Clinical Law Prof Blog

Editor: Jeffrey R. Baker
Pepperdine University
School of Law

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.

June 3, 2016 in Children, Current Affairs, Domestic Violence, Film, Teaching and Pedagogy | Permalink | Comments (0)

Wednesday, May 25, 2016

The Night in Question, a guest post at the Pepperdine Scotland theater company blog

Pepperdine Scotland is a company in our theater department, and they are producing an original play for debut at the Edinburgh Fringe Festival this summer. Irish playwright Lynda Radley is developing an intense, complex story of sexual assault on American college campuses, with production and direction from Alex Fthenakis and Cathy Thomas-Grant. I have had the singular opportunity to serve as a consultant for the play and to share time with the cast and crew.

Stepping out of our clinics and law schools to participate with other  disciplines in other departments can yield invigorating results. Consulting on the play has made me think more deeply about narrative structure and storytelling.  Thinking about this play and this story has reminded me that these issues and relationships always exceed the bounds of legal definitions and invoke cultures, structures, societies, and deep histories. Working with creative artists, writers, and students reminds me that we can always have more and different ways to do our work. To see a production take flight from scratch inspires me to create and gives me courage to take on new endeavors with faith that we can speak to the world.    

The Interference will be a powerful, important work. I can't wait to see it next year at Pepperdine.

I have the honor of contributing this guest post to the company blog, and I'm very proud to play even a small part in this production.

An excerpt:

I am grateful and proud to contribute some ideas for The Interference this year. Lynda Radley, Alex FthenakisCathy Thomas-Grant, and the Pepperdine crew and cast are undertaking a critical and hard project. The night in question will always matterthe facts, the tick-tock, the actions. But the night in question only really matters in the context of the lives and communities in question. 
The Interference is an ambitious attempt to explore the hyper-local relationship, on the night in question, between the young man who wants possession of the young woman’s body and the young woman who loses possession of her body to him. It is even more ambitious to explore the lives in question all around them, the life of the university, the life of fraternities, the life of friends, the life of the team and its fans, the life of the law, the life of the family. 

May 25, 2016 in Domestic Violence, Interdisciplinary Programs, Teaching and Pedagogy | Permalink | Comments (0)

Tuesday, September 16, 2014

Professor Sarah Deer Is a MacArthur Fellow!

I admit that the one email I dread every September is the announcement of the MacArthur Fellows --nothing like feeling totally inadequate three weeks into the new school year by reading about the exceptional accomplishments of this extraordinarily creative and hardworking group of individuals.  I personally much prefer the announcement of the Darwin Awards. 

But this year when I saw the dreaded email from the MacArthur Foundation, I quickly noted that the clinical community’s own Sarah Deer has been selected!  Professor Deer is on the faculty of William Mitchell College of Law and is co-director of their Indian Law Clinic.  She is a tireless advocate who has been instrumental in developing legal protections for Native American victims of domestic violence.  A description of Professor Deer’s work can be found here.  A full list of this year’s MacArthur Fellows can be found here.  Congratulations, Professor Deer, on a truly extraordinary and well-earned distinction!        

September 16, 2014 in Clinic News, Clinic Profile, Current Affairs, Domestic Violence, Faculty Profile, Family Law, Job Opportunities & Fellowships, Promotions, Honors & Awards | Permalink | Comments (0)

Friday, April 25, 2014

Op-Ed on Paroline v. U.S.

Here is an op-ed I wrote for Gannett on the U.S. Supreme Court's decision in Paroline vs. U.S.:  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. 

April 25, 2014 in Children, Clinic Victories, Current Affairs, Domestic Violence, Family Law, Juvenile Justice, Supreme Court | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 23, 2014

SCOTUS Decision Issued in Paroline v. U.S. Today

This morning the U.S. Supreme Court issued its decision in Paroline v. U.S. (  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 ( and I previously published a guest opinion on Paroline v. U.S. with Jurist (


April 23, 2014 in Children, Criminal Defense, Current Affairs, Domestic Violence, Family Law, Juvenile Justice, Supreme Court | Permalink | Comments (0) | TrackBack (0)