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April 2010

April 12, 2010
Two Problems with the New Challenge to Section 5
Guest Post
By Daniel P. Tokaji, an associate professor of law at Ohio State University's Moritz College of law and associate director of Election Law @ Moritz; Mr. Tokaji is also a member of the ACS Board of Directors.

On Wednesday of last week, private citizens and a private organization in Kinston, North Carolina filed a complaint challenging the constitutionality of Section 5 of the Voting Rights Act. This case, LaRoque v. Holder, follows last year's U.S. Supreme Court decision in Northwest Austin Municipal Utility District Number One v. Holder (NAMUDNO), which raised questions about Section 5's constitutionality but ultimately avoided deciding the question.

Plaintiffs in LaRoque are also unlikely to secure a determination of Section 5's constitutionality, though for different reasons than in NAMUDNO. There are two barriers to the federal district court deciding the constitutional issue. The first is that plaintiffs probably don't meet the prudential requirements for standing. The second barrier - even more problematic for plaintiffs - is that they lack a private cause of action to challenge the statute's constitutionality. If the district court follows existing law, it is difficult to see how it can reach the constitutional issue.

Do Plaintiffs Have Standing?

LaRoque arises from a referendum in Kinston, a municipality located in Lenoir County, North Carolina, which is covered by Section 5. Up until now, Kinston has conducted partisan elections for mayor and city council. The referendum, approved by voters in November 2008, would switch from partisan to nonpartisan elections for these offices. The U.S. Department of Justice (DOJ) objected to this change under Section 5, on the ground that the absence of party affiliation on the ballot would harm the ability of African American voters to elect their preferred candidates of choice.

The City of Kinston has not filed a district court action seeking judicial preclearance, as it's entitled to do under Section 5. Instead, the city council has apparently decided to accept DOJ's preclearance denial, voting not to take the matter to court. For this reason, the plaintiff isn't he entity directly subject to Section 5, as was the case in NAMUDNO. Instead, plaintiffs are "voters, prospective candidates, and proponents of citizen referenda," including the one they would like the city to implement (Complaint ¶ 1.)

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Voting rights, Democracy and Voting, Guest Post, LaRoque v. Holder, Section 5, Voting Rights
April 12, 2010
The Dangers of Copyrighting Fashion
Guest Post
By Eduardo M. Peñalver and Sonia K. Katyal. Peñalver is a professor of law at Cornell University Law School and Katyal is a professor of law at Fordham University School of Law. They are authors of Property Outlaws: How Squatters, Pirates, and Protesters Improve the Law of Ownership.

Every business owner dreams of enjoying a legally enforced monopoly. Fashion designers are no different. Although the brands and logos that appear on clothes are protected by trademark law, the designs of fabrics themselves are protected by copyright, and functional innovations in clothing are protectable by patent law, fashion designs themselves are legally, um, naked. For decades, designers have complained that, like painters, filmmakers, architects and authors, they are entitled to intellectual property protection to protect their creative efforts against unauthorized copying. So far, they have been unsuccessful. That hasn't stopped Senator Charles Schumer from teaming up with Harvard law professor Jeannie Suk to try, yet again, to make fashion designers' monopoly dreams come true.

There's broad consensus that the strongest justification for awarding intellectual property protection is to spur innovation in situations where unauthorized copying could deprive innovators of the returns on their investment in the development of new products. The classic example is the drug patent, which prevents copiers from depriving pharmaceutical companies of a return on their investment by cheaply reverse-engineering a drug that cost billions of dollars to develop. But, as the drug example makes clear, creating intellectual property protection comes at a steep social cost. Providing a limited-time monopoly to innovators allows them to charge monopoly prices. While this is arguably necessary to allow innovators to recoup development costs, it also puts the protected goods out of reach of many consumers, as we've seen in the countless debates about access to HIV medicines. Intellectual property protection also generates significant litigation, as parties spend time and resources fighting over the scope of their legal rights.

Because of its significant costs, intellectual property protection should be extended only where the gains to society are clear. The social benefits of protecting fashion innovation, however, seem like a harder case that deserves some caution. For starters, the argument that the fashion industry deserves intellectual property protection has to rest on some version of a claim that, because of copying, existing investment in fashion innovation is lower than it should be. This is a hard claim to credit without strong empirical support. The industry appears to be robust and profitable in the absence of such protections. Moreover, far from making consumers worse off, copying of fashion innovations quickly spreads them to the masses. Intellectual property protection might slow down the process, concentrating the benefits of design innovation in the hands of those who can afford to pay monopoly prices. Indeed, as Chris Sprigman and Kal Raustiala have argued, copying actually appears to drive innovation in fashion as cutting edge designers (and their wealthy customers) try to stay one step ahead of the copiers. Empirically speaking, then, legal protection for fashion may not translate into greater investment in fashion innovation on a broad scale.

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Copyright, copyright, fashion, Guest Post, patent law, Sen. Charles Schumer
April 12, 2010
Examining Justice Stevens and Discussion of Court’s Makeup, Future
Justice John Paul Stevens' announcement that he will retire from the Supreme Court after serving more than 34 years has not surprisingly set off what will likely be heated discussions over the makeup and future of the high court.

The Huffington Post's Dan Froomkin writes, "Stevens's unblinking devotion to human rights, civil rights, and the rights of the little guy have led him to be widely seen as the Last Great Liberal Justice, the end of a lineage that included William Brennan, Thurgood Marshall and William O. Douglas. But Stevens is something else entirely. He is actually the last of the Moderate Republican Justices."

Froomkin notes that Stevens may be seen as representing or leading the liberal wing of the Supreme Court, but in actuality the high court has been on a "steady march to the far right," for long while now. "The four zealots on the Court - Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito - engage in such extremist, blindered legal thinking that there's almost no chance any of them will ever join an even vaguely mainstream verdict."

