Prof. Levenson: California is Overdue in Adopting Rule on Exculpatory Evidence

By Professor Laurie Levenson and Barry Scheck

This op-ed originally appeared in the Dec. 15, 2014 edition of the Los Angeles Times.

More than half a century ago, the Supreme Court established a rule that requires prosecutors to turn over to defense attorneys any evidence pointing to a defendant's innocence. It's known as the Brady rule, and violations of it occur far too often and can lead to devastating consequences. In a dissenting opinion last year, Chief Judge Alex Kozinski of the U.S. 9th Circuit Court of Appeals declared that "there is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it." There is no shortage of examples.

Take the case of Mark Sodersten. In 2007, a state appellate court reversed his 1986 murder conviction after finding that the prosecution failed to give the defense audiotapes of interviews with a key witness that contained evidence pointing to Sodersten's innocence. Tragically, the ruling came too late for Sodersten, who spent 22 years behind bars and died in prison months before he was awarded a new trial.

Or consider Kash Delano Register, who served 34 years behind bars for a 1979 murder in Los Angeles that he always maintained he didn't commit. He was released last year after a judge found that prosecutors and police "repeatedly concealed relevant evidence" that pointed to Register's innocence.

Read the complete op-ed.

Dean Gold Op-ed Explores High Court Ruling on Juror Testimony

By Dean Victor Gold

This op-ed originally appeared in the Dec. 16, 2014 edition of the Los Angeles Daily Journal.

In a unanimous opinion by Justice Sonia Sotomayor, the U.S. Supreme Court ruled last week that Federal Rule of Evidence 606(b) makes inadmissible a juror’s testimony that another member of the jury lied during voir dire when that testimony is offered to support a motion for a new trial.

Warger v. Shauers was a negligence action brought in federal district court to recover for injuries suffered in a motor vehicle accident. During voir dire, the plaintiff’s counsel asked prospective jurors if there was any reason they would be unable to be fair and impartial. The prospective juror, who later became jury foreperson, answered no. The jury eventually returned a defense verdict.

The plaintiff’s subsequent motion for a new trial asserted that the jury foreperson lied during voir dire. In support of that motion, the plaintiff submitted a juror’s affidavit that, during deliberations, the jury foreperson stated that her daughter once had been at fault in an auto accident and that, had she been sued, her life would have been ruined. Denying the motion, the district court held that the affidavit was barred by Federal Rule of Evidence 606(b), which provides that “[d]uring an inquiry into the validity of a verdict,” evidence “about any statement made or incident that occurred during the jury’s deliberations” is inadmissible, subject to limited exceptions. The 8th U.S. Circuit Court of Appeals affirmed and the Supreme Court granted certiorari.

The origins of Rule 606(b) can be traced to the 18th century and a version of the rule is in place in virtually every state. The rule is venerable and universal because the policy behind it is so basic: Protecting the privacy of jury deliberations is essential both to encouraging full and open debate in the jury room and preventing harassment of jurors after a verdict. Without such a rule, no verdict would be final because the jury’s deliberations and thinking would be open to scrutiny. And because jurors are laypersons charged with the difficult task of applying often complex law to conflicting versions of facts, it would be a rare case where that scrutiny did not uncover misstep of logic or law.

The facts in Warger present a good example of the mischief that might ensue without a law like Rule 606(b). As in Warger, virtually every potential juror in virtually every case is asked the generic question, “Is there any reason why you might be unable to be fair and impartial in this case?” Typically, only those who answer “no” are selected to serve on the jury. But every trial lawyer takes that answer with a grain of salt. Every juror has biases. In fact, lawyers strive during jury selection to impanel jurors who are favorably biased. Few verdicts would survive if statements made during deliberations were admissible to support a motion for new trial on the ground jurors lied during voir dire in response to the generic question about being fair and impartial.

Prof. Natapoff Writes About Dark Side of Decriminalization

By Professor Alexandra Natapoff

California is doubling down on decriminalization. Three weeks ago, the passage of Prop. 47 converted a half-dozen felonies to misdemeanors. In 2011, marijuana possession was reclassified from a misdemeanor to an infraction without jail time. If Rip Van Winkle fell asleep a decade ago at the height of California’s prison boom and woke up this morning, he’d quickly recognize this as a scramble to undo decades of harsh and expensive policy.

The state is not alone — we are seeing a seismic shift in how the United States handles punishment, especially with respect to misdemeanor decriminalization. Marijuana is the most famous example, but many states are eliminating jail time for other minor offenses, such as driving violations and public order crimes, and replacing them with so-called “nonjailable misdemeanors,” “nonarrestable” or “fine-only” offenses, and “civil infractions.”

Read the complete op-ed.

The Proposed New BLS Lawyer Replacement Projections

By Professor Theodore P. Seto

This piece originally appeared on TaxProf Blog.

Commentators who believe that the end of the world is near for legal education often point to Bureau of Labor Statistics estimates of replacement needs in the legal profession and compare those estimates to the number of projected law school graduates.

On May 16, 2014, the BLS issued a notice proposing a new method for measuring what it calls “occupational separations” – that is, workers leaving a particular occupation who need to be replaced. The BLS explains that the current method indirectly measures leavers by measuring employment change by age group, relying on an assumption that workers enter at a young age, work in their field until they are old, and then retire, creating opportunities for the next generation of young workers. In this framework, occupation is fixed throughout a worker’s career. The BLS notes: “However true this may have been in the past, it does not apply to many workers today.”

The new method, by contrast, directly measures workers who leave an occupation, "taking advantage of the longitudinal aspects of the CPS monthly survey and supplements."

The Critical Federalism Issue at the Heart of the Alabama Redistricting Cases

By Professor Justin Levitt

This post originally appeared on the Election Law Blog.

Justin here, with a thought on last week’s oral argument in two consolidated cases about Alabama’s redistricting process. There’s an issue lurking at the heart of the dispute that may be difficult to spot in the transcript.

The cases concern the rationale behind Alabama’s last state legislative redistricting plan. Press headlines pitched the issue as a tussle between racial reasons and political ones. Such cases can indeed be quite messy … but for better or worse, this dispute is not one of them. Alabama said that its districts were driven by the Voting Rights Act, and not by partisan politics. And by the end of the argument, most of the Court seemed to understand that any deeper partisan impulse was achieved through race-based means. (Look at LULAC — or Judge Kozinski’s Garza opinion — for an explanation of why using race to achieve partisan ends is still race-based action.)

