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.
Tuesday, June 10, 2014
Our nation is currently witnessing headlines about the busing of hundreds of unaccompanied children across the Southwest from Texas to Arizona, where they are being warehoused, but there are tens of thousands more unaccompanied children in our nation who are not making headlines. All need our help. Tomorrow Gannett is publishing an op-ed I wrote about the need to provide legal representation for these children. It can be found here.
Law school clinics interested in this issue should consider applying for the AmeriCorps grants that the Obama administration announced on Friday to provide legal representation for these and other migrant children who are in similar circumstances (see NYT article). Information about the grants can be found at this site. The targeted jurisdictions for the grants are: Arlington, VA; Atlanta, GA; Baltimore, MD; Bloomington, MN; Boston, MA; Charlotte, NC; Chicago, IL; Cleveland, OH; Dallas, TX; Denver, CO; Detroit, MI; El Paso, TX; Hartford, CT; Kansas City, MO; Las Vegas, NV; Memphis, TN; Miami, FL; New Orleans, LA; New York, NY; Newark, NJ; Omaha, NE; Orlando, FL; Philadelphia, PA; Phoenix, AZ; Portland, OR; San Antonio, TX; San Diego, CA; San Francisco, CA; and Seattle, WA.
If you need background in preparing your application, an excellent study about these children was just published by UC Hastings with the support of the MacArthur Foundation. I recently wrote a brief law review article arguing for the appointment of government-funded attorneys and personal representatives to help unaccompanied children navigate the legal labyrinth they face. If you would like to talk or need help with your application, please don’t hesitate to contact me. You will also find tremendous resources among our our colleagues who are immigration law faculty. They are a font of knowledge, passion, and commitment. Good luck!
Wednesday, May 21, 2014
Below is a trailer for a movie that I am planning on seeing this summer...that is if I can find it within a 300 mile radius of Spokane, Washington. "The Rules of Racism" is the third movie in the series "Hidden Colors" from New York Times bestselling author, Tariq Nasheed. The previous two films in the series are "Hidden Colors: The Untold History of People of Aboriginal, Moor, and African Descent" (2011) and "Hidden Colors 2: The Triumph of Melanin" (2012).
WARNING: If you watch this video on YouTube and glance below the video to the comments section, prepare to be outraged, amused, befuddled, disheartened and a host of other emotions...
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).
Thursday, May 8, 2014
In my first post about service-learning, I asked the question: who is serving whom? In this post, I want to reflect on why I think service-learning is important in the law school curriculum, and how it is different from and expands upon the skills and values we teach in law school clinics.
My first experience with service learning was almost twenty years ago, when I was an undergraduate student at Saint Mary's College. As part of our exchange with our neighbor, the University of Notre Dame, I participated in several alternative spring break experiences through Notre Dame's Center for Social Concerns. In fact, it was my participation in the Migrant Experiences Seminar as both an undergraduate and as a law student that set me on the path toward immigrant advocacy in my legal career.
Experiential learning generally - and service-learning in particular - has recently gained more traction in the law school curriculum. But what is the specific value of integrating service-learning more fully into the law school experience, and how is it different from other experiential learning opportunities? My UDC-DCSL colleague, Professor Susan Waysdorf - who has written extensively about service-learning in the law school curriculum - describes service-learning as programs that "place primary value on the service contribution and on the humanitarian participation of the students and teachers."
Professor Waysdorf's definition of service-learning resonates with me because it emphasizes the value of service-learning in the law school curriculum not just to our students, but to us as educators, as well. What do we, as teachers, gain by "giving up" our spring break to spend time with our students on these trips? What are we ourselves learning and teaching our students about the skills and values of the legal profession, and how do we distinguish it from what we teach in clinic?
I often describe clinic as a lab - in clinic, our students are able to work on a small number of cases chosen specifically for their pedagogical value, in a controlled environment and under close supervision. In service-learning, the set-up is dramatically different - both students and teachers are taken out of the safety of the clinic environment, and put in a situation where they are required to be vulnerable. Service-learning allows us to learn from those whom we are "serving" in a way that makes the experience powerful and disarming, precisely because of its lack of structure (in comparison to both clinics specifically and the law school curriculum as a whole).
