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robertmshoemaker · 2 years

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Stanford Law Professors on Law and Race After George Floyds Death

George Floyd was killed during a police stop on May 25, 2020 after Officer Derek Chauvin kept his knee on Floyd’s neck despite protests from a growing crowd of onlookers—sparking nation-wide protests and pressure for police reform. Since then, Chauvin and three other police officers involved in the stop have been convicted of multiple charges. As we mark the two-year anniversary of Floyd’s death, we look at how the law, policing, and racism in the U.S. has changed with Stanford Law Professors Ralph Richard Banks, faculty director of the Stanford Center for Racial Justice, and David Sklansky, faculty co-director, Stanford Criminal Justice Center.

How should we think about the killing of George Floyd and the protests that followed?

Stanford Law Professor Ralph Richard Banks

Banks: The killing of George Floyd prompted a nationwide reckoning with racism unlike any in the past half century. It drew attention around the world and soon encompassed issues far beyond the domain of policing.

Did the killing of George Floyd highlight problems with policing or broader problems in American society?

Banks: All of the above. There are lots of different, though related, problems we might connect to the killing of George Floyd. We begin, of course, with the misbehavior of individual police officers. But the problems are not limited to the proverbial few bad apples. The training that police officers receive (or perhaps more accurately don’t receive) and the rules, both statutory and constitutional, that govern their behavior are in need of reform. These are big challenges due both to on-going disagreement about optimal training and rules and also because of how radically decentralized policing is in American society. With some 18,000 different law enforcement agencies in the United States, attaining widespread adoption of the right policies and practices is no easy matter.

Too, we cannot ignore the fact that policing operates within a society with stark economic inequalities and racial segregation. These features of society limit opportunities for education and employment for African Americans in particular, and contribute to myriad racial disparities, including with respect to crime. Finally, we are a society that is awash in guns. I find it difficult to imagine creating the sort of safe communities we want so long as such weapons are so plentiful.

Stanford Law Professor David Alan Sklansky

One year ago, ex‐Minneapolis police officer Derek Chauvin was convicted of murdering George Floyd by asphyxiation. How rare is that—a conviction of a police officer in a situation like this one?

Sklansky: It’s very unusual for police officers to be charged with murder, let alone convicted. It’s not quite as rare as it used to be: more officers were charged with murder or manslaughter across the country in 2021 than in any previous year. But we’re still talking about only a small fraction of the more than 1000 people killed by the police each year.

In February, Thomas Lane, J. Alexander Kueng, and Tou Thao, the three ex‐Minneapolis police officers who watched as former officer Derek Chauvin murdered George Floyd by asphyxiation were also convicted. How significant were those verdicts, given than Chauvin had already been found guilty?

Sklansky: Lane, Kueng, and Thao were convicted in federal court of violating Floyd’s civil rights by failing to intervene to stop Chauvin. In some ways, this verdict was even more significant than Chauvin’s conviction. It is extraordinarily rare for officers to be charged with crimes for inaction, as opposed to action. The fact that these three officers were convicted for standing by while Chauvin murdered George Floyd sends a strong message to officers that they have a duty to intervene if they see another officer using unjustified force, and that failure to do so can send them to prison. And no one is better positioned to stop a police officer from using unjustified force than his or her fellow officers.

Do these cases have anything to do with “qualified immunity” for police officers?

Sklansky: These were criminal prosecutions, and qualified immunity is a doctrine applied in civil cases, when police officers are sued for violating constitutional rights. The doctrine, which the Supreme Court invented, protects police officers from civil liability for constitutional violations unless the rules they broke were “clearly established.” In practice this protects officers from civil liability for their misconduct unless a court previously found that virtually identical conduct violated the federal Constitution—which is rarely the case, given the almost infinite ways in which the situations that officers confront can vary from each other.

What kind of reforms might be needed in policing?

Banks: There has been a lot of talk about defunding the police, as opposed to merely reforming the police. My own view is that we should ask police to DO LESS; there’s no reason for example why the primary response to a person with a mental health episode is someone with a gun. Hopefully the trend toward non-law enforcement response to non-violent incidents will continue. But recognizing the need for other sorts of professionals doesn’t mean we should try to eliminate police officers, or even dramatically cut their funding. If we want officers to be better trained, for example, that might require more funding, not less.

Sklansky: There are lots of steps that can and should be taken. There’s a strong case—increasingly embraced across party lines—for rolling back or eliminating qualified immunity. The same can be said for bright-line prohibitions on particular police tactics that have caused a disproportionate number of deaths and are rarely if ever justified, and these definitely include chokeholds and other constraints that make breathing difficult. There is also much to be said for having police killings investigated and prosecuted by an agency other than the local district attorney’s office, which works day in and day out with local police departments. Part of what has made the prosecutions arising out of George Floyd’s killing effective and credible is that they have been handled by the Minnesota Attorney General’s Office and the U.S. Department of Justice. Most criminal cases arising out police killings, though, are still handled by local prosecutors.

