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.

Battle Over CA's Public Records Act was Actually a Budget Deal

By Associate Clinical Professor Jessica Levinson

This op-ed is cross-posted from KCET.

Some of you may have gotten whiplash following the latest kerfuffle over California's Public Records Act (CPRA).

First, as part of the budget deal it looked like there would be limited access to government documents. Why? Because the deal provided that the CPRA would be suspended, instead of paid for from state coffers. Specifically, the state is required to reimburse local agencies for the cost of compliance. The anticipated cost of the CPRA totals in the tens of millions of dollars.

Under the budget plan, local agencies would have the ability to opt out of certain portions of the law, those requiring local agencies to help people trying to access information, provide respond to record requests within 10 days, and furnish people with electronic records when they are obtainable.

Then, predictably, there was a significant backlash. And then, equally predictably, legislators reacted. At the end of last week two State Senators introduced a constitutional amendment purportedly intended to strengthen the CPRA. State President Pro Tem Darrell Steinberg (D - Sacramento) and State Senator Mark Leno (D - San Francisco) introduced an amendment, which would require that local agencies comply with and pay the costs of complying with the CPRA.

Who's Killing the Voting Rights Act, Congress or the Supreme Court?

By Associate Clinical Professor Jessica Levinson

This op-ed was originally published by Pacific Standard Magazine
In a much-anticipated case decided Tuesday, the Supreme Court concluded that Section 4 of the Voting Rights Act, a landmark civil rights law originally enacted a half century ago to reverse the rampant disenfranchisement of Southern blacks, is unconstitutional. The VRA itself is not dead, but a key section of it is undoubtedly on life support. And while a 5-4 court majority wielded the weapon, know that Congress' inaction gave the court an excuse to take it up.

If you've been following the saga of pre-clearance, you may have expected to read that Section 5--not Section 4--was declared invalid. Section 5, after all, has gotten most of the press. Allow me to explain.

WHAT IS THE VOTING RIGHTS ACT?

Congress passed the VRA in 1965 in response to pervasive discrimination against African American voters. This landmark piece of legislation contains two key provisions.

The first is Section 2, which provides a general prohibition against any voting procedure or practice that discriminates on the basis of race, color, or membership in certain language minority groups. Section 2 was not at issue in Shelby County v. Holder but likely will begin to bear a much heavier weight thanks to the Supreme Court declaring Section 4 invalid.

Shadowboxing and Unintended Consequences

By Associate Professor Justin Levitt

This commentary was cross-posted from SCOTUS blog.

The Court today struck down a statute that did not exist. And it did so at the request of jurisdictions seeking a little extra "dignity" -- who might end up with less dignity as a result.

Formally, the Court struck the 2006 reauthorization of 42 U.S.C. § 1973b -- Section 4 of the Voting Rights Act, and a central part of the Act's preclearance regime. Its more famous counterpart, Section 5, requires certain jurisdictions to submit election changes for federal review, to ensure that they do not harm minority voting power. Section 5 sets the "what." Section 4 sets the "where," delineating which jurisdictions receive Section 5′s special medicine.

But the Section 4 that the Court struck is a curious creature -- as I'd feared, a simulacrum. The Court branded it the rote reenactment of a "formula based on 40-year-old facts having no logical relation to the present day."

This stale formula is not the coverage formula actually in the law. The formula started with 1960s and 1970s registration and turnout figures, locating the broken democracies connected to the worst discrimination. But it did not end there. It allowed any jurisdiction that had demonstrated consistent improvement in minority opportunities, without backsliding, to "bail out" of coverage.

BREAKING NEWS: DOMA struck down, Prop 8 case dismissed on standing

By Associate Professor Justin Levitt

This information was cross-posted from Election Law Blog.

DOMA has been struck down as unconstitutional. Prop 8 case from California dismissed on standing grounds (initiative proponents have no cognizable injury distinct from the general population). I haven't yet read thoroughly, but SCOTUSblog reports that neither finds a constitutional right to same-sex marriage.

DOMA decision is here; Prop 8 is here.

Both 5-4, very different majorities. DOMA is Kennedy, Ginsburg, Breyer, Kagan, Sotomayor; Prop 8 is Roberts, Scalia, Ginsburg, Breyer, Kagan.

Shelby County v. Holder Reaction Coverage

By Associate Professor Justin Levitt

These posts originally appeared on the Election Law Blog

Reactions to Shelby County: Spencer Overton
I'll be expecting several comments today on Shelby County from academics who write in the field. Spencer Overton kicks it off:
The preclearance provision of the Voting Rights Act required that all or part of 15 states submit their election changes to federal officials for approval. Today, five members of the Court ruled that the Section 4 coverage formula of the Voting Rights Act is unconstitutional and can no longer be used to require that areas preclear their election rules with federal officials. The Court invalidated the coverage formula because the Justices believed the formula was based on outdated election data from the 1960s and 1970s.
Today's Supreme Court decision is a setback for democracy.
Unfortunately, today's decision gives politicians even more power to unfairly manipulate election rules and target Americans based on how they look or talk. There is overwhelming evidence that unfair voting rules remain a very real threat--too many political operatives currently manipulate rules to diminish the voices of growing minority communities.

