Friday, October 4, 2019

If California Really Cares About Student Athletes, It’ll Protect Their Rights To Their Own Identities

By Professor Jennifer Rothman

This op-ed originally appeared in the Friday, October 4, 2019 edition of  the San Francisco Chronicle.

Gov. Gavin Newsom just signed a bill ostensibly to level the playing field for student athletes. Within 24 hours, five other states had introduced similar bills. In the U.S. House of Representatives, a Student-Athlete Equity Act was introduced just a few weeks ago.

These legislative efforts seek to address the stark reality that the NCAA and college athletic programs reap billions of dollars from ticket and merchandise sales and licensing deals, while student athletes get nothing other than some limited scholarship money. Not only does this seem unfair, but the current system pressures the most talented young athletes to go professional early, often foregoing their educations in the process.

California’s law (and others proposed) bars NCAA universities (who fall within the provision) and are located within the state from penalizing student athletes who sign endorsement deals or with sports agents and attorneys. This is new. But it does not address the underlying exploitation of student athletes.

The law does nothing to require the NCAA or universities to share any profits with athletes — and most college athletes will not be sought after by Nike for a major endorsement deal. The California law also could allow the NCAA to continue to block endorsement opportunities that primarily stem from an association with the “team.”

Read the complete op-ed>>

Monday, September 9, 2019

CPFB Head Misguided in Reliance on Consumer Education

By Professor Lauren E. Willis

This op-ed originally appeared in the Saturday, September 7, 2019 edition of The Hill.

Imagine that your city’s water treatment facility announced tomorrow that it would scale back its work. Instead, the authorities would offer online classes and put up posters around town to teach city residents about contaminants and filtration. With slogans about “empowering consumers,” they would urge residents to make their own choices about the water safety level that’s right for them, based on individual health needs and taste preferences.

People would surely protest. It is both foolish and cruel to put the onus on ordinary citizens to handle an issue that requires professional training to fully understand and that can devastate people’s lives if handled poorly. It seems cynically designed to relieve city administrators — and the businesses that impact the city’s water supply — of their responsibilities. Yet this is exactly what’s happening today in the consumer financial marketplace at the federal level.

President Donald Trump’s head of the Consumer Financial Protection Bureau (CFPB), Kathy Kraninger, has laid out her vision for her five-year directorship. So far, Kraninger seems to think about consumer financial protection the same way our apocryphal city authorities think about water treatment. Rather than protecting us from the financial industry’s dangerous practices, she plans to educate us all about how to protect ourselves.

Kraninger announced: “Our first tool is education … [E]mpowering consumers to help themselves, protect their own interests, and choose the financial products and services that best fit their needs is vital to preventing consumer harm and building financial well-being.” Kraninger’s plan emphasizes pamphlets and websites about saving money and balancing checkbooks at the expense of the trained investigators, financial experts, and attorneys previously tasked at the CFPB with identifying illegal practices and prosecuting the banks that engage in them.

Having studied financial literacy education extensively, I would suggest that the head of the only federal regulator devoted to consumer protection in the financial services space is driving the agency in the wrong direction.

She is sending the message that it is your job to steer around the deceptive, unfair, and abusive practices of the financial services industry — if you can.

Monday, June 24, 2019

Prof. Miller Tesitfies on HR40 and the Path to Restorative Justice Before House Judiciary Subcommittee

Professor Eric Miller testified the following during the House Judiciary Committee Hearing on HR40 and the Path to Restorative Justice held Wednesday, June 19, 2019. Read his prepared remarks below or watch the recording of the testimony.

I will speak to my experience as an academic studying the issue of reparations and a lawyer representing the victims of the Tulsa massacre of 1921 in a reparations lawsuit against the state of Oklahoma and the city of Tulsa. In the short time available, I want to make the following points:

1. Local, state and federal governments were active perpetrators of race-targeted discrimination against, and domination of, African-Americans during slavery and Jim Crow.

2. These governmental institutions engaged in the massive social, political, economic, and cultural destruction of African American communities and individuals.

3. Many of the perpetrators and victims of race-targeted state action are readily identifiable through a thorough investigation of existing historical records in the hands of public and private institutions.

4. The race based disparities brought about by federal, state, and local government discrimination remain baked into our governmental institutions as well as the persistently segregated private social ordering those institutions brought about.

5. Reparations addresses the ways in which these institutions entrenched race-based discrimination and domination throughout American social, cultural, economic, and political institutions.

