Prof. Buckingham submits testimony to Senate subcommittee on school-to-prison pipeline

By Clinical Professor Samantha Buckingham

Senator Durbin (D-Ill.) held the first-ever U.S. Senate hearing on the ending the "school-to-prison pipeline." Senator Durbin is the chairman of the Senate Judiciary Committee's Subcommittee on the Constitution, Civil Rights, and Human Rights. The Senator defined the pipeline as a "gateway" out of school and into the criminal justice system that functions to rob children of their "fundamental right to education." In essence, many children with cases in juvenile delinquency court are there because of issues that arose in public school; instead of sending children to the principal's office for misbehavior, students are now removed from the educational environment entirely. Statistics reveal that students of color, students with disabilities, and LGBT youth bear the brunt of school disciplinary measures that funnel them into the delinquency system. According to the most recent date from the Office for Civil Rights, more than three million students were suspended from school at least once during the 2009-2010 school year. Seventy percent of the students arrested for an event arising at school were Black and Hispanic. Unfortunately, Black males who have diagnosed disabilities are the group most often suspended.

In my experience both as a public defender and as a juvenile advocate through my work as the co-director of the Juvenile Justice Clinic at Loyola's Center for Juvenile Law and Policy, I have represented many children who have been arrested at school. My testimony to Congress described how the school to prison pipeline impacted three of the clients I represented through my work in the juvenile justice clinic. Law students were involved in each one of these cases, researching and writing motions, meeting with the clients, investigating incidents at the schools, and arguing before the court. The stories I chose to share with the committee demonstrate a few important concerns (though not every concern) about the school-to-prison pipeline: 1) children are punished twice, 2) timing is important to intervention on behalf of children with special education needs, and 3) increased police presence and increased funneling of children to delinquency courts for incidents occurring at public school can have a negative, stigmatizing effect.

One client of ours at CJLP was arrested at 11 after fighting back against another child who was the sixth-grade class bully. When he came to court for an appearance, the client brought with him a backpack full of trophies and set off the metal detector. He wanted to show the judge that he was a good kid and a hard worker. Going to juvenile delinquency court was a scary, unfamiliar, and humiliating experience. He was a smart young man, with caring parents, and a history of depression. The teacher knew he was being bullied and the teacher broke up the incident when he occurred. My client was charged with a felony in juvenile delinquency court. The bully was not charged with anything. Both the bully and his parent did not want my client to face charges in court. Nonetheless, and despite the counseling services his parents had already set up for him, the District Attorney and the court both refused to dismiss the case. To me, this case is a great example of a case which should have been resolved in school and did not need to be referred to juvenile delinquency court. It is the school-to-prison pipeline in action.

Stay tuned for reforms discussed at the hearing such as eliminating out-of-school suspensions and replacing them with in-school suspensions.

Attraverso: ECB's new role as eurozone bank regulator

By Professor Jeffery Atik

Early Thursday morning (December 13) eurozone finance ministers agreed to take a first step toward establishment of a banking union. The agreement will grant supervisory powers to the European Central Bank (ECB) - at least with regard to the 200 or so largest banks headquartered in the eurozone. Large European banks located outside the eurozone (chiefly UK banks) will continue to answer to national authorities. With the accretion of these new powers and responsibilities, the ECB will come to resemble the Federal Reserve which functions as both as a monetary authority and as the chief regulator of large banks operating in the United States.

The political accord reflects a compromise between the competing visions of France and Germany. France had desired a complete transfer of bank supervision to the ECB, effectively extinguishing national regulation. Under this approach all banks located within the eurozone would become 'European' in character. Germany resisted; Germany has been desirous of sheltering its politically powerful regional banks from European control. A reported late-night compromise between France and Germany has resulted in a mixed system - with the eurozone's 200 largest banks falling under the authority of the ECB and the remaining 5,800 or so smaller banks (including virtually all of Germany's regional banks) continuing under the oversight of national regulators.

Loyola's Journalist Law School receives praise from former fellow

A former fellow of the Journalist Law School, an annual legal bootcamp for reporters created and organized by Loyola's Civil Justice Program, praised the program in a story in Voir Dire, the magazine of the American Board of Trial Advocates. Loyola recently announced the dates for the eighth-annual JLS; it will run May 29-June 1, 2013. Applications are due Monday, March 4, 2013.

JLS alumna Trish Mehaffey of The Gazette/Sourcemedia in Cedar Rapids, Iowa, wrote:

"When I applied to the Journalist Law School I expected a crash course in the law, but I was surprised how much ground the professors covered in three and half days and how they made it appealing to journalists by weaving good stories among even the driest constitutional law theory."

She continued: "I attended the school in the summer of 2011 because I had been covering courts for a number of years but never had the chance to take a formal criminal or civil justice program or one as comprehensive as what Loyola offers. I've gone to many seminars or other training for court reporters but nothing comparable to this. I love the law and court trials but I never wanted to be a lawyer. I just wanted to be able to explain it to the average person. Most people don't realize how a jury verdict or court ruling may impact their lives as case law is made every month in some courtroom across the country that could affect their civil rights or even their children's education."

Read the complete story on Voir Dire.

