Evil Men in Black Robes: Slate's judicial election campaign ad spooktacular!

By Professor Rick Hasen

If you're a fan of The Exorcist and Carrie, if you like sex and violence and ominous music, you've come to the right place. Because we have gathered some of the most spine-chilling Halloween footage you will ever see--all produced in an effort to influence state judicial elections.

Thirty-eight states hold some form of election for their state supreme court justices, and the elections are getting ever nastier and more expensive. Whereas the spending on these races was once infinitesimal and the advertising--to the extent it existed--minimal and usually mild, that's all changing. The reasons are complicated. Judges have been targets in the culture wars, and their elections have attracted the attention of a polarized electorate. But the money behind the campaigns often comes from business, trial lawyers, and labor interests, whose bottom lines are routinely affected by state court rulings.

Read the full piece, "Evil Men in Black Robes: Slate's judicial eleciton campaign ad spooktacular!" here.

Cornell Law Review to publish Prof. Lee Petherbridge's recent article on judicial impact of scholarship

Associate Professor Lee Petherbridge has just accepted an offer to publish his article The Use of Legal Scholarship by the Federal Courts of Appeals: An Empirical Study in the Cornell Law Review.

Abstract:

Chief Justice Roberts recently explained that he does not pay much attention to law review articles, reportedly stating that they are not "particularly helpful for practitioners and judges." Chief Justice Roberts's criticism echoes that made by other judges, some of whom, like Judge Harry Edwards, have been much more strident in the contention that legal scholarship is largely unhelpful to practitioners and judges. Perhaps inspired by criticisms like those leveled by Chief Justice Roberts and Judge Edwards, legal scholars have sought to investigate the relevance of legal scholarship to courts and practitioners using a variety of means. One avenue of investigation has been empirical, where several studies, using different, and sometimes ambiguous, methodologies have observed a decrease in citation to legal scholarship and interpreted the observation to mean that legal scholarship has lost relevance to courts and practitioners.

The study reported here examines the hypothesis that legal scholarship has lost relevance to courts. Using empirical techniques and an original dataset that is substantially more comprehensive than those used in previous studies, it examines citation to legal scholarship by the United States circuit courts of appeals over the last 59 years. It finds a rather surprising result. Contrary to the claims of Justice Roberts and Judge Edwards, and contrary to the results of prior studies, this study finds that over the last 59 years - and particularly over the last 20 years - there has been a marked increase in the frequency of citation to legal scholarship in the reported opinions of the circuit courts of appeals. Using empirical and theoretical methods, this study also considers explanations for courts' increased use of legal scholarship.

Prof. Kathleen Kim's dual impact on human trafficking

In Yusaf v. Tija, the California Court of Appeal upheld a lower court judgment holding an employer liable for violating the California Trafficking Victims Protection Act (a civil provision). Associate Professor Kathleen Kim authored this statutory provision. She also provided technical support to the plaintiffs in Yusaf and co-authored this amicus brief in the case.

Following is the summary of the argument in the amicus brief:

In 2000, the federal government passed the Trafficking Victims Protection Act ("TVPA"). TVPA §102(a), 22 U.S.C. §7101(a) (2000). The TVPA, as amended, was designed to eradicate human trafficking through the implementation of a three-part strategy involving (1) benefits and services to victims; (2) punishment of offenders; and (3) establishment of a mechanism to monitor and eliminate trafficking worldwide. Congress knew at the time it drafted the TVPA that in order to succeed in its goal of eradicating human trafficking the federal government needed to enlist the participation of both domestic state, and international, governments.

As a result, and at the encouragement of the federal government, several states adopted their own anti-trafficking laws. Five years after the passage of the TVPA, on September 21, 2005, the California state legislature adopted the California Trafficking Victims Protection Act ("CA-TVPA") which was modeled after the federal TVPA. Cal. Penal Code §236.1 (West 2005). The issue of preemption raised by the appellant is an unusual theory given the backdrop against which the TVPA was enacted. Is the TVPA meant to preempt the very state anti-trafficking laws it encouraged the creation of? Given the legislative intent, and consistent language of the two statutes, it is clear that the TVPA does not preempt California's anti-trafficking laws. The 2008 amendment to the TVPA explicitly states that the TVPA shall not preempt any state criminal laws. TVPA §225, 22 U.S.C. §7101 (2008). There is no clearer indication of congressional intent than the express language of the statute which prohibits preemptions of the CA-TVPA. Furthermore, preemption of the CA-TVPA would be inconsistent with the federal government's implementation of the federal TVPA. Ever since the passage of the TVPA in 2000 the federal government has encouraged state legislators to adopt their own anti-trafficking laws. For example, the Department of Justice set forth a model state anti-trafficking statute to encourage states to enact state level anti-trafficking laws. If Congress intended to preempt state anti-trafficking laws, the federal government would have more explicitly promoted one uniform legal standard that could be applied across the board. Instead, the federal government has done the opposite. It has encouraged states to craft state level anti-trafficking laws with the flexibility to accommodate the unique qualities of existing laws in those respective states.

