January 2012 Archives

January 31, 2012

Jessica Levinson Summary Judgments Blog.jpgBy Professor Jessica Levinson

When people pose questions like, "Do you want to save our democracy? Our environment? Our schools?" I either answer "no" or keep walking. It is signature gathering time in California, and most of us have experienced that awkward moment when we are approached by an energetic, and often aggressive, petition gatherer. Inevitably the signature gatherer poses the type of question that would seem unimaginable to answer in the negative. And yet, I do, if I respond at all. Why?

The more I think about and study the initiative process, the more I feel committed to the idea that I will not sign petitions for ballot measures. I say this with full awareness of the fact that I am and have been a strong proponent of the independent redistricting commission, which was created by a ballot initiative. I have struggled with the idea that perhaps initiatives should only affect governmental processes such as redistricting, term limits and campaign finance laws. The problem with that approach has played out thanks to our term limit law.

So do not get me wrong, I think at least a portion of these proposed ballot initiatives would support worthwhile ideas or causes, I just do not think they should be made into the law through the initiative process. (The problem, of course, is that some of these ideas may never be enacted via the legislative process as this is a representative democracy, and frankly, that is what happens). In addition, many -- far too many -- of these proposed ballot initiatives sound like great ideas until one actually reads the text of the proposed law.

[Click here to continue reading Levinson's commentary on KCET.org]

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January 26, 2012

Maxwell L. Stearns, Marbury Research Professor of Law at the University of Maryland School of Law spoke on "Direct (Anti-)Democracy" as part of Loyola's Faculty Workshop Series.

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January 25, 2012

Jessica Levinson Summary Judgments Blog.jpgBy Professor Jessica Levinson

Dear Citizens United,

Happy birthday. I won't wish you many happy returns of the day. I both hope there aren't many more birthdays, and if there are, I trust they won't be happy ones, at least not for democracy.

But congratulations, you've made it, against all odds. You started as a relatively narrow little case, asking only whether a non-profit corporation could use general treasury funds to create and promote a hit piece against then-presidential candidate Hilary Clinton. You, Citizens United, merely asked the Supreme Court to find the now-vanishing McCain-Feingold law could not be validly applied to you.

But then a funny thing happened on the way to that narrow decision, the Supreme Court decided to ask its own question. The Court apparently was not particularly concerned with centuries of tradition which dictates that they resolve the questions asked by the parties, as opposed to asking themselves a question they wish to answer.

So the Supreme Court sent you back, and asked for more information on whether McCain-Feingold could validly be applied to any corporation. You'll forgive my lack of surprise when I discovered that the Court decided to answer its own question in the affirmative. As so many of us know by now, the Court ruled that for purposes of campaign finance restrictions corporations must be treated as identical to people. If a restriction cannot be placed on a person, then it cannot be applied to a corporation. The Court also held that expenditures -- no matter how large -- made independently of candidates have no potential for corrupting candidates. I'll pause here for laughter.

[Click here to continue reading Levinson's commentary on the Huffington Post.]

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January 23, 2012

Levenson2.jpgBy Professor Laurie Levenson

Last week, the United States Supreme Court decided Maples v. Thomas, 565 U.S. ___ (2012). Technically, the case was about whether Cory Maples, who had been convicted of murder and sentenced to death, would be able to overcome a procedural hurdle in the federal habeas corpus laws and seek relief in federal court. The problem arose when Maples' pro bono lawyers from the prestigious law firm of Sullivan & Cromwell abandoned him, causing him to miss the deadline for appealing the denial of his state habeas corpus petition.

The Supreme Court unquestionably reached the right result when it ruled that there was cause for the procedural default and that Maples' lawyers' blunder should not undermine his ability to seek habeas relief. However, what was most interesting about the decision was not the technical legal analysis. It was the language Justice Ginsburg used to emphasize why the Court would be ruling the way it did.

