ACSBlog

  • December 12, 2016
    Guest Post

    *This piece originally appeared on The Legal Examiner.

    by Arthur Bryant, Chairman of Public Justice

    The federal government says that court secrecy is preventing it from protecting consumers. To stop that, the U.S. Consumer Product Safety Commission just adopted a formal Litigation Guidance and Recommended Best Practices for Protective Orders and Settlement Agreements in Private Civil Litigation, published in the Federal Register on Dec. 2, 2016. The Guidance urges all judges, plaintiffs, defendants and lawyers, as well as parties wishing to submit amicus briefs, to ensure that every protective and secrecy order and agreement “specifically allows for disclosure” to the “CPSC and other government public health and safety agencies.”

    The CPSC Guidance is an enormously important step forward for consumer protection that could reduce injuries and save lives nationwide. Judges need to make sure all protective and secrecy orders and agreements comply with it. Everyone should follow it. As the deadly, growing series of examples—from Remington rifles to Takata airbags to GM ignition switches—proves, court secrecy injures and kills.

    The danger is real—and avoidable. The Guidance specifically notes that “safety information related to dangerous playground equipment, collapsible cribs, and all-terrain vehicle defects was kept from the CPSC by protective orders in private litigation.” It cites protective orders in current cases involving allegedly defective propane heaters, wheelbarrows, markers, multimeter devices, office chairs and gas cans that prevent the CPSC from learning the truth. There are undoubtedly many more.

    Recognizing that fact, the CPSC advises parties currently negotiating “or already subject to” confidentiality provisions  to “use this Litigation Guidance and the CPSC’s standing as a public-health authority” to create an exception to them ensuring that information can be reported to the CPSC and other relevant agencies. It even provides draft language that could be used.

  • December 12, 2016
    Guest Post

    by Erwin Chemerinsky, Dean and Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    Jeff Sessions should be denied confirmation as Attorney General of the United States.  Sessions is at the far right of the political spectrum and should not be put in charge of federal civil rights and federal environmental enforcement. Although it would take political courage to stand up to the newly elected President, pressure should be placed on moderate Republicans to join Democratic Senators in denying confirmation to Sessions.

    The Civil Rights Division of the United States Department of Justice is responsible for enforcing laws prohibiting race discrimination in voting, employment, housing and policing.  Nothing in Sessions’ career offers hope that he would be other than a disaster in doing so.

    In 1986, Sessions was nominated to be a federal district court judge. He was denied confirmation by the Senate, with even a Senator from his home state of Alabama, Howell Heflin, voting against Sessions. An Assistant U.S. attorney who worked for Sessions, Thomas Figures, testified that he was repeatedly called “boy” by Sessions and was instructed by the Sessions to “be careful what you say to white folks” after Figures spoke assertively to a co-worker. Sessions has said that the NAACP and the ACLU are “un-American” and “communist-inspired” for “trying to force civil rights down the throats of people.”

    As a United States Attorney in Alabama, Sessions did nothing to enforce federal civil rights law, but he did prosecute three black activists for voter fraud, including a former aide to Martin Luther King Jr., Albert Turner. Turner had led marchers across the Edmund Pettus Bridge during the famous “Bloody Sunday” march in Selma, Alabama, on March 7, 1965. Turner and the other defendants were acquitted, but prosecutions like this one likely had a chilling effect on efforts to facilitate voting by racial minorities.

  • December 9, 2016

    by Christopher Wright Durocher

    The optics were stark—12 jurors, six white men, five white women and one black man, sat in judgment of Michael Slager, the white police officer who shot and killed Walter Scott, a black man, in North Charleston, South Carolina. The results were depressingly familiar—a jury unwilling to convict a police officer for unjustified use of force. The question lingers—if prosecutors cannot secure a conviction against a police officer in a case this egregious, can they ever?

    For those who pay attention to the rare cases in which police officers face prosecution for their use of force, the result was eerily similar to the case again University of Cincinnati police officer Ray Tensing. Less than a month ago, Tensing's trial also ended when a predominantly white jury in Ohio—six white men, four white women and two black women—were unable to reach a verdict in his trial for killing Sam DuBose, an unarmed black motorist.

