Remembering Ruth Bader Ginsburg

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

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

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

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

–Professor Allan Ides, Christopher N. May Chair

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

-Professor Kathleen Kim, Associate Dean for Equity & Inclusion

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

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

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

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

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

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

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

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

What Justice Kavanaugh Can Do To Redeem Himself

By Christopher Hawthorne

This article originally appeared in The Daily Journal.

I am the director of the Juvenile Innocence & Fair Sentencing Clinic at Loyola Law School, Los Angeles. My students, staff and I represent people in the California prison system who committed serious crimes as children. We petition for resentencing, gather mitigation evidence and represent our clients when they stand for parole. Nearly all of our clients are “lifers.”

You might say I have a rooting interest in the redemption of people who, like now-U.S. Supreme Court Associate Justice Brett Kavanaugh, have done bad things as children.

In California, juvenile offenders stand for parole in a special kind of hearing, called a youth offender parole hearing. In this hearing, juvenile offenders — no longer children, but now age 30 through 50 — discuss their childhood crimes, their behavior in prison and their plans for release.

A parole hearing, however, is not a free-for-all therapy session. My clients are there for a very specific purpose. They must persuade the Board of Parole Hearings that they deserve a certain result: freedom.

There are no rules of evidence at a parole hearing, no burden of proof. The result is entirely in the hands of two commissioners. The commissioners make findings and decisions based on their sense of our clients’ credibility and, in particular, how mature they are, how thoughtful, how they manage their anger and, most importantly, whether they take responsibility for what they did as children. Childhood, for the parole board, goes up to age 25.

Sound familiar?

My clients must describe in detail what they did — and not just their crimes. They must describe who they were as children, who they are now and why the difference means freedom. Everything is framed in the language of choice, even things they did when they were as young as 10 years old. Minimizing is prohibited. Outraged denial will get them a swift finding of unsuitability and three to 10 more years — not in the D.C. Circuit, but in the California prison system.

Well, you might say, that’s only right: These are people who committed serious crimes. But the process isn’t confined to the guilty. Even clients with credible claims of innocence have to go through this same process. And when I say credible, I mean a pretty good case, with substantial evidence, not just, “I don’t remember, so it didn’t happen.”

My clients don’t have to talk about a crime they didn’t commit, but they do have to “say they’re sorry” for something. For being wild; for running the streets; for a string of petty offenses; for hanging out with a gang. Even when they didn’t commit any crime.

Nonetheless, most of my clients — including the innocent ones — still think of the parole process as a valuable one. Yes, it feels unfair that something you did as a child is called a “choice” when you felt like you had no choices. But that’s what you do as an adult: You take responsibility. You say you’re sorry. You own up to things you didn’t think were wrong at the time because with maturity, you realize your wild teenage self was pretty destructive. You can contextualize your behavior, but the best thing you can do is look at your child self through your adult eyes and say, “Yes, I hurt someone.” And responsible adults try to address the hurt they’ve caused as children.

One of the unheralded advantages of privilege is the stuff you can get away with. When you hold noisy parties, police cruisers are not patrolling your Maryland beach house to see if sexual assault is taking place upstairs. You can consume illegal drugs, as long as you do it on your own private property. When you get arrested, droves of people beg the judge not to destroy your “promising future.” Sometimes, you even get that benefit when you are 53 years old.

My clients never received that benefit. Nobody thought they had “promising futures.” Everybody believed their accusers. It seemed only right and natural that they deserved a lifetime in prison, just as it seemed right and natural that Brett Kavanaugh deserves a lifetime on the U.S. Supreme Court.

But the reason my clients have a future at all is thanks to the Supreme Court and, in particular, Associate Justice Anthony Kennedy — Justice Kavanaugh’s predecessor. It was Justice Kennedy who initiated the prohibition of extreme sentences for children because of recent science showing that the juvenile brain doesn’t process moral or causal information like an adult brain. For nearly 30 years, Justice Kennedy was a swing vote for thoughtfulness and our evolving standards of decency. His voice will be missed on the court; it is painful to speculate how much.

Justice Kavanaugh will never have to stand for parole. He has lost his chance to say, in public, how sorry he is for what he did to Christine Blasey Ford and Deborah Ramirez and others whose names we may never know. But he hasn’t lost his chance at redemption. Because children have their whole lives to take responsibility, think like adults and redeem themselves. They can learn compassion, humility and greatness of spirit at any age, even in their 50s. I have had clients who took that long, and their turnaround was both beautiful and heartbreaking.