At least some Justices also seemed to understand that Alabama’s districts were not actually driven by the Voting Rights Act. As I’ve written, Alabama instead deployed a poor essentialist facsimile. The Voting Rights Act is a nuanced statute that requires attention to race only after careful consideration of on-the-ground political reality. Alabama cut corners, pegging its districts to raw demographic targets without the necessary homework. Whatever Alabama was following wasn’t the statute on the books.

Which leads to the intriguing buried issue. Why manufacture a false façade for a federal law? Perhaps it was honest mistake about what the statute requires. Perhaps it was an attempt to overpack many African-American voters into a few hyperconcentrated districts, or to change the representative face of the Democratic party in Alabama. Or perhaps the ostensible federal mandate offered the prospect of a convenient path around an inconvenient state structure.

The Ferguson Grand Jury: Lessons from the O.J. Grand Jury

By Professor Laurie Levenson

Yes, you read that right. There are lessons from the O.J. Simpson grand jury for the grand jury considering whether to indict Officer Darren Wilson for the shooting death of Michael Brown. Few people remember that the Los Angeles County District Attorney originally convened a grand jury to decide on the fate of celebrity defendant, O.J. Simpson. This was not surprising given that politically controversial cases are often thrown to the grand jury to take some of the heat off a prosecutor in deciding whether to bring charges. Unlike with federal cases, state charges generally do not need to go through the grand jury process. The District Attorney has the power to file charges directly and hold a preliminary hearing to determine whether there is probable cause to support those charges. However, a grand jury provides an elected official cover for making the decision to charge in difficult cases.

Ultimately, O.J. was not charged by the grand jury because they never got the chance to make that decision. The case was removed from the grand jury when the defense complained that pretrial publicity had tainted the grand jury process. Simpson’s lawyers claimed that Simpson’s due process rights would be violated by having a grand jury that had been exposed to the tremendous amount of media coverage and public comment decide whether he should be indicted.

Similarly, one can expect that if Wilson is indicted, his lawyers will challenge whether the grand jury process was tainted. Having a grand jury make its decision in the shadows of a National Guard alert is not an optimal way to run a justice system. The grand jury is supposed to be the buffer for individuals against public cries for justice. However, grand jurors are not immune from this pressure and, in an extreme situations, they may be affected as well. A motion to dismiss a grand jury indictment is almost never granted, but the motion itself will undermine any confidence in charges that are brought. In a case where the whole country is watching, that may be concern enough.

• Read more about the motion to quash the O.J. Simpson grand jury.
• Listen to Professor Levenson's commentary about the Ferguson grand jury on KPCC's AirTalk with Larry Mantle.

The Second Battle of Blair Mountain

By Professor Daniel P. Selmi

The first paragraph of an appellate opinion is often bland, perhaps informing the reader generally about the legal issue involved and previewing the Court's ruling. It serves a functional purpose and is not intended to entertain. In contrast, the opening paragraph of Sierra Club v. Jewell,[1] a 2014 decision of the U.S. Court of Appeals for the District of Columbia Circuit, immediately grabs the reader's attention by launching into a brief description of a fascinating episode in American history:

The Battle of Blair Mountain is the largest armed labor conflict in our nation's history. In late August 1921, after years of tension between coal miners and coal companies, more than 5,000 West Virginia coal miners began a march to Logan and Mingo Counties, West Virginia. They aimed to unionize and liberate fellow miners living under martial law. When they reached Blair Mountain, a 1,600–acre area in Logan County, they encountered roughly 3,000 armed men. Those men, mostly hired by coal companies, manned a ten-mile defensive line across Spruce Fork Ridge, including Blair Mountain. They dug trenches, mounted machine guns, and dropped homemade bombs. The miners responded with gunfire of their own. The Battle endured for several days, causing numerous casualties. President Harding sent federal troops to quell the fighting, and the coal miners surrendered.[2]

This blog posting recounts the story of the litigation over the Battlefield, in which I was one of the lawyers representing the appellants, and the Court of Appeal's opinion.

5 Things You Should Know About the California Election

By Professor Jessica Levinson

This post originally appeared on the Huffington Post.

Election day is upon us. What should California voters know?

1. Jerry Brown will be re-elected as the governor.

Drought-stricken California could be hit with torrential rain. Wildfires could sweep the state. A blue moon could shine for three nights in a row. Jerry Brown will still be re-elected.

Do you want to know why? First, because he is Jerry Brown. In California a synonym for "Jerry Brown" is "someone who holds elected office." Brown has held nearly every elected office in the state of California. We know him. We're comfortable enough with him. We're going to re-elect him (again).

Second, because he is running against that guy who oversaw the Troubled Asset Relief Program (TARP). Yes, that's right. You don't even know his name. It is Neel Kashkari, by the way. He is apparently running to see how badly he will lose against the once, current, and future governor. He had handed out gas cards to get people to campaign events, spent a week living as a homeless person, and run a television commercial with a drowning child. Translation? He is going to lose.

2. Gavin Newsom will be re-elected as the lieutenant governor

You know Gavin Newsom, right? He is the former mayor of San Francisco who ordered the city clerk to issue marriage license to same-sex couples back when that violated state law. Still don't know him? He is the one with the slicked back hair who had an affair with the wife of his former deputy chief of staff and campaign manager. I thought that would ring a bell.

Newsom is running against Ron Nehring. Newsom is going to a have "party preference: Democrat" next to his name, while Nehring will have "party preference: Republican" next to his. Since this is California, and Newsom is the incumbent who hasn't done anything disastrous (or otherwise), that means Newsom will win.

A Step Forward to Slay the Gerrymander

By Professor Justin Levitt

In the early days of the Republic, Patrick Henry and James Madison were bitter political opponents. Henry thought that the new Constitution jeopardized states’ rights and individual liberties, and blamed Madison. When Madison sought a seat in the new Congress he had created, Henry sought revenge. He reportedly convinced Virginia’s legislature to draw their very first congressional districts to hurt Madison at the polls.

The burst of partisan pique would feel quite familiar today. For 200 years, American politicians have drawn election district lines to punish their enemies, favor their friends, and lock in their own job security at the voters’ expense. When incumbents gerrymander districts, the public’s partisan preferences are distorted, and communities are carved into electoral bits, to give those in power the best chance of staying in power. We are the only industrialized democracy that permits this conflict of interest.

And New York voters have a rare chance to lead the way out.

Proposal 1 on the November ballot would change the way that New York draws district lines. But more important, it could also change the model for change, across the country.

Ten Years of Honoring Champions of Justice

By Professors Anne Bloom and John T. Nockleby

As law professors, we've noted how frequently first-year law students mistake good lawyering with being unpleasant toward one’s adversaries. They are often surprised to learn that litigators who routinely oppose each other in court can be quite friendly and not uncommonly have the highest regard for each other.

