Monday, June 19, 2017

Loyola Professors Commenting on SCOTUS News

Loyola Law School, Los Angeles professors are commenting on the news arising out of the U.S. Supreme Court today:


Gill v. Whitford (Wisconsin gerrymandering case)

Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County (civil procedure/personal jurisdiction)
  • Professor Adam Zimmerman: “In terms of impact, I think this case is kind of the sleeper case of the term,” says the complex litigation expert and Gerald Rosen Fellow. “It's going to impact thousands of cases in state MDLs, class actions and, I think, federal MDL litigation (which comprises nearly 40% of all cases in our federal courts.)” Zimmerman’s immediate reaction to the opinion is available online via @Adam_Zimmerman
  • Professors Allan Ides & Simona Grossi: The civil procedure experts filed an amicus brief in the case (below). 
Matal v. Tam (The Slants case; disparagement clause in trademark approval/First Amendment)
  • Professor Justin Levitt: This case decides that the Federal Trademark Office can't refuse to register a trademark that may ‘disparage’ or ‘bring ... into contemp[t] or disrepute’ individuals or groups,” writes the constitutional law expert. “The case follows a line of recent cases looking very skeptically at government laws or policies that burden speech -- and an even longer line of recent cases looking even more skeptically at government laws or policies that treat some private speech worse than others based on its content or viewpoint. The Court divided 4-4 on the precise legal framework, but all 8 Justices hearing the case (Justice Gorsuch wasn't yet on the Court when this was heard) agreed that the statute prohibiting registration of disparaging marks was out of bounds, and that the question wasn't particularly close. This impacts not only The Slants (which will be able to get their name trademarked), but also some other prominent and very controversial brands, like the Washington Redskins, whose trademark had been canceled as ‘disparaging’ in June 2014.” 
  • Professor Jennifer Rothman: “The decision is no surprise. The 8-0 decision -- that Gorsuch did not participate in -- holds that the bar to registering trademarks that are deemed ‘disparaging’ or offensive is struck down. This means that The Slants can register their mark for their band, even if some view it as disparaging or insulting to Asian people, and it also means that the Washington Redskins marks which were cancelled for the same reason will be reinstated. The decision also likely eliminates the bar on registering marks that are scandalous or immoral."

Tuesday, June 13, 2017

Some Thoughts on Microsoft v. Baker

By Professor Adam Zimmerman

The big story in Microsoft v. Baker -- the Supreme Court's latest decision involving class actions -- is the question it did not reach today: Do lead plaintiffs have standing to continue pursuing a class action after their individual claims go away?

By way of background, there were two issues in Microsoft v. Baker. The one most people are familiar with is a highly technical question. Whether the plaintiff's strategy in the case--which was to voluntarily dismiss the case with prejudice in order to appeal the denial of class certification--is an impermissible end-run around Rule 23(f)? Rule 23(f) was created nearly two decades ago to permit appellate courts to review whether or not a district court properly certified a class action. Because the decision to certify a class action -- or not -- was so momentous, before Rule 23(f), a grant often would result in a quick settlement, while a denial would often spell the "death knell" of the case. The class action rules were amended in 1998 to give the appellate courts power to hear class action cases in their discretion, even though the appellate courts usually won't hear a case until after the lower court issues a final judgment. Microsoft involved what the Court felt was an improper workaround that process. Rather than rely on 23(f), plaintiffs could voluntary dismiss their claims, receive a final judgment and then appeal the denial of class certification.

Wednesday, June 7, 2017

New York Once Again Floats Right of Publicity Law

By Professor Jennifer E. Rothman

The New York Assembly introduced yet another right of publicity bill last week, Assembly Bill A08155. Such legislation is introduced almost every year in New York―focused on trying to add a post-mortem right which currently does not exist under New York law. Thus far, these bills have all failed to proceed. This time may be different.

