October 2011

  • October 18, 2011

    by Nicole Flatow

    In the fifth session of the American Constitution Society’s webcast series, “What the Constitution Means and How to Interpret It,” University of Chicago law professor Aziz Huq will consider the concept of separation of powers.

    During a 30-minute live-streamed discussion, Huq will address presidential powers during wartime, and how the scope of executive power has changed since 9/11. Following a 15-minute presentation, Huq will take questions for 15 minutes.

    Other webcasts in the nine-part series on understanding the Constitution will focus on democracy, criminal justice and liberty. Each session, led by a preeminent scholar, mirrors a chapter in the ACS-published book, Keeping Faith with the Constitution, by Pamela Karlan, Goodwin Liu and Christopher H. Schroeder.

    Lawyers, law students and non-lawyers are encouraged to participate and interact with questions, tweets and Facebook comments. If you are on Twitter, please join ACS both during and after tomorrow’s session at the hashtag #ACSclass.

    The Oct. 19 webcast will occur at 3 p.m. EDT and is free and open to everyone. To see the full schedule, accompanying readings and audio recordings of previous webcasts, visit the web page for “What the Constitution Means and How to Interpret It.”

  • October 18, 2011
    Guest Post

    By Brooke Lierman, an attorney at the civil rights firm, Brown, Goldstein & Levy LLP in Baltimore, Md. Ms. Lierman is on the Executive Committee of the Maryland Lawyer Chapter of ACS.


    The White House recently added to its growing list of Champions of Change, a group of 16 individuals working, in the words of Attorney General Eric Holder, “to address and to overcome our most pressing legal challenges and to live up to our nation’s highest ideals.” 

    The event, last week, was the latest in a series sponsored by the White House Office of Public Engagement (OPE), which seeks (in the words of the Office’s director Jon Carson) to shine a spotlight on the good work that Americans are doing every day in their communities.

    This event was organized jointly by OPE and the Department of Justice Access to Justice Initiative, an office created by Attorney General Holder (pictured) to ensure that basic legal services are available and accessible to everyone in the country.  

    Attorney General Holder offered some prepared remarks discussing the important work that the honorees perform in their communities.  The 16 individuals, listed below, represented all spheres of the legal community – from professors to directors of legal services programs to general counsel of a major corporation. The White House and Department of Justice honored them and invited them to participate in roundtable discussions about the challenges facing today’s legal system. 

  • October 18, 2011
    Guest Post

    By Reuben Guttman and Oderah Nwaeze. Reuben Guttman is a Director at the firm of Grant & Eisenhofer and heads the firm's False Claims Act litigation group. He is a Senior Fellow and Adjunct Professor at the Emory Law School Center of Advocacy and Dispute Resolution. Oderah Nwaeze is member of the Grant & Eisenhofer False Claims Act Litigation Group, and a 2011 graduate of Emory Law School.


    Buried in President Obama’s healthcare reform law, the Patient Protection and Affordable Care Act (PPACA), is a measure called the Physician Payments Sunshine Provision or the “Disclosure Law.” This law requires the public disclosure of payments made to doctors by pharmaceutical and medical device manufacturers.  Since even small gifts can compromise a doctor’s objectivity, a patient should know whether his physician has received money and/or gifts from drug or device companies.  Recent civil prosecutions of the pharmaceutical and medical device industries under the False Claims Act (FCA), resulting in pharmaceutical giants paying millions of dollars to resolve allegations that they paid kickbacks in order to induce the writing of prescriptions, demonstrates that the transparency required by this law is long overdue.