Loyola Law School created its Civil Justice Program in 2005 to both facilitate a better public understanding of the civil justice system and to honor its finest practitioners. Each year, the program holds a Tribute to the Champions of Justice dinner to recognize lawyers who make significant contributions to the civil justice system through their professional excellence, technical proficiency and uncompromising integrity. Tonight, it will soon host its 10th-annual installment of the honors.

The list of past honorees reads like a who's who list of the Southern California trial bar. Past recipients include: 2013 – Paul R. Fine ’72, founding partner, Daniels, Fine, Israel, Schonbuch & Lebovits, LLP and Christine D. Spagnoli ’86, partner, Greene Broillet & Wheeler, LLP; 2012 – Gary M. Paul ’74; Waters, Kraus & Paul, LLP and David J. O’Keefe, Bonne, Bridges, Mueller, O'Keefe & Nichols; 2011 – Michael J. Bidart, Shernoff Bidart Echeverria Bentley LLP and Donna M. Melby, Paul Hastings LLP; 2010 – Samuel A. "Skip" Keesal Jr., Keesal, Young & Logan and Brian Panish, Panish Shea & Boyle; 2009 – Bob Baker, Baker Keener & Nahra LLP and Gretchen Nelson, Kreindler & Kreindler LLP; 2008 – Raymond Boucher, Khorrami Boucher, LLP and John Collins, founding partner of Collins, Collins, Muir & Stewart LLP; 2007 – Thomas Jerome Nolan, Skadden Arps Slate Meagher & Flom LLP and Mark P. Robinson Jr., Robinson Calcagnie Robinson Shapiro Davis, Inc.; 2006 – Bruce A. Broillet, Greene Broillet & Wheeler, LLP and Edith Matthai, Robie & Matthai, A Professional Corporation; 2005 – James J. Brosnahan Jr., Morrison & Foerster LLP- San Francisco and Thomas V. Girardi ’64, Girardi | Keese.

This year is the 10th anniversary of Loyola's annual tribute. To mark the anniversary, the dinner will honor the previously named Champions of Justice, plus announce two new ones: Louis H. "Duke" DeHaas of La Follette, Johnson, DeHaas, Fesler & Ames and William Shernoff of Shernoff, Bidart, Echeverria & Bentley LLP. The dinner will be held on Thursday, Oct. 30 at the Beverly Hilton.

Expression is the Better Part of Valor: Discretion and Good Faith in Entertainment Contracts

By Professor F. Jay Dougherty

It is not unusual for contracts in the entertainment industry to contain provisions leaving performance of an act to one party’s discretion. Often the other party’s attorney will request that such a provision also expressly require good faith. Sometimes, “good faith” is expressly added to the contractual language—after all, the client will act honestly in exercising its discretion. In the past, however, negotiators might reject the request, arguing that good faith and fair dealing is implied in all contracts anyway. In recent years, some courts have moved away from implying an obligation of good faith in a matter left to a party’s discretion. Other courts have implied the good faith obligation, even where a matter of subjective creative judgement is involved. Volatility and uncertainty in connection with implied covenants of good faith suggest that attorneys should be careful to draft such provisions clearly, leaving no ambiguity as to the intent of the parties.

In Third Story Music v. Waits[1], the plaintiff (“TSM”) had entered into an exclusive recording artist agreement with acclaimed singer-songwriter Tom Waits in the 1970’s, and had later transferred its rights under that agreement to Elektra/Asylum Records, a label in the Warner Communications family of record companies (“Warner”). Under the agreements, TSM would produce Waits’ records, and Warner would have the exclusive right to exploit and license those records. The agreement between TSM and Warner also specifically said that Warner “may at [Warner’s] election refrain from any or all of the foregoing.” TSM was to receive a percentage of amounts earned by Warner from the records, and a substantial advance for each album.

In 1993, an affiliate of TSM attempted to obtain a license from Warner to compile and exploit an album of some of the Waits recordings. Warner itself had no objection, but before it would agree to issue the license, it sought Waits’ approval, which he refused to give (assertedly to maximize the value of his later recordings made after the expiration of his agreement with TSM). When Warner refused to issue the license, TSM sued for damages for breach of the implied convenant of good faith and fair dealing. Warner demurred, asserting that the contract language expressly permitting it to refrain from licensing precluded application of the implied covenant. The demurrer was sustained, and affirmed on appeal.

Who Will Police the Police?

By Professor Priscilla Ocen

This op-ed originally appeared in the Los Angeles Daily Journal on Sept. 22.

In August, Ferguson, Mo. — a small, predominately black suburb of St. Louis — erupted in protest after the shooting death of Michael Brown, an unarmed black teenager, by a white police officer. Following the shooting, Brown’s body lay prone on the street for hours, visible to neighbors and passersby as a gruesome reminder of the violent end to his young life. Brown’s death at the hands of police, however, was only one of many this summer. In New York, Eric Garner, another unarmed black man, was killed after he was placed a chokehold by members of the New York Police Department. In Los Angeles, Ezell Ford, an unarmed, mentally disabled black man, was shot and killed by members of the Los Angeles Police Department.

The deaths of Brown, Garner and Ford are not isolated incidents. According to the FBI, police officers, on average, kill over 400 people per year in what were determined to be “justifiable homicides.” This figure, however, likely underrepresents the number of police killings as it only includes self reported data from less than 10 percent of police departments and only those killings that have been deemed justified. Nevertheless, it is clear that the burden of deaths in police custody has fallen disproportionately on African-Americans. Annually, nearly a quarter of the 400 killings involve African-Americans. This means that African-Americans are killed by police almost twice a week in the United States. Indeed, in a recent report by Mother Jones magazine, it was found that blacks are roughly four times as likely as whites to die during arrest or while in police custody.

While the killing of African-Americans by law enforcement officers is a tragically common event, criminal penalties for police officers accused of killing African-Americans are startlingly uncommon. In one study of 21 high-profile shootings of unarmed African-Americans, only three officers were successfully prosecuted. As both St. Louis County and federal officials investigate the shooting death of Michael Brown, what kind of outcome should we expect if a criminal case is ultimately filed?

Loyola's Civil Justice Program on 'Injury as Cultural Practice'

By Visiting Professor Anne Bloom
Assistant Director, Civil Justice Program

Last week, the Civil Justice Program was excited to host an international symposium on "Injury as Cultural Practice." The conference featured presentations from an interdisciplinary group of scholars including lawyers, social scientists, anthropologists and social theorists. I was thrilled to collaborate with David Engel, SUNY Distinguished Service Professor at SUNY Buffalo Law School, in organizing and directing the program.

