Thursday, May 12, 2016
The least common, but perhaps one of the most important, advanced writing subjects addressed in law schools is the drafting of statutes, ordinances, regulations, and rules (for public laws or governance of non-governmental entities). The current state of law school instruction focuses almost exclusively on the repercussions of poorly written statutes or rules, on the courts’ efforts at application and interpretation of statutory language, and on scholarly criticism of statutes. Furthermore, required first-year legal writing courses traditionally address predictive and persuasive writing, and upper-level elective legal writing courses typically focus on litigation or transactional drafting. Thus, in addition to the instruction already provided, law schools should also teach students how to better draft statutes and similar documents to avoid confusion, ambiguities, disagreements, and litigation. This conference will offer attendees an opportunity to hear from academicians who teach the art of statutory drafting, practitioners who craft statutes and similar rules, and other scholars who study all forms of legislation. In the morning plenary session Professor Richard Neumann of Hofstra Univ. and Professor J. Lyn Entrikin of the Univ. of Arkansas Little-Rock will speak about the importance of teaching statutory and rule drafting in law school. In the afternoon plenary session former Pennsylvania Governor Tom Corbett (R) and Pennsylvania Senate Minority Leader Jay Costa (D) will answer questions about the state legislative process and politics. We invite presentation proposals from educators and practitioners. The DUQUESNE LAW REVIEW, which has published papers from three previous Colonial Frontier conferences, plans to devote space in its Summer 2017 symposium issue to papers from the conference. Possible topics about pedagogy include: • Structuring statutory drafting courses • Simulation courses designed using mock legislatures or committees • Course linkages with real-world legislators and special interest organizations • Service learning or clinical opportunities for law students • Courses focused on law reform efforts • How to employ Plain-English principles in statutory and rule drafting • Theoretical perspectives on statutory drafting • Involving political realities in law school drafting courses • Teaching practical aspects of drafting that addresses theories and principles of statutory interpretation and construction Possible topics about practice include: • Unique challenges of drafting laws and/or regulations in specific areas such as criminal law, environmental law, health law, etc. • Lawyering for nonprofits, federal and state agencies, local governments, and other clients in frequent need of rule-drafting • Practicing in employment law, health law, environmental law, and other heavily regulated fields where private clients require rule and policy drafting • Non-legal drafting opportunities, such as sports league rules, industry trade group policies, and university rules Possible topics about politics include: • Political influences affecting legislative drafting • Direct democracy and the unique challenges of drafting initiatives and referenda • The implications of special interests driving drafting decisions • Politics and its influence on legislative history • Lobbyists as legislative drafters We welcome proposals for 30-minute and 50-minute presentations on these topics, by individuals or panels. Proposals for presentations should be sent as an e-mail file attachment in MS Word to Professor Jan Levine at firstname.lastname@example.org by June 1, 2016. He will confirm receipt of all submissions. Proposals for presentations should be 1000 to 2000 words long, and should denote the topic to be addressed, the amount of time sought for the presentation, any special technological needs for the session, the presenter’s background and institutional affiliation, and contact information. Proposals should note whether the presenter intends to submit an article to the DUQUESNE LAW REVIEW, based on the presentation. Proposals by co-presenters are welcome. Proposals will be reviewed by Professors Julia Glencer, Jan Levine, Ann Schiavone, and Tara Willke of the Duquesne University School of Law, and by the editorial staff of the DUQUESNE LAW REVIEW. Decisions on proposals will be announced by June 15, 2016. Full drafts of related articles will be due by September 9, 2016; within a month of that date the DUQUESNE LAW REVIEW will determine which of those articles it wishes to publish. Final versions of articles will be due by January 13, 2017. Attendance at the one-day conference, on Saturday, December 3, 2016, will be free for presenters and $50 for non-presenters with an academic affiliation; other attendees will be charged $250. Continuing legal education credit of approximately four hours will be offered, depending upon the sessions included in the final agenda. Duquesne will provide free on-site parking to conference attendees. The conference will begin 9:00 a.m. with a welcoming breakfast and reception at the Duquesne University School of Law, followed by two hours of presentations. We will provide a catered, on-campus lunch, followed by 90 additional minutes of presentations, ending at approximately 3:00 p.m. We will then host a closing reception in the “Bridget and Alfred Pelaez Legal Writing Center,” the home of Duquesne’s LRW program. Pittsburgh is an easy drive or short flight from many cities. To accommodate persons wishing to stay over in Pittsburgh on Friday or Saturday evenings, Duquesne will arrange for a block of discounted rooms at a downtown hotel adjacent to campus, within walking distance of the law school and downtown Pittsburgh. We will also provide attendees with information about the Pittsburgh area’s attractions, including our architectural treasures, museums, shopping, and sporting events.
AALS Section on Legislation and Law of the Political Process- New Voices in Legislation Program at 2017 AALS
The AALS Section on Legislation and Law of the Political Process is pleased to announce that it will host a "New Voices in Legislation" program during the 2017 AALS Annual Meeting in San Francisco, CA. This works-in-progress program will bring together junior and senior scholars in the field of legislation for the purpose of providing the junior scholars with feedback and guidance on their draft articles. Scholars whose papers are selected will present their work in small panel sessions.
A senior scholar will moderate each panel and lead discussion about the draft article.
Eligibility: The New Voices Program will be open to full-time faculty members from AALS member schools who are untenured or have been tenured for two years or less. All scholars, whether or not presenting a paper or moderating a discussion, are welcome to attend the program and participate in discussions.
Submission Requirements: Submissions should be drafts of articles relating to legislation and the law of the political process, including articles related to legislative structure, the legislative process, statutory interpretation, and deliberation. Submissions should be near completion and should not exceed 30,000 words, including footnotes. The purpose of the program is to provide junior scholars with feedback that can be incorporated into their works-in-progress; as a result, articles are ineligible for the program if they are expected to be in print at the time of the program in January 2017. However, articles that already have been submitted to law reviews for publication, and accepted for publication, are not ineligible for this reason.
Submission Process: To be considered for participation in the program, please email a copy of the paper and abstract to Evan Zoldan, email@example.com by Friday, October 7, 2016. Selected participants will be notified in early November 2016. Final drafts of those who are selected must be submitted by December 15, 2016.
Senior Scholars: If you are interested is serving as a commentator for one of the junior papers, please contact Evan Zoldan, firstname.lastname@example.org.
Monday, April 18, 2016
Below, please see the call for panels and papers for the 2016 Society of American Law Teachers (SALT) Teaching Conference! The CFP is also available online here. Proposals are due by June 15, 2016. We look forward to seeing you in Chicago this fall!
