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This semester marks the end of Professor Margaret Montoya’s law teaching career at UNM School of Law. Professor Montoya will leave the Law School to serve full-time as Senior Advisor to Chancellor Paul Roth at Health Sciences for one more year prior to her retirement. This is my final salute to an inspiration, a valued colleague, a fierce voice, an innovative teacher, a renowned and prolific scholar and a friend. Her remarkable achievements are truly tremendous and she leaves both a legacy and a huge impression in our legal landscape that will take an effort to fill.

Written by Marjorie Cohn; originally posted on Truthout.org, Tuesday May 10, 2011 When he announced that Osama bin Laden had been killed by a Navy Seal team in Pakistan, President Barack Obama said, "Justice has been done."  Mr. Obama misused the word, "justice" when he made that statement.  He should have said, "Retaliation has been accomplished." A former professor of constitutional law should know the difference between those two concepts.  The word "justice" implies an act of applying or upholding the law. Targeted assassinations violate well-established principles of international law.  Also called political assassinations, they are extrajudicial executions. These are unlawful and deliberate killings carried out by order of, or with the acquiescence of, a government, outside any judicial framework. Extrajudicial executions are unlawful, even in armed conflict. In a 1998 report, the United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions noted that "extrajudicial executions can never be justified under any circumstances, not even in time of war." The U.N. General Assembly and Human Rights Commission, as well as Amnesty International, have all condemned extrajudicial executions.

Written by Benjamin G. Davis At the same time that the torture apologists are all over the news (Rumsfeld, Cheney (pere et fille), Rep. King, Yoo, Hayden, Panetta (slipperily), O’Reilly and his club, Hannity and his club, KeepAmericaSafe.com and their club), there are former military and CIA interrogators and officers and Chief SERE trainer Nance who are flat out rejecting the narrative that 1) KSM and Al-Libi’s torture procured the key information that led to Osama Bin Laden 2) that the Enhanced Interrogation Techniques worked at all. In a segment entitled “Dick Cheney defends torture methods” about 8 minutes in on the Ed Show, Ed Schultz asks Matthew Alexander, a former senior military interrogator who tracked down senior Al Qaida leaders in Iraq, about the Cheney defense. http://www.msnbc.msn.com/id/21134540/vp/42967008#42967008

Associate Professor of  Law Benjamin G. Davis was interviewed on Toledo 13ABC at 6h00 Action News on Thursday 5/5 and on 13ABC Roundtable with Jeff Smith on Sunday 5/8 on the legal issues regarding the killing of Osama Bin Laden.  On Thursday, he discussed the law related to the…

This tribute was originally posted on April 28, 2011 on intlawgrrls.  With my apologies, Diane Amann's tribute to Keith Aoki  from intlawgrrls was accidentally cross-posted on this site on May 4 under my name without my knowledge but with the best of intentions.  That post has been deleted and I am providing my tribute to him below. Hari Osofsky Over the last few days, I have struggled for words as I have attempted to process losing Keith Aoki from this world. I have been privileged to have him as a close friend and mentor, and he has deeply shaped who I am and how I approach my job as a legal academic. My condolences go out to all who feel this loss, especially his family, and I encourage the many people who his life has touched to give generously to support his daughters. The night I found out he was dying, though, there were words I needed to say to Keith, most importantly, thank you. Keith was always hard to thank, not because he didn’t richly and repeatedly deserve it, but because he would cut me off rapidly and decisively when I tried. He was profoundly modest and humble, as so many have said, but also exuded an irrepressible energy that demanded looking outward to the next challenge. Yesterday, at my last property class of the semester, as I looked out at students already stressed in contemplation of their upcoming Con Law exam, I decided that one of the best ways to thank Keith was to continue to pass forward some of what I have learned from him. I reflected to them about two of the qualities that Keith had which really influenced me: embracing creative passion and being there for people (and the world). I do so here again in a somewhat different variation.

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.

By Olympia Duhart When I went to see the movie Biutiful, I was especially looking forward to experiencing (at least on film) parts of Barcelona, Spain. My friend Diego, from Barcelona, promised me that once I saw the film I would be eager to visit his stunning city. He has never been more wrong. Biutiful, the intense and sometimes disturbing film by Alejandro González Inárritu, is many things. But an advertisement for Barcelona tourism is not one of them. The film is relentless in its visceral exposure of a naked and desperate city that is plagued with modern-day ills.  In 148 minutes, Biutiful challenges us to consider mental illness, health care failures, racism, homophobia, police brutality, the exploitation of undocumented workers and poverty. Although set abroad in one of the most beautiful European cities, it could be set in almost any city in the world.  The story would almost be undisturbed, for instance, if it were filmed in my own home town – Miami. The conflicts that propel the story, frustrate the protagonist and overwhelm the audience are all too common. Uxbal, the 21st century construction of The Bible’s Job portrayed by Javier Bardem, is struggling to balance a life amidst utter chaos. He also is trying very hard to protect his family and though he falters, he never abandons his quest to restore his damaged moral compass. He is a complicated and troubled man who is trying to make some money in the seedy underground business world and navigate several personal trials. His special connection to the after-life is entirely overshadowed by the turmoil of his grueling life here on earth. He has to worry about the police, a mentally ill wife, a dishonest brother, a serious illness and generally surviving life in the ghetto. Bardem has said of his role that it was “the heaviest movie I’ve done in my life and one of the heaviest I will ever do.” It’s easy to see why.Biutiful refuses to glamorize the difficulties inherent in each of the obstacles blocking Uxbal’s path to redemption. It presents a host of maladies with raw and tragic realities. For example, mental illness is difficult to diagnose, impossible to manage without professional help and likely to disrupt even the most precious love. It is made more dangerous among poor people who cannot afford treatment. Though mental health disorders are now pervasive throughout the United States, many sufferers do not receive treatment. Sometimes cultural bias restrains mentally ill people from accessing the mental health care they need. The results wreck entire families. Uxbal’s trials with his mentally ill wife demonstrate these truths.