Cliff Sloan, a former law clerk for Justice Stevens and a partner at Skadden, Arps, writes in a column for The Washington Post:

Pundits pegged him as a maverick in his early years and then, more recently, as the ‘leader of the liberal bloc' and a de facto chief justice on many issues. The most apt description, however, is the one a senator used when President Gerald Ford nominated Stevens to the Supreme Court: ‘a judge's judge.'

In a post for The Root, University of Maryland law school professor Sherrilyn Ifill writes, "Until the rightward tilt of the Court (that began in earnest under Chief Justice Rehnquist and has intensified under Chief Justice Roberts), Stevens was long considered a moderate." Ifill goes on to provide the president, not with names of potential replacements, but ideals he should consider in filling the seat.

For Ifill, diversity, on the current high court is woefully lacking.

Ifill notes that ideology is one area that could use some diversifying:

There are no liberals on the Court - save, perhaps, Justice Ginsburg. There are however, several true conservatives on the Court. As a result, the decisions of the court - even the dissents - are overwhelmingly center-right decisions. The Court's decision-making would be enhanced by including the perspectives and thinking of a lawyer on the ideological left.

Writing for Politico, William Yeomans, an American University law school professor and former chief counsel on the Senate Judiciary Committee, also notes the current high court's lack of diversity. All nine of today's justices, Yeomans writes, have come from federal appeals courts.

"Recent presidents have nominated judges to reduce uncertainty about positions the nominees might take on the court and smooth the road to confirmation," Yeomans writes.

"But," he continues, "the Supreme Court - and the nation - have paid a high price for that caution. The court's vision has narrowed, as has its understanding of our democratic processes. Too often, it seems out of touch with the law's impact on ordinary people."
Yeomans argues that President Obama should therefore select a politician to fill Justice Stevens' seat. Better yet, he writes, "a sitting senator," such as Sen. Sheldon Whitehouse. During the ACS 2009 National Convention, Sen. Whitehouse discussed some of the qualities that shoud be considered in selecting a justice for the high court.

"Political skills matter on the Supreme Court," he writes. "Moving legislation through the Senate and getting to five votes on the court both require building relationships, forging compromise, knowing when to fight and when to cut the best possible deal."

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Supreme Court, Justice John Paul Stevens, Supreme Court
April 12, 2010
Virginia Adds Obstacle for Voting Rights
Gov. Robert McDonnell of Virginia is erecting an additional obstacle for nonviolent felons seeking restoration of their voting rights. News broke over the weekend that McDonnell's office is replacing the one-page form previously filed by those seeking a return to suffrage with an essay explaining the circumstances of their conviction, the employment they have obtained post-incarceration, and other contributions to society.

McDonnell's decision drew the ire of civil liberties organizations and African-American community leaders for the second time in a week. His previous gaffe was a celebratory declaration of "Confederate History Month." Under pressure from critics, he apologized for failing to mention slavery in the announcement, which he recognized as "an evil."

The Washington Post recorded reactions to McDonnell's latest decision to anger a host of community leaders, including members of the commonwealth's black caucus:

"It's another roadblock," Sen. Yvonne B. Miller (D-Norfolk), a member of the Virginia Legislative Black Caucus, said when she was told of the change.

Miller has repeatedly introduced unsuccessful bills to allow nonviolent offenders to have their rights restored automatically. "This is designed to suppress the rights of poor people," she said.

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Voting rights, Criminal Justice, Democracy and Voting, Confederate History Month proclamation, Democracy Restoration Act, Gov. Bob McDonnell
April 9, 2010
President’s Pick to Head Office of Legal Counsel Withdraws Nomination
President Obama's nominee to lead the Office of Legal Counsel (OLC), selected well over a year ago, has withdrawn her nomination, The Associated Press reported Friday. Dawn Johnsen, an Indiana University law school professor, who has extensive service in the OLC, serving as its acting head during the Clinton administration, faced vociferous opposition from Senate Republicans and conservative pundits. Johnsen, a former member of the ACS Board of Directors, was targeted for her past work on behalf of reproductive rights groups and her criticism of the Bush administration's OLC, especially its memorandums advocating for torture of military detainees.

White House spokesman Ben LaBolt blamed Senate Republicans for the failed nomination.
"Her credentials are exemplary and her commitment to the rule of law has been proven time and again, but it is now clear that Senate Republicans will not allow her to be confirmed," LaBolt said. He added that "it is time for the Senate to move beyond politics and allow the Office of Legal Counsel to serve the role it was intended to - to provide impartial legal advice and constitutional analysis to the executive branch."

Johnsen's nomination received the backing of former Department of Justice leaders, of both political persuasions, scores of law school professors and newspaper editorial pages nationwide. Attorney General Eric Holder on numerous occasions strongly urged the Senate to stop holding up Johnsen's confirmation.

In March, 400 law professors sent a letter to the Senate Judiciary Committee urging it move her nomination.

The letter, in part, maintained:

Professor Johnsen is immensely qualified for this position. She has extensive previous experience in the Office of Legal Counsel, including service as its acting head for more than a year during the Clinton Administration. Doug Kmiec - the OLC head under Presidents Ronald Reagan and George H.W. Bush - has applauded Professor Johnsen's track record during that service, noting that she "repeatedly separated policy preference from rendered opinion."

In February, The New York Times editorial paged blasted Republican obstructionism, calling Johnsen, "a highly qualified choice" whose nomination has drawn "baseless objection."

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Executive power, Separation of Powers and Federalism, Dawn Johnsen, Office of Legal Counsel, OLC, Senate