May 2010

  • May 5, 2010

    In a recent piece for Slate, Simon Lazarus of the National Senior Citizens Law Center and George Washington University Law Professor Alan Morrison provide a sharp critique of the anti-health care reform lawsuits filed by several attorneys general. According to Morrison and Lazarus, the author of an ACS Issue Brief on the constitutionality of health insurance mandates, "The state attorneys general efforts to block health care reform aren't just wrong. They're frivolous."

    Lazarus and Morrison write:

    The first problem is that state governments are the wrong plaintiffs to challenge the individual insurance mandate. No state will ever have to pay a penny in taxes or be told to take out health insurance: The law applies only to individuals. The attorneys general might have attempted to plug this gap by adding individual plaintiffs to their complaints. But even if they found those people, the AGs couldn't sue on their behalf right now, because the mandate does not take effect until 2014. Between now and then, all kinds of things could cause plaintiffs to lose their standing to sue: Their health could deteriorate and they could actually need health insurance; they might get a job with health benefits; or they might just have a change of heart. Any or all of these contingencies are quite likely, if a Massachusetts state government survey showing that only 2.6 percent of Massachusetts residents do not comply with the mandatory insurance requirement in that state's law is any indication. In lawyers' language, not only will the state attorneys general never have standing to bring these claims on their own; even the claims of real individuals are not yet "ripe."

  • May 5, 2010
    Guest Post

    By Jamil Dakwar, director of the ACLU's Human Rights Program (HRP), and Cristina Finch, managing director of Government Relations for Amnesty International USA

    Cross-posted at The Huffington Post

    In a recent speech to the American Society of International Law (ASIL) the legal advisor to the State Department, Harold Koh, stressed the "most important difference" between the Obama and the Bush administrations is their "approach and attitude toward international law." Koh said this difference is illustrated by an emerging "Obama-Clinton Doctrine," based on a commitment to four main principles: "principled engagement; diplomacy as a critical element of smart power; strategic multilateralism; and the notion that living our values makes us stronger and safer, by following rules of domestic and international law; and following universal standards, not double standards."

    The commitments to "principled engagement" and "living our values" are especially vital to advancing human rights. For years, U.S. leadership on the world stage has suffered because the U.S. seems to hold a double standard on human rights. Historically, notions of U.S. exceptionalism and selectively ignoring injustices and human rights violations at home and abroad have bred mistrust of U.S. leadership based on our incomplete commitment to universal human rights. The Obama administration, however, has committed to leading by example. According to Secretary of State Hillary Clinton, this means "holding everyone to the same standard, including ourselves."

    In many areas, the administration's actions have matched its rhetoric. Joining the United Nations Human Rights Council and signing the Convention on the Rights of Persons with Disabilities have both sent the right message that President Obama is prepared to engage with the international community on new and more principled terms than previous administrations. The appointment of many officials who are self-defined human rights champions with careers both inside and outside the government promoting civil and human rights evinces a commitment to "a vision of common humanity, universal rights and rule of law." Moreover, the willingness of this administration to work with members of civil society to align our human rights rhetoric with our human rights practices demonstrates a commitment to lead by example based on both "principled engagement" and "living our values."

  • May 4, 2010

    An American Bar Association conference scheduled for next weekend in Phoenix, Ariz. is stirring controversy in the wake of the state's passage of a new law criminalizing undocumented presence for some in the state. Many who planned to attend and support the conference are withdrawing their support as part of a movement to boycott companies from, and travel to, the state.

    The New York Law Journal reports:

    The City Bar Justice Center, the pro bono arm of the New York City Bar, on Monday called for the conference to be moved to another state, while the Legal Aid Society said three employees who had intended to go will not attend. The board of the National Legal Aid & Defender Association, which was to co-sponsor the conference, voted late Monday to pull out of the event.

  • May 4, 2010
    Guest Post

    By Marc Mauer, Executive Director, The Sentencing Project & Author, Race to Incarcerate

    In the midst of often rancorous debate on Capitol Hill, growing bipartisanship is developing in an area that many would have thought extremely unlikely: criminal justice reform. Just last week legislation to establish a national commission to examine the criminal justice system was introduced in the House by the unlikely mix of liberal Democrats William Delahunt and Marcia Fudge along with conservative Republicans Darrell Issa and Tom Rooney. The legislation mirrors a bipartisan bill, introduced by Sen. Jim Webb (D-VA), passed by the Senate Judiciary Committee earlier this year. At the time of the bill's introduction, Sen. Webb wrote, "With so many of our citizens in prison compared to the rest of the world, there are only two possibilities. Either we are home to the most evil people on earth or we are doing something different - and vastly counterproductive. Obviously, the answer is the latter."

    The criminal justice commission bill comes at a time when significant reform to federal sentencing policy may become a reality for the first time since the enactment of a slew of mandatory sentencing policies in the 1980s. Legislation to reform the longstanding and notorious differential in sentencing between crack and powder cocaine was passed by unanimous consent in the Senate in March and is likely to gain similar support in the House. Under current law, sale of 500 grams of powder cocaine results in a mandatory five-year prison term. But for crack cocaine, possessing as little as five grams carries the same five-year penalty. This 100:1 quantity disparity ratio has been broadly criticized for leading to large-scale prosecutions of low-level crack cocaine offenders, 80 percent of whom have been African American.

  • May 4, 2010
    In a new Issue Brief distributed by ACS, Colorado University law school professor Scott A. Moss examines the current Supreme Court and its changing view toward litigation.

    Once, Moss writes, the high court viewed "litigation as an important tool for redressing grievances, deterring wrongdoing, and spurring social reform." But the justices who once joined in advancing that view are no longer on the bench, "and now the Court regularly issues rulings based on a more negative view of litigation - a view that stresses litigation's burdens on defendants rather than its importance to plaintiffs, to society, and to the vindication of policies Congress enacted."

    Moss explores "the trend toward more hostility and less support for litigation is noticeable, and the Court's hostility to litigation disproportionately skews outcomes in favor of defendants, most commonly businesses sued by those claiming deprivations of various rights and protections, such as workplace anti-discrimination rights, consumer rights, wage rights, and protection against unlawful competition."

    Is the trend likely to continue? Moss believes so especially if the high court, and lower federal courts, continue to include justices with very similar professional backgrounds.

    The tougher stance toward litigation and the "pro-defense perspective," is better explained by the current justices' professional backgrounds. The problem, Moss maintains, "is that however varied their ideologies and philosophies, the Justices largely share a negative perception on civil litigation - a shared perspective that may reflect their largely homogenous professional background and experiences." Lower federal courts, Moss writes, also reveal a "similar homogeneity, with little change in the professional profile of the judicial nominees of the Clinton administration and the George W. Bush administration."

    The Issue Brief, "Judicial Hostility to Litigation and How It Impairs Legal Accountability for Corporations and Other Defendants," is available here.