Ballot Initiatives Have Harmed California

By Associate Clinical Professor Jessica Levinson

When people pose questions like, "Do you want to save our democracy? Our environment? Our schools?" I either answer "no" or keep walking. It is signature gathering time in California, and most of us have experienced that awkward moment when we are approached by an energetic, and often aggressive, petition gatherer. Inevitably the signature gatherer poses the type of question that would seem unimaginable to answer in the negative. And yet, I do, if I respond at all. Why?

The more I think about and study the initiative process, the more I feel committed to the idea that I will not sign petitions for ballot measures. I say this with full awareness of the fact that I am and have been a strong proponent of the independent redistricting commission, which was created by a ballot initiative. I have struggled with the idea that perhaps initiatives should only affect governmental processes such as redistricting, term limits and campaign finance laws. The problem with that approach has played out thanks to our term limit law.

So do not get me wrong, I think at least a portion of these proposed ballot initiatives would support worthwhile ideas or causes, I just do not think they should be made into the law through the initiative process. (The problem, of course, is that some of these ideas may never be enacted via the legislative process as this is a representative democracy, and frankly, that is what happens). In addition, many -- far too many -- of these proposed ballot initiatives sound like great ideas until one actually reads the text of the proposed law.

[Click here to continue reading Levinson's commentary on KCET.org]

Guest Speaker Maxwell L. Stearns on the State of Democracy

Maxwell L. Stearns, Marbury Research Professor of Law at the University of Maryland School of Law spoke on "Direct (Anti-)Democracy" as part of Loyola's Faculty Workshop Series.

Happy Second Birthday, Citizens United: Now On To Your Terrible Twos

By Associate Clinical Professor Jessica Levinson

Dear Citizens United,

Happy birthday. I won't wish you many happy returns of the day. I both hope there aren't many more birthdays, and if there are, I trust they won't be happy ones, at least not for democracy.

But congratulations, you've made it, against all odds. You started as a relatively narrow little case, asking only whether a non-profit corporation could use general treasury funds to create and promote a hit piece against then-presidential candidate Hilary Clinton. You, Citizens United, merely asked the Supreme Court to find the now-vanishing McCain-Feingold law could not be validly applied to you.

But then a funny thing happened on the way to that narrow decision, the Supreme Court decided to ask its own question. The Court apparently was not particularly concerned with centuries of tradition which dictates that they resolve the questions asked by the parties, as opposed to asking themselves a question they wish to answer.

So the Supreme Court sent you back, and asked for more information on whether McCain-Feingold could validly be applied to any corporation. You'll forgive my lack of surprise when I discovered that the Court decided to answer its own question in the affirmative. As so many of us know by now, the Court ruled that for purposes of campaign finance restrictions corporations must be treated as identical to people. If a restriction cannot be placed on a person, then it cannot be applied to a corporation. The Court also held that expenditures -- no matter how large -- made independently of candidates have no potential for corrupting candidates. I'll pause here for laughter.

[Click here to continue reading Levinson's commentary on the Huffington Post.]

Maples v. Thomas: Putting the "Just" Back into Justice

By Professor Laurie Levenson

Last week, the United States Supreme Court decided Maples v. Thomas, 565 U.S. ___ (2012). Technically, the case was about whether Cory Maples, who had been convicted of murder and sentenced to death, would be able to overcome a procedural hurdle in the federal habeas corpus laws and seek relief in federal court. The problem arose when Maples' pro bono lawyers from the prestigious law firm of Sullivan & Cromwell abandoned him, causing him to miss the deadline for appealing the denial of his state habeas corpus petition.

The Supreme Court unquestionably reached the right result when it ruled that there was cause for the procedural default and that Maples' lawyers' blunder should not undermine his ability to seek habeas relief. However, what was most interesting about the decision was not the technical legal analysis. It was the language Justice Ginsburg used to emphasize why the Court would be ruling the way it did.

She began her decision by stating that "no just system would lay the default at Maples' death-cell door...." (emphasis added). In other words, it is time to put the "just" back into "justice." The laws are full of procedural hurdles for defendants seeking to attack their convictions, but defendants should not bear the brunt of mistakes committed by their lawyers. This is especially true in a system where some states cap defense attorney fees at $1,000 for out-of-court work and these lawyers are paid only $70 per hour. Clients abandoned by counsel should not be left without recourse. The goal should be a "just "system. That system has costs and it is time to open our eyes to them.

While Justices Antonin Scalia and Clarence Thomas dissented, conservative Justice Samuel Alito concurred. He stated that this case presented the "perfect storm of misfortune" leading to the deprivation of Maples' legal representation. He may be right that this was the perfect storm, but the forecast for future cases does not look particularly sunny. Given the lack of qualified death penalty counsel and the absence of resources to pay them, there will inevitably be more storm clouds ahead.

