Blog on hiatus for the holidays

Loyola Law School is on winter break until Jan. 17. During that time, Summary Judgments will feature only intermittent postings. Happy new year!

Getting closer to justice for descendants of victims of Armenian Genocide

By Professor Stan Goldman

Director, Center for the Study of Law & Genocide

Recently, I appeared at second chair before an en banc panel of the U.S. Court of Appeals for the Ninth Circuit in yet another installment of what has been an ongoing saga to obtain payment of insurance claims due to descendants of victims of the Armenian Genocide. The case, Movsesian v. Victoria Versicherung, stems from unpaid policies sold in 1915 to ethnic Turkish Armenians in the prelude to what would become the Armenian Genocide. In my role as director of the Center for the Study of Law & Genocide (CSLG), I have worked on an amicus curae on behalf of the plaintiffs represented by attorneys including alumni Mark Geragos '84 and Brian Kabateck '89 against defendant insurance companies Victoria Versicherung AG, Ergo Versicherungsgruppe AG and parent company Munich Re.

First, a little back story: The side for which I was writing and appearing originally lost in the three-judge Ninth Circuit panel that had declared California's law unconstitutional as an interference with the federal government's exclusive control over foreign policy. The court then reversed itself, in significant part because of the historical argument we set forth in the CSLG's amicus I filed requesting a rehearing after the initial loss. The nation of Turkey, somewhat shaken by the court's reversal, then filed an amicus requesting yet another rehearing. In response to this, the court ordered a hearing en banc, at which time we filed an additional amicus, which included a reiteration of my earlier historical argument. That argument was that the United States had in fact recognized the genocidal nature of the Armenian massacres as a result of Congress's passage of various legislation in the 1980s and that hesitancy to reiterate that in recent times was insignificant. In other words, though you may not have chosen to renew your vows in the last few years, as long as you have not divorced in the interim you're still a married couple based on the original ceremony.

However, larger issues loom. An additional argument as to why California should be allowed to authorize civil lawsuits in order to redress losses during the Armenian Genocide is U.S. authorities are allowed to criminally prosecute the perpetrators of genocide if they come within U.S. borders. It would seem this is a right granted under the United Nations genocide convention to every signatory (of which the U.S. is one), and my interpretation of federal law is that it in turn allows state as well as federal prosecution. If this is in fact correct, then does that not, as a matter of logic, also authorize the lesser remedy of civil actions arising out of genocides including that of the Armenians? It should be additionally noted that while California's law may allow standing to sue, a total of 43 states acknowledge the Armenian massacre as having been a genocide. That is important because the U.S. Supreme Court recognizes as persuasive any overwhelming state support for a given proposition.

Though it may be historical in nature, the inclusion of the massacre of the Armenians as a genocide is a fitting project for Loyola's Genocide Center. In providing the potential for civil redress by these victims and their descendants, the ground is hopefully paved for claims based upon more contemporary mass atrocities.

Looking back at Prawsfest! 9

By Associate Professor Justin Levitt

As mentioned here, together with David Fagundes over at Southwestern, we had the privilege of hosting Prawfsfest! Nine over the last few days. David Horton and I had the privilege of bookending the workshop -- I offered myself as the first victim of the proceedings, and David batted cleanup; given his Prawfsfest preview, I'm eagerly awaiting the formal unveiling of David's piece. It's an impressive holiday gift to the legal academic world.

There are a few signature elements of the Prawfsfest format, beyond the raw opportunity to connect with some outstanding colleagues: papers are limited in length so that everyone can read all of them, everyone actually reads (and is prepared to discuss) all of them, and just about all of the participants are junior faculty, which makes for a particularly accommodating space to discuss ideas in the early stages of incubation. And, true to form, the workshop was tremendously useful, with plenty of both entertaining and informative besides. (Droid flight dynamics, I'm lookin' at you.) I presented an early-stage work tentatively titled "Motive Matters," assessing the Court's tendency to confuse judicial competence in assessing governmental motive with constitutional forgiveness of motives beyond the pale. I'll be investing more work on the piece, aided substantially by the exceedingly thoughtful feedback that I received. And I'll sincerely hope that the other participants found the conference as enjoyable as I did. Thanks to all -- and particularly thanks to David Fagundes for pulling it all together. Prawfsfest! X, the bar's been set high.

Prop. 14 faces more legal challenges: Is the party over?

By Associate Clinical Professor Jessica Levinson

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

In June of 2010, voters passed Proposition 14, the open primary, top-two election law. Since that time a number of lawsuits have been filed seeking to overturn it. (Full disclosure, I have been consulted by at least one group opposing Proposition 14). Just a few weeks ago, yet another challenge was lodged against the new law.

Proposition 14 provides that any voter can vote for any candidate in the primary election and that only the top-two vote-getters, regardless of party affiliation proceed to the general election. In some districts this could mean that the general election will be a battle between two Republicans or two Democrats. Candidates will list their party preference, or lack of party preference, on the ballot.

Proposition 14 was put on the June 2010 ballot as part of a compromise to pass the 2010 state budget. Then-state Sen. Abel Maldanado (R) agreed to vote for the budget in exchange for placing his pet project, an open primary, top-two election law on the next ballot. The primary purpose of the law is to increase the number of moderate legislators. The idea is that the winner of an election under Proposition 14 will have had to appeal to a broad spectrum of the electorate.

The latest challenge alleges that the new law is impermissible because it limits minor party access to the general election ballot and makes it more difficult for minor parties to remain ballot qualified in California. Members of California's four minor parties - American Independent, Green, Libertarian, and Peace and Freedom - constitute 4.5 percent of registered voters.

Loyola Hosting Gathering of Law Professor Bloggers

This Wednesday and Thursday, Loyola will be hosting "Prawfsfest." This is a gathering of law professors who have contributed to Prawfsblawg (which the ABA recently David Horton and Justin Levitt, we are pleased to welcome Addie Rolnick (UNLV), Michael Helfand (Pepperdine), Brendan Maher (Oklahoma City University), Franita Tolson (Florida State University), Tun-Jen Chiang (George Mason University), Sarah Lawsky (UCI), Jake Linford (Florida State University), and Dave Fagundes (Southwestern). Welcome all!

Loyola hosts Legal Writing Institute

Loyola Law School's Lawyering Skills Faculty hosted the Legal Writing Institute One Day Conference 2011 on Friday, Dec. 2. Moderators included several Loyola faculty members: Bob Brian, Saran Bensinger and Cindy Archer. The program, which featured interactive lectures and workshops, featured several substantive sessions:

-"New Media:" Its Effect on How and What We Teach, which featured the talks "There's an App for That: Integrating the iPad into the Legal Writing Classroom"; "How What We Can Learn from Popular Culture Can Affect the LRW Curricula" and "Legal Research for a New Age," presented by Library Director and Professor Dan Martin.

-Writing Problems: Reflections from the "Pros";

-Grading and Commenting: New Techniques for a New Generation, a roundtable discussion on the most effective ways to grade and comment on student papers for a new generation of students;

-Curriculum: What Are We All Doing and How Are We Doing It? A roundtable discussion about use of memos, appellate brief v. points and authorities and what has worked.

Proposed Juvenile Court Order Subjects Youth to More Harm

By Maureen Pacheco

This op-ed was originally published in the Nov. 28 edition of the Los Angeles Daily Journal.

As a former public defender and current clinical director of the delinquency clinic at Loyola Law School, Los Angeles, I've seen far too many children charged with crimes. It is especially heartbreaking when I see young people whose poor behavior can be traced back, in part, to a dependency system that failed to meet their needs.

I want nothing more than to strengthen the dependency system and improve outcomes for young people who deserve our protection and support. Unfortunately, a proposed blanket order from Los Angeles Juvenile Court Presiding Judge Michael Nash to presumptively open juvenile dependency court proceedings - hearings for foster children and youth - to the public and the media would do more harm than good.