    The FCA allows private citizens with knowledge of a fraud on the government to bring suit in the name of the government. Whistleblower cases brought under the FCA against some of the world's largest pharmaceutical companies have surfaced allegations and information raising real concerns that illegal marketing schemes including off label marketing -- or marketing a drug for purposes outside its indication -- and kickbacks in form of payments made to doctors under the guise of research studies -- have caused billions of dollars of prescriptions to be written for drugs that are not needed or that may actually cause injury or illness with additional costs for treatment further burdening our nation's health care system. Within the last five years alone, Pfizer, AstraZeneca, Boston Scientific, Eli Lilly, and Biovail paid a combined total of $4.3 billion to settle claims of unlawful marketing.  Although Pfizer's share was a record $2.3 billion, the company posted revenues of more than $171 billion for the drugs that were illegally marketed. To a large degree, these settlements -- even with the huge monetary sanctions -- only serve to highlight problems rather than fully address them.     

  • October 17, 2011

    by Jeremy Leaming

    A couple of national newspaper columnists examine some numbers and commentary on poverty and economic inequality, as the Occupy Wall Street protests hit their one month anniversary with noted momentum.

    The Washington Post columnist E.J. Dionne Jr., notes in this piece, some comments on poverty rates of families made during a recent Republican presidential debate by former U.S. Sen. Rick Santorum. Essentially Santorum, a longtime advocate of Religious Right activists, argues that government should push policy that supports only families headed by mothers and fathers. “You can’t have a wealthy society if the family breaks down,” Santorum said.

    Dionne says Santorum “is broadly right,” citing a study by the National Center for Children in Poverty covering “the 2005 – 09 period,” that “5 percent of married family households were poor at some point within a given year, compared with 28.8 percent of single-parent households. For 2010, the figures were 8.4 percent and 39.6 percent, respectively.”

    But instead of going off on a tangent about how government recognition of marriage for gay couples will render straight marriages meaningless, as Santorum often does, Dionne says “Liberals should acknowledge, as Obama has, that strengthening the family is vital to economic justice. Conservatives should acknowledge that economic justice is vital to strengthening families.”

    And Dionne points to some work in this area by Harry Holzer, a professor at the Georgetown Public Policy Institute, and Peter Edelman, an ACS Board member and longtime advocate for tackling poverty in America.

    In a 2006 book published by the Urban Institute, Holzer, the late Paul Offner, and Edelman (pictured) tackle “the thorny challenge of getting ‘disconnected’ young men back in school or the workforce.”

    The book, Reconnecting Disadvantaged Young Men, focuses on African American and Hispanic men “because young women have made more progress in recent years and their prospects have been spotlighted in discussions of welfare reform and other social changes,” a press statement about the publication says.

  • October 17, 2011

    by Nicole Flatow

    On the heels of news reports that foreclosure rates have surged, two scholars are taking on criticism from the mortgage industry of several recent court decisions invalidating foreclosures.

    “[T]he decisions in these cases are not extreme examples of judicial hyper-technicality run amok,” write Peter Pitegoff, dean of the University of Maine School of Law, and Laura Underkuffler, a professor at Cornell University Law School in a new American Constitution Society Issue Brief. “Rather, they are attempts to address the radically new foreclosure realities in the age of mortgage securitization and subprime lending – realities that existing laws, on many levels, are inadequate to address.”

    The authors of “An Evolving Foreclosure Landscape: The Ibanez Case and Beyond” analyze the holdings in several recent cases that dismissed foreclosure actions for failure to provide adequate documentation, including a widely publicized Massachusetts case, U.S. Bank National Ass’n v. Ibanez.

    While the reasons for dismissal in these cases may appear “highly technical,” Pitegoff and Underkuffler explain, they are nonetheless crucial to ensuring that the burden of proof in foreclosure actions remains on the foreclosing party, that contracts involving housing are treated with a care that matches their societal importance, and that courts are more than just “automatons mindlessly processing paper motions in mortgage foreclosure actions.”

    “Neither Ibanez, nor any of the other cases discussed here, forbids mortgage securitization, multiple mortgage and note assignments, or other complex real estate financing transactions,” the authors write. “… The issue is not the blanket forbidding of complex transactions; it is the protection of all rights, including those of the property owner, when default and foreclosure are claimed.”

    Read the full Issue Brief here