July 2011 Archives

July 29, 2011

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Adjunct Professor James Gilliam recently published an op-ed in the Ventury County Star. Below is an excerpt with a link to the entire piece.

Attorneys regrettably revive the 'gay panic' defense

It's a classic tactic when defending an indefensible crime: blame the victim, especially if that victim is gay.

The odious strategy is unfortunately common enough to have a name, the "gay panic defense," and it holds that a heterosexual man cannot possibly be expected to maintain his sanity when confronted with a same-sex advance.

While it has popped up as a justification for Matthew Shepard's 1998 murder and even, implausibly, as a reason behind the brutalization of gay patrons during a 2009 police raid of a Fort Worth, Texas, bar, it isn't generally successful.

Which is what makes especially depressing its recent appearance in the Chatsworth courtroom where 17-year-old Brandon McInerney is on trial for the 2008 shooting of his classmate, 15-year-old Lawrence King.

His defense attorneys say McInerney was so horrified by a request by King to be his valentine that he was driven, a day later, to bring a pistol to class at Oxnard's E.O. Green Junior High School and shoot King in the back of the head. While they admit he shot King, they told reporters he did it "in the heat of passion caused by the intense emotional state between these two boys at school."

Read the entire op-ed>>

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July 25, 2011

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A new study by Loyola Law School Professor Lee Petherbridge and Chicago-Kent College of Law Associate Professor David L. Schwartz details the impact of legal scholarship on the Supreme Court. The study, "An Empirical Assessment of the Supreme Court's Use of Legal Scholarship," is available for download on SSRN.

Abstract:
Derogating legal scholarship has become something of a sport for leading figures in the federal judiciary. Perhaps the chief antagonist in recent years has been none other than the Chief Justice of the U.S. Supreme Court, John G. Roberts Jr. His most recent salvo includes the claim that because law review articles are not of interest to the bench, he has trouble remembering the last law review article he read. This claim, and others by the Chief Justice, may represent the end of an uneasy détente concerning the topic of the utility of legal scholarship to the bench and bar. At a minimum, Justice Roberts's recent comments represent a vigorous invitation to a discussion, which this article accepts. To that discussion we contribute an empirical study that is based on an original and unprecedented body of data derived from every Supreme Court decision over the last sixty-one years. This article presents several surprising results and makes two major novel contributions. The first is evidence describing the amount and patterns of the Supreme Court's use of legal scholarship over the last sixty-one years. The second, and perhaps most striking contribution of this article, is empirical evidence on the nature and quality of the Court's use of scholarship. This article provides the first report, as far as we can determine, of evidence that the Supreme Court not only often uses legal scholarship, it also disproportionately uses scholarship when cases are either more important or more difficult to decide. It thus presents results strongly counterintuitive to claims that scholarship is useless or irrelevant to judges and practitioners. The article also discusses areas for future work.

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July 25, 2011

This op-ed was originally published by the levinson.jpg Daily Journal.

By Visiting Associate Clinical Professor Jessica A. Levinson

A small but well-publicized part of California's newly enacted budget, the so-called "Amazon tax," looks to be the catalyst behind California's next big ballot initiative battle. The law requires Internet retailers with a "physical presence" in the state to collect a sales tax from customers in the state and expands the definition of physical presence to include online retailers that have related companies or affiliates in the state. After the passage of the law, Amazon promptly cut ties with approximately 10,000 affiliates in the state.

Who would like this tax? Well, in addition to those hoping to raise revenues for the state (the state estimates that it could receive in the low hundreds of millions in tax revenues each year if residents paid taxes on online sales), anyone losing business to online retailers. Exhibit A: Wal-Mart Inc.

So what is an online retail giant to do? Since this is California, a resource-depleting two-front attack is the likely course.

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July 22, 2011

Doug NeJaimeAssociate Professor Doug NeJaime recently published an op-ed, "Same-sex marriage: Married but unequal," in the Los Angeles Times.

On Sunday, New York will begin issuing marriage licenses to gay and lesbian couples, further complicating the tangled legal mess of same-sex marriage in America.

Why does this complicate things? Consider what happens when legally married couples from New York move to, say, California. They'll see their marriages evaporate, based only on their sexual orientation.

Read the complete op-ed.

