York Law School Research Articles

Starting gendered career pathways early? Differences between women and men students in optional module composition among UK law school undergraduates

ABSTRACT Women’s inequalities in the legal profession are an enduring concern. Women are over-represented in junior positions and under-represented in senior roles, especially in large corporate firms. This pattern is compounded for women from Black and minority ethnic backgrounds in comparison to both men of all ethnicities and white women. This is informed not by ability, but by masculinity-privileging working cultures and practices. Women legal academics are also under-represented in senior roles. However, less is understood about women law students’ experiences, particularly in the UK and in recent research. This article reports on a new project which explored undergraduate student allocation on module options at York Law School, University of York, UK. There were marked gender differences in student composition in just over half (36) of the 66 different optional modules between 2014 and 2022. Women were under-represented on modules relating to commercial, corporate and financial law and over-represented on modules relating to family, health, social welfare, gender and sexuality. While there are many possible causal factors, there is clear resonance with the literature on gender inequalities in the legal profession and legal academia. The curriculum and careers guidance implications are considered, and a research agenda proposed.

The Rise and Fall of Morris Ernst, Free Speech Renegade by Samantha Barbas

Reviewed by: The Rise and Fall of Morris Ernst, Free Speech Renegade by Samantha Barbas David G. Dalin (bio) The Rise and Fall of Morris Ernst, Free Speech Renegade. By Samantha Barbas. Chicago: University of Chicago Press, 2021. 424 pp. Morris Ernst was one of the best-known liberal lawyers and most celebrated civil libertarians in America, serving for many years as chief legal counsel of the American Civil Liberties Union (ACLU) and achieving fame as an opponent of literary censorship and representative of Margaret Sanger and Planned Parenthood. He was born in Uniontown, Alabama, in 1888, and moved to Manhattan with his family two years later. After attending the Horace Mann School, he graduated from Williams College and three years later from New York Law School, which he attended as a night student. In 1915, together with one of his Williams classmates, Ernst co-founded the New York City law firm of Greenbaum, Wolff and Ernst, with which he remained associated until his death in 1976. During the 1920s, influenced by the landmark free speech jurisprudence of Supreme Court Justice Louis D. Brandeis, who would become his friend, Ernst began to add free speech cases to his growing legal practice. In 1927 Ernst joined the ACLU board and would remain one of the best known and most successful ACLU attorneys for the next forty years. Greenbaum, Wolff and Ernst became the "preeminent law firm for the left," as the law firm's "tremendous commercial practice allowed it to represent liberal causes at reduced rate or pro bono" (79). It "was also gaining a reputation as a literary law firm," becoming counsel for several major magazines … including the New Yorker and the Nation, which shared many board members with the ACLU" (79). As a civil liberties lawyer, Ernst achieved national prominence and notoriety in 1934 when he successfully defended James Joyce's highly controversial novel Ulysses against charges of obscenity. As Barbas notes, "Joyce's novel had a long history of suppression in the United States," with the post office confiscating and burning copies, though that did not stop Ulysses from being widely read (152). Ernst, a brilliantly flamboyant attorney whom Barbas describes as "a civil liberties lawyer who adored controversy," declared that Ulysses was the "only volume of literary importance still under a ban" in the country (1). He persuaded the judge that Ulysses was not obscene – that it would not corrupt even those members of society "whose minds are open to such immoral influences" (1). Following his 1934 court victory, Ulysses became [End Page 305] a best seller, and the case, while a triumph in the battle against literary and artistic censorship, also was personally enriching for Ernst, who had made a deal with Random House that if he won he would earn a royalty on every copy sold. A liberal Democrat, throughout his legal career Ernst received major political appointments from Democratic Party leaders, which enhanced his prominence and influence in American politics and public life. In 1929, Ernst, who was considered one of the state's outstanding insurance experts, was appointed by New York Governor Franklin D. Roosevelt to the state insurance commission charged with regulating all insurance business in New York. Three years later, FDR appointed Ernst to the New York State Banking Board, a powerful board established in 1932 to set rules for the regulation of the state's financial institutions. By the late 1930s, Ernst was being mentioned by the columnist Drew Pearson as a candidate for mayor of New York. In 1946, Ernst was appointed by President Harry Truman to the newly established President's Commission on Civil Rights. Though Barbas claims that Ernst remained proud of his Jewish heritage, there is almost no discussion of it in this book. Ernst apparently followed in the footsteps of his parents who were mostly religiously nonobservant, and he became estranged from Judaism as a teenager, never again setting foot inside a synagogue and holding a lifelong conviction that religion was irrational. As Barbas discusses in the second part of this book, Ernst was a man of stark contradictions, waging an intensely personal battle against communism and publicly supporting FBI Director J. Edgar Hoover's...

