Monday, December 16, 2013

Book Review of Talent Wants to Be Free

By Associate Dean Michael Waterstone

This book review originally appeared in the Daily Journal.

Ideas. Collaboration. Drive. In the world we live in, these intangible resources can be the most valuable assets a business has. In the two professional worlds with which I am most familiar, law practice and legal academia, this is certainly the case. Law firms routinely raid one another, both for talent and for books of business (and potential for future business). At law schools, we regularly look to other faculties to see whose talents in the classroom, as scholars, and as administrators would benefit our students, and try to recruit those faculty members to join our ranks. And we expect that other schools will do the same to us. Even more than in the legal arena, the competition between technology companies like Facebook, Google, Microsoft and Apple is even fiercer. All of these companies fight vigorously with one another for the best talent, and routinely acquire (or as it is now known, acq-hire) entire start-ups, only to discard the actual product but keep the teams, founders and engineers.

Professor Orly Lobel's important new book, Talent Wants to Be Free: Why We Should Learn to Love Leaks, Raids, and Free Riding addresses what role business and government should play in the talent wars, not just in the legal profession but across industries. Combining insights from law, economics, psychology and business, and with the benefit of experimental studies, Lobel offers a powerful critique of our dated ways of thinking about competition, which center around command and control of human capital. But she also offers a hopeful vision of how law and business can foster innovation and the competitive edge necessary for our country's success in a new and more challenging global environment.

Thursday, December 12, 2013

A Broken Election System Becomes a Teenager

By Associate Professor Justin Levitt

This op-ed originally appeared on Pacific Standard.

Precisely 13 years ago, five Supreme Court justices cast the final and most important vote of the 2000 election, ending a Florida recount and effectively installing George W. Bush as the 43rd President of the United States.

Today, Bush v. Gore hits adolescence. We should be paying far more attention to this troubled teen.

The chaos of the winter of 2000 has slipped from the national consciousness. My students have no idea what a "hanging chad" is, or that such a thing was ever meaningful. More recent constitutional crises have left the combat in Tallahassee stale and distant. Much of America has, it seems, finally taken Justice Scalia's frequently quoted advice on the election: "Get over it."

But ignoring the Bush v. Gore bar mitzvah would be a grave mistake. In some ways, the need to remember--and to let that memory spur us to action--is greater now than ever before.

Read the complete piece.

Monday, December 9, 2013

Loyola Professors Draft Bill on Defense Attorney Recording Privileges

Professors Laurie Levenson and Brentford Ferreira were quoted in the Daily Journal about a bill they drafted that would give defense attorneys similar surreptitious recording priveleges to prosecutors and law enforcement. Levenson and Ferriera, who recently joined Loyola as an adjunct professor and supervising attorney of Loyola's Project for the Innocent, hope to have the bill introduced into the California state Legislature.

Brentford Ferreira, a former Los Angeles County prosecutor, and professor and project head Laurie Levenson recently penned language for a bill that would provide defense attorneys and their investigators with the ability to secretly record conversations with witnesses in criminal cases. The idea is that surreptitiously recording witnesses could help defense attorneys recognize and prove that a witness has given conflicting testimony. That could pave the way for defendants to prove their innocence or help wrongfully incarcerated defendants clear their names. 
"Faulty eyewitness identifications result in the convictions of innocent people," the authors note in the would-be bill's statement of purpose. "Witnesses often recant their previous identifications."
Ferreira and a group of Loyola law students hope to convince a lawmaker to introduce the draft bill in next year's legislative session. 
"If law enforcement's taping is focusing on ongoing criminal activity, then it might make some sense as to why they have additional investigative powers," she [Levenson] said. "However, if all they are doing is secretly taking witness statements, then it is unclear why they should have a tool that the defense does not have. Both sides should want to get the true testimony of the witness."

Tuesday, December 3, 2013

What I Want for Christmas is...

By Professor Katherine Pratt

This op-ed was originally published in the Dec. 24, 2009 edition of the Los Angeles Daily Journal. It was republished in recognition of Giving Tuesday.

Nothing. Well, not exactly nothing--just nothing for me. What I really want for Christmas is for more holiday gift-givers to honor their family, friends and business contacts by making charitable contributions on their behalf instead of buying them material gifts. Members of my family recently exchanged the names of our favorite charities and agreed to make charitable contributions this year, in lieu of our usual Christmas gifts. Now I have started to think about how this could happen on a much larger scale.

Societal norms currently favor material gifts over charitable contributions to honor someone. A gift-giver often has no way of knowing whether friends, family, and business contacts would prefer a material gift or a charitable gift in their honor. Also, a gift-giver might be concerned about appearing cheap and selfish if she substitutes a tax deductible donation for a non-deductible material gift. When in doubt, gift-givers make the "safe" gift choice and give material presents. On the gift recipient's side, there typically is no easy, socially acceptable way of communicating to gift-givers a preference for a charitable contribution. This is especially true with respect to gifts for business associates, clients and professionals such as doctors.

The solution to these obstacles is an online charitable donation gift registry on which individuals and businesses could express their desire for donations to their preferred charities, in lieu of material gifts, by registering on the website. The registry would maintain a searchable list of the parties who have registered, with their preferred charities, and a list of charities, organized alphabetically by name and subject area and searchable by name or keyword. Gift-givers could search the registry to make donations honoring their friends, family, and business contacts. A fitting name for the registry would be the Gifts for Good Registry.

When I asked my colleague, tax exempt organizations expert Ellen Aprill, whether such a registry already exists, she directed me to JustGive is an online charity that maintains a searchable list of 1.5 million charities and allows a person to create a Charity Registry. The Charity Registry functions like my imagined Gifts for Good Registry, but lacks some features I envisioned, such as an e-card acknowledgement, to notify the honoree of the donation and allow for an online thank-you, and an option to buy stickers for holiday cards or a tasteful placard for display in a business office, announcing registration on the site. Also, JustGive charges a fee for each donation from the Charity Registry.

Monday, November 18, 2013

California's Death Penalty: A Year in Review

By Adjunct Professor Paula Mitchell

This op-ed originally appeared on

On November 6, 2012, California voters narrowly defeated Proposition 34, a measure that would have replaced the state's death penalty with the sentence of life without the possibility of parole (LWOP) as the state's most severe punishment. Prop 34 failed to pass by about 250,000 votes.

Opponents of Prop 34 used a classic political technique to defeat the measure: fear mongering. They told voters that "instead of justice, killers [would] get lifetime housing/healthcare benefits" if Prop 34 passed. Voters were urged to keep the current system of capital punishment in place to "Protect California." They convinced voters that the death penalty was needed to punish people like "Richard 'The Night Stalker' Ramirez [who] kidnapped, raped, tortured and mutilated 14 people and terrorized 11 more including children and senior citizens."

The voters were duped. On June 17, 2013, after nearly a quarter of a century on death row at great expense to taxpayers, Richard Ramirez died peacefully at Marin General Hospital in Greenbrae, California, where he was receiving treatment for B-cell lymphoma.

