December 2012 Archives

December 20, 2012

By Clinical Professor Samantha Buckingham

buckingham SJ.jpgSenator Durbin (D-Ill.) held the first-ever U.S. Senate hearing on the ending the "school-to-prison pipeline." Senator Durbin is the chairman of the Senate Judiciary Committee's Subcommittee on the Constitution, Civil Rights, and Human Rights. The Senator defined the pipeline as a "gateway" out of school and into the criminal justice system that functions to rob children of their "fundamental right to education." In essence, many children with cases in juvenile delinquency court are there because of issues that arose in public school; instead of sending children to the principal's office for misbehavior, students are now removed from the educational environment entirely. Statistics reveal that students of color, students with disabilities, and LGBT youth bear the brunt of school disciplinary measures that funnel them into the delinquency system. According to the most recent date from the Office for Civil Rights, more than three million students were suspended from school at least once during the 2009-2010 school year. Seventy percent of the students arrested for an event arising at school were Black and Hispanic. Unfortunately, Black males who have diagnosed disabilities are the group most often suspended.

In my experience both as a public defender and as a juvenile advocate through my work as the co-director of the Juvenile Justice Clinic at Loyola's Center for Juvenile Law and Policy, I have represented many children who have been arrested at school. My testimony to Congress described how the school to prison pipeline impacted three of the clients I represented through my work in the juvenile justice clinic. Law students were involved in each one of these cases, researching and writing motions, meeting with the clients, investigating incidents at the schools, and arguing before the court. The stories I chose to share with the committee demonstrate a few important concerns (though not every concern) about the school-to-prison pipeline: 1) children are punished twice, 2) timing is important to intervention on behalf of children with special education needs, and 3) increased police presence and increased funneling of children to delinquency courts for incidents occurring at public school can have a negative, stigmatizing effect.

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December 18, 2012

Atik_new_SJ.jpgBy Professor Jeffery Atik

Early Thursday morning (December 13) eurozone finance ministers agreed to take a first step toward establishment of a banking union. The agreement will grant supervisory powers to the European Central Bank (ECB) - at least with regard to the 200 or so largest banks headquartered in the eurozone. Large European banks located outside the eurozone (chiefly UK banks) will continue to answer to national authorities. With the accretion of these new powers and responsibilities, the ECB will come to resemble the Federal Reserve which functions as both as a monetary authority and as the chief regulator of large banks operating in the United States.

AtikBlog121812.jpgThe political accord reflects a compromise between the competing visions of France and Germany. France had desired a complete transfer of bank supervision to the ECB, effectively extinguishing national regulation. Under this approach all banks located within the eurozone would become 'European' in character. Germany resisted; Germany has been desirous of sheltering its politically powerful regional banks from European control. A reported late-night compromise between France and Germany has resulted in a mixed system - with the eurozone's 200 largest banks falling under the authority of the ECB and the remaining 5,800 or so smaller banks (including virtually all of Germany's regional banks) continuing under the oversight of national regulators.

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December 18, 2012

A former fellow of the Journalist Law School, an annual legal bootcamp for reporters created and organized by Loyola's Civil Justice Program, praised the program in a story in Voir Dire, the magazine of the American Board of Trial Advocates. Loyola recently announced the dates for the eighth-annual JLS; it will run May 29-June 1, 2013. Applications are due Monday, March 4, 2013.

JLS alumna Trish Mehaffey of The Gazette/Sourcemedia in Cedar Rapids, Iowa, wrote:

"When I applied to the Journalist Law School I expected a crash course in the law, but I was surprised how much ground the professors covered in three and half days and how they made it appealing to journalists by weaving good stories among even the driest constitutional law theory."

She continued: "I attended the school in the summer of 2011 because I had been covering courts for a number of years but never had the chance to take a formal criminal or civil justice program or one as comprehensive as what Loyola offers. I've gone to many seminars or other training for court reporters but nothing comparable to this. I love the law and court trials but I never wanted to be a lawyer. I just wanted to be able to explain it to the average person. Most people don't realize how a jury verdict or court ruling may impact their lives as case law is made every month in some courtroom across the country that could affect their civil rights or even their children's education."

Read the complete story on Voir Dire.