Classroom to Cyberspace: Preserving Street Law's Interactive and Student-Centered Focus During Distance Learning

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A Law-Themed Charter High School Born at New York Law School Remains Indelibly Linked

It was a confluence of unrelated events at New York Law School in the spring of 2009 that led to the founding of the Charter High School for Law and Social Justice (CHSLSJ) in the Bronx, New York. Dedicated law school faculty members were crucial to the school’s launch and the law school, its law students and faculty continue to nurture this unique and reciprocal relationship. Professor Richard Marsico was the unstoppable force behind the founding of the charter school and its close connection to New York Law School (NYLS). This article details the origins of CHSLSJ, the current relationship between NYLS and the high school, and plans for future cooperation.

Classroom to Cyberspace:Preserving Street Law's Interactive and Student-Centered Focus During Distance Learning

The Street Law program at New York Law School (NYLS) is a faculty taught, credit-bearing course that trains law students to teach interactive lessons covering practical legal topics at The Charter High School for Law & Social Justice (CHSLSJ), in the Bronx, New York. On March 3, 2020, NYLS moved online due to the rapid rise of COVID cases in New York City. Like many clinical and experiential programs, we weighed options that would provide both valuable experiences for our high school and law students while keeping everyone safe. On Sunday March 15, 2020, the New York City public schools shifted to remote learning. The immediate closure of physical buildings forced schools into reactive emergency distance learning. Determined to continue to provide Street Law lessons and some consistency for our high school students, we supplied weekly asynchronous lessons because synchronous teaching was not available at CHSLSJ. We could see from student work product that they were continuing to learn content and practice skills. However, the connection and community often created in Street Law classrooms was missing. Additionally, for the past several summers, CHSLSJ has offered a Summer Bridge program for their incoming students that follows the Street Law model. This summer, we taught Summer Bridge synchronously. After completing two months of asynchronous Street Law instruction and an intensive two-week synchronous program, we have amassed best practices for teaching Street Law through distance learning. These best practices include technology choice, class length, class size, number of instructors, and use of visuals. We recently learned that CHSLSJ will be entirely online again this fall. We will use lessons learned to prepare the best program we can for the upcoming semester. This paper will examine whether is it possible to maintain interactive, student-centered Street Law instruction during distance learning.

A Man of ‘Ubuntu’: A South African Colleague’s Tribute to Stephen Ellman

Professor Stephen Ellmann and I founded and co-hosted the South Africa Reading Group at New York Law School in 1994. Since then we have hosted hundreds of South African and international scholars, judges of the Constitutional Court and other courts in South Africa, practicing lawyers and civil society advocates. Steve passed away in March 2019. This essay is a reflection on his scholarly work on South Africa and his impact on those connected to the South Africa Reading Group and beyond.

Born Perfect: Assessing Free Speech Challenges to Sexual Orientation Conversion Therapy Bans

This legal analysis paper was written as the final project for Professor Nadine Strossen's upper level First Amendment seminar at New York Law School during the spring 2019 semester. The thirty-page paper addresses the timely question of whether state laws banning “gay conversion therapy” can be successfully challenged on First Amendment/free speech grounds. The paper also considers two Circuit Court opinions that both reached the conclusion that such bans are constitutional, but under different levels of scrutiny and judicial review. Since the paper was submitted, three of the cases mentioned within have been updated by the courts. In September 2019, New York City Council proposed repealing the city's highly restrictive conversion therapy ban in order to moot a First Amendment challenge brought against it in the Southern District of New York (in Schwartz v. City of New York). Also in September, the District Court for the District of Maryland dismissed a First Amendment challenge brought to that state's conversion therapy ban (in Doyle v. Hogan). Finally, in early October, the District Court for the Middle District of Florida (in Vazzo v. City of Tampa) struck down Tampa's conversion therapy ban, not on First Amendment grounds but because it was preempted by state power to regulate the medical profession.For these reasons, the paper has already been rendered a bit out of date. Because the law surrounding this issue is in constant flux and because of other concurrent developments in laws affecting LGBT communities, such as the Supreme Court's consideration of Title VII protections against discrimination based on sexual orientation and/or gender identity, I plan to revise this paper soon and offer it for publication.

