tag:blogger.com,1999:blog-15484981527122234012024-03-13T08:40:04.816-07:00Summary JudgmentsThe LMU Loyola Law School Faculty Blog.Brian Costellohttp://www.blogger.com/profile/13494573508585266807noreply@blogger.comBlogger642125tag:blogger.com,1999:blog-1548498152712223401.post-45372440160522821032022-08-03T13:53:00.008-07:002022-08-04T11:31:09.402-07:00Criticism of Non-Exam Pathway Is Thinly Veiled Protectionism<div class="separator" style="clear: both; text-align: left;"><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhkeJKHzzeKb1E_6f1z83yvqcdBex85nD-6nrWXvQ9TqHssM9_y2gfGIpOZ0gQ66Re7t3SuXPPu6GmMWhmkXuiHC5dpwa0FkVLYfxBBgdts4KlSOCEGTRXgepSfLrlaBKt3m5awoTFSBzUMUQMUgDLoxHLcZRIqZBHC25fmRsIIJxMjL4hMB_ATuNUA8w/s560/SusanBakhshian.jpg" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="560" data-original-width="400" height="200" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhkeJKHzzeKb1E_6f1z83yvqcdBex85nD-6nrWXvQ9TqHssM9_y2gfGIpOZ0gQ66Re7t3SuXPPu6GmMWhmkXuiHC5dpwa0FkVLYfxBBgdts4KlSOCEGTRXgepSfLrlaBKt3m5awoTFSBzUMUQMUgDLoxHLcZRIqZBHC25fmRsIIJxMjL4hMB_ATuNUA8w/w143-h200/SusanBakhshian.jpg" width="143" /></a></div><b>By Professors <a href="https://www.lls.edu/faculty/facultylista-b/susansmithbakhshian/">Susan Smith Bakhshian</a> and Stephanie Rae Williams</b><br /><br /><i>This op-ed <a href="https://dailyjournal.com/articles/368565-criticism-of-non-exam-pathway-is-thinly-veiled-protectionism">appeared</a> in the August 3, 2022 edition of the Los Angeles Daily Journal.<br /></i><br />A non-exam pathway to licensure is long overdue in California.</div><br />A non-exam pathway can provide public protection better than an exam. An exam is an excellent tool to ensure that the highly privileged, who can afford to study full-time without working and have few family demands, will continue to be licensed. An exam is an excellent tool to ensure that the bar prep industry continues to earn profits by selling courses and study materials. An exam is an excellent tool to maintain the status quo of a profession that fails to match the ethnic diversity of our state. An exam is an excellent tool for licensing attorneys in a bygone era by relying on memorization seldom used in practice – not skills actually used in ably representing clients. <br /><br />The bar exam’s faults are legendary. Every California attorney convicted of misconduct passed the exam. And the practice of law has modernized while the exam clings to testing methods that do not differentiate the qualified from the unqualified. The exam tests antiquated doctrines that attorneys will never use under conditions attorneys never face. Nothing justifies testing common law principles that are inconsistent with California law. Yet the exam continues to do so, in a manufactured and unrealistic environment where bar takers cannot consult with other attorneys or mentors, perform legal research, or do any of the other real-life tasks our duty of competent representation demands. The exam assumes that California attorneys are general practitioners in over a dozen distinct practice areas. That era ended long ago with most attorneys limiting their practice today. And even those with more general practices do not offer services in every subject tested on the exam without a chance to educate themselves or associate with an expert before taking clients in unfamiliar areas of the law. <br /><br />A non-exam pathway is a better way forward. As detailed below, with supervision and proper safeguards to ensure a reliable and valid assessment of educational requirements, California can move into the modern era and license attorneys without reliance on an exam that is not transparent and has excluded too many for too long. <br /><br />A non-exam pathway will not provide licenses to all the graduates of unaccredited law schools. Stoking fear with unsupported assertions that California has some law schools that do not provide a quality education is a matter for the State Bar to deal with in its regulatory capacity. Regulating California’s law schools should not be a function of a bar exam. Claims that a few schools might not provide a valuable education cannot support a system where all applicants at ABA and California accredited schools are forced to take an ineffective and outdated exam. Assuming some schools would offer substandard training, the non-exam pathway can respond with supervised practice requirements and portfolio assessments by the State Bar to ensure minimum competency. <br /><br />Critics offer no evidence to the contrary. Unsupported assertions and broad misstatements about lax supervision or diploma privilege are convenient cover for what amounts to protectionism at best, and cruel discrimination at worst. Too many groups opposing a non-exam pathway are those affiliated with the bar prep industry, those who draft or administer the existing exam, or those who believe others must suffer because they struggled with the exam. <br /><br />Supervision is possible. Canadian provinces have successfully supervised new attorneys for generations. Oregon recently approved a supervised practice pathway. California’s own pandemic era provisional licensing program provided the State Bar with insights into the best practices necessary to offer a non-exam pathway. Applicants who earn their licenses through supervised practice are not mere interns; their supervisors assume professional responsibility and tort liability for the applicant’s work. Plus, supervision is only one component of a non-exam pathway. <br /><br />A non-exam pathway is not a diploma privilege. Licensing every graduate should be a goal. But a non-exam pathway will not result in all graduates being licensed. Some applicants will fail the education or portfolio requirements of a non-exam pathway. For those applicants whose portfolio is deficient, resubmission and further evaluation by the State Bar would ensure a competent attorney is licensed. While a second time exam pass ensures nothing more than additional time spent memorizing, less noise in the testing site, random luck, or some combination of factors unrelated to competency. <br /><br />We can also insure validity and reliability. California’s Department of Consumer Affairs has many years of experience with administering 3.4 million licenses, more than 280 license types, including over 150 professional licenses. Exams are not the only option that can meet the psychometrician’s standards of reliability and validity. Law lags behind by refusing to modernize its licensing requirements. <br /><br />New licensing approaches will have costs, but opponents overestimate those costs – while overlooking the financial burdens of the current exam. Bar takers pay at least $10,000 in bar fees, tuition for bar prep courses, foregone income, and travel costs to take the exam. <br /><br />Law schools and law students are not sheep. To suggest students will gravitate to easy internships misses two key realities. First, the State Bar can set the non-exam pathway to require a minimum standard of rigor. Second, law students select difficult and challenging internships every day. Indeed, the most prestigious internships are anything but easy. <br /><br />To suggest law schools will not teach legal fundamentals is absurd. Law schools have mandatory curriculums for all or most of the first year as required by the ABA and California State Bar. In fact, in the last twenty years, while the bar exam has failed to evolve, California law schools have added many graduation requirements, increasing hours required in core subjects and skills courses. And even if this purported risk of decreased fundamental teaching existed, it would only be a reason to carefully craft the education requirements, not a reason to reject a non-exam pathway. <br /><br />Finally, skills and professionalism are better built and assessed in a non-exam pathway. Passing an exam does not ensure the applicants are skilled in anything other than memorization and high stakes testing. Passing the bar exam simply indicates the test taker’s privilege and wealth. Recent studies at the state and national level demonstrate that bar exams over test on knowledge that is unrelated to today’s practice of law, and under test on skills attorneys use every day. Interviewing, counseling, negotiating, and other lawyering skills can all be evaluated as a part of a non-exam pathway. A non-exam pathway would do more than protect the public – it would provide newly licensed attorneys who have demonstrated the skills needed to properly represent clients. Skills nowhere to be found on the exam. <br /><br />The California Supreme Court established the Blue-Ribbon Commission because the exam is not working. Hours and hours of public meetings decry the critique that the non-exam pathway is hasty or fails to consider the concerns raised by the many constituencies represented on the Commission. Indeed, the Commission recommendations remain a work in progress. Public comment is part of every meeting, with many diverse voices supporting a non-exam pathway, many times outweighing the critics. Public comment remains an integral part of the Commission’s work of making recommendations. Ultimately, the Board of Trustees and the California Supreme Court will assess the Commission’s recommendations, which are not yet final, and provide a process for all stakeholders, including public comment, which is the State Bar’s common practice. If stakeholders will join the process instead of criticizing without evidence, California can create a non-exam pathway that leads the nation in best practices. <br /><br />Members of the California bar have known for decades that the current bar exam disproportionately excludes people of color from the profession. Further study will not solve the problem. A non-exam pathway can improve diversity and ensure competent new attorneys. <br /><br />Rejecting a non-exam pathway before it is crafted because attorneys do not want more competition is little better than hazing and smacks of thinly veiled protectionism. The profession is better than that. Criticism of a non-exam pathway without any evidence of potential harm should be rejected. Where legitimate concerns are raised, the non-exam pathway can be constructed to meet them. The evidence and experts know a non-exam pathway can be crafted to better protect the public and provide a transparent and fair licensing process. California needs to lead the way. <br /><br /><b>Susan Smith Bakhshian</b> is a clinical professor and director of Bar Programs at LMU Loyola Law School, and a member of the California Supreme Court’s Blue-Ribbon Commission on the Future of the California Bar Exam. <b>Stephanie Rae Williams</b> is assistant professor of Legal Research & Writing, Pepperdine Caruso School of Law <br /><br /> <span><a name='more'></a></span><span><!--more--></span><span><!--more--></span>Brian Costellohttp://www.blogger.com/profile/13494573508585266807noreply@blogger.com0tag:blogger.com,1999:blog-1548498152712223401.post-81496100351617130312022-05-02T08:24:00.003-07:002022-05-02T18:11:43.456-07:00In Memoriam: Anne Wells<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjtEQE7DzFFPbMJY3dbNYT5IsmcEirjpXbrcagPkEiJt08RhN3l5mIefsO1bQFI1o2X1gFfxFlAl3zXYFFF6IjD32HFu_okpzrcIAovlXUSBnpt6j6YQmjbJUHZAhgKSewucxBdXnIq7Lsu49-7aSCvEkRPBWsCT1FLmfh9_IMXNoQkU7XHxXfUrhFQdg/s560/wells-anne-2017.jpg" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" data-original-height="560" data-original-width="400" height="200" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjtEQE7DzFFPbMJY3dbNYT5IsmcEirjpXbrcagPkEiJt08RhN3l5mIefsO1bQFI1o2X1gFfxFlAl3zXYFFF6IjD32HFu_okpzrcIAovlXUSBnpt6j6YQmjbJUHZAhgKSewucxBdXnIq7Lsu49-7aSCvEkRPBWsCT1FLmfh9_IMXNoQkU7XHxXfUrhFQdg/w143-h200/wells-anne-2017.jpg" width="143" /></a></div>Few have made their mark on Loyola Law School or the legal profession like Professor <a href="https://t.e2ma.net/click/49ci63/kag1g1/wfs75qc">Anne Wells</a> ’91, who at the height of her career as a law firm partner specializing in bankruptcy law, a field she was instrumental in shaping, returned to LLS to teach.<br aria-hidden="true" style="background-color: white; font-family: Arial, Helvetica, sans-serif, serif, EmojiFont; font-size: 14px;" /><br /><div>Wells, who passed away on April 24, 2022, brought nearly 15 of practice experience – including founding her own business law firm – to the law school when she joined the faculty in 2009 to teach Ethical Lawyering and Legal Research & Writing. Later, she added Law & Process: Privacy Torts, Legal Drafting, Torts II and, of course, Bankruptcy.<br /><span style="font-family: Arial, Helvetica, sans-serif, serif, EmojiFont;"><span style="font-size: 14px;"><br /></span></span>“For many years, and in many roles, Anne represented the best of who we are and hope to be. She cared deeply about students and their success,” said Dean Michael Waterstone. “She believed deeply in our equity and inclusion mission, and devoted her time and talents to always working to be a community where everyone belongs. And she was both fun, and funny. I will miss her greatly.”<br /><div class="separator" style="clear: both; text-align: center;"><br /></div><br /><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhG0IDCy8wlKci7FbHkiBQtaMLg4PgBTNIXfxHez0C8xkQS84fpjBGzMjrF_mHXK19xRCFHUou0H2ouppgHTxDLIf1sfJegTMpqJ8fzXpS0H15cFUqZzZlLOacRCbLODNW96A7oXpJ4e4oHiLtWLaqoIbgmE_lc7QOULtkBNDX7AUAUu42axCUSvb2E8Q/s5100/LLS_KF_0049.