December 2010 Archives

December 29, 2010

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The editors of the Loyola of Los Angeles Law Review decidated their new issue (43 Loy. L.A. L. Rev. 711) to David P. Leonard, former associate dean for research, professor of law and William M. Rains Fellow at Loyola Law School, Los Angeles. David passed away in Feburary 2010 as a result of complications related to cancer. The issue features tributes from his colleagues and co-authors. Below is an excerpt from Dean Victor Gold's contribution to the issue.

David's essence, reflected in his writings and in his acts, was compassion. David's illness did not dull his compassion, it made that compassion stronger. In fact, his empathic understanding of the suffering of others was deepened by his own pain. He was afraid to die, but he did not withdraw into himself out of that fear. He was sad at the prospect of leaving those he loved, but he did not allow sadness to steal from him the chance to use what little time there was left to help them. And he suffered physically these last years, but through all the surgeries and treatments and side effects, he neverlost his ability to think of others.

Instead, a year into his illness he eagerly embraced a new job as Associate Dean. He relished this job because it gave him a fresh chance to help others, solve problems, and make peace. David always lived the values about which he so often wrote and taught.

Read the complete "In Memoriam" selection of tribute essays.

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December 22, 2010

KatiePratt.jpgBy Professor Katie Pratt

This op-ed was originally published in the Dec. 24, 2009 edition of the Los Angeles Daily Journal.

Nothing. Well, not exactly nothing--just nothing for me. What I really want for Christmas is for more holiday gift-givers to honor their family, friends and business contacts by making charitable contributions on their behalf instead of buying them material gifts. Members of my family recently exchanged the names of our favorite charities and agreed to make charitable contributions this year, in lieu of our usual Christmas gifts. Now I have started to think about how this could happen on a much larger scale.

Societal norms currently favor material gifts over charitable contributions to honor someone. A gift-giver often has no way of knowing whether friends, family, and business contacts would prefer a material gift or a charitable gift in their honor. Also, a gift-giver might be concerned about appearing cheap and selfish if she substitutes a tax deductible donation for a non-deductible material gift. When in doubt, gift-givers make the "safe" gift choice and give material presents. On the gift recipient's side, there typically is no easy, socially acceptable way of communicating to gift-givers a preference for a charitable contribution. This is especially true with respect to gifts for business associates, clients and professionals such as doctors.

The solution to these obstacles is an online charitable donation gift registry on which individuals and businesses could express their desire for donations to their preferred charities, in lieu of material gifts, by registering on the website. The registry would maintain a searchable list of the parties who have registered, with their preferred charities, and a list of charities, organized alphabetically by name and subject area and searchable by name or keyword. Gift-givers could search the registry to make donations honoring their friends, family, and business contacts. A fitting name for the registry would be the Gifts for Good Registry.

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December 15, 2010

David Glazier

By Professor David Glazier

This is another installment of Loyola's "11 on '11" series, in which Loyola Law School professors are weighing in on what they expect to be the biggest legal issues in their fields in 2011.

As my contribution to the ""11 on '11" discussion, I would like to identify one of the most significant challenges facing the U.S. government next year as being how to prosecute Guantánamo detainees for terrorism-related offenses. The issue is particularly key right now because the House of Representatives recently voted an outright ban on the transfer of detainees from Guantánamo to the United States for any reason. A logical consequence if this measure should become law would be that it would lead to more military commission trials.

Although the government has successfully prosecuted several hundred suspected terrorists in federal courts since 9/11 while securing only five extremely problematic "convictions" at Guantánamo, there is a persistent myth that military commissions are a superior forum for trying terrorists. This has been fueled recently by media spin on the federal court trial of Ahmed Ghailani in New York. Although Ghailani was convicted of a serious offense and will probably receive a life term when he is sentenced in January, both conservative critics and mainstream news outlets have chosen to describe the outcome as a "near acquittal" rather than the substantial victory it represents, particularly given the fact that the defendant was held in CIA black sites and subject to coercive interrogation, if not outright torture.

Despite popular perceptions to the contrary, it is the military commissions which pose much greater risk of failure in terrorism trials. Their serious legal flaws provide a number of grounds on which convictions can (and objectively should) be overturned while their ad hoc proceedings with rules made up on the fly have regularly proved embarrassing to the government and threaten to compromise larger national interests. I address these issues in much more detail in a draft article entitled "Still a Bad Idea: Military Commissions Under the Obama Adminstration."

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December 15, 2010

Brietta Clark

By Professor Brietta Clark

This is another installment of Loyola's "11 on '11" series, in which Loyola Law School professors are weighing in on what they expect to be the biggest legal issues in their fields in 2011.