How is reflection “framed” for legal professional identity? Using Bernstein and Leering to understand the potential for reflection in our curriculum as written, experienced and assessed

ABSTRACTThe undergraduate study of law involves students developing an understanding of the canon of established knowledge about the domestic and international legal structure relevant to their chosen jurisdiction, with such education influenced in part by the curriculum design choices of the host law school. It will be proposed here that, in addition to teaching core legal knowledge, the LLB programme has the potential to provide an opportunity for all to learn and develop as integrated reflective practitioners. It is acknowledged that this process may take place without any overt recognition within the law school curriculum design due to the formative nature of the university experience. However, it will be argued that by making such explorations of self-development an assessed component of the curriculum, we can enhance the students’ learning experience by providing a frame for their understanding of legal professional identity. The utility of core concepts derived from the work of Basil Bernstein and Michele Leering will be considered, together with an overview of insights gained from the experience of incorporating reflective assessments within the established guided-discovery problem-based learning model at York Law School. The potential for enhancing reflective practice in our curriculum as written, experienced and assessed will be explored, as will the relative merits of different types of reflective assessments.

Patent Eligibility Reform and the Public Health.

The Milbank QuarterlyVolume 97, Issue 3 p. 654-658 Opinion Patent Eligibility Reform and the Public Health JACOB S. SHERKOW, Corresponding Author JACOB S. SHERKOW jacob.sherkow@nyls.edu Address correspondence to: Jacob S. Sherkow, Professor of Law, Innovation Center for Law and Technology, New York Law School (email: jacob.sherkow@nyls.edu).Search for more papers by this author JACOB S. SHERKOW, Corresponding Author JACOB S. SHERKOW jacob.sherkow@nyls.edu Address correspondence to: Jacob S. Sherkow, Professor of Law, Innovation Center for Law and Technology, New York Law School (email: jacob.sherkow@nyls.edu).Search for more papers by this author First published: 19 July 2019 https://doi.org/10.1111/1468-0009.12408Read the full textAboutPDF ToolsExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinkedInRedditWechat Volume97, Issue3September 2019Pages 654-658 RelatedInformation

From 'Paradise' to Pragmatism: Reflections on a Visit to York Law School from the Perspective of a Large, Traditional, Continental Law School

Michal Urban describes the work of York Law School and reflects on its success in implementing an intellectually robust yet practical curriculum.

'They Keep it All Hid': The Ghettoization of Mental Disability Law and its Implications for Legal Education