That's the conclusion legislators reached earlier this year, when they listened to youth and attorneys for both children and families and squarely rejected a bill to presumptively open dependency courts. Yet Judge Nash is moving forward with an order that circumvents the legislative process, contradicts current law, and disregards the youths' desire for privacy.

Youth have put forward an alternative that would both protect them and accomplish the goal of opening the system to greater analysis: allow the youth or his attorney to "opt out" of the automatic opening of a public hearing. Judge Nash should listen to the youth and adopt this alternative, or scrap his damaging blanket order.

Genetic discrimination in the United States and Europe

By Associate Dean Michael Waterstone

Would you be comfortable taking a genetic test to see if you had a genetic predisposition to certain diseases? Even if your doctors tell you it might be medically useful, would you be concerned that the results might somehow come back to harm you? Perhaps your employer might find out the results, and, depending on the results, worry about your future productivity? Or would you be concerned that your insurance company could find out and use this information to raise your health insurance rates?

Ninety percent of Americans feel that taking genetic tests leaves them open to this type of genetic discrimination. In response to these fears, and based on the observations of doctors that patients were not getting genetic information for medical purposes and not participating in research studies, Congress passed the Genetic Information Discrimination Act ("GINA"), which prohibits discrimination on the grounds of a person's genetic information in employment and in the provision of health insurance. Although GINA has been on the books since 2008, a recent survey found only 16 percent of people surveyed knew its protections existed. As in all areas, law takes time to work its way into culture.

I recently attended a conference in Ireland on the need for a European framework to deal with the problems of genetic discrimination in Ireland, cosponsored by the Centre for Disability Law and Policy, National University of Ireland, Galway and the Burton Blatt Institute at Syracuse University. The audience was academics, policymakers and government officials. The chair was Justice John McMenamin of the Irish High Court, and Marian Harkin, a member of the European Parliament, was in attendance. The conference got a nice write up in the Irish Times.

Prof. Clark lines up the issues Supreme Court will address in healthcare-law arguments

By Professor Brietta Clark

The Supreme Court agreed to hear challenges to the Patient Protection and Affordable Care Act, the landmark health reform legislation signed into law by President Obama last year. The Supreme Court will consider several questions related to the constitutionality of the Act.

The first issue, and the one that has received the most attention so far, is whether the individual mandate is a constitutional exercise of Congress' power to regulate interstate commerce or to tax and spend for the general welfare. When the mandate goes into effect in 2014, it will require individuals to purchase insurance, unless they qualify for an exemption. This mandate raises a novel and important question about the scope of the government's power to require individuals to purchase a service from a private entity. So far two appellate courts (the Sixth and DC Circuits) have upheld the mandate based on Congress' power to regulate commerce, while the Eleventh Circuit held the mandate unconstitutional.

Read the complete post.

KPCC's Madeleine Brand Show covering Project for the Innocent as part of yearlong documentary

KPCC's Madeleine Brand Show will be covering the first year out of prison for Obie Anthony, the client for whom Loyola's Project for the Innocent secured a release on Oct. 4 after working on his claims since 2008. Students, under the direction of Professor Laurie Levenson and post-graduate fellow Adam Grant, drafted habeas claims and interviewed witnesses. Most recently, students participated in a September evidentiary hearing.

The complete story is at KPCC.org.

Loyola's Center for Restorative Justice hosts Expungement Clinic

By Seth Weiner, co-director, Loyola's Center for Restorative Justice

The Loyola Law School Center for Restorative Justice (CRJ) partnered with LAW Project Los Angeles (LPLA) to host an Expungement Clinic on the Loyola Law School Campus on Friday, Nov. 11.

The CRJ is founded on the belief that human harm caused by crime must be healed by a criminal justice system that is more restorative than punitive; that victims and survivors of crime, including offenders who were themselves victimized and others harmed by crime, can never be healed by merely punishing offenders. The CRJ exists to help bring about a shift from a punitive to a restorative paradigm of justice in our society. LPLA conducts outreach, education and advocacy to give people the tools they need to navigate their job search with dignity, determination and hope after suffering a criminal conviction. The LPLA is committed to the belief that communities that work are communities that thrive.

Each year in California, close to a million people are convicted of a crime. About 83% of these offenses are for misdemeanors and about 17% are for felonies. Literally, millions of people in California are likely to be in need of legal advocacy when the try to enter the workforce with a criminal conviction. Unfortunately, in the arena of criminal records and work, resources are limited. There are few places that people can receive free legal assistance from advocates who are trained and knowledgeable in the area of employment and criminal records. Additionally, criminal records can create a barrier for people in search of housing.

 

The expungement clinic was created with the understanding that there are many reasons people become involved with the criminal justice system. Challenges such as poverty, substance abuse, homelessness, mental health struggles, histories of abuse, involvement in the child welfare system, inadequate education and a dearth of life skills can lead to criminal court involvement. Regardless of the reasons for court involvement, most of those who are convicted of a crime, pay the price for their offense and successfully move forward with their lives. Unfortunately, the area of employment is often one place where those with a criminal conviction are unable to overcome their past.

With the assistance of attorneys and law students from Loyola Law School and LPLA, clients can receive education and advocacy regarding rights in the workplace. Clients have more hope in finding places to live and in putting the past behind them.

Loyola of Los Angeles releases inaugural Supreme Court issue

I am pleased to announce that the Loyola of Los Angeles Law Review has just released its inaugural Supreme Court issue.

This issue is dedicated to Justice Stevens and includes letters from President Bill Clinton, Justice Ruth Bader Ginsburg and Justice Sonia Sotomayor, as well as letters and essays written by Justice Stevens' former clerks Susan R. Estrich, Michael J. Gottlieb, Abner S. Greene, Jamal Greene, Melissa Hart, Amanda Leiter, Gregory P. Magarian, Nancy S. Marder, David Pozen, Adam M. Samaha and Samuel Spital.

The inaugural foreword was contributed by Erwin Chemerinsky, and Bill Araiza and Matt Vega also wrote articles. Numerous Loyola of Los Angeles Law Review editors wrote case comments for this issue.

We are proud of the contribution we believe this volume will make. If you would like a copy, please let me know.

--Professor Michael Waterstone, associate dean for research and academic centers

Professors Levitt, Levinson opine on Supreme Court's campaign-finance jurisprudence on SCOTUSblog

Two Loyola professors, Justin Levitt and Jessica Levinson, contributed to SCOTUSblog's recent forum on the effects of the Supreme Court's campaign-finance jurisprudence on the election. Their posts follow. Read the entire forum at SCOTUSblog.org.

Associate Professor Justin Levitt's post:

We don't yet know the electoral impact of Citizens United. The decision gave us a new wave of SuperPAC entities flaunting their new SuperPurchasingPower. But before Citizens United (excepting the 2002-2007 stretch from McCain-Feingold to Wisconsin Right to Life II), nonprofits could freely advertise that "Candidate Smith Hates Puppies," and could raise plentiful corporate money to do so. Citizens United removed only the additional ban on an explicit exhortation, of disputed incremental value, to vote the puppy-hater out. The difference is not insignificant: corporations can now strut, rather than slink, to the political marketplace. That makes fundraising easier and funding pools larger.

Ultimately, though, these SuperPACs may represent merely a new vehicle for some very old influence. Even if the new legal warmth for corporate political cash amounts to a difference in kind and not just degree, tangible electoral results need not necessarily follow. The money arrives just as the media market is splintering, making it more difficult for any sustained campaign to dominate any given informational channel. And as numerous failed candidates from the .01% have demonstrated, money may buy a seat at the table but does not alone guarantee victory. A deep American populist strain tends to resist massive expense by the few to persuade the many. There's a catch: the current disclosure regime does not meaningfully distinguish one from the other. For that, though, the blame thus far lies not with the Court (which has encouraged robust disclosure), but with Congress (which has not).