The stars are aligning for passage of some bill―even if it hopefully is not this one. One reason for this is that the media companies, that usually strongly oppose such bills, are more willing to compromise this year if the bill provides them with an explicit exemption to avoid liability, particularly in the context of expressive works and news. This sea-change has been brought by a decision earlier this Spring in which a New York appellate court, in Porco v. Lifetime Entertainment, allowed a right of privacy claim to proceed against a television network for its fictionalized drama about a real-life murder. The plaintiff was convicted of having committed the murder, but objected under New York’s privacy statute to the airing of the 2013 Lifetime movie, "Romeo Killer: The Christopher Porco Story."

The proposed bill does provide exemptions that should make media companies happy―including an exemption that would protect Lifetime from Porco’s lawsuit. But in the process a lot of other changes to New York’s laws on privacy are included, and very few of them are wise.\

Tuesday, June 6, 2017

Intellectual Property – Ethiopia’s Experience (continued)

Professor Justin Hughes recently completed a State Department trip to Ethiopia to conduct talks on intellectual property. The U.S. embassy in Addis Ababa's official blog is publishing a series of his posts on the topic. The first was published on June 1, 2017.

In my last blog post, I focused on Ethiopia’s coffee industry; now let’s talk more broadly about Ethiopian’s intellectual property (IP) laws and how those laws potentially impacts the country’s growth.

Ethiopia is almost unique among African countries for its lack of participation in the multilateral treaties that govern the international IP system. There are two main multilateral conventions for IP: the Paris Convention (for patents and trademarks) and the Berne Convention (for copyright law). Today, those treaties have 195 and 183 members, respectively. Ethiopia is the largest economy not participating in the Paris Convention and perhaps the second largest economy not participating in the Berne Convention (after Iran).

Monday, May 29, 2017

Intellectual Property – Ethiopia’s Experience

Professor Justin Hughes recently completed a State Department trip to Ethiopia to conduct talks on intellectual property. The U.S. embassy in Addis Ababa's official blog is publishing a series of his posts on the topic. The first was published on May 19. 

It’s been a pleasure to come to Ethiopia as part of the U.S. State Department’s public speaker series; the State Department invited me here to talk about intellectual property (IP) laws as well as international trade, the two subjects I teach at Loyola Law School at Loyola Marymount University in Los Angeles. During my trip, I’ve spoken before audiences from Addis Ababa and Hawassa universities; conducted a 1.5 day workshop for the Ethiopian Intellectual Property Office (EIPO), and had many smaller meetings and site visits, including the Ethiopian Agricultural Research Institute in Addis, the Oromia Coffee Farmers’ Cooperative Union in Oromia, and rural health centers and health posts in Amhara.

Friday, May 19, 2017

Louisiana Right of Publicity Moves Forward

By Professor Jennifer Rothman

This blog post originally appeared on Rothman's Roadmap to the Right of Publicity.

The proposed “Allen Toussaint Legacy Act” has passed another hurdle in the Louisiana legislature. The bill passed the House last week and was sent to the Senate Judiciary Committee yesterday. The Act is named after the famed New Orleans musician, songwriter and producer, who died in 2015. The proposed law provides individuals with a “property right in the commercial use” of their names, voices, signatures, photographs, and likenesses.

The law problematically provides that this property right is “freely transferable, assignable, licensable, and heritable.” As I have warned elsewhere, such laws provide an avenue for individuals to lose control over their own identities forever if they assign their property right to third-parties like record labels or movie producers, or sports leagues. In addition, estate taxes on such fully transferable property may force heirs to commercialize the identities of the deceased even if that violates the wishes of the deceased and his heirs.

Thursday, May 18, 2017

Professor Caplan Pens ACLU Amicus Brief

Professor Aaron Caplan was the primary author of an amicus brief submitted to the California Court of Appeal in Geoffrey C. Keyes v. Jan Brio. The case interprets the California civil harassment statute, a topic on which Caplan has a leading law review article. In the brief, Caplan focuses on whether the speech in question is “directed at a specific person” or is merely about that person.


