Monday, August 11, 2014
Today, the Legislation Law Prof Blog is spotlighting a freshly posted SSRN article on the relationship between race/ethnicity and campaign finance in state legislative elections. The article is based on Albright's study of 15 states and 3000 candidates. Here's the general abstract:
In spite of the increasing campaign finance legislation aimed at equalizing barriers in political campaigns, a fundraising gap persists across racial/ethnic lines. In the era of modern campaigning, with the expenses of advertising and polling, among others, ample funds are necessary but not universally accessible to all candidates. This study addresses the relationship between candidate race/ethnicity and campaign fundraising, and the possible moderating impact of three dimensions of the state political context – state legislative professionalism, state Republican party strength, and state culture (South vs. Nonsouth). I evaluate fundraising totals across 15 states for over 3,000 candidates in the 2006 state legislative elections. Ultimately, the findings suggest that after controlling for other candidate characteristics, as well as district and state context, there is a negative, statistically significant relationship between candidate race/ethnicity and fundraising. In addition, the effect of race/ethnicity is moderated by two features of the state context - legislative professionalization and the state culture. This study finds that non-white candidates continue to fundraise less than their white counterparts and state context is important in understanding the race/ethnicity gap in campaign finance.
The SSRN link to Albright's article is here. Albright is an Assistant Professor of Political Science at the University of Indianapolis in Indianapolis, Indiana, where she teaches courses on American government, state and local government, and public administration.
We love to spotlight scholarship on legislative topics that would be of interest to our blog community-- so if you have relevant articles to recommend, please contact us!
Wednesday, August 6, 2014
We at the Legislation Law Prof Blog have received several requests for course syllabi and other course materials related to legislative advocacy or drafting. We have built a TWEN page containing some such materials that have been shared by faculty who have taught such courses in the past.
If you would like access to the TWEN course, please send us your school-based email and we will grant you access (you must be faculty to receive such access). If you have taught such courses before and are willing to share any of your materials, please email those materials to Sara Rankin at firstname.lastname@example.org and your materials will be added to the TWEN page. Eventually, we may migrate these materials to the Blog, but the TWEN page the current approach.
Such sharing of resources is an exciting way for us to learn from each other and to build a vibrant community. Thanks for participating!
Friday, August 1, 2014
There has been much discussion lately over Representative Paul Ryan’s plan to address poverty. (For background on the Ryan Plan, read: here.)
Under the Ryan Plan, titled Expanding Opportunity in America, families receiving benefits would be required to execute a contract detailing their "life plan" to escape poverty. Specifically, the contract would include:
- Measurable benchmarks for success
- A timeline for meeting the benchmarks
- Sanctions for breaking the contract
- Incentives for exceeding the terms of the contract
Critics allege the Ryan Plan is paternal, lacks respect for, and is condescending to, individuals experiencing poverty, and fails to take into consideration structural barriers to escaping poverty—such as lack of affordable housing, a dearth of available jobs, etc. (For more information, read: here.)
What do you think of the Ryan Plan? Let us know in the comments!
Wednesday, July 30, 2014
It’s no secret that health care and health policy are hot topics in the United States’ post-ACA landscape. Typically, when discussing healthcare, images of doctors in white coats, stethoscopes, and hospital rooms come to mind.
However, some jurisdictions are looking beyond traditional healthcare delivery and developing policy aimed at the underlying sources of poor health. Policymakers are recognizing that creating a system that addresses health-harming legal needs, such as homelessness and lack of food, not only improves health outcomes, but also results in cost-savings. For example, at The Brook – a supportive housing complex in New York City – an apartment costs $24,000 a year. In contrast, the city spends an estimated $56,000 per year on emergency room visits and stays at shelters and jails, where most Brook residents would otherwise go.
New York intends to invest $260 million in Medicaid dollars into supportive housing over the next two years and other states, like Illinois, are reaching similar policy conclusions. As healthcare reform forces jurisdictions to engage in preventative measures, we can expect to see more policies that include community partners – like doctors, organizers, and housing providers – on the health team.
