ACSBlog

  • May 9, 2017
    Guest Post

    *This piece is part of the ACSblog Symposium: 2017 ACS National Convention. The symposium will consider topics featured at the three day convention, scheduled for June 8-10, 2017. Learn more about the Convention here

    by Deborah Rhode, Ernest W. McFarland Professor of Law and Director of the Center on the Legal Profession, Stanford Law School

    “It depends,” is the most irritating answer that an ethics professor can give to difficult ethical questions. But sometimes it is the only one that makes sense, and that is my response to whether socially responsible lawyers can, or should, serve in the Trump administration. The key factors are what the position is and how much ability the lawyer has to accomplish ethically defensible ends.

    I begin from the premise that it will not serve the public interest if the only lawyers in governmental positions are those who share Trump’s views. There are many relatively apolitical legal jobs in the federal government in which attorneys can do “good” work, in both a descriptive and prescriptive sense. And there are even some political jobs, for which, as New York Times columnist Russ Douthat has argued, if Trump is willing to make “responsible appointments, the good of the world requires that responsible people accept them.” Progressive administration lawyers can be the front line of resistance to executive abuse. They can supply passive resistance to efforts to roll back important procedural and substantive protections. And they can effectively enforce the safeguards that are not under siege. To take an obvious example, the enforcement division of the EPA urgently needs attorneys who have environmental commitments that their president may not share.

  • May 9, 2017

    by David Lyle

    President Donald Trump has received a lot of attention – and widespread condemnation – for his attacks on federal judges. But as Assaults on the Courts: A Legislative Roundup, a new report by the Brennan Center for Justice, makes clear, Trump’s conservative allies in the states have prosecuted a far-reaching campaign to undermine state courts, strip them of their constitutionally-designated powers and deny people the rights and protections the courts are supposed to protect. That these attacks on fair and impartial courts have received so much less attention than Trump’s judge-bashing tweets makes them all the more dangerous.

    Attacks on state courts are especially troubling because these courts are the only judicial bodies most American will ever encounter. State courts handle 95 percent of the nation’s judicial business, and decide cases involving vitally important issues ranging from voting rights to criminal justice to reproductive freedom and environmental protections. As a result, powerful conservative interests have flooded state court elections with money over the past decade. As a series of ACS-sponsored studies have shown, this spending undermines justice in our courts.

    The Assaults on the Courts study documents the new fronts conservative interests have opened up in their war on the courts in the form of legislative actions that strips courts of their powers or the ability to do their jobs. It finds that:

     This year, at least 41 bills in 15 states have targeted state courts, including efforts to control the ways by which judges reach the bench, to unseat judges currently on courts and generally to restrict courts’ jurisdiction and power. While lawmakers have employed similar tactics in the past, one new trend is a group of bills that would allow state legislatures to override or refuse to enforce court decisions, potentially undermining the role of the courts in our constitutional system. So far this year, nine such bills have been introduced in seven states.

  • May 5, 2017
    BookTalk
    The Missing American Jury
    By: 
    Suja A. Thomas

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

    Since Trump took office, several issues, including immigration, have highlighted the importance of checks and balances between the branches of the government and between the federal government and the states.

    My book The Missing American Jury argues that the jury was intended to serve as a similar check on the government, but its authority has shifted to other parts of the government, making the jury’s independent governmental role precarious.

    While statistics from the founding are rare, there’s no question that the jury decides far fewer cases now than in the past. Juries decide less than four percent of criminal cases and less one percent of civil cases filed in federal and state court. And in many states, grand juries do not decide whether serious cases should proceed against criminal defendants.

    So what has happened to the jury? Over 95 percent of criminal cases are plea bargained, with some set of these pleas actually later resulting in innocence findings. In civil cases, judges may dismiss cases on summary judgment. For example, in factually intensive employment discrimination cases (discussed in another recent book), judges often conclude that a reasonable jury could not find for the employee—dismissing claims in whole or in part at a rate of 70 percent or more in some districts. 

    These stark statistics do not even account for the cases that are decided outside of court—those determined through settlement, arbitration or administrative agencies. 

    Often inefficiency, cost, inaccuracy and incompetence are proffered for why the jury decides few cases—why we use procedures like plea bargaining, summary judgment and administrative determinations, instead of juries. My book freshly examines this issue of why the jury has fallen.

  • May 3, 2017
    Guest Post

    *This piece originally appeared on Lambda Legal’s blog.

    by Eric Lesh, Fair Courts Project Director, Lambda Legal

    Yesterday, Lambda Legal filed a friend-of-the-court brief with the Oregon Supreme Court arguing that it was unlawful for Judge Vance D. Day to devise a scheme to avoid marrying same-sex couples.

    Judge Day directed court staff to use the court record system to investigate whether couples wishing to marry were of the same sex and, if so, to represent that he was unavailable, rather than unwilling, to marry them.

    “A judge puts on a robe—not a clerical collar—and has a duty to administer the law impartially,” said Peter Renn, senior attorney for Lambda Legal. “No public servant, whether a judge or county clerk, has the right to ‘screen out’ same-sex couples seeking to marry from access to government services on the basis of personal religious beliefs. Everyone who comes before a judge is entitled to receive fair and impartial treatment.”

    “As public servants, judges are required to serve all people, including same-sex couples, without bias or prejudice. When they break that promise, the public loses trust in the courts,” said Eric Lesh, director of Lambda Legal’s Fair Courts Project. “LGBT people and other marginalized communities depend on the courts for justice when they encounter discrimination. But how can they believe they’ll get a fair shake when judges go rogue and themselves engage in discrimination—and defend their right to do so?”

  • May 2, 2017
    Guest Post

    by Erwin Chemerinsky, Dean and Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law; Co-counsel for City of Miami in Bank of America v. City of Miami and Wells Fargo v. City of Miami

    On Monday, the Supreme Court gave civil rights plaintiffs an important victory when it ruled that the City of Miami had standing to sue under the Fair Housing Act to challenge discriminatory lending by banks. In Bank of America v. City of Miami, the Court, in a 5-3 decision, held that the city was an “aggrieved person” within the zone of interests protected by the statute. The Court also said the city needs to allege and prove that its injuries were proximately caused by the bank’s discriminatory lending and the Court remanded the case for the federal court of appeals to consider the causation question.     

    The Fair Housing Act, adopted in 1968, not long after the death of Dr. Martin Luther King, Jr., broadly prohibits race discrimination in housing. The Act makes it unlawful “[t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race . . . or national origin.” It also forbids discrimination by “any person or other entity whose business includes engaging in residential real estate-related transactions . . . in making available such a transaction, or in the terms or conditions of such a transaction, because of race . . . or national origin.”

    A lawsuit to enforce the Act may be brought by the attorney general or by an “aggrieved person.” The statute broadly defines “[a]ggrieved person” to include any person who— (1) claims to have been injured by a discriminatory housing practice; or (2) believes that such person will be injured by a discriminatory housing practice that is about to occur.”