As a Supreme Court justice, Brett Kavanaugh will have to rule on the fate of people like my clients — and not just my clients, but all of the dispossessed. Maybe, having gone through this hearing, he will understand how much he shares with these people, how much we all do. He not only sits in judgment on them, but in a very real way, he’s one of them. I hope that this experience has changed him. Maybe not right away. But then, he has a lifetime to seek redemption.

Mark Judge Didn’t Help Christine Blasey Ford in the 1980s, But He Can Help Her Now

By Professor Maureen Johnson

This article originally appeared in The Daily Journal.

Dr. Christine Blasey Ford’s testimony about Supreme Court nominee Brett Kavanaugh is as remarkable for what she asserts Kavanaugh did as for what she acknowledges Kavanaugh did not. More particularly, Ford doesn’t claim that she was raped by Kavanaugh. She testified that he stopped short, in part due to admonitions by Mark Judge. In fact, Ford testified that there were moments that she believed Mark might come to her aid. Ultimately, Mark threw himself onto the bed as Kavanaugh toyed pulling away Ford’s clothing. The ensuing tumble freed her from Kavanagh’s pin and allowed her to flee from the attack.

Ford’s recollection that Mark urged Kavanaugh to hold back not only demonstrates she made every effort to faithfully and truthfully recollect the incident, but it also provides extraordinary insight into the goings on in that fateful summer in 1982.

Boys will be boys. And in the 1980s, Mark obviously knew the limits. Entitled white boys could get away with the occasional sexual assault of a younger girl in a compromising setting. As Ford testified, the 15-year-old girl in her understandably didn’t want to tell her parents that she had been drinking — albeit one beer — at a home where chaperones were absent and certain of the boys were “stumbling drunk” and on the prowl. In judgmental 1980s speak, she was asking for it. And she wasn’t actually raped. Had she reported to her parents or law enforcement, the slap-on-the-wrist would have been — at best — a stern warning to Kavanaugh to lay off the beer and think twice about forcing himself on a 15-year-old.

That is why Mark urged Kavanaugh to hold back.

Some Thoughts on Microsoft v. Baker

By Professor Adam Zimmerman

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

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

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

By Professor Adam Zimmerman

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

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

In Kindred, Supreme Court to Revisit Mandatory Arbitration Clauses

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

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

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

Loyola Professors Enrich Supreme Court Conversation

Loyola Law School, Los Angeles professors continue to enrich the dialogue about U.S. Supreme Court jurisprudence after the court concluded its 2015 term in June with commentary on cases ranging from evidence collection and affirmative action to immigration and abortion access. Their analyses reached millions of people nationwide via such outlets as NPR, the Wall Street Journal, the Los Angeles Times, Politico, Bloomberg and more on an array of cases:

AFFIRMATIVE ACTION: FISHER v. UNIVERSITY OF TEXAS AT AUSTIN

Professor Kimberly West-Faulcon, the James P. Bradley Professor of Constitutional , weighed in on the U.S. Supreme Court’s 4-3 rejection of a challenge to the affirmative action-based admissions policy of the University of Texas at Austin. West-Faulcon, a nationally recognized expert on standardized testing and reverse discrimination claims, filed an amicus brief in the case. She provided analysis to several outlets:

“Surprisingly, Facts Rule the Day in Fisher II,” SCOTUSblog, June 24, 2016

Yesterday’s decision in Fisher v. University of Texas at Austin marks the first time Justice Anthony Kennedy has ruled in favor of a racial affirmative action policy in the twenty-eight years he has served on the Supreme Court. Unwilling to sound the death knell on racial affirmative action in higher education, Kennedy ventured down a path he had never taken before. He upheld the race-conscious component of the University of Texas at Austin’s admissions policy as satisfying the stringent strict-scrutiny standard of review. Instead of siding with rejected white applicant Abigail Fisher or ruling that affirmative action is per se unconstitutional as Fisher’s lawyers contended, Kennedy upheld the policy Fisher challenged as unconstitutional despite an oft-articulated constitutional aversion to race consciousness.

“Supreme Court Upholds Use of Affirmative Action at Universities,” Los Angeles TImes, June 23, 2016

“This is momentous,” said Kimberly West-Faulcon, a law professor at the Loyola Law School in Los Angeles. “Justice Kennedy has finally found a racial affirmative action policy that he was willing to endorse. This is a significant departure.”

