The oldest of six siblings, Carlson grew up on a second-generation farm in southeastern North Dakota. Her family was involved in many community organizations, especially North Dakota Farmers Union. She majored in political science and in Honors (a liberal arts program) at the University of North Dakota. After graduation, she worked for Sen. Byron Dorgan in Washington, D.C., on agricultural policy; on Sen. Kent Conrad’s re-election campaign in North Dakota; and for National Farmers Union as a lobbyist back in Washington.

Law School, a Logical Next Step

Pursuing a law degree was a logical next step for Carlson. Working for senators and as a lobbyist, she had become intrigued by the legislative process. “I was interested in how bills become laws, and thought law school would help me understand that process more fully,” she said.

As Carlson was completing her law school applications, she wrote what she considered to be a “pretty standard essay.” But for St. Thomas, her essay became much more personal. She said she wrote about her relationship with her grandmother. “It just seemed appropriate for St. Thomas.”

It certainly was. Carlson received a phone call from Assistant Dean of Admissions Cari Haaland, who said she remembered reading the essay because it embodied the school’s mission so well. “I didn’t know about the mission as much then, but I felt drawn to it,” Carlson said.

She also liked the idea that the School of Law was both new and connected to an established university. “I was excited about being involved in something from the start – something that had big goals,” she said.

Carlson said she loved her time at St. Thomas, with its respectful conversations about a variety of issues. Many people contributed to her positive law school experience. Among them were Lisa Brabbit (“the best mentor you could find”), Neil Hamilton (“so thoughtful about developing himself and students into servant leaders”), former dean Tom Mengler (“a compassionate person who truly wanted to see all stakeholders get what they needed”) and Tom Berg (“he fosters such a great open dialogue; he is such a good teacher”).

While she always appreciated her experience at the School of Law, she said she didn’t realize how unusual it was until she was in practice. “I would be talking to colleagues and would say, ‘Remember when in law school you talked about the kind of lawyer you wanted to be and what kind of law community it should be?’ And they’d say that they didn’t have those kinds of conversations in law school.”

Her Professional Journey

Carlson’s professional journey has taken a few twists and turns. Following graduation, she clerked for a year for District Court Judge Steven Cahill in Moorhead, Minn. After working in-house at Blue Cross Blue Shield of North Dakota, Carlson went back to her rural roots to work at Minnkota Power Cooperative. In April 2012 she became general counsel and director of government relations for the North Dakota Farmers Union, a 40,000-member advocacy organization for family farmers.

Her work is far-ranging. Carlson provides legal counsel to the organization itself, ranging from contract review to employment issues. She also offers legal counsel to the Farmers Union Mutual Insurance Co., which is owned by the members of the Farmers Union.

Much of Carlson’s work is focused on government relations. “It is an advocacy organization, after all,” she said. After the members determine the organization’s policies, she and other staff members advocate for those policies on both the state and national levels. These policies cover anything and everything connected to a rural way of life – infrastructure issues such as roads and energy development, family issues, including health care and day care, how to feed a growing world via the system of family farming, and much more. Carlson is involved in the entire process, from policy development to day-to-day advocacy to legislative and regulatory responses.

It’s a big job, but for Carlson, it feels like coming home. “I always thought I would end up working on rural issues,” she said. “I grew up on a farm and in this organization. It’s great to work for an organization you really believe in, one in which everyone else – from staff to members – believes in its mission as well. Nobody is just doing a job. Caring for the members drives their work every day. It feels good to know we’re doing really important work.”

All this good work leads to one inevitable challenge: time. “It’s tough to find enough hours in the day to do everything that’s on my plate,” Carlson said. Part of that challenge is professional. She tries to carve out time daily to work on both legal and advocacy issues. Part is personal, trying to balance her professional responsibilities with her family life.

Carlson and her husband, Ryan, who also is an attorney, have three sons: Quinn, 6, Will, 4, and Tommy, 2. “Evenings with our kids is sacred time. My family is my priority,” she said, noting that she often works after the children have gone to bed.

The School of Law prepared Carlson for that work. “First and foremost, it made me think about what is important in both a career and a workplace,” she said.

After her year as a judicial clerk, she went through the motions of applying and interviewing at many law firms. “Through that process, I realized that those jobs weren’t the ones I really wanted,” she said. “In school, I was really thoughtful about where I wanted to work. I stepped back and thought about it more, and went a different direction.”

Each step along the way brought new clarity for her on what is really important. At Blue Cross Blue Shield, Carlson learned a lot about how to serve clients with excellence, she said. Both Minnkota and the Farmers Union have a strong element of servant leadership, stewardship and ties to members.

“These are the kind of important things that we focused on in the culture at St. Thomas,” she said.

Read more from St. Thomas Lawyer.

My first job was stocking shelves at a Walgreens in suburban Chicago. As a 16-year-old, I was in it for the money, pure and simple. I did what I was told, but nothing more, keeping one eye on the clock and counting down the minutes until my shift ended. Not surprisingly, I was awful at my job. I remember the manager watching me for a while, shaking his head and asking, “Is it physically possible for you to move any more slowly?” I lasted for about three months.

Years later I realized why I failed: I was only in it for me. Any notion that I should perform more than the minimum required or devote myself to the customer’s well-being never crossed my mind. As long as I kept the shelves full and responded to the manager’s direct instructions, I was doing my job. Or so I thought.

Anyone who has had a successful career knows that my teenage self-absorption was not simply a moral shortcoming; it rendered me professionally ineffective. By not embracing the core service values that must animate even the stock boy’s role, I had set myself up for failure. Keeping track of the storage room got me nowhere unless I also kept track of the customer-service ethos that was at the heart of the enterprise.

When we talk about professional formation at St. Thomas, this is what we mean. Effective lawyers, even more than stock boys, must grow to internalize a robust set of professional values, not simply acquire a set of technical skills. At bottom, these values require placing service to others over self.

We must be vigilant not to let “professional formation” become a catch phrase on a brochure, rather than a defining element of what we do every day, both inside and outside the classroom. These are challenging times for legal education, but we are well-positioned to navigate a rapidly changing landscape because our mission commits us to educate the whole person. As a result, our graduates emerge with the knowledge and skills they need to succeed, but they also emerge with a sense of how their own moral compasses shape their professional identities, along with a commitment to keep developing the values and attitudes that are at the heart of the lawyer’s role and essential to thriving in a highly competitive marketplace.

By developing a strong service ethic and the relationship skills that go with it, law students aren’t just doing the right thing; they’re doing the smart thing. As Indiana University’s William Henderson – one of the nation’s leading authorities on the legal profession – remarked recently, “Sure, lawyers need to be smart,” but in a very competitive legal market, they “also need to be personable, collaborative, entrepreneurial, service oriented and interested in contributing to the collective welfare of the law firm.”

St. Thomas law Professor Neil Hamilton’s research shows that legal employers and clients want their attorneys to have strong relationship skills, with terms such as “responsiveness and commitment to the client,” “teamwork,” “working with others,” “mentoring” and “networking” cropping up repeatedly.

St. Thomas has always been ahead of the curve in this regard. A commitment to take relationships seriously – and to educate students in a way that equips them to take relationships seriously – has been central to our school’s success since we opened our doors 11 years ago. That may help explain why we have so frequently been at or near the top of The Princeton Review’s rankings for student quality of life. The commitment is not an add-on to our mission; it is at the core of our mission.

As a Catholic law school, we believe in the social nature and inherent dignity of the human person – a belief we share with all major religious traditions – and we have built the law school community accordingly. We want our students to work well with others, not just because doing so will advance their employment prospects, but because doing so reflects our more fundamental commitment to honor human dignity.

Whether it’s through our award-winning mentor externship, the Foundations of Justice course, our expanding array of experiential learning opportunities, our groundbreaking course offerings on ethical leadership, a faculty of world-class scholars who help students pursue legal reform that improves lives, or our rich sense of community and commitment to public service, St. Thomas continues to pioneer new paths of professional formation. The results thus far have been remarkable, but I’m confident that the best is yet to come. I welcome your support as we move forward into our second decade of keeping the whole person at the center of legal education.

Read more from St. Thomas Lawyer.

Dr. Susan Huber, executive vice president and chief academic officer of the university, said he was selected from among a strong group of finalist candidates.

Vischer is one of the nation’s leading scholars in relating lawyers’ moral formation, including faith-based formation, to their professional development and excellence – a central part of the school’s Catholic mission. Huber said Vischer’s experience on the St. Thomas faculty (since 2005) and as associate dean (since 2011) prepare him well to serve as the school’s third dean since it opened in 2001.

Among his scholarly publications are numerous articles and two Cambridge University Press books – Martin Luther King Jr. and the Morality of Legal Practice: Lessons in Love and Justice, scheduled for release next month, and Conscience and the Common Good: Reclaiming the Space Between Person and State (2010). Vischer’s honors at the School of Law include Professor of the Year (elected by students) in 2008 and 2011, and Dean’s awards for Outstanding Scholarship in 2009 and Outstanding Teacher in 2007. At St. John’s University School of Law in New York, where he taught before coming to UST, he was named Professor of the Year in 2005 and received the Dean’s Award for Excellence in Teaching in 2003.

“I am confident that Rob will lead the school to a new educational destination during this critical period of time for legal education,” Huber said. “His belief in keeping the mission of the school authentic and vibrant balances well with his concern for openly addressing the challenges facing all law schools today.”

Those challenges include a soft hiring market for new attorneys and a decrease in applications to law schools, but Vischer believes St. Thomas is well positioned to deal with critical issues.

“We have built an innovative program of legal education on our distinctive mission, which is a big draw for students,” he said. “We take professional formation seriously, equipping our graduates to excel in teamwork and building relationships, and impressing upon them the importance of developing a foundational moral commitment to serve others.” These attributes, he added, are important to employers and clients.

Vischer noted that several items have recently highlighted success at the School of Law. St. Thomas law faculty ranked 30th among the nation’s approximately 200 law schools in the 2012 Scholarly Impact Study, and second in the Roger Williams study of scholarly productivity. In the Law School Survey on Student Engagement, St. Thomas students reported above-average satisfaction, compared with law students overall, on a host of factors including development of legal knowledge and lawyering skills; academic, job/career and personal support; and others. They reported especially high comparative satisfaction on developing professional ethics and values, developing self-understanding and contributing to the welfare of the community. The School of Law recently ranked in the Princeton Review’s list of the top 10 schools with “Best Professors” (2012 ed.) and best “Quality of Life” (2013 ed.), the latter a ranking that St. Thomas has appeared in six of the last seven years. The school also ranks first in number of externships according to the National Jurist.

Vischer served as an assistant professor at St. John’s School of Law from 2002 to 2005 before joining St. Thomas as an associate professor. He was promoted to professor in 2010.

“The mission drew me here,” he said. “It’s a powerful mission, encouraging us to focus on the integration of faith and reason in ways that improve the legal system and produce more effective lawyers. I have been passionate about that since I started teaching, and I was thrilled to have the opportunity to be part of a place where that is hard-wired into the institutional DNA.”

Vischer grew up near Chicago. He received a bachelor of arts degree in political science from the University of New Orleans in 1993 and a juris doctor degree in 1996 from Harvard Law School, where he was an editor of the Harvard Law Review. After graduation from law school, he served as a clerk for three federal judges and as a corporate litigation associate at Kirkland & Ellis in Chicago.

He and his wife, Maureen, live in Minneapolis with their daughters, Sophia, Lila and Ava.

He is currently a senior fellow in the Terrence J. Murphy Institute for Catholic Thought, Law, and Public Policy at St. Thomas and a contributor to Mirror of Justice, the leading blog devoted to Catholic perspectives on law. He also has been a regular contributor to Commonweal magazine and served three years on the Policy Implementation Committee for the American Bar Association’s Center for Professional Responsibility.

Vischer succeeded Neil Hamilton, who served as interim dean since June, when dean Thomas Mengler left to become president of St. Mary’s University in San Antonio, Texas.

Huber thanked members of the dean’s search committee, co-chaired by Thomas Berg of the School of Law and Dr. Susan Alexander, executive adviser to Father Dennis Dease, president of the University of St. Thomas.

Read more from St. Thomas Lawyer.

Concerns about employment were not quite as common when the University of St. Thomas School of Law opened its doors in 2001. According to the National Association for Legal Placement (NALP), 2001 was the first year the profession reported declining employment rates for new law graduates since 1993. In the decade that followed, law firms saw continued erosion in their profits, culminating in 2008 when Lehman Brothers crumbled, the national economy collapsed, and layoffs spilled experienced lawyers back into the market.

Despite the layoffs and reduced hiring at major law firms, most pundits viewed the times as a transition period. Now in 2013, however, it is clear that permanent changes have occurred in the legal landscape. Employers are hiring fewer lawyers at lower starting-salaries. These changes, coupled with the increasing cost of legal education, complicate the value equation for a law degree. Law schools nationwide must rethink how they prepare their students for success while ensuring that those same students consider law school to have been a worthwhile investment.

The University of St. Thomas School of Law has chosen an innovative, comprehensive approach, inspired by its unique mission and grounded in the total student experience, including upgrades to the curriculum. The School of Law has focused its response to the new legal marketplace on the three key components of long-term professional success: professional formation, skill competency and excellence in relationship skills. Cutting-edge research at the School of Law unveils that these three components lead to professional success. By training students for long-term career success, the School of Law serves students in a deeper, more meaningful way and helps them be more attractive to employers as they search for their first jobs after law school.

Professional Formation

Rob Vischer, newly appointed dean of the School of Law, points out that students are supported in their career development in many ways during law school, but what happens in the classroom continues to be the most central piece. “Students have to be both technically competent and they have to learn how to think like a legal professional. I believe we do an excellent job of preparing them in both of those ways.”

Support provided to students does not stop at mere technical competency, however. Professional formation continues to be a central focus for the School of Law and an area in which Neil Hamilton has focused his efforts for more than a decade. Most recently, he and Holloran Center for Ethical Leadership Fellow Verna Monson have been working on research projects that compare the skills and attributes that legal employers tell the school they are seeking with specific, measurable outcomes that students are experiencing in their own professional formation.

“One of our major goals as a community is to help each student’s professional formation to internalize a deep responsibility for others and for self,” Hamilton observed. “A student who is internalizing a deep sense of responsibility for others and for self is going to have higher probabilities of securing employment.”

There is empirical evidence that the School of Law’s approach is working. As Professor Jerry Organ and Fellow Verna Monson analyzed the data from the Law School Survey on Student Engagement (LSSSE), which students took last spring, they saw that the overall experience at the School of Law is getting strong reviews from the students themselves. The LSSSE is an 89-question annual survey that seeks to reframe the discussion surrounding the quality of law schools. According to Organ, the data from the student survey indicates students are more than satisfied with the quality of academic, personal, social and career support available at the School of Law. Furthermore, students indicated a greater degree of self-understanding and a stronger professional ethical identity than their peers at other law schools. Students also demonstrated a stronger commitment to community service than peers at other schools.

Kendra Brodin, director of Career and Professional Development, hears about the outcomes of the professional formation coursework when she talks with employers and students. “Our students are uniquely prepared because of the work they are doing on professional formation,” she said. Brodin credits the faith and social justice aspects of the mission that encourage students to use their law school experience to engage in challenging, sensitive conversations and to tackle tough issues in professional ways: “The fact that these discussions are modeled in the classroom and then encouraged outside gives our students a great maturity when they go into a job and have to provide tough advice to a client or discuss conflicting ideas with a peer.”

Over the past two years, the Office of Career and Professional Development (CPD) has built upon the formation work being done throughout the School of Law. Beginning with new student orientation, and then continuing throughout the school year, Hamilton and other faculty have been reinforcing the need to begin planning professional development, and employment contacts, right from the start of law school. First-year students undergo mandatory CPD training in which they are introduced to a roadmap from the beginning of law school to the beginning of their careers.

The plan is customizable to reflect the students’ wide variety of professional aspirations. A key focus of the plan is helping students understand how the professional formation they experience during law school ties to the skills and attributes employers are seeking from their new hires, and ultimately clients are seeking from their attorneys. CPD offers a series of ongoing programs that help students connect their formative law school experience to their future professional success.

The Mentor Externship Program also plays a role in professional formation and contributes to and supports an individualized, differentiated employment story for each student. Not only does each student work with a mentor in the law field, each student also is assigned to a faculty mentor. The faculty mentor evaluates the professional development plan in concert with the identified experiences and skill development activities that the student and mentor participate in together. The faculty mentors contribute to the conversation, sharing insights, suggestions and contact tips on how to bridge to meaningful employment. The 20 faculty mentors who participate in the program are diverse in their backgrounds, work activities and experiences. Faculty mentors are quick to share individual networks to help advance the professional goals of the student and to broaden the scope of contacts and understanding of the hiring patterns in the profession. The new focus on an individualized approach helps each student attain personal and professional satisfaction by developing the qualities of excellence, social responsibility and ethical integrity.

The newly revised Mentor Externship curriculum allows students to strengthen technical skills through a field-placement and develop the habits necessary for professional growth through individual reflection, personal dialogue with faculty and other mentors, moral development and vocational discernment.

Additionally, Brodin and Assistant Dean for Student Affairs Dave Bateson have spent a significant amount of time in the last two years meeting with a wide range of employers, including the state’s largest law firms, small firms, government employers, nonprofits, judges and corporations. During those meetings, Brodin and Bateson have had the opportunity to learn what each employer is seeking in its new attorneys while also sharing with employers the unique aspects of the School of Law curriculum. For Brodin, these meetings generate optimism about the future of the School of Law: “As employers hear about how we are approaching legal education, the classes we have, our Mentor Externship, our overall approach to producing well-rounded and solidly grounded graduates, they are excited. What we are doing here seems to match up so well with what employers are seeking. While we will continue to improve as a school, the feedback indicates that we are very much on the right track.”

Skill Competency

Great lawyers not only have strong professional formation, but they also bring a diverse portfolio of competencies to the table. Employers who used to help their new employees sharpen their technical skills now look for new hires already proficient in certain skills.

Brodin noted that firms are focused on finding “practice-ready” lawyers, and their hiring practices reflect that. “We are seeing more lateral hires or firms looking at associates with more professional experience,” she said. This change has increased the pressure on new graduates to hone their technical skills in law school. The positive side of this pressure has been that although it may have taken longer for a new attorney to get the job they wanted right out of law school, they are finding new and greater opportunities after three to five years of practice.

Because of the philosophies on which the School of Law was founded, Dean Vischer feels confident that St. Thomas is focused on the skills that will help students both get jobs and become valuable members of the legal community.

“For some time there has been a call for a greater connection between the classroom and the practice. This isn’t only happening in law; it really is affecting all of higher education,” Vischer explained. He further suggested that this nexus between the law school experience and the professional experience always has been important, but law schools that thrive in the future will be those that can demonstrate they have done the best job of preparing their students and alumni for the “real world” of legal practice and employment. The School of Law has been strengthening and growing opportunities for this kind of preparation since its inception. In some areas, the School of Law is already a national leader, and students, alumni and employers are noticing.