The Supreme Court has, since 1972, decided more than fifty cases involving persons with disabilities, a docket spanning virtually every aspect of constitutional and criminal procedure. These cases have dealt with the substantive and procedural limitations on the commitment power, the conditions of confinement in psychiatric institutions, the application of the Americans with Disabilities Act to persons institutionalized because of illness, the substantive and procedural aspects of the criminal incompetency inquiry and the insanity defense, the relationship between disability and sexually violent predator laws, and aspects of the death penalty. Thousands of cases have been decided in every state in the nation dealing with similar issues. In fact, in the Supreme Court’s first modern disability case – finding that the due process clause is implicated in decisions related to both the nature and duration of the commitment process – it expressed surprise that there were not more disability cases brought to its attention.However, a study of constitutional law, criminal procedure, civil rights and/or federal courts casebooks reveal virtually no disability cases. Policies and practices of exclusion are not unique. By way of example, more than a decade ago, Toni Massaro pointed out that constitutional criminal procedure has been treated as a subject separate from basic constitutional materials and courses. Mental disability has been ghettoized in the same way that criminal procedure has been ghettoized. It is a ghettoization that in some ways is far more troubling than the criminal procedure ghettoization, since schools offer courses in basic criminal procedure, and these courses are regularly well-subscribed. On the other hand, there are courses in mental disability law offered only at about half of American schools, and, at many schools, those courses are offered infrequently and only by adjuncts (who often have no legal training). This ghettoization reflects a hard truth that has passed under the radar of most civil rights teachers and civil rights students. Mental disability is simply not a topic taken seriously as a civil rights topic (or as a constitutional topic or as a federal courts topic). And this failure of inclusion goes directly to the heart of the challenge of teaching disability law. It is hidden (nearly totally hidden) from the traditional school curriculum. It is not in the curriculum at many schools. It is largely invisible to students and professors alike.I believe this ghettoization is a reflection of the invidious sanism that permeates the legal academy in the same way it permeates the rest of society. Law teachers are not immune to sanism – an irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry.In this essay, I reconsider this ghettoization from four overlapping vantage points. First, I consider how mental disability law became a part of the school curriculum, growing out of and largely supplanting courses in psychiatry and the law (and why this title change is not just a question of phraseology). Second, I discuss the significance of the notion that mental disability law can be cabined in one 2- or 3-credit course (implying that all disability can be surveyed in that period of time, in a way that school faculty would never think all tax or real estate or securities could be so taught), and the significance of the reality that so many schools offer no course or only one course sporadically (often, without any involvement of a full-time faculty member). Third, I examine the Online Mental Disability Law program at New York Law School (where I teach) from four different perspectives: (a) the pedagogy, (b) the range of subject matters taught, (c) the interdisciplinarity of the students and the faculty, and (d) the internationality of the students and intersectionality of our course offerings. Finally, and most importantly, I explain why it is absolutely essential for any disability course (or sequence of courses) to consider the concepts of sanism and pretextuality, the significance of ordinary common sense (OCS) and heuristic reasoning, and the impact of therapeutic jurisprudence.

Reflection, realignment and refraction: Bernstein's evaluative rules and the summative assessment of reflective practice in a problem-based learning programme

ABSTRACTReflective practice is an essential component of experiential learning and is embedded within the curriculum at York Law School, where the undergraduate law programme is delivered using a problem-based learning model. Using qualitative data from a survey of the markers of one of the summative reflective tasks, and Bernstein's evaluative rules as a theoretical frame, this article explores the assessment traps exposed by this type of assessment. Thematic analysis of the markers’ statements introduces ‘reflection’, ‘realignment’ and ‘refraction’ as three of the potential effects of the summative assessment of reflective practice.