“Scholars: Fisher Decision Gives Colleges ‘Breathing Room’ to Consider Race in Admissions,” Diverse Issues in Higher Education, June 23, 2016

Kimberly West-Faulcon, the James P. Bradley Chair in Constitutional Law at Loyola Law School in Los Angeles, said Kennedy’s decision represents a “significant departure” from his previous decisions in affirmative action cases.“This is momentous,” West-Faulcon said. “Justice Kennedy has finally found a racial affirmative action policy that he was willing to endorse.“This is a significant departure from every racial affirmative action case Justice Kennedy has decided to date,” West-Faulcon continued, referring to Kennedy’s votes against affirmative action policies in two higher education cases — Grutter and Gratz — as well as other cases.

POLITICAL CORRUPTION: McDonnell v. U.S.

Professor Jessica Levinson, who teaches Laws of the Political Process and Money, Politics & the Supreme Court, opined on the Supreme Court’s vacating of the political corruption conviction of former Virginia Gov. Bob McDonnell. Her commentary appeared in several stories:

“Politics As Usual Is Not Illegal,” Sacramento Bee (Op-Ed), June 28, 2016

As a result of the court’s opinion, plenty of really disgusting behavior, like that of McDonnell, is now legal. This is because the court significantly narrowed the types of behavior that are impermissible under the federal bribery statutes by reading the term “official acts” as requiring more than “merely arranging a meeting, attending an event, hosting a reception, or making a speech.” Instead, in order to be found guilty anofficial must “make a decision or take an action on (an) action or matter.”

“Supreme Court Throws Out Corruption Conviction of Ex-Virginia Gov. Bob McDonnell,” Wall Street Journal, June 27, 2016

The decision “kind of blesses a lot of activities that are problematic,” said Jessica Levinson, a professor at Loyola Law School in Los Angeles. “If I were a prosecutor, I would be more circumspect.”

“McDonnell Ruling a Big Blow to Corruption Law,” Politico, June 27, 2016

"It allows for a great deal of activity that really sidelines the average person who can't give a Rolex, a Ferrari or throw a wedding for someone," said Loyola Law School professor Jessica Levinson. "It essentially acknowledges that business as usual in political means money talks really loudly."

SUPREME COURT COMPOSITION: Effects of Scalia’s absence on court’s jurisprudence

Professor Allan Ides, the Christopher N. May Professor of Law and a former clerk to U.S. Supreme Court Associate Justice Byron White, deconstructed how the alterered Supreme Court composition affected case outcomes.

“How a Bench of 8 Justices Changes Supreme Court Decisions,” KPCC-FM’s Take Two, June 24, 2016
Professor Allan Ides discusses the effects of Associate Justice Antonin Scalia’s death on the Supreme Court at it wraps up its 2015 term.

“Supreme Court Limps to Finish,” The Hill, June 26, 2016

“For run of the mill cases this is having no effect, but the high-profile cases — Friedrichs, the contraceptive case, immigration — it has had an impact and you can see it where the court has been unable to resolve the case or tried to find some gimmick to send it back to the lower court,” Allan Ides, a professor of law at Loyola Law School in Los Angeles, said about the impact of a short-handed court."

IMMIGRATION: U.S. v. Texas

The co-directors of the Loyola Immigrant Justice Clinic – alumnae Marissa Montes and Emily Robinson – were go-to sources of commentary on the Supreme Court’s opinion in U.S. v. Texas, which struck down President Obama’s executive action on immigration, Deferred Action for Parents of Americans (DAPA).

“Deadlocked Supreme Court Fails To Revive Obama's Immigration Plan,” NPR, June 24, 2016

Marissa Montes, Co-Director of Loyola Law School, Los Angeles’ Immigrant Justice Clinic, joins Morning Edition to discuss the Supreme Court's tie vote, which blocked an attempt to help millions of unauthorized immigrant families. The case goes back to the court of a conservative federal judge in Texas.

“After Supreme Court Deadlock on Immigration, What's Next?” Dallas Morning News, June 24, 2016

"We would be naive to think he is going to side with the immigrant advocates in this country who want protections," Emily Robinson, co-director of the Loyola Immigrant Justice Clinic in Los Angeles, said in an interview Friday.

EVIDENCE COLLECTION: UTAH v. STRIEFF

The Supreme Court opinion in Utah v. Strieff allows into court evidence found during an unlawful stop if the suspect was later found to have an outstanding warrant. Loyola professors opined on the impact of this decision in several stories:

“Illegal Evidence Allowed in Court,” Bloomberg Law, June 20, 2016

Professor Laurie Levenson, the David W. Burcham Professor of Ethical Advocacy, analyzed for Bloomberg BNA the Supreme Court opinion that On why this type of evidence is not considered fruit of the poisonous tree: “The court was using the Attenuation Doctrine. It’s never been used before in this situation,” said Levenson. “ The only thing you had here intervening was the arreseting officer finding an outstanding warrant.”