6. The committee should consider specific legal remedies to remove the time-limited bars against litigation, which are the major impediment preventing the identifiable victims of extraordinary race-targeted state action to sue state and federal governments for financial damages.

7. Reparations must also include rebuilding the social political economic and cultural infrastructure of the communities destroyed by the state.

8. Without social, cultural, and political reparations, race neutral programs of economic uplift will preserve the relative social and political disadvantage, domination, and disempowerment of African Americans across this nation.

The urgent need for the HR40 Commission, and reparations as the path to restorative justice for the victims’ state-sponsored racial injustice, became clear to me in 2003. That is when I joined the Reparations Coordinating Committee, a group of lawyers led by Charles Ogletree and Adjoa Aiyetoro. Our legal team filed suit representing the more than one-hundred still living survivors of the Tulsa, Oklahoma Race Massacre of 1921.

Thursday, June 13, 2019

The California Consumer Protection Act: Groundbreaking, but will it be enforced?

By Loyola Law School Lecturer and Reference Librarian Tobe Liebert

Privacy of consumer information is a topic that has received a huge amount of attention in recent years, fueled by the growing public sense that Internet and technology companies are not acting as good guardians of customer information.  With the recent passage of the California Consumer Privacy Act (the CCPA) California thrust itself into the forefront of the debate over what laws are needed to provide adequate privacy and security for personal information.  The CCPA, which will become effective on January 1, 2020, goes far towards creating privacy safeguards in line with the expansive protections found in the European Union’s General Data Protection Regulation (the GDPR).  But the act remains a work in progress, and there are some serious questions about how vigorously it can be enforced.

One of the most contentious issues discussed during the enactment of the CCPA was whether a “private cause of action” should be included in the act.  A private cause of action refers to the issue of whether a private citizen may bring a civil action to claim damages for violations of the act.  If not, then actions to remedy violations can only be brought by the state, acting through the Attorney General’s office.  Proponents of the inclusion of a private cause of action argued that compliance with the provisions of the CCPA would be much more likely if companies were faced with the possibility of civil actions brought by trial lawyers for violations of the law.  Opponents of a private cause of action believed that it would lead to a flood of lawsuits, imposing a huge and expensive burden on businesses in California.

Child Litigants Need to Have Counsel

By Professor Kevin Lapp

This op-ed originally appeared in the Monday, May 13, 2019 edition of the Daily Journal

For the second time in three years, the 9th U.S. Circuit Court of Appeals avoided answering the urgent issue of whether child respondents in immigration removal (deportation) proceedings have a due process right to counsel at government expense. The case, C.J.L.G. v. Barr, 2019 DJDAR 3782 (May 3, 2019), involved a Honduran adolescent who appeared in immigration court accompanied only by his mother. C.J.L.G. sought asylum based on his fear of persecution for being a member of a particular social group, a legal claim so complex that it regularly confounds attorneys and judges alike. He was also apparently eligible for special immigrant juvenile status (SIJS), but neither C.J.L.G., his mother, nor the immigration judge raised that form of relief at his hearing, and he was ordered deported. On appeal, C.J.L.G. argued that his hearing was unfair and that due process required that child litigants like him be provided counsel at government expense.
C.J.L.G.’s immigration hearing was all too usual. Each year, tens of thousands of minors appear without a lawyer in immigration proceedings, some as young as two and three years old. Data show that, unsurprisingly, unrepresented minors are significantly more likely to be ordered deported than represented minors. The government nevertheless insists that adversarial proceedings against unrepresented children comport with due process.
The fully briefed right to appointed counsel claim was presumably the reason the 9th Circuit chose to hear C.J.L.G. en banc. Yet, as it did three years ago, it avoided the issue. (In J.E.F.M. v. Lynch (2016), the 9th Circuit held in the context of a class action that there was no jurisdiction over a constitutional right to counsel claim raised by minor respondents.) Instead, the court ordered a new hearing because the immigration judge failed to inform C.J.L.G. of his apparent eligibility for SIJS. It then dropped a footnote to explain that because C.J.L.G. has since secured counsel, and will be represented on remand before the Immigration Court, it need not address the constitutional right to appointed counsel claim.
The 9th Circuit’s decision is certainly a victory for C.J.L.G. and other pro se children who may be eligible for SIJS. The court found error in his proceedings, and he now has an opportunity, aided by counsel, to fully present his case for relief. But to avoid the right to appointed counsel issue (again) is, in practice, to decide it. And it is to decide it in a way that necessarily leaves thousands of child litigants, who either cannot afford a lawyer or who have not lucked into pro bono counsel, to defend themselves against trained government prosecutors in proceedings that involve a notoriously complex area of law.
Strikingly, C.J.L.G.'s case demonstrates exactly why child respondents need lawyers to ensure the fairness of their proceedings. Recall that the 9th Circuit found that the immigration judge failed to inform C.J.L.G. of a possible form of relief as he was required to do. Neither the presence of a friendly adult nor the immigration judge’s duty to develop the record were sufficient safeguards. If C.J.L.G. had not secured counsel after he was ordered deported, the error in his case would have never come to light. He would have been just another child deported after an unfair hearing. Nevertheless, because of C.J.L.G.’s fortune in securing a lawyer, thousands of children who do not share his good luck will continue to go without a lawyer in proceedings that are just as likely as his to be unfair.