California AG: Immigration Detainers are Requests, not Commands

By Associate Professor Kevin Lapp

On December 6, 2012, California Attorney General Kamala Harris declared that local law enforcement agencies in the state are free to decide whether they will comply with immigration detainers issued by the federal government. This was a big announcement for at least two reasons: (1) immigration detainers are a key component of immigration enforcement programs such as Secure Communities, which ostensibly target for deportation non-citizens who have committed serious crimes, and (2) California is the nation's most populous state, with the largest non-citizen population and the nation's largest criminal justice system.
An immigration detainer is a piece of paper from immigration officials purporting to command a jailor to hold a specific individual for up to 48 hours after the individual would otherwise have been released. The purpose behind the extra detention is to allow Immigration and Customs Enforcement (ICE) to evaluate the detainee's immigration status or take the individual into custody itself. Since 2009, the United States has issued approximately 250,000 immigration detainers a year.

State and local law enforcement officials across the country regularly comply with immigration detainers, holding individuals at their own cost until ICE takes them into custody or releases the hold. Some believe that compliance is mandatory, as a glance at the form would suggest. Near the top, it states in bold and all caps, "MAINTAIN CUSTODY OF ALIEN FOR A PERIOD NOT TO EXCEED 48 HOURS." Later, the form quotes from a regulation, 8 C.F.R. 287.7, that the law enforcement agency "shall maintain custody of an alien" once DHS issues a detainer.

But there has been a growing trend against compliance. Santa Clara and San Francisco County (as well as Chicago, Washington, D.C. and New York City) have chosen not to honor at least some immigration detainers. These localities have taken AG Harris's position that the detainers are requests, not commands. They have also objected to the fact that the states and localities must bear the cost of the extended detention, often for individuals arrested for petty offenses who pose no risk to the community.

Loyola Professors Release Journalist's Guide to American Law

Reporting on the legal system without a law degree can be challenging. A team of Loyola Law School professors aimed to fix that by writing The Journalist's Guide to American Law. The book, published by Routledge and released on Monday, Dec. 10, serves as an essential reference for journalists whose coverage area includes the law. The authors are Professors John Nockleby, Laurie Levenson, Karl Manheim, Jay Dougherty, Dean Victor Gold, Allan Ides and Daniel Martin.

From the publisher:

> How do you report on the latest sensational criminal trial or newest controversial legislation without a basic understanding of how the American legal system works?

> This easy-to-use guidebook offers an overview of American law that should be found on the desk of any journalism student or professional journalist. It provides an overview of major legal principles and issues in simple terms for journalists who cover any aspect of the legal system. The Guide can be used in two ways: first, as a sit-down read that gives an overview of American law; and second, as a reference that can be used every day under deadline pressure for a specific purpose. Every feature of the book is designed to serve both functions. Thus, the book's organization captures both the birds-eye view of a subject; and, alternatively, permits a quick review of a given section when the professional needs to understand a distinct concept. The areas covered range from professional concerns such as the First Amendment, cameras in the courtroom, Sunshine laws, and access to government documents to general legal matters such as the institutions of law and lawmaking function of the judiciary; core constitutional principles such as separation of powers and judicial review; and how courts function.

> The book is ideal for use in general newswriting and reporting courses, particularly those with a focus on legal or court reporting, and may also be used as a supplementary text in Media Law courses.

Attraverso Review: Wired for Culture: Origins of the Human Social Mind by Mark Pagel

By Professor Jeffery Atik

Mark Pagel addresses the conundrum posed by variegated cultures. Culture -- what we have that monkey's don't (according to a witty formula quoted by Pagel) -- both unites us and divides us. In Wired for Culture, Pagel attempts an evolutionary account for the existence of cultures. His inquiries commence with the mad multiplicity of languages. Language is the prime instrument of cultural transmission and the strongest marker of cultural identity. Yet the intra-group facilitation of communication provided by distinct languages are foreclosed to outsiders. Our languages seal us off from one another.

Human adaptability to the widest range of niches offers only a partial explanation for the multitude of cultures. New Guinea sports more than 800 different languages within a very small territory -- here mutual unintelligibility seems to be the point. Language operates both to permit and prevent understanding; both these characteristics are necessary. The value of a closed system of communication has long been recognized. Tradesmen, criminals and academics use argot to separate themselves and to keep secrets.

Pagel makes an evolutionary case for the multiplicity of languages; language serves as an identifier of group membership. This is culture's darker role: defining group boundaries. Pagel sees language and other cultural institutions functioning to set limits for altruism. Humans are social -- but only to a degree. We are a species that engages in magnificent cooperation -- yet are capable of inflicting harm on a scale not found in any other species.

Journal of Legal Education Published Prof. Seto's Where Do Partners Come From

The American Association of Law School's Journal of Legal Education recenlty published "Where Do Partners Come From?" by Professor Ted Seto. The article was earlier 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»

A Significant Combination: Windsor and Perry at the Supreme Court

By Professor Doug NeJaime

The U.S. Supreme Court has decided to hear two cases implicating marriage for same-sex couples. The first, United States v. Windsor, raises the question of whether Section 3 of the federal Defense of Marriage Act (DOMA), which denies federal recognition to same-sex couples' marriages, is unconstitutional. The second, Hollingsworth v. Perry, involves the constitutionality of California's Proposition 8, the state constitutional amendment banning marriage for same-sex couples. That the Court has taken these two cases suggests that it may approach the significant issue raised by the Second Circuit in Windsor -- but avoided by the Ninth Circuit in Perry -- regarding the level of scrutiny to be afforded sexual orientation classifications for equal protection purposes. If sexual orientation classifications merit heightened scrutiny, as the Second Circuit held, all laws that discriminate against lesbians and gay men -- including state marriage prohibitions -- would be suspect. Of course, the combination of Windsor and Perry also suggests that some Justices may believe there is a material distinction between a federal law denying recognition to same-sex couples' valid state-law marriages and a state law preventing same-sex couples from marrying. In other words, the Supreme Court may, on one hand, be poised to issue definitive rulings in favor of sexual orientation equality or, on the other hand, be prepared to split the difference. At the same time, the Supreme Court could simply approach both issues by employing the lowest level of constitutional scrutiny and yet still find both the federal and state laws unconstitutional.

