Results tagged “Supreme Court”

By Associate Clinical Professor Jessica Levinson

This post originally appeared on KCET's website.

Is candidate centered campaign fundraising a thing of the past?

Greetings, and welcome to the Super PAC era. Thanks in part to the Supreme Court's 2010 decision in Citizens United, we now have new entities called "Super PACs," which are organizations that can raise and spend unlimited political funds.

Contributions given directly to candidates are unlimited, but again, contributions to outside groups such as Super PACs are not. Therefore, as many predicted, individuals and entities who wish to support candidates but have given up to the legal limit, now have a new outlet for their campaign donations. This pattern, however, is nothing new. Before there were Super PACs big donors gave to political parties or other outside organizations like independent expenditure groups.

Campaign fundraising by candidates is increasingly being marginalized and fundraising by independent groups including Super PACs is coming to the forefront. We are seeing this phenomenon play out real time in the Los Angeles mayoral race where the contribution limit to candidates is $1,300 both in the primary and the runoff elections. While fundraising by candidates is still outpacing fundraising by Super PACs in the mayoral race, at some point in the near future that could change. In this election both candidates have raised approximately $5.7 million and independent groups have raised roughly $4.7 million for Greuel and $1.3 million for Garcetti. That means about one-third of the money raised in the mayor campaign has been raised by outside organizations. Again, the lion's share has gone to groups supporting Greuel.

By Associate Visiting Clinical Professor Lara Bazelon

In the Supreme Court case of Metrish v. Lancaster, the state appeals the finding of the Sixth Circuit's grant of habeas relief to Burt Lancaster (no relation to the actor), who was twice tried and found guilty for the murder of his girlfriend. In the first trial, Lancaster raised both insanity and diminished capacity defenses. The jury rejected both, but because of an unrelated constitutional error, the conviction was set aside.

At the second trial, Lancaster again sought to raise the insanity defense. In the interim, however, the Michigan Supreme Court abolished the defense. That decision was applied to Lancaster retroactively. Lancaster was once again convicted and sentenced to life in prison.

After exhausting his state court appeals, Lancaster filed a writ of habeas corpus in federal court. Lancaster lost in the district court, but prevailed before a divided panel of Sixth Circuit judges, which granted the writ after finding that Lancaster's due process rights were violated.

To find in Lancaster's favor, the panel had to clear two exceptionally high hurdles erected by the United States Supreme Court's retroactivity and habeas jurisprudence. On the retroactivity front, the court of appeals had to find that the Michigan courts' abolition of the diminished capacity defense was "unexpected and indefensible." On the habeas front, the bar was even higher: the Sixth Circuit had to find that the Michigan courts' decision to apply retroactively to Lancaster its "unexpected and indefensible" decision was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement" among reasonable jurists.

You may be wondering exactly what kind of habeas petitioner could possibly prevail under either standard, much less both. I'm not sure I know the answer, but I'm pretty sure it isn't Lancaster.

The dissenting judge on the Sixth Circuit panel laid bare the shaky foundations of her colleagues' opinion. Simply put, the majority could not overcome a standard of review so highly deferential that it allowed federal judges to grant relief to state court petitioners only in cases of "extreme malfunctions in the states' criminal justice systems."

My take: This dissent, coupled with SCOTUS' decision to grant cert, signals swift reversal.

By Associate Professor Kevin Lapp

On Feb. 26, 2013, the U.S. Supreme Court heard oral argument in Maryland v. King, a case that Justice Alito called "the most important criminal procedure case this Court had had in decades." The case involves the constitutionality of warrantless, involuntarily DNA collection from individuals who have been arrested for a felony, but not yet charged or convicted. It is uncontested that DNA collection constitutes a search for purposes of the Fourth Amendment. This case asks whether compelling such searches in the absence of a warrant, and the absence of a criminal conviction, is reasonable.