Certainly the biggest health care story of 2010 was the passage of health care reform--the Patient Protection and Affordable Care Act (the "Care Act"). This reform was considered an historic feat--numerous presidents and legislators have tried and failed to overhaul the private health care system to guarantee universal access. While the Care Act likely will not achieve universal access, it is certainly the closest we've come and the most dramatic step toward this goal since creation of the Medicare and Medicaid programs in the 1960s.

So what could top that in 2011? Nothing. Health care reform will still be the No. 1 health care story of the year, except this time the question is: Will we get to keep it?

The president's signature on the Care Act was hardly dry before people began attacking the new legislation. The two most high-profile attacks are coming from Republicans in Congress, emboldened by their recent gains in the House, and constitutional challenges to the law in federal courts. While Republican threats to repeal the Care Act makes for great political theater, there is a pretty strong consensus that such a repeal would never make it to President Obama's desk. The constitutional challenges pose a more credible threat to reform because they present a novel question about the federal government's power to require citizens to purchase private goods. However, the long history of federal government regulation in the area of health care spending and insurance means that challengers will have an uphill battle in the courts as well.

A number of lawsuits have been filed challenging the reform law by states and private individuals. These suits attack the three most important parts of the Care Act that expand health care access: (1) the expansion of Medicaid to cover all adults who fall below a certain income by 2014 (existing law only mandates coverage for children, pregnant women and people with disabilities); (2) creation and regulation of state health care exchanges (the mechanism to ensure that consumers can buy insurance plans that comply with benefits, affordability, and nondiscrimination protections); and (3) the individual mandate (which requires the purchase of insurance that satisfies minimum requirements).

Several recent decisions give us important insight into the critical questions that must be answered in order to determine the fate of the Care Act.

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December 14, 2010

Levitt2.jpg By Associate Professor Justin Levitt

For my own contribution to the "11 on '11" kickoff of the Loyola Law School blog, I'd like to focus on redistricting. Every 10 years, the electoral districts of local, state and federal representatives are redrawn to keep pace with population movement. This cycle begins again in just a few months, as the Census Bureau releases the results of the national Census. Redistricting will then flare across the national consciousness for a few short moments, leaving scholars and pundits the remainder of the decade to interpret for a confused public the import of the process for the electoral landscape. For observers of the political process, redistricting is much like the medieval reappearance of a decennial comet--only with a lot more litigation.

At least three developments merit special attention in 2011. All revolve around the role that we, the people, have in redistricting.

One: The first is our latest attempt to assert control over the process. In most jurisdictions, legislators are in charge of drawing their own district lines or the lines they hope to inhabit. Because the composition of a district can have a direct and substantial impact on an incumbent's job security, legislators are naturally tempted to pick and choose voters based on personal or partisan reward or punishment. Districts have been drawn to include prominent donors or exclude promising challengers, notably including then-state Senator Barack Obama. When practiced by insiders with a stake in the game, the process can be the most vicious of political bloodsports.

Six states, however, have handed the redistricting reins to individuals who are not themselves elected officials. California is the latest of these, with a 2008 ballot initiative establishing a citizens' commission to draw state legislative districts, and a 2010 sequel extending the commission's authority to congressional lines. Such commissions may be justified by their capacity to prevent the worst conflicts of interest; as I've written, however, they are not political panaceas, and if mishandled, risk substantial downside to accompany the potential upside. California's commission will begin its inaugural run in just a few months. Many eyes will be watching to see whether this commission presents a model--or a warning.

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December 10, 2010

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Associate Professor Aaron Caplan spoke at Georgetown University Law Center on November 17, 2010 as part the conference titled "The Future of Don't Ask, Don't Tell". View the video. Caplan is co-counsel for Major Margaret Witt, an Air Force nurse who recently won reinstatement to the military after being discharged for her sexual orientation. The decision in her case established the important legal principle that the U.S. Constitution gives heightened judicial scrutiny to government actions that interfere with one's ability to form intimate relationships (including same-sex relationships). More information on the Witt litigation is available at the ACLU of Washington's website.

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December 9, 2010

Rick Hasen By Professor Rick Hasen

Professor Rick Hasen recently wrote this jurisprudence essay, which was published by Slate. It begins:

What's the central legacy of Bush v. Gore, which has its 10th anniversary next Sunday? Republicans see the Supreme Court stopping a lawless recount, while Democrats see a lawless court stopping a legitimate recount. Ten years later, commentators like Jeffrey Toobin protest that Bush v. Gore brought dishonor on the Court. But the Supreme Court's public legitimacy has not suffered.

