WUSTL School of Law News

Atrocities Prevention Board could significantly change U.S. foreign policy

2012-05-15 00:00:00

President Barack Obama recently announced the establishment of an Atrocities Prevention Board as part of his comprehensive strategy to prevent genocide and mass atrocities.

“For the first time, the National Intelligence Council will prepare an estimate on the global risk of mass atrocities and genocide,” says Leila Nadya Sadat, JD, international law expert and director of the Whitney R. Harris World Law Institute at Washington University in St. Louis School of Law.

Sadat

“By sensitizing the diplomatic and intelligence communities to atrocities risk and systematizing responses to potential crises, the policies of the Atrocities Prevention Board could significantly change U.S. foreign policy,” she says.

The Atrocities Prevention Board is a key feature of the reforms package initiated following the Presidential Study Directive in August 2011 that made the prevention of atrocities a key thrust of U.S. foreign policy.

The board is made up of senior officials from throughout the federal government, including the U.S. Departments of State and Defense as well as the federal agency USAID, and will convene once a month to create and implement policies to prevent atrocities and respond urgently to situations as they arise.

Sadat, the Henry H. Oberschelp Professor of Law at WUSTL, is director of the Crimes Against Humanity Initiative, which has drafted a Proposed International Convention on the Prevention and Punishment of Crimes Against Humanity (law.wustl.edu/harris/crimesagainsthumanity/).

She noted “the adoption of the Proposed Convention would provide a tool that the Atrocities Prevention Board can use to address developing or ongoing situations of mass atrocities by ensuring that states – including the United States – do not unwittingly or purposefully harbor the perpetrators of crimes against humanity.”

“This bold move by the president sends a clear message that the United States is committed to preventing and responding to atrocities as a moral stance as well,” Sadat says.

Washington University School of Law goes online with LLM in U.S. Law

2012-05-08 00:00:00

Washington University School of Law announced it will begin offering its Master of Laws in U.S. Law for Foreign Lawyers (LLM) in a new and innovative online format. Called @WashULaw, the program is the first and only top-tier online LLM in U.S. law.

The online LLM builds on the law school’s internationally recognized postgraduate law degree program, which is designed for foreign attorneys interested in increasing their knowledge of U.S. law to more effectively practice in today’s global legal environment.

@WashULaw will allow foreign lawyers to complete an LLM degree in U.S. law without leaving their law practices or relocating to the United States.

Students will receive an excellent grounding in U.S. law, with a focus on business issues, without dramatic disruption to their professional and personal lives, or the relocation costs associated with a prolonged stay overseas. @WashULaw provides foreign lawyers with a flexible option to earn their degree from a world leader in legal education and research.

“We aim to produce extraordinary graduates who benefit from the highest caliber online education available – and to ensure that the quality equals or exceeds the quality of the best LLM programs in the world,” says Kent Syverud, dean of the School of Law and the Ethan A.H. Shepley Distinguished University Professor.

The @WashULaw LLM program offers students an online version of Washington University School of Law’s on-campus LLM curriculum, with:

Courses designed and taught by WUSTL law school faculty, who are renowned legal educators and scholars;
Classes of students who meet the same selective admissions criteria as the on-campus graduate law program;
An LLM degree identical to the one received by on-campus graduates and the option to attend the campus graduation ceremony;
Intimate classes of no more than 15 students; and
An optional summer immersion in U.S. law experience offered in the U.S. and taught by WUSTL faculty.

Delivered through state-of-the-art online technologies, @WashULaw courses will integrate live classroom sessions with streaming video and self-paced content. In live classroom sessions, WUSTL law faculty and @WashULaw students will “meet” at pre-arranged times for coursework discussions, study groups and face-to-face office hour meetings.

The self-paced content offers students high-quality, faculty-designed coursework, highly produced video content and an interactive social technology platform that allows students to chat, study and join communities with classmates and professors 24 hours a day.

During the summer, @WashULaw students will be offered an intensive U.S. immersion program in St. Louis, Washington D.C. and other U.S. cities to experience U.S. law from inside U.S. courtrooms and law firms.

@WashULaw is being directed by Melissa Waters, JD, professor of law, and Tomea Mersmann, JD, associate dean for strategic initiatives and lecturer in law. An advisory council is being formed to engage the WUSTL School of Law community and thought leaders in education in the development of @WashULaw.

One of the initial advisory council members, Andrew Puzder, CEO of CKE Restaurants Inc., is enthusiastic about the opportunities and benefits provided by @WashULaw.

“I have been extremely supportive of this program since day one. I manage our company by the maxim that to survive and prosper, companies must take advantage of current technology and innovate,” says Puzder, also a member of the law school’s National Council.

“I am proud that my law school is embracing technology, without sacrificing quality, to expand its presence in global legal education.”

WUSTL School of Law has partnered with the education technology company 2tor, Inc. to deliver @WashULaw. 2tor partners with leading higher education institutions to deliver rigorous, selective degree programs online by providing the technology platform, instructional design, marketing and infrastructure support.

"We’re honored to add Washington University to the esteemed family of 2tor partners," says Chip Paucek, co-founder and CEO of 2tor. "We’re thrilled to be working with a school that is pioneering a law program for the 21st century and one that is primed for an increasingly globalized world."

Education innovation expert Michael B. Horn also is a member of the program’s initial advisory council. Horn is the co-founder and executive director of the education practice of Innosight Institute, a nonprofit think tank devoted to applying the theories of disruptive innovation to solve problems in the social sector.

“It's exciting that a top-tier law school is taking a leadership role in online learning,” Horn says. “Washington University’s partnership with 2tor is a clear signal that the field of online learning is being invigorated and transformed by top-flight entrants.”

@WashULaw is now accepting applications; classes begin in January 2013. International applicants must first earn a law degree from their home jurisdiction.

For more information, visit onlinelaw.wustl.edu, email admissions@onlinelaw.wustl.edu or call 888-WashULW (888- 927-4859).

About Washington University School of Law

Washington University School of Law offers students an outstanding legal education in an intellectually challenging and collegial environment.

With faculty members recognized for excellent teaching and scholarship, a student body among the most selective in the country, and an increasingly global and diverse community, the school strives to prepare graduates for the quickly evolving legal and business environment.

@WashULaw is an example of the law school’s efforts to innovate using technology and new teaching methods as it pursues its mission to be the best place in the United States to learn to be a lawyer.

About 2tor, Inc.

2tor, Inc. partners with top-tier universities to deliver rigorous, selective graduate programs online. Founded in 2008 by a unique team of education veterans, the company provides universities with the web technologies, infrastructural support and capital needed to compete in a space previously dominated by mediocre online programs.

2tor is one of the highest-funded education technology startups in the United States. The company has partnered with prestigious research universities, including the University of Southern California, Georgetown University and the University of North Carolina Chapel Hill, to deliver groundbreaking online degree programs.

Inaugural Ferencz essay contest at Washington University School of Law focuses on crimes against humanity

2012-05-09 00:00:00

Individuals interested in addressing the relationship between crimes against humanity and the crime of aggression are invited to participate in the inaugural Benjamin B. Ferencz Essay Competition, hosted by the Whitney R. Harris World Law Institute at Washington University School of Law.

“Given that the crime of aggression is not currently enforceable at the International Criminal Court (ICC), the competition aims to address whether illegal uses of force, interstate or otherwise, resulting in significant loss of life may currently be prosecutable before the ICC as crimes against humanity,” says Leila N. Sadat, JD, director of the Harris Institute and the Henry H. Oberschlep Professor of Law at WUSTL.

The contest, named in honor of former Nuremberg prosecutor Benjamin B. Ferencz, calls for scholars and students from around the world to answer the question: Under what conditions may acts that constitute illegal use of armed force and that result in the widespread or systematic attack upon a civilian population be prosecuted as crimes against humanity by the ICC, pursuant to the Rome Statute?

Contestants are encouraged to register for the competition at the competition’s website (http://law.wustl.edu/harris/pages.aspx?id=9126) as soon as possible. The deadline for submission of entries is 5 p.m. (Central Daylight Time) Friday, Aug. 31, 2012.

The first-place winner will receive an award of $10,000. Second- and third-place runners-up each will receive an honorable mention and a plaque as well as runner-up awards in the amount of $2,500.

The first-place winner will be invited to St. Louis, Mo., for an award ceremony that will take place during the International Criminal Court at Ten conference Nov. 11 and 12, 2012.

The essay will be included in the symposium issue published by the Washington University Global Studies Law Review resulting from the conference.

Visit the Harris Institute’s website for additional information on eligibility, requirements and guidelines for the competition. For more information, contact Bethel Mandefro at bmandefro@wulaw.wustl.edu.

Outstanding Graduate Addie Smith: School of Law

2012-05-15 00:00:00

David Kilper

Smith studies in Crowder Courtyard earlier this spring. After graduation, she will move to Portland, Ore., to advocate on behalf of Native American children.

Adrian "Addie" Smith has spent much of her life searching for the right spot to focus her enthusiasm for building a brighter future for disadvantaged children.

And she appears to have found it. After graduation May 18, she will become a government affairs associate at the National Indian Child Welfare Association (NICWA), a nonprofit that lobbies on behalf of American Indian and Alaska Native children and directly supports tribal sovereignty and child welfare systems.

She’s looking forward to pushing for changes in policies that have often failed to meet the needs of these families.

"I've always wanted a career that would allow me to help children, but trying to do the right thing for people at the individual level can be very frustrating," Smith says.

"You might get a child out of a dangerous situation or put an abuser in prison, but, at the end of the day, it can seem as though you've done nothing to fix the real problems that plague these families,” she says.

“I realized the only way to make a real difference is to focus on big-picture systems change."

Before coming to Washington University in St. Louis, Smith earned a bachelor's degree in psychology from Boston College in 2006. She spent two more years there working with women with severe Anorexia Nervosa and as a research coordinator on a National Institute of Mental Health grant before realizing she needed a new direction.

Smith’s time at WUSTL has been a whirlwind. She began with a rigorous first year in the School of Law, followed by an internship in the family violence unit of a Denver prosecutor’s office. In her second year, she took a course on American Indian law with Steven J. Gunn, JD, an adjunct professor of law, who works closely with tribes on sovereignty and other legal issues.

Smith, who had briefly lived on an Indian reservation as an undergraduate, quickly became immersed in the class. “I loved the professor,” Smith says. “He really encouraged me to consider working on American Indian issues.”

Gunn helped Smith land an internship with the Council for Native Hawaiian Advancement in Honolulu, where she co-wrote briefings and other policy tools on minority small business programs and other uniquely Native Hawaiian issues (and learned to surf in her spare time). She spent her third summer in Portland in a practicum with NICWA.

Along the way, she has squeezed in stints as a deputy juvenile delinquency officer with St. Louis County Family Courts; as a research assistant to law professor Susan Appleton, JD; and as a visiting teacher for a legal issues class at a local high school.

Smith also counsels her classmates on effective case briefings, information synthesis and time management.

“She is amazing,” says Elizabeth Walsh, assistant dean for student affairs in the School of Law.

This summer, after graduating with dual professional degrees in law and social work, she's bound for NICWA, which is based in Portland, Ore.

"I'll be doing national child welfare policy. Policy work is a really good fit for the skills I have gained as a dual (JD/MSW) degree student.

“Policy brings together the analytical skills that necessary to law and the big-picture understanding that comes from practicing social work — the policy nexus of the two degrees is really obvious when the topics are social welfare and systemic oppression.”

She’s also looking forward to hiking in the Pacific Northwest. She has hiked the Haleakala Crater in East Maui. She has clambered up rocks and through meadows in Chautauqua Park near Boulder, Colo. Odds are, she’s planning a return trip up Lookout Mountain when she finds time away from her new job.

“I love to hike, and that’s part of the reason I chose Denver, Honolulu and Portland for my internships,” Smith says.

Privacy law expert warns of the perils of social reading

2012-05-08 00:00:00

The Internet and social media have opened up new vistas for people to share preferences in films, books and music. Services such as Spotify and the Washington Post Social Reader already integrate reading and listening into social networks, providing what Facebook CEO Mark Zuckerberg calls “frictionless sharing.”

"But there’s a problem. A world of automatic, always-on disclosure should give us pause,” says Neil M. Richards, JD, privacy law expert and professor of law at Washington University in St. Louis.

Richards

“'Frictionless sharing’ isn’t really frictionless – it forces on us the new frictions of worrying who knows what we’re reading and what our privacy settings are wherever and however we read electronically. It’s also not really sharing – real sharing is conscious sharing, a recommendation to read or not to read something rather than a data exhaust pipe of mental activity.

“Rather than ‘over-sharing,’ we should share better, which means consciously, and we should expand the limited legal protections for intellectual privacy rather than dismantling them.”

Richards says that what’s at stake is “intellectual privacy,” his term for the idea that records of our reading and movie watching deserve special protection compared to other kinds of personal information.

“The films we watch, the books we read and the websites we visit are essential to the ways we try to understand the world we live in,” he says.”

“Intellectual privacy protects our ability to think for ourselves, without worrying that other people might judge us based on what we read. It allows us to explore ideas that other people might not approve of, and to figure out our politics, sexuality and personal values, among other things.

“Sharing and commenting on books, films and ideas is the essence of free speech.”

Richards notes that the work of the American Libraries Association and its Office of Intellectual Freedom (OIF) offers an attractive solution to the problem of reader records.

“The OIF has argued passionately and correctly for the importance of solitary reading as well as the ethical need for those who enable reading – librarians, but also Internet companies – to protect the privacy and confidentiality of reading records,” he says.

“The norms of librarians suggest one successful and proven solution — professionals and companies holding reader records must only disclose them with the express conscious consent of the reader.

“The stakes in this debate are immense. Choices we make now about the boundaries between our individual and social selves, between consumers and companies, between citizens and the state, will have massive consequences for the societies our children and grandchildren inherit.”

Read more of Richards comments on intellectual privacy on the OIF Blog- http://www.oif.ala.org/oif/?p=3720 or read his full essay, "The Perils of Social Reading," at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2031307 .