Professor NeJaime recently wrote about the possible Supreme Court review of same-sex marriage laws on Jurist.

Prof. Rothman's 'Inalienable Right of Publicity' discussed on Credit Slips

Professor Jennifer Rothman's "The Inalienable Right of Publicity" was discussed on the Credit Slips blog. Below is an excerpt from the discussion:

A quick post to announce that intellectual property scholar Jennifer Rothman has just published an article that engages with the bankruptcy treatment of the "right of publicity." Painting with the broadest brush, the piece questions the alienability of an identity-holder's right of publicity more generally, and concludes creditors should not be entitled to "own (or control)" a debtor's right of publicity (p.236). For the bankruptcy and commercial lawyers reading this post, or courts confronting questions of creditor entitlement to a debtor's right of publicity, the article contains references to recent court decisions of potential relevance (pp. 199-200) in addition to important arguments on these questions. According to Rothman, there still is no published caselaw explicitly holding that creditors are entitled to the value of a bankruptcy filer's right of publicity.

Read the complete discussion.

Key Moment for U.S. and International Disability Rights

By Associate Dean Michael Waterstone

On Monday, the Senate will vote on the whether or not to move ahead with ratification of the United Nations Convention on the Rights of Persons with Disabilities. President Obama has already signed this treaty, and, as I have argued before, I believe the Senate should ratify it. I have published an op-ed with the Pacific Standard here on Republican opposition to ratification and why I believe it is flawed.

Attraverso Review: Collateral Knowledge: Legal Reasoning in the Global Financial Markets by Annelise Riles

By Professor Jeffery Atik

And yes, Riles pulls it off. She promises an "ant's-eye view" of these stories, consistent with traditional ethnographic method. While the original intended targets of her observation were Japanese bank regulators, she later realizes the 'back-office' personnel (including the lawyers overseeing the documentation of the transactions) were as central in the process of the law-making.

Riles examines two crucial points of tension in the swap practices of Japanese banks. The first is the utilization (under Japanese law) of the institution of collateral: the posting of property to secure repayment of a debt. The book's title, *Collateral Knowledge*, plays on this and other meanings of "collateral." All commercial lawyers understand how collateral should work: it should freely pass the pledged assets into the hands of the favored creditor in the event of a debtor's default. And so the mission of a bank lawyer (in this case, one dealing with a Japanese bank) is to assure his principals that these functional expectations are met. This is hardly a simple matter where (in an example given by Riles) the swap is between a Japanese bank and a UK bank, posted to their respective Cayman Island subsidiaries and involving Chinese and Singaporean currencies.

The swap raises peculiar difficulties, as neither party knows ex ante whether it will be a net creditor or net debtor of the other -- and so both may need to post, maintain and adjust collateral supporting the transaction. The standard industry forms, drafted by British and American lawyers and routinely used by the Japanese banks, are "literally nonsensical" to the Japanese, according to Riles.
But the forms "work" -- in that they satisfy the lawyers, the banks and their regulators. The art of a back-office lawyer is completing the forms -- the invariable boilerplate, the prompted elections (such as which country's law should govern) and any special terms. Standardization is at work here -- but so too is the exercise of a lawyer's "aesthetic" sensibilities, knowing when the paper looks right. In fact legal certainty may not be a dominant consideration -- at least not in ordinary times. But Riles' fieldwork followed an earlier Japanese financial crisis that set off external anxieties about aspects of Japanese law.

Election Results through a Healthcare Lens

By Professor Brietta Clark

Since election night people have been preoccupied with what the post-election polling reveals about America's electorate, particularly its shifting values and priorities and what this will mean for future elections. A recurring theme among commentators is that growing diversity played an important role for Democratic wins in the Presidential and Congressional races. According to a report by the Pew Research Center, Obama received the support of African Americans, Latinos, and Asian Americans by a wide margin. Women also played a prominent role in this election: they not only supported Obama by a wide margin, but were also instrumental in Democratic wins in the House and Senate. And a Gallup survey showed that voters who identify as gay, lesbian, or bisexual overwhelmingly supported President Obama.

Read the complete post on Professor Clark's Health Care Justice Blog.

Marriage, Direct Democracy and the Supreme Court

By Associate Professor Doug NeJaime

On November 7, 2012, voters in Maine, Maryland, and Washington became the first in the country to approve same-sex marriage at the ballot box, ending a long-running streak of popular votes against marriage equality. On the same day, voters in Minnesota rejected a constitutional amendment that would have prohibited marriage for same-sex couples — something California voters failed to do four years ago. Now that the popular vote has swung the other way, it is not simply the political calculus that has changed but the legal landscape as well. For opponents of same-sex marriage, their streak at the ballot box has supported their arguments against judicial intervention in favor of marriage equality. With these recent results, it becomes increasingly difficult to paint the judiciary — and the US Supreme Court in particular — as an overreaching, out-of-touch institution on the question of same-sex marriage. This new dynamic comes just as the Supreme Court prepares to consider the issue. The Court will soon announce whether it will review cases striking down the federal Defense of Marriage Act (DOMA) and California's Proposition 8.

The entire piece is available on Jurist's Forum. Read the complete piece.

