Legislation Law Prof Blog

REGISTRATION OPEN FOR CENTRAL STATES LAW SCHOOLS ASSOCIATION CONFERENCE

REGISTRATION OPEN FOR CENTRAL STATES LAW SCHOOLS ASSOCIATION CONFERENCE

Registration is now open for the Central States Law Schools Association 2016 Scholarship Conference, which will be held on Friday, September 23 and Saturday, September 24 at the University of North Dakota School of Law in Grand Forks, ND. We invite law faculty from across the country to submit proposals to present papers or works in progress.

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 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. 

Please click here to register. The deadline for registration is September 2, 2016.  

Hotel rooms are now available for pre-booking. The conference hotel is the Hilton Garden Inn in Grand Forks. The hotel phone number is (701) 775-6000. When booking, identify yourself as part of the “UND School of Law” block to receive a daily rate of $89. Please note that conference participants are responsible for all of their own travel expenses including hotel accommodations.

For more information about CSLSA and the 2016 Annual Conference please subscribe to our blog.
           
We look forward to seeing you in Grand Forks!

Sincerely,

The 2016 CSLSA Board
For more information about CSLSA, visit our website at http://cslsa.us/ or contact a board member.

SAVE THE DATE: Central States Law Schools Scholarship Conference

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.

Going to AALS? Check out the AALS Legislation Section Programs!

If you are attending the AALS meeting in NYC this January, please consider the following announcement about the AALS Legislation Section programs that will occur at AALS! -- Colleagues- Just a quick note on behalf of the Legislation section to say that we hope you will join us for two terrific programs at AALS in January: Senator Chuck Schumer and Second Circuit Chief Judge Bob Katzmann will be the featured speakers at our main section meeting, on Friday, Jan. 8, from 130-315pm, where they will discuss the modern Congress-Court relationship, and then we have our first "New Voices in Legislation" program, Saturday, Jan. 9, from 330-515 (papers by Kirsten Carlson, Ryan Doerfler, Kati Kovacs, Magge McKinley, Bijal Shah and Evan Zoldan-- commentating by Richard Briffault, Bill Buzbee, RonNell Jones, Victoria Nourse, Larry Solan and Peter Strauss). For more information, please contact Abbe R. Gluck Professor of Law and Faculty Director, Solomon Center for Health Law and Policy Yale Law School (203) 432-6703 [email protected]

The Governors' Anti-Refugee Gambit

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.

A Check-up on Health and Hunger

        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.

 

Sources: 

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) 

Interested in Statutory Drafting? Don't Miss This Conference!

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 protected] 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.

New York Proposes Right to Counsel in Housing Court

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. 

Los Angeles’ $100 Million Promise to Address Homelessness

    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.

Hallmark Housing Victory in Chicago

    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.

1. 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.
2. 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.
3. The End of Cabrini-Green, TIME, http://content.time.com/time/photogallery/0,29307,2034317,00.html (last visited October 1, 2015).
4. 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).
5. 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/.

A Lethal Week in Review

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.

Transparency Leads to Pay Compression Among City Managers -- But Also Increased Turnover

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.

HUD Funding Criteria Signal Increasing Federal Rejection of Laws that Punish Homeless People

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.

U.S. Census: The Poor Are Staying Poor

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).

Nuisance Ordinances and the Progress in Illinois

         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.

 

Sources:

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=

 

Death Penalty Down

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.

The Voting Rights Act, in cases and in comics

From the New York Times, an interesting Voting Rights Act decision out of the Fifth Circuit:

“A federal appeals panel ruled Wednesday that a strict voter identification law in Texas discriminated against blacks and Hispanics and violated the Voting Rights Act of 1965 — a decision that election experts called an important step toward defining the reach of the landmark law. . . While the federal act still bans laws that suppress minority voting, it has been uncertain exactly what kinds of measures cross the legal line since [the Supreme Court’s ruling in Shelby County v. Holder (2013)].  The Texas ID law is one of the strictest of its kind in the country. It requires voters to bring a government-issued photo ID to the polls. Accepted forms of identification include a driver’s license, a United States passport, a concealed-handgun license and an election identification certificate issued by the State Department of Public Safety.”

And for the young, the young-at-heart, and everyone else with an interest in the grassroots advocacy that led to passage of the Voting Rights Act, check out Books One (2013) and Two (2015)of Congressman John Lewis’ graphic novel trilogy about the U.S. civil rights movement, March.

New Scholarship on Legislative and Regulatory Issues Related to Mortgage Foreclosures

As part of the Legislation Law Prof Blog effort to spotlight relevant new scholarship, today we are featuring an article submitted by Professor Christopher Odinet concerning legislative and regulatory issues related to the mortgage foreclosure crisis.  An abstract and link to his article follows.  (If you have a compelling piece of scholarship of interest to our readers, please contact one of the blog editors for consideration.) 

