THE ROLE OF THE LAWYER AND THE ESSENTIAL SKILLS TO TEACH LAW STUDENTS IN AN ERA OF FAKE NEWS, 'ALTERNATIVE FACTS,' AND GOVERNING BY DISRUPTION.

Author:Blaustone, Beryl
 
FREE EXCERPT

TABLE OF CONTENTS INTRODUCTION I. Context: Government and Politics Today as the Backdrop to Legal Education A. Attacks on the Media B. Attacks on the Rule of Law and the Justice System C. Normalizing Incivility in Public Discourse and Deteriorating Communication D. Beyond the United States II. Renewed Emphasis on the Role of Lawyers in Society III. Teaching Law Students in a New Era IV. Four Essential Skills for These Times A. Rigorous Investigation and Identification of Facts and How to Establish the Existence of a Fact B. Effective Communication and Other Relational Skills C. Self-Regulation to Help Students Identify When Their Work is in Conflict With Their Values D. Self-Care Strategies to Help Students Identify Positive Responses to the Stresses of Working in Challenging Environments CONCLUSION INTRODUCTION

In 2016, Donald Trump, a former reality television star, began his first press conference as President-elect of the United States challenging negative media reports as "fake news." Since then, he has regularly labeled the media as "fake news" and "fraudulent." His medium of choice to communicate to the American people is the social media platform Twitter, where he has approximately 31 million followers. Following Trump's installation as President of the United States in January of 2017, U.S. citizens began experiencing a style of governing that has never been seen before. Trump's provocative and disruptive style defied conventions and norms of behavior that Americans had come to expect of their presidents. Trump, his then chief strategist Steve Bannon, and his administration pursued an aggressive agenda of "deconstruction of the administrative state." (4)

The tone for Trump's presidency was set early in an interview given by his Counselor, Kellyanne Conway, in response to charges that then White House Press Secretary Sean Spicer's statement about the number of people in attendance at the Trump Inauguration ceremony was false. She stated that Spicer was giving "alternative facts" in response to charges that Spicer gave a false statement about the attendance numbers at Trump's inauguration ceremony. (5) Thereafter, the actions of Trump and his administration were subject to media scrutiny and public protest, an early example of which were the large and almost instantaneous protests at major U.S. airports in response to the first incarnation of the "travel ban," enacted via Executive Order 13769 in early 2017. (6)

As legal educators in the United States, we are challenged with the task of preparing law students to practice in a world in which democratic values, rights, protections, and legal processes are under grave threat. Our approach to raising these concerns among our colleagues and identifying how our teaching should change as a result, is a framework of rebuttable observations offered for discussion. Neither of us have dispositive answers to the fundamental challenges facing us as legal educators.

Legal educators are uniquely positioned to positively influence the ways in which students construct a professional identity that helps them deal with what may be experienced as helplessness or outrage. Law students must learn how to correct their misreading of actual circumstances and how to minimize their reactive behavior in response to the current overload of harmful governmental actions. They must also possess an accurate understanding of the framework that controls the changes they are experiencing. The pervasive use of, as well as the normalizing of, deception by our national government is eroding our shared sense that we all are governed by an adherence to the rule of law and a common approach to establishing facts. Our common sense of moral values is weakened, as well as our adherence to professional ethics. (7)

In fact, statements and actions by Trump and his administration effectively manipulate how our brains process information. George Lakoff, Professor Emeritus of Cognitive Science and Linguistics at the University of California, Berkeley, explains that Mr. Trump's tweets fall within four basic techniques for manipulating our reactions to his words and actions: preemptive framing, diversion, deflection, and trial balloon. (8) Lakoff has offered suggestions for mitigating the impact of this pervasive assault on our cognitive capacity. These suggestions are appropriate to include among our teaching techniques and we will discuss his specific suggestions at the end of this paper. One way to mitigate these reactions is to equip our students with metacognitive capacity or clinical self-awareness, an essential capacity for effective lawyering in our disruptive environment. (9) As educators, we must help students learn to become lawyers who have such skills.

