Wednesday, August 31, 2016

Children’s Right to Counsel

 

Jonathan Todres   Image1

At every stage in the legal process, from initial interactions with police to arrest, then prosecution, and trial, children face unique challenges navigating the legal system, due is significant part to the developmental nature of childhood.  The idea that children are developmentally different and should not be held to adult standards has been affirmed by the U.S. Supreme Court in opinions abolishing the death penalty in juvenile cases (Roper v Simmons) and limiting the application of juvenile life without parole sentences (Graham v. Florida). Despite this emerging recognition of children’s developing capacities and their needs, many youth still confront having to make critical decisions without adequate access to counsel.  

On September 12, 2016, the House of Representatives will host a briefing on children’s right to counsel. Sponsored by Rep. Karen Bass and co-hosted by the American Bar Association, the Children's Advocacy Institute  , First Focus, and the National Association of Counsel for Children , the briefing will include testimony from experts from child welfare, immigration and juvenile justice about the critical nature of legal representation for children.  Click here for more information and to register to attend the briefing.

For an important and informative human rights perspective on the issue, see Bernadine Dohrn’s recent article which urges the United States to recognize children’s need to have access to counsel prior to being questioned

August 31, 2016 | Permalink | Comments (0)

Tuesday, August 30, 2016

City by City, Local Domestic Violence Resolutions Bring Human Rights Home

In 2011, the Inter-American Commission on Human Rights issued a favorable decision for the petitioner in Lenahan v. United States.  The Commission found that the United States violated Jessica Lenahan's human rights when it endorsed the failure of Castle Rock, Colorado to enforce Lenahan's order of protection against her estranged husband -- a failure that led to the tragic deaths of Lenahan's three daughters.

Yet that decision would have remained just words on a page were it not for the determination of Lenahan, her litigation team, and advocates around the country, particularly law school clinics and students, to use this decision to make a real difference on the ground.  Advocates mounted a novel strategy to implement the IACHR decision at the local level, resolution-by-resolution, in U.S. cities.  Five years after the favorable IACHR decision, there are now 28 local resolutions or proclamations adopted across the country.   The most recent resolutions, from such disparate cities as Dallas, Texas (2015), and Iowa City, Iowa (2016), are available with the rest on the tracking  webpage developed by the Cornell Gender Justice Clinic, the Columbia Law School Human Rights Institute, and the Miami Law Human Rights Clinic.   

In addition to promoting the resolutions, advocates are also working on next steps in their implementation.  For example, the Cornell clinic recently released a Model Domestic Violence and the Workplace policy and toolkit for public and private employers, an idea that grew out of discussions with legislators during the resolution process.

Kudos to the many advocates, law professors, law students and Jessica Lenahan herself, who for the past five years have continued to expand the impact of the IACHR's decision through their dogged commitment to protect women's human rights to be free from violence.

 

August 30, 2016 | Permalink | Comments (0)

Monday, August 29, 2016

California's Death Penalty: Competing Propositions Come to a Vote November 8

On November 8, California voters will have the opportunity to end the death penalty in the state.  As pointed out by Professor emeritus Marjorie Cohn, this move would bring California into line with human rights standards articulated by the Inter-American Commission on Human Rights as well as UN Special Rapporteurs on summary executions and torture. 

The issue comes to a vote in California through its volatile and controversial Proposition system, which allows policies to come to a popular majority vote  if enough signatures are submitted.  This year, two Propositions put before the public for a vote address the death penalty: Propositions 62 and 66.  Proposition 66: The Death Penalty Reform and Savings Act, would "improve" and reform the state's death penalty.  A new analysis posted by Robert M. Sanger indicates that California's death penalty system has been completely unresponsive to past reform efforts.

Sanger concludes that the best course for reforming California's death penalty is repealing it.  Proposition 62, also a result of popular petition, would do just that.  A report prepared by Loyola Law School's Alarcon Advocacy Center analyzes the two competing propositions and concludes that Proposition 66 would be costly and unworkable.  In contrast, they write, Proposition 62 "is straightforward and transparent," saving the state $1.5 billion over the next 10 years.  Lawyer Stephen Cooper, writing in Jurist, also chronicles the shortcomings of Proposition 66, calling it "Fool's Gold," and urges a Yes vote on Proposition 62.

