Clinical Law Prof Blog

Call for Papers: "Children's Rights and Responsibilities in Africa"

The AALS Section on Africa is pleased to announce a Call for Papers from which 2-3 additional presenters will be selected for the section’s program to be held during the AALS 2018 Annual Meeting in San Diego on “Children’s Rights and Responsibilities in Africa.” The program is co-sponsored by the AALS Section on Children and the Law and the AALS Section on International Human Rights. The call for papers seeks authors of published or unpublished papers that consider the rights and responsibilities of children on the African continent.

Background: The United Nations Convention on the Rights of the Child is the most widely ratified human rights treaty in the history of the world. A look at the drafting history of the CRC indicates that African countries were not proportionally represented in the drafting process, arguably due to a lack of resources and a dearth of diplomatic representatives in post-colonial Africa. Although some feared that the North-South divide in the drafting process would prevent the universal acceptance of the treaty, the fact is that the continent was strongly represented among the first countries to sign and ratify the treaty.

African countries did not stop there. They criticized the CRC for not going far enough in protecting children’s rights and taking into consideration African cultural values (such as the notion that children also have concurrent responsibilities) and issues, such as apartheid, child marriage, child labor, child trafficking, children in armed conflict, and harmful cultural practices. African nations converted this criticism into the first regional children’s treaty, the African Charter on the Rights and Welfare of the Child. Africa also is home to the first nation, the Republic of South Africa, to include many of the principles of the CRC and the African Children’s Charter in the nation’s constitution.

Despite the leadership that the African continent has offered in developing an international legal framework for children’s rights and responsibilities, the consequences of colonial occupation has led to a perception that children’s rights have not been recognized in many areas, ranging from gender discrimination to education to economic security and more. This call for papers is intended to advance the dialogue related to both the creation and fulfillment of children’s rights and responsibilities, especially as they relate to children in Africa.      

Thus, the Section on Africa invites any full-time faculty member of an AALS member school who has authored a published or unpublished paper, is writing a paper, or is interested in writing a paper on this topic to submit a 1- or 2-page proposal to the Chair of the Section by August 31, 2017. The Executive Committee will review all submissions and select proposals for presentation as part of our AALS 2018 Program.

Please  share this call for papers widely and direct all submissions and questions to the Chair of the AALS Section on Africa:

Professor Warren Binford

Willamette University College of Law

[email protected] 

503-370-6758                

 

Changing Lives: Lawyers Fighting for Children

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 [email protected] 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
• Immigration
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."

Funding Opportunity for Law School Clinics

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!     

Please Forget Me in the Morning

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).

 

 

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.:  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. 

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

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.”

(http://www.childlaw.us/)

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).