Citizens United: answering unasked questions

By Associate Clinical Professor Jessica Levinson

This op-ed originally appeared in the May 30, 2012 edition of the Daily Journal.

Much of the backlash around the Supreme Court's much-maligned 2010 decision in Citizens United v. FEC focuses on the battle cry that "corporations are not people." Well, as with all things, corporate personhood is a complex area of the law that boils down to sometimes they are, and sometimes they aren't. The substance of the Citizens United decision essentially comes down to two conclusions, both of which I believe are ill conceived.

First, the thin majority found that speaker-based identity restrictions are impermissible. Put another way, if the government cannot prevent individuals from spending money on independent expenditures, then neither can it prevent corporations from doing so. For a variety of reasons, which I have detailed in a recent law review article, I believe that in the campaign finance arena corporations should not, in fact, be treated as identical to individuals. While corporations are certainly made up of people, they are artificial entities created with numerous state-created benefits.

Second, the court, led by Associate Justice Anthony Kennedy, found that independent expenditures are not corrupting. This conclusion seems to make little sense in the real world. But as a result of some legal acrobatics, the court concluded that groups and individuals who spend money for or against candidates, but who do not coordinate with campaigns, cannot corrupt candidates. So go ahead and spend $10 or $10 million, no need to worry about potentially corrupting your favored candidate.

These two conclusions have led to the rise of so-called Super PACs. These political committees are independent only committees. Because they only spend money independent of campaigns, the money they spend cannot lead to fears of corruption (according to the court), so they can raise and spend unlimited sums. I would venture a guess that the average member of the public believes that candidates are not only aware of those spending large sums with the help of Super PACs, but they are indeed extremely grateful for such help. This gratefulness can easily cross over to a corruptive relationship, or at lease the appearance of such a relationship.

We the Corporations?

By Associate Clinical Professor Jessica Levinson's latest law review article, "We the Corporations?: The Constitutionality of Limitations on Corporate Electoral Speech After Citizens United," was cited in an amicus brief filed with the Supreme Court in American Tradition Partnership v. Bullock.

The issue in the case is whether Montana must follow the Court's holding in Citizens United, which struck down a federal ban on corporate electioneering communications.

Read the law review article here.

The Fullerton Beating Case & The Lessons of the Rodney King Trial

Laurie Levenson, Professor of Law, William M. Rains Fellow and David W. Burcham Chair in Ethical Advocacy, was quoted in a previous article published by The Orange County Register on May 9, 2012 which discussed the Kelly Thomas trial. This is Levenson's response to recent case developments.

In some ways, the Kelly Thomas beating case is, in the immortal words of Yogi Berra, "deja vu all over again." Having watched the Rodney King trial, I can appreciate the enormous challenge of prosecuting police officers. Jurors tend to give them every benefit of the doubt. After all, police do the difficult job that many of us do not want to do. Yet, even police officers can cross the line. The Orange County District Attorney's Office must not only prove that this was bad police work, but that it rose to the level of criminal behavior that put defendant Ramos in prison for the rest of his life.

The video of the beating is powerful. It is hard to watch, but it is even harder to listen to. As Thomas cries, "I'm sorry, I'm sorry," and pleads for help, one cannot help but have a visceral reaction. However, a visceral reaction may not be enough to win a murder case. If the Rodney King case is any type of precedent, we should also look for other evidence that will prove what was going on in the defendant's head. Did Officer Ramos realize he might kill Thomas? Did he act with deliberate indifference? Did he try to cover up what he did? Did he laugh and joke, like the King officers did, about what he did? What statements did he make about his actions? Why did he do it? Did his acts even cause the death?

This case is only in its early stages. As it moves through the criminal justice process, it is best to keep in mind that this will not be an easy trial. It is also important to remember that one criminal prosecution cannot cure all of the ills of our criminal justice system. We have a problem with how police interact with the mentally ill. That issue must be addressed, regardless of the outcome of this case.

