Tuesday, April 21, 2015

Defining Childhood

By Professor Kevin Lapp

Prof. Lapp is guest blogging on Prawfsblawg, where this post originally appeared.

A foundational, definitional problem for those like me who write about childhood and juvenile justice issues is figuring out who is a child and who is an adult, because rights and responsibilities frequently turn on whether someone is considered an adult or not. The answer, of course, is that it depends. The law considers people to reach maturity at a range of ages: it might be 21 (drink alcohol), 18 (vote), 16 (drive), 10 or 7 (ages of potential criminal responsibility). Of course, age need not be the deciding factor. Determining maturity could turn on capacity instead of age, but the bright line of age is much easier to implement than individual capacity-based inquiries.

The law in all sorts of areas uses this age-based binary approach: people are children until they reach a certain age, at which point they become, or are subject to the same rules as, adults. But however or wherever the line between adults and non-adults is located, a secondary question is becoming more pressing as developmental science teaches us more and more about the process of maturing: are there any categories within the group of people who are legally children (or “not yet adults”) and should the law account for such?

Monday, April 20, 2015

ADA at 25, Chicago style

By Professor Michael Waterstone

Prof. Waterstone is guest blogging on Prawfsblawg, where this post originally appeared.

On Friday, I had the good fortune of attending the kick off event for ADA25Chicago. There are a lot of celebratory events and academic conferences planned this year commemorating the 25th anniversary of the ADA, but this was different. It brought together politicians (including Dick Durbin and Tammy Duckworth), corporate figures (including the President/COO of Motorola, where the event was held), and civic leaders (including representatives of the Chicago Community Trust), as well as state and local government. These individuals did not just give speeches, but expressly set the stage for actual commitments.

The organizers had already gathered pledges from Chicago civic organizations and employers to establish programs to advance opportunities for people with disabilities, to create programs within six months throughout the region to increase civic engagement around disability issues, and to develop lasting “legacy projects” around the key themes of employment, education, and community living for people with disabilities. ADA25Chicago has already planned a visible presence sponsoring events at Chicago’s many summertime festivals and cultural events (disability awareness, good food, and craft beer? Count me in!). And there are specific plans in place to hold these groups publicly accountable for their commitments.

I posted earlier about the disconnect between how those inside and outside the disability rights community view disability issues. ADA25Chicago is one of the most sophisticated efforts I have ever seen to address that gap. By gathering elites, and creating a plan to mobilize and hold their feet to the fire on accountability, this was a really exciting beginning. I really look forward to watching how this all unfolds.

Wednesday, April 15, 2015

Remembering Dean Emeritus Gerry McLaughlin

Loyola Law School mourns the loss of Professor Gerald T. McLaughlin, who passed away on Sunday, April 12, 2015.

McLaughlin joined Loyola as its 14th dean on January 1, 1991 and served in that capacity until March 1, 1999. But his mark on the institution extended far beyond he tenure as its leader. He wrote the book on Loyola Law School: In 2000, he published Loyola Law School: A Sense of Purpose and a Sense of Mission. The tome is a comprehensive history of the school at which McLaughlin himself played a pivotal role for nearly 20 years.

Memorial Reception:
  • Thursday, April 16, 2015 from 5-8 pm at Vittorio Ristorante, 16646 Marquez Ave, Pacific Palisades, CA 90272
  • All friends of Gerry are welcome. Please RSVP with number of attendees to gerrymclaughlinmemorial@gmail.com
Leaving an academic legacy of service and substance, McLaughlin instituted the 40-hour pro bono requirement for students and the joint JD-MBA degree. He encouraged the law reviews to raise their profiles by publishing symposia on a wide variety of legal topics. He was integral to the founding of the Cancer Legal Resource Center, which earned him the prestigious Cancer Vanguard Award in 2013. And through it all, he was a renowned commercial law expert, lecturing and writing extensively in the field of letters of credit. 

