Privacy in the digital age may be one of the defining issues for this generation of law students. With many of the most intimate details of their lives contained in their cell phones—in texts and apps and emails—they are passionate about wanting to influence policy governing their personal digital footprint.
“We’ve grown up with technology, adapting to it quickly in our personal lives—and at work and in school,” says Ryan Nelson, JD ’15, a student enrolled in a new policy practicum at Stanford Law School. “We’re used to putting lots of information in different places and carrying it around with us in our pockets. But at the same time, we’re in this weird position of expecting it to be password protected and controlled only by us. Yet we have no understanding of what the law allows.”
Nelson and 13 of his classmates at Stanford Law School are attempting to survey and understand every legal issue relevant to cell phone data in a practicum with Robert Weisberg, JD ’79, Edwin E. Huddleson, Jr., Professor of Law and faculty co-director of the Stanford Criminal Justice Center, guiding them. They are part of Stanford Law School’s new Law and Policy Lab, a growing collection of small-group practicums that match experienced faculty and student teams with actual clients—many from federal, state, or local government.
The only program of its breadth and depth at a law school, the Policy Lab is tackling real-world challenges ranging from tax code reform to childhood obesity to wildlife trafficking, with students gaining valuable experience in policy analysis where lawyers often contribute but law schools offer little to no preparation.
Students in Weisberg’s practicum have been immersed in research during the winter and spring quarters, looking at everything from existing state and federal laws, Fourth Amendment cases, the technology itself, and more. Their client is the California Law Review Commission, a state agency charged with reviewing California statutory and decisional law, studying complex and sometimes controversial subjects, and drafting recommended legislation for legislative consideration. The main goal of the practicum is to provide well-researched proposals and draft a statute that might become state law.
Situating the Policy Lab at Stanford has many advantages, the collegial and interdisciplinary learning environment particularly beneficial to complex research. There’s also simple proximity—and meeting up with people down the hall or across campus to share findings. Over lunch in late April, Nelson and classmates in Weisberg’s practicum had the opportunity to bounce ideas off Robert Mueller, director of the FBI from September 2001 until 2013 and now the Arthur and Frank Payne Distinguished Lecturer at Stanford. It was a field trip of sorts for them to hear Mueller’s views about privacy and technology, the Fourth Amendment, and evidence gathered from electronic devices by the police. Similarly, the group had the opportunity to discuss the landmark Fourth Amendment case Riley v. California with one of the lawyers who argued it before the U.S. Supreme Court in April and the students who helped research it. David Riley, a college student currently serving a 15-to-life prison term in large part due to evidence found on his cell phone by police in a warrantless search, is represented by Jeffrey Fisher, co-director of Stanford Law School’s Supreme Court Litigation Clinic.
“Our students are engaging in real policy and legal analysis—applying it to challenging, timely issues and contributing to the development of sound, well-researched policy and law,” says M. Elizabeth Magill, Richard E. Lang Professor of Law and Dean. “This is a unique program that provides students with terrific opportunities.”
Many practicing attorneys engage in policy work regularly. But law school courses focusing on the skills required to analyze, research, and shape policy have been lacking. Through the years seminars have tackled policy questions, particularly since Joan Petersilia, Adelbert H. Sweet Professor of Law and co-director of the Stanford Criminal Justice Center, joined the faculty in 2009. A criminologist with a background in empirical research, Petersilia formerly directed the Criminal Justice Program at the RAND Corporation and brought a keen understanding of social science policy analysis—along with past client relationships. She introduced a policy-focused course in 2011, Advanced Seminar on Criminal Law & Public Policy: A Research Practicum, with California Attorney General Kamala Harris as the client. The analysis focused on challenges of reentry for prisoners and on research into implications of California’s historic realignment legislation for the prison system—just as the law was rolling out. As the “final exam,” Petersilia took all 25 students to San Francisco to meet with Harris and brief her staff on the findings. Petersilia followed up the next year with a practicum for Governor Jerry Brown, looking at which lifers to release and at the impact of realignment on county justice systems. “Our findings have been used by the governor and the state legislature to revise some parts of AB109, California’s realignment law, and the lifer analysis is being used often in state discussions,” says Petersilia. Feedback from students who participated has been overwhelmingly positive too.
What’s more, word spread. Sam Byker, JD ‘16, says that during last year’s admit weekend he spoke at length with a student from the practicum for Governor Brown and that convinced him to choose SLS over Yale Law School. “It seemed like at no other law school could I do policy work that could actually make an impact,” says Byker.