Many police stops that spiral into violence shouldn’t have happened the first place: we use police for lots of things that unarmed civilians might be able to handle better and with less risk. We should stop encouraging officers to aggressively stop pedestrians and pull over cars on hunches and pretexts; the encounters too often wind up targeting Black Americans and other marginalized racial groups, and they turn often turn violent. And for the stops that are justified, we should train officers in de-escalation tactics and require those tactics to be used.

Finally, a lot of what drives violence between police and the public has to do with things outside of policing: the vast number of guns in the United States, and our failure to provide adequate mental health services. We’ve turned the police and the prisons into our de facto mental health system, and they were never designed for that. Tackling these problems would also help us tackle the problem of police violence.

What are the prospects for any of these reforms being adopted?

Sklansky: It’s hard to say, because the politics around policing and criminal justice today—like the politics around everything else—is so polarized and toxic. But the kinds of reforms I’ve just mentioned with regard to law enforcement are consistently endorsed by a majority of Americans across lines of race, party, and ideology. So I do think there is hope for significant progress on police reform. Even with regard to guns, polls consistently show broad public support for measures such as improving background checks and banning assault-style weapons and high-capacity ammunition magazines. There is room for forging consensus across lines of race, party, and ideology on approaches to the problem of police violence. But it will take work.

Banks: I think of myself as an optimistic person. But when I think of the many problems that coalesce in the killing of George Floyd, I find myself being less optimistic, though still hopeful. It took years to realize that one can detach hope from optimism. A lack of optimism does not mean a death of hope.

Two years ago, protests seemed to be everywhere, and people from all walks of life were realizing the extent to which racism can imperil our democracy and block us from being the nation we want and need to be.

But now, I don’t feel that same type of energy. I wonder, and worry, about our repeating the mistakes we’ve made before. During the civil rights era, our nation committed itself to undoing Jim Crow segregation and the racial caste system. The Supreme Court issued unprecedented rulings and Congress passed unprecedented legislation, but after about a decade we grew tired of battling racism and moved on.

That relinquishment of our racial justice commitment reprised what happened a century earlier when, after the abolition of slavery and the adoption of three Amendments to the Constitution, Congress passed landmark legislation and undertook reconstruction efforts to make freedom real, and then abandoned them after about a decade.

So here we are a half century after the civil rights era, and, by some measures, racial disparities remain as great now as they were then. The black/white wealth gap, for example, is no smaller now than in 1970.

What we need is to realize is that the problems that racism has bequeathed us are like less an illness that the proper medicine will remedy, and more like a chronic ailment that must be continuously managed. The stakes are not only about preventing more George Floyds; they are about the viability of our democratic experiment.

from Legal Aggregate – Stanford Law School https://law.stanford.edu/2022/05/24/stanford-law-professors-on-law-and-race-after-george-floyds-death/

Via https://bobnitido.wordpress.com/2022/05/25/stanford-law-professors-on-law-and-race-after-george-floyds-death/

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robertmshoemaker · 2 years

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Rethinking the Regulation of Legal Services: What States Are Trying to Move the Needle on Access to Justice

The Stanford Center on the Legal Profession has been front and center in state-level efforts to rethink how legal services are regulated to widen access to justice. Since 2020, both Utah and Arizona have dramatically revised the rules around legal practice ownership and unauthorized practice of law. Several other states are considering reforms, including California, Michigan, and North Carolina, among others.

On May 6, 2022, the Judicial Conference of the Fifth Circuit commissioned a panel on regulatory reform titled “Regulatory Reform of Legal Services: Who, What, When, Where, and Why,” featuring Chief Justice Bridget McCormack of the Michigan Supreme Court, Justice Deno Himonas (Ret.) of the Utah Supreme Court, and Lucy Ricca, Director for Policy and Programs at the Center on the Legal Profession.

SLS Professor David Freeman Engstrom

Below, Center Co-Director and LSVF Professor in Law, David Freeman Engstrom, follows up with the panelists to discuss the panel’s reception at the Fifth Circuit.

Most lawyers know that many Americans cannot afford a lawyer when they need one. Most also know that ethical rules guide and restrict their practice of law. But many lawyers do not know that the two are connected. Deno, what’s the connection?

Himonas: You’re right. In discussing regulatory reform before an audience like the Fifth Circuit Conference, our first task is to make that connection—to show how the justice gap is created, in significant part, by the rules restricting how legal services can be financed and run and who may provide them.

