Student Posts

Why I’m Going Home

I am a lifelong Floridian, and I truly love my state.  How could I not?  I grew up near Orlando, watching shuttles launch, visiting theme parks, and swimming in the ocean.  I was privileged, so my childhood felt like a permanent vacation.  Despite the affection I feel for my state, I feel frustration as well.

When I was a student at the University of Florida, I interned with a public interest firm called Southern Legal Counsel.  Many of my assignments and interactions at SLC involved serving clients without housing and revealed to me the perils of criminalizing homelessness.  I also helped with efforts to raise money for SLC, which had recently experienced major reductions in funding.  Through this work, I realized two major issues with the state I thought (or wanted to think) could do no wrong: 1) the ways in which many of our laws harm low-income people and 2) the crisis of funding civil legal aid organizations.

Florida is a huge state, the third largest in terms of population, and we have several million people living below the poverty line.  Unfortunately, because of dwindling funds, our civil legal aid organizations have been forced to drastically cut budgets, attorneys, and caseloads in recent years.  More and more people have been left without access to justice, having to face oppressive policies and biased institutions alone.  Meanwhile, Florida ranks among the worst in the country with regard to health insurance coverage, unemployment insurance, and affordable housing.  I love my state; I love our diversity and our sunshine and our oranges, but I wish we were farther along the path to addressing injustice in the civil legal system.

It was this frustration that convinced me that, after law school, I need to go home.  When I started thinking about life after law school, places like New York, Philadelphia, and D.C. were initially appealing to me because of their well-established, well-known civil legal aid organizations, but when I thought deeply about the population I would like to serve one day, my mind always drifted back to Florida – the Orlando area in particular.  I soon realized that what I truly want is to give back to the people and the community who made me who I am.  In whatever capacity I perform public service work in the future, either full-time or pro bono, I know that I will be happiest at home, helping to improve access to justice and to alleviate the burden on low-income people in Florida’s civil legal system.

Esmailbegui - 2016 Summer Associate PhotographJasmine Esmailbegui is a second-year law student from Melbourne, Florida.  She graduated from the University of Florida in 2014 with degrees in Psychology and Criminology and a minor in Women’s Studies.  This summer, she will be working at Foley & Lardner in Orlando, Florida, the office where the firm’s national pro bono chair is a partner.  Jasmine loves Netflix and Publix.

Student Posts

On Federal Loan Forgiveness

I used to think I’d get my loans forgiven through the federal Public Service Loan Forgiveness Program, but now I’m not so sure.  In exchange for 120 payments made while working for the government or a non-profit, the federal government would “forgive” my debt, which it actually created through its own loan scheme and how it has chosen to regulate tuition.  It essentially coerces debtor students into public service on its own terms.  It precludes us from working for ourselves.  In exchange for loan “forgiveness,” the federal government takes away our sovereignty and freedom to contract, with all the coercion of the state.

Maybe this is fair, you say, because we chose to take out federal loans, and therefore the federal government gets to set the terms, and beyond that, isn’t Congress generous for forgiving those loans altogether?  We have to remember that Congress also created the circumstances within which we have to take out loans in the first place.  They have kept most Americans too poor to afford law school tuition outright, and have allowed law school tuition to soar.

When I worked at a public defenders office for three years, I saw some good lawyering and some bad lawyering, and very few consequences for either.  Public defense work was largely driven by the attorney’s own moral convictions since there were few rewards for good work besides self-satisfaction.  Prosecutors who prosecuted bad cases got to shrug off the loss, public defenders who surfed the internet got paid the same as those who didn’t.  In the private sector, clients can dispute payment where an attorney does not deliver a quality service, or more likely will simply take their business elsewhere.  In government and non-profits, this is not the case.  There are few mechanisms holding the defense attorneys accountable to their client.  And federal loan forgiveness entrenches this problem by precluding its student debtors from providing services to clients within some kind of quid pro quo framework.

Federal loan forgiveness is not the only way the federal government stymies public service.  Non-profits receiving federal funds, for example, are precluded from bringing class actions, arguably one of the most important tools in an attorney’s tool-kit for public service.  The federal government sets these terms.  The federal government has also intervened in regulating prison litigation with disastrous effect.  Prisons desperately need systemic reforms, yet Congress has regulated prisoner litigation through the PLRA to the point of almost liquidating it altogether.