Continue reading

Introducing Guest Alumni Blogger Katherine Macfarlane

Katherine Macfarlane '06, our newest Guest Alumni Blogger, was a standout student at Loyola Law School, where she was chief articles editor of the Loyola of Los Angeles Law Review and received the Dean's Service Award. She later clerked for the Hon. Frederick J. Martone of the U.S. District Court for the District of Arizona, and for the Hon. Arthur L. Alarcón of the United States Court of Appeals for the Ninth Circuit. She is now teaching fellow and assistant professor of professional practice at LSU Law Center. And her scholarship is getting noticed. Her law review article, "The Danger of Nonrandom Case Assignment: How the Southern District of New York's 'Related Cases' Rule has Shaped the Evolution of Stop-and-Frisk Law," is forthcoming in Volume 19.2 of the Michigan Journal of Race and Law and is quoted in theWall Street Journal Law Blog.

-Associate Dean Michael Waterstone

Procedure Takes Center Stage in Stop-and-Frisk Litigation

By Katherine A. Macfarlane '06, Guest Alumni Blogger

Teaching Fellow and Assistant Professor of Professional Practice, LSU Law Center

On October 31, 2013, the Second Circuit took the unusual step of removing Southern District of New York Judge Shira Scheindlin from two high-profile stop-and-frisk cases: Ligon v. City of New York and Floyd v. City of New York. Ligon is a Section 1983 class action challenging the NYPD's trespass arrest policy, or "Operation Clean Halls," a program through which NYPD officers patrol private apartment buildings across New York City. Judge Scheindlin oversaw Ligon since its filing in March 2012. Floyd, also a Section 1983 class action, challenged the NYPD's street-level stop-and-frisk practices, arguing that they amounted to racial profiling. Floyd was filed in January 2008, and immediately assigned to Judge Scheindlin.

The Floyd trial began in March and lasted nine weeks. Thirteen days before the Floyd trial began, the Floyd plaintiffs withdrew all claims for damages, and as a result, Floyd was tried to Judge Scheindlin, not to a jury. Floyd was decided in an August 12, 2013 order spanning 193 pages. Therein, the judge granted a sweeping injunction against the NYPD that ordered changes to NYPD policies and activities, appointed a monitor to oversee stop-and-frisk practices, required a "community-based joint remedial process to be conducted by a court-appointed facilitator," and ordered that one precinct in each of New York City's boroughs place body-worn cameras on their police officers. On the same date, Judge Scheindlin entered a similar decision in Ligon, ordering changes to the NYPD's trespass arrest policies, oversight by the same monitor appointed in Floyd, and revision of NYPD training materials and programs. In its October 31 order, in addition to removing Judge Scheindlin from Floyd and Ligon, the Second Circuit stayed the orders in Floyd and Ligon pending appeal.

But why was Judge Scheindlin removed? In its October 31 order, the Second Circuit found that Judge Scheindlin violated the Code of Conduct for United States Judges due to the appearance of partiality created by her "improper application" of the Southern District's "related cases rule," as well as "by a series of media interviews and public statements purporting to respond publicly to criticism of the District Court."

Tuesday, November 5, 2013

Multiple Choice Exams are (a) good assessment tools, (b) bad assessment tools, (c) all of the above.

By Associate Professor Kevin Lapp

This post originally appeared on EvidenceProf Blog.

Multiple choice testing is a popular assessment format in Evidence courses, more popular in my experience in Evidence than in other courses. Some professors use it exclusively, while others mix multiple-choice testing with essay questions on their exams. There's good reason for using multiple choice testing in Evidence courses. For one, the MBE portion of the bar exam contains multiple choice Evidence questions, so doing so as part of a final exam helps prepare students for the bar exam format. In addition, multiple choice testing has been around, and is widely accepted as a credible format to assess student knowledge. Evidence is also a heavily rule-based class that lends itself to an assessment format that requires students to identify a single correct answer. Finally, multiple choice questions allow professors to assess more topics than can be squeezed into an essay question, reducing the chances that a student performs well on an exam because he happened to know the issues covered by the essay questions.

But there can be a large gap between good multiple choice questions and bad multiple choice questions. This post is about how those of us who do use multiple choice questions can know if we are doing it in a way that makes for good assessment. The credibility of our multiple choice questions as sound assessment tools is particularly important given the high stakes testing that goes on in so many law school classrooms. When the great bulk, if not the entire portion, of a student's grade hinges on a single 3 or 4 hour exam, it is our duty to take advantage of the available tools to ensure that our exams function as credible assessment tools.

Monday, November 4, 2013

The Weight of Capital Punishment on Jurors, Justices, Governors, & Executioners

By Adjunct Professor Paula Mitchell

This op-ed originally appeared on

Capital punishment in the United States is often considered in terms of its constitutional vulnerability. Does it violate the Eighth Amendment's prohibition on cruel and unusual punishment? Is the delay in the appeal and post-conviction remedy process cruel and unusual? Are condemned inmates provided with adequate representation during capital trials? Is the death penalty evenly applied? These are some of the legal issues at the heart of longstanding legal debates over our use of capital punishment.

But on a more practical level, any debate over the efficacy of the death penalty should also include a discussion of the enormous psychological toll capital punishment takes on jurors, Justices, Governors, and even executioners. These individuals have been speaking out with greater force recently about how it feels when the responsibility of taking the life of another person falls on the shoulders of an individual.

Perhaps that is what Justice John Paul Stevens (Retired) had in mind when he stated last year:

"I really think that in regard to the death penalty . . . I'm not sure that the democratic process won't provide the answers sooner than the court does, because I do think there is a significantly growing appreciation of the basic imbalance in cost-per-person benefit analysis. And the application of the death penalty does a lot of harm, and does really very little good."

Continue reading

Friday, November 1, 2013

Policing L.A.'s Sheriff

By Professor and David W. Burcham Chair in Ethical Advocacy Laurie Levenson

This op-ed originally appeared in the Los Angeles Times.

It is time to seriously consider a civilian oversight board for the Los Angeles County Sheriff's Department. The Board of Supervisors is scheduled to consider such a proposal next week. If approved, it could be a big step toward remedying some of the ongoing problems in our county jails.

The last few years have been tough for the department, which has been plagued by jail scandals, committee inquiries and even a federal investigation. Despite the efforts of committed professionals within and outside the department to monitor abuses in the jail system, the problems have continued. Meanwhile, the public has only been invited into the process once the situation has reached crisis dimensions.

A citizen oversight board has the advantage of providing a constant outsider view of the operations of the Sheriff's Department, very much in the same way that the Los Angeles Police Commission monitors the Los Angeles Police Department. Rather than gearing up to deal with the next inevitable crisis, the Board of Supervisors should focus on what monitoring will be the most effective in preventing scandals in the first place.

Thursday, October 31, 2013

In Teaching Evidence, Making the Case for Cases

By Associate Professor Kevin Lapp

I've previously stated my enthusiasm for the problem-based approach to teaching evidence. Embracing the use of problems necessarily means that my students are not reading a lot of cases. Indeed, the textbook that I use has only a few case excerpts that are longer than a paragraph, and does not contain a single case that is reproduced in its entirety. Despite my preference for using problems, I recognize that there are drawbacks to not assigning cases for reading. In this post, therefore, I want to push back against myself a bit and make the case for using judicial opinions in Evidence class.

First, though, a few brief thoughts on what I like about problems. One distinct advantage is that problems are shorter than judicial opinions. Instead of procedural history, or factual recitations, or statements of the governing law, problems get right to work, providing students with all the information that I want them to have in order to focus their attention on the things I want them to focus on (and nothing more). It's much cleaner to have a crafted problem that is one paragraph long than it is to have a 2 page case that includes facts that aren't relevant or important to the rule that the case discusses. Another advantage is that I craft problems that allow me to change the facts very easily to illustrate the critical elements and nuances of a particular rule's application. With cases, the fact set-up is often messier, and it can be harder to offer simple factual adjustments that might change the result or bring into play a particular foundational element of hearsay exception. Finally, presenting the students with problems, instead of cases, allows me to treat the material as a puzzle to be solved (as compared to judicial opinions, which are puzzles already solved).

