November 2012 Archives

By Associate Dean Michael Waterstone

On Monday, the Senate will vote on the whether or not to move ahead with ratification of the United Nations Convention on the Rights of Persons with Disabilities. President Obama has already signed this treaty, and, as I have argued before, I believe the Senate should ratify it. I have published an op-ed with the Pacific Standard here on Republican opposition to ratification and why I believe it is flawed.

By Professor Jeffery Atik

I was entranced by the prospect of reading Annelise Riles' Collateral Knowledge, given my eclectic (some would say scattershot) interests. Riles delivers a sophisticated and insightful anthropological treatment of the management of various legal questions facing Japanese banks entering OTC swap transactions. Global finance, ethnography, tasty legal theory: what fun!

And yes, Riles pulls it off. She promises an "ant's-eye view" of these stories, consistent with traditional ethnographic method. While the original intended targets of her observation were Japanese bank regulators, she later realizes the 'back-office' personnel (including the lawyers overseeing the documentation of the transactions) were as central in the process of the law-making.

Riles examines two crucial points of tension in the swap practices of Japanese banks. The first is the utilization (under Japanese law) of the institution of collateral: the posting of property to secure repayment of a debt. The book's title, Collateral Knowledge, plays on this and other meanings of "collateral." All commercial lawyers understand how collateral should work: it should freely pass the pledged assets into the hands of the favored creditor in the event of a debtor's default. And so the mission of a bank lawyer (in this case, one dealing with a Japanese bank) is to assure his principals that these functional expectations are met. This is hardly a simple matter where (in an example given by Riles) the swap is between a Japanese bank and a UK bank, posted to their respective Cayman Island subsidiaries and involving Chinese and Singaporean currencies. The swap raises peculiar difficulties, as neither party knows ex ante whether it will be a net creditor or net debtor of the other -- and so both may need to post, maintain and adjust collateral supporting the transaction. The standard industry forms, drafted by British and American lawyers and routinely used by the Japanese banks, are "literally nonsensical" to the Japanese, according to Riles.

But the forms "work" -- in that they satisfy the lawyers, the banks and their regulators. The art of a back-office lawyer is completing the forms -- the invariable boilerplate, the prompted elections (such as which country's law should govern) and any special terms. Standardization is at work here -- but so too is the exercise of a lawyer's "aesthetic" sensibilities, knowing when the paper looks right. In fact legal certainty may not be a dominant consideration -- at least not in ordinary times. But Riles' fieldwork followed an earlier Japanese financial crisis that set off external anxieties about aspects of Japanese law.

By Professor Brietta Clark

Since election night people have been preoccupied with what the post-election polling reveals about America's electorate, particularly its shifting values and priorities and what this will mean for future elections. A recurring theme among commentators is that growing diversity played an important role for Democratic wins in the Presidential and Congressional races. According to a report by the Pew Research Center, Obama received the support of African Americans, Latinos, and Asian Americans by a wide margin. Women also played a prominent role in this election: they not only supported Obama by a wide margin, but were also instrumental in Democratic wins in the House and Senate. And a Gallup survey showed that voters who identify as gay, lesbian, or bisexual overwhelmingly supported President Obama.

Read the complete post on Professor Clark's Health Care Justice Blog.

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 Professor Jeffery Atik

So what would a Democrat central banker look like -- if there could be one? Resembling Paul Volcker, answers William Silber. That said, it is hard to recognize much in Volcker's policies marking him as a Democrat. Nixon did not trust him -- but that alone scarcely defines a Democrat. Volcker famously endorsed Barack Obama in the 2008 election -- but then so did Republican Colin Powell.

Silber adores Volcker -- which weakens Silber's ability to answer (or even ask) tough questions. It is clear that Silber believes Volcker saved the dollar -- and that he is a swell guy to boot. Pity poor Mrs. Volcker who spends an isolated life in a series of ratty apartments while her husband chases glory (in public service, mind you) rather than wealth. Neither Volcker nor Silber seem to realize what a lousy husband he was -- and Mrs. V. was too tactful to point this out.

The Silber account establishes Volcker's self-sacrifice -- and I suppose there's some foundation for it. Volcker spends many years as an underpaid public servant while having far more lucrative opportunities in the private sector. Yet one gets the sense that Volcker is simply more comfortable in the world of the Fed than he would ever have been in a bank. Generals are willingly generals -- there is something (glory? military music?) that draws them to their role. Their renunciation of wealth and a stable home-life only prove their ambition. While we should be grateful for their service, it is not clear that the generals are sacrificing anything. And so perhaps it is with Volcker.

