Guest Post

  • April 19, 2018
    Guest Post

    by William Funk, Lewis & Clark Distinguished Professor of Law Emeritus, Lewis & Clark Law School

    For more than a half century since the Administrative Procedure Act (APA) became law, everyone had assumed that a hearing examiner, whose title became Administrative Law Judge (ALJ) in 1978, was an employee, not an officer of the United States. Indeed, this belief predated the APA, as hearing examiners had been used by various agencies prior to the APA. Recently, however, that assumption has been questioned in a number of cases challenging the use of ALJs by the Securities and Exchange Commission (SEC).

  • April 19, 2018
    Guest Post

    by Eva Paterson, President, Equal Justice Society

    Latino and Black students and their families and local community groups reached a settlement with the Kern High School District (KHSD) about their disproportionate discipline and transfer policies. However, the plaintiffs are appealing the dismissal of the California Department of Education from the lawsuit, arguing that the CDE failed in its independent oversight responsibilities by not acting to remedy the disproportionate discipline.

    The state allowed the school district to suspend and expel Latino and Black students in disproportionate numbers. The school reported the highest number of expulsions of any district in the state of California, including school districts with much larger enrollment. KHSD’s average expulsion rate for White students was 18.70 per 1,000 students; for Latino students, 65.85 expulsions per 1,000 students (20.84% higher than the average rate for all students and 352% higher than the average rate for White students); and for African-American students, 110.21 expulsions per 1,000 students (102% higher than the average rate for all students and 589% higher than the average rate for White students).>

  • April 19, 2018
    Guest Post

    by Andy Wright, Associate Professor, Savannah Law School

     The American political and legal scenes continue to be roiled by the FBI’s execution of a search warrant on Donald J. Trump’s personal attorney Michael Cohen’s legal office and residential hotel room.  In response, President Trump tweeted “Attorney-client privilege is dead!” An FBI raid of an attorney’s office raises sticky issues related to the attorney-client privilege and litigation work product—all the more magnified in the political glare associated with one of the President’s longtime attorneys.  However, the privilege has never applied to communications furthering ongoing or future criminal conduct, or business conversations unrelated to the provision of legal advice. Further, as Sara Kropf explains, the Department of Justice has exacting procedures—apparently followed in this case—designed to protect client equities in validly privileged materials.  For these reasons, President Trump’s and Mr. Cohen’s attorneys are unlikely to prevail in their effort to obtain exclusive privilege review in the aftermath of the raid.

  • April 18, 2018
    Guest Post

    by Kara Gotsch, Director of Strategic Initiatives, The Sentencing Project

    Thanks to President Trump, Attorney General Sessions and some in Congress, the opioid crisis has kick-started a War on Drugs reboot.  In March Trump outlined his administration’s blueprint for confronting the public health emergency instigated by skyrocketing opioid overdose deaths, emphasizing a highly punitive response: “If we don’t get tough on the drug dealers, we’re wasting our time… and that toughness includes the death penalty.”

    There is no doubt that we are in the eye of a drug crisis. The Centers for Disease Control and Prevention (CDC) reports that 63,632 people died in 2016 from a drug overdose, a 21 percent increase from 2015. Since 1999, the death toll from drug overdoses has grown to over 600,000. About two-thirds of these deaths involved an opioid. These stark statistics deserve national attention and action by the nation’s leaders, but the tragic consequences of the opioid crisis are an indictment of failed drug policies that for too long have emphasized investments in incarceration over treatment.

  • April 18, 2018
    Guest Post

    by Victoria Bassetti 

    Reworking the Department of Justice’s senior leadership team is a lot harder than deploying a catch phrase in a reality TV show. “You’re fired,” works when people have contracts that allow termination at will (and in exchange for ratings).

    It does not work smoothly when the employee at issue is Rod Rosenstein, the Senate-confirmed number two at the Department of Justice. There are no TV cameras at Main Justice. But there are battalions of lawyers all over D.C. ready to pounce on the smallest legal misstep.

    An effort by President Trump to fire Deputy Attorney General Rosenstein and sub in a pliable replacement who will fire or hobble Special Counsel Robert Mueller is complicated. It can be attempted by following one of two paths.