Maryland, together with 27 other states and the federal government, has statutorily mandated law enforcement to collect a DNA sample from certain individuals upon arrest. The DNA extraction happens not because the state has any articulated suspicion whatsoever that the search will produce evidence of criminality. Were that so, the state could get a warrant to compel a DNA sample. Instead, the law requires arrestees to submit to DNA collection (typically by a buccal swab) based merely on the fact of the arrest. It is done so that law enforcement can analyze the DNA sample and compare it to the thousands of DNA profiles already in state and federal databases, in the hopes that the arrestee's DNA will match as-yet unidentified DNA evidence related to unsolved crimes.

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.

Tuckerberg files suit, challenging the aggregate $46,200 limit on contributions to federal candidates, under the First Amendment. He does not challenge either the $2,500 limit on contributions to any individual candidate or any limits on contributions to parties or PACs.

You are clerking for the judge assigned to hear the case.

The judge acknowledges that the Supreme Court addressed the issue of aggregate contribution limits in six short sentences of Buckley v. Valeo. Yet with a twinkle in her eye, she suggests that the Court's recent stance toward campaign finance precedent suggests that it may be unwise to rely solely on six cursory sentences of a thirty-year-old opinion. She cautions that she has no view on whether the limit is constitutional or not. But she would like you to analyze the issue as an original matter, without relying on the cursory treatment of the issue in Buckley.

Evaluate whether Tuckerberg's challenge to the aggregate $46,200 contribution limit is likely to succeed, and why. On August 31, 2012, real-live Virginia James stepped into the shoes of my entirely fictional Clark Tuckerberg. In her complaint, captioned as James v. FEC, she challenged the same aggregate contribution limit that Tuckerberg resented.

On Halloween last year, the US District Court for the District of Columbia rejected James' challenge, in an opinion with far more meat than the limited treatment that the issue received in Buckley. The court's opinion turned largely on the role of the aggregate limit in stemming corruption arising out of candidates' transfers to each other. That same issue was at the heart of a companion case, McCutcheon v. FEC, challenging the aggregate limit on giving not only to candidates, but also to political action committees (PACs) and parties; McCutcheon was filed two months before James and was decided -- upholding the limit -- at the end of September.

Under an unusual procedure largely reserved at this point for election-related cases, McCutcheon was heard by a three-judge federal trial court, the decisions of which are appealed directly to the Supreme Court. This appeal is an appeal by right, not a request for certiorari: the decision can be summarily affirmed or summarily reversed, or the court may hear argument and write more extensively. But, much like my students, the Court cannot chose to avoid the issue entirely.

On Tuesday, the Court agreed to hear more from the parties on McCutcheon, which likely means a more extensive decision. Professor Rick Hasen rightly notes that this is a significant step -- and the blogosphere is on fire with predictable predictions that the Court is poised to upend campaign finance law once again. But I think the real significance may be different than the primary chatter indicates. And I think much will depend on the other shoe, yet to drop: what happens to James.

Hasen, and plenty of others, have correctly noted that in reviewing McCutcheon, it is possible that the Court will revisit its approach to the constitutionality of contribution limits more generally: a wholesale change to the basic rules of the game. Certainly, the Court has, in the past, taken small cases and turned them into big ones. But not every tremor portends a Vesuvius.

Revising the overall approach to contributions is in no way necessary to deal with the issue in McCutcheon. Currently, the Court looks much more closely at limits on expenditures (which involve direct payments for expression) than at limits on contributions (which involve expression only by proxy). But even though looking at the justification for contribution limits involves reading glasses and not an electron microscope, a review with reading glasses is still meaningful. It is entirely possible for the Court to take a firm look at the contribution limits in McCutcheon without upping the general prescription.

Similarly, Hasen notes that reviewing McCutcheon involves a review of part of the landmark Buckley v. Valeo case. But as I suggested in my exam, the aggregate limits are a part of the case that got little attention from the Court at the time: six sentences of 294 total pages. There are many ways in which the Court could address the constitutionality of the aggregate limits, including the justification for those limits, that leave intact the essential Buckley "settlement": a harder look at limits on expenditures than contributions and ample reasons to limit contributions in order to prevent corruption. Even though the issue in McCutcheon was addressed by the Buckley Court, there is no reason that a finding for the plaintiffs has to amount to an unraveling of Buckley more broadly.

