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.

Excerpt:

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.

SUMMARY OF ARGUMENT

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.

Thursday, January 29, 2015

Does Domestic Violence Constitute Valid Ground to Claim Refugee Status?

By Professor Cesare Romano, Director, and Adjunct Professor Veronica Aragon, Deputy Director, International Human Rights Clinic, Loyola Law School, Los Angeles 

Does domestic violence constitute valid ground to claim refugee status? Encouragingly, the answer is increasingly yes, and Loyola’s own International Human Rights Clinic (IHRC) is trying help moving international law in that direction.

In concert with human rights organization Asylum Access Ecuador (AAE), Loyola’s International Human Rights Clinic filed a case today before the United Nations Committee on the Elimination of Discrimination Against Women (CEDAW) seeking to recognize domestic violence as grounds for refugee status. It is one of the first cases of its kind to be brought before a United Nations body.

The case, regarding a Colombian woman who had been subjected to severe domestic violence and subsequently denied refugee status in Ecuador, argues that domestic violence should be grounds for refugee status under the 1951 Refugee Convention. It also aims to ensure that refugee status determination proceedings at the national level are non-discriminatory and gender-sensitive.

Tuesday, January 20, 2015

Judging the Role of Money in Judicial Elections

By Professor Jessica A. Levinson

This op-ed originally appeared in the Los Angeles Daily Journal.

A judicial candidate, a potential donor and a lawyer walk into a bar. If that bar is located in Florida or one of dozens of states that prohibit judicial candidates from directly soliciting campaign contributions, then that candidate cannot ask the potential donor for money. However, the candidate can form a campaign committee, choose who runs it, look at the donor list, and call those donors to thank them.

Tuesday, the U.S. Supreme Court is hearing arguments in Williams-Yulee v. Florida Bar to consider whether Florida’s prohibition on judicial candidates from making direct campaign solicitations is constitutional. This case is not about whether or how much money judicial candidates can raise, but rather concerns whether they can directly ask for that money.

Advocates of these types of prohibitions contend that they promote the integrity of judges and confidence in the courts because it is problematic and frankly downright unseemly for judicial candidates to directly ask donors for campaign cash.

Let’s be honest, who do we think will give those campaign contributions? Short answer: generally people who may appear before that candidate. Hence a prohibition on the direct solicitation of contributions arguably protects the impartiality of the judiciary and guards against donors being able to exert an undue influence over judges. Advocates therefore claim that the prohibition reduces corruption or the appearance of corruption that can occur when a judicial candidate asks a potential donor for money.

Opponents of the prohibition claim such prohibitions infringe on the First Amendment without properly serving to prevent undue influence or corruption. It is true that the prohibition still allows potentially problematic behavior because judicial candidates still know who gives to their campaigns and can thank those donors. This is an argument that the restriction is not properly tailored to serve its goals. Opponents do not contend the restriction should be broader and prohibit more behavior, but that other options, such as contribution limits or recusal rules, could serve the same governmental interests without the burden on First Amendment rights.

Wednesday, January 14, 2015

What Your Bank Owes You: Clarity

By Professors Lauren Willis and Theresa Amato

This op-ed originally appeared in the Los Angeles Times.

There are dozens of entities devoted to educating you about all things financial. Congress funds a commission and a website, Mymoney.gov. Schools have added “financial literacy” to their curricula. Banks put out pamphlets, and every major investment brokerage has Web pages devoted to educating people on how to invest wisely.

But none of it is working very well. Neither children who are required to take financial literacy classes in school nor adults who are randomly assigned to such courses perform much better on financial skills tests than those who don't, nor do they make better financial choices or enjoy better financial outcomes.

Paradoxically, the opposite may be true. Participating in these programs can increase risky behavior as people gain a misplaced confidence in their ability to make financial decisions.

Read the complete op-ed.