Tuesday, March 7, 2017

Religious Organizations, Refuge for Undocumented Immigrants, and Tax Exemption

By Professor Ellen P. Aprill

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

For many houses of worship, the Biblical injunction, “You should not wrong a stranger or oppress him, for you were strangers in the land of Egypt” (Exodus 22:21, JPS), constitutes an important religious doctrine. The Trump administration has announced plans for aggressive enforcement of immigration laws, plans that are expected to expand massively the number of people detained and deported. This new policy has forced many houses of worship and other religious organizations to consider whether their beliefs call upon them to grant refuge or so-called sanctuary to undocumented immigrants.

Under long-standing immigration laws, harboring undocumented immigrants carries the potential for both fines and imprisonment. An organization can lose its exempt status if its purpose is illegal. Moreover, illegal activity is deemed not to further an exempt purpose, and an organization can also lose its exempt status if a substantial part of its activities are not in furtherance of its exempt purpose. Houses of worship and religious organizations face some risk, at least in theory, of losing exemption for such activity. As a practical matter, loss of exemption is unlikely, but the organization needs to document the religious basis for its actions and the criteria it will use.

One piece of official IRS guidance offers important guidance. It involved an organization formed to educate the public on the principles of pacifism and nonviolent action, including civil disobedience. This 1975 “Revenue Ruling” explains that no Section 501(c)(3) organization can have an illegal purpose. The ruling’s analysis, however, emphasized the group’s primary activities of undertaking protest demonstrations and other nonviolent actions, including deliberately blocking traffic, disrupting the work of government, and preventing the movement of supplies, all breaches of the peace in violation of local ordinances. The ruling concluded that the organization’s activities “demonstrate an illegal purpose which is inconsistent with charitable ends.” The Tax Court in Church of Scientology of California v. Commissioner similarly concluded that pervasive illegal activities, including a number of felony convictions, constituted an illegal purpose and that the organization’s claimed status as a church did not protect it from application of the illegality doctrine.

Wednesday, February 22, 2017

The Fairness in Class Actions Litigation Act of 2017 (H.R. 985): A Few Thoughts


By Professor Simona Grossi

The Fairness in Class Actions Litigation Act of 2017 (H.R. 985) is currently pending in Congress. The bill, purportedly intended to reform class actions and bring “fairness” to the process, implicitly reveals, and not that covertly, the proponents’ disapproval of the work that the Advisory Committee has been doing on Fed. R. Civ. P. 23 for the past five years. Apparently the Advisory Committee is not moving fast enough or in the preferred direction. Of course,  Congress has the constitutional authority to provide rules of procedure for  Federal courts, but the system devised under the Rules Enabling Act (REA) has the benefit of proceeding through a transparent public process that, although far from perfect, promotes a fair consideration of all sides of any proposed alteration of the federal rules. Measures pushed through Congress, although subject to the usual hearing process, rarely have the detailed consideration and input from all interested parties that occurs under the rulemaking system followed by the Advisory Committee.

The procedural reform imposed by H.R. 985 is not a bottom-up, but rather a top-down imposition of   relatively narrow point of view. It is certainly not the product of the type of public forum system followed by the Advisory Committee. True, the legislature is representative of the people. But it is truly so? To what extent? And even assuming that it is, the class actions topic is so technical—sometimes even hyper technical for the experts in the field—that it demands a focused and narrow process of reflection and study, exchange and confrontation, precisely the one the Advisory Committee engages in and has engaged in with respect to Rule 23.

Monday, February 20, 2017

In Kindred, Supreme Court to Revisit Mandatory Arbitration Clauses

Professor Adam Zimmerman offers his thoughts on Kindred Nursing Centers v. Clark, scheduled for oral arguments before the U.S. Supreme Court on Wednesday, Feb. 22.

Kindred involves one of the latest challenges to mandatory arbitration clauses that bar class actions.  The Supreme Court in a series of cases since Concepcion has broadly permitted corporations to require that consumers enter arbitration agreements waiving rights to bring class actions in any forum.  But long before Concepcion, the Court also drew an important distinction for parties challenging arbitration agreements.  In Buckeye Check Cashing, the Court said a party who challenges the terms of an agreement that includes an arbitration provision has to raise that problem in the arbitration itself.  But when a party challenges whether or she entered into an arbitration agreement at all, the Court suggested that's something for courts to decide under state law.  

Nursing home cases raise that problem because many people in nursing homes may rely on someone else to enter into the nursing home contract using a power-of-attorney.  The lower court found that, as a matter of state law, it could decide whether those mandatory arbitration agreements signed by those using a power of attorney were invalid and ultimately found they were.  The Supreme Court will now decide whether, under the logic of cases like Concepcion, the Kentucky Supreme Court should have enforced the arbitration agreement under the Federal Arbitration Act, or instead, whether a party can raise state law challenges to entering such an agreement. 

Wednesday, January 25, 2017

Another Personal Jurisdiction Case in the Supreme Court

By Professor Simona Grossi

Some people have asked me to comment on the latest personal jurisdiction case pending in the U.S. Supreme Court. It did strike me that the Supreme Court has granted review in another personal jurisdiction case. As described by the Petitioner in BNSF Railway Company v. Tyrell, No. 16-405, the question presented is the following:
Whether a state court may decline to follow this Court’s decision in Daimler AG v. Bauman, which held that the Due Process Clause forbids a state court from exercising general personal jurisdiction over a defendant that is not at home in the forum state, in a suit against an American defendant under the Federal Employers’ Liability Act.
I would describe the question somewhat differently. I would say that the question is whether FELA authorizes the exercise of personal jurisdiction in state and federal courts in those states in which a railroad is “doing business,” and if so, whether Congress has the power to do so.

In relevant part, FELA provides that
An action may be brought in a district court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. The jurisdiction of the courts of the United States under this chapter shall be concurrent with that of the courts of the several States.
45 U.S.C. §56. Plaintiffs filed their FELA suit in a Montana state court. The defendant did not reside in Montana, nor did the injury-causing incident occur there. The defendant was, however, engaged in regular course of business in Montana. Thus, in filing their suit in Montana, the plaintiffs relied on the doing-business portion of §56.

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.