For more information, read: New York Debates Whether Housing Counts as Healthcare
Monday, July 28, 2014
On Thursday, the 7th Circuit Court of Appeals reversed a 2010 federal district court ruling, thereby reinstating a case involved lead paint. In the 2010 case, Ernest Gibson (now 17) sued half a dozen paint manufacturers for injuries resulting from lead poisoning. Gibson’s case relied on “risk contribution theory,” recognized in 2005 by the Wisconsin Supreme Court. Under this theory, a defendant’s liability is based on the proportion of the market that manufacturer held when the plaintiff was injured, allowing a plaintiff to sue manufacturers even if he does not know which one made the product that caused the injuries.
Ruling for the defendants, Federal District Court Judge Rudolph Randa found that risk contribution theory violated the due process rights of the defendants, who produced the lead paint.
The 7th Circuit disagreed with Judge Randa. Gibson’s case will go back to federal court for further proceedings.
For more information, read U.S. appeals court reinstates Wisconsin lead paint suit
Friday, July 25, 2014
“The execution of a convicted murderer in Arizona lasted for nearly two hours on Wednesday, as witnesses said he gasped and snorted for much of that time before eventually dying.
This drawn-out death of Joseph R. Wood III in Arizona prompted the governor to order a review and drew renewed criticism of lethal injection, the main method of execution in the United States, just months after a high-profile botched execution in Oklahoma.” For more, read here.
As reported by the Death Penalty Information Center:
"Thirty-five states have either abolished the death penalty, have executions on hold, or have not carried out an execution in at least 5 years. Recently, three states, Arizona, Ohio, and Oklahoma, temporarily halted executions as reviews are conducted of recent botched executions. In four states, Arkansas, California, Kentucky, and North Carolina, a de facto moratorium on executions is in place because of lethal-injection challenges; none of those states has had an execution since 2008. Colorado, Oregon, and Washington have formal moratoriums on executions imposed by their governors. Eighteen states and the District of Columbia have abolished the death penalty. In 7 additional states, while no formal hold is in place, no execution has been conducted in at least five years. The U.S. military and federal government also authorize the death penalty, but neither has had an execution in over ten years." For more, read here.
Friday, July 18, 2014
This week, a Federal District Court Judge found California's death penalty unconstitutional. In the opinion, Judge Cormac Carney stated:
"Inordinate and unpredictable delay has resulted in a death penalty system in which very few of the hundreds of individuals sentenced to death have been, or even will be, executed by the state," Carney wrote. "It has resulted in a system in which arbitrary factors, rather than legitimate ones like the nature of the crime or the date of the death sentence, determine whether an individual will actually be executed."
The uncertainty and delay “violates the Eighth Amendment’s prohibition against cruel and unusual punishment.”
While California has the nation's lowest excecution rate (13%), it has the largest Death Row (748 inmates).
The decision is expected to inspire similar arguments in death penalty appeals around the country.
Thursday, July 17, 2014
Yesterday afternoon, the American Legislative Issue and Campaign Exchange (ALICE) and the Progressive States Network (PSN) announced that they are merging their organizations and efforts. ALICE Executive Director Nick Rathod and PSN Board Chair Sen. Joe Bolkcom stated that the merger "will consolidate the collective resources, relationships and intellectual power of both organizations towards building a more cohesive, efficient and vibrant support system for progressive legislators and partner organizations across the country."
Wednesday, July 9, 2014
The Legislation Law Prof Blog is excited to announce a quarterly spotlight on a law student whose work in legislative advocacy, drafting, and/or policymaking warrants attention. If one of your students shows such dedication, please contact us so we can showcase the next generation of legislative and policy advocates!
The inaugural student spotlight gets kicked off today, with Michael Althauser and his work on juvenile justice in Washington State!
Michael is a third year law student at Seattle University School of Law. During Michael's time in law school, he has dedicated his studies to public interest service. As President of Seattle University's Public Interest Law Foundation, Michael works to ensure that students at Seattle University have the tools they need to be able to assist and represent under-served communities. Michael currently works at Columbia Legal Services as a Gates Fellow for the Children and Youth Project. Prior to this work, Michael worked as a legislative extern for Columbia Legal Services, advocating on behalf of low incomes communities in the Legislature. Before coming to law school, Michael was a spokesman for the Senate Democratic Caucus in the Legislature and worked on and managed numerous political campaigns. Here's Michael's blog on juvenile justice in Washington:
WA advancing legal rights of juveniles on two fronts
Until recently, WA ranked among the worst in the nation on protecting the legal rights of abused and neglected children in the foster care system. However, a dual legislation/litigation strategy may improve WA’s rank for the better.
