What Comes After Election 2020? Three Things to Know in the Coming Days

By Dean Michael Waterstone

Last night, Loyola Law School held a panel on “Election 2020: What Comes Next?” I was joined by incredible colleagues, Professor Jessica Levinson and Professor Justin Levitt, both national experts in the election law and the law of democracy. Our combined goal was to ease some of the anxiety created by this year’s election circumstances through education and awareness, specifically helping everyone understand what can unfold in the coming days.

Three important takeaways:

• This election is likely to be decided by the voters, not the courts – regardless of political preference, many are comparing this or having flashbacks to 2000 and Bush v. Gore. That situation was different - it involved determinations of hundreds of votes. Nothing presented thus far gets anything close to that. There will be litigation, but none is likely to be close enough or present an opportunity for courts to decide the election. And not all lawsuits can or will be effective. In a phrase which merits trademarking, Professor Levitt explained that sometimes lawsuits can be “nothing more than tweets with filing fees”.
• The administration of elections is messy and not well understood – even national elections are not administered in a national way. Elections are administered by state and local authorities, and ultimately are run by volunteers. This is a crucial, yet unheralded part of American Democracy. (and I am so proud of over 100 members of our community who served as polling place workers this election). Although some paint this as a cause of concern, and we should fund election administration more, it is also a source of strength. There is not central system to penetrate or hack, and our community willingly takes on the responsibility of counting all of our votes. 
• Our country is bitterly divided – and this manifests itself in everything, including how we view our election system. This is troubling for many reasons, as one of the things that undermines and makes our system work is that it is viewed as legitimate. Both panelists spoke to a renewed need for civics engagement at all levels. One of the reasons people focus, perhaps overmuch, on the presidential election is we expect our leader to do all of the hard work for us. We have to do more even more than vote – we have to work in our own communities to create whatever change we want to see. 

At a time when people are looking for answers to questions about the election process and what comes next, this was an enlightening and entertaining conversation with two true experts in the field. I hope you enjoy it as much as I did; please listen to the full version here.

Remembering Ruth Bader Ginsburg

In 2011, U.S. Supreme Court Associate Justice wrote a dedication to Associate Justice John Paul Stevens on the occasion of his retirement in a special issue of the Loyola of Los Angeles Law Review. In turn, nembers of the Loyola Law School community are sharing remembrances of how Ruth Bader Ginsburg impact their lives, the law and beyond. Want to contribute a remembrance? Please post one below using the comments.

“It is impossible to overstate the magnitude of this loss at this moment in history. As a woman, a lawyer, and a Jew, she paved the way for me and so many others. She stood for equality, justice, civility, and empathy. It is up to all of us who are committed to social justice to fight to protect her legacy.” 

– Professor Aimee Dudovitz, Associate Dean for Clinical Programs and Experiential Learning 

"Justice Ginsburg can be remembered and honored for many things. She wrote powerful fact-intensive dissents in cases such as NIFB v. Sibelius (2012) and J. McIntyre v. Nicastro (2011). She knew how to dig to the core of the reality behind a case, while her colleagues too often placed abstract concepts over justice. But her most important gift to us is her steadfast dedication to gender equality. She built the foundation for the law gender equality and in the process began a transformation of society that will not be undone regardless of who replaces her on the Court. Her landmark opinion in United States v. Virginia (1996) is a fitting symbol of all that came before and will stand as a permanent memorial to her life's work."

–Professor Allan Ides, Christopher N. May Chair

“Justice Ruth Bader Ginsburg was a guardian of justice throughout her career. She understood that laws should overcome systemic injustice, rather than sustain it. Our country benefitted immeasurably from her wisdom. While we mourn her loss, we must also ensure the survival of her legacy; both she and our country deserve no less.”

-Professor Kathleen Kim, Associate Dean for Equity & Inclusion

“I think RBG’s most important doctrinal contribution is in the VMI (US v. Virugina) case ruling where she declared inherent differences between women and men should be the basis for celebration not for the denigration of women. Overall, Ruth Bader Ginsburg’s most important legal legacy is her central role in dismantling America’s “Jane Crow” legally sanctioned gender hierarchy while never advocating gender-blindness.”

– Professor Kimberly West-Faulcon, James P. Bradley Chair in Constitutional Law

Justice Ginsburg was a giant -- not in physical stature, but in the ways that matter. She made a lasting impact on the law by building legal theories by which women could advance in this society. She championed the right of equality for all people. Can there be any greater contribution to our laws and our nation? 

