In the News

What are the implications of the most recent Supreme Court decisions?

Jesse Choper interviewed on KALW-FM, Your Call, June 30, 2014

“I don’t think that anybody made light of the fact that the issue of freedom of choice is a very, very important one for women and for other people as well. But I think you want to remember that the Supreme Court was willing to assume that it was a compelling interest.”

The Supreme Court and the death of free TV

James Tuthill writes for Corporate Counsel, (free membership required) June 30, 2014

The court, as is typical with many judicial decisions, barely mentions the real issue: the huge sums of money broadcasters receive from cable and satellite companies to “retransmit” the broadcasters’ programming to cable and satellite subscribers, and the threat Aereo presented to that business model. These “retransmission” fees continue to put upward pressure on cable rates, and they are a significant reason why cable rate increases continue to exceed inflation.

‘Picking quarrels’ casts shadow over Chinese law

Stanley Lubman writes for The Wall Street Journal, China Real Time blog, June 30, 2014

On top of prosecutions for vaguely defined crimes such as “picking quarrels,” the rules for journalists and lawyers restrict public expression of views by the two groups who should be most involved in interpreting party-state policies and actions. Ordinary citizens who might contemplate taking their grievances to the streets can’t discern a “line” other than one that suggests that they should keep their dissatisfactions to themselves.

War criminal accepts conviction and expresses regret for victims’ suffering

Stephen Smith Cody writes for The Huffington Post, June 26, 2014

Writing for the majority, the other two judges, Judge Cotte and Judge Diarra, had redefined the standard for Katanga’s participation in the alleged crimes from “perpetrator” to “contributor” before ruling that Katanga was guilty of one count of crimes against humanity and four counts of war crimes. Some, including Judge Van de Wyngaert, viewed such ratcheting down of the standard for conviction during trial as a violation of due process and the rights of the accused.

Police ready to abide by court’s cellphone ruling

David Sklansky quoted in the Associated Press, June 26, 2014

“It certainly is true that if the police are just allowed to rummage through the cellphone of any arrestee without a warrant they can find all kinds of things that might be helpful,” said David Sklansky, a UC Berkeley law professor who’s written on Fourth Amendment issues. “The court recognizes that, but the court says that privacy is not costless. Sometimes honoring the Constitution means that law enforcement does not have advantages that it otherwise would have.”

Symposium: Aereo, disruptive technology, and statutory interpretation

Peter Menell and David Nimmer write for Scotus Blog, June 26, 2014

No one should be entirely satisfied with where the Supreme Court’s resolution of this case leaves the larger policy determination. The Copyright Act of 1976 is indeed creaky. While its drafters enunciated purposes and principles that have guided the evolution of copyright protection, we are nearly half a century beyond those drafting choices. Thus, while we commend the Supreme Court’s faithful execution of its Constitutional role, we nonetheless believe that the time is ripe to consider how best to reform the Copyright Act for the current technological age.

Supremes curb Obama’s executive overreach

John Yoo interviewed on WSJ Live, Opinion Journal, June 26, 2014

“I think it’s a rebuke to President Obama, but, at the same time, this decision plays the delicate task of trying to preserve presidential power for the next president. It still says that the president has this power to appoint lower executive branch officials during recess, but that President Obama stretched the power too far, even too far for all nine members of the Supreme Court.”

Oklahoma death row inmates sue over ‘unsound’ execution practices

Megan McCracken quoted in Los Angeles Times, June 26, 2014

“In the aftermath of Clayton Lockett’s horrifically bungled execution at the end of April, there are so many unanswered questions about whether Oklahoma can humanely carry out executions,” Megan McCracken of the UC Berkeley School of Law’s Death Penalty Clinic told the Los Angeles Times.

Hillary Clinton’s S.F. stop brings buzz to Napolitano, Granholm

Jennifer Granholm noted in San Francisco Chronicle, June 25, 2014

Already, there’s buzz around University of California President Janet Napolitano, the former governor of Arizona and Homeland Security secretary, and former Michigan Gov. Jennifer Granholm, now teaching at UC Berkeley and a star endorser of the Ready for Hillary political action committee.

How do witnesses feel testifying against accused war criminals?

Stephen Smith Cody and Robin Mejia write for The Huffington Post, June 24, 2014

The Human Rights Center at UC Berkeley School of Law has just released “Bearing Witness at the International Criminal Court,” the first empirical study to document the perspectives of ICC witnesses, many of whom survived heinous violations of human rights. The study surveys more than 100 witnesses from the first two ICC cases, those against Congolese warlords Thomas Lubanga Dyilo and Germain Katanga.