Particularly in the past three years as the job market has tightened, many schools have adopted a new focus on practical skills-based courses and clinical education, which are areas on which the School of Law has focused since it opened its doors.

“Just the other day I was on the phone with a faculty member at a school on the West Coast who wants to figure out how to build what we have,” Director of Clinical Education Virgil Wiebe commented. He explained that the Interprofessional Center (which includes students not only in law but also in psychology and social work) is a model of cross-disciplinary education that many law schools would like to follow.

The Interprofessional Center recently moved into a new facility remodeled to meet its particular needs and to accommodate a growing list of clinics, clients and students. In the past two years, clinical education offerings have expanded to include the Appellate Clinic, Bankruptcy Litigation Clinic, Consumer Bankruptcy Clinic, Federal Commutations Clinic, Nonprofit Organizations Clinic and Misdemeanor Clinic. These were added to the existing clinics, which include the Community Justice Project, Elder Law Clinic and Immigration Law Clinic.

In addition to its strong clinical program, every student benefits from an exceptional Lawyering Skills program.

“The goal of our lawyering skills program is to make students practice ready,” noted Associate Professor Julie Oseid. “Even before these tough economic times we knew that new lawyers are commonly judged by their writing, analytical and research skills. Our class combines all these critical skills to contribute to a practice-ready lawyer.”

Lawyering Skills faculty emphasize to students that they must add value through their work as a lawyer. Their writing must be clear and concise. They also emphasize the value of creativity, innovation and resilience as expressed through writing and in solid research. Oseid said, “We also take time to explain what real practice is like. All of us have substantial experience in practice. Even though some things may seem obvious, we make a point of giving students a very specific list of habits and traits that should be
developed to increase their chances of both finding and keeping a job.”

Relational Skills

“Relationships have always been central to the mission at the School of Law, and those relationships and the relationship-building skills our students continue to develop during law school are the key,” Vischer said. A concrete example, he said, can be found in the Mentor Externship Program, which is still the only program in the country providing one-to-one mentoring for every student every year of law school. This claim is supported by National Jurist magazine, which twice named the school the national leader in externship placements.

Lisa Montpetit Brabbit, senior assistant dean of External Relations, has been with the Mentor Externship Program for more than a decade. She explained, “The Mentor Program challenges each student to build his or her emotional intelligence (EQ) just as they build the more traditional intellectual skills in the classroom.

The delivery of legal services, the stewardship of intellectual skills, and the ability to maximize passion for a vocation in law are all tied to the ability to grow and engage professional relationships.”

Brodin agrees that relational skills are a key for employers: “The market is tight, and soft skills are critically important. As they hire, employers are thinking ‘How will this person fit into our team? How will they interact with and serve our clients at the highest possible level?’ If an applicant can demonstrate both intellectual and interpersonal skills, they are much more likely to be hired.”

Those same relationship skills are also a strong focus for CPD as it works with students to find employment. Just as lawyers need to network to build their professional reputations and to generate sources of work, law students need to build a network of connections before graduation.

“We strongly encourage our students to understand how important it is to build authentic relationships with the practicing bar even while they are in law school,” Bateson noted. “We are all part of a larger profession and a larger community. The relationships we build are the lifeblood that nourishes great lawyers throughout their careers.”

CPD has added training that not only teaches why networking is important but also gives students practical skills to make and build relationships.

Brodin noted, “Most students understand the importance of networking at this point. Some people just need a little help on how to get started, how to make the first outreach, or how to make a great first impression. Our students are amazing, interesting people, and our goal is to give them the networking skills to let that talent shine while building a genuine relationship with other amazing, interesting and talented people in the legal community.”

Successful Improvements

More than just hopeful theories, the improvements at the University of St. Thomas School of Law are making a difference. The positive impacts on professional formation seen in Hamilton and Monson’s research and the LSSSE data on student experience are backed up by external evidence, such as the School of Law appearing again in Princeton Review’s top 10 law schools for the “Best Quality of Life.” It is a ranking the school has achieved six of the past seven years. Sixty percent of UST Law students chose to participate in the LSSSE, which is well above the national average student participation rate of 44 percent. Jerry Organ and Verna Monson recently finished compiling UST’s data, noting that more than 40 percent of the survey questions garnered statistically significant positive results. “The University of St. Thomas has very encouraging results,” Organ said.

Bateson points out that students’ satisfaction with the law school is also tied in part to the one-to-one relationships that students build with each other, faculty and staff. Successfully helping students transition to employment flows from that same focus on relationships. CPD, faculty, staff and even other students all collaborate to help students as they move along the path to the job they seek. The focus remains on helping students discern what they personally want from their legal degree, while ensuring that the law school experience ultimately has a positive impact on their careers and their lives.

“As each student sits down with CPD, or any other mentor in the building, we are focused on finding out what that student wants in their career and helping them create their personal plan to get there. Students enter law school with a wide range of career aspirations. Many want to practice law, and we should ensure that those students are well prepared and able to find meaningful employment in the profession. At the same time, we also need to encourage and support those students who wish to use their J.D. in other ways. We support students whose goal is to start and lead a nonprofit. We support students who want to work as corporate executives and see a J.D. as a way to advance on that path. All of our students have their own unique aspirations. The best measure of our success is whether we helped them move closer to their professional goals.”

Bateson encourages students to take a “long view” not only of their careers but also the profession: “Very few people spend their whole career in one job. It is certainly a difficult time for new lawyers. Many of them end up in first jobs that may not be a perfect fit. One job is not, however, the final determination of your career. Each job is a step. If you are excellent in that job and thoughtfully assess the transferable skills you can learn, then that position is still another step closer to where you want to end up.”

Together, law students, alumni and the law school itself can and will navigate this challenging time in the legal profession and emerge stronger, better positioned, and true to their core identities and missions.

Erika Toftness Kelly ’07
Houk Kantke Toftness Kelly, P.L.L.C.

The true gift that UST Law gave me was not immediately apparent to me as a student. Following law school, I went to work for a large law firm that emphasized collaboration in the practice of law. I felt well-prepared to practice in a collaborative environment, because I felt that St. Thomas really fostered a noncompetitive and collegial environment.

Ultimately I found that I also needed fulfillment from the clients I served and their aims so I left “big law,” to start my own elder law and estate-planning practice. Very shortly thereafter, my UST trial advocacy partner, John Kantke, approached me about being his law partner. It was an immediate no-brainer. He had all of the qualities in law school that now make him a great lawyer. We collaborate daily, and pursue excellence together, while mostly serving an elderly population. We are having an exceptional time doing so.

John A. Kantke ’07
Houk Kantke Toftness Kelly, P.L.L.C.

St. Thomas emphasized to us as students that we are practicing law within a community of lawyers. That sounds like a simple concept, but I don’t think I realized how true it was until after practicing law for a few years. Lawyers work with other lawyers, work against other lawyers, cooperate, network, socialize and volunteer with other lawyers. Not surprisingly, one of the favorite topics of discussion among lawyers is other lawyers.

Starting out as a new lawyer you have the unique opportunity to begin defining yourself in the legal community. Choosing a specific practice area, being involved in the bar association, joining informal study groups, or volunteering with other lawyers are simple ways to meet other lawyers and begin defining yourself. The longer you practice law the more people you will meet and the more impressions (both good and bad) you will make. None of us are able to practice law in a vacuum.

Looking back, I appreciate the deliberate work done by St. Thomas to start connecting us as students with practicing attorneys and pushing us toward involvement in the legal community.

Chris Wheaton ’08
Barry, Slade, Wheaton & Helwig, L.L.C.

My professional formation at the School of Law was filled with opportunities for developing the soft skills of the legal profession. Through the Office of Career and Professional Development (CDP) I learned that, as a student, it was my responsibility to take charge of my career. CPD was there to help with resources, résumé workshops, etc., but engaging in my own career ownership was going to be paramount to becoming employed post-graduation. It was that personal responsibility and career ownership upon which I relied when forging relationships with other attorneys through the Mentor Externship program. Learning skills such as relationship development, expectation management, professionalism and civility in an adversarial practice through the Mentor Externship classes became the templates for interaction with my mentors as well as their colleagues and judges in the legal field. These skills are still at the cornerstone of my practice.

And finally, our student government programming supplemented both the CPD and Mentor Externship pieces through professionalism events where you would learn professional dress, and meal and conversation etiquette in casual, semicasual and professional situations.

Elizabeth Drotning Hartwell ’06
Geer Wissel & Levy, P.A.

My time at UST Law prepared me for the practice of law in countless ways. Beyond honing skills in analysis, research and writing, my clinic experience and other classes such as Client Interviewing and Counseling taught me how to view issues holistically. I practice primarily family law; my clients don’t have solely legal problems, but usually come with financial and emotional issues as well. UST’s emphasis on seeing the dignity in all people has been enormously helpful to me, especially with clients with significant mental health or substance-abuse issues. I try to remember that everyone is a child of God, and that my words have the power to help or heal. It’s vital to represent clients zealously, but I also remind myself not to do any harm. There is no point in kicking an opposing party when they’re down, and I think my reputation for being compassionate helps me win points with judges and settle cases more efficiently.

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The industry’s opposition to regulatory oversight can be traced back to several factors. Since the inception of the hedge-fund industry, hedge-fund managers considered regulatory oversight an infringement on their ability to generate absolute returns. Hedge-funds evolved in a regulatory environment that allowed them through so-called safe harbors to stay exempt from regulatory oversight. Hedge-funds’ ability to operate without regulatory oversight facilitated successful hedge-fund launches, generated higher returns and attracted investors.

The Dodd-Frank Act appears to be the last chapter in the debate on hedge-fund adviser registration and disclosure. Title IV of the Dodd-Frank Act authorized the SEC to register hedge-fund managers and demand enhanced disclosure. The SEC now requires the disclosure of financing information, risk metrics, strategies and products used by hedge-fund managers, performance and changes in performance, positions held by the investment adviser, percentage counterparties and credit exposure, assets traded using algorithms, and the percentage of equity and debt, among others.

The new rules are controversial and precipitated vehement industry complaints. Industry representatives allege the Dodd-Frank rules result in lower profits and undermine managers’ competitiveness. Given its limited resources, it is unclear how the SEC will evaluate the new information it collects.1 Industry representatives also voiced concern about the confidentiality of disclosure and the impact on the industry if information should be leaked to the market or to hedge-funds’ competitors. There is also a concern that the new Dodd-Frank Act requirements could push new market entrants out of the market because of higher startup costs.

Despite these concerns and industry grumbling, the hedge-fund industry is taking the new regulatory environment under the Dodd-Frank Act in stride.2 Hedge-fund investors’ rate of return was not affected by the registration and disclosure requirements. The new regulatory regime has not affected the asset size of hedge-funds. Hedge-fund managers are not planning changes in their portfolio structure or operations, nor are they planning any other strategic responses. Fund managers are also not changing the size of the assets they hold to avoid the application of Dodd-Frank Act regulations.

Although compliance with Dodd-Frank Act requirements has increased costs for the hedge-fund industry, the industry is adjusting well to the new cost structure. Costs have increased because of outsourced compliance work, hiring of additional counsel, new record-keeping policies, the hiring of additional staff, as well as new investor communications and marketing materials. For most hedge-fund managers the cost of compliance ranges from $50,000 to $200,000, and most hedge-fund managers have spent less than 500 hours per year to comply with the new registration and reporting requirements. These additional costs seem manageable for most hedge-funds. It is too early to tell if additional burdens stemming from the Dodd-Frank Act will slow down hedge-fund activity and reduce investor returns.

So far, the hedge-fund industry has no reason to fear the Dodd-Frank Act; however, there is one caveat: the SEC and the newly founded Financial Stability Oversight Council (FSOC) have the authority to further increase the regulatory oversight to address systemic concerns posed by the private fund industry. Unless both regulators substantially increase the regulatory oversight, the hedge-fund industry should be well-prepared to adjust to the new regulatory environment under the Dodd-Frank Act.

About the Author: Wulf Kaal is an associate professor at the University of St. Thomas School of Law. Before entering the academy, he graduated with a Ph.D., J.D., M.B.A. and LL.M. and worked for Cravath, Swaine & Moore, L.L.P., in New York City and Goldman Sachs in London. Kaal specializes in hedge-fund regulation, international finance, European law and corporate law securities regulation. He has published in leading European law and finance journals and leading American law reviews.

NOTES

1 Wulf A. Kaal, Hedge-fund Regulation via Basel III, 44 Vand. J. Transnat’l L. 389 (2011).
2 Wulf A. Kaal, Hedge-fund Manager Registration under the Dodd-Frank Act – An Empirical Study, 50 San Diego L. Rev. (2013) (forthcoming).

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When the presidential election was in full swing and political tempers were flaring, a new student organization at the University of St. Thomas School of Law was formed to resist the partisanship and vitriol. The Public Discourse group focuses on quite the opposite: open, nonpartisan debate about how public policy issues intersect with law.

“Public Discourse was created to give people from a variety of political and philosophical perspectives an opportunity to dialogue,” said David Best, 2L, president of the organization. The idea for Public Discourse began when several first-year students formed a study group. “[W]e often digressed into policy discussions, but we also managed to usually keep it civil,” Best remembered. Several group members wanted even more discussion; hence, the Public Discourse group was born.

“One of the things that makes us unique is that, while all the members of the group have political preferences, the group itself is committed to being nonpartisan,” Best said. Although most public policy discussions inevitably involve politics, the group does not advocate a certain stance on issues. Its sole purpose is to talk.

“Society in general is too singular and partisan in its fact finding. When we can’t even agree on the facts, it hinders the quality of the discussion, and in the political context, the quality of resulting legislation and public policy,” Best said.

He believes the group’s mission – to provide a healthy discussion forum – will blend well with the overall environment at UST Law. “I have been impressed with the bipartisan nature of the school’s atmosphere. Certain individuals certainly have opinions, but by and large it has been positive,” Best said.

But while the UST environment welcomes discussion, Best sees an opportunity to strengthen the quality of dialogue on campus. “There are a good variety of guest speakers on all imaginable topics. But there is often little time for questions during or following the events,” he explained. Therefore, the Public Discourse group will sponsor several events throughout the year that facilitate conversations between speakers and audiences and allow ample question time. In theory, active discussion and debate should curb purely partisan presentations.

The group’s first event on Oct. 30 focused on how to effectively conduct public discourse. It featured UST Law professors Mark Osler and Teresa Collett, two colleagues who have publicly advocated different sides of the marriage amendment. Nonetheless, they often seek each other’s opinion and exemplify the art of “doing public discourse well.”

Last fall was incredibly busy for Osler and Collett. Both taught classes as well as lent their time as independent advocates for some of the most talked-about public policy issues of the day – all at the height of the 2012 election cycle.

Osler traveled to California to bring his well-known “Trial of Jesus” seminar to two universities while the state’s residents prepared to vote on a ballot provision that would repeal California’s death-penalty law. The seminar, which Osler has performed at various universities around the country over the last several years, takes a closer look at whether Biblical principles on the sanctity of human life comport with federal and state capital punishment laws.

Collett worked throughout the summer and fall, speaking to several churches and organizations across Minnesota to advocate for passage of the state constitutional marriage amendment. A well-known expert on the subject of marriage law, Collett has penned several opinion articles on the issue for various local and national publications.

Osler joined in the public conversation about the marriage amendment, although he had decidedly come down on the other side of the debate. One year ago, the pair wrote corresponding opinion pieces on the marriage amendment, which were published in the Minneapolis Star Tribune. From that point on they have discussed the topic with each other quite regularly.

Maybe it is pure coincidence that Collett and Osler, whose offices are next door to one another, each spent considerable time teaching at law schools in southern Texas before they landed at UST Law. And maybe it is also coincidence that both are well-regarded advocates for some of the highly publicized social and public policy issues of our day. But they agree it is no coincidence that their working relationship has established a mutual sense of respect for each other’s opinions – although sometimes diverging – on a range of hot-button issues, including the marriage amendment. Both believe they are better informed individuals for engaging each other in such conversations, even amid an ever-increasing sense of political polarization among the electorate during one of the more contentious election cycles in recent memory.

“It’s been great to discuss all of these issues with Teresa because even though we may agree on one issue and disagree on another, we can have the same principled, respectful discussion throughout,” Osler said.

Collett echoed those sentiments. “Even the conversations we have over coffee or in the hallway on these issues are valuable conversations,” Collett said. “Because when I talk with Mark about such issues as the death penalty or marriage, I know I am encountering a person who is very smart, but who has also dedicated a lot of his intellectual time to thinking about the proper application and principles of justice in that context.

“We may agree on some things and disagree on others, but I think we both share that same common principle – that there are systems of communal governance and structure that are more suitable to the human person and that will create more genuine happiness – what the philosophers call ‘flourishing.’”

Although they may not always agree on how precisely to apply such principles in the context of particular laws and public policy issues, their continued dialogue provides a solid example of the atmosphere a Catholic law school such as St. Thomas strives for, said Robert Vischer, School of Law dean. “Professors Collett and Osler are both passionate, effective advocates who are wonderful models of how to disagree without being disagreeable,” Vischer said. “Inside and outside the classroom, we count on our faculty to lead the way in showing how the mission of our school can broaden and deepen conversations about law, politics and culture.”

While Collett has been at UST Law since 2003 and Osler joined the faculty more recently in 2010, both previously taught a decade or more at law schools in southern Texas before making their way north. Their impetus in trading a relatively year-round warm climate for one that includes an honest and true version of winter was of a similar vein.

Collett was a professor for 12 years at South Texas College of Law, a private, secular school in Houston, before she felt the call to serve the Catholic Church more directly in her capacity as a professor at a Catholic-affiliated institution.

Osler taught for 10 years at Baylor University School of Law, the largest Baptist post-secondary institution in the country. Although Osler is not Catholic, he is a practicing Christian and said he was drawn to UST Law because of his appreciation for the intellectual tradition of the Catholic Church’s integration of “faith and reason” in its search for truth on issues of morality and social justice.

“First and foremost, intellectual and scholastic life survived because of Catholicism for a long time,” Osler said. “And a part of intellectual life has always been that give and take, of ‘what does this mean?’ It’s great to have those conversations while being able to lean on an institution that has reasoned through those questions for many centuries.”

Collett said she was drawn to St. Thomas because of her belief that the ideal model for a Catholic law school is one that provides a framework for discussion of the application of the Church’s well-reasoned doctrines as they relate to the intersection with cultural norms and law. She said she values the Catholic principle of room for debate, but not for the sake of debate itself.

“When everything is subject to debate simply for the sake of debate, I am troubled by that idea,” she said. “For example, I don’t think the principle that we should strive toward ‘goodness’ is really subject to debate. Now exactly how do we get from here to there, how to achieve ‘goodness,’ in the context of our laws and public policy, that’s where the interesting conversation lies.”

The School of Law is a place that welcomes conversations, even uncomfortable ones, as a matter of civil discourse. Discussions of issues do not have to be separated into red and blue, as in politics. It takes both colors to form purple and it takes collaboration and consideration to inform an equitable discussion.

