Campaign Finance's Not-So-Final Exam

By Associate Professor Justin Levitt

This op-ed originally appeared on Jurist

For better or worse, a professor's thoughts are never far from final exams. The best exams, I think, test students' understanding not just of the governing rules, but the legal rationales that drive them. And it's no secret that in devising hypothetical questions for exams, professors often turn to potential scenarios that they've otherwise been mulling: scenarios that present tricky issues forcing the better students to dig beneath the surface. Often, these exam issues are drawn from pending or recent cases.

For better or worse, a professor's thoughts are never far from final exams. The best exams, I think, test students' understanding not just of the governing rules, but the legal rationales that drive them. And it's no secret that in devising hypothetical questions for exams, professors often turn to potential scenarios that they've otherwise been mulling: scenarios that present tricky issues forcing the better students to dig beneath the surface. Often, these exam issues are drawn from pending or recent cases.

And sometimes, the cases -- like the Supreme Court's decision last week to hear McCutcheon v. FEC -- are drawn from the exams.

In May 2011, I asked the following question on my election law exam:

Federal law imposes aggregate limits on individual campaign contributions over a two-year period. Individuals may not contribute more than $46,200 (total) to federal candidates, with no more than $2,500 to any single candidate. (These limits pertain to contributions to federal candidates only, and do not include separate limits on the aggregate amounts that individuals may give to PACs and political parties.)

Clark Tuckerberg is a social media entrepreneur and multi-billionaire. He has "friended" more than 200 members of Congress and more than 30 US Senators on Facebook -- and he would like to demonstrate that, to him, "friending" is a real commitment. He acknowledges that he may not give more than $2,500 to any single candidate. However, he would like to give $2,500 to each of the candidates that he has "friended," which would put him well over the aggregate limit.

Concepcion v. AT&T propagates law giving big business license to steal from consumers

By Brian S. Kabateck '89, Guest Alumni Blogger

Concepcion v. AT&T, 131 S.Ct. 1750 (2011) is arguably the worst consumer Supreme Court decision in the last 20 years. Interestingly, there hasn't yet been a public outcry. In this horrible decision, the court held that the Federal Arbitration Act trumps all other laws. If you don't know the case and have been living in a bubble for the last two years, the facts are simple: The Concepcions sued AT&T Mobility claiming that their cell-phone company had engaged in deceptive advertising by falsely claiming that their plan included free cell phones. Their suit became a class action. The U.S. District Court for the Central District of California refused to dismiss the suit despite the fact that the contract mandated binding arbitration and prohibited class action lawsuits. The district court ruled that California law prohibits consumer adhesion contracts that waive the customer's right to a jury trial, mandate arbitration and purport to waive the right to participate in a class action lawsuit. The Ninth Circuit Court of Appeals upheld the District Court's decision. The Supreme Court disagreed and held that the Federal Arbitration Act (a law that was written before the Great Depression) mandated that any arbitration agreement was absolutely enforceable, even if it appears in a contract of adhesion.

Before Concepcion, contracts of adhesion couldn't force people into arbitration in California, and class action waivers were generally held unenforceable. There are many cases all across the United States today with varying decisions on the enforceability of mandatory binding arbitration agreements. There is no doubt that mandatory arbitration in consumer contracts of adhesion is bad for most Americans. The only groups that like the idea of mandatory arbitration are big business and the chamber of commerce. Arbitration doesn't discourage consumer litigation; it eliminates it entirely. Who is going to arbitrate a $75 dispute with your phone company provider? And if your phone company is overcharging you $75, where does the consumer go? Or a $500 dispute? Or a $1,000 dispute? While a $75 rip off may not be the worst thing that happens to a consumer, it nevertheless is wrong and should be stopped. And a $75 dispute magnified over tens of thousands of customers means millions of dollars the corporation is stealing from its consumers. The state and federal governments have neither the ability nor the resources to litigate these cases on behalf of consumers. So if class actions are eliminated for this category of cases, and the government won't enforce the laws, it is a license to steal from America.

The Importance of Judicial Diversity

By Professor Laurie Levenson and Courtnee Draper '14

This op-ed originally appeared in the Friday, Feb. 15, 2013 edition of the Los Angeles and San Francisco Daily Journal.

