Wednesday, April 23, 2014
As a clinician who devotes a substantial amount of her time promoting and working with social workers via interdisciplinary collaborations, it was rewarding to hear that social work efforts are being used in other locales, and for the benefit of those who need services most. San Francisco's library system recently hired a full time social worker who assists homeless patrons by connecting them to services and housing resources. This is not only a great service to those folks, but also a great shout out to the benefits that social work brings to clients. Way to go San Francisco! The entire story may be heard here:
This morning the U.S. Supreme Court issued its decision in Paroline v. U.S. (http://www.supremecourt.gov/opinions/13pdf/12-8561_7758.pdf). The case involved the question of how to determine restitution for victims of child pornography. Although the majority opinion, written by Justice Kennedy and joined by Justices Ginsburg, Breyer, Alito, and Kagan, agrees with the victim and the government that restitution is mandatory, it held that courts should determine on an individualized basis each defendant’s unique role in the causation of the victim’s losses and then be held liable only for that limited amount.
This interpretation renders the mandatory restitution statute (18 U.S.C. §2252) untenable. Child pornography victims are routinely harmed by thousands of perpetrators many of whom are never identified, let alone prosecuted. It places a significant burden on courts, the government, and victims to try to calculate the relative harms caused by each individual perpetrator. Moreover, perpetrators are routinely found to possess or distribute child sex abuse images involving numerous victims. Thus, courts, the government, and victims would have to make this complex determination for each individual victim. The process as described would be highly inefficient, ineffective, and will lead to victims reliving their sexual abuse trauma indefinitely through the court system.
Thus, a legislative solution must be generated. According to the dissent, which was drafted by Chief Justice Roberts and joined by Justices Scalia and Thomas, “Congress set up a restitution system sure to fail in cases like this one.” Congress simply imported a generic restitution statute “without accounting for the diffuse harm suffered by victims of child pornography.” According to the dissent, the mandatory restitution statute is untenable and Congress should be given the opportunity to fix it.
Justice Sotomayor also dissented, but on entirely different grounds. She, essentially, agrees with the victim in this case, “Amy,” that each defendant should be held liable for the full amount of each victim’s losses. She, too, invites Congress to recodify the mandatory restitution statute to make clear that its command to award full restitution to victims of child pornography. Congress should accept the invitation.
Here is Amy’s response to the decision:
“I am surprised and confused by the Court’s decision today. I really don’t understand where this leaves me and other victims who now have to live with trying to get restitution probably for the rest of our lives. The Supreme Court said we should keep going back to the district courts over and over again but that’s what I have been doing for almost six years now. It’s crazy that people keep committing this crime year after year and now victims like me have to keep reliving it year after year. I’m not sure how this decision helps anyone to really know if, when, and how restitution will ever be paid to kids and other victims of this endless crime. I see that the Court said I should get full restitution “someday,” I just wonder when that day will be and how long I and Vicky and other victims will have to wait for justice.”
Willamette’s Child and Family Advocacy Clinic originally filed an amicus brief on behalf of the Dutch National Rapporteur on Trafficking in Human Beings and Sexual Violence against Children in this case (http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs-v3/12-8561_resp_amcu_dnrthbsvc.authcheckdam.pdf) and I previously published a guest opinion on Paroline v. U.S. with Jurist (http://jurist.org/forum/2014/02/warren-binford-paroline-supreme.php).
In honor of William Shakespeare’s 450th birthday today, let us reflect on this line from 2 Henry VI:
“The first thing we do, let’s kill all the lawyers.”
Dick the Butcher speaks the line at Part II, Act IV, Scene II, Line 73. He was part of a plot to disturb law and order, to sow discord and chaos, to unseat the king and install his ill-fated rebel leader (and tool of rival politicians), Jack Cade, as a new ruler.
For those who would work violence and disruption, to grab power, to impose their will on society, the first opponents were the lawyers. They raped while they pillaged, and they raged against literacy. (Just after this line, the rebels captured and condemned the Clerk of Chatham because he could read and write, because he had a book in his pocket and was teaching boys to read. "Here's a villain!") The rebels turned to looting and violence as soon as they entered the city, and they ultimately abandoned Cade while he fled. The lawyers were the bulwark for stability and order.
