SALTLAW blog

By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law

Over at TheGrio.com Joy-Ann Reid does a take on the Harvard video that may be of interest.  The attacks on Derrick Bell gnaw.  I am tired by the well oiled dissing machines instrumentalization of all things without a sense of propriety (“One shouldn’t speak ill of the dead.”). I never was taught by Derrick Bell (he was at Oregon at the time I was at HLS), but, like many, found his work thought-provoking  (“And We Are Not Saved” in particular) and cause for despair as one gazes into the abyss side of the black experience in America.

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Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law

On March 7, 2012, Politico reported in  ”Detainee deaths prosecutor backs secrecy of CIA Files,”(available at http://www.politico.com/blogs/under-the-radar/2012/03/detaineeabuse-prosecutor-backs-secrecy-of-cia-files-116732.html) that John Durham, the Justice Department prosecutor tasked with conducting the investigation  and prosecution of CIA persons with regard to two detainees who were allegedly tortured overseas while in CIA hands during the Bush Administration, preferred certain CIA Inspector General reports be kept secret so as to not compromise his ongoing investigations.

In 2008, SALT had worked assiduously to get a prosecutor appointed and received a letter in January 2009 from the office of then Attorney General Michael Mukasey advising of the appointment of John Durham to examine the “torture tape destruction” facts that had come to light.  Later on, Attorney General Eric Holder expanded Durham’s remit beyond the torture tapes to focus on cases of unauthorized interrogation techniques done overseas by the CIA.  This remit, of course, severely limited cases to be investigated because it did not call into question the actions of the lawyers providing legal memoranda and the actions done pursuant to those legal memoranda that we have come to know as the torture memos.

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By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law

I just checked the schedule and saw that the oral arguments for the Affordable Care Act challenges are the week of March 26, 2012.  All of a sudden, much of what appeared to be craziness made sense.  No doubt this is obvious to others, but in case it is not obvious I thought I would try to put this down.

I have heard some pundits wonder why there is such an attack on women’s right to control their bodies right now.  We see the efforts in states to place burdens on abortion such as we have seen in Virginia stoking the flames of the abortion battles.  We see the efforts to defund Planned Parenthood and limit access to it in other states and at the federal  level.  We also see the recently defeated amendment to the highway transportation  bill introduced by Senator Roy Blunt seeking an exemption to the Affordable Care Act for institutions and corporations who object on religious or moral grounds to providing such a service, with emphasis on contraception on those supporters of the Blunt amendment  and emphasis on protecting women’s reproductive health rights for those opposing the Blunt amendment.  I have noted the strident tone of Rick Santorum on rejecting the JFK vision on separation of church and state, religion’s role in the public square, and opposition to contraception and a similar emphasis by Mitt Romney in his support of the Blunt amendment.

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By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law

Over at lawfareblog.com, the presentation of the guilty plea by Majid Khan in the military commission is done.  Reading what he admits to is terrible to read – he is accused of, admits to, and is convicted of, many many awful things.

Along with the transcript of the hearing  before Military Judge Pohl and the documents for the case there is a press statement by Chief Prosecutor Mark Martins dated February 29, 2012 in which he states, among other things (it is available at http://www.lawfareblog.com/2012/02/majid-khan-arraignment-5-prosecution-remarks-to-the-press/#more-6176):

“In conclusion, I will note that astute observers familiar with international terrorism prosecutions in the federal courts have predicted that military commissions would need to decrease the level of legal uncertainty in order to develop into a more effective part of our national security and justice institutions.  I submit that what you have seen today is just that.  Today, you saw in open court an intelligent defendant accused of serious violations of the law of war.  He has been well-advised by a zealous and competent team of three defense counsel, having regular access to that defense team.  He faced overwhelming and admissible evidence of guilt, resulting from thorough criminal investigation and prosecution work.  And he decided to plead guilty to his crimes, to accept responsibility for his actions, to face up to a long sentence of confinement, and to fully acknowledge the lawfulness of his detention to date as a belligerent despite previous denials.  Experienced criminal justice practitioners will tell you that this requires predictability in outcomes, both as to what the system will determine with regard guilt or innocence and on what charges, and as to what the system will adjudge as a sentence on those charges.  Such predictability was achieved here, and the agreed-upon outcome upholds the interests of the people of the United States, the security interests of our nation and other nations, and the interests of justice.

