On Friday, February 28, more than 150 law student leaders from across the United States convened at UCLA School of Law in Los Angeles, California for the 2014 ACS Student Convention, which focused on the 60th anniversary of Brown v. Board of Education. The weekend officially opened with an Introductory Executive Session featuring UCLA Law professor Adam Winkler, followed by a Welcome Reception. The Keynote Dinner featured the UCLA Law’s Dean, Rachel Moran and Theodore M. Shaw, who previously headed the NAACP Legal Defense Fund. Shaw addressed the legacy of Brown v. Board of Education and challenged the student attendees to examine the “progress” that has been made over the past sixty years and examine the ways that we have failed to live up to the stated goal of Brown.
Saturday kicked off with breakfast and a panel on “Brown at 60 – The Past, Present, and Future” featuring Cheryl I. Harris, Stephen Menendian, and Thomas A. Saenz with Priscilla Ocen serving as moderator. The panel first discussed the legacy of Brown, from implementation in the 1960s and 1970s to the challenges it faced over time. The panelists examined the current state of Brown and the complexities of K-12 education in the United States. They emphasized the complexities and obstacles facing any “solution.”
The next panel featured Joshua Kim, Jennifer Pizer and, again, Thomas Saenz (standing in for Marielena Hincapié) with Justin Levitt moderating. This panel discussed expanding opportunity and how Brown and the experience of Brown can inform present-day movements for social justice. During this discussion Thomas Saenz said that he always tells his staff that “empower is an intransitive verb, people empower themselves.” He challenged the students, telling them that when you get your Bar card, “you don’t stop being a member of the greater community, you don’t have to surrender your humanity.” Joshua Kim further challenged the way that may “activist lawyers” view themselves. Kim stated that he is “not an organizer” for in many ways it is disrespectful for lawyers to take on that title due to the differences in the roles that lawyers tend to occupy and the real work that true organizers do in the field. Jennifer Pizer stated that litigation is an opportunity to tell a story, and good stories have great power for a social movement.
* Editor's Note: The 50th anniversary of New York Times Co. v. Sullivan is this Sunday, March 9.
For me, and for other media attorneys of my generation, it is almost impossible to conceive of a world without New York Times Co. v. Sullivan. Certainly, the “actual malice” standard announced in Justice Brennan’s celebrated opinion, and the interplay between that standard’s twin elements of fault and falsity have, throughout my lifetime, been the defining features of the law of defamation. But the impact of that landmark decision extends far beyond the realm of reputational torts.
Sullivan has shaped our very understanding of the First Amendment—as a reflection of “a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open”—and it serves as a touchstone in virtually every case that calls for an interpretation of the constitutional guarantees of free speech and a free press.
For evidence of Sullivan’s enduring and continued role in shaping First Amendment thought and jurisprudence beyond the scope of defamatory speech, one need look no further than the Supreme Court’s 2012 decision in United States v. Alvarez. Alvarez addressed the constitutionality of the Stolen Valor Act of 2005, a federal statute that made it a crime for an individual to falsely claim that she or he had been “awarded any decoration or medal authorized by Congress for the Armed Forces of the United States.”
A six-justice majority concluded, albeit for different reasons, that the statute was unconstitutional under the First Amendment. While Justice Kennedy in his plurality opinion, and Justice Breyer in his concurrence, disagreed as to the proper analysis, they agreed in at least one critical respect, finding that false speech is not outside the scope of the First Amendment—an idea rooted in the reasoning and holding of Sullivan.
Environmental Justice should not exist. That is to say, Environmental Justice should not have to exist; it should be axiomatic, superfluous and redundant. The law should, without coercion, be equally committed to protecting one’s health, safety, and wellbeing, whether one is a socialite or a factory worker, a lawyer or a farm worker, a politician or an unemployed single mother. That Environmental Justice is an increasingly prevalent topic in the environmental law and policy dialogue is both a sad reflection on how far we still have to go and a hopeful indication that the journey has at least begun. Indeed, Environmental Justice promises to occupy a position of prominence as the next generation of modern U.S. environmental policy takes shape. And it should.
Twenty years ago, the first federal effort to grapple with Environmental Justice took the form of an Executive Order (EO 12898). Signed by President William Jefferson Clinton on February 11, 1994, the EO admonishes federal agencies to “make achieving environmental justice part of [each agency’s] mission by identifying and addressing … disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations.”