The First Amendment broadly protects a speaker’s right to communicate with listeners about topics of the speaker’s choice—even when the topic is another person. Restricting such communication just because its content distresses the person spoken about constitutes a forbidden prior restraint on constitutionally protected speech.

Read the full brief below:

Tuesday, May 16, 2017

With Kindred, Supreme Court Signals It Will Stand By Arbitration Contracts that Limit Private Parties' Recourse in State Courts

By Professor Adam Zimmerman

This week, the Supreme Court rejected a Kentucky rule that prevented people from entering into arbitration with general power of attorney agreements. The Kentucky Supreme Court last year found that such agreements violated its constitutional guarantee to court access and held people only could only assign and waive those rights when a power of attorney contract expressly said so. The US Supreme Court found that the state rule unlawfully "single[d] out" arbitration agreements for "disfavored treatment" and violated the Federal Arbitration Act, which prevents states from discriminating against arbitration agreements.

In some ways, the impact of this decision is narrow. The Court emphasized that states could still prevent people from entering into contracts to arbitrate under "generally applicable contract defenses," like fraud. They just cannot adopt rules that only apply to arbitration. The Court took pains to emphasize that this Kentucky rule was unique because it specifically singled out arbitration as something that had to be expressly provided for, but not other forms of alternative dispute resolution, like settlement discussions or mediation. Said the Court in a footnote, "[m]ark that as yet another indication that the court’s demand for specificity in powers of attorney arises from the suspect status of arbitration rather than the sacred status of jury trials."

Thursday, April 27, 2017

Federal Circuit Adopts Professors' Theories on Veterans' Courts Hearing Class Actions

Relying, in part, on an amicus brief filed by Professor Adam Zimmerman and others, the Federal Circuit this week agreed that veterans can bring class actions in veterans court in the case Monk v. Shulkin.

"By adopting our theory that this veteran's court could hear class actions under its statute, the Federal Circuit not only creates a meaningful path for veterans to pursue desperately needed institutional reform, but it has essentially paved the way for almost all other agencies with similarly worded authority to do the same," said Zimmerman.

The Wall Street Journal reported: "Adam Zimmerman, a class-action expert at Loyola Law School who filed an amicus brief in the case along with other academics, said the Federal Circuit ruling has the power to help more than the veterans. It also could pave the way for other agencies granted similar authority to the veterans court to hear collective actions, he said.

Relevant excerpt of opinion:

Under 38 U.S.C. § 7264(a), “[t]he proceedings of the [Veterans Court] shall be conducted in accordance with such rules of practice and procedure as the Court prescribes.” This express grant authorizes the Veterans Court to create the procedures it needs to exercise its jurisdiction.

Other tribunals have relied on statutes with similar language as 38 U.S.C. § 7264 to aggregate claims and create class action procedures, including the Equal Employment Opportunity Commission (“EEOC”). See Amicus Br. of 15 Admin. Law, Civil Procedure, and Fed. Courts Professors at 10–11 (noting that the EEOC was granted authority to “issue such rules, regulations, orders and instructions as it deems necessary and appropriate to carry out its responsibilities” pursuant to 42 U.S.C. § 2000e-16(b)). Under this authority, the EEOC adopted a class action resolution procedure. 29 C.F.R. § 1614.204; see, e.g., 57 Fed. Reg. 12,634 (Apr. 10, 1992); Wade v. Donahoe, No. CIV.A. 11-3795, 2012 WL 3844380, at *13 (E.D. Pa. Sept. 4, 2012) (“Pursuant to [its 42 U.S.C. § 2000e-16(b)] authority, the EEOC has promulgated regulations for class actions.”).

On the basis of the express statutory authority of the Veterans Court to prescribe “rules of practice and procedure,” the Veterans Court may prescribe procedures for class actions or other methods of aggregation.

Wednesday, April 19, 2017

Loyola Immigrant Justice Clinic Co-Director Testifies before State Assembly Committee

On Tuesday, April 18, 2017, Loyola Immigrant Justice Clinic Co-Director Marissa Montes '12 testified before a California State Assembly committee about the use of gang databases in the state.