News and Comments

News and Comments Bart Eeckhout, Glen MacLeod, and Natalie Russell Click for larger view View full resolution Left: Cultural medallion at 441 West 21st Street, Manhattan. Right: Poet Susan Howe and the president and vice president of the Wallace Stevens Society, Lisa Goldfarb and Glen MacLeod, at the ceremony to unveil the medallion. Photographs courtesy of Harold Steever. On July 11, 2018, a small ceremony was organized on the doorsteps of 441 West 21st Street in Manhattan to unveil a cultural medallion dedicated to the memory of Stevens. The medallion was an initiative of the Wallace Stevens Society and is supported by the Historic Landmarks Preservation Center, which seeks to mark sites where notable individuals in New York City lived, worked, and created. It reads as follows: Wallace Stevens October 2, 1879–August 2, 1955 441 West 21 Street, Manhattan Born in Reading, PA, poet Wallace Stevens attended Harvard University and graduated from New York Law School. He lived here, with his wife Elsie, between 1909 and 1916; during those years, he wrote "Sunday Morning" and "Peter Quince at the Clavier," both published in Harmonium (1923). While pursuing poetry, Stevens began his career as an insurance lawyer; by 1914, he was vice president of Equity Surety Co.'s New York office, and in 1916, left New York to live in Hartford, CT, where he would become vice president of The Hartford Accident and Indemnity Co. in 1934. Stevens was an extremely inventive writer who can be gaudy or elegant, humorous or meditative, ironic or philosophical by turns. He is now acknowledged as one of the great American modernist poets of the twentieth [End Page 290] century. His Collected Poems (1954) won both the National Book Award and the Pulitzer Prize for Poetry. During the sidewalk ceremony, the audience was addressed by the president and vice president of the Wallace Stevens Society, Lisa Goldfarb and Glen MacLeod, as well as the poets Susan Howe and Deborah Garrison. Howe, who also read three stanzas from "Sunday Morning," was moved by the occasion and testified, "I turn to Stevens these days almost as a form of prayer." A video recording of the ceremony will be made available through the HLPC website. ________ The sixth John N. Serio Award for the Best Article Published in The Wallace Stevens Journal was awarded to Gül Bilge Han for her contribution entitled "The Poetics of Relational Place-Making and Autonomy in Stevens" (Fall 2016). The award was judged by a committee of one former and two current members of the Editorial Board (George S. Lensing, Natalie Gerber, and Juliette Utard). It was officially presented at the 2018 MLA Convention in New York City. Please join us in congratulating the author. ________ The 2017 Wallace Stevens Award of the Academy of American Poets, a $100,000 lifetime achievement award "for outstanding and proven mastery in the art of poetry," went to Jorie Graham. ________ According to Joshua Barone reporting for The New York Times, Matthew Aucoin's opera Crossing, which tells the story of Walt Whitman's time as a volunteer nurse during the Civil War and had its New York premiere at the Brooklyn Academy of Music in September 2017, resorted to two of Stevens's sentences about Whitman for the final chorus: "Nothing is final. . . . No man shall see the end" (CPP 121). [End Page 291] ________ The 55th Annual Wallace Stevens Poetry Program at the University of Connecticut featured Joy Harjo, the author of eight books of poetry and a renowned musician. She read from her own poems on two successive days: on March 28, 2018, at UConn Storrs, and on March 29 at the Greater Hartford Academy of the Arts. This annual event is sponsored by the Hartford Financial Services Group to honor Stevens as a former company executive. ________ The website of the Fulbright Program in Russia reports that the Philological Faculty of Lomonosov Moscow State University hosted a presentation on December 8, 2017, of a Russian translation of Harmonium, which appeared with the publisher Nauka in Moscow as part of a Literary Monuments series in 2017. The presentation included readings of Stevens's poetry in Russian by the...

Did court find law school in violation of Title IX?

When New York Law School student Theresa Bailey encountered fellow student Stephen Nesbit in a school hallway in 2014, he allegedly prevented her from passing by him and slid his body across hers.

'Have You Seen Dignity?': The Story of the Development of Therapeutic Jurisprudence

This paper will be presented at a special event, hosted by the Victoria Legal Aid Society and RMIT University School of Law (Melbourne, Australia), on March 31, 2017. It traces the development of therapeutic jurisprudence (TJ) over the past three decades, and explains its impact on legal education, legal scholarship and legal practice. In it, I explain the initial insights of David Wexler and the late Bruce Winick, consider these insights in the context of the state of mental disability law in the late 1980s and early 1990s (when TJ first emerged), with a focus on their early essay collections and the initial TJ conference that I ran at New York Law School (where I taught for 30 years) in 1993. I then discuss how TJ expanded beyond the relatively-narrow framework of “just mental disability law”, and the significance of that expansion, TJ’s internationalization, and its expansion from law to psychology, criminology, social work, and other disciplines (though interestingly, not, to any significant extent, psychiatry). After this, I consider the impact it has had on traditional trial courts and case law, and the, focus on its significant impact on “problem-solving courts” – mental health courts, drug courts, and others. I then consider my own work from the past few years, and how I approach the full range of substantive topics in my writing from a TJ perspective. Next, I look at what David Wexler has been thinking about lately – about what he calls the “vineyards of the law,” and about his metaphor of “wines and bottles” – and the impact that will likely have on TJ’s future. I then share some ideas about how TJ-focused lawyers need to start thinking more seriously about how TJ should inspire them in dialogues they have with their clients, and conclude by speculating about what must be done in the future to insure that TJ continues to reinforce dignity in all aspects of the entire legal process.

Back to the Future: Twenty-Five Years After the Inspiration for the Future of the In-House Clinic Report, What Have We Learned About In-House Clinics?