When I present on the justice gap, I never assume that my audience is aware of the size and scope of the problem. Those of us who have spent time in the trenches know that we have a crisis in the United States when it comes to the access and affordability of our civil justice system. Most others do not.

Data show that our civil justice system has become so expensive and inaccessible that it is failing the American people. Data suggest that 62 percent of American households report at least one legal problem each year, with a household average of three. Given that the average lawyer charges $300 per hour, it is no wonder that most Americans don’t engage with the legal system at all.

Importantly, too, it isn’t just the poorest Americans who cannot afford our system. It’s nearly everyone. So, it’s no wonder that when, in Utah, we looked at the largest judicial district in the state, we discovered that in 9 percent of filed cases one or both parties were unrepresented. In fact, in the family law arena in Utah, one or both parties go unrepresented in over 60 percent of the cases, in debt collect approximately 99 percent of respondents are unrepresented, and in landlord/tenant, approximately 98 percent are unrepresented.

So back to how this yawning gap relates to the regulation of lawyers and legal practice. The reasons for the gap are easy to see. We developed a complex legal system, then injected a requirement that only lawyers can provide the advice necessary to navigate the system. We further limited the business of law by saying only lawyers can own law firms. The impact has been terrible for citizens with legal needs.

Justice Deno Himonas

What is to be done? And why not just increase legal aid funding or impose mandatory pro bono to close the gap?

Himonas: Some, I know, argue that we should instead increase our pro bono commitments and funding of Legal Aid. These are laudable goals. But the reality is they will not get us there. The most recent estimate that I’ve seen suggests that every lawyer would have to perform 900 hours of pro bono service—meaning every lawyer in the U.S. would have to donate upwards of half their year—in order to provide even an hour of legal counsel to each American for each civil justice need.

One of the innovations we launched in Utah was licensing specially-trained non-lawyers to provide legal advice in the areas of family law, debt collection, and landlord/tenant. These are three areas where the justice gap is widest.

In addition to licensing specially-trained non-lawyers to provide certain legal services, Utah (and also Arizona) has also moved to permit non-lawyer ownership and investment in firms. Why take that tack? How is that supposed to expand access?

Himonas: Much of the theory on this has been wonderfully articulated by Professor Deborah Rhode and Professor Gillian Hadfield (SLS ‘88). As they explain, Model Rule 5.4 keeps lawyers from sharing revenue with nonlawyers—and that prohibition has made the provision of legal service very expensive. Worse, the ban on fee-sharing has cut the legal industry off from the innovation-fueling benefits of modern capitalism, including most forms of capital investment and equity-based compensation.

The Utah Court focused on Rule 5.4 in addition to the unauthorized practice of law because it wanted to create the opportunity for new business structures, with both lawyers and non-lawyers owning equity, and new legal companies funded to build new service models and reach new consumers. It will take time, likely many years, before we see robust one-to-many and technology-driven solutions that help low-and moderate-income people and small businesses. But that doesn’t mean that we should not do it.

Lucy Ricca

Arizona and Utah have taken pretty different approaches to regulatory reform. Can you give us a snapshot of how each state is going about it?

Ricca: Arizona has taken a centralized and prescriptive approach to regulatory reform, creating new categories of providers and setting up definitions and rules and requirements for them. The Court repealed Rule 5.4 entirely and established a licensing system for “Alternative Business Structures,” or ABS. ABS are legal practice entities with non-lawyer ownership or management, but only lawyers practice law. They must comply with numerous requirements to participate, including having an Arizona lawyer in a compliance officer role. Some 20 ABS have entered the Arizona system. In parallel, Arizona also created a Licensed Paraprofessional (“LP”) role—in effect, “nurse practitioners” for law. There are currently 17 LPs practicing in Arizona.

Utah’s project is different. First, Utah is pursuing multi-pronged reforms to expand access to justice, including online dispute resolution for small claims and paraprofessional licensing. Most innovative, in my opinion, is the regulatory sandbox—an experimental policy space within which certain rules can be relaxed to permit innovative legal services delivery models to be piloted and tested. In Utah, the sandbox creates room for entities owned by non-lawyer investors and managers and entities in which non-lawyers or technology provide legal services, including legal advice.

What do we know about the impacts of these reforms in Utah and Arizona so far? Are we seeing new services and are they reaching new consumers?

Ricca: It’s still early. The sandbox launched in mid-2020 in Utah and Arizona started licensing ABS in early 2021. So far, many of the entities are lawyers partnering with non-lawyers in one form or another—for instance, a lawyer partnering with a tax advisor or a business consultant. But we are seeing some interesting models from larger-scale entities: LegalZoom is an Arizona ABS, and Rocket Lawyer is in the Utah sandbox. Both offer robust software platforms that help consumers assemble and complete legal documents. Both are hiring lawyers as employees to assist their consumers with discrete legal questions or issues beyond the capacity of the software. Given the numbers of consumers each company serves (in the millions), you can see some really impactful possibilities here.

