

on that point.)

Oxley Act. That was precisely

“Mr. Jaludi will receive the

the argument made by Bluestein

day in court that he deserves,

and Melillo, who had taken the

and that he should have received

case under the supervision of

a long time ago,” Frankel said.

Professor Richard Frankel while

“This case highlights the out-

they were enrolled in the clinic.

standing work performed by

Bluestein and Melillo argued the

Sydney and Adam, who spent

case before Third Circuit judges

countless hours researching,

in June 2019, facing off against

briefing and arguing the appeal.”

attorneys from the Philadelphia-based Morgan Lewis firm who represented Citigroup.

Following graduation, Bluestein clerked for New Jersey Superior Court Judge Michael J.

Jaludi had risen through the Citigroup

Kassel for a year and is now pursuing a career

ranks from entry-level tape operator to head

in whistleblower law. Melillo is an associate

of Enterprise Systems Management for North

in the health care department of the firm of

America. But he was demoted and ultimately

Obermayer, Rebmann, Maxwell and Hippel

fired in 2013 after he raised concerns that the

in Philadelphia.

company was not consistently complying 40