Friday and Saturday, September 30 and October 1, 2016
The John Marshall Law School, Chicago, Illinois
Call for Panels and Papers
Society of American Law Teachers (SALT) Teaching Conference, in partnership with the
LatCrit-SALT Junior Faculty Development Workshop
Friday and Saturday, September 30 and October 1, 2016
The John Marshall Law School, Chicago, Illinois
The LatCrit, Inc./SALT Tenth Annual Junior Faculty Development Workshop (FDW) will take place on September 29, 2016, immediately preceding the SALT Teaching Conference. The FDW is designed for critical, progressive, and social justice oriented pre-tenure professors, including clinicians and legal writing professors, as well as those who may be contemplating a law teaching career. The FDW is designed to familiarize junior faculty with LatCrit and SALT principles and values and support them in the scholarship, teaching, and service aspects of professional success.
From the Classroom to the Community: Teaching and Advancing Social Justice
In 2015, law school applications hit a fifteen-year low. The drop reflects a radically changed employment market and a prevailing view that law school is no longer a sound investment. To attract qualified applicants and respond to a changing marketplace, many law schools have embraced experiential learning mandates and other “practice-ready” curricular shifts. The plunge in applications has also prompted law schools to lower admissions standards. In turn, the admission of students with below-average LSAT scores and modest college grade point averages has created new concerns about bar passage, job placement, and prospects for long-term professional success.
In this environment, the legal academy is faced with unprecedented challenges. On one hand, pressure exists to ensure that students are adequately prepared to navigate a courtroom, draft legal documents, and exhibit other “practice-ready” skills upon graduation. At the same time, law professors are urged to cover a wide spectrum of theory, rules, and doctrine to increase prospects for bar passage. In the struggle to achieve both goals, the critical need to integrate social justice teaching into the curriculum is often overlooked, rejected as extraneous, or abandoned in light of time constraints.
To the contrary, social justice teaching plays an essential role in improving legal analysis, enhancing practical skills, and cultivating professional development. Moreover, social justice teaching can help instill passion, commitment, and focus into students burdened with debt and facing an uncertain job market. Most important, as the legal marketplace contracts, access to counsel for lower- and middle-income people continues to grow -- creating a pressing need for effective and committed pro bono lawyers.
In response to new educational and professional challenges, law schools and the legal profession must join in a concerted effort to integrate social justice teaching into the classroom and expand social justice throughout the community. This conference will provide opportunities to engage in broad, substantive, and supportive discussions about the role of legal education and the legal profession in teaching students to become effective social justice advocates and the ways faculty can set an example through their own activism.
Suggested topics include, but are not limited to:
- Innovative methods to incorporate social justice concepts into the law school curriculum.
- Strategies to encourage students to become more engaged in academic and community activism.
- Collaborative efforts between law schools and the legal profession to respond to the need for greater access to legal services.
- Techniques to help law students and new lawyers develop resilience, stamina, and “grit” to face the enduring challenges of social justice advocacy.
- Responses to the ever-increasing cost of legal education and its impact on social justice and access to justice.
We welcome other related topics and encourage a variety of session formats. You may submit a proposal as an individual speaker, as a panel, or group. Whatever your topic and format, please use the required format as provided below for your proposal.
Please send your proposals to Hugh Mundy (email@example.com) by June 15, 2016.
Other members of the SALT Teaching Conference Committee include Margaret Barry (firstname.lastname@example.org), Emily Benfer (email@example.com), Davida Finger (firstname.lastname@example.org), Allyson Gold (email@example.com), and Aníbal Rosario Lebrón (firstname.lastname@example.org). Please share information about the Teaching Conference with your colleagues, particularly new and junior faculty, who are not yet members of SALT. Visit www.saltlaw.org for additional details.
Required Format for Proposed Presentations
Please submit all proposals by using the bolded headings set forth below.
- Title of proposed presentation
- Presenter name and contact information
Submit contact information for each individual who will participate in the presentation; however, you must identify one person to serve as the primary contact person. The contact person is responsible for receiving and transmitting information about the SALT conference to the other members of the panel.
Presenter’s school (as listed in the AALS Directory) and mailing address
Office phone number
Mobile phone number
Other panel members (if applicable):
Presenter’s school (as listed in the AALS Directory)
- Summary of the proposed presentation.
The description or narrative portion of the proposal should accurately and succinctly describe the content, format, and anticipated duration of the presentation. The ideal length of the summary is approximately one page of double-spaced text.
- Related papers or documents (if applicable).
We do not expect all submissions to include related scholarship or documents- especially at this early point in the process; however, if you have any related documents that help to support or illustrate your proposed presentation, feel free to attach them to your submission.
SAVE THE DATE: Central States Law Schools Scholarship Conference
The Central States Law Schools Association 2016 Scholarship Conference will be held on Friday, September 23 and Saturday, September 24 at the University of North Dakota School of Law in Grand Forks, ND. CSLSA is an organization of law schools dedicated to providing a forum for conversation and collaboration among law school academics. The CSLSA Annual Conference is an opportunity for legal scholars, especially more junior scholars, to present working papers or finished articles on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment. More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work. Scholars from member and nonmember schools are invited to attend. Registration will formally open in July. Hotel rooms are already available, and more information about the CSLSA conference can be found on our website at www.cslsa.us.
Wednesday, November 25, 2015
Wednesday, November 18, 2015
This post was written by Nate Ela, of COWS.
Last Sunday, I got into a taxi at Logan airport in Boston. The driver was Somali, a refugee to the United States, and on my way home we got to talking about how he ended up on the east coast. He had followed his wife, he said, from Minneapolis. For Somali refugees, he explained, that's the place to be – a huge community, even which includes former government ministers who are now professors at colleges in the Twin Cities. He'd initially been resettled in San Diego, because of its similarity to Somalia's climate. But within a couple years he joined family members in Minnesota. Why so many Somalis had chosen to move to such a cold state, he had no idea. But he was looking forward to moving back to the upper midwest soon.
Over the past couple of days, state-level refugee policy has hit the headlines in a big way. At latest count, twenty-seven governors have declared that they would refuse refugees from Syria, for fear that they might be terrorists in disguise. This has prompted some commentators to ask whether such policies would have any legal basis. Ian Millhiser, writing for ThinkProgress, suggests that the Supreme Court’s 2012 decision in Arizona v. United States would also apply in this case: the federal power to determine immigration policy would preempt any state attempt to legislate in that domain.
