American Constitution Society launches new resource for law students

A new free online resource for law students has just been launched by the American Constitution Society. It is called ACS ResearchLink and is designed to help law students search for topics for their law review or journal notes, seminar papers, dissertations, and independent research projects. By connecting law students and faculty with the research needs of public interest organizations and advocates, ACS ResearchLink could become a powerful engine for change, while also enhancing the relevance and influence of student academic scholarship. Check it out!

Court Upholds Arizona's Voter ID Requirement

Yesterday, the United States District Court for the District of Arizona ruled that Arizona’s voter identification requirements are not unconstitutional in that the legislation does not constitute a poll tax (there is still an equal protection argument to be decided). Plaintiffs in this case, Purcell v. Gonzalez, had challenged Arizona’s Proposition 200, which requires voters to present proof of citizenship prior to voting (additional case information and documents can be found here). Plaintiffs had challenged this law based on claims that this law disparately impacted Latinos, as this group of voters would be less likely to possess the required form of identification; in effect, it has been claimed that this requirement allows only those with sufficient funds to obtain the required identification to vote.

As has been the case in most voter identification legislation, the primary justification for this law has been to prevent voter fraud. In the case of Arizona’s legislation, a stated concern has been the case of undocumented immigrants. However, litigation was commenced based on claims that this legislation was overbroad in that it not only prevented undocumented immigrants from voting, but also legal citizens unable to prove their citizenship. In finding that this law does not constitute a poll tax, the Court stated that, “In Arizona, ‘voters do not have to choose between paying a poll tax and providing proof of citizenship when they register to vote. They have only to provide the proof of citizenship.’”

However, it seems that voters in Arizona do not actually have a choice; although they are not explicitly required to pay a poll tax, they still must pay required fees to obtain the documents. While the fees for obtaining some of the documents (such as a copy of a birth certificate or driver’s license) may be low, there are certainly voters that cannot afford even these minimal expenses; such expenses may be even greater should the person requiring such document need to obtain the papers from outside the state. In addition to the monetary costs, the Court does not appear to take into consideration the inconveniences and time it takes to obtain these documents. In the case of Indiana Democratic Party v. Rokita, such inconveniences were explicitly raised by Plaintiffs; while these challenges may be different in Arizona, the fact is that such obstacles may prevent citizens to expend funds that they cannot afford. Overall, while such laws may not constitute explicit poll taxes, until affordable means in place to allow all citizens to obtain the required identification, such costs will prevent many eligible citizens from voting.

Andrew Paquin, Capitalism, and Academic Freedom

Andy Guess of Inside Higher Ed reports on Colorado Christian University’s controversial decision to decline a contract renewal for assistant professor of global studies Andrew Paquin. As Guess details, the dismissal arguably boils down to Paquin’s unwillingness to be “sufficiently capitalist” in the classroom due to his use of texts by progressive evangelical Jim Wallis and animal-rights activist Peter Singer. Despite Paquin’s work with his non-profit organization The 10/10 Project, which offers “microcredit” loans to African start-up businesses, this was not good enough for university president William L. Armstrong:

“…Armstrong became president a year ago and helped unveil a new set of strategic objectives, including to ‘[i]mpact our culture in support of traditional family values, sanctity of life, compassion for the poor, Biblical view of human nature, limited government, personal freedom, free markets, natural law, original intent of constitution and Western civilization…’

“On issues like a commitment to free markets, Armstrong said, ‘We’re very straightforward about our convictions.’ But he stressed that the commitment to capitalism doesn’t necessarily come from the Bible. ‘We don’t look to the Scriptures for justification for everything we teach,’ he said. ‘It’s not that we are tying [Christianity and capitalism] together.’ ”

Yet if Armstrong isn’t linking capitalism to Christianity, then why are “free markets” and “Biblical view of human nature” mentioned in the same sentence of the school’s strategic objectives? Even more importantly, if schools such as CCU eschew faculty tenure due to the centrality of adhering to a specific doctrine, then how can academic freedom be a possibility in cases like Paquin’s—especially when he apparently had no prior knowledge of the university’s decision to not renew his contract? If professors have to censor even slight critiques of school policy to ensure their jobs, then we cannot refer to such an environment as being academically “free.”

