From Gladiators to Problem-Solvers: Connecting Conversations About Women, the Academy, and the Legal Profession

The UHF band between 470-790 MHz, currently occupied by digital ter- restrial TV (DTT) distribution in Europe, is widely regarded as a premium spectrum band for providing mobile coverage. With the exponential increase in wireless data traffic in recent years, there has been growing interests in gaining access to this spectrum band for wireless broadband services. The secondary access in TV White Space is considered as one cost-effective way to reuse the spectrum unoccupied by the primary DTT network. On the other hand, the declining influence of DTT and the converging trends of video con- sumption on TV and mobile platforms are new incentives for the regulator to reconsider the optimal utilization of the UHF broadcast band. The proposal to re-farm the UHF band for a converged content distribution network was born under theses circumstances. This thesis intends to develop a methodology for evaluating the technical performance of these options for utilizing UHF broadcast band and quantify- ing their gains in terms of achievable extra capacity and spectrum savings. For the secondary access in TV white space, our study indicates a considerable po- tential for low power secondary, which is mostly limited by the adjacent chan- nel interference generated from the densely deployed secondary devices due to the cumulative effect of multichannel interference. On the other hand, this potential does not translate directly into capacity for a WiFi-like secondary system based on CSMA/CA protocol, as the network congestion and self- interference within the secondary system has a greater impact on the network throughput than the primary interference constraint. Our study on the cellular content distribution network reveals more po- tential benefits for re-farming the UHF broadcast band and reallocating it for a converged platform. This platform is based on cellular infrastructure and can provide TV service with the same level of quality requirement as DTT by delivering the video content via either broadcast or unicast as the situa- tion dictates. We have developed a resource manage framework to minimize its spectrum requirement for providing TV service and identified a significant amount of spectrum that can be reused by the converged platform to provide extra mobile broadband capacity in urban and sparsely populated rural areas. Overall, we have arrived at the conclusion that the concept of cellular con- tent distribution in a re-farmed UHF band shows a more promising prospect than the secondary access in TV white space in the long run. Nevertheless, low power secondary is still considered as a flexible and low-cost way to exploit the underutilized spectrum in the short term, despite its uncertainty in future availability. On the other hand, the re-farming of UHF broadcast band is a long and difficult regulation process with substantial opposition from the in- cumbent.The results from this study could serve as input for future regulatory decisions on the UHF band allocation and cost-benefit analysis for deploying new systems to access this spectrum band. QC 20140609EU FP7 QUASAREU FP7 METI

From Gladiators to Problem-Solvers: Connecting Conversations About Women, the Academy, and the Legal Profession

Dissatisfaction permeates the public and professional discourse about lawyers and legal education. Diverse communities within and outside the profession are engaged in multiple conversations critiquing legal education and the profession itself. These conversations, though linked in subject matter and orientation, often proceed on separate tracks. One set of conversations explicitly focuses on women and people of color, centering on their marginalization and underrepresentation in positions of power. Those concerned about race and gender exclusion often participate in separate communities of discourse. Indeed, the symposium that spawned this article framed the inquiry about higher education in terms of gender. This exclusive focus on gender created a recurring tension in writing this article that stems from the incompleteness of gender as a critical framework. This tension, resolved unsatisfactorily by focusing on gender but continually noting the relevance of the analysis to race and class, exemplifies the failure of existing inquiry to bridge the concerns of women and people of color about law, legal education, and the legal profession. A second conversation questions the appropriateness of the values and goals of the prevailing legal educational mission. Some critics charge that traditional legal education trains lawyers to focus on the short-term, purely economic interests of those in power at the expense of thorough analysis and clients’ long term interests, and without regard to the impact on third parties and the community. Other critics focus on legal education’s preoccupation with rigorous, analytical reasoning and its failure to prepare future lawyers to meet the multifaceted, transactional nature of legal practice. Yet another conversation critiques the prevailing model of legal professionalism perpetuated by the traditional law school curriculum. These critiques are both instrumental, in their questioning whether the model of the legal profession embraced by law schools adequately prepares lawyers and the legal profession to deal effectively with the challenges of the twenty-first century workplace, and normative, in their examining whether reigning models of legal professionalism are morally and ethically justifiable. This article suggests that these conversations are related, indeed, interdependent. It builds from the critique of the gladiator model as a dominant, organizing framework of legal education and lawyers’ roles to find a synergy between the goals of those seeking to include women and those seeking to revitalize the profession to meet the demands of the twenty-first century. It explores the outlines of a problem-solving orientation to lawyering and legal education that has potential to address and create a dynamic between the concerns of women and the need to reclaim the soul of the legal profession. A move from gladiator to problem-solver may brighten both the future of the legal profession and the future of women and other underrepresented groups in the legal profession

Law Schools, Leadership, and Change

Law schools train many of the nation’s leaders. As Professor Fred Rodell observed, “it is the lawyers who run our civilization for us – our governments, our business, our private lives.” The legal profession was already closely linked to leadership at the founding of the country, when lawyers constituted almost half of the signers of the Declaration of Independence and more than half of the members of the Constitutional Convention. Lawyers now bear major responsibility for leading the institutions that structure the governance, education, and day-to-day lives of the polity. Ten percent of the CEOs of the top fifty companies are lawyers. Lawyers serve as presidents of colleges and universities. Many practicing lawyers also play key leadership roles in the organizations where they work, on boards of directors, and in their communities

