Wednesday, October 30, 2019

Visual Aids Can Compliment a Law Professor's Teaching Strategy

By Professor Aaron Caplan

Visual aids are not the most important thing a law teacher does in the classroom. They can never substitute for well-chosen material, clear organization, thoughtfully chosen in-class activities, being a good explainer or being a good listener. With that said, good visual aids can help students learn more effectively – and bad visual aids make learning harder.

A series of videos based on a presentation I gave at the AALS New Law Teachers Workshop in June 2019 explores what makes successful visual aids work. The first segment explores the psychology of multi-media learning, providing a theory for preparing visual aids that complement one’s lesson plan and not detract from it. The following segments provide examples of visual aids that I have used with success in various classes, including illustrations, visual renderings of legal texts, visualizations of concepts, and more.

The videos can be reached here:

Tuesday, October 15, 2019

Wealth, Philanthropy and Politics — Considering 'Wealth Tax' Proposals

By Professor Ellen P. Aprill

This op-ed originally appeared in the Tuesday, October 15, 2019 edition of The Hill.

The impact of private wealth on public policy through tax-exempt organizations has garnered much attention of late, with recent scandals involving the Sacklers, Jeffrey Epstein, and a number of prestigious universities. Recent critiques, however, fail to emphasize sufficiently the role of wealth in campaign finance. Citizens United and the rise, in its wake, of Super PACS able to solicit and spend unlimited amounts make such consideration crucial. Today more than ever, political power of the wealthy means that government spending, like charitable spending, is likely to reflect the interests of the wealthy.

Current proposals for a wealth tax also need to confront this issue. On Sept. 5, as part of the Brookings Papers on Economic Activity, Emmanuel Saez and Gabriel Zucman presented an important new paper on progressive wealth taxation. The Saez-Zucman paper describes a wealth tax as a means of reducing wealth concentration needed because of such concentration’s effect on democratic institutions and policy-making. (The paper notes that political contributions are extremely concentrated, with 1.01 percent of the population accounting for over a quarter of all such contributions.) According to those present, discussion at the session included whether a wealth tax would reduce billionaires’ political influence.

To prevent abuses of a wealth tax, the Saez-Zucman paper proposes that donor advised funds — accounts at public charities for which donors can make recommendations as to the distribution or investment of amounts in the accounts — and funds in private foundations controlled by funders “should be subject to the wealth tax until the time such funds have been spent or moved fully out of the control of the donor.” (The paper leaves to another day the question about how to treat private foundations no longer controlled by the original funder and how to avoid gaming of “control.”)

Friday, October 4, 2019

If California Really Cares About Student Athletes, It’ll Protect Their Rights To Their Own Identities

By Professor Jennifer Rothman

This op-ed originally appeared in the Friday, October 4, 2019 edition of  the San Francisco Chronicle.

Gov. Gavin Newsom just signed a bill ostensibly to level the playing field for student athletes. Within 24 hours, five other states had introduced similar bills. In the U.S. House of Representatives, a Student-Athlete Equity Act was introduced just a few weeks ago.

These legislative efforts seek to address the stark reality that the NCAA and college athletic programs reap billions of dollars from ticket and merchandise sales and licensing deals, while student athletes get nothing other than some limited scholarship money. Not only does this seem unfair, but the current system pressures the most talented young athletes to go professional early, often foregoing their educations in the process.

California’s law (and others proposed) bars NCAA universities (who fall within the provision) and are located within the state from penalizing student athletes who sign endorsement deals or with sports agents and attorneys. This is new. But it does not address the underlying exploitation of student athletes.

The law does nothing to require the NCAA or universities to share any profits with athletes — and most college athletes will not be sought after by Nike for a major endorsement deal. The California law also could allow the NCAA to continue to block endorsement opportunities that primarily stem from an association with the “team.”

Read the complete op-ed>>

Monday, September 9, 2019

CPFB Head Misguided in Reliance on Consumer Education

By Professor Lauren E. Willis

This op-ed originally appeared in the Saturday, September 7, 2019 edition of The Hill.

