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Written by SpearIt (image from www.cheezburger.com) States which have legalized medical marijuana are at a critical juncture and may be forced to make some important decisions.  In places such as Arizona and Colorado, doctors, dispensaries, and medical commissioners all face peril for performing their duties—duties which keep with state law, but may breach federal law.  The future of this debate largely hinges on how hard states are willing to fight the federal government, or alternately, whether Congress can effectively intervene. This issue took an important turn this summer in June when the Justice Department issued a memo

By Benjamin G. Davis, Associate Professor, University of Toledo College of Law A colleague brought to my attention this week an article concerning the effort to extradite former Acting General Counsel John Rizzo of the Central Intelligence Agency to places such as Pakistan for him to stand trial for murder with regard to persons killed by drone strikes.  This article struck a chord with me because John Rizzo played the key role in authorizing drone strikes on individuals in  this administration, but also was a key player as detailed in the Department of Justice Office of Professional Responsibility Report released by Attorney General Holder in seeking legal cover/clarity for the CIA persons engaged in the torture under the Bush Administration.  Rizzo also spoke at my law school last year as part of a law review symposium on the Military Commissions in which persons from the floor raised issues about his role in the torture.  This article also struck me as I work this summer on topics related to accountability in our federalism and separation of powers for a law review article looking at state criminal prosecution of a former President. The legality of drone strikes has been the subject of much debate as persons have argued whether they should be analyzed under the legal regimes of international humanitarian law, international human rights law, domestic law such as the Authorization for Use of Military Force, or a construct that has sought to be seen as emerging that might be called international self-defense law.  The analysis of the torture over the past years has also sought to look for treaty, customary international law, and domestic federal statutes.  For example, we have recently been made aware that two criminal cases concerning torture and the CIA are going forward at the suggestion of US Attorney John Durham.  Durham was tasked by the Attorney General at the Department of Justice to review 101 cases regarding detainee treatment and the CIA to see if there were any cases where the treatment was outside the boundaries of the legal advice given.  Finally, the definition efforts for the crime of aggressive war in the Rome Statute that recently occurred at Kampala are another aspect of  trying to articulate rules for criminal responsibility for actions taken by state actors.

The torture of prisoners in U.S. custody isn’t confined to foreign countries. For more than two weeks, inmates at California’s Pelican Bay State Prison have been on a hunger strike to protest torturous conditions in the Security Housing Unit (SHU) there. Prisoners have been held for years in solitary confinement, which can amount to torture. Thousands of inmates throughout California’s prison system have refused food in solidarity with the Pelican Bay prisoners, bringing the total of hunger strikers to more than 1,700.

Serious implications for U.S. foreign policy interests and U.S. compliance with international human rights standards will be at stake if the Supreme Court considers Arizona SB 1070’s constitutionality. The Ninth Circuit’s decision in United States v. Arizona is consistent with U.S. obligations under international human rights law as well as the Constitution. It at least partially protects the significant national interest in the conduct of foreign policy between the U.S. and Mexico as well. The decision upheld U.S. District Court Judge Susan R. Bolton’s preliminary injunction against key portions of Arizona’s infamous “Support Our Law Enforcement and Secure Neighborhoods Act,” also known as Arizona S.B. 1070, as amended by Arizona H.B. 2162.