Over at Mother Jones, Tim Murphy provides some more details about the resettlement process, and notes that a State Department spokesman, when asked about the governors’ resistance, said, “Whether they can legally do that, I don't have an answer for you… I think our lawyers are looking at that.” Murphy notes that some people in the business of resettling refugees have already arrived at an answer to the legal question -- the governors don't have a leg to stand on. He quotes Jen Smyers, associate director for immigration and refugee policy at the Church World Service. Governors, she says, “don't have the legal authority to stop resettlement in their states—much less to stop the presence of a legally authorized individual based on nationality.” Smyers points out that “really clear discrimination protections” block states from barring entry based on where someone is from.
There's a good chance that the governors’ protestations are little more than election-year bluster -- refugees are easy to pick on, since by definition they can't vote you out of office. Or, they may be efforts to avoid a bind like the one that Governor Bill Clinton wound up in when President Carter sent Cuban refugees from the Mariel boatlift to Arkansas in 1980. If the governors back down, or manage to get Republicans in Congress to close the door entirely to Syrian refugees, this episode may not turn out to be a reprise of Arizona v. United States.
But beyond the legal questions at stake, the governors’ stance got me thinking back to my cab driver. What could possibly have stopped him from moving from San Diego to Minneapolis, and then on to Boston? Maps of the states where governors have come out in opposition to resettlement (via Vox), and states where Syrian refugees have resettled (via the New York Times) suggest more plausible scenarios for internal migration by Syrian refugees.
Say the Obama administration simply chose to resettle Syrian refugees in states where governors have said their doors are open, such as California or Minnesota. What if refugees then moved to cities that already have the beginnings of Syrian refugee communities? Such a process of chain migration might result in refugees moving to Houston, Atlanta, or Chicago – all in states where governors have declared they don’t want any more refugees.
For anti-refugee governors, this would create logistical nightmares. How could they hope to stop such internal migration? Border checkpoints? Passport checks at airports for domestic flights? Raiding suspected migrant enclaves and deporting refugees to other states? Yesterday, the GOP Caucus Chairman of Tennessee's house of representatives said that he's "not worried about what a bureaucrat in D.C. or an unelected judge thinks. ... We need to gather (Syrian refugees) up and politely take them back to the ICE center and say, 'They’re not coming to Tennessee, they’re yours.'" Apparently for some, having a legal basis simply doesn't matter.
The more one thinks about it, the messier it gets. Maybe anti-refugee governors simply didn't think through the next move after their opening gambit. Unless Congress bails them out, any state-level "solutions" to the problems that internal migration would pose for anti-refugee governors could turn out to be actual nightmares. Congressman Luis Gutierrez has likened the anti-refugee governors’ stance to the creation of internment camps for Japanese Americans during World War Two. One wonders which governor will be the first to propose a "compromise" solution: refugees can resettle -- but only if they are confined to camps.
Thursday, November 5, 2015
Health Justice: A Framework (and Call to Action) for the Elimination of Health Inequity and Social Injustice
The Health Justice Project's founder and director Professor Benfer, will have her latest article published in the American University Law Review. The article is an in-depth discussion entitled Health Justice: A Framework (and Call to Action) for the Elimination of Health Inequity and Social Injustice. An abstract can be found below with a link to the full article to follow.
Health Justice: A Framework (and Call to Action) for the Elimination of Health Inequity and Social Injustice
Emily A. Benfer
Loyola University Chicago School of Law; Loyola University Chicago- Stritch School of Medicine
October 20, 2015
American University Law Review, Vol. 65, No. 2, 2015
Every aspect of society is dependent upon the health of its members. Health is essential to an individual’s well-being, quality of life, and ability to participate in society. Yet the healthcare industry, even at its optimal level of functioning, cannot improve the health of the population without addressing the underlying causes of poor health. The health of approximately 46.7 million individuals, most of whom are low-income and minority, is threatened by economic, societal, cultural, environmental, and social conditions. Poor health in any population group affects everyone, leading to higher crime rates, economic impacts, decreased residential home values, increased healthcare costs, and other devastating consequences. Despite this fact, efforts to improve health among low-income and minority communities are impeded by inequitable social structures, stereotypes, legal systems, and regulatory schemes that are not designed to take into account the social determinants of health in decision-making models and legal interpretation. As a result, a large segment of the population is continually denied the opportunity to live long, productive lives and to exercise their rights under democratic principles. Health, equity, and justice make up the keystone to a functional, thriving society. Yet these principles are unsatisfied when they do not apply equally to all members of society. In this article, I describe the social roots of poor health and how social injustice, health inequity, and poverty are inextricably linked. For example, I provide an in depth overview of the social determinants of health, including poverty, institutional discrimination and segregation, implicit bias, residential environmental hazards (leading to diseases like lead poisoning and asthma), adverse childhood experiences, and food insecurity. I discuss how the law is a determinant of health due to 1) court systems that do not evaluate individual circumstances, 2) the enactment of laws that perpetuate poor health and 3) the lack of primary prevention laws. Finally, I demonstrate how addressing these issues requires true adherence to principles of equality and making justice and freedom of opportunity accessible to everyone. I recommend the creation of “health justice,” a new jurisprudential and legislative framework for the achievement and delivery of health equity and social justice.
For the full article visit the link below:
Monday, November 2, 2015
The first day of Loyola University Chicago’s annual hunger week began today Monday, November 2nd. Hunger week is a school wide tradition with the intent to increase awareness of hunger issues and raise money for organizations fighting hunger year round. Over 30% of families with food insecurity stated they had to decide whether to pay for food or medical care. With parents struggling to take care of their children’s health and nutritional needs, the American Academy of Pediatrics (AAP) is implementing a change to address these competing concerns. During the American Academy of Pediatrics’ National Conference & Exhibition in Washington, DC the organization released a statement on a new policy titled “Promoting Food Security for all Children.” According to the US Department of Agriculture (USDA) approximately 16 million children do not have access to sufficient amounts of food, and 7.9 million children are currently living in food insecure households. For many the grocery budget is one of the only flexible portions of their monthly bills. Rent and utilities are a fixed amount, but food costs can be stretched or squeezed to accommodate other immutable monetary demands.
In their statement the AAP noted the connection between childhood food insecurity and lifelong health effects. The USDA defines food insecurity as limited access to adequate food due to financial or other resource concerns. Children in food insecure households at any level are sick more often, hospitalized more frequently, recover from illnesses more slowly, and are more likely to suffer from malnutrition which can lead to diabetes and cardiovascular disease in their adult lives. Lack of sufficient, nutritious food has also been linked with detrimental behavioral and emotional effects, such as impaired ability to concentrate and perform well at school.