Abstract

During the housing crisis banks were confronted with a previously unknown number mortgage foreclosures, and even as the height of the crisis has passed lenders are still dealing with a tremendous backlog. Overtime lenders have increasingly engaged third party contractors to assist them in managing these assets. These property management companies — with supposed expertise in the management and preservation of real estate — have taken charge of a large swathe of distressed properties in order to ensure that, during the post-default and pre-foreclosure phases, the property is being adequately preserved and maintained. But in mid-2013 a flurry of articles began cropping up in newspapers and media outlets across the country recounting stories of people who had fallen behind on their mortgage payments returning home one day to find that all of their belongings had been taken and their homes heavily damaged. These homeowners soon discovered that it was not a random thief that was the culprit, but rather property management contractors hired by the homeowners' mortgage servicer.

The issues arising from these practices have become so pervasive that lawsuits have been filed in over 30 states, and legal aid organizations in California, Florida, Michigan, Nevada, and New York report that complaints against lender-engaged property managements firms number among their top grievances. This Article analyzes lender-engaged property management firms and these break-in foreclosure activities. In doing so, the paper points out the legislative and regulatory failures related to the regulation of third party contractors by lenders, particularly in the Dodd-Frank Act, and the need to strengthen state-level unfair trade practice legislation to account for these abuses.

Link to article:  here

Miller v. Alabama Roundup 2015: Three More States Eliminate LWOP for Juveniles

From Tracy L. Denholtz, a fellow in the Juvenile Sentencing Project at Quinnipiac University School of Law:

In 2012, the U.S. Supreme Court held in Miller v. Alabama that mandatory life-without-parole sentences for juveniles violate the Eighth Amendment. Following Miller, a number of states have eliminated life without parole (“LWOP”) as a sentencing option for juveniles or have provided mechanisms for juveniles serving LWOP sentences to petition courts for resentencing. The 2015 legislative session resulted in three new states abolishing this extreme sentencing practice for juveniles:

• Connecticut passed a bill that retroactively eliminates LWOP as a sentencing option for all juveniles. Governor Malloy signed SB 796 on June 23, 2015. Under the new law, juveniles may no longer be convicted of capital felony, murder with special circumstances, or arson murder—offenses that carry mandatory LWOP sentences. Instead, the most serious offense for juveniles is now murder—which carries a minimum sentence of 25 years (with parole eligibility after 15 years) and a maximum sentence of 60 years (with parole eligibility after 30 years). The new law, which applies to juveniles currently serving sentences, provides that juveniles are eligible for parole after serving 60% of their sentence, or 12 years, whichever is greater. Those serving more than 50 years are eligible for parole after serving 30 years. Thus, the new law ensures parole hearings for all juveniles after serving no more than 30 years. The law also provides specific youth-related factors for the parole board to consider. Finally, the new law requires judges to consider the hallmark features of youth and the scientific differences between juveniles and adults when sentencing a juvenile in adult court for a serious crime. This new law will affect approximately 200 individuals currently serving sentences in Connecticut for offenses committed as juveniles. Students in Quinnipiac University School of Law’s Civil Justice Clinic testified before the legislature in support of the bill.  
• Nevada passed a bill that eliminates LWOP for juveniles. Governor Sandoval signed AB 267 into law on May 26, 2015. The law provides that going forward, the maximum sentence available for juveniles sentenced in adult court is life with the possibility of parole. The law also provides retroactive parole eligibility rules for all juveniles (except those convicted of offenses that resulted in the death of two or more victims). Juveniles convicted of non-homicide offenses are parole eligible after 15 years, and juveniles convicted of homicide offenses involving one victim are parole eligible after 20 years. Additionally, the law requires judges to consider the differences between juveniles and adults when sentencing a juvenile in adult court.
• Vermont passed a bill that eliminates sentences of LWOP for individuals who were under 18 at the time of the offense(s). Governor Shumlin signed H. 62 into law on May 14, 2015.

Connecticut, Nevada, and Vermont are the newest states to join a number of others that have eliminated juvenile LWOP sentences following Miller. In 2014, Hawaii, Massachusetts, and West Virginia enacted statutes abolishing juvenile LWOP. (In 2013, the Massachusetts Supreme Judicial Court held that juvenile LWOP violates the state constitution). In 2013, Delaware, Texas, and Wyoming passed laws abolishing this sentencing practice. Thus, since Miller was decided in 2012, a total of nine states have eliminated LWOP as a sentencing option for juveniles. With hope, this trend will continue.

Is a win for direct democracy necessarily a loss for legislatures – or a win for the people?