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January 19, 2012

Goldmanblog.jpgBy Professor Jay Dougherty

On Jan. 18, the Supreme Court issued its highly anticipated decision in a case challenging the constitutionality of 17 U.S.C. ยง104A, which restored copyright to millions of foreign works and granted federal copyright to pre-1972 foreign sound recordings. As the Court did previously in Eldred v. Ashcroft, upholding the constitutionality of the 1998 Copyright Term Extension Act that extended all existing copyrights for 20 years, it exhibited great deference to legislative decisions as to the extent of copyright, notwithstanding the constitutional language that appears to limit legislative power to grant copyrights in order to "promote the progress" of knowledge and only for limited times. The plaintiffs, orchestra leaders and others who had relied on the public domain status of various foreign works argued that, unlike the CTEA, the restoration statute removed works from the public domain. The Court rejected their arguments. According to the majority, Congress can accord copyright protection in circumstances that do not elicit the production of new works of authorship--it is the system of protection generally that must promote progress. The government argued here that it benefits U.S. authors for the U.S. to more rigorously comply with its copyright treaty obligations, even if the new law did not elicit creation of new works (or accord any protection to U.S. works). Because the restored foreign copyrights would not last any longer than they would have, had they not entered the public domain in the first place, the statue did not violate the constitutional limited times restriction any more than the CTEA did.

Perhaps more significantly, the Court clarified the class of copyright legislation that would alter the traditional contours of copyright and thus be subject to First Amendment scrutiny. Clearly, copyright laws "abridge speech," in a sense. In Eldred, the Court had rejected a First Amendment challenge except in cases where legislation alters the traditional contours of copyright. This was because copyright law contains its own internal protections of free speech interests, namely the exclusion of copyright protection for ideas and the fair use defense that permits the use of another's copyrighted expression in some situations, e.g. for purposes of commentary or parody. A panel of the 10th Circuit Court of Appeals earlier in the development of this case had interpreted the USSC's language such that a law that removed works from the public domain would also alter the traditional contours of copyright. After all, the traditional contour of copyright protection is that works receive protection until they enter the public domain, but can thereafter be freely used by anyone. In the new decision, the Court clarified that only legislation that impacted the denial of copyright for ideas or limited fair use would alter traditional contours and require stricter First Amendment scrutiny.

[Read a longer piece of commentary on the history of the case and the oral argument before the Supreme Court last fall.]

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January 18, 2012

goldberg - thumbnail.jpgBy Professor Charlotte Goldberg

An aging music legend, Frankie Valli, suffers from heart problems. He decides to buy a $3.75 million life insurance policy so his wife and three children will be taken care of in case of his death. To avoid probate, he names his wife Randy as "owner" of the policy. The premiums on the policy are paid from community property funds. Instead of Frankie dying, Frankie and Randy divorce. At the time of their trial, the life insurance policy has a cash value of $365,000. The major legal question in the case is whether the policy is community property because it was purchased with community funds or whether the policy is wife Randy's separate property because the policy is in her name. If the policy is community property, each spouse owns one-half. If the policy is wife Randy's separate property, it belongs to her exclusively.

The trial court in the case determined that the policy was community property. The Court of Appeal reversed and found the policy was wife Randy's separate property. The Supreme Court has agreed to review the case, which has generated interest in both academia and in the Bar. The case represents a classic clash between community property concepts and common law title doctrine.

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January 17, 2012

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Professor Lee Petherbridge is involved in a debate on PENNumbra, a University of Pennsylvania Law School project (originating with their law review) that hosts debates between scholars on current controversies. He and Professor Jason Rantanen of the University of Iowa College of Law have asserted that despite its stated goal to stimulate innovation and job creation, the America Invents Act (recent patent reform legislation) may well do just the opposite. In response, Professor Kesan (Illinois) examines other sections of the Act, arguing that they provide more reason to be optimistic.

In the piece, the professors argue that:

"All rules are distortive. In perhaps no instance is this idea more true than when it comes to the patent system. In a very fundamental sense, the system is nothing more than a set of rules imposed for the very purpose of affecting the behavior of economic actors. Like so many other rules, it has a laudable purpose: the desire to efficiently stimulate invention and innovation.