The new policy acknowledges the difficulty in recognizing malnutrition in a wide variety of demographics. During a child’s usual check-up the typical medical indicators of malnutrition may not be apparent. Dr. Sarah J. Schwarzenberg, a contributor to the policy and a director of pediatric gastroenterology and nutrition at the University of Minnesota Masonic Children’s Hospital, acknowledged the misconception that food insecurity is easily recognizable because the individuals will look ‘poor.’ Though commonly associated with children in urban low-income households, children in the suburbs and rural areas are also susceptible to food insecurity. Families with unemployment, underemployment, low-income, or those that are headed by a single parent may not match the stereotypical food insecure image. Income is more unpredictable than before which has lead to a rise in chronic hunger for families across the nation.
Physicians are asked to screen families for food insecurity during their doctor’s appointments and recommend community or governmental resources. The screening tool asks two questions: if the parent worried that their food would run out before they could purchase more, and whether their food was able to last until they were could purchase more. Nutritional epidemiologist at the University of Maryland School of Medicine, Erin R. Hager, stated these questions would identify 97% of food insecure families. The across-the-board screenings will create an opportunity for parents to broach the subject with their physician. This intermediary step removes the fear and embarrassment of asking for help, since children and parents are unlikely to initiate a conversation about these struggles on their own. Physicians can use this moment to reassure the family that their situation is common and they’re willing to help. The new policy suggests all physicians maintain a list of community resources and familiarize themselves with the programs. Identifying food insecurity early and providing information about how to access food resources will hopefully counteract the growing numbers of child hunger and prevent negative health effects before they begin.
1. New AAP Report Targets Lack of Adequate Food as Ongoing Health Risk to U.S. Children, American Academy of Pediatrics, https://www.aap.org/en-us/about-the-aap/aap-press-room/pages/Lack-of-Adequate-Food.aspx (last visited October 29, 2015).
2. Catherine Saint Louis, Pediatricians Are Asked to Join Fight Against Childhood Hunger, N.Y. Times, Oct. 23, 2015, http://www.nytimes.com/2015/10/24/health/pediatricians-are-asked-to-join-fight-against-childhood-hunger.html?_r=1 9.
3. Allison Aubrey, Are You Hungry? Pediatricians Add A New Question During Checkups, National Public Radio, Oct. 23, 2015, http://www.npr.org/sections/thesalt/2015/10/23/450909564/are-you-hungry-pediatricians-add-a-new-question-during-check-ups.
4. David K. Shipler, The Working Poor: Invisible in America, 201 (2004) available at http://www.progressivewomensalliance.org/images/2005_07.pdf (last visited October 29, 2015).
5. Alisha Coleman-Jensen, Matthew P. Rabbitt, Christian Gregory, Anita Singh, Household Food Security in the United States in 2014, United States Department of Agriculture, http://www.ers.usda.gov/media/1896841/err194.pdf (last visited October 29, 2015)
Wednesday, October 21, 2015
Check out this conference, hosted by Duquesne University School of Law, which offers attendees an opportunity to hear from academicians who teach the art of statutory drafting, practitioners who craft statutes and similar rules, and other scholars who study all forms of legislation.
Here is the relevant information from the host:
The Fifth “Colonial Frontier” Legal Writing Conference Saturday, December 3, 2016.
Hosted by the Duquesne University School of Law
"Drafting Statutes and Rules: Pedagogy, Practice, and Politics."
The current state of law school instruction focuses almost exclusively on the repercussions of poorly written statutes or rules, on the courts’ efforts at application and interpretation of statutory language, and on scholarly criticism of statutes. Furthermore, required first-year legal writing courses traditionally address predictive and persuasive writing, and upper-level elective legal writing courses typically focus on litigation or transactional drafting. The least common, but perhaps most important, advanced writing subject addressed in law schools is the drafting of statutes, ordinances, regulations, and rules (for public laws or governance of non-governmental entities). Thus, in addition to the instruction already provided, law schools should also teach students how to better draft statutes and similar documents to avoid confusion, ambiguities, disagreements, and litigation.
We invite proposals from educators and practitioners who want to speak to these issues. The DUQUESNE LAW REVIEW, which has published papers from three previous Colonial Frontier conferences, plans to devote space in its Summer 2017 symposium issue to papers from the conference. Possible topics about pedagogy include: • Structuring statutory drafting courses • Simulation courses designed using mock legislatures or committees • Course linkages with real-world legislators and special interest organizations • Service learning or clinical opportunities for law students • Courses focused on law reform efforts • How to employ Plain-English principles in statutory and rule drafting • Theoretical perspectives on statutory drafting • Involving political realities in law school drafting courses • Teaching practical aspects of drafting that addresses theories and principles of statutory interpretation and construction Possible topics about practice include: • Unique challenges of drafting laws and/or regulations in specific areas such as criminal law, environmental, health law, etc. • Lawyering for non-profits, federal and state agencies, local governments, and other clients in frequent need of rule-drafting • Practicing in employment law, health law, environmental law, and other heavily regulated fields where private clients require rule and policy drafting • Non-legal drafting opportunities, such as sports league rules, industry trade group policies, and university rules Possible topics about politics include: • Political influences affecting legislative drafting • Direct democracy and the unique challenges of drafting initiatives and referenda • The implications of special interests driving drafting decisions • Polictics and its influence on legislative history • Lobbyists as legislative drafters.
We welcome proposals for 30-minute and 50-minute presentations on these topics, by individuals or panels. Proposals for presentations should be sent as an e-mail file attachment in MS Word to Professor Jan Levine at email@example.com by June 1, 2016. He will confirm receipt of all submissions. Proposals for presentations should be 1000 to 2000 words long, and should denote the topic to be addressed, the amount of time sought for the presentation, any special technological needs for the session, the presenter’s background and institutional affiliation, and contact information. Proposals should note whether the presenter intends to submit an article to the DUQUESNE LAW REVIEW, based on the presentation. Proposals by co-presenters are welcome. Proposals will be reviewed by Professors Julia Glencer, Jan Levine, Ann Schiavone, and Tara Willke of the Duquesne University School of Law, and by the editorial staff of the DUQUESNE LAW REVIEW. Decisions on proposals will be announced by June 15, 2016. Full drafts of related articles will be due by September 9, 2016; within a month of that date the DUQUESNE LAW REVIEW will determine which of those articles it wishes to publish. Final versions of articles will be due by January 13, 2017.