Utah is collecting data on the services provided in the sandbox, and the data is encouraging. It shows that almost 20,000 services have been furnished to more than 10,000 discrete consumers. Furthermore, services are being provided across a range of legal service areas (the top areas at the moment are veterans’ benefits, business services, personal injury, end of life, and family issues). We have seen services touch 15 of Utah’s 17 legal deserts (areas where legal help is scarce). Most importantly, we have seen all this with very few consumer complaints. Only four complaints alleging legal harm have come in; all have been remediated to the sandbox regulator’s satisfaction.

Chief Justice Bridget McCormack

Chief Justice McCormack, Michigan has not yet moved on regulatory reform. But you are clearly engaged and considering your path. What are the next steps?

McCormack: Michigan, like every other state, has struggled with an enormous civil justice gap for generations. While many well-meaning lawyers and judges have worked on responses to the problem, most of that work has been targeted and incremental.

Further, the justice gap is a practical problem—moms unable to get child support or veterans unable to get benefits. But it’s also more than that. The rule of law is only a set of ideas that depends on public confidence. If most Americans are unable to resolve their justice problems because they don’t have the resources or the information to do so, the public’s confidence in the rule of law will suffer.

That is why in 2019 we launched a strategic planning process to respond to this problem. With the support of the National Center for State Courts, we set up a Justice for All taskforce to inventory the gaps in Michigan’s civil justice infrastructure and come up with innovative ways to address them. One innovative path forward is clearly regulatory reform.

I know you’ve been engaged in thinking about the reform of legal education as well, and it seems clear that regulatory reform and legal education reform are interrelated.

McCormack: Regulatory reform is one piece of a solution to the complex access to justice problem. There are other system stakeholders who will need to be part of a permanent solution: the profession, the legal education system, and its accreditor. And I see promising signs of change across stakeholder groups. Change won’t come easily. But I do believe change will come. And the legal profession—and the American people—will be better for it.

from Legal Aggregate – Stanford Law School https://law.stanford.edu/2022/05/18/rethinking-the-regulation-of-legal-services/

Via https://bobnitido.wordpress.com/2022/05/19/rethinking-the-regulation-of-legal-services-what-states-are-trying-to-move-the-needle-on-access-to-justice/

source https://bobnitido.weebly.com/blog/rethinking-the-regulation-of-legal-services-what-states-are-trying-to-move-the-needle-on-access-to-justice

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robertmshoemaker · 2 years

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Stanfords Shirin Sinnar on the Buffalo Shooting Hate Crimes and Domestic Terrorism

On Saturday, May 14 Americans heard news of yet another mass shooting—this one in Buffalo, New York, where ten people died and several more were injured. But this one is set apart from the many mass shootings that happen yearly in the U.S. by white nationalists. Rather than indiscriminately shooting, the 18-year-old suspect targeted a supermarket in a predominantly Black neighborhood. He allegedly wrote a White supremacist manifesto online, traveled about 200 miles to the store, and livestreamed the attack, according to authorities. This is part of a growing trend in the U.S. that includes the 2015 murder of worshippers at the historic Emanuel African Methodist Episcopal Church in Charleston, S.C. by a professed white supremist, the 2018 shooting at the Tree of Life Congregation Pittsburgh synagogue, the 2019 Walmart shooting targeting LatinX residents of El Paso, Texas, and the 2021 shooting in an Atlanta, Georgia spa targeting Asian Americans. Here, Professor Shirin Sinnar, author of “Hate Crimes, Terrorism, and the Framing of White Supremacist Violence” (California Law Review, Vol. 110, No 2, April 2022), discusses the scale of White supremacist violence in the U.S. and the rise of hate crimes.

It has been reported that the suspect at the Buffalo supermarket made racist remarks during the attack and to police after. The combination of hate and freely available guns is lethal. Has there been a measurable rise in hate crimes in the U.S.?

Stanford Law Professor Shirin Sinnar

The FBI Uniform Crime Reporting program issues annual national hate crime statistics, and its most recent data show that hate crimes have been rising nationally for over a decade. Other sources also report a rise in hate crimes, including a study of police data on hate crimes in the largest U.S. cities that found a substantial increase in anti-Asian hate crimes. Most data sources on hate crimes have serious flaws, however. The FBI relies on voluntary reporting from law enforcement agencies around the country, and an overwhelming majority of law enforcement agencies fail to report any hate crimes in their jurisdiction. These sources almost certainly underreport real numbers for other reasons including the reluctance of many victims to report incidents to the police.

Do White nationalist attacks seem to be by individuals acting alone? Or are they part of the organized White Nationalists, such as the Proud Boys who showed up at the Capitol on January 6? Is there a connection?