National Day of Prayer takes on added significance in 2012

Jessica Martin — 2012-04-25 00:00:00

The National Day of Prayer typically sparks debate about whether the day violates the establishment clause from the First Amendment to the U.S. Constitution.

This year’s observance on May 3, however, likely will take on added significance, says John Inazu, JD, First Amendment expert and professor of law at Washington University in St. Louis. The reason? 2012 marks the 50th anniversary of the Supreme Court’s decision in Engel v. Vitale, which invalidated official prayer in public schools.

“Some religious believers will likely use the day of prayer to call attention to what they view as a regrettable and consequential decision,” Inazu says.

Establishment clause questions persist

The constitutionality of the National Day of Prayer hinges on the establishment clause of the U.S. Constitution, which has been interpreted to prohibit the establishment of state-endorsed religion and/or the preference of one religion over another.

Whether official recognition of the National Day of Prayer violates the establishment clause is a complicated question, says Gregory Magarian, JD, constitutional law expert and WUSTL law professor.

“There are two particular aspects of the National Day of Prayer issue that make it a tough one,” Magarian says.

“First, the question whether official policies that favor religion generally over non-religion generally has divided the justices of the Supreme Court, with no truly authoritative resolution to the question. Arguably the National Day of Prayer is such a policy. On the other hand, it may not be; not all religious practices prominent in the United States involve ‘prayer’ as such.

“Second, the court tends to grow more concerned about official policies that favor religion when the policies entail some kind of actual observance. Official recognition of a National Day of Prayer, without more, doesn't make anyone do anything.”

Magarian says that if a public school imposed a prayer requirement on students in conjunction with the National Day of Prayer, it certainly would violate the establishment clause.

“But arguably official recognition of the day, without more, simply amounts to the sort of ‘ceremonial deism’ that the court has long tolerated, for example, in allowing the words ‘In God We Trust’ to appear on money,” he says.

“On the other hand, the court's prevailing doctrine rejects official practices that send a message of endorsement of religion, on grounds that such endorsements treat nonbelievers as second-class citizens.”

Magarian believes the current court would reject an establishment clause challenge to the National Day of Prayer, treating official recognition of the day as an inconsequential instance of ceremonial deism that shows equal regard to many religious beliefs.

Inazu agrees but cautions that secular opponents to prayer in schools should not be the only ones concerned by that outcome.

“For many religious believers, prayer matters because its object — God — matters. If the justification for ‘official’ prayer renders the prayer merely ‘ceremonial,’ then observing the National Day of Prayer may be at cross-purposes with faithfulness.

“Ceremonial deism risks harming believers as well as non-believers,” Inazu says.

Law school presents Distinguished Alumni Awards, Dean's Medal

2012-04-26 00:00:00

Washington University in St. Louis School of Law celebrated the outstanding achievements of seven individuals at the annual Distinguished Alumni Awards Dinner April 20 in the Crowder Courtyard of Anheuser-Busch Hall.

Kent Syverud, JD, dean and the Ethan A.H. Shepley Distinguished University Professor, presented the awards. Four alumni received Distinguished Law Alumni Awards, and two received Distinguished Young Law Alumni Awards.

Thomas R. Green, JD, received the Dean’s Medal. The Dean’s Medal is the highest honor the dean can bestow.

Selected entirely by the dean, the award is designed to acknowledge a person who has made extraordinary contributions to the law school, including the contributions of inspiring others and enhancing the school’s progress.

Dean’s Medal

Green (JD ’58) founded and is a director and majority shareholder of Royal Bancshares, a $450-million bank holding company with five locations in St. Louis.

After law school, Green became an assistant county counselor for St. Louis County. At the same time, he maintained his own small general practice, which he later expanded to specialize in real estate law. He also started investing in real estate development projects during the 1960s and 1970s. His success prompted the opening of a full-time real estate development office.

A former assistant attorney general of Missouri, Green remains active in politics. He is a member of the Academy of Missouri Squires and serves on the board of the Democratic Senatorial Campaign Committee.

An active participant in the Jewish Federation of St. Louis for more than 30 years, Green served as its president from 1986-88. He served as chairman of the committee to build the Holocaust Museum of St. Louis and was the museum’s first chairman.

Green also served on many national Jewish organizations. Among his many honors, he was awarded the Israel Peace Medal in 1989.

Green is a longtime supporter of the law school serving on the “Building for a New Century Campaign” and is chairing the Kresge Challenge Campaign that helped secure the funds to build Anheuser-Busch Hall.

He has served on the law school’s National Council and its Eliot Society Membership Committee.

In 2002, Green and his wife, Karole, established the Thomas and Karole Green Professorship in the law school.

Distinguished Law Alumni

Lawrence Brody (JD ’67) is a partner of Bryan Cave LLP, an international law firm. Residing in the St. Louis office, he is a member of its Private Client Service Group and its Technology, Entrepreneurial & Commercial Practice Client Service Group.

Brody is an adjunct professor at the law school and a visiting adjunct professor at the University of Miami Law School.

He is the author or co-author of numerous articles and books on the use of life insurance in estate and employee benefit planning. Brody is a member of both The American College of Trust and Estate Counsel and The American College of Tax Counsel.

He received the designation of Accredited Estate Planner by the National Association of Estate Planners & Councils (NAEPC).

Brody was one of 10 individuals awarded NAEPC’s Distinguished Accredited Estate Planner designation in the initial class in 2004.

Alan C. Kohn (AB ’53, LLB ’55) is a St. Louis trial lawyer and a founding partner of the law firm of Kohn, Shands, Elbert, Gianoulakis & Giljum LLP.

In 1955, he graduated from the law school, where he was editor-in-chief of the Washington University Law Review.

After working in Germany as a lieutenant in the U.S. Army Security Agency, he returned to the U.S., where he became the first WUSTL law school graduate to be a law clerk at the U.S. Supreme Court, serving as law clerk to Justice Charles E. Whittaker.

Kohn has an extensive public service record and has served as an adjunct professor at the law school.

He was named by Best Lawyers in America as the 2011 St. Louis Trial Lawyer of the Year for Bet-the-Company Litigation. He has tried more than 100 cases and argued more than 80 appeals.

Outside of the office, Kohn relived his success as a four-year member of WUSTL’s tennis team winning gold medals in doubles and bronze medals in singles in the U.S. National Senior Olympics in 1987 and ’89.

Sandra M. Moore (AB ’76, JD ’79) is president of Urban Strategies, a not-for-profit corporation founded in 1978 that works with developers to rebuild distressed urban core communities into vibrant, safe residential neighborhoods with new housing, good schools, strong institutions and a range of human service supports and amenities.

Moore formerly served as the CEO of the Missouri Family Investment Trust, a public–private partnership entity leading Missouri’s multi-system reform efforts. She also was vice president of St. Louis 2004, Inc., a citizen-based effort to make the St. Louis region a recognized leader in the 21st century by accomplishing major projects.

Moore is former director of the Missouri Department of Labor and Industrial Relations and a former administrative judge with the U.S. Equal Employment Opportunity Commission.

Moore is committed to strengthening the growth and development of citizens and the fiber of the community as evidenced through her significant service to community organizations and institutions.

She serves on the law school’s National Council.

Sheldon Roodman (JD ’66) is the former executive director of the Legal Assistance Foundation of Metropolitan Chicago (LAF), the principal provider of free legal services in civil cases to the poor and other vulnerable groups in Cook County, Ill.

For 30 years, he played a leadership role in expanding legal services for these disadvantaged groups in the Chicago area and in establishing LAF’s reputation as one of the best legal services programs in the United States.

During the 1970s, Roodman was an active litigator and lead counsel in a number of class actions on behalf of low-income individuals seeking unemployment benefits, food stamps, welfare and/or Medicaid benefits.

His most important case reached the Supreme Court twice and dealt with the rights of a class of aged, blind and disabled welfare applicants. The Supreme Court decisions clarified the scope and application of the Eleventh Amendment to the U.S. Constitution.

Distinguished Young Law Alumni

Debbie Champion (JD ’88) is a founding partner in the firm of Rynearson, Suess, Schnurbusch and Champion.

The recipient of numerous awards for her pro bono work, Champion won an award from the Missouri Lawyers Weekly for two of the top 10 largest verdicts in 2010 and the most defense verdicts in 2011. The Women’s Law Caucus of Washington University recently honored her for her commitment to the advancement of women in the law.

In the community, Champion has served on the board of the Lift for Life Academy; the board of directors and the advisory board of the Junior Chamber of Commerce; and the board of directors of Shelter the Children. She was a founding member of Join Hands ESL, a charitable organization for underprivileged children of East St. Louis, Ill.

Champion is founder and president of Tools for Schools, a not-for-profit corporation that distributes school supplies to needy schools and children.

Judy Okenfuss (BS ’84, AB ’84, JD ’91) is a partner with Ice Miller LLP and is chair of its product liability, mass tort and class action practice area.

She focuses her practice on the defense of product manufacturers, distributors and retailers in a wide range of industries.

Super Lawyers named her one of the Top 25 Women Lawyers in Indiana in 2012. In 2011, she was given the Inspiring Women Award by the WNBA’s Indiana Fever.

Okenfuss serves on the law school’s National Council. She also has worked closely with the university to restart the alumni chapter in Indianapolis.

She is involved with a number of different organizations in Indianapolis, her personal favorite being the Peace Learning Center, an organization that teaches nonviolent dispute resolution techniques to inner-city children. She served as chair of the center’s board.

WUSTL law students win 'coveted' ABA moot court national championship

2012-04-24 00:00:00

Third-year law students Justin Lepp, Nick Rosinia and Mikela Sutrina are the first Washington University in St. Louis School of Law team to win the American Bar Association’s (ABA) National Appellate Advocacy Competition, the largest and most competitive moot court competition in the country.

The students went a combined 11-0 in the Seattle Regional and National Final en route to the championship April 14, surpassing 209 other teams from 118 law schools.

Rosinia and Sutrina also received individual recognition as the second- and third-ranked speakers overall in the six rounds of the National Final.

Lepp, Rosinia and Sutrina were crowned the champions by a final-round panel that included Seventh Circuit Judge John D. Tinder and U.S. District Court Judges Edmond E. Chang, John W. Darrah and Charles P. Kocoras.

The final round was held in the ceremonial courtroom of the Supreme Court of Illinois in Chicago.

“This was the very best final round in this competition in recent memory,” says Larry Bates, chair of the committee that administers the ABA competition.

Much like mock trials simulate the trial court experience, moot court simulates the exercise of arguing an appeal before the U.S. Supreme Court. This year’s ABA problem focused on the fictional case of a child with severe autism named Ryan Reed, who had been denied coverage for an expensive medical treatment.

In the final round, Rosinia and Sutrina petitioned on behalf of Reed, arguing that his private insurer and the fictional state of Texifornia were obligated to pay for the treatment under both the Wellstone Act and federal Medicaid law.

“There is no more coveted or elusive prize in the moot court world than the ABA national championship,” says Richard Finneran, JD, adjunct law professor and law school alumnus.

Finneran coaches Lepp, Rosinia and Sutrina, along with nine other students on Washington University’s National Moot Court Team.

“This victory solidifies our team’s status as the premier moot court program in the country,” he says.

In the preceding five years, the National Moot Court Team had advanced five teams to the quarterfinals of the ABA competition — a feat matched by no other team in the country — but until now had never eclipsed that mark. The team also competes annually in the William E. McGee National Civil Rights Competition, where it has won three national championships in the past four years.

The National Moot Court Team selects 12 students each year from the second- and third-year classes to compete in the ABA and McGee competitions. Students work together to draft written briefs over winter break and typically practice two to three times a week in the spring semester to prepare for the competition.

Advancement in the competitions is based upon a combined score that considers both their written work product and the evaluation of their oral arguments by a panel of judges, usually comprised of local practitioners.

“As exciting as it is to win, the true value of the competition is in the practical skills it teaches the students who participate,” says Finneran, who himself participated in the ABA competition when he was a student at Washington University.

“When these students stand up as young lawyers to argue their first motion in a trial court, they will have the same confidence that carried them to the pinnacle of this competition.”

Lepp, Rosinia and Sutrina are no strangers to winning championships. Rosinia and Sutrina were part of the team that won the McGee National Civil Rights Competition last spring, and Sutrina and Lepp joined forces last fall to claim victory in Washington University’s Wiley Rutledge Moot Court Competition.

Diversity and Inclusion Grants awarded

Susan Killenberg McGinn — 2012-04-24 00:00:00

A project to support Washington University in St. Louis faculty and staff who work with students from underrepresented minority groups and an internship program for underrepresented minorities that could lead to a career in a technology field are among the winning proposals of the university’s Diversity and Inclusion Grants program for 2011-12.

The Advisory Committee for the Diversity and Inclusion Grants has awarded eight grants totaling nearly $174,000 to Washington University faculty and administrators for initiatives that improve the university environment for women and members of underrepresented minority groups.

Faculty and administrators submitted 16 proposals for program initiatives that strengthen and promote diversity and inclusion at WUSTL. Diversity includes differences in gender, race, ethnicity, geography, socioeconomic status, age, politics, philosophy, disability and sexual orientation.

The Office of the Provost funds the Diversity and Inclusion Grant program. Now in its third year, the program has awarded almost $600,000 in grant money for 29 projects.

Funding for the selected projects is one-time only, and awards range in size up to a maximum of $30,000.

“We are continuing to get innovative and ambitious proposals that themselves reflect the diversity of interests in making our campus more inclusive,” says Adrienne D. Davis, JD, vice provost and the William M. Van Cleve Professor of Law and co-chair of the Advisory Committee for the Diversity and Inclusion Grants. “I think of the grants as democratizing diversity.”

“The quality of the proposals was impressive, and I am hopeful that these grants have the potential to significantly enhance diversity on campus,” says Kathleen B. McDermott, PhD, professor of psychology in Arts & Sciences and the advisory committee’s co-chair.

The project team leaders of the winning proposals, amounts awarded and project titles are:

Timothy J. Bono, PhD, assistant dean in the College of Arts & Sciences and lecturer in the Department of Psychology, $22,000 for “Supporting Faculty and Staff Who Work With Students of Color.”

