ACSBlog

  • July 20, 2017
    Guest Post

    by Shoba Sivaprasad Wadhia, the Samuel Weiss Faculty Scholar and Law Professor at Penn State Law and founding director, Center for Immigrants’ Rights Clinic.

    On June 26, the Supreme Court granted a partial stay and also granted certiorari in Trump v. Hawaii and Trump v. International Refugee Assistance Project, the Muslim travel ban cases. Here is a short analysis. The scope of the partial stay is as follows: within 72 hours of the ruling, any person from the six designated countries or refugee who cannot show a “bona fide relationship to a person or entity” will be banned from entry. The Department of State indicated that the travel ban would go into effect at 8:00pm EDT on June 29, 2017. Hours before the ban was to go into effect, the government issued guidance defining what constitutes a “bona fide relationship” narrowly. Litigation about the meaning of a “bona fide relationship” ensued in the Hawaii District Court and Ninth Circuit Court of Appeals.

  • July 20, 2017

    by Senator Sheldon Whitehouse, Rhode Island*

    **Read Harvard Law and Policy Review here

    In “Beyond the War on Drugs,” the Harvard Law & Policy Review has selected a timely and important topic—particularly in light of the recent presidential election, whose winner ran a campaign heavily focused on “restoring” law and order. Forty-five years after President Richard Nixon declared a war on drugs and identified drug use as “public enemy number one,” the policies and priorities associated with that war stand at a crossroads.(1)

  • July 19, 2017
    Guest Post

     

    by Raha Wala,  Director of National Security Advocacy, Human Rights First

    President Trump during the campaign said he wanted to bring back waterboarding and "much worse.” He went so far as to say that even if torture doesn’t work, we should still use it on suspected terrorists, because “they deserve it anyway.”  Still, he has so far deferred to Secretary Mattis and his other top national security advisors, who have advised that waterboarding and other torture tactics are unlawful and inappropriate.  Just last week, Christopher Wray, president Trump’s nominee for FBI Director said: “torture is wrong, it is unacceptable, it is illegal and I think it is ineffective.”

    Unfortunately, that important statement of principle will be undermined if the Senate confirms Trump’s nominee for a key legal post in his administration. Steven Bradbury is most prominently known as one of the infamous “torture memo” authors for his role in providing legal justification for the CIA’s so-called “enhanced interrogation” program in the George W. Bush administration.  As head of the Office of Legal Counsel (OLC) at the Department of Justice from 2005-2009, Mr. Bradbury wrote legal memoranda justifying waterboarding; sleep deprivation for up to 180 hours; holding detainees in painful, prolonged stress positions; forced nudity; locking detainees in cramped boxes the size of dog crates; physically assaulting detainees by slapping them or slamming them into walls; and other forms of torture and abuse. He should not now be rewarded with confirmation to a general counsel post.

  • July 17, 2017

     

    by Joseph Kimble, Distinguished Professor Emeritus, Western Michigan University Cooley Law School 

     Advocates of textualism promote it as a neutral, objective, apolitical theory of interpretation — one that is above ideology. Whenever you hear a judge describe himself or herself as a “rule of law” judge, you can bet that the judge is a textualist. A textualist supposedly respects the democratic process and does not impinge on the legislature’s role. He or she adheres to established and well-founded canons of construction in merely “interpreting” law. As Justice Gorsuch put it in his first majority opinion (page 11), “[T]he proper role of the judiciary [is] to apply, not amend, the work of the People’s representative

    That is the mantra. But the reality is altogether different. Textualism has become the brand of conservative judges and judging. And there is in fact strong — if not incontrovertible — evidence that textualism, as practiced, produces conservative results.

  • July 14, 2017
    Guest Post

    by Lauren Guth Barnes, partner at Hagens Berman Sobol Shapiro LLP

    It is 775 pages long. I have not read all of it. But I know this: it is a great win for consumers.

    On Monday, July 10, 2017, the Consumer Financial Protection Bureau (CFPB) issued its final rule banning providers of various consumer financial products and services – credit cards and the like – from using arbitration agreements to bar the filing of or participation in a class action. Arbitration is an alternative form of dispute resolution, almost always held in secret, before an individual paid by one or both sides; the parties forego the right to trial by jury and the protections of an independent judicial system, including a neutral judge, the rules of civil procedure and evidence and the transparency of open proceedings. It may work in some settings, between parties of equal bargaining power and when openly agreed to, after a dispute arises. But when buried in the fine print of contracts, often with a clause preventing any kind of group or class action, forced arbitration serves simply to insulate companies from accountability.

    Say your phone company rips you off to the tune of $30. You will likely be angry. You will complain to some friends. You might even spend a little time on the phone, working your way through the company’s customer service and billing bureaucracy. But when you get no relief there, are you going to file a lawsuit over that $30? Or seek arbitration with the company, either by yourself or with the assistance of a lawyer you may have to pay on an hourly basis? The answer, for the vast majority of Americans, is a resounding “no.”

    Companies count on that. They bank on the fact that it is not really worth your time or energy to fight over $30. Or your neighbor’s time. Or the time of the thousands – or maybe millions – of other people they ripped off too. But wow, $30 times thousands or millions of consumers? That is a pretty penny to pocket, all while facing no liability.