Precedents and Presidents: Broadening the Horizons of Disability Law

This is a blog post from one of our recent alumni, Andrew Haas, J.D., Class of 2010, who is doing international human rights work this summer with the Centre for Disability Law and Policy (CDLP) in Galway, Ireland.

This summer I had the honor of working with the Centre for Disability Law and Policy (CDLP) in Galway, Ireland. My assignment was to conduct research on people with intellectual disabilities in prison systems around the world as it relates to a new movement in international disability law after the drafting of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) in 2006. This included a week long "Summer School" that provided an intensive training on the CRPD and its application. The 6-day program, hosted by CDLP and the Harvard Disability Law Project, brought in experts from every corner of the globe, all eager to discover new ways to implement this new legal instrument. Many of the attendees and speakers were part of the original drafters of the CRPD and offered invaluable insights into the treaty and its intended purpose. The President of Ireland, a human rights advocate of his own accord, even gave an inspiring inaugural address to kick-off the conference, and was particularly warm and engaging with the students (I've got pictures of us chatting it up). Interestingly, neither Ireland nor the United States[1] has ratified the treaty, though both nations have signed and positioned legal scholars and lawyers at the forefront of its implementation.

The CRPD proposes the large-scale notion of a "paradigm shift" in the legal perspective on disability law. Under the CRPD, disability law is a human rights issue. It is grounded in principles of upholding equality and human dignity. This new wave of legal theory, or paradigm shift, does not in itself create new rights to be specially applied only to this group. Rather, the CRPD contends to be an assertion of rights that are summarily denied to people with disabilities, but held by all. For example, Article 12 of the CRPD mandates that "persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life." This right to legal capacity, the lifeblood of the Convention, is routinely denied to people with disabilities for myriad reasons when coming into contact with the legal system. But without legal capacity, there is no hope for equality. This assertion discards even the progressive ideals that we hold in the U.S. of meeting the needs of people with disabilities. Rather, it aims to put all people on equal footing with proper support in determining each person's will and intent instead of merely being objects of social programming or paternalistic courts, so people can be the experts in their own lives.

It was inspiring to see so much optimism and passion in a room full of international lawyers and the CRPD offers a truly remarkable opportunity to create change. Broadening the horizons of disability law as a human rights issue can be used not only as a tool to further the rights for people with disabilities, but a powerful tool to further human rights for all. I really enjoyed spending the summer in Ireland and working with the CDLP, a major spearhead of the paradigm shift. It was a grand experience.

[1]The United States Senate Foreign Relations Committee held a hearing on July 12, 2012 at which Committee Chairman John Kerry, along with John McCain, Bob Dole, and disability rights advocacy groups urged ratification of the treaty.

Bank Capital Reform in the Shadow of the Euro Crisis

By Professor Jeffery Atik

European banking reform continues to develop alongside of - and perhaps in spite of - the ongoing Euro crisis. A significant EU reform package - involving a new directive (Capital Requirements Directive IV, or CRD IV) and a new regulation (Capital Requirements Regulation, or CRR) - is making its way through the EU legislative institutions. These reforms are driven in large part by Europe's undertakings within the global Basel system: Europe has committed to implement much of the most recent Basel package of reforms (known as Basel III) by January 2013.

One of the chief requirements of the Basel III reforms is to increase both the quantity and quality of the 'regulatory capital' banks must hold. This capital is intended to operate as a financial shock absorber in the event of large losses - assuring a bank's continued solvency and sparing shareholders (and - in a worse case - taxpayers) pain. Basel III is a system of minimum standards - countries are expected to comply with Basel III's requirements but are free to impose higher standards. And several countries (Switzerland, for example) have determined to require their banks to maintain even more regulatory capital than what Basel III demands.

ExxonMobil to 'decide' China-Vietnam dispute in South China Sea

By Professor Jeffery Atik

Later this month, the ASEAN foreign ministers will meet in Phnom Penh - and the continuing disputes over the South China Sea will occupy much of the attention of the attendees.

The intricate and intriguing conflicts between China and its various Southeast Asian neighbors - particularly Vietnam and the Philippines - over the development of oil and gas reserves in the South China Sea may be resolved, in part, by corporate decisions of multinational oil firms such as ExxonMobil.