Instead, the real significance of the case may come with a decision whether to hear James at the same time. James is about contributions to candidates, and the potential for one donor to corrupt candidate X by contributing amounts that are individually unsuspicious to 20 other candidates, all of whom give chunks of that cash over to X. McCutcheon concerns candidates as well, but adds the complicating factors of party committees and PACs -- artificial entities that can be formed at will, each of which can receive more money per person, and for whom there may be significantly more reason to act as a conduit. There are far more reasons for Congress to be concerned about contributions to parties and PACs -- and for the Court to credit those concerns -- than for it to regulate Tuckerberg's contributions to his "friends." But it is easier to lose sight of the most significant elements in McCutcheon if James is not also before the Court to focus attention on the distinct roles that PACs and parties play.

The Court has not yet decided what to do with James: whether to hold it, address it summarily or hear it with McCutcheon. Its decision could well signal what aspects of the case have drawn the Court's attention.

It's one exam answer that should be particularly interesting to grade.

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.

Professor Georgene Vairo, an expert on class-action litigation who teaches and writes in the areas of mass torts, weighs in on Standard Fire Insurance Co. v. Knowles, argued before the Supreme Court on Jan. 7:

Key Issue: Can a plaintiff stipulate to damages below CAFA's federal jurisdictional threshold of $5 million where the aggregate claims of all class members exceed that amount?

Key Takeaway: The case comes down to a choice between allowing plaintiffs to openly manipulate CAFA's jurisdictional requirements, as well as scaling back the "master of the complaint" rule.

Prediction: I hope Justice Kagan writes the majority opinion. She reminded the defendant that there are two better options than requiring removal at this time. If the case is worth far more than $5 million, then the plaintiff is not an adequate representative of the class. If the plaintiff tries to play around once back in state court and get more than $5 million, then the defendant can remove again.

By Associate Professor Douglas NeJaime

This op-ed originally appeared in The Advocate.

The Supreme Court has decided to hear two cases relating to marriage equality. The first, United States v. Windsor, raises the constitutionality of section 3 of the federal Defense of Marriage Act, which denies federal recognition to same-sex couples' marriages. The second, Hollingsworth v. Perry, involves the constitutionality of California's Proposition 8, the state constitutional amendment banning marriage for same-sex couples. After the court's announcement, many commentators and some LGBT activists speculated that the court's ultimate decision in the cases would bring the end of marriage-based discrimination against same-sex couples. Some expect the justices to extend the fundamental right to marry to same-sex couples. Others are focusing on equal protection, anticipating a ruling that sexual orientation classifications merit heightened scrutiny. Such a decision would immediately cast doubt on any form of sexual orientation discrimination, including the marriage prohibitions that a vast majority of states maintain.

But this might all be wishful thinking.

Yes, the court might have taken the Windsor case because the Second Circuit Court of Appeals applied heightened scrutiny to sexual orientation classifications, whereas the First Circuit's Gill v. Office of Personnel Management decision applied only rational basis review. But, more likely, the court might have taken Windsor and not Gill because all nine justices could participate in the case. It was widely believed that Justice Kagan would have recused herself from Gill given her role in the Obama administration during deliberations regarding that case.

[Read the complete story here.]

By Associate Professor Doug NeJaime

On November 7, 2012, voters in Maine, Maryland, and Washington became the first in the country to approve same-sex marriage at the ballot box, ending a long-running streak of popular votes against marriage equality. On the same day, voters in Minnesota rejected a constitutional amendment that would have prohibited marriage for same-sex couples — something California voters failed to do four years ago. Now that the popular vote has swung the other way, it is not simply the political calculus that has changed but the legal landscape as well. For opponents of same-sex marriage, their streak at the ballot box has supported their arguments against judicial intervention in favor of marriage equality. With these recent results, it becomes increasingly difficult to paint the judiciary — and the US Supreme Court in particular — as an overreaching, out-of-touch institution on the question of same-sex marriage. This new dynamic comes just as the Supreme Court prepares to consider the issue. The Court will soon announce whether it will review cases striking down the federal Defense of Marriage Act (DOMA) and California's Proposition 8.