Koong-Nah Chung, PhD, associate dean and director of medical student research in the School of Medicine, $30,000 for “Training of Meharry Medical College Medical Students in the Washington University School of Medicine’s Summer Research Program.”

Heather L. Hageman, director of educational planning and program assessment and director of the standardized patient program in the Office of Education at the School of Medicine, $19,450 for “Train-The-Trainer Program on Inclusion.”

Denise R. Hirschbeck, assistant vice chancellor for Information Services and Technology, $30,000 for “Expanding Diversity in Technology: Internship Program for Staffing Technology Positions on Campus.”

Panos Kouvelis, PhD, the Emerson Distinguished Professor of Operations and Manufacturing Management, senior associate dean and director of executive programs, and director of the Boeing Center for Technology, Information & Manufacturing at the Olin Business School, $30,000 for “Olin Business School Women’s Leadership Forum.”

Peter B. MacKeith, associate dean of the Sam Fox School of Design & Visual Arts and associate professor of architecture, $12,350 for “Empowering Faculty, Staff, and Administrators to Support the Integration of International Graduate and Professional Students into Departmental Communities.”

Leah A. Merrifield, executive director for academic-civic engagement in the Office of Government and Community Relations, $12,000 for “Community Guide to Washington University AND the St. Louis Region.”

Michael W. Sherraden, PhD, the Benjamin E. Youngdahl Professor of Social Development and director of the Center for Social Development, and Molly Tovar, EdD, director of the Kathryn M. Buder Center for American Indian Studies, both at the Brown School, $18,113 for the “Interdisciplinary Leadership Summit for Faculty, Staff, and Students at Washington University.

Hageman and MacKeith were winning project leaders last year as well.

Bono, who is collaborating on “Supporting Faculty and Staff Who Work With Students From Underrepresented Backgrounds” with Diana Hill, PhD, an assistant dean in the College of Arts & Sciences and lecturer in the Department of Psychology, says their project is intended to provide insight into the experiences of minority students so that faculty and staff who work with them can have a greater understanding of the most appropriate kinds of support they can offer their students as well as the particular times during the semester when that support is most needed.

“The findings have the potential to benefit academic advisers, program managers in the First Year Center, and student group advisors in Campus Life,” Bono says.

“For example, there are faculty and staff advisers for the Association of Black Students and Association of Latin American Students. However, there has been relatively little research conducted to govern the work of faculty and staff who work with these populations. We hope to provide that,” Bono says.

Hirschbeck’s project proposal includes recruiting and training talented individuals in underrepresented groups to learn and use technology skills in a structured business environment.

She says that the goal of her team’s project is to create a framework for on-the-job training and employment of individuals who either have traditionally found it difficult to enter the technology field or for whom a career in technology was not presented to them as an option.

“The Diversity and Inclusion Grant program is an important way for Washington University faculty and administrators to make a difference in promoting diversity and inclusion on campus,” Hirschbeck says.

“Our team feels very fortunate to have been selected to receive this grant. By reaching out to high school graduates and members of the WU community, we will provide a path for individuals who may feel that a career in technology is unattainable,” Hirschbeck says.

“A successful program will result in the recruitment and retention of a diverse group of employees and the delivery of university applications that employ the use of newer technology, including mobile friendly web pages and ‘apps.’”

Other members of the Advisory Committee for the Diversity and Inclusion Grants are:

Iver Bernstein, PhD, professor of history, of African and African-American studies and of American culture studies, all in Arts & Sciences;
Naomi Daradar Sigg, assistant director of student involvement and leadership in the Office of Student Activities;
Dayna Early, MD, professor of medicine in the School of Medicine;
Robert G. Hansman, associate professor of architecture in the Sam Fox School of Design & Visual Arts;
Vetta L. Sanders-Thompson, PhD, associate professor of public health in the Brown School; and
Jay R. Turner, PhD, associate professor of energy, environmental and chemical engineering in the School of Engineering & Applied Science.

For more information, visit diversity.wustl.edu.

Reactions to POTUS Supreme Court comments ‘reflect historical ignorance’

Jessica Martin — 2012-04-05 00:00:00

The Supreme Court’s upcoming decision on the constitutionality of the Affordable Care act has prompted some interesting and provocative issues about – and between – the president and the judicial branch, says Gregory P. Magarian, JD, professor of law at Washington University in St. Louis and former clerk for retired Supreme Court Justice John Paul Stevens.

“President (Barack) Obama recently suggested that for the court to overrule a major federal statute would be ‘unprecedented,’” he says.

Magarian

“He quickly amended his remarks, and properly so. The landmark case of Marbury v. Madison long ago established that the Supreme Court has power to declare federal statutes unconstitutional.”

Some commentators and judges reacted with alarm to Obama’s original comments, suggesting that they amounted to presidential intimidation of the Supreme Court.

Judge Jerry Smith of the Fifth Circuit Court of Appeals went so far as to lecture a Department of Justice lawyer about judicial power, ordering the lawyer to write the court a three-page memo explaining the court’s power to strike down statutes.

“These alarmed reactions reflect historical ignorance,” Magarian says.

“Presidents from the beginning of the republic, notably including Jefferson, Lincoln and Franklin Roosevelt, have verbally castigated the court in terms that make President Obama’s remarks sound like a fan letter.

“Presidents speak out on public issues, and the Supreme Court enjoys no immunity from the bully pulpit. Judge Smith’s tantrum is much more remarkable: for a federal judge to punish a government lawyer because the judge dislikes the president’s opinions reflects a startling lapse of professionalism and judicial temperament.”

Magarian says that even so, federal judges are supposed to be independent, and everyone – including believers in the Affordable Care Act’s constitutionality – should respect that fact.

At least one liberal commentator has argued that Congress should impeach the justices of the Supreme Court if they strike down the act.

“The Constitution does allow Congress to impeach federal judges, like the president, for ‘high crimes and misdemeanors.’ Congress has impeached and tried judges over the years, although it has not impeached a Supreme Court justice since the early days of the republic.

“But anyone who calls for impeachment of the justices based on opposition to their judicial opinions would do well to remember that the last major movement to impeach a member of the court targeted Chief Justice Earl Warren over the issue of school desegregation.

“The best understanding of ‘high crimes and misdemeanors’ is that only official misconduct warrants impeachment. The Supreme Court has made some awful decisions in its history, but even an awful decision is not a crime.”

Related history

The Supreme Court has struck down numerous federal statutes over the decades.

“What the president meant, as his amended remarks made clear, was that no precedent existed for the court to hold that a major economic regulation exceeded federal power,” Magarian says.

“That statement is correct. The court has struck down federal economic regulations, most recently in 1936, but beginning in 1937, the court sharply repudiated its earlier actions and adopted a very broad view of federal power to regulate the national economy.

“Thus, a Supreme Court decision to strike down the Affordable Care Act would be unprecedented -- although, in fairness, the ‘individual mandate’ at the heart of the case differs from earlier regulations the court has upheld.”

Trustees grant faculty promotions, tenure

2012-04-02 00:00:00

At recent Board of Trustees meetings, the following faculty members were appointed with tenure, promoted with tenure or granted tenure effective July 1, 2012, unless otherwise noted.

Promotion with tenure

Peter Benson, PhD, to associate professor of anthropology in Arts & Sciences

David L. Brody, MD, PhD, to associate professor of neurology, effective Jan. 1, 2012, with tenure effective March 2, 2012

Jacob M. Buchowski, MD, to associate professor of orthopaedic surgery, effective July 1, 2011, with tenure effect Dec. 2, 2011

Rowhea M. Elmesky, PhD, to associate professor of education in Arts & Sciences

Rebecca E. Hollander-Blumoff, JD, PhD, to professor of law

Bradley L. Jolliff, PhD, to professor of earth and planetary sciences in Arts & Sciences, effective Dec. 2, 2011

Eric C. Leuthardt, MD, to associate professor of neurological surgery, effective Oct. 7, 2011, with tenure effective Dec. 2, 2011

Jr-Shin Li, PhD, to associate professor of systems science and engineering

Lori Markson, PhD, to associate professor of psychology in Arts & Sciences

Jason C. Mills, MD, PhD, to associate professor of medicine, effective July 1, 2011, with tenure effective Jan. 1, 2012

Anca E. Parvulescu, PhD, to associate professor of English in Arts & Sciences

Nancy Y. Reynolds, PhD, to associate professor of history in Arts & Sciences

Thomas L. Rodebaugh, PhD, to associate professor of psychology in Arts & Sciences

Jessica A. Rosenfeld, PhD, to associate professor of English in Arts & Sciences

Ignacio M. Sanchez Prado, PhD, to associate professor of Spanish in Arts & Sciences

Yongseok Shin, PhD, to associate professor of economics in Arts & Sciences

Simine Vazire, PhD, to associate professor of psychology in Arts & Sciences

Amy L. Waterman, PhD, to associate professor of medicine, effective Jan. 1, 2012

Lan Yang, PhD, to associate professor of electrical and systems engineering

Qin Yang, MD, PhD, to associate professor of radiation oncology, effective July 1, 2011, with tenure effective Dec. 2, 2011

Gregory J. Zipfel, MD, to associate professor of neurological surgery, effective June 1, 2011, with tenure effective Dec. 2, 2011

Appointment with tenure

Ronald J. Mallon, PhD, as associate professor of philosophy in Arts & Sciences, effective July 1, 2011, with tenure effective Dec. 2, 2011

Gwendalyn Jan Randolph, PhD, as professor of pathology and immunology, effective Sept. 1, 2011, with tenure effective March 2, 2012

Granting of tenure

Venkat Subramanian, PhD, associate professor of energy, environmental and chemical engineering

Washington People: Brian Z. Tamanaha

Jessica Martin — 2012-03-30 00:00:00

David Kilper

Brian Tamanaha, JD, JSD (left), the William Gardiner Hammond Professor of Law, speaks with law student Pallavi Garg in the upper level of the law school library. “Brian is a spectacular scholar, teacher and citizen,” says law school Dean Kent D. Syverud, JD, the Ethan A.H. Shepley University Professor. “His work inspires careful thought, great learning and faith in the possibilities of law.”

Whether surfing in his native Hawaii, promoting the rule of law in a newly independent country or navigating difficult issues in legal education and theory, Brian Z. Tamanaha approaches each adventure with thoughtful consideration.

Even at an early age, Tamanaha, JD, JSD, the William Gardiner Hammond Professor of Law at Washington University in St. Louis, was not just thinking about going to law school — something he knew he wanted to do. He was curious about understanding law and its role.

“Growing up, whenever people talked about lawyers — they were somewhat afraid of them — lawyers made people nervous,” he says. “I wanted to know why. Why is law so important in government and society? Later, I came to understand that law has a fundamental position in many different circumstances.”

As a child of schoolteachers, Tamanaha had a long-term goal of teaching law but decided to gain some experience outside of academia after graduating from law school. So he clerked for a federal judge and then became the assistant federal public defender for the District of Hawaii.

“I wanted to learn from the inside how judges make decisions,” he says. “I also thought it was important to know lawyering before I taught law.”

Tamanaha describes his time as a public defender as “two fun years in the trenches.”

“It was an amazing experience to do trials,” he says.

“It was a real challenge; you have to be very quick on your feet and strategic. I liked that there was a bit of acting involved, too.”

From the trenches to the beaches

Courtesy photo

Tamanaha still surfs when visiting his home state of Hawaii.

Tamanaha spent the next seven months surfing the waves around Hawaii.

“My money was running out, and I needed to start looking for a job,” he says.

Out of the blue, Tamanaha was offered the position of assistant attorney general for Yap, part of the then-newly independent Federated States of Micronesia.

“I went to the bookstore and could not find Yap in the first atlas I opened — I was intrigued,” he says. “When I talked to my parents about it, they said ‘You’re a bum, and this sounds like a great job.’

“I was up for the adventure.”

Tamanaha was offered the job on a Wednesday. He was on a plane to Yap four days later.

He spent two years as one of two attorneys for Yap. As assistant attorney general to the Yapese attorney general, Tamanaha advised half of the government, including the Department of Education, and handled all types of cases, from criminal to civil and contracts cases.

“That was an incredible job,” Tamanaha says. “I had to do so many things for the government. Yap is a small place, but it has a government, so it had to be run.”

Academic adventures

Tamanaha took another step toward his goal of teaching law by earning a JSD at Harvard Law School.

From there, he was off on his next international stint as a faculty member at both the University of Amsterdam and the Van Vollenhoven Institute for Law and Administration in Non-Western Countries at Leiden University in the Netherlands.

“I grew up on an island in an idyllic setting, but I wanted to get out and see the world,” Tamanaha says. “The best way to get to know someplace is to live there. In the Netherlands, I was able to teach both American law and comparative law.”

Four years later, Tamanaha landed in New York City. He served in a variety of positions over 15 years at St. John’s University, including interim dean.

A faculty workshop drew him to WUSTL.

“I had been contacted by the law school’s hiring committee earlier, but I did not think I would be interested,” Tamanaha says.

“I thought I was going to stay where I was for a while, but when I came to the law school, I really liked it,” he says. “The faculty is incredible, and I loved the neighborhood. I went back to my wife and said we had to consider the offer.”

He joined the faculty in 2010.

“Brian is a spectacular scholar, teacher and citizen,” says law school Dean Kent D. Syverud, JD, the Ethan A.H. Shepley University Professor. “His work inspires careful thought, great learning and faith in the possibilities of law.”

In print

Scholarship has been an important part of Tamanaha’s career, no matter where he has been.

Courtesy photo

Tamanaha (right) with his daughters Sava (left) and Jolijt on vacation in Hawaii.

“I’ve written steadily since law school, even during my seven months on the beach,” he says.

He is the author of a significant number of books and articles across a range of legal topics.

Outside the United States, Tamanaha is known for his work on the rule of law, law and development, and legal pluralism, the notion that there are multiple legal systems. In the United States, he is best-known for his work debunking the notion of the formalist age.

“The standard story in the legal academy is that late 19th-century U.S. law was logically ordered and judges mechanically decided cases, and in the 1920s and ’30s, along came the realists, radicals who debunked the formal theories of law,” Tamanaha says.