“Thoughts on Utah v. Strieff: A Blow to Democratic Accountability of Police,” Summary Judgments, June 21, 2016
Professor Eric Miller, who teaches Criminal Procedure and related cased, assessed the impact of the Supreme Court’s decision in Utah v. Strieff, which opened the door for police evidence to be presented in court even when obtained without a search warrant and without initial probable cause. His commentary appeared on the Summary Judgments faculty blog, “The police can now target high-crime neighborhoods in which individuals have greater likelihood of warrants and engage in random stops with virtual impunity. In a city like Ferguson, Missouri, where the number of outstanding warrants is larger than the number of citizens, the right to avoid the police is a chimera.”

Miller's commentary was featured on SCOTUSblog.

O’Bannon v. NCAA: Antitrust case In which Athletes Seek Payment for Likenesses in Videogame

Professor Jennifer Rothman has closely followed the case of O’Bannon v. NCAA, a case in which NCAA athletes are seeking payment for the use of their likenesses in a videogame. The case involves right of publicity issues – an area on which Professor Jennifer Rothman, Joseph Scott Fellow, is a nationally renowned expert. Rothman runs Rothman’s Roadmap to the Right of Publicity. Her filing of an amicus brief to the Supreme Court received coverage:

DC Antitrust Group, Law Profs Back NCAA's O'Bannon Appeal,” Law 360, June 17, 2016

Another brief from 28 legal scholars, dated Monday, focused on what the professors described as a problem with the Ninth Circuit’s First Amendment analysis. The 28 law professors are represented by Eugene Volokh of the UCLA School of Law and Jennifer E. Rothman of Loyola Law School, Los Angeles.

LIABILITY UNDER FALSE CLAIMS ACT: Universal Health Services, Inc. v. United States ex rel. Escobar

Professor Paul T. Hayden's book, "The Law of Torts," is cited in the U.S. Supreme Court's opinion turning on when liability arises under the False Claims Act.
[Excerpt from the opinion]

We need not resolve whether all claims for payment implicitly represent that the billing party is legally entitled to payment. The claims in this case do more than merely demand payment. They fall squarely within the rule that half-truths—representations that state the truth only so far as it goes, while omitting critical qualifying information—can be actionable misrepresentations. A classic example of an actionable half-truth in contract law is the seller who reveals that there may be two new roads near a property he is selling, but fails to disclose that a third potential road might bisect the property. See Junius Constr. Co. v. Cohen, 257 N. Y. 393, 400, 178 N. E. 672, 674 (1931) (Cardozo, J.). “The enumeration of two streets, described as unopened but projected, was a tacit representation that the land to be conveyed was subject to no others, and certainly subject to no others materially affecting the value of the purchase.” Ibid. Likewise, an applicant for an adjunct position at a local college makes an actionable misrepresentation when his resume lists prior jobs and then retirement, but fails to disclose that his “retirement” was a prison stint for perpetrating a $12 million bank fraud. See 3 D. Dobbs, P. Hayden, & H. Bublick, Law of Torts §682, pp. 702–703, and n. 14 (2d ed. 2011) (citing Sarvis v. Vermont State Colleges, 172 Vt. 76, 78, 80–82, 772 A. 2d 494, 496, 497–499 (2001)).

Fisher v. UT: 'A significant departure from every racial affirmative action case Justice Kennedy has decided'

U.S. Supreme Court Associate Justice Anthony M. Kennedy cast the deciding vote and authored the opinion in the Fisher v. University of Texas at Austin case decided this morning.

“This is momentous. Justice Kennedy has finally found a racial affirmative action policy that he was willing to endorse,” said Professor Kimberly West-Faulcon, the James P. Bradley Chair in Constitutional Law at Loyola Law School, Los Angeles who filed an amicus brief with the Supreme Court in the Fisher v. University of Texas case (often called Fisher II because it is the second time plaintiff Abigail Fisher’s case has gone to the Supreme Court).

“This is a significant departure from every racial affirmative action case Justice Kennedy has decided to date. Kennedy has not only sided with the University of Texas, he has said ‘considerable deference’ is owed to the state university. This is a major ruling for universities because this is the first time a Kennedy opinion has used language about ‘equal treatment and dignity’ in the context of race. In the era of Black Lives Matter, Justice Kennedy is showing a willingness to protect racial rights in a manner he has previously reserved for LGBT rights.”

