Wednesday, August 29, 2018

The Silver Lining: Will McCain’s Legacy be America’s Rejection of Partisanship Politics?

By Professor Maureen Johnson

American values. It’s hard to imagine a statesman who so perfectly embodied American ideals as Sen. John McCain. Rather than jump the line on early release as a prisoner of war because of his privileged status, he refused. Honoring the military code of conduct that prisoners of war should be released in the order of capture, McCain was imprisoned for over five years – including two years of solitary confinement - enduring daily tortures that left him hobbled in body, but never in spirit. As universally agreed, he was a good man, a good husband and father, and a truly phenomenal American.

But McCain recently had one unabashed critic.

Donald Trump publically rejected the idea that John McCain was an American hero. Per Trump, McCain only was given that tag “because he was captured.” Trump added: “I like people who weren’t captured.” Trump continued his rebuke even after McCain revealed his battle with cancer. While fellow Republicans begged for reversal, Trump doubled-down, scorning and belittling an honored patriot whom almost all of us feel we have been blessed to admire and call our own.

Trump’s heartless comments are emblematic of a much deeper philosophy that cannot be reconciled with our American spirit. Whenever there is a winner, there is a loser. To say one automatically is worthy and the other is not is insidious, divisive and an affront to humanity. This especially is so when the perceived loser – the person violated – is a fellow American.

Imagine if the words Trump uttered were instead: I like police officers who don’t get shot. I like women who don’t get sexually assaulted. I like children who don’t get beat up by a schoolyard bully.

If John McCain taught us anything, it’s that we do not turn on each other. Americans have each other’s backs. Winners do so with grace. If this is done, the losing party is not disenfranchised. Instead, we tackle problems as Americans, not as embattled partisans bent on wielding power to destroy the other. In an open letter to America read two days after his death by long-time aide Rick Davis, McCain said just that.

In the words of Sen. McCain:

“We weaken our greatness when we confuse our patriotism with tribal rivalries that have sown resentment and hatred and violence in all of the corners of the globe. We weaken it when we hide behind walls rather than tear them down, when we doubt the power of our ideals rather than trust them to be the great force for change they have always been. We are 325 million opinionated vociferous individuals. We argue, and sometimes even vilify each other in our raucous public debates. But we have always had so much more in common with each other than in disagreement. If only we remember that and give each other the benefit of the presumption that we all love our country, we will get through these challenging times. We will come through them stronger than before; we always do.”

McCain’s poignant words can bring us home.

America was great when we honored our fallen soldiers instead of kicking them to the wayside. America was great when we shared our good fortune, instead of whining like a spoiled child that we want all the candy for ourselves. America was great when our elders – including the very great John McCain – earned their spots as world leaders by championing democracy, instead of touting the purported charms of brutal dictators and autocrats.

And yes, America truly was great when a naval pilot in Vietnam named John McCain chose to forgo his get-out-of-jail-free card and instead stand in solidarity with his fellow soldiers. We know what reasoning Trump would have employed to weigh such a decision: winning.

Surely, that is what Trump thought he did when he got a waiver from serving in the military altogether due to his claim of being physically unfit because of a bone spur in his heel that somehow never since has caused him a problem. Imagine a 20-something Trump yucking it up at a Manhattan nightclub, boasting about how clever he was. If this was “winning,” who were the losers? Per Trump’s all-or-nothing winner-loser paradigm, the “losers” in his view must have been all those American soldiers who weren’t so clever and instead served their country when called, ultimately drawing their last breath on a battlefield in Laos.

This is the man we elected president? It is no wonder McCain’s final farewell to America has been perceived by many as a warning about the views of the current administration.

No doubt the impact of an American president’s ideals – or lack thereof – trickles down to the masses, most notably to impressionable children. Consider a 6-year-old trying to grapple with the idea of sharing: two scoops of ice cream for me, one for you. Or respecting a classmate: If you’re president, you can do whatever you want. Grab them by the p****. And then there’s truth: A lie isn’t a lie if you say it enough

Character matters. McCain possessed both the courage and grit to hold a mirror up to Trump. In doing so, he has held that same mirror up for the entire nation. Is Trump whom we want to become? Or is it true American heroes committed to service – like John McCain – whose aim is to unite rather than divide?

