Adjunct Prof. James Gilliam published op-ed: Attorneys regrettably revive the 'gay panic' defense

Adjunct Professor James Gilliam recently published an op-ed in the Ventury County Star. Below is an excerpt with a link to the entire piece.

Attorneys regrettably revive the 'gay panic' defense. It's a classic tactic when defending an indefensible crime: blame the victim, especially if that victim is gay.

The odious strategy is unfortunately common enough to have a name, the "gay panic defense," and it holds that a heterosexual man cannot possibly be expected to maintain his sanity when confronted with a same-sex advance.

While it has popped up as a justification for Matthew Shepard's 1998 murder and even, implausibly, as a reason behind the brutalization of gay patrons during a 2009 police raid of a Fort Worth, Texas, bar, it isn't generally successful.

Which is what makes especially depressing its recent appearance in the Chatsworth courtroom where 17-year-old Brandon McInerney is on trial for the 2008 shooting of his classmate, 15-year-old Lawrence King.

His defense attorneys say McInerney was so horrified by a request by King to be his valentine that he was driven, a day later, to bring a pistol to class at Oxnard's E.O. Green Junior High School and shoot King in the back of the head. While they admit he shot King, they told reporters he did it "in the heat of passion caused by the intense emotional state between these two boys at school."

Read the entire op-ed

Prof. Lee Petherbridge releases study of impact of legal scholarship on Supreme Court

A new study by Loyola Law School Professor Lee Petherbridge and Chicago-Kent College of Law Associate Professor David L. Schwartz details the impact of legal scholarship on the Supreme Court. The study, "An Empirical Assessment of the Supreme Court's Use of Legal Scholarship," is available for download on SSRN.

Abstract:

Derogating legal scholarship has become something of a sport for leading figures in the federal judiciary. Perhaps the chief antagonist in recent years has been none other than the Chief Justice of the U.S. Supreme Court, John G. Roberts Jr. His most recent salvo includes the claim that because law review articles are not of interest to the bench, he has trouble remembering the last law review article he read. This claim, and others by the Chief Justice, may represent the end of an uneasy détente concerning the topic of the utility of legal scholarship to the bench and bar. At a minimum, Justice Roberts's recent comments represent a vigorous invitation to a discussion, which this article accepts. To that discussion we contribute an empirical study that is based on an original and unprecedented body of data derived from every Supreme Court decision over the last sixty-one years. This article presents several surprising results and makes two major novel contributions. The first is evidence describing the amount and patterns of the Supreme Court's use of legal scholarship over the last sixty-one years. The second, and perhaps most striking contribution of this article, is empirical evidence on the nature and quality of the Court's use of scholarship. This article provides the first report, as far as we can determine, of evidence that the Supreme Court not only often uses legal scholarship, it also disproportionately uses scholarship when cases are either more important or more difficult to decide. It thus presents results strongly counterintuitive to claims that scholarship is useless or irrelevant to judges and practitioners. The article also discusses areas for future work.

A ballot box battle brewing over the 'Amazon tax'

This op-ed was originally published by the Los Angeles Daily Journal.

By Associate Clinical Professor Jessica A. Levinson

A small but well-publicized part of California's newly enacted budget, the so-called "Amazon tax," looks to be the catalyst behind California's next big ballot initiative battle. The law requires Internet retailers with a "physical presence" in the state to collect a sales tax from customers in the state and expands the definition of physical presence to include online retailers that have related companies or affiliates in the state. After the passage of the law, Amazon promptly cut ties with approximately 10,000 affiliates in the state.

Who would like this tax? Well, in addition to those hoping to raise revenues for the state (the state estimates that it could receive in the low hundreds of millions in tax revenues each year if residents paid taxes on online sales), anyone losing business to online retailers. Exhibit A: Wal-Mart Inc.

So what is an online retail giant to do? Since this is California, a resource-depleting two-front attack is the likely course.

First, online retailers have filed a referendum petition to repeal the tax. Yes, that's right, there is another ballot measure coming as soon as June 2012, perhaps. This petition has already faced legal problems.

The Amazon tax was passed as a trailer bill to the budget and contains an appropriation of $1,000 to the Board of Equalization for administration. The law includes an appropriation because the recently enacted ballot measure - Proposition 25 - lowered the required threshold vote on budgetary matters, including appropriations, from two-thirds to a simple majority of both Legislature houses. Proposition 25 also provided that budget-related bills take effect immediately upon enactment, and therefore added a new category to the list of statutes that go into immediate effect.