On the other hand, Cade convinced the rebels that they had intenses grievance against the weakened king and should seek to level the hierarchy, to root out corruption, to protest debt and abuse of process, to rise against the misrule that subjugated the working classes, but also to put an end to reading and writing. The lawyers, then, were a target for their complicity to prop up privilege and tyranny (and grammar), to hold down the workers by parchment and wax.
What would we be? How do we teach our students?
We should be lawyers who would oppose disorder, violence and assaults on the Rule of Law and fair process. We should also be lawyers who would oppose the abuse of power and privilege to the oppression of the people governed by the law. (We should also favor education for the people.)
We should take some solace that we have been the object of scorn for at least 500 years, either for opposing injustice or for promoting it. Too bad there aren’t more client jokes.
Tuesday, April 22, 2014
Eighteen years ago, the clinical teaching community lost one of its most exceptional young talents. Shanara Gilbert was a brilliant professor at CUNY Law School and the founder and co-director of that school’s Defender Clinic. Each year, the AALS Clinical Section honors an emerging clinician who embodies the passion and commitment to teaching, service, and social justice that characterized Shanara’s incredible work.
It is both an honor and an exercise in humility for me to sit as a member of the AALS Clinical Section’s Awards Committee. From a group of remarkable candidates, the Committee selected Georgia State University School of Law Professor Lisa Radtke Bliss as this year’s winner of the Shanara Gilbert Award. Today, Professor Marisa Cianciarulo’s shared the wonderful news of Lisa’s selection with the LawClinic listserv:
The Executive Committee of the AALS Section on Clinical Legal Education is pleased to announce that Professor Lisa Radtke Bliss, Associate Clinical Professor, Director of Experiential Education, and Co-Director of HeLP Legal Services Clinic at Georgia State University College of Law, has been selected as the 2014 recipient of the AALS Section on Clinical Legal Education's Shanara Gilbert Award. The award will be presented to Lisa during the luncheon on Monday, April 28, at the Clinical Legal Education Conference in Chicago.
The Shanara Gilbert Award honors an "emerging clinician," with ten or fewer years of experience who has (1) a commitment to teaching and achieving social justice, particularly in the areas of race and the criminal justice system; (2) a passion for providing legal services and access to justice to individuals and groups most in need; (3) service to the cause of clinical legal education or to the AALS Section on Clinical Legal Education; (4) an interest in international clinical legal education; and (5) an interest in the beauty of nature (desirable, but not required).
Lisa’s nomination was supported by many of her academic and professional colleagues throughout the country and the world. Lisa's work and commitment as a teacher, scholar, and advocate more than fulfill the letter and the spirit of the Shanara Gilbert award criteria. In her particular, her ground-breaking work in developing the medical-legal partnership at HeLP (Health Law Partnership); her service as a member of the Executive Committee of the AALS Section on Clinical Legal Education; her leadership as Director of Experiential Education at Georgia State; the clinical legal education training and workshops she has provided at law schools in Thailand, Myanmar, and Vietnam; her great love and respect for the beauty of nature; and her significant impact as a teacher, advocate and scholar demonstrate that Lisa is, as one recommender said, “the total package in the spirit of Shanara herself."
Lisa is truly a source of inspiration to the many of us who know her. In advance of next week’s ceremony at the AALS Clinical Conference, congratulations, Lisa, on receiving the 2014 Shanara Gilbert Award!
Tomorrow, Wednesday, April 23rd is Administrative Professionals Day (in all actuality - it's an entire week). As I would be absolutely lost without the assistance of my program coordinator, who is the glue that holds it all together, I am attempting to write a Haiku expressing my gratitude...
Ordering Chaos (5)
Keeping me sane and steady (7)
I apologize that you all had to suffer through that, but I am more than happy to use my embarrassment as a reminder to thank those wonderful people in our lives who are the underlying force for all that we accomplish.
This Guest Commentary ran in Sunday's Everett Daily Herald (Washington State), the community newspaper of record regarding challenges facing homeowners and survivors of the Oso mudslide. Many lawyers, clinical profs, and students in the Seattle and Western Washington area versed in mortgage, finance, probate and consumer protection issues are lending a hand.