The purpose of the symposium was to continue a dialogue that began last spring on how the meaning of legal injury is constructed through social and cultural practices. For the symposium, we broke the topic into four parts, with three panels on the first day of the symposium and a fourth on the second day.

The first panel on Day One discussed "What Counts as an Injury?" Mary Anne Franks, Associate Professor of Law at University of Miami, led things off with a presentation on "Injury Inequality." Franks argued that the kinds of injuries that affect more powerful members of society tend to be overstated. David Engel presented next with a paper on “Chairs, Stairs, and Automobiles: The Interpretation of Injury and the Absence of Claims.” (One of the many things I learned from this presentation is that chairs are not particularly good for our spines -- still, no one considers the pain that results an "injury").

I presented next with my co-author, the legendary Marc Galanter, Professor of Law Emeritus from the University of Wisconsin Law School. Our paper was called “Good Injuries” and examined the line between "injury" and "enhancement" in contexts like tattooing and plastic surgery. The symposium participants then heard from Sagit Mor, Assistant Professor of Law at Haifa University in Israel, who presented on how injuries are understood from a disability perspective. Loyola's own John Nockleby was next with a fascinating historical paper on the different ways that law has responded to the harm caused by natural disasters.

Prof. Berdejo Blogs About Forthcoming Article on the JOBS Act

By Professor Carlos Berdejo

This originally appeared on the CLS Blue Sky Blog, Columbia Law School's blog on corporations and the capital markets.

Congressional consideration of further deregulation of the federal securities laws, informally labeled by some as JOBS II, makes an evaluation of the impact of the JOBS Act of 2012 particularly timely. Several of the provisions of the JOBS Act relax the level of mandatory disclosures required of “emerging growth companies” (EGCs) during the IPO process and phase in certain ongoing regulatory requirements following the completion of an IPO. In a recent article, Going Public After the JOBS Act, I gather data on IPOs during the period 2010-2013 and perform an empirical assessment of the impact the JOBS Act has had on EGCs’ access to the public capital markets.

The evidence indicates that EGCs are not only taking advantage of the scaled disclosure requirements made available to them under the JOBS Act, but are also doing so with increasing frequency. For example, during the time period I studied, 87.3% of EGCs elected to file a confidential draft Form S-1 with the SEC. But in the first three quarters following the enactment of the JOBS Act, the percentage of issuers filing a confidential draft was about 72.7%, which is substantially lower than the percentage of issuers who chose to do so during the later quarters in the sample, 90.6%. There was also a considerable increase in the proportion of issuers that elected to include two rather than the standard three years of audited financial statements – from 27.3% in the first three quarters to 44.8% in the last three quarters (the overall sample average is 41.5%). Notably, EGCs that took advantage of the scaled financial disclosure available under the JOBS Act had lower revenues, were younger, and disproportionally belonged to R&D-intensive industries, such as pharmaceuticals. It is worth noting that these figures exclude IPOs in which the initial Form S-1 was publicly filed with the SEC before the JOBS Act became effective, as including these IPOs would merely inflate the reported inter-temporal differences.

Read the complete post.

Prof. Berdejo to Publish Going Public After the JOBS Act

Professor Carlos Berdejo's article, Going Public After the JOBS Act, will be published by the Ohio State Law Journal.

Abstract:

The Jumpstart Our Business Startups Act of 2012 (JOBS Act) represents one of the most comprehensive overhauls of the securities laws in recent years. One of the principal goals of the JOBS Act is to improve access to the capital markets for smaller issuers, referred to in the act as emerging growth companies, or EGCs. To accomplish this goal, the JOBS Act seeks to reduce the costs of conducting a public offering and complying with the ensuing reporting obligations by making certain disclosure requirements voluntary for EGCs.

This Article examines whether these scaled disclosure rules have increased the number of small issuers conducting an initial public offering (IPO) of their equity securities and the extent to which these issuers have taken advantage of the various exemptions available to them under the JOBS Act. The evidence presented in this Article shows that EGCs have increasingly taken advantage of several of the scaled disclosure provisions of the JOBS Act during their IPOs. EGCs that take advantage of these scaled disclosure provisions are smaller, younger and more likely to belong to the R&D-intensive pharmaceutical industry. Notably, despite the fact that EGCs are embracing these scaled disclosure provisions, there has not been a noticeable increase in the proportion of IPOs conducted by issuers that qualify as EGCs. The Article explores two interrelated explanations for these seemingly contradictory findings.

First, the evidence indicates that the benefits of the JOBS Act may not be as significant as may have been expected. While the direct costs of conducting an IPO have not decreased for EGCs following the enactment of the JOBS Act, indirect costs may have actually increased. In addition, by their second fiscal year, over forty percent of issuers that went public as EGCs no longer qualify for such status, a fact that limits the expected ongoing benefits of the JOBS Act at the going public decision stage. Second, certain issuers that qualify for EGC status may be choosing to pursue private offerings, which certain provisions of the JOBS Act facilitate. Changes in the mix of small issuers going public following the enactment of the JOBS Act suggest such a shift in the pattern of going public decisions across firms.

Prof. Pollman to Publish A Corporate Right to Privacy

Professor Elizabeth Pollman will publish the article A Corporate Right to Privacy in a forthcoming edition of the Minnesota Law Review. Earlier this summer, she published a blog post about the article on the Conglomerate.

Abstract:

The debate over the scope of constitutional protections for corporations has exploded with commentary on recent or pending Supreme Court cases, but scholars have left unexplored some of the hardest questions, and the ones that offer the greatest potential for better understanding the nature of corporate rights. This Article analyzes one of those questions—whether corporations have, or should have, a constitutional right to privacy. First, the Article examines the contours of the question in Supreme Court jurisprudence and provides the first scholarly treatment of the growing body of conflicting law in the lower courts on this unresolved issue. Second, the Article examines approaches to determining the scope of corporate constitutional rights and argues that corporate privacy rights should be evaluated not by reference to the corporate form itself or a notion of corporate personhood, but rather by reference to the privacy interests of the various people involved in the corporation and their relationship to the corporation. Further, because corporations exist along a spectrum—from large, publicly traded corporations constituted purely for business purposes to smaller organizations with social, political, or religious purposes—the existence of a corporate privacy right will and should vary.