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

It is heartbreaking that Justice Ruth Bader Ginsburg, a champion of women whose commitment to equality was legendary, is no longer with us. She was a trailblazer and an inspiration to me as a lawyer and as a judge, and to so many other women, not only in the legal profession but in all walks of life. As Justice Ginsburg stated so eloquently, “Real change, enduring change happens one step at a time.” Justice Ginsburg helped us take many steps towards equality. To honor her legacy and to fight discrimination of all forms, we must continue moving forward to ensure justice and equality for all. 

– Hon. Sandra R. Klein ’92, U.S. Bankruptcy Court for the Central District of California 

In the end, we mourn Justice Ruth Bader Ginsburg not just because of the legacy she leaves behind, but because of what her death means for our country going forward. 

– Professor Jessica Levinson ’05, Director, Loyola Public Service Institute 

Provisional License Program Promises More Than It Can Deliver

By Director of Bar Programs Susan Bakhshian

This op-ed originally appeared in the Sept. 9, 2020 edition of the Los Angeles Daily Journal.

California’s provisional license program promises more than it can deliver. The problems range from practical challenges to systemic unfairness.

The practical challenges are plentiful. The public comment period that ends Sept. 15 is during the most intense time of studying for the bar exam, which remains scheduled for early October. The very lawyers who are intended to benefit from this program have exactly no time to devote to comments. When the bar examiners provide the software and practice exams at the same time as the proposed provisional licensing rules, a rational bar exam taker prioritizes the exam materials — not commenting on the provisional licensing rules.

Other groups of lawyers and academics can take up the slack and contribute public comments, but that misses the point. To burden on recent grads who have seen repetitive delays in their quest for a license is yet another example of the lack of leadership by the California Supreme Court.

The proposed rules leave many behind. There remains no remedy for those who failed the last administration of the bar exam in February. Some of those who failed were rejected despite reaching the new cut score that will apply in October. While the Supreme Court has declined to apply the new score retroactively, or even to all exam administrations in 2020, the court has failed to provide a justification. The California Assembly’s recent resolution supporting retroactivity remains unanswered. By refusing to apply the new cut score to the February takers, the court’s actions look more like an effort to provide cover for an untested remote exam being administered as a pandemic rages on, rather than any significant step toward necessary reform.

The provisional license is designed to leave some behind. The proposed rules sunset after two years and provide no permanent path to admission. There will be super stars in the class of 2020. These new grads will qualify for the provisional license and do great work for two years. Some may argue before the California Supreme Court. Their accomplishments will be great. And at the end of two years they will have absolutely nothing.

Whether the provisional licensing program can withstand a large number of applicants is uncertain. The FAQ accompanying the rules is devoid any serious plans to find sufficient supervising attorneys to meet the likely demand. The suggestion that grads “let prospective employers know” or that the State Bar “intends to communicate with California lawyers” about the program are empty promises.

Happy 100th Birthday, Loyola Law School!

LLS has resided at four locations over
its 100-year history.

By Dean Michael Waterstone

This op-ed was originally published in the Tuesday, Sept. 8 edition of the Los Angeles Daily Journal.

LMU Loyola Law School first opened its doors in downtown Los Angeles on Wednesday, Sept. 8, 1920 at 7:30 p.m. It was an evening-only program with eight students. There was no full-time faculty and no administration. A modest collection of books served as a library. Tuition for the year was $90, payable in four installments of $22.50.

The 19th Amendment was passed into law in the summer of 1920, giving women the right to vote just weeks before we welcomed our first students. And we are proud that the small group of students who comprised our first class included one woman among its eight. Just a few years later, our first Asian-American and African-American alumni graduated — in 1928 and 1932, respectively. As we enter our centennial anniversary in the midst of the disruption caused by COVID-19, it is hard not to note that we were born in the wake of the Spanish Flu, another global pandemic.

From that very first class and throughout the course of the last century, we have tried to stay true to our ideals set forward in our mission: to achieve and maintain excellence in the instruction of law and promote legal scholarship and research; to create leaders in the legal profession and society, demonstrating in their practice of law and public service the highest standards of personal integrity and professional ethics; and to be distinguished by our concern for social justice.