Until recently, WA was one of the few states in the nation lacking a law appointing attorneys to represent foster children in legal proceedings. Only a handful of WA counties guaranteed representation for foster youth in court. This led to the ironic, and sad, situation where everyone in court arguing over the best interests of a child had an attorney…except the child herself.
Following mounting public pressure brought on by a series of high-profile stories by King 5’s Suzannah Frame (here and here), the WA legislature passed SB 6126 by unanimous votes in both the House and Senate this past session. The bill requires appointment of attorneys to represent children who have not been adopted following termination of their parents’ legal rights - mainly foster care children. The bill took effect July 1, 2014.
At the same time, for the first time in WA State’s history, an appellate court ruled that failure to appoint counsel to a foster youth violated that youth’s legal rights. In the case, In re the Dependency of J.A., the court found that the interest of J.A. in having legal counsel outweighed the court’s financial arguments and concerns.
Continuing to move forward
Both these victories mark a momentous turn towards the positive for WA’s juvenile justice system.
Congratulations, Michael! The Legislation Law Profs Blog looks forward to continuing to celebrate the passion and vision of our students. Please let us know a student you'd like to spotlight in the next quarterly student spotlight.
Tuesday, July 8, 2014
It's no secret that the American penal system is desperately broken. For example, Michelle Alexander's compelling book, The New Jim Crow, exposed how mass incarceration targets black men and functions as a contemporary system of racial control.
Professor Michael Tonry's new article, Remodeling American Sentencing: A Blueprint for Moving Past Mass Incarceration, offers an ambitious vision for " just, fair, and effective sentencing systems." Tonry's article proposes a series of 10 legislative reforms to criminal sentencing to reduce mass incarceration. Some of these are quite radical - including reducing sentences of more than 5 years to just 5 years. Tonry contends that if all these proposals were enacted, the imprisonment rate would be reduced by half and yet would still remain 3-3.5 times that of other developed western countries.
Tonry's article is available here.
What do you think? Does Tonry's blueprint help to improve America's penal system? What other policies or proposals could help?
Do you know of new scholarship that would be of interest to subscribers of the Legislation Law Profs Blog? If so, please let us know! You can post directly to the blog in a comment or email any one of the co-editors.
Friday, July 4, 2014
Happy Independence Day from the Law Prof Blog!
To celebrate, we've compiled some Fourth of July facts to help you impress your friends while cooking out and enjoying fireworks:
1. Initially adopted by Congress on July 2, 1776, the revised version of the Declaration of Independence was not adopted until two days later; John Adams would think we are celebrating on the wrong date.
2. The oldest, continuous Independence Day celebration in the United States is the 4th of July Parade in Bristol, Rhode Island; it began in 1785.
3. The Declaration of Independence was penned by Thomas Jefferson and signed by 56 men representing 13 colonies.
4. One of the United States’ patriotic songs, “Yankee Doodle” was originally sung by British military officers prior to the Revolution as a means to mock the disorganized American colonists who fought alongside them during the French and Indian Wars.
5. The Fourth of July didn't become a legal federal holiday until 1938.
6. The “Star Spangled Banner” was written by Francis Scott Key during the War of 1812 and not decreed the official national anthem of the United States until 1931.
7. Three U.S. Presidents, John Adams, Thomas Jefferson and James Monroe, died on July 4th; Adams and Jefferson died within hours of each other in 1826 while Monroe died in 1831.
8. There is a message written upside down at the bottom of the of the Declaration of Independence: “Original Declaration of Independence dated 4th July 1776.” It’s not known who wrote it or when. Since parchment was usually rolled up during the Revolutionary War years, it’s thought this memo served as a label.