Fifty Years After the Civil Rights Act: Celebrating the Latest Milestone on the Journey Toward Racial Equity in Health Care

By Professor Brietta Clark

Fifty years ago this July, President Lyndon B. Johnson signed into law the Civil Rights Act of 1964. The Civil Rights Act was viewed by many as a powerful symbol of the nation's commitment to racial equality. It was the most comprehensive civil rights law enacted up to that point - tackling discrimination in employment, education, voting, public accommodations, and federally funded programs, such as those financing health care. And although health care discrimination has not typically garnered as much attention as discrimination in other settings, inequality in health care was seen as a serious problem that the Civil Rights Act was needed to address.

People understood that good health was integral to one's ability to realize the other opportunities protected by the Act, such as finding employment, getting an education, and being an engaged citizen. In addition, discrimination in health care was pervasive and often had dire consequences. Many hospitals and physicians refused to treat Blacks because of their race; this included women in labor, patients with serious illnesses that could have debilitating effects, and even people in need of emergency, life-saving treatment. Indeed, civil rights leader Dr. Martin Luther King, Jr. is reported to have said that "Of all the forms of inequality, injustice in health care is the most shocking and inhumane."

Title VI of the Civil Rights Act, which prohibits discrimination on the basis of race, color, or national origin by recipients of federal funds, has been an important tool for fighting discrimination in health care. In theory, tying anti-discrimination protections to federal funding would give the government greater leverage to enforce Title VI against health care providers who wanted those funds. In reality, Title VI's power as an anti-discrimination tool depended on the federal government's willingness to devote significant resources to health care to ensure that this leverage existed.

Loyola Hosts the Southern California Criminal Justice Roundtable

On July 29, Loyola hosted the inaugural SoCal Criminal Justice Roundtable, an intensive day-long paper workshop for criminal justice scholars from UCLA, USC, UC Irvine and Loyola. The next Roundtable will be hosted by UCLA. The drafts were fascinating: everyone agreed that the workshop was extremely engaging and helpful, and is looking forward to the next one.

The group discussed five works-in-progress:

Jennifer Chacon is writing about the intersection of immigration and the school-to-prison pipeline, delving into the little-understood impact of school discipline and criminalization on the protective legacy of Plyler v. Doe.

Sharon Dolovich’s draft analyses the doctrinal mechanisms that generate the descriptive and analytic gap between fundamental constitutional norms and the functional reality of the criminal system on the ground.

Ingrid Eagly is writing about the surge in video-conferenced immigration hearings for detainees and their impact on litigants, outcomes, and the entire immigration adjudication apparatus.

Sasha Natapoff is writing about the decriminalization of misdemeanors and how decriminalization policies can quietly exacerbate inegalitarian and punitive aspects of the criminal process.

Dan Simon’s draft addresses how law enforcement actors and practices influence and generate witness testimony in ways that fundamentally undermine the integrity of the evidentiary process.

Does 'privileged' communication in custody really exist?

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

This op-ed originally appeared in the July 29, 2014 edition of the Daily Journal.

Excerpt:

Recent reports suggest that federal prosecutors are increasingly intercepting emails between incarcerated defendants and their counsel for alleged security reasons. In the process, they are discovering incriminating evidence that they seek to offer against the defendants at trial. If true, this practice raises significant issues for the courts.

Communications between a defendant and his lawyer are supposed to be confidential. Yet, government officials are also allowed to monitor phone call and email communications. Courts must now decide when monitoring crosses the line and becomes improper interference with a defendant’s Sixth Amendment right to counsel.

The basic rule of custody is that inmates have no privacy rights - not when they are on the phone, not when they send emails, and not when they talk to other inmates. While attorneys are supposed to get confidential time with their clients, in-person meetings are difficult. And, under certain circumstances, even these may be monitored.

The net result is that it is increasingly more difficult for defense counsel to prepare for trial when the client is incarcerated. A single visit to jail to meet with a client may consume the attorney’s entire day. Even when arrangements can be made, there is precious little time for the attorney to solicit information from the client. Defense lawyers are left with the job of preparing a client’s case without much client input and clients are left feeling stuck on the sidelines as their case moves forward. Not only does this affect defense counsel's ability to represent a client, it also diminishes clients' trust in their counsel.

[Read the complete story at www.dailyjournal.com.]

California Recounts Are Rare, and Should Be Fair

By Professor Jessica Levinson

This post originally appeared in The Sacramento Bee.

Until former Assembly Speaker John A. Pérez called it off Friday, we were in the midst of what was likely to become the biggest election recount in California history. If anything good comes of this political tempest, it is to remind us how badly we need to reform our recount laws.

The race to be the next state controller was excruciatingly tight. Fresno Mayor Ashley Swearengin, a Republican, is now set to face off against Board of Equalization member Betty Yee. Four hundred eighty-one votes separated Pérez and Yee, both Democrats. After the recount, which cost approximately $30,000, Perez picked up 10 votes.

For the complete story, click here.

Implicit Bias at the Point of Contact: Refereeing and Police Encounters with the Public

By Professor Eric Miller

This post originally appeared on Prawsblawg.

Since the World Cup is over, and the best team won, this is my last post on soccer, refereeing, and policing, I promise.

This is my last post on soccer, refereeing, and policing, I promise. In the dying minutes of the group-stage game between Ivory Coast and Greec, the Greek striker Samaras tangled with an Ivory Coast player, and the referee awarded a penalty. Foul? Flop? The penalty certainly looked really soft. What provoked some ire from my friends on Facebook was, not only the fact that the penalty seemed to be an overreaction, but that it was an overreaction to a foul committed by a black person on a white one. Was bias at play here.

The—by now familiar—answer is: probably. My buddy Song Richardson has written some great articles explaining how implicit bias works. Because officiating requires the referee to make instant fact-based determinations in highly stressful circumstances, these judgements prove susceptible to an unconscious, implicit bias. Implicit biases affect all of us, regardless of our race. But they impact us in strikingly racially differentiated ways.

Richardson is concerned to demonstrate the relevance of recent innovations in cognitive science for the Fourth Amendment in general, and police encounters with racial minorities (primarily African Americans) in particular. Her argument is both simple and powerful: the current Fourth Amendment doctrine on stop-and-frisks promotes a form of policing that is racially biased and practically inefficient. The cause of the inefficiency is unconscious cognitive biases that the officer may not be aware of; the problem is that such biases decrease the efficiency with which an officer is able to separate criminal from non-criminal activity.

Supreme Court Health Law Update: Abortion, Contraception & Gay 'Conversion Therapy'

By Professor Brietta Clark

This Supreme Court term has been another important one for health care. The Court was presented with several cases that questioned the scope of the government's power to enact laws regulating health care access or quality, when such laws are viewed as burdening religion or speech. The two cases receiving the most attention -- Burwell v. Hobby Lobby and McCullen v. Coakley -- involved challenges to laws protecting women's access to reproductive health care. But there were two other noteworthy cases -- Pickup v. Brown and Welch v. Brown -- which involved challenges to a law that bans a discredited health care practice that is harmful to the mental and physical health of sexual minorities.