Just as presidential values can trickle down, the values of the American people can trickle up. Let’s honor McCain not as partisans, but as the Americans for whom he valiantly served in Vietnam, in that cage in Hanoi as a prisoner-of-war and in the grand halls of the United States Senate, where he called for the end to partisan politics. McCain rose like a phoenix from the most trying of times; so too can we.

Put simply, which of these two men do you want your son or daughter to emulate? Senator McCain, you have my vote.

Tuesday, August 7, 2018

Time to revive the Democratic-Republican Party?

By Maureen Johnson

This article originally appeared in The Daily Journal.

The Whigs. The Federalists. The Bourbon Democrats. Since ink met parchment to create the Declaration of Independence in 1776, America has seen its fair share of major political parties. Our forefathers warned against the danger of factionalism, recognizing the insidious desire for dominance easily could result in discord if not outright disenfranchisement. Alexander Hamilton and James Madison discussed these views in Federalist Papers Nos. 9 and 10. Yet Madison, along with Thomas Jefferson, went on to form America’s first political party, known as the “Democratic-Republican” or “Anti-Administration” Party. Hamilton took the helm of the competing Federalists. Hence, our two-party system was born.

In the wise words of Abraham Lincoln: “And this too shall pass.”

Many historians view our country as tumbling through five to six distinct eras in our two-party system. Over time, the nomenclature and ideals of major political parties transmogrify. In Lincoln’s day, the Grand Old Party Republicans fought for the rights of African-Americans. Democrats took up that laboring oar for many more minorities no later than the1960s, with the passage of the Civil Rights Act. And GOP’s finest hour soundly was kicked to the curb in 2016 when modern-day alt-right leaders — including David Duke, a Grand Wizard of the Ku Klux Klan — gave a thumbs-up to the GOP presidential candidate.

Is it time for a seventh era in our two-party system?

Many moderate Republicans are caught in the middle of a bitter tug-of-war between Democrats and an unrelenting far-right faction of the Republican Party that continues to stoke racism, either to validate prejudice or as a means for political gain. Put simply, Democrats certainly can get along with moderate Republicans, and vice versa. The civil war America faces is not between Democrats and moderate Republicans; rather it is with that small hard-right faction who have an unprecedented but very real stranglehold on how our country is run.

How can it be that 70 to 80 percent of Americans agree on major political planks yet that consensus is all but ignored by those in power? We agree Dreamers are entitled to a path to citizenship, babies should never be stripped from the arms of parents seeking asylum, and affordable healthcare should cover preexisting conditions. There even is general concurrence for basic gun control reform. And a majority of Americans easily would rather spend billions of dollars on meaningful programs, e.g., infrastructure or addressing the opioid crisis, instead of funding a symbolic “wall” that Trump promised would be paid for by an outside source. Even a 5-year-old understands that being asked to pay for a promised gift is a far cry from a promise kept.

Tuesday, July 3, 2018

On Independence Day, a Renewed Focus on Individual Liberties

By Professor Gary Williams

"I think eternal vigilance is the price of keeping it (the Bill of Rights) in working order." – Professor Lawrence Tribe, Harvard Law School 

I am reminded of the critical importance of vigilance as we approach Independence Day 2018. The pictures of innocent children in cages after our government separated them from their parents could not be more striking evidence of violation of the 8th Amendment prohibition of cruel and unusual punishment. President Trump tweeted that all aliens, even those who may be seeking asylum, should be deported “When somebody comes in we must, with no Judges or Court Cases, bring (sic) them back from where they came.”[1] This disparages the right to due process of law guaranteed to all, including noncitizens, by the 5th and 14th Amendments.