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July 20, 2011

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By Professor Laurie L. Levenson and Laura Lefeuvre ('13)

Lance Armstrong has gone on the offensive, but it is unclear whether his effort will have much of an impact in court. Armstrong's lawyer, the renowned Jon Keker, Esq., has filed a motion to hold the government in contempt for allegedly leaking grand jury materials, in violation of Federal Rules of Criminal Procedure 6(e). Armstrong cannot identify the specific source of the leak, but he offers evidence as to why the leak must be coming from the government's team. He then asks the court to have a hearing to explore whether there are grand jury leaks.

Violations of grand jury secrecy plague the criminal justice system and should not be condoned. However, there has never been a case where the court has granted a motion such as the one filed by Keker. At most, the court has entertained motions to dismiss grand jury indictments when there have been allegations of prosecutorial misconduct in the grand jury. Bank of Nova Scotia v. United States, 487 U.S. 250 (1988). Courts consider dismissing the indictment an "extreme sanction" and will only be used in "exceptional cases" where the defendant is prejudiced because of the misconduct. United States v. Myers, 510 F. Supp. 323, 328 (E.D.N.Y. 1980). Courts are also hesitant to impose sanctions because they do not want to unnecessarily interfere with the grand jury proceedings. Barry v. United States, 865 F.2d 1317, 1319 (D.C. Cir. 1989).

Armstrong and his team have found a credible vehicle to get their side of the story to the press. Yet, this motion is likely to have much more of an impact out of court than in court. If Armstrong does succeed in getting a government official held in contempt, he will not only be the leader of the pack in professional bicycling, but also a groundbreaker in the world of criminal law.

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July 18, 2011

This op-ed was originally published by the levinson.jpg Daily Journal.

By Visiting Associate Clinical Professor Jessica A. Levinson

The political blood sport, commonly known as redistricting, hit a fever pitch on June 10, when California's newly-minted independent redistricting commission presented draft maps to the public.

Simply put, every 10 years we count how many people live here, and then we draw legislative lines according to that demographic information. While this may not sound particularly spicy, determining who draws district lines and how those lines are drawn evokes a legal and political struggle of epic proportions. Political wonks, voting rights attorneys, and interested members of the public know that where district lines are drawn can dictate the composition and balance of power in the state legislatures and Congress.

In 2008, California voters approved Proposition 11, a Gov. Arnold Schwarzenegger-supported ballot initiative that took the power of drawing state legislative lines away from legislators. Instead of legislators drawing their own legislative lines, Proposition 11 provided that a 14-member independent redistricting commission comprised of five Democrats, five Republicans, and four Independents would draw district lines for the State Assembly, state Senate, and Board of Equalization.

The oft-repeated purpose of Proposition 11 was to create a system in which the voters chose their legislators, and not the other way around. California has long been the poster child for gerrymandered districts, which reflect a legislator's desire to draw herself a safe district, but not necessarily one that best represents demographic realities. Looking at the last lines drawn by the Legislature in 2001 perhaps best elucidates this phenomenon. In that year, the Legislature accomplished two rarities. First, they agreed on something. Second, they were successful at their stated purpose.

In 2001, legislators agreed to what some call the "incumbency protection program." The Legislature drew lines with a focused purpose, to retain power and create safe elections free of a dirty word known as "competition." This plan was a rousing triumph. But for lawmakers forced out because of term limits, incumbents have sailed through the last decade with little fears of individuals known as challengers.

The problem, of course, with the incumbency protection plan is that while it is a boon for legislators, it may not be quite so beneficial for constituents. The population is best served when lines are drawn to keep so-called "communities of interest" together.

California voters, perhaps mindful of the last 2001 redistricting plan, and certainly distrustful of one of the least popular groups in the state - legislators - passed Proposition 20 in 2010. Proposition 20 essentially asked California's independent commission redistricting to draw congressional district boundaries in addition to the district boundaries for the State Assembly, state Senate, and Board of Equalization.

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July 14, 2011

Miller-McCune recently praised Associate Professor Justin Levitt's All About Redistricting website in the story, "Website Demystifies Redistricting":

The once-a-decade reshuffling mandated by the Constitution now has a comprehensive source that helps to explain its complex details.

Justin Levitt, an expert on election law and a professor at Los Angeles' Loyola Law School has launched All About Redistricting, an interactive website that helps the average person understand all the intricacies of redistricting. With redistricting being a hot topic, and its fairness routinely questioned, the launch of Levitt's website is particularly timely.