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.

By Lisa R. Pruitt In a prior post about Thomas Espenshade and Alexandria Walton Radford’s book, No Longer Separate, Not Yet Equal:  Race and Class in Elite College Admission and Campus Life, I mentioned Ross Douthat’s assertion that “the downscale, the rural and the working-class” whites were most disadvantaged in elite college admissions.  In this second installment about the book and Douthat’s 2010 column comments on it, I want to discuss the rural issue, which Douthat characterizes as bias against rural or “Red America.”  Douthat wrote: “[W]hile most extracurricular activities increase your odds of admission to an elite school, holding a leadership role or winning awards in organizations like high school R.O.T.C., 4-H clubs and Future Farmers of America actually works against your chances.” In his response to Douthat’s initial column, Espenshade clarified that rural-oriented extracurriculars are not the only ones whose value is discounted by admission offices.   Espenshade wrote: “These extracurriculars might include 4-H clubs or Future Farmers of America, as Douthat mentions, but they could also include junior ROTC, co-op work programs, and many other types of career-oriented endeavors.  Participating in these activities does not necessarily mean that applicants come from rural backgrounds.  The weak negative association with admission chances could just as well suggest that these students are somewhat ambivalent about their academic futures.” As a related matter, Espenshade clarifies that applicants from “Red” states have better odds of getting into an elite university than those from more populous states, many of which are “Blue.”

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 Lisa R. Pruitt Parts I and II of this series appeared in August, 2010 here and here. Ever since Ross Douthat discussed No Longer Separate, Not Yet Equal: Race and Class in Elite College Admission and Campus Life in a July 2010 column, I’ve been fretting about some of the book’s findings.  This 2009 book discusses the authors' exhaustive study of college admissions, with particular attention to elite colleges.  Among the conclusions of Princeton sociologists Thomas Espenshade and Alexandria Walton Radford is that whites and Asians needed higher grades and SAT scores to gain admission, while blacks and Hispanics were favored in the admissions process.  Stated thusly, I am not troubled by the finding.  But then Douthat makes a related point, about the consequences of this fact on “lower-class” whites: "For minority applicants, the lower a family’s socioeconomic position, the more likely the student was to be admitted. For whites, though, it was the reverse. An upper-middle-class white applicant was three times more likely to be admitted than a lower-class white with similar qualifications." Douthat goes on to explain that this failure to admit more working- and other “lower-class” whites may be “a money-saving tactic.”  Specifically, “Espenshade and Radford suggest that these institutions, conscious of their mandate to be multiethnic, may reserve their financial aid dollars ‘for students who will help them look good on their numbers of minority students,’ leaving little room to admit financially strapped whites.”

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…

By Lisa R. Pruitt Martha McCluskey wrote a couple of weeks ago on the ClassCrits Blog about some questions regarding class that arose at Martha Fineman’s recent workshop, Masking and Manipulating Vulnerabilities, at Emory Law School.  To summarize, McCluskey asked whether it is “problematic to analyze class as a category of inequality without directly engaging questions of labor rights?” The genesis of that conversation at Emory was my speculation regarding the reasons for resistance to class analysis regarding whites and, by extension, resistance to the vulnerability paradigm.  Like my other recent work on class, my comments at Emory  focused on class mobility and did not engage issues of collective mobilization.  I thus believe the clear answer to McCluskey’s question is “no.”  Class mobility (think class ascension, although the sad trend these days is downward mobility) and class mobilization (as through unionizing and labor rights) seem to me different paths to empowerment of the working class and poor.  I see these as able to reside comfortably, side-by-side, on parallel tracks.  Indeed, now that McCluskey (echoing others at the Emory workshop) has voiced this issue, I find myself surprised that we do not see more law professors writing about class (im)mobility in a way that separates the issue from racism. That is, I am concerned that socially conscious progressives see challenges to upward mobility as stemming primarily, even solely, from bias against minorities.  If this is the case, we are failing to see that whites, too, are increasingly victims of the inequality gap and its attendant barriers to upward class migration.

This report reviews the results of the April 2011 meeting of the Standards Review Committee (SRC), but omits discussion of the committee discussion of security of position, which is reviewed in a previous report, available here. In each section, reference is made to subcommittee reports; those are subcommittees of the SRC, charged with drafting language and bringing it to the full committee for discussion and ultimate decision. The standards and topics addressed in this report are: * Bar pass rate requirements (Standard 301) * Admissions and student services, including use of the LSAT in admissions (Chapter 5) * Student learning outcomes (part of Chapter 3) * Other issues in Chapter 3: Program of Legal Education, including discussions of attendance policies, distance education, and paid externships * Faculty responsibilities (Standard 404) * Law school administration and organization (Chapter 2) * Facilities (Chapter 7)

The Standards Review Committee (SRC) held an open forum at the beginning of its meeting on April 2-3. Commentators focused on security of position and its relationship to law school governance and academic freedom. Speakers from SALT, CLEA (the Clinical Legal Association), ALWD (the Association of Legal Writing Directors), and the AALS, along with a number of individual faculty members, raised concerns about a subcommittee draft that would eliminate any requirement of tenure or other job security for law faculty from the ABA’s accreditation standards. This memo summarizes the public testimony on tenure and security of position, the SRC’s debate about the proposed changes to the tenure/security of position standard, and the outcome of that debate.