In addition, California adopted the CA-TVPA with the federal TVPA in mind. The CA-TVPA is consistent with the federal TVPA and even incorporates the TVPA by reference.

Finally, non-physical psychological coercion as a means of forcing labor is explicitly prohibited by the federal TVPA and therefore does not preempt the CA-TVPA's similar prohibition of psychological coercion. Based on the foregoing, preemption of the CA-TVPA would be wholly inconsistent with the explicit intent of Congress and the conduct of the Department of Justice, the federal agency charged with overseeing the implementation of the federal TVPA.

Assoc. Prof. Justin Levitt featured in Gerrymandering

Associate Professor Justin Levitt is featured prominently in the new movie Gerrymandering, starting its run this Friday at the Nuart Theater. I'm including some information on the film below, and you can find details about the theater here.

Assoc. Prof. Horton writes amicus brief in AT&T case

Associate Professor David Horton wrote and filed an amicus brief in the AT&T Mobility LLC v. Vincent and Liza Concepcion case scheduled for oral argument before the U.S. Supreme Court on Nov. 9.

Excerpt of the summary:

This is a case about what the unconscionability doctrine is, not what ATTM and its amici want it to be. "Unconscionability has generally been recognized to include an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party." Williams v. Walker-Thomas Furniture Co., 350 F.2d 445, 449 (D.C. Cir. 1965).

City of Bell's problems highlight problems defining disability

By Professor Michael Waterstone

Recently, there was a new twist in the sad saga of the city of Bell. At the same time he was being hired as Bell's police chief, Randy Adams agreed with Bell city officials that he was disabled. He claims he has knee, back and neck problems and was deserving of a medical pension; skeptics suggest this was a fraudulent move to shield retirement benefits from taxes.

As the case goes forward, we will likely figure out where the truth lies. But this story raises a larger issue. In our legal system, we have conflicting definitions and understandings of disability.

On one hand, disability is viewed as a medical issue. An individual is evaluated by a doctor who determines how severe his impairments may be. If the cumulative impacts of that person's impairments reach a certain level - typically, whether or not the person can work - they are considered "disabled." This label provides the gateway to different types of government benefits and services.

This medical-based view of disability had its roots in the Civil War veterans' pension system. Veterans who were completely unable to work got $8 a month; those who were missing a finger got $2 a month. This basic framework is still in effect in various types of government social benefit programs, including Social Security Disability benefits, access to state Medicare programs, and the current Veterans Administration. In all these cases, a doctor's evaluation as to how "disabled" a person is determines whether or not they get benefits.

Massachusetts Supreme Court disapproves of prosecutorial rewards to witnesses

By Professor Alexandra Natapoff

Two witnesses in Wayne Miranda's murder trial received $2000 each from the Chamber of Commerce because their testimony assisted in producing a guilty verdict. As the Boston Globe writes, the Massachusettes Supreme Court, while approving such witness reward programs generally, has ruled that prosecutors cannot participate in themor help witnesses get rewards when those rewards are contingent on convictions. Commonwealth v. Wayne Miranda, SJC-10568.

Two witnesses in Wayne Miranda's murder trial received $2000 each from the Chamber of Commerce because their testimony assisted in producing a guilty verdict. As the Boston Globe writes, the Massachusettes Supreme Court, while approving such witness reward programs generally, has ruled that prosecutors cannot participate in themor help witnesses get rewards when those rewards are contingent on convictions. Commonwealth v. Wayne Miranda, SJC-10568.

While the Massachusetts Supreme Court should be lauded for its ethical concern, its decision is somewhat ironic. Prosecutors routinely provide far greater benefits to criminal informant witnesses, in the form of liberty and leniency, than a few thousand dollars. In many jurisdictions, these rewards can be contigent on conviction. And even when the rewards are not expressly contingent on conviction, every attorney and informant knows that a witness in a successful conviction is more likely to get rewarded.

This is why Professor George Harris [author of Testimony for Sale: The Law and Ethics of Snitches and Experts, 28 Pepp. L. Rev. 1 (2000)], and I have recommended leveling the playing field by creating defense informants, i.e. rewards for informants who come forward with information that might help the defense rather than the prosecution. As it currently stands, an offender with information helpful to the defense cannot expect any benefits--only the government can give those. This lopsided arrangement is, as the Massachusetts Supreme Court pointed out, not in the interests of accuracy or justice.

For more postings, please see Prof. Natapoff's Snitching blog at http://www.snitching.org.