Crossposted from Jurist Forum - http://jurist.org/forum/2011/07/davis-duff-ware-debt-ceiling.php JURIST Contributing Editor Benjamin Davis of the University of Toledo College of Law, joined by JURIST Guest Columnists Michael Duff of the University of Wyoming College of Law, Craig Jackson of Texas Southern University Thurgood Marshall School of Law and Leland Ware of the University of Delaware, say that the recent proposal to allow the president to raise the debt ceiling without a congressional vote will increase uncertainty and violate the separation of powers...    In the most recent development in the debt ceiling debate between the two parties in Congress, Senate Minority Leader Mitch McConnell has floated a plan to get out of the impasse. While the details are fluid, the essence of his proposal appears to be: 1) Congress would authorize the president to raise the debt limit by as much as $2.5 trillion in three installments. The first, an increase of $700 billion, would come immediately. The next two, worth $900 billion each, would come this fall and some time next summer. 2) On each occasion, the president would be required to submit to Congress an explicit request for an increase, along with a menu of proposed spending cuts equal to the requested increase. The submission of the president's first request would automatically raise the debt limit by $100 billion to give the Treasury Department breathing room while Congress considers the request. 3) Lawmakers would then have 15 days to pass a resolution of disapproval, giving them an opportunity to go on record against raising the debt ceiling. The president could veto the resolution, and the debt limit would then rise, provided the veto could not be overridden. McConnell's strategy makes no provision for the required spending cut proposal to be enacted. Aides said lawmakers could pick and choose from the president's list when they put together appropriations bills in a separate process. While McConnell's tactical inventiveness is clever, it is an open question as to whether it is in line with the separation of powers. The first step, authorizing the president to raise the debt limit, appears to be a departure from the past in which Congress itself raised the debt limit. The second step has the debt limit automatically rise by $100 billion by the submission of a requested increase, again without congressional action. The third step foresees a vote within 15 days of disapproval. In the absence of such a vote of disapproval within the 15 days, it is unclear whether the debt ceiling is raised or not or by what amount. If there is such a vote of disapproval, the president can veto it. If two-thirds of both houses of Congress fail to vote to override the veto, the debt limit rises by $900 billion without congressional action to alter the legislation setting the debt ceiling. What is clear under all three steps is that Congress itself is not raising the debt ceiling limit as it has traditionally done, but instead the president becomes the fulcrum for the debt ceiling increases. Coupled with these increases will be a growing uncertainty as to whether the debt ceiling has in fact been properly increased. Article I, Section 1 of the Constitution places the legislative power with Congress. Article I, Section 8 gives Congress the power to tax and spend and to borrow money on the credit of the United States. At the heart of this legislative power is the power to budget and authorize debt. While attacks on legislation based on the non-delegation doctrine do not generally succeed, one does wonder whether the compromise amounts to a congressional abdication to the president or a failure to give legislative definition of the scope of the president's power. While this point would not be dispositive, is there really an "intelligible principle" guiding the shift of authority to the president for raising the debt limit in this convoluted manner? The evidence so far makes it clear that this approach is being considered solely based on political calculations. Moreover, comparing this proposed structure to a simple congressional vote, one sees a shift of power to the president that may harken a further imbalance in the separation of powers. The first three steps call for the president to propose various spending decreases to Congress at the same time that the president seeks the debt ceiling increases. The spending cut proposals are without any particular effect as the subsequent mandated congressional action is with regard to the debt ceiling and not the spending cuts. Would these proposed spending cuts amount to a backdoor kind of line item veto? On the one hand, the budgeting power remains with Congress, on the other, the presidential initiative creates an ad hoc budgeting and authorization process outside of standard budgetary procedures. What of spending authorized by Congress but targeted on the list of spending cuts submitted by the president? One concern is whether these listed cuts have the effect of suspending or calling the appropriations into question, another shift of power to the president over appropriations that should have the effect of law.

Written by SpearIt Recently a colleague forwarded me a call for papers by The Journal of Hate Studies at Gonzaga University’s Institute for Hate Studies.  The symposium theme, “Hate and Political Discourse,” immediately captured my thoughts and led me into a daydream daze about potential topics.  It was at once stunning and intriguing that there’s so much hate to think about. 

 By Olympia Duhart This is the letter no one wants. But for many families crushed by the pain of losing a loved one, this is also the letter that may bring a measure of solace.  More importantly, this is the letter that provides recognition by the government that the life taken – even by the victim’s own hands – was not lost in vain. This week, the White House announced that it would reverse its long-standing policy of not sending condolence letters to families of service members who commit suicide while deployed.  The move from President Barack Obama is one critical step toward reducing the stigma surrounding suicide and mental illness connected to military service. In his July 6 statement, President Obama recognized the complexity of the issue:  “The issue is emotional, painful, and complicated, but these Americans served our nation bravely.” Despite recent education and outreach efforts, suicide among military troops continues to soar. The Pentagon reported this week that close to 300 active duty service members committed suicide last year.  In his statement, the President defended the service members and called for an improved response to the conditions that contributed to their deaths. “They didn’t die because they were weak. And the fact that they didn’t get the help they needed must change,” President Obama said. 

