February 2012

  • February 29, 2012

    by Jeremy Leaming

    According to at least some polling the Tea Party infused meme that the landmark health care reform law is constitutionally flawed because the law’s minimum coverage provision is a wild overreach of congressional power has had some success. But pollsters, thankfully, won’t determine whether the law stands or falls.

    The Supreme Court, which hears oral argument in the states’ challenge to the Affordable Care Act in late March, of course will have the ultimate say in his matter. And according to an array of constitutional law experts it’s a matter that shouldn’t be a difficult call.

    In a piece for the Federalist Society’s Harvard Journal of Law and Public Policy, UNC law professor and constitutional law expert William P. Marshall details why the ACA fits within the nation’s “constitutional culture,” as defined by the late Chief Justice William Rehnquist. (In Planned Parenthood v. Casey, Marshall writes, that for Rehnquist “constitutional culture is akin to the beliefs about constitutional meaning that are embedded in what he calls the ‘national psyche.’”)

    Opponents of the health care law say it goes against the nation’s commitment to “rugged individualism,” and against some conservatives' distrust of a strong central government.

    “But the individualist claim,” Marshall (pictured) writes, “runs up against a number of harsh realities that diminish its force." For starters, societal changes since the 1930s have worked to undermine the notion of a society held together by rugged individualists.

    Marshall, a former ACS Board member, notes, “The entry costs needed to succeed in this economy, for example, are far greater because of the shifts in the types of jobs that are available and because of the greater expectations placed on those joining the workforce. One reason for this is education. Succeeding in the current economy requires sophisticated training that cannot be mastered by the individual acting alone.”

  • February 29, 2012

    by Nicole Flatow

    Adding to the calls this week from eight Senate Democrats to hold immediate up-or-down votes on the long-pending judicial nominees, American Bar Association President Wm. T. (Bill) Robinson III is urging ABA members to ratchet up the pressure on judicial nominations.

    “Washington’s partisan gridlock has stymied not just the policy process, but also the responsibility of the Senate to give advice and consent in the nomination process,” Robinson said. “Our federal court system —indispensable to the nation’s economy and the justice and freedoms we cherish — is being quietly undermined by needless deadlock.”

    A persistently high rate of judicial vacancies is not without consequence, he explains. It causes backlogs. And backlogs are “bad for business," "unfair to individuals," and slow "government enforcement actions, which ultimately costs taxpayers money.”

    In the Central District of Illinois, the chief judge, Jim Holderman, just recently sent a letter to Sen. Dick Durbin, imploring him to do everything in his power to move forward two controversial nominees in his district, considered a judicial emergency.

    “The Bottom Line,” said Durbin in his floor statement Tuesday, is that “judicial nominees with no controversy, widespread bipartisan approval, are being held up on the Senate calendar and not approved.”

    “It was not so long ago that liberals and conservatives could easily win confirmation as long as they were well qualified, fair-minded, and had judicial temperament,” said Sen. Dianne Feinstein in her floor statement. She continues:

    It may even surprise some that Justice Ruth Bader Ginsburg was confirmed by a vote of 96 to 3, and Justice Antonin Scalia was confirmed 98 to 0.  That was a different time. 

    Today partisanship has stalled even the most uncontroversial judicial appointments. Senate Republicans allowed no nominees to be confirmed at the end of the last session and have allowed only five so far this year. In this environment even those reported out of committee by voice vote without any controversy are unable to receive a floor vote for many months if they ever receive one at all. 

    She provides a recent example from her home state:

  • February 28, 2012

    by Nicole Flatow

    Senate Democrats took to the floor on Tuesday to express their exasperation over the continuing obstruction of judicial nominees who have broad bipartisan support.

    “We have a crisis on our third and independent branch of government and it is one that only we in the Senate can solve,” Sen. Charles Schumer said.