His thoughts continue here.

The Lost Continent By Gavin Hewitt

By Professor Jeff Atik

The challenge with European democracy is its constantly shifting notions of demos - who are the people who should exercise political determination. The current Euro crisis - and the ensuing imposition of austerity policies on Greece and Ireland, Spain and Italy - demonstrate a democratic irony. As Gavin Hewitt points out, there is nothing democratic about the adoption of austerity; austerity is not a lifestyle choice struggling countries freely assume. The Euro crisis precipitated changes of government (left to right and right to left) in the affected Member States and fierce popular backlash. Yet Angela Merkel, the physician prescribing austerity to faltering countries, responds to democratic signals given by her German electorate (who balk on bailing out their neighbors). Hewitt constructs a story where the democracy of Germany is pitted against the democracy of Southern and Peripheral Europe.

The Lost Continent focuses on national stories - and national leaders - and so at times has the feel of a tell-all. Silvio Berlusconi, to no-one's surprise, comes off the worst. His cynical disregard for anyone's interest saves his own marks, a new low in post-War Italian politics. Imagine how Angela Merkel felt upon receiving his 'political' advice to take on a lover. And even more respectable characters, such as Sarkozy, engage in behind-the-back smirkiness with regard to Merkel. But much of the focus falls on Merkel herself; we're never quite sure whether she is (as she claims) acting just like a Swabian housewife, guided by common-sense and prudence, or whether she is the instrument of peculiar German obsessions outside her control.

The Journalist Law School at Loyola

By Professor John T. Nockleby

For the past eight years, Loyola has partnered with leading Bar organizations to host the Journalist Law School (JLS). The program is an intense four-day "boot camp" in law for professional journalists. It exposes them to core concepts within our legal system, such as the structure of the courts, judicial independence and the relationships among the three branches of government. JLS also covers substantive courses including Constitutional Law, Criminal Law and Procedure and Torts. Other sessions feature panels which address "hot" topics in the legal world. This year's hot topics focused on firearms control, immigration, arbitration, mass torts and the crisis in the courts.

Journalists who participate are offered Fellowships to cover the expenses of attending. This year, the JLS committee selected 38 journalists from a pool of 240 applicants. These highly regarded journalists hailed from 22 cities throughout the United States and reported for a variety of major national and regional newspapers, television news, radio, magazines and new media.

JLS features a packed schedule, including breakout sessions that often run simultaneously to provide more individualized attention. This year, more than 50 speakers, comprised of Loyola faculty and legal experts, presented on a wide range of topics from legal ethics to drone strikes to voting rights.

Arizona: Voter Registration and the Road Ahead

By Associate Professor Justin Levitt

This commentary was cross-posted to Election Law @ Moritz.

June arrived with two election law cases at the Supreme Court. One is still pending: a highly anticipated decision on section 5 of the Voting Rights Act. The other, more frequently overlooked, was decided yesterday. And there are some quirks of the opinion that seem to depart from the swiftly congealing conventional wisdom that the states might actually have "won," and now need only run out the clock.

The case is called Arizona v. Inter Tribal Council of Arizona, Inc., but it has bounced through the courts under various names for seven years. In 2004, Arizona voters passed Prop 200, increasing identification requirements at the polls (one valid photo ID or two non-photo documents with name and current address) and requiring new voters to submit documentary proof of citizenship with a voter registration form.

There are policy reasons to question the merits of laws like these, whose costs can be larger than their benefits. Americans do not emerge from the womb with paperwork stamped on their skin, and as our Medicaid experience demonstrates, there are real individuals born in the country who do not have documentation of their citizenship readily available; the burdens on those people have to be assessed against the minimal fraud that such requirements incrementally deter, over and above prosecution and deportation. (Incidentally, it's not unusual for popular initiatives to disproportionately burden a minority of residents; that's a problem I've called to the Court's attention in the also-still-pending Prop 8 case.) But today's decision had little to do with those policy questions, or on the constitutional limits of that cost-benefit assessment.

Prof. Jeff Atik Launches New Blog Dedicated to International Finance Commentary, Book Reviews

Professor Jeffery Atik, a Sayre Macneil Fellow at Loyola Law School, launched the new blog Attraverso as an online discussion about hotly contested issues in the world of international finance, as well as a depository of his reviews of important books on related topics. From Attraverso's introductory post:

Attraverso means "through" or "across" in Italian; it has both a spatial sense (as crossing a mountain range, or a border) and a temporal sense (as across the centuries). It seemed fitting for a new online journal designed to scratch beneath the surface of global financial issues. More than ever, public debate centers around international economic topics: the financial crisis and the great recession, bank reform, pressure on the Euro, austerity and the future of hope.

Attraverso covers the roots of these issues -- and the ongoing institutional innovations proposed to address them. Attraverso is a journal devoted to commentary and reviews of books on international finance and economics. Formerly published as a series within Loyola's Summary Judgments faculty blog, Attraverso's content proved vast and rich enough to fill its own space.

International finance is an arena for ideas; it is a cultural practice. Attraverso will be the first online resource dedicated to covering books in this space. The blog is designed to be a dialogue; comments are encouraged.