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="3404" data-original-width="5100" height="214" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhG0IDCy8wlKci7FbHkiBQtaMLg4PgBTNIXfxHez0C8xkQS84fpjBGzMjrF_mHXK19xRCFHUou0H2ouppgHTxDLIf1sfJegTMpqJ8fzXpS0H15cFUqZzZlLOacRCbLODNW96A7oXpJ4e4oHiLtWLaqoIbgmE_lc7QOULtkBNDX7AUAUu42axCUSvb2E8Q/s320/LLS_KF_0049.jpg" width="320" /></a></div>Over time, Wells expanded her role as a student mentor as Director of Academic Success, helping students navigate the unique challenges of law school coursework. That is no surprise considering the superlatives she earned during her time as a student, which included graduating cum laude and Order of the Coif, and serving as Comment Editor of the Loyola of Los Angeles International & Comparative Law Review. Additionally, she was a member of the St. Thomas More Law Honor Society, which awarded Wells the 2022 David P. Leonard Memorial Faculty Service Award, recognizing faculty who have made exceptional contributions to the LLS community.<br /><br /></div><div>Always generous with her time, Wells volunteered with a number of organizations. She was a member of the Alumni Association Board of Governors, which helps organize such LLS tent-pole events as the Alumni Grand Reunion. Elsewhere, Wells was a volunteer coach and site coordinator of the APLA AIDS Marathon Training Program, served on the Occidental College Tiger Club Alumni Board and was member of the Granada Hills North Neighborhood Council.</div><div> <br />“Professor Wells provided a safe and inclusive space for so many Loyola students,” said Mieko Failey ’13, Legal Director, The LGBTQ Center of Long Beach. “Her impact lives on through the countless students she supported in becoming attorneys who will carry on her legacy of building more inclusive and affirming communities.”<br /></div><div><br /></div>Beyond the classroom, Wells influenced bankruptcy law through her scholarship that often crossed over with issues of ethical lawyering. She was an editorial board member of the California Bankruptcy Journal for well over a decade, fusing her experience both as an academic and that of a practicing attorney who parlayed her experience as a law firm partner to form her own firm, Futter-Wells, PC, in 2007. Her articles included “Avoiding Ethical and Management Minefields in the Bankruptcy Practice,” “Navigating Ethical Minefields on the Bankruptcy Bandwagon” and many more. <br /><div><br /></div>In lieu of flowers, the family has requested that donations be made to the <a href="https://t.e2ma.net/click/49ci63/kag1g1/c8s75qc">Professor Anne Wells Memorial Scholarship</a> at Loyola Law School. <a href="https://t.e2ma.net/click/49ci63/kag1g1/s0t75qc">Donate via this link</a> or by writing a check to Loyola Marymount University and send to the address below.<div> <br /><div>Loyola Law School <br />University Hall <br />C/o AIS University Advancement <br />1 LMU Drive, Suite 2800 <br />Los Angeles, CA 90045</div><div><br />The family is having a private memorial service. The law school is planning a celebration of Professor Wells’ life on the LLS campus, and will provide details soon.<br /></div><div><br /></div><div>Share your remembrance of Professor Wells by submitting a Comment below:</div></div>Brian Costellohttp://www.blogger.com/profile/13494573508585266807noreply@blogger.com9tag:blogger.com,1999:blog-1548498152712223401.post-8332191061317912152022-04-21T17:39:00.009-07:002022-04-22T11:13:00.258-07:00Sheriff Alex Villanueva is Obstructing Attempts to Eradicate Deputy Gangs from the LASD<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhEZea6Eic6kx0Q4uLgopcmoC5SNKroopCUIhDHXPekKXT0b9CO3NFRxyLegvIY92JYImTfzk4AmGB8M0ISXyG0WzHmUXSCpZkDFurwgwSH4-jvywy9dWgiKUi-CrZX4Tu4dP-Wm08nLLtLKYDJIk09tCU7onUpZlc6_01w0ZzvwxXDwDwkh4XY5IV33A/s560/Kennedy-Sean-new-faculty-photo.jpg" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="560" data-original-width="400" height="200" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhEZea6Eic6kx0Q4uLgopcmoC5SNKroopCUIhDHXPekKXT0b9CO3NFRxyLegvIY92JYImTfzk4AmGB8M0ISXyG0WzHmUXSCpZkDFurwgwSH4-jvywy9dWgiKUi-CrZX4Tu4dP-Wm08nLLtLKYDJIk09tCU7onUpZlc6_01w0ZzvwxXDwDwkh4XY5IV33A/w143-h200/Kennedy-Sean-new-faculty-photo.jpg" width="143" /></a></div>By <a href="https://www.lls.edu/faculty/facultylisth-k/seankennedy/">Sean Kennedy</a>, Kaplan & Feldman Executive Director, Center for Juvenile Law & Policy <br /><br />The Los Angeles County Sheriff's Department has tolerated deputy gangs within its ranks for at least 50 years. <br /><br />Our Legislature recently enacted Penal Code Section 13670 - effective Jan. 1, 2022. The new law requires law enforcement agencies to adopt a written policy prohibiting members from participating in a "law enforcement gang" and authorizes agencies to terminate members who violate that policy. Section 13670 also requires any agency that terminated a member for participating in a law enforcement gang to disclose the reason for the termination to other agencies that are considering hiring the former member. The legislative history reveals that the longstanding problem of "deputy gangs" in the Los Angeles County Sheriff’s Department was the impetus for enacting Section 13670. <br /><br />The first known deputy gang, the Little Red Devils, started at East Los Angeles station - where Sheriff Alex Villanueva started his career. Records from Sheriff Peter Pitchess's administration reflect that investigators compiled a list of dozens of' deputies with sequentially numbered devil tattoos to ascertain whether they were engaged in misconduct. After this 1973 investigation, LASD leadership stopped compiling lists of internal tattooed groups based on the questionable assertion that such investigations would violate deputies' right to freedom of association under the First Amendment. To this day, the LASD uses this rationale as an excuse for not investigating deputy gangs, even after receiving County Counsel's 2021 memorandum advising that there is no First Amendment bar to banning deputy gangs. <br /><br /><div>In 1990, the NAACP filed a civil-rights lawsuit on behalf of scores of Lynwood residents alleging that the LASD tolerated racially motivated violence committed by a tattooed group of deputies known as the Vikings. After U.S. District .Judge Terry Hatter characterized the Vikings as "a neo-Nazi, white supremacist gang" that operated under leaders who "tacitly authorized deputies' unconstitutional behavior, the County settled the suit for $9 million. A 1992 commission headed by Judge James Kolts concluded that the Vikings "appeared at least in times past to have engaged in behavior that is brutal and intolerable and is typically associated with a street gang." <br /><br />In 2012, a sergeant discovered a written creed of a tattooed group of deputies known as the Jump out Boys inside a LASD patrol car used by the Gang Enforcement Team. The creed boasted that the Jump out Boys "understand when the line needs to be crossed and crossed back; and directed members to memorialize deputy-involved shootings in a secret black book, While some members of the .Jump out Boys were terminated, most or all were reinstated by the Civil Service Protection process. <br /><br />In 2018, several deputies celebrating the end of training were severely beaten by a tattooed group of deputies from the East Los Angeles station known as the Banditos. After investigating the incident, the Inspect General reported, "Substantial evidence exists to support the conclusion that the Banditos are gang-like and their influence has resulted in favoritism, sexism, racism, and violence:” Most recently, deputies from the Compton station have alleged that a tattooed group of deputies called "the Executioners" discriminated against female and African American deputies, engaged in racial profiling, and hosted shooting parties to celebrate deputy-involved shootings. Photos of demonic tattoos worn by the Grim Reapers, the Banditos, and the Executioners are all over social media. <br /><br />Deputy gangs are in the jails as well as at patrol stations. The U.S. Commission on Civil Rights published a 1999 report on policing in Los Angeles that identified an "organized vigilante group" of deputies known as the Posse. According to the Commission, Posse members assaulted mentally ill inmates in Twin Towers because they opposed reforms to treat mentally ill inmates like patients, rather than prisoners. Then-sheriff Sherman Block lamented, "There are some people in the system who think we are coddling, and by God, they're going to set up their own brand of punishment." <br /><br />Thirteen years later, in 2012, the Citizens Commission on Jail Violence concluded that tattooed ''deputy cliques" inside Men's Central Jail, such as the 2000 Boys and the 3000 Thousand Boys, "contributed to acts of insubordination, aggressive behavior, and excessive force in the jail for many years." <br /><br />Citing a lack of evidence that is belied by the historical record, Sheriff Villanueva denies there are any deputy gangs within the department. At the same time, he has refused to investigate alleged deputy gang members - characterizing calls for an investigation as a witch-hunt" motivated by racism against Latinos. It goes without saying that if the Sheriff won't investigate alleged deputy gangs, he will never find any evidence one way or another. <br /><br />The residents of Los Angeles County have paid a high price for the LASD leadership's failure to address gang culture within the ranks. Deputy gangs undermine constitutional policing, escalate uses of force, and sow distrust between the LASD and the communities they are supposed to serve. By valorizing aggressive policing and deputy shootings, deputy gangs foster an "us-against-them" culture that socializes deputies to view themselves as at war with the communities they are supposed to serve. A compilation of all deputy-involved shootings in Los Angeles County during the last five years reveals that LASD stations with active deputy gangs had significantly more deputy-involved shootings than other stations. The County Counsel estimates that the taxpayers have spent at least $55 million for settlements and judgments related to alleged deputy gang misconduct. Because LASD leadership refuses to investigate deputy gangs, prosecutors do not know and therefore do not comply with their constitutional duty to disclose to the defense that a particular sheriff witness belongs to a deputy gang - a fact that impeaches their credulity and reveals their bias on the stand. <br /><br />Section 13670 creates an opportunity for the LASD to reverse course and eradicate deputy gangs once and for all. LASD leadership for years has claimed they cannot investigate tattooed groups absent proof that deputies committed specific felonies constituting a "pattern of criminal activity" that support a conviction for a criminal gang enhancement under the Street Terrorism Enforcement and Prevention Act (STEP Act). Not anymore, Section 13670 defines a "law enforcement gang" as "a group of peace officers...who may identify themselves by a name and may be associated with an identifying symbol, including, but not limited to matching tattoos, and who engage in a pattern of on-duty behavior that intentionally violates the law or principles of professional policing." The definition of a law enforcement gang under Section 13670 is much broader than the traditional definition of a "criminal street gang" under the STEP Act. The new law prohibits a wide variety of gang-related misconduct and unconstitutional policing, rather than just the felonies listed in the STEP Act. These differences between Section 13670 and the STEP Act obviate LASD leadership's past justifications for refusing to investigate and terminate deputies actively participating in a law enforcement gang. <br /><br />Section 13670 also directs, "A law enforcement agency shall cooperate in any investigation into these gangs by an inspector general, the Attorney General, or any other authorized authority." This provision will require Sheriff Villanueva to change his ways. He has refused to comply with subpoenas to testify and produce records regarding deputy gangs - even after courts have held that he is obligated to do so - and resisted oversight focused on reining in the gang. Sheriff Villanueva must abandon these obstructionist tactics and collaborate with oversight authorities to eradicate deputy gangs from the LASD.</div>Brian Costellohttp://www.blogger.com/profile/13494573508585266807noreply@blogger.com0tag:blogger.com,1999:blog-1548498152712223401.post-11985255568601555582021-05-11T10:25:00.002-07:002021-05-11T10:25:30.900-07:00Biden Decision on COVID Vaccine Patent Waivers is More About Global Leadership than IP<div class="separator" style="clear: both; text-align: center;"><a href="https://1.bp.blogspot.com/-sQoqYD6eGZI/VNQAhF7sDJI/AAAAAAAABLc/x4LxHN3GpsgXYTNqTwvOWnwxu6PdrAxsQCPcBGAYYCw/s182/justinhughes_web.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="182" data-original-width="130" src="https://1.bp.blogspot.com/-sQoqYD6eGZI/VNQAhF7sDJI/AAAAAAAABLc/x4LxHN3GpsgXYTNqTwvOWnwxu6PdrAxsQCPcBGAYYCw/s0/justinhughes_web.jpg" /></a></div>By Professor <a href="https://www.lls.edu/faculty/facultylisth-k/justinhughes/">Justin Hughes</a><br /><br />Back in October 2020 – as the world recorded its first million COVID-19 deaths – South Africa and India <a href="https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/IP/C/W669.pdf&Open=True">presented a proposal</a> at the World Trade Organization for “a waiver from the implementation, application and enforcement” of global intellectual property rights “in relation to prevention, containment or treatment of COVID-19.” Along with other western countries, the Trump administration strenuously opposed the idea. But on Wednesday the <a href="https://www.reuters.com/business/healthcare-pharmaceuticals/biden-says-plans-back-wto-waiver-vaccines-2021-05-05/">Biden administration said </a>it is prepared to go along with such a waiver, at least for coronavirus vaccines. <br /><br />What happened?