The entire piece is available on Jurist's Forum. Read the complete piece.

By Associate Professor Kevin Lapp

Moncrieffe v. Holder, argued in mid-October before the United States Supreme Court, involves a non-citizen who pled guilty in Georgia state court to misdemeanor possession with intent to distribute 1.3 grams of marijuana (about half the weight of a penny) with no evidence that he received any money in exchange for drugs. Federal law likewise considers possession with intent to distribute such a small amount of marijuana without remuneration to be a misdemeanor offense. Knowing those two things, you'd probably puzzle at the notion that the government is seeking to classify Moncrieffe as an "aggravated felon" for purposes of deporting him. But in the Wonderland world of immigration law, that is just what is happening.

The issue in Moncrieffe v. Holder is whether Moncrieffe's state misdemeanor drug possession offense constitutes a "drug trafficking aggravated felony" under federal law. Longstanding precedent, and recent Supreme Court case law, says that courts should apply what is called the categorical approach to answer the question. That approach involves determining the minimum conduct that is necessarily established by the state conviction, and prohibits looking into anything behind the conviction, such as underlying facts or possible alternative offenses that could have been charged. If the minimum conduct of the state crime is necessarily equivalent to a felony under federal narcotics law, then even a state misdemeanor conviction becomes an "aggravated felony" for immigration purposes. If it is not necessarily a federal felony (because the state crime captures conduct that could be either a federal felony or misdemeanor), then the categorical approach says that it is not an aggravated felony.

Moncrieffe's state misdemeanor marijuana offense does not require proof of any minimum amount of marijuana, nor does it require proof of remuneration. As such, it criminalizes the social sharing of small amounts of marijuana as well as the distribution of larger amounts. Because the state crime encompasses conduct that would clearly be a federal misdemeanor, Moncrieffe argued that the categorical approach means that it is not necessarily equivalent to a federal felony and should not be considered an aggravated felony. The upshot is that he remains deportable, but has an opportunity to seek relief from deportation.

Professor Kimberly West-Faulcon submitted an amicus curiae brief on behalf of the respondents in Fisher v. Univ. of TX at Austin.

In it, she wrote:

This brief explains how social science research undermines the common misconception that black applicants must be receiving "preferential" treatment and that the magnitude of the so-called "preference" is large on the basis of a casual numerical comparison of the average test scores of black admits as compared to white admits. It also explains that "the gap" in black-white group average scores on traditional mental tests, while still in existence, has been narrowing for several decades. The brief describes the relevance of contemporary research finding that theoretically-improved and updated versions of such tests have been shown to narrow the black-white average score gap presumably because they are based on more theoretically robust and more outcome predictive theories of intelligence. Such research calls into question petitioner's allegation that UT's minimal consideration of race as a factor in admissions violates her Fourteenth Amendment constitutional rights because she is Caucasian.

Read the complete brief.

By Associate Clinical Professor Jessica Levinson

[This op-ed originally appeared on The Huffington Post.]

Hello, my name is Jessica. I will be stealing your valor. Well, I may not actually pilfer your valor, but thanks to the Supreme Court, I can if I so chose.

Much, if not all of the recent news coverage of the Supreme Court has understandably focused on the court's decision to uphold President Obama's landmark healthcare law. Reporters and commentators have largely failed to cover another decision that came out on the last day of the 2011-12 term.

In a 6-3 decision, the court told us to say goodbye to the 2005 Stolen Valor Act. That Act made it a crime to falsely claim military awards or decorations. The court ruled that the Act is unconstitutional because it contravenes the First Amendment. Thanks to the Supreme Court disreputable men everywhere will have to search for a new pickup line when barhopping by military bases.

