What's New with Venue?

By Professor Laurie Levenson

[This article was originally posted in the Los Angeles Daily Journal.]

The fundamental rules of venue are not that difficult. The government must prosecute an offense in a district where the crime was committed. See U.S. Const. art. III, § 2, cl. 3; U.S. Const., Amend. VI; Fed. R. Crim. P. 18. Generally, venue requirements for criminal cases are set by statute. See 18 U.S.C. §§ 3234 - 3244. If a crime takes place in multiple venues, the prosecutor usually has discretion as to where to charge the crime.

Despite these basic rules, interesting venue issues arise all the time. In the past year, there have been several cases addressing venue challenges in federal court. For example, in United States v. Gonzalez, 2012 U.S. App. LEXIS 13149 (9th Cir. 2012), the Ninth Circuit once again ruled on a challenge to venue in a conspiracy case. Circuit Judge Richard C. Tallman began his opinion by noting that "[d]etermining where an offense occurred can be quite tricky - particularly for continuing crimes, like conspiracy, where the conspirators' activities often have a ripple-like effect that may involve numerous districts." Id. at *1.

In Gonzalez, defendant was charged with conspiring to sell drugs. During the alleged conspiracy, Gonzalez never set foot in the district where the crime was charged. Rather, venue was based upon two telephone calls to Gonzalez's cell number that a confidential informant ("CI") made at the direction of the Drug Enforcement Administration ("DEA"). Nothing in the stipulated facts indicated whether Gonzalez knew or suspected that the CI was calling from another district at the time of the calls. However, the Ninth Circuit panel held that it did not matter. Because the calls were used to negotiate the sale and delivery of drugs, venue was proper in the district from which the calls were made.

Proposition 32: Another Money Pit?

By Associate Clinical Professor Jessica Levinson

[This post originally appeared on KCET's SoCal Focus Blog.]

One of my least favorite things about the ballot initiatives process is the huge sums that those in favor and against these measures typically shell out during the election cycle. This is particularly true for the initiatives which, like bad pennies, just keep coming back every few election cycles. Proposition 32, the so-called "Paycheck Protection" initiative is no exception.

The measure, if approved, would prohibit union and corporate contributions to state and local officials (which may be only a minor problem for these groups because they can just make independent expenditures), prohibit contributions from government contractors to politicians who have a say over their contracts, and prohibit corporations and unions from using automatic payroll deductions for political purposes without their members' permission. That last prohibition will likely cut the legs out from under unions when it comes to their ability to raise and spend political funds. Under our current campaign finance system such a decrease in fundraising and spending ability correlates to a marked drop in political power.

If Prop 32 sounds familiar, it should. We've seen it before in 2005 and in 1998. In less than 15 years we've seen the same idea on the ballot three times. And yet, here we are again -- fundraising, spending, and fighting.

Those against Prop 32 have raised more than $18 million. Opponents of the initiative are likely to outspend proponents. (See who's funding both sides of the issue here.)

It is somewhat difficult to predict how Prop 32 will fare. Spending against proposed measures is typically more effective than spending for those measures. That would indicate that this proposal is headed for its third defeat. However, voters are likely harboring greater anti-union sentiments than they were in the past few years.

One has to wonder whether those whose paychecks are funding the anti-Prop 32 war, the paychecks that measure would purportedly protect, would have preferred not to wage this battle at all.

European Politics and the Regulation of Bank/Insurance Firms

By Professor Jeffery Atik

On prior occasions, European implementation of the Basel bank regulatory system had proceeded rather mechanically. The Europeans actively participated in the Basel II process, reached agreement with the world's other major banking powers, and then faithfully enacted Basel norms into EU law. This has not been the case with the latest product of Basel: Basel III. While Europe once again exerted its influence during the negotiation, it has been decidedly less determined to give full effect to its Basel III undertakings in EU legislation. And the reason -- it should be no surprise -- is politics.

The linkage between Basel III and the European implementation (known as CRD IV) involves three levels of politics: global, European and national. The uncharacteristic European reluctance to carry out the Basel III mandates to the letter results from the varying distributions of influence at each level of the lawmaking game. A case in point: so-called 'bancassurance' -- financial conglomerates that are part bank, part insurance company. France's Societe Generale and Credit Agricole are two large examples of 'bancassurance'.

Euro Collapse or European Banking Union

By Professor Jeffery Atik

The implementation of the Basel III banking reforms in Europe has spanned two financial crises. And the European legislation is haunted by two specters: a possible collapse of the Euro; and -- in the alternative -- a blind leap into a European banking union.

The first crisis of course was the 2007 global financial meltdown that led to significant bank failures and costly bank bailouts. The Basel III reforms were designed to prevent a re-occurrence of this kind of banking crisis through various new mandates and disciplines. The Basel III response was negotiated within the Group of 20, where Europe had a substantial presence and an important influence. Based on the past record of enthusiastic adoption of Basel norms by Europe, one might have expected the passage of Europe's CRD IV legislative package to be largely a technical exercise. It has not proven to be one.

This is due in part to the timing. The complex European legislative process -- extending well over a year -- coincided with the outbreak of the second severe crisis, one more specifically centered on Europe. This second -- and ongoing -- crisis is the sovereign debt crisis (or the Euro crisis). Initially involving Greece, the sovereign debt crisis has spread to Italy and Spain, sharply raising borrowing costs of these seriously indebted countries and miring their respective populations into social misery.