In the 100 years since we first opened our doors, we have graduated thousands of lawyers who are leaders in our community and our world. Loyola Law School alumni have served at the highest levels of government, represented individuals in the most important cases of their lives, and helped companies through bet-the-company moments. We count among our distinguished alumni more trailblazers and justice advocates than we can name, including household names like Johnnie Cochran Jr. and Gloria Allred. And we have more judges serving on the Los Angeles County Superior Court bench than any other law school.

We create alumni like these through our commitment to our students. Since 1920, our community has always prioritized teaching, and those magical moments in the classroom between teacher and student. One of my favorite parts about being dean is meeting with our alumni, and realizing almost all of them have a story about a professor who made a lasting impact on both their professional and personal lives. We challenge our students to engage with concepts and ideas in ways they never have before, growing their appreciation for what lawyers can accomplish for their clients, their communities and their world.

While being caring and dedicated teachers, our faculty serve the profession and our world by advancing knowledge. They engage in scholarship that seeks to redefine the law and push boundaries, influencing real-time policy debates and fostering important legal reforms. Our faculty’s civic engagement has included leadership roles on the L.A. Ethics Commission, multiple police oversight commissions and the L.A. City Commission on Civil and Human Rights, testimony before the U.S House and Senate, and arguments on behalf of indigent clients at the U.S. Supreme Court. Large segments of Los Angeles and beyond have learned about law through the translation and commentary of our accessible faculty.

We are more excited than ever about what Loyola Law School has to offer the world in the next 100 years. We constantly challenge ourselves to grow what we teach, who we teach and how we teach. Whether it is launching the first cybersecurity law program of its kind in the West, or creating the Transactional Lawyering Institute to bolster our offerings in business law and related practice areas, we attempt to meet the world where it is. Our community of learners is no longer limited to JD students, but also includes those pursuing degrees of Master of Science in Legal Studies, Master of Laws programs in a variety of subject areas, a Master of Taxation — and even certificates via our LLX Executive Education Program. None of these could have been imagined by that first class of students a century ago.

We also realize that even before the pandemic, there was a crushing access-to-justice gap. And that our profession functions best when it looks like the society that we serve. Grounded in our social justice mission, we feel an obligation to expand access to the profession, and produce lawyers who seek to make the world a more just and inclusive place. I am proud to say that this year’s entering class has the highest percentage of women and the most students from diverse backgrounds ever. This work is a journey, not a destination. While we are not perfect, we constantly strive to be better, and we are committed to this work for the next 100 years and beyond.

Recognizing a dearth of people with disabilities on the bench and in elected office, we worked with Americans with Disabilities Act architect Hon. Tony Coelho to launch in 2018 The Coelho Center for Disability Law, Policy & Innovation. It has already made remarkable strides toward its mission of leveraging technology to advance the lives of people with disabilities and creating a pipeline of lawyers with disabilities to populate the bench and hold elected office.

This moment also demands that we recognize and reaffirm that social justice includes racial justice. We are in active pursuit of becoming an authentically anti-racist institution. This includes important and honest conversations with our faculty, students and staff; engaging diverse community voices on issues of structural inequality; curricular innovation; and amplifying and centering people and voices that have not been present in positions of power, both within our community and outside of it.

Nowhere is our continued commitment to social justice more evident than in our Loyola Social Justice Law Clinic, which houses our more than 20 live-client clinics addressing everything from wrongful convictions and landlord-tenant issues to juvenile justice and bankruptcy. In these clinics, our students work under the supervision of our faculty to represent clients who are struggling with the tremendous gap in access to justice. Doing this work as a student changes not just the lawyers they will go on to become, but also the people they are. The first ABA-approved school in California with a pro bono graduation requirement, we have helped our students contribute more than 1 million hours of legal service to the community.

So today, on our 100th birthday, I thank our 18,000 living alumni and many more thousands of faculty, staff, friends and clients for their support, which has been our greatest gift of all. And I express my sincere gratitude to every member of the legal community who has inspired us through their advocacy, teaching, mentoring and service. This year will be memorable to us for many reasons, and we look forward to using the lessons we’ve learned in informing our next 100 years. 

Finding Justice for Greenwood

By Professor Eric Miller, Leo J. O'Brien Fellow

This week, Prof. Miller joined with other Justice for Greenwood advocates in discussing reparations for the Tulsa Race Massacre. Below is an excerpt of his remarks. View the press conference.

