Nationalism and Reciprocity

By Professor Eric Miller
Originally appeared on Prawfsblawg

Thanks to the powers at Prawsfblawg for inviting me back. I'm a law professor at Loyola Law School, Los Angeles. I always appreciate the opportunity to place my nascent thoughts in the public forum, and see what interests folks. For the most part, I'll blog about criminal procedure in general, and in particular policing. But given the date, I thought something else might be more appropriate.

I’m Scottish. Given the current temporal proximity of Brexit and the Fourth of July, in which Americans celebrate their revolting forebear’s legally irrelevant secession statement, I'll impart one thought on nationalism. We might think that nationalism is a unilateral affair: it states “I assert my independent status as Scottish/English/American/etc.” But nationalism is, in fact, a bilateral or multilateral affair: in asserting your American identity, you rejected your British identity. It is possible to have multiple identities—Scottish and British and European. But multiplicity sits uncomfortably with nationalism. Even if Scots want to be independent *within Europe*, Scottish nationalists want to be *not-British* within Europe. And for Scottish nationalists, Europe is not an independent national identity: it is a subsidiary part of the Scottish identity. Scotland, the Scottish nationalists assert, is a European country, not limited in its projects to the British Isles (and maybe even not oriented in its projects to the British Isles).

The Perils of Killing International Trade Deals

By Professor Jeffery Atik

Not since the 1993 Ross Perot-Al Gore debate on NAFTA have international trade issues appeared so prominently in U.S. political discourse. Both the insurgent presidential candidates -- Donald Trump and Bernie Sanders -- called for a break from longstanding U.S. policies favoring international trade. Two major ongoing trade initiatives - the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP) - are threatened.

Britain’s recent decision to exit the European Union has almost certainly ended any prospect of concluding TTIP, and both Trump and Hillary Clinton are now expressing opposition to TPP. Trump’s opposition to TPP is a bit surprising, as TPP was designed to counter China’s influence in the Pacific region. China is the central focus of Trump’s neo-nationalist ire; he

promises to subject Chinese goods to punishing tariffs. Were he to do so, it would likely plunge the entire World Trade Organization into crisis, effecting a U.S.-style “Brexit” from the international trading system.

LIABILITY UNDER FALSE CLAIMS ACT: Universal Health Services, Inc. v. United States ex rel. Escobar

Professor Paul T. Hayden's book, "The Law of Torts," is cited in the U.S. Supreme Court's opinion turning on when liability arises under the False Claims Act.

[Excerpt from the opinion]

We need not resolve whether all claims for payment implicitly represent that the billing party is legally entitled to payment. The claims in this case do more than merely demand payment. They fall squarely within the rule that half-truths—representations that state the truth only so far as it goes, while omitting critical qualifying information—can be actionable misrepresentations. A classic example of an actionable half-truth in contract law is the seller who reveals that there may be two new roads near a property he is selling, but fails to disclose that a third potential road might bisect the property. See Junius Constr. Co. v. Cohen, 257 N. Y. 393, 400, 178 N. E. 672, 674 (1931) (Cardozo, J.). “The enumeration of two streets, described as unopened but projected, was a tacit representation that the land to be conveyed was subject to no others, and certainly subject to no others materially affecting the value of the purchase.” Ibid. Likewise, an applicant for an adjunct position at a local college makes an actionable misrepresentation when his resume lists prior jobs and then retirement, but fails to disclose that his “retirement” was a prison stint for perpetrating a $12 million bank fraud. See 3 D. Dobbs, P. Hayden, & H. Bublick, Law of Torts §682, pp. 702–703, and n. 14 (2d ed. 2011) (citing Sarvis v. Vermont State Colleges, 172 Vt. 76, 78, 80–82, 772 A. 2d 494, 496, 497–499 (2001)).

Prof. Buckingham's New Scholarship: Trauma Informed Juvenile Justice

Professor Samantha Buckingham published "Trauma Informed Juvenile Justice" in the American Criminal Law Review.

ABSTRACT

The juvenile justice system fails to account for the astounding rates of childhood trauma exposure amongst system-involved youth. Trauma, an experience threatening to life, safety, or well-being, overwhelms an individual’s ability to cope. The experience of trauma is so pervasive amongst juvenile justice youth that a recent study found that 93% of children in an urban detention facility had experienced at least one traumatic event in the past year, and for more than half of those youth the trauma they reported was witnessing violence. When left untreated, or treated without targeted trauma-specific therapies, trauma sufferers are vulnerable to commit offenses as children and as adults. The stakes are high: untreated trauma can turn people into ticking time bombs bound to respond to triggers and misinterpret events, sometimes responding violently, even to mundane events in their daily lives. The good news is that when trauma is identified and treated with appropriate trauma-specific methods, child trauma sufferers in particular can heal, overcome their trauma, and grow in positive ways.

