Guest Post

  • August 9, 2016
    Guest Post

    by Michael Vargas, Associate at Rimon 

    No issue has commanded more attention in the past 12 months than economic justice, and given the historic, and growing, chasm between the global one-percent and the rest of world, it’s not hard to see why Americans are so focused on this issue. The solutions being proposed by progressive lawmakers and activists, however, seem to be stuck in the past.  To be sure, reviving the regulatory ideals of FDR’s New Deal and LBJ’s Great Society, would likely have a positive impact on economic inequality, but to truly achieve a just and inclusive economy, there needs to be a cultural shift in American business, a shift away from the profits-only mentality that brought about the Great Recession and toward an acknowledgement that businesses can and must be accountable to their communities and society. A top down, regulation-heavy solution can create the checks and oversight needed to police bad behavior, but regulation alone cannot create the cultural change that will bring about a just and inclusive economy that will stand the test of time.             

    Fortunately, activists within the business community have been hard at work creating a business entity that can do what regulation cannot. It is called the “benefit corporation,” and, although it has only been around for a short while, there is a large and growing community of social entrepreneurs and innovators who are using these companies to bring about precisely the kind of cultural shift progressives have been trying to achieve for more than a century. This post will introduce you to this revolutionary idea sweeping the business world, but we cannot bring about the kind of change we want without the support of other members of the progressive community. We need progressive lawyers, policy-makers and activists to support this movement as a necessary addition to the movement for re-regulation.

    How We Got Here            

    For almost a century, a debate has been raging within the field of corporate law over the proper purpose of the business enterprise. On the one side are those who argue that profit alone should be the sole motivator for business activities, a position that was most forcefully advocated by law and economics scholars in the 1970s. On the other are those who argue that profits must be balanced with a genuine concern for the needs of society, which we would today call “corporate social responsibility” or “CSR.” For decades the two sides in the debate jockeyed for prominence, until President Reagan tipped the balance in favor of law and economics. Reaganomics was the extension of these principles at the level of the national economy, and the business community largely took advantage of the opening to prioritize profits. Today there is little doubt that law and economics remains the dominant force in corporate law.               

  • August 1, 2016
    Guest Post

    by Jess Pezley, Staff Attorney, American Association for Justice. This post reflects the views of Ms. Pezley and not those of the AAJ. For more information on California’s End of Life Option Act, please visit endoflifeoption.org.

    Earlier this year, on June 9, California’s End of Life Option Act went into effect. Closely modeled after Oregon’s Death with Dignity Act, the statute allows mentally competent adult residents, diagnosed with a terminal illness with a six-month or less prognosis, to voluntarily obtain and ingest a prescription to hasten their dying process.   

    For decades, advocacy organizations such as Compassion & Choices, have been fighting for increased end-of-life options, including medical aid-in-dying. In 1994, by voter initiative, Oregon became the first state to allow medical aid-in-dying. The law did not take effect until 1997, after a protracted legal battle to block it ended when voters rejected a legislature-sponsored initiative to repeal the law. Following the victory in Oregon, Washington passed a voter initiative in 2008, the Montana Supreme Court authorized medical aid in dying in 2009 (the only state to do so by judicial decree), and Vermont became the first legislature to authorize an end-of-life options bill in 2013.

    At the United States Supreme Court, progress towards medical aid-in-dying was seen in Cruzan v. Director, Missouri Department of Health (acknowledging a constitutional right for individuals to refuse unwanted medical treatment) and Washington v. Glucksberg (acknowledging a constitutional right to palliative care, despite denying to recognize a constitutional right to medical aid-in-dying). Yet after years of advocacy, only a small handful of states had authorized medical aid-in-dying as an end-of-life option.

    Then, in 2014, a 29-year-old woman with terminal brain cancer recorded a video that started a nationwide conversation. Viewed today over 11 million times, Brittany Maynard’s video advocates for the option to access medical aid-in-dying, not only in her home state of California, but across the nation. Her story—how she reluctantly uprooted her life and moved from her home in the San Francisco Bay Area to Oregon to access the state’s Death with Dignity Act—shaped the medical aid-in-dying movement for millions of Americans.

    Brittany Maynard dedicated the final months of her life to increasing awareness of medical aid-in-dying; her message did not go unheard. In 2015, 25 state legislatures and the D.C. city council introduced medical aid-in-dying bills, and on October 5, 2015, Governor Brown signed into law the End of Life Option Act in Brittany’s home state of California.  

  • July 28, 2016
    Guest Post
    by Tom Nolan, Associate Professor of Criminology, Merrimack College; 27-year veteran of the Boston Police Department
     
    Baltimore State’s Attorney Marilyn Mosby recently announced that her office would drop criminal charges against the three remaining Baltimore city police officers who were implicated in the death of Freddie Gray in April of 2015. Mosby’s office had initially charged six Baltimore officers in Gray’s death; three had been acquitted and the trial of one other officer ended when the jury failed to reach a verdict. I had commended Mosby for her courage and decisiveness in bringing the charges against the officers last May, just as I will commend her courage and decisiveness this week in deciding not to proceed criminally against the three remaining police officers who had faced charges in Gray’s death.
     