Attraverso Review: Volcker: The Triumph of Persistence by William Silber

By Professor Jeffery Atik

So what would a Democrat central banker look like -- if there could be one? Resembling Paul Volcker, answers William Silber. That said, it is hard to recognize much in Volcker's policies marking him as a Democrat. Nixon did not trust him -- but that alone scarcely defines a Democrat. Volcker famously endorsed Barack Obama in the 2008 election -- but then so did Republican Colin Powell.

Silber adores Volcker -- which weakens Silber's ability to answer (or even ask) tough questions. It is clear that Silber believes Volcker saved the dollar -- and that he is a swell guy to boot. Pity poor Mrs. Volcker who spends an isolated life in a series of ratty apartments while her husband chases glory (in public service, mind you) rather than wealth. Neither Volcker nor Silber seem to realize what a lousy husband he was -- and Mrs. V. was too tactful to point this out.

The Silber account establishes Volcker's self-sacrifice -- and I suppose there's some foundation for it. Volcker spends many years as an underpaid public servant while having far more lucrative opportunities in the private sector. Yet one gets the sense that Volcker is simply more comfortable in the world of the Fed than he would ever have been in a bank. Generals are willingly generals -- there is something (glory? military music?) that draws them to their role. Their renunciation of wealth and a stable home-life only prove their ambition. While we should be grateful for their service, it is not clear that the generals are sacrificing anything. And so perhaps it is with Volcker.

There's good character present -- Volcker likes cheap cigars and hates potted plants. He doesn't really care about his shoes -- and silently worships confident political stars like John Connally. His devotion is peculiarly institutional: not to the United States, but rather to the Fed and its mission, as he perceives it, protecting a sound dollar. Silber's worshipful treatment of Volcker places Volcker's character in the center. The fundamental excellence of who Paul Volcker is (an excellently common man) spills over into his professional life. The strange mixture of talent, insecurity and ambition suits him to his mission.

Free Speech and the Victory Speech

By Associate Professor Aaron Caplan

Barack Obama's election -- and now re-election -- signal America's willingness to select as its leader a member of a historically reviled minority group. The group I refer to, of course, is constitutional law professors.

The President's familiarity with America's constitutional history crept into his Tuesday night victory speech, but perhaps at a frequency that only dogs or fellow con law professors could hear. Consciously or unconsciously, he echoed sentiments from a case studied in most First Amendment courses, Terminiello v. City of Chicago (1949). Terminiello was one of a series of important decisions involving civil rights and freedom of speech that arose from Chicago's tumultuous racial and ethnic tensions of the mid-20th century. As a proud Chicagoan, President Obama would certainly be familiar with this line of cases, which also includes Hansberry v. Lee (1940) (segregated housing), Beauharnais v. Illinois (1952) (hate speech), Gregory v. Chicago (1969) (civil rights demonstration), Organization for a Better Austin v. Keefe (1971) (protests relating to segregated housing), and Collin v. Smith (1978) (neo-Nazi parade).

In Terminiello, an angry crowd demonstrated outside an auditorium where a demagogue delivered a reactionary and anti-Semitic political speech. To avoid a riot, police arrested the speaker for disorderly conduct. At trial, the jury was instructed that a defendant's behavior "may constitute a breach of the peace if it stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance, or if it molests the inhabitants in the enjoyment of peace and quiet by arousing alarm."

The Supreme Court reversed the conviction. In its most widely-quoted passage, Justice William O. Douglas's majority opinion relied on a bit of verbal jujitsu to declare that the vices identified in the jury instructions were actually virtues: "[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.

Justice Douglas's opinion in Terminiello echoed in this passage of the President's victory speech in Chicago:

> Democracy in a nation of 300 million can be noisy and messy and complicated. We have our own opinions. Each of us has deeply held beliefs. And when we go through tough times, when we make big decisions as a country, it necessarily stirs passions, stirs up controversy. That won't change after tonight, and it shouldn't. These arguments we have are a mark of our liberty.

Prof. Natapoff's 'Aggregation & Urban Misdemeanors' Receives Praise

Professor Alexandra Natapoff's "Aggregation and Urban Misdemeanors" (Fordham Urban Law Journal, Vol. 40, 2013) was listed as "highly recommended" on Professor Larry Solum's Legal Theory Blog.

Prop. 34 and the Death Penalty

Professor Laurie Levenson was quoted in a Guernica Magazine story by Casey Michel titled, "California's Death Penalty Decision," published on November 5.

Levenson on what separates this proposition from previous attempts to repeal the death penalty:

"This round's not really about a morality issue--it's a cost issue," says Levenson. "The pitch this time [from the repeal camp] is that when we can't fund our schools, can't fund our highways, why are we funding this program that already has these exorbitant costs?"

To support Levenson's argument, Michel references Adjunct Professor Paula Mitchell's 2011 report on death penalty costs in California.

Michel writes:

"A report from 2011, authored by Judge Arthur Alarcon and Prof. Paula Mitchell, found that switching those on death row to life imprisonments without parole-as Prop 34 would accomplish-would save the state $170 million per year, tallied to $5 billion over the next two decades."

Levenson also spoke about proposition's chances of passing:

"I don't know what's going to happen, but this is the most traction I've seen the death penalty repeal get in decades," Levenson noted. "We can't shorten the process. We can't take shortcuts. There's too much at stake."
Read the full article here.

With voting, there's no place like home

By Associate Professor Justin Levitt

In a recent New York Times "Campaign Stops" piece, I mentioned concerns about citizens undermining the integrity of the election by attempting to impose and enforce the "law of their gut" rather than the law on the books.