<div><br /></div><div>Read the entire <a href="https://www.usatoday.com/story/opinion/2021/05/06/covid-vaccine-patents-biden-boosts-american-leadership-column/4932766001/">USA Today op-ed>></a></div>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-1548498152712223401.post-74031200782527184952021-04-24T10:23:00.003-07:002021-05-11T10:26:04.302-07:00Center for Study of Law & Genocide Notes 'Clear Signal' on Armenian Genocide Remembrance Day<p><span style="background-color: white; font-family: "Arial Black", Arial, Helvetica, sans-serif; font-size: 16px;">Armenian Genocide Remembrance Day Statement</span></p><br style="background-color: white; font-family: Helvetica, Arial, sans-serif; font-size: 13px; vertical-align: baseline;" /><p style="background-color: white; border: 0px transparent; font-family: Arial, Helvetica, sans-serif; font-size: 14px; line-height: 20px; list-style-type: none; margin: 0px 0px 10px; outline: 0px; padding: 0px; vertical-align: baseline;">America’s political branches have now spoken with one voice. In 2019, both the U.S. Senate and the House of Representatives overwhelmingly passed bipartisan resolutions formally recognizing the Armenian Genocide (<i style="border: 0px transparent; list-style-type: none; margin: 0px; padding: 0px; vertical-align: baseline;">Meds Yeghern</i>) perpetrated by the Ottoman Empire. Earlier today, President Biden joined with them in a <a data-name="landmark statement" data-type="url" href="https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/24/statement-by-president-joe-biden-on-armenian-remembrance-day/" style="border: 0px; color: #ab0c2f; margin: 0px; outline: none; padding: 0px; vertical-align: baseline;">landmark statement</a>. These actions send a clear signal that the United States does not defer to nationalistic denialism of mass atrocities, whether past or perhaps even present. It must be remembered that a mere two decades after the early 20th century Armenian Genocide, the failure of the world to pressure Turkey to acknowledge its crimes encouraged Germany that it would suffer no consequences for a genocidal war against the Jews.</p><p style="background-color: white; border: 0px transparent; font-family: Arial, Helvetica, sans-serif; font-size: 14px; line-height: 20px; list-style-type: none; margin: 0px 0px 10px; outline: 0px; padding: 0px; vertical-align: baseline;"><a data-name="The Loyola Center for the Study of Law & Genocide" data-type="url" href="https://www.lls.edu/academics/centers/centerforthestudyoflawandgenocide/" style="border: 0px; color: #ab0c2f; margin: 0px; outline: none; padding: 0px; vertical-align: baseline;">The Loyola Center for the Study of Law & Genocide</a> has, for over a dozen years, sought official recognition of the tragic Turkish genocide of Armenians. The first of a number of symposia sponsored by the Center on the issue of recognition took place in February 2009, with the most recent occurring just last Monday, April 19, 2021. In 2011, the Center filed an amicus brief in a Ninth Circuit case involving the use of the term “Armenian Genocide” in a California state law. The Center’s brief was instrumental in persuading the three-judge panel to reverse an earlier decision and declare the California law constitutional. Unfortunately, a Ninth Circuit en banc panel, at the oral argument of which both of the undersigned appeared as co-counsel, reversed on the grounds that the recognition of the “Armenian Genocide” was contrary to federal policy. California was thus prevented from even using the phrase in its restitution statute. In 2012, Center Director Stan Goldman published a law review article, <i style="border: 0px transparent; list-style-type: none; margin: 0px; padding: 0px; vertical-align: baseline;"><a data-type="url" href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/touint16&div=4&id=&page=" style="border: 0px; color: #ab0c2f; margin: 0px; outline: none; padding: 0px; vertical-align: baseline;">Is it Nobody’s Business but the Turks?</a></i>, concluding that America’s federal refusal to recognize the Genocide was actually contrary to past actions and pronouncements made decades ago by both the executive and congressional branches. Prior to joining the Center, Deputy Director Rajika Shah acted as counsel for Armenian plaintiffs in multiple cases repeatedly blocked by courts due to the lack of federal recognition, outlining this history in a 2017 article.</p><p style="background-color: white; border: 0px transparent; font-family: Arial, Helvetica, sans-serif; font-size: 14px; line-height: 20px; list-style-type: none; margin: 0px 0px 10px; outline: 0px; padding: 0px; vertical-align: baseline;">Only a few months ago, Turkey again took shamefully aggressive actions against Armenians by supporting Azerbaijan with military and non-military equipment and personnel in its unprovoked attack on Artsakh/Nagorno-Karabakh. Armenian churches, significant cultural property, and hospitals were demolished, and Armenian civilians were subjected to unspeakable violence and cruelty, again raising the specter of genocide. President Biden’s announcement is particularly important at this pivotal moment. </p><p style="background-color: white; border: 0px transparent; font-family: Arial, Helvetica, sans-serif; font-size: 14px; line-height: 20px; list-style-type: none; margin: 0px 0px 10px; outline: 0px; padding: 0px; vertical-align: baseline;">In memory of all those who lost their lives and loved ones, we hope that today’s statement from President Biden is not only the beginning of the end of Turkish denialism, but will also put other would-be authors of mass atrocities on notice that they cannot count on impunity and American indifference.<br style="vertical-align: baseline;" /><br style="vertical-align: baseline;" /><i>Prof. Stanley Goldman, Founding Director and Professor of Law<br style="vertical-align: baseline;" />Prof. Rajika Shah, Deputy Director and Adjunct Professor</i></p>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-1548498152712223401.post-61849614373539634092020-11-06T09:18:00.006-08:002020-11-06T09:23:36.927-08:00What Comes After Election 2020? Three Things to Know in the Coming Days<div class="separator" style="clear: both; text-align: center;"><a href="https://1.bp.blogspot.com/-ls98_6wmZyk/X6WGh8vaHSI/AAAAAAAAFKo/1sfe4rmIxmEA9oDUDcseAyMAWvhqn2JYQCLcBGAsYHQ/s600/ElectionPanel_110520_600px.png" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" data-original-height="338" data-original-width="600" height="181" src="https://1.bp.blogspot.com/-ls98_6wmZyk/X6WGh8vaHSI/AAAAAAAAFKo/1sfe4rmIxmEA9oDUDcseAyMAWvhqn2JYQCLcBGAsYHQ/w320-h181/ElectionPanel_110520_600px.png" width="320" /></a></div>By Dean <a href="https://www.blogger.com/u/1/#">Michael Waterstone</a><div><br />Last night, Loyola Law School held a panel on “<a href="https://www.lls.edu/election2020">Election 2020: What Comes Next?</a>” I was joined by incredible colleagues, Professor <a href="https://www.lls.edu/faculty/facultylistl-r/jessicaalevinson/">Jessica Levinson</a> and Professor <a href="https://www.lls.edu/faculty/facultylistl-r/justinlevitt/">Justin Levitt</a>, 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. <br /><br />Three important takeaways: <br /><br /><ul style="text-align: left;"><li>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”.</li><li>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. </li><li>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. </li></ul>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 <a href="https://lmu.box.com/v/election2020whatsnext">full version here</a>.</div>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-1548498152712223401.post-39745443503596104142020-09-20T16:52:00.006-07:002020-09-21T17:40:44.998-07:00Remembering Ruth Bader Ginsburg<div class="separator" style="clear: both; text-align: center;"><a href="https://1.bp.blogspot.com/-7SeSDtB644E/X2jVL_DTMtI/AAAAAAAAFJE/Ds_w9RqDyCADUMDI0OTzQQ1C6aRVi5AgwCLcBGAsYHQ/s321/RBG_sitting.jpg" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" data-original-height="321" data-original-width="201" height="320" src="https://1.bp.blogspot.com/-7SeSDtB644E/X2jVL_DTMtI/AAAAAAAAFJE/Ds_w9RqDyCADUMDI0OTzQQ1C6aRVi5AgwCLcBGAsYHQ/s320/RBG_sitting.jpg" /></a></div>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 <a href="https://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=2754&context=llr">special issue</a> of the <i>Loyola of Los Angeles Law Review</i>. 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.<br /><br /><div style="text-align: center;">“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.” </div><i><div style="text-align: center;"><i><br /></i></div><div style="text-align: center;"><i>– Professor Aimee Dudovitz, Associate Dean for Clinical Programs and Experiential Learning </i></div><div style="text-align: center;"><span color="inherit" face="Arial, sans-serif" style="border: 0px; font-size: 12pt; font-stretch: inherit; font-style: inherit; font-variant: inherit; font-weight: inherit; line-height: inherit; margin: 0px; padding: 0px; vertical-align: baseline;"><br /></span></div></i><br /><div style="text-align: center;">"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."</div><div style="text-align: center;"><br /></div><div><div style="text-align: center;"><i>–Professor Allan Ides, Christopher N. May Chair</i></div><div style="text-align: center;"><i><br /></i></div><div style="text-align: center;"><p class="xmsonormal" style="background: white; margin-bottom: .0001pt; margin: 0in;"><span style="border: none windowtext 1.0pt; color: #201f1e; font-family: "inherit",serif; font-size: 11.0pt; mso-bidi-font-family: Calibri; mso-border-alt: none windowtext 0in; padding: 0in;">“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.”</span><span style="color: #201f1e; font-family: "Calibri",sans-serif;"><o:p></o:p></span></p><p class="xmsonormal" style="background: white; margin-bottom: .0001pt; margin: 0in;"><i style="text-align: start;"><span style="color: inherit; font-stretch: inherit; font-style: inherit; font-variant: inherit; font-weight: inherit; line-height: inherit;"><span style="border: none windowtext 1.0pt; color: #201f1e; font-family: "inherit",serif; font-size: 11.0pt; mso-bidi-font-family: Calibri; mso-border-alt: none windowtext 0in; padding: 0in;"><br /></span></span></i></p><p class="xmsonormal" style="background: white; margin-bottom: .0001pt; margin: 0in;"><i style="text-align: start;"><span style="color: inherit; font-stretch: inherit; font-style: inherit; font-variant: inherit; font-weight: inherit; line-height: inherit;"><span style="border: none windowtext 1.0pt; color: #201f1e; font-family: "inherit",serif; font-size: 11.0pt; mso-bidi-font-family: Calibri; mso-border-alt: none windowtext 0in; padding: 0in;">-Professor Kathleen Kim,
Associate Dean for Equity & Inclusion</span></span></i></p>
<span style="color: inherit; font-stretch: inherit; font-style: inherit; font-variant: inherit; font-weight: inherit; line-height: inherit;"></span></div><div><br /><div style="text-align: center;">“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.”</div><div style="text-align: center;"><br /></div><div style="text-align: center;"><i>– Professor Kimberly West-Faulcon, James P. Bradley Chair in Constitutional Law</i></div><i><div style="text-align: center;"><i style="color: inherit; font-family: Calibri, sans-serif; font-size: 11pt; font-variant-caps: inherit; font-variant-ligatures: inherit; font-weight: inherit;"><span color="inherit" face="Arial, sans-serif" style="border: 0px; font-size: 12pt; font-stretch: inherit; font-style: inherit; font-variant: inherit; font-weight: inherit; line-height: inherit; margin: 0px; padding: 0px; vertical-align: baseline;"><br /></span></i></div></i> <div style="text-align: center;">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? </div><div style="text-align: center;"><br /></div><div style="text-align: center;"><i>– Professor Laurie Levenson, David W. Burcham Chair in Ethical Advocacy </i></div><div style="text-align: center;"><br /></div> <div style="text-align: center;">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. </div><div style="text-align: center;"><br /></div><div style="text-align: center;"><i>– Hon. Sandra R. Klein ’92, U.S. Bankruptcy Court for the Central District of California </i></div><div style="text-align: center;"><br /></div> <div style="text-align: center;"><br /></div><div style="text-align: center;">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. </div><div style="text-align: center;"><br /></div><div style="text-align: center;"><i>– Professor Jessica Levinson ’05, Director, Loyola Public Service Institute </i></div><div style="text-align: center;"><br /></div> <br /><br /> </div></div>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-1548498152712223401.post-90540296938648299712020-09-10T16:24:00.002-07:002020-09-10T16:24:52.891-07:00Provisional License Program Promises More Than It Can Deliver<p></p><div class="separator" style="clear: both; text-align: center;"><a href="https://1.bp.blogspot.com/-q93VttRwiTU/XxIv4kBy70I/AAAAAAAAFII/_tjJ3QdOx4QMxkpyZoQTZbYgeP3LsUjCgCPcBGAYYCw/s2048/Bakhshian-Susan.jpg" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="2048" data-original-width="1420" height="205" src="https://1.bp.blogspot.com/-q93VttRwiTU/XxIv4kBy70I/AAAAAAAAFII/_tjJ3QdOx4QMxkpyZoQTZbYgeP3LsUjCgCPcBGAYYCw/w142-h205/Bakhshian-Susan.jpg" width="142" /></a></div>By Director of Bar Programs <a href="https://www.lls.edu/faculty/facultylista-b/susansmithbakhshian/">Susan Bakhshian</a><p></p><p class="MsoNormal"><o:p></o:p></p>
<p class="MsoNormal"><i>This <a href="https://dailyjournal.com/articles/359369-provisional-license-program-promises-more-than-it-can-deliver">op-ed</a> originally appeared in the Sept. 9, 2020 edition of the</i> Los Angeles Daily Journal.</p><p class="MsoNormal">California’s provisional license program promises more than
it can deliver. The problems range from practical challenges to systemic
unfairness.</p><p class="MsoNormal"><o:p></o:p></p>
<p class="MsoNormal">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.