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December 13, 2012

By Associate Professor Kevin LappLapp_SJ.jpg

On December 6, 2012, California Attorney General Kamala Harris declared that local law enforcement agencies in the state are free to decide whether they will comply with immigration detainers issued by the federal government. This was a big announcement for at least two reasons: (1) immigration detainers are a key component of immigration enforcement programs such as Secure Communities, which ostensibly target for deportation non-citizens who have committed serious crimes, and (2) California is the nation's most populous state, with the largest non-citizen population and the nation's largest criminal justice system.

An immigration detainer is a piece of paper from immigration officials purporting to command a jailor to hold a specific individual for up to 48 hours after the individual would otherwise have been released. The purpose behind the extra detention is to allow Immigration and Customs Enforcement (ICE) to evaluate the detainee's immigration status or take the individual into custody itself. Since 2009, the United States has issued approximately 250,000 immigration detainers a year.

State and local law enforcement officials across the country regularly comply with immigration detainers, holding individuals at their own cost until ICE takes them into custody or releases the hold. Some believe that compliance is mandatory, as a glance at the form would suggest. Near the top, it states in bold and all caps, "MAINTAIN CUSTODY OF ALIEN FOR A PERIOD NOT TO EXCEED 48 HOURS." Later, the form quotes from a regulation, 8 C.F.R. 287.7, that the law enforcement agency "shall maintain custody of an alien" once DHS issues a detainer.

But there has been a growing trend against compliance. Santa Clara and San Francisco County (as well as Chicago, Washington, D.C. and New York City) have chosen not to honor at least some immigration detainers. These localities have taken AG Harris's position that the detainers are requests, not commands. They have also objected to the fact that the states and localities must bear the cost of the extended detention, often for individuals arrested for petty offenses who pose no risk to the community.

In the last two months, Los Angeles County has gone from an area of total compliance to limited compliance. In October, Los Angeles Police Department Chief Charlie Beck said that his department (the nation's second largest) would soon refuse to honor certain immigration detainers. Chief Beck made it clear that his decision was a reaction to the federal government's heavy-handed approach toward non-citizens, which despite claims to the contrary, targets both dangerous criminals and those suspected of petty offenses. In California, for example, more than half of the people deported pursuant to Secure Communities since 2009 had no criminal history or only misdemeanor convictions. Chief Beck also linked this concern to public safety, asserting that "we need to build trust in [Hispanic] communities and we need to build cooperation." Beck's plan is to refuse immigration detainers for those arrested for certain non-violent misdemeanors (the plan must be approved by a civilian board before it goes into effect).

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December 13, 2012

JournalistsGuide.jpgReporting on the legal system without a law degree can be challenging. A team of Loyola Law School professors aimed to fix that by writing The Journalist's Guide to American Law. The book, published by Routledge and released on Monday, Dec. 10, serves as an essential reference for journalists whose coverage area includes the law. The authors are Professors John Nockleby, Laurie Levenson, Karl Manheim, Jay Dougherty, Dean Victor Gold, Allan Ides and Daniel Martin.

From the publisher:

How do you report on the latest sensational criminal trial or newest controversial legislation without a basic understanding of how the American legal system works? This easy-to-use guidebook offers an overview of American law that should be found on the desk of any journalism student or professional journalist. It provides an overview of major legal principles and issues in simple terms for journalists who cover any aspect of the legal system. The Guide can be used in two ways: first, as a sit-down read that gives an overview of American law; and second, as a reference that can be used every day under deadline pressure for a specific purpose. Every feature of the book is designed to serve both functions. Thus, the book's organization captures both the birds-eye view of a subject; and, alternatively, permits a quick review of a given section when the professional needs to understand a distinct concept. The areas covered range from professional concerns such as the First Amendment, cameras in the courtroom, Sunshine laws, and access to government documents to general legal matters such as the institutions of law and lawmaking function of the judiciary; core constitutional principles such as separation of powers and judicial review; and how courts function. The book is ideal for use in general newswriting and reporting courses, particularly those with a focus on legal or court reporting, and may also be used as a supplementary text in Media Law courses.

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December 12, 2012

Atik_new_SJ.jpgBy Professor Jeffery Atik

Mark Pagel addresses the conundrum posed by variegated cultures. Culture -- what we have that monkey's don't (according to a witty formula quoted by Pagel) -- both unites us and divides us. In Wired for Culture, Pagel attempts an evolutionary account for the existence of cultures. His inquiries commence with the mad multiplicity of languages. Language is the prime instrument of cultural transmission and the strongest marker of cultural identity. Yet the intra-group facilitation of communication provided by distinct languages are foreclosed to outsiders. Our languages seal us off from one another.

