• Atuahene Op-Ed in Mail & Guardian

    by  • July 18, 2014 • 0 Comments

    Bernadette Atuahene’s new book, We Want What’s Ours: Learning from South Africa’s Land Restitution Program, is now out from Oxford University Press. The following op-ed—which appeared today in the Mail & Guardian, a top-selling South African weekly newspaper—discusses recent events in South Africa’s ongoing program of land restitution in light of the book’s core themes.

    Lack of communication is an injustice in land restitution

    Atuahene_Bernadette thumb By Bernadette Atuahene [reposted from Mail & Guardian]

    By signing the Restitution of Land Rights Amendment Bill, President Jacob Zuma recently initiated round two of South Africa’s programme of land restitution. Yet, before entering this new phase, the Commission on the Restitution of Land Rights will have to learn from its previous mistakes and build on its successes.

    For my new book, We Want What’s Ours, I interviewed 150 land claimants whose families were forcibly removed from urban areas. Through these interviews, we can begin to understand the commission’s successes and failures from the most important vantage point – that of dispossessed individuals and communities.

    One of the principal findings in We Want What’s Ours is that good communication between commission officials and claimants is absolutely vital. Stories from former residents of the Luyolo township in Simon’s Town illustrate this point.

    The Luyolo claimants were one of the few communities to have had a choice between receiving land or financial compensation. Whereas those who selected financial compensation have been paid out, those who chose land are still waiting – even 16 years after filing their claims.

    There is no doubt that locating and transferring land to claimants is a complex task that takes time. But if claimants do not get regular updates on the challenges faced by the commission, they are left waiting in the dark and feeling disrespected, anxious, and frustrated. When I asked a former resident of Luyolo, who was among those waiting for land, if the commission was doing anything well, he angrily replied: “A big no! A big no! [They] are doing an injustice! Yes, it’s an injustice!”

    If the commission had mechanisms to keep communities regularly informed about the inevitable challenges it faced, claimants could have taken a ride in the front seat of the process, alongside the commission, as partners in the long journey, instead of being left in the dark.

    Although there are several things the commission must do to improve communication in round two, I will provide two specific suggestions.

    Click here to see Professor Atuahene’s suggestions in the full article→

    For more information on Professor Atuahene’s book, visit wewantwhatsours.com.

    Recent Post-Iqbal Supervisory Liability Decisions

    by  • July 14, 2014 • 0 Comments

    Nahmod_Sheldon thumb By Sheldon Nahmod [reposted from Nahmod Law]

    I blogged on September 7, 2012, and on July 29, 2013, about post-Iqbal pleading decisions in the circuits.

    This past year, I was, as usual, preparing the annual update for my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2014; West Group), when I came across three additional recent circuit court decisions applying Iqbal to supervisory liability.

    The Second Circuit decision addresses personal involvement, the Ninth Circuit decision deals with causation and the Eleventh Circuit decision discusses deliberate indifference.

    Second Circuit

    The Second Circuit dealt with a post-Iqbal case involving a pretrial detainee’s pro se individual capacity claim against a warden in connection with allegations of denial of visitation rights, telephone usage, access to a law library and deprivation of temperature control, ventilation and various amenities. The district court dismissed on the ground that the complaint contained no allegations from which the warden’s personal involvement could be determined and further ruled against the plaintiff’s request for leave to amend. Reversing, the Second Circuit held that the plaintiff should at least have been allowed to amend his complaint in order to allege plausibly that the warden had been informed of the alleged denials and deprivations by a letter that the plaintiff had previously sent to him. The Second Circuit observed that in response to the defendant’s motion to dismiss, the plaintiff referred to such a letter informing the warden of the conditions of his confinement. If such a letter had been sent, a court could infer that the warden was in fact aware of the alleged conditions of which the plaintiff complained, thus constituting the requisite personal involvement. Grullon v. City of New Haven, 720 F.3d 133 (2d Cir. 2013) (quoting Hansen v. Black, 885 F.3d 642, 645-46 (9th Cir. 1989)).

    Ninth Circuit

    The Ninth Circuit, in a post-Iqbal supervisory liability case involving allegations of deliberate indifference against a prison medical director and others in connection with the plaintiff prisoner’s medical care, said the following: “[Under § 1983 a] supervisor may be liable only if (1) he or she is personally involved in the constitutional deprivation, or (2) there is a ‘sufficient causal connection between the supervisor’s wrongful conduct and the constitutional violation.’” Here, there was no evidence that the defendant’s policy of changing dosages of Lithium from three to two, without increasing the total amount prescribed, could have caused plaintiff’s Lithium toxicity. Crowley v. Bannister, 764 F.3d 967 (9th Cir. 2013).