Imagine that your city’s water treatment facility announced tomorrow that it would scale back its work. Instead, the authorities would offer online classes and put up posters around town to teach city residents about contaminants and filtration. With slogans about “empowering consumers,” they would urge residents to make their own choices about the water safety level that’s right for them, based on individual health needs and taste preferences.

People would surely protest. It is both foolish and cruel to put the onus on ordinary citizens to handle an issue that requires professional training to fully understand and that can devastate people’s lives if handled poorly. It seems cynically designed to relieve city administrators — and the businesses that impact the city’s water supply — of their responsibilities. Yet this is exactly what’s happening today in the consumer financial marketplace at the federal level.

President Donald Trump’s head of the Consumer Financial Protection Bureau (CFPB), Kathy Kraninger, has laid out her vision for her five-year directorship. So far, Kraninger seems to think about consumer financial protection the same way our apocryphal city authorities think about water treatment. Rather than protecting us from the financial industry’s dangerous practices, she plans to educate us all about how to protect ourselves.

Kraninger announced: “Our first tool is education … [E]mpowering consumers to help themselves, protect their own interests, and choose the financial products and services that best fit their needs is vital to preventing consumer harm and building financial well-being.” Kraninger’s plan emphasizes pamphlets and websites about saving money and balancing checkbooks at the expense of the trained investigators, financial experts, and attorneys previously tasked at the CFPB with identifying illegal practices and prosecuting the banks that engage in them.

Having studied financial literacy education extensively, I would suggest that the head of the only federal regulator devoted to consumer protection in the financial services space is driving the agency in the wrong direction.

She is sending the message that it is your job to steer around the deceptive, unfair, and abusive practices of the financial services industry — if you can.

Monday, June 24, 2019

Prof. Miller Tesitfies on HR40 and the Path to Restorative Justice Before House Judiciary Subcommittee

Professor Eric Miller testified the following during the House Judiciary Committee Hearing on HR40 and the Path to Restorative Justice held Wednesday, June 19, 2019. Read his prepared remarks below or watch the recording of the testimony.

I will speak to my experience as an academic studying the issue of reparations and a lawyer representing the victims of the Tulsa massacre of 1921 in a reparations lawsuit against the state of Oklahoma and the city of Tulsa. In the short time available, I want to make the following points:

1. Local, state and federal governments were active perpetrators of race-targeted discrimination against, and domination of, African-Americans during slavery and Jim Crow.

2. These governmental institutions engaged in the massive social, political, economic, and cultural destruction of African American communities and individuals.

3. Many of the perpetrators and victims of race-targeted state action are readily identifiable through a thorough investigation of existing historical records in the hands of public and private institutions.

4. The race based disparities brought about by federal, state, and local government discrimination remain baked into our governmental institutions as well as the persistently segregated private social ordering those institutions brought about.

5. Reparations addresses the ways in which these institutions entrenched race-based discrimination and domination throughout American social, cultural, economic, and political institutions.

6. The committee should consider specific legal remedies to remove the time-limited bars against litigation, which are the major impediment preventing the identifiable victims of extraordinary race-targeted state action to sue state and federal governments for financial damages.

7. Reparations must also include rebuilding the social political economic and cultural infrastructure of the communities destroyed by the state.

8. Without social, cultural, and political reparations, race neutral programs of economic uplift will preserve the relative social and political disadvantage, domination, and disempowerment of African Americans across this nation.

The urgent need for the HR40 Commission, and reparations as the path to restorative justice for the victims’ state-sponsored racial injustice, became clear to me in 2003. That is when I joined the Reparations Coordinating Committee, a group of lawyers led by Charles Ogletree and Adjoa Aiyetoro. Our legal team filed suit representing the more than one-hundred still living survivors of the Tulsa, Oklahoma Race Massacre of 1921.

Thursday, June 13, 2019

The California Consumer Protection Act: Groundbreaking, but will it be enforced?