“I found that this story just is not true. The late 19th-century legal scholars had very realistic views of the law, and they describe judging much the same way as the realists.

“This story was repeated in the ’20s and ’30s to delegitimize legal opponents. It became standard wisdom, but it wasn’t true.”

Tamanaha says that he also repeated this story time and again until he found evidence of his error.

“I was researching the rule of law, and I typed ‘judicial legislation 1921’ into a legal research database,” he says. “Judicial legislation (judges who create instead of interpret law) was a realist idea; however, the first documents I saw stating that judges legislate were from the late 19th century.”

One of these documents was the inaugural speech of William Gardiner Hammond, dean of the WUSTL law school and considered a major formalist legal figure.

His speech kicked off research for what would become Tamanaha’s highly praised book, Beyond the Formalist-Realist Divide: The Role of Politics in Judging.

“I guess I was destined to be the Hammond Professor,” he says.

Tamanaha diverted from his jurisprudence scholarship when he decided to examine the current state of legal education.

“My experience as dean made me dig into the issues,” he says. “I started with a series of blogs on law school tuition and the legal profession and thought that there was probably a book in all the information I was pulling together.”

A canceled flight gave Tamanaha the unexpected extra time to start his forthcoming book, Failing Law Schools.

His book takes a hard look at law schools, focusing on training, tuitions, debt and career prospects.

Tamanaha’s analysis has made him a top source for reporters at major media outlets as well as U.S. Sen. Barbara Boxer, who recently called on the American Bar Association to require law schools to provide accurate postgraduate employment and salary information about their former students.

“I definitely received an education while writing this book,” he says. “We need to make sure students are getting a return on their investment in legal education.”

Tamanaha’s dedication to scholarship can sometimes make for a difficult work-life balance.

“I enjoy working hard, but I always make sure to get back to Hawaii with my family to do some surfing,” he says.

Fast facts about Brian Z. Tamanaha

Title: William Gardiner Hammond Professor of Law
Family: Wife, Honorata, and four children ranging from a kindergartener to a freshman at WUSTL: Sava Tamanaha, Vincent Michalski, Kats Tamanaha and Jolijt Tamanaha
Notable awards: Inaugural Dennis Leslie Mahoney Prize in Legal Theory (outstanding contemporary work in sociological jurisprudence) (2006), Julius Stone Institute, for A General Jurisprudence of Law and Society; Herbert Jacob Book Prize (2002), Law and Society Association, for A General Jurisprudence of Law and Society.
Mode of transportation for his commute: A scooter

Youth Justice Program at Washington University law school March 22 and 23

Jessica Martin — 2012-03-19 00:00:00

Experts on youth advocacy and school desegregation will come together March 22 and 23 for a series of events as part of the Youth Justice Program at Washington University in St. Louis School of Law.

Events are free and open to the public and will be held in the Bryan Cave Courtroom of Anheuser-Busch Hall, Room 310.

The Youth Justice Program begins at noon Thursday, March 22, with a lecture by Kristin Henning, JD, juvenile justice expert and professor of law at Georgetown University. Henning will speak about “Overcriminalization of Normal Adolescent Development in Communities of Color and the Crisis in Indigent Juvenile.”

Henning’s lecture, part of the Public Interest Law & Policy Speakers Series, is co-sponsored by the law school’s Clinical Education Program, the Black Law Students Association and the American Constitution Society.

Program events continue from 1:15-5 p.m. March 22 with the conference “Liddell is 40: Commemorating the Desegregation Movement in St. Louis and a Look at the Future of Urban Education.”

The conference will cover topics such as segregation in St. Louis, the history of Liddell litigation and the failure of federal education initiatives.

To view a complete list of conference topics and speakers and to RSVP, visit http://law.wustl.edu/events/pages.aspx?id=9076.

On Friday, March 23, the Youth Justice Program concludes with the 12th annual Access to Equal Justice Colloquium sponsored by the Clinical Education Program on “Evolving Standards in Juvenile Justice: From Gault to Graham and Beyond,” from 8 a.m.-5 p.m.

The colloquium will cover topics such as the past, present and future of juvenile court practices, adolescent development issues, and the disproportionate representation of minority youth in adult prisons.

Colloquium co-sponsors are the law school’s Juvenile Rights and Re-Entry Project – Civil Justice Clinic, the Missouri State Public Defender’s Office, the Gephardt Institute for Public Service and the National Juvenile Defender Center.

To view a complete list of topics and speakers and to RSVP, visit: http://law.wustl.edu/accessequaljustice/.

Social Security’s ‘Chained COLA’ not ready for prime time

Jessica Martin — 2012-03-14 00:00:00

Social Security’s cost of living adjustments (COLA) are designed to protect against the erosion of retiree purchasing power when prices go up, as measured by the Consumer Price Index (CPI).

“Now Social Security self-styled ‘reformers’ seek to lower COLA every year based on their claim that COLA overstates inflation,” says Merton C. Bernstein, LLB, a nationally recognized expert on Social Security.

The proposed substitute for the current CPI formula, ‘Chained COLA,’ is based on the assumption that benefit recipients substitute lower-priced goods as prices go up.

Bernstein

“This the assumption is unrealistic for those millions who only have access to convenience stores that typically offer fewer choice and higher prices,” says Bernstein, the Walter D. Coles Professor Emeritus at Washington University in St. Louis School of Law. “And, further, it is not reasonable to assume that most consumers can outwit the wiles of merchandising experts.”

Bernstein says that it takes two years to determine the data on which to base chained COLA, making it unsuitable for offsetting price increases that occur all the time.

“To adapt chained COLA to handle such a task would be either impossible or, if feasible at all, more costly to do so,” he says.

Impact on the wallet

Social Security actuaries calculate that a chained COLA would be .03 percent lower each year than the benefits projected under existing arrangements.

“This may seem miniscule for those with current job earnings and multiple sources of income, but benefits now are extremely modest — on average, about $1,100 a month,” Bernstein says.

“Moreover, under the present structure, COLA still chronically lags behind prices.

“COLA becomes operative when prices measured in the fall exceed the corresponding prices in the preceding fall. That percentage is applied to each beneficiary’s benefit for the next year starting in January. In consequence, Social Security COLA does not offset price increases when they occur. And it does not offset prices increases that take place during the year it is operative.”

Bernstein discusses the new COLA proposal in his recent Huffington Post article, “Proposed Social Security Chained COLA Not Ready for Prime Time.”

Medical ethicists confront cancer in new book

Timothy Fox — 2012-03-02 00:00:00

Despite her own personal battle, Rebecca Dresser doesn’t view herself as a cancer “survivor.”

“Many people who have faced the disease are very courageous, but, in terms of defeating cancer, really, we were just lucky,” says Dresser, JD, the Daniel Noyes Kirby Professor of Law and professor of ethics at the School of Medicine at Washington University in St. Louis.

Dresser, editor of and contributor to a new book on medical ethics and cancer, was diagnosed with head and neck cancer six years ago. While she has written and taught extensively about the legal and ethical dimensions of a variety of medical topics, personally enduring intense radiation and chemotherapy treatments spurred her interest in the ethics of cancer and cancer care medicine.

For perspective, she reached out to other medical ethicists who had either had cancer themselves or had a spouse diagnosed with the disease. One of them had experienced both.

The group met twice at Washington University. Those meetings were tape-recorded and then transcribed. The transcript became the basis for their book, Malignant: Medical Ethicists Confront Cancer, published by Oxford University Press.

In an essay published in the Hastings Center Report, Dresser also reviewed six themes that surfaced as she and the other members of the group talked and wrote about their experiences.

“Cancer patients and caregivers operate in crisis mode,” Dresser writes. “Cancer knocked us off our feet. We were disoriented and unsure how to proceed.”

In that vulnerable state, cancer patients and their families sometimes make decisions that caregivers and others don’t understand. “Before facing cancer, we didn’t fully appreciate the psychology of patient decision-making,” she says.

Complicating things further, the many treatment options available — with their side effects and uncertain outcomes — often confuse cancer patients and their families.

Combined with the pressure to act quickly, patients may take a “leap of faith” when selecting treatment options.

As Dresser notes, “We now have a better sense of the real obstacles patients encounter in trying to make informed medical decisions.”

Patients in the group become painfully aware that they have given up a good deal of autonomy to the disease and those working to defeat it. “Despite being privileged patients with good health insurance and insider status, we were at the mercy of an overburdened and highly imperfect health-care system,” she writes.

Another theme that emerged was how seemingly mundane decisions on the part of health-care providers took on ethical dimensions. Does the doctor make eye contact when describing a treatment’s risks and side effects? Does he or she listen and respond when patients complain about those side effects? These seemingly minor behaviors take on an added dimension when the stakes are life and death.

Of course, not every patient responds to the disease in the same way; each patient brings to the table his or her own medical histories, tolerance for pain or discomfort, and past experiences with the medical establishment. Medical professionals need to be willing to adapt to meet the needs of each patient.

Finally, there is also considerable variation in how ordinary people and family members react to patients. While some are incredibly helpful and understanding, “a fair number of them have no idea how to behave toward seriously ill patients and their families,” Dresser writes. Reactions by these people range from denial to simply ignoring the patient.

“Death and dying may have a bigger public presence than they once did, but too many people remain ill-equipped to respond when serious illness strikes someone they know,” Dresser writes.

“Malignant intends to begin a conversation about the ethics of illness in everyday life. We hope it will encourage colleagues to turn their attention to this neglected topic.”

Another, broader response Dresser hopes her book will have is to raise the possibility of practicing “first-person bioethics.” While bioethics typically strives to be objective and dispassionate, facing the grim reality of a disease like cancer can make even the most analytical academic confront the fact that he or she is ultimately at the mercy of the medical establishment and a good portion of “luck.”

“Bioethics operates in the shadow of death,” Dresser writes. “A bioethics that fails to recognize and respond to the experience of illness will have limited value for patients and their families.”

A prolific author, Dresser has written and or co-written numerous articles and three other books: Bioethics and Law: Cases, Materials and Problems; When Science Offers Salvation: Patient Advocacy and Research Ethics; and The Human Use of Animals: Case Studies in Ethical Choice.

Lindee, Chua take part in Assembly Series doubleheader

Barbara Rea — 2012-02-29 00:00:00

Just in time for spring baseball, the Assembly Series at Washington University in St. Louis presents its version of a doubleheader: back-to-back lectures in one day by prominent speakers.

On Tuesday, March 6, science historian Susan Lindee, PhD, will speak at 4 p.m. in McDonnell Hall on the evolution of a treatment for cystic fibrosis, once a fatal disease of children. That will be followed by best-selling author, law professor and "Tiger Mom" Amy Chua, JD, at 5 p.m. in Graham Chapel. Both lectures are free and open to the public.

Lindee

Lindee, professor in the department of history and sociology of science, and associate dean for the social sciences in the School of Arts & Sciences at the University of Pennsylvania, will deliver the Thomas Hall Lecture on “LeRoy Matthews and the Cleveland Comprehensive Treatment Program for Cystic Fibrosis, 1957-1961” at 4 p.m. in McDonnell Hall, Room 162, on the Danforth Campus.

Lindee

In addition, Lindee will lead a brown bag session on “Learning to Lie: Militarization of Scientific Knowledge in the Twentieth Century,” from noon-1:30 p.m. in Life Sciences Building, Room 202.

Before LeRoy Matthews developed a therapeutic protocol in the late 1950s, cystic fibrosis (CF) was a children’s disease — simply because very few of its victims made it to adulthood.

Matthews came to the Cleveland Comprehensive Treatment Program for Cystic Fibrosis following a career as a radiation safety officer for Pacific bomb tests and as director of the isotope and endocrine laboratory at the U.S. Naval Hospital in San Diego. As lung failure is one of the most common causes of death in CF patients, Lindee attributes Matthews' breakthroughs in treatment to his understanding of how inhaled radioactive materials move through smaller airways in the lungs.

His treatment was so successful that few initially believed his reported results. Using Matthews’ new protocol, the Cleveland facility reported a drop in mortality from 10 percent to 2 percent in just four years. Skepticism vanished after the treatment was rolled out to CF centers nationwide with the same results. Today, his protocol, with some modifications, is still used to treat CF patients worldwide.

Lindee’s presentation will explore Matthews’ life, work and the key role he played in the transformation of CF into an adult disease. It is a complicated and fascinating account, made all the more so in the broader context of the era’s post-war understanding of human genetics, including the legacies of eugenics and the potential for molecular genetics.

Lindee earned a doctoral degree in the history and philosophy of science at Cornell University. In addition to being the recipient of many grants and awards, she is the author of four books: Moments of Truth in Genetic Medicine; Genetic Nature/Culture: Anthropology and Science beyond the Two-Culture Divide; The DNA Mystique: The Gene as Cultural Icon, reissued in 2004; and Suffering Made Real: American Science and the Survivors at Hiroshima.

Chua

Yale law professor and author Chua will discuss the concepts behind her best-selling and controversial memoir, Battle Hymn of the Tiger Mom, at 5 p.m. March 6 in Graham Chapel. The event, sponsored by the student organization Lunar New Year Festival, is free and open to the public.

Chua

A book signing will be held at 3:30 p.m. in the Women’s Building Formal Lounge.

Long before Chua became known for her candid account of raising her daughters in the Chinese tradition, she had published two books relating to the effects of globalization on business, law and development. But the memoir, published in 2010, marked her introduction to a general audience and has sustained an ongoing discussion on the cultural differences between the Chinese way and the Western way of child rearing.

Whether one believes that Chua’s parental philosophy is too harsh, as many Americans do, the overwhelming evidence that her approach produces strong, goal-oriented, professionally successful adults cannot be discounted. Proponents of the Western approach see her style of parenting as one that stifles independent thinking and puts too much emphasis on financial success rather than personal fulfillment.

Currently, Chua holds the John M. Duff Jr. Professorship of Law at Yale University; she also has taught at Duke, Stanford and New York universities. She earned a bachelor’s degree in economics from Harvard College and a law degree from Harvard Law School, where she also was executive editor of the Harvard Law Review.

