Tuesday, August 7, 2018

Time to revive the Democratic-Republican Party?

By Maureen Johnson

This article originally appeared in The Daily Journal.

The Whigs. The Federalists. The Bourbon Democrats. Since ink met parchment to create the Declaration of Independence in 1776, America has seen its fair share of major political parties. Our forefathers warned against the danger of factionalism, recognizing the insidious desire for dominance easily could result in discord if not outright disenfranchisement. Alexander Hamilton and James Madison discussed these views in Federalist Papers Nos. 9 and 10. Yet Madison, along with Thomas Jefferson, went on to form America’s first political party, known as the “Democratic-Republican” or “Anti-Administration” Party. Hamilton took the helm of the competing Federalists. Hence, our two-party system was born.

In the wise words of Abraham Lincoln: “And this too shall pass.”

Many historians view our country as tumbling through five to six distinct eras in our two-party system. Over time, the nomenclature and ideals of major political parties transmogrify. In Lincoln’s day, the Grand Old Party Republicans fought for the rights of African-Americans. Democrats took up that laboring oar for many more minorities no later than the1960s, with the passage of the Civil Rights Act. And GOP’s finest hour soundly was kicked to the curb in 2016 when modern-day alt-right leaders — including David Duke, a Grand Wizard of the Ku Klux Klan — gave a thumbs-up to the GOP presidential candidate.

Is it time for a seventh era in our two-party system?

Many moderate Republicans are caught in the middle of a bitter tug-of-war between Democrats and an unrelenting far-right faction of the Republican Party that continues to stoke racism, either to validate prejudice or as a means for political gain. Put simply, Democrats certainly can get along with moderate Republicans, and vice versa. The civil war America faces is not between Democrats and moderate Republicans; rather it is with that small hard-right faction who have an unprecedented but very real stranglehold on how our country is run.

How can it be that 70 to 80 percent of Americans agree on major political planks yet that consensus is all but ignored by those in power? We agree Dreamers are entitled to a path to citizenship, babies should never be stripped from the arms of parents seeking asylum, and affordable healthcare should cover preexisting conditions. There even is general concurrence for basic gun control reform. And a majority of Americans easily would rather spend billions of dollars on meaningful programs, e.g., infrastructure or addressing the opioid crisis, instead of funding a symbolic “wall” that Trump promised would be paid for by an outside source. Even a 5-year-old understands that being asked to pay for a promised gift is a far cry from a promise kept.

Tuesday, July 3, 2018

On Independence Day, a Renewed Focus on Individual Liberties

By Professor Gary Williams

"I think eternal vigilance is the price of keeping it (the Bill of Rights) in working order." – Professor Lawrence Tribe, Harvard Law School 

I am reminded of the critical importance of vigilance as we approach Independence Day 2018. The pictures of innocent children in cages after our government separated them from their parents could not be more striking evidence of violation of the 8th Amendment prohibition of cruel and unusual punishment. President Trump tweeted that all aliens, even those who may be seeking asylum, should be deported “When somebody comes in we must, with no Judges or Court Cases, bring (sic) them back from where they came.”[1] This disparages the right to due process of law guaranteed to all, including noncitizens, by the 5th and 14th Amendments.

Our revered system of checks and balances, designed to protect our democracy, appears to be in peril. The Supreme Court just upheld the Muslim ban despite clear evidence it was motivated by prejudice and politics, not “national security.” Congress is in danger of becoming a “rubber stamp” because members of the President’s party are afraid to oppose his policies or criticize his behavior.[2]

The First Amendment of the Bill of Rights, born out of the founders’ quest to form “a more perfect union,” allows me to retain hope. The brave young survivors of the Parkland High School mass shooting have boldly utilized their right of free speech to educate the public about their demand for sensible gun control legislation. The media have fearlessly exercised freedom of the press to help uncover and expose to the world, through words and pictures, the family separations resulting from implementation of the “zero tolerance” policy. Citizens have powerfully exercised their right to protest in response to that coverage, forcing the government to rescind the policy of separating children from their families, despite the initial insistence of government officials that family separation was “mandated by law.” And lawyers have effectively utilized the right to petition the government to convince Federal District Court Judge Dana Sabraw to order a halt to most family separations at the United States border, and reunification of all families that were separated by the government until the due process guarantee is satisfied.[3]

The vigilance of those high school students, media members, everyday citizens and attorneys has kept the Bill of Rights in working order. On July 4, each of us should honor their vigilance by pledging to exercise vigilance whenever we can.