Alberto Gonzales Resigns

Today, Attorney General Alberto Gonzales announced his resignation from the United States Department of Justice. According to the New York Times, this resignation will become effective September 17. Solicitor General Paul Clement will stand in as acting Attorney General until a replacement is found and sworn in.

As Attorney General, Gonzales has been criticized for diminishing civil liberties protections. The ACLU lists several incidents in which they feel Gonzales has failed to protect civil liberties, such as: failure to investigate incidents of torture of detainees; failure to investigate incidents of warrantless searching; and, championing the renewal of the United States Patriot Act.

Even with Gonzales’ resignation, the ACLU is demanding continued investigation of such violations that allegedly have taken place under Gonzales’ watch. The ACLU wants to ensure that, what they call, a “systematic abuse of power” by the Bush administration does not continue. With the imminent naming of a new acting Attorney General, ensuring that these violations do not persist becomes even a higher concern with groups such as the ACLU.

Additionally, Democrats and Republicans alike had been demanding his resignation due to his improper handling of terror investigations and firings of U.S. attorneys. In response to his resignation, a number of Democrats and Republicans have been quoted indicating that they felt Gonzales was never the proper person for the job and that his actions as Attorney General had shaken the public’s confidence in the department.

Whether, or to what extent, Gonzales has had a role in failing to protect civil liberties may remain uncertain. It seems certain that, no matter how this question is answered, faith in Gonzales, and the Attorney General's office, has been shaken in the eyes of government officials, civil liberties groups, and the public.

China and the 2008 Olympics: A Tale of Two Countries

With the 2008 Olympics less than a year away from its opening in Beijing, I would like to begin an occasional series that concentrates on the relationship between China’s preparations for the Games and its often questionable record with regard to social justice issues. To begin, Wright Thompson’s recent account for ESPN of his cross-country road trip on China’s Highway 108 provides an excellent overview of the country’s growing socioeconomic dichotomy:

“In two days [after the end of the road trip], a provincial party official will say, earnestly and with a straight face, ‘All of China is excited about the Olympics.’ But, after a week out on Highway 108, it's clear this isn't true. New China is excited. Old China isn't. This simple question -- Are you excited about the Olympics? -- is actually a much more complicated one in disguise, one that gets to the heart of modern China. It's many questions, really. Are you moving forward or being left behind? Do you have something to offer? Are you the future or the past? Are you a have or a have-not?”

As Thompson indicates, China’s transition to a market economy has left much of its rural population more impoverished and vulnerable to exploitation. Thanks to the country’s new regulations that allow expanded media freedom for foreign journalists, stories like his become even more important in holding Chinese authorities accountable for their actions over the next year.

Following up on...

--The Jena 6 case: On July 31, supporters of the Jena 6 held a downtown rally and delivered a 43,000-signature petition asking that charges against Mychal Bell and the other defendants be dropped. There has been little response so far from Governor Kathleen Blanco, though media coverage of the case—which has not painted Jena in a flattering manner—has noticeably increased. In addition to the articles that Friends of Justice mentions in the above link, the BBC rightly uses the term “stealth racism” to describe the actions of District Attorney Reed Walters.

--The financial concerns surrounding Africa’s prosperity gospel movement: The Times of Zambia is straightforward in a recent editorial:

“You see of these pastors, bishops, archbishops, apostles, prophets or whatever title they call themselves driving very expensive vehicles, wearing designer's clothes and generally being extravagant while church members whom they purport to serve wallow in abject poverty…

“It is with this in mind that we agree with the counsel by Community and Social Development Minister Catherine Namugala that church leaders should be more accountable and transparent in the way they handle funds” (emphasis mine).

The Children's Health Insurance Program

Recently, state health officials were notified of new standards relating to the provision of medical services under the Children’s Health Insurance Program. With a stated goal of “return[ing] the Children’s Health Insurance Program to its original focus on low-income children”, these new guidelines require that, before coverage is extended to children in middle-income families, at least 95% of the children in families who make no more than double the federal poverty level in income must be enrolled. Some states currently have extended coverage under the Program to include families who make as much as three and one-half times the poverty level.

