Treating America's Drug Use Outside the Prison System

By James Gilliam, Guest Alumni Blogger

Eric Holder's recent announcement at the American Bar Association's Annual Meeting that he is taking steps as Attorney General to tackle the bloated federal mass incarceration crisis comes at a crucial, and welcome, time. Indeed, preventing the use of the most severe federal drug penalties for people convicted of low-level drug offenses represents an important first step toward a fairer criminal justice system and will begin to curb the overcrowding issue that most every prison in the United States faces.

Now is the time for California -- a state the United States Supreme Court already ordered to reduce its prison population -- to follow Holder's lead. As in the rest of the nation, far too many people are locked up in California for far too long -- people we don't need to keep behind bars to ensure public safety. Rather than base our criminal justice system on knee-jerk, one-size-fits-all reactions like incarcerating people for offenses that could be better dealt with through substance abuse treatment, it is time for California to shift toward solutions that will create safety for California families and communities, while enabling those who have paid their debts to become productive citizens. There's no question that attempting to re-integrate into society is much easier to do without the lifelong barriers that follow a felony conviction, including obstacles to housing, employment, and even public support.

Of contributions and expenditures and the land in between

By Associate Professor Justin Levitt

This commentary was cross-posted to the Election Law Blog.

In the world of campaign finance, the constitutional distinction between contributions and expenditures has been one of the primary, comparatively stable, fault lines.  This has been true since at least since Buckley v. Valeo, the progenitor (and for some, original sin) of the modern campaign finance regime.  The Court has relatively consistently reviewed limits on most expenditures with greater scrutiny than limits on contributions. 

In the Supreme Court’s latest foray into campaign finance, the McCutcheon v. FEC case to be argued this fall, plaintiffs are arguing that the regulations in question blur the categories.  Those regulations impose aggregate limits on donations to federal candidates, parties, and PACs that give to candidates.  I may give no more than $5,200 to any individual federal candidate over a two-year campaign cycle.  In that same period, I may give no more than $48,600 to federal candidates, total.  McCutcheon is about the latter, total, limits.

The McCutcheon plaintiffs have argued that these aggregate limits are something of a hybrid, and ultimately more like expenditures than contributions.  Bob Bauer, here, also finds the distinction blurry, noting that the rules restrict “the total amount that a contributor can spend on contributions.”

Introducing Guest Alumni Blogger James Gilliam

It is with great pleasure that I introduce our third guest alumni blogger: James Gilliam '03. James has long been a champion of social-justice issues -- a topic area on which he will blog in this space. James teaches the Public Interest Law Practice Seminar, Sexual Orientation and the Law and other subjects as an adjunct professor at the Law School, where he was a public interest scholar. James has served as the deputy executive director of the ACLU of Southern California since 2010. Previously, he was a litigation associate and associate pro bono coordinator at Paul Hastings, where he helped the firm notch its first appearance on The American Lawyer's "A-List Pro Bono Score Card."

-Associate Dean Michael Waterstone

In time of change, an affirmation of the power of the law

By James Gilliam, Guest Alumni Blogger

Twenty years ago, I attended my first gay Pride celebration in my hometown of Nashville, Tenn. It marked the beginning of my advocacy on behalf of the LGBTQ community -- and has informed all that I have done since. This is the work that drives me.

Over the past two decades, the tools I've used to enact change have evolved as I have continued my education. I began my career in the LGBTQ movement as the director of the organization that produced the Pride event in Nashville. But I soon learned the power of the law. City officials tried, time and again, to block the celebration. They increased the number of costly, off-duty police officers we had to hire to provide security. They demanded, the morning of the event one year, that we display documents proving that our tents were flame retardant. Every year but one, they refused to close the main street for our parade. When necessary, we threatened a lawsuit; and each time, our celebration proceeded.

I wanted to wield the power of the law for good. So I came here, to Loyola Law School, on a public interest scholarship. When I graduated a decade ago, many states still considered gays and lesbians criminals. Just months later, while I was studying for the bar exam, I witnessed the law serving as an agent of justice: In Lawrence v. Texas, the U.S. Supreme Court held that Texas's law -- which criminalized sexual acts between same-sex partners, but not partners of the opposite sex -- was unconstitutional.