In Memoriam Best Mode

By Professor Lee Petherbridge & Associate Professor Jason Rantanen (Iowa)

On September 16, 2011, President Obama signed into law the Leahy-Smith America Invents Act ("AIA" or "Act").[1] It embodies the most substantial legislative overhaul of patent law and practice in more than half a century. Commentators have begun the sizable task of unearthing and calling attention to the many effects the Act may have on the American and international innovation communities.[2] Debates have sprung up over the consequences to inventors small and large,[3] and commentators have obsessed over the Act's so-called "first-to-file" and "post-grant review" provisions. Lost in the frenzy to understand the consequences of the new Act has been the demise of patent law's "best mode" requirement.

The purpose of this Essay is to draw attention to a benefit the best mode requirement provides--or perhaps "provided" would be a better word--to the patent system that has not been the subject of previous discussion. The benefit we describe directly challenges the conventional attitude that best mode is divorced from the realities of the patent system and the commercial marketplace. Our analysis suggests that patent reformers may have been much too quick to dismiss best mode as a largely irrelevant, and mostly problematic, doctrine.

Read the full piece on Stanford Law Review.

[1]Pub. L. No. 112-29, 125 Stat. 284 (2011) (to be codified in scattered sections of 35 U.S.C.).

[2]See Jason Rantanen & Lee Petherbridge, Commentary, Toward a System of Invention Registration: The Leahy-Smith America Invents Act, 110 Mich. L. Rev. First Impressions 24 (2011)

[3]See Lee Petherbridge & Jason Rantanen, Jay P. Kesan, Debate, America Invents, More or Less?, 160 U. Pa. L. Rev. PENNumbra 229 (2012)

Guantánamo Arraignment - You Had to be There (Or not?)

By Professor David Glazier

Having spent five days on the road (one day each way flying between LA and D.C. and three days in Guantánamo) to attend a 13 hour hearing (at least I got my money's worth there!) on behalf of the National Institute of Military Justice, one has to ask, "Was it worth it?" Is there sufficient value from "live" observation when one can read the transcripts or watch from a remote site to justify the time and expense of traveling to Cuba? I will describe what I got from the observation experience and let others decide. To at least whet your appetite, let me say now that the proceedings I observed differed a bit from the impression created by media reports.

Just getting to Guantánamo gives one perspective on the challenges confronting military commission attorneys, particularly defense attorneys, on a regular basis, including the multi-day lead time for travel approval and the requirement to show several hours before flight time in classic military "hurry up and wait" style. And there is nothing like flying in 20+ year old aircraft operated by low-budget charter operators you've never heard of to inspire confidence. (U.S. troops deploying overseas also frequently get to travel this way.) And of course, you come and go not when convenient, but when these irregular flights are scheduled.

Next I got to experience the curious realities of military commission security. You must present a passport -- the only form of ID accepted -- at a checkpoint where you are validated against the pre-approved entry list and undergo a traditional security screening -- X-ray of all possessions; metal detector/wand of your person; before being led a short distance to a second location where this entire process is repeated in full. (Imagine if TSA tried to adopt this approach.) Only then are you allowed to proceed to the courtroom gallery entrance where you show your passport a third time and receive an individual seat assignment. I'm tempted to conclude from this passport fetish that these are actually foreign courts. Observers cannot bring any pens, pencils, electronic devices, notebooks, etc. with them - courtroom staff provides loaner writing implements and plain white pads. If this is how U.S. nationals, physically separated from the courtroom by a glass wall are screened, claims that defendants experience much more rigor, including strip searches, seem entirely credible.

A real value added from traveling to Guantánamo is the ability to see the full courtroom, from before the arrival of the detainees (observers had to start our entry process a full hour before the scheduled start time), until the completion of the trial day. Observers sit in a soundproof glass booth listening to the same 40-second time delay as remote observers, and have video monitors showing the same picture. It is generally less surreal to watch the monitors, so what you hear and see match up. But there is merit to being able to see what is happening throughout the courtroom rather than just the view of the currently speaking participant offered on the monitors.

