September 2010

  • September 21, 2010

    Lawyers, policymakers, academics and law students: ACS is now taking submissions for the fourth annual Richard D. Cudahy Writing Competition on Regulatory and Administrative Law.

    The choice of regulatory and administrative law as the focus of this competition reflects Judge Cudahy's interest in and contributions to these fields. Judge Cudahy has written and spoken widely on public control of prices and service obligations in industries such as electrical generation and transmission, natural gas distribution, and transportation - industries that are viewed as natural monopolies or as so critical to the public interest as to warrant exceptional levels of public control.

    This competition seeks to encourage and reward the qualities reflected in Judge Cudahy's scholarship in this area: a keen grasp of legal doctrine, deep insight into the institutional forces that determine how doctrine is implemented, and an appreciation of the public impact of doctrinal and institutional choices, including the consequences for fundamental values such as fairness, participation, and transparency. ACS encourages participants to view this topic broadly and welcome submissions on a variety of substantive areas.

    The judging committee will include federal judges and leading academics. A winner will be selected in both the lawyer and student categories. The author of the winning paper in each category will receive a cash prize of $1,500. The winning papers will also receive special recognition at the ACS National Convention, on the ACS website, and potentially through other means agreed upon by the authors and ACS. The deadline for submissions is February 11, 2011. More information is available here.

    ACS thanks Judge Cudahy's clerks and staff for their generous support of the competition.

  • September 20, 2010
    The justices are set to hear high-profile criminal justice and First Amendment cases early in its forthcoming term, which starts Oct. 4. Those cases, and others, were analyzed during the recent ACS Supreme Court preview.

    Cynthia Jones, a law professor at American University Washington College of law, said that the Supreme Court has struggled with cases involving criminal defendants and use of DNA evidence to prove their innocence. She noted a case that may move the high court to provide more guidance on the matter.

    In Skinner v. Switzer, which the justices will hear oral argument in on Oct. 13, the high court is faced with a Texas death row inmate who is challenging a state law that bars him from forcing the state to test DNA evidence he says could prove he is innocent. Jones said the Supreme Court may have to deal again with the question of whether there are indeed "correctable flaws in the criminal justice system."

    Cliff Sloan, partner at Skadden, Arps, Slate, Meagher & Flom, and a frequent commentator on the Supreme Court, discussed two First Amendment cases the high court will consider early in its term -- Snyder v. Phelps and Schwarzenegger v. Entertainment Merchants Assoc.

    In Snyder the justices will consider whether the U.S. Court of Appeals for the Fourth Circuit correctly applied the First Amendment in setting aside a $5 million jury verdict against an anti-gay group led by Kansas preacher Fred Phelps. Phelps and members of his church have a longtime practice of picketing funerals of soldiers who have died in military action in Iraq and Afghanistan. Phelps alleges that America is advancing equal rights for gays and is being punished for doing so by God. After his church, which is largely made up of members of his extended family, picketed the funeral of Marine Lance Corporal Matthew Snyder in Maryland, his father, Albert, sued Phelps, winning the $5 million jury verdict. Sloan also noted Schwarzenegger v. Entertainment Merchants Assoc., involving a federal court striking down a California law barring the sale of violent video games to minors. He said was not surprised that the high court would hear a case involving a federal court invalidating a state law.

    Video of the entire panel discussion is available here or by clicking the picture. Moderated by University of Southern California law school professor Rebecca Brown, the panel also included David Fredrick, partner, Kellogg, Huber, Hansen, Todd, Evans & Figel, Michael A. Carvin, partner, Jones, Day, Cyrus Mehri, founding partner, Mehri & Skalet, Jennifer Chang, staff attorney, ACLU Immigrants' Rights Project, and Paul R. Q. Wolfson, partner, WilmerHale.

  • September 20, 2010
    Recent Supreme Court decisions have made it more difficult for a growing number of people to access the courts, two civil liberties attorneys write in a new ACS Issue Brief.

    Joshua Civin, an assistant counsel at the NAACP Legal Defense & Educational Fund, Inc., (LDF) and Debo P. Adegbile, associate director-counsel and director of litigation at LDF, write that the high court has "skewed the balance away from access to the courts by elevating the threshold standard that all plaintiffs must meet to pursue legal claims. The two cases [Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal], have "without clear necessity overturned well-settled law and imposed a more stringent standard for federal cases to survive," they maintain.

    In "Restoring Access to Justice: The Impact of Iqbal and Twombly on Federal Civil Rights Litigation," Civin and Adegbile explain that when the Federal Rules of Civil Procedure were created in 1938, "they transformed civil litigation by establishing a liberal standard for what plaintiffs must plead in their complaints to initiate a federal lawsuit to withstand a motion dismiss." Specifically the federal rules merely required that plaintiffs lodge a "short and plain" statement about why they are entitled to relief.