Her first book, published in 2003, was World on Fire: How Exporting Free Market Democracy Breeds Ethnic Hatred and Global Instability, and was a New York Times best seller. This was followed by Day of Empire: How Hyperpowers Rise to Global Dominance–and Why They Fall, published in 2007.

For information on these events and upcoming speakers, visit assemblyseries.wustl.edu or call (314) 935-4620.

Global influence of U.S. Constitution on the decline, study reveals

2012-02-21 00:00:00

The U.S. Constitution’s global influence is on the decline, finds a new study by David S. Law, JD, PhD, professor of law at Washington University in St. Louis.

“Other countries are increasingly turning to sources other than the U.S. Constitution for guidance in establishing human rights provisions and for general structural provisions in creating their constitutions,” he says.

Law

Law, with co-author Mila Versteeg, DPhil, associate professor of law at the University of Virginia, analyzed 60 years of data on the content of the world’s constitutions.

“The data revealed that there is a significant and growing generic component to global constitutionalism, in the form of a set of rights provisions that appear in nearly all formal constitutions,” Law says.

“Our analysis also confirms, however, that the U.S. Constitution is becoming increasingly out of sync with these global practices.”
Their research, which examined 729 constitutions adopted by 188 different countries from 1946-2006, also found little emulation of the constitutions of Germany, South Africa and India.

Similarly, no particular treaty or international human rights instrument stands out as an overall model. However, they did note links between constitution-making in other countries and the Canadian Charter of Rights and Freedoms, although the tie-in was not uniform.

Law and Versteeg found that the constitutions of non-democratic countries tend to exhibit relatively greater similarity to the Universal Declaration of Human Rights, while those of common law countries exhibit the opposite tendency.

“It is difficult to infer from these patterns, however, that countries have actually emulated international or regional human rights instruments when writing their constitutions,” Law says.

Law notes that the article does not stake a position about whether it is a good or a bad thing that other countries do or do not use the U.S. Constitution as a model, or whether the United States itself is in fact losing some form of international influence.

“Some people have questioned whether we had an ideological agenda in writing this article, but our reasons for writing it were straightforward and not at all sinister,” Law says.

“We had a previous study that identified trends in the global evolution of constitutionalism, and a logical next question to ask was whether the U.S. Constitution was at the forefront of that evolution,” he says.

“We also thought that people would be interested in the answer to this question, and we hoped to demonstrate that empirical scholarship in the area of constitutional law, which remains extremely rare, can be of interest to a wider audience.”

Law says newer constitutions are part of a “polycentric evolutionary process” that does not favor modeling based on a “specimen that is frozen in time.”

“If the United States were to revise the Bill of Rights today — with the benefit of over two centuries of experience, and, in a manner that addresses contemporary challenges while remaining faithful to the nation’s best traditions — there is no guarantee that other countries would follow its lead.

“But the world would surely pay close attention,” Law says.
Law and Versteeg’s article, “The Declining Influence of the United States Constitution,” will appear in the New York University Law Review.

The authors’ forthcoming research will look at which countries are guilty of having sham constitutions.

“We couldn’t agree more with the quotation from Justice (Antonin) Scalia in The New York Times article that some constitutions are not worth the paper they are written on,” Law says.

“This is a question we have been thinking about for some time,” he says, “and we think we now have something original and empirical to say about it — beyond merely repeating the obvious point that some constitutions are sham constitutions.”

Work & Livable Lives Conference Feb. 27 and 28

2012-02-15 00:00:00

Washington University in St. Louis will host the “Work & Livable Lives Conference” Feb. 27 and 28 to address current employment-related challenges and how they limit the ability of U.S. households to lead secure and stable lives, raise children successfully, and contribute to the community.

“The conference will not only focus on problems, but also on constructive solutions, exploring policy approaches to employment supports, health care, and job creation,” says Michael Sherraden, PhD, the Benjamin E. Youngdahl Professor of Social Development and director of the Brown School’s Center for Social Development, one of the sponsors of the conference.

The conference will include panels on household financial fragility, measurement of economic security, the American Dream, labor and employment policy, and health policy and employment.

Jared Bernstein, PhD, senior fellow at the Center on Budget and Policy Priorities and former chief economist and economic policy adviser to Vice President Joseph Biden, will deliver the conference keynote address, “Rebuilding an Opportunity Society: The Roles of Policy and Power,” at 4:30 p.m. Feb. 27. A reception will follow Bernstein’s speech.

All conference events will be held in the Bryan Cave Moot Courtroom of Anheuser-Busch Hall and are free and open to the public. A complete schedule of events is available at http://law.wustl.edu/centeris/pages.aspx?id=9009.

“With persistently high unemployment and underemployment — and growing inequality in wages — an increasing number of American families are no longer adequately supported by employment income and basic benefits,” says Marion Crain, JD, the Wiley B. Rutledge Professor of Law and director of the Center for the Interdisciplinary Study of Work & Social Capital at the School of Law, which co-sponsors the conference.

“Many older workers have ‘retired’ before they are ready, and many young workers cannot find a foothold in the job market,” she says. “A silent crisis is under way, with huge social and economic costs for the nation.”

Other WUSTL conference sponsors are the Center for New Institutional Social Sciences; the Weidenbaum Center on the Economy, Government, and Public Policy; the American Culture Studies department in Arts & Sciences; and the Office of the Provost.

The conference is held in partnership with the Brown School Policy Forum at Washington University and the New America Foundation in Washington, DC.

This event is part of the university-wide Livable Lives Initiative, which investigates social conditions and policy supports that can make life with a low or moderate income stable, secure, satisfying and successful.

Birth control policy not a constitutional law issue

Jessica Martin — 2012-02-27 00:00:00

The current controversy over the Barack Obama administration's birth control policy is not, contrary to some arguments, a matter of constitutional law, says Gregory P. Magarian, JD, constitutional law expert and professor of law at Washington University in St. Louis.

Magarian

“A 1990 Supreme Court decision makes very clear that religious believers and organizations must abide by generally applicable laws, even when those laws impede religious exercise,” he says.

Constitutional principles, however, are very important for this issue, notes Magarian.

“On one side, even though the administration's policy does not violate the Constitution's legal mandate, it may still transgress our best civic or political understanding of religious freedom,” he says.

“Our society does many things that the Constitution does not require to protect the freedom of religion and conscience.”

Magarian says that on the other side, the Constitution stands for principles of equal protection regardless of sex and privacy in intimate matters.

“The position that opponents of the administration are pushing would disproportionately undermine women's interests,” he says.

“Giving companies the right to deny insurance coverage for contraception, or other medical procedures, would also undermine many people's personal liberty.

“Again, none of this is about constitutional law, but it is about constitutional principle.”

In Magarian’s view, requiring Catholic employers to provide medical insurance coverage for contraception entails a relatively modest infringement on religious liberty.

“Many Catholic employers and medical providers appear to agree, because many have provided this coverage before the present controversy,” he says.

“Numerous states already require this sort of coverage.

“According to opinion polls, almost all sexually active Catholic women use birth control. In light of the direct and costly impact the Republicans’ plan would have on women’s health and privacy, this does not strike me as a strong ground on which to advocate rights of conscience against the broader public good.”

'Family Matters' Midwest LGBT Law Conference March 2-4

2012-02-27 00:00:00

OUTLaw, a student group at Washington University in St. Louis School of Law, will be hosting its annual Midwest LGBT Law Conference Friday to Sunday, March 2-4. This year's theme is "Family Matters."

Nancy Polikoff, JD, professor of law at American University and 2011 recipient of the national LGBT Bar Association's highest honor, will serve as conference keynote speaker.

The goal of the conference is to sort through the legal labyrinth in which LGBT families are formed, altered and dissolved.

The conference is free to attend and open to the public; this year, more than half a dozen other regional law schools will be represented. A schedule of events and more information can be found at washuoutlaw.com.

OUTLaw is an educational, political, and social alliance of law students interested in working with the university and the surrounding community towards fostering and maintaining an environment that is supportive, positive, and safe for individuals of sexual and gender diversity.

In striving for a greater understanding of sexuality and gender issues at the law school and within the affiliated communities, OUTLaw aims at addressing the legal issues associated with sexual and gender diversity and provides resources and support for social activism.

No Boundaries: Women Leaders of Washington University

2012-02-23 00:00:00

“No Boundaries: Women Leaders of Washington University,” an intergenerational discussion group, will be held from 3-4 p.m. on Tuesday, March 6, in Brown Hall Lounge. An RSVP is required by Tuesday, Feb. 28.

The event will feature an exchange of ideas and experiences with young women of Washington University who have demonstrated leadership in sports, academics, the community and more. Learn what is unique and what is common about how different generations of women pursue their passions.

To RSVP visit https://www.surveymonkey.com/s/MEETTHELEADERS or contact Kitty Conroy at conroyr@wustl.edu, (314) 935-9104.

The Meet the Leaders series is sponsored by the WUSTL Woman’s Club with the Gephardt Institute for Public Service and the Office of the Provost.

For more information on the Meet the Leaders series, contact Kitty Conroy at conroyr@wustl.edu or 314-935-9104.

Open forum on 2012 election year activities at WUSTL

2012-02-23 00:00:00

The Gephardt Institute for Public Service at Washington University invites student groups, centers, departments and schools, as well as individual members of the university community, to join an open discussion about plans for the 2012 election year.

The meeting will be held from 4-5:30 p.m. Monday, March 5, in the Multipurpose Room, lower level of Mallinckrodt Center on the Danforth Campus.

This forum will help the institute coordinate activities through fall 2012 including voter registration, voter education, speakers and panel discussions on issues, election watch parties and other programming related to politics. Anyone interested in hosting such activities or in brainstorming ideas is welcome to join the discussion.

This meeting will lead to a smaller working committee that will help develop and support a broad range of non-partisan services and programs that increase interest and participation in civic life.

RSVP to Program Director Robin Hattori at rhattori@wustl.edu or 314-935-8628 by March 1 with name and affiliation. Those unable to attend the initial meeting can contact Hattori to be added to the correspondence list.

Assembly Series features lectures by Rifkin, Boyle

Barbara Rea and Kurt Mueller — 2012-02-22 00:00:00

Global economies and the Internet are two upcoming topics in the Washington University in St. Louis Assembly Series.

Economic forecaster and social observer Jeremy Rifkin will deliver a talk titled “The Third Industrial Revolution: How Lateral Power is Transforming Energy, the Economy and the World” at 2 p.m. Monday, Feb. 27, in Graham Chapel.

Later in the week, James Boyle, JD, the William Neal Reynolds Professor of Law at Duke Law School, will discuss “Cultural Agoraphobia: Why Most of What You Know About the Internet is Wrong” at 5 p.m. Wednesday, Feb. 29, in the Anheuser-Busch Hall Bryan Cave Moot Courtroom.

Rifkin

According to Rifkin, the world witnessed the end of the modern era in July 2008, when geopolitical and socioeconomic forces sent the cost of oil soaring to $147 a barrel. Eighteen months later, there was a worldwide financial collapse.

Rifkin

How the world got to this critical point — and how to take advantage of the opportunities on the horizon — are the basic themes in Rifkin’s latest book by the same title: The Third Industrial Revolution: How Lateral Power Is Transforming Energy, the Economy and the World.

His talk also serves as the annual Elliot Stein Lecture in Ethics.

Rifkin is the visionary president of the Foundation on Economic Trends, a consultant to the European Union, and the author of 19 books that have explored the impact of scientific and technological changes on the economy, the workforce, society and the environment.

He has searched the historical record and found parallels between the changing forces today and past circumstances that created monumental shifts — eras now identified as the first and second industrial revolutions.

Among his bestselling books are The Empathic Civilization, The Hydrogen Economy, The European Dream, The End of Work, The Age of Access and The Biotech Century.

For the past decade, Rifkin has served as adviser to the European Union (EU) on issues related to the economy, climate change and energy security. In addition, he advises the European Commission, the European Parliament and several EU heads of state.

Rifkin graduated from the University of Pennsylvania's Wharton Business School with a degree in economics, and, since 1994, has been a senior lecturer for Wharton’s executive education program. He also holds a degree in international affairs from Tufts University.

In addition to his books, Rifkin is a frequent contributor to leading newspapers, and his monthly column on global issues appears in many of the world's leading newspapers and magazines.

Boyle

Boyle's lecture is the first of three talks he will deliver on the WUSTL campus for the Interdisciplinary Project in the Humanities Lecture Series.

Boyle

On Jan. 18, Congress received a strong warning from online information providers that going forward with two pending anti-piracy bills will severely limit the Internet's open, dynamic environment. (That same day, the bills' sponsors began backing down.)

This is the latest salvo in the ongoing legal war that pits protection of intellectual property against the desire for unfettered access.

One of the leading scholars on the side of open access is Boyle, whose research shows that ever-tightening restrictions on reasonable access is preventing the world's collection of intellectual and artistic concepts from entering the public domain, to the detriment of society.

Boyle is the author of numerous publications, including Shamans, Software and Spleens: Law and Construction of the Information Society and The Shakespeare Chronicles, a novel about the search for the true author of Shakespeare’s works.

His latest book, The Public Domain: Enclosing the Commons of the Mind, was named the 2009 Book of the Year by the American Society for Information Science and Technology.

He is a co-founder of the Center for the Study of the Public Domain at Duke. He was one of the original board members of Creative Commons, which develops, supports and stewards legal and technical infrastructure that maximizes digital creativity, sharing and information.

Boyle graduated from the University of Glasgow and earned his law degree from Harvard University.

Boyle’s second and third presentations for the Interdisciplinary Project in the Humanities (IPH) Lecture Series are scheduled for March 1 and 2.

“The Internet Threat: The Farmer’s Tale and Other Myths of Intellectual Property” is set for 5 p.m. Thursday, March 1; and “Seven Ways to Ruin a Technological Revolution (And Why We Shouldn’t)” is set for 5 p.m. Friday, March 2. Both talks will take place in the Women’s Building Formal Lounge.

For more information on the IPH lecture series, call (314) 935-4200.

For more information on upcoming events and other Assembly Series programs, visit assemblyseries.wustl.edu or call (314) 935-4620.

