One of the first lessons taught in the year-long Boston College Innocence Clinic concerns the concept of “factual innocence.” It is closely related to the concept of “actual innocence,” though different jurisdictions may refer to one or the other, and the substance and application of those terms can vary. Regardless of which term is deployed, it’s a bit of a head-scratcher when clinic students learn that the legal concept of “actual innocence” entails its own discrete body of thought and doctrine within criminal law. Doesn’t the determination of actual innocence suffuse the entire criminal-legal process?
It turns out it does not, and factual innocence is largely a claim raised in the post-conviction setting to overturn a wrongful conviction. That claim often finds little legal purchase. In Herrera v. Collins, for instance, the Supreme Court held that a claim of actual innocence does not entitle a person to federal habeas corpus relief under the 8th Amendment’s proscription of cruel and unusual punishment. Constitutionally and procedurally intact convictions can remain undisturbed by the truth. In Herrera’s case, a capital case, the Court ruled it was not cruel and unusual to execute an innocent man. That kind of antiseptic, procedural logic is one striking example of how the banality of evil manifests itself within the criminal legal system.
When I first wrote about parenting in law school, I complained that my classmates were reading case law while I was reading Moo, Baa, La La La! Now, with the benefit of hindsight, it’s still clear that book had no educational value for me. But my daughter loved it. So, what can you do? Fortunately, in the years since then, my increasingly sophisticated daughter has brought me into contact with increasingly stimulating stories.
For instance, our new farmhouse-themed go-to is Click, Clack, Moo, a pro-labor story about the power of the pen. In it, cows gain access to a type-writer and use it to demand better working conditions from Farmer Brown. They then go on strike until their demands are met. The revolution will not be pasteurized. The movement for animal dignity spreads to the chickens. They bring in a duck to mediate as a neutral party. But he is radicalized and brings the insurgency to the other ducks. Fellow classmates going into labor law: get this book if you want to explain to children what you do.
Tomorrow, Boston College Law School holds its last blood drive of the year at a time when the nation’s blood supply is critically low. Due to the disruption of the Covid-19 pandemic, the Red Cross had to declare its first-ever national blood crisis in January. Even prior to the pandemic, meeting the country’s needs was a challenge; 4.5 million Americans require a blood transfusion each year, but less than forty percent of the U.S. population is eligible to donate blood. And less than ten percent donate annually. The BC Law community includes many people who have committed themselves to lives in service of others. But the prospect of donating blood remains a significant psychological hurdle for many. We have had to conduct constant outreach to fill the blood drive schedule. In fact, we still need more donors. If you are able, please sign up to donate here: Boston College Law Blood Drive Registration Page.
Given this state of affairs, it is all the more frustrating that we have had to turn away gay or bisexual men who are eager to donate blood. Despite the urgent need for blood and the difficulty of finding donors, we have had to tell friends, colleagues, and classmates that the Food and Drug Administration (FDA), which is responsible for regulatory oversight of the U.S. blood supply, prohibits donations from “Men who have sex with Men” (MSM). The FDA instituted a lifetime ban on blood donations from MSM in 1985. This was early in the HIV/AIDS epidemic, when the incidence of HIV among gay men was high, the virus was poorly understood, and there were no available screening methods for donated blood.
All that remains of the Heart Mountain concentration camp, where the United States imprisoned over 14,000 Americans of Japanese descent between 1942 and 1945, is the camp’s hospital building. Over the course of a few months in 1942, the federal government transformed hundreds of acres in remote northwest Wyoming—near Yellowstone National Park—into the state’s third most populous city. The valley plain beneath Heart Mountain became one of ten “Relocation Centers,” the Orwellian name given to the World War II era camps in which over 100,000 people were imprisoned on the basis of their Japanese heritage. Back then, Heart Mountain was a bustling camp consisting of barracks, mess halls, toilet and laundry facilities, recreation spaces, workshops, schools, the hospital, a courthouse, administration buildings, nine guard towers, and a barbed-wire perimeter fence. This October, when I scanned the horizon for some sense of place or history, all I could make out was the original hospital building and snow-covered fields.
The young girl was sick, afraid, and ashamed when she came to the hospital. She had had an unwanted pregnancy. In Uganda, abortion is illegal. Without access to safe, legal reproductive health care, she turned to a traditional healer. The traditional healer helped her end the pregnancy but she developed an infection. Given the legal jeopardy and social stigma of abortion, the girl tried to keep it a secret and delayed seeking care; by the time she came to the hospital, she was septic and needed surgery to survive.
My friend was serving as a visiting physician at the hospital, teaching obstetrics and gynecology to medical students and resident physicians. She quickly performed surgery to control the infection. But that was just the start of the girl’s treatment. Northern Uganda is under-served and remote. Public health resources are lacking and hygiene can be difficult to maintain. Surgery is dangerous, but so is post-operative care. The risk of infection remains high. So, the girl had to spend months in the hospital, where doctors and nurses monitored her and changed her surgical dressings on a daily basis until she healed. She had to go back to the operating room three more times during that period. Through care and great perseverance, the medical team avoided having to perform a hysterectomy to eliminate the infection. When she could finally go home, she left quickly and quietly. My friend said it was likely her youth, the resilience of a teenager’s body, that allowed her to survive.