Associate Visiting Clinical Professor Jessica Levinson's post:

Citizens United has already had a deleterious affect on the electoral process. Public outrage surrounding the decision has only grown as corporations and moneyed interests have set up a shadow campaign finance system. Corporations can now give and spend nearly unlimited sums to help elect preferred candidates or defeat candidates they see as less favorable to their interests. Individuals increasingly feel that they cannot affect the outcome of electoral processes. Individual voices are being drowned out by the giving and spending of unlimited sums of money in the political marketplace. As a result voters feel disengaged in our representative democracy. The erosion of public confidence in a representative system of government is deadly serious.

Prof. Katie Pratt discusses tax consequences of sex-reassignment surgery

Professor Katie Pratt discussed the tax consequences of sex-reassignment surgery at the Loyola of Los Angeles Law Review symposium, "LGBT Identity & the Law."

Center for Juvenile Law & Policy files amicus brief on behalf of juvenile facing 110-years-to-life sentence

By Maureen Pacheco

In People v. Caballero, the California Supreme Court will soon be determining whether a 16-year-old boy with schizophrenia may be sentenced to 110-years-to life for three counts of attempted murder. Rodrigo Caballero would not be eligible for parole until 2212, when he would be 122 years old. Advocates from around the country joined in an amicus brief filed on October 28, 2011, urging the Court to find that this "functional equivalent" of life without parole is precisely the sentence prohibited by Graham v. Florida (2010) 130 S. Ct. 2011. In Graham, the United States Supreme Court ruled that juvenile offenders cannot be sentenced to life without a meaningful and realistic opportunity for re-entry into society prior to the expiration of their sentence for non-homicide offenses. As Justice Kennedy wrote so eloquently,

The juvenile should not be deprived of the opportunity to achieve maturity of judgment and self-recognition of human worth and potential. . . . Life in prison without the possibility of parole gives no chance for fulfillment outside prison walls, no chance for reconciliation with society, no hope.

The brief argues that the 110-year-to-life sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment, that the evidence of schizophrenia is a mitigating factor further diminishing the youth's culpability, and that this type of sentence is prohibited and condemned by international law and treaties.

The amicus brief was authored by Juvenile Law Center, Human Rights Advocate and

Loyola Law School's Center for Juvenile Law and Policy. Michelle Marquis, a third-year Loyola student in the Juvenile Justice Clinic, assisted me in researching and drafting the Center's portion of the brief. Also joining in as amicus curiae were the Disability Rights Law Center, Human Rights Watch and the National Association of Criminal Defense Lawyers.

Prof. Natapoff tracks Congressman Lynch's proposed informant legislation

By Professor Alexandra Natapoff

In the wake of new revelations about FBI informant crimes, U.S. Representative Stephen F. Lynch (D-MA) has introduced important new legislation that would require federal investigative agencies to report their informants' serious crimes to Congress. H.R. 3228, The Confidential Informant Accountability Act, would require the FBI, the DEA, Secret Service, ICE and ATF to report every six months to Congress all "serious crimes" committed by their informants, whether or not those crimes were authorized. "Serious crime" is defined as any serious violent felony, any serious drug crime, or any crime of racketeering, bribery, child pornography, obstruction of justice, or perjury. The bill prohibits the disclosure of informant names, control numbers, or any other personal information that might permit them to be identified. Under the U.S. Attorney General's Guidelines, the FBI is already required to disclose its informants' crimes to federal prosecutors.

The bill would also help the families of two men who were killed in connection with FBI informant Whitey Bulger to recover damages from the FBI. For more background, see these stories in the Boston Globe: Bill would aid kin of two slain men, and Pants on Fire. Full disclosure: I provided information to Congressman Lynch's office in support of this bill and I am strongly in favor of the effort.

Loyola professors anchor Loyola of Los Angeles Law Review symposium, 'LGBT Identity & the Law'

Loyola Law School and the Loyola of Los Angeles Law Review hosted a daylong discussion of the most pressing issues facing the gay, lesbian and transgender community during the symposium "LGBT Identity and the Law" on Friday, Oct. 21 on Loyola's downtown L.A. campus. Antidiscrimination, constitutional culture, healthcare and family issues will be the focus of four panel discussions. The keynote speaker was Dr. Gary Gates, Williams Distinguished Scholar, The Williams Institute, UCLA School of Law.

"Speakers addressed how sexual orientation issues are shaping constitutional law and politics, how antidiscrimination law both protects and fails to protect sexual minorities, how issues around healthcare access and medical care shape the lives of transgender and intersex individuals, and how the law recognizes and regulates families headed by same-sex couples," said Associate Professor Doug NeJaime, an organizer and moderator of the symposium. "Not only did the panelists chart the trajectory of the LGBT rights movement, they provided fresh commentary and presented new research on current and emerging issues that will shape the future of LGBT rights litigation, policy work and scholarship."

Villaraigosa Donor Found Guilty of Money Laundering

Visiting Associate Clinical Professor Jessica Levinson published a commentary titled, "Villaraigosa Donor Found Guilty of Money Laundering," on KCET's "1st and Spring" blog on Oct. 13, 2011:

"This week the Los Angeles City Ethics Commission found Alexander Hugh, a real estate executive and a donor of Mayor Villaraigosa's re-election campaign, guilty of laundering money to the mayor. The Commission unanimously voted 4-0 to impose the maximum fine allowed under the law, $183,750, for campaign finance violations.

Read the entire post here.

Kinde Durkee's Alleged Fraud Continues to Take Its Toll on California Politicians

Visiting Associate Clinical Professor Jessica Levinson published an op-ed titled, "Kinde Durkee's Alleged Fraud Continues to Take Its Toll on California Politicians," on the Huffington Post on October 7, 2011:

"The effects of the stunning fall from grace and subsequent arrest on September 2nd of veteran campaign treasurer Kinde Durkee continue to ripple throughout the California political community. Durkee is accused of stealing and misappropriating campaign funds from Assemblyman Jose Solorio (D). However, many more alleged victims have come forward. The reach of Durkee's alleged fraud is unprecedented. No less than 400 political committees were under her control.

Read the entire post here.

Four ways to reform the initiative process on its 100th anniversary

By Visiting Associate Clinical Professor Jessica Levinson

This op-ed was originally published by the Los Angeles Daily Journal.

This week marks the 100th anniversary of the enactment of the political reforms that brought the Golden State the initiative, the referendum, and the recall. A century later, one thing is clear; our system of direct democracy is deeply flawed.

In 1911, Gov. Hiram Johnson enacted a series of reforms - including the initiative, the referendum, and the recall - to increase the power of citizens across the state. At the time a special interest, Southern Pacific Railroad, had a stranglehold over lawmakers, and Johnson instituted a system of direct democracy in part to change that. The sad irony is that 100 years later, while their names are different - Amazon, Mercury Insurance, and PG&E - our systems of direct democracy are now controlled by the same interests they were meant to guard against.

Moneyed interests now control the processes meant to give power to all of the citizens. What does one need to qualify a measure for the ballot? Money. Money won't guarantee a measure's success, but it will mean that members of the electoral must invest time and resources on a ballot measure, regardless of the propriety of the idea behind the measure.

Why is money the driving force behind direct democracy? Because in 1988 in [Meyers v. Grant,] the U.S. Supreme Court invalidated a ban on paid signature gatherers. Simply put, if money spent in politics is speech, then prohibitions on the use of paid signature gatherers amount to restrictions on speech.

Should Los Angeles get rid of the business tax?

Visiting Associate Clinical Professor Jessica Levinson originally published this on KCET's "1st and Spring" blog:

Depending on your perspective Los Angeles' gross receipts tax on businesses either provides much needed revenue -- to the tune of $425 million per year -- or harms economic growth. Last week the City Council's Jobs and Business Development Committee suggested it is the latter. Specifically, the committee asked the city to study halting the tax for new businesses or eliminating it all together. The tax is essentially a tax on the revenue that businesses generate. The tax ranges from about $1 per $1,000 to $5 per $1,000.

Read the complete blog post.