But there are downsides to teaching by problems. Perhaps the biggest one I've identified thus far is that my students do not get the benefit of reading a judge's organized analysis of a particular legal issue. For all their warts (which themselves can be teaching tools), judicial opinions provide models for legal analysis. They typically start with the facts, outline the relevant law (including its rationale), and then apply the specific words of the law and the underlying rationales to the facts. It's often exactly what I want my students to learn how to do. And while our class discussions about problems involve the students identifying the relevant rule and its elements, and then making arguments about the proper application of the law to the facts, the result is rarely so clean. A student may jump right to the conclusion without explaining how she got there, a student may begin with a justification (I think it should be kept out because it's not reliable) without deciding whether it was even admissible, or a student may fumble with the specifics of the applicable rule. There are, of course, teaching techniques to deal with these situations, if not reduce their occurrence. But the legal analysis we conduct in class for a problem is rarely as organized as a judicial opinion.

And that's the biggest advantage I'm discovering to using judicial opinions. Having the students state and apply the law without reading cases leaves students without models for good legal analysis. Because good legal reasoning (be it writing or oral advocacy) comes not just from practice with problems, but also from reading and hearing good examples of legal analysis, one big benefit of assigning judicial opinions is that the students are able to see an organized application of a given rule to a set of facts. That this is done as the students are first getting to know the terms of a particular rule and its rationale has me convinced that reading cases is even more valuable.

There are plenty of others benefits to using cases, such as allowing me to introduce the students to individual judges (and thus remind them that the law is applied by humans who had prior experiences before they came to the bench, and who decided other cases, etc., etc.) and giving them authority that they can reference throughout the semester.

The upshot of this is that I've found myself slowly gathering case excerpts and assigning them as supplemental reading, not because I think the factual scenarios of the cases provide particularly excellent starting points for learning the rules (I almost universally think that my problems are more finely tuned as instruments of teaching the content of the law) but because I am recognizing the benefit that my students get from the example of the judge's analysis.

One question that lingers - is it better to have the students read 3-4 short cases, or 1 case with a richer discussion/analysis? Would it be better to find cases that I can assign in their entirety, or are case excerpts acceptable? As always, your insights are welcome.

Wednesday, October 30, 2013

Voter ID: The Diversity in the Details

By Associate Professor Justin Levitt

This op-ed originally appeared in Constitution Daily.

Voter ID laws are back in the news. Curiously, the most recent action concerns one of the oldest cases.

Judge Richard Posner wrote the 2007 appellate opinion upholding Indiana's strict photo ID law -- the first legal one in the country -- against a challenge. Justice John Paul Stevens wrote the 2008 opinion for the Supreme Court upholding that upholding. Both have recently publicly mused about the merits of arguments by the judges that disagreed. That sort of reflective appreciation for the opposing view is sufficiently unusual that it has provoked a flood of commentary.

And that flood of commentary has largely lost sight of two very important distinctions. First,

ID laws are not all the same.

Every state makes sure, when people come to the polls, that they are who they say they are. It's the details of how they do this that matter. Some states compare signatures. Many see whether they can match up Social Security digits, or ask for a document like a utility bill or paycheck, off a long list. Some have a shorter list of approved documents. Some ask for a government-issued photo ID card from those who have one, and demand a special affidavit from those who do not.

And some now require specific photo ID cards from all but the legally indigent, preventing eligible voters who do not have photo ID on Election Day from casting a valid ballot at the polls. (Most such states have more lax documentary requirements for voting absentee.) Even within this category, there is variety: some accept student IDs, for example, and some do not.

Friday, October 25, 2013

Facile Turnout Stats on Voter ID: Wrong, the First Time

By Associate Professor Justin Levitt

This op-ed originally appeared in The Huffington Post.

Judge Richard Posner and Justice John Stevens wrote the 2007 Court of Appeals'majority opinion and 2008 Supreme Court plurality opinion, respectively, upholding Indiana's strict photo ID law against challenge. Their recent public musings about the merits of the dissenting opinions in those cases are sufficiently unusual to have provoked a flood of commentary.

One of these commentaries stands out. Hans von Spakovsky, who has served as a local election official, at the FEC, and at the Department of Justice, joined the mix again last week. In a piece titled "Right the First Time," Mr. von Spakovsky defends Judge Posner's original opinion upholding the ID law.

His primary argument ridicules the notion that ID has stopped some voters from casting their ballots, by pointing to Indiana's consistent turnout gains since the law was implemented. Indiana's law was implemented in 2006. But turnout increased 2 percent from 2002 to 2006 (including in counties with large minority populations), increased 8 percent for Democrats and 5 percent for black voters from 2004 to 2008, increased (including for black voters) from 2006 to 2010, and increased again for black voters from 2008 to 2012. Therefore, he claims, Indiana's ID law can't possibly have hurt voters, particularly minorities.

I don't know if Mr. von Spakovsky will talk about Kansas: After Kansas implemented a strict ID law in 2012, black turnout dropped by 2 percent, and Latino turnout dropped by 21 percent.

Conclusions about the role of ID from either set of numbers are, of course, nothing but garbage. They should fail Statistics 101 at any school in the country.

Continue reading the remainder of this post on

Monday, October 21, 2013

Can Executive Officials 'Veto' Initiatives Passed by the Voters?

By Professor Karl Manheim and Adjunct Professors John S. Caragozian and Donald Warner

This op-ed originally appeared in the Oct. 21 edition of the Los Angeles Daily Journal.

A case has reached the 9th U.S. Circuit Court of Appeals that may further determine the fate of the initiative process in California. In Vivid Entertainment v. Fielding, No. 13-56445 (9th Cir. filed Aug. 20, 2013), the court is being asked whether an initiative will be invalidated, even after its constitutionality has been upheld at trial, because executive officials have abandoned its defense.

Vivid follows on the heels of Hollingsworth v. Perry, decided by the Supreme Court in June. In Hollingsworth, same-sex California couples challenged voter-approved Proposition 8, which had banned same-sex marriage. The U. S. district court ruled that Prop. 8 was unconstitutional, and state officials refused to appeal. Accordingly, Prop. 8's official proponents -- who had successfully intervened as defendants at trial -- appealed. The 9th Circuit affirmed the district court's ruling of unconstitutionality, and the proponents petitioned for certiorari.

The Supreme Court held that Prop. 8 proponents lacked Article III standing and dismissed the appeal. Chief Justice John Roberts' majority opinion stated that only state "officials" may represent the state's interests in defending a voter-enacted initiative. Although the California Supreme Court earlier had held that Prop. 8's official proponents were authorized by state law to represent the state's interests, Roberts characterized the proponents as mere "bystanders" for Article III purposes.

Vivid challenges another voter-passed initiative, and elected officials are again refusing to defend it. Measure B, which was passed by Los Angeles County voters, requires, inter alia, condom use by actors in adult films made in the county. Vivid's plaintiffs -- movie producers and actors -- sued the county in U. S. district court, claiming that Measure B was an unconstitutional restriction on expression.

Tuesday, October 15, 2013

What's New and Old About Asbestos Litigation?