In my final post in this series, I will share some stories of our service-learning experiences on the Arizona/Mexico border, and reflect further on how the addition of such opportunities to the law school curriculum can be profoundly life-changing for both students and teachers.
Teaching the Reflective Approach Within the Service-Learning Model, Laurie Morin and Susan L. Waysdorf, 62 Journal of Legal Education 4 (2013).
Returning to New Orleans: Reflections on the Post-Katrina Recovery, Disaster Relief, and the Struggle for Social Justice, Susan L. Waysdorf, 12 Univ. of the District of Columbia Law Review 3 (2009).
Katrina Disaster Family Law: The Impact of Hurricane Katrina on Families and Family Law, Mc-Carthy-Brown and Waysdorf, 42 Indiana Law Review 721 (2009).
Thursday, May 1, 2014
The day after I published my first blogpost, my 11-year-old daughter persuaded me to buy The Ultimate Worst-Case Scenario Survival Handbook. We pretended it was for her, but I knew better. Shortly after she handed me the text, I noted Chapter Five was titled “Mean Streets: Urban Survival,” which included an entry on “How to Clean Up Your Online Reputation.” One post and I already felt compelled to do damage control. The fact that the advice could be found somewhere between “How to Cross a Piranha-Infested River” and “How to Outrun a Pack of Zombies” pretty much cinched it for me.
What titles better capture the anxiety of a 40-something law professor venturing into the realm of social media? Don’t they know that law professors don’t do media? Heck. We don’t even do “social.” That is why we are professors! Many of us aren’t even trustworthy with a “Reply All” email function after a rancorous faculty meeting (http://www.uomatters.com/2014/04/uo-law-school-prof-angry-about-plan-to-use-his-raise-for-scholarships.html), let alone a digital platform that transports our late night ramblings instantly and permanently to 2.5 billion Internet users all over the globe.
But Worst-Case Scenarios can bring out the Indiana Jones in all of us, and right now, legal educators need to dig deep into our “Urban Survival” kits. Moody’s recently downgraded several independent law schools (http://www.nationallawjournal.com/home/id=1202651992392/Independent+Law+Schools+Suffer+CreditRatings+Slips%3Fmcode=1202617074964&curindex=2); The New York Times reported this month that five law schools have closed in the past two years (http://www.nytimes.com/2014/04/05/business/bold-bid-to-combat-a-crisis-in-legal-education.html?_r=0), although legal educators struggle to identify them (http://www.thefacultylounge.org/2014/04/five-law-schools-have-closed-in-the-last-two-years.html); and all the while, enrollments continue to plummet (http://www.lsac.org/lsacresources/data/three-year-volume). So we law professors are starting to do something truly radical (at least for us): we are trying new verbs. We are tweeting, blogging, posting, tumbling, linking, and more. But do we know what we are doing or why? Of course not! Thus, The Chronicle of Higher Education published a series of articles in The Digital Campus this week helping all of us to better appreciate and understand the importance of social media in the academy (http://chronicle.com/section/The-Digital-Campus-2014/715/).
If a Luddite like me (who cannot figure out how to turn off iTunes on her iPhone after listening to a little Eddie Vedder) can figure out how to Tweet, so can you! Here are some fast facts about social networking and survival tips for those of us who are Twittering on the brink.
Ever wonder what your students are doing in class? They are on Facebook posting or reading someone else’s posts or messaging, possibly about your suit, but let’s hope it is about the class discussion (in a good way, of course). Don’t believe me? Sit in the back of a large lecture hall and witness it yourself. Eighty-four percent of 18-29 year-olds and 79 percent of 30-49 year-olds are on Facebook (http://www.mediabistro.com/alltwitter/social-demographics-2013_b53515#more-53515). Heck. Even my 90-year-old grandma is on Facebook. But my grandma is not why you need to be on Facebook, it is because our students are, as are our alumni, and our competitors…er, colleagues, at other law schools.
Facebook is where our students engage, sometimes even when they are in class. It is the digital town square where people go to socialize and engage, so if you are not in the town square, you are not part of the conversation. But here’s the irony: law school social media etiquette is that most professors and students do not become Facebook friends until after they graduate. Why? Professional boundaries. You really don’t want to see that picture of your students with their buddies and a pile of empty PBR cans when they are supposed to be studying any more than they wants to see you vacationing at your cabin with your family when you are supposed to be grading.