U.S.S.C Hears Oral Argument in Golan v. Holder

By Professor Jay Dougherty

EXECUTIVE SUMMARY:

Recent extensions of copyright have generated much controversy. Some of these controversies have led to important judicial decisions (on the Supreme Court level) concerning Congress' power to legislate in the copyright arena and the interplay between copyright laws and freedom of speech and expression. Most challenges have failed, with the courts signaling a judicial deference to Congress. In the most recent battle, Golan v. Holder, plaintiffs who have relied on the public domain status of certain foreign works challenged a law that restored copyright to those works. Assertions that the restoration exceeded Congressional power were fairly routinely rejected at the lower court levels after the U.S.S.C.'s decision in Eldred v. Ashcroft, 537 U.S. 186 (2003) (affirming the 1998 Term Extension Act), but a claim that restoration violated the First Amendment seemed to have some traction. The Supreme Court accepted cert in Golan, and recently heard oral argument. In Eldred, the Court had said that a law that altered the traditional contours of copyright law would be subject to First Amendment scrutiny, and one 10th Circuit panel in Golan had held that the restoration statute would be subject to such scrutiny. The district court on remand held that the restoration statute failed First Amendment scrutiny, but that decision was reversed by another 10th Circuit panel. One might have expected the oral argument to focus on related unsettled issues, such as the level of scrutiny and requirements for its satisfaction, which would have added clarity and certainty in future disputes regarding the relationship between copyright laws and the First Amendment. Unfortunately, in this author's view, the plaintiffs spent most of the oral argument beating the dead horse of Congress' copyright legislative power and missed an opportunity to persuade the Court on appropriate First Amendment scrutiny. That might have led the Court to find that the restoration statute did not satisfy scrutiny, for example, and that there should have been more protection for reliance parties who had developed businesses utilizing public domain foreign works. It is of course still possible that the Court in its decision will address those issues. The decision, which will determine the U.S. copyright status of thousands of foreign works, will presumably be issued sometime in 2012. Below is a more detailed review of the case and the U.S.S.C. oral argument.

On October 5, 2011, the U.S. Supreme Court heard oral arguments in the most recent case challenging the constitutionality of a provision of the Copyright Act added in 1994 by the Uruguay Rounds Agreement Act (URAA) that restored copyright to certain foreign works that had lost their U.S. copyright through a failure to comply with formalities. That section, §104A, also granted federal copyright to certain foreign sound recordings first fixed before Feb. 15, 1972, and provided for copyright in certain foreign works whose origin is a foreign country whose works are not subject to U.S. copyright, when the U.S. enters into copyright relations with that country.

Loyola professors conduct ADR training in Bangladesh

The Loyola Law School Center For Conflict Resolution (CCR) partnered with the South Asian Institute of Advanced Legal and Human Rights Studies (SAILS) and the Judicial Administration Training Institute (JATI) of the Government of the People's Republic of Bangladesh to present a training program on Alternative Dispute Resolution in Bangladesh from July 16-22, 2011. Clinical Professor Mary B. Culbert, director of the Center For Conflict Resolution, and Associate Professor Hiro N. Aragaki provided 30 hours of mediation training to 25 judges and 12 attorneys in Bangladesh. They also met with other high ranking member of the Bangladesh legal system to discuss ways to create an ADR culture and to better utilize ADR to reduce the backlog in their court system, including the minister of Law, Justice and Parliamentary Affairs, Barrister Shafique Ahmed, and the chief justice of Bangladesh, Mr. Justice Md. Muzammel, and other justices of the Supreme Court of Bangladesh. Professors Culbert and Aragaki also met with various law schoosl to discuss the integration of skills training in to their curriculum.

Wrong Court, Wrong Charges: Major Flaws in USS Cole Bomber Prosecution

By Professor David Glazier

The Department of Defense announced the approval of military commission charges against Abd Al Rahim Hussayn Muhammad Al Nashiri, who it alleges to have masterminded the USS Cole bombing, on September 28, 2011, clearing the way for his arraignment and subsequent trial in a Guantánamo courtroom. Al Nashiri will face nine separate charges and a possible death sentence. Having been in command of a U.S. Navy guided missile frigate the day the Cole was struck, I am particularly eager to see justice done for this act of terrorism. But having spent most of the decade since 9/11 studying the law of war in general and military commissions in particular, I firmly believe that these are the wrong charges before the wrong court.

A military conviction will both require a strained application of the law of war and establish dangerous legal precedent that could put American military personnel at greater future risk. The Supreme Court has determined that military commission jurisdiction is strictly limited to conduct taking place during the period of an armed conflict. This is easily satisfied by acts on and after September 11, 2001 thanks to the congressionally enacted Authorization for the Use of Military Force (AUMF). But to hold that the October 2000 Cole bombing, as well as the earlier failed attack on the USS The Sullivans, took place during an armed conflict requires conceding to al Qaeda the nation-state's prerogative to declare hostilities. Since a warship is a lawful object of attack, we can then object only to the means used, not to the attack itself. Ruses, including the use of false flags, are permitted in naval warfare, allowing al-Nashiri to raise defenses wholly irrelevant in a federal terrorism prosecution, which would fairly hold that any pre-9/11act of violence against Americans, military or civilian, was a serious crime regardless of how conducted. Moreover, such a precedent would logically allow future terrorist groups to announce they were at war with the United States and lawfully kill our service personnel if they adopted means compliant with the law of armed conflict.

There are also very serious issues with the charges themselves that could well result in any convictions being overturned on appeal. The core justification for the multiple charges based on the Cole attack is that they involved perfidy by using a civilian boat, dressing in civilian clothing, and "waving at the crewmembers onboard." Nothing in the law of war requires naval forces, as distinct from land and air forces, to wear uniforms, while the prosecution's assertion that waving to a U.S. Navy ship now constitutes a war crime threatens to make a justifiably proud military force into the butt of jokes around the world. But the biggest problem with the charge is that the crime of perfidy requires inducing the adversary to falsely believe that the attacker is entitled to special protection under the law of war. It is logically impossible to do this to persons who do not know they are at war, as was true of the Cole and The Sullivans crews, who understood that they were making peacetime refueling stops and who were operated under U.S. peacetime rules of engagement and antiterrorism instructions, not the law of armed conflict. The United States has consistently treated the Cole as a peacetime matter, launching only FBI agents in response, denying the crew awards for combat valor, and assessing the performance of captain and crew against peacetime standards, all of which the defense will fairly argue should bar ex post facto reclassification of the bombing as part of an armed conflict.

Just Do It: The importance of training law students in public advocacy

By Professor Laurie Levenson

This op-ed was originally published by the Los Angeles Daily Journal.

Last month, The New York Times published an editorial calling on law schools to help fill the "justice gap" by training all law students in public advocacy. See N.Y. Times, "Addressing the Justice Gap" (Aug. 23). The "justice gap" represents America's failure to provide meaningful access to justice for low-income litigants. According to a report by the Carnegie Foundation, four-fifths of low-income people in the United States have little way to obtain the representation they need in order to succeed in our justice system. These litigants cannot afford a lawyer; without a lawyer, they stand little chance to win their cases.

While the Sixth Amendment provides indigent defendants in criminal cases with the right to appointed counsel (Gideon v. Wainright, 372 U.S. 335 (1963); Johnson v. Zerbst, 304 U.S. 58 (1938)), there is no such right in civil cases. Just this term, the U.S. Supreme Court held in Turner v. Rogers, 131 S.Ct. 2507 (2011), that even when a civil litigant faces incarceration for civil contempt, there is still no automatic right to counsel. So long as there are adequate procedures to govern the proceedings, civil litigants must provide for themselves.

The net result is that many people in society, often the most vulnerable among us, are unrepresented in the civil justice system. Among these individuals are immigrants, prisoners and those whose civil rights have been violated.