The purpose of the newly enacted Leahy-Smith America Invents Act (AIA) is to rearrange the rules of the patent system and thus to create a new and different set of benefit and cost possibilities for economic actors. Pub. L. No. 112-29, 125 Stat. 284 (2011) (to be codified in scattered sections of 35 U.S.C.). Unfortunately, the changes in benefits and costs worked by the AIA seem tailored to do two things: (1) discourage the patent-driven incentive to innovate, and (2) protect market power. This suggests the AIA may have a negative effect on American competitiveness and job creation, a disappointing outcome given that Congress's express purpose in enacting the law is to promote technological development and protect the rights of small businesses and inventors."

Read the complete debate on PENNumbra.

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January 12, 2012

MichaelWaterstone.jpgBy Associate Dean Michael Waterstone

A state task force in North Carolina recently recommended that victims of forced sterilization receive compensation. Today, the idea of the state medically taking away someone's right to procreate against their will seems impossible, even barbaric. But from the 1930s to the late 1970s, North Carolina, like 32 other states, used the now-discredited science of eugenics to justify mandatory sterilization of people with mental disabilities, criminals and other undesirables. The idea was to prevent those who were "unfit" from continuing "their own kind." All in all, more than 60,000 people in the United States were sterilized without their consent.

Why does this matter today? Happily, states do not do this anymore (although North Carolina's forced-sterilization statute remained on the books until 2003). Nevertheless, North Carolina's proposed action here is important for three reasons. First, it sheds light on a practice that is too often neglected in the history books. Reparations of this sort are politically difficult - no doubt, some citizens of North Carolina are wondering why their tax money should go to righting some wrong they were not a part of, instead of toward schools, roads, prisons and other needed areas. But when a state actively participates in an atrocity toward it citizens, it has a moral obligation to make amends and to ensure it never happens again. An action like this - sure to be controversial - puts this issue back in the public eye, and increases the likelihood that it will be a part of how people think about abuses of state authority, even when it is uncomfortable to do so. North Carolina should be lauded for taking steps to do the right thing here.

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January 12, 2012

levinson.jpgBy Visiting Associate Clinical Professor Jessica Levinson


This piece originally appeared on KCET.org.

Redistricting seems to be the one governmental process that can unite members of both aisles. And by unite I mean join together in fighting each other tooth and nail. I have previously detailed the numerous fights -- both at the courthouse and in the ballot box -- surrounding the newly drawn state legislative lines. Now comes word that a fight is brewing on the local level as well.

Valley leaders are asking for the creation of new city council maps. Specifically, representatives for the San Fernando Valley are urging the creation of six districts completely contained in the Valley. These districts would not stretch over the hill. Currently there are seven city council districts in the Valley. So why would they want fewer districts? Two of those districts stretch over the hill into West Los Angeles and Hollywood.

The creation of six districts totally contained in the Valley would therefore increase the voice of those living, as we say in L.A., "over the hill." This strategy makes sense, at least to those living in the Valley. A representative who has to consider the needs of constituents on both sides of the hill would likely be be less attuned to the needs of constituents in the Valley than someone representing a district wholly contained in the Valley.

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January 9, 2012

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By Associate Professor Justin Levitt

"Don't mess with Texas": this time, the Supreme Court should have listened. The Court has injected itself into a 10-gallon disaster that grows messier with every passing day. Today, the Court hears argument. If only it could slowly back out of the room.

The problem arises (again) from a Texas redistricting plan. Last cycle, Texas re-redrew a court's lines, causing Democrats to twice flee the state to gut a legislative quorum. This caused Tom DeLay to set federal law enforcement on their tail, which in turn earned Mr. DeLay a formal admonishment. The resulting districts were struck down under the Voting Rights Act; the Supreme Court found that they "took away the Latinos' opportunity because Latinos were about to exercise it."

This time around, the Texas legislature drew lines without calling in air support. Because of past discrimination, Texas is subject to section 5 of the Voting Rights Act; the state must "preclear" election-related changes to ensure that they don't make life worse for minority citizens. A change can't legally be implemented until it's precleared. Most jurisdictions submit section 5 changes to the Department of Justice, which has a relatively speedy procedure for assessing preclearance. The DOJ has precleared every statewide map that it's considered this cycle. Texas chose, instead, to go to a DC federal court.

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