The seeds for the Policy Lab took hold. SLS leadership could see that this model could apply more broadly. Paul Brest, professor of law, emeritus, and former dean, returned to full faculty status at the law school last year to work with Deborah Hensler, Judge John W. Ford Professor of Dispute Resolution and associate dean for graduate studies, to develop the lab proposal. Both have policy experience—Brest ran the William and Flora Hewlett Foundation from 2000 to 2012 and Hensler came to Stanford Law directly from the RAND Corporation, where she led research on alternative dispute resolution, asbestos, and other complex litigation. They saw an opportunity to introduce law students to policy tools that go beyond standard legal maneuvers such as lawsuits or contracts. “Many lawyers spend all or part of their careers doing policy analysis or advocacy, and law school informally teaches a lot of policy, but there had not been a specific focus on formal policy analysis,” Brest explains.
The Policy Lab operates much like the law school’s legal clinics—though with research and writing as the main focus. And all the Policy Lab practicums involve a real-life assignment for an actual client and help answer a pressing policy question. Identifying clients with a research need and matching those with faculty was the first order of business. Hensler and Brest spent six months planning the practicums, with Brest reaching out to students, faculty, and contacts in government to come up with the first lab offerings for the fall of 2013. The initiative now has critical mass with more than 20 practicums under way or planned. And the lineup of topics spans a remarkably diverse range—from helping a county develop programs designed to take aim at childhood obesity to helping the United States compete globally in solar energy. Brest and Hensler also co-teach an introductory course on policy analysis, Thinking Like a Policy Analyst. Says Brest, “I think Stanford is pioneering this approach.”
Helping to Shape Policy and Law
Paul Goldstein, Stella W. and Ira S. Lillick Professor of Law, put together a practicum that addresses a thorny issue in copyright, namely the challenge of tracking down copyright ownership, for which traditional ways of recordation are inadequate. His client: the U.S. Copyright Office. Goldstein says that it’s a research project the Office has wanted to conduct for some time, seeking a more efficient, cost-effective process. He explains, “A real property title company can tell you at any given time exactly who owns or owned a piece of land. But the cost of determining copyright ownership is typically at the other end of the spectrum. There are large numbers of photographs, literary documents, quotes in books, etc., where someone would be willing to pay but can’t track down the owner.”
The urgency of the work in this practicum is clearly exciting for students. In late March, Peter Holm, JD ‘14, joined his classmates to present recommendations from the copyright practicum to a roundtable that the U.S. Copyright Office held at Stanford. “It was a useful exercise to think in terms of policy trade-offs and costs and benefits, rather than what legal argument might persuade a judge,” says Holm. “It was very satisfying to offer suggestions and comments that actually have a chance of being implemented or changing current policy—such as recommending that the copyright office consider adopting image search technology.”
Mark G. Kelman, James C. Gaither Professor of Law and vice dean, who is co-teaching a practicum designed to improve the process of recruiting and managing bone marrow and stem cell donors, adds “People engage in a morally and intellectually serious way when they are doing something that really matters.”
Reaching Out Across Campus
The Policy Lab lends itself to interdisciplinary work and many of the practicums welcome students and faculty from elsewhere on campus who have a particular expertise in a technical, regional, or political domain. “Policy challenges often aren’t specific to a particular field, but cut across various disciplines, “says Magill. “The solutions need to come from a multidisciplinary team approach.”
Kelman, who has a deep research background in how social science applies to diverse legal fields, is collaborating with Lawrence C. Marshall, professor of law, and the Stanford Center for Social Psychological Answers to Real-World Questions (SPARQ), a new center in the Stanford psychology department that aims to create and share social psychological insights with practitioners in government, nonprofits, and business. The practicum and SPARQ have a client called Delete Blood Cancer, an NGO that manages a donor recruitment program for marrow and stem-cell donations needed to treat some cancers and other diseases.
The practicum is working with SPARQ to develop social psychological interventions that will increase the donor conversion rate. SPARQ designs and tests the interventions, and the practicum vets them to make sure they are legal and ethical. The practicum has also prepared a brief on legal and ethical issues and opportunities in stem-cell donation.
Kelman says the students researched an array of concerns raised by organizations involved in the donation process. They ranged from fairly simple questions (whether a token thank you gift such as a coffee mug for donating would somehow be considered compensation, which is prohibited), to much more complex concerns such as the amount of information a patient might be encouraged to reveal to a potential donor. For example, there is some basis for believing that people are more inclined to donate to individuals of a certain age, or ethnicity, etc. “Do we want to identify these factors when it will help but not when it would hurt? It’s a policy concern, whether it’s legally problematic or not,” Kelman explains.
SPARQ’s executive director, Alana Conner, PhD, offers another example of how a legal viewpoint is valuable in this kind of project. She says the practicum students raised important issues about language that could be interpreted to imply that registering as a donor is a contractual obligation to donate, which is not the case.