    The highlights from his statement and those of Sens. Dick Durbin [pictured], Patrick Leahy, Chris Coons and Dianne Feinstein are featured in a video montage.

    “The bottom line,” said Durbin. “Judicial nominees with no controversy, widespread bipartisan approval, are being held up on the Senate calendar and not approved.”

    Also speaking on the subject today were Sens. Tom Udall and Amy Klobuchar.

    Explained Klobuchar:

    There are many problems facing our country that do not have simple solutions. There are many problems for which the two parties have vastly different solutions. But in this case with judicial vacancies, there is only one solution, and it is well within our grasp given that so many of these judges were noncontroversial. Mr. President, this is the solution. It’s two words: Let’s vote.

    Watch the video montage here, and visit JudicialNominations.org to learn more and follow developments. 

  • February 28, 2012

    by Jeremy Leaming

    The nation lost one of its leading advocates for the less fortunate and for equality with the death of Michael A. Rothenberg, longtime head of the New York Lawyers for the Public Interest (NYLPI).

    Rothenberg, who served as the executive director of NYLPI, was found dead at the age of 47 on Feb. 23. The cause of death was a fall from the roof of a building in Brooklyn. The Brooklyn Daily Eagle reports that the New York Police Department found his body on “a terrace at 100 Jay St., after he had apparently fallen from the roof.”

    The Daily Eagle noted that after graduating from the New York University Law School, he “became a litigator in the housing unit of Brooklyn Legal Services. He then won a fellowship at the Rockefeller Family Foundation, and subsequently worked on jury reform at the Vera Institute of Justice. He joined New York Lawyers for the Public Interest (NYLPI) as associate director in 1997.”

    He told the NYU Law Review, the Eagle reports, that his goal was “to create a center where lawyers and community organizers can come together to create lasting social change for people in communities in need.”

  • February 28, 2012
    Guest Post

    By Susan Farbstein and Tyler Giannini, Associate Clinical Director and Clinical Director of Harvard Law School’s Human Rights Program. Farbstein and Giannini are co-counsel in two Alien Tort Statute cases and have submitted amicus curiae briefs in numerous others, including in support of the petitioners in Kiobel v. Royal Dutch Petroleum Co.


    Today, the U.S. Supreme Court hears the most important human rights case of the term. Kiobel v. Royal Dutch Petroleum Co. will determine the fate of corporate liability under the Alien Tort Statute (“ATS”), a 1789 law passed by the First Congress. The plaintiffs allege Shell’s complicity in killings and crimes against humanity committed in Nigeria during the 1990s. Now the Supreme Court must decide whether corporations who profit from human rights abuse are exempt from civil liability for these activities — even though natural persons are unquestionably liable for the same acts.

    The case has attracted a slew of amicus briefs and recent press coverage. On one side, those like John Bellinger, a former U.S. State Department Legal Advisor, argue for completely exempting corporations from suit under the ATS. On the other side are those like Ka Hsaw Wa, the Executive Director of EarthRights International, who notes the importance of these cases to survivors of corporate abuse, and Peter Weiss, the Vice President of the Center for Constitutional Rights, who rightly points out that total corporate immunity would give corporations more rights and legal protections than people.

    The debate stems from a 2010 Second Circuit Court of Appeals decision, which held that people could be sued under the ATS, but corporations could not. That ruling broke with more than a decade of jurisprudence in which numerous courts had repeatedly found or assumed that corporations could be sued under the statute.

    Mr. Bellinger asserts that because the alleged violations often take place abroad, corporate ATS cases should not be allowed in U.S. courts. Corporations, however, routinely answer in U.S. courts for their activities overseas, whether in contract cases or run-of-the-mill product liability claims. And when there is a better forum to hear a case, defendants can — and do — request that the case be moved. Yet under Mr. Bellinger’s view even when there is no alternate forum, a suit still should not be allowed to proceed here against U.S.-based corporations. He would deny survivors of human rights abuses even this last resort.