9. The Pennsylvania Evening Post was the first newspaper to print the Declaration of Independence.
10. Both the Philippines and Rwanda celebrate July 4th as a day of liberation. In Southeast Asia, it is known as “Republic Day” and Rwandans celebrate “Liberation Day.” In Europe, Denmark, England, Norway, Portugal and Sweden celerbate as well.
11. The famous Nathan's Fourth of July Hot Dog Eating Contest on Coney Island started after a disagreement among four immigrants over who was the most patriotic. Americans consume about 155 million hot dogs on Independence Day alone; it is the biggest hot dog holiday of the year.
12. Two of our nation’s great national symbols were made overseas. The Liberty Bell was cast in England, and the Statue of Liberty in France.
13. Americans began observing the Fourth of July as early as 1777, when the first-ever major celebration in Philadelphia included a parade and a thirteen-shot cannon salute and fireworks.
14. To avoid cracking it, the Liberty Bell has not been rung since 1846. To mark the day, every fourth of July it is symbolically tapped 13 times, in honor of the 13 original colonies.
15. John Adams and Thomas Jefferson are responsible for the bald eagle as the national bird; Benjamin Franklin wanted it to be the turkey.
Wednesday, July 2, 2014
The Opportunity of the Illinois Bill of Rights for the Homeless Act: How it Came to be and How Universities Can Ensure it Creates Social Change
Joining the Legislation Law Prof Blog to discuss the passage of the Illinois Bill of Rights for the Homeless Act are Rene Heybach, Jennifer Cushman, and Graham Bowman from the Chicago Coalition for the Homeless.
The Illinois Bill of Rights for the Homeless Act (Homeless Bill of Rights) is the second state law passed in the nation to safeguard persons experiencing homelessness against discrimination in both the private and public arena due to the fact that they lack a consistent place to call home.
Disadvantaged and vulnerable people are discriminated against every day. However, there are few remedies available to the victim when the basis for the discrimination is not prohibited by the courts or legislature. The Homeless Bill of Rights states that “No person’s rights, privileges, or access to public services may be denied or abridged solely because he or she is homeless.” By prohibiting such discrimination, individuals in Illinois now have a private right of action to sue both private individuals and state agencies that discriminate against them because they are homeless.
In addition, the Homeless Bill of Rights enumerates a number of rights afforded to individuals experiencing homelessness. Among those are the right to use and move freely in public spaces; the right to a reasonable expectation of privacy in his or her personal property; and the right to equal treatment by all state and municipal agencies.
Passing Illinois Bill or Rights for the Homeless Act required context, opportunity, and negotiation.
The Chicago Coalition for the Homeless has a long history of advocating for the de-criminalization of homelessness and recently worked with Loyola Law School’s Health Justice Project on a comprehensive student-led study of the criminalization of homelessness in the spring of 2012.
During the spring of 2013, there was significant national media around the criminalization of homelessness and the response of the homeless advocacy community was gaining momentum – Rhode Island had already passed a Homelessness Bill of Rights and two other states were actively pursuing legislation. The atmosphere was ripe for legislation.
An Illinois state Senator initiated the legislation early in the session without the prompting of advocates, which meant that we did not have time to build community support ahead of time. At the same time, a similar bill was introduced in California that was receiving a significant amount backlash in the national media. Given this context, we decided to pursue a “quiet” course of advocacy as the members of the Illinois General Assembly largely focused on a number of other large high-profile issues.
Despite our efforts to keep the bill politically neutral, it still lacked necessary Republican support. However, when widespread flooding in downstate Illinois and suburban Cook County mid-session caused rural and middle class families to lose their homes, we used this opportunity to help more conservative legislators to relate to the issue of homelessness, particularly around the right to non-discrimination in maintaining employment. This aspect of the law was already on the books in Cook County and we argued that it should be extended to the rest of the state. Though, a couple of sticking points remained, including adding “homeless” as a protected class under the Illinois Human Rights Act. Not letting perfect be the enemy of good, we negotiated to amend the bill and ended up with a “feel good” bill with bi-partisan support that an influential Republican even spoke in support of on the Senate floor.
However, legislation does not automatically translate into social change.