By Loyola Law School Lecturer and Reference Librarian Tobe Liebert

Privacy of consumer information is a topic that has received a huge amount of attention in recent years, fueled by the growing public sense that Internet and technology companies are not acting as good guardians of customer information.  With the recent passage of the California Consumer Privacy Act (the CCPA) California thrust itself into the forefront of the debate over what laws are needed to provide adequate privacy and security for personal information.  The CCPA, which will become effective on January 1, 2020, goes far towards creating privacy safeguards in line with the expansive protections found in the European Union’s General Data Protection Regulation (the GDPR).  But the act remains a work in progress, and there are some serious questions about how vigorously it can be enforced.

One of the most contentious issues discussed during the enactment of the CCPA was whether a “private cause of action” should be included in the act.  A private cause of action refers to the issue of whether a private citizen may bring a civil action to claim damages for violations of the act.  If not, then actions to remedy violations can only be brought by the state, acting through the Attorney General’s office.  Proponents of the inclusion of a private cause of action argued that compliance with the provisions of the CCPA would be much more likely if companies were faced with the possibility of civil actions brought by trial lawyers for violations of the law.  Opponents of a private cause of action believed that it would lead to a flood of lawsuits, imposing a huge and expensive burden on businesses in California.

Child Litigants Need to Have Counsel

By Professor Kevin Lapp

This op-ed originally appeared in the Monday, May 13, 2019 edition of the Daily Journal

For the second time in three years, the 9th U.S. Circuit Court of Appeals avoided answering the urgent issue of whether child respondents in immigration removal (deportation) proceedings have a due process right to counsel at government expense. The case, C.J.L.G. v. Barr, 2019 DJDAR 3782 (May 3, 2019), involved a Honduran adolescent who appeared in immigration court accompanied only by his mother. C.J.L.G. sought asylum based on his fear of persecution for being a member of a particular social group, a legal claim so complex that it regularly confounds attorneys and judges alike. He was also apparently eligible for special immigrant juvenile status (SIJS), but neither C.J.L.G., his mother, nor the immigration judge raised that form of relief at his hearing, and he was ordered deported. On appeal, C.J.L.G. argued that his hearing was unfair and that due process required that child litigants like him be provided counsel at government expense.
C.J.L.G.’s immigration hearing was all too usual. Each year, tens of thousands of minors appear without a lawyer in immigration proceedings, some as young as two and three years old. Data show that, unsurprisingly, unrepresented minors are significantly more likely to be ordered deported than represented minors. The government nevertheless insists that adversarial proceedings against unrepresented children comport with due process.
The fully briefed right to appointed counsel claim was presumably the reason the 9th Circuit chose to hear C.J.L.G. en banc. Yet, as it did three years ago, it avoided the issue. (In J.E.F.M. v. Lynch (2016), the 9th Circuit held in the context of a class action that there was no jurisdiction over a constitutional right to counsel claim raised by minor respondents.) Instead, the court ordered a new hearing because the immigration judge failed to inform C.J.L.G. of his apparent eligibility for SIJS. It then dropped a footnote to explain that because C.J.L.G. has since secured counsel, and will be represented on remand before the Immigration Court, it need not address the constitutional right to appointed counsel claim.
The 9th Circuit’s decision is certainly a victory for C.J.L.G. and other pro se children who may be eligible for SIJS. The court found error in his proceedings, and he now has an opportunity, aided by counsel, to fully present his case for relief. But to avoid the right to appointed counsel issue (again) is, in practice, to decide it. And it is to decide it in a way that necessarily leaves thousands of child litigants, who either cannot afford a lawyer or who have not lucked into pro bono counsel, to defend themselves against trained government prosecutors in proceedings that involve a notoriously complex area of law.
Strikingly, C.J.L.G.'s case demonstrates exactly why child respondents need lawyers to ensure the fairness of their proceedings. Recall that the 9th Circuit found that the immigration judge failed to inform C.J.L.G. of a possible form of relief as he was required to do. Neither the presence of a friendly adult nor the immigration judge’s duty to develop the record were sufficient safeguards. If C.J.L.G. had not secured counsel after he was ordered deported, the error in his case would have never come to light. He would have been just another child deported after an unfair hearing. Nevertheless, because of C.J.L.G.’s fortune in securing a lawyer, thousands of children who do not share his good luck will continue to go without a lawyer in proceedings that are just as likely as his to be unfair.