Approximately $30 billion dollars has been asked by the President to be allocated to the program from 2008 to 2012 (an additional $1 billion dollars/year to the $5 billion/year currently allocated). Experts are concerned that this allocation is not sufficient to meet the goals of the 95% enrollment, as they argue that $30 billion is not sufficient to cover the current levels of enrollment. Should the level of enrollment increase, there will be insufficient funds to cover all of the eligible children’s medical costs. However, although the House and Senate have passed bills allocating an average of an additional $10 billion and $7 billion per year, respectively, it has been reported that President Bush has promised to veto these measures as he sees each as “a major step toward nationalized health coverage”.

A recent government study reports that nearly 30% of eligible children have not yet enrolled for coverage under the Program. Aside from the costs of the coverage once these eligible children are enrolled is how to locate such children in the first place. In order to reach the 95% enrollment required to extend coverage to middle income families (from the 72% enrollment rate for 2004-2005), a significant expenditure of funds, of which a large portion of the House and Senate proposed increase would cover, would be required.

The overall goal of ensuring that children in low-income families are provided with health insurance, while not creating a substitute for private health coverage, appears to be a worthwhile initiative. However, without providing sufficient funds, to both locate eligible but non-enrolled children and then to cover their medical costs, it seems that, in reality, sufficient coverage will not be provided by the Program. Also, with such a lofty goal of 95% enrollment, the ability of states to extend coverage to non-insured children from middle-income families will not be possible, presumably leaving a significant number of children in the United States without medical insurance coverage. In order for the Children’s Health Insurance Program to operate effectively in providing insurance coverage to needy children, it would seem that the goals set forth by the government need to be weighed against the funds being allocated, and a proper balance needs to be struck.

LexisNexis announces new M&A service for Lawyers

LexisNexis® announced the launch of the M&A (Mergers & Acquisitions) Practice Center. The new center is a intended to be a haven for attorneys working in mergers and acquisitions.

From the website: The LexisNexis M&A Practice Center is designed for the specific needs of M&A attorneys throughout the lifecycle of complex corporate transactions. Our task-based approach helps attorneys prepare due diligence and closing checklists, structure deals, conduct due diligence, get practice guidance, obtain highly relevant precedent agreements and clauses, get the latest news and find authoritative information on negotiating, documenting and consummating corporate transactions.

Prosperity Gospel and the Perpetuation of Inequality

The Christian Century and Christianity Today may differ in their theological and political tendencies—the former is “mainline” Protestant and has historically been liberal, while the latter centers on evangelicalism and is more conservative—but their respective stories in July on the growth of the “prosperity gospel” movement in Africa both raise some significant concerns about the movement’s potential to perpetuate political and economic injustice against many of its followers. Paul Gifford contends the following in his article for the Century:

“…in my view the most significant fact about Africa is the dysfunctional political culture that permits an unaccountable elite to appropriate wealth and power at the expense of the people.

“The gospel of success does little to challenge this dysfunctional political structure. For one thing, many preachers openly claim that the political-economic system simply doesn't matter, because a born-again Christian will prosper under any political or economic regime…Indeed, the movement exemplifies the ‘Big Man’ disease that is the curse of Africa. The cars and houses of pastors (acquired through a theology of tithing and seed faith) are purchased at the expense of the people they are theoretically serving, just as the politicians' wealth is gained through ‘service’ of their constituents.”

While Gifford (as well as Christianity Today’s Isaac Phiri and Joe Maxwell) stresses that that prosperity gospel leaders have tailored the movement to develop within uniquely African contexts, those leaders have also largely taken cues from prominent adherents of prosperity theology in America (the source of the movement’s origin), including Houston pastor Joel Osteen, whose 2004 book Your Best Life Now has sold several million copies. As David Van Biema and Jeff Chu note in an article for Time last September, Osteen has garnered intense criticism for his (and other leaders’) willingness to emphasize “American materialism” in a Christian message. Therefore, it is ironically unfortunate that at a time when the American Christian community has increased its awareness of and efforts to counteract African socioeconomic concerns, an American-born message of divine “blessings” threatens to exacerbate those concerns at the same time.