“To me this is what the ideal Catholic university does,” Collett said. “We collect people, many of whom have common first principles, but, who because of their own gifts and talents and circumstances of their lives may have focused on differing aspects of how to create a just legal order. And from those unique and valued perspectives, we can have some amazing conversations.”

Dean Vischer said the Catholic law school’s focus on the value of human dignity helps to foster fruitful dialogue even during an election season when the stakes of engaging in such conversations seemed so high. “As a Catholic law school, we are founded on a commitment to honor and respect the dignity of every person,” he said. “This provides a strong foundation for healthy and civil dialogue, even when we grapple with the most controversial issues of our day.”

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The other major feature in this magazine is on employment. In the article you will read more about how the School of Law is uniquely positioned to help our students navigate the changing legal employment market. I am chairing a new committee to coordinate our efforts to help each student to develop and implement a plan for employment from the first year of law school. The article also includes some notes from recent alumni who have carved their own paths.

The magazine also includes a focus on the work of Wulf Kaal, and his emerging work looking at how hedge funds are reacting to the requirements of the Dodd-Frank Act. It demonstrates how important the scholarly activity of our faculty is, as this is a good example of work that can be directly applied in the classroom, and has affected practice as Business Week magazine and other mass media outlets have commented on the research.

I look forward to moving back into my role as professor and Director of the Holloran Center, and to continue working with all of you and Dean Vischer to build this inspiring law school.

Neil Hamilton
Professor and Director of the Holloran Center
for Ethical Leadership in the Professions
University of St. Thomas School of Law

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“If you’re not living under a bridge, there’s a good chance you won’t qualify for a public defender. And if you have to choose between groceries and a lawyer, the macaroni and cheese will win every time,” Boucher said. That’s why the collective charges flat fees, on a sliding-scale basis. “We insist that our clients have ‘some skin in the game,’” Boucher said, “so that they don’t take the legal services for granted, and so that the collective can survive to help the next person who walks in.” The collective’s two attorney- directors and five clerks represent clients in criminal defense matters, appeals, expungements and in tribal court. The staff offers legal representa-tion that is personal and approachable.

“Some people really do need to be in jail for the benefit of the rest of us,” Boucher said. “The vast majority, however, are capable of change. There’s a big difference between being a danger to society and having done something incredibly stupid once.”

Drawn to a Legal Career

Boucher’s combination of empathy and legal skills arise from a wide and varied background. After growing up close to the Canadian border in Rolette, N.D. – “a great place to be from” – she moved to New York City to be a nanny. There, she learned that there was a great deal of money in the world, that it made a great deal of difference and that none of it would be hers without higher education.

So she left New York and returned to the Midwest to attend the University of Minnesota. After graduation, she worked for a diversity-consulting firm, where she provided training as part of a mixed gender, multicultural team.

When her son, Nico, was born in 1997, she decided she needed a job that didn’t require so much travel. So, she went to work making capacitors at Medtronic.
These jobs revealed Boucher’s interest in the law. Diversity training usually took place as the result of a court order, and Boucher found that she was more interested in the law suits than in the diversity training. She also found herself learning about compliance issues at Medtronic.

Personality played a part as well. “My mother said that anyone this argumentative should get paid for it,” Boucher smiled. “Once again, she was right.” When Boucher decided to pursue legal studies, the University of St. Thomas School of Law was an obvious choice. “This place isn’t about beating the humanity out of you while you’re becoming educated in the law,” she said.

She remembers the first moment of the first day of class. She was both terrified and ready to go. She overheard a conversation between two young 1Ls about all the expensive supplies you have to buy to clean a bathroom. Apparently they had always lived in dorms and this was a new experience. As a woman with a family and a mortgage, Boucher wondered what she had gotten herself into. “By third year, those young women and I shared notes, and they both knew my son. There was a camaraderie at the School of Law that I hadn’t expected, and couldn’t have done without,” she said.

She described attending law school as, “a constant struggle between motherhood and legal studies.” One day during her first year, she was studying at home when her 6-year-old set up his toy train under her desk. It was in the way; she had to lift up her feet as the train went by. When asked why he had put his train there, he said it was the only way he could be around her. This wake-up call caused Boucher to reprioritize her life to spend more time with him, even though her grades suffered as a result.
Nonetheless, she received the “Living the Mission” award for professional preparation for her work as a writing fellow, both helping 1Ls with their legal writing and guiding them through that confusing first year.

The Minnesota Law Collective’s Work

A sense of shared humanity, plus a passion for social justice, connects Boucher’s experience at the School of Law and the Minnesota Law Collective. In addition to providing legal rep-resentation, Boucher shares a lot of information and holds a lot of hands. She remembered a client charged with misdemeanor theft, who suffered from anxiety and depression. For this client, compassion was as important as legal representation.

The collective also lobbies the Minnesota Legislature on issues of University of St. Thomas School of Law SUMMER 2012 27 social justice. “We’re trying to lessen the disconnect between the law and the people it’s supposed to serve,” Boucher said. For example, Boucher supported a bill that could close juvenile proceedings for 16- and 17-year- olds. This would prevent their records from becoming public, thereby smoothing the way to their reintegration into society.

The effort to let people back into society is the impetus for Boucher’s work on expungements. An expungement would have changed the life of a man she worked with who had spent time in prison. He understood what it was like on the inside, and began studying to be a psychologist with the goal of serving an inmate population. Once he realized that his criminal record would prevent his licensure as a therapist, he dropped out of school.

It’s situations like these that inspire Boucher to create change. She loves her job because she knows, “that I am all that is standing between my vulnerable client and the hammer of the law. I’m using my strength, passion and education to do something right and something important,” she said.

And the job has its challenges. Setting and maintaining healthy boundaries can be difficult when surrounded by more needs than you can meet. “I have a sense that so many in the criminal justice system aren’t really criminals,” Boucher said. “They were unable to cure an initial defect, and it mushroomed into a criminal situation.”

Another challenge is learning on the job. Because of the breadth of issues she deals with, and her relative inexperience as an attorney, she’s had to learn a lot quickly. The School of Law community has proved invaluable for Boucher, who has called on fellow alumni with specific skills. Invariably, they have responded with a remark-able generosity of spirit. She remembered calling a classmate – one who was little more than an acquaintance – who quickly found an answer to a specific real-estate law question that would have taken Boucher hours to locate.

In the end, Boucher sees the enormous gap between those who can afford legal representation and those who are assigned a public defender as an issue of social justice. She said that the School of Law helped her gain the legal skills and supported her passion to stand in that gap and fight for others’ rights.

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“Every migrant is a human person who, as such, possesses fundamental, inalienable rights that must be respected by everyone and in every circumstance.” – Pope Benedict XVI (2011)

Immigration will never cease to be a hot-button topic. In times of economic crisis, xenophobia often rears its head. Unauthorized migrants get painted with broad strokes – labeled as terror- ists, job stealers and criminals. But a counter narrative must be told – one of inclusion, democracy, family values and fairness. While states like Arizona and Alabama pass tough laws designed to scare immigrants away and the Obama administration deports record numbers of people each year, lessons from the Gospel and Catholic Social Teaching may point us in a different direction.

How to respond to the unauthorized population raises the most intense debate. Estimates of the unauthorized population in the United States are in the range of 11 million. About 60 per- cent of those are Mexican. Many have been here for decades and built families and businesses. The arrival of Mexican neighbors from the south is not the result of individual moral failure, as some might say, but of economic policies in the United States and Mexico.

The 1995 North American Free Trade Agreement (NAFTA) pushed family farmers off the land in Mexico. While Mexico reduced its support for rural agriculture, U.S. subsidies to our agribusiness sector over the same period climbed. According to the Environmental Working Group, our government pumped more than $7.5 billion into Minnesota corn pro-duction between 1995 and 2010.

Small corn producers in Mexico did not stand a chance. A Carnegie Institute report showed a drop in Mexican agricultural employment from 8.5 million in 1997 to just over 5.5 million in 2008. The NAFTA promise of more jobs in other sectors of the Mexican economy was not fulfilled.

Rather than being portrayed as “law breakers,” migrants have come in search of a better life for their families. The journey north is a perilous one: the risk of death in the desert, attacks by criminals, and victimization at the hands of human traffickers. Women migrants face rape.

Catholic Social Teaching principles of the option for the poor, solidarity, and subsidiarity can help inform the debate. On the role of government, Catholic Charities Twin Cities’ website notes that “the principle of subsidiarity holds that the functions of government should be performed at the lowest level possible, as long as they can be per- formed adequately.”

As for the option for the poor, it notes that “the moral test of a society is how it treats its most vulnerable members. … A healthy community can be achieved only if its members give special attention to those with special needs, to those who are poor and on the margins of society.” As for solidarity: “We are one human family. Our responsibilities to each other cross national, racial, economic and ideological differences.”

Applying these general principles to the immigration debate can be tricky. The U.S. Bishops, in a 1969 “Instruction on Pastoral Care of People Who Migrate,” recognized that regulating migration can further the common good of the receiving community, But only “grave requirements of the common good, considered objectively” should lead to restrictions.

As I write, the Supreme Court is deciding the fate of restrictionist legislation passed by the Arizona Legislature. Alabama has passed even tougher measures, with the aim of driving immigrants away. One might argue that state legislatures are closest to the issue, and thus subsidiarity principles should apply, but according to Archbishop Thomas Rodi of Mobile, “This law attacks our very understanding of what it means to be a Christian.”

Other less publicized local movements are arising in response to federal efforts to deport as many people as possible. The perhaps misnamed “Secure Communities” initiative by the federal government seeks to detain and deport virtually any unauthorized immigrant who comes into contact with local law enforcement. People pulled over for minor traffic infractions (or pulled over simply due to their appearance) end up in immigration detention. The punishment for a traffic ticket becomes deportation, separation from family and loss of personal property left behind.

Communities in California, Illinois, Minnesota, Washington, D.C. and Connecticut have begun challenging the legality of these policies, drawing parallels to other historical rendition injustices like the fugitive slave laws of the antebellum era. They often are joined by people of faith.

Author: Virgil Wiebe is an associate professor of law at the School of Law

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During the spring, several members of the community contributed to a farewell video for Mengler. Students gathered for a class photo and composed a book of remembrances. The message was amazingly consistent. Almost everyone said “Thank you,” tinged with a note of “Don’t go.”

 Mengler joined the University of St. Thomas School of Law as the second dean in June  2002 for the school’s second academic year. He presided over the opening of the School of Law building, and the first commencement. His leadership was critical in the new School of Law achieving American Bar Association accreditation early, in February 2006.  Dedicated to the school’s mission to “integrate faith and reason in the search for truth through a focus on morality and social justice,”

Mengler helped build a unique law school culture at the University of St. Thomas. As the student body increased in size, the mission remained central, and students, faculty, and staff responded enthusiastically. Princeton Review ranked the School of Law first through fourth among more than 175 law schools for Student Quality of Life, between 2005 and 2010. In 2011 the publication named the faculty to the list of “Best Professors.” During the same time, the school entered U.S. News and World Report Law School Rankings in the third tier (out of four tiers) in spring 2007. Only 3 out of 23 new law schools have entered these rankings in the 3rd tier or above. Mengler also helped attract and lead a talented group of faculty, who in 2010 ranked 38th out of 200 for scholarly impact.

Just last fall, the School of Law passed the $100 million mark in total gifts to the law school as it celebrated its 10th anniversary. Gifts and pledges to the School of Law during the University of St. Thomas’ current capital campaign now exceed $30 million, and include establishing endowments to support seven faculty chairs or professorships; student scholarships; establishment of the Murphy Institute for Catholic Thought, Law, and Public Policy; and establishment of the Holloran Center for Ethical Leadership in the Professions.

Demonstrating his impact not only on the School of Law but also in the Twin Cities legal community, in September 2008, Mengler was selected by Minnesota Lawyer as one of Minnesota’s “10 Legal Newsmakers of the Decade.” The others selected include U.S. Sen. Amy Klobuchar, former U.S. Sen. Norm Coleman, former Gov. Tim Pawlenty, and two former Chief Justices of the Minnesota Supreme Court.

Mengler’s 10 years as dean was the next step in an impressive career. After graduating from Carleton College in Northfield, Minn., he earned an M.A. in philosophy at the University of Texas. He went on to earn his J.D. from the University of Texas School of Law; there he served on the Law Review and was awarded Order of the Coif at graduation. After law school he clerked for Judge James K. Logan, U.S. Court of Appeals for the 10th Circuit in Kansas, before becoming an associate at Arnold & Porter in Washington D.C. The final stop before entering academe was as an Assistant Attorney General in Texas.

Mengler joined the University of Illinois College of Law in 1985 as an assistant professor of law. He rose through the ranks at the University of Illinois eventually becoming Dean of the College of Law. During his tenure at Illinois he also served as Interim Provost and Vice Chancellor for Academic Affairs. Before leaving the University of St. Thomas School of Law for his presidency at St. Mary’s University, Mengler reflected on what brought him to the School of Law, some of his best memories and the challenges facing the legal profession and legal education in the future.

How important has the mission been to you at the School of Law?

It’s everything. Several things drew me to the School of Law – the opportunity to help build a law school from the ground up, the Trustees and Father Dease’s pledge to establish over time a national law school, the enormous resources that generous benefactors had already donated. Above all, however, the unique mission drew me and my wife Mona to leave the University of Illinois and move northward.

And, without question, the mission has been a key to our success. Outstanding faculty members have left other fine law schools to come here for the mission. We have recruited excellent staff and the best of them have remained here, turned down more lucrative offers elsewhere, because of the mission. And our talented students too, an incredibly mature and centered group of mostly young men and women, have enrolled here for the mission.

As we have over time come to understand and embrace it, the mission is fundamentally about the formation through faith and community of young men and women committed to leading purposeful lives as legal professionals. This mission has guided our big and small decisions. It has changed all of us – not just our students – but faculty, staff, graduates, and Board members.

What do you remember about first becoming interested in the position of Dean at the University of St. Thomas School of Law?

Some of you have heard me tell this story before. I remember most Professor Neil Hamilton’s gritty determination to recruit me. Neil was chair of the search committee, and he was relentless in his efforts to interest me in the position.

I tried to ignore his early calls, because initially I could not imagine leaving the University of Illinois for an unaccredited law school in Minnesota.

When we finally spoke, I recall, and so does Neil, this conversation: “Neil, did you know I am Catholic?” “Yes, we know that.”

“Neil, did you know that I have prior connections to Minnesota?” “Yes, we know you graduated in 1975 from Carleton College.”

“But I bet you didn’t know my wife is originally from Texas, and Minnesota is going to be way too cold for her.”

“No, we didn’t know that.”

Still Professor Hamilton doggedly continued to call or email me. Finally, Neil asked me if I would agree to meet with President Dennis Dease. That was the beginning, my initial discussion with Father Dease and a few other individuals.

What individuals do you first remember meeting?

Some excellent folks, all of whom played crucial roles in the establishment of this great law school. Father Dease, who told me when we first met that the School of Law would be his legacy. Associate Dean Patrick Schiltz, now United States District Judge Schiltz, who almost single-handedly undertook and completed the essential early work. Quent Hietpas, who played an instrumental role in raising more than $70 million for the School of Law prior to my arrival. Tom Holloran and Sister Sally Furay, both of whom embody the highest values of what we are trying to instill in our students.

What is your best memory of your time at the School of Law?

Without question, my favorite memory is when I pretended to be Oprah Winfrey and somehow persuaded a sizeable percentage of the St. Thomas student body, and many of my faculty and staff colleagues, that the Mystery Speaker for the day was going to be Oprah Winfrey. The

Schulze Grand Atrium was packed with hopeful people as it had never been before. Unspeakable disappointment ensued when I, not Oprah, showed up. A small part of the disappointment was mitigated when I announced that we had just become fully accredited by the American Bar Association. That helped some; but there were a lot of people who felt duped. The editor-in-chief of the Law Journal didn’t speak to me for weeks.

This was also the first time we shot confetti from the fourth floor of the Law Building onto the floor of the Atrium. That was almost as much fun as fooling virtually the entire law school community.

What is your proudest accomplishment as dean of the School of Law?

A law school culture that rewards academic excellence in teaching and scholarship, innovation and teamwork, and that inspires faith in God, community, service, and respect for everyone who is involved in the law school, whatever their roles.

What will you miss about living in Minnesota?

The deep and enduring friendships my wife, Mona, and I have enjoyed. Fires in our fireplace on cold winter evenings. The beauty of early morning after a snowy night. The School of Law, its people and its spirit.

What external factors shaped the School of Law during your tenure that were particularly challenging or surprising?

As a Catholic law school with a serious religious mission, one of the biggest challenges for us, ten years ago, today, and in the future, is the level of hostility and skepticism with which the academic world, including the legal academy, views a religious institution.

We have done our very best to be a law school that embraces non-Catholics as well as Catholics, people of no faith as well as people of intense religious faith. We believe very strongly that we have added an important dimension, enhanced the diversity of perspectives, not narrowed the focus or restricted viewpoint. And I think we have succeeded in becoming that kind of law school. But the secular academy views us with suspicion, like most institutions that seek to maintain a spiritual dimension.

We have responded, and no doubt will continue to respond, through our best ambassadors for what we have established here – the men and women who are our successful graduates.

As you became dean you wrote a piece called, “What’s Faith Got to Do With It?” In the past several years has your answer to that question changed?

By the way, I still apologize to Tina Turner for modifying the title of her best song. When I wrote that little essay in fall 2002, I had just left a public law school, the University of Illinois College of Law, and just arrived at this new Catholic law school. In a later article, I wrote that when I first arrived at the School of Law, I could barely form the right words to talk about our Catholic identity. I had no true vision about how one might support and nurture the whole person at a Catholic law school. As I wrote some years later, “I was like a puppy dog, eager to please his master but entirely clueless about how to go about it.”

Since fall 2002, my understanding of our mission has changed radically. Then, in that essay, I focused on  mentoring and service to community – both of which are still important parts of our mission. But there is something more basic, almost ineffable, about this great law school. Over the years I have come to understand – or more accurately, feel – the fundamental importance of the relational – of living in community with individuals of faith who are seeking to lead purposeful lives. Our mission, if properly lived, is as much about the heart as the mind, as much about the unspoken daily kindnesses as the spoken message. Mother Teresa said it best: “Be faithful in small things, because it is in them that your strength lies.”

What do you see the key challenges will be to the legal profession in coming years?

Let me begin by stating that I am proud and privileged to be a lawyer, and that one of my joys over the last ten years has been to get to know and work in Minnesota with some of the finest lawyers and judges in America. The Minnesota bench and bar is first-rate in terms of its overall competence, and more important, in terms of its professionalism and dedication to service to client and community. I guess the key challenge for all of us in the legal profession is to remember that we are blessed with the treasure of a law degree, to responsibly serve clients and to work in our communities to effect positive social change. Not enough members of the legal profession remember that we are charged with this calling.

What are the key challenges to legal education in the coming years, and how do you feel you are leaving the School of Law to meet those?

