by Professor Gabriel Arkles
It may sound cliché, but one of the things that I love about teaching is how much I learn from and with my students. It especially delights me when the work the students do outside the classroom, the work I do outside the classroom, and the work we do together inside the classroom build on and strengthen one another. Teaching and doing legislative testimony this semester created one of those opportunities.
At Northeastern University School of Law, we work hard to support students as they prepare for contemporary law practice. We know that litigation is an important tool, but far from the only one that lawyers use to protect their clients’ interests and advocate for social change. Thus, after researching and writing a challenging memo about a tort issue from a litigation angle, my students this semester examined related issues from a policy standpoint: they prepared and presented oral and written legislative testimony in a simulated state legislative hearing about a possible end to tort remedies.
Before the simulated hearing, we spent a class period talking about strategy and preparation. Several of us shared our own experience with legislative testimony. When a student asked what type of questions legislators ask, I talked about my experience testifying before the NYC council when I worked at the Sylvia Rivera Law Project. I testified as a part of a coalition trying to close a juvenile detention facility and as a part of a coalition to keep the Board of Corrections from lowering the minimum standards for how city jails could treat the people they locked up. I told my students, “Most often, I wouldn’t get any questions at all. When I did get questions, I found that they often weren’t real questions. Instead, council members took the opportunity to make statements about their positions for the benefit of their constituents, the press, or other council members. Sometimes council members did ask me or other witnesses for our sources or for clarifications of recommendations, though.”
A student spoke up to describe sitting in on legislative hearings while working for a legislator before coming to law school. According to the student, this legislator would use her iPad during hearings to fact check everything the witnesses said. She would interrupt witnesses to question them about anything they got wrong. Armed with this information, the students and I came up with ways to prepare to answer different types of questions from legislators.
During the simulated hearing, Associate Dean Wendy Parmet (my students’ torts professor), the teaching assistants, a guest speaker from the federal government, and I played the role of legislators, listening to the students’ presentations and testing their positions. Many of the student presentations impressed and moved me. Even though I had helped make up the facts they used, and even though I heard 43 presentations on the same topic, students managed to move me to tears with their descriptions of the simulated client’s situation. Specific facts about bad actions of tortfeasors made more of an impression on our guest speaker. We all seemed to appreciate thoughtful anticipation of counterarguments, careful policy analysis, and statistical information in support of arguments.
My class and I then visited the Massachusetts state legislature to watch a hearing of the Joint Commission on Election Laws live. I discovered a number of NUSL alums working in the State House; they facilitated the visit. I had never been to the State House before and get lost easily, so on the day of the trip I was glad to travel with students who had spent time inside or in front of the State House in a number of roles. One student told me that she gathers with others outside the State House each March in an action to support Tibet.
At the hearing, most of the testimony concerned voter ID bills. One representative debated extensively with the witnesses and most of the others asked questions—far more than I expected based on my NYC experience. Most of the committee members generously stayed for almost half an hour after the hearing to answer questions from students. We got a chance to ask the legislators directly about the committee structure, legislative process, and effectiveness of techniques in legislative testimony. On the way back to school, students and I compared notes.
The next week, an upper class NUSL student forwarded me information about a Massachusetts bill that would limit the use of solitary confinement. A hearing on the bill was coming up in a couple of days. I offered to testify with Black & Pink, an organization of lesbian, gay, bi, and trans (LGBT) prisoners and their “free world” allies where a number of NUSL students and I volunteer. Soon, I found myself taking a break from reading student papers to prepare my own legislative testimony for a hearing. A few years earlier, I published a paper about the impact of solitary confinement on transgender people in prison, so I could draw heavily on that research and on my practice experience in my testimony.
As I prepared, I followed my own advice to the students, giving me a more organized approach to my testimony than I ever had when I was in practice. As I sat in my bedroom late one night with my cat on my lap, trying to slash my testimony so that it would fit into three minutes, I thought about the ways I chose to prioritize—what do I have to say that someone else won’t cover? What may be helpful for the legislators to hear coming from me, specifically? What had the organizers of the campaign suggested? What might be on the legislators’ minds that could sway them one way or another? How can I keep this testimony accountable to the ultimate goals of currently and formerly incarcerated trans people, even beyond this one bill in this one moment? As I moved through rapidly making my cuts, I also wondered if I could share anything about the process to help students next year.
When I went to the hearing, I was more confident about finding and navigating the State House than I would have been had I not just visited with my students. Unlike the hearing I attended with my students, this one was full to overflowing; people had to stand in the aisles because there weren’t enough seats. I testified on a panel with three others. All of us focused on the impact of solitary confinement on LGBT communities. While I did not get any questions during my testimony, I found the committee chair’s face extraordinarily expressive. I adapted my testimony accordingly. For example, at one point, one of his eyebrows went up and the corners of his lips turned down in a grimace. I read him as skeptical, so I paused and gave more examples to demonstrate the point I had just made. When his face shifted to an expression I read as grudging acceptance, I moved on.
Afterward, I wondered whether that was wise. The chair, after all, is only one committee member. Because he was right in front of me and so open with his facial expressions, I focused on him—but I didn’t have the slightest idea what any of the other committee members were thinking as I testified. Could I have tried harder to discern their reactions? Should I have stuck to my original plan? What would my students think of the strategic possibilities?
After the hearing, those of us who testified with Black and Pink debriefed. I think all of us felt confident our panel had conveyed our message effectively. Of course, as we all know, this one hearing on this one bill is only a tiny part of a much larger struggle.
In this situation, my practice experience and my students’ experience helped the students learn how to deliver legislative testimony; my scholarship and experience teaching students helped me to improve my own delivery of legislative testimony; and my experience both teaching and delivering legislative testimony this semester will allow me to teach it better the next time around, and may also inform my scholarship.
On these cold December days, my thoughts are with students working hard on finals and with the members of our families and communities working hard to survive the prison system. I’m grateful to have the chance to work with such marvelous people, and looking forward to what next semester may bring.