Guest Post

  • February 21, 2014
    Guest Post
    by Sara Murphy, 1L Section Representative, ACS Harvard Law School Student Chapter

    On January 31, the Honorable David S. Tatel and the Honorable Brett M. Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit joined Harvard Law School Dean Martha Minow for a discussion about life on the D.C. Circuit. The event, co-sponsored by the ACS Harvard Law School Student Chapter and the school’s chapter of the  Federalist Society, drew a large crowd of both law students and members of the public.
     
    The D.C. Circuit essentially presides over the federal government; it has jurisdiction over all the federal agencies, and has original jurisdiction in some matters. Judge Tatel remarked that the court excels at issuing objective and non-ideological opinions – or comes as close to it as a court can get. He attributed this, in part, to small size of the court, which allows the judges to get to know each other well. The culture in the D.C. Circuit encourages judges to keep an open mind, and to have respect for each other and for panel decisions. Judge Kavanaugh agreed that the relationship between the judges was collegial, and noted that even when the judges disagree they do so with a tone of respect.
     
    According to Judge Tatel, the greatest challenge in being a judge is overcoming the immediate instinct judges develop about the case based on who they are and where they came from. How do you move beyond those instincts in trying to resolve the case within a framework of objective legal standards? He noted that the challenge is the greatest when the applicable standards drive the court to a decision that conflicts with the judge’s original instinct. This might end up leading the judge to decide a case that is different than how he might recommend resolving it as a member of Congress. Judge Tatel also commented that these sorts of decisions were the most satisfying.
     
  • February 20, 2014
    Guest Post
    by John H. Blume, Professor of Law, Cornell University Law School
     
    On March 3, the U.S. Supreme Court will hear argument in Hall v. Florida. The narrow but important question the Court must decide is whether persons who have been clinically diagnosed with mental retardation (now commonly referred to as intellectual disability) can nevertheless be put to death if they cannot satisfy the rigid IQ test score cutoff of 70 established by the Florida Supreme Court—a cutoff clearly inconsistent with the commonly agreed upon definition of mental retardation embraced by the Court in its 2002 decision in Atkins v. Virginia which all but a handful of outlier states use.     
     
    In Atkins, the Court recognized that a “national consensus” had developed against executing persons with mental retardation and concluded that the practice is prohibited by the Eighth Amendment’s ban on cruel and unusual punishment. Prior to Atkins, Florida courts had determined that “Freddie Lee Hall has been mentally retarded his entire life.” One would think this is a simple case. It should be. Yet, Hall is at risk of being executed. How could this be? 
     
    The Atkins Court relied upon the clinical definitions developed by the two premier professional organizations in the field: the American Association on Mental Retardation (AAMR), now the American Association on Intellectual and Developmental Disabilities (AAIDD); and, the American Psychiatric Association (APA). Both definitions have three prongs: significantly subaverage intellectual functioning; adaptive functioning deficits; and onset during the developmental period. Only the first prong is at issue in Hall, and without getting too “deep in the weeds,” significantly subaverage intellectual functioning is understood as an IQ of approximately 70. The question is—at bottom—a simple one: is Florida free—post-Atkins—to adopt a definition of intellectual functioning for capital cases, which is fundamentally inconsistent with the professional consensus regarding the use of IQ tests?
     
  • February 20, 2014
    Guest Post
    by Geoffrey R. Stone, Edward H. Levi Distinguished Professor of Law and an ACS Faculty Advisor at the University of Chicago Law School; former Chair, ACS Board of Directors
     
    * This post originally appeared on The Huffington Post.
     
    A few days ago on the campus of the University of Mississippi, someone (reportedly two males) draped a Confederate flag on a statue honoring James Meredith and hung a noose around its neck. Meredith was the African-American student who courageously desegregated the University of Mississippi in 1962, weathering a storm of ugly protest, riots and threats of violence. This act was, by any measure, deeply disrespectful and hateful.
     
    University of Mississippi Chancellor Dan Jones responded by stating of those who did this: "Their ideas have no place here, and our response will be an even greater commitment to promoting the values that are engraved on the statue—Courage, Knowledge, Opportunity, and Perseverance."
     
    This poses an interesting question. How should the University of Mississippi respond? What does it mean to say that these "ideas have no place here"? Assuming the individuals who did this were students, should the university expel or otherwise discipline them? Are there "ideas" that "have no place" on a university campus?
     
  • February 14, 2014
    Guest Post

    by Brooke D. Coleman, Associate Professor, Seattle University School of Law

    Litigation reform is bandied about in an inevitable way. The narrative supporting such reform says that corporations are coerced into settling frivolous claims because the cost of litigating in federal court is so high. Further, the story goes, corporations do not want to be in the United States because the litigation risks are too much. This narrative of excessive cost and abuse is used to justify various litigation reforms, ranging from tort reform to attorney sanctions. The most recent entrant into the reform fray comes from the Committee on Rules of Practice & Procedure of the Judicial Conference of the United States. This rulemaking body has proposed amendments to the Federal Rules of Civil Procedure. These amendments would make it easier for parties to resist producing documents, provide greater protection to parties who fail to preserve key information, and limit the number of ways parties can request information from one another. By limiting access to information in this way, these proposed amendments to the discovery rules promise to lower litigation costs. 

    The problem with this narrative and the attendant reforms is that they are inaccurate. First, discovery costs are generally not too high in comparison to the stakes parties have in litigation.  Second, the argument that the proposed restrictions on discovery are justified undervalues the benefit of civil litigation.

  • February 10, 2014
    Guest Post
    by Paul S. Ryan, Senior Counsel, The Campaign Legal Center
     
    Controversy is swirling around a number of websites that have been set up by the National Republican Congressional Committee (NRCC) in recent months. The websites have URLs and headlines that imply support for named Democratic candidates for Congress. The websites also have prominent “donate” buttons. But in less prominent text, the websites indicate opposition to the named candidates and any contributions made via the websites actually go to the NRCC.
     
    The Los Angeles Times has counted 18 such websites so far, with URLs such as AnnKirkpatrick.com, SinemaForCongress.com and RonBarber2014.com. Ann Kirkpatrick, Kyrsten Sinema and Ron Barber are all Democratic Members of Congress running for reelection this year. The headlines at the top of these pages read “KIRKPATRICK FOR CONGRESS,” “Kyrsten Sinema for CONGRESS” and “Ron Barber CONGRESS,” respectively. Time has described these websites as “clearly designed to trick the viewer—at least at first—into thinking they’re on a legitimate campaign website.” But these websites aren’t merely part of the underhanded games that typically accompany political campaigns. They also violate federal law.
     
    For decades, the Federal Election Commission (FEC), the administrative agency charged with enforcing federal campaign finance laws, has been concerned with efforts by noncandidate political committees (such as party committees like the NRCC and its counterpart, the Democratic Congressional Campaign Committee) to trick people. Since the late 1970s, federal law, 2 U.S.C. § 432(e)(4), has prohibited any noncandidate political committee from “includ[ing] the name of any candidate in its name.” Initially, the FEC interpreted this statutory prohibition as applying only to the official name a committee registered with the FEC. For example, those who set up independent committees to support Ronald Reagan’s 1980 presidential campaign were prohibited from using Reagan’s name in their official committee name. Instead, they registered committees with the FEC using names such as “Americans for Change” and “Americans for an Effective Presidency.”