One of my professors doesn’t allow laptops in class. Two others strongly suggested that we not use laptops, citing the potential for distraction and the multiplestudies finding that note-taking by hand is more effective than type-written notes. Beyond that, however, my professors haven’t weighed in with any additional guidance on note-taking.
But behind every page of notes there’s a unique mind and learning style, so I thought it would be interesting to ask a few classmates to share their notes from a class we took together in order to see how their distinct personalities and preferences come through. They also said a few words about what they hope to capture or accomplish when they take notes.
Today I am hosting a guest post from my friend and classmate, Yeram Choi. -Ian Ramsey-North
A vast majority of us have been called by an incorrect name, other than the one assigned to us at birth, for a myriad of reasons.As a Korean American, however, it is a common occurrence for me as I bear “The Cost of Being an ‘Interchangeable Asian.” The weight of this burden ranges from a quick laugh at Starbucks when I see the wrong name on my order, to a deep sense of shame when others call me by an incorrect name in the classroom or at the workplace. In every instance, I am called by the name of another Asian individual in the room.
Growing up, I heard every phonetic variation of “Yeram” you could possibly imagine, but I did not really mind. I unabashedly corrected others when they mispronounced it because I was proud of my unique name. Every day promised a new adventure as I heard yet another version of my name. But, I eventually hit a wall in high school. Fueled by teenage angst on top of years of exacerbation, I assigned myself an “English name” and vowed to live the rest of my life as “Leah.”
Admittedly, this abrupt decision spawned a disjointed approach to my identity. On the one hand, “Yeram” desired to stay loyal to her Korean heritage. This would be the natural thing to do, since she was born and raised in South Korea. On the other hand, “Leah” simply wanted others to get her name right, without unnecessary, emotional exertion. In that moment when I decided to go by an “easier” name, however, my sense of urgency to assimilate as “Leah” trumped my desire to stay true to my cultural roots as “Yeram.”
Dean Rougeau was among the first people to speak to my class during orientation. He welcomed us to BC and to the legal profession. Then he talked about truth. This was the summer of 2019 and then, as now, there were concerns that the very notion of truth was being degraded beyond redemption. At the time, an iconoclastic media personality-turned-politician had unsettled what many thought were enduring, if only partial, methods of verifying truth.
We don’t need to dwell on the politics of it. Dean Rougeau didn’t. He just took the opportunity to center truth in legal education and practice. He talked about how our profession’s procedures, norms, and expertise offered one important solution to the challenge our society faced. I was skeptical. But less than two years later, completely unsubstantiated claims of election fraud ran rampant through the public square until they crashed into the brick wall of the courts’ evidentiary standards. He may have been onto something.
What is the role of faith in our democracy? For starters, freedom of religion is the first right enshrined in the First Amendment. While amendments are not listed in order of importance, it’s hard not to read something into that drafting choice. Yet constitutional meanings frequently play hide-and-go-seek with text. This is especially the case for religion, which is never defined in the Constitution.
Maybe the Founders’ generation assumed the meaning was self-evident. I would hope, however, that they knew there is little that is obvious or uncontested in religion. The etymology of the word itself suggests how difficult it is to define.Religion comes from the Latin term religio. The Latin phrase itself likely came from the root ligare, to bind. Joined with the prefix re-, religion is the process of “binding together again.”
The question is: what does religion bind together? Some believe it bound an individual to the discipline of moral discernment. It referred to epistemic responsibility, the responsibility to properly know what you know. A related but distinct interpretation was that it referred to the oaths taken by members of cults or religious orders. It emphasized the practical, ritual, and ecclesial dimensions of religious life. Over time, as religion started to assume more individualistic and mystical associations, the root was understood as referring to the re-connection between the human and the divine.
I first wrote about being a parent in law school shortly before my daughter’s second birthday. I was planning her second annual feat of strength. When she was one, she shuffled the last 100 meters up a paved path to the summit of Peter’s Hill. At two, she did a longer stretch of the road that winds around the hill. A few weeks ago, for her third birthday, she climbed straight up the hill, bottom to top, in the snow.
I started explaining the challenge to her the day before and then continued to prep her the morning of. When we started, she was ready, quiet, and about as focused as she gets. We started working our way up. In the middle, she struggled. She asked me to carry her. I told her she had to do this herself. She paused, rallied, and made it to the top. Breathing hard, but with a smile.
I took her for her three-year check-up at the pediatrician a couple of weeks later. The doctor told me, “Imagination is big at three.” She asked, “She imagine a lot?” That would be an understatement. She is constantly narrating her adventure: a highly consequential choice between the blue path and the red path, a search for a purple cow in a yellow valley, an escape from a thieving fox.