At the same time, there is a desperate need to provide practical education to law students to prepare them for the "real world" experiences they will face after graduating. See William M. Sullivan, "Educating Lawyers: Preparation for the Profession of Law" (Jossey-Bass 2007). After more than 25 years of teaching, it has become abundantly clear to me that there is only so much that a student can learn from a book. To become a "real" lawyer - a lawyer who is prepared to interact with and fight for a client's interests - a student must be given the practical experience in law school of working on real cases. We need to teach our students to be "lawyers," not just students of the law.

Faculty workshop series presents Hari M. Osofsky

Hari M. Osofsky, Associate Professor of Law & Lampert Fesler Research Fellow at the University of Minnesota Law School, will present her paper, "Scales of Law: Rethinking Climate Change, Terrorism, and the Financial Crisis," as part of the Faculty workshop series today, Thursday, September 22, 2011 at 11:45am in the Courtroom of the '90s on the 2nd floor of the Girardi Advcocacy Center.

Associate Clinical Prof. Jessica Levinson's commentary, "What Will Become of California's Newly Drawn State Senate Districts" published on KCET's "Socal Focus" blog

Associate Clinical Professor Jessica Levinson, wrote a commentary entitled, "What Will Become of California's Newly Drawn State Senate Districts?" that was published on KCET's "Socal Focus" blog on Sept. 19, 2011.

Here's an excerpt:

"For the first time in the state's history, an independent redistricting group drew state legislative and federal congressional district lines. Thanks to two successful ballot measures, those who stand to benefit the most from drawing district lines - sitting lawmakers - were extricated from the process. The independent redistricting commission's charge was, among other things, to create legislative districts which fairly reflected communities of interest, and to pay no heed to whether districts would benefit or harm incumbent lawmakers.

The full piece can be read here.

Three Loyola professors on SSRN top 25 list

Loyola Law School Professors Ted Seto, Katie Pratt and Jen Kowal are among the top 25 U.S. tax professors as ranked by downloads on the Social Science Research Network.

Should we limit how often we can vote on ballot initiatives?

By Associate Clinical Professor Jessica Levinson

This op-ed was originally published by KCET.

As the legislative sessions came to a close on Friday, our lawmakers passed a flurry of new bills. Among the proposed laws is SB 202, which removes ballot initiatives and referendum from next year's June ballot, and provides those measures will only appear on November ballots.

The question for the day is whether this initiative consolidation is a good idea. I'm all for less initiatives, but this just means we will vote on initiatives less often, not that there will be fewer of them.

Read the complete post at KCET.org.

Prof. David Horton asks and answers "Does the Federal Arbitration Act apply to wills and trusts" on SCOTUSblog

Associate Professor of Law, David Horton, wrote a post for SCOTUSblog entitled, "Does the Federal Arbitration Act apply to wills and trusts?" The post was part of an Arbitration Symposium organized by the Supreme Court blog.

Here's an excerpt:

"Over the last two decades, arbitration has transformed the way that consumer and employment disputes are resolved. Recently, arbitration clauses have become increasingly common in a different context: wills and trusts. The roots of this movement are easy to understand. Even with the economic downturn, Americans bequeath hundreds of billions of dollars each year. This massive intergenerational wealth transfer - the largest in history - is expected to make probate litigation more common. Incapacity and undue influence claims are notorious not just for depleting estates, but for exposing a testator or settlor's intimate life in open court. Arbitration's purported benefits - its low cost, speed, and privacy - make it attractive to estate planners and their clients."

Read the full post here.

Faculty Workshop Series Presented Deborah L. Rhode

Deborah L. Rhode, Ernest W. McFarland Professor of Law, and Founding Director, Center on Ethics at Stanford University Law School, presented her paper, "Lawyers as Leaders," today, Thursday, September 8, from 11:45 to 1:00pm, in the Courtroom of the '90s, on the 2nd floor of the Girardi Advocacy Center.

Professor Justin Levitt Testifies Before Senate Judiciary Committee on New State Voting Laws

Justin Levitt, Associate Professor of Law, testified in Washington, D.C. before the Senate Judiciary Committee's Subcommittee on the Constitution, Civil Rights and Human Rights.

The hearing examined new state voting laws that threaten to suppress turnout nationwide.

Professor Levitt is an expert on election law, and author of A Citizen's Guide to Redistricting. He also launched the website, All About Redistricting.

Prof. Yxta Murray on Anglo-American Radical Feminism's Constitutionalism in the Streets

By Professor Yxta Maya Murray

From "You're Creating New Categories:" Anglo-American Radical Feminism's Constitutionalism in the Streets, to be published Spring 2012 by the Hastings Race and Poverty Law Journal

On September 7, 1968, a battalion of the feminist group New York Radical Women bombed up the Garden State Parkway in their VW buses to make a ruckus at the Miss America pageant in Atlantic City, New Jersey. At a "consciousness raising" session (essentially a rap group session) several weeks previous, they had discovered that patriarchal beauty standards -- and their expressions in the meat markets that were beauty contests -- had damaged their own self-images and liberations. Thus enraged, they leapt off the buses, crowding around the boardwalk in front of the Atlantic City Convention Center, hoisting picket signs and papier mache puppets. They crowned a sheep -- a proxy, of course, for Miss America herself - and sang out bawdy songs that poked fun at the pageant organizers and the contestants. A dark ops group within N.Y.R.W., having "dressed up" to look like "normal women," purchased tickets to the Center. Once inside, these rebels unfurled a banner that read Women's Liberation, and some of them set off stink bombs. They were promptly nabbed by the police and shoved outside. The radical feminists did not resist arrest -- but, as they mostly hadn't seemed to really break any laws, only one stink-bomb thrower would be charged with "releasing a noxious substance." Jubilant at the success of their action, the rest of the feminists jumped back in their love buses and went back home.

It was pretty heady stuff, and seen by many as ushering in the new era of second wave feminism - but as it turned out, it was nothing compared to the riot that occurred two years later in London.

On November 20, 1970, an assorted group of radical British feminists arrived at the Royal Albert Hall in London with plans to sabotage the Miss World pageant. Though a radical anti-capitalist group called The Situationists had set off a bomb outside of the Hall earlier that morning, the feminists were not deterred from executing their raid on this fleshly fiasco. Having come armed with flour bombs (small sacks of flour that would detonate in a fluffy cloud upon impact), ink bombs, plastic mice, rotten produce, whistles, and rattles, the London rads' first acts of anti-beauty-pageant resistance was to camp outside the Hall, crown a stuffed cow, hoist placards, and scream "You poor cows!" and "They're exploiting you!" when the contestants arrived to London by bus and skittered inside the amphitheater. Once the Miss World pageant began, the Londoners (taking a cue from their U.S. sisters) snuck inside using the same transgender tactic of dressing like middle class, feminine women. Now in the Hall, they let it rip. The host for Miss World was Bob Hope, the famous comic of the "Road" movies fame, and the feminists rushed up to the stage, flinging flour and ink at him and shrieking. Old Bob ran away. The feminists turned to the audience, throwing the plastic mice, squirting tuxes, and bapping gents with grotty tomatoes. One protester, Sally Alexander (now a history professor at the University of London), stubbed out a cigarette on a policeman. There might have also been some biting. The women hollered profanities with glee. Five of them were arrested, while the others escaped. The jailbirds wound up doing star turns at their media-frenzied trials several months later. Ultimately, the charges against them were dropped.

The battle between our lawmakers and Amazon rages on

By Associate Clinical Professor Jessica Levinson

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

One hundred years ago California voters approved a sweeping set of governmental reforms, which included the introduction of the initiative, referendum and recall. Those reforms were aimed, at least in large part, at giving power to citizens. The initiative, referendum and recall were instituted to allow citizens to check government power, particularly in the case of legislators too cozy with special interest groups.

So one has to ask, when progressives pushed their reform package through the Legislature, could they have predicted that those reforms would be high jacked by special interests groups that were seen to pose a threat to the integrity of the electoral and political processes? While the names of those attempting to influence the government have changed - the 1911 reform package was enacted in large part as a response to the growing power of the Southern Pacific Railroad over the state government - the concerns about their power remain the same. Instead of worrying about the power of a railroad company over our elected officials, we can now ponder the influence of brick-and-mortar and online retailers, like Wal-Mart, Barnes & Noble, eBay and Amazon.

