Thursday, July 17, 2014
The International Journal of Clinical Legal Education just completed its 12th Conference titled “Clinic without Borders,” in Olomouc, a town in the Haná region of the Czech Republic dating back to the 10th Century A.D. The conference was co-organized with the European Network for Clinical Legal Education, and was held at Palacký University, which is nearly 450 years old, and is one of the oldest universities in Central Europe.
The conference was attended by nearly 200 law faculty members and social justice advocates from all over the world. Countries represented included Japan, Cambodia, China, Nigeria, Australia, Belarus, the United Kingdom, Ireland, Brazil, Italy, India, South Africa, Indonesia, Poland, Russia, Georgia, Spain, Canada, Kenya, Hungary, Sumatra, Bali, Finland, Turkey, New Zealand, and more. Approximately ten percent of the delegates were from the United States and included faculty from the Catholic University of America, NYU, American, University of California, Cornell, University of New Mexico, University of Georgia, Columbia, Rutgers, Albany, Georgetown, Washington and Lee, George Washington University, Willamette, and more.
Themes included “Clinic in the Wider Curriculum,” “Growing Clinics around the Globe,” “Multi-Disciplinary Clinics,” “The Growth of Clinics in Europe,” and “Virtual Clinics,” and the papers presented ranged from “The Path to Clinics in the Middle East” to “Clinic in an Era of ‘Crisis’ for Legal Education” to “Developing a Cross-Border Clinical Legal Education Project.” It was a rich exchange of ideas, resources, and collaborative opportunities that reinvigorated many of those who participated.
One area of disappointment expressed during a debrief of the conference was the dearth of paper proposals submitted in relation to the theme of “Virtual Clinics.” According to Johnny Hall of Northumbria University (UK), digital technologies could easily become the “Fourth Wave” in clinical legal education. What caused the lack of interest in presenting on this topic?
One possibility considered is that clinical law faculty members are as uncomfortable with digital technologies as the rest of legal educators. Most of us have not been leaders in integrating education technologies into the law school curriculum, clinical or otherwise. At the same time, we recognized that many clinical faculty and students utilize digital technologies in our law school courses, practices, and lives almost every day in the form of email, course websites, word processing software and files, messaging, social media, digital document storage, internet conferencing, smart phones, tablets, laptops, Internet, scanners, practice management software, social media, clinic websites, digital recordings, and more. We just don’t think the use of these technologies converts our face-to-face clinics into “Virtual Clinics.” Thus, the issue may simply have been one of terminology in the “Call for Proposals.”
After all, we heard stories at the conference of law faculty who were actually operating clinics without a “bricks and mortar” home where students never actually meet their clients in person. Most of us who are integrating these technologies into our law school clinics still rely very heavily on the face-to-face interactions between students and clients and faculty and students that make the clinical experience so rich, especially in certain practice areas such as domestic violence, refugee law, child advocacy, family law, and more.
What would be the consequences both for our students and the populations we serve if we converted a significant number of law school clinics into “virtual” ones? On the one hand, we could better serve rural, disabled, remote, or international clients who normally would not have physical access to our law school clinics, but we also might start to favor certain practice areas such as business law that lend themselves better to remote representation than others. Having a virtual clinic could also exclude those individuals who are too poor to afford the technology needed to access the clinic. These are some of the consequences that we must consider as an educational community in the Digital Age and respond with awareness and intent in designing our courses and curricula within a world of rapidly changing technology and limited resources.
As we met at IJCLE’s 12th Conference and considered the technologies that we already have integrated into our clinical courses and practices in whole or in part, we recognized that many of us have not undergone the thoughtful and intentional design and due diligence that is normally so characteristic of clinical pedagogy. Why? What is it about technology that eschews intention, analysis, and reflection in the clinical community?
We may soon find out. The planners of IJCLE’s 13th Conference are considering organizing next year’s conference around this potential “Fourth Wave” in clinical legal education. The conference will be held July 22-28 in Turkey and will overlap with the meeting of the Global Alliance for Justice Education. Pencil the dates in your calendars now. Regardless of the topic finally selected, if it is anything like this year’s conference, it will be well worth the flight.
Wednesday, July 9, 2014
In addition to directing Penn State Law's Family Law Clinic, I also teach our Family Law lecture course. As I graded the 53 essay exams from that course this May, I was struck by the responses to my exam question regarding custody. When asked to share legal and policy changes that would improve the custody law system's impact on children of divorce, an overwhelming majority of students opined that courts should require children of divorce to meet with a mental health counselor.
Most noteworthy about this groundswell of opinion, expressed in near lockstep during a traditional, don't-talk-to-or-even-look-at-each-other classroom exam, was that I did not teach them this legal remedy--at least not directly.
The casebook I use, Weisberg and Appleton's Modern Family Law, certainly covers the use of "special participants" in custody proceedings. Along with guardians ad litem, custody evaluators, and mediators, mental health professionals are referenced in several cases and notes in the book. Nowhere, however, does the book suggest or ask readers to consider whether parents should be ordered to have their children seek therapy. Neither do I in my teaching--although frankly I think it is a sound and thoughtful policy idea, regardless of whether it would, could or should be legally mandated.
These students organically generated the mass "discussion" that played out in my brain as I read response after response saying virtually the same thing--children of divorce need to process the trauma that divorce brings to their lives. The latter concept--the trauma of divorce--I did teach directly. The casebook covers it in some detail, including empirical data that raises more questions than it answers. And my delivery in class stressed that. The experts cannot agree. The courts cannot agree. Comparing systems state by state, county by county, and sometimes even judge by judge, yields a dizzying array of approaches, policies, mandates and procedures just on the issue of utilizing experts in custody cases, not to mention the achingly unhelpful "best interets" standard.