More: Read the amicus brief Professor West-Faulcon filed in support of the University of Texas in November 2015.

Thoughts on Utah v. Strieff: A Blow to Democratic Accountability of Police

By Professor Eric Miller

On Monday, the Court announced its decision in Utah v. Strieff, a Fourth Amendment case in which a man was unlawfully stopped leaving a house the police suspected of being a drug den. Upon searching Strieff, the arresting officer discovered methamphetamine and drug paraphernalia. Normally, the fruits of an unlawful search would be inadmissible in evidence. But what made this stop and search permissible was the officer’s discovery, upon asking for and checking upon on Strieff’s I.D., that Srtieff had an outstanding warrant, entitling the officer to arrest Strieff. The existence of the warrant, the Court held, was an unforeseen intervening event breaking the chain of illegality and permitting the police to arrest and search the defendant in good faith, free of the sanction of exclusion.

The decision, over an impassioned dissent by Justice Sotomayor, is a real blow to the democratic accountability of the police. To see why, consider a fairly old case in which the Court discussed an encounter somewhat like this: Sibron v. New York, 392 U.S. 40, 44-45, 61-63 (1968). In that case, an officer standing outside a cafe suspected Sibron of drug dealing inside a cafe, could not confirm that suspicion from his position outside the cafe, and performed and unconstitutional stop resulting in the discovery of drugs. While the major difference is, of course, the attenuation issue, it is worth considering that Sibron had a right to walk away from the police officer—a right emphasized by Justice White and Justice Marshall’s concurring opinions in Sibron’s more famous companion case, Terry v. Ohio, and reiterated in the “free to leave” seizure context (Schneckloth v. Butamonte, INS v. Delgado, Florida v. Drayton, etc.).

Zimmerman’s Amicus Brief Cited in Supreme Court Case over Class Action Certification

Professor Adam Zimmerman's amicus brief Complex Litigation Law Professors in Support of Respondents: Tyson Foods, Inc. v. Bouaphakeo is cited in the Supreme Court slip opinion in the case.

Tyson Foods involved whether and how plaintiffs could use statistics in class actions. In doing so, the court relied on the amicus brief Zimmerman wrote with Professor Sergio Campus on behalf of complex litigation scholars. The brief explains the many ways statistics are used as evidence in complex litigation -- and cautions against a broad opinion barring their use. In its opinion, the majority cited the brief:

It follows that the Court would reach too far were it to establish general rules governing the use of statistical evidence, or so-called representative evidence, in all class action cases. Evidence of this type is used in various substantive realms of the law. Brief for Complex Litigation Law Professors as Amici Curiae 5–9; Brief for Economists et al. as Amici Curiae 8–10. Whether and when statistical evidence can be used to establish classwide liability will depend on the purpose for which the evidence is being introduced and on “the elements of the underlying cause of action,” Erica P. John Fund, Inc. v. Halliburton Co., 563 U. S. 804, 809 (2011)."

Read the full brief below.

Scalia's Pro-Business Legacy

By Professor Elizabeth Pollman 

This is an excerpt from an op-ed Professor Pollman wrote for The Atlantic.

 
Justice Antonin Scalia took his seat on the bench in 1986, during one of the greatest bull markets and the heyday of corporate mergers and acquisitions. In the three decades he served on the high court, he helped raise barriers for employees and consumers and he helped strike down limits on corporate political spending in the U.S. democracy. He will be remembered for his intellect and personality, but he should also be remembered for increasing the power of business in society.

For example, in Walmart Stores, Inc. v. Dukes, the Supreme Court denied 1.5 million women the ability to bring a class action against Walmart for unequal pay or promotions on the basis of sex. A class action would have allowed all of the women to join together in one gender discrimination lawsuit, brought by one set of lawyers who would be paid out of any recovery from the suit. These plaintiffs might not otherwise be able to surmount the logistical and economic obstacles to bring 1.5 million individual suits against one of the world’s largest companies. Without the class action, they might not even be aware of their own claims or the patterns of discrimination.

Read the full story here.

Politics and the Supreme Court

By Professor Eric Miller

Prof. Miller is guest blogging on Prawfsblawg, where this post originally appeared.

