Wednesday, January 18, 2017

Loyola Law School Ranked #16 on List of 'Best Schools for Bar Exam Preparation'


Loyola Law School, Los Angeles is ranked #16 on The National Jurist Magazine​'s list of the top 40 "Best Schools for Bar Exam Preparation," outperforming the predictive results of all its California peers!

Monday, January 16, 2017

On Behalf of the Community

Professor Eric Miller recently presented at the Association of American Law Schools Annual Meeting panel “#BlackLivesMatter: Balancing Security with Dignity in American Policing" raised points that are particularly salient in light of the Chicago report. His talk, published below, which is the basis for his forthcoming law review article in the Fordham Urban Law Journal.

A new manifesto of sorts is emerging from certain quarters of the academy challenging us to rethink our parochial approach to criminal justice. The challenge is to detach the way we think about policing from the context of the Fourth and Fifth Amendments, and instead approach policing in the context of some more general questions about the justification of criminal law and criminal punishment. This manifesto of sorts is being worked out by a loose collection of Anglo-American scholars, who have revived the long-dormant political question of how to justify the police within the apparatus of state punishment. That question last made a major appearance in the American legal academy in the 1960s, when Herbert Packer raised it as part of his book on the Limits of the Criminal Law. But it was soon drowned out by doctrinal and sociological approaches to policing.

The Black Lives Matters movement has also raised a series of political questions that have lain dormant for about half-a-century: indeed, since the last major period of racial unrest in the 1960s. Some of those questions are: what are the police? What is their role? To whom are they accountable? Whom do they represent? In the late 1960s and early 1970s a variety of sociologists and administrative law theorists including Jerome Skolnick, James Q. Wilson, Egon Bittner, William Ker Muir and Kenneth Culp Davis provided what has seemed like a definitive answer: that the police are those people entrusted with the situational power to deploy force in the community. But the Black Lives Matter movement, along with the less organized but equally compelling smartphone scrutiny of police violence, has given use good reason to be unhappy with this answer. The situational power to deploy force does not appear to represent the rule of law and the rights of civilians on the street. So the sociologist’s answer, telling us what, descriptively, the police actually do, does not tell us whether, normatively, the police ought to be doing it, and, politically, on behalf of whom they do it.

The political and normative set of questions raised by the Black Lives Matters movement I am particularly interested in, are the questions of representation and agency: on whose behalf to the police act? Police legitimacy often depends upon the answers to these questions: they gain their authority to intervene, including to deploy force, because of their role as state or municipal agents. In acting as the police, they act in their role as public officials authorized by the laws of the relevant jurisdiction that confer the legal power to act as they do. As Michelle Dempsey makes clear, the point is a conceptual one: without a state or a municipality to represent as publicly authorized officials, they would not be police. When, for example, the Mafia takes over the role of ensuring public order in the communities they control, they do not become “the police,” because they represent the Mafia, rather than the state.

The Mafia, like the police, often claim to act on behalf of, not only the state or municipality, but also the community. Indeed, the whole community policing movement gains its resonance from that claim. But what does it mean to “act on behalf of” a community? Because it is possible for the state, and thus for state officials, to fail to serve the communities they are supposed to govern. Your country is founded on just such a claim. Are the police an institution that, by its very nature, represents the community in addition to the state?

In our current political climate, the question of whom the state represents is a live one: large chunks of people on the right of the political spectrum have claimed that President Obama does not represent them, and large chunks of people on the left of the political spectrum claim that President-Elect Trump does not represent them, either. These communities are making an important political point: to represent some group is to claim to be authorized by that group to speak and act on its behalf. The police have a pretty compelling claim to speak and act on behalf of the state: they are members of the executive branch of government, and the various constitutive rules of government identify them as state agents. But speaking on behalf of the community is a question of political rather than institutional legitimacy. And it is that question that is being pressed by the Black Lives Matter movement, and requires a political answer that goes beyond the constitutive rules of the state.

One political answer is that acting on behalf of a community—representing a community by speaking on its behalf and acting in its name—requires regarding oneself as answerable to the community. It requires regarding community members as having standing to call you to account, as a community representative, for what you are saying and what you are doing. And this idea of accountability has important consequences for the political standing of members of the public on the street, in their interactions with the police.

The police provide two answers to the question of how they are answerable to the community: the first is that they express the values and interests of a particular group, for example by soliciting public opinion and input as to how to deploy their resources. This is the answer promoted through the community policing movement: the police are not mere agents of the state, but responsive to the needs of the community. 