No doubt these are truly rocky times for legal education, just as they remain rocky times for many who are trying to eke out a living in an economy that still is floundering. The rising cost of legal education is a huge challenge, even after our economy bounces upward and creates more legal work and more positions. I think the significant fundraising that many of us have undertaken for the School of Law – more than $100 million now – will mitigate those costs to some extent for our students in the coming years. I also think a continued focus on keeping expenditures down – as we have been doing over the past years here – will also be critical.

There will be a lot of competition out there and a real need for attorneys who can play the larger role of trusted advisor to clients. The School of Law, through its mentor program, its courses on leadership, the values that it embodies within this community, will continue to graduate lawyers who possess those soft skills and values that will be necessary to succeed in the legal profession.

What is your greatest wish for the future of the University of St. Thomas School of Law?

After 10 years as dean, I only get one wish? OK, here’s my wish: I believe so strongly in the mission and vision of this law school that I pray that it eventually takes its rightful place as the model for American legal education.

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We have shed a few tears. And we have reflected on the law school’s achievements, the challenges of the past and those coming in the future, but also the many opportunities ahead. We do have challenges ahead, but I feel so confident about the School of Law’s future. My confidence begins with our deeply embedded culture of excellence among faculty and staff. Just last year Princeton Review ranked our faculty eighth among law faculties for the quality of their teaching and their accessibility to students. Our faculty consistently scores among the top 40 or 50 in the country for scholarly productivity and impact. What remarkable achievements for such a young law school and a relatively small group of faculty.

I also will miss our talented staff. Across the board, these fine men and women are focused each year on making the administrative functions of the law school better than they were the previous year and on making sure that students are served and served well. This is such a strong staff, I wish I could take them all with me to Texas!

A second reason I am so confident is because of how we have come to understand and live our mission, as a necessary component of educating students to lead purposeful, accomplished lives as lawyers and legal professionals. As you know, very few law schools have any kind of mission. For that reason alone, because the School of Law has a distinctive niche, a distinctive brand, we are leaders of the pack. Our mission, however, does not just distinguish us from a non- descript horde. Because our mission so clearly facilitates the values and soft skills that are essential to professional success as a lawyer, our mission is also the key to the School of Law’s recognition for its cutting-edge, highly relevant program.

A third feature of the School of Law that brings me joy is the quality of the individuals who are our students and our graduates. The men and women who have passed through the School of Law are already or will soon be leading our communities. You came to St. Thomas because we promised a different kind of experience. We promised a community where you could learn and grow. And you have made it so. Now you are taking on the world outside; and I look forward to seeing you become judges and justices, law firm partners, and political and community leaders.

I feel so fortunate to have played a role in this law school’s formative years. I am blessed to have grown as a person and as a leader by taking part in our great community. I am honored to have served you as dean. I will take great pride in the countless ways in which your daily contributions – great and small – bring about positive change in the lives of your clients, in our justice system and legal profession, and in our greater communities. God bless you all. I will miss you and this law school.

Thomas M. Mengler Dean and Ryan Chair in Law
 University of St. Thomas School of Law

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Dr. Susan Huber, executive vice president and chief academic officer of the university, said a search committee for a permanent dean continues its work and hopes to identify an individual this fall. Hamilton indicated he will not be a candidate for permanent dean.

“In consulting with School of Law faculty and staff, I found unanimity in the idea of appointing Neil as an interim dean,” Huber said. “He is held in the highest regard both in the School of Law and in the legal community, and I know he will do an exceptional job.”

Hamilton received his bachelor’s degree in economics from Colorado College in 1967 and his law degree from the University of Minnesota Law School in 1970. He also has a master’s degree in economics from the University of Michigan (1979). He practiced with law firms in Minneapolis and Indianapolis before entering the teaching profession.

He taught in law schools at Airlangga University in Indonesia and Case Western Reserve University in Cleveland before joining the William Mitchell College of Law faculty in 1980. Hamilton joined St. Thomas’ School of Law as a founding faculty member in 2001 and served as associate dean for academic affairs in spring 2002 and from 2003 to 2005. He became Holloran Center director in 2006. He has taught a required course in professional responsibility and an ethics seminar for 25 years, and at St. Thomas he created the first Ethical Leadership course, which he co-teaches with Holloran. Hamilton also has taught courses in administrative law, business ethics, antitrust, regulated industries, banking, business organizations, contracts and civil procedures.

His honors include Lawyer of the Year from Minnesota Lawyer magazine (2002), Hennepin County Professionalism Award (2003) and the Professional Excellence Award from the Minnesota State Bar Association (2004, one of only three law professors ever to receive this recognition). St. Thomas honors include the School of Law Excellence in Professional Preparation Award (2003), the John Ireland Presidential Award for Excellence as a Teacher/Scholar (2009) and a Dean’s Award for Excellence in Teaching (2011).

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No wonder Jason was so angry. Over the last seven years, Stamman ’12 has been to Honduras nine times. He leads mission trips through Impact Ministries International, which runs a Christian orphanage in the city of Comayagua. On every trip, Stamman watches families come to Honduras and fall in love with a specific child. Sometimes the child finds them.  American families really want to adopt the children, but Honduran laws currently do not allow for international adoption. Only five to seven adoptions have been allowed per year, but Stamman hopes to see more. For him, it’s an issue of saving lives. Impact Ministries International’s orphanage houses at most 60 children. There are more than 3,000 children on the streets in the city of Comayagua alone.

Their stories are similar to Jason’s. Their fathers have long since disappeared, and their mothers essentially have abandoned them. With limiited resources, government and private orphanages can only house so many children at one time. By adopting children from the orphanage, families would be helping that child, but also helping to get starving children off the streets and into the orphanage. To make this happen, Stamman decided to start his own nonprofit. “My goal with Fulfilling Families International (FFI) is to create a non- profit agency that facilitates adoptions from Honduras to the United States,” Stamman said. “Right now FFI is more of an advocacy group, because we’re not an adoption agency yet. The goal is to help Honduras become friendly to the idea of international adoption by partnering with my contacts in Honduras to open doors.”

About a year and half ago, he filed for articles of incorporation and found board members. Then he ran into a roadblock. “I needed to file for tax-exempt status with the IRS,” he said. “I thought, ‘I can’t do this. It’s too much work.’ I tried to do it over the summer, and I was contacting law professor Scott Taylor with questions. He suggested that I take his nonprofits class, and we’d work on it together.”

A Nonprofits Course
Professor Taylor decided to teach his Nonprofit Organizations course as a practicum last fall. For the first half of the semester, students read Taylor’s 2011 book, The Law of Tax Exempt Organizations in a Nutshell, and discussed the material in class, focusing on compliance with Minnesota statutes. For the second half of the course, students worked in groups as volunteer legal counsel for four different local nonprofit groups in need of federal tax-exempt status. Taylor was avail- able when help was needed, but he gave the class as much freedom and responsibility as possible. The approach worked. Clients raved about the student’s outstanding, professional work. Taylor enjoyed watching the students “totally get into the projects” and the spirit of the class. He maintained that their enthusiasm was not due to him, but to the magic of students engaging with real nonprofits where they felt like they were making a difference.  A few students signed up for the class with particular motives and loads of passion.

A Nonprofit to Even the Odds
Alexandra Campion ’12, was on the wait-list for the Nonprofit Organizations class. She had a start on an idea, and she couldn’t wait to finish actualizing it. Campion was a public relations major as an undergraduate at the University of South Carolina, and was drawn to nonprofit work. Her sophomore year she attended a lead- ership camp that brought home some sobering facts for her. Campion explained, “There is a deficit in women’s leadership across all industries. For example, there are an equal number of male and female law students, but men have a disproportionate advantage when it’s time to fill key positions. Once in those key positions, women only earn 78 percent of what men do in the exact same roles.” Campion came away from that camp convinced of the critical importance of leadership training for young girls.

After college, Campion spent a year traveling to college campuses as a leadership consultant through her sorority. She loved it, and her idea for a Center for Girls’ Leadership began to percolate. She thought that if she could provide the training and inspiration for young women now, once they were in a place where they could step up, they would. As a School of Law student, Campion began to lay the framework to start her nonprofit, and the Tommie community soon caught her passion. Two years prior, classmate Michael Biver ’12, told Campion to include him on the board of directors whenever she got the ball rolling. Campion’s current board of directors includes five University of St. Thomas law students. Biver is one.

“It’s extremely important to have men in on the issue,” Biver said. “It’s easy to get women to rally around the cause, but if you only have women involved in the conversation, you’re not changing those perspectives in the male-dominated business culture that are the problem. If men aren’t part of the dialogue, you’re building momentum, but not knocking down some of those barriers.” Last year, Campion told Professor Taylor about her vision for the Center for Girls’ Leadership. He thought it was solid, and they decided to present her organization as a potential project for the fall 2011 nonprofit course.

Counsel, clients and classmates
At the beginning of Professor Taylor’s course, students were presented with several potential projects and were allowed to pick the nonprofits that interested them. The class chose four:
•  The Center for Girls’ Leadership
•  Fulfilling Families International
•  A Tu Lado (“On Your Side”)
•  Rebound
A Tu Lado is an organization working in Latin America to improve emergency medical care in larger cities. It is a project created through Macalester College.  Rebound was started by Carmeann Foster ’12, who graduated with a joint degree, J.D. /M.S.W. (social work). Rebound is still in the formation stages, and seeks to provide holistic services for juvenile offenders who are subject to the juvenile justice system.

The one stipulation for choosing projects was that students could not work on their own organizations, which forced Stamman (FFI) and Campion (Center for Girls’ Leadership) to act as both client and counsel during the course.

“Originally I was annoyed that I had to switch to work on someone else’s stuff,” Stamman said, “but it was good that I did because I learned how to word things and start things from the perspective of another company. It was a crucial experience doing things twice. It was a lot more work and really dif- ficult, but I got to play both roles and see both ends of it, which was really advantageous for me.”

Since student Michael Biver already was serving on the Center for Girls’ Leadership board, he decided to work with FFI. Stamman’s FFI organization was a new type of nonprofit work for Biver, and with three nephews adopted from Korea, its mission also was close to his heart. As he and his two group members worked with FFI, and Stamman as its creator, Biver thrived on the real client interaction.

“[In a law practice] no client is going to come to you and say, ‘I want x, y and z in a document on my divorce.’ There’s always going to be a dialogue, always a back and forth,” Biver said. “Either there are going to be issues that they don’t want to share with you or they don’t know to share with you. So it was really, really nice to have a real person to deal with, but also a huge challenge. You had to figure out ways to get to the details not apparent in an initial conversation. That was hugely beneficial,” Biver said. Biver hadn’t enrolled in law school to become an attorney. Between his undergraduate years and law school, he worked with AmeriCorps, coordinating volunteers for community disaster response and relief. That was his first taste of the nonprofit sector, and he began to consider pursuing a career in it.

He then worked as a district executive for the Boy Scouts, and met several key people who were making a real impact in their communities. The common thread among the volunteers was a legal background. Biver knew he wanted to go back to school, and he decided that law school would give him the most options for whatever he decided to tackle. He entered the University of St. Thomas School of Law with the intention of re-entering the nonprofit sector. In what capacity, well, that was still up in the air.

His first hands-on legal nonprofit work was with St. Thomas’ Community Justice Project clinic, where he worked with the nonprofit Brotherhood Inc. He gained experience with the ins and out of a nonprofit organization and a taste of how useful a law degree would be in that sector. When he saw that Professor Taylor was offering a course specifically on nonprofit law, he jumped at the chance to take it.

“With a real client you’re motivated to step up the game and do everything you can for them. It makes it that much more rewarding when you do accomplish something, because it’s not just checking off an assignment, it’s helping someone.” In the nonprofits class, Biver’s group committed to getting the tax-exempt paperwork done for FFI, even if it hap- pened after the semester’s end.

“All three of them did a phenomenal job,” Stamman said. “They worked really hard, and did a lot of research on my behalf. They filed a lot of stuff and wrote a lot for me. It was really cool to see my friends supporting me. I was really appreciative of their efforts.”

As a student, Stamman ended up working with A Tu Lado, partially because of the Latin America connec- tion. His group established close con- nections with the organization. There came a point in the process when the semester was coming to an end, and they hadn’t filed the paperwork with the IRS yet. Stamman’s group “put on the full-court press” and beat the course deadline. The group decided their help would extend beyond the class, even if a problem occurred later down the road.

For Stamman, the moment that sticks out the most came after the class was finished. He opened an email from A Tu Lado and read that their paper- work had been completely accepted by the IRS, and there were no questions – a rarity. Stamman said it was satisfying to help A Tu Lado reach a benchmark for its organization.
After the course, Biver felt prepared with the basic skills to help a nonprofit through the initial stages of start-up. He said that the class was a great learning experience on many levels – not only did they learn about the nonprofit process, but also team leadership skills.

Mission in Action
According to Professor Taylor, his job is to facilitate learning experi- ences for students that move them beyond the litigation-based, Socratic case-method focus from their first year of law school. He likes to highlight transactional lawyering, helping people comply with legal requirements so they don’t get into legal disputes. His favorite courses are the ones – such as Nonprofit Organizations – that allow students to take the law to the next level. He describes it as thought in action, or rather, law in action. It also could be described as mission in action.

“The law school is interested in promoting social justice and the dignity of the individual,” Taylor said. “Historically and currently society addresses that in a major way through the nonprofit sector. This sector is a vehicle through which students can create structures, organizations and communities that further social justice. Alex [Campion, Center for Girl’s Leadership] is focused on girls because she sees a lack of opportunity for young girls to assume leadership roles, so she is creating this wonderful structure in which an eighth-grader might have an experience in law that will motivate her to pursue more with her future. Phil’s [Stamman, Fulfilling Families Internationally] project is helping families and helping orphans. A Tu Lado is a potential paradigm shift in the way emergency medical care is administered in the lowest rungs of society.”

The nonprofits course also illustrated another value of the law school in practice – community. Biver appre- ciated the tight, dynamic teamwork that was integral to the nonprofit project. When your grades are based on your performance in comparison to your classmates, team work tends to be rare in law school.

Stamman agreed, “UST Law finds a better approach. Though my peers are my competitors, there was more emphasis on ‘Let’s get there together.’ Grades are important, but they’re not the only thing. I have lots of friends here who have helped me. This non- profit class is a good example.”

Honduras Orphan Jason Changes His Attitude
After learning Jason’s story, Stamman intentionally reached out to him on subsequent trips to Honduras. When the younger children stayed behind at the orphanage, Stamman made sure that Jason came with him. They hung out at the pool, rode the bus with the team, and ate at McDonald’s. Slowly, a change could be seen in Jason because of the love shown to him at the orphanage. He had always taken care of his little brother, but now he was taking care of everyone. He had a great heart and seemed happier. Now Jason is 16, and he gets paid to do landscaping around the orphanage. He sends all of his money to his mom.

“Seeing Jason grow, seeing God change his life, that’s what motivates me to [start a nonprofit to help orphans],” Stamman said. Stamman will take the bar exam this summer, only a few weeks after a trip to Comayagua, and get married in August to his fiancée, whom he met while on a trip to Honduras. Because of Professor Taylor’s nonprofit law class, Stamman would like to practice nonprofit law, but is also interested in criminal prosecution. He and his fiancée plan to adopt children someday. He’s not sure if Fulfilling Families International will ever be a full-time job for him, but plans for it to be significant part-time work.

In five years, Stamman hopes that FFI will be ready for adoptions. “I don’t plan on it being a huge organization, but God’s plans for it or my vision for what I want to do with it could change,” Stamman said. And Stamman is staying open to possibilities because of children like Jason.

Students Consider Working with Nonprofits
Campion got a glimpse of the possible impact of her nonprofit, the Center for Girls’ Leadership, at its first event in February. Nine high school girls and one college student gathered at the law school. There was a panel of five attorneys, small group discussions, and a mock trial. Campion wanted to motivate the girls to “think big.” What were their big dreams? One girl came up to Campion and shared that her dream was to start a nonprofit for homeless people. She said that her inspiration was Campion and her friends.

“Alex has worked very hard putting together a talented board, so that will work well for her. They have a great plan and know exactly where they want to go, but they’ll have to work on funding,” Taylor said. Campion will take the bar this summer and wants to practice law for a few years, but said she could see herself stepping into the executive director role for the Center for Girls’ Leadership. The center already has hosted a few events and won a Mission Award from the School of Law. Over the summer, it will focus on reaching out to schools, developing a core of volunteers, and spreading its exposure.

“But I really want to focus on reaching out to the girls,” Campion said. The center is hoping to someday sponsor summer camps and obtain a permanent office.
Biver and Colleen, his wife and fellow law student, specifically sought a law school with a strong Catholic iden- tity that integrated faith and reason into the practice of law, and used faith as an anchor for the most important things in life. They will take the bar exam this summer. “Even though I’m not planning on being a traditional attorney, I’ve done the work, and the bar will just be a nice bow on top,” Biver said. The couple also is expecting their first child this summer. Colleen is planning to pursue bankruptcy practice, and Biver is exploring his options in the nonprofit sector, particularly in gift planning.

Reflecting on the Nonprofit Organizations course, Biver said, “Realizing that both Phil and Alex, two of my classmates, two of my peers, had projects we were going to be working on, opened up possibilities in my mind for starting or helping nonprofits. Just hearing Alex and Phil talking about their projects, what they were hoping to do and accomplish, showed me that if I had the desire, I could do what they’re doing. It’s not out of my reach.”

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Federal labor law (the National Labor Relations Act) gives employees the right to unionize and to bargain collectively. It also gives employees and their representatives the ability to file unfair labor practices charges with the National Labor Relations Board (the NLRB or the Board) when an employer unlawfully tries to interfere with unionization efforts or refuses to bargain with employees and their representatives.

Should federal labor law cover religious colleges and universities, allowing the NLRB to exercise jurisdiction over such institutions? That is the issue I address in an article that will be forthcoming in the Pepperdine Law Review, some of the ideas in which I share here.

The NLRB’s Current Approach to the Question
The NLRB currently determines whether to exercise jurisdiction over efforts to organize at a religious college or university by examining whether the institution has a “substantial religious character,” in the absence of which it will exercise jurisdiction. As evidenced by two recent decisions by NLRB regional directors in cases involving efforts by adjunct faculty to form unions – one involving St. Xavier College1 and one involving Manhattan College2 – both of which are currently on appeal to the full Board, the substantial religious character test involves the Board in an improper inquiry into matters of religion and belief.

The Board’s inquiry, which involves consideration  of factors such as the involvement of the religious administration in the daily operation  of the school and the degree to which the school has a religious mission and curriculum, essentially boils down to the question of whether the school is sufficiently religious. The decisions in St. Xavier College and Manhattan College are illustrative. In both cases, the regional directors rejected the claim that the Board lacked jurisdiction and ordered that union elections be held. Both decisions contain extensive discussion and analysis of the schools’ Catholic identity and history, mission and purpose, hiring practices and governance. In Manhattan College, the NLRB regional director determined that the fact that Manhattan College did not impose a requirement that faculty or students be Catholic, or require a religious loyalty oath or attendance at religious services or courses in Catholic theology, meant it lacked a substantial religious character.