As the Loyola report concludes, one thing these dueling Propositions demonstrate is a general consensus that California's machinery of death is broken.  On November 8, the state's voters will decide whether to affirm human rights and join the international condemnation of the practice, or whether to pursue an impossible effort to fix the inherently flawed system.

 

August 29, 2016 | Permalink | Comments (0)

Sunday, August 28, 2016

Lawyers Losing Sight of Their Ethical Obligations: Defeating Trump Does Not Justify the Means

 Go to Laurence Tribe’s Twitter site and you will read the famous constitutional professor’s byline: "Descartes last words: I think not."

Apparently Prof. Tribe was not thinking when he made this recent twitter postI have notes of when Trump phoned me for legal advice in 1996. I'm now figuring out whether our talk was privileged. 

Really?  @trump_democrat does not disclose if the writer is a lawyer, however the author’s response seems to summarize the concern quite nicely.  “You just said for legal advice.  Sounds privileged to me.”  Well, almost.

Before I discuss the reasons why Prof. Tribe might better have restrained himself from making this particular post, let me address a fundamental ethics misunderstanding.  The communication between Prof. Tribe and Mr. Trump was not privileged.  The communication was confidential.  Privilege applies during a hearing before a tribunal or other process to which a lawyer may be subpoenaed.  Otherwise the communication is confidential.  Now that I have the annoyance of a professor teaching Professional Responsibility out of the way, let’s get to the real issue.

Unless in Prof. Tribe’s notes there is a release from Mr. Trump acknowledging that the telephone consult was not confidential, or Mr. Trump gave permission for the current disclosure, yes- the information is confidential.  Is the fact that Mr. Trump contacted Prof. Tribe in the first instance confidential?  In most cases yes, and definitely in this case.  I am curious why Mr. Trump would need the advice of a constitutional scholar.  If the call was made to a construction law expert, the communication would be not create any ripples.  Are you at least a bit inquisitive?  Are some of you speculating? That is why this information should be confidential.  And under any circumstances, the notes are confidential. ABA Model Rules of Professional Conduct Rule 1. 18 (b):   Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information (the stated exceptions do not apply in this case). (Mass. Rule 1.6 addresses confidentiality).

Making matters worse from an integrity prospective, Prof. Tribe later tweeted:  I did wonder whether disclosing my notes of that call would be improper, thought that raising that question in a tweet might help me think the issue through, decided that it wouldn’t be improper in any technical sense but concluded that I wouldn’t disclose the notes in any event. People who doubt the propriety of my even having mentioned that Mr. Trump sought my counsel assume that the very fact of his call was some kind of secret. I don’t know for sure, but I have no reason to doubt that he let others know that he was calling me.j

In other words, I don’t think I violated ethics, because I am guessing that Donald Trump told others that he called me, making the fact of the call not confidential.  I am guessing that Prof. Tribe just jumped further into the proverbial ethics fire.

It is unfortunate that Prof. Tribe's response mimics Mr. Trump's favored approach – denial and supposition.  So much better would have been a response that he may have acted too quickly and would have done well to walk down the hall and consult legal ethics professors prior to writing the post. 

Earlier, Attorney Thomas Wells of New Jersey, wrote a Huffington Post piece that raised similar concerns.  The piece, entitled Donald Trump Hired Me As An Attorney. Please Don’t Support Him For President.  Attorney Wells seems to have less concern than Prof. Tribe in revealing confidential information.  Attorney Wells proclaims such sweeping generalities as “The man lies all the time”.  The fact that many have already formed that conclusion does not excuse the statement.  Has Attorney Wells never heard of loyalty to a client?  The fact that Attorney Wells discloses no information that would shock the public at this point does not excuse the disclosures. 

Fellas, this is what representing unpopular clients is all about. 

Why am I reporting this?  Abandoning the fundamental rules governing lawyer conduct is dangerous.  In an age when government attempts to limit attorney client privilege and restrict fundamental lawyering principles, what we do not need is lawyers failing to honor long standing ethics prohibitions because their egos compel them to disclose confidences in a public forum.  Lawyers are most often at the forefront of effective Human Rights advocacy. Human Rights principles look to eliminate pretext and substitute dignity.  We do not need lawyers discrediting the profession with the pretext of protecting the public. 