By Professor Georgene Vairo

On October 1-2, the ABA TIPS Asbestos Litigation Task Force held its second round of hearings at Loyola Law School, Los Angeles. The Task Force was created to study the current state of asbestos litigation and consider ways in which fairness for both claimants and defendants can be achieved. The L.A. hearing, as well as an earlier hearing in Washington, D.C., revealed deep divisions among plaintiffs' attorneys and defendant attorneys on what needs to be done to deal with current aspects of what the U.S. Supreme Court once described as an "elephantine mass." Ortiz v. Fibreboard Corp., 527 U.S. 815, 821 (1999).

A 1991 Report of The Judicial Conference Ad Hoc Committee on Asbestos Litigation 2-3 (Mar. 1991) sets forth the challenge: "[This] is a tale of danger known in the 1930s, exposure inflicted upon millions of Americans in the 1940s and 1950s, injuries that began to take their toll in the 1960s, and a flood of lawsuits beginning in the 1970s. On the basis of past and current filing data, and because of a latency period that may last as long as 40 years for some asbestos related diseases, a continuing stream of claims can be expected. The final toll of asbestos related injuries is unknown. Predictions have been made of 200,000 asbestos disease deaths before the year 2000 and as many as 265,000 by the year 2015."

We are only two years away from that date, and the asbestos litigation has morphed significantly and shows no sign of abating any time soon. Back in 1991, the Judicial Conference report identified numerous problems: growing dockets in state and federal courts; delays in getting to trial; long trials with complex issues being litigated over and over; transaction costs that dwarfed any recovery. Additionally, "the exhaustion of assets threatens and distorts the process; and future claimants may lose altogether." One piece of "good news" is that the federal MDL that was established in the same year is near completion of the resolution of most of the cases filed in the federal courts.

Monday, October 7, 2013

Much Ado About McCutcheon

By Associate Clinical Professor Jessica Levinson

This piece appears in Pacific Standard.

Shaun McCutcheon wants to make political donations to federal candidates. Allow me to clarify; McCutcheon wants to make a LOT of political donations to federal candidates. The Republican National Committee, among others, wants him to be able to do so. So what's the problem?

Currently, McCutcheon can give $2,600 per election directly to a federal candidate, a total of $48,600 per election to all federal candidates, and $74,600 per election to federal political party committees and political action committees, or PACs, that give money to federal candidates. Put another away, McCutcheon (and other individuals) are subject to a $123,200 per election aggregate contribution limit with respect to candidates, political parties, and PACs. McCutcheon, a general contractor living in Alabama, would like to change that. The result is the latest and greatest campaign finance question to hit the high court since Citizens United.

In the early 1970s, in the wake of the Watergate scandals that lead to the resignation of President Nixon, Congress implemented the nation's first comprehensive campaign finance law. The law limited how much could be given to and spent by candidates, how much could be spent by independent groups and organizations, required that certain donations and expenditures be disclosed to the public, and created a system of public campaign financing for presidential candidates.

In 1976, in a decision that remains the bedrock of campaign finance law, Buckley v. Valeo, the U.S. Supreme Court essentially accepted half of Congress' attempt to regulate money in politics. The court upheld limits on contributions, disclosure provisions and the public financing program. However, the court struck down limits on spending by candidates and independent organizations. In the court's patchwork opinion it upheld the limits on the total amount of contributions that donors could give to candidates, political party, and other political committees, finding that those limits were a way to prevent the evasion of the direct limits on contributions from individuals to candidates. The court's analysis is less than satisfying on this point. In the almost 40 years since that decision much has changed regarding campaign finance laws. Money now flows relatively freely, and in some cases in undisclosed amounts, through our political system. But the aggregate limits on contributions have stood.

Now the Supreme Court appears poised to change that and the only question for McCutcheon is how big his likely win will be. In order to determine the size and scope of McCutcheon's potential victory, we need to look at the current state of the law.

Friday, October 4, 2013

Al Bahlul, Conspiracy, and the Misuse of History

By Professor David Glazier

This piece originally appeared on Lawfare.

The oral arguments in Monday's D.C. Circuit en banc review of Ali Hamza al Bahlul's military commission conspiracy conviction essentially came down to competing views of history. The government concedes that conspiracy is not a recognized war crime under international law. But rather than accepting chief prosecutor Brigadier General Mark Martins' plan to move forward using more credible charges, the Justice Department argued that the Guantánamo commissions can try conspiracy based on historical U.S. practices. Relying largely on research by prosecution team member Haridimos Thravalos (discussed on Lawfare here and here), the government asserts the existence of a "domestic" U.S. law of war which includes conspiracy to overcome concerns that its initial codification in the Military Commissions Acts of 2006 cannot be applied retroactively. Al Bahlul naturally disagrees.

After reviewing each authority cited by Thravalos' article and the government's briefs, I believe that al Bahlul has the best of this argument for reasons I expressed to the court in an amicus briefand have more fully developed in a draft law review article available here. As I see it, there are two basic flaws in the domestic law arguments:
(1) Virtually every credible reference to the law of war, including the sources the government relies on, describes the law of war as being part of international law. 
(2) None of the cases cited as domestic "law of war" conspiracy prosecutions really stand up to exacting scrutiny. On closer examination, each one seems to (a) represent the prosecution of completed, rather than inchoate, conduct; (b) ground the conspiracy charges in domestic legal jurisdiction under martial law or military government rather than the law of war per se; or, (c) use conspiracy as a mode of liability rather than charging conspiracy as a substantive offense.

Tuesday, October 1, 2013

Introducing our Inaugural Guest Journalist Blogger

I am excited to announce a new Summary Judgments feature: the Journalist Guest Blogger. We see this as a way for those who report on the law to weigh in on its inner workings. And not many reporters know the law better than Gina Barton, whose investigative reporting on law-enforcement and criminal-justice issues at the Milwaukee Journal Sentinel has earned her a series of prestigious journalism awards. We are proud to count Gina as an alumna of the first class of our Civil Justice Program's Journalist Law School and honored to present her as the first Summary Judgments Journalist Guest Blogger.

-Associate Dean Michael Waterstone

Legal Community Divided over Standard of Review in Suspect's Death

By Gina Barton, Guest Journalist Blogger
Reporter, Milwaukee Journal Sentinel

What is the definition of an intentional failure?

Debate over the answer to that question divides the legal community in Milwaukee after the death of Derek Williams, who died after gasping for breath and begging for help in the back of a Milwaukee police car.

Officials at the Milwaukee Police Department, Milwaukee County District Attorney's office and at the city's civilian Fire and Police Commission all watched a squad video that captured Williams' eight-minute struggle to breathe and concluded officers did nothing wrong.

After an investigation by the Milwaukee Journal Sentinel, which included a 10-month battle for a copy of the video, the medical examiner's office changed its ruling on the manner of death from natural to homicide. As a result of the revised findings, the district attorney re-opened the case, appointing a special prosecutor and calling for an inquest.

Tuesday, September 24, 2013

Ripe for Resolution: Ending Taxpayer Expenditures on Pointless Litigation

By Adjunct Professor Paula Mitchell

This post originally appeared in the Courts and Procedure section on Verdict by Justia.