In St. Xavier, among the factors considered important by the regional director was the fact that faculty are not required to imbue or indoctrinate students and curriculum with Church doctrine or religion.  This approach has “the NLRB trolling through the beliefs of the University, making determinations about its religious mission, and that mission’s centrality to the ‘primary purpose’ of the University.”  Underlying the NLRB approach are assumptions – its own assumptions – about what it means to be a religious entity and what it means to provide a religious university education. The problem is that the NLRB’s belief that a university is not religious if propagation of a religious faith is not its primary purpose, if students and faculty are not required to engage in worship or if the school welcome people of other faiths, misperceives that nature of Catholic higher education, central to which are dialogue and engagement with the world. That Catholic colleges and universities hire and teach people of other faiths, does not make them not Catholic or not religious.

The intrusiveness of the substantial religious character test led the D.C. Circuit to establish an alternate test for deter- mining whether religious colleges and universities should be exempt from the requirements of the NLRA. The test, established in University of Great Falls v. NLRB,4 has the virtue of being simple and nonintrusive, asking only whether an institution holds itself out to the public as a religious institution, is nonprofit and is religiously affiliated. As a practical matter, the Great Falls test essentially says that religiously affiliated institutions of higher education are always exempt from the NLRA’s collective-bargaining requirements.

The dispute over the respective merits and faults of the current NLRB and the Great Falls approaches, which will be addressed by the Board when it decides the appeals in St. Xavier College and Manhattan College, fails to directly address the crucial question of whether the assertion  of jurisdiction by the NLRB over religious colleges and universities, and the resulting duty on the part of such institutions to collectively bargain with their employees pursuant to federal law, would present a substantial risk of excessive government entanglement with religion.

Concerns About First Amendment Implications of NLRB Oversight Are Overstated
In NLRB v. Catholic Bishop of Chicago,5 the Supreme Court expressed concerns that NLRB oversight over collective bar- gaining in parochial schools could create conflicts between the clergy who administer the schools and the Board, and that resolution of charges of unfair labor practices could require the Board to inquire into religious matters.

Even as to parochial schools, there is no unanimity on the question whether subjecting religious educational institutions to laws regulating collective bargaining creates a risk of excessive entanglement; many courts addressing the application of state collective bargaining laws to religious educational institutions have concluded it does not. And religious colleges and universities, of course, are very different from parochial schools, whose mission it is to imbue and indoctrinate students into the tenets of a faith.

In evaluating the risks of NLRB oversight of the collective bargaining process in religious colleges and universities, it is noteworthy that such institutions already voluntarily subject themselves to secular oversight and regulation over matters relating to terms and conditions of employment by virtue of seeking accreditation. For example, virtually all Catholic colleges and universities seek and obtain accreditation by secular regional accreditors, rather than seeking accreditation by religious accreditors. Among the 231 institutions that seek accreditation only by a religious agency, only four are Catholic institutions, and those four are seminary schools accredited by the Association of Theological Schools.

Thus, virtually all Catholic institutions choose regional accreditation, either in addition to or in lieu of accreditation by religious agencies, voluntarily subjecting themselves to the oversight of regional accreditors. Such accreditors impose requirements as to faculty governance, academic freedom and other matters that relate to terms and conditions of employment.

The question is whether NLRB oversight over the collective-bargaining process would add any additional intrusion that religious colleges and universities don’t already voluntarily subject themselves to by virtue of accreditation requirements (a question not asked by the Board’s current focus on the religious character of the institution). There are several reasons to think subjecting religious colleges and universities to the jurisdiction of the NLRB would not involve additional intrusion of the type that would create a constitutional concern.

First, the imposition of NLRA collective-bargaining requirements is not likely to create entanglement with a school’s religious mission. Although the NLRB can order collective bargaining over all “mandatory subjects” of collective bargaining – which includes wages, hours and other terms and conditions of employment – even in the secular context, the Supreme Court has made clear that the Board cannot require employers to bargain over every decision that directly affects the employment relationship, and decisions involving the application of state labor laws to religious schools (generally high schools, where one would expect more likelihood of conflict than in a university) suggest courts have managed to exclude religious matters from the scope of mandatory subjects of bargaining.

More importantly, even with respect to mandatory subjects, federal law requires only that parties negotiate in good faith; the NLRB cannot compel either party to make any particular concession or agree to a particular term. The ultimate decision whether to make a concession or agree to a proposal remains in the hands of the religious college or university.

Second, the dispute over NLRB jurisdiction over religious colleges and universities generally involves adjunct faculty, with respect to whom there is less likely to be an entanglement issue. St. Xavier College is instructive. Neither the offer nor the contract of adjunct faculty, nor the student evaluations which formed the primary basis of evaluating the adjuncts, made any mention of religion at all. Nor did religion ever form any part of the evaluation of the adjuncts; adjuncts could not be dismissed for acting contrary to Church teachings and Church officials had no firing authority over them. Similarly, in Manhattan College, adjunct faculty were hired based on academic qualifications to fulfill academic obligations and no part of their job involved propagating religious faith. Given these facts, it is difficult to imagine how either the bargaining over the terms and conditions of adjunct employment – the traditional adjunct issues are better pay and benefits, and job security – or the resolution of any unfair labor charge advanced by such faculty could involve wading into impermissible waters.

Third, the Supreme Court’s concern in Catholic Bishops that the inquiry that would be required where the NLRB was investigating an unfair labor practice charge could lead to excessive entanglement is misplaced. Investigating unfair labor practices could require the Board to make a factual determination whether the complained-of practice, for example, discharge of a faculty member, was motivated by an illegal purpose, rather than a protected purpose. But courts and agencies engage in such factual determinations of motive all of the time and doing so does not require adju- dicating question of religious doctrine. It is true that the Board might have to evaluate the sincerity of an asserted religious belief, but that is an inquiry courts often have to make in free exercise cases.

Having said all of that, it is clear that there are some situations where entanglement is more likely than others. First, just as there is a difference between parochial elementary and high schools and religious colleges and universities, there is a difference between an ordinary religiously affiliated college or university and a seminary, the latter of which is designed to educate and prepare students for ordination to the priest- hood or other ministerial position. Faculty in a seminary are much closer to parochial elementary and secondary schools in terms of their role in inculcating students with religious doctrine and serving as religious models for their students, meaning a far greater potential for entanglement than in the case of other religious colleges and universities. In such cases, the Board should refrain from exercising jurisdiction.

Second, one can imagine greater possibility for entangle- ment in the case of full-time rather than adjunct faculty. Although the issue of full-time faculty unionization of religious colleges and universities does not arise frequently, because such faculty are often considered to be managerial and therefore excluded from the protection of the NLRA, there have been instances where the NLRB has found that university professors lack the degree of autonomy necessary to be considered managerial. In situations where full-time faculty are determined to be non-managerial employees, there is a greater likelihood of entanglement. I say “greater likelihood,” but even there, there is no guarantee of a con- stitutional problem. Despite St. Xavier’s opposition to its adjunct faculty organizing, “the University’s full time faculty were organized under an NLRB election 20 years ago, and the University has continued to recognize and bargain with that union without experiencing any ‘entanglement’ issues through to the current date.”6

Foreclosure of an Alternative Vision for Employer-Employee Relations
Even absent any danger of entanglement, one might still argue that religious colleges and universities should have the freedom to pursue an alternative vision for employer-employee  relations. Kathleen Brady has argued that because the NLRA “presumes and perpetuates an adversarial relationship between workers and management, [whereas] Catholic teaching encourages relations that are more cooperative and collaborative,” requiring Catholic colleges to comply with the NLRA regime of collective bargaining would require Catholic institutions “to channel their employment relations into patterns of behavior that are deeply at odds with the Church’s basic vision for social life.”7

For Brady, the ability of the Church to advance an alternative vision for social life – a vision built on love and mutual concern rather than on self-interest – is crucial. Religious organizations, in her view, offer a prophetic voice that “can push the larger community to re-evaluate social and legal norms in light of new visions” that “can transform existing national values in progressive directions unimagined by prevailing orthodoxies.”8  In the area of labor relations, that means a more cooperative model of collective bargaining rather than the adversarial model of the NLRA.

The problem is that Catholic colleges and universities have not modeled the vision Brady offers. Those seeking unionization have done so because, not only have Catholic colleges and universities not offered a cooperative model of collective bargaining, but they appear to treat their employees no more lovingly than do secular institutions of higher learning. Six years after the Supreme Court’s deci- sion in Catholic Bishop, the United States Bishops issued their pastoral letter, Economic Justice for All, which recognized the rights of workers  of church institutions to organize and bargain collectively. Twenty-eight years later, in their actual labor relations, Catholic universities look no different than do secular universities.

That it has not done so is troubling. How effective can Catholic Social Teaching be as a guide to the behavior of others if the Catholic entities themselves do not practice what the Church teaches about the rights of workers?  At best, Brady has a good argument for the NLRB to refrain from stepping into a situation where a Catholic col- lege or university has already taken steps to set up an alter- native collective-bargaining regime. To forego the aims of the NLRA where an institution shows no signs of instating such an alternative and its treatment of its employees is such that employees seek the protection of federal labor laws seems to ask too much.

Religious colleges and universities should be free to carry out their religious missions without undue interference by the government. However, the mere fact that they are religious should not automatically shield them from NLRB oversight over attempts by adjuncts to unionize.

Author: Susan J. Stabile is the Robert and Marion Short Distinguished  Chair in Law at the School of Law. She is a Fellow at the Holloran Center for Ethical Leadership, an Affiliate Senior Fellow at St. John’s University Vincentian Center for Church and Society, and a Research Fellow at New York University School of Law, Center for Labor and Employment Law.

NOTES
1  St. Xavier University, Regional Director’s Decision and Direction of Election (May 26, 2011), available  at http://nlrb.gov/
case/13-RC-022025.
2  Manhattan College, Regional Director’s Decision and Direction of Election (Jan. 10, 2011), available  at http://nlrb.gov/
case/02-RC-023543.
3  University of Great Falls, 278 F.3d 1335, 1342 (D.C. Cir. 2002)
4  278 F.3d 1335 (D.C. Cir. 2002).
5  440 U.S. 490 (1979).
6  St. Xavier, Petitioner’s Brief in Support of Regional Director’s
Decision, filed Sept. 14, 2011, at p.3.
7  Kathleen A. Brady, Religions Organizations and Mandatory Collective Bargaining Under Federal and State Labor Laws: Freedom From and Freedom For, 49 Vill. l. ReV. 77, 80 (2004).
8  Id. at 81.

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He became interested in race relations while growing up in Chandler, a town of 3,000 in southern Indiana. He majored in political science at Wheaton College outside Chicago, and as a junior took a course called Race and American Politics. “That class never mentioned Native Americans,” he said. That omission helped focus his interest on Native American race relations.

He became a man on a mission. After graduation, he moved to Minneapolis to facilitate his involvement in Native issues, and he became a youth worker at the Little Earth of United Tribes housing development in south Minneapolis. Believing that government is the best way to address social change that positively impacts race relations, Harralson knew law school was in his future. “Law is a primary tool of government,” he said.

School of Law is a Good Fit

Harralson wanted to stay in Minnesota, a state in which approximately 54,000 American Indians live. While he was researching law schools, the University of St. Thomas School of Law captured his attention. “I came from Wheaton, where the mission similarly combines intellectual pursuits with spiritual ones,” he said. “It was consistent with the UST Law mission. Social justice falls in, as well, and that was appealing. So it was the mix of location and mission that brought me to the School of Law.”

The decision proved to be a good one. Harralson speaks highly of his experiences at the School of Law. “I met great friends on all sides of political and religious issues. Those kinds of debates outside of class really helped me learn,” he said. “Being in only the third graduating class, we were all there at the beginning. Everybody had a say in how the mission was fleshed out.” He valued that process.

Sovereign Nations Have Their Own Civil Regulations

Harralson began his career with the Band as in-house counsel in 2007. For two years, he practiced as a deputy solicitor general. During that time, he worked in many human resources investigations and unemployment issues. He now serves as director of human resources for the tribal government.

In this capacity, he manages a department of seven that handles human resources for the tribal government’s more than 800 permanent and 200 to 300 part-time and seasonal employees. In addition to staffing and benefits, his department handles employee relations, unemployment issues and risk management.

Harralson’s group supports each department of the tribal government. Much of his time is spent dealing with situations at the request of Band commissioners, gathering facts and making recommendations. For example, he could provide direction or clarify a policy for a department dealing with an employment issue. Harralson and his staff ensure that situations like these are addressed properly.

Harralson likes the variety of his responsibilities, and he enjoys working with the commissioners, who are political appointees. He’s been given opportunities that have allowed him to stretch. “I was asked to facilitate strategic planning for the Band, a function that involved both HR and organization development,” he said. “It was a great opportunity and learning experience.”

Even more, Harralson considers it a privilege to work on issues of tribal sovereignty, something in which he believes deeply. “I have an opportunity to uphold my country’s obligations and promises by working within the Band to enforce its sovereignty,” he said.

Some of the position’s challenges are inherent in human resources work. “There are two sides to any given situation, and a decision needs to be made,” he said. “I’m usually in an advisory capacity, but both sides can point fingers. I really just try to treat everyone fairly.”

Other challenges are more specific to Harralson’s situation. As a non-member in a leadership role in the Band, Harralson is an outsider. While that can be uncomfortable at times, it can be an advantage. Because he isn’t a member of the community, he can make decisions without family and other relationships clouding his judgment.

The legal challenges can be significant as well. As a sovereign nation, the Band has its own civil regulations, including those related to employment, rather than following state laws. Federal law is more of a question, and varies by situation. In some cases, tribal interests are written into the federal law. For the most part, however, the tribes are left to their own devices.

“Take the Federal Age Discrimination in Employment Act, for example,” Harralson said. “The statute itself does not say that it applies to tribes. In this case, the Supreme Court held that the statute does not apply to tribes.”

Opportunities Pointing in the Right Direction

Harralson’s experience at the School of Law prepared him well for his career. Studying federal Indian law with Scott Taylor gave him a solid grounding, he noted. “My mentor experience was fantastic,” he said. “Lenore Scheffler was a partner with Best and Flanagan whose main area of practice was federal Indian law, and she was a tribal judge for the Upper Sioux Community. The tribal court experience I gained through the mentor program was invaluable.”

Harralson also took advantage of the flexibility UST Law offers. He took a course on gaming law at the University of Minnesota Law School, and attended Lewis and Clark School of Law’s summer Indian law program.  “St. Thomas was the place to be to allow me to gain experience from as many places as possible within a supportive environment,” he said.

Extracurricular activities, including Harralson’s participation in the Native American Law Student Association (NALSA), provided important opportunities. The chapters at the four Twin Cities law schools collaborated to host the National NALSA moot court competition. “The Opening Ceremony was held at the U of M, the competition was held at William Mitchell, Hamline hosted a CLE and St. Thomas held the awards ceremony,” he said. “It was a great experience.”

What the Future Holds

The career path he set out on years ago continues to lead Harralson in the direction of Native American issues. His goal is to remain working for a tribe or within a firm representing tribes.

“Working for the Band confirms that I like the way this government works,” he said. “I hope to work in government, either as an in-house tribal counsel or in a federal or state position.”

He wants to make a positive impact as he works to ensure sovereignty.

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“He spent the entire time answering my questions and giving me advice,” Dienhart said. She described the day spent with the justice in conversation and exchange of ideas as the highlight of her mentorship. “It was one of the many times I realized how lucky I was to have Justice Anderson as a mentor,” she said.

Dienhart said that Anderson described mentoring as “having one hand reaching up and the other reaching down. The hand reaching up, you extend to those people who are your mentors and who are there to help pull you up the ladder. The hand reaching down is there to help pull up those whom you are mentoring. I will always keep this image in mind and do my best to help pull others up the ladder I hope to climb.”

Developing a mutual relationship in which mentor and protégé learn from one another in and out of the courtroom and the law office is at the heart of the Mentor Externship Program at the University of St. Thomas School of Law.

Dienhart spent hours observing Anderson in court, in discussions in his chambers, at meetings and at speeches in the community. While the legal knowledge she gained was crucial, the professional relationship she developed and the inspiration she received from the justice’s work made the experience great, she said.

“The first time I went to meet him in his chambers, he could tell I was nervous and he told me I should always remember that judges are people, too,” she recalled. “I really enjoyed observing Justice Anderson’s dedication and commitment to being of service to others and, specifically, the legal community. Observing his kind of commitment was not something I expected to see but that I truly admired.”

Anderson’s current protégé, first-year law student Krista Griffith has had similar experiences. In addition to her courtroom observations, she said, “I have had the opportunity to interact with him on a personal level. I enjoyed discussing everything from issues of faith to stories that influenced him on his personal and professional journeys. Since I was drawn to St. Thomas because of my understanding of law as a vocation, I was interested in finding outlets to discuss issues relating to the intersection of faith, morality and law both inside and outside the classroom. I appreciate Justice Anderson’s direct and thoughtful responses to these questions, as well as the stories he used to illustrate his points.”The Mentor Externship Program allows students to both understand and appreciate that relationships are critical to the practice of law. Whether a student is paired with a Supreme Court justice, a transactional lawyer,  litigator or an executive director for a nonprofit, she learns how to manage a relationship with a lawyer or judge, while she witnesses how her mentor manages relationships with clients,    colleagues, adversaries and others in the justice system.

A Leader Among Law Mentorship ProgramsNow in its ninth year, the program is acknowledged nationally as a leader among law mentorship programs. The program twice has been recognized by the American Bar Association. In 2005, the program received the E. Smythe Gambrell Professionalism Award, which recognizes projects contributing to the understanding of professionalism among attorneys. That same year, it was one of three national finalists for the ABA award on innovations in teaching professionalism.

The program has three specific objectives: foster the highest levels of professionalism in students, create an experiential window into which they view the world and create activities in which students reflect and integrate their experiences. Through these three objectives, students are encouraged to explore the various relationships in law. In addition, students are encouraged to better understand how to manage relationships with mentors, peers, potential clients, legal systems and communities.

Other law schools and law mentor programs look to the Mentor Externship Program as a model. “I have closely observed the St. Thomas Mentor Externship Program for some time,” noted Keith Faulkner, vice dean for administration and external relations at Campbell University’s Norman Adrian Wiggins School of Law. “The mentor externship experience is a real complement to St. Thomas’ program of legal education and an excellent model for other schools to follow.”

Melvin F. Wright, executive director of the Chief Justice’s Commission on Professionalism, added: “Many of our law schools educate students regarding the law, but after graduation they are not yet ready to practice law. They need a mentor, someone they can turn to for guidance, war stories and friendship. The easiest thing you can do practicing law may not seem so easy, if you have never done it before. A good mentor can help. It is also my experience that a good mentor is not just there during the first couple of years but will be there throughout the  protégé’s legal career.”

