September 2012

  • September 28, 2012

    by Jeremy Leaming

    A slew of organizations are weighing in on the constitutionality of the University of Texas at Austin's race-conscious admissions policy and if you have all the time in the world you can read those groups' arguments by checking out SCOTUSblog.

    As the U.S. Supreme Court opens its 2012-2013 term on Oct.1 one of the more compelling and pressing cases on its docket concerns a white woman’s challenge to the university’s admission policy, which takes a number of factors, including race, into account when building its student body. In a 2003 case, Grutter v. Bollinger, the high court majority led by Justice Sandra Day O’Connor found the University of Michigan Law School’s use of race in its admission policy supported a compelling educational interest and did not violate the Constitution’s Equal Protection Clause.

    The case, Fisher v. University of Texas at Austin, will give a significantly more conservative high court the chance to gut Grutter, taking down or greatly hobbling race-conscious admission policies that many rightists, including libertarians, have been gunning for.

    Civil liberties groups, educational groups, labor organizations, such as SEIU have come to the defense of the university’s admission policy. This blog has noted some of those group’s contributions, such as here and here and here.

    But an impressive group of former senior officers and civilian leaders of the U.S. military is also weighing in with support of an admissions policy that allows a university to build a diverse student body. The reasoning of military amicus that lodged a friend-of-the-court brief in Grutter remains “true today and amici embrace them: Based on decades of experience, the modern United States military regards a highly qualified and racially and ethnically diverse officer corps as vital to military effectiveness.”

    The military group, including Gen. Colin L. Powell, Gen. Henry H. Shelton and Gen. Anthony C. Zinni, is represented by Philippa Scarlett, a partner at Kirkland & Ellis LLP and an ACS Board member.

    The military group’s brief argues in favor of the admissions policy’s constitutionality, but also explains why such policies are so vital to the military. The Fisher case centers mostly on the university’s needs and a student’s claim that it is unconstitutional, the military group’s brief, however, notes that the case’s “impact dramatically transcends academia.”

  • September 27, 2012

    by Jeremy Leaming

    The U.S. Supreme Court’s landmark Gideon v. Wainwright provided that pursuant to the Sixth Amendment, states must provide legal representation to criminal defendants who cannot afford attorneys. The ruling from that landmark opinion, its 50th anniversary not too far off, continues to cause problems for many states – poor funding of indigent defense is festering problem for the criminal justice system.

    But for those convicted of crimes the ability to obtain legal help in filing challenges to their convictions becomes even dicier as noted The Life of the Law, a new project providing podcasts and blogging on “the relationship of the law to the experience and meaning of American society and culture.”

    In The Life of the Law podcast, “Jailhouse Lawyers,” the plight of prisoners in California to challenge prosecutorial misconduct or poor legal representation or any number of other errors in their convictions is brought to life.

    The podcast centers on “hundreds if not thousands of people practicing criminal law,” without having a JD or bar license. These folks are dubbed jailhouse lawyers, and while some have successfully overturned their convictions or landed new trials, the vast majority of inmates are left with very little recourse. And the jailhouse lawyers who have found success are not able to help other inmates because they don’t have the education or a bar license.

    As the podcast notes there is hardly an abundance of attorneys willing to provide legal help to prisoners. But Life of The Law did interview Charles Carbonne, a “prisoner rights lawyer,” in San Francisco. Carbonne noted that after being convicted prisoners lose the right to legal representation, unless one is on death row, and that very few attorneys provide pro bono help to prisoners, thereby spurring inmates to do their best to learn the law and seek appeals on their own.

    And not surprisingly the challenges are steep.