Good Morning. My name is Marissa Montes and I am the Co-Director of Loyola Law School’s Immigrant Justice Clinic, which provides free immigration legal services to the community of Boyle Heights and East Los Angeles. Through our work, we have integrated ourselves into the community, and have witnessed firsthand how over-policing, and the mislabeling of gang membership can severely impact an individual’s ability to gain legal immigration status.

For this reason, I am here to testify in support of AB 90, which would address the accuracy and fairness of CalGang and other shared gang databases. This bill not only addresses the concerns highlighted in the California State Auditor’s findings, but would also add safeguards to limit the misuse of information that unfairly targets immigrant and low income communities.

First, AB 90 would place a moratorium on the use of Calgang until the state audit concerns are addressed. The audit found that children younger than one year of age were entered and labeled as gang members, demonstrating either that individuals were being categorized by law enforcement based on family and community ties, or that the data entered was horribly inaccurate. This misinformation proves to be detrimental, as it was for our client, Mathias, a stellar community college student, who in the course of his green card interview was accused of gang involvement due to his older brother. Mathias, who only had one misdemeanor conviction for a non-gang related offense, had never been involved or gang affiliated. US Citizenship and Immigration Services had no access to any evidence regarding gang affiliation, except for inaccurate information collected through CalGang. Mathias’ case remains ongoing, but is an example of one of many young adults in his community who are similarly stigmatized as gang-affiliated.

Tuesday, April 18, 2017

Pitches Procedures Are Too Restrictive to Meet Brady Rule

By Professor Sean Kennedy
Kaplan & Feldman executive director of the Center for Juvenile Law and Policy

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

There is an ongoing court battle between Los Angeles County Sheriff Jim McDonnell and the Association of Los Angeles Deputy Sheriffs (ALADS), the union that represents line officers, about what to do with findings of misconduct in a police personnel file. The case, which will significantly impact criminal justice in Los Angeles, is set for argument before the California Court of Appeal on May 1.

The dispute relates to how to implement the landmark 1963 case Brady v. Maryland, in which the U. S. Supreme Court held that prosecutors violate due process if they fail to disclose exculpatory evidence to the defense. “Exculpatory” includes information that impeaches the credibility of prosecution witnesses, including witnesses who are sworn law enforcement officers. Later, the court in Kyles v. Whitley held that because the police are part of the “prosecution team,” police suppression of exculpatory evidence also violates Brady, even if the prosecutor was unaware of the evidence.

Sheriff McDonnell compiled a list of 300 deputy sheriffs whose personnel files reflect discipline for serious misconduct, such as accepting bribes, tampering with evidence, lying, falsifying records or obstructing an investigation. He tried to give this “Brady list” to District Attorney Jackie Lacey so that prosecutors who relied on the disciplined officers to make their cases would be aware of the impeachment evidence and disclose the names of the officers to the defense.

Friday, April 7, 2017

Gorsuch Should Look Forward, Not Behind

By Professor Allan Ides

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

Judge Neil Gorsuch, President Donald J. Trump’s nominee to the U.S. Supreme Court, has described his method of constitutional interpretation as one in which he tries “to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be — not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.” As such, Gorsuch’s constitutional philosophy is akin to the originalism endorsed by Justices Antonin Scalia and Clarence Thomas. It pegs our future on the past and it draws a bright line between those judges who adhere to the law — originalists — and those who impose their will on it — presumably everyone else.

On its surface, original understanding may seem to offer an attractive and principled approach to judicial interpretation of the Constitution. Under that approach, the judge operates as a neutral umpire who enforces the values established in 1789 or those found in subsequent constitutional amendments. It offers the hope of constitutional stability and leaves to democracy the responsibility of adjusting the Constitution to modern realities. But this vision is belied by the reality of how judges and justices actually interpret the law and resolve disputes. It is also premised on a highly unrealistic impression of how the American democracy works.

