Sen. McConnell's Actions Could Make Him Trump's Accomplice

The implementation of Senator Mitch McConnell’s apparent decision to not allow witnesses during the Senate’s impeachment “trial” of President Trump would be tantamount to his becoming an accomplice and arguably co-conspirator to “Obstruction of Congress” charged in Article2 of the Impeachment itself.   

Article 2, similar to an allegation once raised against Richard Nixon, alleges that the sitting president, in addition to refusing to provide properly subpoenaed documents, intentionally discouraged and obstructed witnesses from providing material information and testimony to a legitimate congressional investigation of whether that president attempted to extort (and sought to bribe) a foreign government in order to obtain their assistance in defaming a potential presidential opponent.  

Senator McConnell's refusal to allow material witnesses to be called in the Senate trial, while at the same time supporting a position that grounds for removal have not been established in the absence of information the very information these witnesses would testify to, would constitute aiding in the furtherance of the president’s obstruction of Congress. House Speaker Nancy Pelosi, in the face of Senator McConnell's continuing refusal allow witnesses to testify during a Senate trial, is simply refusing to cooperate in a continuing and unpresented and impeachable effort by the president to obstruct congress from properly investigating that president’s criminal abuse of his office.

Visual Aids Can Compliment a Law Professor's Teaching Strategy

By Professor Aaron Caplan

Visual aids are not the most important thing a law teacher does in the classroom. They can never substitute for well-chosen material, clear organization, thoughtfully chosen in-class activities, being a good explainer or being a good listener. With that said, good visual aids can help students learn more effectively – and bad visual aids make learning harder.

A series of videos based on a presentation I gave at the AALS New Law Teachers Workshop in June 2019 explores what makes successful visual aids work. The first segment explores the psychology of multi-media learning, providing a theory for preparing visual aids that complement one’s lesson plan and not detract from it. The following segments provide examples of visual aids that I have used with success in various classes, including illustrations, visual renderings of legal texts, visualizations of concepts, and more.

The videos can be reached here: www.lls.edu/CaplanVisualAids/

Wealth, Philanthropy and Politics — Considering 'Wealth Tax' Proposals

By Professor Ellen P. Aprill

This op-ed originally appeared in the Tuesday, October 15, 2019 edition of The Hill.

The impact of private wealth on public policy through tax-exempt organizations has garnered much attention of late, with recent scandals involving the Sacklers, Jeffrey Epstein, and a number of prestigious universities. Recent critiques, however, fail to emphasize sufficiently the role of wealth in campaign finance. Citizens United and the rise, in its wake, of Super PACS able to solicit and spend unlimited amounts make such consideration crucial. Today more than ever, political power of the wealthy means that government spending, like charitable spending, is likely to reflect the interests of the wealthy.

Current proposals for a wealth tax also need to confront this issue. On Sept. 5, as part of the Brookings Papers on Economic Activity, Emmanuel Saez and Gabriel Zucman presented an important new paper on progressive wealth taxation. The Saez-Zucman paper describes a wealth tax as a means of reducing wealth concentration needed because of such concentration’s effect on democratic institutions and policy-making. (The paper notes that political contributions are extremely concentrated, with 1.01 percent of the population accounting for over a quarter of all such contributions.) According to those present, discussion at the session included whether a wealth tax would reduce billionaires’ political influence.

To prevent abuses of a wealth tax, the Saez-Zucman paper proposes that donor advised funds — accounts at public charities for which donors can make recommendations as to the distribution or investment of amounts in the accounts — and funds in private foundations controlled by funders “should be subject to the wealth tax until the time such funds have been spent or moved fully out of the control of the donor.” (The paper leaves to another day the question about how to treat private foundations no longer controlled by the original funder and how to avoid gaming of “control.”)

Read the complete op-ed>>

If California Really Cares About Student Athletes, It’ll Protect Their Rights To Their Own Identities

By Professor Jennifer Rothman

This op-ed originally appeared in the Friday, October 4, 2019 edition of  the San Francisco Chronicle.

Gov. Gavin Newsom just signed a bill ostensibly to level the playing field for student athletes. Within 24 hours, five other states had introduced similar bills. In the U.S. House of Representatives, a Student-Athlete Equity Act was introduced just a few weeks ago.

These legislative efforts seek to address the stark reality that the NCAA and college athletic programs reap billions of dollars from ticket and merchandise sales and licensing deals, while student athletes get nothing other than some limited scholarship money. Not only does this seem unfair, but the current system pressures the most talented young athletes to go professional early, often foregoing their educations in the process.

California’s law (and others proposed) bars NCAA universities (who fall within the provision) and are located within the state from penalizing student athletes who sign endorsement deals or with sports agents and attorneys. This is new. But it does not address the underlying exploitation of student athletes.

The law does nothing to require the NCAA or universities to share any profits with athletes — and most college athletes will not be sought after by Nike for a major endorsement deal. The California law also could allow the NCAA to continue to block endorsement opportunities that primarily stem from an association with the “team.”

Read the complete op-ed>>

CPFB Head Misguided in Reliance on Consumer Education

By Professor Lauren E. Willis

This op-ed originally appeared in the Saturday, September 7, 2019 edition of The Hill.