By Associate Professor Aaron Caplan

The Stolen Valor Act is a federal statute that made it a crime to falsely say that one had received a military medal, even if that false statement was not made as a part of any scheme to counterfeit or defraud and even if no one believed the statement. In United States v. Alvarez, a 6-3 majority of the Supreme Court agreed with the 8-1 majority of my First Amendment students that the Act violates the constitution. The government has power to punish lies that cause concrete harms (such as fraud, defamation, or perjury), but it may not punish lies simply because they are distasteful. The proper response upon hearing distasteful lies is to counter them by speaking the truth.

I believe - like a majority of my students - that the Court decided this case correctly, but the reasoning used by a majority of Justices has the potential to establish constitutional standards that are less speech-protective than meets the eye. To begin with, there was no majority opinion. The four-justice plurality opinion by Justice Kennedy (joined by Roberts, Ginsburg and Sotomayor) was joined by a two-justice concurrence by Justice Breyer (joined by Kagan). Both opinions seemed to readily accept the notion that the government had a valid interest in controlling what people think about military medals as a means to protect the "integrity" or reputation of the government's chosen symbols. As I have written previously, I do not think this kind of mind control is a legitimate government interest at all, let alone a strong one. In this, I seem to be outvoted my all nine members of the Supreme Court (and for what it was worth, all of my students).

By Professor Brietta Clark

Today, the Supreme Court upheld the most controversial part of the Patient Protection and Affordable Care Act - the individual mandate. The mandate requires citizens to purchase health insurance by 2014 or pay a tax, unless they qualify for an exemption. The mandate was held to be a constitutional exercise of Congess's tax and spend power. Because the mandate was held constitutional, there was no need to consider whether the other private insurance reforms would survive: they do.

The court also considered a challenge to the Medicaid expansion provision: this provision expands eligibility to all adults who fall below a certain income level. Many states like this expansion because it is generously funded by the federal government - 100% in the beginning. Other states challenged it because states that refuse to comply with these new eligibility requirements risk losing existing Medicaid funding. The court seemed to create a compromise in this case. It upheld the expansion program (and importantly the opportunity to get new federal funding to subsidize the expansion for states that want to participate), but it held that states must be given a "genuine choice" to decide whether or not to participate. This means that the federal government cannot take away states' existing funding if they do not want to participate in the expansion. Unfortunately, this means that there will be even more inconsistency among the different states in terms of the quality of and access to health care for our most vulnerable citizens.

This Supreme Court's opinion is very long, and it will likely take legal scholars some time to understand and debate the full implications of this decision for the federal government's power to create and regulate social welfare programs, as well as for constitutional law more generally. For now, though, I think the significant practical implications of this decision for health policy are clear. The Affordable Care Act is the most comprehensive attempt to increase health care access through insurance expansion, and to try to reduce health inequity for women, people with disabilities, and racial and ethnic minorities, that we have seen in decades. I also think it is safe to say that in this polarized environment this could be our last chance to try to fix the healthcare system in a meaningful way for many more decades. No one can say for sure whether this reform will work, but because of the court's decision, we will at least get the chance to find out.

That said, I will continue to follow health reform closely, as will other health care advocates and legal scholars, because there are still many questions to be answered. President Obama's health reform law offers promises of affordability, meaningful health benefits, accessibility to quality providers, and fairness in how benefits are allocated, but whether such promises will be realized depends on how public programs are administered and how closely private insurers are regulated. To follow progress on implementation, check out my blog. For the full Supreme Court opinion, click here.

By Associate Professor Aaron Caplan

In an anti-climactic conclusion to a long-running free speech battle, the U.S. Supreme Court unanimously ruled in Fox Television Stations v. FCC (2012) that the federal government could not take action against a TV network for failing to bleep out "fleeting expletives" from excited celebrities during awards shows in 2002. It was not a free speech decision. Instead, the court found that the FCC violated due process by failing to give broadcasters fair warning, at the time of these broadcasts, that isolated profanity would violate decency regulations. As it happens, the FCC did provide such a warning in 2003, but last week's Supreme Court decision declined to rule on whether FCC actions against subsequent broadcasts would be a free speech problem.