-----

[1] @realDonaldTrump, June 24, 2018.
[2] "What he (Trump) has taken is the legitimate hopes and fears people have had for change in Washington and he has morphed that into -- given the strength of his personality -- a whole host of different loyalty tests about him… People come up privately numerous times a day and talk about different frustrations with the President's style…. His caustic nature, his latitude with the truth, but they won't voice those opinions publicly for fear of reprisal." Representative Mark Sanford, Republican, CNN, June 22, 2018.
[3] “California federal judge orders separated children reunited with parents within 30 days,” Alene Tchekmedyian and Kristina Davis, Los Angeles Times, June 27, 2018

Tuesday, June 26, 2018

Loyola Law School Sends Inaugural Team to the International Mediation Competition in Paris

The International Chamber of Commerce (ICC), located in Paris, France, has for the past thirteen years organized an annual International Commercial Mediation Competition that draws students and practitioners from all corners of the globe. For the first time this year, Loyola Law School sent a team of four students—Josh Genzuk (3L), Nate Pezeshki (3E), Nidya Gutierrez (2L), and Patricia Martinez (2L)—to compete in Paris alongside 66 other schools from 32 different countries. The team was coached by Adjunct Professor Cindy Pasternak (LLS ‘76) and Professor Hiro Aragaki, and was assisted by Visiting Scholar Federico Ferraris, who teaches at the University of Milano-Bicocca in Milan, Italy.

From February 2-7, 2018, students competed in around 150 mock sessions to resolve international business disputes through mediation in accordance with the most current version of the ICC Mediation Rules. Unlike other ADR competitions where students take the role of the neutral mediator, in the ICC Competition students act as mediation advocates representing a client. The competing teams were supported by more than 130 professionals from around the world who were experienced in resolving cross-border disputes, some of whom acted as mock mediators and others of whom took the role of judges. The students were evaluated on their negotiating and problem-solving skills, their ability to make good use of the mediator, and their ability to bridge cultural differences.

The Competition is the ICC’s biggest educational event of the year and provides a once-in-a-lifetime opportunity for young, talented students and experienced professionals alike to forge relationships, build skills, and share best practices. “I had an unbelievable experience,” 3L student Josh Genzuk said of his participation in the inaugural team. “The training that we received on negotiation theory and human communication theory in general, was one of the greatest learning experiences that I have ever been a part of. I do not believe that this level of learning and interaction would have been attainable in any other law school class.”

Wednesday, June 20, 2018

Loyola Immigrant Justice Clinic Statement on Family Separations at Border

The Loyola Immigrant Justice Clinic at Loyola Law School, Los Angeles joins its colleagues in condemning the widespread family separations occurring along our southern border. Because of repeated misrepresentation of both fact and law by government spokespersons, the following points require clarification:
  • In early May, Attorney General Jeff Sessions announced a policy of "zero tolerance" against individuals, including families with children, arriving at the southern border. This policy is new, entirely a creature of the current administration, and wholly within the executive branch's discretion.
  • This new policy mandates criminal prosecution and incarceration of individuals for misdemeanor first-time unlawful entry. The new, discretionary policy implements incarceration for this misdemeanor. Incarceration is not a requirement of the law.
  • It is this draconian policy of incarceration for a first-time misdemeanor offense that has resulted in the wholesale separation of parents and caregivers from their children, a policy condemned by the American Academy of Pediatrics because of the traumatic effects of separation and the long-term damage done to already vulnerable children. A secondary effect is the overcrowding of federal courts previously focused on prosecution crimes such as human trafficking and the illegal drug and weapons trade. 
  • This policy operates in conjunction with ICE's "surge initiative," a policy of targeting the sponsors of children released from federal custody by the U.S. government into the custody of caregivers. The two operate together to promote the isolation of children from relative caregivers, and to prolong their detention and isolation. 
  • These policies are a violation of the UN Convention on the Rights of the Child, the standards contained with the the UN Declaration of Human Rights, and basic norms of humane conduct. They are a stark departure from past practices, and represent an effort to use children as a weapon to enforce the president's inhumane immigration agenda.

Tuesday, June 19, 2018

U.S. Misguided in Decision to Leave UN Human Rights Council

By Mary Hansel, Deputy Director, Loyola International Human Rights Clinic

The U.S. decision to leave the UN Human Rights Council is disappointing on a number of levels and, frankly, shows a lack of understanding about how the international human rights system works. This decision will harm U.S. interests, as well as the Council itself.