Attendance at the one-day conference, on Saturday, December 3, 2016, will be free for presenters and $50 for non-presenters with an academic affiliation; other attendees will be charged $250. Continuing legal education credit of approximately four hours will be offered, depending upon the sessions included in the final agenda. Duquesne will provide free on-site parking to conference attendees. The conference will begin 9:00 a.m. with a welcoming breakfast and reception at the Duquesne University School of Law, followed by two hours of presentations. We will provide a catered, on-campus lunch, followed by 90 additional minutes of presentations, ending at approximately 3:00 p.m. We will then host a closing reception in the “Bridget and Alfred Pelaez Legal Writing Center,” the home of Duquesne’s LRW program.
Pittsburgh is an easy drive or short flight from many cities. To accommodate persons wishing to stay over in Pittsburgh on Friday or Saturday evenings, Duquesne will arrange for a block of discounted rooms at a downtown hotel adjacent to campus, within walking distance of the law school and downtown Pittsburgh. We will also provide attendees with information about the Pittsburgh area’s attractions, including our architectural treasures, museums, shopping, and sporting events.
Monday, October 19, 2015
New York City is one of many in the United States that's facing a crisis of homelessness and lack of affordable housing. Recently, NY City Council members Mark Levine and Vanessa Gibson introduced legislation to establish a right to counsel for all low-income tenants in housing court. "The bill would make New York City the first in the nation to guarantee representation for tenants, and it would significantly decrease the number of families forced into homelessness" in New York City. The proposal, and the rationale behind it, are described in this compelling op-ed in today's New York Times.
Wednesday, October 7, 2015
Mayor Eric Garcetti is promising to put an end to the chronic homelessness found in Los Angeles. On September 22, 2015 the Los Angeles mayor and city counsel members proposed to declare a ‘state of emergency’ and devote up to $100 million to address homelessness. The mayor took action the day preceding the announcement by issuing a directive to gather $13 million within the next few months to fund stopgap measures such as housing subsidies and funding for extending shelter availability. Budget officials claim over $100 million is already being spent regarding homelessness issues, though the majority is through law enforcement efforts.
Despite the strong initiative, counsel members are encountering difficulty identifying sources for the 100 million and no clear plans have been created designating the use for the immense funding. Mayor Garcetti did give a broad over view of his three-part plan to address homelessness. The plan involves expanding the city and county system for tracking homeless individuals, adding centers where the homeless can access social services and store belongings, as well as anti-poverty measures to prevent people from becoming homeless initially. In addition, the Mayor suggested using $12 million from unexpected tax revenue to fund rent subsidies.
The initiative could ease restrictions on nonprofit organizations and churches that shelter the homeless, as well as create funding for housing and other services. Megan Hustings, the director of the National Coalition for the Homeless, stated creating affordable housing would make a substantial impact towards resolving the homelessness epidemic. Steve Berg of the National Alliance to End Homelessness echoes the importance of housing stating “what we’ve learned about homelessness over many, many years is that you have to provide housing, and criminalizing the homeless doesn’t keep people off the streets.” Nationally homelessness has declined, however, in areas such as cities where the cost of housing is on the rise, homelessness also increases. Over the past two years the number of homeless individuals increased by 12%. With the rent in Los Angeles soaring across the city, housing vouchers are unable to cover the full cost of a unit. Gentrification of the few areas in Los Angeles with affordable housing eliminated the few units that these individuals possibly could have afforded. Attempts to create new affordable housing struggled and the city itself began to dissolve the funding these efforts to a fourth of the previous funding levels.
UCLA law professor Gary Blasi notes the proclamation is a positive step for the city, which had previously focused on using the police force to discourage encampments. Shifting the focus to areas recognized by homeless advocates could finally quell the rising population in Los Angeles. The nascent proposition has many foundational hurdles to overcome concerning planning and funding, however, the impact could reach beyond the city’s borders. If successful, this approach could extend to cities across the country to address the state of emergency facing countless homeless individuals and families.
1. Jennifer Medina, Los Angeles Puts $100 Million Into Helping Homeless, N.Y. Times, Sept. 22, 2015, http://www.nytimes.com/2015/09/23/us/los-angeles-plans-100-million-effort-to-end-homelessness.html.
2. Peter Jamison, David Zahniser, & Matt Hamilton, L.A. to Declare ‘State of Emergency’ on Homelessness, commit $100 Million, L.A. Times, Sept. 22, 2015, http://www.latimes.com/local/lanow/la-me-ln-homeless-funding-proposals-los-angeles-20150921-story.html.
3. Shelby Grad and Gale Holland, How the Los Angeles Homeless Crisis Got So Bad, L.A. Times, Sept. 22, 2015, http://www.latimes.com/local/lanow/la-me-ln-how-los-angeles-homeless-crisis-got-so-bad-20150922-story.html.
Monday, October 5, 2015
Cabrini-Green was a Chicago Housing Authority (CHA) public housing project that became a symbol of the public housing deficiencies, ranging from crime to deplorable living conditions. The last of the buildings were demolished in 2011, leaving only a small set of row houses, built in the 1940s. When CHA failed to fulfill its long-standing commitment to rehabilitate the row houses and add public housing units, the Cabrini-Green Local Advisory Council, represented by LAF Chicago and Sidley Austin, brought a federal lawsuit. LAF Attorney Elizabeth Rosenthal stated the goal was to provide additional public housing in Near North Chicago, a quickly gentrifying neighborhood. The parties reached a settlement that requires the CHA to ensure that at least 176 of the rehabilitated row house units be set aside for low-income tenants. Additionally, the CHA agreed to create 1,800 total low-income units. Under the settlement, the new units must be completed by December 2022.
The Francis Cabrini Row houses at the center of the settlement were originally built in 1942 as a part of the Chicago Housing Authority’s plan for ‘urban renewal.’ The CHA seemed to neglect the housing project for several years and sought to demolish it in the late 1990’s to begin work on their “Plan for Transformation.” The plan required demolishing thousands of units and rehabilitating them for public housing. Roughly 25 percent of the 586 row houses were rehabilitated and all high-rise apartments were demolished. However, all construction ceased in 2011. Influenced by the improving neighborhoods, CHA leaders sought to change the remainder of the site from public housing to mixed income housing. Though the CHA intended to rehabilitate the residual 440 row houses to meet the public housing needs, the houses sat unused for years.
In their 2013 suit, the Cabrini-Green Local Advisory Council argued that hundreds of low-income units would be eliminated if the CHA incorporated mixed-income units into the site. And it would be extremely difficult to replace the units in a comparable neighborhood, the CHA would need to seek more affordable sites, which are typically located in high-poverty and segregated areas of Chicago. The row house residents would continue to be segregated into disenfranchised neighborhoods perpetuating the cycle of deepening poverty in specific communities.