Prof. NeJaime publishes op-ed, 'Same-sex marriage: Married but unequal'

Associate Professor Doug NeJaime recently published an op-ed, "Same-sex marriage: Married but unequal," in the Los Angeles Times.

On Sunday, New York will begin issuing marriage licenses to gay and lesbian couples, further complicating the tangled legal mess of same-sex marriage in America.

Why does this complicate things? Consider what happens when legally married couples from New York move to, say, California. They'll see their marriages evaporate, based only on their sexual orientation.

Read the complete op-ed.

Lance Armstrong goes on the attack

By Professor Laurie Levenson and Laura Lefeuvre ('13)

Lance Armstrong has gone on the offensive, but it is unclear whether his effort will have much of an impact in court. Armstrong's lawyer, the renowned Jon Keker, Esq., has filed a motion to hold the government in contempt for allegedly leaking grand jury materials, in violation of Federal Rules of Criminal Procedure 6(e). Armstrong cannot identify the specific source of the leak, but he offers evidence as to why the leak must be coming from the government's team. He then asks the court to have a hearing to explore whether there are grand jury leaks.

Violations of grand jury secrecy plague the criminal justice system and should not be condoned. However, there has never been a case where the court has granted a motion such as the one filed by Keker. At most, the court has entertained motions to dismiss grand jury indictments when there have been allegations of prosecutorial misconduct in the grand jury. Bank of Nova Scotia v. United States, 487 U.S. 250 (1988). Courts consider dismissing the indictment an "extreme sanction" and will only be used in "exceptional cases" where the defendant is prejudiced because of the misconduct. United States v. Myers, 510 F. Supp. 323, 328 (E.D.N.Y. 1980). Courts are also hesitant to impose sanctions because they do not want to unnecessarily interfere with the grand jury proceedings. Barry v. United States, 865 F.2d 1317, 1319 (D.C. Cir. 1989).

Armstrong and his team have found a credible vehicle to get their side of the story to the press. Yet, this motion is likely to have much more of an impact out of court than in court. If Armstrong does succeed in getting a government official held in contempt, he will not only be the leader of the pack in professional bicycling, but also a groundbreaker in the world of criminal law.

Re-Shaping California's Political Landscape One Line at a Time

This op-ed was originally published by the Daily Journal.

By Associate Clinical Professor Jessica A. Levinson

The political blood sport, commonly known as redistricting, hit a fever pitch on June 10, when California's newly-minted independent redistricting commission presented draft maps to the public. Simply put, every 10 years we count how many people live here, and then we draw legislative lines according to that demographic information. While this may not sound particularly spicy, determining who draws district lines and how those lines are drawn evokes a legal and political struggle of epic proportions. Political wonks, voting rights attorneys, and interested members of the public know that where district lines are drawn can dictate the composition and balance of power in the state legislatures and Congress.

In 2008, California voters approved Proposition 11, a Gov. Arnold Schwarzenegger-supported ballot initiative that took the power of drawing state legislative lines away from legislators. Instead of legislators drawing their own legislative lines, Proposition 11 provided that a 14-member independent redistricting commission comprised of five Democrats, five Republicans, and four Independents would draw district lines for the State Assembly, state Senate, and Board of Equalization.

The oft-repeated purpose of Proposition 11 was to create a system in which the voters chose their legislators, and not the other way around. California has long been the poster child for gerrymandered districts, which reflect a legislator's desire to draw herself a safe district, but not necessarily one that best represents demographic realities. Looking at the last lines drawn by the Legislature in 2001 perhaps best elucidates this phenomenon. In that year, the Legislature accomplished two rarities. First, they agreed on something. Second, they were successful at their stated purpose.

Miller-McCune praises Prof. Levitt's All About Redistricting website

Miller-McCune recently praised Associate Professor Justin Levitt's All About Redistricting website in the story, "Website Demystifies Redistricting":

The once-a-decade reshuffling mandated by the Constitution now has a comprehensive source that helps to explain its complex details.

Justin Levitt, an expert on election law and a professor at Los Angeles' Loyola Law School has launched All About Redistricting, an interactive website that helps the average person understand all the intricacies of redistricting. With redistricting being a hot topic, and its fairness routinely questioned, the launch of Levitt's website is particularly timely.

Read the full story.