One of the pedagogy sessions at the AALS New Teachers Workshop was led by Paula Lustbader (Seattle) and Laurie Zimet (UC Hastings) who focused on how to bring technology into the classroom so that we aren’t competing with Facebook, Twitter, and GiltGroup.com. (I’ll leave those links out so that you will finish this posting!) Paula and Laurie are gifted teachers of teachers, modeling for the newbies how abandoning lecture and incorporating technology will make teaching and learning more dynamic, and empower rather than infantilize students. So with Paula and Laurie in mind, I watched Stephen Colbert this week, in real time, awed once again by the sheer chutzpah of his comedy.

am sitting at a table along with some of the legal publishers at the AALS Workshop for New Law Teachers and the excitement in seeing candidates whom I’ve met at the SALT-LatCrit junior faculty development workshops, the People of Color programs, and the recent SALT “Breaking In” programs walk into the Mayflower Hotel as new law teachers is fantastic!

By Anthony Niedwiecki, The John Marshall Law School In the push for marriage equality, LGBT activists often point to hospital visitation, inheritance rights, and tax benefits as some of the rights that are denied to same-sex couples.   In response, some states have extended some of the rights associated with marriage to same-sex couples through civil unions or domestic partnerships.  Illinois is one of the most recent states to provide same-sex couples the “same legal obligations, responsibilities, protections, and benefits as are afforded or recognized by the law of Illinois to spouses” by establishing civil unions.  750 ILCS 75/20.  So it came as a surprise when the Illinois Department of Revenue announced on its webpage that the new civil union law “did not change the Illinois income tax laws,” and specifically stated that couples in a civil union “may not file joint Illinois returns.” The Illinois Department of Revenue bases its reasoning on the requirement that a couple must be able to file their federal taxes jointly first, and same-sex couples are prohibited from jointly filing their federal income taxes because of the “Defense of Marriage Act”: IITA Section 502(c) permits joint returns only when a joint return is filed federally.  The federal Defense of Marriage Act (which is being challenged in the courts) does not allow joint returns by partners to a civil union, so the IITA does not allow joint returns either.

In an 8-0 decision authored by Justice Ginsburg (with Justice Sotomayor recusing herself), the U.S. Supreme Court held that “the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants.” The Court…

By Lisa R. Pruitt The Chronicle of Higher Education this week released data summarizing the tertiary education (or lack thereof) of state legislators across the country.  An interactive map is available here, permitting you to see the percentage of lawmakers in each state who attended college, completed college, and/or completed a graduate or professional degree.  The map also tracks whether lawmakers attended public schools or private ones, and it features some data about whether they went to college within their state or outside it. The big headline is that about 75% of all state lawmakers have four-year college degrees, compared to 94% of those serving in the U.S. Congress.  The percentage of state legislators with such a degree varies considerably by state, however, from a high of 89.9% in California to a low of 53.4% in New Hampshire (where the Chronicle acknowledges it had greatest difficulty verifying educational attainment of the numerous legislators, who serve part time for just $100/year!).  South Carolina leads states in percentage of lawmakers who attended some college but did not receive degrees (97.7%), while Arkansas makes the poorest showing on this metric, with only 67% of its legislators having completed any college at all.  Stated another way, that means that a full third of Arkansas’s lawmakers have only a high school diploma.