By giving up its seat on the Council in misguided protest, the U.S. is actually limiting its own influence over the Council and its state members. Withdrawing from the Council means forfeiting a key position in shaping Council operations, agendas and human rights decision-making. Meanwhile, the Council will still conduct periodic reviews of and condemn the human rights records of the U.S. - and of Israel - as part of its Universal Periodic Review process and through various resolutions. (Indeed, one of the reasons the Council is so innovative is that all 193 UN member states are subject to human rights scrutiny, regardless of Council membership or treaty ratification.) Thus, the U.S. is cutting off its nose to spite its face here.

Despite the capitulation that the U.S. is hoping to achieve, many members of the international community are saying "good riddance" to the U.S., given the Trump Administration's apparent disregard of human rights and disruptive antics at the UN. However, the U.S. career diplomats who work with the Council are well-versed in human rights and tend to have a positive, moderating influence on other state members with egregious human rights records. Conversely, the U.S. departure means that the Council and its members will lose their potentially moderating influence over the U.S.

Friday, May 25, 2018

Reflections on Epic Systems v. Lewis

By Professor Hiro Aragaki

Earlier this week, the U.S. Supreme Court decided three consolidated cases, styled Epic Systems Corp. v Lewis, Nos. 16–285, 16–300, 16–307, 584 U.S. __ (2018), that all raised the issue of whether a class arbitration wavier in various employment contracts was enforceable, given the potentially conflicting mandates of the Federal Arbitration Act (FAA) and the National Labor Relations Act (NLRA).  In a 5-4 majority opinion authored by Justice Neil Gorsuch, the Court held that there was no conflict between the two federal statutes and that both were consistent with enforcing the class arbitration wavier.  Justice Ginsburg, writing for the dissent, also found no conflict but believed that both statutes were consistent with the opposite conclusion—namely, that the class arbitration wavier was illegal and should not be enforced.  In the alternative, the dissent reasoned that even if there were a conflict, the waiver was still unenforceable. 

The basic facts of these consolidated cases were that certain employees sought to bring a putative class action against their employers even though their employment contract contained a class arbitration waiver—that is, a clause that not only requires the employee to arbitrate rather than sue in court, but that also prohibits the employee from bringing a class arbitration on behalf of similarly situated employees.  The employees argued that the waiver was illegal and thus unenforceable, because NLRA section 7 had been construed by the National Labor Relations Board to give employees an absolute, non-waivable right to band together in a class when suing their employers.  See D. R. Horton, 357 N. L. R. B. 2277 (2012).  The employers countered that under the FAA section 2, class arbitration waivers must be enforced strictly according to their terms, in some cases even if those terms are otherwise illegal. 

These cases therefore raised the specter of a conflict between two federal statutes: The NLRA, enacted in 1935, and the FAA, enacted in 1925.  Under traditional conflict of laws principles, in the event of an unavoidable conflict between coequal statutes the later-enacted statute controls (in this case, the NLRA).  In Epic Systems, that would translate into a victory for the employee.  So the employers had to hang their hat on the argument that there was no inherent conflict between the FAA and the NLRA. 

Monday, May 21, 2018

Former U.S. Soliciator General Verrilli Delivers Commencement Keynote Address

Loyola Law School, Los Angeles' 2018 Commencement address was delivered by Donald B. Verrilli Jr., partner, Munger, Tolles & Olson, LLP. Verrilli served as Solicitor General of the United States from 2011 to 2016. 

President Snyder, Dean Waterstone, distinguished faculty, alumni, family and friends, and members of the graduating class of 2018:

Thank you for inviting me to be with you today. Loyola Law School, Los Angeles is a special place and today is a special day, and I feel very privileged to be able to share it with you.

Let me start with a hearty congratulations to each and every one of you. Anybody who has been to law school knows that it was not easy to get to where you are today. So today is a day for savoring your accomplishments, reflecting on all the hard work you put in and all the obstacles you had to surmount, to earn the diploma that you will have in your hands in just a few moments. It’s a day for joy – a joy to be shared with the family and friends that helped you get to where you are now and that feel such pride in all that you have accomplished so far. So bask in it all. Enjoy the moment. Enjoy the satisfaction of having run this race well and crossing this finish line.