By Associate Professor Aaron Caplan

Barack Obama's election -- and now re-election -- signal America's willingness to select as its leader a member of a historically reviled minority group. The group I refer to, of course, is constitutional law professors.

The President's familiarity with America's constitutional history crept into his Tuesday night victory speech, but perhaps at a frequency that only dogs or fellow con law professors could hear. Consciously or unconsciously, he echoed sentiments from a case studied in most First Amendment courses, Terminiello v. City of Chicago (1949). Terminiello was one of a series of important decisions involving civil rights and freedom of speech that arose from Chicago's tumultuous racial and ethnic tensions of the mid-20th century. As a proud Chicagoan, President Obama would certainly be familiar with this line of cases, which also includes Hansberry v. Lee (1940) (segregated housing), Beauharnais v. Illinois (1952) (hate speech), Gregory v. Chicago (1969) (civil rights demonstration), Organization for a Better Austin v. Keefe (1971) (protests relating to segregated housing), and Collin v. Smith (1978) (neo-Nazi parade).

In Terminiello, an angry crowd demonstrated outside an auditorium where a demagogue delivered a reactionary and anti-Semitic political speech. To avoid a riot, police arrested the speaker for disorderly conduct. At trial, the jury was instructed that a defendant's behavior "may constitute a breach of the peace if it stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance, or if it molests the inhabitants in the enjoyment of peace and quiet by arousing alarm."

The Supreme Court reversed the conviction. In its most widely-quoted passage, Justice William O. Douglas's majority opinion relied on a bit of verbal jujitsu to declare that the vices identified in the jury instructions were actually virtues: "[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger."

Justice Douglas's opinion in Terminiello echoed in this passage of the President's victory speech in Chicago:

Democracy in a nation of 300 million can be noisy and messy and complicated. We have our own opinions. Each of us has deeply held beliefs. And when we go through tough times, when we make big decisions as a country, it necessarily stirs passions, stirs up controversy. That won't change after tonight, and it shouldn't. These arguments we have are a mark of our liberty.

Professor Alexandra Natapoff's "Aggregation and Urban Misdemeanors" (Fordham Urban Law Journal, Vol. 40, 2013) was listed as "highly recommended" on Professor Larry Solum's Legal Theory Blog.

Professor Laurie Levenson was quoted in a Guernica Magazine story by Casey Michel titled, "California's Death Penalty Decision," published on November 5.

Levenson on what separates this proposition from previous attempts to repeal the death penalty:

"This round's not really about a morality issue--it's a cost issue," says Levenson. "The pitch this time [from the repeal camp] is that when we can't fund our schools, can't fund our highways, why are we funding this program that already has these exorbitant costs?"

To support Levenson's argument, Michel references Adjunct Professor Paula Mitchell's 2011 report on death penalty costs in California.

Michel writes:

"A report from 2011, authored by Judge Arthur Alarcon and Prof. Paula Mitchell, found that switching those on death row to life imprisonments without parole-as Prop 34 would accomplish-would save the state $170 million per year, tallied to $5 billion over the next two decades."

Levenson also spoke about proposition's chances of passing:

"I don't know what's going to happen, but this is the most traction I've seen the death penalty repeal get in decades," Levenson noted. "We can't shorten the process. We can't take shortcuts. There's too much at stake."

Read the full article here.

By Associate Professor Justin Levitt

In a recent New York Times "Campaign Stops" piece, I mentioned concerns about citizens undermining the integrity of the election by attempting to impose and enforce the "law of their gut" rather than the law on the books.

One prominent example concerns the concept of domicile. Domicile shows up in different ways in the election process, but the most common misunderstanding has to do with where people are eligible to vote. Recent reports reveal that voters have been challenged in several states based on claims that they aren't eligible to vote where they're registered. These challenges often reflect a common gut instinct -- but more seldom reflect the law.

In several states, organizations "empowered" by a national organization called True the Vote have announced research finding registrations subject to challenge based on their addresses. This isn't the first time that people have been challenged based on unwarranted assumptions about their addresses -- voter caging schemes, for example, are a version of this.

The True the Vote approach apparently starts by combing large databases, flagging (for example) addresses where more than 6 people are registered. Other flags may include people registered at colleges.

One problem with quasi-automated challenges like this is the quality of the data: "vacant" lots are sometimes not actually vacant.

But even if the data are accurate, they don't necessarily show ineligibility. Let's start with the street addresses listing six or more individuals. Most households are smaller than this, yes. But 1.7 million households -- disproportionately African-American and even more disproportionately Hispanic -- have seven members or more. And that doesn't include more than 36 million people living in apartment buildings, with 5 or more units at the same street address, or the 8 million people living in "group quarters" like dorms or military barracks. Some Americans live with their 2.5 children in single-family homes; many Americans don't.