The reforms incorporated into the 2009 Military Commissions Act, resulting from action by all three branches of our government and review by our federal courts, have reduced the legal uncertainty of the system and made it more predictable in its outcomes.  While appreciating the criticisms leveled by concerned Americans and international partners, we believe that these reformed military commissions are fair and that they serve an important role in the armed conflict against al Qaeda and associated forces.  There is increasing evidence that the American people support this view, and we aim to be worthy of their trust. Your military exists to fight our nation’s wars, not to police its streets.  We do not lobby for missions, and we did not lobby for this one.  But we will carry out this assignment, as customary with other assignments, with integrity, dedication, and skill, and availing ourselves of expertise from across the federal government. When called upon to try those within our jurisdiction who have violated the laws of armed conflict, we will do so faithfully, transparently, respectful of the various roles within an adversarial system, and in accordance with the rule of law.  Thank you.”

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Written by Hazel Weiser

An interesting chart appears in this week’s Chronicle of Higher Education, February 24, 2012.  Although giving to colleges and universities is up again, 8.2% in 2011, amounting to $30.3 billion, 86% of that giving went to just 25% of schools.

Replicating a portion of the total, look at the top ten schools to receive gifts this year:

Looking at the list, we see that only three of the top ten schools receiving enormous gifts are public: University of Pennsylvania, UCLA, and UCSF.  Combined they received $1.262 billion in private donations.  However, the private universities really pulled in the money: $3.847 billion.  That’s over three times the giving.  See the entire list.

At the same time that private giving increased, and increased substantially, to the private university system, public funding of public universities was devastated.  Do you see where we might be headed?

Written by Marc R. Poirier, Professor of Law, Seton Hall University School of Law

February 8, 2012

On my office door is a cartoon by Luckovitch for the Atlanta Journal-Constitution. It’s a church wedding. The minister, at the altar, is calling down the aisle to the couple.  “One step forward, two steps back, now three forward, one back . . . .”   In one of the pews, someone is saying “Gay weddings take forever.”  This week’s marriage equality decision in Perry v. Brown (9th Cir. Feb. 7, 2012) is a lot like that.  It takes a very small step forward and a large step sideways towards marriage for same-sex couples in California.  And it’s a good thing, too.

The panel majority, in an opinion by Stephen Reinhardt, upholds District Court Judge Vaughan Walker’s expansive decision below, Perry v. Schwarzenegger, 704 F.Supp. 2d 921 (N.D. Cal. 2010) on the narrowest conceivable grounds.  Walker struck down California’s Proposition 8 – which amended the state constitution to provide that only a marriage between and man and woman would be valid and recognized in California – on broad constitutional grounds.  Walker held that marriage is a fundamental right protected by the Due Process Clause.  Also, he found there is no rational basis for limiting the designation of “marriage” to opposite-sex couples, under an Equal Protection rational basis analysis.  Walker buttressed his conclusions of law with some eighty findings of fact.  Upholding Walker’s decision on these grounds would have been both a big step forward towards the wedding and an invitation to be thrown out of the church altogether.  For it would have invalidated opposite-sex only laws throughout the Ninth Circuit and would have invited early Supreme Court review.

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by andré douglas pond cummings

With most banks in “full-delay” mode in connection with foreclosures during 2011, California homeowners can expect a change—for the worst—in 2012 as banks look to aggressively pursue seriously delinquent mortgages this year. The foreclosure rate is expected to rise significantly, based on the second-half surge of initial default notices sent in 2011, but the rate should remain below the peak of 2010. Nonetheless, continuing foreclosures remains disconcerting.

The Federal Reserve is working to stabilize the housing market. The Fed has urged Congress to help underwater borrowers by reducing their loan principal and has requested that Fannie Mae and Freddie Mac rid themselves of the backlogged foreclosures in bulk sales. Whether Congress and the Government Sponsored Entities will respond to the Fed’s requests, remains to be seen.

Of course, with increased foreclosures comes decreasing property values.  According to the Los Angeles Times:  “California and other states are likely to see an enormous wave of long-delayed foreclosure action in the coming year as banks deal more aggressively with 3.5 million seriously delinquent mortgages.  And experts said that dealing with the foreclosure process, from issuing notices of default to selling repossessed homes, is likely to push housing prices lower this year before the real estate market has a chance to recover.”

Politicians have shown an astonishing willingness to provide corporate welfare to commercial banks, auto companies, and Wall Street banks, in the form of taxpayer bailouts and enormous backdoor loans from the Fed.  The question remains whether any relief will be provided to the millions of homeowners that are underwater on their homes and in serious delinquency.