Imagine that your city’s water treatment facility announced tomorrow that it would scale back its work. Instead, the authorities would offer online classes and put up posters around town to teach city residents about contaminants and filtration. With slogans about “empowering consumers,” they would urge residents to make their own choices about the water safety level that’s right for them, based on individual health needs and taste preferences.

People would surely protest. It is both foolish and cruel to put the onus on ordinary citizens to handle an issue that requires professional training to fully understand and that can devastate people’s lives if handled poorly. It seems cynically designed to relieve city administrators — and the businesses that impact the city’s water supply — of their responsibilities. Yet this is exactly what’s happening today in the consumer financial marketplace at the federal level.

President Donald Trump’s head of the Consumer Financial Protection Bureau (CFPB), Kathy Kraninger, has laid out her vision for her five-year directorship. So far, Kraninger seems to think about consumer financial protection the same way our apocryphal city authorities think about water treatment. Rather than protecting us from the financial industry’s dangerous practices, she plans to educate us all about how to protect ourselves.

Kraninger announced: “Our first tool is education … [E]mpowering consumers to help themselves, protect their own interests, and choose the financial products and services that best fit their needs is vital to preventing consumer harm and building financial well-being.” Kraninger’s plan emphasizes pamphlets and websites about saving money and balancing checkbooks at the expense of the trained investigators, financial experts, and attorneys previously tasked at the CFPB with identifying illegal practices and prosecuting the banks that engage in them.

Having studied financial literacy education extensively, I would suggest that the head of the only federal regulator devoted to consumer protection in the financial services space is driving the agency in the wrong direction.

She is sending the message that it is your job to steer around the deceptive, unfair, and abusive practices of the financial services industry — if you can.

Prof. Miller Tesitfies on HR40 and the Path to Restorative Justice Before House Judiciary Subcommittee

Professor Eric Miller testified the following during the House Judiciary Committee Hearing on HR40 and the Path to Restorative Justice held Wednesday, June 19, 2019. Read his prepared remarks below or watch the recording of the testimony.

I will speak to my experience as an academic studying the issue of reparations and a lawyer representing the victims of the Tulsa massacre of 1921 in a reparations lawsuit against the state of Oklahoma and the city of Tulsa. In the short time available, I want to make the following points:

1. Local, state and federal governments were active perpetrators of race-targeted discrimination against, and domination of, African-Americans during slavery and Jim Crow.

2. These governmental institutions engaged in the massive social, political, economic, and cultural destruction of African American communities and individuals.

3. Many of the perpetrators and victims of race-targeted state action are readily identifiable through a thorough investigation of existing historical records in the hands of public and private institutions.

4. The race based disparities brought about by federal, state, and local government discrimination remain baked into our governmental institutions as well as the persistently segregated private social ordering those institutions brought about.

5. Reparations addresses the ways in which these institutions entrenched race-based discrimination and domination throughout American social, cultural, economic, and political institutions.

6. The committee should consider specific legal remedies to remove the time-limited bars against litigation, which are the major impediment preventing the identifiable victims of extraordinary race-targeted state action to sue state and federal governments for financial damages.

7. Reparations must also include rebuilding the social political economic and cultural infrastructure of the communities destroyed by the state.

8. Without social, cultural, and political reparations, race neutral programs of economic uplift will preserve the relative social and political disadvantage, domination, and disempowerment of African Americans across this nation.

The urgent need for the HR40 Commission, and reparations as the path to restorative justice for the victims’ state-sponsored racial injustice, became clear to me in 2003. That is when I joined the Reparations Coordinating Committee, a group of lawyers led by Charles Ogletree and Adjoa Aiyetoro. Our legal team filed suit representing the more than one-hundred still living survivors of the Tulsa, Oklahoma Race Massacre of 1921.

The California Consumer Protection Act: Groundbreaking, but will it be enforced?

By Loyola Law School Lecturer and Reference Librarian Tobe Liebert

Privacy of consumer information is a topic that has received a huge amount of attention in recent years, fueled by the growing public sense that Internet and technology companies are not acting as good guardians of customer information.  With the recent passage of the California Consumer Privacy Act (the CCPA) California thrust itself into the forefront of the debate over what laws are needed to provide adequate privacy and security for personal information.  The CCPA, which will become effective on January 1, 2020, goes far towards creating privacy safeguards in line with the expansive protections found in the European Union’s General Data Protection Regulation (the GDPR).  But the act remains a work in progress, and there are some serious questions about how vigorously it can be enforced.

One of the most contentious issues discussed during the enactment of the CCPA was whether a “private cause of action” should be included in the act.  A private cause of action refers to the issue of whether a private citizen may bring a civil action to claim damages for violations of the act.  If not, then actions to remedy violations can only be brought by the state, acting through the Attorney General’s office.  Proponents of the inclusion of a private cause of action argued that compliance with the provisions of the CCPA would be much more likely if companies were faced with the possibility of civil actions brought by trial lawyers for violations of the law.  Opponents of a private cause of action believed that it would lead to a flood of lawsuits, imposing a huge and expensive burden on businesses in California.