Friday, May 10, 2019

Imagining A Greater Justice: Criminal Violence, Punishment and Relational Justice

By Professor Samuel H. Pillsbury 

This excerpt of the book Imagining A Greater Justice: Criminal Violence, Punishment and Relational Justice originally appeared in the Friday, May 10, 2019 edition of the San Francisco and Los Angeles Daily Journal

As a society, our most pressing need for justice comes after criminal violence. A young man is shot in a crosswalk on a summer's night and bleeds to death on the asphalt. A wife is punched and choked by her husband. A girl is sexually molested by her basketball coach. Hearing about these events, our feelings move quickly from sympathy for victims to anger at perpetrators. We hope to see their swift arrest, conviction and punishment. Then we can say that justice has been done.

But we need more than law to do justice in these cases. We need a justice commensurate with the harm. This means we need a justice that comprehends the grief of the young man's family, the soul hurts of the beaten woman, and the girl whose world has been utterly transformed by sexual violation. We need a justice that comprehends how violence shatters survivors' sense of trust and place in community. Can we imagine this? I think we can. But we should not stop here.

Can we imagine a justice that respects an offender's humanity? Can we imagine a justice that treats someone who has spent half of his life locked up for serious crime as a human being capable of change? Can we imagine an ideal of justice that says we should try to reconcile with him to make a lasting peace in our communities? Can we imagine a justice that acknowledges the racial violence of the past and the racial denials and misunderstandings that undercut the trust needed for effective law enforcement? Can we imagine a justice concerned with healing the community after violence?

Imagining a justice this big will be a stretch for many.

I know it has been for me.

I have spent most of my professional life working on justice defined by what happens in the courtroom. As a young man I swore allegiance to justice under law as an officer of the court – a federal prosecutor. And I believe in it as much today, in my 60s, as I did when I was in my 20s.

As the years have passed, though, my view of justice has changed according to my experience of life. I have slowly, often reluctantly, but with increasing conviction come to believe that our conception of justice in the United States is too small. It is too focused on the conduct and character of a few identified wrongdoers. Its concern with individual blame and punishment leaves unaddressed the deep needs of those most hurt by crimes of violence. It flatly ignores, even righteously dismisses, the needs of the incarcerated and their families.

Against the grain of an American culture that celebrates individual freedom and independence, I have come to appreciate how closely tied we are to each other, by bonds chosen and unchosen. The experience of surviving violence makes the strength of these bonds awfully clear. Our conception of justice should respect the reality of how we live in dynamic, interdependent relationship. In addition to holding persons responsible for their chosen actions, we need to take collective responsibility for legal and social structures that determine who belongs in society, and who does not. Belonging, it turns out, is the foundation of just and peaceful community.

We need to imagine what I call relational justice, which includes the rules and processes of the criminal law, but which is bigger in both scope and heart.
***

Wednesday, March 20, 2019

Prof. Goldman: The Significance of The Electoral College

By Professor Stanley Goldman

This originally appeared on Wednesday, Sept. 20, 2000 webnews edition of Fox News Channel.

We all remember the Electoral College, don't we? We learned in high school, and probably haven't thought about it since, that the people don't really vote for the President or the Vice President of the United States. Rather, we all vote for our own state's Electors, who in turn, cast their votes for the candidates who won that state's popular vote. Each state is given a number of Electors equal to the number of that state's Congressmen and Senators, with the District of Columbia being allocated three electors for purposes of presidential elections, for a grand total of 538. In order to be elected President or Vice President, a candidate must receive a majority of at least 270 votes. It is often said that if the Electoral College works the way it's supposed to, it's useless, and if it doesn't, it's dangerous.