Read the full story.

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July 8, 2011

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By Professor Michael Waterstone

With the passage of the UN Convention on the Rights of Persons with Disabilities, states across the world are thinking about how their laws and policies concerning people with disabilities comport with this new international standard. Although the United States was not a leader in the UN negotiations, and we have not yet ratified the Convention (although the Obama administration has signed the Convention and urged the Senate to ratify), one domestic based group has been an innovator in working with states on drafting, revising, and implementing disability laws.

This group is the Harvard Project on Disability ("HPOD"). Some nice profiles of their work can be found here and here. HPOD is working with governments and grassroots groups in countries across the world to help develop capacity and technical assistance. In so doing, it is training a new generation of advocates who have the capability to participate and lead a worldwide discussion.

Loyola Law School has collaborated with the Harvard Project on Disability on several projects. I have been fortunate to accompany team members from the Harvard Project on Disability to Vietnam and Bangladesh to assist in their work, with another trip to China planned in the Spring. It has been a transformative experience in my own life. I have seen how some of the most severely disabled, poorest, and most discriminated against people I have ever met can be the fiercest advocates, and rise above their circumstances with the goal of improving their own lives and those of future generations of people with disabilities. I have met government officials who truly would like to pass and enforce legislation which would make people with disabilities more fully members of the citizenry, and are working within their limited resources to do so. These experiences have reaffirmed my belief in international law - the UN Convention on the Rights of Persons with Disabilities has been a catalyst for change across the world, and has given advocates another important tool to use to get their governments to respond. And it has reminded me that what we do domestically matters - people all over the world look up to the United States on disability policy, and seek to replicate our successes and avoid our failures.

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July 1, 2011

This op-ed was originally published by the levinson.jpg Daily Journal.

By Visiting Associate Clinical Professor Jessica A. Levinson

This week, the U.S. Supreme Court took away the power of lawmakers on all levels of government to craft public campaign financing programs that best meet their needs. In Arizona Free Enterprise Club's Freedom Club PAC v. Bennett (aka McComish v. Bennett), Chief Justice John G. Roberts Jr., writing for a 5-4 majority, struck down the constitutionality of so-called "rescue" or "trigger" funds provisions. The case focused on Arizona's public campaign financing law, but has implications for jurisdictions throughout the nation.

Rescue provisions provide publicly financed candidates with additional taxpayer funds in the event that their privately financed opponents or independent expenditure groups spend over a threshold amount of money. One purpose of these provisions is to allow publicly financed candidates to remain competitive when they are faced with relatively high spending privately financed opponents, or independent expenditure groups that spend money against privately financed candidates or in favor of their opponents.

The Court's only analysis of public campaign financing programs came in its seminal 1976 decision in Buckley v. Valeo. The Buckley Court upheld the public campaign financing program at issue - which provided taxpayer funds for party nominating conventions, and primary and general election presidential candidate campaigns - finding that public financing can serve many important governmental purposes.

The Buckley Court famously found that the voluntary presidential public campaign financing program was "a congressional effort, not to abridge, restrict, or censor, but rather to use public money to facilitate and enlarge public discussion and participation in the electoral process, goals vital to a self-governing people." Therefore, public financing programs were seen to promote First Amendment values. In her dissent, Justice Elena Kagan, writing for the four-member minority, similarly echoed that finding, stating, "Arizona's matching funds provision does not restrict, but instead subsidizes, speech." The Buckley Court further held that in enacting voluntary public campaign financing for presidential campaigns, Congress acted to "reduce the deleterious influence of large contributions on our political process, to facilitate communication by candidates with the electorate, and to free candidates from the rigors of fundraising."

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July 1, 2011

California State Sen. Loni Hancock introduced legislationthis week banning the death penalty in California in part because of information contained in the "Executing the Will of the Voters?: A Roadmap to Mend or End the California Legislature's Multi-billion-dollar Death Penalty Debacle," a recently circulated law review article set to appear in a forthcoming edition of the Loyola of Los Angeles Law Review. It was written by Judge Arthur L. Alarcón, senior judge, U.S. Court of Appeals for the Ninth Circuit, and Paula M. Mitchell, an adjunct professor at Loyola Law School. Mitchell, a 2002 alumna of the Law School, is a cler to Alarcón.

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