Observations from the Guantánamo Arraignment

By Professor David Glazier

The experience of observing Saturday's military commission arraignment of the five alleged 9/11 conspirators in Guantánamo Bay, Cuba on behalf of the National Institute of Military Justice left me with serious concern that systemic issues, many involving "outside" agencies, particularly Joint Task Force Guantánamo (JTF), are likely to preclude the exercise of meaningful attorney-client coordination. This in turn will call into question whether these trials are sufficiently fair as to merit contemporary, and ultimately historical, public approval. These concerns are separate from any issues about the substantive law being applied; my comments in this post are limited to matters observed at Guantánamo.

First let me acknowledge some positive points. The government has promised greater transparency in the commission process, and the establishment of additional remote sites where the trial can be viewed as well as the unprecedented same-day internet posting of unofficial trial transcripts (from this link one must go to "Khalid Shiek Mohammed et al. 2 and then to "transcripts") are both good news in this regard. And on some matters Judge Pohl went out of his way to demonstrate "fairness" to the defendants, announcing recesses for prayer times sua sponte, pausing the trial to allow conversion from the planned simultaneous Arabic translation via headphones to sequential translation broadcast via overhead speakers, saying nothing about Bin Attash's offensive paper airplane, tolerating prayers at times other than actual prayer times, etc. While quality translation is essential to a fair trial where not all defendants speak adequate English, most observers, even commission critics, thought Pohl actually went too far in most of these accommodations. There was unanimous agreement among trial observers with federal practice experience that no U.S. federal judge would have tolerated such breaches of courtroom decorum as unscheduled prayers or defendants making paper airplanes, and few, if any, federal courts would have recessed for prayer times falling outside reasonable mealtimes.

But the obvious "considerations" extended the defendants mask broader concerns which threaten the trial's ultimate credibilty. As a matter of law, these need not necessarily have been addressed Saturday. Colonel Pohl was likely on solid legal ground in deferring the motions that defense attorneys repeatedly tried to push forward until the next court session in June. And some of the defense concerns may well lack objective merit -- there are always two sides to every story. Nevertheless, the aggregate impression I came away with was that the defense had a number of legitimate issues about detainee treatment impacting their ability to mount a defense that were not merely frivolous attempts to delay the proceedings. Deferral of these issues, even if legally permissible, now impacts their ability to press ahead with trial preparation, and may introduce further delay into a trial the judge unilaterally suggested was still at least a year away.

Guantánamo Military Commission Pre-Arraignment Press Conferences

By Professor David Glazier

I am currently in Guantánamo as the National Institute of Military Justice (NIMJ) observer at the scheduled May 5 arraignment of the five alleged 9/11 co-conspirators. Tonight I had the opportunity to attend back-to-back press conferences by James Connell, the civilian "learned counsel" representing one of the five defendants, Ammar al Baluchi, also known as Ali Abdul Aziz Ali, and the second by Chief Prosecutor Mark Martins, whose prepared statement is already posted at the Lawfare Blog.

Connell addressed the long delay in the prosecution and previous false starts, suggesting that Saturday's arraignment marked only the beginning of a multi-year process that could still be in progress in ten years time should the Supreme Court strike down the new military commissions as they did once before. But most of his discussion focused on the secrecy of the proceedings, and how he was legally prohibited from saying anything at all about his client's intention because of the government's insistence that anything a detainee formerly held in CIA custody said was presumptively classified at the Special Compartmented Intelligence (SCI) level. The ACLU has filed a motion that I think does an excellent job of addressing the impact of this approach on the public's right to know (full disclosure -- I authored a supporting declaration on historic military commission practice but played no role in drafting the actual motion). But the major adverse impact this secrecy has on Guantánamo defense teams' ability to represent their clients is a topic significantly underreported to date, and Connell's remarks only scratched the surface of the issue.