At first blush, the South China Sea is yet another vexing territorial dispute, with competing states advancing arguments more designed to indulge the nationalistic impulses of domestic constituencies than to follow contemporary international law. China's claim to the South China Sea in its broadest form - the so-called 'nine-dash map' - is the most extravagant, and the flimsiest. To be fair, China merely references the nine-dash map; it avoids expressly claiming sovereignty over what is by far the greater part of the sea.

Two major developments have significantly aggravated these disputes. The first is the prospect of finding substantial reserves of oil and gas under the South China Sea. Control of these resources is of immense financial and strategic importance to the rival claimants. The second is the adoption of modern legal principles - fixed in the UN Convention on the Law of the Sea or UNCLOS - that motivate the states to make gestures that otherwise would seem incoherent. While the possibility of a hot conflict persists, the eventual resolution of the South China Sea disputes may result from commercial considerations - including decisions taken in corporate boardrooms.

Professor Dan Schechter's Bill Becomes Law

Four years ago, Professor Dan Schechter and several other members of the Insolvency Law Committee of the Business Section of the California State Bar proposed and drafted a bill to extend antideficiency protection to homeowners who had refinanced their purchase money loans. After several versions and amendments, that bill was signed into law by Governor Jerry Brown on July 9, 2012. Schechter was one of the primary drafters of the Legislative Comments that accompany the newly-amended statute.

The Supremes Say It's Okay to Steal Your Valor

By Associate Clinical Professor Jessica Levinson

[This op-ed originally appeared on The Huffington Post.]

Hello, my name is Jessica. I will be stealing your valor. Well, I may not actually pilfer your valor, but thanks to the Supreme Court, I can if I so chose.

Much, if not all of the recent news coverage of the Supreme Court has understandably focused on the court's decision to uphold President Obama's landmark healthcare law. Reporters and commentators have largely failed to cover another decision that came out on the last day of the 2011-12 term.

In a 6-3 decision, the court told us to say goodbye to the 2005 Stolen Valor Act. That Act made it a crime to falsely claim military awards or decorations. The court ruled that the Act is unconstitutional because it contravenes the First Amendment. Thanks to the Supreme Court disreputable men everywhere will have to search for a new pickup line when barhopping by military bases.

This case began when a true lowlife, Xavier Alvarez, told people at a meeting of the Three Valleys Municipal Water District governing board in Los Angeles County that he was a Marine who received the Medal of Honor. Seemingly the only honor Alvarez received was being a member of the water district governing board.

Alvarez was prosecuted under the Stolen Valor Act and eventually pleaded guilty to violating it.

With Text-to-Donate Now in Play, Younger Voters May Have a Bigger Voice

By Associate Clinical Professor Jessica Levinson

Last year, California became the first state to permit campaign contributions via text message, a move that was followed up by the Federal Election Commission in June, setting the stage for text-to-donate in national elections.

But the question is why. The purpose behind new policy is to allow more people to participate in the electoral and political processes. The idea is text message contributions will make it quicker and easier for small dollar contributors to give. In addition, the belief is that it will be the younger members of the electorate, who do not typically give campaign donations, who will disproportionately take advantage of these new rules.

These are real and important goals. Younger members of the electorate do not vote nearly as much as older members. Perhaps if they buy in, both literally and figuratively, to the electoral process they will feel compelled to make their voices heard at the ballot box in greater numbers.

In addition, bringing in new contributors by allowing contributions by text message could change the tone and substance of the debate. If candidates feel that young people and/or small contributors are engaged in the process, they could hear more from, and hence be more responsive to, the concerns of more segments of the electorate.

The new rules largely enjoy bipartisan support. A cynic would say this is in part because it looks bad for any politician to come out against a proposal that could increase civic engagement. In addition, which politician wouldn't like the chance to collect more campaign contributions?

Happy texting, campaign contributors.

Professor Dan Selmi Argues Successful Case in CA Supreme Court

Professor Dan Selmi, an advocate for environmental reform, was counsel in a case against paint manufacturers in a unanimous decision from the California Supreme Court. Selmi represented the South Coast Air Quality Management District which regulates pollution from sources other than vehicles. The new environmental standards require the development of new technology to prevent pollution.
[Read the full article from the Los Angeles Times here.]