The settlement between the Advisory Counsel and the CHA is an encouraging compromise. The terms of the settlement allow the CHA to build mixed income housing where the row houses currently stand while guaranteeing that a minimum of 40% of the units created by the CHA will be for public housing. In addition, no less than 15% of the units are required be to affordable housing. The 146 row houses that were renovated as part of the Plan for Transformation will continue to be operated as public housing.
This is a landmark victory under the Fair Housing Act that promises to make housing in a racially and economically diverse area accessible for at least 1,800 low-income families and individuals. The importance of this outcome for the future health and well being of those families cannot be overstated.
- Jon Seidel, Judge Oks Deal to Bring More Public Housing to Near North Side, Chicago Sun-Times, Sept. 17, 2015, http://chicago.suntimes.com/news/7/71/968082/cabrini-green-public-housing-settlement.
- Dawn Rhodes, Cabrini-Green Residents, CHA Settle Lawsuit – Adding Public Housing in Area, CHI. TRIB., Sept. 13, 2015, http://www.chicagotribune.com/news/local/breaking/ct-cabrini-green-settlement-met-20150913-story.html.
- The End of Cabrini-Green, TIME, http://content.time.com/time/photogallery/0,29307,2034317,00.html (last visited October 1, 2015).
- Payton Chung, Short History of Cabrini-Green, Westnorth.com, http://westnorth.com/2003/01/02/short-history-of-cabrini-green (last visited October 1, 2015).
- Richard Florida, The U.S. Cities Where the Poor are Most Segregated From Everyone Else, The Atlantic City Lab, March 24, 2014, http://www.citylab.com/housing/2014/03/us-cities-where-poor-are-most-segregated/8655/.
Friday, October 2, 2015
A flurry of lethal activity this week, with more to come next week.
Early Wednesday morning, September 30, Georgia executed Kelly Gissendaner, who was sentenced to death for recruiting Gregory Owen, a man with whom she was romantically involved, to murder her husband. She was the first woman executed in Georgia in 70 years. Owen—the man who actually committed the murder (and made a deal with prosecutors)—will be eligible for parole in 8 years. As reported by a witness to the execution, Gissendaner, who graduated from a theology program in prison, was “very, very emotional. . . . She was crying and then she was sobbing and then broke into [Amazing Grace] as well as into a number of apologies . . . . When she was not singing, she was praying.”
Also on Wednesday, Oklahoma’s governor granted a 37-day reprieve to Richard Glossip, who was scheduled to be executed that day for allegedly hiring another man, Justin Sneed, to murder his boss. Sneed, the man who committed the murder, avoided the death penalty by making a deal with prosecutors. Glossip maintains his innocence and claims he has new evidence to prove it. On Friday, October 2, the Oklahoma Court of Criminal Appeals issued indefinite stays of execution for Richard Glossip and several others after the Oklahoma Department of Corrections revealed that it had received the wrong lethal injection drug. From the Associated Press: “Just hours before Glossip was set to die [on Wednesday], prison officials opened a box of lethal drugs and realized they received potassium acetate instead of potassium chloride, the third drug utilized in Oklahoma's lethal injection formula. . . . Oklahoma's execution protocols were overhauled after last year’s botched execution of Clayton Lockett, who writhed on a gurney and struggled against his restraints before being declared dead more than 40 minutes after the procedure began.”
As discussed in a prior post, Glossip’s case resulted in a decision by the U.S. Supreme Court this summer upholding the constitutionality of Oklahoma’s drug protocol procedure and prompted a sweeping dissent by Justices Breyer and Ginsburg, who questioned the constitutionality of the death penalty.
On Thursday, October 1, Virginia executed a Latino man, Alfredo Prieto, despite concerns that he may have an intellectual disability—and before the U.S. Supreme Court had a chance to decide whether to grant a stay on his challenge to Virginia's execution drugs.
Next Tuesday, Missouri plans to execute an African-American man, Kimber Edwards, who—like Gissendaner and Glossip—was sentenced to death while the person who actually committed the murder was spared.
Also next Tuesday, Texas plans to execute a Latino man, Juan Garcia, for a murder-robbery committed when he was 18.
And next Wednesday, Oklahoma plans to execute Benjamin Cole, a man believed to suffer from schizophrenia and brain damage.
Oklahoma, Missouri, Texas, and Florida (and, I suppose, Georgia and Virginia)—these are the states that are defining “decency” for the rest of the country under the Supreme Court’s Eighth Amendment jurisprudence. But for how long?
For more, see the Washington Post article here.
Thursday, September 24, 2015
With historic levels of income inequality on the mind of many Americans these days, some politicians are wondering what sort of steps they might take to close the wage gap. Short of actually mandating salary reductions, an increasingly common proposal is to increase wage transparencies, so that we might better understand inequities -- between the pay of men and women, CEOs and rank and file workers, or managers and lower-level workers in the public sector. (As in this recent article by Cynthia Estlund.)
But what effects do such moves to increase transparency have on wages? This is the question that Princeton economist Alexandre Mas asks in a working paper that looks at the effects of a 2010 mandate requiring the disclosure of city managers' salaries in California. (A recent version of the paper is available here, via Harvard's Multidisciplinary Program on Inequality and Social Policy.)
What Mas found suggests a potential tension between increased transparency and good (or at least experienced) urban governance. After city managers' salaries were made public, compensation did tend to decrease, by about seven percent on average. In cities with higher initial compensation, the wage cuts tended to be larger. But cuts did not tend to be higher in cities where compensation had been out of line with fundamentals - in general, Mas notes, "wage cuts were not the result of the discovery of managers who exploited secrecy to inflate their wages."
Yet even as transparency failed to create accountability by cutting the wages of city managers whose pay was out of line with their city's performance, it had a significant effect on the ability of cities to retain managers. Mas finds that the transparency policy was associated with a 75 percent rise in voluntary separations of managers. He concludes that "a potential drawback to transparency policies in the public sector is that wages fall to the point that cities cannot retain incumbent managers." Rather than increasing accountability or decreasing inequality, then, the effect of making city managers' wages more transparent might in fact be to simply increase their turnover.
Wednesday, September 23, 2015
For the first time, the U.S. Department of Housing and Urban Development is asking public and private agencies that receive federal homelessness grants to describe how their efforts help combat the criminalization of homelessness.
The program allots $1.9 billion in grants for fiscal year 2015.
According to the National Law Center on Homelessness & Poverty, this new question on the grant application is worth two points, and could make the difference between receiving and not receiving a grant, since the process is highly competitive.