So why do it? Once our students graduate, there is a little more distance and Facebook provides a wonderful way to keep in touch with our former students. We get to witness weddings, new babies, moves to new cities, travel, and more. It allows our professor-student relationships to be transformed into lifelong friendships, and that is worth learning new tricks, at least for this old dog.
So what social media can you use with your students while they are still your students? LinkedIn. Of all the mainstream social media platforms, LinkedIn is consistently the most formal and professional. Currently, LinkedIn is used by 15 percent of 18-29 year-olds and 27 percent of 30-49 year-olds (http://www.mediabistro.com/alltwitter/social-demographics-2013_b53515#more-53515). It is the only social networking site surveyed that is used more by people in the $75k+ salary range than in any other salary category (http://www.mediabistro.com/alltwitter/social-demographics-2013_b53515#more-53515). Given that most of our students will enter this demographic shortly after graduation, we need to model for them how to use LinkedIn and so I routinely “link” with potential new law school students whom I meet as well as students enrolled in my courses every semester. It helps them develop a professional profile and network and allows you to become updated quickly on the professional activities and positions of your students and alumni. This is especially important when you are asked to serve as a reference or write a letter of recommendation or simply help your law school compile placement data.
Dare to Tweet
Another social media platform to consider using to engage with your students (and potential students) prior to graduation is Twitter. A 2013 Pew Research center survey found that 31 percent of 18-29 year-olds and 19 percent of 30-49 year-olds use Twitter (http://www.mediabistro.com/alltwitter/social-demographics-2013_b53515#more-5351). Twitter's use among adults under 40 years of age (law schools’ key demographic) has more than doubled since 2010 (http://www.emarketer.com/Article/Twitter-Use-Rises-Across-US-Age-Groups/1010119), and the latest data shows that 71 percent of
Twitter users are 29 years of age and younger (https://www.sysomos.com/docs/Inside-Twitter-BySysomos.pdf); in other words, the age of our students and potential students.
The beauty of Twitter is that it is a one-way street (unless you decide to reciprocate). You simply put your ideas and observations out there for any of the 300+ million Twitter users to read, and if you are interesting (at least to some) or a celebrity, you might develop a following. The pain of Twitter, especially for law professors, is that you are limited to 140 characters per Tweet. Some say it makes Tweeters better writers, but others would argue that any communication forum that encourages the dropping of vowels and the use of contractions should be shunned forever.
In any event, Twitter allows you to share links to recommended readings for your students (or other followers), post links to your publications, update your followers on lectures, and more without getting as personal as one might on Facebook, for example. At the same time, The Chronicle published an opinion this week suggesting that getting at least a little personal on Twitter might make you appear more authentic (http://chronicle.com/article/In-Defense-of-Getting-Personal/145945/). And don’t worry, as painful as limiting your thoughts to 140 characters might sound, there are plenty of resources (see, e.g., http://www.pcmag.com/article2/0,2817,2387516,00.asp) to teach you how to tweet in a way that won’t make you look too much like, well, a law professor Twittering on the brink….
Sunday, April 27, 2014
Twenty years ago today, the first elections were held in a free and democratic Republic of South Africa, and Nelson Mandela was elected the country’s first president. For many of us in the clinical community, ending the incredibly racist and violent apartheid regime was our first endeavor into seeking global justice, and was undertaken in our formative years. Although our individual efforts seem relatively immaterial, history documents that the international economic and political pressures imposed on the apartheid government played a decisive role in ending a regime that was built on the oppression, exploitation, and political and economic exclusion of others. Our witness of the ability of humanity to work together on a global basis to end apartheid in South Africa inspired many of us to make optimistic lifelong commitments to work towards global justice and to teach others to do the same. “Education is the most powerful weapon which you can use to change the world,” Nelson Mandela taught us. Today, we have the honor of witnessing and supporting so many teachers in the clinical community and beyond who continue to heed the lessons we learned from Nelson Mandela. These heroes of law and democracy use education every day to promote justice and the rule of law, and to end oppression, exclusion, and exploitation all around the world. Happy 20th Anniversary to the Republic of South Africa, and to everyone everywhere who supports and promotes freedom and democracy!