Overwhelmingly, white business and political leaders have sought to appropriate the history of the massacre for their own interests. They have done this since the days following the massacre itself. In the immediate aftermath of the Massacre, member of the State National Guard, the County Sheriff’s Department, and the City of Tulsa Police herded the survivors of the massacre into internment camps where they held for three days. In a scheme concocted by the Chamber of Commerce, the National Guard, and the City of Tulsa, white Tulsans could sponsor an internee, and farm them out under threat of violence and without pay in conditions that amounted to slave labor. Under this scheme, Black residents of Tulsa marked with a literal badge of inferiority, a green card that the survivors had to wear to avoid further reprisals.

The City and its white business class saw an opportunity to grab the land they had burned from the survivors of the Massacre. They ensured that the victims received no compensation from the City and enacted illegal fire regulations and zoning ordinances to prevent rebuilding. For the rest of the summer and through the winter, the Massacre victims lived as refugees on their own land in red cross tents. The City and County destroyed the leadership of the community, murdering local leaders, professionals, and business owners who contributed to the community's prosperity, including nationally renowned surgeon Dr. A.C. Jackson. The County empaneled a grand jury to indict Black community leaders, such as J.B. Stradford, a hotelier and businessman, and A.J. Smitherman, a local attorney. These leaders fled the state, never to return.

White Tulsans have sought to tell the history of the Massacre in ways that most benefit themselves. When word of the Massacre spread across the country, money started to flow in to help the survivors. The Defendants, including the Chamber of Commerce, decided that they would be the ones to tell the story of the Tulsa Massacre; and that they would determine what to do with the money.

Immediately following the murders, lootings, and burning, the City of Tulsa and Chamber of Commerce colluded to minimize the impact of the massacre in the local and national press. Initially, they appropriated for themselves money sent from around the country to help the homeless, destitute victims. To minimize the financial harm to white businesses, the white community, falsely labeled the Massacre a Riot and blamed the destruction on the Black residents of Greenwood. When that was not enough to rehabilitate the reputation of white business leaders, the City, the County, and the Chamber of Commerce denied the massacre had ever happened, and affirmatively rejected aid from around the country intended to assist the Massacre victims. For the next 75 years, white political and business leaders silenced Black Tulsans and the Greenwood diaspora from recounting their experiences of the massacre and demanding restitution. 

Announced Approach to Bar Exam 'Is Not Practical'

This response originally appeared in the July 17, 2020 edition of The Recorder. 

By Susan Smith Bakhshian

The California Supreme Court’s announcement instructs the State Bar and law schools to do the impossible during ordinary times. To suggest these changes in the midst of a global pandemic is thoughtless at best and dangerous at worst. The Court claims to have sought “the safest, most humane and practical options.” It has failed on all fronts.

Without knowing how the temporary licensing provisions will operate, it is impossible for recent graduates to make an informed decision about taking the October exam. Yet the only guidance the Supreme Court provides the Bar is that the temporary licensing must last two years and include a 15 day public comment period. This is not “practical.”

A remote exam is unfair. Certainly some graduates will be able to plan two days of exam conditions in their homes. However, not all graduates have the wealth or family support required. Many more graduates face home situations in shared spaces with family members who will be attending school or working remotely in the same space. The California Supreme Court simply does not understand the pandemic and its ramifications. This is not “humane.”

Nor are the Court’s plans “safe.” The Court’s suggestion that law schools should provide “facilities and equipment” as they did to help students finish the semester at the beginning of the pandemic is unworkable. To equate a two-day, high stakes licensing exam with attending classes on video conferencing demonstrates a failure to understand what is involved. To provide a student a loaner laptop is a far cry from providing what is needed to take a two day high stakes exam in proper conditions. A student who missed a few minutes of class because of technology problems did not suffer any permanent harm to their legal education. Technology or equipment issues now may prevent graduates from passing a remote bar exam. More importantly, law schools are currently shuttered due to public health orders. It is not possible to provide “safe” options.

While a short, multiple choice style examination might be possible in a remote online setting, a two day exam with written components is not. Presumably bar exam takers will not be allowed actual scratch paper. To require a written exam, without being able to make any notes while reading the exam will potentially benefit those who are more adept with technology or have better computer equipment that more easily allows virtual note taking. No justification exists to take the risk that an exam taker who can afford better computer equipment will have an advantage on the bar exam. The Supreme Court likely does not work on the smaller and older laptops that many of today’s graduates will be forced to use on the examination. This is not “practical.”

It's Time to Replace the California Bar Exam

This op-ed originally appeared in the July 16, 2020 edition of The Recorder. Read the entire published op-ed here.