<o:p></o:p></p>
<p class="MsoNormal">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. <o:p></o:p></p>
<p class="MsoNormal">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. <o:p></o:p></p>
<p class="MsoNormal">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.<o:p></o:p></p>
<p class="MsoNormal">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. <o:p></o:p></p><span><a name='more'></a></span><p class="MsoNormal">Ironically, the provisional license rules crafted as a
result of a modern pandemic are antiquated. They favor the privileged. For the
graduates with a family that can afford to support them while they balance the
demands of working under a provisional license with the demand of studying for
the bar exam — these rules could work. However, first generation grads and
grads without significant economic resources, will be left without a license at
all if they cannot find a traditional job with a willing supervisor. The rules
are reminiscent of a bygone era. The landscape of the legal profession could
not be more different today.</p><p class="MsoNormal"><o:p></o:p></p>
<p class="MsoNormal">If only the well-connected and financially secure are able
to obtain a law firm job that includes a supervisor willing to oversee a
provisionally licensed lawyer, the profession will not diversify.<o:p></o:p></p>
<p class="MsoNormal">Another detail to consider is whether relatives can be
supervising attorneys. In some ways, a parent or spouse may be the most willing
to take on the responsibility for a provisionally licensed lawyer, but what do
we say to the first generation law grad who does not have a relative who is an
attorney? Do we have any concerns about a spouse supervising? Perhaps we should.<span style="mso-spacerun: yes;"> </span>Allowing relatives and spouses to supervise
would increase the opportunities, but at the heavy price of asking supervisors to
suborn their family relationships to the public interest.<o:p></o:p></p>
<p class="MsoNormal">The problems don’t end here.<o:p></o:p></p>
<p class="MsoNormal">The timing of the provisional license is too short. A
provisional license with a path to admission in lieu of a bar exam may need to be
longer. As the pandemic continues unabated, the program may also be too short
by limiting it to graduates as of Dec. 31, 2020. Nothing suggests that the May
2021 graduates will not face many of the same hurdles in place today. <o:p></o:p></p>
<p class="MsoNormal">The rules are crafted with some attention to protecting the
public. Provisionally licensed attorneys are prohibited from client trust fund
access. No doubt handling client funds is a tremendous responsibility. The
supervising attorneys should have client trust fund accounts that will make
this restriction reasonable. Provisionally licensed attorneys who commit an
ethics violation will be terminated from the program. As it should be. However,
some protections for the public do nothing to resolve the looming licensing
crisis the Supreme Court refuses to recognize. <o:p></o:p></p>
<p class="MsoNormal">If the real concern is protection of the public, then let
the provisionally licensed lawyers demonstrate their competency. Not by an
exam, but by their actions. <o:p></o:p></p>
<p class="MsoNormal">Better options abound. Grads who successfully demonstrate a
checklist of essential skills during their two year provisional license and
comply with all professional responsibility rules, should be admitted. It is
time to focus on demonstrated competency instead of an out dated exam. Every
lawyer who has betrayed the public’s trust previously passed the exam the
Supreme Court holds so dear. It is time to forge a new path. <o:p></o:p></p>
<p class="MsoNormal">Perhaps most telling is that the provisional license rules
remain available to those who are unsuccessful on the bar exam. This is the
most humane part of the program. Grads will not be forced to choose whether to
take the exam or procure a provisional license — rightfully so. But the Supreme
Court’s simultaneous claims that the bar exam is a necessary protection for the
public and yet unnecessary for the provisional license may just prove the
critics right. The bar exam is not necessary to protect the public. <o:p></o:p></p>
<p class="MsoNormal">California deserves better. We should insist on reform that protects
the public and creates a pathway for all new graduates. And it needs to end
with a license. <o:p></o:p></p>
<p class="MsoNormal"><strong><span face=""Arial",sans-serif" style="background: white; color: #333333; font-size: 13.5pt; line-height: 107%;">Susan Smith
Bakhshian</span></strong><i><span face=""Arial",sans-serif" style="background: white; color: #333333; font-size: 13.5pt; line-height: 107%;"> is a
professor at Loyola Marymount University Loyola Law School, where she is director
of bar programs. She is the co-author of “Clearing the Last Hurdle: Mapping
Success on the California Bar Exam.”</span></i><o:p></o:p></p>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-1548498152712223401.post-91757762498538752782020-09-08T09:24:00.003-07:002020-09-08T09:28:54.884-07:00Happy 100th Birthday, Loyola Law School!<table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: right; margin-left: 1em; text-align: right;"><tbody><tr><td style="text-align: center;"><a href="https://1.bp.blogspot.com/-M9FmygNXltA/X1eulyIbltI/AAAAAAAAFIw/y_iWRmsoNnMdLQPq6MHF2H53Ru4Efk2nACLcBGAsYHQ/s900/CentennialDay_900x600.jpg" style="clear: left; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img border="0" data-original-height="600" data-original-width="900" src="https://1.bp.blogspot.com/-M9FmygNXltA/X1eulyIbltI/AAAAAAAAFIw/y_iWRmsoNnMdLQPq6MHF2H53Ru4Efk2nACLcBGAsYHQ/s320/CentennialDay_900x600.jpg" width="320" /></a></td></tr><tr><td class="tr-caption" style="text-align: center;"><i>LLS has resided at four locations over <br />its 100-year history.</i></td></tr></tbody></table>By Dean <a href="https://www.lls.edu/faculty/facultylists-z/michaelwaterstone/">Michael Waterstone</a> <br /><br /><i>This op-ed was originally <a href="https://dailyjournal.com/articles/359344-happy-100th-loyola-law-school">published </a>in the Tuesday, Sept. 8 edition of the</i> Los Angeles Daily Journal.<div><br /></div><div>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. <br /><br />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. <br /><br />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. <br /><br />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. <br /><br />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. <br /><br />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. <br /><br />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. <br /><br />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. <br /><br />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. <br /><br />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. <br /><br />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. <br /><br />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. </div>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-1548498152712223401.post-4541073693872852802020-09-04T07:40:00.009-07:002020-09-04T07:40:52.805-07:00Finding Justice for Greenwood<div class="separator" style="clear: both; text-align: center;"><a href="https://1.bp.blogspot.com/-F8QcQEUCkH0/X1JRNwvQAkI/AAAAAAAAFIk/bWaInnhEwzQU4lC6EosbdL4ZECCyiglvgCLcBGAsYHQ/s2048/Miller_eric.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="2048" data-original-width="1452" height="205" src="https://1.bp.blogspot.com/-F8QcQEUCkH0/X1JRNwvQAkI/AAAAAAAAFIk/bWaInnhEwzQU4lC6EosbdL4ZECCyiglvgCLcBGAsYHQ/w146-h205/Miller_eric.jpg" width="146" /></a></div>By Professor <a href="https://www.lls.edu/faculty/facultylistl-r/ericmiller/">Eric Miller</a>, Leo J. O'Brien Fellow<div><br /></div><div><i>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. <a href="https://www.youtube.com/watch?v=nhEISldRjs0">View </a>the press conference.</i></div><div><br /></div><div>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. <br /><br />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. <br /><br />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. <br /><br />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. </div><span><a name='more'></a></span><div>I’m going to explain why the remedy for a public nuisance provides restoration and repair for the survivors of the massacre, the descendants of the victims, and the current residents of Greenwood and North Tulsa. The remedy for a public nuisance is for the folks who caused the problem to fix it. Lawyers call this remedy, “abatement.” We will ensure that the remaining survivors, the descendants of the victims and members of the Greenwood and North Tulsa community are the people who get to tell the history of the Massacre and who direct the financial, social, cultural, and political wellbeing of their community. <br /><br />Justice for Greenwood is for the survivors, victims, descendants, and Black residents of Greenwood and North Tulsa to determine for themselves. The City of Tulsa, the Chamber of Commerce, and the other defendants’ created a public nuisance, grounded in racism, and which is an ongoing public health crisis. Black Tulsans deserve to direct the rebuilding of a safe and secure community. <br /><br />Justice for Greenwood is not the property of the City of Tulsa and the other defendants to give as they choose. Since 2001, when the history of Black Wall Street was recovered and celebrated by African Americans, the City government and Chamber of Commerce sought to appropriate the history of the Massacre for itself. For them, the Greenwood District is nothing more than a tourist attraction. Rather than include the African American survivors and descendants, or other Black Tulsans, in telling the history of the Massacre, the City and Chamber of Commerce have turned Black Wall Street into a brand for white Tulsans to sell. The City and Chamber have declined to address the continuing impacts of Tulsa’s policies in producing a geographically and socially isolated black community marked by economic, health, educational, and safety deficits. <br /><br />Marginalizing the Black survivors, diaspora, and Tulsa community minimizes the continuing impact of the massacre on these people today. None of them have received compensation for their losses. Their voices are missing from the histories of the Massacre. For example, Lessie Randle, who is 105 years-old, and one of at least three still-living survivors of the Massacre. continues to see the mages of the Black bodies that were “stacked up” on the street as her neighborhood was burning. She constantly relives the terror of May 31 and June 1, 1921. And yet the City of Tulsa has done nothing to compensate her for the damage it inflicted upon her life. <br /><br />The defendants are to foot the costs necessary to compensate the Massacre survivors and descendants of the victims, as well the residents of Greenwood and North Tulsa, by promoting political, educational, and business institutions run by the Greenwood diaspora and Black citizens of North Tulsa, and to provide the people still affected by the Massacre and the continuing public nuisance with the ability to determine how best to memorialize the Massacre. <br /><br />We seek an injunction requiring Defendants who use the likenesses of victims of the Massacre to provide fair and equitable compensation to the descendants. Because Justice for Greenwood is for the Black residents of Greenwood and North Tulsa to determine for themselves, we will obtain an injunction prohibiting Defendants receiving any money or other material benefits from their appropriation of the Massacre and the legacy and reputation of the Greenwood District and neighborhood. Any fees due the Defendants associated with providing licensing or other services to private or public groups to implement this appropriation, including the Greenwood Rising History Center, shall be placed in a Victims Compensation Fund. That fund shall be available individual members of the Greenwood and North Tulsa communities, as well as local, grassroots, Black owned and Black led organizations and businesses, to rebuild the social, economic, cultural, and political infrastructure and integrity of their communities. <br /> </div>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-1548498152712223401.post-8488575895389974042020-07-17T16:12:00.002-07:002020-07-17T16:14:22.179-07:00Announced Approach to Bar Exam 'Is Not Practical'<div class="separator" style="clear: both; text-align: center;">
<a href="https://1.bp.blogspot.com/-q93VttRwiTU/XxIv4kBy70I/AAAAAAAAFIE/SwKp2ejpWj0nC9OTcXr5vUGuOincR5c7gCLcBGAsYHQ/s1600/Bakhshian-Susan.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="1600" data-original-width="1110" height="200" src="https://1.bp.blogspot.com/-q93VttRwiTU/XxIv4kBy70I/AAAAAAAAFIE/SwKp2ejpWj0nC9OTcXr5vUGuOincR5c7gCLcBGAsYHQ/s200/Bakhshian-Susan.jpg" width="138" /></a></div>
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<i>This response originally <a href="https://www.law.com/therecorder/2020/07/17/this-is-not-practical-loyola-law-professor-reacts-to-california-bar-exam-decision/">appeared </a>in the July 17, 2020 edition of The Recorder. </i></div>
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By <a href="https://www.lls.edu/faculty/facultylista-b/susansmithbakhshian/">Susan Smith Bakhshian</a></div>