There are good reasons why the law should be relatively more attuned to the conditions of the nation’s most vulnerable, most marginalized communities. Members of these communities have the fewest resources to commit to protecting themselves, especially from threats that are often both complex and indistinct. They have less influence on decisions affecting the quality of their environment, and they typically cannot buy their way out of over-exposure by moving to safer, less burdened communities (even assuming the capacity to meaningfully compare potential hazards). Moreover, they are less likely to have access to adequate health care, healthy foods, and information, and are more likely to experience health-compromising stress and anxiety.
by Sandra S. Park, Senior Staff Attorney, ACLU Women’s Rights Project
* This post originally appeared at the ACLU's Free Future.
Last April, during the Supreme Court oral arguments in our case challenging patents on human genes, Justice Kagan remarked, “The PTO seems very patent happy.” Her comment, and the unanimous decision invalidating gene patents, clearly expressed the Court’s concern that the Patent Office is overstepping its authority by approving patents that thwart, rather than foster, scientific inquiry and progress.
The Supreme Court will soon re-visit whether the Patent Office has gone too far in granting exclusive rights to what should properly remain in the commons. In the next few months, it will rule in Alice Corp. Pty. Ltd. v. CLS Bank International, a software patent case that completely divided the U.S. Court of Appeals for the Federal Circuit and is sparking controversy in the tech world. Alice follows three recent decisions—with the gene patents case being the last—issued by the Court reaffirming the longstanding principle that the Patent Act does not permit patents on products of nature, laws of nature, and abstract ideas. Patents on abstract ideas are especially likely to raise First Amendment problems, as the First Amendment protects freedom of speech and thought.
The case involves patents on a method for addressing the risk that one party might back out of a deal after the other one has already paid. You can read about the details of the patents here, but the steps of Alice’s patented method essentially call for a third party to keep track of financial transactions between two parties and then to instruct another institution to adjust the two parties’ accounts accordingly at the end of the day. It’s simple enough to imagine carrying out this process using pencil and paper to add up the transactions and a phone to communicate the account adjustment, but Alice’s patents claim any computer implementation of this process. That means Alice has a monopoly on any software or hardware that performs this way of using a third party to address settlement risk, even when Alice has not created the programming code or designed the computer that has this capability.
Around the web, Supreme Court experts are offering cautious opinions about Monday’s oral argument in Utility Air Regulatory Group v. EPA, the Court’s latest climate change case. As expected, all eyes were focused on Justice Kennedy. In the New York Times, Adam Liptak suggests that a point made by Justice Kennedy “did not bode well for the agency.” In his post on SCOTUSBlog, Lyle Dennison has a more EPA-favorable view, suggesting that Kennedy’s “vote seemed inclined toward the EPA, though with some doubt.”
Having read the transcript, I’m inclined to think that EPA is likely to lose, but that the decision may nonetheless be helpful to environmentalists in the long run.
I suspect that Justice Kennedy may vote against EPA for two reasons. The first (and perhaps somewhat less serious) is based on the pseudo-science of counting the words a justice says during an argument. Political scientists have demonstrated that parties tend to lose when they are asked more questions, and that the amount a justice speaks during the argument provides insights into that justice’s inclinations. If that theory holds true, EPA is in trouble. Justice Kennedy spoke only twice during the argument presented for the industry challengers, uttering about 110 words, and he remained entirely silent during the presentation by the Texas Attorney General on behalf of the state challengers. In contrast, Justice Kennedy spoke seven times during Solicitor General Donald Verrilli’s argument on behalf of EPA, uttering approximately 180 words. Of course, the general trend that the number of words spoken by the Justices relates to a party’s likelihood of success doesn’t always play out in individual cases.
My second reason for believing that the Supreme Court may rule against EPA is a more specific to this case. Justice Kennedy’s questions appear to express skepticism about EPA’s position. At one point Justice Kennedy said to the Solicitor General: “I couldn’t find a single precedent that strongly supports your position. . . . [W]hat are the cases you want me to cite if I write the opinion to sustain your position?” Justice Kennedy also appeared to want assurance that an EPA loss would not be too significant an event, asking the Solicitor General: “Just to be clear, you’re not saying . . . that if you’re denied the authority you seek here, there can be no significant regulation of greenhouse gases under the Act?” Soon thereafter, perhaps sensing the mood among the Justices, Justice Sotomayor followed up, asking “If you were going to lose. . .” (The Solicitor General interrupted before the question finished, saying “I knew you were going to ask me that question.”).