August 28, 2016 in Advocacy, Margaret Drew | Permalink | Comments (0)

Thursday, August 25, 2016

Standing Rock Sioux Seek UN Assistance

The Standing Rock Sioux and the International Indian Treaty Council opposing the Dakota Access Pipeline have asked four UN Special Rapporteurs to intervene to stop the work on the project.  According to a report in Indian Country Today, the groups cited  “ongoing threats and violations to the human rights of the Tribe, its members and its future generations.”  The urgent communication was submitted to UN Special Rapporteurs on the situation of human rights defenders, the Rights of Indigenous Peoples, the human right to safe drinking water and sanitation, and Environment and Human Rights, as well as the Office of the UN High Commissioner for Human Rights.  A more detailed description of the communication is available here.  Pipeline construction was halted pending resolution of a court proceeding, with the hearing now scheduled for September 8.

 

 

 

August 25, 2016 in Environment, Martha F. Davis, Native American | Permalink | Comments (0)

Wednesday, August 24, 2016

Book Clubs Bring Human Rights Home

Human rights book clubs are active around the country, and serve as an important site for grassroots education, discussion and organizing.  In Boise, Idaho, for example, community members are exploring issues of immigration reform through reading Enrique's Journey, by Sonia Nazario.  Kean University in New Jersey sponsors an active human rights book club, with readings, exhibits and associated speakers throughout the school year.  Voice of Witness provides support to nascent book clubs, with the aim to "foster a more nuanced, empathy-based understanding of human rights crises through first person oral narratives."  To learn more about VOW's book club program, click here.  

A new book by Michael Glachinsky, Modes of Human Rights Literature, provides a scholarly grounding for the role that human rights literature plays in shaping a culture of human rights.  According to the publisher's blurb,

[t]his sophisticated book argues that human rights literature both helps the persecuted to cope with their trauma and serves as the foundation for a cosmopolitan ethos of universal civility—a culture without borders. Michael Galchinsky maintains that, no matter how many treaties there are, a rights-respecting world will not truly exist until people everywhere can imagine it.

In other words, while "small" and "close to home," human rights book clubs bring human rights home in powerful and transformative ways.

 

 

August 24, 2016 | Permalink | Comments (0)

Tuesday, August 23, 2016

Human Rights City Round-up

Earlier this August, the city council of Edina, Minnesota, declared Edina to be a Human Rights City.   The city's press release explains that "[i]n addition to an increased mindfulness of human rights issues, Human Rights Cities serve as a model for communities in the United States and around the world to exemplify practical ways human rights framework can make every person a partner in enduring change; and commits to reducing discrimination, inequality, racism, and xenophobia in all aspects of civic life, including housing, education, economic opportunity, safety and security, religious and cultural expression, and access to public institutions."  Edina is the first community in Minnesota to adopt the Human Rights Cities framework.

Edina's announcement follows the creation in 2016 of a National Human Rights Cities Network, initiated by the US Human Rights Network.  In another exciting development showing the movement's growth, the University of Cincinnati Law School offered a seminar in spring 2016, Human Rights Seminar: The Human Rights City, taught by Burt Lockwood.  A partial syllabus is available here.

August 23, 2016 | Permalink | Comments (0)

Monday, August 22, 2016

Judge Garland and Accountability for Abu Ghraib

As the Trump Presidential candidacy continues to tank in the polls, Judge Merrick Garland's Supreme Court nomination may get a second wind.  After all, Garland has been praised as a moderate by legislators on both sides of the aisle, and it's anyone's guess whether a future nominee under a new administration would be as palatable to the Republican Senators.

Many were disappointed in Garland's nomination, which adds no diversity to the Court.  But Garland's long tenure as a federal judge does allow for detailed analysis of his careful legal approach.  As Chief Justice Roberts himself said, "anytime Judge Garland disagrees, you know you're in difficult territory."

For those concerned about human rights, an important case in Judge Garland's record is his dissent in Saleh v. Titan Corp., 580 F.3d 1 (2009).  At issue was the liability of the Titan Corporation, a military contractor, for human rights abuses at the Abu Ghraib prison.  While the majority ruled that Titan was shielded from tort liability under the Federal Tort Claims Act, Judge Garland vehemently disagreed.   His dissent begins with a powerful statement arguing for a narrow construction of the Act's immunities:

"The plaintiffs in these cases allege that they were beaten, electrocuted, raped, subjected to attacks by dogs, and otherwise abused by private contractors working as interpreters and interrogators at Abu Ghraib prison. At the current stage of the litigation, we must accept these allegations as true. The plaintiffs do not contend that the United States military authorized or instructed the contractors to engage in such acts. No Executive Branch official has defended this conduct or suggested that it was employed to further any military purpose. To the contrary, both the current and previous Administrations have repeatedly and vociferously condemned the conduct at Abu Ghraib as contrary to the values and interests of the United States. So, too, has the Congress.