Supreme Court limits First Amendment scrutiny of copyright laws in Golan v. Holder opinion

By Professor Jay Dougherty

On Jan. 18, the Supreme Court issued its highly anticipated decision in a case challenging the constitutionality of 17 U.S.C. §104A, which restored copyright to millions of foreign works and granted federal copyright to pre-1972 foreign sound recordings. As the Court did previously in Eldred v. Ashcroft, upholding the constitutionality of the 1998 Copyright Term Extension Act that extended all existing copyrights for 20 years, it exhibited great deference to legislative decisions as to the extent of copyright, notwithstanding the constitutional language that appears to limit legislative power to grant copyrights in order to "promote the progress" of knowledge and only for limited times. The plaintiffs, orchestra leaders and others who had relied on the public domain status of various foreign works argued that, unlike the CTEA, the restoration statute removed works from the public domain. The Court rejected their arguments. According to the majority, Congress can accord copyright protection in circumstances that do not elicit the production of new works of authorship--it is the system of protection generally that must promote progress. The government argued here that it benefits U.S. authors for the U.S. to more rigorously comply with its copyright treaty obligations, even if the new law did not elicit creation of new works (or accord any protection to U.S. works). Because the restored foreign copyrights would not last any longer than they would have, had they not entered the public domain in the first place, the statue did not violate the constitutional limited times restriction any more than the CTEA did.

Perhaps more significantly, the Court clarified the class of copyright legislation that would alter the traditional contours of copyright and thus be subject to First Amendment scrutiny. Clearly, copyright laws "abridge speech," in a sense. In Eldred, the Court had rejected a First Amendment challenge except in cases where legislation alters the traditional contours of copyright. This was because copyright law contains its own internal protections of free speech interests, namely the exclusion of copyright protection for ideas and the fair use defense that permits the use of another's copyrighted expression in some situations, e.g. for purposes of commentary or parody. A panel of the 10th Circuit Court of Appeals earlier in the development of this case had interpreted the USSC's language such that a law that removed works from the public domain would also alter the traditional contours of copyright. After all, the traditional contour of copyright protection is that works receive protection until they enter the public domain, but can thereafter be freely used by anyone. In the new decision, the Court clarified that only legislation that impacted the denial of copyright for ideas or limited fair use would alter traditional contours and require stricter First Amendment scrutiny.

[Read a longer piece of commentary on the history of the case and the oral argument before the Supreme Court last fall.]

Justices Breyer and Alito dissented. Essentially, they argued that copyright laws must be justified by a utilitarian rationale as they have historically. Also that they elicit creation of new works for the ultimate benefit of society. Removing existing works from the public domain does not elicit any new creation, and also impacts free speech interests of the public. Hence, they argued, such a law should be scrutinized to see that it served some important copyright-related purpose. Even if solidifying the U.S. position in the international copyright system is important, the treaties actually permit less restrictive alternatives than the approach chosen by the legislature. Encouraging dissemination of works (rather than creation of new works), which the majority argued would promote knowledge, could be argued to authorize Congress to remove the Bible from the public domain, according to the dissenters. They concluded that the restoration statute exceeded Congress' power under the Constitution.

Professor Charlotte Goldberg files amicus brief in high-profile marital property case

By Professor Charlotte Goldberg

An aging music legend, Frankie Valli, suffers from heart problems. He decides to buy a $3.75 million life insurance policy so his wife and three children will be taken care of in case of his death. To avoid probate, he names his wife Randy as "owner" of the policy. The premiums on the policy are paid from community property funds. Instead of Frankie dying, Frankie and Randy divorce. At the time of their trial, the life insurance policy has a cash value of $365,000. The major legal question in the case is whether the policy is community property because it was purchased with community funds or whether the policy is wife Randy's separate property because the policy is in her name. If the policy is community property, each spouse owns one-half. If the policy is wife Randy's separate property, it belongs to her exclusively.

The trial court in the case determined that the policy was community property. The Court of Appeal reversed and found the policy was wife Randy's separate property. The Supreme Court has agreed to review the case, which has generated interest in both academia and in the Bar. The case represents a classic clash between community property concepts and common law title doctrine.

Under community property law, the conventional wisdom regarding property titled in one spouse's name is that it is presumed to be community property under Family Code §760. The spouse claiming it is separate property must rebut by tracing to separate property funds or by proving a transmutation. Here wife Randy cannot do that because it was agreed that community property funds were used to purchase the policy. However, under California Evidence Code §662, if the title indicates ownership, then Frankie would have to show otherwise by clear and convincing evidence.

The Court of Appeal held that Evidence Code §662 controlled rather than Family Code §760's community property presumption. Also, the Court of Appeal stated that the Family Code §852 requirements for transmutation did not apply because the policy was purchased from a third party and was not an interspousal transaction.