We began exploring these ideas in an effort to make sense of our abruptly changed circumstances following the 2016 U.S. presidential election. This paper is the result of sharing our professional challenges in teaching and in clinical case supervision with each other. Our efforts to understand these new challenges in training resilient socially responsible lawyers led to our interactive seminar at the July 2017 International Journal of Clinical Legal Education (IJCLE) conference held at Northumbria School of Law in Newcastle, England. Colleagues attending our seminar strongly encouraged us to present our work to multiple audiences. Hence, we wrote this paper in addition to presenting these ideas at other conferences. As history unfolds, our understanding of what lawyering means under these circumstances continues to evolve.

We share our reflections in this paper on the developing imperatives in legal education with the understanding that our landscape is rapidly changing in context. We also acknowledge that our articulation of the four essential lawyering skills are not new inventions in instruction. Rather, it is the importance of these skills in our new climate, as well as the need to teach them in this new context, which makes them higher priorities among our teaching goals. Furthermore, the teaching of these essential skills must be contextualized differently. We urge our teaching colleagues to make difficult teaching choices among competing topics and select these skills for more intense treatment.

This paper proceeds in five parts. The first is an exploration of the current context of political conditions in the United States and other countries around the world, and how these conditions shape citizens' perceptions of and the functioning of the rule of law. It will also examine how a climate of anti-Freedom of the Press results in destabilization and uncertainty and affects long-held beliefs about how systems of government work and how governments engage with one another. The second part of the paper identifies examples of how these conditions have changed or placed renewed emphasis on the role of lawyers in society, and how lawyers must continue to seek justice while working within the law. The third part of the paper recognizes that, while well-trained lawyers play a key role in protecting and advancing democracy, it is essential that law schools, who are training new entrants to the profession, examine how they are educating in this context. The fourth part of the paper identifies four essential skills that law students must learn and cultivate in order to thrive in this new era of lawyering: 1) Rigorous investigation and identification of facts, and how to establish the existence of a fact; 2) Effective communication approaches that encourage productive dialogue; 3) Self-regulation to help students identify when their work is in conflict with their values; and 4) Self-care to help students identify positive responses to the stresses of working in challenging environments. The conclusion offers additional recommendations and concludes that current societal conditions require an urgent emphasis on these skills as being essential to prepare the lawyers of tomorrow.

  1. CONTEXT: GOVERNMENT AND POLITICS TODAY AS THE BACKDROP TO LEGAL EDUCATION

    Law students do not learn law disconnected from the reality of how law actually operates outside the walls of law school. An understanding of political and social movements, and how the law relates to them, is essential to their overall understanding of justice. Recent dramatic changes in philosophy, style, and approach to governing have proved disorienting and disruptive. These changes influence how law is made, interpreted, enforced, and respected. These changes also affect how the public views the procedures for creating and enforcing law. More critically, they affect how law students understand law in action.

    At the time of this writing, Donald Trump has completed his first year as president. This anniversary has inspired dozens of commentators to reflect on the impact of his administration, including its impact on democracy, justice, and the rule of law. A full catalogue of the administration's actions that threaten the rule of law is beyond the scope of this paper. Here, we focus on the impact of the persistent attacks on the media, on existing law, on the judiciary, and the normalizing of incivility in public discourse. We also discuss how these external factors hinder the ability of law students, who are developing their understanding of law and of how law works, to prepare for the reality of becoming actors in a functioning justice system.

    1. Attacks on the Media

      Trump and his administration's tactics of delegitimizing the media, by using terms such as "alternative facts," and calling unfavorable reports "fake news," has negatively impacted the ability of the mainstream media to publicize important factual information. Since declaring his run for the presidency in June 2015, Trump has posted approximately 1,000 tweets critical of the press. (10) These actions call into question a fundamental democratic institution in our country that is not open to question. While mainstream...

To continue reading

FREE SIGN UP