Legacy and Future of Corrections Litigation

This Article attempts to provide a framework for assessing the legacy and future of public interest advocacy in one particular area – corrections. It documents a shift from a test case to an implementation model of advocacy, and urges the development of effective remedial strategies as a method of linking litigation to a broader strategy of correctional advocacy. I have chosen to focus on this particular institutional context for several reasons. On a pragmatic level, the Edna McConnell Clark Foundation, which for the last twenty years has been the primary source of funding for corrections litigation by private, nonprofit organizations, asked me to study the future of corrections litigation and the potential role of various organizations involved in corrections litigation to better inform the Foundation\u27s decisions concerning its involvement in corrections litigation. On a policy level, the area of corrections presents one of the most important policy issues facing our state and local governments. In many states it represents the single largest budget item, and the continued trend toward incarceration takes place at the expense of education, social services, and rebuilding the infrastructure of our cities. The dramatic overrepresentation of people of color in correctional institutions underscores the relationship of correctional policy to more basic social policies of the 1980s and the importance of corrections in developing an effective strategy for reversing the deterioration of urban communities. On a more theoretical level, it is my view that the potential and role of litigation varies in different organizational settings, and that it is a mistake to ignore these organizational differences in assessing and planning the future role of litigation. The legal standards defining the scope of judicial reform activity are more favorable to successful litigation in some contexts than others. The availability of plaintiffs willing to sue and lawyers willing to represent them varies across subject areas. The demands of litigation and the concomitant expertise and resources needed to handle advocacy also differ among subject areas. The organizational dynamics contributing to the problems targeted by litigation and strategies for altering them may differ. Perhaps the most significant difference involves the political context surrounding the institutions subject to litigation and the potential for mobilizing other forms of effective advocacy. Too often, scholars and advocates ignore th6se differences and offer overarching generalizations about litigation\u27s impact and potential. It is my hope that this study\u27s focus on public interest advocacy in the corrections context will help identify themes and variations in public interest advocacy and contribute to the development of strategies of public interest advocacy that can build on common experience and yet respond to the particular demands of each institutional context

Resolving the Remedial Dilemma: Strategies of Judicial Intervention in Prisons

During the last several decades, courts have undertaken to remedy ongoing constitutional and statutory violations in a variety of public and private institutions. Once a court determines that an institutional pattern or practice violates the law, it must face the challenge of structuring a process that will lead to the elimination of the illegal conditions or practices. Whether this judicial activity is called ordinary or extraordinary, the remedial process in institutional reform litigation may lead the trial court to engage in a range of roles beyond those usually required to resolve a traditional private dispute. Courts involved in institutional reform litigation face a serious remedial dilemma. They are constitutionally compelled to develop a remedy for conditions and practices that violate a plaintiff\u27s rights. However, courts cannot rely entirely on the defendants to eliminate these unconstitutional conditions because in many instances the responsible parties either cannot or will not take the steps necessary to do so. At the same time, courts must depend on those with ongoing responsibility for the institution to achieve compliance with the law. Courts lack the administrative capacity to alter basic institutional practices directly and are constrained by both a limited constitutional mandate and a narrow vision of their role. The controversy over institutional reform litigation swirls around this remedial dilemma. The debate is often framed in terms of whether courts should be involved at all in cases requiring institutional reform. Advocates of an expansive judicial role tend to emphasize the courts\u27 duty to intervene in the face of serious constitutional violations, without critically assessing the various forms that intervention may take or their potential impact on the target institution or the judiciary. Critics emphasize the limitations of judicially managed change without addressing the failure of the responsible officials to comply with the law and the absence of any realistic alternative means to remedy ongoing constitutional and statutory violations. This Article shifts the focus of the debate from whether courts should intervene to how they should structure the remedial process to avoid, or at least minimize, the negative consequences of the remedial dilemma described above.8 Several factors justify reframing the inquiry in this manner

