Law School Faculty Blog
10Oct/12

In Memory of Adnan Latif: ‘Timmy’ and a Hospital Corpsman in Guantanamo

Adnan Latif, a Yemeni citizen, died at Guantanamo in early September. The military has not revealed how Adnan Latif died, but only that he was found unconscious in his cell. However, like the detainee described below, Adnan Latif had lost hope, attempting suicide several times at Guantanamo. He was the ninth man to have died in Guantanamo, six reportedly had committed suicide.

Adnan Latif had been held in the detention center since early 2002, although he had never been charged with a crime. Both the Bush and Obama administrations recommended his transfer out of Guantanamo. In addition, in 2010 a federal district court granted Adnan Latif’s habeas petition for release. That decision, however, was overturned by the federal court of appeals last year, and the Supreme Court would not hear his further appeal. After Adnan Latif’s death, I decided to write the following piece about another tragic incident at the naval base.

5Oct/12

The Rule of Reason in Antitrust Cases

Courts resolve antitrust cases by applying various modes of analysis ranging from so-called “full blown” Rule of Reason analysis at one end to per se condemnation at the other. Per se rules condemn limited categories of conduct by applying a conclusive presumption of net anticompetitive effects, while Rule of Reason analysis requires a court to engage in case-specific evaluation of evidence bearing on actual or predictable competitive effects. Although the per se rules have obvious advantages of clarity, administrability, and predictability, the sorts of conduct falling under these rules have been narrowed in recent years as courts have become increasingly wary of condemning legitimate competitive conduct. Thus the Rule of Reason now applies to all antitrust matters other than hard-core cartel cases involving horizontal price fixing or market allocations.

28Sep/12

Wade Michael Page: A Reflection of De-Americanization

Bill Ong Hing

On Sunday, Wade Michael Page, a 40-year-old, white supremacist with a military background killed six people at a Sikh temple south of Milwaukee and critically wounded three others. He has been 
described
 as a "frustrated neo-Nazi who had been the leader of a racist white-power band." His most recent skinhead "hate rock band" was called "End Apathy." Clearly, part of his hate was directed at Sikhs, Muslims, or both. Somewhere along his life road, he felt licensed to express his hate note just through music, but through violence. This hatred unfortunately is reminiscent of a brand of vigilante racism and de-Americanization that we have seen far too often since 9/11.

26Sep/12

Leo on the Problem of Missing, Misrepresented, and Misunderstood Context in Criminal Confessions

Brandon Garrett, a professor of law at the University of Virginia, published in 2011 an important book analyzing the first 250 DNA exonerations of innocent prisoners in the American criminal justice system (Convicting the Innocent: Where Criminal Prosecutions Go Wrong). In 2012, the New England Law Review published a symposium volume on this book. Professor Deborah Davis (University of Nevada, Reno, Department of Psychology) and I were invited to write one of the articles commenting on Garrett’s book. Focusing on failures to detect false confessions, our article—“To Walk In Their Shoes: The Problem of Missing, Misrepresented, and Misunderstood Context in Judging Criminal Confessions”—addresses the issue of police contamination, which has been explored in our previous work as well as in Garrett’s recent book. We review some of Garrett’s most important findings and consider them in light of our own model of seven pathways from false confession to wrongful conviction. Davis and I cover these pathways (the biasing effects of confession evidence; tunnel vision and confirmation biases; motivational biases; emotional influences on thinking and behavior; institutional influences on evidence production and decision-making; incorrect relevant knowledge; and progressively constricting relevant evidence), which we argue have the effect of providing incomplete and/or inaccurate contextual information for evaluating the validity of confessions and thus interfere with the rational analysis of the information that is available. We conclude by arguing that the judicial system must take more care in evaluating defendants’ claims of contamination in false confessions.

21Sep/12

The Vanishing Distinction Between Real-time and Historical Location Data

Susan FreiwaldA congressional inquiry, which recently revealed that cell phone carriers disclose a huge amount of subscriber information to the government, has increased the concern that Big Brother tracks our cell phones. The New York Times reported that, in 2011, carriers responded to 1.3 million law enforcement demands for cell phone subscriber information, including text messages and location information. Because each request can acquire information on multiple people, law enforcement agencies have clearly obtained such information about many more of us than could possibly be worthy of suspicion. Representative Markey, who spearheaded the inquiry, has followed up with a thorough letter to Attorney General Holder that asks how the Justice Department could possibly protect privacy and civil liberties while acquiring such a massive amount of information.