HUD's efforts to eliminate laws that unfairly target people who experience homelessness is a positive move in light of an increasing number and severity of laws that essentially punish visibly poor people for existing in public, even when they have no reasonable alternative but to do so. HUD's stance supports the rejection of the criminalization of homelessness by using evidence of anti-criminalization efforts as one of the criteria HUD will use to determine funding it allocates to cities' continuums of care programs.
In light of HUD's position and a recent DOJ Statement of Interest filed in a federal district court case, cities should take note that anti-homeless laws faced increasing federal scrutiny.
Friday, September 18, 2015
The Census Bureau issued a new annual report on poverty and income in the U.S., finding that the number of poor Americans has remained steady from 2013 to 2014. This financial stagnation is occurring despite some signs of economic growth; accordingly, some experts say this stagnation could be "fueling political dissent this campaign season." The Census pegged the nation’s official 2014 poverty rate at 14.8 percent; translated this percentage means at least 46.7 million Americans struggled with poverty last year.
On the bright side, the Census reported that the percentage of Americans without health insurance coverage declined (dropping from 41.8 million in 2013 to 33.0 million uninsured).
From our friends at the State Innovation Exchange: This week, business school professors from 88 universities signed a letter to Congress in support of paid leave. You can read the reflections of Harvard Business School Professor Stew Friedman, one of the letter's signatories, here on why paid leave is not just good for workers and their families, but also businesses and the economy.
Friday, September 11, 2015
On June 23, 2012, Lakisha Briggs was again cornered by her abusive ex-boyfriend in fear for her safety, and the safety of her three-year-old daughter. Unlike previous occasions Lakisha was faced with the appalling choice of calling the police or being evicted from her rental home. That evening her ex-boyfriend broke an ashtray against her head, then using the broken glass he stabbed her in the neck until she passed out. Hearing the disturbance, a neighbor called the police and Lakisha was flown by trauma helicopter to a nearby hospital. Despite the severity of the assault, Lakisha’s fear of eviction overpowered her and she did not call the police leaving her helpless to endure the wrath of her attacker.
These fears and concerns are national, with a less drastic yet similar situation occurring recently in Arizona. Both Lakisha and the victim in Arizona were placed in these situations due local nuisance ordinances. The past decade has seen a rise in these ordinances and Crime Free Multi-Housing programs across the nation. They have been adopted by 48 states and around 2,00 cities across the country. Under the ordinance a building will be labeled a nuisance if a specified number of calls are made to the police within a set amount of time, such as three months. The laws are intended to prevent crime by activating individuals who are in a position to influence the environment where the acts are occurring. In Illinois, landlords can evict tenants from their homes if the tenant contacts the police an excessive number of times. The ACLU notes that these ordinances do not distinguish between victims or perpetrators of the crime, which has a disproportionate effect on victims of domestic violence.
The risk of eviction is yet another factor to add on top of the troubling and frightening situation that is domestic violence. According to the Illinois Coalition Against Domestic Violence 17,000 adults and over 2,000 children served by their shelters in 2014 were from rental housing. However, Illinois domestic violence victims do have hope thanks to Senator Toi Hutchinson. The Senator introduced Senate Bill 1547 in February that was aimed at preventing the creation and enforcement of laws that punish both tenants and landlords if the police are contacted for “domestic or sexual violence, criminal activity, or other emergency situations.”
As of November 19, 2015 these individuals will be protected under Public Act 099-0441. Since February Senator Hutchinson’s bill has passed through the Senate, the House, and the hands of the governor to be approved as a public act on August 21, 2015. Though the act was amended three times, the overall purpose remained intact. Under the Act it is prohibited for a city to enact or enforce regulations, which would punish tenants or landlords for contacting the police about actual or threats of domestic or sexual violence. The act also empowers a tenant or landlord who may have been wronged by noncompliant laws to bring a civil action for compensatory damages, an injunction, and other appropriate relief. This victory for Illinois is a shining example for the rest of the nation. As other states begin to protect instead of punish victims of abuse the shadow of domestic violence will finally start to recede.
1. Briggs v. Borough of Norristown, No. 2:13-cv-02191 (E. D. Pa. filed April 24, 2013) available at https://www.aclu.org/files/assets/norristown_complaint.pdf
2. Jessica M. Pieklo, Advocates: Domestic Violence Survivors Dace Housing Instability Under Arizona Housing Ordinance, RH Reality Check (August 31, 2015), http://rhrealitycheck.org/article/2015/08/31/advocates-domestic-violence-survivors-face-housing-instability-arizona-housing-ordinance/
3. The International Crime Free Association hosts a national conference and twelve- hour train the trainer program. Crime Free Multi-Housing, INTERNATIONAL CRIME FREE ASSOCIATION, http://www.crime-free-association.org/multi-housing.htm (last visited September 5, 2015).
4. Mathew Desmond, Eviction and the Reproduction of Urban Poverty, 118 AM. J. SOC. 88, 91 (2012), available at http://scholar.harvard.edu/files/mdesmond/files/desmond.evictionpoverty.ajs2012.pdf
5. New Legislation Introduced to Prevent Illinois Crime Victims From Being Evicted Under Local Ordinances, ACLU (February 23, 2015), available at http://www.aclu-il.org/new-legislation-introduced-to-prevent-illinois-crime-victims-from-being-evicted-under-local-ordinances
6. Phil Kadner, Victims of Crime Hurt By Crime-Free Laws, CHI. TRIB. (February 26, 2015), http://www.chicagotribune.com/suburbs/daily-southtown/opinion/ct-sta-kadner-tenants-st-0227-20150226-column.html.
7. New Legislation Introduced to Prevent Illinois Crime Victims From Being Evicted Under Local Ordinances, ACLU (February 23, 2015), available at http://www.aclu-il.org/new-legislation-introduced-to-prevent-illinois-crime-victims-from-being-evicted-under-local-ordinances
8. Public Act 099-044, available at http://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=099-0441
9. Status of SB1547, 99th General Assembly, (2015), http://www.ilga.gov/legislation/billstatus.asp?DocNum=1547&GAID=13&GA=99&DocTypeID=SB&LegID=88215&SessionID=88&SpecSess=
Wednesday, September 9, 2015
Last week, Health Justice Project clinic students participated in a court watch at Chicago’s eviction court. In some instances, the students provided support to unrepresented defendants. One student, Amanda Plowman, reflected on that experience:
On Tuesday morning, I traveled to the intimidating Daley Center for a court observation. I met two women there. The couple had received a notice of eviction from their landlord and hoped to request additional time to find an attorney. I provided moral support, which, I was surprised to learn, made a substantial difference to the couple. As we navigated the crowded courtroom, the couple expressed how stressful, foreign, and terrifying the situation was for them. One of the women showed me how badly her hands were shaking in anticipation of coming before the court. I didn’t blame her.