I had thought of writing something about Justice Scalia. I was not a huge fan of his politics; and I thought the manner in which he expressed himself both in his opinions and public appearances often went out of his way to diminish his opponents. If you were a criminal defendant, a person of color, a woman, a member of a labor union, or gay (the list is non-exhaustive), then at some point Justice Scalia did something that was materially harmful to your interests, and he usually disparaged you (or your legal proxy) for arguing for those interests in the forum of constitutional law. The fact that some people found him personally charming seems immaterial to those of us hurt by his decisions and outraged or disappointed or just plain unamused by his rhetoric. Donald Trump is also a personally charming man whose rhetoric and actions have malicious consequences, and I'm no longer a Tom Brady supporter given his "nice guy" defense of Trump. It's nice that the institution of the Court got to operate in a civil manner because he was not personally offensive to the other justices (or to his clerks or his former law school colleagues, it seems), but the great Justice could be notoriously churlish to those of us who were not a member of those clubs.

Recess Appointments and the Scalia Vacancy

By Professor Aaron Caplan

No semester of Constitutional Law ever goes by without a teaching opportunity taken from the front pages. This post suggests how teachers can connect yesterday's unexpected death of Justice Antonin Scalia to the recess appointments clause of Art. II, sec. 2, cl. 3. That clause was at issue in NLRB v. Noel Canning (2014).

The timeline:

Friday, February 12, 2016: The Senate goes into intra-session recess scheduled to end on Monday February 22. This gives legislators a break for the week containing the President's Day holiday (Monday February 15).

Saturday, February 13: Justice Scalia dies.

Sunday, February 14: Today.

If the President can lawfully make a recess appointment, the new justice would serve until the "end of [the Senate's] next session." At the latest, the session of the Senate will end when the new Congress takes office; according to the 20th Amendment this will occur on January 3, 2017 or another date set by statute. (January 3, 2017 is a Sunday, so perhaps such a statute exists.) At the earliest, the session ends when both Houses of Congress agree to adjourn. According to Art. I, sec. 5, cl. 4, neither house can adjourn for more than three days without the consent of the other.

So is a recess appointment allowed this week? If Justice Scalia's concurrence in Noel Canning had prevailed, the answer would be an easy "no." In his view, a recess appointment is allowed only during a recess that falls between two sessions of Congress, and not during an intra-session recess like this one. Moreover, he believed a recess appointment was possible only if the vacancy begins during such a recess between sessions. Since the vacancy did not occur within the right kind of recess, no recess appointment would be allowed.

The majority would reach the same result through a different route. The majority view in Noel Canning does not require that the vacancy begin during a recess. Nor does it prohibit recess appointments during intra-session recesses. But to be constitutional, a recess appointment may only be made during a recess that is sufficiently long that the Senate's inability to timely confirm the nominee would pose a significant problem for effective governance. The majority believed that such recesses must, as a matter of constitutional requirement, be more than three days long, and that a recess of ten days or less was presumptively not long enough to trigger the recess appointment power, although that presumption could be potentially be overcome. It is hard to see how it could be overcome on these facts, since the Court is capable of operating with eight members for the coming week, after which time the Senate returns and can consider nominations under the usual process.

Thus, under either Noel Canning approach the President would not be able to appoint a new justice this week, since it falls within an intra-session recess of ten days and the vacancy occurs with nine days of recess remaining.

Going forward, either house of Congress can prevent any possible recess appointment by ensuring that no sufficiently long recess occurs. The majority in Noel Canning made clear that the Senate is "in session" when it says it is, even in a pro forma session where no business is conducted. Hence, the Senate could choose to bang the gavel once every two or three days and stave off recess appointments. Or, as happened in Noel Canning itself, the House could refuse to give the Senate permission to adjourn for longer than three days, forcing the Senate once again to bang the gavel.

Because Noel Canning has as a practical matter made recess appointments over the objection of either house of Congress impossible, the courts will not need to puzzle through a question not presented in that case: namely, what does it mean for a recess appointee to finish a term at the "end" of the "next" session? Assume the President actually makes a recess appointment in February 2016. Assume Congress takes a one-month intra-session recess on August 1. It then adjourns the entire session on December 1, 2016, allowing the new Congress to begin its session on January 3, 2017. Does the recess justice's term end on August 1, September 1, December 1, or January 3? Looks like we won't find out.

Citizens redistricting panels survive test

By Professor Jessica Levinson

This op-ed originally appeared in the Sacramento Bee. Levinson has also provided related commentary to the San Francisco Chronicle, Los Angeles Times, AZ Central and NBC 4-Los Angeles.

The U.S. Supreme Court just saved independent redistricting commissions, but a political earthquake could be coming next term.

Writing for a 5-4 majority, Justice Ruth Bader Ginsburg on Monday upheld the ability of citizens commissions to draw congressional district lines. At issue was the elections clause of the U.S. Constitution, which provides that the “Legislature” in each state shall prescribe the “times, places, and manner of holding elections for senators and representatives.”