How to lighten slide victims' financial burdenIn leveling over 40 homes, the mudslide also washed away residents' personal effects. As a result, the most basic challenge of proving legal identity to engage in a host of essential transactions is just the beginning. Survivors and the heirs of the deceased must establish or re-establish proof of right, title, or ownership in real and personal property. Only then can they begin to address legal matters involving their mortgages, automobile loans, and other obligations — facts of life that, sadly, were not extinguished by the mudslide. In general, issues of probate and residential mortgages will be most profound for the survivors. Establishing a legal interest in a destroyed residence will be indispensable to negotiating with any mortgage servicer or lender. Moreover, if a home was not in the name of a survivor, and if the home was willed to several heirs, clearing title may be a precondition to receiving assistance from various services such as FEMA or Fannie Mae. The very practical barriers to property ownership and title verification, probate, estate, and other domestic and family law issues will continue to make life difficult for the survivors — especially if no proactive measures on the part of government and financial institutions are taken. Standard insurance policies do not cover landslides. Unless big mortgage lenders follow the admirable lead of Coastal Community Bank and agree to forgive the homeowners' mortgage loans, many survivors will find themselves in the absurd position of being obligated to make payments on a home that no longer exists. Since the area has been declared a disaster area by President Obama, lenders, at the very least, should suspend the obligation to make mortgage payments for at least six months. Such a moratorium should include one on assessment of late fees. Importantly, because survivors will need new housing, and because credit reports are used by landlords and lenders alike in deciding who can access housing, lenders should not report adverse events such as past due payment to credit bureaus. Loan forgiveness and relaxed credit reporting policies should be applied not just by mortgage lenders, but by business lenders, automobile or agriculture equipment purchase lenders as well as credit card companies. The federal and state government could also go far in helping mitigate the resulting distress by refusing to tax any mortgage forgiveness as income. Because Congress refused to extend the Mortgage Debt Relief Act of 2007, extinguishing the homeowners' mortgages will be considered "income" and thus taxable. That outcome is cruelly unconscionable, especially where the homeowner has lost life, if not property to a natural cause. Moreover, while federal disaster aid compensates homeowners for their losses up to $32,400, not all survivors were homeowners. Consequently, relief should be extended to all those adversely impacted by the mudslide — whether an owner, renter, or someone just passing through. For those who survived the heartbreaking Oso disaster, and those who must assume the obligations of their loved ones lost in the devastation, the road to financial stability may be a long one. However, the government, banks and other financial institutions can go far to making that road as smooth as possible. Bryan Adamson is a Seattle University associate professor of law who teaches consumer protection matters and a Board Member of Northwest Consumer Law Center.
Bryant, Milstein & Shalleck: Transforming the Education of Lawyers: The Theory and Practice of Clinical Pedagogy
Today Elliott Milstein announced the publication of Transforming the Education of Lawyers: The Theory and Practice of Clinical Pedagogy (Carolina Academic Press). His co-editors are Sue Bryant and Ann Shalleck.
From Prof. Milstein’s message:
Published by Carolina Academic Press, the book focuses on what and how to teach students about being a lawyer as they take responsibility for clients in a clinical course. The book identifies learning and lawyering theories as well as practical approaches to planning and teaching all components of a clinic; it highlights how the four clinical methodologies—seminar, rounds, supervision, and fieldwork—reinforce and complement each other. It illustrates how uniting supervision of students’ fieldwork with teaching in the clinical seminar and in rounds can create ethical, skilled, thoughtful practitioners imbued with professional values of justice and service. With contributions by both seasoned and newer clinical educators, the book addresses issues faced by all who teach in experiential lawyering courses.
All chapters are co-authored. Co-authors include Jane Aiken, Bob Dinerstein, Conrad Johnson and Jean Koh Peters. The book also includes essays about clinical teaching. Essayists include Mark Neal Aaronson, Bryan Adamson, Alicia Alvarez, Claudia Angelos, Sameer Ashar, Beryl Blaustone, Juliet M. Brodie, Elizabeth B. Cooper, Deborah Epstein, Carolyn Grose, Kristin Henning, Conrad Johnson, Donna Lee, and Wallace J. Mlyniec. We have donated royalties from the book to CLEA.