All 479 students at the School of Law have mentors for each of their three years: 15 hours are required for first-year law students and 25 hours for upper-level students. Program requirements include: discussing specific topics and experiencing specific legal activities with the mentor; logging all of those activities online using software the law school created to mimic billing and attending a class in which an array of professional issues and skills are addressed, such as networking and relationship in law, time management and goal setting and civility in the legal profession. In the fall semester alone, 91 students observed an appellate argument, 45 students watched a civil motion and 44 students observed a lawyer-client meeting.

The 471 mentors paired with a student (a few have more than one student) this year included five justices of the state Supreme Court and 42 state and federal court judges. The pool of mentors also includes 123 different practice areas and 92 mentors in public interest practice or government service. Thirty-nine percent of the mentors are women, a higher percentage than in the profession overall. Because they have enjoyed their experiences, 80 percent of the mentors agree to mentor again the following year.

Enlisting Outstanding Lawyers and JudgesAdministrative leadership has been critical to the program’s success, and is one of many distinguishing features. “Lots of schools have a ‘take a student to lunch’ program and then they don’t see each other again. That’s not what we wanted,” said U.S. District Judge Patrick Schiltz, a former St. Thomas law professor who launched the idea for the program.

“I was reflecting on what law schools could do to educate students to become more ethical attorneys,” he said. “What shaped my values was not so much what mentors said but in the example they set for me.”

Schiltz’s original idea has evolved over time with each of the subsequent program leaders: Professor Neil Hamilton, who heads the law school’s Holloran Center for Ethical Leadership in the Professions, Assistant Dean Lisa Montpetit Brabbit and the program’s current director, Dave Bateson. Each director continued to build and shape the program in response to student and mentor feedback, while, at the same time, strengthening the critical elements of quality control. To date, more than 3,500 pairs have participated in the program.

Schiltz said that when he became a federal judge (in 2006) and met lawyers, “they would rave about the program. A lot has been written about the gap between the bar and the academy. There’s a real interest by the bar about being made part of the process of educating the next generation of lawyers. The program gave them a concrete way to do that, to participate in a hands-on way. That’s very rare.”

The response from the Twin Cities’ legal community has been remarkable. The time attorneys invest as mentors amounts to millions of dollars they could have billed. For judges, it comes out of their own time. The commitment from mentors also attracts attention from other lawyers and judges around the country who seek to build a similar program and replicate the School of Law model.

Since the law school had its first graduating class in 2004, the program leaders had to approach graduates of other law schools to find a pool of mentors. “We don’t want it to be just an alumni program,” Brabbit said. “We want a program that draws on diversity in all its forms.” Bateson said he inherited a strong mentor list and has built on it the same way Brabbit and Hamilton did: one call and one personal e-mail at a time. “We do not use mass e-mails,” he said. “Personal connection and outreach mean a lot to our mentors. Personal outreach also helps us to guarantee that our mentors are a good fit. We work hard to get into the community to identify and connect with possible mentors.”

Dean Tom Mengler couldn’t be more pleased with the Mentor Externship Program. “The significant investment in resources has allowed the project to exceed our expectations,” he said. “It has not only accomplished the development of professionals, but we’ve permeated the legal community by enlisting outstanding lawyers and judges to serve as mentors. The program really is a flagship for the School of Law.”

The law school’s vision, Mengler explained, is to develop a law student into an outstanding professional in the context of an institution of faith, to encourage students to draw on their faith and values.

“We help students ask the question: What is my purpose in life and how does becoming a lawyer help me serve that purpose?” Mengler said. “Being a lawyer is not just a job. It’s a calling. That’s how we view it. It’s a vocation. We want students to make progress as a professional and a person in three years. We will encourage a relationship with a lawyer or a judge who cares about a student’s development.”

Understanding the Rhythm of a Law PracticeThe School of Law’s commitment to professional identity development begins the day the student starts law school. The director matches first-year students with attorneys who can address issues that first-year students discuss in their classes, such as torts or civil procedures. With second- and third-year students, particular interests and professional goals become the basis for the pairing.

“I had wonderful mentors in my law firm as a new lawyer,” Bateson said about his former employer, Rider Bennett. “When St. Thomas opened and announced this mentor program, I volunteered. Now when I recruit mentors, I tell them how much I got out of mentoring and what a rewarding experience it can be to volunteer.”The program helps students understand the nature of a law practice – the rhythm, as Bateson calls it. “Is it compatible with your lifestyle?” he asked. “You can have a candid conversation with your mentor about the nature of the work and the workload.”

Ultimately, the program helps a law student make the transition to become a professional. “Nobody wins when a lawyer is not adequately prepared,” Bateson pointed out. “It’s not good for anyone: the clients, the court system and the people on the other side.”

Hamilton says the Mentor Externship Program builds upon the social contract among generations in which those more experienced find  purpose by helping the newer generations. “The program allows the more senior members of the profession to share important ideals and traditions through mentoring and modeling and one-on-one discussion in a way that textbooks and classrooms cannot,” he explained.

Mentors also recognize the impact mentors had on their own professional formation. “In high school and college I had a number of mentors like former Gov. Harold LeVander, former Macalester professor G. Theodore Mitau and former U of M Law School Dean Robert Stein,” said Justice Anderson. “I believe in mentors. I believe in heroes. I made a promise to myself that if I could ever give back, I would.”

Teaching and Learning TogetherSam Myers is a School of Law mentor who specializes in immigration and employment law in a private practice. He recalled that as a young lawyer just out of the Coast Guard, he settled in the Twin Cities: “I went to 100 different places and only five people took the time to talk to me. One was the general counsel to General Mills. He let me come in during the middle of the day and was very engaging and made suggestions. I felt that’s the way you’re supposed to be in a collegial profession. You’re supposed to help others and you’re sure as heck supposed to help people who are law students.”

He talks to his protégés about values, professionalism and why they chose law school. “Both sides learn a lot,” he said. “Students ought to come out of it with a very good sense of what a lawyer does every day. Students learn practical answers to questions they might think too dumb to ask.

“They learn a way to practice law as an ethical person,” Myers continued. “What if you have a conflict of interest? Do you withdraw from the case or having a conference with clients?”

Because Myers has a small office, his protégés sometimes get practical hands-on experience. Such was the case with two of his protégés, Marie Reigstad, 3L, and Katie Perleberg, 2L. They worked on a pro bono case he was handling. “It felt good to actually use the writing and research skills I learned in classes,” Reigstad said.In addition to the work and the hours spent observing Myers, Perleberg said she talked to him about leading a balanced life. “I learned that it is possible to have a life beyond the day-to-day job of a lawyer,” she said. “Sam is very involved in the area law schools, instructs in many CLEs, does a lot of pro bono work and has hobbies outside the legal world. He really seems to achieve balance in his life and encourages his employees to strive toward that, as well.”

Reigstad’s mentor relationship will continue as she moves to the next stages of her career. Having the chance to see Reigstad’s professionalism and promising legal skills, Myers called her in for an interview with him and his colleague. After graduating in May, she became an associate in his firm. “I couldn’t be more thrilled,” she said.

Mark Ponsolle, an assistant Ramsey County attorney in charge of the human services division, offers an extensive list of experiences for his protégés including observing paternity cases, civil commitment cases, depositions, appellate arguments at the Supreme Court or Appeals Court, county board meetings and legislative hearings at which he or an associate may testify. “After testifying, I remind them that democracy isn’t always pretty, but it usually works,” he explained. “Someone like me, the son of a bottler at a brewery, has to be listened to (by the legislators) for five or 10 minutes. They (the students) appreciate the democratic process which is unique from the rest of the world.”

Thirty-plus years into the practice of law, Ponsolle maintains his enthusiasm. “I need to give back, and I enjoy it so much,” he said. “I enjoy the interaction with the law students. I’m amazed how smart they are. They’re so curious, they want to do well and they feed me energy.”

Ponsolle said the Mentor Externship Program bridges the gap between what students read in a book and what really happens in the practice of law. “In law school, they read a case, but they don’t see how it plays out. Without the program, you’re hit with stuff you’ve never seen before.” He added that the          St. Thomas program includes a “beautiful” component that other programs and clinics don’t have. “Students can ask real questions of real lawyers in a non-interview, non-employment and non-threatening situation: How do I handle this? How do I see ethics?”

Karen Hatfield, a civil litigator in the 18-member firm of Hansen, Dordell, Bradt, Odlaug & Bradt in Arden Hills, Minn., and Menomonie, Wis., takes her protégés to arbitrations, depositions and trials, including one in which she represented a homeowner in a slip-and-fall case. “The plaintiff was very dramatic and he made it fun to watch,” Hatfield said. Her protégé, Terisa Syvertsen, 3L, “got to see the styles and interactions of a lot of different attorneys and the judge. My mentee was just as fired up as I was at the trial.”

Recalling her own experiences with a mentor, Hatfield said, “They can teach you law in the classroom, but it’s not the same as being inside a courtroom. What you can’t teach is where the jury sits, and where to position yourself in the courtroom. You don’t see what it’s like to have that real pressure, for example, when someone’s civil liberties are on the line or a great deal of money is at stake.”

For her part, Syvertsen, who has had Hatfield as a mentor for two years, said, “I have learned that being a lawyer takes dedication and hard work, both outside of work and while at work. Karen is a very family-oriented person while remaining dedicated to her job responsibilities and her role at the firm. She has taught me the value in balancing personal life with work. She is a role model to me.”Planting ‘Seeds’ That Bear FruitThe mentor externship allows students to grow and develop in their unique ways, true to their own core values. As a result, every student and every mentor has a unique experience. The program’s founders and the people who run the program now hope those experiences will make them better attorneys and better people.Krista Griffith said that the time she spent with Justice Anderson “has equipped me to become a more effective lawyer. I appreciated his willingness to challenge my responses to his questions on numerous topics, such as my beliefs regarding the intersection of faith and law. These conversations stretched me and provided me with an outlet to discuss concepts that arose in classes, reflect on how such beliefs might impact legal practice and learn to articulate a coherent position on these matters.”In addition to the mentoring that Justice Anderson provides to a student like Griffith, the program has its own responsibility and commitment to help each student advance. Program administrators review each student entry in the mentor log – more than 7,000 entries each year. This exercise accomplishes two goals: first, reviewing each log provides necessary quality control, and second, commenting on student entries allows program administrators to further shape the experience through feedback and perspective.

Bateson, who reviews the experiences and conversations logged in the program, keeps the big picture in mind.

“I see what our mentors and students accomplish together and I realize we’re planting seeds,” Bateson said. “Each of the seeds grows differently and bears fruit at different times, but they all eventually flourish.”

Author: Doug Stone, of Doug Stone Communications, L.L.C., is a former journalist at the StarTribune, where he covered legal affairs, and at WCCO-TV, where he was assistant news director. He also was the late Sen. Paul Wellstone’s first press secretary in Washington, D.C.

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The answer is “yes.” Mentoring is actually one of the very best investments lawyers can make with their time and a great investment of resources for any organization. The best way to understand why mentoring matters is through the lens of the functions each mentor can provide to each protégé. These functions are the roadmap to a new lawyer’s success. There are really three key mentoring functions: career mentoring, psychosocial mentoring and professionalism mentoring. These three functions provide a new lawyer with the practical skills needed to succeed, and a more developed professional identity.

Career Mentoring This function is the pathway for a law student or new lawyer to move from understanding the law to actually practicing it. Mentors teach their protégés the unwritten rules of our profession – from professional decorum and attire to where to sit in court. Mentors help their protégés develop a network and role model the interpersonal skills necessary for marketing. Most importantly, mentors role model for their protégés the essential truth that a lawyer’s professional success is about relationships with clients, colleagues, opposing counsel and courts.

Psychosocial MentoringMentors are a safe harbor for the new lawyer to discuss the challenges of our profession and the stresses of handling important work for our clients. Mentors help their protégés overcome the mistakes that all new lawyers make, and help the new lawyer build a sense of belonging and purpose in our profession. Studies show that lawyers are more pessimistic than the general public. Psychosocial mentoring is the mentor’s contribution to overcoming the protégé’s natural disposition to doubt his or her ability to succeed.1

Professionalism MentoringIn my experience, every student I have dealt with wants to meet the highest levels of professionalism. Most new lawyers, however, have no idea what that means in practice. Mentors role model professionalism in action. They demonstrate how to react when faced with difficult opposing counsel. They help the new lawyer manage client expectations and affairs promptly.

The professionalism function is also about the conversations mentors and protégés have about the very meaning of our profession. Mentors and protégés challenge each other about personal core values and how they impact the lawyer’s decisions. These challenges are dialogues about the limits of zealous advocacy, or our pursuit of fees and income. Mentors challenge their protégés about the obligation to do pro bono work and to improve our profession and communities. In short, the professionalism function is at the core of helping each new lawyer understand what it means to take the oath to join our profession.

When a law student or new lawyer gets all of these mentoring functions, that lawyer is better prepared for the actual work she must do, has more confidence in her ability to do the work, and is better able to meet the highest levels of professional standards. As a whole, mentoring creates the type of new lawyers you would expect to succeed. Research shows that is exactly what happens. People who have been mentored report much better career outcomes than those who have not been mentored. They are better paid, promoted more often, happier with their current jobs, and happier with their careers as a whole.2 Those who have been mentored have more confidence that they will continue to advance in their career and are more likely to stay in their current employment.3

While the empirical study of mentoring is still relatively new, there is ample evidence that mentoring makes a difference for any professional. That difference is amplified in the legal profession. Mentoring addresses both the practical and personal developmental gaps for new lawyers. It is a pathway to producing a next generation that is happier, more professional and performing at the highest levels. Mentoring may require an investment of time and other resources, but it is an investment that yields a return for years to come. The real question is not “why should any of us mentor,” it is really “why shouldn’t each of us mentor?”

Author: Dave Bateson directs the Mentor Externship Program at the School of Law. Visit the mentor blog at http://blogs.stthomas.edu/lawmentor.

1 – Seligman, Martin E P; Verkuil, Paul R; Kang, Terry H: “Why Lawyers are Unhappy” (2005) DeakinLawRw 4; (2005) 10(1) Deakin Law Review 49.2 – Ragins, Belle Rose, and Kram, Kathy E. The Handbook of Mentoring at Work: Theory, Research, and Practice. Sage Publications, Inc. 2007, pg. 53. Citing:  Allen, T. D., Eby, L. T., Poteet, M. L., Lentz, E., & Lima L. (2004). “Career  benefits associated with mentoring for protégés: A meta-analysis.” Journal of  Applied Psychology, 89, 127-136.3 – Id. at 61. Citing: Higgins, M. C., Thomas, D. A. (2001). “Constellations and  careers: Toward understanding the effects of multiple developmental

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Beyond the opportunity to serve others and share whatever practical wisdom I’d acquired over more than a quarter century as a practitioner, I saw a mentor program concept as a chance to integrate my faith with investment in the future of my profession. Aristotle proposed that eudaimonia, or human flourishing, was the ultimate object of character formation. As a Christian, I am inclined to see the purpose of human “being” as more than eudaimonia. The well-lived and faithful life is one of character formed by the future God has promised, doing the things that bring his wisdom and reflect his glory into the world. The habits of heart, mind and life to which we are called form us over time into people who can freely take these tasks forward in our communities of influence.

From its inception, the award-winning Mentor Externship Program was fueled by the School of Law’s distinctive mission to “integrate faith and reason in the search for truth through a focus on morality and social justice.” Its unique approach combines individual mentoring experiences facilitated through practicing attorneys and judges. Structured discussion around readings and interactions are facilitated by a faculty of practitioners and law professors, each of whom is committed to the school’s mission. Addressing the release of the U.S. News annual ranking of law schools, Dean Thomas Mengler recently stated that rankings take a back seat to mission fulfillment. The litmus test for evaluation of our performance is straightforward: “Are we being successful in assisting our students and graduates to lead purposeful lives, in the service and leadership of their communities?” The desire to develop servant leaders who exemplify the highest ideals of the profession lies at the heart of the program.

The Mentor Externship Program has been a strong contributor to the impressive rise of St. Thomas in the rankings, as well as to its reputation for excellence among knowledgeable professionals and employers. It affords our students a distinct edge in a highly competitive job market. I hold this view for three principal reasons:

RelationshipsFirst, the landscape of practice is dominated by human interaction and relationship. Our graduates have been grounded in the capacity of these relationships to impact their careers, for better or worse. They have considered not only the identification of relationships upon which career satisfaction depends, but also the skills and habits required to achieve excellence in them. When this awareness is demonstrated and effectively communicated to prospective employers, it instills confidence that the person under consideration possesses the tools to not only survive in the real world of practice, but also to thrive.

Well-BeingSecond, graduates understand the role of pace in nurturing a career spanning decades. They are better equipped to productively address the stress and personal demands of the profession. The potential for burnout attributable to prolonged, unrelieved stress is significant in a professional world with tendencies to prize the billable hour and to infer personal responsibility on the advocate for outcomes affecting others. Indeed, in national surveys, decreased anxiety and more personal time top the list of changes desired by young lawyers.

Understanding that spiritual, physical and relational needs contribute to one’s well-being and require care and proper attention is essential to remaining productive for an entire career. The Mentor Externship Program encourages students to identify and employ positive ways to meet their individual needs in all three dimensions of being and to recognize that those needs likely will vary over time. From an employer’s perspective, lawyers who understand the need for this kind of life balance will be less likely to succumb to the high rates of depression and chemical dependency that have plagued our profession.

PurposeThird, our graduates appreciate the focus of purpose. They understand the need for personal as well as professional integrity, and living and practicing in alignment with one’s core beliefs and values. Questions of ethics are part of the larger questions of life’s purpose and what it means to be genuinely human. Purpose is the key to maintaining equilibrium in the midst of contradiction and conflict as well as navigating competing deadlines and expectations. It enables us to bridge the gap between what we must do and who we could be. As noted by Dr. Henry Cloud, “The reality of life is that what we live on the outside is one that emerges from the inside, from our hearts, minds and souls.” Questions of purpose and meaning are ultimately ones of faith.

In our graduates, I see men and women better able to translate their legal competencies into meaningful and      purpose-driven careers and lives than those who have never had the opportunity to engage the profession and its practitioners in such an intimate and reflective manner. Author: Steven C. Tourek is senior vice president and general counsel for Marvin Windows and Doors. Previously, he was a 25-year litigator and co-founder of the law firm Winthrop & Weinstine. He also is a founding mentor and adjunct professor in the Mentor Externship Program.