Health law scholars and advocates have been watching these cases closely because of the growing number of examples of free speech or religious freedom claims being used to defeat, avoid or invalidate important health protections. For those who envision a robust regulatory role for government in protecting and promoting health -- especially for groups that have historically been the targets of health care discrimination -- this term brought some good news and some bad news.

Is Rote and Mindless Legal Practice Our Standard?

By Professor Eric Miller

This post originally appeared on Prawsblawg.

Last week, I suggested that the legal academy could do with providing a more concentrated study of legal materials to prepare students for practice. I actually think the case could be made stronger: for many, not only is knowledge of the legal materials in a given doctrinal area our core competence: it is the central obligation of the legal academy to provide competence in legal doctrinal knowledge.

I chose criminal law as my central example. But my point was supposed to apply more generally to torts, contracts, family law, and so on across the curriculum. In short, the argument is that concentration in a particular practice area should not simply mean a wider range of courses, it should primarily mean greater interaction with the extant doctrine.

My claim is that the substantive version of "practice ready" does not require the academy to match practice. I think that is especially the case if the bulk of practice involves the equivalent of agency capture, so that the lawyer becomes divorced from the clients, and instead becomes part of a quasi-bureaucracy. That may be a feature of production-line litigation, and the criminal law may be more prone to that style of litigation than other fields (although tort law shares some of these characteristics). But equipping lawyers to recognize complexity and co-option when it occurs should be part of our teaching mission. Where judges and co-counsel fail to see the issues.

Muniauction, Limelight and New Standards for Induced Infringement

By Harrison Thorne ‘16

This post originally appeared on Jurist.

It is not always clear exactly when a patent is infringed. People typically think of infringement in a black and white manner as the unauthorized use of another person's invention. However, infringement becomes more complicated for method patents. A method patent—unlike a regular patent—involves several steps a user must perform to achieve a particular result. But what if one user does not perform all of those steps? What if instead one user performs some of the steps, causing another person to perform the other steps? This concept, known as induced infringement, was dealt with by the Supreme Court in Limelight Networks, Inc. v. Akamai Technologies, Inc.

The facts of Limelight are fairly straightforward. Akamai was the exclusive licensee of a complicated, multistep method involving Internet content delivery. The patent claimed a method whereby users would designate components to be stored ("tagged") on servers. Limelight was a competitor that provided a similar service but required its customers to tag their own files. Limelight performed all but one of the steps patented by Akamai. Akamai sued Limelight for patent infringement and received a favorable verdict—including $40 million in damages—in the Federal District Court.

Two years after Akamai's victory, the Federal Circuit decided Muniauction, Inc. v. Thomson Corp. Like in Limelight, the defendant in Muniauction performed all but one of the steps of the plaintiff's method patent and left the remaining step to its customers. Muniauction held that where multiple parties are involved, direct infringement—using a patent without authority—is required before induced infringement can be considered. In such situations, direct infringement requires that one party directly infringed the entire method or exercised control over the entire process. The Federal Circuit consequently held that the defendant was not liable for infringement as it neither performed all the steps of the plaintiff's patent nor exercised control over the process when its customers carried out the remaining steps.

What politicians really think about Citizens United

By Professor Justin Levitt

This op-ed originally appeared in the Los Angeles Daily News.

The U.S. Senate just debated a constitutional amendment to overturn the Supreme Court’s Citizens United decision about money in politics.

That’s remarkable. We have amended the constitution only 27 times in our country’s history. If a substantial portion of Congress thinks that it is time for number 28, a lot of Americans must be pretty upset about something.

But what has them so upset? The day before the Citizens United decision, Bill Gates had the right to spend as much as he wished urging Americans to vote against Senator Windbag. Corporations were barred from delivering the “vote against Windbag” message. But they could spend as much as they wished urging Americans to understand that Windbag hates puppies, God, apple pie and Betty White.

The Business Law Big Time

By Professor Elizabeth Pollman

We’re excited to be hosting the National Business Law Scholars Conference here at Loyola this week. This is the first time the conference has been held on the West Coast and we’ve had record submissions. More than 80 business law professors will be coming for two jam-packed days of panels and talks (including by Loyola faculty members Michael Guttentag, Carlos Berdejo, and myself).

Highlights of the program include:

• A keynote speech by Frank Partnoy, the George E. Barrett Professor of Law and Finance at University of San Diego School of Law. Professor Partnoy is one of the world’s leading experts on market regulation and a frequent commentator for the Financial Times, the New York Times, and NPR. He is the author of WAIT: The Art and Science of Delay, F.I.A.S.C.O., Infectious Greed, and The Match King.
• An author-meets-readers session on the new book by Professor Michael Dorff of Southwestern Law School, Indispensable and Other Myths: The True Story of CEO Pay (Univ. of Cal. Press 2014). 
• Two renowned experts on executive compensation and corporate governance will discuss this important new work: Stephen Bainbridge, the William D. Warren Distinguished Professor of Law at the UCLA School of Law; and Kevin Murphy, Professor of Business, Economics and Law at the USC Gould School of Law and the USC Marshall School of Business, where he was named chair of the department of finance and business economics and holds the E. Morgan Stanley Chair in Business Administration.
• A plenary panel, The Securities Fraud Class Action after Halliburton, featuring top securities law experts and scholars discussing one of the most important business law cases before the U.S. Supreme Court this term: 
• Stephen M. Bainbridge (UCLA School of Law) 
• Robert P. Bartlett III (UC Berkeley School of Law) 
• Mark I. Labaton (Isaacs, Friedberg & Labaton LLP) 
• Adam C. Pritchard (University of Michigan Law School) 
• Moderator and Discussant: Margaret V. Sachs (University of Georgia School of Law)

The O.J. Simpson Legacy

By Professor Laurie Levenson

Twenty years ago, my life was changed by the so-called "Trial of the Century" -- the O.J. Simpson murder case. CBS asked me to serve as their Legal Commentator for the case. I was proud to do so. I worked with an extraordinary team of journalists, including anchor Dan Rather, to cover a case that was to have an enormous impact on Los Angeles and our legal system.

As an active law professor, I worked from 4:00 a.m. (when I did the morning shows) to 11:00 p.m. (when I appeared on late-night coverage). In between, I attended the trial, provided hour-by-hour analysis, and then taught my classes from 6:00-8:00 p.m. The students were enthralled by the case, so it really was an incredible teaching tool. I also wrote a daily column for the Los Angeles Times.