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Human adaptability to the widest range of niches offers only a partial explanation for the multitude of cultures. New Guinea sports more than 800 different languages within a very small territory -- here mutual unintelligibility seems to be the point. Language operates both to permit and prevent understanding; both these characteristics are necessary. The value of a closed system of communication has long been recognized. Tradesmen, criminals and academics use argot to separate themselves and to keep secrets.

Pagel makes an evolutionary case for the multiplicity of languages; language serves as an identifier of group membership. This is culture's darker role: defining group boundaries. Pagel sees language and other cultural institutions functioning to set limits for altruism. Humans are social -- but only to a degree. We are a species that engages in magnificent cooperation -- yet are capable of inflicting harm on a scale not found in any other species.

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December 11, 2012

Seto.jpg

The American Association of Law School's Journal of Legal Education recenlty published "Where Do Partners Come From?" by Professor Ted Seto. The article was earlier highlighted on the Wall Street Journal Law Blog and on Above the Law. The following is an abstract:

Which law schools produce the largest numbers of partners at national law firms? This article reports the results of a nationwide study of junior and mid-level partners at the 100 largest U.S. law firms. It identifies both the top 50 feeder schools to the National Law Journal 100 nationwide and the top 10 feeder schools to those same firms in each of the country's ten largest legal markets. U.S. News rank turns out to be an unreliable predictor of feeder school status. Hiring and partnering by the NLJ 100 are remarkably local; law school rank is much less important than location. Perhaps surprisingly, Georgetown emerges as Harvard's closest competitor for truly national status. (Any school that believes the author's count is inaccurate is requested to supply corrected information.)

Download the complete law review article on SSRN»

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December 7, 2012

NeJaime2.jpgBy Professor Doug NeJaime

The U.S. Supreme Court has decided to hear two cases implicating marriage for same-sex couples. The first, United States v. Windsor, raises the question of whether Section 3 of the federal Defense of Marriage Act (DOMA), which denies federal recognition to same-sex couples' marriages, is unconstitutional. The second, Hollingsworth v. Perry, involves the constitutionality of California's Proposition 8, the state constitutional amendment banning marriage for same-sex couples. That the Court has taken these two cases suggests that it may approach the significant issue raised by the Second Circuit in Windsor -- but avoided by the Ninth Circuit in Perry -- regarding the level of scrutiny to be afforded sexual orientation classifications for equal protection purposes. If sexual orientation classifications merit heightened scrutiny, as the Second Circuit held, all laws that discriminate against lesbians and gay men -- including state marriage prohibitions -- would be suspect. Of course, the combination of Windsor and Perry also suggests that some Justices may believe there is a material distinction between a federal law denying recognition to same-sex couples' valid state-law marriages and a state law preventing same-sex couples from marrying. In other words, the Supreme Court may, on one hand, be poised to issue definitive rulings in favor of sexual orientation equality or, on the other hand, be prepared to split the difference. At the same time, the Supreme Court could simply approach both issues by employing the lowest level of constitutional scrutiny and yet still find both the federal and state laws unconstitutional.

Professor NeJaime recently wrote about the possible Supreme Court review of same-sex marriage laws on Jurist.

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December 5, 2012

rothman2.jpgProfessor Jennifer Rothman's "The Inalienable Right of Publicity" was discussed on the Credit Slips blog. Below is an excerpt from the discussion:

A quick post to announce that intellectual property scholar Jennifer Rothman has just published an article that engages with the bankruptcy treatment of the "right of publicity." Painting with the broadest brush, the piece questions the alienability of an identity-holder's right of publicity more generally, and concludes creditors should not be entitled to "own (or control)" a debtor's right of publicity (p.236). For the bankruptcy and commercial lawyers reading this post, or courts confronting questions of creditor entitlement to a debtor's right of publicity, the article contains references to recent court decisions of potential relevance (pp. 199-200) in addition to important arguments on these questions. According to Rothman, there still is no published caselaw explicitly holding that creditors are entitled to the value of a bankruptcy filer's right of publicity.

Read the complete discussion.

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