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Written by Michele Struffolino Even with the American Bar Association’s recognition in their Basic Principles of the Right to Counsel in Civil Cases that full representation is the best way to provide fair and equal access to justice, the current economic climate is likely to increase the number of individuals who cannot afford full representation.  These low and moderate income litigants are left with two options: proceed pro se or obtain whatever representation their money can buy. Choosing the latter can cause more harm than good and attorneys should be wary of jumping on the unbundled bandwagon when a potential client presents family law issues that will require more than perfunctory court involvement. Unbundled legal representation is nothing new to family law attorneys.  The ability to hire an attorney to perform only one or a few of the tasks typically involved in full representation has been the backbone of mediation, conciliation, and collaborative lawyering.  Many family law matters, however, cannot be resolved without ongoing court involvement. Domestic relations matters often involve high emotion, conflict, and complex legal issues.  The litigants in these cases cannot reach a fair resolution without the assistance of counsel.  Unfortunately, many cannot afford the representation they need.

Written by Ben Davis, Post-Osama: The Way Forward for the United States, JURIST - Forum, May 2, 2011 We have learned that Osama Bin Laden has been killed. Was this killing done in accordance with international law?  While the facts are a bit unclear, some points would seem clear. 1) Osama bin Laden was a legitimate military objective. In this armed conflict of either an international or non-international character, what seems patently clear is that Bin Laden was the head of Al-Qaeda, a non-state-actor that has declared war on the United States. Wars between states and non-state actors have gone on since antiquity and targeting the head of Al-Qaeda and the disruption of Al-Qaeda are clear military objectives by which we secure a military advantage. 2) The residence was also a proper military target. The residence in Abbottabad appears to have been constructed in 2005 and to have been in the form of what we would call a bunker or bunkerized residence - its high walls, barbed wire etc. It appears it was built for Osama Bin Laden and was a headquarters for him in running the Al-Qaeda operations since 2005. As such, if it ever had a civilian purpose, it had turned from a purely civilian to a military object once Bin Laden had his "quartier general" there and was sending and receiving instructions for Al-Qaeda through couriers. 3) A clear military advantage could be achieved through killing or capturing Bin Laden. He was a still active member of Al-Qaeda, leading Al-Qaeda efforts from this site. Killing or capturing him would be the classic decapitating type operation almost identical to Bin Laden's attempt to do the same to the United States on 9/11 in attacking the financial center as well as military and other top nerve centers of the United States government. Necessity of targeting Bin Laden as Al-Qaeda's spiritual, strategic and tactical leader who claimed responsibility for 9/11 to put him hors de combat would appear without doubt.

Written by David D. Troutt Keith Aoki: photo obtained from www.diverseeducation.com We vowed to play music together one day, Keith Aoki and I, him on bass guitar, as I recall, and me on drums.  It never happened, but it was one of the few conversations I had with Keith about things outside of law teaching and scholarship, and it suggested something exciting and unexpected about our private loves outside the academy.  Otherwise, I didn’t know Keith as well as I would have liked except through his prodigious work.  News of his illness explains the unrequited e-mails.  His tragic passing this week is devastating, the profoundest loss to his wife and girls, a painful void for colleagues, and something for the rest of us to mourn from afar.

Written By Heather Baxter In considering this month’s theme of Access to Justice, I’m not sure anything could be more appropriate than discussing the Right to Counsel afforded to all indigent criminal defendants.  Nearly fifty years ago, the United States Supreme Court found that having an attorney to represent a defendant was fundamental to a fair trial.  This right was so important, according to the Court, that all states should be required to provide an attorney, free of charge, to those who couldn’t afford one.  I’m talking, of course, about the famous case of Gideon v. Wainwright, a 1963 Supreme Court case that changed the landscape of criminal courts forever. Unfortunately, Gideon was a tall order to fill when it was announced, and recent budgetary crises have only made the situation worse. Even though the Court proclaimed the importance of the right to counsel fifty years ago, providing counsel to those accused of a crime is certainly not at the top of many legislators’ priority lists.  As a result, many of those who represent the indigent have seen their budgets slashed.  For example, in Georgia’s Northern Judicial Circuit, which comprises five counties, the conflict counsel’s budget was reduced from $129,166.00 to a mere $37,152.00 in 2009, a more than 70% decrease in funding.  Further, the budget cuts in Georgia forced the Georgia Public Defender Standards Council to lay off forty-one employees. In Kentucky, the legislature cut $2.3 million from the indigent defense budget in 2008, and in Minnesota, the legislature cut $4 million from the Board of Public Defense’s Budget in 2009.