Our revered system of checks and balances, designed to protect our democracy, appears to be in peril. The Supreme Court just upheld the Muslim ban despite clear evidence it was motivated by prejudice and politics, not “national security.” Congress is in danger of becoming a “rubber stamp” because members of the President’s party are afraid to oppose his policies or criticize his behavior.[2]

The First Amendment of the Bill of Rights, born out of the founders’ quest to form “a more perfect union,” allows me to retain hope. The brave young survivors of the Parkland High School mass shooting have boldly utilized their right of free speech to educate the public about their demand for sensible gun control legislation. The media have fearlessly exercised freedom of the press to help uncover and expose to the world, through words and pictures, the family separations resulting from implementation of the “zero tolerance” policy. Citizens have powerfully exercised their right to protest in response to that coverage, forcing the government to rescind the policy of separating children from their families, despite the initial insistence of government officials that family separation was “mandated by law.” And lawyers have effectively utilized the right to petition the government to convince Federal District Court Judge Dana Sabraw to order a halt to most family separations at the United States border, and reunification of all families that were separated by the government until the due process guarantee is satisfied.[3]

The vigilance of those high school students, media members, everyday citizens and attorneys has kept the Bill of Rights in working order. On July 4, each of us should honor their vigilance by pledging to exercise vigilance whenever we can.

-----

[1] @realDonaldTrump, June 24, 2018.
[2] "What he (Trump) has taken is the legitimate hopes and fears people have had for change in Washington and he has morphed that into -- given the strength of his personality -- a whole host of different loyalty tests about him… People come up privately numerous times a day and talk about different frustrations with the President's style…. His caustic nature, his latitude with the truth, but they won't voice those opinions publicly for fear of reprisal." Representative Mark Sanford, Republican, CNN, June 22, 2018.
[3] “California federal judge orders separated children reunited with parents within 30 days,” Alene Tchekmedyian and Kristina Davis, Los Angeles Times, June 27, 2018

Tuesday, June 26, 2018

Loyola Law School Sends Inaugural Team to the International Mediation Competition in Paris

The International Chamber of Commerce (ICC), located in Paris, France, has for the past thirteen years organized an annual International Commercial Mediation Competition that draws students and practitioners from all corners of the globe. For the first time this year, Loyola Law School sent a team of four students—Josh Genzuk (3L), Nate Pezeshki (3E), Nidya Gutierrez (2L), and Patricia Martinez (2L)—to compete in Paris alongside 66 other schools from 32 different countries. The team was coached by Adjunct Professor Cindy Pasternak (LLS ‘76) and Professor Hiro Aragaki, and was assisted by Visiting Scholar Federico Ferraris, who teaches at the University of Milano-Bicocca in Milan, Italy.

From February 2-7, 2018, students competed in around 150 mock sessions to resolve international business disputes through mediation in accordance with the most current version of the ICC Mediation Rules. Unlike other ADR competitions where students take the role of the neutral mediator, in the ICC Competition students act as mediation advocates representing a client. The competing teams were supported by more than 130 professionals from around the world who were experienced in resolving cross-border disputes, some of whom acted as mock mediators and others of whom took the role of judges. The students were evaluated on their negotiating and problem-solving skills, their ability to make good use of the mediator, and their ability to bridge cultural differences.

The Competition is the ICC’s biggest educational event of the year and provides a once-in-a-lifetime opportunity for young, talented students and experienced professionals alike to forge relationships, build skills, and share best practices. “I had an unbelievable experience,” 3L student Josh Genzuk said of his participation in the inaugural team. “The training that we received on negotiation theory and human communication theory in general, was one of the greatest learning experiences that I have ever been a part of. I do not believe that this level of learning and interaction would have been attainable in any other law school class.”

Wednesday, June 20, 2018

Loyola Immigrant Justice Clinic Statement on Family Separations at Border

The Loyola Immigrant Justice Clinic at Loyola Law School, Los Angeles joins its colleagues in condemning the widespread family separations occurring along our southern border. Because of repeated misrepresentation of both fact and law by government spokespersons, the following points require clarification:
  • In early May, Attorney General Jeff Sessions announced a policy of "zero tolerance" against individuals, including families with children, arriving at the southern border. This policy is new, entirely a creature of the current administration, and wholly within the executive branch's discretion.
  • This new policy mandates criminal prosecution and incarceration of individuals for misdemeanor first-time unlawful entry. The new, discretionary policy implements incarceration for this misdemeanor. Incarceration is not a requirement of the law.
  • It is this draconian policy of incarceration for a first-time misdemeanor offense that has resulted in the wholesale separation of parents and caregivers from their children, a policy condemned by the American Academy of Pediatrics because of the traumatic effects of separation and the long-term damage done to already vulnerable children. A secondary effect is the overcrowding of federal courts previously focused on prosecution crimes such as human trafficking and the illegal drug and weapons trade. 
  • This policy operates in conjunction with ICE's "surge initiative," a policy of targeting the sponsors of children released from federal custody by the U.S. government into the custody of caregivers. The two operate together to promote the isolation of children from relative caregivers, and to prolong their detention and isolation. 
  • These policies are a violation of the UN Convention on the Rights of the Child, the standards contained with the the UN Declaration of Human Rights, and basic norms of humane conduct. They are a stark departure from past practices, and represent an effort to use children as a weapon to enforce the president's inhumane immigration agenda.