Thus I was struck again a few weeks ago as I delved into the Association of Family and Conciliation Court's April 2014 edition of The Family Court Review. It is a special issue dedicated to "Closing the Gap" on "Research, Policy, Practice, and Shared Parenting." Yet as articulated by Dr. Sanford Braver, professor emeritus of psychology at Arizona State whose research has focused for decades on divorcing families, the AFCC's special issue "fails to say very much" and leaves the reader with the message that "the issue of shared parenting is a really good question, but we cannot, at this point at least, agree on how to advise you."
Braver is right on that point. I am not sure whether I agree with his bolder assertion which follows, that shared parenting should be the jumping off point for custody courts. What I am sure of is that come August, I will teach my clinic students about custody law by sharing these twin concepts: custody law is mercurial at best, and discussing the potential involvement of mental health professionals with client's lives, regardless of whether it is part of a court-based process, is sound legal advice for a family lawyer swimming through these murky waters.
Tuesday, July 1, 2014
There has been rightful focus on the Supreme Court’s most groundbreaking recent pronouncements: rejection of warrantless cellphone searches, establishing for-profit corporations’ rights to religious choices (!), and mandatory union dues curtailments. Because it was not, perhaps as socially consequential as those decisions, last Wednesday’s 6-3 ruling against Aereo, an upstart Over-The-Top (OTT) internet service, went under the radar, so to speak. Speaking to the Media Law and Policy teaching side of my brain, the Court held that Aereo, an internet provider of broadcast programs, directly violated the copyrights of ABC, FOX, CBS, NBC, and other “traditional” broadcast networks. The decision preserved—for now—broadcasters’ exclusive ability to control the re-transmission and licensing of its programs. On the other hand, the decision was a temporary setback for the ‘cord cutters.’
Cord-cutters, most of whom are Millennials, are those media consumers who have elected to do away with traditional television viewing, going so far as not just refused to subscribe to cable television, but not own a television at all. As a result, cable companies have seen a marked decline in subscribers. At the same time, broadcast and cable companies have chased viewers onto the internet, their laptops, their tablets and their smartphones. Television networks, in fierce competition with the likes of online networks such as Netflix, YouTube, and Amazon Prime, have Hulu, Hulu Plus, or their own online channels streaming network content. Aereo posed a real and further threat to cable and broadcast television revenue streams.
Broadcast networks bring in billions of dollars per year from cable companies by permitting them to air broadcast programs such as ABC’s Modern Family. In addition, the owners of those shows (which may or may not be the network’s parent company) can yield untold revenue by licensing syndication rights to cable networks or OTT streaming networks such as Netflix. In that context, it should be apparent why the networks were so concerned about Aereo, whose technology captured broadcast signals by way of miniature antennas on large antenna boards, and provided broadcast program downloading and time-shifted viewing or recording. While charging subscribers between $8-$12 per month for the service, Aereo paid the program owners nothing.
The broadcasters executed a bold legal strategy that paid off. They argued that Aereo was legally liable for direct infringement (primarily liable for re-transmitting copyrighted work), as opposed to indirect infringement, or secondary liability. For the Supreme Court, the issues came down to two seemingly simple questions: Was Aereo performing a copyrighted work, and if so, was it performing it publicly? Justice Breyer, writing for the majority, answered both questions “yes.”
Aereo’s position was that it was simply a “dumb pipe”—like a set of rabbit ears or a VCR—that any consumer could purchase and use to watch or record programs. Justice Scalia, in dissent with Justices Alito and Thomas, agreed, arguing that Aereo was more like the Kinko’s that provides a patron with the library card: It’s the patron that may violate copyright law when copying the book, not Kinko’s.
The majority disagreed, and held that Aereo was acting more like a cable company, through which subscribers can elect which shows to watch or record. Moreover, despite the fact that Aereo technology assigned an individual to each antenna, and even if subscribers were watching the same show, a separate copy of the show was made for each viewer, the Court said Aereo was providing the show to the public. Consequently, Aereo was bound to seek copyright permission from the copyright holders—just like cable companies.
The decision will likely ring the death knell for Aereo and similar streaming servicers (e.g., FilmOn), if Aereo’s weekend decision to suspend its streaming service is any portent. On the other hand, the decision was a tremendous victory for broadcast networks. By ruling not just that Aereo was liable for copyright infringement, but directly liable, the Court spared television program copyright owners the fate that befell the music industry. The Napster and Grokster decisions caused the record industry to engage in nearly a spate of “John and Jane Doe” lawsuits—chasing individual consumers for alleged or actual illegal downloading and sharing of music. Those lawsuits—tens of thousands—proved to be both economically costly and a public relations disaster for the industry. Copyright holders of television broadcast content, for now, will be spared a similar fate.
Even if Aereo ceases to exist in its current form, there are other internet businesses that allow consumers to view broadcast programming without the aid of cable or satellite infrastructure. In addition, virtual multiple-system operators are seeking to aggregate television channels and deliver them by broadband connection. However, under any regime, how the business makes money will be, well, the $64,000 question. In light of the Supreme Court’s Aereo decision, paying for content from television broadcasters will be a given for the foreseeable future. For now, cord-cutting Millennials will have to find another OTT to watch their favorite broadcast show.