My point, I think, is that I have a different definition of the “public good,” and hence “public service,” than the federal government.  After all, the federal government has largely created the mess we are trying to change.

I may still very well seek federal loan forgiveness, and I more than understand anyone else’s choice to do so.  But I hope we recognize the contradiction in the program: that through federal loan forgiveness and refusing to regulate tuition, the government gets to say what kind of public service work we do; it forces us to work by its rules.  It precludes us, who want to be public servants, from having the financial power to serve the way we think is right.  I’d like to argue that there is something good about the kind of relationship where a client pays for legal services in some way, perhaps not with money, but by bartering a skill, or their time, and we might have to be creative in imagining what that payment looks like.  I’d like to suggest that the federal government, through programs like federal loan forgiveness, prevents us from being the most effective public servants we can be.

NGNina Goepfert is a second-year law student from Manchester, Massachusetts.  She graduated from Oberlin College in 2010, and worked for three years as an investigator for public defenders in Brooklyn, NY.  Along with other students, she founded the Virginia Law in Prison Project at UVA Law.

Student Posts

Some Thoughts on Corporate Officer Liability

I’m currently enrolled in a year-long independent study course in which I have been focusing my research on the scope and application of the Responsible Corporate Officer (RCO) doctrine.  The doctrine originated in the Supreme Court decision, United States v. Dotterweich, 320 U.S. 277 (1943), and was given further articulation in the Court’s later decision in United States v. Park, 421 U.S. 658 (1975).  In each case, the Court upheld the conviction of a high-level corporate officer for food and drug violations.  The doctrine essentially states that a corporate officer may be held vicariously – and strictly – liable for a subordinate’s violation of a public welfare statute.  The Park Court recognized that the requirements of “foresight and vigilance” which were thus placed on corporate officers “are beyond question demanding, and perhaps onerous, but they are no more stringent than the public has a right to expect of those who voluntarily assume positions of authority in business enterprises whose services and products affect the health and well-being of the public that supports them.” Park, 421 U.S. at 672.

The doctrine’s application has generally been limited to statutory violations of the Food, Drug, and Cosmetic Act, as well as the Clean Water Act and the Clean Air Act.  Some of the literature I’ve encountered has also considered the question of how the RCO doctrine might be applied beyond the FDA and EPA contexts.  That question is particularly interesting to think about in light of the Justice Department’s recently issued guidelines concerning “Individual Accountability for Corporate Wrongdoing.”  In describing the content of these new guidelines, Deputy Attorney General Sally Yates emphasized that the Department will now ensure that individual accountability lies at the heart of its corporate enforcement strategy.

I have found that the topic of corporate officer liability is as interesting as it is challenging to approach: it is fraught with concerns about the degree to which mens rea ought to be required in a criminal prosecution; a case currently on appeal before the Eighth Circuit, United States v. DeCoster, also raises a number of questions regarding the constitutionality of the RCO doctrine.  Accordingly, it has been difficult for me to draw any one conclusion with absolute certainty; but I have been considering how the RCO doctrine might be applied if it made recourse to a criminal negligence standard of culpability, rather than strict liability.  Viewed from this perspective, the standard for corporate criminal liability might harmonize with the duty of care shareholders may reasonably expect corporate officers to live up to in the civil context: both the duty of care and a criminal negligence standard proscribe a similar type of corporate officer behavior – gross negligence.

On a more personal note, I also want to use this blog post to thank the LPS Community for all the assistance I’ve been afforded so far in my research and writing process.  I especially appreciate having had the recent opportunity to share and discuss an early draft of my thoughts with fellow students in the program.  The feedback I received will doubtless prove to be instrumental as I continue my work on the topic.

LPS Post -- Teszler copyEric Teszler is a third-year law student from Orange County, California.  After graduating from UC Berkeley in 2011, he worked as a writing tutor at a community college and then spent a year with the AmeriCorps VISTA program at Los Angeles Unified School District.  Following graduation, he will be working as a business litigation associate in New York.