The process meant to empower citizens to check the power of their public servants also allows any group with the ability to raise $2 million to counter legislative decisions, both good and bad (rare as they may be, it is still possible that our lawmakers make good public policy decisions every now and again) by threatening to overturn those decisions at the ballot box.

One of the latest ballot box battles centers on the so-called "Amazon Tax." When California lawmakers enacted a budget for the current fiscal year back in June, that budget included a tax on online retail sales. The tax would raise an estimated $200 million in revenue. Quite understandably, Amazon is none too happy.

Amazon immediately promised to endeavor to qualify a ballot measure, a referendum, which would overturn that tax. Amazon has laid the groundwork for a measure appearing on the June 2012 ballot.

Faculty workshop series presents Professor Ronald J. Krotoszynski, Jr.

Visiting Professor of Law, Ronald J. Krotoszynski, Jr., the Director of Faculty Research & Professor of Law at the University of Alabama School of Law will present "The Unitary Executive and the Plural Judiciary: Reconsidering the Institutional Power and Authority of the Offices of the Chief Justice and the President" as part of the Faculty workshop series today, Thursday, August 25, 2011, from 11:45 to 1:00pm in the Courtroom of the '90s on the 2nd floor of the Girardi Advcocacy Center.

The Real Cheating Scandal of Standardized Tests

By Professor Kimberly West-Faulcon

This op-ed was published on Miller-McCune.com on August 22, 2011.

"Opinion: The widening circle of cheating scandals on standardized tests should fuel the movement to reduce the stakes these exams have on public education in the U.S.

Last week, Montana became the leader of what is likely to be a number of states that will rebel against the provisions of the federal No Child Left Behind law by refusing to raise test score targets as required by the law. Meanwhile, the list of states and cities plagued by allegations of cheating on standardized tests is likely to grow beyond Washington, Baltimore, Atlanta Pennsylvania and New Jersey. What are we to make of the Obama administration's willingness to waive some of the most extreme penalties under the No Child law but to only offer the rather hollow response of calling for enhanced "test security" to combat test cheating? Instead of a shocking anomaly, it seems that the egregious test cheating uncovered in Atlanta public schools last month may be more common than we as a nation want to believe."

Read the complete op-ed at Miller-McCune.com.

Prof. Dan Lazaroff on the NBA lockout

Professor Dan Lazaroff, director of Loyola's Sports Law Institute, discussed the NBA lockout on Lawyer 2 Lawyer on the Legal Talk Network. Program synopsis:

NBA Lockout and Lawsuits

Coming off the heels of an NFL Lockout, the NBA officially locked out its players on July 1, 2011, when players and owners failed to agree on a new contract. Then, the NBA filed two claims against the National Basketball Players Association (NBPA) before union players could file an anti-trust lawsuit against them. Attorneys and co-hosts Bob Ambrogi and J. Craig Williams welcome Professor Daniel E. Lazaroff, Director of the Loyola Sports Law Institute and Professor Gabriel A. Feldman, Director of the Tulane Sports Law Program, to discuss the legal and business issues surrounding the lockout. They take a look at the impact of the lockout on players, employees and fans and the fate of the 2011-2012 season.

Listen now

Dear Californians, You Don't Matter

By Visiting Associate Clinical Professor Jessica Levinson

This op-ed was originally published by KCET.

Well, at least when it comes to picking the next leader of the free world. In a previous post, I queried, "When it Comes to Presidential Politics, Does California Even Matter?" Democrats count on (take for granted) the Golden State and its 55 electoral votes--one-fifth of the total votes needed to win the presidency. Candidates visit our state to raise money, but not much else. Presidential campaigns are won and lost in the battle ground states. California is decidedly not such a state.

Read the complete post at KCET.org.

Summertime Disability Rights

By Visiting Associate Professor of Law and Executive Director of DRLC Paula Pearlman

This op-ed was originally published by the Los Angeles Daily Journal.

It's summertime. That means it is time to pack up the family for a summer vacation, near or far. Recreation is an essential part of the human experience, which everyone deserves and needs. People with disabilities should not have to go to court defending their right to have fun. This year, some of the nation's biggest, and most iconic entertainment destinations and operators are fighting against discrimination allegations.

In 2009, Joe Martinez, who uses a wheelchair because of quadriplegia, along with his wife, was among the 15.9 million visitors to the park in Anaheim. Soon after entering the Magic Kingdom, the spell began to wear off. Disney staff told the couple that they could not board the "Pirates of the Caribbean" ride in his wheelchair, and that this would be the case for most of the other "accessible" rides in the park. Martinez also required the use of family or unisex restrooms, which the couple had difficulty finding because there were no signs and few employees knew where to direct them.

One of the few rides accessible to Martinez was, "It's A Small World," but while onboard, the ride malfunctioned because of a computer glitch. The staff evacuated all the guests except for Martinez and his wife .

While they were waiting, Martinez suffered dysreflexia, a medical condition caused by overstimulation of the nervous system that can quickly lead to a stroke and death if untreated. "Dysreflexia feels like your head is going to explode," Martinez explained. After about 45 minutes, the ride was finally restarted and they were able to exit. Martinez left the park with the paramedics.

Prof. Ted Seto's paper, "Where Do Partners Come From?" summarized in Wall Street Journal Law Blog

Professor of Law and William Rains Fellow, Theodore P. Seto's paper, "Where Do partners Come From?" was featured on the Wall Street Journal law blog on August 5th, 2011.

Seto's paper, to be published in a forthcoming edition of the Journal of Legal Education, analyzes which law schools have produced the most partners in the past quarter century.

Do Californians Have the Right to See the Current Budgets and Expenditures of their Lawmakers?

This op-ed was originally published by KCET.

By Associate Clinical Professor Jessica A. Levinson

Doing absolutely nothing to help their already dismal public approval ratings, the state Assembly has refused requests--submitted under the Legislative Open Records Act--to release records of legislators' 2010 and 2011 budgets (money given to rank and file legislators by the leadership) and expenditures. Now The Sacramento Bee and Los Angeles Times are suing to obtain those records.

The newspapers argue that the budget and spending records document public resources used for public business, and should be released based on a constitutional right to access information about government activities.

The Assembly Rules Committee, on the other hand, claims that it need not release those documents because the records fall under exceptions to the Legislative Open Records Act for "correspondence of and to individual members of the Legislature and their staff," and "preliminary drafts, notes or legislative memoranda." An Assembly administrator has argued that the records of lawmakers' current budgets and spending could contain confidential personnel information. Basically, the Assembly Rules Committee claims that those documents, which detail use of public funds by public officials, are privileged.

Read the complete post at KCET.org.

Prof. Ted Seto to publish 'Where Do Partners Come From?' in Journal of Legal Education

Professor Ted Seto recently agreed to publish his article "Where Do Partners Come From?" in the Journal of Legal Education. The article was highlighted on the Wall Street Journal Law Blog and on Above the Law. The following is an abstract:

Which law schools produce the largest numbers of partners at national law firms? This article reports the results of a nationwide study of junior and mid-level partners at the 100 largest U.S. law firms. It identifies both the top 50 feeder schools to the National Law Journal 100 nationwide and the top 10 feeder schools to those same firms in each of the country's ten largest legal markets. U.S. News rank turns out to be an unreliable predictor of feeder school status. Hiring and partnering by the NLJ 100 are remarkably local; law school rank is much less important than location. Perhaps surprisingly, Georgetown emerges as Harvard's closest competitor for truly national status. (Any school that believes the author's count is inaccurate is requested to supply corrected information.)

Download the complete law review article on SSRN

Legal defense funds: An ethical dilemma?

By Visiting Associate Clinical Professor Jessica A. Levinson

Mayor Antonio Villaraigosa was recently hit with almost $42,000 in fines based on improper acceptance of free tickets to 34 events, including concerts, and cultural affairs and sporting events.