The O.J. case raised many important issues, including: (1) What impact do celebrity and race have on trials? (2) How should we address issues of domestic violence? (3) Should cameras be allowed in the courtroom? (4) How should jurors for high-profile cases be selected and should they be sequestered during trial? (5) How effective of a tool is DNA for prosecutors? (6) How much trust do the people of Los Angeles, particularly minorities, have in the LAPD? (7) What is the role of defense lawyers in trying their case in the media? (8) How much difference does venue make in a case? (9) How do individual evidentiary rulings, including the admission of testimony regarding "dream" evidence, affect a trial? and, of course, (10) What should be the role of a legal commentator?

California Primary was a Striking Display of Voter Apathy. But Was It Their Fault?

By Professor Jessica Levinson

This op-ed originally appeared on Politix.

I have three words to describe the primary elections held in California this week: What the what? Special thanks go to Tina Fey for coining this apt phrase.

Sure, the outcome of many races was not a surprise, but election night took a few unexpected turns.

First, voter turnout statewide was 18.3%. Read that again. Less than one of the five people who are registered to vote bothered to show up. There are about 17.7 million registered voters in California and just over 3.2 million cast a ballot in the June 3 elections. Over 38 million people live in the state, which means that each person who voted essentially weighed in on behalf of almost 12 others.

Things were worse on the local level with 13.1% of registered voters in Los Angeles County casting a ballot in a variety of contests from County Board of Supervisors to Sheriff. More on the Sheriff's race in a moment. Over 9.9 million people live in the County, and over 4.8 million are registered to vote. This means that each of the over 636 thousand people who voted in Los Angeles County made decisions affecting 15 others.

There are a number of reasons why this is the case. The "biggest" race on the statewide level was for Secretary of State, and that office typically does not bring people to the polls, although ironically it is that office that helps run the polls.

New 'Jungle Primary' System Shakes up California Election

By Professor Jessica Levinson

In what will be a low-turn out, but high-impact election, voters will head to the polls to weigh in on a variety of state and local races. In the race for governor, the main question is which of two Republicans will lose to Gov. Jerry Brown in November. The party establishment is pulling for moderate Neel Kashkari while conservatives and tea party members have demonstrated grassroots support for Assemblyman Tim Donnelly.

This is the first set of statewide elections run under California's new top two, open primary law. Under the so-called "jungle primary" law, any voter can vote for any candidate in the primary election, regardless of party affiliation. Then a runoff is held between the top two vote getters, who are sometimes members of the same party. The law could shake up a number of races, including the Secretary of State's race. On the federal level, many eyes are on the race to replace long-serving Congressman Henry Waxman. In a race with over a dozen candidates, and a number of familiar faces, it is very difficult to predict who will live to fight another day in the November runoff.

In Los Angeles voters will weigh in on a number of low visibility, but powerful offices. For the first time in almost 100 years there is an election for LA County Sheriff in which an incumbent is not on the ballot and an outsider may be victorious. Each candidate is running as a reformer who can clean up the scandal-plagued department.

Thanks to term limits two of the five Los Angeles County Supervisors seats are now open. One of these race brings three competitive candidates vying for this powerful position with control over vast sums of country resources.

Despite all of this, few registered voters, let alone eligible voters, will show up to the polls. Those who do show up will have a significant say in determining the makeup of federal, state and local government.

Follow Professor Levinson on Twitter @LevinsonJessica or via her blog, PoLawTics.

The Drunkard's Search for Money in Politics

By Professor Justin Levitt

Late at night, a good Samaritan happens upon an intoxicated man crawling under a streetlight, studying the ground.  The drunkard says that he is looking for his keys, and our helpful bystander joins the search.  After a few minutes, the helper asks, “Are you sure this is where you dropped them?” “No,” says the drunk, “I probably dropped them by the bar down the road. But the light’s much better here.”

The phenomenon of the drunkard’s search, often attributed to Abraham Kaplan, afflicts much empirical inquiry.  Researchers seeking quantitative rigor too often head for the available data, fire up STATA, and only as an afterthought offer a few generic caveats about the limitations of the data for the topic at hand.  

Campaign finance analysis is not immune from this problem. In reading some recent studies over the weekend, I noticed a few recurring lapses.

Consider the evaluation of electoral spending by entities other than candidates and parties: “outside” spending, for short. Frequently, studies look to data from the Federal Election Commission (and equivalent state sources) to track the rise of independent expenditures since blockbuster Supreme Court cases like Citizens United, which allowed corporations (and, by logical extension, other non-affiliated groups) to engage in such activity without limits.  

Moffett-Gutierrez a Victory for Juvenile Advocates

By Clinical Professor Christopher Hawthorne

Attorneys will quibble about its nuances, and the work of implementing the decision will go on for years to come, but People v. Moffett/People v. Gutierrez is the California Supreme Court opinion juvenile advocates were hoping for.  First, the Court firmly declares that section 190.5 California Penal Code is covered by the 2012 U.S. Supreme Court case Miller v. Alabama, which banned mandatory life without the possibility for parole (LWOP) for juveniles.  This is a significant legal step, because section 190.5 is not strictly mandatory.  Instead, the statute declares that LWOP is the presumptive sentence for 16- and 17-year-olds who fall under the special circumstance murder laws.  The judge, at his or her discretion, may choose a sentence of 25 to life.  For years, courts have debated whether 190.5 offered the judge complete sentencing discretion, or only the discretion to occasionally override the presumption.  The latter view, embodied in People v. Guinn, was the more popular, and for good reason.  Not only did Guinn absolve trial court judges of the charge of arbitrariness; it also absolved the court of the necessity to actually consider mitigating evidence related to the defendant’s youth.

Moffett-Gutierrez changes all that.  After the Supreme Court’s ruling, trial court judges must think hard, and think on the record, about whether to sentence a teenager to LWOP.  And, just as important, the Court gives a roadmap to judges who are thinking about imposing these harsh sentences.  When choosing a sentence for a youthful offender, judges must now take into account the "distinctive attributes of youth," which is another way of saying that judges must consider whether the child they are sentencing is the “rare juvenile offender whose crime reflects irreparable corruption.”  The Court directs judges to consider “how children are different and how those differences counsel against a sentence of life without parole ―before imposing a particular penalty.”

One thing Moffett does not decide is whether Miller is retroactive:  in other words, whether it applies to juveniles who have already been convicted and are serving LWOP.  Juvenile advocates in California have been filing Miller petitions as if they assume retroactivity is a done deal, but other states are split on the issue.  Illinois and Texas say Miller is retroactive.  Pennsylvania says it's not.  Expect the California Supreme Court to enter that debate soon.