Prof. Levenson reviews Rebels at the Bar: The Fascinating, Forgotten Stories of America's First Women Lawyers

By Professor Laurie Levenson

Professor Laurie Levenson recently reviewed Rebels at the Bar: The Fascinating, Forgotten Stories of America's First Women Lawyers in the Los Angeles Review of Books. Excerpt:

The book jacket may say it all. Three of the most prominent women scholars of our time, Stanford's Deborah Rhode (Ernest W. McFarland Professor of Law) and Barbara Babcock (Judge John Crown Professor of Law), and Yale's Linda Greenhouse (Knight Distinguished Journalist in Residence and Joseph M. Goldstein Senior Fellow at Yale Law School), describe Jill Norgren's, Rebels at the Bar: The Fascinating, Forgotten Stories of America's First Women Lawyers, as providing "detail and lively prose," told "with awe and gratitude," and a tribute to "bold, brave women." Yet, that is not the real story. The real story is told by the titles of each of these modern women legal luminaries. Each holds a prestigious title at a prestigious law school in the name of -- prestigious men.
Rebels at the Bar describes the struggles of a handful of women who sought to break the gender barrier for women becoming lawyers in the 19th century. Who were these women and what prompted them to fight the good fight? How did they manage to "lean in" when there were no harnesses to hold them? Norgren tells the story of how they clawed their way into the legal profession -- they did not have it easy. While today's women lawyers still struggle for equality, there is no doubt that our path was made possible by the sacrifices of these pioneers. They started the journey for us. The least we can do is pay attention to the lessons they learned.

Read the full review.

The Entrepreneurial State: Debunking Public vs. Private Myths by Mariana Mazzucato

By Professor Jeffery Atik

This review is cross-posted from Jeff Atik's blog, Attraverso.

From start to finish of this superb book, I want Mariana Mazzucato to be right. In The Entrepreneurial State, Mazzucato suggests that the state has had a much more powerful role in stimulating innovation that the dominant narrative admits. The state pushes the key breakthroughs; private firms enter the game quite late (though they often capture an inordinate amount of the social gains from innovation).

Mazzucato's book is timely (indeed, it has had a considerable impact in Brussels), as countries shift away from austerity policies and look towards Keynesian-style spending to get their economies moving. Keynes famously suggested burying a treasure in an abandoned mine as a make-work project (his point, of course, was not to endorse pointless exercise; rather, he meant to show that pure make-work could act as a stimulus). Mazzucato argues countries can improve on Keynes by spending on state entrepreneurship. In a best-case outcome, state-sponsored innovation will shock the economy back to expansion and will lead to frontier-shifting welfare gains.

And maybe it would - if the political class could be convinced by Mazzucato's account of the hidden state-centric nature of innovation. Her recent historic examples involve pharmaceuticals and information technologies. The private drug development narrative is deliberately cultivated by Big Pharma: bold firms undertake massive R&D in their laboratories, to be rewarded (in the event of success) by patent monopolies. Big Pharma asks to be 'left alone' by the State: no tort liability and quick market approvals are the best policies. In fact, Mazzucato observes, it is the state that undertakes the greatest risks in developing new approaches and active agents, through public funding (such as NIH grants in the United States) of medical research. Left to their own devices, Big Pharma would undertake little research; indeed, the current trend among large pharmaceutical firms is to reduce R&D expenditure and to look to smaller, research-oriented firms to do later-stage development work, then in-licensing or acquiring fairly proven projects. But without the substrate of state-funded science, even this system would grind to a half.

The Great Degeneration: How Institutions Decay and Economies Die by Niall Ferguson

By Professor Jeffery Atik

This review was originally posted on Jeff Atik's Blog, Attraverso.

The civilized world is falling apart in Niall Ferguson's view. The world of Ferguson's concern comprises the United Kingdom and the United States, which (in sequence) have enjoyed long periods at the top. In The Great Degeneration, Ferguson signals the decay afflicting our central and defining institutions. Ferguson mixes nostalgia with alarm: nothing is as it was. Unlike Acemoglu and Robinson, who give an institutional account of why poor countries remain poor in Why Nations Fail (reviewed here), Ferguson tells us why great nations decay, why ours is degenerating.

Although Ferguson distances himself from those who give a purely cultural account for the rise of British and American prominence, he celebrates the particular constellation of democracy, capitalism, rule-of-law and voluntarism found nowhere else. A sequence of accidents may have created our cheerful and wealthy societies. The reduction in the Great Divergence seems to concern Ferguson most: the ratio of our well-being to that enjoyed by the rest of the world (as if a more equitable distribution were a bad thing).

If great (though quirky) institutions served us in the past, their present 'degeneration' is a cause for concern. Ferguson divides The Great Degeneration into four short essays, each devoted to an institutional category displaying distinctly Anglo-American characteristics. These are democracy, capitalism, rule-of-law and a civil society marked by voluntarism. The book is a write-up of a series of lectures Ferguson presented on the BBC, summarizing and synthesizing his earlier work. Ferguson's argues that institutions and not culture were the central determinants of the Great Divergence. Yet he also sees the 'intergenerational partnership,' the awareness and the willingness to act publicly on behalf of future generations, as foundational. The better democracy we practiced in the past was wiser; perhaps we didn't think about our neighbor, but we certainly thought about our grandchildren. (Fear not - the last thing Ferguson will address is climate change - he supposedly believes it a hoax.)