When the Supreme Court decided Ryan v. Gonzales earlier this year, it created an interesting dilemma for federal courts in death-penalty states.  The Court held that federal courts are not required to stay habeas corpus proceedings for death row inmates who are mentally incompetent and unable to assist counsel in their post-conviction proceedings.  "Where there is no reasonable hope of competence, a stay is inappropriate and merely frustrates the State's attempts to defend its presumptively valid judgment."  Whether to grant a stay was left to the discretion of the district court.

Typically, a defendant who has been sentenced to death spends decades on death row challenging his conviction and sentence in direct appeals and habeas corpus proceedings, in both state and federal courts.  During that time, it is not uncommon for a condemned inmate to experience a decline in his or her mental competency due to any number of factors, including the mental deterioration that comes with years of living in harsh conditions or in solitary confinement.  Before Gonzales, when capital habeas proceedings were pending before a federal district court, and the inmate (or, "petitioner") was unable to assist his counsel in those proceedings, the district court would frequently "stay" the proceedings to provide the inmate with an opportunity to seek mental health care intended to return him or her to competency so that the petitioner could assist his or her counsel.

After Gonzales, however, federal courts are directed to deny requests for stays in state capital cases where there is "no reasonable hope of competence."  This leads to an absurd result.  Petitioner's counsel will now have to continue pursuing costly habeas corpus litigation of the merits of their mentally incompetent clients' constitutional claims.  If the petitioner's claims are successful and his conviction or sentence or both are reversed, the state will be unable to retry the case in most cases, due to the inmate's lack of competency.  In most states, those petitioners will remain on death row, even though their convictions or sentences were found to be constitutionally infirm and they are entitled to a new trial. And if the state prevails and the federal court upholds the conviction and sentence, those seriously mentally ill inmates will remain on death row, even though the state will in many, if not most, cases never carry out those death sentences because the inmates will not, in all likelihood, ever regain competency and become eligible for execution.  (SeeFord v. Wainwright, where the U.S. Supreme Court held that "the Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane.  Whether its aim be to protect the condemned from fear and pain without comfort of understanding, or to protect the dignity of society itself from the barbarity of exacting mindless vengeance, the restriction finds enforcement in the Eighth Amendment.").

Thursday, September 12, 2013

How Asia Works: Success and Failure in the World's Most Dynamic Region by Joe Studwell

By Professor Jeffery Atik

This post originally appeared on Attravero: Jeff Atik's Commentary on International Banking and Finance.

Pity Joe Studwell. He has written a very intelligent, very thoughtful book. You might not agree with much of it; I have my doubts about his recipe. But there is little doubt what the book is: an exercise in economic history, with a focus on a peculiar developmental pathway followed by a few highly successful (generally northern) east Asian countries and not followed by certain (largely southern) east Asian countries. And geography has nothing to do with these diverging outcomes.

So poor Studwell delivers this intelligent book to his editor - one imagines - who decides it needs a snazzy title. Regardless of whether the title describes Studwell's book. Studwell writes about 'How Certain Asian Countries Developed' - not about 'How Asia Works'. He has very little to say in How Asia Worksabout how any of Asia works today - again, he is an economic historian. And he makes no claim within the book's pages that Asia is 'the World's most dynamic region.' Poor Studwell.

He can take comfort from having written a provocative book, which challenges much of the prevailing orthodoxy in developmental economics. And he's obviously willing to horrify both left and right - praising Robin Hood-esque land reform (but not agricultural collectivization), autocratic leaders who impose export discipline on their cronies, and the elegant effectiveness of capital controls.

Studwell examines the East Asian development successes (Japan, Korea, Taiwan, and China) and the laggards (Malaysia, Indonesia, Thailand, and the Philippines). The winning path, according to Studwell, involves three distinct phases ("one, two, three," he calls these in his concluding chapter). These three phases are a recipe for developmental success, they form the "same stretch of the river" that poor countries must navigate.

The first stage requires equitable land distribution to absorb labor and capture the productivity gains associated with moving to garden-style agriculture by small family landowners. The magic here is that everyone works - and most start at the same base. Garden intensity agriculture yields very low returns on labor but enhanced returns on land - it permits the accumulation of small surpluses that can be used to fund imports of necessary technology.

Tuesday, September 10, 2013

Rebuilding and Restoring the Golden State

By James Gilliam, Guest Alumni Blogger

Given the poverty crisis plaguing California, I was excited to have the opportunity recently to attend a Community Legislative Briefing hosted by The California Partnership -- of which the ACLU of Southern California is a proud member -- a diverse coalition of health, human service, labor, low income, immigrant rights and civil rights community-based organizations that have come together to fight poverty in our state.

The ACLU of Southern California believes that economic justice and civil liberties are inextricably intertwined. Indeed, basic economic rights are an essential prerequisite for the full and fair functioning of democracy in the United States and for the development and flourishing of civil liberties. So, we were excited to host this diverse group of community members, lawmakers, and advocates to discuss various policy proposals that, if enacted, will all come together to rebuild and restore our Golden State.

Budgets are about choices and priorities. Will California choose to reinvest in safety-net programs after $15 billion in health and human services programs were slashed in the last four years alone? Will California choose to expand its already bloated prison system instead of prioritizing cost-effective and evidence-based alternatives to incarceration that strengthen public safety while reducing over-incarceration? Will California choose to close the widening income inequality gap by passing and implementing common-sense policy changes?

Monday, September 9, 2013

The Importance of Writing Assignments in Evidence Courses

By Associate Professor Kevin Lapp

This is one of a series of guest posts on teaching Evidence at EvidenceProf Blog.

As I said before, Evidence strikes me as an ideal second-year course to incorporate skills exercises into the curriculum, so that students don't just learn the rules, but learn how practicing lawyers prepare for and resolve Evidence law issues. Aided by the problem-based approach of many Evidence textbooks, it's quite easy in the classroom to provide students with the facts of a case and some proposed testimony and to then have one or more students argue for the admissibility of the testimony while others argue for exclusion. This gets them to do the important work of applying the rule they've just learned, has the benefit of them doing so while in role as a lawyer with a particular goal, and ensures that they hear and consider both sides of the issue.

Yet, while many evidentiary issues arise in the middle of witness testimony, and require the quick-thinking objections and oral argument skills that can be developed via classroom discussion or exercises, a lot of evidentiary issues are resolved pretrial via motions in limine. And it is quite a challenge to include legal writing exercises in the Evidence course curriculum for a host of reasons. But I think it is a challenge that deserves to be confronted and overcome. Simply put, no student should leave an Evidence course without having drafted a short motion in limine.
There are several reasons for including a motion in limine assignment (beyond the fact that they are a important component of actual practice).

Friday, September 6, 2013

Latest on Universities and Slavery

The following originally published on The Faculty Lounge.

Loyola Law School Professor Yxta Maya Murray's article "From Here I Saw What Happened and I Cried: Carrie Mae Weems' Challenge to the Harvard Archive" has just appeared in volume 8 of Unbound: Harvard Journal of the Legal Left. It tells the really interesting story of a dispute between the artist Carrie Mae Weems and Harvard's Peabody museum over the use of photographs that Louis Agassiz took of enslaved people that he hoped would support the theory of poly-genesis that he embraced (along, I might note with Alabama's Josiah Nott). The article explores Agassiz' purpose in collecting the pictures, their re-discovering in the 1970s at Harvard, and the controversy over their use. While I usually emphasize Harvard's contributions to the anti-slavery cause, this story reminds us again of the connections between Harvard and racial thought in the pre-Civil War era.