  • September 27, 2012
    Guest Post

    By Eric Priest, Assistant Professor, University of Oregon School of Law


    China’s pervasive intellectual property piracy problem, and the resulting impact on American industry and jobs, is a constant refrain in U.S. media and even the presidential campaign.  But are some U.S. companies also benefitting from the infringement?  Some policy makers and software companies are beginning to ask whether U.S. businesses are actually indirect beneficiaries of pirated intellectual property in China (and elsewhere).  When an upstream producer such as a Chinese factory uses pirated software in its manufacturing or logistics operations, the cost of production is reduced.  Some of those savings can also be passed along to the U.S.-based firm that hired the factory, or to the retailer that sells the product.  These cost savings arguably give the overseas manufacturer and the seller of such a product in the U.S. an unfair edge over competitors in the U.S. market.

    Louisiana and Washington State passed laws in 2010 and 2011, respectively, that make it an act of unfair competition to sell a product manufactured using “stolen or misappropriated” information technology.  The Louisiana statute is terse and therefore broad, while the Washington statute contains detailed limitations on liability and requires that the defendant be given notice and have the opportunity to cure.  The Washington statute creates liability for the manufacturer as well as for certain third parties (i.e., sellers other than the manufacturer), although it limits potential third-party liability to large companies with over $50 million in annual revenue, which are better positioned to police suppliers.  

    In addition, Attorneys General from thirty-six states and three U.S. territories last November requested that the FTC consider using its broad unfair competition authority under § 5 of the FTC Act to pursue manufacturers who sell in the U.S. goods that they produced using pirated software in competition with law-abiding manufacturers.  In addition to such federal action, some state Attorneys General have indicated they would consider the possibility of using existing state unfair competition laws (the “mini-FTC Acts”) to the same effect.

  • September 26, 2012

    by Jeremy Leaming

    There’s a fairly decent chance that retirements from the U.S. Supreme Court will give the next president the opportunity to push the high court in a different direction. So one could justifiably expect the high court’s future to be worthy of some consistent and thoughtful election coverage. But according to a new report from Media Matters many major networks’ evening news coverage has provided scant mention of the Supreme Court.

    In a Media Matters blog post, Sergio Munoz says the group’s report reveals, “Primetime news has largely overlooked the future ideological direction of the U.S. Supreme Court as a key election issue, failing to note that the candidate who wins in November will likely appoint justices and shape how the court will decide vitally important issues.”

    Media Matters reports that evening news broadcasts of CBS and NBC have, since early spring, not touched the subject and that ABC and CNN have only given seconds to the matter. The report shows that only MSNBC’s gaggle of talking heads has provided coverage of the Supreme Court’s future.

    Noting the advanced ages of several of the justices, Munoz says the “high likelihood of multiple judicial nominations to the Court for the next president is even more newsworthy in light of the Court’s sharp ideological polarization. Although experts have termed the Court presided over by Chief Justice John Roberts the most conservative in U.S. history, the Court remains sharply split, with many cases decided by a vote of 5-4.”

  • September 25, 2012

    by Jeremy Leaming

    The campaign to keep certain groups of people from voting – African Americans, Latinos, college students, the elderly – has included efforts to shut down voter registration drives, limit early voting, and onerous voter ID laws. As noted here frequently the voter suppression efforts have taken place mostly in states controlled by rightwing lawmakers, and not surprisingly they disproportionately impact urban voters. 

    Voters represented by civil liberties groups, labor groups, the Department of Justice and the Obama campaign team have taken court action to stop provisions of many of the suppression tactics. Earlier this summer Attorney General Eric Holder knocked the Texas voter ID scheme as akin to a Jim Crow era poll tax.

    And more congressional lawmakers are ramping up efforts against the voter suppression campaign. U.S. Rep. John Lewis (D-Ga.), a Civil Rights hero, and Sen. Kirsten Gillibrand (D-N.Y.) are pushing for passage of the Voter Empowerment Act aimed at modernizing voter registration to “ensure equal access to the ballot box for all Americans ….”   

    In a press statement announcing the push, Lewis said, “It should be easy to vote, as simple as a glass of water, in a society that believes in the immutable right to voter of every human being to determine his or her own future. We must eliminate every barrier and impediment to the electoral process to make voting fair, accessible, and an accurate representation of the will of the people. The vote is the most powerful non-violent tool we have in a democratic society to build.”