Twitter subpoenas a challenge to intellectual privacy

Jessica Martin — 2012-02-14 00:00:00

The City of New York recently subpoenaed a Twitter account as part of an ongoing Occupy Wall Street criminal case. The Occupy protester named in the case is challenging the subpoena.

Richards

Privacy law expert Neil Richards, JD, professor of law at Washington University in St. Louis, says that it’s not surprising that law enforcement groups are interested in accessing the volume of records relating to our speech that social media platforms generate.

“By and large, this data should remain private, and online companies should keep the data confidential and not share it any more broadly than we as users and speakers want it to be shared,” Richards says.

“Records of our communications involve our intellectual privacy, and to allow the state to study our private thoughts and words is to allow monitoring of our civil liberties on an Orwellian scale.”

Richards says that U.S. law is somewhat protective of online communications, though the main line of defense comes not from the law but from the behavior of records holders like Google, Twitter, and Facebook.

He applauds companies like Twitter who resist handing broad swathes of intellectual data to the government. Mozilla and Google also have a good record of protecting the privacy and confidentiality of their users.

“In our digital world, the battles for civil liberties are increasingly being fought on the front lines of social media, and social media companies are our first line of defense against the kind of Big Brother-style surveillance our traditions reject,” Richards says.

“In the absence of stronger laws, the positions these companies take have a real impact on the practical state of our civil liberties. I’m very glad that Twitter is siding with its users as citizens in these debates rather than the government.”

The full subpoena is available at www.scribd.com/doc/79940746/Subpoena-on-destructuremal.

Gephardt Institute names faculty scholars in community-based teaching and learning

2012-02-14 00:00:00

The Gephardt Institute for Public Service at Washington University in St. Louis has announced faculty scholars receiving Innovation Grants for Community-Based Teaching and Learning.

Community-based teaching and learning, also known as service-learning, is a pedagogy that is growing across all disciplines. These courses are distinguished by learning activities in service to an organization or community, course content and assignments connected to the service, and faculty oversight.

The grants provide faculty members with financial support for curriculum development and implementation. Faculty scholars join previous grant recipients in a cohort that meets to discuss common challenges and share successful strategies in community-based teaching and learning.

The Gephardt Institute also offers technical expertise to faculty in key areas of community-based teaching and learning such as assignments reflecting on service, evaluation methods and tools for working effectively with community partners.

Faculty recipients for 2011-12 are:

Forrest Fulton, visiting assistant professor of architecture in the Sam Fox School of Design & Visual Arts. Students in “City Studio Design-Build at Patrick Henry School in Columbus Square” will work with the school and community to strengthen the design of a shared garden.

John Trelawney Hoal, PhD, associate professor of architecture and chair of the Master of Urban Design Program in the Sam Fox School of Design & Visual Arts. Students will work with members of the Forest Park Southeast neighborhood to create an overarching sustainability plan through the course “Contemporary Practices of Sustainable Urbanism.”

Ignacio Infante, PhD, assistant professor of comparative literature in Arts & Sciences. Students in the “World-wide Translation: Language, Culture, Technology” course will engage with community partners by providing a variety of translation services.

Glenn Davis Stone, PhD, professor of sociocultural anthropology and of environmental studies, both in Arts & Sciences. Through the “Village India Program,” students will teach lessons at Pai Junior College in Andhra Pradesh, India, and participate in other village activities.

Karen Tokarz, JD, the Charles Nagel Professor of Public Interest Law & Public Service, director, Civil Rights and Community Justice Clinic, and director, Negotiation and Dispute Resolution Program in the School of Law; and C.J. Larkin, JD, administrative director of the Negotiation and Dispute Resolution Program and lecturer in law. The grant will support students in “Civil Rights & Community Justice Clinic” to develop informational community resources.

Women, Gender, and Sexuality Studies Program in Arts & Sciences. A departmental grant will support a range of community-based courses taught by Jami Ake, PhD, assistant dean in the College of Arts & Sciences; Barbara Baumgartner, PhD, senior lecturer, Women, Gender, and Sexuality Studies Program; Amy Eisen Cislo, PhD, interim associate director and lecturer, Women, Gender, and Sexuality Studies Program; and Susan Stiritz, PhD, senior lecturer, Women, Gender, and Sexuality Studies Program.

For more information about community-based teaching and learning at Washington University, visit gephardtinstitute.wustl.edu/CBTL .

New book explores forgotten freedom of assembly

Jessica Martin — 2012-02-02 00:00:00

Freedom of assembly has become the forgotten constitutional right, with courts’ attention focused more on freedoms of association and speech.

Both the Occupy and Tea Party movements, however, are reminders of how the right to assemble has been “at the heart of some of the most important social movements in American history: antebellum abolitionism, women’s suffrage and the Civil Rights Movement,” says John Inazu, JD, PhD, associate professor of law at Washington University in St. Louis.

“The right of assembly protects the members of a group based not upon their principles or politics but by virtue of their coming together in a way of life.”

In his new book, Liberty’s Refuge: The Forgotten Freedom of Assembly, recently published by Yale University Press, Inazu examines why freedom of assembly has become “a historical footnote in American law and political theory,” and what has been lost with the weakening of protections for private groups.

“Claims of assembly stood against the ideological tyranny that exploded during the first Red Scare in the years surrounding the First World War and the Second Red Scare of 1950s’ McCarthyism,” he says.

http://youtu.be/SvNQSuLTzv4John Inazu, professor of law at Washington University in St. Louis, discusses the forgotten right of assembly — a right that has been “at the heart of some of the most important social movements in American history.”
“By losing touch with our past recognition of the freedom of assembly and the groups that have been embodied it,” Inazu argues, “we cede to the state the authority over what kinds of groups are acceptable in the democratic experiment.”

Inazu says that the right to assemble could begin to return to its earlier prominence through constitutional litigation.

His current research looks at freedom of assembly in the digital space.

For more information and to read the book visit: http://law.wustl.edu/faculty_profiles/inazu/?page_id=36

American Airlines layoffs could spell end of the airline

Neil Schoenherr and Jessica Martin — 2012-02-03 00:00:00

American Airlines’ plan to lay off more than 13,000 employees and eliminate all four of its pension plans as part of its bankruptcy reorganization could eventually spell the end of the airline and leave its pilots with dramatically reduced pensions, say two experts at Washington University in St. Louis.

“Like GM, Kodak, US Steel and several of the other legacy airlines, American made promises to pilots and other employees about pay, benefits, retirement and employment, and many of these promises are not going to be kept,” says Glenn MacDonald, PhD, the John M. Olin Distinguished Professor of Economics and Strategy at Olin Business School.

“American's competitive position will not generate profit sufficient to keep those promises,” he says. “In fact, absent significant reduction in what American will provide its employees, it will soon be gone, not just reorganized, with pieces bought by Delta, USAir and others.”

He says what the company will or won’t do for its employees will take time to sort out in court.

Part of the airlines’ plan, if approved by bankruptcy court, would be to place its pensions with the federal Pension Benefit Guaranty Corporation (PBGC), an agency funded by premiums levied on employers that sponsor pensions.

 If PBGC does take over the plans, the agency will assume the responsibility for paying retirees' benefits — but not necessarily all of them. The agency caps the monthly benefit it pays at about $4,653 a month for plans ended in 2012.

This is not a good sign for pilots, says Peter J. Wiedenbeck, JD, the Joseph H. Zumbalen Professor of Law.

“The legacy-carrier airlines tend to have special plans for pilots that promise far more generous benefits, so pilots might be shorted by plan termination in reorganization,” says Wiedenbeck, an expert on pension policy and employee benefit law.

However, he says, other American employees could fare well.

“The maximum PBGC-guaranteed benefit for plans terminated in 2012 is $55,840.92 for a 65-year-old retiree,” he says. “Compared to the average level of private pensions, that’s pretty high, so in general a large majority of workers, something like 85 percent, covered by terminated PBGC-insured plans get the full amount they are due. ”

Wiedenbeck also noted that under a special rule, commercial airlines were permitted to elect a slower pension funding schedule in 2006 or 2007 than the schedule that applies to other businesses.

"If American made that election, then the amount of PBGC-guaranteed benefits would be set by reference to pensions earned when that funding extension took effect, rather than the actual amounts accrued as of plan termination in 2012.”

Could the GOP be headed for a brokered convention?

Jessica Martin — 2012-01-24 00:00:00

Three Republican primaries or caucuses have ended with three different winners. Upcoming state contests may make the Republican candidate picture clearer, but if division remains, the Grand Old Party could end up with a brokered convention.

“Most delegates selected through the primary and caucus process are committed to a particular candidate for the initial convention voting,” says Gregory P. Magarian, JD, election law expert and professor of law at Washington University in St. Louis.

“If the process of voting based on delegates’ commitments does not produce a nominee, then something has to break the logjam. After the initial ballots, delegates are freed from their original commitments.

“The likeliest scenario is that one delegate will persuade another candidates’ delegates to switch their allegiance on a later ballot,” he says. “But more dramatic steps might conceivably happen, including the entry of a new candidate.”

A surprise candidate?

Magarian says that once delegates are free from their commitments, nothing would stop a new candidate from entering the fray and winning the nomination.

“In my view, this is extremely unlikely,” he says.

“A new candidate would risk alienating Republican voters, whose will would be subverted by the nomination of a new candidate. The new candidate would also not have run the gauntlet of the nominating process. That would be a problem for the general election, both practically and as a matter of voters’ perception. The candidate might get an initial novelty bounce in the polls, but ultimately, I doubt voters would elect a candidate whom they had only recently gotten to know.”

Magarian says this is especially true in this year’s GOP race, where none of the commonly cited alternatives — Florida Gov. Jeb Bush, Indiana Gov. Mitch Daniels, New Jersey Gov. Chris Christie, Wisconsin Rep. Paul Ryan — has ever run a national race.

Impact of the superdelegates

“The Republicans, like the Democrats, seat a large number of ‘superdelegates’ at the national convention,” Magarian says.

“The superdelegates, mostly party establishment figures, go in uncommitted, so their swing to one of the frontrunners could settle even a very close contest on the first ballot, effectively ‘brokering’ an unbrokered convention.”

Magarian notes that there are a lot of primaries and caucuses left in which one candidate is likely to gain traction. “Even the very close 2008 Democratic race between Barack Obama and Hillary Clinton led to a settled result before the national convention,” he says.

“But anything can happen.”

Faculty develop teaching skills at i teach 2012

2012-01-23 00:00:00

Joe Angeles (2)

Andrew Knight, PhD (above), assistant professor of organizational behavior at Olin Business School, leads an i teach 2012 session on polling as a teaching tool, while C.J. Larkin, JD (below), senior lecturer at the School of Law, contributes to the discussion. This session took place during the i teach 2012 symposium — a biennial event at which faculty gather to talk about teaching experiences and to learn about new teaching methods and technology — at Seigle Hall Jan. 12. Approximately 150 faculty attended the event, which offered 16 classroom sessions on topics ranging from “Twitter for Teaching” to “Academic Integrity at WU: Myths and Realities” and a plenary lecture, “Fostering Creative Learning,” by Keith Sawyer, PhD, associate professor of education. The 2012 symposium was sponsored by Arts & Sciences, The Teaching Center, University Libraries and the Office of the Provost.

‘Public Education at a Crossroads’: Brown School, Teach for America co-sponsor panel discussion Jan. 26

2012-01-23 00:00:00

Teach For America-St. Louis and the Brown School Policy Forum at Washington University in St. Louis will host a panel discussion on “St. Louis Public Education at a Crossroads: The Outstanding Schools Act, Turner v. Clayton, and the Future,” at 7:30 p.m. Thursday, Jan. 26, in Brown Hall, Room 100.

The event will bring together Missouri legislators and education officials to discuss how Turner v. Clayton is impacting state legislation.

In Turner v. Clayton, a court ruled that the State of Missouri must enforce the Outstanding Schools Act, which states that students living in unaccredited districts may attend school at a neighboring accredited district at the expense of the unaccredited district. The decision, in favor of the Turner family, has since been appealed and is waiting to be heard again.

The case and resulting judicial or legislative action will have significant ramifications for many of the students in the St. Louis area.

Panelists are:

State Sen. Maria Chappelle-Nadal ;
State Sen. Jane Cunningham ;
State Rep. Scott Diekhaus, chair, House Committee on Elementary and Secondary Education;
State Rep. Tishaura Jones ;
Chris Nicastro, commissioner of education for the State of Missouri ; and
Don Senti, executive director, Cooperating School Districts.

Kimberly Jade Norwood, JD, professor of law at WUSTL, will serve as moderator.

Register for the event at https://docs.google.com/spreadsheet/viewform?hl=en_US&formkey=dE0wTGVDT2lQOUpLdkNtQ0pzSW92cVE6MQ#gid=0.

For more information contact, Lisa Clancy, coordinator of alumni affairs at Teach For America-St. Louis (lisa.clancy@teachforamerica.org) or Susan Stepleton, director of the Brown School Policy Forum (sstepleton@brownschool.wustl.edu).

McDonnell Academy welcomes 12 new scholars from around the world

2012-01-20 00:00:00

A select group of research universities in countries throughout the world are partners in the McDonnell International Scholars Academy. Graduates of the 27 partner institutions are eligible to apply to become McDonnell Scholars.

The McDonnell International Scholars Academy at Washington University in St. Louis welcomed 12 new talented graduate and professional students for the 2011-12 academic year.

The new scholars are graduates of one of 27 premier universities from around the world partnered with Washington University in the McDonnell International Scholars Academy.

The new scholars are: Naoko Akimoto, Chen Li, Richa Joshi, Li Yunzi, Li Weijie, Lin Chih-Chung, Leandro Medina de Oliveira, Bharatkumar Suthar, Wu Mengfei, Antonio Zanutto, Zhang Liu and Zhu Chuanmei.

Headquartered at Washington University, the McDonnell Academy enrolls exceptional graduate and professional students across all graduate disciplines at the university.

The McDonnell Academy Scholars are expected to be future global leaders. As such, they are provided not only with a rigorous graduate education at Washington University, but also with cultural, political and social activities designed to prepare them as leaders knowledgeable about the United States, other countries and critical international issues.