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The California Supreme Court’s <a href="https://newsroom.courts.ca.gov/internal_redirect/cms.ipressroom.com.s3.amazonaws.com/262/files/20206/SB_BOT_7162020_FINAL.pdf">announcement </a>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.<br />
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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.”<br />
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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.”<br />
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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.<br />
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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.”<br />
<a name='more'></a>The Supreme Court got one thing right and everything else wrong. While the change in cut score is long overdue, the Supreme Court failed to even mention those who were unsuccessful on a previous bar exam, but would now pass under today’s standard. These graduates should be licensed immediately. It is not “humane” or “practical” to leave this unaddressed.<br />
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Other questions are also left unanswered. Does a failing score on the October exam foreclose the temporary licensing option? How will disabled students be accommodated on a remote exam? And what if the pandemic crisis continues longer than expected? These overarching questions say nothing about the countless details necessary to implement any one of the Court’s orders – let alone all of them. And all before an October exam.<br />
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It is time to face reality. The pandemic has no set timetable. The bar exam is not worth saving. The time, resources and money required to administer a remote online exam, one that is likely discriminatory and unfair, should be funneled into other alternatives.<br />
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The California Supreme Court and the California legislature have neglected the State Bar for decades. Without proper oversight and funding, the State Bar cannot be expected to implement a remote exam, create a temporary licensing program, and resolve all of the complications of a new cut-score. Any one of these tasks is a major undertaking. Taking on all three tasks and doing so in less than three months, during a pandemic, is absurd.<br />
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<i>Susan Smith Bakhshian is a professor at LMU Loyola Law School, where she is Director of Bar Programs. She is the author of “Clearing the Last Hurdle: Mapping Success on the California Bar Exam.”</i>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-1548498152712223401.post-29190640954513621712020-07-16T17:35:00.001-07:002020-07-16T17:36:36.921-07:00It's Time to Replace the California Bar Exam<a href="https://1.bp.blogspot.com/-2wG4pM0mx1k/XxDxrWD1DyI/AAAAAAAABZk/2Sfs9pInGLoVAvma-LcFhPKoWPKDs1gkQCLcBGAsYHQ/s1600/Bakhshian-Susan.jpg" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="200" src="https://1.bp.blogspot.com/-2wG4pM0mx1k/XxDxrWD1DyI/AAAAAAAABZk/2Sfs9pInGLoVAvma-LcFhPKoWPKDs1gkQCLcBGAsYHQ/s200/Bakhshian-Susan.jpg" width="139" /></a><br />
<i>This <a href="https://www.law.com/therecorder/2020/07/16/its-time-to-replace-the-california-bar-exam/?kw=It%27s%20Time%20to%20Replace%20the%20California%20Bar%20Exam&utm_source=email&utm_medium=enl&utm_campaign=afternoonupdate&utm_content=20200716&utm_term=ca">op-ed</a> originally appeared in the July 16, 2020 edition of The Recorder. Read the entire published op-ed <a href="https://www.law.com/therecorder/2020/07/16/its-time-to-replace-the-california-bar-exam/?kw=It%27s%20Time%20to%20Replace%20the%20California%20Bar%20Exam&utm_source=email&utm_medium=enl&utm_campaign=afternoonupdate&utm_content=20200716&utm_term=ca">here</a>.</i><br />
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By Professor <a href="https://www.lls.edu/faculty/facultylista-b/susansmithbakhshian/">Susan Smith Bakhshian</a><br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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The solutions are not simple, but they are plentiful. Young lawyers need supervision and mentoring far more than they need months of studying followed by a high stakes exam. A diploma privilege with supervision requirements is one solution. Law students have much more experience today – everything from prosecuting certain crimes as a certified law clerk or representing clients in law school clinics. Supervising students works. This could be a model for supervising recent law school graduates. Law schools are willing to step up and provide a bridge from graduation to practice.<br />
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Alternatively, the exam could be administered in phases during law school with multiple opportunities to demonstrate basic skills that are relevant today. Law schools could be required to provide additional training and courses for students who are low performing. The medical profession’s residency model could be adapted to law. The continuing legal education requirements could be expanded and transformed.<br />
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The energy being wasted on attempting to give an exam during a pandemic should be funneled into investigating any of these alternatives.<br />
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And finally, but most importantly, the bar exam is part of the pipeline that keeps the legal profession from diversifying. Standardized testing has a history of preserving the status quo. Bar examiners at the national and state levels can keep trying to explain away the statistics as something other than bias, but students of color face an exam with additional hurdles. It is time we recognize that for what it is and put an end to it.<br />
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Whether the exam is replaced temporarily or permanently need not be addressed now. The Court and the State Bar are about to squander a perfect opportunity. A trial run to determine whether supervised practice or diploma privileges with conditions, or any number of other solutions would allow California to lead with innovative ideas. If the new solution fails, it can be retooled when the pandemic ends. If the new solution is a success, then California opens the door to better practices.<br />
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<i>Susan Smith Bakhshian is a professor at LMU Loyola Law School, where she is Director of Bar Programs. She is the author of “Clearing the Last Hurdle: Mapping Success on the California Bar Exam.”</i></div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-1548498152712223401.post-68838369334609943322020-07-01T09:40:00.032-07:002020-11-10T17:25:36.793-08:00<p style="text-align: center;"> </p><div class="separator" style="clear: both; text-align: center;">THE YALE LAW JOURNAL</div><div style="text-align: center;"><br /></div><div class="separator" style="clear: both; text-align: center;"><div class="separator" style="clear: both; text-align: center;"><a href="https://1.bp.blogspot.com/-NVHToTmfh9Y/X6rYyC6Zb_I/AAAAAAAAFMQ/Oy_-yoFPgHALRt-Nd0RlYw0dtuUFBi88QCLcBGAsYHQ/s260/YaleLawJournal_260.jpg" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="260" data-original-width="260" src="https://1.bp.blogspot.com/-NVHToTmfh9Y/X6rYyC6Zb_I/AAAAAAAAFMQ/Oy_-yoFPgHALRt-Nd0RlYw0dtuUFBi88QCLcBGAsYHQ/s0/YaleLawJournal_260.jpg" /></a></div><br /><div class="separator" style="clear: both; text-align: center;"><br /></div><br /><div class="separator" style="clear: both; text-align: center;"><br /></div></div><div style="text-align: center;"><br /></div><div style="text-align: center;">THE CRISPR JOURNAL</div><div class="separator" style="clear: both; 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text-align: center;"><a href="https://1.bp.blogspot.com/-w9Z0IKZLBAQ/X6ra3JlufQI/AAAAAAAAFMo/MshERaHQ4FEBSB_9BLlLebC704hTGHXHwCLcBGAsYHQ/s200/CoverStack_Yale_Update_200px.jpg" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="200" data-original-width="200" src="https://1.bp.blogspot.com/-w9Z0IKZLBAQ/X6ra3JlufQI/AAAAAAAAFMo/MshERaHQ4FEBSB_9BLlLebC704hTGHXHwCLcBGAsYHQ/s0/CoverStack_Yale_Update_200px.jpg" /></a></div><br /><div class="separator" style="clear: both; text-align: center;"><br /></div><div class="separator" style="clear: both; text-align: center;"><div class="separator" style="clear: both; text-align: center;"><br /></div><div class="separator" style="clear: both; text-align: center;"><br /></div><div class="separator" style="clear: both; text-align: center;">THE HARVARD JOURNAL OF LAW & TECHNOLOGY</div><div class="separator" style="clear: both; text-align: center;"><br /></div><br /><br /></div><div class="separator" style="clear: both; text-align: center;"><a href="https://1.bp.blogspot.com/-_cFl6kR1-yM/X6rZFqpFxgI/AAAAAAAAFMY/-L_QR6I5Pnc1ewhIzZqEXG5ugFQLKgNsgCLcBGAsYHQ/s260/CoverStack-Harvard_update_260px.png" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="260" data-original-width="260" src="https://1.bp.blogspot.com/-_cFl6kR1-yM/X6rZFqpFxgI/AAAAAAAAFMY/-L_QR6I5Pnc1ewhIzZqEXG5ugFQLKgNsgCLcBGAsYHQ/s0/CoverStack-Harvard_update_260px.png" /></a></div><div class="separator" style="clear: both; text-align: center;"><br /></div><div class="separator" style="clear: both; text-align: center;">HARVARD at 250 PX</div><div class="separator" style="clear: both; text-align: center;"><a href="https://1.bp.blogspot.com/-lmTP3gr3KVY/X6s9i9bhWFI/AAAAAAAAFNM/Z5P0ptXksWczfWq3Kdjm2zX0aa7z9lYDACLcBGAsYHQ/s250/CoverStack-Harvard_update_250px.png" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="250" data-original-width="250" src="https://1.bp.blogspot.com/-lmTP3gr3KVY/X6s9i9bhWFI/AAAAAAAAFNM/Z5P0ptXksWczfWq3Kdjm2zX0aa7z9lYDACLcBGAsYHQ/s0/CoverStack-Harvard_update_250px.png" /></a></div><br /><div class="separator" style="clear: both; text-align: center;"><br /></div><br /><div class="separator" style="clear: both; text-align: center;"><br /></div><div class="separator" style="clear: both; text-align: center;"><br /></div><div style="text-align: center;"><br /></div><div class="separator" style="clear: both; text-align: center;"><br /></div><div style="text-align: center;"><br /></div><div style="text-align: center;"><br /></div><div class="separator" style="clear: both; text-align: center;"><br /></div><div style="text-align: center;"><br /></div>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-1548498152712223401.post-11196730473640389862020-04-24T16:05:00.001-07:002020-04-24T16:05:45.087-07:00Honoring Armenian Genocide Remembrance Day<div class="separator" style="clear: both; text-align: center;">
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By <a href="https://www.lls.edu/thellsdifference/laasaclassroom/clinics/loyolagenocidejusticeclinic/director/">Rajika Shah</a>, Deputy Director, Center for the Study of Law & Genocide<br />
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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.<br />
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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.<br />
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You can view information on our Armenian Genocide Remembrance events and all our past events, including links to videos of the presentations, <a href="https://www.lls.edu/thellsdifference/laasaclassroom/centers/centerforthestudyoflawandgenocide/whatwedo/events/archives/">here</a>.<br />
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Brian Costellohttp://www.blogger.com/profile/13494573508585266807noreply@blogger.com0tag:blogger.com,1999:blog-1548498152712223401.post-58581231369996074982020-03-03T12:23:00.011-08:002020-11-09T12:47:05.087-08:00<p> </p><div class="separator" style="clear: both; text-align: center;"><a href="https://1.bp.blogspot.com/-2xhvOuj3iQQ/X6Rh5PNVcCI/AAAAAAAAFJ4/F3rF0rHlcqcsH8LqTsRGBCJzwEJBklJUgCLcBGAsYHQ/s720/CoverStack-Harvard.png" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="720" data-original-width="720" height="320" src="https://1.bp.blogspot.com/-2xhvOuj3iQQ/X6Rh5PNVcCI/AAAAAAAAFJ4/F3rF0rHlcqcsH8LqTsRGBCJzwEJBklJUgCLcBGAsYHQ/s320/CoverStack-Harvard.png" /></a></div><br /><div class="separator" style="clear: both; text-align: center;"><a href="https://1.bp.blogspot.com/-LxmYS60KhNQ/X6Rh3l9Ld7I/AAAAAAAAFJ0/DxwldybNT8w8Iyedu9iDhojnPnOngU-AwCLcBGAsYHQ/s720/CoverStack-Yale.png" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="720" data-original-width="720" height="320" src="https://1.bp.blogspot.com/-LxmYS60KhNQ/X6Rh3l9Ld7I/AAAAAAAAFJ0/DxwldybNT8w8Iyedu9iDhojnPnOngU-AwCLcBGAsYHQ/s320/CoverStack-Yale.png" /></a></div><br /><p></p><br /><div class="separator" style="clear: both; text-align: center;"><br /></div><br /><p></p><div class="separator" style="clear: both; text-align: center;"><a href="https://1.bp.blogspot.com/-1PTMMNLmNSw/X6RlqRJ0aTI/AAAAAAAAFKI/lzwuHxM_wzkR-syeqPRPj4rEXRwh4-c7ACLcBGAsYHQ/s518/crispr.2019.2.issue-3.cover.jpg" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="518" data-original-width="400" height="320" src="https://1.bp.blogspot.com/-1PTMMNLmNSw/X6RlqRJ0aTI/AAAAAAAAFKI/lzwuHxM_wzkR-syeqPRPj4rEXRwh4-c7ACLcBGAsYHQ/s320/crispr.2019.2.issue-3.cover.jpg" /></a></div><div class="separator" style="clear: both; text-align: center;"><br /></div><div class="separator" style="clear: both; text-align: center;"><a href="https://1.bp.blogspot.com/-O7z1k2LXZBk/X6TsHwBe3lI/AAAAAAAAFKU/z6Guj9orHK0GuGTtA_Q6zIzzQQXax2cJwCLcBGAsYHQ/s1800/CoverStack-Yale_new.jpg" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="1800" data-original-width="1800" height="320" src="https://1.bp.blogspot.com/-O7z1k2LXZBk/X6TsHwBe3lI/AAAAAAAAFKU/z6Guj9orHK0GuGTtA_Q6zIzzQQXax2cJwCLcBGAsYHQ/s320/CoverStack-Yale_new.jpg" /></a></div><div class="separator" style="clear: both; text-align: center;"><div class="separator" style="clear: both; text-align: center;"><br /></div><br /><br /></div><div class="separator" style="clear: both; text-align: center;"><a href="https://1.bp.blogspot.com/-Cnp5XP7GWTg/X6mjmM0IFEI/AAAAAAAAFK8/_pYHWWdnCsA86Temjl5i8gKPXyu1m10owCLcBGAsYHQ/s720/CoverStack_Yale_Update.