The majority essentially found that the word “Legislature” includes not just elected lawmakers but also citizens acting in a legislative capacity, for instance when exercising their rights under initiatives or referendums to enact or repeal laws that affect congressional elections.

Had the court ruled the other way, it could have thrown the validity into question of other numerous other laws passed via direct democracy that affect congressional elections – open primaries, voter identification requirements, vote by mail provisions and early voting. In addition, California’s redistricting commission, likely legally indistinguishable from Arizona’s commission, now appears safe from this type of legal challenge. This ruling maintains the status quo throughout the country.

Read the complete op-ed.

Where Two Streams of Commerce Meet

By Professor Aaron Caplan

This post is part of the Strange Bedfellows series at Prawsblawg.

Those of us who also teach Civil Procedure are familiar with the “stream of commerce” concept within the constitutional law of personal jurisdiction. Under circumstances that the Supreme Court has notoriously failed to make clear, an entity that manufactures and sells a product in one state may be subject to personal jurisdiction to the courts of another if the product causes injury after traveling there through “the stream of commerce.” Less well remembered is that the “stream of commerce” once had a significant role to play in the law of the Commerce Clause.

These two streams of commerce are taught under different pedagogical silos, but may have something to say to each other.

During the Lochner era, SCOTUS cases involving the commerce power attempted to draw a line between transactions deemed to have “direct” impact on interstate commerce (which Congress could regulate) and those with only “indirect” interstate impact (which Congress could not regulate). Conversely, the federal government was allowed to impose regulations on interstate commerce that affected local commerce, so long as their impact was “indirect.” In appropriate cases, SCOTUS was willing to see “direct” impact when purely in-state activities took place within a stream of commerce that would predictably flow to other states.

The metaphor was introduced in Swift & Co. v. United States, 196 U.S. 375 (1905), which upheld an antitrust injunction against price-fixing in the meat industry. Even though the agreement to fix prices occurred within the boundaries of one state, that transaction had a significantly plain impact on the interstate flow of goods as to justify federal regulation. As Justice Holmes opinion said:

When cattle are sent for sale from a place in one state, with the expectation that they will end their transit, after purchase, in another, and when in effect they do so, with only the interruption necessary to find a purchaser at the stock yards, and when this is a typical, constantly recurring course, the current thus existing is a current of commerce among the states, and the purchase of the cattle is a part and incident of such commerce.

Judging the Role of Money in Judicial Elections

By Professor Jessica A. Levinson

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

A judicial candidate, a potential donor and a lawyer walk into a bar. If that bar is located in Florida or one of dozens of states that prohibit judicial candidates from directly soliciting campaign contributions, then that candidate cannot ask the potential donor for money. However, the candidate can form a campaign committee, choose who runs it, look at the donor list, and call those donors to thank them.

Tuesday, the U.S. Supreme Court is hearing arguments in Williams-Yulee v. Florida Bar to consider whether Florida’s prohibition on judicial candidates from making direct campaign solicitations is constitutional. This case is not about whether or how much money judicial candidates can raise, but rather concerns whether they can directly ask for that money.

Advocates of these types of prohibitions contend that they promote the integrity of judges and confidence in the courts because it is problematic and frankly downright unseemly for judicial candidates to directly ask donors for campaign cash.

Let’s be honest, who do we think will give those campaign contributions? Short answer: generally people who may appear before that candidate. Hence a prohibition on the direct solicitation of contributions arguably protects the impartiality of the judiciary and guards against donors being able to exert an undue influence over judges. Advocates therefore claim that the prohibition reduces corruption or the appearance of corruption that can occur when a judicial candidate asks a potential donor for money.

Opponents of the prohibition claim such prohibitions infringe on the First Amendment without properly serving to prevent undue influence or corruption. It is true that the prohibition still allows potentially problematic behavior because judicial candidates still know who gives to their campaigns and can thank those donors. This is an argument that the restriction is not properly tailored to serve its goals. Opponents do not contend the restriction should be broader and prohibit more behavior, but that other options, such as contribution limits or recusal rules, could serve the same governmental interests without the burden on First Amendment rights.

Supreme Court Health Law Update: Abortion, Contraception & Gay 'Conversion Therapy'

By Professor Brietta Clark

This Supreme Court term has been another important one for health care. The Court was presented with several cases that questioned the scope of the government's power to enact laws regulating health care access or quality, when such laws are viewed as burdening religion or speech. The two cases receiving the most attention -- Burwell v. Hobby Lobby and McCullen v. Coakley -- involved challenges to laws protecting women's access to reproductive health care. But there were two other noteworthy cases -- Pickup v. Brown and Welch v. Brown -- which involved challenges to a law that bans a discredited health care practice that is harmful to the mental and physical health of sexual minorities.

