Wednesday, April 18, 2018

Strengthening and Reforming America’s Immigration Court System

Loyola Immigrant Justice Clinic Co-Director Emily Robinson '12 submitted a letter on behalf of immigration professors and clinicians related to the Senate Committee on the Judiciary Subcommittee on Border Security and Immigration prior to their April 18, 2018 hearing "Strengthening and Reforming America’s Immigration Court System."

An excerpt appears below:
Immigration judges are employees of the Department of Justice and are deprived of many protections had by Article I and Article III Judges. Attorney General Sessions introduced a new EOIR Performance Plan, which was first announced by EOIR’s head, James McHenry by e-mail on March 30, 2018. Under the new standards, which are set to go into effect on October 1, 2018, immigration judges will be required to meet a number of performance metrics, which include completing 700 cases a year and having fewer than 15 percent of their cases sent back by a higher court. These metrics are not put forth as suggestions or guidelines, but, rather, are inextricably tied to job security and raises. This means that immigration judges have a financial stake in the number of deportation orders they enter, or clients they convince to self-deport orvoluntarily depart.

Read the letter in its entirety

Wednesday, March 7, 2018

Seventh Circuit Certifies Question to Indiana Supreme Court in Fantasy Sports Case

By Professor Jennifer Rothman

This article originally appeared on Rothman's Roadmap to the Right of Publicity 

Today, the Seventh Circuit with lightening speed issued an opinion in the Daniels v. Fanduel case seeking guidance from the Supreme Court of Indiana. The case, which I have previously written about, involves a lawsuit by former college football players against online fantasy-sports companies FanDuel and DraftKings. An Indiana district court dismissed the case last September, concluding that the use was exempt under Indiana’s right of publicity statute because the uses were newsworthy and reported on a topic of public interest.

The Seventh Circuit heard oral arguments in the case on February 22nd, and Judge Frank Easterbrook repeatedly asked the attorneys why the interpretation of the Indiana statute was not something better addressed by the state court. It therefore is no surprise that today the court issued an opinion that he authored calling for the state’s supreme court to answer those questions.

The opinion focuses on the meaning of the exemptions to Indiana’s right of publicity statute, and particularly the question of whether the for-profit fantasy games fit within the purview of the statute’s exemptions for uses in “material that has . . .newsworthy value” or “in connection with the . . . reporting of an event . . .of general or public interest.” 

Wednesday, February 14, 2018

Law School Clinics Key to Bridging Access-to-Justice Gap

By Dean Michael Waterstone

This op-ed originally appeared in the Feb. 14 edition of the Los Angeles Daily Journal.

Legal education has been a source of vigorous debate and criticism. Some is no doubt warranted. High tuition. A challenging job market for new grads. President Barack Obama opined that the third year of law school is unnecessary. These are all important and complex topics, and worthy of public discussion.

But another issue is of pressing importance, and law schools have an important story to tell. There is an access-to-justice crisis in this country. Three quarters of litigants in state courts are unrepresented. In California, there is one legal aid lawyer for every eligible 6,000 poor people. The most vulnerable members of our society, facing some of the most challenging struggles of their lives, are being forced into the legal system on their own, where they will unquestionably meet worse outcomes. This is undermining confidence in one of our most prized national assets — our commitment to the rule of law. The World Justice Project currently ranks the United States 94th out of 113 nations on the “Accessibility and Affordability of Civil Justice” 2016 Index.

This is a society-wide problem, and law schools have a crucial role to play. One of the primary ways we do this is through clinical legal education. Based on the medical residency model, clinical legal education gives law students an opportunity to represent actual clients under the supervision of clinical law professors. Most states, including California, have student practice rules that allow qualified law students to do this.

Our law school, Loyola Law School, Los Angeles, has a longstanding commitment to clinical legal education. It is a key way we fulfill our social justice mission to train our students to be lawyers for others. Our Loyola Immigrant Justice Clinic represents some of the most vulnerable members in our community. They recently held an event where they helped 100 Deferred Action for Child Arrivals recipients with their renewals.