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.
Last week at Pepperdine, in advance of the new admissions rules for the California bar, at the urging of our dean, the faculty approved new graduation requirements of 50 hours of pro bono work for students and 15 units of “practice-based, experiential course work.” These will be in effect for the incoming class of 2017.
These requirements track the new California bar rules for admission. The California State Bar’s Task Force on Admissions Regulation Reform (TFARR) has established working groups to work out the definitions and procedures for implementing the new rules. There is more here.
The Task Force plans to work until September 2014 before issuing final rules. This is the text of the pertinent rules from the site:
Pre-admission: A competency training requirement fulfilled prior to admission to practice. There would be two routes for fulfillment of this pre-admission competency training requirement: (a) at any time in law school, a candidate for admission must have taken at least 15 units of practice-based, experiential course work that is designed to develop law practice competencies, and (b) in lieu of some or all of the 15 units of practice-based, experiential course work, a candidate for admission may opt to participate in a Bar-approved externship, clerkship or apprenticeship at any time during or following completion of law school;
Pre-admission or post-admission: An additional competency training requirement, fulfilled either at the pre- or post- admission stage, where 50 hours of legal services is specifically devoted to pro bono or modest means clients. Credit towards those hours would be available for “in-the-field” experience under the supervision and guidance of a licensed practitioner or a judicial officer. . . .
These are some of the outstanding issues for the implementation committees:
What does “pro bono” include? Will the rule limit pro bono to traditional legal services placements? Will the Bar track ABA Model Rule 6.1? Will be it broader or more narrow? Will it track New York’s rule that includes judicial externships, district attorneys and governmental law offices?
Will students be able to earn “dual credit” by taking a clinic or similar course that offers “practice-based, experiential course work” and pro bono services simultaneously?
Who will certify whether a course is practice-based and experiential? Will the Bar approve specific offerings or defer to law schools to determine which courses qualify?
Should a portion of the 15 units include clinics or externships? For instance, the committee is considering whether to require that 3 or 4 of the 15 units be in-house clinics or field placements.
Can substantive, doctrinal classes carve out a portion of the traditional podium course to include experiential components that can count toward the 15 units? For instance, could a contracts class provide .5 units toward the requirement by including a simulated drafting or negotiation component?
Can students satisfy all or part of the apprenticeship option during traditional summer work, and, if so, how will law schools be involved in the quality control and certification of compliance?
In future posts, I will describe the competing positions, my preferences and make some predictions.
Thursday, April 24, 2014
The Merriam-Webster Dictionary defines a vocation as "a strong desire to spend your life doing a certain kind of work." This definition of vocation implies a calling to a particular field of work, a devotion to a cause or occupation that is more than just a job - a vocation is something that is, by definition, imbued with meaning and a higher purpose.
I have always thought of my career in law in its various incarnations as a vocation. As a lawyer, counselor, activist, and teacher, the connection between my daily work and what I see as one of the main purposes of my life (the pursuit of social justice) has been rich. But like anything else, the law is a tool that can be used to accomplish various ends - or, as Charles Hamilton Houston famously reflected, "A lawyer is a either a social engineer or a parasite on society."
One of the reasons I wanted to not just become a law professor, but to become a clinician specifically, is because of my view of law as a vocation. It seems to me that our society, rightly or not, presents the "parasite" model of lawyering much more prominently than the "social engineer" model. While both models of lawyering are extreme, and the truth lies somewhere in the middle, I think this false dichotomy of what it means to be a lawyer causes us to lose something much more subtle and valuable - the notion that law is an honorable profession, and that lawyering can and should be more than just a job.
I am also aware of the temptation in our society to both romanticize (John Grisham) and sensationalize (Law and Order) the practice of law. My reflection of law as vocation is meant to get at something a bit different. At its core, law is a healing profession. If law is a vocation, lawyers are not merely hired guns - we are problem solvers. Lawyers are counselors and advocates - we stand by and walk with our clients not just because the rules of professional conduct require us to, but because our vocation calls us to do so. This is what I have learned from my teachers, colleagues, and students over the course of my career, and is ultimately part of the vision of lawyering and legal education that I hope to contribute to.
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).
Tuesday, April 22, 2014
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.
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?