Virtually all judges are originalists when it comes to an unambiguous constitutional text. No sensible judge would struggle with the meaning of Article II’s requirement that limits the presidential office to a person who has “attained to the age of 35 years.” But most of the contested provisions of the Constitution are stated in open-textured, sweeping terms. Some obvious examples include “the free exercise” of religion, “the freedom of speech, or of the press,” and the guarantees of “due process.” Those phrases may sound relatively definite, but they aren’t. Even originalists disagree among themselves over their respective meanings. Other open-textured phrases define the powers of Congress, the presidency, and the judiciary; and still others limit the powers of the states with broadly worded terms such as “privileges or immunities” and “equal protection of the laws.” The question is whether originalism can provide a sustainable and sensible path to the correct understanding of such contestable provisions. I have my doubts.

Tuesday, March 7, 2017

Religious Organizations, Refuge for Undocumented Immigrants, and Tax Exemption

By Professor Ellen P. Aprill

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

For many houses of worship, the Biblical injunction, “You should not wrong a stranger or oppress him, for you were strangers in the land of Egypt” (Exodus 22:21, JPS), constitutes an important religious doctrine. The Trump administration has announced plans for aggressive enforcement of immigration laws, plans that are expected to expand massively the number of people detained and deported. This new policy has forced many houses of worship and other religious organizations to consider whether their beliefs call upon them to grant refuge or so-called sanctuary to undocumented immigrants.

Under long-standing immigration laws, harboring undocumented immigrants carries the potential for both fines and imprisonment. An organization can lose its exempt status if its purpose is illegal. Moreover, illegal activity is deemed not to further an exempt purpose, and an organization can also lose its exempt status if a substantial part of its activities are not in furtherance of its exempt purpose. Houses of worship and religious organizations face some risk, at least in theory, of losing exemption for such activity. As a practical matter, loss of exemption is unlikely, but the organization needs to document the religious basis for its actions and the criteria it will use.

One piece of official IRS guidance offers important guidance. It involved an organization formed to educate the public on the principles of pacifism and nonviolent action, including civil disobedience. This 1975 “Revenue Ruling” explains that no Section 501(c)(3) organization can have an illegal purpose. The ruling’s analysis, however, emphasized the group’s primary activities of undertaking protest demonstrations and other nonviolent actions, including deliberately blocking traffic, disrupting the work of government, and preventing the movement of supplies, all breaches of the peace in violation of local ordinances. The ruling concluded that the organization’s activities “demonstrate an illegal purpose which is inconsistent with charitable ends.” The Tax Court in Church of Scientology of California v. Commissioner similarly concluded that pervasive illegal activities, including a number of felony convictions, constituted an illegal purpose and that the organization’s claimed status as a church did not protect it from application of the illegality doctrine.

Wednesday, February 22, 2017

The Fairness in Class Actions Litigation Act of 2017 (H.R. 985): A Few Thoughts

By Professor Simona Grossi

The Fairness in Class Actions Litigation Act of 2017 (H.R. 985) is currently pending in Congress. The bill, purportedly intended to reform class actions and bring “fairness” to the process, implicitly reveals, and not that covertly, the proponents’ disapproval of the work that the Advisory Committee has been doing on Fed. R. Civ. P. 23 for the past five years. Apparently the Advisory Committee is not moving fast enough or in the preferred direction. Of course,  Congress has the constitutional authority to provide rules of procedure for  Federal courts, but the system devised under the Rules Enabling Act (REA) has the benefit of proceeding through a transparent public process that, although far from perfect, promotes a fair consideration of all sides of any proposed alteration of the federal rules. Measures pushed through Congress, although subject to the usual hearing process, rarely have the detailed consideration and input from all interested parties that occurs under the rulemaking system followed by the Advisory Committee.