This year could be the first time in a long time that those dangers may actually become legitimate issues. Several political experts believe that this could be the first time in a century and a quarter that one candidate, possibly Al Gore, could win the popular vote and yet a different presidential candidate, George W. Bush, might actually be elected President by winning the Electoral College. This could happen if Gore wins big states like California and New York by wide margins, but Bush wins more Electoral votes in closely contested smaller states. As unexpected a result as this may sound, there are even more startling possibilities thanks to the intricacies of the rules surrounding the Electoral College.

Thursday, March 7, 2019

Prof. Goldman: Why House Resolution on Bigotry is Dangerous

Professor Stanley Goldman, director of the Center for the Study of Law & Genocide at Loyola Law School, Los Angeles, writes the following in response to today’s House resolution on bigotry. Goldman, author of the critically acclaimed book, “Left to the Mercy of a Rude Stream: The Bargain that Broke Adolf Hitler & Saved My Mother,” is available for additional commentary. You are welcome to quote directly from the statement below.

Prof. Stanley Goldman statement:

I believe Speaker of the House Nancy Pelosi is dangerously mistaken in her conclusion that freshman Minnesota Congresswoman llhan Omar’s controversial remarks about Jewish influence and dual loyalties are not deserving of specific censure because the young Congresswoman did not realize they were anti-Semitic.

The history of anti-Semitism, not unlike other bigotry, unfortunately illustrates that adherents often do not see themselves and their beliefs as anti-Semitic. Therein lies the true danger. Anyone who has studied, even superficially, the history of the 19th and 20th centuries alone should understand that the well-meaning, and otherwise decent, who trade-in stereotypes of Jewish influence and motives can be groomed to accept ever harsher responses to correct the perceived Jewish problem. 

This danger ever lurks from, not only the political extremes, as the anti-bigotry resolution passed today by the House of Representatives seems to suggest, but also from those of the political center. Once they accept a few small innocent lies, they are predisposed to agree to ever more disturbing ones. Passivity in the face of such intolerance is not benign.

The Modern Law of Class Actions and Due Process

By Professors Allan Ides and Simona Grossi

This article is available on SSRN.


Abstract:


Our goal in writing this article was to offer helpful insight for a reformed interpretation and application of Rule 23 that would make the Rule serve its intended democratic function. The idea of due process is a promise of the rule of law tempered by reasonableness, fairness, and efficiency. It embraces both the value of individual autonomy and the collective interests of the community. The idea of class actions, premised on due process, is to provide a pragmatic method of dispute resolution that is fair to the individual and responsive to the needs of the community and the challenges generated by widely spread and shared harms. In this respect, class actions operate as a tool of democracy. Rule 23 should be interpreted from this hopeful and effective perspective, one that balances individual autonomy against the legitimate needs of the community. But the Rule is not accomplishing its mission. As we show in the article, it appears to be infused with its framers’ self-doubts, and the Supreme Court treats it as an unwelcome guest in the home of traditional litigation forms—see, for example, our discussions of Ortiz v. Fibreboard Corporation (1999); Wal-Mart Stores, Inc. v. Dukes (2011); Jennings v. Rodriguez (2018); Nutraceuticals Corp. v. Lambert (2019).

Tuesday, February 26, 2019

The Implications of Trademark Forefeiture in U.S. v. Mongol Nation


By Professors Jennifer E. Rothman and Rebecca Tushnet

This op-ed originally appeared in the Tuesday, Feb. 26, 2019 edition of the Los Angeles and San Francisco Daily Journal 

Last month, District Judge David O. Carter of the Central District of California invited the submission of amicus briefs to address a series of questions arising from litigation in United States v. Mongol Nation, CR13-0106-DOC, an ongoing case brought by the United States against a motorcycle gang, Mongol Nation. The government has sought through criminal forfeiture, pursuant to 18 U.S.C. Section 1963(a)(1) of the Racketeer Influenced and Corrupt Organizations Act to have the court transfer to it the defendant’s trademarks. Judge Carter specifically sought guidance from amici on a series of questions involving intellectual property, constitutional and criminal laws.

A group of law professors led by Rebecca Tushnet of Harvard Law School submitted a brief to the court in support of neither party. The brief addresses the first two questions posed by Judge Carter:

• Whether criminal forfeiture of any and all legal and equitable rights of any kind or nature associated with or appurtenant to a collective membership mark violates the First Amendment to the United States Constitution.

• Whether criminal forfeiture of a collective membership mark is feasible under intellectual property law.