The courtroom was packed with people. Every now and then one of the landlord attorneys would stand in front of the wooden gate facing the self-represented litigants with a stack of filed in their hands and yell out a tenant’s name. If someone answered, the attorney would walk with them outside and try to negotiate (or bully a tenant into) a plea of guilty. The attorneys were calm while the self-represented litigants fidgeted nervously in their seats waiting for the judge to arrive. When the judge did arrive each case was argued and over within a matter of minutes if not less. I was astonished that such an important decision- whether a tenant was to become homeless or not- was made in the blink of an eye. Unfortunately, this experience isn’t unique.
A study of eviction court conducted in 2002 by the Lawyers’ Committee for Better Housing, Inc. (LCBH) and Chicago-Kent College of Law concluded that tenants were at a disadvantage, as evidenced by the court’s failure to require the landlord to establish their prima facie case for eviction. For example, landlords must meet due process requirements when providing notice of an eviction. Judges only examined the notice in 65% of the cases.
The odds are also stacked against tenants. The majority of tenants do not know their rights. Even if they do have a valid habitability defense, they are unaware of the steps to properly address these issues such as notifying their landlord, or other procedures that could have sustained the viability of their defenses. Despite having a valid defense, the research shows in only 27% of the cases did judges ask if the tenant had a defense. If the tenant did raise a defense they would not have known how to present it in a legally cognizable way or how to properly establish the grounds for their defense. Both elements would need to occur within 1 minute and 44 seconds, which the study found was the average length of an eviction hearing. To complete the picture, even though 55% of tenants brought forth a valid defense to the judge, all of them were evicted from their homes.
In addition, the majority of tenants are self-represented which also puts them at a disadvantage. Low-income parties are typically self-represented since they have difficulty obtaining legal counsel not only due to the high cost, but also due to the lack of legal services for free or low cost assistance. A New York Times opinion article by Matthew Desmond notes, that 90% of tenants across the nation appear in eviction court without an attorney. Where as 90% of landlords are represented by an attorney. The situation seems obviously in favor of the landlord since representation makes a dramatic impact in the outcome for an eviction case. In a pilot project that took place in Quincy, Massachusetts eviction courts provided free legal representation to low income tenants. Two-thirds of the fully represented tenants were able to remain in their homes, where only one-third of the self-represented tenants obtained a similar result. As compared to the self-represented tenants, the represented tenants received approximately five times more financial benefit from claims such as damages or revocation of rent that was past due.
Similarly, the LCBH study also included quantifiable information about the difference legal counsel makes in an eviction proceeding. Overall, the average length of a hearing was 1 minute and 44 seconds. If the landlord was represented by an attorney and the tenant was not, the average length of a hearing decreased to 1 minute and 38 seconds. If the tenant was represented by an attorney and the landlord was not, the average length of a hearing was over twice as long, increasing to 3 minutes and 22 seconds. By the numbers alone, having an attorney makes a substantial difference in leveling the playing field in eviction courts.
The couple I was with was able to advocate for themselves and did receive additional time to find an attorney to represent them. They are now one step closer to defending themselves against a system that is skewed against the tenant. Thankfully, there are organizations that do assist tenants with eviction claims. Whether it be educating the self represented on their rights, or providing low cost or even free legal aid, associations such as Lawyers’ Committee for Better Housing and Illinois Legal Aid are working to even the playing field. Chicago – like most cities - has a long way to go to rectify the imbalance in eviction court but with help from these groups tenants have a fighting chance to keep a roof over their heads.
- LAWYERS’ COMMITTEE FOR BETTER HOUSING, NO TIME FOR JUSTICE: A STUDY OF CHICAGO’S EVICTION COURT (2003), available at http://lcbh.org/sites/default/files/resources/2003-lcbh-chicago-eviction- court-study.pdf
- The Justice Gap: Corporate Lawyers are Making Record Revenues, But Legal Aid is in Crisis, HUFFINGTON POST (Jul. 7, 2015), available at http://www.huffingtonpost.com/susan-beck/legal-aid-funding_b_7744964.html.
- Mathew Desmond, Tipping the Scales in Housing Court, N.Y. TIMES (Jun. 29, 2012), http://www.nytimes.com/2012/11/30/opinion/tipping-the-scales-in-housing-court.html.
- Boston Bar Association Task Force, The Importance of Representation in Eviction Cases and Homelessness Prevention 2 (2012), available at http://www.bostonbar.org/docs/default-document-library/bba-crtc-final-3-1-12.pdf.
Saturday, September 5, 2015
The death penalty is in retreat. Three recent legal developments have shaken the foundations of modern death penalty jurisprudence, established over forty years ago.
On June 29, 2015, in Glossip v. Gross, Justice Breyer, joined by Justice Ginsburg, argued in dissent that it is “highly likely that the death penalty violates the Eighth Amendment,” and gave a number of reasons to support his tentative conclusion, including innocence, arbitrariness, delay, and disuse.
Six weeks later, the Connecticut Supreme Court handed down a sweeping decision in State v. Santiago, which ruled Connecticut’s 400-year-old death penalty cruel and unusual in violation of the state’s constitution, citing many of the same reasons as Justice Breyer. Yesterday evening, Connecticut prosecutors filed a motion to reargue the merits of the Connecticut Supreme Court’s death penalty decision in Santiago.
This past Monday, August 31, 2015, a three-judge panel of the Ninth Circuit heard argument in Jones v. Davis, the case in which the U.S. District Court for the Central District of California declared California’s imposition of the death penalty “arbitrary” and without legitimate penological purpose in violation of the Eighth Amendment based on the extraordinary delay between sentencing and execution in California.
This is precisely the conversation we ought to be having over the death penalty. Does it kill innocent people? Is it hopelessly arbitrary and even downright racist? Has the death penalty fallen into such disuse—where life waiting for death, not death itself, is the penalty—that we need to take it off life-support?
Time will tell. When these important questions come before the U.S. Supreme Court, we should remember well the words of Justice Anthony Kennedy in Hall v. Florida last year: “The Eighth Amendment’s protection of dignity reflects the Nation we have been, the Nation we are, and the Nation we aspire to be.” What Nation do we aspire to be? That turns out to be the most important question of all, and I think Justice Kennedy knows the answer. I hope it’s the right one.