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I didn’t understand how one couldn’t have water, and I still don’t. Kibera is home to perhaps a million people. The entire landmass is about the size of New York’s Central Park, but it’s much more densely populated, and there is no multilevel housing. The dwellings are, instead, ramshackle buildings made of corrugated steel. Most have only one room. Not only is there no running water in the homes or anywhere else, there are only a few public spigots, which are turned on infrequently. People must gather every pot or tub or basin they can find when the water is on, and stand in line for hours to access it. If they run out before the water comes on again they are forced to buy water somewhere with money they don’t have.It’s striking that I don’t worry about water in my everyday life in Minneapolis. Of course, there are so many other things I don’t worry about, or even think about, that I could list one after another. Traveling to a place like Nairobi makes one able to create such lists, makes one able to pay better attention to the things we so often take for granted – like having smooth, paved roads or having a meal with meat in it whenever we want.That’s one reason I traveled to Nairobi with my family last summer. My wife, Jennifer, and I have two children (then 10 and 7), and while we had both traveled abroad, our children had not and they were old enough to see and appreciate the world around them in important ways.We spent two weeks in Kenya visiting our longtime friends Charles and Darlene Coulston, who have lived in Kenya since the early 1990s. The Coulstons founded a school for former street children called Made in the Streets (MITS), for which they serve in an advisory role, as a great Kenyan staff runs the day-to-day operations. They were wonderful hosts for all four of us.I also traveled to Nairobi for other reasons. I serve on the board of directors for Viva North America, and while previously I had assisted with strategic planning for Viva’s international program team in Oxford, U.K., I hadn’t worked with Viva’s contacts on the ground. And, I’m interested personally and professionally in drawing greater connections between Minneapolis (and the United States) and Kenya. So I met with people associated with Daystar University, Compassion International (Kenya) and the local legal community.I was quite busy during my time in Nairobi – or, more accurately, I had periods of very high busyness and other times of real slowness. This is in keeping with the very Kenyan (indeed, African) way of working. On the one hand, Kenyans are great about wanting to spend time with friends and therefore don’t rush from one thing to the next as Americans tend to do. On the other hand, a corollary of this not-rushing is often a lack of advance planning. Thus, several meetings and training sessions that I conducted were not set up fully (or even at all!) until I actually arrived in Kenya, obtained a Kenyan cell phone, and called or texted my various contacts. The result was that some days were open with no engagements, other days became full of more tasks than could be accomplished, and a couple of hoped-for meetings never happened at all.This quite-different sense of time is simultaneously empowering and frustrating. It enables one to forge deeper relationships, to make time for people and to allow days to unfold as they may. At the same time, this Kenyan sense of time too often inhibits advance planning and hinders problem-solving (and at times creates problems) by preventing a predictable schedule of events. For example, it was impossible for me to schedule a meeting with one important organization in Kenya because they failed to reply to me before I departed the United States. When we finally talked by phone I only had two to three days left in the country and was unable to get into the city again. This unfortunately prevented what might have been a very productive meeting – although the organization invited me to come see them “next time I’m in Nairobi”!Discussing Leadership and Human Rights at MITSMost of my days in Kenya were spent at MITS. The students were delightful – eager to learn, friendly and helpful, especially to my own two children. I enjoyed teaching classes to the MITS students. One day we talked about what it meant to be an attorney; another we talked about problem-solving more generally; and another couple of days we worked on creating and delivering oral presentations – from topic selection to Powerpoint creation to delivery of oral reports.The leadership team at MITS is equally a pleasure to be around. I had several one-on-one meetings with staff members, including sharing meals with those in key leadership positions and building friendships as we discussed strategic planning.Compared to many nongovernmental organizations, MITS is quite mature – in its transfer of authority and decision-making to Kenyans, in the training and planning of its staff, in its vision to provide both education and vocational skills to its students for effective transition to independence, and in its relationships with foreign donors that provide ongoing support. But, like any organization, it faces challenges that merit organizational reflection. Some are connected directly to its strengths (e.g., foreign financial support is beneficial, but without adequate planning, could easily lead to dependence or even loss of control by Kenyans), and others arise from different circumstances (e.g., a land-dispute with a powerful government official that is not being addressed adequately by the legal system). It was enjoyable to talk through such issues with them.In addition to individual meetings, Francis Mbuvi, the lead administrator at MITS, asked me to teach the staff team. I spoke about human rights – both from an academic perspective, including the creation and enforcement of rights at local and international levels, and also from a pragmatic, everyday angle. We had quite deep discussions about the theoretical structure of rights and whether that matched their actual experience in Kenya (e.g., does is make sense to say that a person has a right to land if a stronger party can take it without fear of legal reprisal?) and even what things qualify as rights (e.g., what does a right to education look like, especially for street kids and especially if a government does not have adequate means to provide it universally?)Solving Problems on a Local LevelAnother highlight of the trip was the opportunity to meet many wonderful people who work in Kibera slum, leading independent Christian-inspired projects to bring hope to desperately poor children. My connection with these organizations came through Viva, which partners with these groups through the network they have formed (Children at Risk Prayer Fellowship). Some of the projects opened their doors for me to see the work they do every day, and a great many more gathered for a session on leadership and problem-solving. My wife, an early childhood specialist, and I held a training session on a Saturday morning. Thirty people had RSVP’d, but, as the session began, the room kept filling until it was overflowing with 55 to 60 people, almost all of whom were leaders of different organizations.As part of the session, my wife taught about child development, how children learn and what skills children need in life. Building on this, I taught more directly about problem-solving and leadership. The audience was especially intrigued as I joked that I could help them think like attorneys in only a couple of hours. I asked them why they would ever hire an attorney, and they rightly responded that they would do so only if they had a problem. This directly set up a lesson on the attorney as problem-solver and, more pertinently, the problem-solving skills that the audience members could use.Through using standard methods from first-year law school classes – teaching the IRAC method of issue, rule, application and conclusion – combined with drawing examples of real, common problems faced by many Kenyan NGOs – gleaned from my time in Nairobi – we were able to have an extremely productive conversation about how to solve problems and, maybe even more importantly, how to prevent problems from developing in the first place. Like most good sessions, we wanted more time together, because the audience wanted to talk further about how to properly “issue-spot” and how to think of creative solutions. But we were all grateful for the time that we did have.As I have since reflected on my time in Kenya, conversations with Jackton Omondi, a staff member at MITS, have provided useful further contexts for me. During a drive into the city, I asked Jackton what I should tell the St. Thomas law students about my experience in Kenya. He gave many insightful answers – more than I have space to write here – but one in particular resonated with me. He wanted the students to know that Kenya itself has the resources to solve its own problems, though it still needs help. That is, the Kenyan people are capable and willing to solve their own problems. He is not so naive as to overlook the ongoing issues in the country, nor to fail to see the bribery, corruption and lack of material resources around him. But he insisted that problems could and must be solved locally, albeit with the assistance, training and guidance from outsiders – like me – in identifying and working through problems.In my classes at St. Thomas, I regularly emphasize the ongoing tension between particularity and universality, between local and international solutions; hearing Jackton describe these tensions in his own words and through his own lived experiences underscores the import of those discussions.With GratitudeI also gained perspective through sharing meals with my friends in Kenya. One time, Jackton and his wife, Millie, invited our family to eat at their home, where we sat in the main room around the coffee table and talked before dinner. When the food was ready, Millie kindly brought a wash basin for our hands, and she then transformed the space into a table set with good food. She brought out lentils, cabbage and a batch of chapati (an Indian flatbread made of flour and oil). We had fresh papaya for dessert. It was a real treat.As we ate, Jackton smiled at his wife and infant son, the guests in his home and the food set before us. He talked to my children about his life growing up in the Mathare slums. He remembered the first time he ever had shoes: he was 17, and his mom finally had saved enough money to buy him a pair of flip-flops. They cost 35 cents. He was so proud that when it rained he wore the flip-flops on his hands instead of his feet, so they would not get stuck and lost in the thick Kenyan mud. “And now look how blessed I am,” he said as he gestured around his house.He picked up a piece of the warm chapati that Millie had prepared. He told my children, “Wow, I’m rich. You know how you Americans have turkey for Christmas, right? Maybe once a year? When I was growing up I knew it was Christmas because my mom would make us chapati.” (It was too expensive to buy the ingredients, especially the oil, at other times during the year.) “But now look at us,” he said. “We have chapati often. God has really blessed us.”That story, in many ways, captures how generous my friends in Kenya were. Jackton, Millie and many others shared the best they had with me, and I am better for it. I hope they can say the same about me.

Author: Associate Professor Joel Nichols teaches Contracts, Family Law, Human Rights, Religious Liberty, and Remedies at the School of Law. He also is a Senior Fellow at Emory University’s Center for the Study of Law and Religion.

Viva:  Christian Resources Help At-Risk Children

One out of every five people on earth is an at-risk child – at risk for malnutrition, forced labor, disease, drug addiction or abandonment. More than 1 billion children will be born during the next 10 years, and 90 percent will be born into families earning less than $1 a day. Every day, between 25,000 and 30,000 children under the age of 5 die – most from preventable causes. And countless more lack adequate food, immunizations and access to education.Many Christian individuals and projects are caring admirably for children at risk, and their passionate and committed work is vital. Yet the reach of any single initiative is limited, and the pressure of simply meeting the daily needs of at-risk children often renders tackling the roots of problems impossible. To compound matters, staff burn-out is very high. Local, in-country Christian organizations and programs that are trying to help at-risk children often lack the resources, expertise and infrastructure that the programs need to survive long term. In fact, research indicates that a very high percentage of new projects serving at-risk children fail within their first two years of existence.Viva partners with local networks of Christian ministries to give vulnerable children the chance of happier, healthier and brighter futures. (I serve on the board of directors for Viva North America.) Viva’s unique model focuses on bringing disparate and disconnected projects together, thus providing them with a bigger circle of impact and enabling those projects to effect widespread, comprehensive and sustainable change. Viva’s vision brings these projects together so the staff members will be trained, resourced and equipped collectively to offer greater numbers of children a better standard of care. Put simply, Viva identifies local Christian projects that help at-risk children and assists them in increasing the quality and capacity of their outreach.Viva aims to produce: changed children’s lives, thriving workers, sustainable projects, engaged churches and influenced decision-makers. Viva achieves these goals through a process of mapping and connecting local care-providers into networks – and then working with those local networks to provide measurable solutions to the problems facing children at risk.And this is working! Viva serves more than 8,000 projects in more than 40 Christian networks worldwide, including in Nairobi, Kenya, through collaboration with the Children at Risk Prayer Fellowship network. This is the network I visited in July 2009. These projects are seeing tangible results through their increased collaboration, and they are providing better care to more children as a result of working together.Viva’s international center is in Oxford, U.K., and it has regional centers in Latin America (San Jose, Costa Rica), Africa (Kampala, Uganda), Southeast Asia (Kuala Lumpur, Malaysia) and India (Delhi). To find out more, visit www.viva.org.

‘Made in the Streets’ Rescues Kenyan Children

Many children in Nairobi, Kenya, begin their lives on the streets before they are 10 years old. There are perhaps 60,000 street children in Nairobi, though accurate numbers are hard to come by. Children head to the streets for a host of reasons: because one or both of their parents have died from AIDS, because the household simply has too many mouths to feed, because a family member beat them or tried to kill them or for other reasons.The streets on which they live are not what we know in the United States. They are unpaved dirt, usually lined with barely standing structures of corrugated metal. The street doubles as a garbage dump; it is covered with refuse. Street kids often forage through these dumps for food, or to find small pieces of coal to resell for a small amount of money. Since they have no shelter, when it rains they try to find plastic garbage bags to put on their arms and bodies to stay somewhat dry. They don’t have beds, of course, so street kids might sleep under a truck, if they are lucky. For sleeping bags they use their gunny sacks – the same bags in which they have been collecting trash and food during the day. The streets aren’t safe, so they have to find enough money to pay the leader of the “base” for protection at night. And there isn’t water, so they have to find enough money to buy something to drink.The good news is that God hasn’t forgotten these children. In fact, he specifically promises to lift them up. Psalm 113: 7-8 says:

God lifts the poor from the dust and the needy from the garbage dump.He sets them among princes, even the princes of his own people! (The Message)

Made in the Streets (MITS) is a Christian organization devoted to rescuing children from Nairobi streets. Most of my days in Kenya were spent at MITS. Founded in 1995 by my friends Charles and Darlene Coulston, MITS works directly in the Eastleigh slum and runs a school on the outskirts of the city, in Kamulu. At any given time, about 50 former street kids live at Kamulu in a boarding program. They have to give up some of the bad habits learned on the streets and conform to the structure of a school environment so they can learn basic literacy and educational skills, renewed social skills and sufficient vocational skills to obtain an internship and, eventually, a job after leaving MITS. Former students have become chefs, hair stylists, computer technicians and more. MITS sends a clear message to these street children that God has plans for them and will lift them up out of the garbage dump.MITS is thrilled to have such success stories. There are 24 staff ministers and volunteers (including some staff who were former MITS students and former street kids); almost all are Kenyan. Find out more about MITS and read about the students’ life stories at www.made-in-the-streets.org.

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1. Navajo Nation Professor Scott Taylor serves as one of five commissioners on the Navajo Tax Commission and does ongoing work with the Navajo Nation. He has testified before the U.S. Senate Indian Affairs Committee on behalf of Native Americans.

2. Costa Rica Professor Teresa Collett is working with The Inter-American Commission on Human Rights in San José for the promotion and protection of human rights.

3. Brazil Associate Professor Mariana Hernandez-Crespo, originally from Venezuela, is the founder of the St. Thomas International Alternative Dispute Resolution Research Network. To learn more about IADR, turn to Page 18.

4. England Stephanie Aiyagari ’04 works in the U.S. immigration practice area at Le Gall & Aiyagari L.L.P. in London.

5. Switzerland, Ireland and Lebanon Associate Professor Virgil Wiebe co-founded the Cluster Munitions Coalition, a network of NGOs, faith-based groups and professional organizations, in 2003. His work has taken him to Ireland, Switzerland and Lebanon.

6. Uganda Professor Ann Bateson led the transformation of the Ugandan legal system by helping to compile, revise and publish the Laws of the Republic of Uganda (a 28-volume undertaking).

7. Yugoslavia Marie O’Leary ’06 is part of the defense team at the International Criminal Tribunal at The Hague. You can read more about her work at [LINK].

8. Iraq Capt. Jaime Espinosa ’07 is a U.S. Air Force liaison officer to the Central Criminal Court of Iraq.

9. Iraq Lt. Col. Johanna P. Clyborne ’05 is the deputy of intelligence with the 34th infantry in Basra and a language manager who oversees 1,300 linguists.

10. Kenya Professor Mike Paulsen is spending spring semester at Daystar University in Kenya where he is helping to develop their legal education program.

11. Micronesia Allison Laffen ’05 is an attorney with the Legislative Counsel for the Congress of the Federated States of Micronesia. She drafts legislation, advises members of Congress and represents Congress in matters brought before the Supreme Court.

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Working at the Tribunal

The tribunal was established by the United Nations in 1993 in response to the atrocities that were committed in the former Yugoslavia, and was the first such temporary commission to be established. While it was designed to prosecute “big fish,” including Slobodan Milosevic and Radovan Karadzic, the tribunal has indicted 161 individuals. O’Leary is part of the defense team for Vlastimir Dordevic, who has been charged with persecutions on political, racial or religious grounds, murder, deportation and forcible transfer. Defense teams are made up of three to seven people, each including a lead attorney and co-counsel, and based on funding, a few team members serving as legal associates, case managers, investigators and a translator. These teams serve as public defenders, since most defendants could not fund their own defense. These cases are tremendously complex. Cases take a minimum of a year to try, and “one has been going on for four and a half years,” O’Leary said. Judgments can take months to write. In fact, one was 1,700 pages long.

When court is in session, O’Leary typically spends part of her day in court assisting the attorney, especially with the management of exhibits, which are all handled electronically, and with transcripts. While legal associates generally don’t examine witnesses, O’Leary has received special dispensation for this trial, and has conducted direct and cross examination of witnesses.The remainder of her time is spent drafting motions, reviewing documents, compiling evidence and organizing case materials. Since this case includes 10,000 pieces of discovery and 115 prosecution witnesses, organization is a huge job. “It’s a lot of work,” said O’Leary. “It’s nontraditional in rules and settings – for example, the tribunal uses a mixed system of adversarial and common law – but the essential legal duties are the same as they are in the United States.”

O’Leary at the School of Law

After she earned a journalism degree from St. Thomas in 1999, O’Leary worked as an editor at a marketing agency, did some freelance writing, and then was the marketing director at a Catholic high school.“I was exposed to a lot of legal issues in marketing environments,” she said. “Since I always wanted an advanced degree, going to law school seemed practical.”O’Leary thought she’d focus on intellectual property but was sidetracked when she worked at the Minneapolis City Attorney’s Office after her first year. “Working there was interesting, unpredictable, challenging and really attractive,” O’Leary said. The following summer, she worked through the Minnesota Justice Foundation at the 1st Judicial District Public Defender’s Office and stayed during the following semester. She did two short-term summer seminars on international maritime and criminal law. After the second seminar, she applied for an internship at the tribunal for the final semester of law school and was accepted.How does O’Leary describe her experience at UST Law? Excellent. “It was really fun – even thrilling – to be a part of something new. We could make the School of Law the way we wanted it to be.” For example, the Mentor Externship program did not have a policy to cover students studying abroad for a semester. So they wrote an addendum to the policy. “There was lots of flexibility to assist everyone to get onto their chosen paths,” she said. “That made the place something special.”Of course, the people make the place. Associate Professor Robert Delahunty was influential. “Taking International Law from him opened horizons for me,” she said. “He taught the course in a way that drew me in.” In addition, then-Associate Dean Jerry Organ and Assistant Dean Lisa Brabbit went out of their way to be available, supportive and positive. “And I made some of the best friends of my life in law school. I can’t say enough good things about my classmates,” she said.

The Road to The Hague

After her internship at the tribunal, O’Leary came back to Minnesota to graduate, take the bar exam and apply for jobs. An administrative job opened at the tribunal as the director of the internal bar association for defense, and she was hired in October 2006. “It was a great opportunity to see how international tribunals work and to meet people who work in these systems,” she said. But O’Leary wanted to do something more strictly legal, and was hired by the Dordevic defense team in December 2007. “I like that my job is not predictable. You never know what’s going to happen,” she said. “In that way, it’s like criminal law in general – the truth is stranger than fiction.” In addition, she appreciates the opportunity to work with the best and brightest from all over the world. “At any given table, there are no less than five to 10 nationalities and as many viewpoints,” she said. One of the major challenges of the job is simply being on the defense. “It’s the criminal defense team’s job to make sure defendants receive a fair trial and that guilt is proven beyond a reasonable doubt,” she said. “Media coverage makes that difficult. It’s hard to argue that the accused may not be criminally guilty when they are made out to be monsters.”Resources for the defense, both time and money, are hard to come by as well. The tribunal has a completion strategy that includes time-saving measures. “In some cases, the right to an expedient trial has been turned from a right to a burden,” O’Leary said.”Even if the defendant requests more time and waives the right, the trial won’t be delayed. You have to move as fast as possible.” In her current trial, they have been working at a very fast pace but, generally, have been fortunate to receive manageable deadlines.

Challenges notwithstanding, O’Leary is learning a lot. “I have a much better understanding of where international criminal law is today,” she said. “It’s very much in the infant or toddler stage, as we’ve experienced in this tribunal. We’re fleshing it out as we go. It will be interesting to see how the hard lessons learned will be applied in a permanent court.”Other lessons are more personal. “I’ve learned that everyone has their own perceptions, and that individual realities can be wildly different from person to person,” she said. “I’m really experiencing it here, listening to people who have gone through traumatic experiences and seeing all the different sides that can come out of the same event.” O’Leary sees many sides of these events clearly, especially the side that says that everyone – everyone – deserves a fair trial.

