Ballot Initiatives Gone Wild

By Associate Clinical Professor Jessica Levinson

This op-ed originally appeared on Politix and was re-posted by The Huffington Post.

Here a ballot initiative, there a ballot initiative, everywhere in California a ballot initiative.

How did we get here? About a hundred years ago the processes of direct democracy spread across the country. States gave their citizens the ability to directly enact laws (via the ballot initiative), to directly repeal laws (via the referendum), and to oust elected officials (via the recall). The purpose of direct democracy is to empower average citizens and decrease the power than moneyed interests may have over elected officials. Sounds quaint, doesn't it?

Welcome to 2014, when the very special interests direct democracy was meant to guard against now direct and control those processes. And specifically, welcome to California, where we have not only ousted a governor (Gray Davis) via the recall, but where we frequently use the ballot initiative process. Want to change how many lawmakers it takes to pass the state's budget? Pass a ballot initiative. Want to change the definition of marriage? Pass a ballot initiative. Want to cut or increase taxes? Pass a ballot initiative. Want to change the penalties for criminal offenses? Once again, pass a ballot initiative.

Read the complete piece.

Theft of Trade Secrets Brings Federal Conviction

By Professors Jeffery Atik and Karl Manheim

Stealing a trade secret (reprehensible though this may be) has generally not attracted federal criminal liability. Yet in the recent prosecution of David Nosal, the Justice Department applied a computer hacking statute to convict a departing employee for a rather run-of-the-mill trade secret theft: the unauthorized taking of customer lists. Many if not most trade secrets -- like the customer lists involved in Nosal -- are stored on computers. As such, aggressive use of the federal Computer Fraud and Abuse Act could convert many trade secret misappropriations -- traditionally civil offenses and a state law matter - into federal crimes. And this policy shift -- criminalizing and federalizing -- results from the determinations of prosecutors and judges, and not from Congress.

David Nosal worked for the executive search firm Korn/Ferry International until 2004 when he left to form a rival firm. Upon departure, he signed a standard non-compete agreement, but also recruited 3 fellow Korn/Ferry employees to join his new firm. Before those employees left, they downloaded proprietary customer information from the Korn/Ferry network and provided the confidential data to Nosal.

The Justice Department charged Nosal with 22 counts under the Computer Fraud and Abuse Act, 18 U.S.C. §1030, which prohibits, inter alia, unauthorized access to computer systems for fraudulent purposes. The fraudulent purpose in this case was theft of trade secrets.

Introducing Guest Journalist Blogger Ben Adlin

Our newest Guest Journalist Blogger, Ben Adlin, has served as both a reporter and editor at the Los Angeles Daily Journal, where he is currently an associate editor. As a reporter, Ben has covered federal courts and topics as varied as public employee pensions and efforts to regulate medical marijuana. And his topic could not be more timely. With the high court's January 2014 session around the corner, it's high time to debate the role of oral arguments.

-Associate Dean Michael Waterstone

At Supreme Court, Evolution of Oral Arguments Speaks Volumes

By Ben Adlin, Guest Journalist Blogger
Associate Editor, Los Angeles Daily Journal

Last year, U.S. Supreme Court Justice Antonin Scalia proclaimed that "People who get used to blurbing things on the Internet are never going to be good writers." Yet here am I, a paid writer if not necessarily a good one, blurbing on the Internet about the history of American appellate advocacy. Humor me.

One can hardly fault Scalia for his focus on the written word. His own legal organ operates almost entirely through briefs and opinions, as do virtually all appellate courts in the land. In that world, writing counts. Most seasoned appellate practitioners will tell you that if an attorney today hasn't persuaded the judges through writing by the time she steps up to the lectern, oral argument is largely window dressing.

Amid the turning gears of the appellate engine, oral argument is a "minor, almost formulaic part," said Loyola Law School professor Allan Ides, a former Supreme Court clerk. "I can tell you, at the Supreme Court level, very, very rarely are oral arguments going to make a difference," he said. "You don't even in most cases get to make an oral argument. You just get grilled."