The procedural reform imposed by H.R. 985 is not a bottom-up, but rather a top-down imposition of   relatively narrow point of view. It is certainly not the product of the type of public forum system followed by the Advisory Committee. True, the legislature is representative of the people. But it is truly so? To what extent? And even assuming that it is, the class actions topic is so technical—sometimes even hyper technical for the experts in the field—that it demands a focused and narrow process of reflection and study, exchange and confrontation, precisely the one the Advisory Committee engages in and has engaged in with respect to Rule 23.

Monday, February 20, 2017

In Kindred, Supreme Court to Revisit Mandatory Arbitration Clauses

Professor Adam Zimmerman offers his thoughts on Kindred Nursing Centers v. Clark, scheduled for oral arguments before the U.S. Supreme Court on Wednesday, Feb. 22.

Kindred involves one of the latest challenges to mandatory arbitration clauses that bar class actions.  The Supreme Court in a series of cases since Concepcion has broadly permitted corporations to require that consumers enter arbitration agreements waiving rights to bring class actions in any forum.  But long before Concepcion, the Court also drew an important distinction for parties challenging arbitration agreements.  In Buckeye Check Cashing, the Court said a party who challenges the terms of an agreement that includes an arbitration provision has to raise that problem in the arbitration itself.  But when a party challenges whether or she entered into an arbitration agreement at all, the Court suggested that's something for courts to decide under state law.  

Nursing home cases raise that problem because many people in nursing homes may rely on someone else to enter into the nursing home contract using a power-of-attorney.  The lower court found that, as a matter of state law, it could decide whether those mandatory arbitration agreements signed by those using a power of attorney were invalid and ultimately found they were.  The Supreme Court will now decide whether, under the logic of cases like Concepcion, the Kentucky Supreme Court should have enforced the arbitration agreement under the Federal Arbitration Act, or instead, whether a party can raise state law challenges to entering such an agreement. 

Wednesday, January 25, 2017

Another Personal Jurisdiction Case in the Supreme Court

By Professor Simona Grossi

Some people have asked me to comment on the latest personal jurisdiction case pending in the U.S. Supreme Court. It did strike me that the Supreme Court has granted review in another personal jurisdiction case. As described by the Petitioner in BNSF Railway Company v. Tyrell, No. 16-405, the question presented is the following:
Whether a state court may decline to follow this Court’s decision in Daimler AG v. Bauman, which held that the Due Process Clause forbids a state court from exercising general personal jurisdiction over a defendant that is not at home in the forum state, in a suit against an American defendant under the Federal Employers’ Liability Act.
I would describe the question somewhat differently. I would say that the question is whether FELA authorizes the exercise of personal jurisdiction in state and federal courts in those states in which a railroad is “doing business,” and if so, whether Congress has the power to do so.

In relevant part, FELA provides that
An action may be brought in a district court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. The jurisdiction of the courts of the United States under this chapter shall be concurrent with that of the courts of the several States.
45 U.S.C. §56. Plaintiffs filed their FELA suit in a Montana state court. The defendant did not reside in Montana, nor did the injury-causing incident occur there. The defendant was, however, engaged in regular course of business in Montana. Thus, in filing their suit in Montana, the plaintiffs relied on the doing-business portion of §56.

Wednesday, January 18, 2017

Loyola Law School Ranked #16 on List of 'Best Schools for Bar Exam Preparation'

Loyola Law School, Los Angeles is ranked #16 on The National Jurist Magazine​'s list of the top 40 "Best Schools for Bar Exam Preparation," outperforming the predictive results of all its California peers!

Monday, January 16, 2017

On Behalf of the Community

Professor Eric Miller recently presented at the Association of American Law Schools Annual Meeting panel “#BlackLivesMatter: Balancing Security with Dignity in American Policing" raised points that are particularly salient in light of the Chicago report. His talk, published below, which is the basis for his forthcoming law review article in the Fordham Urban Law Journal.