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="720" data-original-width="720" height="320" src="https://1.bp.blogspot.com/-Cnp5XP7GWTg/X6mjmM0IFEI/AAAAAAAAFK8/_pYHWWdnCsA86Temjl5i8gKPXyu1m10owCLcBGAsYHQ/s320/CoverStack_Yale_Update.jpg" /></a></div><div class="separator" style="clear: both; text-align: center;"><div class="separator" style="clear: both; text-align: center;"><a href="https://1.bp.blogspot.com/-QZizGtrOJS4/X6mqw_RLoWI/AAAAAAAAFLM/2VD1_Kn8sQoVR2J-SNsXCeUs1t9Tti7NwCLcBGAsYHQ/s720/CoverStack-Harvard_update.png" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="720" data-original-width="720" height="320" src="https://1.bp.blogspot.com/-QZizGtrOJS4/X6mqw_RLoWI/AAAAAAAAFLM/2VD1_Kn8sQoVR2J-SNsXCeUs1t9Tti7NwCLcBGAsYHQ/s320/CoverStack-Harvard_update.png" /></a></div><br /><a href="https://1.bp.blogspot.com/-X7IJkRI65w0/X6mqqqSLr5I/AAAAAAAAFLI/DxhNXmKTGuUB_98Zm8zkQ-lZXIPP22yZACLcBGAsYHQ/s720/CoverStack-Harvard_update.png" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="720" data-original-width="720" height="320" src="https://1.bp.blogspot.com/-X7IJkRI65w0/X6mqqqSLr5I/AAAAAAAAFLI/DxhNXmKTGuUB_98Zm8zkQ-lZXIPP22yZACLcBGAsYHQ/s320/CoverStack-Harvard_update.png" /></a></div><br /><div class="separator" style="clear: both; text-align: center;"><br /></div><br /><br /><div class="separator" style="clear: both; text-align: center;"><br /></div><br />Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-1548498152712223401.post-30193383587658588192020-01-27T16:46:00.005-08:002020-01-27T16:46:51.890-08:00Reflecting on International Holocaust Remembrance Day<div class="separator" style="clear: both; text-align: center;">
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By <a href="https://www.lls.edu/thellsdifference/laasaclassroom/clinics/loyolagenocidejusticeclinic/director/">Rajika Shah</a>, Deputy Director, Center for the Study of Law & Genocide<div>
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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.<br /><br />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.<br /><br />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.<br /><a name='more'></a>Last Thursday’s order is a major step forward for the Rohingya in finally holding Myanmar—and its noted leader Aung San Suu Kyi—to account for the atrocities that even Myanmar does not deny occurred there in recent years. The Court quoted extensively from reports of the UN’s Independent International Fact-Finding Mission on Myanmar, which concluded there were reasonable grounds to believe that “serious crimes under international law” had been committed against the Rohingya, including the crime of genocide. Those acts included the systematic stripping of human rights, dehumanizing narratives and rhetoric, methodical planning, mass killing, mass displacement, mass fear, overwhelming levels of brutality, and physical destruction of the Rohingya’s homelands.<br /><br />The provisional measures order, like injunctive relief in the United States, is meant to protect the respective rights of the parties pending a final decision on the merits. In issuing provisional measures against Myanmar, the Court found that there was a real and imminent risk that irreparable prejudice would be caused before a final decision can be issued. The judges also reiterated their deep concern for the fundamental human values protected in the Genocide Convention, the extreme vulnerability of the Rohingya population, and the exceptional gravity of the allegations brought by The Gambia.<br /><br />We will continue to monitor this landmark case and bring you further updates. In the meantime, for more on the Rohingya crisis, see:<br /><ul>
<li><a href="https://t.e2ma.net/click/olr830/kag1g1/kiygvic">Video</a> of the panel discussion on the Rohingya at the Center’s October 2018 symposium, New Challenges to Justice: Genocide in the 21st Century</li>
<li>Deputy Director Rajika Shah’s <a href="https://t.e2ma.net/click/olr830/kag1g1/0azgvic">article </a>in the Loyola International and Comparative Law Review offering an early assessment of whether international crimes had been committed against the Rohingya</li>
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Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-1548498152712223401.post-36870411974551585192019-12-20T15:58:00.002-08:002019-12-20T15:58:33.844-08:00Sen. McConnell's Actions Could Make Him Trump's Accomplice<div class="separator" style="clear: both; text-align: center;">
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<span style="background-color: white; color: #201f1e; font-family: "Times New Roman", serif; font-size: 16px;">The implementation of Senator Mitch McConnell’s apparent decision to not allow witnesses during the Senate’s impeachment “trial” of President Trump would be tantamount to his becoming an accomplice and arguably co-conspirator to “Obstruction of Congress” charged in Article2 of the Impeachment itself. </span><br />
<span style="border: 0px; color: #212121; font-family: "Times New Roman", serif; font-size: 16px; font-stretch: inherit; font-variant-east-asian: inherit; font-variant-numeric: inherit; line-height: inherit; margin: 0px; padding: 0px; vertical-align: baseline;"><br /></span>
<span style="border: 0px; color: #212121; font-family: "Times New Roman", serif; font-size: 16px; font-stretch: inherit; font-variant-east-asian: inherit; font-variant-numeric: inherit; line-height: inherit; margin: 0px; padding: 0px; vertical-align: baseline;">Article 2, similar to an allegation once raised against Richard Nixon, alleges that the sitting president, in addition to refusing to provide properly subpoenaed documents, intentionally discouraged and obstructed witnesses from providing material information and testimony to a legitimate congressional investigation of whether that president attempted to extort (and sought to bribe) a foreign government in order to obtain their assistance in defaming a potential presidential opponent. </span><br />
<span style="border: 0px; color: #212121; font-family: "Times New Roman", serif; font-size: 16px; font-stretch: inherit; font-variant-east-asian: inherit; font-variant-numeric: inherit; line-height: inherit; margin: 0px; padding: 0px; vertical-align: baseline;"><br /></span>
<span style="border: 0px; color: #212121; font-family: "Times New Roman", serif; font-size: 16px; font-stretch: inherit; font-variant-east-asian: inherit; font-variant-numeric: inherit; line-height: inherit; margin: 0px; padding: 0px; vertical-align: baseline;">Senator McConnell's refusal to allow material witnesses to be called in the Senate trial, while at the same time supporting a position that grounds for removal have not been established in the absence of information the very information these witnesses would testify to, would constitute aiding in the furtherance of the president’s obstruction of Congress. House Speaker Nancy Pelosi, in the face of Senator McConnell's continuing refusal allow witnesses to testify during a Senate trial, is simply refusing to cooperate in a continuing and unpresented and impeachable effort by the president to obstruct congress from properly investigating that president’s criminal abuse of his office.</span>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-1548498152712223401.post-64777124186109270702019-10-30T09:59:00.002-07:002019-10-30T10:05:43.760-07:00Visual Aids Can Compliment a Law Professor's Teaching Strategy<div class="separator" style="clear: both; text-align: center;">
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By <a href="https://www.lls.edu/faculty/facultylistc-d/caplanaaron/" target="_blank">Professor Aaron Caplan</a><br />
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Visual aids are not the most important thing a law teacher does in the classroom. They can never substitute for well-chosen material, clear organization, thoughtfully chosen in-class activities, being a good explainer or being a good listener. With that said, good visual aids can help students learn more effectively – and bad visual aids make learning harder.<br />
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A series of videos based on a presentation I gave at the AALS New Law Teachers Workshop in June 2019 explores what makes successful visual aids work. The first segment explores the psychology of multi-media learning, providing a theory for preparing visual aids that complement one’s lesson plan and not detract from it. The following segments provide examples of visual aids that I have used with success in various classes, including illustrations, visual renderings of legal texts, visualizations of concepts, and more.<br />
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The videos can be reached here: <a href="https://www.youtube.com/watch?v=zBXlzmRNjW8&list=PLMSs2ZW6QFoJPWzyx_Dbhw4vygOFbmqzB" target="_blank">www.lls.edu/CaplanVisualAids/ </a>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-1548498152712223401.post-44540484945813410112019-10-15T12:00:00.000-07:002019-10-15T16:17:30.031-07:00Wealth, Philanthropy and Politics — Considering 'Wealth Tax' Proposals<div class="separator" style="clear: both; text-align: center;">
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By Professor Ellen P. Aprill<br />
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<i>This op-ed originally appeared in the Tuesday, October 15, 2019 edition of</i> The Hill.</div>
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The impact of private wealth on public policy through tax-exempt organizations has garnered much attention of late, with recent scandals involving the Sacklers, Jeffrey Epstein, and a number of prestigious universities. Recent critiques, however, fail to emphasize sufficiently the role of wealth in campaign finance. Citizens United and the rise, in its wake, of Super PACS able to solicit and spend unlimited amounts make such consideration crucial. Today more than ever, political power of the wealthy means that government spending, like charitable spending, is likely to reflect the interests of the wealthy.<br />
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Current proposals for a wealth tax also need to confront this issue. On Sept. 5, as part of the Brookings Papers on Economic Activity, Emmanuel Saez and Gabriel Zucman presented an important new paper on progressive wealth taxation. The Saez-Zucman paper describes a wealth tax as a means of reducing wealth concentration needed because of such concentration’s effect on democratic institutions and policy-making. (The paper notes that political contributions are extremely concentrated, with 1.01 percent of the population accounting for over a quarter of all such contributions.) According to those present, discussion at the session included whether a wealth tax would reduce billionaires’ political influence. <br />
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To prevent abuses of a wealth tax, the Saez-Zucman paper proposes that donor advised funds — accounts at public charities for which donors can make recommendations as to the distribution or investment of amounts in the accounts — and funds in private foundations controlled by funders “should be subject to the wealth tax until the time such funds have been spent or moved fully out of the control of the donor.” (The paper leaves to another day the question about how to treat private foundations no longer controlled by the original funder and how to avoid gaming of “control.”)<br />
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<div>
Read the <a href="https://thehill.com/opinion/finance/465842-wealth-philanthropy-and-politics-considering-wealth-tax-proposals" target="_blank">complete op-ed>></a></div>
</div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-1548498152712223401.post-22855988171657217322019-10-04T09:35:00.000-07:002019-10-04T12:09:15.595-07:00If California Really Cares About Student Athletes, It’ll Protect Their Rights To Their Own Identities<div class="" style="clear: both; text-align: left;">
<a href="https://1.bp.blogspot.com/--P_8ovjghsQ/XZeT3ezuNZI/AAAAAAAAE_8/Fizeso0T2uI35uOYWK6JOkAOBliz6KSKgCLcBGAsYHQ/s1600/rothman_color_head_2017.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="559" data-original-width="400" height="200" src="https://1.bp.blogspot.com/--P_8ovjghsQ/XZeT3ezuNZI/AAAAAAAAE_8/Fizeso0T2uI35uOYWK6JOkAOBliz6KSKgCLcBGAsYHQ/s200/rothman_color_head_2017.jpg" width="142" /></a>By Professor Jennifer Rothman</div>
<br />
<i>This op-ed originally appeared in the Friday, October 4, 2019 edition of the </i><a href="https://www.sfchronicle.com/opinion/openforum/article/Open-Forum-If-California-really-cares-about-14490928.php?cmpid=gsa-sfgate-result" target="_blank">San Francisco Chronicle</a>.<br />
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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.