No act of Congress and no judicial precedent bars the plaintiffs from suing the private contractors—who were neither soldiers nor civilian government employees. Indeed, the only statute to which the defendants point expressly excludes private contractors from the immunity it preserves for the government. Neither President Obama nor President Bush nor any other Executive Branch official has suggested that subjecting the contractors to tort liability for the conduct at issue here would interfere with the nation's foreign policy or the Executive's ability to wage war. To the contrary, the Department of Defense has repeatedly stated that employees of private contractors accompanying the Armed Forces in the field are not within the military's chain of command, and that such contractors are subject to civil liability.
 
Under the circumstances of these cases, there is no warrant for displacing the ordinary operation of state law and dismissing the plaintiffs' complaints solely on preemption grounds."
 
In expressing his support for allowing the tort claims to go forward, Judge Garland joined a minority of federal judges nationwide.  While his views did not prevail, it is worth noting that Judge Garland argued strongly for corporate accountability for these human rights abuses, and expressed concern that the majority's view would shield human rights violators both at home and abroad.

 

August 22, 2016 | Permalink | Comments (0)

Sunday, August 21, 2016

Trump's Fleeting Gesture in Louisiana Falls Far Short

The NAACP's statement on flooding in Louisiana eloquently addresses the human rights issues at stake in the immediate impact of the floods and in the long term as climate change continues to accelerate.  According to the statement,

"From inadequate protections against rising water in East Baton Rouge, to unsafe drinking water in Flint, to toxic coal fumes in Kansas City, African American communities are shouldering the worst of America’s abuse of the environment. These are matters of civil rights and human rights, and the NAACP is committed to righting these wrongs."

President Obama will visit the affected areas on Tuesday, August 23.  The President has signed a disaster declaration and provided federal aid to the area.  His visit was delayed at the request of Governor John Bel Edwards, who was concerned about the considerable resources that would be diverted by a presidential visit at the height of the flooding. 

Ignoring the Governor's request that politicians not stop by for "photo-ops," Presidential candidate Donald Trump visited the state for a few hours on Friday with an 18-wheeler of supplies.  It may have been a savvy move for his sinking campaign, but it was a fleeting and hollow gesture given his continued denial of climate change and its human impacts.  Last year, Trump claimed that climate change was a hoax created by the Chinese in order to gain a competitive trade advantage.  He has offered no plan at all for averting the long term impacts of global warming, which promises more devastating weather events like those seen in Louisiana, jeopardizing human rights and civil rights and falling hardest on people of color.  A truckload of supplies is more than welcome, but a truckload is just a truckload, and providing that alone trivializes the complex challenges that are at the core of these mounting disasters.

There is certainly much more that those on both sides of the political aisle can do to seriously address the issue of climate change.  But by failing to even acknowledge the problem, Trump remains stuck at square one.  Americans, and particularly communities of color, cannot afford a leader whose policy seems to be to run away from this issue.

For more details on the links between climate change and human rights, see the recent report of the UN Environment Programme.  For information on how to help Louisiana flood victims, click here.

August 21, 2016 | Permalink | Comments (0)

Thursday, August 18, 2016

Human Rights and Tax in an Unequal World

NYU Law School has announced an upcoming conference on Thursday Sept. 22 and Friday, Sept. 23, on human rights and tax.  More information is available here.   Below is an excerpt from the conference announcement:

 

"On September 22-23, 2016, the Center for Human Rights and Global Justice (CHRGJ) at NYU School of Law will host an international conference entitled Human Rights and Tax in an Unequal World. The conference is the centerpiece of CHRGJ’s broader initiative to promote scholarship and public debate on the relationship between inequality, the global economy, and human rights. It will bring together an interdisciplinary group of leading practitioners and scholars, international officials and activists to discuss the ways in which tax policy can be viewed as a form of human rights policy, and to consider how the international human rights framework might contribute to bringing greater equity and justice to the global tax regime. The conference is particularly timely given mounting public concern that tax abuses are widening the gap between the rich and the poor and broad recognition that growing economic inequality threatens the human rights of all.  Corporate tax scandals and tax avoidance schemes, such as those revealed by the Panama Papers, have fueled demands that the wealthiest pay their fair share and that States play their part in tackling abuses both domestically and transnationally. Public budget shortfalls, which result in part from these tax abuses, weigh disproportionately on the poorest and most vulnerable populations." 