Written by SpearIt Last month in Brown v. Plata, the Supreme Court held that prison overcrowding in California caused conditions that violated the Eighth Amendment’s prohibition against cruel and unusual punishment.  Capping a legal saga that has entered its third decade, the case consolidated two class action suits, Coleman (1990), involving prisoners with serious mental disorders, and Plata (2001), involving prisoners with serious medical conditions.  By 5-4 majority, the Court affirmed an order by a three-judge federal court that required California to reduce its prison population to 137.5% of capacity, which at that time stood at nearly 200%.  To comply with the order, the state must still trim another 33,000 within two years. Or maybe not.  Although many see this decision as a key victory for prison rights activists, a more pessimistic read

By Lisa R. Pruitt Two recent news reports from very different parts of the world shared this theme: Affluence can have its drawbacks. The first story was Michael Wines, “Execution in a Killing that Fanned Class Rancor,” which reports the execution of the son of an affluent Chinese businessman and military official. The son, Yoa Jiaxin, stabbed to death a “peasant” woman last fall. Jiaxin had struck the woman, who was cycling, with his vehicle, but she suffered only minor injuries. When Jiaxin realized that she was memorizing his license plate number, however, he attacked her with a knife. Wines provides some class context for what happened next: "The crime had fanned deep public resentment against the “fu er dai,” the “rich second generation” of privileged families who are widely believed to commit misdeeds with impunity because of their wealth or connections." Jiaxin later said that he “feared the woman, a poor peasant, would ‘be hard to deal with’ should she seek compensation for her injuries.”

By Olympia Duhart There is a popular adage about teachers that I think of almost every single time I attend a teaching conference or workshop:  “Teachers make terrible students.” And, often, my attendance at conferences aimed at improving legal education proves that aphorisms have staying power for a reason. I confess that at times I have been less than stellar in my approach to conference participation. And I’m not alone. Look around the room at most conferences and some of the law professors and instructors who make up the audience for any given session are just as “off-task” as the students are in their own classrooms. We are surfing the web.  Doodling. Whispering to the person in the next seat.  Or just plain spacing out. But a funny thing happened last week in New York. I attended a teaching conference, and I was overwhelmed by the level of engagement and energy that both the presenters and the attendees displayed. The conference was jam-packed with innovative teaching ideas. People were taking notes and asking questions.  Volunteers were eager to share their own ideas to help their colleagues. Law professors spending the day as students were paying attention. Kudos to the Institute for Law Teaching and Learning and to New York Law School for sponsoring such a successful conference June 1-3. The theme for the 2011 ILTL Summer Conference was “Engaging and Assessing Our Students,” and the session leaders breathed life into the theme. 

Written by Stacy Caplow, Brooklyn Law School We need a structured program for recent law graduates to provide legal services to poor, unrepresented immigrants while developing skills and knowledge to improve the level of competency of the immigration bar for the long haul. Words like "crisis," "disgrace" and "disaster" were used to describe the state of the immigration adjudication system at a newsworthy colloquium earlier this month at which retired U.S. Supreme Court Justice John Paul Stevens addressed a crowd of several hundred concerned lawyers. The audience for the event, held at Yeshiva University Benjamin N. Cardozo School of Law, included immigration court judges, as well as lawyers from major law firms, small immigration firms, nonprofit organizations, government agencies and academia. Everyone in attendance shared the view that a system in which individuals charged with even minor crimes are guaranteed a lawyer whereas that same person facing deportation could be removed from family, work and friends without any legal representation is an unfair system indeed. The plight of many immigrants in the New York state region facing deportation without the assistance of counsel was dramatically revealed in data released at the conference, prepared by the New York Immigration Representation Study, a two-year project of the Katzmann Immigrant Representation Study Group and the Vera Institute of Justice. With the benefit of counsel, a nondetained immigrant represented by a lawyer had a 74% chance of avoiding deportation, whereas a detained immigrant without counsel had only a 3% rate of success. The transfer of huge numbers of individuals from New York to detention facilities in Texas, Louisiana and other faraway states, making it almost impossible to obtain the help of a lawyer, exacerbates this stark contrast.

Written by Hazel Weiser As the U.S. Supreme Court winds down its term with several more controversial split decisions yet to come, we are reminded once again of how important an independent judiciary is to the maintenance of a democracy.  Back in 2007, when General Musharraf of Pakistan closed shut that country’s Supreme Court, lawyers took to the streets in their black suits and ties to protest the action.  In Guatemala, the lack of an independent judiciary is preventing survivors and families from seeking redress for the atrocities committed during that nation’s extended civil war.  Here in the United States, we wonder whether the ideological underpinnings of this Supreme Court ensures that our next president will be elected by WalMart or Goldman Sachs rather than by an informed electorate. That’s why a 2008 documentary about the South African judicial system called “Courting Justice” might be a good addition to your summer viewing.  “Courting Justice” will certainly raise your spirits, hope, and confidence that change is possible with a whole lot of determination, discipline, and collective action.