If you are wondering how the same voter ID requirements, end to public employee collective bargaining, and anti-EPA legislation end up in different state legislatures, you might not know about the American Legislative Exchange Council. This is how ALEC explains itself: limited government, free markets, federalism.

Keith Aoki was a friend and mentor to many in the SALT community, and we share the loss of his passing with his family and colleagues.  It seems odd at times like these to try and capture someone’s legacy in a single blog post.  It’s truly impossible when that someone is…

Written by SpearIt “Fuck or Fight?”  This question, like the fuse of a 10-second stare-down, is how too many men are first introduced to life in a prison cellblock.  Although one might not have ever pondered these questions, the curve is high, and one quickly learns that the best response is “neither.”  However, in the prison setting, power and respect are currency, and how one ranks may directly relate to assault and rape of other inmates.  Empirical Research attests that systemic sexual violence prevails in some prisons systems, in both adult and juvenile facilities, but that is just the beginning. The problem of gendered violence behind bars derives partly from masculinity norms on the outside: this would include exposure to pornography, including rape and snuff varieties, prostitution, strip clubs or even video games that offer a woman for sex after achieving a certain game level—all forms of objectifying female bodies and women themselves.  Sexist attitudes of machismo, chauvinism, and hetero-patriarchy reproduce in the prison setting in stunning and spectacular fashion, a biblical redux, woman created from the body of man.  Exposure to prison rape may transform inmates such that who comes out of prison is not merely the chauvinist who went in, but someone far more threatening.

Written by Marjorie Cohn, March 24, 2011 Army Pfc. Bradley Manning, who is facing court-martial for leaking military reports and diplomatic cables to WikiLeaks, is being held in solitary confinement in Quantico brig in Virginia. Each night, he is forced to strip naked and sleep in a gown made of coarse material. He has been made to stand naked in the morning as other inmates walked by and looked. As journalist Lance Tapley documents in his chapter on torture in the supermax prisons in The United States and Torture, solitary confinement can lead to hallucinations and suicide; it is considered to be torture. Manning's forced nudity amounts to humiliating and degrading treatment, in violation of U.S. and international law. Nevertheless, President Barack Obama defended Manning's treatment, saying, "I've actually asked the Pentagon whether or not the procedures . . . are appropriate. They assured me they are." Obama's deference is reminiscent of President George W. Bush, who asked "the most senior legal officers in the U.S. government" to review the interrogation techniques. "They assured me they did not constitute torture," Bush said. The order for Manning's nudity apparently followed what he described as a sarcastic comment he made to guards after their repeated harassment of him regarding how he was to salute them. Manning said that if he were intent on strangling himself, he could use his underwear or flip-flops. "In my 40 years of hospital psychiatric practice, I've never heard of something like this," said Dr. Steven Sharfstein, a former president of the American Psychiatric Association. "In some very unusual circumstances, when people are intensely suicidal, you might put them in a hospital gown. ... But it's very, very unusual to be in that kind of suicide watch for this long a period of time."

by andré douglas pond cummings On the heels of news that Angelo Mozilo, the former CEO of now-defunct Countrywide, who made more than $500 million in bonuses by peddling toxic and poisonous loans in the run-up to the financial market crisis or 2008, has been absolved…

Written by SpearIt “Post-racial” is rhetoric for a state of social consciousness that has moved beyond the antiquated trappings of white superiority.  In post-racial discourse, the American cosmic race progresses past the oppressions of old, credence to which is lent the presidential election of Barack Obama; for believers, election of a “black” to the White House symbolized the American Dream achieved.  Closer scrutiny, however, reveals another type of dreaming going on, the fantasy evinced by the term “post-racial.” In this American Dream, adherents to “post-racial” are a slumber to existing racial woes, with vision stuck on a future that’s yet to be achieved.  The discursive import of “post-racial,” then, is in persuading others that the dream indeed is real; it takes the present and supplants it with something more sublime than the status quo.  Despite the “post-racial” concept’s beauty, in the waking world such a state may well be impossible due to the systemic nature of discrimination.  Today, more is at stake than the force of individual bigotry—discrimination has been institutionalized in law and society—and language is no exception.  Today’s names and labels continue to harbor inequities of old, and show why debates on race and color are fundamentally flawed.

The 13th Annual! That phrase in some ways is numbing. It is a solemn reminder that it has been fifteen years since Trina Grillo, our colleague, friend and inspiration, too soon left the planet, three years shy of her fiftieth birthday. That phrase – the 13th Annual – is also inspiring as it demonstrates the lasting power of Trina’s legacy and the persistence of the struggle in which we all engage and to which the annual retreat is dedicated.