Four amicus briefs, from law professors and family law attorneys, were filed in support of Frankie Valli's arguments that the community property presumption and the Family Code transmutation requirements apply in this case. [Read the amicus brief filed by Professor Goldberg and Professor Herma Hill Kay (Berkeley).] Their arguments are that historically and philosophically community property concepts embodied in the Family Code should control not common law title as prescribed by Evidence Code §662. The Supreme Court is also called on to resolve whether the transmutation requirements apply to this transaction even though it is a purchase from a third party.

The Supreme Court decision will determine whether community property concepts will triumph over common law.

Professors Petherbridge and Rantanen argue that the America Invents Act could be counterproductive

By Professors Lee Petherbridge & David Schwartz

Professor Lee Petherbridge is involved in a debate on PENNumbra, a University of Pennsylvania Law School project (originating with their law review) that hosts debates between scholars on current controversies. He and Professor Jason Rantanen of the University of Iowa College of Law have asserted that despite its stated goal to stimulate innovation and job creation, the America Invents Act (recent patent reform legislation) may well do just the opposite. In response, Professor Kesan (Illinois) examines other sections of the Act, arguing that they provide more reason to be optimistic.
In the piece, the professors argue that:

"All rules are distortive. In perhaps no instance is this idea more true than when it comes to the patent system. In a very fundamental sense, the system is nothing more than a set of rules imposed for the very purpose of affecting the behavior of economic actors. Like so many other rules, it has a laudable purpose: the desire to efficiently stimulate invention and innovation.

The purpose of the newly enacted Leahy-Smith America Invents Act (AIA) is to rearrange the rules of the patent system and thus to create a new and different set of benefit and cost possibilities for economic actors. Pub. L. No. 112-29, 125 Stat. 284 (2011) (to be codified in scattered sections of 35 U.S.C.). Unfortunately, the changes in benefits and costs worked by the AIA seem tailored to do two things: (1) discourage the patent-driven incentive to innovate, and (2) protect market power. This suggests the AIA may have a negative effect on American competitiveness and job creation, a disappointing outcome given that Congress's express purpose in enacting the law is to promote technological development and protect the rights of small businesses and inventors."

Read the complete debate on PENNumbra.

Making Things Right, Many Years Later

By Associate Dean Michael Waterstone

A state task force in North Carolina recently recommended that victims of forced sterilization receive compensation. Today, the idea of the state medically taking away someone's right to procreate against their will seems impossible, even barbaric. But from the 1930s to the late 1970s, North Carolina, like 32 other states, used the now-discredited science of eugenics to justify mandatory sterilization of people with mental disabilities, criminals and other undesirables. The idea was to prevent those who were "unfit" from continuing "their own kind." All in all, more than 60,000 people in the United States were sterilized without their consent.

Why does this matter today? Happily, states do not do this anymore (although North Carolina's forced-sterilization statute remained on the books until 2003). Nevertheless, North Carolina's proposed action here is important for three reasons. First, it sheds light on a practice that is too often neglected in the history books. Reparations of this sort are politically difficult - no doubt, some citizens of North Carolina are wondering why their tax money should go to righting some wrong they were not a part of, instead of toward schools, roads, prisons and other needed areas. But when a state actively participates in an atrocity toward it citizens, it has a moral obligation to make amends and to ensure it never happens again. An action like this - sure to be controversial - puts this issue back in the public eye, and increases the likelihood that it will be a part of how people think about abuses of state authority, even when it is uncomfortable to do so. North Carolina should be lauded for taking steps to do the right thing here.

Second, the issue of people being discriminated against on the basis of their genetic conditions has not gone away even though eugenics has been thoroughly discredited. More than 90 percent of Americans report being fearful of taking genetic tests out of concern that their employer or insurance company will discriminate against them if they show a genetic predisposition to develop certain diseases. In response to this, Congress passed the Genetic Information Non Discrimination Act, making it unlawful for employers or insurance companies to discriminate against individuals on the basis of their genetic information. Although it passed Congress with broad consensus, this law was criticized for not responding to any real need and being a "remedy in search of a problem." North Carolina's forthright attempts to deal with its history of this type of discrimination shows these worries are not merely hypothetical.

Finally, discrimination against people with disabilities - particularly individuals with mental disabilities - still happens. Yet courts have taken a limited view of this problem. In fact, the Supreme Court expressly sanctioned state mandatory sterilization laws like North Carolina's, noting that "three generations of imbeciles are enough." This case has never been explicitly overruled, and the Supreme Court has continued to maintain that there is no history of prejudice and laws intended to harm people with mental disabilities. Courts continue to review state actions drawing classifications on the basis of mental disability with their most lenient interpretative methods, employing rational basis review, whereby any state action that is rational will be upheld. Eugenics laws like those that existed in North Carolina remind us that the court has made a mistake here, and that it should more carefully scrutinize existing laws and policies - including laws relating to voting, capacity and institutionalization - that continue to operate against the rights of individuals with mental disabilities.