APA Participation in Detainee Interrogation

With the recent conviction of Jose Padilla (discussed here yesterday) it seems that the topic of psychological torture has been pushed to the forefront. On Sunday, the American Psychological Association decided against prohibiting APA members from taking part in interrogations in U.S. detention centers. According to reports, the measure was up for vote due to alleged participation of psychologists and psychiatrists in improperly questioning detainees.

Having taken part in military interrogations since 2002, it has recently been reported that psychiatrists and psychologists have aided military interrogators by developing techniques which play on the prisoners’ fears in order to obtain information. The APA, in voting against further participation in such questioning, has passed a resolution which prohibits members from playing a part in such future forms of psychological torture and has delineated specific instances of torture which they find to be “ particularly inhumane”.

Proponents of such a ban on any and all participation by APA members in prisoner questioning believe that such refusal to participate in future questioning would send a message of their disapproval of such methods. However, in refusing to pass the proposed measure, the APA relied on the fact that the presence of a psychiatrist or psychologist at such questioning may be the only way to ensure psychological or physical torture does not take place, and in some instances may be the only way to ensure that such questioning does not result in death to the detainees.

While it may be true, as some claim, that such resolutions passed by the APA provide loopholes that may allow psychologists to recommend such methods as sensory deprivation or isolation, total withdrawal by the APA would open the door allowing non-APA members from assisting in interrogation and potentially furthering psychological torture without fear of APA sanctions. By maintaining some involvement, it seems the APA is at least providing some safeguards that their member psychiatrists and psychologists will stay within the parameters set, keep the use of such interrogation methods within these guidelines and report any methods that fall outside these limits.

Jose Padilla and The Question of Torture

Three relevant articles in light of suspected al-Qaeda conspirator Jose Padilla’s conviction on Thursday: the Christian Science Monitor’s report (as part of a series) on the “extreme isolation” treatment that Padilla faced while under military custody; Harper’s Scott Horton’s reaction to what the case means in broader terms of justice; and Jane Meyer’s investigative piece for the New Yorker on the CIA’s use of "black sites" for interrogative purposes.

Some thoughts on the above:

--Assuming that the articles are mostly correct concerning their facts about the interrogation methods used against Padilla (and there is little reason to doubt this is so), then 1) he was tortured; and 2) his torture violates the Geneva Conventions and goes against U.S. historical and legal precedent, which is more than adequate cause for concern.

--Without attempting to generalize too broadly, it is probably easier for us to imagine torture in terms of the direct infliction of physical pain upon someone: William Wallace (as played by Mel Gibson)’s final moments in Braveheart, for example, or—more relevant to us—the prisoner abuse that occurred at Abu Ghraib. The documentation of Padilla’s detainment forces us to think about the psychological aspects of torture methods like prisoner isolation, even if those methods do seem “painful” in a concrete sense.

--As Horton importantly notes, criticizing the use of torture against Padilla and other U.S. “enemy combatants” does not mean exemplifying them in a positive manner. Rather, it means that no one—regardless of their crimes—is entitled to face torture based primarily on moral and ethical grounds, and secondarily on pragmatic grounds (since torture is, as several of Meyer's sources detail, considered to be quite unreliable as a means of intelligence-gathering).

Is America Turning Left?

Is America turning left? is the cover story in the August 11, 2007 edition of The Economist that I thought was a very good read. It illustrates how the Bush Administration has caused the political pendulum to shift left. Now, whether it reaches left of center remains to be seen. The article points out that most American distrust government strongly. “Forty years ago they (Americans) turned against a leftist elite trying to boss them around; now they have had to endure a right wing version.” A great example given in the article is the government intervention in the Terri Schiavo case.

Whether the Democrats retake the presidency in 2008 is up for debate, but at least for now Democratic candidates are favored over Republican ones by a wide margin. Only time will tell how far the pendulum will swing and once it is there how long it will stay. If the Democrats regain power in 2008 the pendulum will probably start to swing back to the right after awhile. One thing we always know for sure is that it always swings from left to right and then back again.

