Friday, June 3, 2016
Judgment By Social Media and Tweeted "Expertise" - Three Cases From The Cincinnati Zoo, The Forests of Japan, and Amber Heard's Marriage
As lawyers we oftentimes have to suspend our personal judgment of our clients, their choices and their circumstances. As clinicians we regularly train and remind our students on this suspension. Not only does this suspension preserve rapport, but it also allows for better representation of the person, as we just have to take them for who they are, not who we think they should be. Best practices and professional rules also remind us of client-centered representation, directing that choices are the client's choices and not ours, and that's its not all about us. Professionally this suspension of judgment can be a struggle - as a lawyer you may know "what's right" or "what's best" but the client chooses otherwise. And we must accept that.
If only we as a society were charged with this suspension of judgment - but as anyone can tell from the news this week, people are quick to judge others, and their choices, and proffer various social media statements to tout their judgment and expertise. (Ironically we also have a process for declaring and establishing expertise in the legal field, via our rules of evidence, which Twitter appears not to follow). Anyone can judge or be an expert in social media - just take a look at this week's fodder:
1) The Death of Harambe: Let's face it. Everyone loses in this situation. If the zoo didn't kill the gorilla, the child might have died and folks would be standing outside the exhibit with candles and posters in memoriam of the boy. Instead the zoo kills the gorilla, and even though they saved a child, someone must be to blame - distracting iPhones, parents, zoo architecture - you name it. Mom apparently is an administrator at a preschool, leading many to now call for her resignation. Because the two go hand in hand.
2) Abandonment in Hokkaido: To leave or not to leave a seven year old boy on the side of a mountain road in deep bear country forest for throwing stones? That was the question. Parent's call? To leave. Is it neglect or within the boundaries of discipline? You decide. Everyone else is.
3) Let's all kick Amber Heard while she's down: Maybe, in a couple of weeks, we will forget doing so, just like her husband allegedly did. It's times like these that make those us of doing domestic violence work cringe. Who is Amber Heard? If you hadn't heard of her (no pun intended) you certainly have now. Heard is the much younger wife of actor Johnny Depp who filed for, and was granted, a restraining order against him. Various photos of her with injuries have emerged, injuries that were allegedly caused by Depp - but where does the public support lie? Mainly with Depp. Why? Because it's her fault, of course, that this happened. She "exacerbates Depp's 'jealousy issues'" as allegedly Depp is incredibly insecure about her. She's also just in it for the money apparently, there being no prenuptial agreement and their divorce filed in California (the laws in California entitling her to fifty percent of what he has made during the marriage). Lastly, her bringing these issues out publicly just confirms that their marriage, and her involvement in it, have just been "nonstop drama".
As lawyers we have standards for these sorts of judgments and admissible statements. We also have a saying, "innocent until proven guilty". Yet as social media shows us time and time again, judgement is swift, fleeting and generally contained within 140 characters. Perhaps we should remind ourselves that #glasshousesarefullofhotair.
Friday, June 13, 2014
I just received a copy of Changing Lives: Lawyers Fighting for Children, which was edited by Lourdes Rosado, Associate Director of the Juvenile Law Center, and published by the ABA Section of Litigation Children’s Rights Litigation Committee. The book highlights the key role that children's attorneys can play at defining moments in their lives, including in juvenile dependency and delinquency courts, immigration proceedings, school proceedings, and impact litigation, for example. There is a teaching guide available for the book. The ABA is offering a 20% off discount through June 23 with the discount code LIVES20. The ABA may also be able to offer your students a discount code if you want to use this book in your clinic or another course. It is also expected to be published as an e-book, at a discounted rate. Contact Cathy Krebs at Cathy.email@example.com for more information. Here is a description:
"The book Changing Lives: Lawyers Fighting for Children demonstrates the critical role that lawyers play in changing the life courses of our most at-risk children. Without legal representation, the children profiled in this book likely would have gone down a path that was detrimental to their safety, their well-being, and ultimately their ability to grow into happy and successful adults. Changing Lives: Lawyers Fighting for Children well illustrates the difference that a highly trained and skilled attorney can make in the life of a child in need. Each chapter of the book profiles a real child in a variety of substantive areas that include:
• Child welfare (abuse and neglect)
• Juvenile delinquency
• Special Education
• Runaway and homeless youth
The chapters also include practice tips and checklists, as well as resources for developing the expertise needed to zealously represent children in crisis to achieve the best outcome and ultimately help them grow into happy and successful adults.
The authors of Changing Lives: Lawyers Fighting for Children hope to raise awareness about the need for legal representation for children and to encourage and support attorneys who advocate for children."
Wednesday, May 28, 2014
Today is the 171st day of school at my daughters’ elementary school. I know this because our Second Grade teacher sends out an email to all of her classroom parents every day to report on what they have done during the day. It has been a gift, especially for parents familiar with fairly bland reports from their kids.
“How was your day?”
“What did you do?”
“I don’t know.”
