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  • November 3, 2016
    Guest Post

    by Ajmel Quereshi, Assistant Counsel at the NAACP Legal Defense and Educational Fund   

    On Election Day, the Supreme Court will hear argument in a highly consequential case about lending discrimination and the subprime mortgage crisis. In this case, the City of Miami is trying to hold Wells Fargo and Bank of America accountable for well-documented deceptive, predatory lending practices. However, the banks, in an attempt to evade liability, are arguing that cities cannot seek relief from them for violations of the Fair Housing Act.      

    Wells Fargo has, of course, recently been in the news for secretly creating as many as 2 million unauthorized loan accounts in response to the company’s loan quotas, prompting investigations by the Department of Justice and even a Saturday Night Live sketch. But the misconduct at issue in the case before the Supreme Court runs far deeper than that: as has been well-documented, several regional and national banks targeted African American communities for deceptive, predatory loans in the lead up to the financial crisis of 2008. One of the most common types of loans used was the predatory subprime mortgage. Subprime mortgages were directed at communities that had been historically denied credit and included hidden fees, undisclosed costs, and masked terms that resulted in ballooning interest rates.  

    In the run-up to the financial crisis, these deceptive and predatory loans proliferated exponentially. In the five years between 1994 and 1999, the subprime mortgage market expanded from $35 billion to $160 billion, and by 2007, totaled approximately $650 billion, roughly 25 percent of the overall mortgage market. A strong undercurrent of prejudice was unmistakable in these predatory lending practices. By 2008, 55 percent of African American mortgage holders nationwide had high-risk, subprime loans, compared with only 17 percent of white mortgage holders. According to a loan officer’s affidavit, lenders used racial slurs in characterizing subprime loans to African Americans, who they referred to as “mud people” receiving “ghetto loans.”

    Accordingly, when these predatory loans all came crashing down, the damage was predictably severe for communities of color. High-risk subprime loans originated between 1999 and 2007 cost borrowers of color collectively between $164 billion and $213 billion. Between 2005 and 2009, a staggering two-thirds of median household wealth in communities of color was wiped out. Waves of foreclosures pushed families out of their homes, causing lasting damage to neighborhoods and livelihoods, depressing property values, and suppressing tax revenues. In cities like Miami, the damage and harm was compounded: reduced tax revenue reduced basic services available to residents. The lost tax revenue also negatively impacted municipal efforts to combat housing discrimination and foster integration.

  • November 2, 2016
    Guest Post

    by Matt Lynch, Steering Committee member of ACS Madison Lawyer Chapter, and Britt Cudaback, President of ACS University of Wisconsin Law School Student Chapter

    In the early months of 2011, while thousands of protesters demonstrated daily against the anti-union laws they advocated, Wisconsin GOP legislators crafted and enacted two measures that made it more difficult for their detractors to vote them out of power:  partisan redistricting and strict voter identification requirements.  While court challenges to the anti-union laws have now largely run their course, the legal battles over Wisconsin’s district maps and voter ID law have taken novel forms—and may soon offer tempting opportunities for the U.S. Supreme Court to bolster the procedural protections for participatory democracy.

    Key players from both sides of those cases huddled with more than 70 attorneys and law students last Thursday night for “Wisconsin Election Law:  Navigating the Thicket,” a panel discussion held at a Capitol Square restaurant overlooking the site of the 2011 demonstrations.  The event was co-sponsored by the Federalist Society, the ACS University of Wisconsin Law School Student Chapter, and the newly formed ACS Madison Lawyer Chapter.  UW Law School Assistant Professor Robert Yablon moderated the discussion.

    New Tools for Political Gerrymandering – and a New Tool to Challenge It

    In Wisconsin, the state legislature is primarily responsible for drawing legislative districts following the census, a system that incentivizes partisan gerrymandering by the majority party. Historically, gerrymandering was associated with comically misshapen districts. Since the dawn of the information age, however, egregious contortions are no longer necessary; parties can achieve the same goals of increasing partisan advantage with more subtle, computerized precision.

    With its 2011 redistricting maps, the GOP-controlled Wisconsin legislature proved just how effective these new tools could be. The following year, all 99 Assembly seats were up for election, and Wisconsin voters cast 200,000 more votes for Democratic Assembly candidates than Republican candidates.  Yet the Republicans won a commanding 60-39 majority.

    That, according to panelist and Wisconsin law professor Bill Whitford, goes so far as to deny the fundamental principle of majority rule. “Of course there’s partisan gerrymandering, always has been,” he acknowledged.  “But questions of degree are vitally important.”

    Whitford believes that a newly described measure holds the key to answering those questions of degree in a simple, objective way. He is seeking to prove it in a lawsuit challenging Wisconsin’s partisan redistricting, Whitford v. Gill, which is awaiting a post-trial decision from a three-judge federal redistricting panel.

    The new measure is the “efficiency gap,” which was described and defended in a 2015 law review article by Nicholas Stephanopoulos and Eric McGhee. The efficiency gap formula takes the total number of votes cast for a party’s candidates for legislative office statewide, then subtracts all “wasted” votes for that party—that is, votes cast for a losing candidate or those in excess of the number needed for a candidate to win. The remaining votes are “efficient,” because they proved necessary to elect a winning candidate.  Partisan gerrymandering seeks to maximize the efficiency of its party’s voters and minimize the efficiency of the other party’s voters; the difference in each party’s efficiency percentages is the map’s “efficiency gap.”

    The 2012 and 2014 Wisconsin state elections showed “efficiency gaps” of more than 10 percent in favor of Republicans—greater than any other state in the country. By comparison, the average efficiency gap in state legislative maps throughout the country between 1972 and 2014 was less than one percent.  But the yearly average has crept upward as more sophisticated tools for voter mapping have emerged; since the 2010 Census, the average gap nationally exceeds three percent in favor of Republicans.