Government Surveillance of U.S. Citizens

Civil liberty groups are upset with plans to expand the use of high-tech surveillance equipment for domestic security purposes. As reported in the Washington Post, President Bush has authorized the use of surveillance technology, previously only available for surveillance of foreign countries, for domestic use. The goal of authorizing the use of this higher powered technology is to improve domestic security by doing such things as preventing illegal immigration and further instances of domestic terrorism. Such technology is already in use for scientific purposes, and has been in use on a case-by-case basis when such assistance has been requested; however, civil liberty groups claim that the implementation of such technology for domestic surveillance on such a wide basis would be akin to having a real life "Big Brother".

While it appears no lawsuit has yet been filed challenging this authorization of technology use, government lawyers were in Court yesterday defending warrantless surveillance of U.S. citizens. Electronic Frontier Foundation, Plaintiffs in one case, had sued AT&T, accusing the company of collaborating with the National Security Agency in order to "data-mine" Americans' communications, violating the First and Fourteenth Amendment of the United States Constitution (further case background can be found here). At the same time in front of the Ninth Circuit Court of Appeals was a case by an Islamic charity challenging warrantless surveillance based on the fact that such surveillance violates the attorney-client privilege. Although the government lawyers argued that such surveillance is required to ensure that national security is maintained, the New York Times is reporting that the Court is leaning towards letting at least one of the cases proceed for further hearing.

Books and Digital Rights Management: A New Path?

New-media watchdog Medialoper’s blog entry in June concerning the effects of digital rights management (DRM) upon books discusses a novel approach to the question of what kind of free or “preview” material book publishers should offer to online users:

“Michael Jensen of National Academies Press (NAP), a publisher of academic books and reports, described how his company has increased sales by making the full content of all of its books available for free online. While readers can easily skim a book online, quite a few actually purchase the full book from the NAP website. Jensen notes that reading online is still not an optimal experience, as a result many readers are happy to pay for a printed edition.”

While both the music industry and movie industry continue to wrestle with the legal implications of online forms of media distribution (such as file-sharing technologies like peer-to-peer, or P2P, networks), book publishers have yet to face the same level of controversy often associated with DRM. The NAP’s decision to offer unrestricted online access to its catalog is bold, but may signify a potential future direction that will account for the inherently unique properties that books possess as a media format.

Ohio Counties Improperly Destroy/Lose Ballots

The Cincinnati Enquirer is reporting today that ballots from fifty-six Ohio County Boards of Elections have been either lost or destroyed. These ballots, from the 2004 election, are only required by federal law to be kept twenty-two months after the date of election, but an Ohio Judge had ordered that the time for preserving these ballots be extended.

Although an order was entered requiring extended preservation of these ballots, a number of counties discarded ballots when the twenty-two month time period expired, primarily due to space considerations. No allegations are being made that the violations of the Judge’s order were intentional, and as such it is uncertain whether any penalty will be levied against these Boards of Elections.

While the ballots in question had been cast nearly three years ago, questions concerning the validity of the 2004 election, specifically the Presidential election and the results from Ohio, are still being widely raised. Additionally, there is at least one civil rights lawsuit still pending in an Ohio Court relating to these ballots. However, with the destruction and/or loss of a significant number of ballots, the allegations made in this suit of improper votes and suppression of votes, as well as the allegations made by others claiming improprieties in the 2004 election, may no longer be able to be verified.

Due to the loss and destruction of these ballots, it is uncertain whether there was any misconduct related to the 2004 election; without these ballots, such questions of wrongdoing cannot now be substantiated. Even though proper maintenance of the ballots would have little or no effect on the results of the 2004 election, the preservation of these ballots could have allowed for verification of wrongdoings in Ohio’s election process that may require correction prior to the next Presidential election in 2008.

The Jena 6 and Civil Rights

The Chicago Tribune has recently reported on the continuing legal story of six African-American high school students who are facing criminal charges stemming from an extended period of violent civil unrest in Jena, Louisiana. As Howard Witt’s May 20 article for the Tribune notes, the collective potential maximum sentence of 100 years for the “Jena 6” has garnered criticism over whether due legal recourse is possible in Jena due to the town’s historical racial relations:

“Still others, however, acknowledge troubling racial undercurrents in a town where only 16 years ago white voters cast most of their ballots for David Duke, the former Ku Klux Klan leader who ran unsuccessfully for Louisiana governor.”