    But with Twombly and Iqbal the high court, the authors state, has "usurped by judicial fiat the deliberative and inclusive process that Congress has established ...."

    The Twombly case applied specifically to antitrust laws, but in the 5-4 Iqbal opinion, the majority expanded the more stringent pleading standards to all civil cases. Writing for the narrow majority, Justice Anthony Kennedy held that for a complaint to survive a motion to dismiss, plaintiffs must provide much more specific factual information, and that a court can "draw on its judicial experience and common sense," in determining whether to dismiss a lawsuit, the authors write.

    "The new emphasis on factual specificity is especially onerous for civil rights plaintiffs," Civin and Adegbile say. "In many civil rights cases, most, if not all, pertinent information is within the exclusive province of the defendant - through its agents, employees, records, and documents. For instance, when a plaintiff alleges she was the victim of a discriminatory practice, she typically must expose the defendant's ‘private, behind-closed-doors-conduct,' including ‘particular meetings and conversations, which individuals were involved, when and where meetings occurred, what was discussed, and, ultimately, who knew what, when, and why.'"

    The authors urge Congress to pass legislation to return the pleading standards to those used for five decades and required courts "to view allegations in the complaint in the light most favorable to the plaintiff."

    Lawmakers in Congress have introduced a bill, the "Notice and Pleading Restoration Act," which is intended to require federal courts to follow traditional civil procedure rules for filing lawsuits.

    For more on Iqbal and Twmobly, see video of an ACS symposium on the decisions and ACSblog guest post from Vermont law school professor Anthony F. Renzo.

  • September 17, 2010

    The average lifespan of constitutions around the world since 1789 is 17 years, Stanford Law School professor and ACS Board member Pamela Karlan told an audience this week during a debate on constitutional interpretation, in celebration of the U.S. Constitution's 223rd anniversary.

    Our constitution has endured as long as it has because our interpretational methods are adaptable to changes in cultural norms, she explained during the event, which was centered on Keeping Faith with the Constitution, the book she coauthored with Goodwin Liu and Christopher Schroeder. Keeping Faith was first published by ACS last year and republished this summer by Oxford University Press with a new chapter on the First Amendment.

    Debating Karlan was Georgetown University law professor and Federalist Society member Nicholas Quinn Rosenkranz, who challenged Karlan's assertion that present understandings can help us interpret phrases and words in the Constitution.

    "The Constitution was not just made by courts interpreting the Constitution or by people changing the words in the Constitution by amendment, but also by people who gave the Constitution life," Karlan explained.

    Slate Senior Editor Dahlia Lithwick, who moderated the panel, said in re-reading Keeping Faith, she "came away with the stunning, chilling feeling that, man, the Constitution is cool."

    President Barack Obama thinks so, too. In a proclamation declaring Sept. 17, 2010 Constitution Day and Citizenship Day, he said, "In the United States, our Constitution is not simply words written on aging parchment, but a foundation of government, a protector of liberties, and a guarantee that we are all free to shape our own destiny. As we celebrate this document's profound impact on our everyday lives, may all Americans strive to uphold its vision of freedom and justice for all."

    During Constitution Week ACS has continued its tradition of teaching a new generation of students about our founding document through the Constitution in the Classroom program.

    But this year, ACS has also sought to raise the public's awareness about the danger that unfilled judicial vacancies on the federal bench pose to our constitutional form of government. In an op-ed in The Huffington Post, ACS Executive Director Caroline Fredrickson wrote that the critical number of vacancies, and the Senate obstruction that has perpetuated those vacancies, "threatens the vitality of our founding document."

    Karlan also spoke earlier this year about the importance of a robust, qualified and independent judiciary to uphold our Constitution.

    View Karlan's remarks during the 2010 ACS National Convention here, and the Karlan/Rosenkranz debate here.


  • September 17, 2010
    Guest Post

    By Fatima Goss Graves, Vice President for Education and Employment, National Women's Law Center
    Yesterday the Census released its annual data on earnings-and despite some earlier media predictions to the contrary, there was once again no improvement in the wage gap. On average, a woman who works year-round in a full-time job makes 77 cents for every dollar earned by a man, and the gap is even wider for women of color. And as families are increasingly dependent on women's earnings, these discounted salaries cannot go ignored.

    The Senate has a short window to take steps to address the wage gap by passing the Paycheck Fairness Act. The Paycheck Fairness Act updates and strengthens the Equal Pay Act of 1963 to ensure that it will provide effective protection against sex-based pay discrimination. It prohibits retaliation against workers who share their salaries and allows women to receive the same remedies for sex-based pay discrimination that are currently available to those who are subjected to discrimination based on race or national origin. It also provides for much-needed training and technical assistance as well as data collection and research.