Professor Douglas Colbert Meet Our Members: A Q & A with Professor Douglas Colbert on Access to Justice Interview by Olympia Duhart Professor Douglas Colbert is the Jacob A. France Research Professor of Law at the University of Maryland School of Law. He joined the faculty at Maryland in 1994 after directing the criminal justice clinic and teaching civil rights at Hofstra Law School and visiting at Northeastern and Utah Law Schools. In addition to teaching the Access to Justice criminal defense clinic, Professor Colbert also teaches Criminal Law, Constitutional Law, International Human Rights, and Race and Criminal Justice. Professor Colbert has written extensively about professional responsibility, indigents’ right to counsel, the Thirteenth Amendment, race discrimination in jury selection, affirmative action, police misconduct, politically sensitive trials, and legal scholarship. His latest scholarly activities focus on the profession’s ethical responsibility to meet its public citizen/pro bono responsibility to ensure access to counsel for people who cannot afford a lawyer, and on reforming states’ criminal justice system to guarantee counsel at the bail stage. Currently, Professor Colbert serves as the co-chair of SALT’s Access to Justice Committee, along with Pamela Bridgewater (American).  We spoke to him about the Committee’s efforts to encourage law professors to engage students more deliberately about a lawyer’s ethical pro bono responsibilities as a “public citizen having a special responsibility to the quality of justice” and to educate students about the legal system’s deficiencies in denying most people access to justice.

By Lisa R. Pruitt I responded last month to Martha McCluskey’s ClassCrits post, “Class as a Category of Vulnerability and Inequality.” In that initial response, I asserted that progressives need not choose between advocating mobility (the upward variety!) and advocating mobilization (collective action, labor rights) when it comes to class. I called the tension between mobilization and advocating class mobility a false dichotomy. This post takes up another issue that arose from the initial conversation: is class material or is it cultural? More precisely, will attending too much to the cultural aspects of class cause us to lose sight of its material aspects and consequences? Of course, class has both material and cultural components—no doubt one of the reasons we increasingly refer to it as “socioeconomic status” or “SES.” I believe we must take both seriously in our efforts to empower the working class and poor. As with my prior post, I take the white working class as my starting point for several reasons. One is that I don’t hear socially conscious progressives pushing for a bifurcation that separates the material from the cultural with respect to minority groups. The other is that focusing on working class and poor whites permits us to see class more clearly. If we are looking at the group which enjoys the greatest racial privilege, we will not be tempted to collapse the class problem into the racism problem. We thus have a distinct opportunity to see just how powerful class disadvantage is. This tack it is not intended to discount the ways in which racial disadvantage exacerbates class disadvantage. Thinking about class as culture implicates identity, and some have challenged class as a basis for identity, especially among “lower classes.” John Guillory wrote in 1993:

Written by SpearIt (Image taken from: http://www.ehow.com/info_7923062_classroom-activities-social-justice.html) In the city of Saint Louis, where I teach criminal law, segregation still grips chunks of the metro.  Half the population at-large is African American, so I was surprised when I showed up to my first class as a law professor and looked out at my students—twenty-five 1Ls in their first semester of study—but not one African American, no Latinos either; these two groupings are most affected by criminal law, yet had no representation in my inaugural class.  Although I had spent the summer exploring the city, my first-year course was perhaps the most segregated space I’d experienced so far, save the law school itself, where the janitorial staff is almost all African American and the tenured faculty is hardly. My cultural miscalculations were quickly put to the back burner since I also had miscalculated how much time it takes to prepare for a single class.  Previously, when I taught undergraduates, I could walk into class with three words on a piece of paper and wing a 50-minute lecture, but this was not the case now.  Instead it was like I was back in law school, my 1L year all over again, only now I was ringleader.