November 2011 Archives

By Professor Michael Waterstone

Would you be comfortable taking a genetic test to see if you had a genetic predisposition to certain diseases? Even if your doctors tell you it might be medically useful, would you be concerned that the results might somehow come back to harm you? Perhaps your employer might find out the results, and, depending on the results, worry about your future productivity? Or would you be concerned that your insurance company could find out and use this information to raise your health insurance rates?

Ninety percent of Americans feel that taking genetic tests leaves them open to this type of genetic discrimination. In response to these fears, and based on the observations of doctors that patients were not getting genetic information for medical purposes and not participating in research studies, Congress passed the Genetic Information Discrimination Act ("GINA"), which prohibits discrimination on the grounds of a person's genetic information in employment and in the provision of health insurance. Although GINA has been on the books since 2008, a recent survey found only 16 percent of people surveyed knew its protections existed. As in all areas, law takes time to work its way into culture.

I recently attended a conference in Ireland on the need for a European framework to deal with the problems of genetic discrimination in Ireland, cosponsored by the Centre for Disability Law and Policy, National University of Ireland, Galway and the Burton Blatt Institute at Syracuse University. The audience was academics, policymakers and government officials. The chair was Justice John McMenamin of the Irish High Court, and Marian Harkin, a member of the European Parliament, was in attendance. The conference got a nice write up in the Irish Times.

By Professor Brietta Clark

The Supreme Court agreed to hear challenges to the Patient Protection and Affordable Care Act, the landmark health reform legislation signed into law by President Obama last year. The Supreme Court will consider several questions related to the constitutionality of the Act.

The first issue, and the one that has received the most attention so far, is whether the individual mandate is a constitutional exercise of Congress' power to regulate interstate commerce or to tax and spend for the general welfare. When the mandate goes into effect in 2014, it will require individuals to purchase insurance, unless they qualify for an exemption. This mandate raises a novel and important question about the scope of the government's power to require individuals to purchase a service from a private entity. So far two appellate courts (the Sixth and DC Circuits) have upheld the mandate based on Congress' power to regulate commerce, while the Eleventh Circuit held the mandate unconstitutional.

Read the complete post.

KPCC's Madeleine Brand Show will be covering the first year out of prison for Obie Anthony, the client for whom Loyola's Project for the Innocent secured a release on Oct. 4 after working on his claims since 2008. Students, under the direction of Professor Laurie Levenson and post-graduate fellow Adam Grant, drafted habeas claims and interviewed witnesses. Most recently, students participated in a September evidentiary hearing.

The complete story is at KPCC.org.

By Seth Weiner, co-director, Loyola's Center for Restorative Justice

The Loyola Law School Center for Restorative Justice (CRJ) partnered with LAW Project Los Angeles (LPLA) to host an Expungement Clinic on the Loyola Law School Campus on Friday, Nov. 11.

The CRJ is founded on the belief that human harm caused by crime must be healed by a criminal justice system that is more restorative than punitive; that victims and survivors of crime, including offenders who were themselves victimized and others harmed by crime, can never be healed by merely punishing offenders. The CRJ exists to help bring about a shift from a punitive to a restorative paradigm of justice in our society. LPLA conducts outreach, education and advocacy to give people the tools they need to navigate their job search with dignity, determination and hope after suffering a criminal conviction. The LPLA is committed to the belief that communities that work are communities that thrive.

Each year in California, close to a million people are convicted of a crime. About 83% of these offenses are for misdemeanors and about 17% are for felonies. Literally, millions of people in California are likely to be in need of legal advocacy when the try to enter the workforce with a criminal conviction. Unfortunately, in the arena of criminal records and work, resources are limited. There are few places that people can receive free legal assistance from advocates who are trained and knowledgeable in the area of employment and criminal records. Additionally, criminal records can create a barrier for people in search of housing.

I am pleased to announce that the Loyola of Los Angeles Law Review has just released its inaugural Supreme Court issue.