Here is some of her daily email for today, the 171st day:
You have 4 things to return this week: yellow Field Day permission slip, $10 donation to go towards the inflatables, 3 pages of math homework and the stamped envelope for your child's 10 year letter.
Friday is the last day to turn in a new toy for …. our project for Children's Hospital.
What did we do today?
double dose of Harry Potter
measuring and graphing activity-- the kids measured objects and showed the data on a line plot
Word of the Week-- the kids alphabetized ALL of their word of the week pages to be bound in a personal dictionary that will come home Monday with our last at-home project
Language Arts--we "popcorn" read Brothers and Sisters and the kids worked on comprehension, vocabulary and phonics
Have a wonderful night!
She does this every single day.
Besides being good for teacher-parent collaboration, the pedagogy really is wonderful. First, the teacher’s organization is incredible. Of course, all good elementary school teachers need precise lesson plans, but Ms. H pulls off an astonishing and unrelenting feat to execute this every day. As I have spent today planning for a new clinic course that meets for two hours, once per week, I stand amazed at this teacher who plans down to the minute for over six hours of teaching, five days per week, for 171 days so far.
Second, she always demurs when I have praised her for these emails, saying that it only takes her a few minutes and that she has the kids’ help. Not only does this further demonstrate her organizational discipline, it illuminates really good teaching. At the end of each day, she asks the students to help her fill in the topics of her email, at once making them reflect on their day, helping them learn to communicate and organize, and preparing them for further reflection with the parents.
Third, it creates accountability for her. She has committed to this report to parents every day. She is transparent and pleasant, but it also must generate continuing motivation on days when she must get exhausted. Although we have never discussed it, I imagine that the looming email motivates her when she’d rather rest or let the kids goof off for a day.
For this clinical professor, she first inspires me to consider the need for precise, detailed, relentless planning. Second, she prompts me to integrate constant student reflection on the work of the day but also to invite the students into the work of the classroom itself, to bring them into the pedagogy and the method of the class. Third, to volunteer to impose such a mechanism for accountability on oneself can be a very powerful tool to maintain the pace and productivity of the school year.
Let us all hail the elementary school teachers.
Tuesday, May 13, 2014
A high-impact decision was issued by the European Court of Justice today when it held that Google must adhere to the requests of individuals to erase links to information that is “inadequate, irrelevant or no longer relevant” (http://www.bbc.com/news/world-europe-27388289). The case was brought by a Spanish man who did not want an auction notice for a repossessed home he had owned to be retrieved in response to searches of his name. The emerging legal concept, the “right to be forgotten,” is largely European and grows from the region’s well-established and widely-recognized body of privacy rights.
George Washington University Law Professor Jeffrey Rosen, who is also the Legal Affairs Editor of The New Republic, calls the “right to be forgotten” the “biggest threat to free speech on the Internet in the coming decade” (http://goo.gl/pq4UHC). A more comprehensive treatment of this right was published by Steven Bennett and can be found here: http://goo.gl/0nY227. Professor Rosen’s response to the emergence of the right to be forgotten is hardly surprising in a society like ours whose passion for free speech is only matched by our love of guns and money. But at what price?
Viviane Reding, the European Commissioner for Justice, Fundamental Rights, and Citizenship praised the ruling as a step out of the “digital stone age.” That stone age is one in which our children are often among the most vulnerable. Over ten years ago, Michigan State University Law Professor Kevin Saunders published a book examining the effects of the First Amendment on our nation’s children, Saving Our Children from the First Amendment (http://nyupress.org/books/book-details.aspx?bookid=9489#.U3Jqumjn-1s). Since then, we have witnessed an exploding occurrence of cyberbullying, sextortion, sexting, and exchange of sex abuse images involving our children and youth. While there are clearly exceptions to First Amendment freedoms for some of the challenges our children and youth face in the Digital Age, the fact remains that many of our children will carry a burden that we have never experienced as their youthful impulses, indiscretions, and, in some cases, victimizations, will be forever published and available on the Internet for others to witness again and again, unless the United States begins to more widely recognize a right to privacy.
Who among us isn’t thankful that those cellulose acetate images of a certain Spring Break in the Bahamas or that post-college graduation train ride across Europe or the election night victory party are degrading in someone’s attic right now? After all, as Scientific American reminded us yesterday, even the brains of mice, Chilean rodents, and guinea pigs know that some things are better forgotten (http://www.scientificamerican.com/article/new-brain-cells-erase-old-memories/?&WT.mc_id=SA_DD_20140512).
Friday, April 25, 2014
Here is an op-ed I wrote for Gannett on the U.S. Supreme Court's decision in Paroline vs. U.S.: http://www.statesmanjournal.com/story/opinion/2014/04/25/congress-listen-child-sex-abuse-victims/8172953/. The battle to help restore victims of child pornography will now shift to Capitol Hill. There is a critical role for law school clinics to play and I hope that you will consider joining the effort.
Wednesday, April 23, 2014
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).