Providers outspend tech giants in net neutrality fight

James Tuthill quoted in San Francisco Chronicle, June 21, 2014

“You need (Amazon CEO Jeff) Bezos and (Google Executive Chairman Eric) Schmidt and (Google co-founder) Sergey Brin up in Washington. All the time. Visiting the halls of Congress. Testifying before committees. Speaking to the White House and talking to the FCC,” said James Tuthill, formerly Pacific Bell’s chief attorney for its matters before the FCC. “I don’t see that.” Tuthill says Silicon Valley’s lobbying efforts lack sophistication compared with the telecoms. “It surprises me, because their management, their resources are equal and they have the intelligence, but they don’t focus on it,” he said.

An open letter to UK foreign secretary William Hague and UNHCR special envoy Angelina Jolie

Kim Thuy Seelinger writes for The Huffington Post, June 17, 2014

Heartened to see the energetic dialogue and political participation you have facilitated, we offer some thoughts about the state of our knowledge regarding the patterns, causes and consequences of sexual violence in war. We do so to highlight the need for evidence-based policy and programming on such a complex issue as conflict-related sexual violence.

Do challenges to lethal injection executions have a future?

Megan McCracken interviewed on WABE-FM, All Things Considered, June 17, 2014

“The challenge does not address the conviction for the crime; it does not challenge the sentence of death. It challenges specifically the lethal injection procedures on the grounds that they present a substantial risk of pain and suffering. In Georgia, Mr. Wellons’ legal team is focusing on the lack of information—the secrecy surrounding the execution procedures—and saying that without this specific information about the drug that will be used, the court cannot meaningfully assess whether or not the execution procedures comply with the 8th Amendment.”

U.S. edges closer to Europe in attitude toward capital punishment

Franklin Zimring quoted in The New York Times, June 16, 2014

“The first thing that happens is a radical downsizing in the scale of the use of capital punishment,” said Franklin E. Zimring, a law professor and death penalty specialist, describing the typical process through which nations move toward ending the death penalty. Through most of the last century, “there was a strategic withdrawal from capital punishment as business-as-usual in European nations, long before abolitions started to spread.”

Man convicted of attempted murder of UC Berkeley student sentenced to 170 years to life

Jonathan Simon quoted in The Daily Californian, June 16, 2014

But opponents of long prison sentences — such as Jonathan Simon, a professor at the UC Berkeley School of Law — argue punishments of the length Jarvis received exact a psychological toll and violate the Eighth Amendment, which prohibits cruel and unusual punishment. “A penalty that serves no penological purpose can only be degrading,” Simon said in an email.

Harvard professor challenges school’s denial of tenure

Mary Ann Mason cited in The Boston Globe, June 13, 2014

Judicial interpretations in the last two decades have made it more difficult to win a tenure discrimination complaint, Mary Ann Mason wrote in the Chronicle of Higher Education in 2010. Mason, a professor at the University of California’s Berkeley School of Law who studies gender in academia, said a plaintiff has to prove not only that the reason given for tenure denial is untrue, but that the real reason is sex discrimination.

Appeals court upholds wins for fair use in HathiTrust case

Molly Van Houweling quoted in Library Journal, June 12, 2014

“Fair use serves authors who want to be found, not forgotten. HathiTrust allows readers to find books that might otherwise be forgotten in its collections to either check it out from the library or purchase it,” Van Houweling told LJ. “Helping readers find relevant resources is a classic function of libraries, and shows what a friend to authors libraries are, not only in acquiring authors’ books, but also helping readers find them. For authors who want to find new readers, that’s a critical function.”

Sexual violence cases in Liberia and Ivory Coast a challenge to justice

Kim Thuy Seelinger quoted in The Guardian, June 11, 2014

Seelinger hopes the summit’s pledges of support are realised and lead to concrete action. The international protocol is intended to be a “handbook” to improve the quality of evidence collected so that one day it could be admissible in court. It’s an “ambitious document,” she says, adding the challenge is how to make it truly useful on the ground.

Prominent human rights lawyer denied bail by Chinese authorities

Rachel Stern quoted in Inside Counsel, June 11, 2014

Looking at the big picture, Stern says there has been a “long string of detentions and arrests of politically-inclined lawyers” in China. “Since at least 2004, the Chinese authorities have been watching the legal profession carefully and cracking down on outspoken lawyers, especially those who refuse to listen to warnings,” Stern said.

San Quentin plans psychiatric hospital for death row inmates

Franklin Zimring quoted in Los Angeles Times, June 10, 2014

“This is the only place on Earth where you’d be talking about building a psychiatric hospital for condemned prisoners,” said Berkeley law professor Franklin Zimring, who has written about the U.S. capital punishment system. “It is a measure of American greatness and American silliness at the same time.” Federal courts have ruled that it is unconstitutional to execute people who are not aware of what is happening to them. “We are curing them to make them executable,” Zimring said.