At this point, the North Carolina legislature still needs to approve the payment of compensation to victims of forced sterilization. But North Carolina deserves praise for taking the steps it has already taken, which should encourage the other 32 states to follow suit. And it should finish the job by approving payments to individuals who were harmed in this grievous manner by official and deliberate state actions.

Redistricting: Should Valley Districts Completely Stay within the Valley?

By Associate Clinical Professor Jessica Levinson

This piece originally appeared on KCET.org.
Redistricting seems to be the one governmental process that can unite members of both aisles. And by unite I mean join together in fighting each other tooth and nail. I have previously detailed the numerous fights -- both at the courthouse and in the ballot box -- surrounding the newly drawn state legislative lines. Now comes word that a fight is brewing on the local level as well.

Valley leaders are asking for the creation of new city council maps. Specifically, representatives for the San Fernando Valley are urging the creation of six districts completely contained in the Valley. These districts would not stretch over the hill. Currently there are seven city council districts in the Valley. So why would they want fewer districts? Two of those districts stretch over the hill into West Los Angeles and Hollywood.

The creation of six districts totally contained in the Valley would therefore increase the voice of those living, as we say in L.A., "over the hill." This strategy makes sense, at least to those living in the Valley. A representative who has to consider the needs of constituents on both sides of the hill would likely be be less attuned to the needs of constituents in the Valley than someone representing a district wholly contained in the Valley.

To understand why the creation of districts wholly contained within the Valley (as opposed to keeping the status quo, which includes districts on both sides of the hill) would give Valley residents a greater voice in Los Angeles politics one must to some extent look into the psyche on Angelenos. Certainly there are far too many things that divide us -- because of the city's layout, we share few common experiences. No doubt one of greatest dividers in Los Angeles is geography. We divide ourselves between east and west and certainly between north and south. Often we divide (and to a certain extent define) ourselves by where we live. In this debate the greatest divider may be "the hill" which separates the Valley from the rest of Los Angeles. There are, no doubt, places in Los Angeles where you can hear discussions about "eastsiders," "westsiders" and "Valley dwellers."

It remains to be seen whether Valley leaders will win and whether there will be six city council districts there. It does seem clear that many people who live in the Valley do not believe that they share common interests with non-Valley dwellers and mistrust public officials who say they will represent both sides of the hill.

The Los Angeles City Council will need to vote on final maps by July 1.

The Supreme Court's Texas Mess

By Associate Professor Justin Levitt

"Don't mess with Texas": this time, the Supreme Court should have listened. The Court has injected itself into a 10-gallon disaster that grows messier with every passing day. Today, the Court hears argument. If only it could slowly back out of the room.

The problem arises (again) from a Texas redistricting plan. Last cycle, Texas re-redrew a court's lines, causing Democrats to twice flee the state to gut a legislative quorum. This caused Tom DeLay to set federal law enforcement on their tail, which in turn earned Mr. DeLay a formal admonishment. The resulting districts were struck down under the Voting Rights Act; the Supreme Court found that they "took away the Latinos' opportunity because Latinos were about to exercise it."

This time around, the Texas legislature drew lines without calling in air support. Because of past discrimination, Texas is subject to section 5 of the Voting Rights Act; the state must "preclear" election-related changes to ensure that they don't make life worse for minority citizens. A change can't legally be implemented until it's precleared. Most jurisdictions submit section 5 changes to the Department of Justice, which has a relatively speedy procedure for assessing preclearance. The DOJ has precleared every statewide map that it's considered this cycle. Texas chose, instead, to go to a DC federal court.

The DC court found that it couldn't yet preclear the Texas plans. Texas had used the wrong standards in assessing whether it complied with the Act. And besides, said the court, there were serious allegations that Texas had illegally intended to discriminate in drawing the maps, and those allegations needed to be worked out at trial.

Ten Lawyers Leaping: A New Year's Redistricting

Associate Professor Justin Levitt, published "Ten Lawyers Leaping: A New Year's Redistricting" on the Huffington Post on Jan. 3, 2012:
"The 2011 holiday season brought plenty of election-related tidings, of comfort and joy to some and consternation to others. Now, in the first days of 2012, it's useful to take stock of our democratic infrastructure -- and particularly, since we're in the thick of the redistricting cycle, to gauge our national progress in drawing the lines that will determine representation for the next ten years (or until Texas decides to re-redraw its lines, once again).

Read the full post here.