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<br />
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.
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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.
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<br />
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.”<br />
<br />
Read the <a href="https://www.sfchronicle.com/opinion/openforum/article/Open-Forum-If-California-really-cares-about-14490928.php?cmpid=gsa-sfgate-result">complete op-ed>></a>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-1548498152712223401.post-75351696334516544032019-09-09T13:36:00.000-07:002019-09-09T14:14:44.395-07:00CPFB Head Misguided in Reliance on Consumer Education<div class="separator" style="clear: both; text-align: center;">
<a href="https://1.bp.blogspot.com/-veekhiqy0VU/XXa3p-pL9lI/AAAAAAAAAUY/_Jo95v20O-MgJzaDApmnSGvbCN5MI1l2wCLcBGAs/s1600/LaurenWillis013_crop.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="585" data-original-width="426" height="200" src="https://1.bp.blogspot.com/-veekhiqy0VU/XXa3p-pL9lI/AAAAAAAAAUY/_Jo95v20O-MgJzaDApmnSGvbCN5MI1l2wCLcBGAs/s200/LaurenWillis013_crop.jpg" width="145" /></a></div>
By Professor Lauren E. Willis<br />
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<i>This op-ed originally appeared in the Saturday, September 7, 2019 edition of</i> The Hill.<br />
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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.
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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.
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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.
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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.
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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.
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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.
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Surveys have shown that voters want a federal agency that’s a tough enforcer of rules in financial services. And yet Kraninger is touting a partnership with H&R Block to research how to nudge households to save in small increments as a way of “moving the needle” on households’ financial problems. This is the same H&R Block that was caught earlier this year coding its website to hide from search engines the free tax preparation service it had promised the federal government it would provide to low-income consumers and instructing its employees to sell consumers who qualify for its free service the same service but for a fee. The Los Angeles City Attorney’s Office has sued the company for breaking the law; Kraninger’s CFPB has not.
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This continues the pattern of non-enforcement that Kraninger established her first week on the job; she took up the case of a scammer charged with targeting military service members and settled it for a single dollar. In fact, only one of her first six case settlements resulted in restitution to victims. These actions display little interest in the mandate Congress gave the CFPB when it formed the agency — to implement and enforce federal law for the purpose of ensuring that markets for consumer financial products and services are fair, transparent, and competitive.
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Most recently, the CFPB under Kraninger’s direction disseminated an e-alert to educate consumers about high-tech online frauds targeting mortgage borrowers. This came in the wake of the agency opening a “fintech sandbox” to exempt firms from existing federal and state consumer protection regulation when these companies sell new financial products. We can expect this education-not-regulation pattern to have the same disastrous effects on American consumers’ financial health that our imagined city’s water education plan would have on its residents’ physical health.
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Moreover, like our hypothetical city administrators, Kraninger’s plan is inherently cynical. She is foisting the work of professionals whom Congress charged with protecting ordinary people onto individual consumers, with an eye toward blaming those consumers when they naturally cannot keep up. Replacing regulation and enforcement with websites and e-alerts relieves lenders of their responsibilities — in effect protecting industry rather than consumers.
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The headline from one law firm serving the financial industry says it all: “Expanded CFPB Sandbox Promises Greater Protections for Fintech and Other Financial Services Companies.”
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Financial products today are complex and ever-changing. Moreover, the financial services industry has technology at its disposal that facilitates subtle forms of deception and abuse, particularly online. This is why Congress created the CFPB to be an agency with the resources, expertise, and rulemaking and enforcement powers necessary to protect consumers in the 21st century. The agency’s leader needs a strategy that reflects this mission, not the fantasy that financial education will protect us.Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-1548498152712223401.post-60410942360645150272019-06-24T10:22:00.003-07:002019-06-24T12:56:54.958-07:00Prof. Miller Tesitfies on HR40 and the Path to Restorative Justice Before House Judiciary Subcommittee<div class="separator" style="clear: both; text-align: center;">
<a href="https://1.bp.blogspot.com/-TPFqWs7DjcI/XREEDLT0AKI/AAAAAAAAATA/XrochnNc9kssa6YiH6h_72XG-8O4KjZQwCLcBGAs/s1600/Miller_Eric_webpage_original.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="1600" data-original-width="1135" height="200" src="https://1.bp.blogspot.com/-TPFqWs7DjcI/XREEDLT0AKI/AAAAAAAAATA/XrochnNc9kssa6YiH6h_72XG-8O4KjZQwCLcBGAs/s200/Miller_Eric_webpage_original.jpg" width="141" /></a></div>
<i>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 <a href="https://youtu.be/lfEe1MRxSgI" target="_blank">recording</a> of the testimony.</i><br />
<br />
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:<br />
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1. Local, state and federal governments were active perpetrators of race-targeted discrimination against, and domination of, African-Americans during slavery and Jim Crow.<br />
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2. These governmental institutions engaged in the massive social, political, economic, and cultural destruction of African American communities and individuals.<br />
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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.<br />
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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.<br />
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5. Reparations addresses the ways in which these institutions entrenched race-based discrimination and domination throughout American social, cultural, economic, and political institutions.<br />
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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.<br />
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7. Reparations must also include rebuilding the social political economic and cultural infrastructure of the communities destroyed by the state.<br />
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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.<br />
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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.<br />
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Some historical context is in order. On May 30, 1921, some African Americans mobilized to stop a lynching in Tulsa, Oklahoma. In response, white citizens, deputized by the police and aided by the state national guard, burned down the thirty-five city blocks of Greenwood, a thriving African American residential and business district in Tulsa. Up to three-hundred African Americans died in the massacre and ensuing fire. Overnight, five thousand African Americans became homeless. Three thousand terrorized people fled the city. The rest were rounded up and held under guard for days at the local baseball park and fairground. The Red Cross had to mobilize to provide tents for the thousands who remained.<br />
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The City of Tulsa and the State of Oklahoma moved quickly to suppress news of the massacre. Survivors were terrorized into silence. All mention of it was excised from official accounts of Oklahoma history. The details of the massacre only became public in 2003, after the State of Oklahoma formed an HR40-style Commission, including historians, lawyers, and activists, to report on the massacre. The commission's painstaking search through the historical record discovered much previously unavailable material. The commission apportioned financial damages, and proposed that reparations be paid to the survivors and descendants. When the state refused to make good on those recommendations, we filed a lawsuit trying to complete the process begun by the Commission. The only impediment to our success, the courts acknowledged, was a rule requiring the survivors to file any lawsuit within two years of the massacre. These statutes of limitations are the major impediment to many reparations lawsuits.<br />
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The Tulsa experience demonstrates that the harms of slavery and segregation scar our communities to this day. The City and State dismantled, economically, politically, and culturally, a specific community: African Americans in Tulsa. Subsequent generations of Greenwood residents have labored under social and political disempowerment whilst trying to rebuild their community. Whilst a monetary payment would count as a beginning, economic justice is not enough without racial justice to repair the specific race-based wrongs of the Tulsa massacre and its aftermath. To quote Harvard Law Professor and reparations activist, Professor Charles Ogletree, “Reparations are more than an exercise in education, remembrance, and apology. Reparations demand the political, social, and economic power and equality for African Americans that has been stifled and suppressed in America since its inception.”<br />
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Accordingly, I urge Congress to pass HR40 as a first, vital step on the path to acknowledging and accounting for the history of race-targeted discrimination and wrongdoing that has marked too much of this nation's history. It is time that the federal government joined the states, municipalities, universities and other organizations investigating the invidious legacy of slavery and segregation so as to remedy the continuing impact of state-sponsored political, social, and economic disempowerment of African Americas in this country.Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-1548498152712223401.post-11811471487889234842019-06-13T14:02:00.002-07:002019-06-24T10:00:23.525-07:00The California Consumer Protection Act: Groundbreaking, but will it be enforced?<div class="separator" style="clear: both; text-align: center;">
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<a href="https://1.bp.blogspot.com/-SH91gg2bgeQ/XQPysd2x--I/AAAAAAAAASo/e6yPJj76J8QUMbpcdmMNqSoMoNKS2fBjwCLcBGAs/s1600/tobe%2B001.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="1054" data-original-width="921" height="200" src="https://1.bp.blogspot.com/-SH91gg2bgeQ/XQPysd2x--I/AAAAAAAAASo/e6yPJj76J8QUMbpcdmMNqSoMoNKS2fBjwCLcBGAs/s200/tobe%2B001.jpg" width="174" /></a></div>
By Loyola Law School Lecturer and Reference Librarian Tobe Liebert<br />
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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.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>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).<span style="mso-spacerun: yes;"> </span>But the act
remains a work in progress, and there are some serious questions about how
vigorously it can be enforced.<o:p></o:p></div>
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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.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;">
</span>If not, then actions to remedy violations can only be brought by the
state, acting through the Attorney General’s office.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>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.<o:p></o:p></div>
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As passed, the CCPA provided only a limited private cause of
action.<span style="mso-spacerun: yes;"> </span>Such action is permitted only when
a security breach occurred and a consumer’s data was hacked or stolen.<span style="mso-spacerun: yes;"> </span>Even this limited private cause of action has
an exception, however, a requirement that companies first be given notice of a
breach and 30 days to “cure” any violation if no actual damages can be proven
(that is, in an action for “statutory damages”).<o:p></o:p></div>
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And this leads to perhaps the greatest obstacle to the
CCPA’s becoming an effective tool for protecting California citizens:<span style="mso-spacerun: yes;"> </span>the Attorney General’s lack of resources to
enforce the law.<span style="mso-spacerun: yes;"> </span>In hearings held this
spring before the Senate and Assembly Committees, a deputy attorney general
testified that the Attorney General’s office was woefully understaffed for this
role.<span style="mso-spacerun: yes;"> </span>In fact, her opinion was that the
Attorney General’s office might have the resources to prosecute only a few cases
a year.<o:p></o:p></div>
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Because of this funding issue, the Attorney General worked
with Senator Hannah-Beth Jackson and introduced Senate Bill 561.<span style="mso-spacerun: yes;"> </span>This bill proposed to amend the CCPA to allow
a private cause of action for any consumer “whose rights under this title are
violated.” <span style="mso-spacerun: yes;"> </span>This change in language would
permit California consumers to file suit over any violation of the CCPA. <span style="mso-spacerun: yes;"> </span>The bill, however, failed to move out of the
Senate Appropriations committee before the May deadline.<span style="mso-spacerun: yes;"> </span>Thus, this ended any chance that the CCPA
would be amended this session to allow for an expanded private cause of action.