Universities can play a unique proactive role in ensuring the Illinois Bill of Rights for the Homeless Act is enforced by developing model policies that could be implemented by public and private entities to ensure that they are in compliance with the law. Law students and faculty could raise additional awareness and understanding of the rights of individuals experiencing homelessness by writing law review articles about the Homeless Bill of Rights and incorporating it into law school curriculum on individual rights. Universities can also partner with advocacy organizations on comprehensive research projects, like the one between the Chicago Coalition for the Homeless and the Health Justice Project, to create resources that can assist advocates and allies deepen their understanding of laws and policies that affect homelessness and other vulnerable populations.
For more information about the Chicago Coalition for the Homeless, visit http://www.chicagohomeless.org/
Rene Heybach is Senior Counsel at Chicago Coalition for the Homeless.
Jennifer Cushman is a Policy Specialist at Chicago Coalition for the Homeless.
Graham Bowman is an Equal Justice Works Fellow at Chicago Coalition for the Homeless.
Tuesday, July 1, 2014
Yesterday the Supreme Court handed down its decision in Burwell v. Hobby Lobby Stores, Inc. Hobby Lobby, a Christian-owned craft supply store, and Conestoga Wood Specialties Store, a Mennonite-owned wood manufacturer, challenged the federal contraception mandate, arguing that the requirement to pay for methods of contraception they find to be in opposition to their religious views is a violation of their religious freedom.
The Court agreed. In a 5-4 decision, the Court held that requiring closely held corporations to provide female employees with no-cost contraception is a violation of the Religious Freedom Restoration Act.
To read the holding and the dissent, visit here.
For highlights from Justice Ginsburg’s dissent, visit here.
For more coverage on the Hobby Lobby decision, read the following article.
Monday, June 30, 2014
From the ABA Section on International Law: This memorandum is to notify you that the ABA-UNDP International Legal Resource Center (ILRC) has received a request from UNDP/Jamaica for multiple of experts to review an Anti-discrimination Legislation Proposal for Jamaica. UNDP/Jamaica through its HIV and the Law project continues to build capacity for the reform of HIV related laws and policies in Jamaica. One area identified as a priority gap by national stakeholders during consultations was the absence of broad based Anti-discrimination. A draft antidiscrimination proposal was developed in 2005 the focus was on a project to initiate the development of anti-discrimination legislation. As a result of developments which have taken place in the landscape a new proposal will be required.
The focus of the new proposal to be on 1) why there is a need for antidiscrimination legislation using the evidence from the legal assessment conducted by UNDP in 2013 and 2) the key content that should be covered by the legislation with emphasis on the positive impact that it would have on enshrining human rights into the legal framework. The intended target of the proposal will be government ministers, senior policy makers and legal draftsmen. The proposal needs to show them how this piece of legislation can benefit not only the rights of populations vulnerable to HIV but other key groups like the disabled, poor, women and children.
SELECTION CRITERIA: The ILRC is looking for multiple experts. This is a pro bono home based opportunity. Experts must be available on an intermittent, part-time basis for at least 4-6 weeks to work on this project. This is to account for the time lag between correspondence with the UNDP office, their local partners, and the ILRC as well as also being mindful that you have a full time job and are working on this project in your spare time. It will be important to be available via email and perhaps phone/Skype as well if needed. Experts will work remotely from their home base and will receive the documents to be reviewed via email and return comments and recommendations via email within the specified timeframe. The ILRC will compile all the comments and recommendations into one comprehensive report for UNDP/Jamaica and their local partners to review. We expect to begin this project in early July.
S/he must have: • An advanced degree in Law, or relevant degree in the field of Human Rights Law, Law and Health, Law and Development or other related area • Knowledge of Commonwealth legal and parliamentary systems • At least 6 years of experience in Human Rights or Discrimination law • Solid experience in legislative reform, drafting legislation, and policy development in a common law environment • A good understanding of legal drafting • International experience, as well as knowledge and experience in the Caribbean and an understanding of the Jamaican context is a plus • Excellent analytical and drafting skills with the ability to deal with a range of complex legal issues • Experience in multiple jurisdictions is a plus • Experience with UNDP or another UN agency and familiarity with UN/UNDP field operations is a plus • Fluency in written and oral English We would be most appreciative if you would review and determine whether you, anyone you know or any organization with which you are affiliated may have any knowledge of experts who might be good candidates. Experts do not have to be a member of the Section or the ABA.