August 18, 2016 | Permalink | Comments (0)

Wednesday, August 17, 2016

Watching the Trump Poll Watchers

The Leadership Conference on Civil and Human Rights has condemned the Trump campaign's recently-announced poll watching plan.   According to the Leadership Conference, at a time when enforcement of the Voting Rights Act has been curtailed and the candidate himself repeats the myth that voter fraud is rampant, recruiting partisan supporters to "observe" at polls looks like an effort to intimate legitimate voters.

The Carter Center monitors elections around the world.  While it has no plans to engage in election observation in the United States, on August 10 the Center and its partner the National Conference of State Legislatures debuted a helpful guide to election observation laws in the 50 states.  The Center notes that partisan election observers are permitted by law in most states, but that credible nonpartisan observers can provide the biggest boost to voter trust and government transparency.  Importantly, even partisan observers are not generally allowed to operate without constraint.  The Center reports that "40 states and the District of Columbia have a formal accreditation/appointments process for partisan citizen observers (poll watchers and challengers). This appointment is led by local party chairs, candidates, or ballot issue groups and can require approval by election officials or the Secretary of State’s office."

The issue of voter suppression in the US is of concern to the international community.  For example, in 2012, the NAACP and the NAACP Legal Defense Fund brought the issue of US voting rights and access to the polls to the UN Human Rights Council. 

Comedian and political commentator John Oliver is also watching, and recently reported on what happened after he signed up as a Trump poll watcher.

August 17, 2016 | Permalink | Comments (0)

Tuesday, August 16, 2016

Apps + Consumer Action: Advancing Human Rights

By JoAnn Kamuf Ward, Lecturer-in-Law, Columbia Law School & Associate Director of the Human Rights in the U.S. Project at the Law School's Human Rights Institute

Smartphones are everywhere. Almost always in hand, they offer immediate access to endless amounts of information and data, from weather around the world to breaking headlines.  They are also increasingly creating informed consumers.  

There are apps that can tell you:

  • The level of toxic ingredients in your personal care products (think dirty)
  • The health, environmental, and social impacts of your household (good guide);
  • The nutritional value of your lunch (fooducate); and
  • Whether the fish you want for dinner is sustainable (seafood watch)

And some apps even have a more social orientation. Take for example, true food, which tells you what food includes genetically modified ingredients (GMIs), and what does not. It also gives the contact information for companies that use GMIs, so you can voice opposition to them if you so choose.  

Moving further along the spectrum to activism is buycott. Buycott is nifty because it tells you the origins of products you see at the supermarket.  Scan the barcode, and find out the companies in the supply chain, including the parent company, and its owners.  But the app has a broader purpose:  to facilitate consumer awareness.  The creator explains that the aim is “to provide a platform that empowers consumers to make well-informed purchasing decisions.”

Buycott, however, seems to go beyond that, with a bent towards more concerted action. One of its main features is a campaign function.  Users can start or join campaigns tethered to particular companies or social objectives.  When you shop you can see how the products relate to your selected campaigns and buycott even lets you know whether or not you should purchase it, based on that information. The existing campaigns run the gamut.  Buycott has a range of self-designated human rights campaigns. There is also a civil rights campaign currently focused on boycotting Trump products. It boasts 13,559 members and suggests avoiding four well-known companies:  Gucci, Nike, Kitchen Aid, and Starbucks (interestingly Trump suggested a boycott of starbucks last year, but as buycott indicates, franchises can be found on many Trump properties).

Most of the campaigns are less political. You can join campaigns oriented to:

Buycott is, in essence, crowd-sourcing social responsibility. And the app is not without detractors. For starters, the data set on companies from which it pulls is not complete. (You get a sense of that from the short list above). A second concern is that the campaigns can be started anonymously and based on information provided by sources you may not be able to identify (a Wikipedia kind of problem). There is also a built in bias given that the campaigns are likely to be led by iphone users in the global north.  While boycott touts users from 192 countries, it acknowledges that while “it is available everywhere,” “much of the product data is crowd-sourced … and certain regions do not yet have the wide product coverage that we have in North America.”  