    Eleventh Circuit

    In a post-Iqbal case involving a pretrial detainee’s allegations against various supervisory prison officials that they did not protect her from a corrections officer who sexually assaulted her, the Eleventh Circuit reversed the district court and held that she did not plausibly allege the requisite deliberate indifference. It was not enough that she repeatedly alleged deliberate indifference and that the defendants knew or should have known of the risk to her. There were only a few properly pleaded facts—that the corrections officer verbally harassed the plaintiff and told her there was nothing she could do, that he sexually assaulted her, that he had previously sexually assaulted another pretrial detainee and that he had previously had sexual relations with a third detainee. These were insufficient to state a plausible claim against the defendants that each was subjectively aware of the risk and knowingly disregarded it. Indeed, and to the contrary, the plaintiff’s allegations suggested that the jail’s policy was to promptly investigate claims of sexual harassment. Franklin v. Curry, 738 F.3d 1246 (11th Cir. 2013).

    Follow Professor Nahmod on Twitter @NahmodLaw

    Judge Diane Wood’s SCIPR Address Featured in Wall Street Journal

    by  • July 8, 2014 • 0 Comments

    Chicago-Kent’s annual Supreme Court IP Review is a leading conference designed to provide intellectual property practitioners, jurists, academics, and law students with a comprehensive review of the U.S. Supreme Court’s IP cases. The conference focuses on the IP cases from the U.S. Supreme Court’s previous Term, the cases on the docket for the upcoming Term, and a handful of IP cert. petitions to watch.

    The Honorable Diane Wood of the U.S. Court of Appeals for the Seventh Circuit delivered the keynote address at SCIPR 2013. Her speech sparked an ongoing national debate over ending the Federal Circuit’s exclusive jurisdiction in patent cases, most recently in a Wall Street Journal article titled “Critics Fault Court’s Grip on Appeals for Patents.” Here is an excerpt:

    Calls to loosen the court’s hold on patent law are growing amid complaints that the court, through its rulings, have made certain areas of patent law hard for lawyers and lower courts to follow. Allowing other appellate courts around the country to weigh in on patent issues might help sharpen the law, say critics.

    “The judges on the Federal Circuit are as capable as any in the country, but we’d be better off having a diversity of [judicial] viewpoints on patent law the way we do with nearly every other legal subject,” said Diane Wood, the chief judge of the Seventh U.S. Circuit Court of Appeals in Chicago.

    In a speech last fall, Chief Judge Wood publicly advocated abolishing the Federal Circuit’s “exclusive jurisdiction” over most patent appeals, in favor of letting the other federal appeals courts hear patent cases as well.

    Previously, Judge Wood’s address received attention in a Washington Post article titled “The Dixie Chicks and Robin Thicke explain how to fix the patent system.”

    View Judge Wood’s address below or on YouTube and visit the SCIPR website for more information on the conference.

    Hobby Lobby, Corporations & Constitutional Rights

    by  • July 1, 2014 • 0 Comments

    Schmidt_Chris thumb By Christopher Schmidt [reposted from ISCOTUSnow]

    Case: Burwell v. Hobby Lobby Stores (formerly Sebelius v. Hobby Lobby Stores)

    Yesterday’s decision in the Hobby Lobby case offers yet another chapter in the still-unfolding story of the extent to which corporations are “persons” for purposes of claiming constitutional rights. Judicial recognition that corporations might claim constitutional rights has a long history, dating back to the late nineteenth century. In recent years, the Supreme Court has sparked renewed attention to the issue, most notably with its 2010 decision in Citizens United in which a 5-4 majority held that certain campaign funding restrictions violated the First Amendment free speech rights of corporations.

    In the Hobby Lobby case, one of the government’s arguments in defending the challenged contraception coverage of the Affordable Care Act was that the plaintiffs lacked the standing to even make this kind of religious freedom claim. Only Justices Ginsburg and Sotomayor bought that argument (Justices Breyer and Kagan did not join that section of Justice Ginsburg’s dissent in which she challenged “the notion that free exercise rights pertain to for-profit corporations”).

    Justice Alito, in his Opinion of the Court, insisted that when Congress passed the Religious Freedom Restoration Act of 1993, it “employ[ed] a familiar legal fiction: It included corporations within RFRA’s definition of ‘persons.’” He went on to explain that “the purpose of this fiction is to provide protection for human beings.”