He also notes that the publisher is offering a 20% discount off the purchase price of $49.00 for people attending the 2014 AALS Conference on Clinical Legal Education, and the discount is good through the end of July, 2014.
This section, “But How Do I Teach…?: TOPIC” will focus on a different skill, area or lesson for clinical teachers and others alike to consider using/adapting for their teaching needs. The first focus topic is that of poverty – a situation that most clinical clients find themselves in when they seek our services.
A recent article by Steven K. Berenson (titled Preparing Clinical Law Students for Advocacy in Poor People's Courts (43 New Mexico Law Review 363 (2013)) highlights that teaching students about poverty, and practicing in poor people's courts, often falls on the shoulders of clinical faculty given the clientele we serve. While this may be true, do we teach poverty in clinics? In larger settings? Why/why not? If so, how? For newer clinicians, unless you have had training on this issue, highlighting it as a topic for your clinic may seem daunting. We know that poverty exists, but how do we convey understanding and suspension of judgment to our students (not forgetting that some of our students might have personal familiarity with poverty)? What follows is an overview of a basic poverty lecture and an interactive exercise for you and your students to work through, even if you teach this regularly.
What is poverty? Poverty is recognized really as two main types – generational and situational. Generational poverty occurs when your client is poor, their family has been poor, their family’s family has been poor – in other words, poverty is all they know. Situational poverty occurs when you have a client who might have been middle or upper class, but due to debt, foreclosure, medical bills, etc. they are thrust into poverty due to their situation and their circumstances.
Offered here is a proposed classroom exercise that has been run with great success the last several years in a clinical setting. The platform for discussion comes from an interactive poverty simulation known as Spent (link follows below). Allow about an hour for the exercise. When introducing poverty to students, defining the two main types as noted above offers a great general context for the types of clients they may be faced with. With each form of poverty comes its own challenges, judgment and client expectations. To get the students to work through the obstacles faced by our clients, have them pair up with a laptop, pad of paper and a pen. Direct them to the Spent scenario as listed below, and tell them to work through the entire thirty days of the scenario, keeping track of their choices as they go, giving them about 20 minutes to a half hour to do so. At the end of the exercise each pair reports back on how much they had left at the end of the month, and what the easiest and most difficult choice was and why. Once everyone is done, a group discussion can be held for 20-30 minutes. All monetary outcomes are written up for comparison, and each pairing is asked to reflect on the above and give their general impressions of how it felt to survive in poverty. The amounts each pairing ends up with will vary dramatically, as will their impressions of their ability to survive. Most students end up trying the scenario again within the allotted time frame “to try and win” without success – which is also a great lesson in itself – how exactly does one “win” in poverty? Great question. And fuel for more discussion. If you have never completed Spent for yourself, spare a half hour to reconnect with some basic situations and dilemmas.
Additional Resources: The newly released textbook Poverty Law, Policy & Practice by Juliet Brodie, Clare Pastore, Ezra Rosser and Jeff Selbin (available via Wolters Kluwer or Amazon). Simulations include the Poverty USA Tour (available at http://www.povertyusa.org/the-state-of-poverty/poverty-usa-tour/) and Spent – an interactive simulation putting you in survival mode for 30 days in Poverty (available at playspent.org/playspent.html). Lastly, Morgan Spurlock’s 30 Days Series, Episode 1 makes for excellent watching as Morgan and his fiancé try to survive on minimum wage for 30 days.
Have ideas/exercises/topic suggestions? We would love to hear them! Please send any suggestions to [email protected] We look forward to hearing from you!
Information from Sarah Garrison at Wayne State:
2nd Annual AASE National Conference
May 29 through June 1, 2014
Registration for the 2014 AASE Annual Conference is now open! We are thrilled to be able to offer this opportunity again to share and learn from colleagues across the country and hope that you will join us. This year's conference will take place at the Indiana University Robert H. McKinney School of Law in beautiful downtown Indianapolis.
Host Planning Committee
Indiana Univeristy Robert H. McKinney School of Law
Conference registration ends Sunday May 2 and the hotel block will close Sunday, April 27th.