As Thomas Jefferson proclaimed, "The most sacred of the duties of a government is to do equal and impartial justice to all its citizens." To accomplish this goal, it is imperative that we have a diversified bench. Recent national studies show that minority groups lag far behind in their confidence in our judicial system. While 62 percent of white voters view the courts as fair and impartial, only 55 percent of non-whites feel the same. In fact, 85 percent of some minority groups believe there are two systems of justice: one for the rich and powerful, and one for everyone else.

Overall, judges of color account for just 12 percent of all state court judges chosen since 2000. In California, we have a long way to go until our bench reflects the population that it serves. For example, Asians comprise 15 percent of the state's population; however, they represent only 5 percent of all judges. A more concerted effort has been made to appoint African-Americans to the California bench. African-Americans constitute 6 percent of the state population, and they too represent only 5 percent of the current judges.

The greatest focus has been on the appointment of Latino judges. Since January 2011, 15 new Latino judges have been appointed to the bench, increasing the representation of Latino judges to 8.2 percent. Yet in a state where 37.6 percent of the population is Latino, there is still a long way to go before the bench is diverse enough that Latinos are anything other than "token" appointees.
We also need to focus on other underrepresented groups in judicial appointments. For example, there is still a significant gender gap in our state's judicial appointments. Women comprise almost 40 percent of California's lawyers. However, they still represent only 33 percent of the judicial appointments. Of course, women of color face the double challenge of being both a woman and a minority when a seeking judicial appointment.

Nor do the challenges for minorities and women end once they are appointed to the bench. Sometimes, they are more vulnerable to challenge in retention elections, particularly if they have foreign-sounding names. While the public might like to think that in 2013 there is no longer racial or gender bias, the statistics suggest otherwise. It is still tougher for certain groups to attain leadership positions, including seats on the bench, because of factors completely unrelated to their qualifications to be a judge.

Visiting Prof. Hughes Contributing to Prawsblawg Series

This semester, Loyola is delighted to be hosting Professor Justin Hughes, who is visiting from Cardozo School of Law. Professor Hughes is currently participating in an online forum on Robert Merges' book, Justifying Intellectual Property. You can find his first post here.

California's Cap on Medical Malpractice Damages Needs Surgery

By Brian S. Kabateck '89, Guest Alumni Blogger

Most lawyers don't know that in 1975 Governor Brown signed a law that radically changed medical malpractice litigation in California. That law, known as MICRA (Medical Injury Compensation Reform Act), was born in a time when most doctors were in private practice and the insurance industry was largely uncontrolled and financially crushing doctors by boosting malpractice premiums. Among other reforms, MICRA capped any pain and suffering award at $250,000. In the 38 years since MICRA became law, there has been no change whatsoever in the $250,000 cap - and during the same timeframe, inflation has dramatically affected the value of $250,000. In fact, if you apply a basic cost of living factor for inflation, that same $250,000 would now approach approximately $1.1 million. While under MICRA there is no artificial cap on economic losses such as medical care, life care and lost earning, its $250,000 cap on non-economic damages intended to offset the real costs of human suffering creates an unfair situation in cases involving the loss of a child, a non-income earning spouse or a retired person. Quite simply, the life of a child lost because of medical error is only worth $250,000 in California. Outrageous!

Consider also that the entire practice of medicine has changed in the last 38 years. Most Californians who are insured get their medical care though managed care like an HMO or Kaiser. Gone are the days when private practitioners where the norm. Many patients feel like doctors are restricted in making decisions by administrators and other people who are not doctors but are often making the decisions for them. Patient safety is a serious concern in the United States today. It is estimated that more than 300,000 people die every year from medical errors. To put that number into context, medical errors are the third leading cause of death behind heart disease and cancer. It's the equivalent of two full 747s crashing every day. In California, an estimated 37,500 people die from medical errors every year. Meanwhile, doctors have a more lenient discipline system than lawyers; many doctors go unchecked while wrestling with addiction to alcohol and prescription drugs. The media seem to be reporting stories every day of serious medical errors and negligence. Michael Jackson is the most famous victim of medical negligence.