Employing an unusual approach, the McDonnell Academy brings together top scholars from Asia-Pacific, the Middle East, Europe and Latin America to pursue world-class education and research while forging a strong network with one another.

Key to this are partnerships Washington University has established with top universities and corporations around the world, with an eye to increasing opportunities for joint research and global education.

“In creating an international network of research universities, Washington University intends to develop a cohort of future leaders in a global university system and promote global awareness and social responsibility,” says McDonnell Academy Director James V. Wertsch, PhD, associate vice chancellor for international affairs and the Marshall S. Snow Professor in Arts & Sciences at Washington University.

“Since getting to know our newest class of scholars over this past semester, I know that they are making great contributions to the research effort at Washington University as well as enhancing the educational experiences of our domestic students through sharing their culture, history and the politics of their countries,” Wertsch says.

Academy ambassadors

Once selected for this highly competitive program, each academy scholar is matched with a distinguished member of the WUSTL faculty who serves as a mentor and also as an academy “ambassador” to the university partner from which the scholar has graduated.

The academy ambassador assists the McDonnell scholar in academic and professional life and travels annually with the scholar to the partner university to build relationships between the two institutions.

“The scholars, working with their ambassadors, help foster collaborative research and educational efforts across the academy institutions on issues such as energy and sustainability, international understanding and public health,” Wertsch says. “The academy is an incubator of new ideas on global networks in research and education and will continue to pursue new initiatives in the future.”

The McDonnell Academy organizes special events for the scholars, including leadership training, cultural opportunities, seminars and workshops with experts in key areas, conferences on crucial issues, and sessions in Washington, D.C., with U.S. government policymakers and grant administrators.

Scholar support

The McDonnell Academy Scholars receive funding for full tuition and living expenses for the time it takes to get a degree at WUSTL. The academy also provides support for an annual trip back to the scholar’s alma mater.

To help foster a sense of community, many of the scholars reside in two fully equipped and furnished apartment buildings near campus.

Funding is provided through a sustaining endowment gift from John F. McDonnell, vice chair of WUSTL’s Board of Trustees and retired chairman of the board of McDonnell Douglas Corp.

Additional support comes from 22 multinational corporations, foundations and individual sponsors. Sponsoring corporations also offer internships and on-site educational opportunities for the academy’s corporate fellows.

To view a list of the academy sponsors, visit http://mcdonnell.wustl.edu/sponsors/.

Partner universities

Partner universities in the academy are committed to excellence in education and research and to the importance of international collaboration.

The select group of worldwide research universities that are partners with the McDonnell International Scholars Academy follows:

Ankara
Middle East Technical University
Bangkok
Chulalongkorn University
Beijing
China Agricultural University
Peking University
Tsinghua University
Brisbane
The University of Queensland
Budapest
Budapest University of Technology and Economics
Campinas
State University of Campinas
Haifa
Technion - Israel Institute of Technology
Herzliya
Interdisciplinary Center Herzliya
Hong Kong
Chinese University of Hong Kong
University of Hong Kong
Istanbul
Bogaziçi University
Jakarta
University of Indonesia
Melbourne
The University of Melbourne
Mumbai
Indian Institute of Technology Bombay
Tata Institute of Social Sciences
New Dehli
Jawaharlal Nehru University
Santiago
University of Chile
Seoul
Korea University
Seoul National
Yonsei University
Shanghai
Fudan University
Singapore
National University of Singapore
Taipei
National Taiwan University
Tokyo
University of Tokyo
Utrecht
Utrecht University

Work, Families and Public Policy series continues Jan. 23

Jessica Martin — 2012-01-18 00:00:00

Faculty and graduate students from St. Louis-area universities with an interest in labor, households, health care, law and social welfare are invited to take part in a series of Monday brown-bag luncheon seminars to be held biweekly on the Danforth Campus at Washington University in St. Louis beginning Monday, Jan. 23, through Monday, April 16.

In its 16th year, the Work, Families and Public Policy series features one-hour presentations on research interests of faculty from local and national universities. The series is designed to promote interdisciplinary research.

Presentations will be from noon-1 p.m. in Seigle Hall, Room 348.

The series continues Monday, Jan. 23, with a lecture by Kelly Bishop, PhD, assistant professor of economics in Arts & Sciences, on “Hedonic Prices and Implicit Markets: Estimating Marginal Willingness to Pay for Differentiated Products without Instrumental Variables.”

The remaining presentations are:

Feb. 6. Donna K. Ginther, PhD, professor of economics at the University of Kansas, on “The Diversity of NIH Research Awardees in Academic Medicine”;

Feb. 20. Maria E. Canon, PhD, economist with the Federal Reserve Bank of St. Louis, on “The Role of Schools in the Production of Achievement”;

March 5. V. Joseph Hotz, PhD, the Arts & Sciences Professor of Economics at Duke University, on “The Family that Shares is the Family that Cares: Are Extended Families Efficient in their Sharing?”;

March 19. Duncan Thomas, PhD, professor of economics and global health at Duke University, on “Decision-Making by Households and Families”;

April 2. Kimberly D. Krawiec, JD, the Kathrine Robinson Everett Professor of Law at Duke University, on “Kidneys Without Contracts: The Legal And Ethical Implications of NEAD Chain Bridge Donor Contracts”;

April 16. Sandra E. Black, PhD, professor of economics at the University of Texas, on “Does Money Matter? The Effect of Child Care Subsidies on Academic Performance.”

Robert A. Pollak, PhD, the Hernreich Distinguished Professor of Economics in Arts & Sciences and in the Olin Business School, has been the lead organizer of the series for the past 15 years.

Co-organizer is Michael Sherraden, PhD, the Benjamin E. Youngdahl Professor of Social Development at the Brown School at WUSTL.

The series is sponsored by the Olin Business School; the Brown School and the Center for Social Development; the Center for the Interdisciplinary Study of Work and Social Capital in the School of Law; the Department of Economics in Arts & Sciences; the College of Arts & Sciences; and the Federal Reserve Bank of St. Louis.

The classroom is courtesy of the Department of Economics.

For more information, contact Pollak at (314) 935-4918 or pollak@wustl.edu; Sherraden at (314) 935-6691 or at sherrad@wustl.edu; or visit olin.wustl.edu/Events/Pages/default.aspx and search for the seminar by date.

SOPA, PROTECT IP will stifle creativity and diminish free speech, say WUSTL experts

Jessica Martin — 2012-01-17 00:00:00

Wikipedia and other sites plan to go dark to protest the Stop Online Piracy Act (SOPA) and the PROTECT IP Act under consideration in Congress. Three law professors from Washington University in St. Louis, Kevin Collins, Gregory Magarian and Neil Richards, signed a letter to Congress in opposition to the PROTECT IP Act. Below are Magarian and Richards’ current comments on SOPA and PROTECT IP.

Gregory P. Magarian, JD, constitutional law and free speech expert, says that PROTECT IP Act and SOPA are to intellectual property what the infamous Communications Decency Act was to “indecent” online material – an incredibly powerful, blunt instrument that would drastically diminish free speech in the name of protecting copyrights.

Magarian

“The proposed statutes use vaguely phrased standards for determining the identity of infringing websites, and they would allow the government to bar transactions with, and even links to, cites that it finds to infringe,” he says.

“A search engine could violate the law simply by returning the name of an ‘infringing’ site in a search. This is akin to punishing a publisher who prepares a list of names and addresses of purveyors of obscene materials. It is a frightening and far-reaching form of thought control.

“The proposed statutes continue and exacerbate the trend of wealthy copyright holders’ prevailing on Congress to inflate copyright protection beyond any reasonable construction of the Constitution’s Copyright Clause, without regard to the public’s interest in access to information.”

Neil Richards, JD, First Amendment and privacy law expert, says that both SOPA and the Protect IP Act are unnecessary to protect copyrighted media from unfair uses.

“Copyright holders already have substantial powers under the Digital Millennium Copyright Act and other statutes, and new copyrights granted today can last for a century or more, at the expense of the vibrant public domain that makes any creativity possible,” he says.

Richards

“At a time when our copyright law is over-protective in both duration and scope, stifling creativity by individuals, we need less protection for copyrighted works, and not more. The sheer amount of lobbying money that the copyright industries have been able to dump into the political process on this issue is testament both to their corporate profitability and their greed.”

More importantly, Richards notes, the means that these bills would give government to protect copyright holders are unprecedented in scope, giving them the power to break the Internet in pursuit of little more than extra profit.

“These powers are inconsistent with our historic commitments to the free exchange of information and ideas, they threaten First Amendment values, and they are certainly unconstitutional as they currently drafted,” Richards says.

“These values of free expression are coded into the current structure of the Internet, and SOPA and the Protect-IP Act would try to change the nature of the Internet, making it closed rather than open. Given this reality, it should be no surprise that virtually all of the big Internet companies have come out in opposition to these terrible bills.”

Hosanna-Tabor an important victory for religious liberty

2012-01-12 00:00:00

The U.S. Supreme Court’s unanimous decision in Hosanna-Tabor v. Equal Employment Opportunity Commission is an important victory for religious liberty says First Amendment expert John Inazu, JD, associate professor of law at Washington University in St. Louis.

The case pitted the freedom of a church to select its own leaders against a terminated employee’s ability to bring a disability discrimination claim.

“Chief Justice Roberts’ opinion for the Court made clear that both the Free Exercise and Establishment Clauses ‘bar the government from interfering with the decision of a religious group to fire one of its ministers,’” Inazu says.

“A church cannot be made ‘to accept or retain an unwanted minister’ because doing so ‘interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.’”

Inazu says the case is significant for at least three reasons.

“First, it entrenches the ministerial exception -- which the lower courts have recognized for four decades,” he says.

“Second, it applies the exception to an employee who worked beyond the four corners a church, in this case, to a school operated by the church. Third, it applies the exception based on an overall assessment of the employee’s role, based in part on the church’s understanding of that role.”

“This third point is worth underscoring: it signifies a kind of institutional deference that cannot be reduced to rote formula. Each of these three assertions provides vital protections for religious groups whose freedoms have been threatened by the Court’s 1990 decision in Employment Division v. Smith and its 2010 decision in Christian Legal Society v. Martinez.”

Employment Division v. Smith limited the protections of the free exercise clause against generally applicable laws like employment discrimination laws. Christian Legal Society v. Martinez folded the claims to freedom of religious association into a less protective speech framework.

“In light of Smith and Martinez, Hosanna-Tabor is a welcome reminder that the Court has not lost sight of ‘the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations.’”

UPDATE- Law school’s Public Interest Law & Policy Speakers Series continues Jan. 18

2012-01-13 00:00:00

Civil rights law, immigration law, juvenile crime and race are topics that will be discussed during the spring lineup for the Washington University in St. Louis School of Law’s 14th annual Public Interest Law & Policy Speakers Series.

The series continues Wednesday, Jan. 18, with “Representing a Race: The Creation of A Civil Rights Lawyer” by Kenneth W. Mack, JD, PhD.

Titled “Access to Justice: The Social Responsibility of Lawyers,” the yearlong series brings to WUSTL nationally and internationally prominent experts in such areas as civil rights, racial justice, capital punishment, immigration, clinical legal education, government public service and pro bono private practice.

Karen L. Tokarz, JD, the Charles Nagel Professor of Public Interest Law & Public Service and director of the Negotiation and Dispute Resolution Program, coordinates the series in conjunction with Laura Rosenbury, JD, associate dean for research and faculty development and professor of law.

All lectures will be at noon in the Bryan Cave Moot Courtroom of Anheuser-Busch Hall.

The speaker series is free and open to the public. Attendance earns one MCLE credit hour. For more information, call (314) 935-8598 or visit law.wustl.edu.

The spring schedule:

Jan. 18

Mack, JD, PhD, professor of law at Harvard Law School, researches civil rights and the social construction of race and professional identity in American law.

He is the author of a number of scholarly articles and is completing a book, titled Representing the Race: Creating the Civil Rights Lawyer, 1920-1955, to be published by Harvard University Press. Prior to pursuing his doctoral studies in history, he was a law clerk for Federal District Judge Robert L. Carter of the Southern District of New York, as well as a trial and appellate litigator at Covington & Burling in Washington, D.C.

During the first national elections in post-apartheid South Africa, Mack served as co-area director of election monitoring for the United States and Canada.

Mack’s lecture, the Dr. Martin Luther King Jr. Commemorative Address, is co-sponsored with the Law, Identity & Culture Initiative and the Black Law Students Association.

March 22

Kristin Henning, JD, professor of law at Georgetown University, will speak about “Overcriminalization of Normal Adolescent Development in Communities of Color and the Crisis in Indigent Juvenile.”

Henning specializes in juvenile justice, criminal law and procedure and family law. She previously served as lead attorney in the Juvenile Unit for the Public Defender Service for the District of Columbia. She traveled to Liberia in 2006 and 2007 to aid the country in juvenile justice reform and was awarded the 2008 Shanara Gilbert Award by the Clinical Section of the Association of American Law Schools for her commitment to social justice on behalf of children, service to the cause of clinical legal education, and an interest in international legal education.

This lecture is co-sponsored by the Clinical Education Society, the Black Law Students Association, and the American Constitution Society.

POSTPONED- March 26

Robert A. Katzmann, JD, PhD, U.S. circuit judge for the U.S. Court of Appeals for the Second Circuit, will speak about “Immigrant Representation: Overcoming Barriers.”

At the time of his appointment in 1999, Katzmann was the Walsh Professor of Government, Professor of Law and Professor of Public Policy at Georgetown University; a fellow of the Governmental Studies Program of the Brookings Institution; and president of the Governance Institute, a nonprofit organization concerned with the nexus between law, institutions and policy.

He is the author of Regulatory Bureaucracy: The Federal Trade Commission and Antitrust Policy (MIT Press, 1980; paperback with new afterword, 1981), Institutional Disability: The Saga of Transportation Policy for the Disabled (Brookings, 1986), co-editor of Managing Appeals in Federal Court (Federal Judicial Center, 1988), editor and contributing author of Daniel Patrick Moynihan: The Intellectual in Public Life (Johns Hopkins, 1998), and editor and contributing author of Judges and Legislators: Toward Institutional Comity (Brookings, 1988).