What is a mayor to do?

In Villaraigosa's case, create three separate legal defense funds for three separate investigations - one related to the L.A. Ethics Commission's inquiry, another related to a District Attorney examination, and a third related to the California Fair Political Practices Commission probe. The law allows office holders to create legal defense funds when they face charges or investigations stemming from their jobs as public officials.

Read the complete post at KCET.org.

Prof. Waterstone on AAPD v. Harris

By Professor Michael Waterstone

Thanks to Dan and Rick for inviting me to post on the recent opinion in AAPD v. Harris. As Dan notes, the wheels of justice have moved slowly on this case. The original district court opinion (from 2004) is in an earlier edition of my disability law casebook. It held that voting machines requiring voters with visual impairments to vote with third-party assistance violated Title II of the ADA. The Eleventh Circuit previously reversed the district court, holding that plaintiffs did not have a private right of action to enforce the ADA. This decision holds that voting machines are not a facility and therefore are not covered by one of the regulations implementing Title II of the ADA.

Plaintiffs made three specific claims under the ADA. This first is premised on the actual language of the statute. Title II of the ADA (the operative title here) provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs or activities of a public entity, or be subjected to discrimination by any such entity." Plaintiffs' argument is that inaccessible machines prevent them from participating in voting (a public program) in the same manner as citizens without disabilities.

Read the complete post on the Election Law Blog.

Politics today: What's sex have to do with it?

This op-ed was originally published by the Los Angeles Daily Journal.

By Professor Laurie L. Levenson and Laura LeFeuvre, 2L

One need only open the newspaper to see the flurry of recent charges against politicians throughout the country. While some of these charges involve professional malfeasance, others derive from sexual misconduct by the official. Of course, this certainly is not the first generation of politicians to be less than noble in their private lives. Sex scandals date back to the time of our Founding Fathers. Yet, there does seem to be something different about how we are responding to the recent sexual escapades of today's politicians. Not only have their sexual exploits forced them out of political office, but increasingly, they now face criminal charges.

America may have started as a Puritan nation, but our political leaders have been far from pure. DNA evidence indicates that Thomas Jefferson had an affair with and fathered the children of his slave Sally Hemings. Alexander Hamilton had an affair with Maria Reynolds and paid her husband hush money to continue the affair. Even George Washington supposedly wrote love letters to a certain Sally Fairfax, a friend of Martha Washington. While well known, their scandalous behavior has become but a footnote in the chronicles of American history.

By comparison, today's politicians find themselves facing more than public scorn. They also face criminal indictments. Former Senator and one-time presidential candidate John Edwards has been charged in a six-count indictment with conspiracy, illegal campaign contributions and false statements relating to his sexual escapades. The indictment alleges that Johnny Reid Edwards chose to "(f)alsify, conceal, and cover up by trick, scheme, and device" his extramarital affair and illegitimate child. In particular: "The purpose of the conspiracy was to protect and advance Edwards' candidacy for President of the United States by secretly obtaining and using hundreds of thousands of dollars in contributions from Person C and Person D, well in excess of the Election Act's limit, to conceal Edwards' extramarital affair with Person B and Person B's pregnancy with his child. Edwards knew that public revelation of the affair and pregnancy would destroy his candidacy by, among other things, undermining Edwards' presentation of himself as a family man and by forcing his campaign to divert personnel and resources away from other campaign activities to respond to criticism and media scrutiny regarding the affair and pregnancy."

Prof. NeJaime participating in Constitutional Redemptionsymposium

Associate Professor Doug NeJaime is participating in the Constitutional Redemption symposium, a dialogue on Jack Balkin's new book. Other participants include Jack Balkin (Yale), Melissa Murray (Berkeley), Bernadette Meyler (Cornell), Emily Zackin (Princeton), Joe Fishkin (Texas), Dan Solove (GW), Andrew Coan (Wisconsin) and Josh Chafetz (Cornell). The Concurring Opinions event is viewable online. Below is Professor NeJaime's opening post.

Jack Balkin's Constitutional Redemption: A Much-Needed Dose of Optimism

I want to thank Danielle Citron for inviting me to participate in this symposium. And I want to thank Jack Balkin for giving me the great honor of commenting on his wonderful book. In Constitutional Redemption, Balkin offers an important, insightful, and useful corrective to the pessimism that pervades a significant amount of legal scholarship on the left. His constitutional optimism suggests the potential and possibilities of constitutional mobilization.

Balkin's book offers incredible amounts of rich material. He provides a descriptive account of constitutional change, a normative vision of democratic culture, and an interpretative theory aimed at fulfilling the Constitution's promises. In showing how social movements believe in and agitate for constitutional redemption, Balkin redeems the Constitution for legal scholarship, reminding us that the Constitution serves both as a potent symbol of social change and as a vehicle for continued reform. In this commentary, I first want to focus on why I think Balkin's descriptive account is accurate by pointing to two essential moves I see him making. I then want to show Balkin's theory in action in the marriage equality context as a way to translate his analysis into a useful lesson for liberals and progressives.

To my mind, two key moves allow Balkin to see what many others miss and thereby to bridge the often vast divide between constitutional theory and on-the-ground social movement activity. First, Balkin decenters adjudication, and in a sense detaches constitutional claims-making from constitutional decision-making. Of course, Balkin discusses at great length the decisions of the Supreme Court on various significant issues - from race to abortion to labor - and these decisions are crucial to an account of social change. But he analyzes adjudication through the lens of political and movement mobilization, showing the evolution of constitutional principles through the symbiotic relationship among courts, culture, and social movements. (Balkin, p. 63)

Adjunct Prof. James Gilliam published op-ed: Attorneys regrettably revive the 'gay panic' defense

Adjunct Professor James Gilliam recently published an op-ed in the Ventury County Star. Below is an excerpt with a link to the entire piece.

Attorneys regrettably revive the 'gay panic' defense. It's a classic tactic when defending an indefensible crime: blame the victim, especially if that victim is gay.

The odious strategy is unfortunately common enough to have a name, the "gay panic defense," and it holds that a heterosexual man cannot possibly be expected to maintain his sanity when confronted with a same-sex advance.

While it has popped up as a justification for Matthew Shepard's 1998 murder and even, implausibly, as a reason behind the brutalization of gay patrons during a 2009 police raid of a Fort Worth, Texas, bar, it isn't generally successful.

Which is what makes especially depressing its recent appearance in the Chatsworth courtroom where 17-year-old Brandon McInerney is on trial for the 2008 shooting of his classmate, 15-year-old Lawrence King.

His defense attorneys say McInerney was so horrified by a request by King to be his valentine that he was driven, a day later, to bring a pistol to class at Oxnard's E.O. Green Junior High School and shoot King in the back of the head. While they admit he shot King, they told reporters he did it "in the heat of passion caused by the intense emotional state between these two boys at school."

Read the entire op-ed

Prof. Lee Petherbridge releases study of impact of legal scholarship on Supreme Court

A new study by Loyola Law School Professor Lee Petherbridge and Chicago-Kent College of Law Associate Professor David L. Schwartz details the impact of legal scholarship on the Supreme Court. The study, "An Empirical Assessment of the Supreme Court's Use of Legal Scholarship," is available for download on SSRN.

Abstract:

Derogating legal scholarship has become something of a sport for leading figures in the federal judiciary. Perhaps the chief antagonist in recent years has been none other than the Chief Justice of the U.S. Supreme Court, John G. Roberts Jr. His most recent salvo includes the claim that because law review articles are not of interest to the bench, he has trouble remembering the last law review article he read. This claim, and others by the Chief Justice, may represent the end of an uneasy détente concerning the topic of the utility of legal scholarship to the bench and bar. At a minimum, Justice Roberts's recent comments represent a vigorous invitation to a discussion, which this article accepts. To that discussion we contribute an empirical study that is based on an original and unprecedented body of data derived from every Supreme Court decision over the last sixty-one years. This article presents several surprising results and makes two major novel contributions. The first is evidence describing the amount and patterns of the Supreme Court's use of legal scholarship over the last sixty-one years. The second, and perhaps most striking contribution of this article, is empirical evidence on the nature and quality of the Court's use of scholarship. This article provides the first report, as far as we can determine, of evidence that the Supreme Court not only often uses legal scholarship, it also disproportionately uses scholarship when cases are either more important or more difficult to decide. It thus presents results strongly counterintuitive to claims that scholarship is useless or irrelevant to judges and practitioners. The article also discusses areas for future work.