This paper was presented at the 25th Anniversary Clinical Schoalrshop Workshop at New York Law School, “Twenty-Five Years of Clinical Scholarship: What Have We Learned, and What Should We Work on Next?” The paper looks at the history of the 25 years after the work of the Future of the In-House Clinic committee of the AALS Section on Clinical Legal Education. It in, the author describes the goals of in-house clinics listed in the report, explores to what extent those goals are being met in 2010, and explore additional goals for in-house clinics in law schools.

CRISPR patent decision bodes well for Broad Institute

The U.S. Patent & Trademark Office (USPTO) released a long-awaited decision in the contentious patent battle over CRISPR/Cas9 gene-editing technology last week. Broad Institute of Harvard University and MIT called the outcome a victory, while the University of California, Berkeley, sent a different message: We’re just getting started. “It is definitely a big win for Broad, but I wouldn’t pin it as a total loss for Berkeley,” says Jacob Sherkow of the New York Law School, who has been tracking the case closely. Berkeley filed its CRISPR patent in 2012, ahead of Broad. But Broad expedited its own patent’s review process for a fee and got it approved first, spurring Berkeley to initiate a legal proceeding called a patent interference to determine if Broad’s patent covered the same invention as Berkeley’s. On Feb. 15, judges at USPTO declared “that there is no interference-in-fact” between the two parties, meaning that Broad’s

Exploring conceptual legal knowledge building in law students’ reflective reports using theoretical constructs from the sociology of education: what, how and why?

ABSTRACTThe substantive content of the undergraduate law curriculum in the UK is currently under scrutiny as a result of forthcoming changes in the entry level requirements of the legal profession. As a result LLB curriculum designers are evaluating what knowledge should be included in the curriculum, how students should access this knowledge, and which pedagogic approaches to adopt. This study will analyse student submissions for an assessment item at York Law School called the reflective report to explore how students are building their conceptual legal knowledge, and what this means for curriculum designers. The data analysis will be informed by the theoretical constructs of three sociologists of education, Michael Young, Basil Bernstein, and Karl Maton, including their respective concepts of social realism, hierarchical and horizontal knowledge structures, and semantic gravity. It develops themes exploring how students can weaken the semantic gravity of knowledge to make meanings that reach beyond the learning context. It draws some conclusions about the implications of the research on future curriculum design and the importance of developing students’ engagement with powerful knowledge in the delivery of legal education in an academic environment.

"Infinity Goes up on Trial": Sanism, Pretextuality, and the Representation of Defendants with Mental Disabilities

<p><em>I begin by sharing a bit about my past. Before I became a professor, I spent 13 years as a lawyer representing persons with mental disabilities, including three years in which my focus was primarily on such individuals charged with crime. In this role, when I was Deputy Public Defender in Mercer County (Trenton) NJ, I represented several hundred individuals at the maximum security hospital for the criminally insane in New Jersey, both in individual cases, and in a class action that implemented the then-recent US Supreme Court case of Jackson v Indiana, that had declared unconstitutional state policy that allowed for the indefinite commitment of pre-trial detainees in maximum security forensic facilities if it were unlikely he would regain his capacity to stand trial in the ‘foreseeable future.’</em></p><p><em>I continued to represent this population for a decade in my later positions as Director of the NJ Division of Mental Health Advocacy and Special Counsel to the NJ Public Advocate. Also, as a Public Defender, I represented at trial many defendants who were incompetent to stand trial, and others who, although competent, pled not guilty by reason of insanity. Finally, during the time that I directed the Federal Litigation Clinic at New York Law School, I filed a brief on behalf of appellant in Ake v Oklahoma, on the right of an indigent defendant to an independent psychiatrist to aid in the presentation of an insanity defence. I have appeared in courts at every level from police court to the US Supreme Court, in the latter ‘second-seating’ Strickland v Washington. I raise all this not to offer a short form of my biography, but to underscore that this article draws on my experiences of years in trial courts and appellate courts as well as from decades of teaching and of writing books and articles about the relationship between mental disability and the criminal trial process. And it was those experiences that have formed my opinions and my thoughts about how society’s views of mental disability have poisoned the criminal justice system, all leading directly to this paper, that will mostly be about what I call ‘sanism’ and what I call ‘pretextuality’. The paper will also consider how these factors drive the behaviour of judges, jurors, prosecutors, witnesses, and defence lawyers, whenever a person with a mental disability is charged with crime, and about a potential remedy that might help eradicate this poison.</em></p><p><em><span style="font-family: Times New Roman;"><span style="font-size: medium;">It is essential that lawyers representing criminal defendants with mental disabilities understand the meanings and contexts of sanism </span><span style="font-size: medium;">and </span><span style="font-size: medium;">pretextuality </span></span><span style="font-family: Times New Roman; font-size: medium;">and to show how these two factors infect all aspects of the criminal process, and offer some thoughts as to how they may be remediated. </span><span style="font-family: Times New Roman; font-size: medium;">I believe – and I have been doing this work for over 40 years – that an understanding of these two factors is absolutely essential to any understanding of how our criminal justice system works in the context of this population, and how it is essential that criminal defence lawyers be in the front lines of those seeking to eradicate the contamination of these poisons from our system.</span></em></p><p><em><span style="font-family: Times New Roman; font-size: medium;"><br /></span></em></p><p><span style="font-family: Times New Roman; font-size: medium;">*Please note this is an invited paper - ie. not peer reviewed*</span><em><span style="font-family: Times New Roman; font-size: medium;"><br /></span></em></p><p> </p>

