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.

Associate Professors NeJaime, Ocen publish in California Law Review

Law review articles by Associate Professors Doug NeJaime and Priscilla A. Ocen appear in the California Law Review issue published in October 2012.

NeJaime's "Marriage Inequality: Same-Sex Relationships, Religious Exemptions and the Production of Sexual Orientation Discrimination" (100 Cal. L. Rev. 1169) looks at the conflict between marriage equality and religious liberty. Ocen's "Punishing Pregnancy: Race, Incarceration, and the Shackling of Pregnant Prisoners" (100 Cal. L. Rev. 1239) provides a critical assessment of the practice of shackling female prisoners who are in labor, and the historical undertones of the practice.

Prof. West-Faulcon filed amicus brief in Supreme Court case on race as factor in college admissions

Professor Kimberly West-Faulcon submitted an amicus curiae brief on behalf of the respondents in Fisher v. Univ. of TX at Austin.
In it, she wrote:
This brief explains how social science research undermines the common misconception that black applicants must be receiving "preferential" treatment and that the magnitude of the so-called "preference" is large on the basis of a casual numerical comparison of the average test scores of black admits as compared to white admits. It also explains that "the gap" in black-white group average scores on traditional mental tests, while still in existence, has been narrowing for several decades. The brief describes the relevance of contemporary research finding that theoretically-improved and updated versions of such tests have been shown to narrow the black-white average score gap presumably because they are based on more theoretically robust and more outcome predictive theories of intelligence. Such research calls into question petitioner's allegation that UT's minimal consideration of race as a factor in admissions violates her Fourteenth Amendment constitutional rights because she is Caucasian.
Read the complete brief.

Faculty Workshop Series Presents David Ball

Assistant Professor David Ball from Santa Clara Law will present his paper, "Why Should States Pay for Prisons, When Local Officials Decide Who Goes There?" on Thursday, October 11, 2012. Ball will begin speaking at 11:45 am in Casassa 401 and lunch will be provided.

Book Review: Steve Jobs by Walter Isaacson

By Professor Jeffery Atik

If only Lytton Strachey had written this biography of Steve Jobs. He would have punctured Jobs, ridiculed his dirty feet and preachiness, his unshattered conviction of his own primacy. Not that Jobs wasn't a great figure: he certainly was. But there is something off-putting when a biographer lets his subject declare (and so establish) his own importance. The temptation in reviewing this biography is to assess the subject and not the book. And the subject is certainly compelling. Jobs' accomplishments are familiar, his eccentricities less so. And so there is sordid attraction exercised by his abandonments, his eating disorders, his cruelty.

Isaacson relishes his access to Jobs and produces a work Larry King would envy. Certainly Jobs' foibles are presented -- but simply because a biographer has a license to report 'warts and all' does not discharge his critical responsibility. Isaacson does not judge Jobs. At best, he reports -- in various fragments -- the partial judgments of Jobs' many friends, colleagues and acquaintances. Joan Baez is perhaps the most honest of all: she has little to say beyond a typifying story (Jobs is clueless) and leaves the impression that she meant more to Steve than Steve ever meant to her.

No doubt many readers of this book will search for easy recipes for replicating Jobs' phenomenal business achievements. Jobs seems to have had two running theories for Apple's success. The first account celebrates Apple's industrial design. The design story is complex -- and has deep psychological roots. Jobs learns from his father (a modest man he greatly admired) of the importance of finish, even for elements hidden from view. Design does not reflect the creator's integrity; it assures it. But design involves more than form following function -- the book is replete with stories of Jobs' rejecting engineers' design compromises that duly reflect functional concerns. The aesthetic trumps the functional in these stories (Isaacson gives no counterexamples), at times leading to stunning product, and at other times, to disappointment and delusion. In the affair known as "Antennagate," Jobs had insisted that a gorgeous steel rim surround the iPhone 4. Unfortunately, this compromised an essential function: the phone dropped calls at a higher rate. The technical solution adopted by many (and offered by Jobs) was an ugly case which, of course, masked the iPhone 4's design!

Jobs had a wonderful design sense, though he became increasingly closed off to new aesthetic experience. Dylan remained the center of his musical universe (his iTunes list is true to baby-boomer form). He perceives Bach's greatness -- but stops there (though Yo-Yo Ma is a 'friend'). Had Jobs been more intrigued by music -- and willing to explore - he may have found artists who better reflected his simplicity instincts.

Faculty Workshop Series Presented Anne Dailey

Evangeline Starr Professor Anne Dailey of the University of Connecticut School of Law spoke on "Reinterpreting Tarasoff" as part of Loyola's Faculty Workshop Series.

Attraverso - Digital Copyright Crimes and the Trans-Pacific Partnership

By Professor Jeffery Atik

The IP provisions of the Trans-Pacific Partnership (TPP), a regional trade agreement involving the United States and 10 other Pacific Rim nations, are not merely 'TRIPS Plus;' they are also 'WIPO Plus.'

Two major multilateral copyright treaties came into force following the establishment of TRIPS: the 1996 WIPO Copyright Treaty and the 1996 WIPO Performances and Phonograms Treaty. Together, these treaties expand protection to authors and performers in the digital environment. As WIPO products, these two treaties, known together as the WIPO Internet Treaties, reflect fairly broad international consensus, in contrast to the more contentious 'TRIPS Plus' norms promoted by the United States and Europe in various bilateral and regional settings. The now abandoned Anti-Counterfeiting Trade Agreement (ACTA) was an attempt to construct TRIPS Plus broadly, outside of the WTO.

The WIPO Internet Treaties establish new categories of unlawful activity, but they do not require the imposition of criminal penalties on infringers. For example, Article 11 of the WIPO Copyright Treaty requires signatories to "provide adequate legal protection and effective legal remedies" against persons who circumvent technological measures for the protection of copyrighted works. While the WIPO Copyright Treaty does not prevent a signatory from imposing criminal liability in these cases, neither does it mandate it.

The 1998 Digital Millenium Copyright Act (DMCA) purports to be the United States implementation of the WIPO Internet Treaties. Yet the DMCA arguably goes beyond the WIPO Internet Treaties by imposing criminal liability on persons who "willfully violate" DMCA's central provisions "for purposes of commercial advantage or private financial gain."