The real lesson of the Florida fiasco (not merely Bush v. Gore) is about something else: the undermining of the public's faith in the fairness of American elections. This has triggered an ongoing war over their administration.

Full Story »

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December 8, 2010

David Glazier

By Professor David Glazier

There has been significant discussion over the past week about potential consequences of downloading and sharing WikiLeaks documents classified by the U.S. government, ranging from schools' cautions to their students about potential job consequences to government agencies restricting access or discussion. One thing missing from most of this discussion is the relevant law. It does not seem to be widely understood that the public exposure of these documents does NOT declassify them. WikiLeaks can disclose classified information, but it cannot declassify it. As a matter of law these documents retain the original classification assigned to them until such time as an executive branch official with legal authority to alter the classification formally does so, or until the period of time established for them to remain classified has expired. (Many classified documents will be marked with a specified duration for their classification). While it may seem like government agencies endeavoring to limit access to the WikiLeaks site or public discussion of the documents by their employees are engaging in politically motivated censorship, it is in fact consistent with their obligations to enforce the law.

The reason that the fact that these documents continue to be classified really matters is federal espionage law, particularly 18 U.S.C. sec. 793. Most subsections of that statute contain a mens rea requirement that the perpetrator intends or has reason to believe that the information they are accessing or distributing "is to be used to the injury of the United States." I would contend that a citizen accessing information online for the purpose of informing themselves about what the U.S. government has been doing does not satisfy this requirement and could not reasonably be prosecuted under those sections. It is not hard to see, however, that those responsible for leaking the information to WikiLeaks, and potentially those responsible for posting it--knowing it would almost certainly be accessed by foreign governments and groups with interests inimical to those of the U.S. might reasonably be prosecuted under these sections. But the way U.S. espionage law currently reads, any American who simply retains or forwards any of these documents could also find them self violating federal law.

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December 6, 2010

Doug NeJaimeBy Associate Professor Doug NeJaime

Associate Professor Doug NeJaime wrote about the potential implications of Perry v. Schwarzenegger in a post last week. He live-Tweeted today's oral arguments.

While the first hour of oral argument in Perry focused on the question of standing, the second hour moved on to the meat of the case: the substantive merits regarding Prop. 8 and same-sex couples' right to marry. And here all three judges seemed genuinely interested in a narrow framing of the case--as one about whether California has a legitimate interest in taking away the label "marriage" from lesbian and gay Californians while leaving intact a comprehensive domestic partnership regime that provides the rights and benefits of marriage. In other words, can the Ninth Circuit rule that Prop. 8 is unconstitutional without directly impacting marriage restrictions in other states? Indeed, even Judge Smith, the most conservative judge on the panel, pointedly asked Charles Cooper, attorney for the Prop 8 proponents, whether one can find that California lacks a rational basis for the law without also finding that other states lack a rational basis for their marriage bans.

This narrow framing does not appear to be the plaintiffs' strategy of choice. They have consistently argued that lesbians and gay men enjoy a fundamental right to marry under the federal Due Process Clause and that classifications based on sexual orientation should (like race) be subject to strict scrutiny under the federal Equal Protection Clause. Yet various amici have been pushing a more limited framing of the case. The judges appear to have taken these arguments seriously, pressing the lawyers on the complexities of the California-specific reading. Although Ted Olson, arguing for the plaintiffs, maintained his position in favor of a more sweeping ruling, he nonetheless indulged the judges' interest in the more limited reading and set out a compelling argument that Prop. 8 fails a less searching level of scrutiny. And Terry Stewart, representing the City of San Francisco, argued forcefully that the Ninth Circuit could find Prop. 8 invalid under rational basis review because it constitutes nothing more than a classification for its own sake.

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December 6, 2010

CesareRomano2.jpgBy Professor Cesare Romano

This is Professor Cesare Romano's second dispatch from the Conference of the Parties of the Climate Change Convention and Kyoto Protocol in Cancun. Romano reported from the conference last week.

Something that happened in Cancun, at the Conference of the Parties of the Climate Change Convention and Kyoto Protocol (COP/MOP), made me wonder whether and to what extent states enjoy the same human rights individuals do.

To cut a rather long story short, virtually all major modern multilateral environmental treaties are endowed with a body and a procedure to ensure states' compliance with their obligations under the agreement. These are the so-called "non-compliance procedures."

The UNFCCC and Kyoto Protocol have a non-compliance body, made of independent experts, and a procedure to handle cases of non-compliance. Recently, Croatia was found in violation of certain of its obligations by the Compliance Committee's Enforcement Branch. In Cancun, Croatia raised a very interesting question. Namely, it argued that it had a right to appeal the Enforcement Branch's report, asking the matter to be referred to the plenary COP/MOP.

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