Medicolegal Sidebar: Blowback: The Unintended Consequences of Medical Liability Reform

The Medicolegal Sidebar column addresses issues that orthopaedic surgeons may face at the intersection of law and medicine. One of the goals of the column is to assist orthopaedic surgeons in making legally sound clinical and business decisions. In doing so, the column focuses on legal issues, avoiding the public debate on whether our current malpractice system favors providers or patients. Accordingly, our column will periodically publish articles by distinguished guest commentators to express their personal opinions on the current status of our malpractice system. The goal of these commentaries is to stimulate discussion among our readers and others who have an interest in malpractice litigation. Our first distinguished commentator is attorney Christopher Stombaugh. Mr. Stombaugh is an accomplished trial attorney, a faculty member of The Gerry Spence Trial Lawyers College and Past President of The Wisconsin Association of Justice. —B. Sonny Bal MD, JD, MBA, Lawrence H. Brenner JD While physicians and trial lawyers in the medical liability system may speak the same language, they really misunderstand each other. Physicians and lawyers, like the United States and Great Britain, are ‘‘[t]wo nations divided by a common language’’ [5]. A clear example of this disconnect is when we discuss medical negligence claims and medical liability reform. The common impression among many physicians is that a claim for medical negligence is, in essence, a claim that a physician is a ‘‘bad doctor.’’ Worse yet, verdicts against physicians can result in those physicians being reported to the national databank, and even unsuccessful claims have to be reported to future hospitals when one seeks employment. Litigation, therefore, can adversely affect a physician’s reputation and livelihood. Trial lawyers in the medical liability system, however, would submit that the issue should not be the fear of litigation, rather the fear of carelessly injuring patients. The latest statistics (August 2015) from the New York Law School’s Center for Justice and Democracy reveals that medical negligence cases made up Note from the Editor-in-Chief: We are pleased to publish the next installment of ‘‘Medicolegal Sidebar’’ in Clinical Orthopaedics and Related Research. The goal of this quarterly column is to encourage thoughtful debate about how the law and medicine interact, and how this interaction affects the practice of orthopaedic surgery. We welcome reader feedback on all of our columns and articles; please send your comments to eic@clinorthop.org. The author certifies that he, or any member of his immediate family, has no funding or commercial associations (eg, consultancies, stock ownership, equity interest, patent/ licensing arrangements, etc) that might pose a conflict of interest in connection with the submitted article. All ICMJE Conflict of Interest Forms for authors and Clinical Orthopaedics and Related Research editors and board members are on file with the publication and can be viewed on request. The opinions expressed are those of the writers and do not reflect the opinion or policy of CORR or The Association of Bone and Joint Surgeons. C. D. Stombaugh JD (&) Stombaugh, Smith & Co., 600 Washington Ave., Towson, MD 21204, USA e-mail: chris@stombaughsmith.com Medicolegal Sidebar Published online: 28 October 2015 The Association of Bone and Joint Surgeons1 2015