“Gerry McLaughlin was a true renaissance man,” said Dean Victor Gold. “In addition to serving as Loyola's dean, Gerry was a novelist, legal scholar, teacher and historian. Gerry's wife was seriously ill for most of the years he served as dean – years when his children were still young. Gerry never faltered, courageously carrying the burdens of both his office and the family he loved.” 

McLaughlin orchestrated the construction of the current parking garage, which for the first time allowed all faculty, students and staff to park on campus. McLaughlin’s other campus expansion initiatives included purchase of the building now known as Founders Hall and the land that would eventually house the Girardi Advocacy Center.

Prior to joining Loyola, McLaughlin was an associate dean and professor at Brooklyn law School. Previously, he taught at the law schools at the University of Connecticut, Fordham and Georgetown. Before entering academia, McLaughlin worked in the New York office of Cleary, Gottlieb, Steen & Hamilton LLP.

McLaughlin earned his bachelor’s degree summa cum laude from Fordham College and his LLB from NYU Law School, where he was a Root Tilden Scholar and managing editor of the law review.

Remembrances of Dean McLaughlin are welcome below: 

Wednesday, March 11, 2015

States Should Think Twice Before Refusing Any Response to EPA’s Clean Power Rules

By Professor Dan Selmi

The complete article was originally published by Columbia Law School's Sabin Center for Climate Change Law, where Prof. Selmi is a Visiting Scholar.


The Environmental Protection Agency’s (EPA’s) proposed rules for existing power plants play a central role in the Obama Administration’s plans for regulating greenhouse gas emissions to prevent climate change. The rules, technically known as the “Existing Source Performance Standards,” will require a major effort from many states to change their methods of producing electricity, disrupting the status quo in an area long the province of state public service commissions. Not surprisingly, the proposed rules generated an avalanche of comments to EPA ranging from full support to vehement opposition, with the commenters also staking out positions on various technical issues. Law firms are raising questions about the rules' validity and gearing up to take part in the inevitable litigation over them.

The high-profile debate has led some critics of the rules to argue that states should oppose them by simply opting out of the entire regulatory process and refusing any response to the rules. The movement has even acquired a slogan: “Just Say No.” While the slogan is borrowed from Nancy Reagan’s anti-drug message in the 1980s, it still has the same forceful ring to it. And “saying no” would give states the satisfaction of telling Washington off for its intrusive regulations.

Some states have begun to embrace the "Just Say No" idea by considering legislation that, to varying degrees, would hobble the adoption of state plans complying with the upcoming regulations. For example, Kentucky enacted a law requiring its environmental regulators to adopt separate state standards of performance for controlling carbon dioxide emissions from existing power plants that burn both coal and natural gas. The legislation might prohibit the state from adopting an approvable plan under the upcoming power plant regulations. South Carolina is considering a resolution that would “urge” the state’s environmental department not to prepare or submit a plan to EPA until the legality of the new rules is decided, while a similar bill proposed in Kansas would prohibit state agencies from drafting a response until all litigation is resolved.  The Colorado Senate passed a bill that would cut the state’s renewable energy requirement in half. Various other states are considering action.

The “Just Say No” slogan is pithy, and as an immediate political response, states may be tempted to follow its advice by taking legislative or executive action that prevents or hinders the state from responding to the upcoming rules. Before taking that step, however, states should carefully consider the consequences. If they do so objectively, it becomes apparent that opting out of the process at this point can result in significant disadvantages.

Read the full article.

Tuesday, February 24, 2015

Professor Natapoff's Looks at Misdemeanor Decriminalization

Professor Alexandra Natapoff’s latest piece is entitled Misdemeanor Decriminalization, 68 Vanderbilt L. Rev (forthcoming 2015). She was interviewed about it by Slate. The abstract is below.