One prominent example concerns the concept of domicile. Domicile shows up in different ways in the election process, but the most common misunderstanding has to do with where people are eligible to vote. Recent reports reveal that voters have been challenged in several states based on claims that they aren't eligible to vote where they're registered. These challenges often reflect a common gut instinct -- but more seldom reflect the law.

In several states, organizations "empowered" by a national organization called True the Vote have announced research finding registrations subject to challenge based on their addresses. This isn't the first time that people have been challenged based on unwarranted assumptions about their addresses -- voter caging schemes, for example, are a version of this.

The True the Vote approach apparently starts by combing large databases, flagging (for example) addresses where more than 6 people are registered. Other flags may include people registered at colleges or allegedly vacant lots.

The Climate Elephant in the Voting Booth

By Associate Professor Kathy Trisolini
In the immediate aftermath of "Superstorm" Sandy, a number of articles appeared in the mainstream press with pundits asking how Sandy might affect the election. Aside from practical questions about the logistics of early voting, most pundits focused on how the candidates' responses could affect their respective public images. "Who would 'look like' a leader?" they asked. Yet the presidential election is much more important than just another issue of People magazine, a fact obscured by the excessive focus on image and how it affects the horse race.

Sandy is just another example of a changing trend in extreme weather events. Last summer, excessive drought damaged crops and stranded boats on the Mississippi; each summer we are setting new heat records and Arctic ice falls to historic lows. Human-caused climate change is altering the stable environment upon which we have relied in choosing where to live and deciding how to build our homes, how to lay out our infrastructure and how to develop our economy. This should be an election issue of the first magnitude.

Apparently under sway of the woefully mistaken notion that environmental protection and economic health are competing goals, the national Republican Party has decided that it is in its interest to take an extreme anti-science position on climate change. In fact, as Sandy should be making clear, our economic health (not to mention our personal safety) is highly dependent on stable climactic conditions. The economy is not thriving when the nation's airports are shut down, Lower Manhattan is under water, and millions of people are without electricity.

They're aliiiiive! (Really. They're alive.)

By Associate Professor Justin Levitt

Every year, late October brings pumpkin pie and horror movies and reports of deceased voters. The reports are, inevitably, spooky, with a hint of the comic macabre. And they are often followed by proposals to slash the voter rolls, with the  equivalent of an electoral chainsaw.

But now that the cobwebs have been brushed away in the clearer light of a November morning, most of the specters have vanished. Turns out that the undead hordes are too busy terrorizing your Tivos to be stealing your elections.

Most allegations of dead voters rely on attempts to match large computerized databases of dead people to large computerized voter rolls. And they fall prey to three basic fallacies.

First, bad data. Sometimes people listed as dead are not really dead. Investigative reporters at Scripps-Howard have discovered that the Social Security's Death Master Index, one of the most-used registries in the country, falsely announces the deaths of nearly 1,200 living Americans per month. Think of these legitimate voters as buried alive.

And sometimes, people listed as voting did not really vote. Election records are imperfect. In the press of a busy day at the polls, people sometimes sign the wrong line of a pollbook. And in the press of a busy canvass after the election, officials sometimes hit errant keystrokes, recording a vote that a deceased individual did not actually cast. Think of these legitimate souls resting peacefully, without braving the lines at the polls.

Second, bad matching. These reports often rely on comparing names and birthdates. But in any large pool of records, it's surprisingly common for two different people to share the same date of birth. Statistics prove that if you've got 460 people named "Michael Myers" in your population, it's virtually guaranteed that two will share the same date of birth. Which means that in millions of computer records, Michael Myers, dearly departed, may not be the Michael Myers casting a ballot. Florida governor Rick Scott was actually purged from the rolls in 2006 by such an error.

Third, bad timing. Though the dead rarely vote, voters do sometimes pass away. There have been reports of voters casting early votes or absentee ballots, and then shuffling off this mortal coil.

Take away the mistakes and misinterpretations, and you take away most of the howling behind the dead voter allegations. When real researchers spend real time following up on the claims, they leave at most a handful of oddities unanswered, almost exclusively in the absentee system. An enterprising reporter dug deep into the St. Louis -- St. Louis! -- rolls in 2007, and every single suggestion of gravesite voting evaporated. Sometimes the follow-up dispels the ghosts entirely.

There is more legitimacy to the notion that registered voters remain on the rolls after they die -- not that they cast ballots, but that the records linger. The volume of deceased registrants is also often overblown, for all the reasons above, but the leftover records do end up amounting to more than a handful. When election officials do their job well, these records are removed from the rolls, slowly and deliberately and in the off-season, with safeguards to ensure that no legitimate voter is caught up in the sweep.

That sort of careful list maintenance is a far cry from the hurried and harried last-minute purges urged by the purveyors of dead voter tales. Overbroad actions in the waning days of an cycle can only undermine the integrity of a election by jeopardizing the rights of real, live, eligible voters. And that is what's really scary about the dead voter stories of late fall.

Book Review: The Hour Between Dog and Wolf by John Coates

By Professor Jeffery Atik

What a fun book this is! The Hour Between Dog and Wolf by John Coates mixes pop finance with pop science, sketching some surprising links between them. I will trust Coates to get the science right (he provides citations). His investigation of financial markets is largely anecdotal and so speculative, but all the same it yields tantalizing suggestions.