Tuesday, June 19, 2018

U.S. Misguided in Decision to Leave UN Human Rights Council

By Mary Hansel, Deputy Director, Loyola International Human Rights Clinic

The U.S. decision to leave the UN Human Rights Council is disappointing on a number of levels and, frankly, shows a lack of understanding about how the international human rights system works. This decision will harm U.S. interests, as well as the Council itself.

By giving up its seat on the Council in misguided protest, the U.S. is actually limiting its own influence over the Council and its state members. Withdrawing from the Council means forfeiting a key position in shaping Council operations, agendas and human rights decision-making. Meanwhile, the Council will still conduct periodic reviews of and condemn the human rights records of the U.S. - and of Israel - as part of its Universal Periodic Review process and through various resolutions. (Indeed, one of the reasons the Council is so innovative is that all 193 UN member states are subject to human rights scrutiny, regardless of Council membership or treaty ratification.) Thus, the U.S. is cutting off its nose to spite its face here.

Despite the capitulation that the U.S. is hoping to achieve, many members of the international community are saying "good riddance" to the U.S., given the Trump Administration's apparent disregard of human rights and disruptive antics at the UN. However, the U.S. career diplomats who work with the Council are well-versed in human rights and tend to have a positive, moderating influence on other state members with egregious human rights records. Conversely, the U.S. departure means that the Council and its members will lose their potentially moderating influence over the U.S.

Friday, May 25, 2018

Reflections on Epic Systems v. Lewis

By Professor Hiro Aragaki

Earlier this week, the U.S. Supreme Court decided three consolidated cases, styled Epic Systems Corp. v Lewis, Nos. 16–285, 16–300, 16–307, 584 U.S. __ (2018), that all raised the issue of whether a class arbitration wavier in various employment contracts was enforceable, given the potentially conflicting mandates of the Federal Arbitration Act (FAA) and the National Labor Relations Act (NLRA).  In a 5-4 majority opinion authored by Justice Neil Gorsuch, the Court held that there was no conflict between the two federal statutes and that both were consistent with enforcing the class arbitration wavier.  Justice Ginsburg, writing for the dissent, also found no conflict but believed that both statutes were consistent with the opposite conclusion—namely, that the class arbitration wavier was illegal and should not be enforced.  In the alternative, the dissent reasoned that even if there were a conflict, the waiver was still unenforceable. 

The basic facts of these consolidated cases were that certain employees sought to bring a putative class action against their employers even though their employment contract contained a class arbitration waiver—that is, a clause that not only requires the employee to arbitrate rather than sue in court, but that also prohibits the employee from bringing a class arbitration on behalf of similarly situated employees.  The employees argued that the waiver was illegal and thus unenforceable, because NLRA section 7 had been construed by the National Labor Relations Board to give employees an absolute, non-waivable right to band together in a class when suing their employers.  See D. R. Horton, 357 N. L. R. B. 2277 (2012).  The employers countered that under the FAA section 2, class arbitration waivers must be enforced strictly according to their terms, in some cases even if those terms are otherwise illegal. 

These cases therefore raised the specter of a conflict between two federal statutes: The NLRA, enacted in 1935, and the FAA, enacted in 1925.  Under traditional conflict of laws principles, in the event of an unavoidable conflict between coequal statutes the later-enacted statute controls (in this case, the NLRA).  In Epic Systems, that would translate into a victory for the employee.  So the employers had to hang their hat on the argument that there was no inherent conflict between the FAA and the NLRA. 

Monday, May 21, 2018

Former U.S. Soliciator General Verrilli Delivers Commencement Keynote Address

Loyola Law School, Los Angeles' 2018 Commencement address was delivered by Donald B. Verrilli Jr., partner, Munger, Tolles & Olson, LLP. Verrilli served as Solicitor General of the United States from 2011 to 2016. 