The deadline for expressions of interest is July 4th, 2014. Expressions of interest must include CVs and a short cover letter expressing related and relevant experience. Incomplete expressions of interest will not be considered.
As always, we appreciate your assistance and please do not hesitate to contact us for more information or if you have any questions. Please email all expressions of interest to Jacqueline.Gichinga@americanbar.org.
Best, Jacqueline Jacqueline Gichinga Senior International Program Associate American Bar Association, Section of International Law ABA-UNDP International Legal Resource Center (ILRC) 1050 Connecticut Ave. NW Suite 400 Washington, DC 20036 T: +1-202-662-1662 http://ambar.org/ilrc Jacqueline.Gichinga@americanbar.org Skype: jgichinga
Thursday, June 26, 2014
Interesting new report from The Sentencing Project on states’ (slow) legislative response to the Supreme Court's 2012 Miller ruling prohibiting mandatory LWOP sentencing schemes for juveniles. From the Report:
Two years have passed since the Supreme Court, on June 25, 2012, ruled that juveniles cannot be automatically sentenced to life without a chance at parole, striking down laws in 28 states. A majority of the states[--Alabama, Arizona, Connecticut, Idaho, Illinois, Iowa, Massachusetts, Minnesota, Mississippi, Missouri, New Hampshire, New Jersey, Ohio, South Vermont, Virginia--]have not yet passed any statutory reform. Of the states that have done so, many require decades-long minimum sentences and few have applied the changes retroactively.
The landmark case of Shelby v. Holder continues to provoke criticism for its impact on discrimination in voting rights. In a new article, Christopher Elmendorf (UC Davis) and Douglas Spencer (U Conn), offer new hope. Here’s the abstract and link to After Shelby County: Getting Section 2 of the VRA to Do the Work of Section 5:
Abstract: Until the Supreme Court put an end to it in Shelby County v. Holder, Section 5 of the Voting Rights Act was widely regarded as an effective, low-cost tool for blocking potentially discriminatory changes in election law and administration. The provision the Supreme Court left standing, Section 2, is generally seen as expensive, cumbersome and almost wholly ineffective at blocking changes before they take effect. This paper argues that the courts, in partnership with the Department of Justice, could reform Section 2 so that it fills much of the gap left by the Supreme Court’s evisceration of Section 5. The proposed reformation of Section 2 rests on two insights: first, that national survey data often contains as much or more information than precinct-level vote margins about the core factual matters in Section 2 cases; second, that the courts have authority to create rebuttable presumptions to regularize Section 2 adjudication. Section 2 cases currently turn on costly, case-specific data and estimates. Judicial decisions provide little guidance about how future cases, relying on different data, are likely to be resolved. By creating evidentiary presumptions whose application in any given case would be determined using national survey data and statistical models, the courts could greatly reduce the cost and uncertainty of Section 2 litigation. This would also end the dependence of vote-dilution claims on often-unreliable techniques of ecological inference, and would make coalitional claims brought jointly by two or more minority groups much easier to litigate.
SSRN link: After Shelby County
Do you know of new scholarship that would be of interest to subscribers of the Legislation Law Profs Blog? If so, please let us know! You can post directly to the blog in a comment or email any one of the co-editors.
Wednesday, June 25, 2014
My scholarly and advocacy work focuses on legal and policy issues affecting homeless men, women, and children. One of these issues is the need to include homeless people in hate crime legislation. Last year, I wrote an article entitled, Invidious Deliberation: The Problem of Congressional Bias in Federal Hate Crime Legislation, which exposed the legacy of Congress’s own “unrecognized” bias against the homeless and determined this bias helps to exclude the homeless from hate crime protection. You can read more of my analysis by linking to a copy of Invidious Deliberation here.