By Professor Susan Smith Bakhshian

A fair bar exam cannot be administered today. The State Bar and the California Supreme Court have spent months unsuccessfully searching for a way to offer the bar exam. This must stop. When all of the options are carefully evaluated and no workable solutions exist, it is time to move into the modern age and chart a new path -- one without an exam. The focus on an exam to the exclusion of all other solutions has left California with no plan at all.

Law schools and their graduates have waited patiently hoping for an announcement that would be more thoughtful and workable than some of the jurisdictions who rushed their plans and later had to change course. But the delays continue and no plan emerges for California. Meanwhile, graduates do not have unlimited money to support themselves, or unlimited time to wait for their licensing process to be complete.

The lack of leadership by the California Supreme Court and the California State Bar is an embarrassment. To insist upon a licensing exam that has been under attack for years is indefensible as a pandemic rages on. No one has produced any data to support the notion that somehow a high stakes licensing exam leads to better attorneys. No one has suggested a way to offer an exam without serious health risks. Yet the State Bar and the Supreme Court remain steadfast in their commitment to an exam.

The bar exam is antiquated. The California Bar Exam has not been thoughtfully evaluated or assessed for decades. Yet much has changed for attorneys during that time. While the State Bar is currently analyzing survey data it collected from practicing lawyers, the middle of a pandemic is not the time for subtle changes. The bar exam needs major surgery, not a Band-Aid.

The bar exam promises much and delivers little. A licensing exam does nothing to ferret out the corrupt or impaired attorneys who cannot serve their clients. A robust moral character process, effective diversion programs, and a fair discipline system are better solutions for those problems.

The bar exam is effective at keeping attorneys out for no good reason. It is time to replace it with something that works. Today is a time of great social change. That should include a fair process to license lawyers without clinging to an exam that cannot be administered safely or fairly. The California Bar Examination needs to be replaced.

 

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Honoring Armenian Genocide Remembrance Day

By Rajika Shah, Deputy Director, Center for the Study of Law & Genocide

Today marks Armenian Genocide Remembrance Day. Our thoughts are with the victims of the Armenian Genocide and every genocide. They lost lives and livelihoods, families and friends, and every basic sense of security in this world—yet the survivors find ways to live again and thrive. The difficulties and disruptions they faced inspire us to persevere through our own challenges.

We are also concerned for all the fragile populations around the world who are at greatest risk of humanitarian catastrophe due to the global Covid-19 pandemic: those who live in conditions of violence, conflict, and political instability; those living in refugee camps and shelters; and those without the resources to care for themselves and their families.

You can view information on our Armenian Genocide Remembrance events and all our past events, including links to videos of the presentations, here.

 

Reflecting on International Holocaust Remembrance Day

By Rajika Shah, Deputy Director, Center for the Study of Law & Genocide

Today, on International Holocaust Remembrance Day, we remember and honor all the victims and survivors of the Holocaust. We particularly mourn those who lost their lives at the Auschwitz concentration camp, which was liberated 75 years ago today.

We also celebrate an important step in the modern struggle to end genocide. Last Thursday, January 23, 2020, the International Court of Justice unanimously indicated binding provisional measures designed to preserve the rights protected by the 1948 Genocide Convention. Those rights were asserted by The Gambia against Myanmar and arose out of the egregious human rights abuses committed from October 2016 onwards against members of the Rohingya ethnic and religious minority group, hundreds of thousands of whom were forced to flee their homes in Myanmar’s northern Rakhine state amid conditions of abject terror. The Gambia claimed protections for all members of the Rohingya who remain in the territory of Myanmar, as members of a protected group under the Genocide Convention. The Gambia also asserted its own rights under the Genocide Convention to seek compliance by Myanmar with its obligations as a signatory state to prevent genocide, to punish perpetrators, and of course to refrain from committing genocide itself.

Specifically, the Court ordered Myanmar to (1) take all measures within its power to prevent the commission of acts of genocide within the scope of Article II of the Convention in relation to members of the Rohingya within its territory; (2) ensure that the Myanmar military, including any irregular armed units directed or supported by it and any organizations or persons subject to its control, direction, or influence, do not commit any acts of genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide, or complicity in genocide, in relation to members of the Rohingya within its territory; and (3) take effective measures to preserve evidence relating to allegations of genocidal acts within the scope of the Genocide Convention. Within four months, Myanmar must report to the Court on the measures taken to give effect to the order.