Connell also explained the one significant development today -- the military judge had intended to conduct an informal session with only counsel present (called an "802 hearing" after the Military Commission Rule 802 addressing the subject). The judge's staff began notifying the defense counsel of his intention, and according to Connell, attorneys for the first two detainees who were notified both said they would come only if the hearing was recorded so that it could eventually be included in the formal trial record. Shortly thereafter word was sent to the attorneys that there would be no 802 hearing today, meaning that tomorrow's arraignment will proceed without any formal pre-coordination

Connell was followed by Chief Prosecutor Martins who gave a polished defense of the commissions' fairness. I think it odd that the individual charged with prosecuting the defendants has taken upon himself the role of head cheerleader for the commission process. One might remember that Morris Davis did this several years ago in his tenure in that job, resulting in significant complaints about his extrajudicial commentary that would have been a subject of some judicial discussion had David Hicks not cut it off by pleading guilty. And Martins should have his focus on fulfilling his ethical responsibilities to do justice in the prosecutions -- the Convening Authority certainly can call on other resources such as his own public affairs staff to defend the commissions.

Loyola Hosts the Fidler Institute on Criminal Justice

Los Angeles District Attorney Steve Cooley delivered introductory remarks during the Fidler Institute on Criminal Justice held Friday, April 20 at the downtown L.A. campus of Loyola Law School, Los Angeles. Cooley assessed the effects of AB 109 during his talk. "The state of the criminal justice system? I think we're in deep trouble. I think we are in the worst potential state of the criminal justice system in my nearly four-decade career in the system. That's because of AB 109, which upset a perfectly good, effective, logical system that was the work of prosecutors, police officers, defenders, judges selecting individuals who truly deserved to be punished by way of incarceration." He continued, "No one thought this through. I'm predicting the greatest spike in the crime rate in our lifetimes, and it's starting already."

Fidler Institute panels included AB 109 and Realignment; Drones, GPS and High-Tech Surveillance: New Developments in Fourth Amendment Law; The Jail Crisis: Can Our Jails be Fixed?; and Pot Shops and the Future of Marijuana Prosecutions. Moderators included Loyola Professors Stan Goldman, Sam Pillsbury and Marcy Strauss. Henry T. Greely, Stanford Law School professor, delivered the keynote lunch address, "Brain Scans in Criminal Cases: Possible Uses, Important Questions." The Landers Memorial Lecture on Prosecutorial Ethics featured a discussion on "The Future of White Collar Prosecutions: Challenges for Both Sides of the Bar."

The day ended with the presentation of the Fidler Institute Awards by Professor Laurie Levenson and the Hon. Larry P. Fidler '74, California Superior Court, Los Angeles County, the Loyola alumnus for whom the institute is named. Defense Counsel of the Year honors went to Janet Levine '80, partner, Crowell & Moring LLP. Prosecutor of the Year honors went to Patrick R. Dixon, assistant district attorney, Los Angeles County. Judge of the Year Award went to the Hon. Jacqueline A. Connor, California Superior Court, Los Angeles County. And a special tribute commemorated the life of Nicholas DeWitt '79.

Loyola Faculty Productivity

Loyola Law School, Los Angeles faculty ranked 20th on a list of the top 40 law schools for per capita productivity of articles in top journals from 1993-2011. The study, by Roger Williams University School of Law, evaluated law schools beyond the U.S. News top 50.

Why Misdemeanors Aren't so Minor

By Professor Alexandra Natapoff

Yesterday, people across America pleaded guilty to crimes they didn't commit. This isn't something new or extraordinary. Every year, the American criminal system punishes thousands of people who are not guilty. These routine wrongful convictions never make it into headlines because they are misdemeanors, petty offenses like trespassing, disorderly conduct, or loitering. Minor offenses are largely ignored because we are usually focused on the felonies--the rapes, murders, drug crimes, and robberies. But felonies are actually exceptional. Approximately 1 million felony convictions are entered every year; more than 10 million misdemeanor cases are filed in the same time. In most states, misdemeanor dockets are four or five times the size of felony dockets. If you ever enter the American criminal justice system, odds are it will be for a misdemeanor. They may be seen as small-time offenses, but collectively how we process misdemeanors represents an immense and influential public institution. Something so powerful deserves far deeper scrutiny.

Read the full piece on Slate