Coates is a former derivatives trader -- which gives him authority to describe the subjective experiences of winning and losing at a trading desk. He (somehow) becomes hooked on neuroscience research; he describes himself sneaking away from his Wall Street desk to mix with scientists at Rockefeller University. The book seeks to bring these two worlds together. Coates immerses himself in the activation of hormones: testosterone, cortisol and the like. It is these chemical agents that produce the profound effects on the humors of financial traders, and hence overall market behavior.

Coates attacks the mind/body dichotomy: a financial market trader reacts more like an athlete than an analyst in responding to the stimula communication through his screen. Coates employs emerging understandings of mind/body feedbacks to track the play of traders. The traders can react before they 'see', rely on 'gut feelings' and engage in mano-a-mano combats from which they emerge winners or losers. These are quintessentially physical experiences. The markets themselves may then be understood as projections of this human biology.

Do Ballot Initiatives Foster the Darker Side of Political Spending?

By Associate Clinical Professor Jessica Levinson

Californians will soon go to the polls to weigh in on no less than eleven ballot initiatives. These initiatives could change the law on everything from the death penalty to the labeling of food.

I have previously written here about the pitfalls of the initiative process. This mechanism of direct democracy, designed to guard against the power special interests held over our elected officials, is now similarly controlled by special interests. Money is the driving factor behind which proposals qualify for the ballot.

Large sums are spent not only to pay signature gatherers to get proposals placed on the ballot but also to support or oppose those measures once they qualify for the ballot. One need only to open the mailbox or certain websites, or turn on the television or radio, to see the enormous amounts of money being spent to attempt to sway voters on these eleven initiatives.

Last week I wrote about a large donation, $11 million to be exact, given by an Arizona non-profit corporation to two ballot measure committees in California.

Marriage Equality Populism

By Associate Professor Douglas NeJaime

On November 6, voters in Maine, Maryland, and Washington will decide whether to allow same-sex couples to marry. In 2010, Maine voters repealed the marriage equality law that lawmakers had passed and the governor had signed. This time Mainers will be the first in the country to affirmatively vote on same-sex marriage. In Maryland and Washington, voters are being asked whether to approve or reject the marriage equality laws state lawmakers passed earlier this year. In all three states, recent polls suggest that marriage equality may win.

Of course, this would mark a game-changing moment in the political battle for same-sex marriage. But it would also significantly impact the legal battle raging in the courts. Currently, the U.S. Supreme Court is considering whether to weigh in on both the federal Defense of Marriage Act (DOMA) and California's Proposition 8, the state constitutional ban on same-sex marriage. Advocates at the leading LGBT legal organizations warned against the federal challenge to Proposition 8, worried about its uncertain fate at the Court. Throughout the litigation, they have worked - along with the City and County of San Francisco and prominent constitutional law professors - to frame the case as one about the unique situation in California. The Ninth Circuit agreed, finding that California, which allowed same-sex couples to marry before taking that right away and which provides a comprehensive domestic partnership system with the state-law rights and benefits of marriage for same-sex couples, did not have a legitimate interest in restricting marriage. Under the Ninth Circuit's holding, determinations regarding the constitutionality of other states' marriage bans require additional litigation. LGBT movement advocates, therefore, are hoping the Justices will pass on the invitation to review the Ninth Circuit's decision.

But in the event the Court takes the case, advocates have been doing everything they can to change the landscape of marriage equality before the Court decides. The more states that recognize same-sex couples' relationships as marriages and the more same-sex couples who get married, the more comfortable the Court - or at least Justice Kennedy, who holds the presumptively decisive vote - may be finding state marriage prohibitions unconstitutional. Advocates secured marriage equality in New York in 2011, and they are pursuing the cause in other states, through both litigation and legislation. If Maine, Maryland, and Washington begin to allow same-sex couples to marry, more states will move into the marriage equality column and many more same-sex couples will have legally recognized marriages. This may do much to move the Justices.

Supreme Court Weighs Immigration Consequences of Misdemeanor Conviction

By Associate Professor Kevin Lapp

Moncrieffe v. Holder, argued in mid-October before the United States Supreme Court, involves a non-citizen who pled guilty in Georgia state court to misdemeanor possession with intent to distribute 1.3 grams of marijuana (about half the weight of a penny) with no evidence that he received any money in exchange for drugs. Federal law likewise considers possession with intent to distribute such a small amount of marijuana without remuneration to be a misdemeanor offense. Knowing those two things, you'd probably puzzle at the notion that the government is seeking to classify Moncrieffe as an "aggravated felon" for purposes of deporting him. But in the Wonderland world of immigration law, that is just what is happening.

The issue in Moncrieffe v. Holder is whether Moncrieffe's state misdemeanor drug possession offense constitutes a "drug trafficking aggravated felony" under federal law. Longstanding precedent, and recent Supreme Court case law, says that courts should apply what is called the categorical approach to answer the question. That approach involves determining the minimum conduct that is necessarily established by the state conviction, and prohibits looking into anything behind the conviction, such as underlying facts or possible alternative offenses that could have been charged. If the minimum conduct of the state crime is necessarily equivalent to a felony under federal narcotics law, then even a state misdemeanor conviction becomes an "aggravated felony" for immigration purposes. If it is not necessarily a federal felony (because the state crime captures conduct that could be either a federal felony or misdemeanor), then the categorical approach says that it is not an aggravated felony.