Friday, January 13, 2017

Loyola Professors Address "Why Law Matters" at Premier Law School Conference

Loyola Law School, Los Angeles professors are presenting at the prestigious Association of American Law School Conference from Jan. 3-7, 2017 in San Francisco. The largest annual gathering of law faculty brings thousands of legal scholars, deans and administrators together to discuss critical legal issues and innovations in legal education centered on the theme of “Why Law Matters.”

Professors presenting include:

Professor Ellen Aprill, John E. Anderson Chair in Tax Law, will present “Section 501(c)(3) Organizations, Single Member Limited Liability Companies, and Fiduciary Duties” at the Section on Agency, Partnership, LLCs and Unincorporated Associations & Nonprofit and Philanthropy Law Joint Program on Friday, Jan. 6 at 1:00 p.m.

Professor Hiro Aragaki will speak on the panel “Comparative Commercial Arbitration: U.S., Asia, Europe and Latin America” to be held on Friday, Jan. 6 at 1:30 p.m.

Professor Brietta Clark, Associate Dean for Faculty, will speak about insurance law during “Health Insurance and Access to Healthcare After the Affordable Care Act.” She will focus on Supreme Court decisions attempting to clarify the circumstances under which private individuals may sue to enforce federal Medicaid spending conditions and the impact this could have on Medicaid access. The panel is co-sponsored by the Section on Law, Medicine and Health Care and will run on Wednesday, Jan. 4 at 10:30 a.m.

Professor Simona Grossi, chair of the AALS Section on Civil Procedure, will moderate "The Roberts Court and the Federal Rules of Civil Procedure" on Thursday, Jan. 5 from 8:30-10:30 a.m.

Professor Michael Guttentag, John T. Gurash Fellow in Corp. Law & Business, will discuss Salman v. United States, the U.S. Supreme Court’s first insider-trading opinion in 20 years, during a hot-topics panel to be held on Friday, Jan. 6 at 8:30 a.m.


Professor Allan Ides, Christopher N. May Chair, will discuss “Leveraging the Rise of the Law in Popular Culture” at 10:30 a.m. on Friday, Jan. 6. He will draw on his experience as a technical adviser to the show “First Mondays” and extensive media commentary work to talk about a professor's potential to shape the legal media landscape.

Professor Eric Miller, a race and policing expert, will speak on “#BlackLivesMatter: Balancing Security with Dignity in American Policing" on Jan. 6 at 10:30 a.m.

Professor Alexandra Natapoff, on leave in 2016-17 to pursue a Guggenheim Fellowship, will be commenting at the American Constitution Society’s Junior Scholars Public Law Workshop on Thursday, Jan. 5.

Professor Priscilla Ocen, a member of the Civilian Oversight Commission of the Los Angeles Sheriff’s Department, will speak on “The Challenge of Crime in a Free Society—Fifty Years Later” on the anniversary of a landmark report detailing concerns and suggestions for improvements in the criminal justice system. The panel will be on Thursday, Jan. 5 at 1:30 p.m.

Professor Elizabeth Pollman will participate in two panels related to business law. “The Securities and Exchange Commission and Sustainability Disclosure” on Wednesday, Jan. 4 at 10:30 a.m. will examine the sustainability of the commission’s Concept Release. “Business Law in the Global Gig Economy: Legal Theory, Doctrine, and Innovations in the Context of Startups, Scaleups, and Unicorns” on Thursday, Jan. 5 at 1:30 p.m. will analyze how entrepreneurs challenge business and legal norms.

Professor Lauren Willis, William M. Rains Fellow, will participate in two panels. She will provide commentary for the American Constitution Society's Junior Scholars Public Law Workshop on Thursday, Jan. 5 at 4:00 p.m. on the paper “A Rehabilitative Reparations Approach to Racism in the Credit Card Industry.” Her second panel will discuss performance-based privacy protections at “Governing Privacy: How Governance Theory Provides Insight into Privacy Law and Policy,” presented by the Defamation and Privacy Section on Friday, Jan. 6 at 8:30 a.m. Her talk will focus on how mandated disclosures are not effective in ensuring consumer control over their personally-identifiable information and how firms should demonstrate what data is being collected, who can use it and how it can be used.

Monday, December 12, 2016

A Bargaining Zone for Miranda Waivers

By Professor Kevin Lapp

This post originally appeared on Prawsblawg.