A curiosity was hidden near the end of the opinion. One government argument was that the FCC could not have deprived Fox of an interest in liberty or property without due process of law, because the FCC never imposed a fine. Instead, it placed a document in its files stating that Fox had violated decency regulations and let it off with a warning. The Supreme Court concluded that this wrist slap from the FCC implicated a constitutionally protected interest, because the existence of a past violation might be the basis for a larger fine in the event of a future violation. Fair enough. But then the court gilded the lily:

By Visiting Associate Clinical Professor Jessica Levinson

This op-ed originally appeared in the May 30, 2012 edition of the Daily Journal.

Much of the backlash around the Supreme Court's much-maligned 2010 decision in Citizens United v. FEC focuses on the battle cry that "corporations are not people." Well, as with all things, corporate personhood is a complex area of the law that boils down to sometimes they are, and sometimes they aren't. The substance of the Citizens United decision essentially comes down to two conclusions, both of which I believe are ill conceived.

First, the thin majority found that speaker-based identity restrictions are impermissible. Put another way, if the government cannot prevent individuals from spending money on independent expenditures, then neither can it prevent corporations from doing so. For a variety of reasons, which I have detailed in a recent law review article, I believe that in the campaign finance arena corporations should not, in fact, be treated as identical to individuals. While corporations are certainly made up of people, they are artificial entities created with numerous state-created benefits.

Visiting Associate Clinical Professor Jessica Levinson's latest law review article, "We the Corporations?: The Constitutionality of Limitations on Corporate Electoral Speech After Citizens United," was cited in an amicus brief filed with the Supreme Court in American Tradition Partnership v. Bullock.

The issue in the case is whether Montana must follow the Court's holding in Citizens United, which struck down a federal ban on corporate electioneering communications.

Read the law review article here.

By Associate Visiting Clinical Professor Jessica Levinson

This op-ed originally appeared in the April 4, 2012 edition of the Daily Journal.

We the Corporations?

While the Republican presidential nominee and the ultimate victors of contests throughout the nation may be unknown, one thing is clear: the 2012 election will break campaign fundraising records. This is the first presidential election since the Supreme Court's fateful decision in Citizens United v. FEC. Since that decision, there has been a proliferation of campaign spending, most notably by so-called "Super PAC" organizations. These are independent-expenditure only political committees. Republican-backed Super PACs have already raised $81 million to date this election cycle. (Interestingly, only 17 individuals account for contributing nearly half of that amount to Super PACs.) Because of regulations promulgated under the internal revenue service, contributions by certain non-profit organizations to these Super PACs can remain undisclosed, and therefore hidden from public view.

So how did we get to this place of largely anonymous, largely unlimited campaign spending? The Court's decision in Citizens United, while surprisingly incremental in some ways, opened the doors for the record-breaking spending we are now seeing. In Citizens United, the Court essentially came to two conclusions. First, the Court said that speaker-based identity restrictions are impermissible. This means that if a restriction cannot be validly imposed on an individual, then it similarly cannot be imposed on a corporation. Second, the Court found that independent expenditures are not corrupting. So go ahead and spend $100 million in support of your favorite candidate (or against that candidate's opponent). As long as your expenditure is "independent" it cannot corrupt, according to our nation's highest court.

By Professors Lee Petherbridge & David Schwartz

Legal scholarship has been under sharp attack, particularly when it comes to the role some believe it should play in support of the legal profession. In recent remarks, Chief Justice John Roberts explained that he does not pay much attention to it, reportedly stating that legal scholarship is not "particularly helpful for practitioners and judges." Moreover, Chief Justice Roberts is not alone in his criticism. Judge Harry Edwards has characterized legal scholarship coming from "elite" law faculties as "abstract scholarship that has little relevance to concrete issues, or addresses concrete issues in a wholly theoretical manner" and offered his impression that judges, administrators, legislators, and practitioners have little use for much of the scholarship.

[Click here to continue reading about the findings of their study at Cornell Law Review's Legal Workshop.]

