• December 1, 2015
    Guest Post

    by Suja A. Thomas, Professor, University of Illinois College of Law 

    Today, the new proportionality amendment to the discovery rule goes into effect. Under this amendment, to obtain discovery, the requested material must be “proportional to the needs of the case.”

    Recently, I wrote an op-ed in Law360 entitled Via Duke, Companies Shaping Discovery, which is set forth below. This introduction to that op-ed about the new discovery rule explains what led to the op-ed and briefly discusses the response to the op-ed.

    The Law360 article publicizes the improper influence of privately-generated guidelines and practices (“private guidelines”) that purport to interpret the new proportionality rule. These private guidelines were created through a process led by a former leader and a former member of the Advisory Committee for the Federal Rules of Civil Procedure, the body that makes the rules, and the Duke Law Center for Judicial Studies—which is partially funded by major corporations and defense lawyers. As described in the Law360 piece, the guidelines favor corporations.

  • November 30, 2015
    Guest Post

    by Helen Wong, Attorney at the Federal Trade Commission

    The recent attacks in Paris—and in Beirut and Bamako—have gripped our country with fear and anxiety at levels not seen since 9/11. But this has led not to an outpouring of compassion, but instead knee-jerk reactions framed along racial and prejudicial lines. Rather than uniting us, these reactions divide us.

    We know well the dangers of such a response from the curtailment of civil liberties after 9/11, but also during World War II. As in the aftermath of the Paris attacks, our nation found itself indulging a loud, vocal minority after Pearl Harbor was bombed. These voices first called on the nation to refuse admission to European Jewish refugees out of unfounded fears of “sleeper agents.” The consequence of these fears was that many Jewish men, women and children - including Anne Frank – were refused entry to this country and left to the hands of Nazis.

    As those fears continued to escalate, suspicion eventually turned onto our own citizens, resulting in President Roosevelt signing Executive Order 9066. Long regarded as an enormous stain on American history, 9066 called for the internment of over 100,000 people of Japanese descent, most of them American citizens. In essence, this country resorted to race-based policies that blatantly violated civil rights, where U.S. citizens were deprived of life, liberty and property, simply because of their ancestry. All out of unfounded fear – in 2011, then Acting Solicitor General Neal Katyal admitted that the United States government hid intelligence reports that plainly stated that Japanese Americans posed no such threats. Yet, we interned them anyway.

  • November 30, 2015

    by Jim Thompson

    In The New York Times, Linda Greenhouse writes that the birth control and abortion cases on the Supreme Court’s docket present “a battle for the secular state in which women can make their choices and design what Justice Ginsburg calls their life course, free of obstacles erected by those who would impose their religious views on others.”

    At The Washington Post, Sandhya Somashekhar explains how violent, deceiving rhetoric from anti-abortion advocates directly contributed to the shooting at a Planned Parenthood clinic in Colorado last Friday.

    The family of Tamir Rice, a 12-year-old black male fatally shot by a white police officer last year, has presented Ohio prosecutors with two new reports from former high-ranking officials at California law enforcement agencies criticizing the Cleveland officer’s actions as reckless and unreasonable, writes Mitch Smith in The New York Times.

    The Council on American-Islamic Relations has called on the Department of Justice to investigate the Thanksgiving Day shooting of a Muslim taxi driver in Pittsburgh by an Islamophobic passenger, reports Peter Holley in The Washington Post.

  • November 25, 2015
    Guest Post

    by Anita Sinha, Practitioner-in-Residence, Immigrant Justice Clinic, American University Washington College of Law

    Since the horrific Paris attacks that killed 130 people the night of November 13, more than half of all U.S. governors have made declarations limiting or denying Syrian refugee resettlement in their states. Many of us who practice and teach immigration and refugee law, myself included, thought these statements were political grandstanding that would not be put into action – because they could not. Our certitude was based on the U.S. Constitution, federal anti-discrimination laws, and international humanitarian law. Also critical is the fact that immigration regulation and enforcement is a federal, not state, matter – a principle recently affirmed by the Supreme Court in its Arizona v. United States decision. The power to vet and admit refugees specifically is squarely in the hands of the federal government.

    Then one of the governors, Indiana’s Mike Pence, actually barred from his state a family who had just landed in the U.S. before he declared the state’s suspension of Syrian refugee resettlement. That family was eventually taken in by Connecticut. But according to a lawsuit against Governor Pence filed this week by the American Civil Liberties Union, 19 additional Syrian refugees are expected to resettle in Indiana over the next few weeks or months. It may be only a matter of time before one or more of the other 25 states start turning away Syrian families. And so these state-by-state refugee rules may not be simply rhetorical. They are, however, still contrary to what Professor Steve Vladeck calls laws that are “both well settled and well conceived on the relative roles of the state and federal government when it comes to refugee crisis.” And there are compelling reasons to stick to these roles.

  • November 25, 2015
    Guest Post

    by B. Jessie Hill, Judge Ben C. Green Professor of Law, Case Western Reserve University School of Law

    What is at stake for reproductive rights in Whole Woman’s Health v. Cole, which will be heard by the U.S. Supreme Court this Term? In a word, everything. Whole Woman’s Health may well be the most significant abortion case in 24 years.

    The Supreme Court established the “undue burden” standard for evaluating the constitutionality of abortion restrictions in 1992 in Planned Parenthood v. Casey. The vagueness of that standard, combined with the Court’s apparent willingness to uphold numerous restrictions in that case, opened the door for states to continually pass new and ever more restrictive regulations on abortion in the decades since Casey was decided. Meanwhile, the Supreme Court has largely declined to speak further on the meaning or scope of the undue burden standard.

    What’s more, states began to try a new kind of restriction – restrictions adopted in the name of protecting women’s health but really aimed at reducing access to abortion. These differed from the sorts of restrictions at issue in Casey, which were primarily laws aimed at affecting the woman’s decision making process, such as waiting periods, parental consent requirements, and informed-consent requirements. Casey was relatively deferential toward measures intended to ensure the woman’s choice was fully informed, but it did not have occasion to consider the sort of pretextual health regulations at issue in Whole Woman’s Health.

    In Whole Woman’s Health, the Court will decide the constitutionality of a Texas law that imposes onerous requirements on abortion providers—namely, that doctors providing abortions have admitting privileges at a local hospital and that abortion clinics conform to the requirements for “ambulatory surgical centers,” including requirements pertaining to the physical plant, staffing, parking, and the like. These requirements are often impossible for older clinics to meet without spending enormous sums of money. Although other types of ambulatory surgery centers—clinics that provide minor surgery on an outpatient basis—are generally offered waivers or grandfathered from when new regulations are instituted, abortion providers are specifically denied grandfathering and waivers.