Complete conference and registration details, as well as hotel information can be found by clicking this link: http://mckinneylaw.iu.edu/events/current.cfm?eid=165
PLEASE NOTE: While the conference is being held May 29 through June 1, our conference rate (starting at $119) at the Westin Indianapolis can be utilized as early as May 27 for those who might like to arrive early.
LEARN MORE ABOUT AASE: Visit www.academicsupporteducators.org to learn about the organization and become a member.
A colorful grid detailing the program for the Law and Society Association’s 2014 Annual Conference in Minneapolis (May 29th - June 1st) is available online. Topics include: Access to Justice, Crimes and Victims, Disputes and Negotiation, Environment and Energy, Family and Youth, Feminist Jurisprudence, Gender and Sexuality, Human Rights, Law and Inequality, Legal History, Rights and Identities, Social Movements... Registration is still open.
Monday, April 21, 2014
“April is the cruellest month,” wrote T.S. Eliot, and he was not even a woman. This April has witnessed an especially heavy torrent of conflicting statistics, studies, articles, and posts on how to be a successful woman. As with parenting, everyone seems to be an expert. Not even women in the academy—the highest concentration of experts in the world—are spared.
Following the signing of President Obama’s executive orders highlighting that women in the U.S. continue to be paid just 77 cents for every dollar made by men (http://www.nytimes.com/2014/04/09/us/politics/obama-signs-measures-to-help-close-gender-gap-in-pay.html?_r=0), The Chronicle of Higher Education published a blog post arguing that the gender pay gap for men and women of equal rank at doctoral universities is far more narrow: 90 percent, 93 percent, 91 percent, 88 percent, and 96 percent, for full professors, associate professors, assistant professors, lecturers, and instructors, respectively (http://chronicle.com/blogs/data/2014/04/11/there-is-a-gender-pay-gap-in-academe-but-it-may-not-be-the-gap-that-matters/). Overall, however, academic women are paid an average of 78 cents on the dollar. How could that be?
The problem is representation. According to the analysis in The Chronicle, men outnumber women 3-to-1 at the full professor level, while women outnumber men 3-to-1 at the instructor level. The overrepresentation of women at lower ranks in the academy and underrepresentation of women in the higher ranks skews overall earnings of academics in an almost identical disparity as the national economy (http://www.nytimes.com/2014/04/10/opinion/the-truth-about-the-pay-gap.html).
Where do these disparities in representation come from? On the one hand, a recent article in The Atlantic reminds us that women today earn more college and graduate degrees than men do, so the issue isn’t competence (http://www.theatlantic.com/features/archive/2014/04/the-confidence-gap/359815/). Instead, The Atlantic article blames the skewing at least partially on findings that men are more confident than women, and that women’s lower self-confidence holds women back professionally.
However, just last month another article, this one in The New York Times, warned that women who are overly confident may alienate others because they are not “sufficiently feminine,” and cited the story of an academic who was offered a position as a philosophy professor, but the offer was subsequently rescinded after she tried to negotiate a list of “nice-to-have” items that would “make [her] decision easier” (http://www.nytimes.com/2014/03/25/your-money/moving-past-gender-barriers-to-negotiate-a-raise.html). Apparently, we have to be more confident, but not too confident.
“We are asking women to juggle while they are on a tightrope,” according to Professor Linda Babcock, founder of the gender equity program at Carnegie Mellon University. “The research could not be more clear in that we tolerate more aggressive or assertive behavior by men more than women.”
Professor Kelly Ward, who holds a chair in the College of Education at Washington State University and researches academic leadership, attributes the disparities in representation not just to discriminatory workplace practices, but also to women’s parenting choices and their focus on teaching and service over scholarship, which in turn can lead to being passed over for promotion to full professor. These “choices,” which alternatively or additionally could be framed as biological imperatives coupled with societal expectations, could lead to what The Chronicle identified in 2012 as a gender gap in scholarly publishing (http://chronicle.com/article/The-Hard-Numbers-Behind/135236/).
Women comprised just 24.5 percent of scholarly authors in the field of law from 1991 to 2010. The study concluded overall that “women do not publish scholarly articles at rates equal to their presence in most fields” (http://chronicle.com/article/New-Data-Show-Articles-by/143559/). Subsequent studies document that women’s academic articles are cited less frequently than those written primarily by men (http://chronicle.com/article/New-Data-Show-Articles-by/143559/), and men are far more likely to cite their own scholarship than women, which, in turn, leads to lower rates of citation for women scholars (http://chronicle.com/article/New-Gender-Gap-in-Scholarship/145311/).