These are kinks and limitations to be sure. Will a new found awareness of this information, or “app activism” lead to sustained changes in how we eat and shop?  Well, there is little indication that social media actions (sometimes known as slacktivism) inherently lead to sustained action. And, even if there was a direct correlation, consumers still bear responsibility to verify the information they glean scanning barcodes to make sure its accurate, and to act accordingly.

But it’s hard not to be at least a bit encouraged by growing public interest in supply chains and corporate responsibility for the conditions in which we work and live. Consumers matter.  This may be my inner luddite speaking, but turning consumer knowledge and online campaigns into concerted power and pressure is still likely to require some good old-fashioned organizing. 

The good news? Increasingly, worker driven social responsibility campaigns are blazing the trail in these efforts. And the buycott app’s creator is aware of these tactics and targets, including some of the successes reported on this blog earlier this year. While apps alone are not sufficient to address corporate liability for human rights abuses, they are one tool that can be used to influence consumer power.  And we should use as many tools as we can.  

August 16, 2016 | Permalink | Comments (0)

Monday, August 15, 2016

Human Rights in the Stacks

Among the educators taking a lead in promoting human rights are librarians.  The blog "Librarians and Human Rights" was established  in 2005 to "recognize the work librarians do to sustain, support and defend Human Rights."  A recent entry reviews the American Library Association's guidelines for outreach to immigrant communities.  The University of Texas libraries are engaged in an extensive human rights documentation project to preserve "fragile and vulnerable records of human rights struggles worldwide," including in the United States.  Columbia University libraries also host a Center for Human Rights Documentation and Research.  For more perspectives on librarians' work in the human rights field, check out the fascinating syllabus prepared by Dr. Kathleen McCook for her recurring seminar at the University of South Florida:  Librarians and Human Rights.

 

 

August 15, 2016 | Permalink | Comments (0)

Sunday, August 14, 2016

Title IX and Sexual Assault: Law Professors Join the Debate

90 law professors signed a letter to the Justice Department supporting the use of the “preponderance of the evidence” standard in determining culpability in Title IX investigations.

As reported before, there has been a movement to raise the standard of proof to be used in on-campus sexual assault hearings brought under title IX.  There are several lawsuits against the Department of Education, Civil Rights Division, for promoting use of the preponderance standard on campus.  Plaintiffs claim that Justice imposed the standard on campus proceedings without going through proper channels, including promulgating the standard without an opportunity for comments.

According to an article in the Atlantic, prior to the 2011 “Dear Colleague” letter, schools set their own standards, some adopting some form of “clear and convincing”.  The April 4, 2011 DOE letter clarified that the appropriate standard to be used in campus sexual assault hearings is the preponderance of the evidence.  The letter noted that preponderance of the evidence is the standard used in civil rights hearing complaints.

Prof. Nancy Chi Cantalupo of Barry University Law School, organized the effort.  She explained that “Many people seem to think of the law as just one kind of law: the criminal law, but there are many other kinds of law, including civil rights law.”

As the white paper points out, there are no complaints about the preponderance standard being used when race discrimination complaints are heard on campus.  Only when sexual assault and other sex discrimination complaints are brought by students is the standard challenged.  In many ways, women are the last frontier of discrimination.  For whatever reason, challenges are still made to women's rights and women's credibility that we left behind, in the strict legal sense, for race matters.

To many schools the outcome of the legal challenges may be inconsequential.  Many schools have already eliminated hearings in favor of investigations that result in an administrative determination outside of the hearing model.  Whether or not the hearing model will be restored when the standard controversy is resolved remains to be seen. Also, unknown is whether the alternative investigative  process itself will be challenged next.

August 14, 2016 in Education, Margaret Drew, Sexual Assault | Permalink | Comments (0)

Thursday, August 11, 2016

New Developments in Comparative Legal Ethics -- the Harassment Restriction

Earlier this week, the American Bar Association amended its legal ethics guidelines, the Model Rules of Professional Conduct, to clarify that sexual, racial and other forms of harassment can be grounds for professional discipline.

The Model Rules are just guidelines -- they do not impose requirements on any lawyer.  Rather, state bar associations look to the Model Rules as they adopt their state-level, enforceable standards for legal practice. 