    A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people.

    He then listed as an example the value of allowing corporations to make Fourth Amendment claims, which “protects the privacy interests of employees and others associated with the company.” Similarly, the Fifth Amendment’s protection against government takings of property without just compensation “protects all those who have a stake in the corporations’ financial well-being.” (Notably missing from this list, of course, are the free speech rights of corporations that the Court used to justify its controversial Citizens United ruling. The only mention of that case in the Hobby Lobby opinions is Justice Ginsburg’s approving quotation of Justice Stevens’ Citizens United dissent, in which he wrote that corporations “have no consciences, no beliefs, no feelings, no thoughts, no desires.”) For Justice Alito, the same reasoning that justifies allowing corporations to make Fourth and Fifth Amendment claims justifies allowing them to make free-exercise claims. For in making such claims, a corporation can provide protection for “the religious liberty of the humans who own and control those companies.”

    Schmidt on Hobby Lobby Decision

    by  • June 30, 2014 • 0 Comments

    On June 30, 2014, the U.S. Supreme Court issued its opinion in Burwell v. Hobby Lobby Stores, Inc., ruling that the Affordable Care Act’s birth control mandate does not require closely held, for-profit companies to provide contraceptive coverage to its employees if the companies’ owners voice religious objections.

    In this video, Professor and ISCOTUS director Christopher Schmidt discusses the specifics of the case, the opinion, and the dissent, as well as the implications the decision could have for the future.

    Find the video on YouTube here.

    Breyer and Scalia’s Debate in NLRB v. Noel Canning

    by  • June 27, 2014 • 0 Comments

    Schmidt_Chris thumb By Christopher Schmidt [reposted from ISCOTUSnow]

    Case: National Labor Relations Board v. Noel Canning

    Although Justices Breyer and Scalia ended up on the same side in yesterday’s landmark decision on the President’s recess appointment power, they offered starkly opposing views on the question of whether the past practice of the executive can resolve this constitutional question.

    In his Opinion of the Court, Justice Breyer emphasizes early in the opinion that “in interpreting the [Recess Appointments] Clause, we put significant weight upon historical practice.” For support for this, he offers lengthy quotations from McCulloch v Maryland (1819) and from an 1819 letter written from James Madison to Spencer Roane in which he writes that it “was foreseen at the birth of the Constitution, that difficulties and differences of opinion might occasionally arise in expounding terms & phrases necessarily used in such a charter… and that it might require a regular course of practice to liquidate & settle the meaning of some of them.” From these and other sources, Justice Breyer concludes: “[T]his Court has treated practice as an important interpretive factor even when the nature or longevity of that practice is subject to dispute, and even when that practice began after the founding era.” With regard to the question before the Court, he writes: “We have not previously interpreted the [Recess Appointments] Clause, and, when doing so for the first time in more than 200 years, we must hesitate to upset the compromises and working arrangements that the elected branches of Government themselves have reached.”

    Justice Scalia accepts that basic premise that established practice can inform the Court’s interpretation of ambiguous constitutional provisions. But he insists upon a higher threshold for what actually constitutes established practice. He writes: “Of course, where a governmental practice has been open, widespread, and unchallenged since the early days of the Republic, the practice should guide our interpretation of an ambiguous constitutional provision” (emphasis added). The recess appointment practice challenged in this case does not meet this incredibly demanding threshold, however. “Plainly, then, a self aggrandizing practice adopted by one branch well after the founding, often challenged, and never before blessed by this Court—in other words, the sort of practice on which the majority relies in this case—does not relieve us of our duty to interpret the Constitution in light of its text, structure, and original understanding.”

    Justice Scalia accuses Justice Breyer of “cast[ing] aside the plain, original meaning of the constitutional text in deference to late-arising historical practices that are ambiguous at best.” Finding historical practice fails to resolve the constitutional question, he turns to his preferred grounds of constitutional interpretation of “text, structure, and original understanding.” The two Justices end up in the same place on this particular constitutional dispute, although they chart quite different paths getting there.

    Weekly Faculty in the News, 6/26/14

    by  • June 26, 2014 • 0 Comments

    A roundup of faculty appearances in news sources and media from the last week, 6/19/14 to 6/26/14.

    Blogs:

    6/23 – Adrian Walters was mentioned in a colleague’s blog post on a new paper they have co-authored, titled Termination-on-Bankruptcy Provisions: Some Proposed Language. The paper was published in the most recent issue of Business Law Today. Download it or read it online here.