That's just the start of the disconnect. It's possible for more people to be validly registered at a street address than actually live there at any given moment. That is, it may be entirely lawful for seven people to be registered to vote at an address that sleeps four.

If that seems crazy, that's because the standard for voter registration isn't always intuitive. Like most election laws, the legal standard differs from state to state. In some states, you're properly registered to vote wherever you consider "home" at the moment. In other states, you should be registered at the last place you lived that you didn't consider temporary. Other states' rules are different still.

The proper legal standard usually turns on intent, which makes it particularly tricky to assess proper registration with software. Let's say that I move to 123 Main St., intending to settle in at my new address indefinitely. I may leave someday, but there's no date I have in mind, and until then, I've left my old address behind. In many states, 123 Main is now my domicile: where I can legally register to vote.

Now let's say that I leave for some reason. It may be the same day that I move in, without unpacking a single box. I may be called up for military duty, or called away for a business trip, or simply travelling to renaissance festivals across the country. As long as 123 Main St. was a valid place for me to register when I arrived, if I don't establish domicile somewhere else, 123 Main St. would still be the legal place for me to vote.

That is, 123 Main would be my lawful registration address even if I were only present there for a few hours. 123 Main would be lawful whether it was a single-family house, an apartment, a college dorm, or a homeless shelter. It would be lawful even if someone else were now living in my former room at 123 Main -- yielding more voters registered than people physically present. And it would be lawful even if the building had been knocked down while I've been away -- leaving a vacant lot.

States' legal definitions of domicile can lead to situations that may seem unusual to a casual onlooker. It's why college students may be able to claim valid domicile for voting purposes either at their campus address or a prior address, depending on the states in question and the students' intent when they get to school. It's why members of Congress may be legally registered to vote "back home," even when "home" was sold decades ago. It's why it's not a stretch to believe that Mitt Romney was lawfully registered to vote for a year at his son's house, even with multiple other permanent homes in his name.

It's even one of the reasons why there may lawfully be more registered voters in a county than the number of eligible citizens counted there by the Census. Some loudly decry such "over-registered" counties as breeding grounds for fraud. As a gut measure, it has appeal. But -- for example -- military personnel who are overseas on Census Day are registered at their domicile, but not counted there by the Census. The gut measure ignores valid reasons why one list might not match up with the other, including those serving overseas. The law serves us better.

To be sure, people are sometimes listed on voter rolls where they do not belong, often as the aftermath of a real residential move. Portable registration systems that actually follow people when they move, rather than relying on new registrations on the front end and purges on the back end, would go a long way toward solving the problem. At the moment, regular list maintenance, with notice to the voter and safeguards for error, does a moderately good job at cleaning the rolls over time, without unduly jeopardizing the rights of legitimate voters who have quirky residential situations.

By contrast, last-minute challenges founded on data screens, without personal knowledge of a voter's intent, only serve to capture situations that seem unusual -- without any realistic ability to know whether that unusual is also unlawful. In a diverse country, we should all be wary of efforts that sloppily conflate the two.

Justin Levitt is an associate professor of law at Loyola Law School, Los Angeles, where he teaches Law of the Political Process. He maintains the website and blog "All About Redistricting" at redistricting.lls.edu.

By Associate Professor Kathy Trisolini

In the immediate aftermath of "Superstorm" Sandy, a number of articles appeared in the mainstream press with pundits asking how Sandy might affect the election. Aside from practical questions about the logistics of early voting, most pundits focused on how the candidates' responses could affect their respective public images. "Who would 'look like' a leader?" they asked. Yet the presidential election is much more important than just another issue of People magazine, a fact obscured by the excessive focus on image and how it affects the horse race.

Sandy is just another example of a changing trend in extreme weather events. Last summer, excessive drought damaged crops and stranded boats on the Mississippi; each summer we are setting new heat records and Arctic ice falls to historic lows. Human-caused climate change is altering the stable environment upon which we have relied in choosing where to live and deciding how to build our homes, how to lay out our infrastructure and how to develop our economy. This should be an election issue of the first magnitude.

Apparently under sway of the woefully mistaken notion that environmental protection and economic health are competing goals, the national Republican Party has decided that it is in its interest to take an extreme anti-science position on climate change. In fact, as Sandy should be making clear, our economic health (not to mention our personal safety) is highly dependent on stable climactic conditions. The economy is not thriving when the nation's airports are shut down, Lower Manhattan is under water, and millions of people are without electricity.