This post was written by Nate Ela, of COWS

If you were following news earlier this week about the end of the Supreme Court term, you probably read that Arizona State Legislature v. Arizona Independent Redistricting Commission was a win for direct democracy. The Court held that an independent redistricting commission established in 2000 as the result of a voter initiative did not violate the elections clause (U.S. Const. art. I, § 4, cl. 1.: “[t]he Times, Places, and Manner of holding Elections for Senators and Representatives shall be prescribed in each state by the Legislature thereof ....”). To get to this conclusion, Justice Ginsburg reasoned that the authors of the constitution, as proponents of popular sovereignty, would have understood “legislature” to have included the people themselves as a law-making body.

Many commentators hailed this as a big win for direct democracy. Richard Pildes, in a New York Times Op-Ed, noted that while it is not a panacea, “direct democracy remains an important means of policing the inevitable temptations those in power have to entrench themselves more securely in power.” Ciara Torres-Spelliscy noted approvingly on the Brennan Center blog that the ruling “embraces not only the specific voters’ choice in Arizona, but also it supports the initiative and referendum process in other states as well.”

A few commentators decried the win for direct democracy. “Leaving policy to the passions of the people is dangerous,” warned the opinions editor of the Arizona Republic. “A representative republic excels over direct democracy. Arizona's early leaders where too hard-headed to understand that.”

If direct democracy won, who lost? Lisa Soronen, the executive director of the State and Local Legal Center, suggested on the NCSL blog that legislatures did. NCSL had filed an amicus brief in support of the Arizona Legislature, arguing that Arizona was one of only two states where legislatures had been completely divested of redistricting authority, and that the Constitution requires state legislatures to be involved substantively in the redistricting process. The majority did not find those arguments compelling.

Yet if Arizona allows legislatures to be cut entirely out of the redistricting process, what are the potential stakes? Several recent studies have concluded that non-legislative redistricting might not actually be much of a loss for partisan or incumbent legislators -- or much of a win for people who'd hope to see less political polarization. One study found that “bipartisan districts promote member moderation,” but “no evidence that commissions have distinct effects on districts or members as compared to districts drawn by legislatures.” Another found that non-legislative redistricting hasn’t increased competitiveness in elections, either by “reduc[ing] the typical margins of incumbents’ victories or increase[ing] the likelihood that incumbents would lose.” And contrary to what one might expect, one even concluded that “states with nonpartisan redistricting methods saw their legislatures become more polarized, while those states with partisan methods saw slight de-polarization, on average” (although the data were only from 1999 to 2005).

So it may be that Arizona was a win for direct democracy won and a loss for legislatures, but a wash for We the People. This could explain why some reformers, rather than hurrying to suggest replicating Arizona’s system in other states, took the opportunity instead to propose ideas for more effective reforms. FairVote, for example, responded to Arizona by calling for a new system of electing members to Congress from multi-winner districts, using ranked-choice voting. (They have a white paper on how that could work here.)

It is hard, of course, to find fault with a big win for direct democracy – especially when it comes from the current Supreme Court. But as we celebrate another Independence Day, we shouldn't stop envisioning and experimenting with new ways of making this a more perfect union. There’s plenty left to do.

King v. Burwell: Upcoming Ruling

Over the next month, roughly 6.4 million people may be losing subsidies for health insurance. The United States Supreme Court has heard oral arguments for the King v. Burwell lawsuit and a ruling is expected sometime in late June or early July.

King v. Burwell is a federal lawsuit questioning the language used in the Patient Protection and Affordable Care Act (ACA). The ACA allows individuals to access health insurance on American Health Benefit Exchanges. Currently, the legislation allows low and middle income individuals who purchase health insurance both at a state or a federal level to access a federal tax credit. However King v. Burwell argues that the language used in the ACA allows tax credits for individuals who purchase insurance on the state-run exchanges, but makes no provision for subsidies in federally established exchanges.

Presently, 34 states use the federal exchange, amounting to about 6.4 million people. Three other states, Oregon, Nevada and New Mexico, have unsuccessfully attempted to build their own exchanges and now depend on the federal government as well. If the Supreme Court rules against subsidies in the federal marketplace, then those 6.4 million people will lose the subsidies that help them pay for health insurance.

If the court rules for the plaintiffs, individuals receiving subsidies in the federal marketplace would not be the only ones affected. As a result of both an increasingly expensive health insurance market and millions of people leaving said market, the insurance pool could get smaller and sicker. Some economists have estimated that prices in the directly affected states could rise by roughly one third.

For more information on the oral arguments please see this article in the SCOTUS blog and for a commentary on the fate of ACA subsidies in the Supreme Court please see this article in the SCOTUS blog.

More information on the possible consequences can be found in this article in the The New York Times.