The fight to include homeless people in hate crime legislation is back in front of Congress. Today, as I write this post, Susan Sarandon joins NCH and other advocates to brief Congress on the need to add homeless people to hate crime legislation. Sarandon Announcement Here. Sarandon is one of many circulating a petition to the same effect; if you are interested, you can sign on to the petition here.
According to a press release yesterday from the National Coalition for the Homeless:
Over the past 15 years, the National Coalition for the Homeless (NCH) has documented more 1,400 acts of violence against people experiencing homelessness committed by housed perpetrators. As ‘housing status’ is not a protected class under hate crimes legislation, this is the only existing count of these horrific incidents. In 2013, 109 attacks were reported, 18 of which resulted in the death of a homeless individual. This represents an increase of 23 percent in the total number of attacks from the previous year and a 30 percent increase in non-lethal attacks. Homeless individuals are particularly vulnerable to attacks for many reasons, one of which is sheer exposure. One often takes for granted the safety that a home affords, but for many people living on the streets, it can be difficult to avoid being victimized. Download HateCrimePressRelease.
NCH's detailed annual report of hate crimes committed against homeless Americans can be found here. If you have a chance, please tune in to the Congressional briefing; you can always weigh in on this important topic on our blog.
Monday, June 23, 2014
As part of our occasional feature of guest blogs, Professor Evan Zoldan submits a thoughtful entry on statutory interpretation in the Supreme Court. Evan C. Zoldan is an Assistant Professor of Law at the University of Toledo College of Law. He teaches and writes in the areas of Legislation and Regulated Industries. Professor Zoldan's scholarship can be found at http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1449563.
Statutory Interpretation in the Supreme Court
In its much-anticipated Bond decision, the Supreme Court avoided what many believed to be the key issue before the Court, that is, the scope of Congress’s constitutional authority to enact a statute in order to implement a valid treaty. Instead, the Court rested on statutory grounds, holding that the statute under which Bond was charged did not reach the conduct she committed. Although a disappointment for those anticipating an opinion clarifying or modifying the longstanding Missouri v. Holland doctrine, Bond provides a textbook example of the continuing power of clear statement rules.
Writing for the Court, Chief Justice Roberts reiterated that there are “certain unexpressed presumptions” against which Congress legislates. One of these presumptions, wrote Roberts, is the principle of federalism, that is, the federal-state balance of authority. Courts may use the principle of federalism to resolve ambiguous statutes. Only if Congress gives a “clear indication” that it intends to upset the traditional state-federal balance will the Court read a statute to do so. The Court held that the statute at issue did not contain a “clear statement” that Congress intended to reach local criminal conduct and, as a result, the Court would not interpret the statute to extend that far.
Justice Scalia, joined by Justices Thomas and Alito, took issue with Roberts’ characterization of the statute as ambiguous. Scalia opined that the text was clear and criticized the Court for finding ambiguity in the statute because a plain reading of the text would lead to a disruption of the state-federal balance. Scalia would have read the statute to include Bond’s conduct and addressed the constitutional issue directly.
Scalia’s criticism, that Bond represents a departure from standard modes of statutory interpretation, does not ring true; Roberts does nothing unusual when he uses material outside of the text of a statute, including a statutory presumption, to find ambiguity. Indeed, Scalia himself did something quite similar in Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765 (2000). Ultimately, Bond does not break much new doctrinal ground; it does, however, reaffirm the continuing power of clear statement rules to assist in statutory interpretation and to help the Court avoid thorny constitutional questions.
But, the above-mentioned fight over statutory interpretation should not obscure the real import of Bond. By siding with Bond, Roberts successfully found a majority to agree to an opinion with expansive language on the importance of federalism; the language planted in Bond will be ripe for picking by future courts seeking to limit federal authority on federalism grounds. Although the Court dodged the treaty question for now, we likely have not seen the last of Bond’s federalism language.
Friday, June 20, 2014
Yesterday, the Ninth Circuit found unconstitutional a Los Angeles law that prevents people from sleeping in their cars as a form of basic emergency shelter, when the City has offered them no other housing option. The decision has important implications for ordinances that criminalize homelessness, which are becoming increasingly popular around the nation. For more on this exciting decision, see the press release from the National Law Center on Homelessness & Poverty here.