Some states have already adopted language in their ethics rules to establish penalties for harassment.  And some states have looked to regulate lawyers' speech through so-called civility codes.  These codes, which dictate standards of decorum for lawyers and judges, have sometimes been challenged under the First Amendment on overbreadth grounds.  The harassment standards, in contrast, seem unlikely targets for such challenges, given that the ethics rules track existing law on discriminatory harassment.

Though the anti-harassment language is new to the ABA, anti-harassment has been part of the legal ethics rules of the Canadian bar for many years.  Yet Canada goes further than the ABA, and explicitly ties the harassment prohibition to nationally-recognized human rights norms.  As explained by the Law Society of Upper Canada, the anti-harassment rule is intended to preserve the "dignity of individuals."

These comparisons certainly provide fodder for discussion in a Professional Responsibility class or a course devoted to domestic human rights implementation.  Perhaps the Canadian model also points the way for continued development of US legal ethics.

August 11, 2016 | Permalink | Comments (0)

Wednesday, August 10, 2016

The Tools of Police Corruption

Baltimore police were able to abuse people of color in the most egregious ways simply by the tried and true tool of denial.  But police denial comes in two forms.  The first is the expected denial by the accused.  But it is the denial of other police department employees that provided the fertilizer that permitted police abuse to grow to outrageous proportions.

Recently, a Baltimore prosecutor blamed poor police investigations for the prosecutors' failure to convict even one police officer in the death of Freddy Gray, despite a coroner's report that Gray's death was a homicide.  State's Attorney Marilyn Mosby outlined more shocking malfeasance and resistance in her office's attempts to investigate Mr Gray's death.  She said that police interrogations of arrested officers were "light", with difficult questions going unasked. In addition, police failed to respond to valid subpoenae to produce evidence. None of this behavior is unexpected given the nature of the alleged crimes.  Using a tactic long known to survivors of intimate partner abuse, five of the accused police officers are suing Attorney Mosby alleging defamation. Those claims are unlikely to be successful given the scathing Justice Department review.  But the defamation Plaintiffs knew that already.  The point always was intimidation and presenting themselves as victims.

Defense counsel, for their part, accused the prosecutors of withholding important evidence, resulting in judicial sanctions entered against the prosecutors.  In short, it is not just the policing system that is a mess in Baltimore. 

Justice was denied to Freddy Gray and so many others because police employees, civilian and otherwise, chose to use the cover of denial and silence rather than cooperate with inquiries or  report corruption themselves. But by the time Freddy Gray died, denial was a way of life for employees of the police department. Why prosecutors proceeded with cases so poorly prepared and supported is another question. 

Sometimes it is difficult to discern the differences between incompetence and corruption.

 

August 10, 2016 in Margaret Drew, Police | Permalink | Comments (0)

Tuesday, August 9, 2016

Equal Pay Comes to Massachusetts

While struggles over equal pay continues in the federal forum, the Commonwealth of Massachusetts, in a bi-partisan action, passed legislation that vastly enhances the likelihood of women overcoming pay inequities within the Commonwealth.  Signed into law by Governor Baker, the legislation was neither speedy nor innovative.  Since 1998, some variation on the Equal Pay Act was filed in the Massachusetts legislature.  In Massachusetts, the pay gap for women is only marginally better than the national average- 82 cents for every dollar earned by a man.  And, that figure seems not to reveal the starkly lower pay earned by women of color. 

The law addressed concerns of both employers and female workers.  For example, some definition is given to employers of what comparable work means.  Additionally, the law provides that unequal pay cannot be remedied through a lowering of wages. Importantly, employers are prohibited from asking for an applicant's salary history during the interview process.

The Massachusetts Equal Pay law is a huge advancement for women.  The law was promoted by a collaborative of women's associations and a partnership of public and private entities.  As with most change, shifting local practices is essential.  Perhaps the legislative success will spread beyond Massachusetts borders.

August 9, 2016 in Women's Rights, Workplace | Permalink | Comments (0)

Monday, August 8, 2016

Going it Alone: Puerto Rico's Olympic Moment

Late night Olympics-watchers may have noticed that Puerto Rico marches and competes in the Olympics under its own flag, even though Puerto Rico's athletes are citizens of the United States.  A fascinating blog by Michael McCann explains why the International Olympic Committee considers Puerto Rico to be an independent nation, and why the argument for Washington, D.C.'s participation as an independent Olympic team is weaker.