So what does this labyrinthine of research mean for women professors? Are we less productive scholars than our male colleagues? Is our scholarship less relevant or lower quality? Do we suffer from the “Imposter Syndrome”? Are we paying the “Baby Penalty”? Are these findings a result of external values, biases, or restraints? Is it some combination of the above? Most importantly, now that we know about these disparities, what can we do to ensure that professors of both genders are able to fulfill their potential as scholars?
Via Raja Raghunath:
The next Mountain West Regional Clinical Conference will take place at the University of Denver Sturm College of Law on October 17 and 18, 2014. The planning committee is seeking proposals from clinicians and clinic administrators who are interested in facilitating small-group and breakout sessions during the conference. Although the regional conference seeks to bring together clinicians and clinic administrators from law schools located in the Mountain West states, clinicians and clinic administrators from the entire country are encouraged to attend as well.
The theme of the conference is “Teaching Our Students to be Mountain West Lawyers,” which includes:
-substantive cross-disciplinary practice areas that are emblematic of the Mountain West region;
-innovative pedagogies or clinical service models that are being employed by clinicians around the country; and
-methodologies for encouraging professional identity formation in clinic and promoting life-long learning.
Please send a short description of your proposal to Raja Raghunath ([email protected]) by July 18, 2014.
Sunday, April 20, 2014
Today, we launch a new iteration of the Clinical Law Prof blog. With thanks to Paul Caron and the Law Professor Blog Network, we embark on this new enterprise to serve the vibrant and growing community of law professors devoted to clinical education.
We hope to amplify and magnify the work of clinical law professors, to share resources and ideas and to collaborate with our colleagues online and in social media who are serving our community. We write to advance the twin causes of good teaching and justice.
I am joined by a dynamic cohort of contributing editors. They are talented teachers and lawyers and write from diverse perspectives. They have long experience and are rookies. They teach at large state schools and small private institutions. They live in big and small cities in rich and poor states. They teach at high-profile, well established programs, and they teach in upstart, innovative programs that punch above their weight. They teach live-client clinics, externships, practicums, doctrinal classes, and all of them do more than their job descriptions suggest.
Our inaugural contributors are Bryan Adamson of Seattle, Kim Bart of Duke, Kelly Behre of West Virginia (soon to be of UC-Davis), Warren Binford of Willamette, Kristina Campbell of UDC, Tanya Cooper of Alabama, Meta Copeland of Mississippi College, Jill Engle of Penn State, Carrie Hagan of Indiana, D’lorah Hughes of Arkansas, Robert Lancaster of LSU, Inga Laurent of Gonzaga, Kelly McTear of Faulkner, Kelly Olson of UALR, Brittany Stringfellow Otey of Pepperdine, Danny Schaffzin of Memphis, Kelly Terry of UALR, and Virgil Wiebe of St. Thomas. Their biographies and profiles are at the bottom of this page.
Please contact us with your questions and ideas to make the blog better. Please share with us ideas for stories, leads and other inspirations. Thank you for joining us.
Saturday, April 19, 2014
Good teaching is an act of hospitality toward the young, and hospitality is always an act that benefits the host even more than the guest. The concept of hospitality arose in ancient times when this reciprocity was easier to see: in nomadic cultures, the food and shelter one gave to a stranger yesterday is the food and shelter one hopes to receive from a stranger tomorrow. By offering hospitality, one participates in the endless reweaving of a social fabric on which all can depend - thus the gift of sustenance for the guest becomes a gift of hope for the host. It is that way in teaching as well: the teacher's hospitality to the student results in a world more hospitable to the teacher.
One of the blessings of teaching is the chance it gives us for continuing encounters with the young, but whatever eventually blesses us may at first feel like a curse! We are more likely to survive the curse and arrive at the blessing if we understand that we may be as afraid of our students as they are of us - and then learn to decode our own fears, as well as theirs, for the sake of creativity in the service of the young.
Parker Palmer, THE COURAGE TO TEACH, at 50 (1998)