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It is notable that with the passage of the CCPA, other
states have now introduced similar legislation.<span style="mso-spacerun: yes;">
</span>In particular, the “New York Privacy Act,” Senate bill 5642, has many of
the same protections of the CCPA and, very importantly, contains a private
cause of action for any violations of the act.<span style="mso-spacerun: yes;">
</span>Hearings on the bill were recently held and its proponents are hoping to
bring it to a vote this summer.<o:p></o:p></div>
<br />Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-1548498152712223401.post-85949567708865066852019-06-13T13:53:00.000-07:002019-06-13T13:53:23.631-07:00Child Litigants Need to Have Counsel<div class="separator" style="clear: both; text-align: center;">
<a href="https://4.bp.blogspot.com/-SkIb-Ojexk8/XNyCt_eNbrI/AAAAAAAAARg/R8oK2sGJo-Q381yA2JzA5LSLSBWhR24KgCEwYBhgL/s1600/lapp_kevin_web.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="1600" data-original-width="1111" height="200" src="https://4.bp.blogspot.com/-SkIb-Ojexk8/XNyCt_eNbrI/AAAAAAAAARg/R8oK2sGJo-Q381yA2JzA5LSLSBWhR24KgCEwYBhgL/s200/lapp_kevin_web.jpg" width="138" /></a></div>
By Professor <a href="https://www.lls.edu/faculty/facultylistl-r/lappkevin/" target="_blank">Kevin Lapp</a><br />
<br />
<i>This op-ed</i><i> originally appeared in the Monday, May 13, 2019 edition of the </i>Daily Journal<br />
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<span style="background: white; color: black;">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, <i style="mso-bidi-font-style: normal;">C.J.L.G. v. Barr</i>, 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.<o:p></o:p></span></div>
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<span style="background: white; color: black;">C.J.L.G.’s immigration hearing was all too usual. Each year, </span><span style="color: black; mso-bidi-font-family: "Times New Roman"; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;">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, un<span style="background: white; letter-spacing: .15pt;">represented 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.<o:p></o:p></span></span></div>
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<span style="background: white; color: black;">The fully briefed right to appointed counsel claim was
presumably the reason the 9th Circuit chose to hear C.J.L.G. <i style="mso-bidi-font-style: normal;">en banc</i>. Yet,<b style="mso-bidi-font-weight: normal;"> </b>as it did three years ago, it avoided the issue. (In <i style="mso-bidi-font-style: normal;">J.E.F.M. v. Lynch </i>(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. <o:p></o:p></span></div>
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<span style="color: black; mso-bidi-font-family: Tahoma; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;">The
9th Circuit’s decision is certainly a victory for C.J.L.G. and other <i style="mso-bidi-font-style: normal;">pro se</i> 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.<o:p></o:p></span></div>
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<span style="background: white; color: black;">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, </span><span style="background: white; color: black;">because of </span><span style="background: white; color: black;">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.</span><span style="background: white; color: black;"><o:p></o:p></span></div>
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<a name='more'></a>By
avoiding the issue, the court leaves immigration proceedings outside the broad
legal consensus that child litigants are entitled to appointed counsel. <span style="color: black; mso-bidi-font-family: "Times New Roman"; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;">In a variety of civil proceedings, such as
delinquency matters, child welfare proceedings, judicial bypass hearings, and
civil commitment proceedings, the law consistently requires the appointment of
counsel to child litigants.</span><span style="mso-bidi-font-family: "Times New Roman"; mso-fareast-font-family: "Times New Roman";"> Indeed, the claim to appointed counsel
for children in removal proceedings — which are adversarial, presented by a
trained prosecutor, involve complex law, and carry potentially grave
consequences — is stronger than in other civil proceedings where the right
already exists.<o:p></o:p></span><br />
<div class="MsoNormal" style="margin-bottom: 8.0pt;">
<span style="color: black; mso-bidi-font-family: "Times New Roman"; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;">The law generally provides children with counsel for
reasons that anyone who was ever a child intuits. As a rule, minors lack a
basic understanding of law and judicial process and lack the cognitive
capacities to make reasoned decisions about their legal defense. But the law also
requires appointed counsel because of children’s presumptive lack of financial
resources to hire counsel and the government’s <i style="mso-bidi-font-style: normal;">parens patriae</i> obligation toward them. <span style="background: white; letter-spacing: .15pt;">That immigration judges are overburdened by huge and
growing dockets, handle them without the support that the typical federal judge
receives, and are incentivized by disconcerting case-processing quotas to
quickly resolve cases, underscores the inadequacy of current safeguards.</span><o:p></o:p></span></div>
<div class="MsoNormal" style="margin-bottom: 8.0pt;">
<span style="background: white; color: black;">Not all of the judges stayed silent. Judge Richard A. Paez,
joined by Judges William A. Fletcher and Marsha S. Berzon, wrote that he
“cannot ignore this mockery of judicial and administrative process.” After
noting the rarity of the claim making it to the court of appeal, and that
thousands of unrepresented children have been ordered removed in recent years, Judge
Paez explained why he would hold that due process demands appointed counsel for
child respondents. <o:p></o:p></span></div>
<div class="MsoNormal" style="margin-bottom: 8.0pt;">
<span style="background: white; color: black;">Maybe if 9th Circuit judges regularly reviewed
more of the hundreds of <i style="mso-bidi-font-style: normal;">pro se</i>
children’s removal proceedings rife with errors (like C.J.L.G.’s), more of them
would have felt the urgency to rule. But they do not see them. </span><span style="background: white; color: black;">Under current 9th Circuit
law, children who want to raise a claim for appointed counsel must appeal their
cases administratively and then to the circuit courts. Yet unrepresented
children ordered deported like C.J.L.G almost never reach the circuit courts for
a simple reason — they do not have the wherewithal to get there by themselves.</span><span style="background: white; color: black;"><o:p></o:p></span></div>
<div class="MsoNormal" style="margin-bottom: 8.0pt;">
<span style="color: black; mso-bidi-font-family: "Times New Roman"; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;">Over a half century ago, in a delinquency case called <i style="mso-bidi-font-style: normal;">Gault, </i>the Supreme Court recognized that
the right to counsel for juveniles reflects “society’s special concern for children”
and “is of the essence of justice.” By the same token, to leave thousands of
children in removal proceedings without counsel reflects a troubling lack of judicial
concern for children and for the fundamental fairness of judicial proceedings.<o:p></o:p></span></div>
<br />Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-1548498152712223401.post-61612109743183685222019-05-10T14:29:00.001-07:002019-05-13T11:47:16.790-07:00Imagining A Greater Justice: Criminal Violence, Punishment and Relational Justice<div class="separator" style="clear: both; text-align: center;">
<a href="https://4.bp.blogspot.com/-0NJme6ILrPQ/XNXsWvsObWI/AAAAAAAAAdY/m7ggFqPxhxcKG0ZMWjVlcdPU4I4vLsizACLcBGAs/s1600/Pillsbury%2Boriginal.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="1600" data-original-width="1117" height="200" src="https://4.bp.blogspot.com/-0NJme6ILrPQ/XNXsWvsObWI/AAAAAAAAAdY/m7ggFqPxhxcKG0ZMWjVlcdPU4I4vLsizACLcBGAs/s200/Pillsbury%2Boriginal.jpg" width="139" /></a></div>
By Professor <a href="https://www.lls.edu/faculty/facultylistl-r/pillsburysamuelh/">Samuel H. Pillsbury </a><br />
<br />
<i>This excerpt of the book </i>Imagining A Greater Justice: Criminal Violence, Punishment and Relational Justice<i> originally appeared in the Friday, May 10, 2019 edition of the </i>San Francisco and Los Angeles Daily Journal<br />
<br />
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. <br />
<br />
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.<br />
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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?<br />
<br />
Imagining a justice this big will be a stretch for many. <br />
<br />
I know it has been for me.<br />
<br />
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.<br />
<br />
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. <br />
<br />
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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.<br />
<br />
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.</div>
<div>
***</div>
<div>
<br />
<a name='more'></a>Those hurt by wrongful violence have much to teach us about the harms and wrongs of criminal violence, and thus about justice for violent wrongs. Survivors of violent crime can even teach us about life and death. But only if we listen closely and patiently.<br />
<br />
For highly educated people close and patient listening to victims is difficult. Listening to victims is hard because it is slow; and smart people like to move fast. Get to the point, please. Yes, you’ve already said that -- three times actually. It is hard because listening to the hurt, hurts. Staying with another person's pain for more than a brief time conveys some of that pain to the listener. Such listening can be difficult because it privileges feeling over thought. For those who love to discuss ideas and tend to treat emotions as symptoms rather than essential features of the human condition, sustained attention to emotion can be uncomfortable. Okay, I get that you feel that way, but we really need to focus on what can be done. Finally, to avoid unnecessary controversy, most public discussions of criminal justice center on norms of public health and safety. Who could be against public safety and health? But in listening closely to the hurt we hear of moral and spiritual injury. We enter the realm of good and evil, right and wrong, and matters of the soul. These are not terms that many who lead criminal justice policy discussions are comfortable with. <br />
<br />
We should listen closely to victims of wrongful violence because they can tell us about the harms and wrongs of such offenses in a way that no one else can. But we have to be careful to listen to what they say and not what we want them, or expect them, to say. Too often, victim voices have been heard only when they speak in an angry register, in support of new punitive measures. Their anger must be heard, but victims have much more to express than anger. <br />
<br />
When we listen to victims closely we learn about relational losses from violence and the need for relational healing. We learn about harms to the soul and a loss of belonging. Listening to the most direct victims of wrongful violence, we learn how violence permanently changes lives, which makes significant today violence that occurred long ago. <br />
<br />
This learning allows us to see fully persons and communities who have been hurt by violence. The numbers of the hurt and the depth their injury turn out to be much greater than we had imagined, showing that justice requires a much greater response than we had imagined.</div>
Brian Costellohttp://www.blogger.com/profile/13494573508585266807noreply@blogger.com0