Tuesday, January 16, 2018

Amending the Johnson Amendment in the Age of Cheap Speech

This is an excerpt from Professor Ellen Aprill's article published in the Illinois Law Review, in which Professor Aprill concludes: 

Charities can have enormous influence on political campaigns with little expense in today’s digital world. Contributions to charities are deductible; contributions to PACs and non-charitable section 501(c) organizations are not. Many who wish to intervene in political campaigns will shift their contribution from PACs and social welfare organizations to charities. I suspect that the Joint Committee of Taxation underestimates the revenue loss from even a five-year de minimis exception.

Under our current campaign finance regime, only dollars that have been taxed can be used for political intervention. A de minimis exception for campaign intervention for charities would undermine this basic principle. Moreover, over time, permitting charities to engage in partisan politics would reduce the respect long afforded to these entities and thus harm the sector. A de minimis exception to the campaign intervention prohibition would damage both the laws regulating charities and the laws regulating campaign finance. Our country would be far poorer for such changes.

Monday, January 8, 2018

Whitney Houston Estate Settles with IRS over Right of Publicity Valuation

By Professor Jennifer Rothman

The Whitney Houston estate and the IRS have settled their dispute over the value of the Grammy award-winner’s estate. The more than $11 million dollar disagreement in the amount of taxes owed centered on the valuation of Houston’s intellectual property rights, and particularly the value of her postmortem right of publicity. The estate had claimed that Houston’s right of publicity was worth just under $200,000, while the IRS claimed that it was worth more than $11.7 million. A staggering difference.

The IRS and the estate ultimately settled with the estate agreeing to pay $2 million. The IRS had initially sought more than $11 million in taxes and penalties from the estate. The stipulation entered on December 26th did not specify what Houston’s right of publicity was ultimately valued at.

The stipulation and settlement yet again avoided a court determination of whether the right of publicity should be part of the estate in the first place. Like the Michael Jackson estate, the Houston estate did not contest the inclusion of the right of publicity in the estate’s property―something I think estates should more actively start doing.

Tuesday, December 5, 2017

Finding a Bright Line on Expression in Masterpiece Cake Case

Loyola Law School, Los Angeles Professor Kimberly West-Faulcon is following the U.S. Supreme Court case Masterpiece Cakeshop v. Colorado Civil Rights Commission. The case stems from baker Jack Phillips’ refusal to make a wedding cake for a safe-sex couple, which challenged the refusal based on the Colorado Anti-Discrimination Act.

Professor West-Faulcon, Loyola’s James P. Bradley Chair in Constitutional Law, observes:
This is a case that tries to pit our constitutional right to be free from government censorship of our expression against civil rights protections for same-sex couples. I think finding a sensible place to draw the line on what constitutes artistic expression would mean people who run store-front bakeries must serve all of their products to all of the public because a bakeshop is a public accommodation. If you are more “artist” than baker, I’d think the Court would expect you to have a private studio with more exclusivity than a place where the general public goes to buy cookies.

Wednesday, November 8, 2017

Contempt at the Military Commissions: A Legal History

By: Professor David Glazier
This piece originally appeared on Lawfare

Does a military commission judge have the power to cite a senior U.S. military officer for contempt as if these tribunals were courts-martial or regular federal courts?

This question came to the fore last week when Guantanamo experienced its most bizarre detention to date. On Nov. 1, Col. Vance Spath held in contempt the military commissions’ chief defense counsel, Marine Corps Brig. Gen. John Baker in the trial of Abd al Rahim al Nashiri. (Al Nashiri is accused of planning the 2000 bombing of the USS Cole.) Although it might be widely assumed that the Guantanamo tribunals should enjoy similar core authority to that inherent in other U.S. courts—including the power to punish for contempt—the reality is that their authority is limited by their governing statute, the Military Commissions Act of 2009 (MCA).

Spath summarily convicted Baker for contempt of court for refusing to testify before the commission or revoke his unilateral excusal of three civilian counsel assigned to represent al Nashiri due to purported ethical conflicts. Spath imposed on Baker twenty-one days confinement and a $1,000 fine. Although Baker’s actions might be punishable by a judge in a regular civilian court, or even a court-martial conducted under the recently amended Uniform Code of Military Justice (UCMJ), they fall outside the scope of contempt as Congress defined it in the MCA.