Resolving the Remedial Dilemma: Strategies of Judicial Intervention in Prisons

During the last several decades, courts have undertaken to remedy ongoing constitutional and statutory violations in a variety of public and private institutions. Once a court determines that an institutional pattern or practice violates the law, it must face the challenge of structuring a process that will lead to the elimination of the illegal conditions or practices. Whether this judicial activity is called ordinary or extraordinary, the remedial process in institutional reform litigation may lead the trial court to engage in a range of roles beyond those usually required to resolve a traditional private dispute. Courts involved in institutional reform litigation face a serious remedial dilemma. They are constitutionally compelled to develop a remedy for conditions and practices that violate a plaintiff\u27s rights. However, courts cannot rely entirely on the defendants to eliminate these unconstitutional conditions because in many instances the responsible parties either cannot or will not take the steps necessary to do so. At the same time, courts must depend on those with ongoing responsibility for the institution to achieve compliance with the law. Courts lack the administrative capacity to alter basic institutional practices directly and are constrained by both a limited constitutional mandate and a narrow vision of their role. The controversy over institutional reform litigation swirls around this remedial dilemma. The debate is often framed in terms of whether courts should be involved at all in cases requiring institutional reform. Advocates of an expansive judicial role tend to emphasize the courts\u27 duty to intervene in the face of serious constitutional violations, without critically assessing the various forms that intervention may take or their potential impact on the target institution or the judiciary. Critics emphasize the limitations of judicially managed change without addressing the failure of the responsible officials to comply with the law and the absence of any realistic alternative means to remedy ongoing constitutional and statutory violations. This Article shifts the focus of the debate from whether courts should intervene to how they should structure the remedial process to avoid, or at least minimize, the negative consequences of the remedial dilemma described above.8 Several factors justify reframing the inquiry in this manner

Introduction

The theme of the first Symposium issue, Rethinking Law in the Twenty-First Century Workplace, addresses a fundamental challenge facing the field of labor and employment law. Existing regulatory regimes in this area are ill-equipped to address the demands of the increasingly dynamic, unstable, and technologically-driven workplace. This Symposium brought together a diverse and creative group of scholars, public policy thinkers, and activists to discuss new frameworks for participation, inclusion, evaluation, and legal regulation in the workplace. These participants represented a variety of disciplines, including law, psychology, organizational theory, sociology, and public policy. Each of the participants brought to the table a critical perspective on the dominant frameworks for governing, regulating, and transforming the workplace

Lawyers at the Prison Gates: Organizational Structure and Corrections Advocacy

This Article attempts to fill the gaps in the discussion of public interest advocacy by exploring the roles of various legal organizations in providing representation to inmates challenging the conditions and practices in prisons, jails, and juvenile justice institutions. It is an outgrowth of a study conducted for the Edna McConnell Clark Foundation on the extent and quality of representation in corrections litigation. It puts forward an organizational change model of public interest advocacy as the most promising strategy for legal representation in the corrections area. It then identifies the major organizational providers of representation, assesses where they fall on a continuum of practice models, and presents advocates\u27 views of the potential and limitation of each organizational setting to provide adequate representation

The Promise of Participation

Professor Owen Fiss\u27s seminal work, The Civil Rights Injunction, inspired a generation of scholars and practitioners to flesh out the significance of his insights. With remarkable prescience, he captured a moment in intellectual and legal history and created a vocabulary that continues to shape the debate over the court\u27s role in public law litigation. The Allure of Individualism continues the Fiss tradition of capturing a singular, emblematic issue and sketching with broad strokes the contours of emerging debate. His springboard is Martin v. Wilks, a case that aptly frames the current dilemmas and choices posed by structural injunction litigation. Martin v. Wilks addresses a central issue raised by structural injunctions: To what extent must courts afford those whose interests may be adversely affected by a decree the opportunity to participate in its formulation and implementation? Martin v. Wilks answers this question by granting third parties the right to full adversary participation. It holds that white firefighters may collaterally attack a consent decree adopting an affirmative action plan if they did not participate as parties in the proceedings resulting in that decree. The Civil Rights Act of 1991 reverses this holding and recasts third parties\u27 right to individual participation as a right to interest representation : It precludes collateral attacks if third parties had notice and a reasonable opportunity to object or if someone who previously challenged the judgment adequately represented their interests. Professor Fiss does not shrink from the potentially far-reaching implications of Martin v. Wilks. He quite correctly notes that, although Martin v. Wilks involves a consent decree, its reasoning is equally applicable \u27to decrees following an adjudication of liability. He also acknowledges the implicit due process foundations of the Court\u27s decision. Indeed, much of the commentary on the issue of third-party challenges to injunctions proceeds in terms of the traditional due process rights of third parties. The strains of constitutional analysis in Martin v. Wilks implicate the rights of third parties to challenge injunctions not addressed by the Civil Rights Act of 1991, and leave open the possibility that the procedures established by the Civil Rights Act do not conform to the requisites of due process. Professor Fiss uses the stark opposition of Martin v. Wilks and the Civil Rights Act of 1991 to highlight what he perceives as an inevitable conflict between process and outcome, between participation values and the efficacy and finality of the structural injunction. He embraces the value choice embodied by the Civil Rights Act of 1991. Indeed, The Allure of Individualism serves in part as an effort to provide a normative justification for the political\u27 victory achieved by the legislature\u27s reversal of Martin v. Wilks. Professor Fiss introduces and defends a scheme that I refer to as vicarious interest representation. Third parties may participate through a surrogate whom they did not select and cannot hold accountable, but who the court deems an adequate representative. Fiss concedes that this approach deprives third parties of important aspects of participation, but is willing to sacrifice these values to preserve the effectiveness of the structural injunction. This Article shows that the value conflict identified by Professor Fiss stems not from an inevitable clash between process and outcome, but from his unstated acceptance of a variety of premises about the nature of participation and representation at the remedial stage of public law litigation. He conflates a series of important questions and choices that must be unpacked to address adequately the issue of third-party participation in structural injunctions