By Associate Professor Aaron Caplan

When can the government punish liars? The question is being debated today in the Supreme Court, as it hears oral arguments in United States v. Alvarez. In this case from Southern California, the defendant said during a public meeting that he had received the Congressional Medal of Honor. He hadn't. The government prosecuted under the Stolen Valor Act of 2005, which makes it a federal crime for any person to "falsely represent himself or herself, verbally or in writing, to have been awarded any [military] decoration or medal" -- even if no medals or related documents are counterfeited, and even if no one is financially harmed or suffers other personal injuries as a result of the false statement. It would be constitutionally acceptable for the government to prosecute someone who told this or any other lie as part of a scheme to defraud others. But in this case, the defendant's bogus boasts were not used to cheat anyone, but only to scratch some inner itch within his own personality. As it happens, his lies were quickly and publicly exposed, and he was ostracized by his community. Alvarez's behavior was certainly undesirable, but may he be sent to prison simply because society considers his lies morally objectionable?

I previously wrote about Alvarez for the American Constitution Society blog in 2010 when the Court of Appeals for the Ninth Circuit ruled 2-1 that the law was unconstitutional. Last fall, I asked nine students in my First Amendment class to sit as their own Supreme Court, applying existing free speech precedents to this novel situation. As a teacher, I was hoping that the class would be evenly divided to allow a lively classroom debate. There was plenty of debate, but in the end my justices reached a strong majority position -- by an 8 to 1 margin -- that the law was unconstitutional. They reasoned that the Stolen Valor Act punishes speech that does not fall into any of the narrowly defined categories of less-protected speech where the government is allowed to punish based on content. False statements that are part of a scheme to defraud are one proscribable category. False statements that damage another person's reputation (defamatory speech) are another. But my students overwhelmingly rejected the idea that these and similar categories were merely examples of a broader category of false statements in general. These students saw a great danger in allowing the government to decide what counts as the truth, unless such a judgment is required to redress an identifiable harm to others that the speech caused. Governmental action against speech is not justified merely because the speech is offensive to many (or most) people. They noted the historically-proven risk that such laws could be used against the government's political opponents, and argued that the truthfulness of Alvarez's speech should be judged in the marketplace of ideas -- which it was -- and not in a criminal courtroom.

A few months after our in-class exercise, the Court of Appeals for the Tenth Circuit issued a 3-0 decision in United States v. Strandlof that disagreed with the Ninth Circuit decision in Alvarez. My dissenting student was elated that his position was now supported by four out of the six federal appeals court judges who had considered the case. We will learn later this year whether the U.S. Supreme Court will dare to disagree with the collective judgment of a majority of my Loyola students.

By Professor Lauren Willis

This appeared on the Huffington Post.

The official question presented in the Supreme Court case Freeman v. Quicken Loans is whether the Real Estate Settlement Procedures Act (RESPA) "prohibits a real estate settlement services provider from charging an unearned fee only if the fee is divided between two or more parties." The real question presented is whether the price people pay for obtaining a mortgage must be transparent, a price tag like any other.

RESPA says: "No person shall give and no person shall accept any portion, split, or percentage of any charge made or received for the rendering of a real estate settlement service in connection with a transaction involving a federally related mortgage loan other than for services actually performed."

Some courts have held that this only prohibits kickbacks, such as when a broker (or loan officer, if the borrower is dealing directly with the lender) selects a title company for the borrower, the borrower pays the title company a $2,000 fee at closing, and the title company gives the broker or lender a $500 cut of that fee. Other courts have held that it also outlaws (1) bogus fees, such as when a broker or lender charges a $500 "loan discount fee" but then does not give the borrower any discount on his loan's interest rate, and (2) hidden overcharges, such as when a broker or lender tells the borrower that the "title inspection fee" is $2000 but the title company only charges $1,500 and the broker or lender pockets the difference.

When Congress enacted RESPA, the kickback scenario was a major concern. Therefore, in the subsection of the statute preceding the one quoted above, Congress prohibited giving or receiving "any fee, kickback, or thing of value" in exchange for referring business to a real estate settlement service provider. Having already prohibited kickbacks, Congress clearly intended the subsection prohibiting charges for services that were not actually performed to prohibit something other than kickbacks.