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The problem is false proxies – a quantitative, seemingly objective, measure that inaccurately reflects the truth and sends our efforts in the wrong direction. For example, and perhaps most importantly, money often serves as a false proxy – as a misleading guide to which job or house or trip is the “best.”

In my own field of criminal law, false proxies have led us far astray in many respects. For example, we use the weight of narcotics possessed as a proxy for the culpability of someone involved in drug trafficking. If you are holding a lot of drugs, you get a long sentence. However, this is a stunningly misleading indicator of the person’s role in the offense. It is the people who are least culpable – the mules who transport drugs for relatively low pay and insignificant street dealers and middle men – who are usually caught with large amounts of drugs, and who fill our prisons. Predictably, these mules, street dealers, and middle men are also the people who are most easily replaced, and they are, as the trafficking network continues unabated, run by sophisticated international players who know better than to drive a truck full of cocaine. By this false proxy we fill our prisons while failing to solve any problem.

A second false proxy is something we see clearly within the law school – the use of salary as a proxy for worthwhile employment. I worked at Baylor Law School for 10 years before coming to St. Thomas, and I still regularly hear from my students there. Often, it is the same refrain: The student is miserable in their high-paying job at a Houston or Dallas firm, and wants to switch to a more meaningful career in criminal law. Some of these students took the high-paying job out of necessity, to pay off loans. Others, however, took the job because of the status and prestige that went with that kind of position and the salary it brought. Two or three years of laboring more than 60 hours a week and having little to no agency over their work brought them to a rethinking.

Finally, St. Thomas School of Law itself struggles with a false proxy – the U.S. News rankings. As a newer school we face a special challenge, but the poor fit between those rankings and our mission strikes deeper than that. The commitment of our faculty, administration and students to making this school different in a way that is good for our students and good for the world, and the very positive results we have achieved, simply do not have a place in the rigid formula used by U.S. News to rank-order schools in terms of“quality.”

We can’t deny that these false proxies matter. As a prosecutor, it was very effective to stack up bricks of cocaine in the trial of a defendant – even if that defendant only earned $300 to drive that cocaine across town. As a law student, it is hard to escape the notion that a high-paying, big firm job is inherently attractive. As a law school, regardless of what we know ourselves to be, we instinctively want our school to be high-ranked.

Why are we programmed that way? It could be because raw numbers – kilos of marijuana, dollars per year, or a top-tier ranking – seem so objective, and therefore more “true.” It is alluring and easy to accept as normative a system in which one case or job or school is stacked above another.

However, what is good and meaningful and real is rarely found in what is alluring and easy. To reject false proxies means engaging in a deeper search for valuation – something that cannot be so easily reduced to a number.

As faculty at St. Thomas, we are in a wonderful position to challenge ourselves and our students to reject and re-examine false proxies – including those in their work (like drug weights), in their choice of vocation (salaries), and in the way they view our school (wherever it is ranked). It may be fighting upstream, but … we’ve become good at that.

Author: Mark Osler is a professor of law at St. Thomas. A graduate of William and Mary and Yale Law School, he is a former federal prosecutor who focuses his scholarship and advocacy in the field of criminal sentencing.

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As I explained to Father Dease and to Board of Governors’ Chair Larry LeJeune, I do this now for two reasons. First, I believe that the tenure of a successful law school deanship should last no more than about 10 years. This is my 10th year as dean of the School of Law. On June 30, I also will be completing my 19th year of continuous service as a law school dean. That’s a really long time to be a dean, and I am quite frankly ready to hand off my role to the next dean, who will bring new energy and new ideas to this excellent lawschool. I will have a chance to talk more about the transition plans for the School of Law and my own professional goals in the next St. Thomas Lawyer magazine, which you will receive this summer.

But let me say briefly now, I am honored to have served all of you, as well as our faculty and staff, for these 10 years. This community – its commitment to professional excellenceand its embracing nature – has far exceeded all my hopes and dreams. This issue of the magazine highlights some of the reasons why the School of Law is so fabulous. I also truly believe that there is a great future ahead for the School of Law. Just last month I had the pleasure of being in Washington, D.C., when we were welcomed to membership in the Association of American Law Schools, an event which marks our last major professional accreditation/membership goal. Beyond that story, in the news section you will see that our faculty was recognized on Princeton Review’s “Best Professors” list.

Our feature articles underline a few more points of pride. One article focuses on the several professors who are engaged in appellate and Supreme Court litigation and demonstratesthe significant role that faculty scholarship can play, not only in classroom teaching, but in development of the rule of law and a just society. Another article features faculty andstudent partnerships, showing just some of the ways that our faculty and students connect to enhance the law school experience. We recently have added to our curriculum the nation’s first Federal Commutation Clinic and its work is highlighted in a couple of our feature stories. Finally, we spotlight professors Ben Carpenter and Mark Osler and their important and exciting work.

Over the next several months, I pledge to dedicate my energy to the work of this outstanding law school and to the joy of serving as your dean. These almost 10 years have been incredibly happy years for me and my wife, Mona, due in significant part to the frequent opportunities to work with you.

Thomas M. MenglerDean and Ryan Chair in LawUniversity of St. Thomas School of Law

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Tinucci ’09 is the first point of contact for reporters who call Gov. Dayton’s office. She builds relationships with the Capitol press corps and with the national media on issues such as the state government shutdown last summer. She helps to answer questions, offers advice on the governor’s schedule, and writes and sends press releases, all with an eye toward advancing the governor’s goals.

“If you’d told me two years ago that this is what I’d be doing, I wouldn’t have known what it meant,” she said. “But I enjoy it and have learned a lot.”

A Different Path

Tinucci grew up in the Twin Cities suburb of Woodbury, and graduated from Cretin-Durham Hall in 2002.

She went to Loyola University Chicago, where she double majored in theology and theater with a minor in women’s studies.

Then came the question every college student hates: what should she do with a major in theology and theater? “The only logical next step was law school,” she smiled, “even though friends teased me that I didn’t really want to be a lawyer, that I just wanted to play one on TV.”

Tinucci’s overarching goal was to “bring a little justice into a small corner of the world,” she said. Theater and art can be transformational – and so can law. “I realized my skills might be better put to use as a lawyer than an actor,” she said. “They are just different ways to do the good work we’re called to do.”

A Different Law School

Tinucci applied to only one law school – St. Thomas. “St. Thomas appealed to me because of its unique mission and vision,” she said. “I wanted to be a part of that.”

She entered law school in the fall of 2006, and found the experience both challenging and engaging. “You spend your whole day with really smart, passionate people, reflecting on big-picture stuff,” she said. “I was constantly impressed with the work going on around me. I’m grateful for the opportunity – the people I met and the places I could go.”

One of those places was Rome. Tinucci studied there as an undergraduate, and participated in the School of Law’s first study-abroad program in Rome, a partnership with Villanova University School of Law. “I took two mission-based classes, studying things I care about deeply while living within walking distance of the Colosseum and the Vatican,” she said. “It was the best time ever.”

Professors Rob Vischer and Greg Sisk taught in Rome that first year, and had a strong influence on Tinucci. “I was so impressed with them that I took two additional courses from each,” she said.

Another source of inspiration was just across the street from the School of Law at the Interprofessional Center for Counseling and Legal Services, where Tinucci participated in its Community Justice Project. “I’d do law school all over if I could be a part of the CJP again,” she said. Through this project, Tinucci had the opportunity to enter family court and the juvenile detention center to meet with people who truly needed her help. That experience taught her volumes about the Minnesota criminal justice system, she said.

Associate Professor Nekima Levy-Pounds and Artika Tyner, then a clinical law fellow and now a clinical faculty member, impressed Tinucci. She now considers them colleagues and allies in the work they all are doing.

A Different Trajectory

After passing the bar exam in 2009, Tinucci looked around for her next step. “In August 2009, 11 Democrats were running for governor,” she said. After examining the field, she started working for Mark Dayton that month. “I drove the candidate around and staffed events,” she said. “It was a unique experience.”

After nine months on the campaign trail, Tinucci started doing communications and media work. “I thought I’d be legal counsel, but I found that working with reporters was my favorite thing about the job,” she said. After Dayton was elected in 2010, she became part of the transition team, and started work as his press secretary on day one of his administration.

Tinucci enjoys the mission aspect of her work. “It’s all about advancing this administration’s goals,” she said. “I’m a part of the conversation about setting goals and how to talk about and achieve them.”

The most challenging part of the job is the schedule. It simply never stops. “I’ve been busy for over two years. It’s both exciting and challenging,” she said. “Things happen every day to which we have to respond – everything from flooding in western Minnesota to fire fighting in northern Minnesota to the Vikings stadium to the government shutdown. It’s been incredible.” As someone with no experience in state government, Tinucci has had to learn fast. That’s a skill she developed in law school. “I learned to digest cases at night so I could answer questions about them the next day,” she said. “Being able to read and write quickly is a huge advantage.”

Tinucci thinks having a law degree prepares one for anything. “I learned how the governmental, political and justice systems work,” she said. More importantly, “I learned how to work in the world.”

And in the end, it comes down to the ability to make a case – to be an advocate – for a mission she takes to heart. “The role of government is to create a better state and to improve the situation for all Minnesotans,” she said. “The Dayton campaign slogan was ‘For a better Minnesota.’ That mission still guides our work. While not religious, the governor’s mission and vision are not unrelated to the vision of social justice at UST law. That’s this administration’s case, and it’s my job to make that case,” she said.

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Three years ago, a client asked a simple question that intrigued and stumped me: “What would happen to my estate if I conceive a child after I die?” Having never considered this possibility, I responded with the standard, “I’ll have to do a little research and get back to you.” I soon realized, however, that this question raised numerous issues and required much more than “a little research.” In fact, in the majority of states, there appeared to be no clear answers to these issues. When I joined the St. Thomas School of Law faculty in fall 2010, I had the opportunity to explore these issues more deeply. Indeed, what interests should a posthumously conceived child – a child not just born, but conceived,after a parent’s death – have in that parent’s estate?

Background

The ancient Romans had a simple rule to determine an individual’s heirs: identify all family members living when the decedent dies and, if the decedent’s wife is pregnant, wait to see if the child is born alive.1 No later than nine months after the decedent’s death, all possible heirs could be determined. This approach worked well for thousands of years. Then came cryopreservation, the ability to freeze genetic material and use it at a later date.

In 1949, scientists discovered that they could keep sperm viable by using glycerol in the freezing process. Four years later, scientists reported the first human pregnancy resultingfrom cryopreserved sperm. In time, the technology advanced beyond the cryopreservation of sperm. In 1984, the first child who developed from a cryopreserved embryo was born,and in 1986, the first child conceived from a cryopreserved egg was born. In 2004, a child was born who had been conceived from sperm that had been frozen for twenty-one years.

Today, researchers estimate that each year more than 30,000 children are born who were conceived from frozen sperm and almost 29,000 in-vitro fertilization transfers use frozen embryos. The freezing and thawing of genetic material is not the science of tomorrow – the technology exists, is being used daily, and is becoming more common each year.

Reasons for Posthumous Conception

Although the reasons that couples turn to assisted reproduction to achieve a pregnancy are self-evident, it may be less clear why an individual would use his or her deceased partner’s genetic material to create a child. To help put this in context, consider two scenarios. First, a newly married couple learns that the husband has cancer, and the treatment may leave him sterile. To preserve the possibility that they may have children together, he has his sperm frozen. Sadly, though, he does not survive the cancer treatments.

Second, a couple has a number of embryos frozen as part of the in-vitro fertilization process, and either the man or the woman dies unexpectedly. In each scenario, the survivor may not intend to remarry, but he or she still may desire to have a child. The survivor must decide whether to adopt, to use sperm or eggs from an anonymous donor, or to use his or her deceased partner’s preserved genetic material.

There are many reasons why individuals in these situations may use the deceased partner’s genetic material. Some may do so as a tribute to the deceased partner. Some may do so for religious reasons.2 Others may do so out of a desire to know the child’s genetic origin. Further, if the surviving partner becomes sterile, the use of a frozen embryo may be the only way for that person to have his or her own genetic child. Also, it often will cost  significantly less to use the decedent’s genetic material than to procure gametes from anew donor.

Finally, doing so may allow the child to inherit from certain individuals (including the decedent or other family members), to qualify as a beneficiary of certain trusts, or to receive Social Security or other survivor benefits. My research focuses on this last reason: under what circumstances a child may receive financial benefits as a child of the decedent.

Legal Issues

Posthumous conception creates many questions in trust and estate law. For instance, should a posthumously conceived child inherit from the deceased parent? Should it matter if the child is born more than one year after the parent’s death? Two years later? Ten years later? Should it matter whether the decedent consented to the posthumous use of his or her genetic material? Should it matter whether the decedent and survivor were married? What if the decedent had a will that provided generally for his children – should that include posthumously conceived children? What if the decedent’s parents had created a trust yearsearlier for their descendants – should posthumously conceived children be deemed their descendants? Should the answers change with respect to insurance benefits or retirement plan benefits payable to “issue”? Are posthumously conceived children eligible to receiveSocial Security survivorship benefits, worker’s compensation benefits, or wrongful death benefits? Should an executor, trustee, or custodian be liable for distributing assets before learning that a decedent left cryopreserved genetic material?

The legal interests affected can be grouped into two categories: (1) probate-related issues and (2) class-gift issues. The first category includes pretermitted-heir status under a state probate code, inheritance rights under state intestacy statutes, and other interests dependent upon a person’s right to inherit under state intestacy statutes. For instance, eligibility for Social Security survivor benefits depends in part on one’s status as an heir under state law. Similarly, life insurance policies and retirement plan documents often deferto state intestacy statutes if the owner dies without a valid beneficiary designation. The class-gift issues concern the interpretation of wills, trust agreements, or beneficiary designations that include a general provision for a person’s issue, heirs, descendants, children, grandchildren, or the like.

These issues are not just theoretical – a number of courts have struggled to answer some of these questions over the past few years, and state legislatures have just begun to address these issues. However, no consensus has emerged regarding whether such children should have any interests, or, if so, under what conditions.

Existing Legal Responses

The traditional approach described above has been a part of American common law and early probate statutes since at least the early 1800s. In 1946, the American Bar Associationpublished the Model Probate Code, the first model or uniform probate act. The Model Probate Code incorporated the traditional approach and provided that a child “begottenbefore his [the decedent’s] death but born thereafter” shall inherit from the decedent. The ABA’s 1969 Uniform Probate Code included a similar provision, though the act referred tochildren “conceived” before the parent’s death. These clauses are commonly known as “posthumous-heirs” or “afterbornheirs” provisions. Almost all of the fifty states have adopted the Model Probate Code, the Uniform Probate Code, or an afterborn-heirs provision that uses similar language.

When applied literally, however, such clauses do not adequately address posthumously conceived children. For instance, consider the first scenario above. If the woman usedher husband’s sperm shortly after his death to fertilize one of her eggs, the clause would not apply because the child was not “begotten” or “conceived” during the husband’s lifetime. Thus, the child would not be his heir. On the other hand, consider the second scenario. If the wife used one of the frozen embryos years after her husband’s death, the statute would apply (since conception had occurred during the decedent’s lifetime). Thus, that child would be his heir.

Certainly, the drafters did not intend to create such distinctions based on the assisted reproduction technique used. More likely, the drafters simply had not consideredthe possibility of posthumous conception. Indeed, such technology was mere science fiction when these clauses were first enacted. Starting in 2000, a handful of courts haveinterpreted similar provisions in the context of posthumous conception, and they have split in their approach. A few courts have applied the language literally to the facts, claiming that they have no authority to do otherwise; others have held that because the statutes were never intended to apply in this context, they were free to create their own rules regarding posthumously conceived children.

These decisions highlight the uncertainty that exists when legislatures fail to address emerging issues in a deliberate and comprehensive way, and particularly issues with such social, moral and ethical implications.

The National Conference of Commissioners on Uniform State Laws first addressed this issue in 1988 in its Uniform Status of Children of Assisted Conception Act. The Commissionersfirst provided that posthumously conceived children shall not be deemed a child of the deceased parent for any purpose. In 2000, the commissioners switched courseand recognized a parent-child relationship, but only if the decedent had consented in writing to be that child’s parent. This provision was added to the Uniform Parentage Act, though, and it was unclear how this rule would apply, if at all, in the probate context. Finally, just three years ago, the commissioners revised the Uniform Probate Code and provided that a posthumously conceived child shall be deemed a child of the deceased parent if (1) the decedent intended to be “treated as a parent” and (2) the child is born within 45 months after the decedent’s death.

Despite the commissioners’ recent progress, their proposed approach has significant limitations. In addition, it has been adopted by only two states, and only a handful of otherstates have specifically addressed posthumously conceived children in any manner. Today, 33 states continue to follow the traditional afterborn-heirs approach, and, as a result, thestatus of posthumously conceived children in those states remains unclear. The 17 states that have addressed the issue are evenly split in their approach. Nine states (includingMinnesota) have denied status to posthumously conceived children, while eight states have granted status to posthumously conceived children in limited circumstances. Even among these eights states, however, the approaches vary considerably.

Looking Forward

Posthumous conception raises sensitive moral, ethical, and legal issues that many legislators would prefer to avoid and simply pass on to judges. The technology is here, though, and it is being used increasingly each day. The time has come for all legislatures to take up this challenge, think critically about and debate the issues, and draft clear, comprehensive provisions that will inform and guide their citizens.

Most judges and scholars (and the few legislatures) who have addressed the issue agree the three primary goals of any response should be to ensure the efficient administration of estates, carry out the decedent’s intent, and protect the children’s best interests. However, there is no consensus regarding which of these goals should receive priority.

In my forthcoming article, I argue that these goals need not be mutually exclusive; rather, each can be achieved with appropriate legislation. The article provides a comprehensive blueprint for legislatures to consider as they tackle this issue and reviews the statutory and judicial approaches proposed to date, breaks down the strengths and weaknesses of each, and introduces two new concepts that bridge the gaps in the prior approaches. If adopted, these improvements will provide flexibility not found in prior approaches and, as a result,further each of the three key goals.

Author: Benjamin Carpenter joined the University of St. Thomas School of Law faculty in the fall of 2010 after practicing law for eight years. He teaches Lawyering Skills I, Lawyering Skills II, and Federal Estate and Gift Tax. His research interests include the intersection of law and technology and the psychology of persuasion.

NOTES1 Support for all statements in this article can be found in Carpenter’s forthcoming article, A Chip Off the Old Iceblock: How Cryopreservation Has Changed Estate Law, Why Attempts to Address the Issue Have Fallen Short, and How to Fix It, 21 Cornell J.L. & Pub. Pol’y (forthcoming 2012). This article is available at http://papers/ssrn.com/sol3/papers.cfm?abstract_id=1963973.

2 Although Catholicism rejects most forms of assisted reproduction, other religions do not. Even among many Catholics, however, individuals who have begun the in-vitro fertilization process may choose to use the embryos they created with their partner rather than destroying them.

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