A new manifesto of sorts is emerging from certain quarters of the academy challenging us to rethink our parochial approach to criminal justice. The challenge is to detach the way we think about policing from the context of the Fourth and Fifth Amendments, and instead approach policing in the context of some more general questions about the justification of criminal law and criminal punishment. This manifesto of sorts is being worked out by a loose collection of Anglo-American scholars, who have revived the long-dormant political question of how to justify the police within the apparatus of state punishment. That question last made a major appearance in the American legal academy in the 1960s, when Herbert Packer raised it as part of his book on the Limits of the Criminal Law. But it was soon drowned out by doctrinal and sociological approaches to policing.

The Black Lives Matters movement has also raised a series of political questions that have lain dormant for about half-a-century: indeed, since the last major period of racial unrest in the 1960s. Some of those questions are: what are the police? What is their role? To whom are they accountable? Whom do they represent? In the late 1960s and early 1970s a variety of sociologists and administrative law theorists including Jerome Skolnick, James Q. Wilson, Egon Bittner, William Ker Muir and Kenneth Culp Davis provided what has seemed like a definitive answer: that the police are those people entrusted with the situational power to deploy force in the community. But the Black Lives Matter movement, along with the less organized but equally compelling smartphone scrutiny of police violence, has given use good reason to be unhappy with this answer. The situational power to deploy force does not appear to represent the rule of law and the rights of civilians on the street. So the sociologist’s answer, telling us what, descriptively, the police actually do, does not tell us whether, normatively, the police ought to be doing it, and, politically, on behalf of whom they do it.

The political and normative set of questions raised by the Black Lives Matters movement I am particularly interested in, are the questions of representation and agency: on whose behalf to the police act? Police legitimacy often depends upon the answers to these questions: they gain their authority to intervene, including to deploy force, because of their role as state or municipal agents. In acting as the police, they act in their role as public officials authorized by the laws of the relevant jurisdiction that confer the legal power to act as they do. As Michelle Dempsey makes clear, the point is a conceptual one: without a state or a municipality to represent as publicly authorized officials, they would not be police. When, for example, the Mafia takes over the role of ensuring public order in the communities they control, they do not become “the police,” because they represent the Mafia, rather than the state.

The Mafia, like the police, often claim to act on behalf of, not only the state or municipality, but also the community. Indeed, the whole community policing movement gains its resonance from that claim. But what does it mean to “act on behalf of” a community? Because it is possible for the state, and thus for state officials, to fail to serve the communities they are supposed to govern. Your country is founded on just such a claim. Are the police an institution that, by its very nature, represents the community in addition to the state?

In our current political climate, the question of whom the state represents is a live one: large chunks of people on the right of the political spectrum have claimed that President Obama does not represent them, and large chunks of people on the left of the political spectrum claim that President-Elect Trump does not represent them, either. These communities are making an important political point: to represent some group is to claim to be authorized by that group to speak and act on its behalf. The police have a pretty compelling claim to speak and act on behalf of the state: they are members of the executive branch of government, and the various constitutive rules of government identify them as state agents. But speaking on behalf of the community is a question of political rather than institutional legitimacy. And it is that question that is being pressed by the Black Lives Matter movement, and requires a political answer that goes beyond the constitutive rules of the state.

One political answer is that acting on behalf of a community—representing a community by speaking on its behalf and acting in its name—requires regarding oneself as answerable to the community. It requires regarding community members as having standing to call you to account, as a community representative, for what you are saying and what you are doing. And this idea of accountability has important consequences for the political standing of members of the public on the street, in their interactions with the police.

The police provide two answers to the question of how they are answerable to the community: the first is that they express the values and interests of a particular group, for example by soliciting public opinion and input as to how to deploy their resources. This is the answer promoted through the community policing movement: the police are not mere agents of the state, but responsive to the needs of the community. 

Friday, January 13, 2017

Loyola Professors Address "Why Law Matters" at Premier Law School Conference

Loyola Law School, Los Angeles professors are presenting at the prestigious Association of American Law School Conference from Jan. 3-7, 2017 in San Francisco. The largest annual gathering of law faculty brings thousands of legal scholars, deans and administrators together to discuss critical legal issues and innovations in legal education centered on the theme of “Why Law Matters.”