President Snyder, Dean Waterstone, distinguished faculty, alumni, family and friends, and members of the graduating class of 2018:

Thank you for inviting me to be with you today. Loyola Law School, Los Angeles is a special place and today is a special day, and I feel very privileged to be able to share it with you.

Let me start with a hearty congratulations to each and every one of you. Anybody who has been to law school knows that it was not easy to get to where you are today. So today is a day for savoring your accomplishments, reflecting on all the hard work you put in and all the obstacles you had to surmount, to earn the diploma that you will have in your hands in just a few moments. It’s a day for joy – a joy to be shared with the family and friends that helped you get to where you are now and that feel such pride in all that you have accomplished so far. So bask in it all. Enjoy the moment. Enjoy the satisfaction of having run this race well and crossing this finish line. 

It Takes a Village to Stop Cyber Crime

By Adjunct Professor Robert Kang

Adjunct Professor Robert Kang recently published It Takes a Village to Stop Cyber Crime: How Cyber Information Sharing Organizations Help Business in Need in the Association for Corporate Counsel's May 2018 magazine.

An excerpt appears below:
To minimize the need for luck, governments and various industries have created organizations designed to share security-related information among their members in a structured, regular manner. Often called “public/ private partnerships” and “information sharing organizations,” many of them follow a similar model: They are organized as nonprofit entities, and their members send information, like suspicious IP addresses and other threat indicators, to them. The sharing organization anonymizes (if requested), aggregates, and processes the submissions and, in some cases, enriches it with nonpublic information provided by government agencies or other sources.

Read the article in its entirety.


Friday, May 18, 2018

The Right of Publicity: Privacy Reimagined for a Public World

Below is an excerpt from Professor Jennifer Rothman's new book The Right of Publicity: Privacy Reimagined for a Public World, published on Friday, May 18 in the Los Angeles and San Francisco Daily Journal.

The frequently uttered and simplistic dichotomy—that privacy is about protecting the shrinking violets of the world, while the right of publicity is about protecting those who seek the limelight—was never true, and does a disservice to both those who wish to avoid publicity and those who seek it out. Actors do not want videos of them changing in a hotel room distributed online, their children followed, or their images slapped onto billboards or used in television commercials without their permission. This is not necessarily because they want to be paid for such uses, but because such uses are upsetting and disturbing, can destroy their reputations and ability to author their own identities, and turn them into puppets with others pulling the strings.

Nor do those of us who wish to live less public lives want to hide in our homes. We take walks, post family photographs to Facebook and Instagram, blog and tweet about our experiences, create YouTube channels showing how to prepare various recipes or master a video game, and leave traces behind when buying books on Amazon. These acts do not mean that private figures wish to cede the right to control how our names, likenesses, voices, and other information about ourselves is used by others. We all live our lives in public. But by doing so we should not become public property.

Thursday, May 17, 2018

Professor Levitt's Testimony on Census Citizenship Question

On May 8, 2018 Loyola Law School, Los Angeles Dean for Research Justin Levitt testified before the U.S. House Committee on Oversight and Government Reform regarding the 2020 census. An excerpt appears below:
In the current political climate, asking a question about citizenship status of every individual in the country is no mere request for information. Those who work in and with communities skeptical about the role of the federal executive branch fear that the question will prove explosive. Secretary Ross made the determination to ask this question despite his own admission that the career staff of “the Census Bureau and many stakeholders expressed concern [that doing so] would negatively impact the response rate,” and despite the absence of any opportunity to test that impact before implementing the change.
Read his full testimony below:

Thursday, May 10, 2018

Government Class Actions After Jennings v. Rodriguez

by Maureen Carroll, Alexandra D. Lahav, David Marcus & Adam Zimmerman

This post is excerpted from the Harvard Law Review Blog.

The Supreme Court’s recent decision in Jennings v. Rodriguez raised the momentous question of whether the government can indefinitely detain people without a hearing. If the government has its way, the case also may close the courthouse doors to a wide array of class actions long used to challenge unlawful government action.

In Jennings, the Court, in an opinion by Justice Alito, ruled that the government did not have to offer detained immigrants bond hearings under the Immigration and Nationality Act. But the Court declined to address a related issue—whether denying bond hearings would violate due process. Instead, the Court sent the case back to the Ninth Circuit to address that question first.