Cribbing a little from the article:

In the same year as the enactment of the 1850 Fugitive Slave Act, Agassiz toured South Carolina plantations and decided to defend his polygenesist position by resuming his collecting habit. But this time he would collect live people, not animals, bones, or plants. For this purpose he enlisted Dr. Robert Gibbes, a Morton acolyte, who led Agassiz on a tour of the plantations. On this expedition Agassiz selected Delia, Jack, Renty, Drana, and others for their supposedly instructive appearances. He ordered Gibbes to "gather corroborative photographic evidence" of them, and then retreated to Harvard. Gibbes hired one J.T. Zealy to take nude pictures of them at Zealy's studio in the two attitudes that make up the series, being headshots and full body shots. The record of what happened to the pictures here dwindles. .... [T]he daguerreotypes fade from history until their discovery in the Peabody attic in 1976.

Agassiz would trigger Carrie Mae Weems' show, From Here I Saw What Happened. Weems found much to comment on with photo-metrists like Galton. ... Inspired by Georges Cuvier's 1815 dissection of Sarah Baartman, the original, doomed Hottentot Venus, Galton conducted his own infamous study of yet another "Venus." He encountered this second goddess on his journeys, and measured her every square inch with a sextant. In 1859, when his cousin, Charles Darwin, had published The Origin of Species, Galton's enthusiasm for measuring racial attributes merged with a conviction in White supremacy he felt was assured by Darwin's work. Back in Europe, Galton expanded on his practice of measuring people he believed resided on the lower reaches of the Great Chain of Being.

Thursday, September 5, 2013

The Org: The Underlying Logic of the Office by Ray Fisman and Tim Sullivan

By Professor Jeffery Atik

It feels odd to be composing this review of Ray Fisman and Tim Sullivan's The Org in the days following Ronald Coase's passing. Coase was an unusually creative and influential thinker - one who identified some basic truths of organizational life that had not been generally recognized: the kind of simple things that, once pointed out, cannot fail to be seen.

Coase and the work that followed Coase form much of the subject matter of The Org, a book-length meditation by Ray Fisman and Tim Sullivan on the science of the organization. Indeed, Fisman and Sullivan launch the book with the story behind Coase's posing of the grand question: "Why orgs?" Young Coase travels to Chicago, meets with managers, and reads the Chicago phone book. He is struck by the range of scale and activities pursued by the firms he finds. Why then, asks Coase (and ask Fisman and Sullivan), are some activities conducted within firms and others between firms (that is, via the market)? Coase's answer (transaction costs) may or may not be correct ('transaction costs' always seemed to me to be a convenient label for a still elusive explanation, almost a tautology); what is important is the question.

Organizations are mysterious. We fit them on like suits of clothing - and instinctively know how to push and pull their levers. Fisman and Sullivan focus on what happens within the firm - how organizations compel human agents (because that's what we are) to pursue organizational goals. The resort to organization is by and large a given. At this point, they collect the principal/agent mysteries that form much of the challenge to understanding how firms work. Fisman and Sullivan do not confine themselves to business organizations in The Org - indeed their best coverage involves organizations that are not business firms: the Baltimore police department, Methodist churches and the military.

Tuesday, September 3, 2013

With Evidence, Balancing Coverage and Class Time

By Associate Professor Kevin Lapp

This is one of a series of guest posts on teaching Evidence at EvidenceProf Blog.

A comment by Frederick Moss to a prior post raised the important question of coverage in an Evidence course. Even for those with the luxury of 4 credit hours each week, there simply isn't enough class time to cover the material and accomplish all that might be accomplished in a law school course.  I'm happy to entertain thoughts on what content gets bumped when the clock is running out - burdens of proof; trial mechanics; the best evidence rule; authentication; scientific evidence. Personally, I haven't yet found room for a one-hour lesson on the limits of eyewitness testimony, which I would love to add to my course.

But coverage is not just a content issue. As the push for more practical training continues (a push I endorse), there is no reason for doctrinal courses to ignore practice skills. Indeed, in these leaner times, doctrinal courses may be the best place to insert practical training into the curriculum. And in my mind, the Evidence course is a perfect place for law school to include lawyering skills alongside the learning of fundamental doctrine. I'm trying to incorporate some skills mini-exercises throughout my course (such as in-role oral arguments in class, and short writing assignments akin to motions in limine), but making time for those requires bumping topics that I already decided couldn't get bumped.

Tuesday, August 20, 2013

The End of Power: From Boardrooms to Battlefields and Churches to States, Why Being in Charge Isn't What it Used to Be by Moisés Naím

By Professor Jeffery Atik

Moisés Naím sees the decline of power across many institutions. He is at times wistful, at times celebratory in his reaction to power's decay. But he isn't entirely clear why we should care about the passing of power. The powerful do care; Naím has many powerful friends who lament power's loss of magic. Popes, pols and pundits just don't get the respect their predecessors received; their authority is more circumscribed, more readily challenged (the same decline is noted by law professors). But for the greater number of us, who are in more settings objects of the power of others than detainers of power, the end of power is not a self-evident cause for concern.

A decline in social organization is a cause for concern - and to the degree the phenomena described in The End of Power signal a loss of capacity for coordination, Naím's book is more than an indulgence of ambivalent nostalgia. Naím is careful with his definition of power: power is the ability of some few - the powerful - to direct the actions of others. And, he asserts, there are four means by which power is exerted: muscle (force), code (tradition), pitch (persuasion), and reward (incentive).

Naím is a superachiever who has spent his life at or close to the top. He was a prominent politician in Venezuela - and since has become a heralded writer in the United States. As such, his personal prescription, given toward the end of The End of Power, is quite surprising. Get off the elevator, Naím urges. And by this he calls for an abandonment of mindless ambition and more; elevator thinking is the focus on rank and hierarchy, which promotes power as an end in itself.

Friday, August 16, 2013

Symposium: Aggregate Limits and the Fight over Frame

By Associate Professor Justin Levitt

The following essay is part of a SCOTUSBlog online symposium on McCutcheon v. Federal Election Commission.

Photographs purport to show objective facts. But whether they illuminate or distort our understanding of the world depends entirely on choices -- of lens, of frame -- that the photographer has made. Much of constitutional law is the same: the choice of lens and frame drives the Supreme Court's understanding of our rights and obligations. Without recognizing this truth, it is virtually impossible to understand the Court's campaign finance jurisprudence.

McCutcheon v. Federal Election Commission offers a dizzying fight over lens and frame. The briefs presented to the Court zoom from micro to macro and back, often within sentences of the same brief. The basic structure of the reason for the fight, at least, is clear. McCutcheon is about aggregate caps on contributions to federal candidates, party committees, and PACs that donate to candidates and parties. There are limits on what I can give to any individual federal candidate. And then there are limits on what I can give to all federal candidates, total. The same is true for parties and PACs. This case is about the totals.

From the flattest perspective, this case has already been decided. This case challenges aggregate limits. Buckley v. Valeo (1976), the progenitor of the modern campaign finance regime, upheld a system of aggregate limits. Easy. How to view aggregate limits
Much too easy. Buckley's 294 pages cover the entirety of the landmark Federal Election Campaign Act. It gave aggregate limits six sentences. Two of the six were devoted to describing the limits. One noted that the issue had "not been separately addressed at length by the parties." Three more disposed of the substance. This Court is unlikely to believe that its focus is confined by those three sentences. (Similarly, granting cert. to revisit these three sentences provides little reason to believe that the Court is interested in revisiting Buckley entirely.)
Another shallow lens simply looks to conventional wisdom, and the caricature of a relentlessly deregulatory Court. Citizens United looms, larger than life. Like Citizens United, the legislation challenged in McCutcheon also constrains campaign-related cash. And like Citizens United, the challenge has been brought in part by James Bopp, who has a remarkable record before the Court. Easy.