The blog is edited by Jeffery Atik, a widely published lawyer and economist with deep experience in Europe and North America. He teaches International Banking & Finance and related courses at Loyola Law School, Los Angeles.

Austerity: The History of a Dangerous Idea by Mark Blyth

By Professor Jeffrey Atik

This review was originally posted on Jeffrey Atik's Blog Attraverso.There is nothing ambivalent about Mark Blyth's view of austerity: he is against it. Blyth's Austerity is more than a brief against today's accepted form of treatment for all that ails a slumping economy - it is an intellectual history of a powerfully attractive idea, though in Blyth's view, a dangerous one. Austerity fails for a number of reasons: it is unfair (it hurts the poor), it cannot be pursued simultaneously by all (someone must spend to ignite economic expansion), and (most damning) history shows it doesn't work.

Blyth admits to being a Keynesian. There is no shame in that: many neo-Keynesians are calling for an end to austerity. Blyth states, however, that he need not prove Keynes right ("for what it's worth, he was right, but that's in another book"); his goal here is simply to prove austerity wrong.

While austerity figures in contemporary U.S. politics, it is predominantly a European fix and fixation, famously imposed on Greece, Spain, Ireland and Portugal as a condition for European and IMF support in response to the Euro Crisis. Blyth begins the book by correcting the dominant narrative: Greece aside, the Euro Crisis did not originate by reckless government spending, but in private irresponsibility. Excessive private sector lending (provoked by cheap borrowing costs associated with the adoption of the Euro) sank the banks in Ireland and Spain (and their respective economies); the states became indebted in attempting to clean up the mess. Setting this history right is important -- as part of the moral authority for the imposition of austerity is a judgment of state fault. Austerity is not merely an economic prescription -- it is a punitive response.

As Blyth points out, there was little else Spain or Ireland could have done. Their banks were not only too big to fail; they were "too big to bail" -- that is, their liabilities were beyond the state's capacities to absorb. Hindsight suggests the better course might have been to abandon the banks -- but that course would have presented other grave difficulties. By shouldered bank indebtedness, several European states wildly exceeded the European limits on budget deficits and overall indebtedness. So why, Blyth asks, is the Euro crisis consistently described as a sovereign debt crisis? One must blame the state in order to justify the imposition of austerity.

Austerity well fits the anti-statist agenda. In the name of fiscal virtue, a wide range of social benefits and transfers are slashed: pensions, public salaries, health care, education. The anti-statists have been among us all along; the Euro crisis simply provided an opportunity to implement these wished-for roll-backs as a matter of prudent macroeconomic management. Austerity, the story goes, is the road to recovery. Except austerity hasn't led to any discernible recovery where it has been applied, at least in Blyth's review of the economic history. The proposed examples of austerity-generated growth - Ireland and the REBLL group of countries - don't hold up to critical examination. And there are many more examples where austerity simply made things worse.

Associate Dean Waterstone files amicus brief in Authors Guild v. HathiTrust

By Associate Dean Michael Waterstone

This week, along with some colleagues, I filed an amicus brief in the case of Authors Guild v. HathiTrust et. al. The case involves the cooperative efforts of Google and several universities to digitize their collections. Digital books are accessible to people with print disabilities, which is how I became involved in the case. The Authors Guild and other plaintiffs sued the Universities challenging this digitization under the Copyright Act. The National Federation of the Blind intervened in the case.

The HathiTrust is the name that those universities who received back from Google digital copies of their print libraries gave themselves. The University of Michigan maintains the HathiTrust Digital Library for those 50+ schools, including its own digital collection of about 10 million titles. In the District Court, Judge Baer ruled that (1) the Americans with Disabilities Act imposes on a University to provide equal access to its library program when an accessible digital copy of its print library exists; (2) under the Chafee Amendment to the Copyright Act, the University of Michigan is an authorized entity that can distribute library copies of its print collection to persons with print disabilities in the United States because the ADA imposes on the University, a governmental or nonprofit entity, "a primary mission to provide specialized services relating to . . . education . . . or information access needs of blind and other persons with disabilities" and digital copies are a "specialized format" and (3) the creation and distribution of digital books without the permission of the copyright holder for use by those with print disabilities is a fair use under the Copyright Act.

Our amicus brief, filed on behalf of professors who teach and research in disability law, argues that Congress's goals in passing laws like the Americans with Disabilities Act was to transform the role of people with disabilities in society. Consistent with this, we explain that often times neutral laws of general applicability (like the Copyright Act) could be viewed as in apparent conflict with disability rights laws. We argue that in these instances, it is proper for courts to attempt to harmonize these laws to allow them both to accomplish their purposes, which is what the district court did here. The court was correct in considering the needs of people with disabilities in the analysis of the right to fair use, and by interpreting the Chafee Amendment to provide that the University of Michigan is an authorized entity that can distribute digital copies of books in its print collection to persons with print disabilities in the United States. Until we achieve a world where concepts like universal design are the norm, to meet Congress's goals of inclusion for people with disabilities, accessibility is achieved through modification and accommodation of existing structures, programs, services, and activities.