But the Court didn’t stop there. At the end of the majority opinion, the Court also invited the Ninth Circuit to consider whether plaintiffs could bring a class action at all for their due process claim. In so doing, the Court asked whether individual differences between plaintiffs prevented courts from certifying class actions in due process cases, just as they did in Wal-Mart Stores, Inc. v. Dukes, a multi-billion dollar damage class action decided by the Supreme Court seven years ago.

Read the complete post here.

Monday, May 7, 2018

The Right of Publicity―A Misunderstood, Misshapen, Bloated Monster

By Professor Jennifer Rothman

This post is excerpted from the Volokh Conspiracy, where Prof. Rothman is guest blogging this week.

The right of publicity is a law that few people outside of Hollywood know much about. Nevertheless, it is an increasingly important right in our digital age even when celebrities are not involved. The right of publicity provides a right to control uses of your identity, particularly your name, likeness and voice, and to stop others from using those without permission. The boundaries of these state right of publicity laws vary widely from state to state, with some limiting the claims to uses in advertising or on products, and others allowing almost any claim when the use is for the defendant's advantage. Some states limit claims only to those brought on behalf of the living, while others extend such rights after death.

In the book, I consider both the opportunities and risks that such right of publicity laws pose. I challenge the conventional, yet erroneous story of the right of publicity's development, and by doing so I provide direction on how to avoid the right's current dangerous path. The right of publicity in its current form jeopardizes the liberty of the very individuals that it is supposed to protect, while also interfering with free speech, and copyright law.

Today, I will share a short excerpt from the Introduction to the book that lays out some of the dangers and possibilities that the right poses, which I develop further in the book:

The right of publicity can be a valuable mechanism for addressing a variety of twenty-first century concerns about uses of people's images. But, despite the many benefits of having a right of publicity, its current incarnation comes with a host of dangers. The right of publicity limits what the public can say about public figures, even dead ones, and can bar the public from making sculptures, T-shirts, and posters honoring the recently deceased, such as Prince, Carrie Fisher, Robin Williams, and Muhammad Ali. It can block (and has blocked) the distribution and sale of busts of civil rights heroes, like Martin Luther King Jr. It has prevented video game makers from accurately depicting football players on historical team rosters, and television networks from using clips of their own broadcasts.

Read the complete post on the Volokh Conspiracy on Reason.

Wednesday, April 18, 2018

Strengthening and Reforming America’s Immigration Court System

Loyola Immigrant Justice Clinic Co-Director Emily Robinson '12 submitted a letter on behalf of immigration professors and clinicians related to the Senate Committee on the Judiciary Subcommittee on Border Security and Immigration prior to their April 18, 2018 hearing "Strengthening and Reforming America’s Immigration Court System."

An excerpt appears below:
Immigration judges are employees of the Department of Justice and are deprived of many protections had by Article I and Article III Judges. Attorney General Sessions introduced a new EOIR Performance Plan, which was first announced by EOIR’s head, James McHenry by e-mail on March 30, 2018. Under the new standards, which are set to go into effect on October 1, 2018, immigration judges will be required to meet a number of performance metrics, which include completing 700 cases a year and having fewer than 15 percent of their cases sent back by a higher court. These metrics are not put forth as suggestions or guidelines, but, rather, are inextricably tied to job security and raises. This means that immigration judges have a financial stake in the number of deportation orders they enter, or clients they convince to self-deport orvoluntarily depart.

Read the letter in its entirety

Wednesday, March 7, 2018

Seventh Circuit Certifies Question to Indiana Supreme Court in Fantasy Sports Case

By Professor Jennifer Rothman

This article originally appeared on Rothman's Roadmap to the Right of Publicity 

Today, the Seventh Circuit with lightening speed issued an opinion in the Daniels v. Fanduel case seeking guidance from the Supreme Court of Indiana. The case, which I have previously written about, involves a lawsuit by former college football players against online fantasy-sports companies FanDuel and DraftKings. An Indiana district court dismissed the case last September, concluding that the use was exempt under Indiana’s right of publicity statute because the uses were newsworthy and reported on a topic of public interest.