Wednesday, August 14, 2013

Treating America's Drug Use Outside the Prison System

By James Gilliam, Guest Alumni Blogger

Eric Holder's recent announcement at the American Bar Association's Annual Meeting that he is taking steps as Attorney General to tackle the bloated federal mass incarceration crisis comes at a crucial, and welcome, time. Indeed, preventing the use of the most severe federal drug penalties for people convicted of low-level drug offenses represents an important first step toward a fairer criminal justice system and will begin to curb the overcrowding issue that most every prison in the United States faces.

Now is the time for California -- a state the United States Supreme Court already ordered to reduce its prison population -- to follow Holder's lead. As in the rest of the nation, far too many people are locked up in California for far too long -- people we don't need to keep behind bars to ensure public safety. Rather than base our criminal justice system on knee-jerk, one-size-fits-all reactions like incarcerating people for offenses that could be better dealt with through substance abuse treatment, it is time for California to shift toward solutions that will create safety for California families and communities, while enabling those who have paid their debts to become productive citizens. There's no question that attempting to re-integrate into society is much easier to do without the lifelong barriers that follow a felony conviction, including obstacles to housing, employment, and even public support.

Monday, August 5, 2013

Of contributions and expenditures and the land in between

By Associate Professor Justin Levitt

This commentary was cross-posted to the Election Law Blog.

In the world of campaign finance, the constitutional distinction between contributions and expenditures has been one of the primary, comparatively stable, fault lines.  This has been true since at least since Buckley v. Valeo, the progenitor (and for some, original sin) of the modern campaign finance regime.  The Court has relatively consistently reviewed limits on most expenditures with greater scrutiny than limits on contributions. 

In the Supreme Court’s latest foray into campaign finance, the McCutcheon v. FEC case to be argued this fall, plaintiffs are arguing that the regulations in question blur the categories.  Those regulations impose aggregate limits on donations to federal candidates, parties, and PACs that give to candidates.  I may give no more than $5,200 to any individual federal candidate over a two-year campaign cycle.  In that same period, I may give no more than $48,600 to federal candidates, total.  McCutcheon is about the latter, total, limits.

The McCutcheon plaintiffs have argued that these aggregate limits are something of a hybrid, and ultimately more like expenditures than contributions.  Bob Bauer, here, also finds the distinction blurry, noting that the rules restrict “the total amount that a contributor can spend on contributions.”

Monday, July 29, 2013

Introducing Guest Alumni Blogger James Gilliam

It is with great pleasure that I introduce our third guest alumni blogger: James Gilliam '03. James has long been a champion of social-justice issues -- a topic area on which he will blog in this space. James teaches the Public Interest Law Practice Seminar, Sexual Orientation and the Law and other subjects as an adjunct professor at the Law School, where he was a public interest scholar. James has served as the deputy executive director of the ACLU of Southern California since 2010. Previously, he was a litigation associate and associate pro bono coordinator at Paul Hastings, where he helped the firm notch its first appearance on The American Lawyer's "A-List Pro Bono Score Card."

-Associate Dean Michael Waterstone

In time of change, an affirmation of the power of the law

By James Gilliam, Guest Alumni Blogger

Twenty years ago, I attended my first gay Pride celebration in my hometown of Nashville, Tenn. It marked the beginning of my advocacy on behalf of the LGBTQ community -- and has informed all that I have done since. This is the work that drives me.

Over the past two decades, the tools I've used to enact change have evolved as I have continued my education. I began my career in the LGBTQ movement as the director of the organization that produced the Pride event in Nashville. But I soon learned the power of the law. City officials tried, time and again, to block the celebration. They increased the number of costly, off-duty police officers we had to hire to provide security. They demanded, the morning of the event one year, that we display documents proving that our tents were flame retardant. Every year but one, they refused to close the main street for our parade. When necessary, we threatened a lawsuit; and each time, our celebration proceeded.

I wanted to wield the power of the law for good. So I came here, to Loyola Law School, on a public interest scholarship. When I graduated a decade ago, many states still considered gays and lesbians criminals. Just months later, while I was studying for the bar exam, I witnessed the law serving as an agent of justice: In Lawrence v. Texas, the U.S. Supreme Court held that Texas's law -- which criminalized sexual acts between same-sex partners, but not partners of the opposite sex -- was unconstitutional.

Thursday, July 25, 2013

Prof. Levenson reviews Rebels at the Bar: The Fascinating, Forgotten Stories of America's First Women Lawyers

By Professor Laurie Levenson

Professor Laurie Levenson recently reviewed Rebels at the Bar: The Fascinating, Forgotten Stories of America's First Women Lawyers in the Los Angeles Review of Books. Excerpt:
The book jacket may say it all. Three of the most prominent women scholars of our time, Stanford's Deborah Rhode (Ernest W. McFarland Professor of Law) and Barbara Babcock (Judge John Crown Professor of Law), and Yale's Linda Greenhouse (Knight Distinguished Journalist in Residence and Joseph M. Goldstein Senior Fellow at Yale Law School), describe Jill Norgren's, Rebels at the Bar: The Fascinating, Forgotten Stories of America's First Women Lawyers, as providing "detail and lively prose," told "with awe and gratitude," and a tribute to "bold, brave women." Yet, that is not the real story. The real story is told by the titles of each of these modern women legal luminaries. Each holds a prestigious title at a prestigious law school in the name of -- prestigious men.
Rebels at the Bar describes the struggles of a handful of women who sought to break the gender barrier for women becoming lawyers in the 19th century. Who were these women and what prompted them to fight the good fight? How did they manage to "lean in" when there were no harnesses to hold them? Norgren tells the story of how they clawed their way into the legal profession -- they did not have it easy. While today's women lawyers still struggle for equality, there is no doubt that our path was made possible by the sacrifices of these pioneers. They started the journey for us. The least we can do is pay attention to the lessons they learned.
Read the full review.

Wednesday, July 24, 2013

The Entrepreneurial State: Debunking Public vs. Private Myths by Mariana Mazzucato

By Professor Jeffery Atik

This review is cross-posted from Jeff Atik's blog, Attraverso.

From start to finish of this superb book, I want Mariana Mazzucato to be right. In The Entrepreneurial State, Mazzucato suggests that the state has had a much more powerful role in stimulating innovation that the dominant narrative admits. The state pushes the key breakthroughs; private firms enter the game quite late (though they often capture an inordinate amount of the social gains from innovation).

Mazzucato's book is timely (indeed, it has had a considerable impact in Brussels), as countries shift away from austerity policies and look towards Keynesian-style spending to get their economies moving. Keynes famously suggested burying a treasure in an abandoned mine as a make-work project (his point, of course, was not to endorse pointless exercise; rather, he meant to show that pure make-work could act as a stimulus). Mazzucato argues countries can improve on Keynes by spending on state entrepreneurship. In a best-case outcome, state-sponsored innovation will shock the economy back to expansion and will lead to frontier-shifting welfare gains.