It wasn't always this way. Appellate argument in the republic sprang from the British oral tradition. Rather than paper a court with briefs, attorneys in the Supreme Court's early years would sometimes spend days engaged in rhetorical sparring. This was back when snuff boxes decorated the counsel tables. Those "vanished long ago," the court historical society's website says, "along with arguments that lasted for hours and soared to splendid heights of oratory."

Book Review of Talent Wants to Be Free

By Associate Dean Michael Waterstone

This book review originally appeared in the Daily Journal.

Ideas. Collaboration. Drive. In the world we live in, these intangible resources can be the most valuable assets a business has. In the two professional worlds with which I am most familiar, law practice and legal academia, this is certainly the case. Law firms routinely raid one another, both for talent and for books of business (and potential for future business). At law schools, we regularly look to other faculties to see whose talents in the classroom, as scholars, and as administrators would benefit our students, and try to recruit those faculty members to join our ranks. And we expect that other schools will do the same to us. Even more than in the legal arena, the competition between technology companies like Facebook, Google, Microsoft and Apple is even fiercer. All of these companies fight vigorously with one another for the best talent, and routinely acquire (or as it is now known, acq-hire) entire start-ups, only to discard the actual product but keep the teams, founders and engineers.

Professor Orly Lobel's important new book, Talent Wants to Be Free: Why We Should Learn to Love Leaks, Raids, and Free Riding addresses what role business and government should play in the talent wars, not just in the legal profession but across industries. Combining insights from law, economics, psychology and business, and with the benefit of experimental studies, Lobel offers a powerful critique of our dated ways of thinking about competition, which center around command and control of human capital. But she also offers a hopeful vision of how law and business can foster innovation and the competitive edge necessary for our country's success in a new and more challenging global environment.

A Broken Election System Becomes a Teenager

By Associate Professor Justin Levitt

This op-ed originally appeared on Pacific Standard.

Precisely 13 years ago, five Supreme Court justices cast the final and most important vote of the 2000 election, ending a Florida recount and effectively installing George W. Bush as the 43rd President of the United States.

Today, Bush v. Gore hits adolescence. We should be paying far more attention to this troubled teen.

The chaos of the winter of 2000 has slipped from the national consciousness. My students have no idea what a "hanging chad" is, or that such a thing was ever meaningful. More recent constitutional crises have left the combat in Tallahassee stale and distant. Much of America has, it seems, finally taken Justice Scalia's frequently quoted advice on the election: "Get over it."

But ignoring the Bush v. Gore bar mitzvah would be a grave mistake. In some ways, the need to remember--and to let that memory spur us to action--is greater now than ever before.

Read the complete piece.

Loyola Professors Draft Bill on Defense Attorney Recording Privileges

Professors Laurie Levenson and Brentford Ferreira were quoted in the Daily Journal about a bill they drafted that would give defense attorneys similar surreptitious recording priveleges to prosecutors and law enforcement. Levenson and Ferriera, who recently joined Loyola as an adjunct professor and supervising attorney of Loyola's Project for the Innocent, hope to have the bill introduced into the California state Legislature.

Excerpt:

Brentford Ferreira, a former Los Angeles County prosecutor, and professor and project head Laurie Levenson recently penned language for a bill that would provide defense attorneys and their investigators with the ability to secretly record conversations with witnesses in criminal cases. The idea is that surreptitiously recording witnesses could help defense attorneys recognize and prove that a witness has given conflicting testimony. That could pave the way for defendants to prove their innocence or help wrongfully incarcerated defendants clear their names. 

"Faulty eyewitness identifications result in the convictions of innocent people," the authors note in the would-be bill's statement of purpose. "Witnesses often recant their previous identifications."
Ferreira and a group of Loyola law students hope to convince a lawmaker to introduce the draft bill in next year's legislative session. 

... 

"If law enforcement's taping is focusing on ongoing criminal activity, then it might make some sense as to why they have additional investigative powers," she [Levenson] said. "However, if all they are doing is secretly taking witness statements, then it is unclear why they should have a tool that the defense does not have. Both sides should want to get the true testimony of the witness."