  • November 2, 2016

    by Kevin Battersby Witenoff

    At many points during my frigid three and a half hour wait, I questioned whether waking up before 6:00 a.m. was worth the chance to see oral arguments before the Supreme Court. Any doubt I harbored immediately vacated my mind upon entering the burgundy draped courtroom. The opportunity to stand in the presence of such mastery would have been enough to amaze any citizen, but as a future law student I felt an electric connection to the setting that enhanced my aspirations and heightened my admiration for my prospective profession to an almost Tocquevillian level. Between my own personal elation and the vicarious excitement of my family members and coworkers in the legal profession, it would have been easy to classify the trip as a complete success. But even after such a formative experience, I could not help but feel as though something, or rather someone, was missing from my morning at the High Court.

    Though the late Justice Scalia’s chair has been temporarily removed from the courtroom, the ramifications of that chair’s vacancy continue to reverberate across the country. In Fry v. Napoleon Community Schools, the scope of the Americans with Disabilities Act (ADA), a piece of legislation that affects millions of Americans, was called into question. The Court’s interpretation of this act, in conjunction with its interpretation of the Individuals with Disabilities Education Act (IDEA), will determine the process that some aggrieved parties filing a complaint under the ADA will have to follow.  Attorneys representing E.F., a young girl born with cerebral palsy, contend the ADA protects her right to bring her service dog to a Napoleon Community School. The defense asserts that prior to filing a complaint under the ADA, the Fry family must first raise a complaint under IDEA, an act specifically focusing on disability in educational settings. E.F.’s family’s hesitation lies in the process of filing a claim under IDEA, as it takes over 100 days to do so. Though the defense minimized this point, Chief Justice Roberts noted this amount of time is enough to derail a student’s entire school year. To this point the plaintiff’s attorneys emphasized that this case does not represent an isolated incident, but rather will influence countless individuals filing future disability claims in educational settings. As a result the ruling in this case has the possibility to disrupt an incalculable number of school days. This portion of the plaintiff’s argument reminded the entire courtroom of the importance of a single justice. One opinion has the power to change the process and thus the lives of an entire constituency.

  • November 2, 2016
    Guest Post

    by Priscilla J. Smith, Associate Research Scholar in Law at Yale Law School and the Senior Fellow and Director of the Program for the Study of Reproductive Justice at the Information Society Project

    The 2016 presidential election is already making a difference in our conversation about women’s role in society, about gender stereotypes, about what constitutes sexual assault. I would like to think this is because a new generation of young women and men, those who have been raised by women and men who fought for sexual equality, have completely different expectations for gender equality than generations that came before them. After all, their parents may have fought to change things but they had not been raised to take these changes for granted the way their kids have. 

    Let us recognize the change that we have already experienced. It was only a few election cycles ago that abortion remained a third rail for progressives. If forced to discuss it, they would mumble that abortion should be safe, legal and rare and then pivot to discuss the economy as quickly as possible. More recently, especially after all the “slut-shaming” that came from conservatives when women demanded access to contraceptives and the discussion of “real”—and thus implicitly “unreal”—rape, things had begun to shift.  Progressives began to recognize that being outspokenly pro-women and pro-choice increased their support among women voters in ways that could decide elections. Still, few progressives seemed to actually enjoy discussing abortion. Especially dreaded was any discussion of so called “late term” abortions.

    That all changed during the last presidential debate, when one candidate seemed to puff up and beam when the other starting ranting about abortion.  Could it be that this election can help us shift what it means to be pro-life?  Could being pro-“life” mean that you would support kids and their parents when a child is born, no matter your view of the status of the embryo or fetus before birth? A truly pro-“life” politician would change policies that discourage families from having more children, like the welfare “family caps” that deny additional support to families who have additional children; s/he would institute programs of paid family leave and free or low-cost child-care to enable parents, both single and coupled, to provide for their children; s/he would make sure that families had adequate health care; s/he would support the right of a pregnant woman to protect her own life and her health status by ending her pregnancy. At least, that kind of pro-“life” position has the benefit of not being hypocritical. In this view of what it means to be pro-“life,” we could ask when a state claims to be promoting potential life, does it undermine its claim by failing to support these policies that support the lives of the people who are born or live in that very same state?

  • October 31, 2016
    Guest Post

    by Robert Smith, Director of the Fair Punishment Project at Harvard Law School and Amy Weber, Frequent Outside Counsel, Fair Punishment Project

    Today, the Supreme Court vacated five juvenile life-without-parole (JLWOP) sentences and remanded the respective cases back to the Arizona courts. These cases may provide guidance to state courts faced with determining whether the Eighth Amendment requires a sentencer to not only consider mitigating circumstances such as the age of the juvenile before imposing an LWOP sentence in light of Montgomery v. Louisiana, but also explicitly find that the juvenile’s crime illustrates his or her “irreparable corruption” or “permanent incorrigibility” before imposing a life-without-parole sentence. In these cases, the life without parole sentence was not mandated by statute. Rather, the sentencer in each case had the opportunity to consider mitigating evidence—including the juvenile’s age—before imposing the sentence. Therefore, today’s remands strongly suggest that mere consideration of mitigating evidence is insufficient. At the Fair Punishment Project, we released an issue brief last week that explains this issue in more depth and details how state courts have treated the question. Here is a quick summary:

    In Miller v. Alabama, the Supreme Court held that the Eighth Amendment prohibits the imposition of a mandatory life without parole sentence for a juvenile who commits a homicide offense (JLWOP is categorically barred for non-homicide offenses per Graham v. Florida). Miller held these mandatory sentences unconstitutional because the sentencer was unable to “take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.”