Security agencies often describe White supremacist violence as perpetrated primarily by lone actors. But scholars point to connections across incidents and organizations. Historian Kathleen Belew describes individual incidents as part of a “white power movement” that united the Klan, neo-Nazis, right-wing militias, and others beginning in the 1970s. Even when those committing violence do not coordinate with one another, they often draw on a set of common ideas disseminated through internet networks, video games, and popular culture. That idea includes the “great replacement theory” that has now shown up in the manifesto of the Buffalo shooter and in other mass shootings, including the Christchurch New Zealand mosque massacre and the 2019 shooting targeting Latinx shoppers in El Paso, Texas. The idea that white people are in danger of demographic replacement by immigrants and other non-white populations, and that “elites” are driving that replacement, is increasingly common in “mainstream” discourse, such as Fox host Tucker Carlson’s highly popular cable news show. Racial resentment appears to be fueling political mobilization and violence on the right beyond mass shootings. For example, political scientist Robert Pape’s study of over 700 people charged with storming the Capitol on January 6, 2021, concluded that participants came from counties where the white population share is declining fastest.

Is there a connection to political discourse and the language our political leaders use? What can be done to counter this rise in hate crimes?

A growing number of empirical studies substantiate the idea that high-profile political speech and government policies towards racial minority groups can influence the levels of hate crimes committed against those groups. For instance, studies have shown an increase in hate crimes after political events, like the election of President Trump or the UK Brexit referendum, that change perceptions of social norms such as the acceptability of anti-immigrant views. But the relationship between government rhetoric or policies and hate crimes can be complicated: while exclusionary speech and policies can embolden people to commit hate crimes against those groups, perceptions of political gains by racial minority groups can also invite violent backlash.

We should be deeply concerned about the normalization of not only ideas like the “great replacement,” but also the willingness to use political violence in our culture. Recent polling of Americans suggest that one in three Americans think that political violence against the government can be justified, a greater share than reported in earlier polls over the last two decades.

All of this suggests the importance of addressing racist and other political violence in a holistic fashion. Beyond law enforcement responses, that means addressing inflammatory political and media rhetoric, online disinformation and hate speech, the easy availability of guns, white supremacy within certain state institutions, and our insufficient national reckoning with our history of racist violence and exclusion.

While reserving judgement on the motivation for Buffalo shooting until the investigation is completed, President Biden said that any “a racially motivated hate crime is abhorrent to the very fabric of this nation. Any act of domestic terrorism, including an act perpetrated in the name of a repugnant white nationalist ideology, is antithetical to everything we stand for in America.” What are the differences between a racially motivated hate crime and an act of domestic terrorism and does it matter for legal and policy responses?

The Buffalo shooting, from what we know, appears to meet common legal definitions of both a “hate crime” and “terrorism”: it is both a crime targeting a particular racial group and an act of violence with a political and ideological motive. As I have argued in my academic work, the “hate crimes” and “terrorism” frames emerged from separate historical roots and continue to diverge in how they conceptualize and address political violence. Yet, despite their differences, neither of these frames is ideal. The hate crimes frame addresses white supremacist violence as a problem of individual perpetrators, to be countered by dubious after-the-fact remedies such as sentence enhancements. But applying the terrorism frame risks expanding and entrenching the problems of U.S. counterterrorism, such as the limited accountability of the national security apparatus, abusive “preemptive” law enforcement and surveillance practices, and the targeting of subordinated communities. In my view, countering white supremacist violence should begin with a revisiting of both the hate crimes and terrorism frames that dominate our law and culture.

Shirin Sinnar is a Professor of Law and the John A. Wilson Faculty Scholar at Stanford Law School. Her scholarship focuses on the legal treatment of political violence, the procedural dimensions of civil rights litigation, and the role of institutions in protecting individual rights and democratic values in the national security context.

from Legal Aggregate – Stanford Law School https://law.stanford.edu/2022/05/16/stanfords-shirin-sinnar-on-the-buffalo-shooting-hate-crimes-and-domestic-terrorism/

Via https://bobnitido.wordpress.com/2022/05/17/stanfords-shirin-sinnar-on-the-buffalo-shooting-hate-crimes-and-domestic-terrorism/

source https://bobnitido.weebly.com/blog/stanfords-shirin-sinnar-on-the-buffalo-shooting-hate-crimes-and-domestic-terrorism

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robertmshoemaker · 2 years

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Companies Are Facing More Social Pitfalls Than Ever. Whats a Forward-Thinking Board to Do?

(Originally published by Barron’s on May 9, 2022)

The leak of the draft Supreme Court opinion that purports to overturn Roe v. Wade has thrown corporations into the fray of one of the most polarizing issues in American society.