Dan Reicher, JD ’83, professor of the practice of law and executive director of Stanford’s Steyer-Taylor Center for Energy Policy and Finance, co-teaches a practicum with former Wall Street Journal environmental editor Jeffrey Ball, scholar-in-residence at the center. The class is analyzing the current state and future directions of the Chinese solar industry. The goal is to help the U.S. Department of Energy understand this fast-changing area—and help shape policy and finance to advance the global solar industry. “We’ve got graduate students in engineering helping set the technology stage for law students looking at a policy issue,” explains Reicher.
In a guest presentation to the introductory policy seminar this winter, Reicher discussed how policy analysis often begins with understanding the broader elements of a problem—scientific, economic, political—and then looks at potential solutions. He’s had broad experience in energy and climate, including as a U.S. assistant secretary of energy and the director of climate change and energy initiatives at Google. That experience showed when he presented a chart highlighting the three corners of what he calls the “clean energy triangle”—technology, policy, and finance. Commonly, he said, “People focus on one of these corners and don’t make enough effort to understand the other two. That’s what’s happened in U.S. clean-tech investing recently where the sector is struggling. Policy looms so large in clean tech, and policy decisions can either advance or get in the way of clean-energy development and deployment. These decisions involve key factors like federal standards, tax policy, and the actions of 50 different state public utility commissions.”
Another practicum co-taught by Brest, Deborah L. Rhode, Ernest W. McFarland Professor of Law, and several School of Medicine faculty members focuses on trying to reduce rising obesity rates in Santa Clara County. With the Santa Clara County Board of Supervisors as its client, this practicum is evaluating ways to encourage children and their families to make better food choices in school through parent education and outreach and other community efforts.
Danny Chou, who is an assistant county counsel for Santa Clara County, attended all of the practicum meetings along with members of his staff. They peppered the enrolled law and medical students with questions both theoretical and practical. “This project is a good example,” says Brest, “of where you could have abstract research, but the students are actually working for a client. There are many interventions to reduce obesity, but we need to learn which are proven to be effective and which are likely to work in the particular context of Santa Clara County.”
“Having the client present has added immeasurably to the discussions, along with having the academics with deep knowledge of the subject matter,” says Rhode, and that played out at a recent session when a student raised an issue of exactly what kind of nutrition guidelines are the right ones to rely on for messaging or policy priorities.
Matching Policy Needs to Faculty
The origins of the individual practicums vary. The obesity practicum was initiated by Chou, who previously worked in the City Attorney’s Office in San Francisco. There he was involved in projects where Yale and Berkeley Law students collaborated with the office on litigation matters. When he took a job in Santa Clara County, Chou reached out to Stanford to discuss possible collaborations. “We look at this as a win-win, where we can engage the interest and intellect of students, the expertise of faculty, and also leverage limited resources,” he says.
In some cases, faculty with an expertise were approached by Brest.
“Paul knew someone on the commission and heard that there was a need for this research,” says Weisberg, who explains that the California State Legislature already passed a law in 2011, unanimously, that would have prohibited police in California from conducting warrantless searches of cell phones. Only Governor Jerry Brown vetoed the bill. So an earlier [January 2011] ruling by the California Supreme Court holds, allowing police in the state to access any data stored on an arrestee’s phone including voicemail, search history, chat logs, address book, photos, and more. The legislature plans to revisit the question soon and asked the commission to do the legwork.
Is the information we carry in our cell phones private? Should police be able to search it? Should a mobile device and the many apps it holds be considered more like one’s home, and subject to requirements of a search warrant, or more like one’s pockets—open to warrantless search? Where is the legal line drawn? California is one of the few states attempting to undertake this kind of legislation, most preferring to leave it to the courts for now.
If things go according to plan, Weisberg says, he and his team will come up with something that might even become a model for laws governing technology and privacy throughout the country.
Weisberg’s students have compiled their first round of research and have been spending the spring quarter editing and filling in the gaps. They’re working to a hard deadline: a meeting with the California Law Review Commission and members of the state legislature in June, when they will present their research and proposals for a new statute governing cell phone searches. There’s a lot to do.
“I’m planning to meet with a philosophy professor next week to try to understand the underlying ethical and philosophical questions of privacy,” says Nelson, who spent the spring quarter delving into technical questions of social media.
“This is a very complex question,” says Weisberg. “Some students are looking at state statutes, some at federal. Some are talking to computer science professors, others to our own CIS [Center for Internet and Society] staff. This involves issues that are legal, privacy, philosophy, societal, generational. And it must address concerns about terrorism and criminal activity. There’s a lot in here.”