Moncrieffe's state misdemeanor marijuana offense does not require proof of any minimum amount of marijuana, nor does it require proof of remuneration. As such, it criminalizes the social sharing of small amounts of marijuana as well as the distribution of larger amounts. Because the state crime encompasses conduct that would clearly be a federal misdemeanor, Moncrieffe argued that the categorical approach means that it is not necessarily equivalent to a federal felony and should not be considered an aggravated felony. The upshot is that he remains deportable, but has an opportunity to seek relief from deportation.

Disability and Voting

By Associate Dean Michael Waterstone

My primary research area, disability law, typically doesn't garner a lot of headlines or attention in presidential elections. There was a National Forum on Disability Issues in September of 2012 where both candidates were invited, but neither showed up (President Obama was represented by Ted Kennedy, Jr. and Governor Romney was represented by Rep. Cathy McMorris Rodgers (R-WA)). In a way this is understandable -- disability is a less contentious civil rights issue than some other areas. It may just be a perception that there is less to fight about (and a good fight is what really draws media attention).

But there are certainly many important issues relevant to people with disabilities that are at stake in this election. A major one is health care. The provision of the Affordable Care Act that stops insurance companies from denying coverage based on preexisting conditions can help people with disabilities move in and out of the labor force without losing their health insurance. This approach, I have argued elsewhere, is part of the explanation of the higher rate of veterans with disabilities, who have access to the VA for some healthcare services. Governor Romney seemed to suggest that his healthcare proposals would also cover people with preexisting conditions, but most analyses I have seen refute this, at least to the extent that it would help people with long term disabilities be more fluid in and out of jobs. Another issue of importance to the disability community is the ratification of the United Nations Convention on the Rights of Persons with Disabilities. President Obama signed the treaty and has urged ratification; as far as I could find, Governor Romney has taken no public position on the issue.

But in this blog post, I'd like to focus on an issue that comes before both of these -- voting for people with disabilities. Given the recent focus on the administration of elections (mostly, as my former colleague Rick Hasen has profiled, based on hazy and unsubstantiated claims of voter fraud), this is timely.

In evaluating Prop. 34, Prof. Levenson assesses effectiveness of death penalty

Professor Laurie Levenson assessed the effectiveness of the death penalty in a recent story about Californai's Prop. 34, which would eliminate the death penalty in the state.

"There is no showing the death penalty does anything good. It's not a deterrent, all it does is suck in money and you would hope the public would say, 'we can we do better with that money,'" she siad.

She continued: "I think it is an emotional response. Emotionally, some people say I think killers have to die, and emotionally some people say I don't want to be killing in the name of the state. Often times that is what the debate comes down to.

Read the complete story.

Attraverso: Supreme Court to hear major gray-market case

By Professor Jeffery Atik

On Monday, Oct. 29, the U.S. Supreme Court will hear arguments in *Kirtsaeng v. John Wiley & Sons, Inc.*, a case that promises to resolve (finally) whether the first-sale doctrine applies to copyrighted works produced and sold abroad and then imported into the United States. It is no small surprise that this is an open question, as the current U.S. copyright act has been in place since 1976. And the copyright first-sale doctrine is older than that.

Compare the situation in Europe, where the European Court of Justice has long ago established that exhaustion (corresponding to the first-sale doctrine) occurs with full effect throughout the European territory, notwithstanding the national character of most European IP rights. A copyright holder which sells a book in France may not use its German copyright to block the importation or resale of that book in Germany.

But not so with respect to IP protected goods first sold outside of Europe: these goods may be blocked by the IP right holder when introduced to the European market. Thus, it is said that the Europeans practice regional exhaustion (first-sales within European cut off IP rights), but not international exhaustion (IP right holder retain rights with respect to goods first sold outside Europe).

Prop. 35 CASE Act Undermines Victims' Rights

Professor Kathleen Kim, Kevin Kish and Cindy Liou

This op-ed originally appeared in Pacific Standard.

This November, voters will consider Proposition 35, also known as the "CASE Act" for "Californians Against Sexual Exploitation." The name of the law is designed to draw automatic support: Who, after all, would be in favor of sexual exploitation? The initiative's supporters, who include concerned citizens and former Facebook executive, Chris Kelly, are committed to increasing fines and prison sentences for certain forms of sex trafficking, and their intentions are beyond reproach. Unfortunately, what the CASE Act actually does is to tinker inexpertly with California's comprehensive laws combating all forms of human trafficking, laws that have served as a model for states across the nation. For over a decade, we, the authors have collectively assisted hundreds of trafficking survivors assert their rights in criminal, civil and immigration actions. Our experience informs us that by taking a predominantly criminal enforcement approach and conflating human trafficking with sexual exploitation, the CASE Act, however unwittingly, will change our current anti-trafficking laws in ways that disempower the actual survivors of human trafficking.

When the 13th Amendment to the United States Constitution was adopted in 1865, our nation made a simple promise of commanding power: "Neither slavery nor involuntary servitude... shall exist within the United States, or any place subject to their jurisdiction." That promise is still being tested. Every year, the State Department estimates that tens of thousands of men, women and children are trafficked to this country - and between the states - and put to work against their will. California is a major point of entry and a destination for traffickers and their victims, who are forced to work not only in the sex industry, but also in garment factories, agricultural fields, construction sites, hotels and restaurants, and as domestic servants in our neighbors' homes.

Some contemporary trafficking cases involve conditions much like the chattel slavery abolished by the 13th Amendment, in which human beings were bought and sold as property. Still more cases involve psychological coercion, deception or fraud: depriving people of liberty by convincing them that harm could come to them or their loved ones if they stop working.