14Sep/12

Federalism Concerns in DOMA Litigation

In the endlessly theatrical battle over the constitutionality of governmental refusal to recognize same-sex marriages, federalism has been quietly stealing part of the show. In Section 3 of the Defense of Marriage Act (DOMA), the US Congress enacted an unprecedented blanket exclusion in refusing to recognize same-sex marriages deemed lawful by the states. Although it was a notoriously rushed and unusually brief enactment, DOMA nonetheless imposes a sweeping effect on more than one thousand federal benefits as well as uncounted state benefits that incorporate or otherwise rely on federal marriage recognition. Given that DOMA marked such a dramatic departure from the long-standing federal governmental practice of respecting state authority to solemnize marriages, perhaps it is not surprising that federalism is finally making a star turn.

What makes this episode especially riveting is that the political camps appear to have exchanged their usual federalism talking points. Progressives and others who favor recognition of same-sex marriage are now in the position of invoking the virtues of federalism. Meanwhile, those opposed to same-sex marriage are left to argue against judicial inclusion of federalism concerns. Indeed, the conservative camp sounds downright aghast that one of their go-to "thumbs on the scale" weighs against them in the same-sex marriage context.

7Sep/12

Perverting Informed Consent: The South Dakota Court Decision

Maya ManianInformed consent is one of the cornerstones of health-care law and its basic principles have been well-established for decades. Informed consent law reflects the fundamental notion that every competent adult has a right to make the ultimate decisions about her healthcare that will affect her life prospects. A single driving goal animates informed consent law—respect for patient autonomy. Informed consent law preserves patient autonomy by protecting the patient’s bodily integrity and self-determination.

Canterbury v. Spence, a leading case on informed consent, set forth the key principle that “it is the prerogative of the patient” to decide “the direction in which his interests seem to lie.” Thus, the doctrine of informed consent compels the disclosure of accurate medical information consistent with the expert knowledge of the medical community.

30Aug/12

Travis on Employment Discrimination and Disparate Impact Theory

Employment discrimination doctrine has become so dependent upon the concept of social group membership that group consciousness is generally viewed as a defining feature of antidiscrimination law. Yet an ongoing debate exists over whether and why antidiscrimination law must or should make reference to group status. I was recently invited to speak at a symposium that explored this topic.  The symposium was titled “The Protected Class Approach to Antidiscrimination Law: Logic, Effects, Reform,” and the speakers’ articles have been published in an issue of the Lewis & Clark Law Review. My article, which is titled “Toward Positive Equality: Taking the Disparate Impact out of Disparate Impact Theory,” investigates the proper role, if any, that group consciousness should play in legal efforts to ensure that facially neutral employment practices are demonstrably merit-based. My analysis reveals the value in considering a practice-conscious rather than a group-conscious approach to legal regulation of workplace practices.  Rather than tailoring legal protection by allowing only members of certain groups to challenge the business necessity of any exclusionary employment practice, legal protection could instead be tailored by allowing any worker to challenge the business necessity of only certain suspect practices. My article helps identify the subset of practices that should be subject to such universal challenge, and it analyzes the benefits and shortcomings of a practice-conscious approach to advancing a norm of positive equality in the workplace.

Click here to read “Toward Positive Equality: Taking the Disparate Impact out of Disparate Impact Theory.”

17Aug/12

Cambodia’s Overdue Land Reforms

CambodiaIn a rare display of concern for his government’s human rights record, Cambodian Prime Minister Hun Sen has moved to forestall criticism of human rights and environmental abuses connected to economic land concessions.

The Cambodian government has recently opposed the corporate misuse of economic land concessions (ELCs) and has made a long-overdue offer to recognise the claims of rural Cambodians to the land on which they live. These actions seem to indicate that Hun Sen and his advisors are developing a new understanding of the relationship between respect for the rule of law, human rights and economic development.

3Aug/12

Price’s Article on Attorneys’ Fees in Chapter 13 Bankruptcies Proposes Reform

My article presents original empirical research on the issue of “No Look” or presumptively approved attorneys’ fees in consumer Chapter 13 bankruptcy cases. 11 U.S.C. §330 requires court approval of attorneys’ fees. Courts are frequently unable to address the volume of applications if individual review is required. As such, many courts have set presumptively approved attorneys’ fees in which the attorneys’ fees for routine services are approved administratively. Circuits are split as to whether this practice can be rationalized with existing caselaw, the Bankruptcy Code or legislative intent. My study examines the practices of each Bankruptcy Court and finds a haphazard tapestry of fees, policies and procedures. To address these issues, I propose specific language to amend §330.