    6/24 – Dan Tarlock’s ISCOTUS video commentary on Utility Air Regulatory Group v. EPA appeared in SCOTUSblog’s Tuesday round-up.

    6/24 – The Oyez Project and its $0.99 app Pocket Justice were featured in a Lawyerist post on all of the available legal apps for Android.

    6/24 – David Schwartz was mentioned in a Lexology post on a new paper he has co-authored, titled Understanding the Realities of Modern Patent Litigation (forthcoming in the Texas Law Review).

    6/25 – At his blog The Walters Way, Adrian Walters engages in a “blog hop” and tackles the question that plagues all bloggers—why bother?

    6/26 – SCOTUSblog’s evening round-up mentioned Edward Lee’s ISCOTUS video commentary on ABC v. Aereo and Douglas Godfrey’s video commentary on Riley v. California.

    For more information, contact Gwendolyn Osborne, Director of Public Affairs, (312) 906-5251.

    Godfrey on Cell Phone Search & Seizure Decision

    by  • June 26, 2014 • 0 Comments

    On June 25, the U.S. Supreme Court issued a single decision in two cases on cell phone search and seizure—Riley v. California and U.S. v. Wurie. In a major victory for digital privacy rights, the Court ruled that police officers must obtain a warrant to access information on the cell phone of an arrestee.

    In this ISCOTUS video, Professor Douglas Godfrey discusses the case and its implications for the future.

    Find the video on YouTube here.

     

    Lee on ABC v. Aereo

    by  • June 25, 2014 • 0 Comments

    On June 25, the U.S. Supreme Court handed down its opinion in ABC v. Aereo, an important copyright case featuring the broadcast TV giant and a small Internet startup. The Court ruled against Aereo, claiming that Aereo’s services—which allowed users to watch major network TV programs over the Internet—had infringed upon the rights of the programs’ copyright holders.

    In this ISCOTUS video, Professor Edward Lee discusses the case and what the decision means for Aereo’s and other tech companies’ futures.

    For more, see Prof. Lee’s “Inside the Case” feature on Aereo.

    Find the video on YouTube here.

    Tarlock on EPA Cases

    by  • June 24, 2014 • 0 Comments

    Yesterday, the U.S. Supreme Court issued its opinion in Utility Air Regulatory Group v. EPA—a consolidation of cases brought by a number of states and industries opposed to the EPA’s regulations on greenhouse gas emissions.

    In this ISCOTUS video, Professor A. Dan Tarlock, an internationally-recognized authority on environmental law issues, explains the details of the case and the implications of the decision.

    Find the video on YouTube here.

    Schmidt Wins Baseball Research Award

    by  • June 23, 2014 • 0 Comments

    SABRAs a legal history scholar, IIT Chicago-Kent Professor Christopher Schmidt touches on a wide variety of subjects in his research—including the captivating world of professional baseball. The Society for American Baseball Research (SABR) recently recognized Professor Schmidt’s outstanding work on America’s favorite pastime, granting him the 2014 McFarland-SABR Baseball Research Award for his article Explaining the Baseball Revolution, 45 Arizona State L.J. (2013). The award “honors the authors of the best articles on baseball history or biography completed or published during the preceding calendar year.”

    In his article, Schmidt explores the “baseball revolution” that occurred between 1966 and 1976, when Major League Baseball players won an unprecedented redistribution of control and revenues from club owners. This revolution ushered in the era of “free agency,” allowing players to hop between teams in search of better contracts and bargaining rights. As Schmidt points out, baseball reform did not come through explicitly legal channels; the claim in Flood v. Kuhn (1972), a U.S. Supreme Court case in which players argued that  baseball’s “reserve” system denied them fundamental rights, was not successful in court. However, by reframing the struggle for money and power as a fight for individual freedom, the case set in motion the events that eventually led to greater players’ rights. Through these and a host of other factors, Schmidt shows how the baseball revolution “offers a valuable case study of the complex interrelation between legal claims, legal institutions, and movement mobilization.”

    The SABR selection committee gave these comments about Schmidt’s paper:

    “Meticulously researched and argued…. Well researched, well written, while disparaging the legal events surrounding Flood, he shows how they ‘set the table’ for change.”

    According to the SABR website, Schmidt and two other award winners will be honored at the 44th annual SABR convention, which will take place July 30-August 3, 2014, at the Royal Sonesta Houston in Houston, Texas.

    To see more of Professor Schmidt’s research on baseball and other topics, visit his Selected Works page.