Affirmative Action and Binders Full of Women

By Associate Professor Aaron Caplan

Every year, my constitutional law students study Personnel Administrator of Massachusetts v. Feeney (1979), which involved a Massachusetts program giving veterans an employment preference when applying for state jobs. Since at that time veterans were overwhelmingly male, the law effectively locked females out of state jobs. The U.S. Supreme Court upheld the program, explaining that the state would not be discriminating by enacting a law that disproportionately harmed women -- unless the state chose that law "because of," and not merely "in spite of" its disparate impact.

I do not know whether Massachusetts still has a veterans preference, but according to presidential candidate Mitt Romney, he did his part to find state employment for women while he was governor of that state. As he told the story during the Oct. 16 debate:
As I was serving as governor of my state ... I had the chance to pull together a cabinet and all the applicants seemed to be men.

And I went to my staff, and I said, “How come all the people for these jobs are all men?” They said, “Well, these are the people that have the qualifications.” And I said, “Well, gosh, can’t we find some women that are also qualified?”

And we took a concerted effort to go out and find women who had backgrounds that could be qualified to become members of our cabinet.

I went to a number of women’s groups and said, “Can you help us find folks,” and they brought us whole binders full of women.

Introducing "Blogging the Ballot" election series

With election season in full swing and the final presidential debate tonight, I have asked several colleagues to write blog posts on election-related issues within their respective areas of expertise. Through this series, "Blogging the Ballot," we will provide legal commentary that tracks the political issues. We will be posting every few days until the election on a broad range of issues, including election administration, human trafficking, foreign policy and free speech. And depending on what happens Nov. 6, we will continue to post relevant opinions. So please keep checking back as we continue Blogging the Ballot!

-Professor Michael Waterstone, Associate Dean for Research and Academic Centers

Company at 30,000 feet: Plane travel and the voter ID controversy

By Associate Professor Justin Levitt

Legal fights over new restrictions on voters are all over the news these days, with fights over "voter ID" rules often front and center. The fight is not over whether voters should show that they are who they say they are -- every state has some method for that. Instead, the current fights are over a set of restrictive rules that newly limit the ways voters may offer that proof. In 2011 or 2012, several states passed laws prohibiting eligible voters from casting valid ballots at the polling place if they do not have particular government-issued photo identification cards; most have been blocked, at least temporarily, by the courts, and will not be in effect for the coming election.

I've been fighting the most restrictive laws since 2005, as unnecessary regulations whose "cure" is worse
many times worse than the "disease" of voter fraud they ostensibly confront. Most eligible citizens have the right kind of government-issued photo ID. But reliable statistics show that many of us -- between 1.2% and 16%, depending on the particular numerator and denominator -- don't. And voting isn't just a right for most of us.

Proponents of restrictive ID laws often fall back on the argument that a government-ID requirement for voting is reasonable, because having an ID is a purported necessity in modern life. You have to have an ID to board a plane, they say. It's a curious example they choose.

The first problem is that the example is irrelevant. Voting is at the heart of our constitutional order, guaranteed to every eligible citizen. Boarding a plane is a nice perk. The republic doesn't crumble if the people don't fly on planes.

But the example is also dead wrong. Actually, you don't have to have an ID to board a plane. I proved this firsthand, when I had the opportunity to testify before a subcommittee of the Senate Judiciary Committee just over one year ago, on the propriety of voter ID laws. As recounted here in an ACS brief, when I got to Los Angeles airport, I had no photo ID in my wallet, government-issued or otherwise. Instead, I had two credit cards, a firing range card, a health insurance card, a blood donor card, a coffee shop frequent visitor card, and a few business cards, all without photos. I was also carrying a checkbook.

Book Review: Private Empire: Exxon-Mobil and American Power by Steve Coll

By Professor Jeffery Atik

Steve Coll's Private Empire provides oil spill-to-oil spill coverage of the recent history of Exxon-Mobil, and in that course brings us Bush/Cheney adventures, climate change deniers, armed conflicts in lost and forgotten places, and the rise (and fall) of Russian oligarchs. In this complex work, Exxon-Mobil appears misunderstood and misunderstanding.

Coll begins his story with the 1989 crash of the Exxon Valdez, the moment that seared Exxon in the public consciousness as an environmentally reckless brute, pandering to America's oil addiction at the cost of America's soul. Exxon reacts from this crisis in both positive and negative ways. It becomes obsessed with safety -- though the company's pursuit of safety is not to assure accident avoidance as much as it is a premise for increasing demands for precision and attention from its workforce. The safety culture Exxon creates becomes, in a menacing way, grounds for enforcing discipline, regimentation and uniformity-of-voice throughout the enterprise.

The second formative moment Coll relates is the 1993 removal of Exxon's headquarters from New York City (Exxon was the former Standard Oil of New Jersey) to Irving, Texas. Neither bi-coastals nor Texans would be surprised by the resultant shift in company worldview.

Exxon CEO Lee Raymond dominates the first half of this book. It is he who responds to the Exxon Valdez affair, he who engineers the merger that forms Exxon Mobil, he who denies the science behind climate change. And he's one tough cookie. His message to an Exxon Mobil executive recovering in a hospital after a bicycle accident: "[T]his is your last injury as an employee of Exxon."

Raymond is depicted as a credible scientist who takes pride in Exxon-Mobil as a science-based organization. Yet he refused to abandon his skepticism about climate change despite the accumulation of scientific evidence. Raymond and Exxon-Mobil's public affairs department are in no small part responsible for the emergence of the contemporary denier culture in American politics -- the often successful strategy for blocking unwelcomed regulation by attacking the soundness of its underlying scientific premises.