In particular, the brief focuses on the limits of a transfer of the defendant’s marks under trademark and First Amendment law. The brief was signed on to by seven leading intellectual property scholars: Stacy L. Dogan (Boston University), Mark A. Lemley (Stanford), Jessica Litman (Michigan), Mark P. McKenna (Notre Dame), Jennifer E. Rothman (Loyola Law School, Los Angeles), Jessica Silbey (Northeastern University), and Rebecca Tushnet (Harvard Law School).

Monday, February 4, 2019

A Win-Win Compromise on the Wall

By Professor Karl Manheim

We don’t give Donald J. Trump all the credit he deserves. He’s been arguing for a brilliant bi-partisan solution to the immigration problem for years, and the rest of us have simply ignored him. Is this the way to treat serious policy proposals by the President?

We’re all well aware of those mispronunciations, malapropisms, garbled words and covfefes, that dot Trump’s tweets and speeches. But, these are equally signs of genius at work. We should listen to his bigly words very carefully.

The mainstream press began reported in early 2016, when Trump was a candidate, that he was energizing his base with tough talk of putting up a beautiful wall at the southern border, one that Mexico would pay for. Closer inspection of the audio tapes at his speeches reveals that it wasn’t a wall than Trump wanted, but a Walmart!

The Walmart demand is actually quite clever, and one that should earn strong bipartisan support. First, building a 1,000 mile long Walmart on the border will ramp up infrastructure investment big time, improve our export balance and bring high-paying construction and manufacturing jobs back to the U.S. (except for those jobs that have to be performed on the Mexican side).

But its principal function will be to keep undeserving immigrants from crossing our borders illegally. Here’s how it would work:

The mega-Walmart would be positioned directly on the U.S. Mexican border, with north-facing entrances on the U.S. side and south-facing entrances on the Mexican side.

Mexicans and other southern immigrants would enter the Walmart through south side entrances. Americans and our visitors would enter through north side entrances. Once inside the mega-mega-store, all customers would be treated alike. They could mingle and purchase goods and services in either dollars or pesos (so long as the peso remains a convertible currency). Persons who need medical attention can visit one of the many pharmacies located at the north and south sides of the building. As many pharmacies are already doing, Walmart Pharmacy might add medically-licensed staff that can make diagnoses, prescribe drugs, give shots and make recommendations for hospital transfer where necessary. Current national health insurance plans would apply to the respective health care services provided at the northern and southern pharmacies. However, the Mexican and U.S. governments might find this a much more effective way to deliver health care services to the poor and appropriate additional funds for the purpose.

Mexicans and other immigrants seeking entry to the U.S. can begin the process in the comfort of familiar Walmart surroundings. First, they’d want to speak to NGO representatives who are given space (perhaps in the housewares aisle) to set up consultations. In some cases, applicants for asylum, family unification, H1B visas, and other lawful categories of entry, including just plain old temporary visitor visas, would then be directed to official U.S. immigration officers, also stationed within Walmart.

It is likely that only a very few of these referred persons would be permitted to exit at the northern (U.S.) side of Walmart unaccompanied. All persons exiting the north doors will need to show U.S. documentation. Converse for the south doors. Anyone denied exit at their preferred door, can always go back through the door they entered. (But you won’t be able to shop at this Walmart without some proof of passage within your own country).

There are solutions for those who want to further pursue immigration credentials, if denied at first. They will obviously need temporary accommodations until their cases can be acted upon. Walmart owns and manages one of the largest real estate portfolios in the U.S. What could be better than a captive audience of renters? I’m envisioning housing in a gated community, say adjacent to the mega-Walmart, that is far less terrifying and costly than those housing units rimmed by steel bars. Walmart could also partner, through Walmart Marketplace, with third-parties (churches, NGOs, home builders) to build new housing. Costco is already selling 300 sq. ft. houses for a bit over $7,000. That’s an order of magnitude less than what the Border Patrol currently spends on housing immigrants. Other firms sell small houses for $500 to $12,000; again cheaper than a holding cell.

The entire operation is humane, efficient, safe and likely very profitable to Walmart and America. What’s not to like? It was sheer brilliance for President Trump to propose this solution to secure our borders. He must keep trying. And the press and members of Congress should open their ears to hear what our Commander in Chief is really saying. Don’t let his words of wisdom trail off to the point where they become indecipherable, and don’t attack him for the wrong reason. Remember, genius and madness are sometimes hard to tell apart.