Expectations on corporations and CEOs to pick a side are rising. Just this week Amazon and Citigroup announced plans to cover travel expenses for employee medical treatments including abortion. Recent events have similarly put corporations on the spot to speak out. The Russian invasion of Ukraine brought corporate condemnation and the severing of business ties in Russia even beyond the requirements of government sanctions. The events of Jan. 6, 2021 at the U.S. Capitol resulted in several corporations announcing they would be discontinuing or reviewing their political donations activity.

(Continue reading the opinion essay on Barron’s page here.)

from Legal Aggregate – Stanford Law School https://law.stanford.edu/2022/05/09/companies-are-facing-more-social-pitfalls-than-ever-whats-a-forward-thinking-board-to-do/

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robertmshoemaker · 2 years

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Motorcycle Accidents What To Do After The Wreck Help In Colorado

Here are some sombering statistics about motorcycle accidents in the US:

Some 8.32 million motorcycles were registered with the DMV in 2020

Most motorcycle accidents involve a collision with a car

Two-thirds of the accidents are caused by the oth…

source https://www.helpincolorado.com/blog/motorcycle-accidents-information-from-a-personal-injury-law-office/

Via https://bobnitido.wordpress.com/2022/05/09/motorcycle-accidents-what-to-do-after-the-wreck-help-in-colorado/

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robertmshoemaker · 2 years

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ISPs Drop Legal Fight Against California Net Neutrality Law

(Originally published by The Stanford Center for Internet and Society on May 4, 2022)

On Wednesday May 4 2020, the cable, phone, and wireless companies suing California over its historic net neutrality law withdrew their lawsuit after three consecutive losses in federal courts in California.

Statement from Professor Barbara van Schewick (professor of law at Stanford University and the director of Stanford Law School’s Center for Internet and Society). Van Schewick testified at every hearing on the bill, and filed two amicus briefs on the key issues in the case.

“Today is a historic win for Californians and the open internet.

After losing three times in federal court, the ISPs have finally realized that they can’t overturn California’s net neutrality law and that they should just stop trying.

Professor Barbara van Schewick

As I’ve said from the beginning, California’s net neutrality law is based on a solid legal foundation. When the FCC abandoned net neutrality in 2017, it lost the power to stop the states from stepping in to protect their residents.

Thanks to the hard work of California’s Attorney General and the wide coalition that helped defend the law in court, the ISPs gave up instead of fighting this to the Supreme Court.

While California has been free to enforce its net neutrality law for over a year, today removes any doubt that the state has the right to protect its economy and democratic discourse from the whims of large phone and cable companies.

Californians are protected by the best state net neutrality law in the country. Thanks to the law’s lead author, Senator Scott Wiener, who fought tenaciously on its behalf, California’s law restores all the crucial protections the Trump FCC abolished in 2017 and is a model bill for other states.”

Background on the Case

On Wednesday, May 4 2022, the trade associations for the nation’s largest wireless, phone, and cable companies that were suing to overturn California’s 2018 net neutrality law agreed to voluntarily dismiss their lawsuit, following three consecutive losses in federal court.

The lawsuit, now known as ACA Connects vs Bonta, was filed by the Trump Administration and ISP trade associations shortly after the bill was signed into law in September 2018. They claimed that California had no right to create its own net neutrality protections after the FCC abolished all net neutrality protections in 2017. The elimination of federal net neutrality upended two decades of FCC work by Democrats and Republicans to ensure an open and free internet free from meddling by the companies Americans pay to get online.

When the FCC revoked net neutrality, it simultaneously claimed that it lacked any authority to create net neutrality protections even if it wanted to but that it had the authority to tell states they couldn’t create their own protections.

California’s net neutrality law (SB 822), authored by Senator Scott Weiner, passed in 2018 with bipartisan support despite fierce opposition from AT&T, Verizon and Comcast. It remains the only state-level law in the country that restores all of the net neutrality protections that the FCC eliminated and is widely viewed as a model bill.

The law went into effect on January 1, 2019, but California agreed not to enforce the law until a challenge to the FCC’s repeal was heard in a D.C. federal court. That court narrowly upheld the FCC’s repeal of net neutrality, but said that the FCC lacked authority to issue a blanket ban on states passing their own protections.

The California case resumed in the summer of 2020, and had its first hearing in federal district court in February 2021. (The Justice Department, then under the Biden Administration, withdrew from the case weeks before that hearing.)

A short blog post explaining the key issues in the case

At the first hearing, Judge John Mendez of the US District Court for the Eastern District of California issued a surprise ruling from the bench, saying that the ISPs were unlikely to win the case and that California was free to start enforcing the law. Specifically, the judge agreed with Professor van Schewick’s argument that an agency that lacks the power to regulate also lacks the power to tell the states they can’t regulate.