The Seventh Circuit heard oral arguments in the case on February 22nd, and Judge Frank Easterbrook repeatedly asked the attorneys why the interpretation of the Indiana statute was not something better addressed by the state court. It therefore is no surprise that today the court issued an opinion that he authored calling for the state’s supreme court to answer those questions.

The opinion focuses on the meaning of the exemptions to Indiana’s right of publicity statute, and particularly the question of whether the for-profit fantasy games fit within the purview of the statute’s exemptions for uses in “material that has . . .newsworthy value” or “in connection with the . . . reporting of an event . . .of general or public interest.” 

Wednesday, February 14, 2018

Law School Clinics Key to Bridging Access-to-Justice Gap

By Dean Michael Waterstone

This op-ed originally appeared in the Feb. 14 edition of the Los Angeles Daily Journal.

Legal education has been a source of vigorous debate and criticism. Some is no doubt warranted. High tuition. A challenging job market for new grads. President Barack Obama opined that the third year of law school is unnecessary. These are all important and complex topics, and worthy of public discussion.

But another issue is of pressing importance, and law schools have an important story to tell. There is an access-to-justice crisis in this country. Three quarters of litigants in state courts are unrepresented. In California, there is one legal aid lawyer for every eligible 6,000 poor people. The most vulnerable members of our society, facing some of the most challenging struggles of their lives, are being forced into the legal system on their own, where they will unquestionably meet worse outcomes. This is undermining confidence in one of our most prized national assets — our commitment to the rule of law. The World Justice Project currently ranks the United States 94th out of 113 nations on the “Accessibility and Affordability of Civil Justice” 2016 Index.

This is a society-wide problem, and law schools have a crucial role to play. One of the primary ways we do this is through clinical legal education. Based on the medical residency model, clinical legal education gives law students an opportunity to represent actual clients under the supervision of clinical law professors. Most states, including California, have student practice rules that allow qualified law students to do this.

Our law school, Loyola Law School, Los Angeles, has a longstanding commitment to clinical legal education. It is a key way we fulfill our social justice mission to train our students to be lawyers for others. Our Loyola Immigrant Justice Clinic represents some of the most vulnerable members in our community. They recently held an event where they helped 100 Deferred Action for Child Arrivals recipients with their renewals.

Tuesday, January 16, 2018

Amending the Johnson Amendment in the Age of Cheap Speech

This is an excerpt from Professor Ellen Aprill's article published in the Illinois Law Review, in which Professor Aprill concludes: 

Charities can have enormous influence on political campaigns with little expense in today’s digital world. Contributions to charities are deductible; contributions to PACs and non-charitable section 501(c) organizations are not. Many who wish to intervene in political campaigns will shift their contribution from PACs and social welfare organizations to charities. I suspect that the Joint Committee of Taxation underestimates the revenue loss from even a five-year de minimis exception.

Under our current campaign finance regime, only dollars that have been taxed can be used for political intervention. A de minimis exception for campaign intervention for charities would undermine this basic principle. Moreover, over time, permitting charities to engage in partisan politics would reduce the respect long afforded to these entities and thus harm the sector. A de minimis exception to the campaign intervention prohibition would damage both the laws regulating charities and the laws regulating campaign finance. Our country would be far poorer for such changes.

Monday, January 8, 2018

Whitney Houston Estate Settles with IRS over Right of Publicity Valuation

By Professor Jennifer Rothman

The Whitney Houston estate and the IRS have settled their dispute over the value of the Grammy award-winner’s estate. The more than $11 million dollar disagreement in the amount of taxes owed centered on the valuation of Houston’s intellectual property rights, and particularly the value of her postmortem right of publicity. The estate had claimed that Houston’s right of publicity was worth just under $200,000, while the IRS claimed that it was worth more than $11.7 million. A staggering difference.

The IRS and the estate ultimately settled with the estate agreeing to pay $2 million. The IRS had initially sought more than $11 million in taxes and penalties from the estate. The stipulation entered on December 26th did not specify what Houston’s right of publicity was ultimately valued at.

The stipulation and settlement yet again avoided a court determination of whether the right of publicity should be part of the estate in the first place. Like the Michael Jackson estate, the Houston estate did not contest the inclusion of the right of publicity in the estate’s property―something I think estates should more actively start doing.