This issue is dedicated to Justice Stevens and includes letters from President Bill Clinton, Justice Ruth Bader Ginsburg and Justice Sonia Sotomayor, as well as letters and essays written by Justice Stevens' former clerks Susan R. Estrich, Michael J. Gottlieb, Abner S. Greene, Jamal Greene, Melissa Hart, Amanda Leiter, Gregory P. Magarian, Nancy S. Marder, David Pozen, Adam M. Samaha and Samuel Spital.

The inaugural foreword was contributed by Erwin Chemerinsky, and Bill Araiza and Matt Vega also wrote articles. Numerous Loyola of Los Angeles Law Review editors wrote case comments for this issue. We are proud of the contribution we believe this volume will make. If you would like a copy, please let me know.

--Professor Michael Waterstone, associate dean for research and academic centers

Two Loyola professors, Justin Levitt and Jessica Levinson, contributed to SCOTUSblog's recent forum on the effects of the Supreme Court's campaign-finance jurisprudence on the election. Their posts follow. Read the entire forum at SCOTUSblog.org.

Associate Professor Justin Levitt's post:

We don't yet know the electoral impact of Citizens United. The decision gave us a new wave of SuperPAC entities flaunting their new SuperPurchasingPower. But before Citizens United (excepting the 2002-2007 stretch from McCain-Feingold to Wisconsin Right to Life II), nonprofits could freely advertise that "Candidate Smith Hates Puppies," and could raise plentiful corporate money to do so. Citizens United removed only the additional ban on an explicit exhortation, of disputed incremental value, to vote the puppy-hater out. The difference is not insignificant: corporations can now strut, rather than slink, to the political marketplace. That makes fundraising easier and funding pools larger. Ultimately, though, these SuperPACs may represent merely a new vehicle for some very old influence.

Even if the new legal warmth for corporate political cash amounts to a difference in kind and not just degree, tangible electoral results need not necessarily follow. The money arrives just as the media market is splintering, making it more difficult for any sustained campaign to dominate any given informational channel. And as numerous failed candidates from the .01% have demonstrated, money may buy a seat at the table but does not alone guarantee victory. A deep American populist strain tends to resist massive expense by the few to persuade the many. There's a catch: the current disclosure regime does not meaningfully distinguish one from the other. For that, though, the blame thus far lies not with the Court (which has encouraged robust disclosure), but with Congress (which has not).

Associate Visiting Clinical Professor Jessica Levinson's post:

Citizens United has already had a deleterious affect on the electoral process. Public outrage surrounding the decision has only grown as corporations and moneyed interests have set up a shadow campaign finance system. Corporations can now give and spend nearly unlimited sums to help elect preferred candidates or defeat candidates they see as less favorable to their interests. Individuals increasingly feel that they cannot affect the outcome of electoral processes. Individual voices are being drowned out by the giving and spending of unlimited sums of money in the political marketplace. As a result voters feel disengaged in our representative democracy. The erosion of public confidence in a representative system of government is deadly serious.

Professor Katie Pratt discussed the tax consequences of sex-reassignment surgery at the Loyola of Los Angeles Law Review symposium, "LGBT Identity & the Law."

By Associate Clinical Professor Maureen Pacheco, assistant director of Loyola's Center for Juvenile Law and Policy

In People v. Caballero, the California Supreme Court will soon be determining whether a 16-year-old boy with schizophrenia may be sentenced to 110-years-to life for three counts of attempted murder. Rodrigo Caballero would not be eligible for parole until 2212, when he would be 122 years old. Advocates from around the country joined in an amicus brief filed on October 28, 2011, urging the Court to find that this "functional equivalent" of life without parole is precisely the sentence prohibited by Graham v. Florida (2010) 130 S. Ct. 2011. In Graham, the United States Supreme Court ruled that juvenile offenders cannot be sentenced to life without a meaningful and realistic opportunity for re-entry into society prior to the expiration of their sentence for non-homicide offenses. As Justice Kennedy wrote so eloquently,

The juvenile should not be deprived of the opportunity to achieve maturity of judgment and self-recognition of human worth and potential. . . . Life in prison without the possibility of parole gives no chance for fulfillment outside prison walls, no chance for reconciliation with society, no hope.