The juvenile justice system has yet to catch up with contemporary understanding of trauma’s impact on offending and the latest best practices for treatment of trauma. Specifically, the juvenile justice system fails to accurately identify trauma and often employs counter-productive responses to juvenile offending, such as removal from the home, programming and treatment that is general rather than trauma-specific, and the over-use of detention. Poor youth of color, the most marginalized among us, are the children who suffer the greatest from the current failure to incorporate a trauma-focused response in the juvenile justice system and are subjected to incarceration at unreasonably high rates. Incarceration itself is traumatic, it exacerbates pre-existing trauma, and it is counterproductive to long-term community safety.

This Article proposes four trauma-informed reforms: (1) create a presumption of trauma, (2) mandate trauma identification of youth in the juvenile justice system, (3) implement trauma-informed procedures, and (4) utilize trauma-informed dispositions, which will dramatically reduce our over-reliance upon incarceration in favor of safe-settings in the community. Endowed with trauma-focused reforms, the juvenile justice system is poised to identify and appropriately respond to the many traumatized children who come to its attention early enough to make a difference, capitalizing on the incredible potential for growth and resilience children possess, realizing the paramount goal of rehabilitation, promoting long-term community safety, and working to eliminate the incarceration of children.

Read or download "Trauma Informed Juvenile Justice."

Supreme Court: With McDonnell Opinion, Ex-Governor Will Get Another Day in Court

By Professor Jessica Levinson

Today the Supreme Court unanimously tossed out the conviction of former Virginia Governor McDonnell. While Gov. McDonnell's behavior was offensive, it may not be criminal. Gov. McDonnell may still see the inside of a prison cell, but a jury will have to make that determination based on the Court's interpretation of the federal bribery laws.

The court found that "our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns. It is instead with the broader legal implications of the Government’s boundless interpretation of the federal bribery statute."

Gov. McDonnell was convicted under a statute which required that individuals make an "official act." The Court narrowed the meaning of that law, finding that merely "[s]etting up a meeting, talking to another official, or organizing an event—without more—does not fit that definition of 'official act.'" Chief Justice Roberts, writing for the Court, held that a broader interpretation of the term "official act" would create constitutional problems. It would also criminalize politics as usual.

In Memoriam: Professor William G. Coskran

Generations of future property lawyers and educators were inspired by Professor Emeritus William (Bill) G. Coskran’59. Coskran’s ties to Loyola go back to his undergraduate degree, which he earned at Loyola Marymount University. He graduated first in his Loyola Law School, Los Angeles class in 1959. After spending two years in the U.S. Air Force JAG Corps, Coskran entered private practice focusing on real property and construction law.

He quickly returned to the Law School, though, first as an adjunct professor, and then as a full-time teacher in 1968. Dean Michael Waterstone called Coskran "a treasure to our community and represented the best of who we are."

Known for being a humorous, unpretentious and friendly—and just a tad tough in the classroom— Coskran continues to influence generations of Loyola graduates. In 2014, he was named to the Loyola Law School's list of "50 Inspiration Alumni" on the occassion of the 50th anniversary of the Albany Street campus.

"As part of a faculty known for great teaching, Bill Coskran is perhaps the finest teacher of them all," Professor Victor J. Gold said of Coskran. "What makes Bill nothing less than a classroom legend is his unmatched ability to help his students understand and apply the most difficult aspects of law to a concrete set of facts. No one has ever been better at performing the magic of turning students into lawyers."

The Law School established the William G. Coskran Chair to recognize Bill for all his contributions as a loyal alumnus, an exceptional professor and an extraordinary human being.

Remembrances of Professor Coskran may be posted below and will be shared with the family:

Loyola Immigrant Justice Clinic Reacts to DAPA Decision

The co-directors of the Loyola Immigrant Justice Clinic at Loyola Law School, Los Angeles are reacting to the Supreme Court opinion announced today that lets stand a lower court opinion blocking President Obama’s executive action, Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA.

“The divided court, by affirming the decision in U.S. v Texas, has exposed hard working and vulnerable individuals to continued vulnerability, discriminatory state and federal laws, and predatory practices. The executive action programs would have strengthened family unity, community health and safety, and strengthened our economy,” said Marissa Montes, co-director of the Loyola Immigrant Justice Clinic at Loyola Law School, Los Angeles. “As a clinic that has seen hundreds of community members eligible for these programs who have been preparing to apply, we know that their struggle will continue. As immigrants’ rights advocates, however, this gives further incentive to advocate for change and immigration reform. Our system is broken and victims of crime, asylees, parents, and friends need our attention and protection.”

The co-directors found some semblance of hope in the decision.

“Now more than ever, bold, young immigrants should enroll in Deferred Action for Childhood Arrival (DACA) and show the benefits of this program,” said Emily Robinson, co-director of the Loyola Immigrant Justice Clinic. “We have seen DACA recipients come out of hiding and make positive change on the world. By enrolling in this program, they continue to show its benefits and open the door to future executive action programs. Executive action was just a band aid on an antiquated immigration system. We need to focus on change for those who need a voice.”