As the U.S. reconsiders its stance on mass incarceration, misdemeanor decriminalization has emerged as an increasingly popular reform. Seen as a potential cure for crowded jails and an overburdened defense bar, many states are eliminating jail time for minor offenses such as marijuana possession and driving violations, and replacing those crimes with so-called “nonjailable” or “fine-only” offenses. This form of reclassification is widely perceived as a way of saving millions of state dollars—nonjailable offenses do not trigger the right to counsel--while easing the punitive impact on defendants, and it has strong support from progressives and conservatives alike. But decriminalization has a little-known dark side. Unlike full legalization, decriminalization preserves many of the punitive features and collateral consequences of the criminal misdemeanor experience, even as it strips defendants of counsel and other procedural protections. It actually expands the reach of the criminal apparatus by making it easier—both logistically and normatively--to impose fines and supervision on an ever-widening population, a population who ironically often ends up incarcerated anyway when they cannot afford the fines or comply with the supervisory conditions. The turn to fine-only offenses and supervision, moreover, has distributive implications. It captures poor, underemployed, drug-dependent, and other disadvantaged defendants for whom fines and supervision are especially burdensome, while permitting well-resourced offenders to exit the process quickly and relatively unscathed. Finally, as courts turn increasingly to fines and fees to fund their own operations, decriminalization threatens to become a kind of regressive tax, turning the poorest populations into funding fodder for the judiciary and other government budgets. In sum, while decriminalization appears to offer relief from the punitive legacy of overcriminalization and mass incarceration, upon closer inspection it turns out to be a highly conflicted regulatory strategy that preserves and even strengthens some of the most problematic aspects of the massive U.S. penal system.

Thursday, February 5, 2015

Loyola Professor Explores How and Who Makes Copyright Policy in Washington

Professor Justin Hughes, William H. Hannon Distinguished Professor of Law, recently published a pair of essays clarifying the level of copyright law expertise in the U.S. Patent & Trademark Office. Rebutting claims made by an entertainment attorney in an op-ed that appeared in The Hill, Hughes notes that “that USPTO currently has a bench of copyright expertise as least as deep as the team at the Copyright Office.” Read his full essays:

Monday, February 2, 2015

Prof. Rothman Submits Amicus Brief in Right of Publicity Case

Professor Jennifer Rothman submitted an amicus brief along with UCLA Professor Eugene Volokh supporting en banc review by the Ninth Circuit in Davis v. Electronic Arts, a case involving the right of publicity.


The panel decision in this case followed the majority opinion inIn re NCAA Student-Athlete Name & Likeness Licensing Litigation (“Keller v. Electronic Arts”), 724 F.3d 1268 (9th Cir. 2013)(commonly known as Keller), which defines thisCircuit’s law on the right of publicity and the First Amendment. No petition for rehearing en banc was filed in Keller, so this is the first clear opportunity for the entire Circuit to consider whether Kelleris correct.

Keller’s conclusion that references to real players in fantasy sports video games are not protected by the First Amendment is mistaken, and dangerously so. The Keller majority begins with the sentence, “Video games are entitled to the full protections of the First Amendment, … ‘[l]ike the protected books, plays, and movies that preceded them[.]’” 724 F.3d at 1270-71 (quotingBrown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2733 (2011)). It therefore follows that, to the extent video games may infringe the right of publicity for depicting or referring to real people, so may books, plays, songs, and films.

Thus, under the logic of Keller, the makers of the recent filmSelma might be liable for a host of right of publicity violations unless they got permission from Coretta Scott King, Andrew Young, John Lewis, Harry Belafonte, and the heirs of Martin Luther King, Jr., J. Edgar Hoover, Lyndon Johnson, and others. The Academy Award-winning Forrest Gump might also have infringed historical figures’ right of publicity unless the filmmakers got permission from the Elvis Presley, John Lennon, and Abbie Hoffman estates. Simon & Garfunkel’s Mrs. Robinson, which asked “Where have you gone, Joe DiMaggio?,” might have infringed Joe DiMaggio’s right of publicity.