A ballot box battle brewing over the 'Amazon tax'

This op-ed was originally published by the Los Angeles Daily Journal.

By Associate Clinical Professor Jessica A. Levinson

A small but well-publicized part of California's newly enacted budget, the so-called "Amazon tax," looks to be the catalyst behind California's next big ballot initiative battle. The law requires Internet retailers with a "physical presence" in the state to collect a sales tax from customers in the state and expands the definition of physical presence to include online retailers that have related companies or affiliates in the state. After the passage of the law, Amazon promptly cut ties with approximately 10,000 affiliates in the state.

Who would like this tax? Well, in addition to those hoping to raise revenues for the state (the state estimates that it could receive in the low hundreds of millions in tax revenues each year if residents paid taxes on online sales), anyone losing business to online retailers. Exhibit A: Wal-Mart Inc.

So what is an online retail giant to do? Since this is California, a resource-depleting two-front attack is the likely course.

First, online retailers have filed a referendum petition to repeal the tax. Yes, that's right, there is another ballot measure coming as soon as June 2012, perhaps. This petition has already faced legal problems.

The Amazon tax was passed as a trailer bill to the budget and contains an appropriation of $1,000 to the Board of Equalization for administration. The law includes an appropriation because the recently enacted ballot measure - Proposition 25 - lowered the required threshold vote on budgetary matters, including appropriations, from two-thirds to a simple majority of both Legislature houses. Proposition 25 also provided that budget-related bills take effect immediately upon enactment, and therefore added a new category to the list of statutes that go into immediate effect.

Prof. NeJaime publishes op-ed, 'Same-sex marriage: Married but unequal'

Associate Professor Doug NeJaime recently published an op-ed, "Same-sex marriage: Married but unequal," in the Los Angeles Times.

On Sunday, New York will begin issuing marriage licenses to gay and lesbian couples, further complicating the tangled legal mess of same-sex marriage in America.

Why does this complicate things? Consider what happens when legally married couples from New York move to, say, California. They'll see their marriages evaporate, based only on their sexual orientation.

Read the complete op-ed.

Lance Armstrong goes on the attack

By Professor Laurie Levenson and Laura Lefeuvre ('13)

Lance Armstrong has gone on the offensive, but it is unclear whether his effort will have much of an impact in court. Armstrong's lawyer, the renowned Jon Keker, Esq., has filed a motion to hold the government in contempt for allegedly leaking grand jury materials, in violation of Federal Rules of Criminal Procedure 6(e). Armstrong cannot identify the specific source of the leak, but he offers evidence as to why the leak must be coming from the government's team. He then asks the court to have a hearing to explore whether there are grand jury leaks.

Violations of grand jury secrecy plague the criminal justice system and should not be condoned. However, there has never been a case where the court has granted a motion such as the one filed by Keker. At most, the court has entertained motions to dismiss grand jury indictments when there have been allegations of prosecutorial misconduct in the grand jury. Bank of Nova Scotia v. United States, 487 U.S. 250 (1988). Courts consider dismissing the indictment an "extreme sanction" and will only be used in "exceptional cases" where the defendant is prejudiced because of the misconduct. United States v. Myers, 510 F. Supp. 323, 328 (E.D.N.Y. 1980). Courts are also hesitant to impose sanctions because they do not want to unnecessarily interfere with the grand jury proceedings. Barry v. United States, 865 F.2d 1317, 1319 (D.C. Cir. 1989).

Armstrong and his team have found a credible vehicle to get their side of the story to the press. Yet, this motion is likely to have much more of an impact out of court than in court. If Armstrong does succeed in getting a government official held in contempt, he will not only be the leader of the pack in professional bicycling, but also a groundbreaker in the world of criminal law.

Re-Shaping California's Political Landscape One Line at a Time

This op-ed was originally published by the Daily Journal.

By Associate Clinical Professor Jessica A. Levinson

The political blood sport, commonly known as redistricting, hit a fever pitch on June 10, when California's newly-minted independent redistricting commission presented draft maps to the public. Simply put, every 10 years we count how many people live here, and then we draw legislative lines according to that demographic information. While this may not sound particularly spicy, determining who draws district lines and how those lines are drawn evokes a legal and political struggle of epic proportions. Political wonks, voting rights attorneys, and interested members of the public know that where district lines are drawn can dictate the composition and balance of power in the state legislatures and Congress.

In 2008, California voters approved Proposition 11, a Gov. Arnold Schwarzenegger-supported ballot initiative that took the power of drawing state legislative lines away from legislators. Instead of legislators drawing their own legislative lines, Proposition 11 provided that a 14-member independent redistricting commission comprised of five Democrats, five Republicans, and four Independents would draw district lines for the State Assembly, state Senate, and Board of Equalization.

The oft-repeated purpose of Proposition 11 was to create a system in which the voters chose their legislators, and not the other way around. California has long been the poster child for gerrymandered districts, which reflect a legislator's desire to draw herself a safe district, but not necessarily one that best represents demographic realities. Looking at the last lines drawn by the Legislature in 2001 perhaps best elucidates this phenomenon. In that year, the Legislature accomplished two rarities. First, they agreed on something. Second, they were successful at their stated purpose.

Miller-McCune praises Prof. Levitt's All About Redistricting website

Miller-McCune recently praised Associate Professor Justin Levitt's All About Redistricting website in the story, "Website Demystifies Redistricting":

The once-a-decade reshuffling mandated by the Constitution now has a comprehensive source that helps to explain its complex details.

Justin Levitt, an expert on election law and a professor at Los Angeles' Loyola Law School has launched All About Redistricting, an interactive website that helps the average person understand all the intricacies of redistricting. With redistricting being a hot topic, and its fairness routinely questioned, the launch of Levitt's website is particularly timely.

Read the full story.

Disability rights throughout the world

By Associate Dean Michael Waterstone

With the passage of the UN Convention on the Rights of Persons with Disabilities, states across the world are thinking about how their laws and policies concerning people with disabilities comport with this new international standard. Although the United States was not a leader in the UN negotiations, and we have not yet ratified the Convention (although the Obama administration has signed the Convention and urged the Senate to ratify), one domestic based group has been an innovator in working with states on drafting, revising, and implementing disability laws.

This group is the Harvard Project on Disability ("HPOD"). Some nice profiles of their work can be found here and here. HPOD is working with governments and grassroots groups in countries across the world to help develop capacity and technical assistance. In so doing, it is training a new generation of advocates who have the capability to participate and lead a worldwide discussion.

Loyola Law School has collaborated with the Harvard Project on Disability on several projects. I have been fortunate to accompany team members from the Harvard Project on Disability to Vietnam and Bangladesh to assist in their work, with another trip to China planned in the Spring. It has been a transformative experience in my own life. I have seen how some of the most severely disabled, poorest, and most discriminated against people I have ever met can be the fiercest advocates, and rise above their circumstances with the goal of improving their own lives and those of future generations of people with disabilities. I have met government officials who truly would like to pass and enforce legislation which would make people with disabilities more fully members of the citizenry, and are working within their limited resources to do so. These experiences have reaffirmed my belief in international law - the UN Convention on the Rights of Persons with Disabilities has been a catalyst for change across the world, and has given advocates another important tool to use to get their governments to respond. And it has reminded me that what we do domestically matters - people all over the world look up to the United States on disability policy, and seek to replicate our successes and avoid our failures.