Within weeks of that decision, AT&T stopped its anti-competitive favoritism of its own video services nationwide, while Verizon ceased giving an unfair benefit to its video service for Californians.

The ISPs then appealed to the Ninth Circuit Court of Appeals in San Francisco. On January 28, 2022, the three judges who heard that case, two of whom were appointed by Republicans, unanimously upheld the district court’s decision allowing the California Attorney General to enforce the law.

The ISPs then appealed for an en banc rehearing at the Ninth Circuit, which was denied on April 21, 2022. Not a single judge voted to take the case.

The ISPs could have asked the Supreme Court to hear the case, but did not.

The California Attorney General and the ISPs agreed to dismiss the case without prejudice, meaning that the ISPs could refile a case in the future.

Since the Ninth Circuit covers a number of western states, the Ninth Circuit court decisions apply also to Washington State and Oregon’s net neutrality laws.

While those laws are not as comprehensive as California’s, they are now clearly enforceable as well.

from Legal Aggregate – Stanford Law School https://law.stanford.edu/2022/05/05/isps-drop-legal-fight-against-california-net-neutrality-law/

Via https://bobnitido.wordpress.com/2022/05/06/isps-drop-legal-fight-against-california-net-neutrality-law/

source https://bobnitido.weebly.com/blog/isps-drop-legal-fight-against-california-net-neutrality-law

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robertmshoemaker · 2 years

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Indias Official COVID-19 Death Toll Is Still an Undercount

(Originally published by Foreign Policy on May 3, 2022)

As the World Health Organization seeks to revise global figures, politics in New Delhi stand in the way.

Tedros Adhanom Ghebreyesus, the director-general of the World Health Organization (WHO), visited India last month to launch the new Global Centre for Traditional Medicine in Gujarat. The trip came amid controversy over the country’s COVID-19 death toll as the WHO seeks to revise global mortality figures from the pandemic. India’s official count numbers 520,000 deaths, but the WHO and several previous studies have estimated that as many as 4 million Indians have died from COVID-19.

(Continue reading the opinion essay on Foreign Policy’s page here.)

from Legal Aggregate – Stanford Law School https://law.stanford.edu/2022/05/04/indias-official-covid-19-death-toll-is-still-an-undercount/

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robertmshoemaker · 2 years

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Everything You Need To Know About Diversion Chesa Boudins Preferred Prosecutorial Method

(Originally published by the San Francisco Chronicle on May 3, 2022)

Promoters of the campaign to recall San Francisco District Attorney Chesa Boudin have often exploited — or cynically distorted — some common public misconceptions about what district attorneys do. Among the more egregious of these efforts has been the focus on diversion. Proponents of the recall have pushed the utterly false idea that diversion is the opposite of prosecution — indeed that it is something fundamentally inconsistent with what district attorneys are elected to do.

So let’s settle some basic facts: Diversion is a form of prosecution. It has been used by prosecutors all over the country for decades. And the evidence suggests that it works pretty well.

(Continue reading the opinion essay on SF Chronicle’s page here.)

from Legal Aggregate – Stanford Law School https://law.stanford.edu/2022/05/03/everything-you-need-to-know-about-diversion-chesa-boudins-preferred-prosecutorial-method/

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robertmshoemaker · 2 years

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Stanfords Bernadette Meyler on Possible SCOTUS Decision to Overturn Roe v. Wade

In an unusual leak from the U.S. Supreme Court, a draft memo written by Justice Samuel Alito, shows the Court poised to overrule the landmark 1973 decision Roe v Wade, which makes abortions legal throughout the U.S. Here, Constitutional law scholar Professor Bernadette Meyler, discusses the leaked Dobbs v. Jackson Women’s Health Organization memo and the implications of a possible decision.

Assuming that the leaked memo is accurate, what is the legal justification provided by Justice Alito for overturning Roe v. Wade and Planned Parenthood v. Casey?

Justice Alito’s opinion examines the basis for the right to choose an abortion as though it were an undecided question and asks whether the right can be anchored in the 14th Amendment’s Due Process Clause. Following an inquiry established by an earlier case, he asks whether the right is “deeply rooted in [our] history and tradition” and “essential to our nation’s ‘scheme of ordered liberty.’”

Rather than examining whether a right to bodily or decisional autonomy, broadly conceived, fits the description of being deeply rooted in history and tradition, Alito instead looks specifically at whether the right to procure an abortion was protected. His analysis resembles the late Justice Scalia’s in a case called Michael H. v. Gerald D., in which a biological father was attempting to get visitation rights with his biological child. In that instance, Justice Scalia asked whether there was a common law tradition of protection the rights of a natural father outside of wedlock rather than a more general tradition of protecting paternal rights. With that narrow description of the right, the answer was no. Alito similarly concluded that there was no historically protected right to obtain an abortion.

