• May 26, 2015
    Guest Post

    by M. Gregg Bloche, M.D., professor of law at Georgetown and author of The Hippocratic Myth.

    Credit the State of Utah for bringing back the firing squad.

    Two months ago, the state made the rifleman its method of killing when lethal drugs aren’t available. Health professionals and drug companies are saying “no” to participation in executions, and this spring, the trade association representing America’s pharmacists said it would “discourage” them from purveying their own lethal drug mixes on death row.

    So-called “compounding pharmacies” became death-row suppliers of last resort after Big Pharma got out of the execution business.  Not anymore, unless some pharmacists go rogue by defying their trade body.  Executioners around the country are now scrambling to secure drugs that kill, and they’re experimenting with unproven alternatives to the classic, three-drug fatal sequence.

    Death by chemistry emerged almost 40 years ago as a response to our contradictory expectations of capital punishment. As crime rates soared in the late seventies and early eighties, so did our retributive ire. America re-embraced the death penalty, ending a ten-year moratorium, when a Utah firing squad shot Gary Gilmore in January 1977.

    But we wanted to make the killing “humane.” Less than four months later, Oklahoma enacted the first lethal injection law, based on a protocol developed by a doctor. In the 1980s, as executions again became commonplace, the Oklahoma protocol became the prevailing method.

    Medical associations took stands against their members’ participation, but states readily found health professionals willing to flout Hippocratic prohibitions. Some corrections departments kept doctors’ names secret, paid them in cash, and otherwise hid their involvement. State-sanctioned medical killing on the down-low thus became routine.

  • May 26, 2015

    by Caroline Cox

    Keith Alexander and Geoffrey Stone argue in The Christian Science Monitor that Congress needs to tackle surveillance reform in order to protect American privacy.

    At The Washington Post, Sari Horwitz reports that the Justice Department has reached a settlement in its investigation into the conduct of Cleveland police officers.

    Olga Khazan discusses at The Atlantic the increasing costs of abortion due to new state laws that require waiting periods before the procedure.

    Lawrence Hurley writes at Reuters that the biggest victor in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, a case concerning the disparate impact standard of the Fair Housing Act, could be Wall Street.

     At Jost on Justice, Kenneth Jost considers the national vote in Ireland to legalize same-sex marriage and how the U.S. Supreme Court will decide on the same issue.

  • May 22, 2015
    Guest Post

    by Thomas O. McGarity is a Member Scholar and past president of the Center for Progressive Reform, and a professor at the University of Texas Law School. He is the author of Freedom to Harm: The Lasting Legacy of the Laissez Faire Revival.

    The Wall Street Journal recently devoted nearly two pages of its Saturday Review section to an editorial by Charles Murray of the American Enterprise Institute urging American corporations to violate laws that they deem to be “pointless, stupid or tyrannical” as acts of civil disobedience.  The article, which is a capsule summary of his recently published book titled By the People: Rebuilding Liberty Without Permission,” betrays a profound misunderstanding of the concept of civil disobedience and a deplorable contempt for the laws that Congress and state legislatures have enacted to protect their citizens from corporate malfeasance.

    This is, of course, the same Charles Murray who has made millions of dollars writing poorly documented books like The Bell Curve and Losing Ground, which were designed to allow conservative politicians to feel good about reducing welfare for the poor, limiting immigration from Latin America, and eliminating affirmative action policies.  If for no other reason than that Charles Murray is one of almost-candidate Jeb Bush’s favorite authors, his newest salvo bears close scrutiny.

    The essential underlying premise of the article is that the Code of Federal Regulations is chock full of senseless regulations, the violation of which could not possibly lead to any actual harm to anyone.  This premise is an article of faith for critics of federal regulation, but it has little basis in fact.  The one actual regulation he cites (an OSHA standard requiring railings for exposed stairway floor openings to be 42 inches high) may be far more detailed in its specification than it needs to be, but it is by no means senseless.  As Murray recognizes, it is intended to prevent workers from precipitous falls.

    Murray’s big idea is for companies in various regulated industries to get together and agree to engage in acts of “civil disobedience” by consciously violating regulations they deem senseless.  He points out that regulatory agencies have become so debilitated that they do not have nearly enough inspectors to detect violations of any of their regulations.  The agencies therefore depend to a great extent on voluntary compliance with their regulations.  Murray suggests that if companies just quit voluntarily complying with what they deem to be pointless, stupid or tyrannical regulations, the agencies would probably not penalize them (just as the traffic cop stationed next to a crowded freeway does not try to pull over speeders who are traveling with the flow of traffic), and the world would be a better place.  Those violators that the agencies did prosecute should fight the government tooth and nail to send the message that corporate America will no longer tolerate the injustice of senseless regulation. What’s more, he proposes that as part of this conspiracy to break the law, the corporations should create “defense funds” to which they’d all contribute, to pay the legal fees of the ones who get caught.

    Murray’s idea is a gross perversion of the concept of civil disobedience as the nonviolent violation of a law that the violator deems to be unjust and the willingness to suffer the legal consequences to demonstrate the law’s injustice.

  • May 22, 2015

    by Caroline Cox

    Yesterday, President Obama nominated Edward L. Stanton III to serve on the United States District Court for the Western District of Tennessee. Stanton is currently the U.S. Attorney for the Western District of Tennessee and would replace Judge Samuel H. Mays.

    Also on Thursday, senators confirmed Jill Parrish to be a U.S. District Judge for the District of Utah and Jose Rolando Olvera Jr. to be a U.S. District Judge for the Southern District of Texas. Both nominations were confirmed by votes of 100-0.

    These confirmations doubled the number of judges confirmed in 2015. As The Hill reports, Senate Minority Leader Harry Reid made critical comments about the pace of judicial confirmations earlier in the week, saying, “We know there are judicial emergencies and vacancies throughout the country. But we’ve only considered two judges in this entire Congress.” Articles in The Washington Post and The Wall Street Journal also voiced concern over the low number of confirmations so far this year.  

    There are currently 55 vacancies, and 24 are now considered judicial emergencies. There are 17 pending nominees. For more information see

  • May 22, 2015

    by Caroline Cox

    Kara L. Hartzler, the 2013 recipient of ACS’s David Carliner Public Interest Award, won a major immigration case before the U.S. Court of Appeals for the Ninth Circuit, which Daniel M. Kowalksi highlighted at LexisNexis Legal Newsroom . Hartzler, who has served on the San Diego Lawyer Chapter’s Board of Directors, successfully represented George Camacho Garcia in appealing an immigration judge’s decision.

    In The New York Times, Richard Pérez-Peña reports on the indictment of six Baltimore police officers for the death of Freddie Gray.

    At the Democracy in America blog of The Economist, Steven Mazie discusses the Court’s decision in Comptroller v. Wynne, calling the decision an encouraging sign “that the justices are not always captive to their predilections.”

    Cristian Farias takes a look in New York Magazine at the Supreme Court’s first decision on a police officer shooting case since the Ferguson protests began.