Health law scholars and advocates have been watching these cases closely because of the growing number of examples of free speech or religious freedom claims being used to defeat, avoid or invalidate important health protections. For those who envision a robust regulatory role for government in protecting and promoting health -- especially for groups that have historically been the targets of health care discrimination -- this term brought some good news and some bad news.

What politicians really think about Citizens United

By Professor Justin Levitt

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

The U.S. Senate just debated a constitutional amendment to overturn the Supreme Court’s Citizens United decision about money in politics.

That’s remarkable. We have amended the constitution only 27 times in our country’s history. If a substantial portion of Congress thinks that it is time for number 28, a lot of Americans must be pretty upset about something.

But what has them so upset? The day before the Citizens United decision, Bill Gates had the right to spend as much as he wished urging Americans to vote against Senator Windbag. Corporations were barred from delivering the “vote against Windbag” message. But they could spend as much as they wished urging Americans to understand that Windbag hates puppies, God, apple pie and Betty White.

The Drunkard's Search for Money in Politics

By Professor Justin Levitt

Late at night, a good Samaritan happens upon an intoxicated man crawling under a streetlight, studying the ground.  The drunkard says that he is looking for his keys, and our helpful bystander joins the search.  After a few minutes, the helper asks, “Are you sure this is where you dropped them?” “No,” says the drunk, “I probably dropped them by the bar down the road. But the light’s much better here.”

The phenomenon of the drunkard’s search, often attributed to Abraham Kaplan, afflicts much empirical inquiry.  Researchers seeking quantitative rigor too often head for the available data, fire up STATA, and only as an afterthought offer a few generic caveats about the limitations of the data for the topic at hand.  

Campaign finance analysis is not immune from this problem. In reading some recent studies over the weekend, I noticed a few recurring lapses.

Consider the evaluation of electoral spending by entities other than candidates and parties: “outside” spending, for short. Frequently, studies look to data from the Federal Election Commission (and equivalent state sources) to track the rise of independent expenditures since blockbuster Supreme Court cases like Citizens United, which allowed corporations (and, by logical extension, other non-affiliated groups) to engage in such activity without limits.  

Moffett-Gutierrez a Victory for Juvenile Advocates

By Clinical Professor Christopher Hawthorne

Attorneys will quibble about its nuances, and the work of implementing the decision will go on for years to come, but People v. Moffett/People v. Gutierrez is the California Supreme Court opinion juvenile advocates were hoping for.  First, the Court firmly declares that section 190.5 California Penal Code is covered by the 2012 U.S. Supreme Court case Miller v. Alabama, which banned mandatory life without the possibility for parole (LWOP) for juveniles.  This is a significant legal step, because section 190.5 is not strictly mandatory.  Instead, the statute declares that LWOP is the presumptive sentence for 16- and 17-year-olds who fall under the special circumstance murder laws.  The judge, at his or her discretion, may choose a sentence of 25 to life.  For years, courts have debated whether 190.5 offered the judge complete sentencing discretion, or only the discretion to occasionally override the presumption.  The latter view, embodied in People v. Guinn, was the more popular, and for good reason.  Not only did Guinn absolve trial court judges of the charge of arbitrariness; it also absolved the court of the necessity to actually consider mitigating evidence related to the defendant’s youth.

Moffett-Gutierrez changes all that.  After the Supreme Court’s ruling, trial court judges must think hard, and think on the record, about whether to sentence a teenager to LWOP.  And, just as important, the Court gives a roadmap to judges who are thinking about imposing these harsh sentences.  When choosing a sentence for a youthful offender, judges must now take into account the "distinctive attributes of youth," which is another way of saying that judges must consider whether the child they are sentencing is the “rare juvenile offender whose crime reflects irreparable corruption.”  The Court directs judges to consider “how children are different and how those differences counsel against a sentence of life without parole ―before imposing a particular penalty.”

One thing Moffett does not decide is whether Miller is retroactive:  in other words, whether it applies to juveniles who have already been convicted and are serving LWOP.  Juvenile advocates in California have been filing Miller petitions as if they assume retroactivity is a done deal, but other states are split on the issue.  Illinois and Texas say Miller is retroactive.  Pennsylvania says it's not.  Expect the California Supreme Court to enter that debate soon.