    The disturbing video evidence in the killings of Scott and DuBose, along with the other evidence presented at the trials, make the inability of the juries to reach a guilty verdict difficult to fathom. That is, until you consider who was actually sitting on those juries and what they were being asked to decide. 

    Both juries failed to adequately reflect the racial diversity of the communities from which they were selected. In Slager’s case, his attorney successfully struck seven people of color from the jury pool, leaving only one black juror, even though North Charleston’s population is 47 percent black.  In Tensing’s case, not only was the jury predominantly white, but reports indicate that four jurors agreed with the statement from the juror questionnaire that “Some races and/or ethnic groups tend to be more violent than others.”

  • December 7, 2016
    Guest Post

    *This piece was originally posted as a part of the Harvard Law and Policy Review's Obama Legacy Symposium. 

    by Don Verrilli, Former Solicitor General of the United States

    I was fortunate to be a part of many great moments, in and out of the Supreme Court’s chambers, during my tenure as Solicitor General in the administration of President Obama. But of all the great moments, the one that means the most to me occurred at the end of a grueling three days of oral argument in the historic Health Care Case, when I spoke these words:

    The Medicaid expansion that we are talking about this afternoon and the provisions we talked about yesterday, we have been talking about them in terms of their effect as measures that solve problems, problems in the economic marketplace, that have resulted in millions of people not having health care because they can’t afford insurance.

    There is an important connection, a profound connection, between that problem and liberty. And I do think it’s important that we not lose sight of that. That in this population of Medicaid eligible people who will receive health care that they cannot now afford . . . there will be millions of people with chronic conditions like diabetes and heart disease, and as a result of the health care that they will get, they will be unshackled from the disabilities that those diseases put upon them and have the opportunity to enjoy the blessings of liberty.

    And the same thing will be true for a husband whose wife is diagnosed with breast cancer and who won’t face the prospect of being forced into bankruptcy to try to get care for his wife and face the risk of having to raise his children alone. And I can multiply example after example.

    In a very fundamental way, this Medicaid expansion, as well as the provisions we discussed yesterday, secure the blessings of liberty. And I think that that is important as the Court’s considering these issues that that be kept in mind.

  • December 6, 2016
    Guest Post

    *This post originally appeared in The Commentator, The Official Student Newspaper of NYU School of Law

    by James Mayer

    As opposition to the Dakota Access Pipeline grows around the country, the cultural heritage issues that are central to the Standing Rock Sioux’s fight are disappearing from the national conversation, replaced by a whitewashed narrative of environmental activism.

    A Texas-based company, Energy Transfer Partners, is building the nearly 1,170-mile pipeline to carry oil from the oil fields of North Dakota to Illinois. The pipeline passes less than a mile from the Standing Rock Sioux reservation, through the Sioux’s traditional lands and, importantly, across several culturally significant burial grounds and sacred places. Dakota Access also crosses the Missouri River, the Standing Rock Sioux’s major source of fresh water, just upstream from the reservation. Energy Transfer Partners has already received a permit from the Army Corps of Engineers, yet the Standing Rock Sioux say they were not consulted during the permitting process and claim the pipeline will destroy significant cultural heritage sites. In September, a federal judge denied an injunction to stop construction until the legal issues were resolved.

    The Standing Rock Sioux oppose Dakota Access because it destroys their cultural heritage by damaging sacred sites, destroying traditional burial grounds and degrading ancestral lands and this is the foundation of their legal challenge to Dakota Access. Central to the community’s legal case is that they were not consulted in the development or permitting of the pipeline, in violation of the National Historic Preservation Act. The Sioux allege that Energy Transfer Partners did not consult with them in surveying the pipeline route and did not approach them for input until permits were nearly approved. Until Dakota Access respects and accommodates the community’s cultural heritage, the Standing Rock Sioux will continue to fight.

    This is not to say that environmental concerns are not also at the heart of the community’s struggle against Dakota Access, because environmental issues are central to the protests and are the basis of two supplemental legal claims. However, the mainstream focus on environmentalism and the inevitable comparison to Keystone XL, are silencing the issues of cultural heritage and cultural sustainability that drive the opposition to the project. For many Indigenous communities, environmentalism and cultural heritage are indistinguishable. Separating environmental concerns from cultural contexts whitewashes the issue, marginalizes Sioux agency as a key element of this protest and devalues the community’s cultural heritage.