Following the SEC’s securities fraud wrist slap of former Countrywide CEO Angelo Mozilo to the tune of $67.5 million civil fine (only $22.5 million was paid by Mozilo, who received $521.5 million in compensation from 2000 to 2008) for his prominent role in the mortgage meltdown, federal prosecutors…

Peter King is my representative in the United States Congress! There I said it. I apologize to everyone and assure you I have never done anything to get him elected or reelected. One would think that living in Nassau County, Long Island, under an hour by car or train to New York City, would mean I was living in a fairly progressive community. When I moved here in 1987, I thought I was. But Long Island has a nasty history: in the 1730s, there were more enslaved men and women living here than anyplace else in the north. The Levitt family which singlehandedly created the concept of the cookie-cutter suburbs that soon led to white flight and sprawl, had restrictive covenants in the leases and deeds to their homes in Levittown. (Levittown still is less than 1% African American!) Long Island has 127 individual school districts, each devised to assure homogeneity and racial purity. So Peter King as an elected official somehow fits the demographics of a region trying to stave off modernity despite its proximity to Manhattan.

The business of rhetoric is persuasion. At its zenith, rhetoric functions like a jedi-mind-trick, making us amnesiacs to the history of the present. The law is no exception, where persuasion is everything. Everything about the profession whittles down to persuasion in some form or other—lawyers use verbal tactics to persuade judge and jury, judges use it to write persuasive legal opinions - not to mention legal scholars who ruminate over sexy titles and themes for their articles. Under close inspection, then, the language of law proves to be one big rhetorical script. It is crucial, then, to consider rhetoric within a framework of oppression, both legal and linguistic.

by andré douglas pond cummings In May of 2009, the Fraud Enforcement and Recovery Act (FERA) was signed into law. The bill created the Financial Crisis Inquiry Commission, a panel of 5 Democrats, 1 Independent, and 4 Republicans whose task was to “examine the causes, domestic…

By Hazel Weiser. My twentysomething year old daughter accuses me of “Facebook” stalking, because she set up the SALT Facebook page, giving me access to hers.  Browsing, not stalking, I see how young Americans use Facebook: to connect with people they don’t have time to communicate with daily about stuff that really doesn’t matter; to amass lots of “friends” so that they don’t feel lonely; and to document their lives like the Kardashians by posting humiliating photographs after every party and shared meal. Seeing Facebook used like this seems like a waste of time, and perhaps the reason why the United States is not recovering fast enough from the 2008 crash, because so many of us are on Facebook for too much time every day. That’s not how Egyptians see Facebook.  It’s not how any totalitarian regime will ever see Facebook again. Wael Ghonim is the head of marketing for Google Middle East, and his resume, which you can find here, reflects his generation’s understanding of social media.  Obviously Hosni Mubarak didn’t, not at first.  Ghonim launched the Facebook page that first “galvanized the protesters,” as Brooke Gladstone put it last weekend during her On the Media interview. Ghonim was arrested and detained by Egyptian authorities for 12 days during the demonstrations, held blindfolded, the entire time.  Between Facebook, Twitter, and cell phones, the young protesters in Egypt were able to organize their supporters.  Al Jazeera showed the world, but more importantly, the residents of Egypt and the Middle East that there were indeed protests, what the protesters looked like, and that no matter how much Al Ahram, the leading government newspaper in Cairo, denied it, young people, lawyers, workers, and students were revolting against thirty years of oppression.  You know what happened. By Monday morning, there were demonstrations in Iran, Yemen, and Bahrain.

By Kathleen Bergin Representative Pete King (R-NY), the new chair of the House Homeland Security Committee, wants to keep you safe.  He’s asking patriotic Americans to watch out for the terrorists among us, and thinks people should be immune from civil liability if they report a hunch based…

By Kathleen Bergin Rhetoric and Ranting. That’s February’s “theme of the month” here at SALTLAW.  What’s the “theme of the month,” you ask.  It’s a new feature that gives bloggers and readers alike an opportunity to exchange ideas on a specific issue that progressive law profs care about. …

Despite the blustery winter winds, a group of law professors and librarians joined the picket lines that surrounded the San Francisco Hilton Hotel during the AALS Annual Meeting last week.

We recently returned from the SALT Human Rights Delegation to Guatemala. The trip was a profoundly haunting and disturbing experience. Jennifer Harbury requested the delegation at a critical time for human rights accountability in Guatemala and for those brave enough to pursue it. The civil war in Guatemala, which lasted from 1960 until 1996, left a river of blood, with 200,000 dead, the vast majority Mayan Indians, but also many labor, church, civic, and student leaders, as well as their families.