50 Years at Albany Street: Prof. Goldman Recalls Supreme Encounter

By Professor Stan Goldman '75

William Brennan was a surprise in so many ways. Appointed to the Supreme Court by Republican Dwight D. Eisenhower, he was to become perhaps the most potent liberal justice to have ever sat on the nation's high court. He achieved this by simply outmaneuvering many of those who vehemently opposed his political persuasion. Even as the court"s makeup grew more and more conservative, and he would find himself on the losing end of most arguments, he managed to use his seemingly unparalleled political savvy to piece together majorities no other justice could have created. The tradition of our highest court is that, if the chief justice is in the dissent, the most senior member of the majority is authorized to write, or assign, the court's opinion. So fearful was Chief Justice Warren Burger of Justice Brennan's ability to persuade with his words, that the rock-ribbed conservative chief would switch his vote to support positions he despised solely so that he could block Brennan from delivering the court's judgments. Brennan was surprising in other ways as well. 

Share your campus memories 

An idol of mine, I approached weak-kneed and with great trepidation years ago when he graciously agreed to become Loyola Law School's most distinguished graduation speaker. He proved to be as welcoming and generous spirit, to a young law professor, as he was wise. Of course, there is one other reason for my looking fondly back upon the great man's appearance at our university. Graduation took place the first Sunday in June. An outdoor ceremony, graduates, family and faculty would bake beneath the Westchester sun. Fearful that the elderly justice wouldn't be able to take the afternoon heat, the school decided to acquire a tent to cover the dais beneath which the faculty and graduation speakers could comfortably repose during the lengthy ceremony. That is, blessedly, a tradition that is continued now. Three decades later, any member of the Loyola faculty should not only remember fondly the great man's appearance at our school, but also the comfort we are able to enjoy during the ceremony.

Professor Peter Tiersma, Crafter of Jury Instructions, Leaves Legacy of Scholarship

To view remembrances of Peter or post one, please click here.

Professor Peter Tiersma passed away on Sunday, April 13 after a long battle with pancreatic cancer.

Tiersma joined the Loyola Law School faculty in 1990. His courses included Remedies, the Language and the Law Seminar, and Trusts & Wills. As director of international programs, he oversaw Loyola’s summer programs abroad. The holder of the Hon. William Matthew Byrne, Jr. Chair, he was a member of the California Judicial Council Advisory Committees on Jury Instructions and a co-founder of the International Language and Law Association.

“A member of our faculty for nearly 25 years, Peter was an internationally renowned scholar, a beloved teacher and played an important role in crafting the jury instructions delivered in every civil and criminal trial in the California state courts,” said Dean Victor Gold. “ The grace and heroism he displayed while battling his illness will remain one of the many reasons he will always inspire us.”

A prolific scholar, Tiersma was most recently the co-editor of The Oxford Handbook of Language and Law (with Lawrence Solan, Oxford University Press, 2012). He was the author of Parchment, Paper, Pixels: Law and the Technologies of Communication (University of Chicago Press, 2010).

Additionally, Tiersma was the author of the books Legal Language (University of Chicago Press, 1999) and Speaking of Crime: The Language of Criminal Justice (with Lawrence Solan, University of Chicago Press, 2005), as well as numerous articles and book chapters. His booklet, "Communicating with Juries: How to Draft More Understandable Jury Instructions," was published by the National Center for State Courts and was broadly disseminated to state jury instruction committees. His website, www.languageandlaw.org, served as a repository for his commentary on the intersection of those two disciplines.

Tiersma, born in the Netherlands, immigrated with his parents to the United States when he was 5 years old and grew up on a dairy farm in California’s San Joaquin Valley. Following graduation from Stanford University, he received a doctorate in linguistics from the University of California, San Diego. Subsequently, he obtained a JD from Boalt Hall School of Law at the University of California, Berkeley. He clerked for Justice Stanley Mosk of the California Supreme Court for a year and worked in private practice for three years in San Francisco and Santa Barbara.

When not teaching, researching or writing, Tiersma could be found tending his cactus garden, kayaking in the ocean or scouring the Internet for old legal documents. He is survived by his wife, Matthea Cremers, a professor at the University of California, Santa Barbara.

Update: Donations in Peter's memory may be made to the Santa Barbara Land Trust.

REMEMBRANCES
Please leave your memories of Professor Tiersma below in the comments. Please include your relationship with Peter. If a former student, please note your class year.

Urban Water and the Era of No-Longer Possible

By Professor Jeffery Atik

This review of Water 4.0: The Past, Present, and Future of the World's Most Vital Resource originally appeared in the Los Angeles Review of Books.

There are two currents flowing through the contemporary political imagination that limit us. The first is the notion of sustainability, which teaches us that what we have had in the past and what we may still desire can no longer be provided. Sustainability, like its reflection, unsustainability, is a child of environmentalism, built on an unflinching examination of what the planet might bear. The second stems from our doubts about the State. In its most virulent form, it appears as Tea Partyism: everything the State practices is incompetence or theft, or both. The State is a villain -- to be attacked and starved -- and if we forgo traditional state services, we will be better for it. The result is a growing paucity of public goods.

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HILJ Online Symposium: The Next Step

By Professor Michael Waterstone

This post originally appeared on Opiniojuris.com.

I am grateful that the Harvard International Law Journal and Opinio Juris have asked me to write a response to The Democratic Life of the Union: Toward Equal Voting Participation for Europeans with Disabilities, written by Janos Fiala-Butora, Michael Stein and Janet Lord. This Article seeks to put forward “preliminary legal scholarship on equal political participation by persons with disabilities and what international human rights law requires for its attainment.” Given their various experiences as academics, international human rights lawyers, and academics, the authors are certainly well suited to this task (and I should note that two of the three are former co-authors and friends).

As I see it, this Article makes three significant points: (1) it describes Kiss, a European Court of Human Rights decision holding that Hungary had unjustly and indiscriminately taken voting rights away from someone solely by nature of his being placed under guardianship, and critiques the decision for offering limited standards for what type of individualized inquiry is required to restrict the franchise; (2) argues that under international law, states should not be able to disenfranchise persons on the basis of disability, even in the case where individual assessments are made; and (3) challenges Martha Nussbaum’s suggestion that states should authorize guardians to vote on behalf of individuals who are neither able to form a view on political issues for themselves nor communicate their choices to others (the authors would not have a guardian exercise decision-making, meaning that those who cannot vote – properly construed, a small number – do not vote).

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