Still other practicums got off the ground because someone with a deep interest in a particular policy area jumped at the chance to organize a specific practicum. In fact, when David Hayes, JD ’78, a distinguished visiting lecturer returned to Stanford Law in 2013, he immediately signed on—eventually teaching three. An early pioneer in the practice area of environmental law who served in both the Clinton and Obama administrations, most recently as deputy secretary and chief operating officer with the U.S. Department of the Interior, Hayes was keen to share his experience in government with Stanford Law students. In the autumn quarter, he helped 12 students create a set of recommendations to a steering committee run by the White House Office of Management and Budget on how to improve, coordinate, and streamline the permitting of large solar and other energy projects, while reducing and more effectively mitigating their environmental impacts.
In winter quarter, meanwhile, Hayes’ students tackled a growing scourge—wildlife trafficking in ivory from elephant tusks and rhino horns. Last July, a special executive order from the president created the Advisory Council on Wildlife Trafficking. Hayes is its chairman. The idea was to research and recommend tools that can be used domestically and internationally to crack down on illegal wildlife trafficking. They worked fast. On March 20, two of Hayes’ students presented a set of recommendations to the council in Washington, D.C.
Lindsey Warp, JD ‘14, who spent five years in marketing and consumer research at a media agency before law school, says the practicum gave her “the rare opportunity to use non-legal skills I had acquired before coming to law school.” She worked on the section of the report that discussed how the government should approach trying to reduce demand for ivory in China, where a growing middle class sees it as a source of prestige and an honored gift to give or receive. The report points out that an educational media campaign stressing to Chinese consumers that ivory comes from the body of a murdered elephants could have a strong impact. A 2007 survey showed that the majority of Chinese buyers believe ivory comes from elephant teeth that fell out—the Chinese word for ivory literally means “elephant teeth.” In fact, ivory comes from tusks ripped from the body of an elephant destroyed for them.
“I think the way these practicums will be helpful is to lay out the context and provide analysis,” says Hayes. “On some issues, it’s not like ‘Okay, the clouds have parted and this is the policy path that should be pursued.’ Instead, the students are researching and thinking about different options to address the international wildlife trafficking crisis, whether they be enforcement-related, institution-building, or demand-side reduction.”
A tax code-based practicum led by Joseph Bankman, Ralph M. Parsons Professor of Law and Business, resulted from the initiative of students. Ruth C. Levine, JD/MA ’14 (BA ’08), had spent a summer working with the Internal Revenue Service. After discussions with the client, the U.S. Treasury Department, she and classmate Jeremy Bearer-Friend, JD’14, wanted to dive deep into an area of tax law that involves how private foundations treat new forms of social investing.
Bankman was delighted to work with the students on this issue. He points out that while there used to be a clear dividing line between charitable and non-charitable activities, nowadays that is changing. Companies like Google are doing projects for the social good for which they aren’t claiming deductions; meanwhile, charities are making tax-advantaged investments in for-profit companies—not to make money but because they feel the company is doing work that furthers their charitable mission. However, some would-be investors may not be taking advantage of these tax-favored investments because the law is unclear.
It turns out that the Silicon Valley area has become a hotbed of what is called “impact investing,” but Department of the Treasury regulations have not been substantially updated since the 1970s. Foundations must by law distribute at least 5 percent of their assets annually in the form of charitable grants called “program-related investments” or PRIs. However, says Levine, who also earned her undergrad degree at Stanford, there can be some confusion among foundations about what actually qualifies as a PRI. For example, a foundation might want to provide seed money to a startup in a capital-intensive field such as clean energy. “Venture capitalists are interested in working with foundations. Legally that should not be a problem—in theory,” says Levine. If the mission of the entity receiving the funds is consistent with the foundation’s mission, then the test of whether the investment qualifies as a distribution or an investment involves examining the intent. “The test is whether the average profit-driven investor would take the deal,” she says. If so, then it’s an investment, not a distribution. She and her fellow practicum members have been researching ways to modernize the guidelines with more relevant examples.
Petersilia says she is excited to see the momentum that began in 2011 with what she initially called a criminal justice “policy think tank” now fueling the new SLS Law and Policy Lab. She also is excited that these opportunities seem to be motivating students to work in policy and public service, and she is helping to set up externships. Petersilia’s student Sam Byker just accepted a summer job in the California Department of Justice’s Division of Recidivism Reduction and Reentry.
Thanks to the Policy Lab, those less certain about whether policy is their “calling” can now take some work out for a test drive. “Many of our students do not see state or federal government as a rewarding career path, simply because they haven’t been exposed to it,” believes Petersilia. This exposure earlier in their SLS careers could be life changing. And for some of the clients, it could even be lifesaving. SL