Professors presenting include:

Professor Ellen Aprill, John E. Anderson Chair in Tax Law, will present “Section 501(c)(3) Organizations, Single Member Limited Liability Companies, and Fiduciary Duties” at the Section on Agency, Partnership, LLCs and Unincorporated Associations & Nonprofit and Philanthropy Law Joint Program on Friday, Jan. 6 at 1:00 p.m.

Professor Hiro Aragaki will speak on the panel “Comparative Commercial Arbitration: U.S., Asia, Europe and Latin America” to be held on Friday, Jan. 6 at 1:30 p.m.

Professor Brietta Clark, Associate Dean for Faculty, will speak about insurance law during “Health Insurance and Access to Healthcare After the Affordable Care Act.” She will focus on Supreme Court decisions attempting to clarify the circumstances under which private individuals may sue to enforce federal Medicaid spending conditions and the impact this could have on Medicaid access. The panel is co-sponsored by the Section on Law, Medicine and Health Care and will run on Wednesday, Jan. 4 at 10:30 a.m.

Professor Simona Grossi, chair of the AALS Section on Civil Procedure, will moderate "The Roberts Court and the Federal Rules of Civil Procedure" on Thursday, Jan. 5 from 8:30-10:30 a.m.

Professor Michael Guttentag, John T. Gurash Fellow in Corp. Law & Business, will discuss Salman v. United States, the U.S. Supreme Court’s first insider-trading opinion in 20 years, during a hot-topics panel to be held on Friday, Jan. 6 at 8:30 a.m.

Professor Allan Ides, Christopher N. May Chair, will discuss “Leveraging the Rise of the Law in Popular Culture” at 10:30 a.m. on Friday, Jan. 6. He will draw on his experience as a technical adviser to the show “First Mondays” and extensive media commentary work to talk about a professor's potential to shape the legal media landscape.

Professor Eric Miller, a race and policing expert, will speak on “#BlackLivesMatter: Balancing Security with Dignity in American Policing" on Jan. 6 at 10:30 a.m.

Professor Alexandra Natapoff, on leave in 2016-17 to pursue a Guggenheim Fellowship, will be commenting at the American Constitution Society’s Junior Scholars Public Law Workshop on Thursday, Jan. 5.

Professor Priscilla Ocen, a member of the Civilian Oversight Commission of the Los Angeles Sheriff’s Department, will speak on “The Challenge of Crime in a Free Society—Fifty Years Later” on the anniversary of a landmark report detailing concerns and suggestions for improvements in the criminal justice system. The panel will be on Thursday, Jan. 5 at 1:30 p.m.

Professor Elizabeth Pollman will participate in two panels related to business law. “The Securities and Exchange Commission and Sustainability Disclosure” on Wednesday, Jan. 4 at 10:30 a.m. will examine the sustainability of the commission’s Concept Release. “Business Law in the Global Gig Economy: Legal Theory, Doctrine, and Innovations in the Context of Startups, Scaleups, and Unicorns” on Thursday, Jan. 5 at 1:30 p.m. will analyze how entrepreneurs challenge business and legal norms.

Professor Lauren Willis, William M. Rains Fellow, will participate in two panels. She will provide commentary for the American Constitution Society's Junior Scholars Public Law Workshop on Thursday, Jan. 5 at 4:00 p.m. on the paper “A Rehabilitative Reparations Approach to Racism in the Credit Card Industry.” Her second panel will discuss performance-based privacy protections at “Governing Privacy: How Governance Theory Provides Insight into Privacy Law and Policy,” presented by the Defamation and Privacy Section on Friday, Jan. 6 at 8:30 a.m. Her talk will focus on how mandated disclosures are not effective in ensuring consumer control over their personally-identifiable information and how firms should demonstrate what data is being collected, who can use it and how it can be used.