Puerto Rico's independent Olympic status might be viewed as a harbinger of things to come on the international stage.   On June 20, a special UN Committee approved a draft resolution calling on the US to expedite a process for Puerto Rico's self-determination and independence.  A few months earlier, Puerto Rico's Public Affairs Secretary, Jesus Manuel Ortiz, characterized the fiscal issues facing Puerto Rico as a humanitarian crisis.  Testifying before the InterAmerican Commission on Human Rights, Ortiz asked the body to put continued diplomatic pressure on the US to address the economic and social rights issues facing Puerto Rico, including basic issues of education, healthcare and security.

In the near term, however, these fiscal developments have led to further limitations on Puerto Rico's autonomy.  In a rare (these days) bipartisan act, Congress passed and President Obama signed into law a debt bill designed to allow Puerto Rico to get out from under its $70 billion in debt through a restructuring process.   Yet, as pointed out by Senator Bernie Sanders and others, the restructuring process usurps some of Puerto Rico's independence while doing nothing to resolve the underlying fiscal issues that led to the humanitarian impacts.

Puerto Rico has won 8 Olympic medals over the years, all silver or bronze.  Another medal in the Rio Olympics would undoubtedly lift spirits on the island.  But -- as US Treasury Secretary Jack Lew noted during a visit last spring -- the humanitarian situation is looming, and even high profile sports victories claimed by an independent Puerto Rico team will do little to relieve the ongoing challenges facing its citizens.  

August 8, 2016 | Permalink | Comments (0)

Sunday, August 7, 2016

While You Were Away... Federal Human Rights Cases

July and August saw several states’ voting restrictions overturned.  The voter ID laws, which would have required voters to produce photo identification prior to voting, were struck down.  North Dakota’s law was the most recent, but other states, including Wisconsin, Kansas and Texas saw portions of their voting laws struck as discriminating against people of color.   Earlier, Ohio passed legislation that eliminated “Golden Week” the voters’ rights to register and vote at the same location.  Ohio has a history of attempts to limit voting by minorities and others who tend to favor the Democratic Party.   In May, a federal court declared the legislation to violate the Voting Rights Act as well as the 14th Amendment. 

A different federal court (4th Circuit) declared a North Carolina Voter ID law unconstitutional on several grounds.  Like Ohio, North Carolina had eliminated same day registration and voting. But NC also prohibited out of precinct voting, as well as early voting.  Both of these restrictions were overturned as well.  The court found that the provisions “target African-Americans with almost surgical precision.” The court noted that the legislation addressed fictional problems.  

In what was a surprise to many, the Supreme Court stopped implementation of a federal appeals court order that would have blocked the Virginia law requiring students to use the bathroom of the sex assigned at birth and not in accordance with their gender identity.  The case is Gloucester County School Board v. GG.   The surprise was Justice Breyer’s vote to grant the stay pending filing and decision on a petition for cert.  He described this action as a “courtesy”.  (And that means?)  We can hope that the Justice promotes this issue being fully briefed in order to settle critical issues of gender identity, knowing that a split court will leave the lower court decision intact.  Assuming the application for cert is granted, this case will test the limits of Justice Kennedy’s empathy toward the sexually diverse.  Perhaps Justice Kennedy will extend his animus-dignity analysis to this minority that has far fewer champions than do gays and lesbians.

August 7, 2016 in Margaret Drew, Race, Voting | Permalink | Comments (0)

Thursday, August 4, 2016

Upcoming Conference Will Prepare Letter to the Next President on US Human Rights

The International Bar Association will hold its annual conference in Washington, D.C., from September 18-23.  Registration fees are hefty, but for those who can afford it, there is quite a bit of human rights programming, including this intriguing program on Monday, September 19, from 2:30 - 5:30 p.m.:

"Human Rights in the United States – a letter to the next President from the international legal community
Presented by the IBA’s Human Rights Institute
 
By the end of 2016, the United States will know who the next President will be and they will take office in January 2017. This
session will take a detailed look at the human rights situation in the US as discussed by a distinguished panel. All participants at the session will be provided with a template open letter to the new President and will be invited to make suggestions on what to include in the substance of the letter, which will be completed by HRI staff on the basis of the suggestions made at the session and then presented as an open letter to the new incumbent."

August 4, 2016 | Permalink | Comments (0)