    Mosby was in the unenviable and ultimately untenable position of seeking justice for Freddie Gray and for those residents of communities of color in Baltimore who have borne the brunt of the Baltimore police juggernaut. In choosing to charge the Baltimore police officers criminally, Mosby was also, albeit indirectly, seeking justice for other African American men and women who had died at the hands of the police: in Cleveland; Chicago; Mt. Pleasant and Staten Island, NY; North Charleston, South Carolina; Hayward, California; Waller County, Texas, Washington, DC, and too many other locations in the United States.
     
    In May of 2015, when the officers were charged in Gray’s death, I expressed reservations regarding the likelihood of the officers being found guilty of any of the more serious charges, including “depraved heart” murder. The challenges facing prosecutors in convicting on-duty police officers criminally in the deaths of individuals in their custody are formidable, and in the cases involving the “Baltimore Six,” insurmountable.
     
    I asked at the time: “Will Baltimore and Freddie Gray see justice?” And I expressed skepticism that justice would be the result for Baltimore or for Freddie Gray. What has been on prominent display in the fifteen months since Gray’s death and the Baltimore officers being charged criminally is the criminal justice system, a system where justice is too often elusive and too frequently aspirational, particularly when the victims are men and women of color and the defendants are law enforcement officers.
  • July 28, 2016
    Guest Post

    by Anupam Chander, Martin Luther King, Jr. Professor of Law and Director of the California International Law Center at UC Davis. Recipient of a Google Research Award supporting related research           

    In 2013, Microsoft was staring at an order that risked its foreign business. The trust of its foreign users was at stake. A federal magistrate judge in New York had ordered Microsoft to produce emails from someone implicated in a narcotics case that were stored on Microsoft’s computers in Dublin, Ireland. While the identity of the target remains secret to this day, many observers assume that the person is foreign because of Microsoft’s policy to locate the records of a user close to that person’s residence. The court warrant thus meant that even if an Irish person used Microsoft’s computers in Europe, a U.S. court could demand that information when it wanted. The order effectively enlisted U.S. companies as the eyes and ears of U.S. courts worldwide.

    Microsoft appealed, drawing the support of Apple, Amazon and numerous other major technology companies (though not all of them). Even the Irish government, in a relatively rare move, filed a brief in the U.S. case, observing that it had a mutual legal assistance treaty with the United States that provided an official process to enable U.S. courts to obtain information in Ireland. Ireland noted what it saw as “potential infringements by other states of its sovereign rights with respect to its jurisdiction over its territory.” It noted that it would be “pleased to consider, as expeditiously as possible, a request under the treaty…”

    This month, the Second Circuit Court of Appeals ruled in Microsoft’s favor, holding that Microsoft’s Irish computers lay beyond the reach of the search warrants issued under the Stored Communications Act, a 1986 federal law. Civil liberties advocates, not just U.S. internet companies and the Republic of Ireland, should breathe a sigh of relief.  

    Some have worried that this decision will lead countries to insist on data localization—the requirement that data about the citizens of a country mostly stay within the country. Elsewhere I have criticized data localization as a measure that erodes free expression, enhances authoritarian control, undermines local enterprise, and reduces trade. The critics of the Second Circuit decision are indeed right that the decision makes the siting of a computer server more important.

  • July 20, 2016
    Guest Post

    by Barry Friedman, Jacob D. Fuchsberg Professor of Law at New York University School of Law, Director of the Policing Project and author of the forthcoming book, Unwarranted:  Policing Without Permission (Farrar Straus and Giroux 2017).

    In light of the deeply troubling events of the last couple of weeks—the shootings by police of Alton Sterling and Philando Castile, and the shooting of police officers in Dallas and Baton Rouge—the country rightfully is preoccupied with how to discuss, and address, issues of policing and race.

    Here, I want to turn to law—which has both exacerbated the problem, and can perhaps offer a somewhat novel solution for how to address it.

    First, the problem. Many people today suggest that one of the reasons why policing falls most heavily on communities of color is unconscious racial bias, or “implicit bias.” There is growing evidence in support of the claim. This is important for two reasons. First, it helps us understand that much of what is happening, or has happened, may have occurred in the absence of intentional racial animus. And second, it explains how—nonetheless—these many individual incidents can together add up to be a national crisis. The phenomenon of unconscious racial bias suggests that when officers exercise their discretion in individual cases, they tend—subconsciously—to be drawn to over-enforcement against racial minorities, which in the aggregate can produce observable and troubling racial effects. 

    To the extent that this indeed is the problem, it is instructive to see how much law is to blame here. One reason why individual biases have such a pronounced effect in the criminal justice system is because of the enormous discretion police officers possess—too much of which is the result of ill-advised Supreme Court decisions. The justices consistently resist adopting bright line rules that limit discretion, while putting such rules in place to grant it. The Supreme Court has said officers may arrest for any offense, no matter how small or insignificant. The Supreme Court also has said pretextual stops—meaning stops that are ostensibly about traffic enforcement but really are just an excuse to look for drugs or other evidence—are just fine. The Supreme Court has upped the incentives to conduct stops and arrests by allowing numerous other actions to follow, be they frisks or full-blown searches. Even if a stop, search or arrest violates state law, the justices have held that any evidence that is obtained still is admissible. The net result is enormous over-enforcement, which the data makes clear has occurred in racially discriminatory ways.

    Then, as is all too familiar, under Supreme Court doctrine it is almost impossible to hold a government liable under the Equal Protection Clause when these practices fall disproportionately on people of color.