And maybe it would - if the political class could be convinced by Mazzucato's account of the hidden state-centric nature of innovation. Her recent historic examples involve pharmaceuticals and information technologies. The private drug development narrative is deliberately cultivated by Big Pharma: bold firms undertake massive R&D in their laboratories, to be rewarded (in the event of success) by patent monopolies. Big Pharma asks to be 'left alone' by the State: no tort liability and quick market approvals are the best policies. In fact, Mazzucato observes, it is the state that undertakes the greatest risks in developing new approaches and active agents, through public funding (such as NIH grants in the United States) of medical research. Left to their own devices, Big Pharma would undertake little research; indeed, the current trend among large pharmaceutical firms is to reduce R&D expenditure and to look to smaller, research-oriented firms to do later-stage development work, then in-licensing or acquiring fairly proven projects. But without the substrate of state-funded science, even this system would grind to a half.

Monday, July 15, 2013

The Great Degeneration: How Institutions Decay and Economies Die by Niall Ferguson

By Professor Jeffery Atik

This review was originally posted on Jeff Atik's Blog, Attraverso.

The civilized world is falling apart in Niall Ferguson's view. The world of Ferguson's concern comprises the United Kingdom and the United States, which (in sequence) have enjoyed long periods at the top. In The Great Degeneration, Ferguson signals the decay afflicting our central and defining institutions. Ferguson mixes nostalgia with alarm: nothing is as it was. Unlike Acemoglu and Robinson, who give an institutional account of why poor countries remain poor in Why Nations Fail (reviewed here), Ferguson tells us why great nations decay, why ours is degenerating.

Although Ferguson distances himself from those who give a purely cultural account for the rise of British and American prominence, he celebrates the particular constellation of democracy, capitalism, rule-of-law and voluntarism found nowhere else. A sequence of accidents may have created our cheerful and wealthy societies. The reduction in the Great Divergence seems to concern Ferguson most: the ratio of our well-being to that enjoyed by the rest of the world (as if a more equitable distribution were a bad thing).

If great (though quirky) institutions served us in the past, their present 'degeneration' is a cause for concern. Ferguson divides The Great Degeneration into four short essays, each devoted to an institutional category displaying distinctly Anglo-American characteristics. These are democracy, capitalism, rule-of-law and a civil society marked by voluntarism. The book is a write-up of a series of lectures Ferguson presented on the BBC, summarizing and synthesizing his earlier work. Ferguson's argues that institutions and not culture were the central determinants of the Great Divergence. Yet he also sees the 'intergenerational partnership,' the awareness and the willingness to act publicly on behalf of future generations, as foundational. The better democracy we practiced in the past was wiser; perhaps we didn't think about our neighbor, but we certainly thought about our grandchildren. (Fear not - the last thing Ferguson will address is climate change - he supposedly believes it a hoax.)

Wednesday, July 10, 2013

I Am Luscious, and Other Campaign Slogans

By Associate Clinical Professor Jessica Levinson

This op-ed was originally posted on Pacific Standard.

I have a new idea to increase civic engagement, and it is all about vegan food.
Some background for the non-hipsters out there. So all three of you, listen up. There is a vegan restaurant with locations, unsurprisingly, in Los Angeles, Santa Cruz, and Berkeley, the birthing centers of true hipster culture. The fun (or perhaps failure, depending on your perspective) of this chain is how they name their dishes: Each is a personal, positive, declarative statement. Instead of rice with lentils, you'll order the "I Am Humble." Feel like hummus and pesto? You'll dine on the "I Am Abundant."

If you're a rain-on-your-parade curmudgeon like me, you'll do your best to avoid ordering the dishes by their given names. Instead of confidently telling my server, "I Am Terrific," I prefer to spend three minutes describing the dish, which is, as the name fails to indicate, made of kelp noodles. One of my very favorite dining companions suggested that I should "pick my battles," but the opportunity to avoid announcing, "I Am Liberated" (another kelp noodle dish) is well worth the time I spend boorishly pointing at the menu.

Monday, July 1, 2013

With Housing Crisis, State Bar Helps Pave Road to Recovery

By Patrick Kelly, Guest Alumni Blogger

While the housing market finally seems to be rebounding, the effects of the foreclosure crisis continue to reverberate throughout California. Many homeowners are still struggling and in need of help in order to save their homes. The State Bar of California, in partnership with the Office of Attorney General Kamala Harris, has stepped up to provide assistance.

In November, Harris announced a $10 million grant program for organizations that provide housing counseling and legal services to homeowners. The funds were secured through the National Mortgage Settlement . The State Bar offered to help administer the new grant program, in conjunction with the Attorney General's Office. Because the State Bar already administers legal services grants, we were able to offer our help at no cost to taxpayers. That means that the entire $10 million will go to the people who are struggling and need it most.

The State Bar has been compiling and processing dozens of applications to help the selection teams set up by the Attorney General's Office make funding recommendations to the Attorney General. These applications are from legal aid organizations and other nonprofits proposing innovative, scalable and sustainable approaches for helping California families dealing with a foreclosure crisis. About $9 million is going toward Consumer Assistance Grants, which will give families the resources they need to achieve longterm financial security, including counseling, legal representation and financial planning assistance.

The Buy Side: A Wall Street Trader's Tale of Spectacular Excess by Turney Duff

By Professor Jeffery Atik

This review was originally posted on Jeffery Atik's Blog Attraverso.

The Buy Side is part tell-all, part movie treatment and part self-therapy. Turney Duff presents the rise and fall of a Wall Street trader (Duff himself, or a character resembling him) in the years leading up to the 2007/2008 financial crisis. Duff is well on the way to crashing long before the crisis hits; The Buy Side is a story of self-absorption, addiction and perhaps (though it does not arrive by book end) redemption.

Duff would have us believe that he was one of those Masters of the Universe - magically in touch with the hidden rhythms of the markets, knowing just when to hit the buy or sell button. And his sure-footed ascent is predictable. He deftly passes from sales to the Buy Side - the trading firms who engage the fawning brokers to execute their transactions. The Buy Side may or may not be where the big compensation is - but it's certainly where the perks lie. And Duff relishes the Buy Side life: imagine buying six extra Yankees tickets in order to take out-of-park smoke breaks.

Duff claims no special savvy; he's just a party guy who attracts other party guys (and party gals). Somehow this leads to universal admiration and a seven-figure bonus check. I wonder if Duff is calculating in his modesty: it makes a better film. Still he must have had some knowledge of the health-care sector (he was heralded as an expert).

Friday, June 28, 2013

The Supreme Court Rules There Is No One Left Standing To Appeal Prop. 8

By Associate Clinical Professor Jessica Levinson

This op-ed was originally posted on Jurist

In a 5-4 opinion written by Chief Justice John Roberts, the US Supreme Court has ruled that there is simply no one left standing to appeal California's infamous 2008 ballot initiative, Proposition 8. Prop 8, as the entire world now knows, amended the California State Constitution to define marriage as between a man and a woman to the exclusion of same-sex marriages.

In the much-anticipated case, Hollingsworth v. Perry, the Court avoided the larger, and more politically charged issue potentially presented by the case: whether the Equal Protection Clause of the Fourteenth Amendment prohibits California from defining marriage as between a man and a woman. This question raises the issues of whether gays and lesbians are members of a so-called "suspect class" and whether there is a "fundamental" right to marry.

Chief Justice Roberts ruled on narrower grounds, finding that proponents of ballot initiatives lack the "standing" under Article III, ¨ 2 of the Constitution. Standing, the Court reiterated, is necessary to appeal a case in federal court.