Mychal Bell, the first defendant to face trial in the case, faces sentencing on September 20 (originally scheduled for July 31) after his conviction in June on charges of aggravated second-degree battery and conspiracy. The NAACP (along with several other social justice groups) has publicly supported the Jena 6, and has specifically called for a retrial based on questionable factors during Bell’s case, including the selection of an all-white jury.

Legal Conference Watch -- new blog

The reference department at the Gallagher Law Library of the University of Washington School of Law developed this blog to alert anyone interested in learning about upcoming conferences. What a great idea!

Although in its infancy, this blog may prove to be quite useful to anyone interested in attending a law related conference or presentation. If you hear about upcoming conferences that you think should be added, please send an e-mail to Mary Whisner at whisner@u.washington.edu. It is worth mentioning that the authors do not plan to include continuing legal education programs or local bar association meetings.

Court Denies Access to Experimental Medication

Yesterday, in an 8-2 decision, the D.C. Circuit Court denied the creation of a right for dying patients to have access to experimental drugs which have not yet received FDA approval. In its opinion in the case of Abigail Alliance, et al., v. Eschenbach, et al., the Court of Appeals held that there is no fundamental right of terminal patients to access these treatments.

The Alliance was seeking, and will most likely continue to seek through an appeal to the United States Supreme Court, access to drugs that the FDA has deemed safe enough for continued human testing, but not yet cleared for commercial sale. This continued testing may take several months or even years; many of the patients represented in this litigation do not have such time to wait for the completion of this testing. A three-judge panel had previously held that these terminally ill patients had a right to assume this risk, but this decision was vacated and a new hearing, leading to the decision Tuesday, was ordered.

The dissenters argued that the issue in this case was the need to save the lives of these patients. The majority, however, disagreed with The Alliance’s argument that preventing patient access to these experimental drugs denied them of their Fifth Amendment rights and deprived them of their right to self-defense. The majority opinion stated that such a right to self-defense is not entrenched in our nation’s history, and that such right must be balanced against “scientific and medical judgment”.

It would seem likely that The Alliance will ask the United States Supreme Court to hear their arguments. However, whether the Court decides to hear the case is uncertain.

Related Links: New York Times, ScotusBlog

Archival Digitization: Value or Availability?

In its June 11th issue, the New Yorker featured D.T. Max’s lengthy essay on the renowned University of Texas’ Harry Ransom Humanities Research Center and its current director, Tom Staley. While the essay is primarily notable for its analysis of how Stanley’s win-at-all-cost acquisition practices have contributed to the Center’s status as a world-class destination for literary research, it also includes a fascinating bit about his approach towards archival digitization:

“Staley’s conservatism extends beyond his literary taste. He does not want to place the Ransom’s archives online. He believes, quoting Matthew Arnold, that ‘the object as in itself it really is’ can never be replaced by a digital reproduction…
“The same month that Staley bought Norman Mailer’s archive, U.T. announced that the school would remove nearly a hundred thousand books from the undergraduate library to make way for ‘an information commons’ of computer clusters. ‘That’s not us,’ Staley said. I once asked Staley what role he saw the Ransom Center fulfilling fifty years from now, with its boxes of yellowing rough drafts typed out on manual typewriters and piles of letters written with fountain pens by candlelight. ‘There will be these bastions, whether the ruins of Athens or these archives, and they will be all the more valuable,’ he said.”

It is important to note that despite this policy, the Center offers free access to the general public as well as scholars and students. Nevertheless, the New Yorker’s July 9th and 16th issue included a response from reader Jon Jeffryes (unfortunately not available online) that highlights a valid and obvious counterargument to Staley: “Right now, the archives are a symbol of information elitism…Digitization [of archival material] democratizes that information by making it viewable to anyone who can find an open Internet connection. The process is meant to make as much information as easy as possible to obtain…”

Introduction

Welcome to Nota Bibliothecae, the new voice of the Zimmerman Law Library. While this re-launch of our blog retains the overarching concept of social justice from our last incarnation (Vox Bibliothecae), we look forward to incorporating other subjects and viewpoints that relate to contemporary cultural and legal issues. Please join us for our (more or less) daily postings.