Importantly, Alito relies more on state prohibitions of abortion from the 19th century, around the ratification of the 14th Amendment, than on common law from the time of the founding, because states became more rather than less restrictive during the course of the 19th century. Under common law, “quickening,” which occurred around the fourth month, was generally the point at which causing an abortion was criminalized. Some 19th-century statutes criminalized all abortion. Hence Alito adopts the most restrictive history as the main backdrop for his opinion.

To put the logic of Alito’s opinion in perspective, if we were to go back to the common law generally as determining the scope of liberty interests around personal autonomy, we would probably roll back the constitutional protections announced for consensual sodomy in Lawrence v. Texas (2003) as well as same-sex marriage. Furthermore, we would return to many other conditions that we would abhor today, including coverture, or the rule that the legal rights of a married woman were subsumed to those of her husband. As William Blackstone summarized that doctrine, “the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband.”

Only after examining the right to obtain an abortion as though it were about to be newly established does Alito’s opinion turn to the reasoning about why the Court’s precedents in Roe and Casey should be overruled. He applies a multi-factor test in reaching the conclusion that they should be overturned. Notably, he refers several times to Roe as “egregiously wrong.”

Is it significant that the Court is overruling not one but two of its previous decisions, and two decades of law? Should we be concerned about other federal rights, such as same sex marriage? Are these at risk of going back to each state?

Stanford Law Professor Bernadette Meyler

Alito attempts to justify overruling Roe and Casey by looking to other decisions of the Supreme Court that have overruled prior precedents, such as Brown. However, the breadth of his opinion makes me quite worried about whether the entire line of cases protecting privacy rights could be overturned. Implicitly undermining the idea of a right to privacy, Alito states that “Roe . . . was remarkably loose in its treatment of the constitutional text. It held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned.” Contraception was the first such right protected as a right to privacy, and, as scholar Melissa Murray has argued, a decision to overturn Roe may have implications for the constitutional protection and availability of contraception as well.

While same-sex marriage was constitutionally protected as part of a broader “liberty” interest, Alito’s effort to distinguish cases like Obergefell are half-hearted, at best. In particular, he states that “None of the other decisions cited by Roe and Casey involved the critical moral questions posed by abortion.” According to whom? If the existence of critical moral questions is enough to undo a right, then I am not sure which other rights would be immune.

If the Supreme Court does indeed overturn Roe v. Wade, what will that mean for women in the U. S. seeking abortions? The decision says that it is putting this back to the citizens of each state, but are the rights of women in more liberal states at risk too?

If the rights of women in some states are curtailed, it will affect women in every state. I worry about the message that this decision will send to the girls and young women coming of age today about the extent to which their lives and decisions are valued. Our country has made great strides toward gender equality, and this opinion—which entirely dismisses any equality-based reasons for protecting a right to choose an abortion—will substantially set us back.

How will this Court’s decision impact women living in conservative states such as Texas, where a recent law encourages citizens to turn in women who are seeking abortions? Could residency matter, and a woman from Texas who obtains an abortion in California be prosecuted in her state of residency?

There is a constitutionally protected right to travel that should continue to permit women to travel to other states for the purpose of obtaining abortions. While it is possible the Supreme Court could overturn the precedents protecting that right to travel, such a determination would have far-ranging implications beyond abortion—ones that those supporting Alito’s opinion in Dobbs might be unwilling to incur.

Professor Bernadette Meyler is a scholar of British and American constitutional law and of law and the humanities. She is also a 2020 Guggenheim Fellow in Constitutional Studies. Her research and teaching bring together the sometimes surprisingly divided fields of legal history and law and literature. They also examine the long history of constitutionalism, reaching back into the English common law ancestry of the U.S. Constitution. She is the author, most recently, of Theaters of Pardoning (Cornell UP, 2019). She is the Carl and Sheila Spaeth Professor of Law and Associate Dean for Research and Intellectual Life at Stanford Law School and Professor, by courtesy, of English at Stanford University.

from Legal Aggregate – Stanford Law School https://law.stanford.edu/2022/05/03/396894/

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robertmshoemaker · 2 years

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Stanfords Bernadette Meyler on Possible SCOTUS Decision to Overturn Roe v. Wade

Assuming that the leaked memo is accurate, what is the legal justification provided by Justice Alito for overturning Roe v. Wade and Planned Parenthood v. Casey?

Stanford Law Professor Bernadette Meyler

from Legal Aggregate – Stanford Law School https://law.stanford.edu/2022/05/03/396894/

Via https://bobnitido.wordpress.com/2022/05/03/stanfords-bernadette-meyler-on-possible-scotus-decision-to-overturn-roe-v-wade/

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