There has been a lot of action recently in the world of juvenile confessions. Some of it has garnered nation-wide attention, like Brendan Dassey, the 16 year-old from the Netflix documentary series Making a Murderer, who is currently trying to convince a judge to release him after a federal appeals court (finally) found his confession to murder to have been coerced and involuntary. Less newsworthy, but just as important, the U.S. Supreme Court refused to review a decision upholding as knowing, intelligent and voluntary a Miranda waiver by an abused and developmentally-delayed 10 year-old. In California, Governor Brown vetoed legislation that would have required counsel for those under 18 before custodial interrogation could begin.

Each of these developments occurred days or weeks after I submitted a paper that explores the state of the law regarding Miranda waivers by juveniles. Where others have convincingly argued that juveniles need (and perhaps the constitution demands) counsel before they can validly waive the 5th Amendment privilege against self-incrimination, my paper considers whether interrogation law should incorporate a rule akin to contract law’s infancy doctrine and permit individuals to retract uncounseled Miranda waivers.

This exploration of contract law's relevance to criminal procedure has me considering whether there is a bargaining zone for Miranda waivers.

Wednesday, December 7, 2016

Clemency and Collateral Consequences

By Professor Kevin Lapp

This post originally appeared on Prawsblawg.

Back in May, a Loyola Law School student and I submitted a clemency petition to the Office of the Pardon Attorney (OPA) as part of President Obama's Clemency Initiative. Our client had received a 30 year sentence for a non-violent cocaine offense that would, today, likely come with a 10-12 year sentence. Our client had already served 19 years of the sentence. At the end of October, I received the amazing phone call from the OPA informing me that the President was signing the petition, and that our client's sentence was to be commuted, and would expire in Feb. 2017, sparing him 6-11 additional years in prison.

That Obama should sign thousands more such petitions before he hands over the Executive Office to an individual who does not believe in the redemption of anyone other than himself is an imperative of justice. Yet, despite this tremendous victory, the challenge that awaited our client upon release was not lost on him. He was now 52 years old, he possesses few 21st-century labor market skills, and--perhaps most daunting of all--he would still carry his criminal record with him wherever he went.

Monday, November 28, 2016

What Will It Take to Fulfill Trump’s Promise on Trade Law Enforcement?

By Professor Justin Hughes

This is an excerpt from an op-ed originally published in the Sacramento Bee.

Beneath the headlines of renegotiating NAFTA and torpedoing the Trans-Pacific Partnership, President-elect Donald Trump has often spoken about improving trade law enforcement, especially against China. On the campaign trail, he beat that drum in pretty much the same rhythm as Hillary Clinton.

While Clinton specifically proposed a new trade “prosecutor” and to triple the enforcement staff at office of the U.S. Trade Representative, the Trump campaign promised to use “every lawful presidential power to remedy trade disputes if China does not stop its illegal activities” and to bring new trade law cases in this country and at the World Trade Organization.

Trump is no stranger to litigation, but how can he and his administration execute on this promise?

Read the entire op-ed here.

Friday, November 18, 2016

A Critical Assessment of the New Department of Defense Law of War Manual

The abstract for Professor David Glazier’s article Critical Assessment of the New Department of Defense Law of War Manual appears below. The article was co-written with Zora Colakovic '16, Alexandra Gonzalez '16 and Zacharias Tripodes '16.

In June 2015 the Department of Defense (DoD) General Counsel issued a 1,200 page manual providing unified guidance on the law governing armed conflict. Unfortunately, despite such positive attributes as an unequivocal condemnation of torture, it is badly flawed. Sporadic criticism, notably media outrage over its treatment of the press, led DoD to issue a slightly revised 2016 version, mostly making cosmetic changes to language about reporters.

This article provides the first comprehensive critique, noting the manual’s uncertain hierarchical status or legal effect given its express disclaimer to not “necessarily reflect...the views of the U.S. Government as a whole.” Stylistically, it is twice the length it should be, suffering from unnecessary repetition and internal inconsistencies.

The manual’s substantive shortcomings are more significant than its literary vices, including basic errors in international law and idiosyncratic views that are outdated, unsupported by credible authority, or even counter to larger U.S. interests. Its treatment of proportionality, for example, endeavors to shift the greater burden for avoiding civilian casualties from the attacker to the defender. It makes a poorly supported claim of a U.S. right to use expanding bullets despite widespread recognition as a war crime. And it fails to enumerate which provisions of, the First and Second Additional Geneva Protocols of 1977 (AP I and II) – are binding on U.S. forces even though that was the original impetus for developing a joint U.S. manual.

The article concludes that the volume should be officially withdrawn until it can be brought up to an appropriate professional standard, or replaced with a manual more faithfully serving the law, U.S. military forces, and America’s true national interests.

Read the full article on SSRN