The European sovereign debt crisis is in large part also a banking crisis, though different in many aspects from the 2007 global financial crisis. The Euro crisis reveals the inherent weakness of the current arrangement: Eurozone countries share a common currency and somewhat coordinate monetary policies, but borrow Euro-denominated funds in their respective sovereign capacities. Moreover, they bear primary oversight responsibilities for the banks headquartered within their respective territories.

The residual sovereign control Eurozone states maintain over their banks means that a bank in crisis will look toward its national authority (and its national authority alone) for deposit insurance coverage, bailouts and eventual resolution procedures. Which works well enough for those healthy Eurozone countries with large economies and small banks.

ACTA's slow European demise

By Professor Jeffery Atik

The Anti-Counterfeiting Trade Agreement (ACTA) reached the end of the road on July 4, when the European Parliament rejected the treaty, by a stunning vote of 39 for and 478 against (with 165 courageous MEPs abstaining). The profound reversal is all the more remarkable given that the governments of all EU member states had earlier supported ACTA (reflected in a unanimous approval of the EU Council in December 2011). Throughout, ACTA continued to enjoy the support of the EU's administrative arm, the European Commission.

ACTA was promoted as an articulation of higher IP enforcement standards by the 'like-minded' First World states (chiefly the United States, Japan and Europe) that control the greater stock of the world's valuable intellectual property. There was a wide range of objections to ACTA, but the greater concerns expressed in Europe was its potential disregard for due process and its potential inconsistency with Europe's strong privacy rights. While ACTA may ultimately come to life (upon ratification of six signatory parties), it has little practical import in the absence of European participation.

The first cracks in European support for ACTA appeared in the course of Member State approvals. As a so-called mixed agreement - a treaty involving both Brussels-level authority and residual Member State sovereignty - ACTA required approval of all 27 EU Member States, as well as ratifications by the relevant EU institutions. Twenty-two EU Member States signed ACTA on January 26 of this year, but five Member States (including Germany and the Netherlands) hesitated. As the months progressed and opposition to ACTA mounted, ACTA's prospects in the holdout Member States declined further. And several EU Member States - led by Poland - sought to negate their prior approvals within their respective national ratification processes. As Member States began to defect from the accord, ACTA's days were numbered.

Ballot Initiative Season Has Begun, and it's Not Exactly a Good Thing

By Associate Clinical Professor Jessica Levinson

[This post originally appeared on KCET's SoCal Focus Blog.]

Ready, set, go. Ballot initiative season is officially upon us. The 11 (yes, 11) ballot initiatives that we will be voting on in November now have numbers, which means the fundraising race will kick into high gear. Expect many advertisements via your television, radio, mailbox and likely your computer screen as well.

We will be voting on tax increases (courtesy of Governor Jerry Brown, attorney Molly Munger and billionaire Tom Steyer), changes to the budget process, how labor unions and corporations can spend money in elections, auto insurance rates, the death penalty, human trafficking, the three-strikes law and the labeling of genetically modified food.

We are simply weighing in on too many decisions via a flawed process.

I've said it before, and I'll say it again: The ballot initiative process is riddled with problems. As it currently stands it does not provide citizens with a good process to make vitally important decisions about the laws that govern us.

The ballot initiative process asks voters to make crucially important decisions in isolation. Our government is too big and too complex to make decisions on a piecemeal basis.

In addition, it is entirely rational for each voter to vote in favor of more services and against revenue increases. The ballot initiative process does not require that voters weigh the consequence of their decisions. Further, voters are accountable only to themselves, not a group of constituents, so quite reasonably may make decisions for their benefit.

The idea behind the ballot initiative process -- to empower citizens to enact legislation when the legislature couldn't or wouldn't act because of the power of special interests -- was a good one. However, moneyed interests, not grassroots organizations, now control the initiative process. This is bad for the voters and bad for the state.

Disability Treaty Makes Progress

By Associate Dean Michael Waterstone

Last week, the United States Senate held an important hearing on the UN Convention on the Rights of People with Disabilities (UNCRPD). The UNCRPD was adopted in December 2006, making it the fastest negotiated human rights treaty in UN history. There are currently 153 signatories to the Convention (with 117 countries having ratified) and 90 signatories to the Optional Protocol (with 66 countries having ratified). President Obama signed the treaty shortly after entering office, and this hearing is the first significant step toward ratification. An account of the hearing by Professor Gerard Quinn (one of the intellectual founders of international disability law) can be found here.

Loyola has been an important center of developing knowledge about the Convention. In March of 2010, we had the privilege of hosting a symposium entitled "The Significance of the United Nations Convention on the

Rights of Persons with Disabilities." We were able to bring together a unique collection of participants from all over the world. We were fortunate to have influential academics, key policymakers, individuals who were active in the negotiations and officials who will be responsible for implementing and monitoring the UNCRPD in countries throughout the world. Consistent with the mantra "Nothing about us without us," many of our participants were people with disabilities or individuals with family members who have disabilities. Our speakers performed the crucial function of telling and dissecting the story of the Convention's origins, navigating through the UN processes, eventual adoption and entry into force, and the beginning work of implementation and enforcement. They also offered candid assessments of the Convention's ability to create change, and its successes and shortcomings as an international human rights instrument. You can find the papers from this symposium, which have been widely cited and influential in policy development, here.