Our tort system does act as a deterrent. We know that cars are safer because of product liability cases, insurance companies are held accountable when they fail to pay legitimate claims, Big Pharma is responsible for bad and dangerous drugs - the list goes on and on. There are no caps on those other industries. In fact, no profession has artificial caps in place except the medical field. Eliminating the cap entirely and letting juries decide the level of damages would be the best approach, but at a minimum the cap should be adjusted to account for inflation and then adjusted regularly to keep up with the cost of living. Even the original rationale for the cap no longer applies. Shortly after the current California insurance commissioner took office, he forced all admitted malpractice insurance firms to refund premiums because medical malpractice coverage is the most profitable line of insurance in the state. Beyond such administrative steps, the notion of caps is fundamentally contrary to our legal system, the Seventh Amendment and the entire idea that one group shouldn't receive special treatment over others.

We teach a tort system in law schools across the country that is free of artificial limitations on damages. In fact, our entire constitutional civil justice system is based on the notion that juries are best equipped to determine the value of a plaintiff's claim. We need to reconsider the MICRA caps.

Brian S. Kabateck is the founding and managing partner of Kabateck Brown Kellner LLP and president of the Consumer Attorneys of California.

Disability and Sports

By Associate Dean Michael Waterstone

On Friday, the United States Department of Education, Office for Civil Rights, issued a guidance detailing the obligations of public elementary and secondary schools to allow students with disabilities to have equal opportunities to participate in extracurricular programs, primarily sporting and athletic activities. I wrote my first law review article on the case of Casey Martin, a golfer with a disability who requested the use of a golf cart in PGA play as a reasonable accommodation under Title III of the Americans with Disabilities Act. Martin eventually won in the Supreme Court.

My first impression about the Education Department's guidance was (happy) surprise that it generated so much media attention (it was picked up in numerous national outlets, including here, here, and here). Sports are important in our society, and the benefits of youth participation in athletic activities are well documented. Too often, as the United States Government Accountability Office found in a recent report, students with disabilities have been excluded from these benefits. So I am gratified that the US Department of Education is using its platform to provide leadership in this area.

But I think it is too early to know exactly what this guidance will mean. Disability advocates are comparing it to an earlier Education Department guidance under Title IX instructing schools to treat female athletics on par with male teams. That effort transformed our society, and every time I coach my six-year old daughter's softball or soccer team I am grateful for it. I am hopeful, but not necessarily optimistic, that this will be the ADA equivalent. This guidance does not break any new ground: it merely clarifies existing legal obligations under Section 504 of the Rehabilitation Act of 1973, which is hardly a new law. The Individuals with Disabilities Education Act, which also requires schools to grapple with the integration of students with disabilities into school life, has absolutely been a transformative statute. But implementation has been slow, and the law is still underenforced.

The Case of Lady Gaga and California Political Fundraising

By Associate Clinical Professor Jessica Levinson

Wondering if legislators ever go back to their offices and "just dance?" Don't think your elected officials have a "poker face?" Dubious as to whether your lawmakers were "born this way?" Curious as to whether, just like us, our lawmakers sometimes have a "bad romance?"

We may not know the answer to those questions, but we do know that State Senators Ricardo Lara and Ron Calderon were at Staples Center this past weekend to take in a Lady Gage concert. Is this official business?

Well, it's officially a fundraising event for them. Lara is running for re-election to the Senate and Calderon is running for state controller next year. The two democratic senators were slated to hold a joint campaign fundraiser at the concert. Contributors who gave $3,900 were rewarded with a ticket to the concert and a night in a nearby hotel.

Lara and Calderon's joint fundraiser at Lady Gaga's concert likely says less about their devotion (or lack thereof) to the performer than it does about their desire to raise large campaign donations at popular venues. In our current system, in which campaign contributions to candidates are limited, but expenditures by candidate campaigns are not, the third for campaign funds is all but unquenchable. Put another way, once candidates get on the fundraising treadmill, it is difficult to see when and how they will ever get off that treadmill.

The seemingly endless fundraising race is not, of course, the fault of the candidates and officeholders. The current legal framework breeds the almost ceaseless need for campaign cash. This actually harms not only the public, but also officeholders who spend so much of their time fundraising rather than legislating or governing.
Here is hoping that Lady Gaga's next hit is about that sexy topic we call "political reform."

This post originally appeared on KCET-TV's SoCal Focus blog, for which the author writes regularly.