Katzmann completed another volume of his own essays on the subject of interbranch relations, Courts and Congress (Brookings/Governance, 1997).

His work on interbranch relations began at the invitation of the U.S. Judicial Conference Committee on the Judicial Branch, then chaired by Judge Frank M. Coffin. Katzmann also directed a project on the legal profession and public service, titled “The Law Firm and the Public Good” (Governance/Brookings 1995).

This lecture is co-sponsored by the Immigration Law Society and American Constitution Society.

April 4

Dorothy Roberts, JD, the Kirkland & Ellis Professor of Law at Northwestern University, will speak on “Fatal Invention: How Science, Politics, and Big Business Re-create Race in the Twenty-first Century.”

Roberts is a prolific scholar on issues related to race, gender and the law and has published more than 75 articles and essays in books and scholarly journals, including Harvard Law Review, Yale Law Journal and Stanford Law Review, authored two award-winning books, and co-edited five casebooks and anthologies.

Her latest book, Fatal Invention: How Science, Politics, and Big Re-create Race in the Twenty-first Century, was published in July 2011. Roberts serves as chair of the board of directors of the Black Women’s Health Imperative and is currently conducting research on the effects of child welfare agency involvement in African-American neighborhoods and on race-based biotechnologies.

This lecture is co-sponsored by the Center for the Interdisciplinary Study of Work & Social Capital and the Law, Identity & Culture Initiative.

Supreme Court Texas redistricting case could mark major change in Voting Rights Act

2012-01-09 00:00:00

In the case currently before the U.S. Supreme Court, Texas is contesting a federal court’s redrawing of the state’s electoral district lines for the upcoming primary election.

Under Section 5 of the Voting Rights Act, Texas must get preclearance from the U.S. Department of Justice before it can institute any voting changes.

“This case gives the Supreme Court an opportunity to weaken or even strike down Section 5,” says Gregory Magarian, JD, election law expert and professor of law at Washington University in St. Louis.

Magarian

“If Texas wins, even if the Court stops short of striking down Section 5 altogether, it will mark a major change in the law. The Supreme Court will essentially be saying that racial voting discrimination by state officials is no longer a problem that justifies a federal remedy.”

Following the 2010 census, the Texas legislature redrew the state’s electoral districts, adding four new Congressional districts reflecting the state's growth. Various groups, mostly representing the interests of Latino voters, challenged the legislature’s map as racially discriminatory. Texas did not get federal preclearance within the required time frame.

“The legislature’s map does very little to increase the voting power of Latinos, who accounted for two-thirds of the state’s population growth during the past decade, so the challengers have a credible argument that the legislature violated the core principles of racial neutrality that Section 5 is designed to safeguard,” Magarian says.

The three-judge district court assigned to hear the challenges drew its own interim map; Texas argues that the court should have allowed the state to use the legislature’s map pending resolution of the dispute.

Predictions

“The facts of this case are somewhat unusual, but if the Supreme Court were deciding the case purely on the basis of past precedent, the challengers should prevail,” Magarian says.

“The district court confronted a situation where Texas had failed to secure preclearance, and accordingly the district court did what it was supposed to do – draw its own map. The map appears to satisfy basic principles of election law.”

Magarian says the case is important because “several members of the Court – including Justice (Anthony) Kennedy, likely the pivotal vote – have expressed doubts about the continuing viability of the Section 5 preclearance requirement, based on concerns about federalism.”

Weakening Video Privacy Protection Act a dangerous attack on intellectual privacy

Jessica Martin — 2012-01-05 00:00:00

Most people would rather not have their video viewing habits easily available to the public — no need for co-workers to know about your love of reality TV.

The Video Privacy Protection Act of 1988 (VPPA) protects these records, but the House of Representatives — at the urging of Netflix and Facebook — recently voted to amend the VPPA, allowing companies to share movie watching habits much more easily.

“What’s at stake is intellectual privacy — the idea that records of our reading habits, movie watching habits and private conversations deserve special protection from other kinds of personal information,” says Neil Richards, JD, professor of law at Washington University in St. Louis.

Richards

“The films we watch, the books we read and the websites we visit are essential to the ways we make sense of the world and make up our minds about political and non-political issues,” Richards says.

Richards notes that for generations, librarians have understood this idea.

“Libraries were the Internet before computers — they presented the world of reading to us, and let us as patrons read and watch freely for ourselves,” he says.

“But librarians understood that intellectual privacy matters. A good library lets us read freely, but keeps our records confidential in order to safeguard our intellectual privacy.”

Netflix, Facebook and other companies argue that sharing is the way of the future.

“Sharing can be good, and sharing of what we watch and read is very important, but the way we share is essential,” Richards says.

“Telling our friends ‘hey, read this, it’s important’ or ‘watch this movie — it’s really moving’ is one of the great things that the Internet has made easier. But sharing has to be done on our terms, not on those that are most profitable for business.

“Industry groups are fond of saying that good privacy practices require consumer notice and consumer choice,” Richards says. “The current Video Privacy Protection Act is one of the few laws that does give consumers meaningful choice about protecting their sensitive personal information.

“Now is not the time to cut back on the VPPA’s protections. Now is the time to extend its protections to the whole range of intellectual records — the books we buy, our Internet search histories and ISP logs of what we read on the Internet.”

Read Richards’ comments on the VPPA amendment on the Concurring Opinions blog: concurringopinions.com/archives/2012/01/neil-richards-on-why-video-privacy-matters.html.

Legal training main obstacle to foreign law consideration in U.S.

Jessica Martin — 2011-12-15 00:00:00

Constitutional courts worldwide are increasingly turning to legal arguments and ideas from other countries for guidance and inspiration. But scholarly interest in the growing judicial use of foreign law paints a very misleading picture of the globalization of constitutional law, says David Law, JD, PhD, professor of law at Washington University in St. Louis.

“It is inaccurate to characterize the manner in which constitutional courts cite and analyze foreign jurisprudence as a form of ‘dialogue,’” he writes.

Law

“Judicial interaction is neither a necessary nor a sufficient cause of constitutional globalization. Judges’ use of foreign law depends more on their country’s legal and educational system structures than how they interact with other judges.”

Law, also a professor of political science in Arts & Sciences at WUSTL, says that for those who want to see the U.S. Supreme Court make greater and more sophisticated use of foreign law, encouraging its members or inviting them to additional conferences and gatherings is likely to have little impact.

“At this point in time, the greatest obstacle to judicial comparativism in the United States is not the unwillingness of individual judges to consider foreign legal materials, it is the current political economy of the American legal education,” he says.

“To ensure an adequate supply of outstanding judges and clerks with foreign legal training requires a sea change in American legal education.

“The day that American law students prize a degree in comparative law as a stepping stone to a Supreme Court clerkship or a teaching position in an American law school will be the day judicial comparativism has become truly institutionalized,” Law says.

Law and co-author Wen-Chen Chang, JSD, associate professor at National Taiwan University College of Law, discuss “The Limits of Global Judicial Dialogue” in a recent issue of the Washington Law Review.

For more information, visit: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1798345

Law school’s Civil Justice Clinic receives advocacy award

2011-12-13 00:00:00

The Civil Justice Clinic (CJC) at Washington University in St. Louis School of Law has received Legal Services of Eastern Missouri’s (LSEM) 2011 Ashley Award.

LSEM selected the CJC because of the work that clinic faculty, students and staff undertake in protecting the rights of children and families.

Co-directed by Annette Appell, JD, professor of law, and Mae Quinn, JD, professor of law, with the assistance of Kathryn Pierce, JD, lecturer in law and clinic attorney, the CJC is one of the law school’s oldest live-client representation clinics in which student attorneys represent children and families in a wide range of matters.

Quinn and Appell said they were excited about receiving the award because they are relatively new to the community and recently changed the focus of the CJC to youth and family advocacy. They are honored to be recognized so soon for their students’ work.

The CJC’s two practice areas, the Juvenile Rights & Re-Entry Project and the Children & Family Defense Project, provide holistic representation to children, youth and families in the St. Louis metropolitan area. Much of the projects’ advocacy originates in the St. Louis County Juvenile Court.

LSEM chose the CJC because it “has assisted LSEM since 2009 by handling cases with our Family Court Project and the Children’s Legal Alliance. The clinic’s focus on equal justice for disadvantaged families means that our clients benefit not just from high-quality representation, but from systemic reform that has resulted from this partnership.”

Appell and Quinn were presented with the award at the LSEM annual “For the Common Good Awards Ceremony” among other advocates for low-income communities in the St. Louis area.

The Ashley Award is named for a child, Ashley, who LSEM helped reunite with her grandmother after her mother’s death. LSEM is an independent, nonprofit organization that has provided legal assistance in civil cases to low-income communities for the past 50 years.

LSEM also publishes educational materials on a number of legal issues, offers community education, and assists people in the community at its outreach centers.

The CJC is one of 15 distinct local, national and international clinical opportunities offered through the law school. Appell, Quinn and Pierce, who share a passion for serving socio-economically disadvantaged youth and families, bring a wealth of knowledge and professional experience in youth and family advocacy to the CJC.

Sadat book wins international award

2011-12-12 00:00:00

Sadat

Leila Nadya Sadat, JD, the Henry H. Oberschelp Professor of Law at Washington University in St. Louis, recently received the 2011 Book of the Year Award from the American National Section of L’Association Internationale de Droit Pénal (AIDP) for Forging a Convention for Crimes Against Humanity.

The book, published through Cambridge University Press, includes 15 essays addressing various aspects of crimes against humanity. Sadat served as editor for the book, which was released at the culmination of the more than three-year Crimes Against Humanity (CAH) Initiative at WUSTL’s Whitney R. Harris World Law Institute.

“I am honored that this book has been recognized by the American Section of the International Association of Penal Law,” says Sadat, director of the institute.

“The Crimes Against Humanity Initiative was the most ambitious project the Harris Institute has ever undertaken, and it is gratifying to see the hard work of so many honored in this way, particularly by AIDP, which was a leader in promoting the International Criminal Court as early as 1926,” Sadat says.

Sadat previously received an article of the year award from AIDP for her American Journal of Comparative Law article, “The Nuremberg Paradox.”

Founded in 1924, AIDP is the world’s oldest association of specialists in penal law. It is committed to the study of criminal policy and the codification of penal law, comparative criminal law, human rights in the administration of criminal justice, and international criminal law.

“Forging a Convention is not only a book worthy of praise for its content, but it also so very clearly furthers the goals of our organization,” says Michael J. Kelly, JD, AIDP member and associate dean for international programs at Creighton University School of Law.

The AIDP goals are “to educate the global community on the development and furtherance of international criminal law, and to push governments and courts to adopt more aggressive policies in this regard,” Kelly adds.

Forging a Convention also contains the complete text in both English and French of the CAH Initiative’s proposed international convention on this category of crime.

The book recounts the comprehensive history of the CAH Initiative process.

In addition to Sadat, contributors to the book are: Richard Goldstone, Gareth Evans, Roger S. Clark, Payam Akhavan, M. Cherif Bassiouni, David Crane, Valerie Oosterveld, Göran Sluiter, Guénaël Mettraux, John Hagan, Todd J. Haugh, Diane Orentlicher, Elies van Sliedregt, Michael P. Scharf, Michael A. Newton, Kai Ambos, David Scheffer, Laura M. Olson, and Gregory H. Stanton.

The proposed CAH Convention builds on the legacy of Nuremberg. Following the 1945 Nuremberg trials, the Genocide Convention was adopted in 1948. The next year, the Geneva Conventions were codified to address war crimes. However, similar conventions were not adopted for crimes against humanity — a category that includes murder, extermination, rape and torture.

In the decades that followed Nuremberg, the world community continued to see horrific acts perpetrated against citizens of the former Yugoslavia, Rwanda and other countries around the world.

The fruit of the Harris Institute’s CAH Initiative, the proposed convention fills a critical gap in international law.

For more information on the book, visit law.wustl.edu/harris/pages.aspx?id=8788.

Supreme Court’s Affordable Care Act decision will have massive, immediate impact

Jessica Martin — 2011-11-29 00:00:00

The Supreme Court will hear several states’ legal challenges to the Affordable Care Act, ensuring that the court — in late June 2012 — will deliver a momentous statement about the ever-contentious constitutional balance between federal and state power.

Magarian

“The key element of the states’ lawsuits targets the act’s requirement that everyone in the country must purchase commercial health insurance,” says constitutional law expert Gregory P. Magarian, JD, professor of law at Washington University in St. Louis.

“From a policy standpoint, this individual mandate works much like Social Security taxation, ensuring that everyone has a stake in a system of public benefits. The challenger states, however, argue that the individual mandate exceeds the federal government’s authority by requiring people to buy a commercial product. The government maintains that Congress’ constitutional power to regulate commerce justifies the mandate.”

Magarian says that the legal dispute over the individual mandate implicates deep, perpetually controversial questions of constitutional federalism.

“In my view, the realities of modern economics and politics compel a generous reading of the federal government’s constitutional authority to regulate commerce,” he says.

“The court has acknowledged those realities in a series of decisions stretching back almost 75 years, consistently validating broad and ambitious federal regulations of crime, labor relations, the environment, and more. Based on these principles and precedents, I believe the court should uphold the act unequivocally.”

Magarian notes that no one, supporter or opponent of the act, can credibly claim that the Constitution’s text or history requires a particular result.

“Despite what we sometimes like to imagine, the court in constitutional cases makes law. It will do so in this case, and whatever law it makes will have massive and immediate practical impact,” he says.

“Constitutionally, however, the court’s decision will represent merely the latest movement in a controversy that will last as long as our Constitution does.”

Predictions

Magarian says that one element of the Supreme Court’s decision to hear the case should worry supporters of the act.

“In addition to the individual mandate issue, the court agreed to consider the challenger states’ argument that the act’s extension of the Medicaid program coerces states by making them provide more services in exchange for federal funding,” he says.

“This argument makes little if any sense. The court has held that the Constitution places only negligible limits on the federal government’s power to attach conditions to its spending. Perhaps the court agreed to hear this issue simply out of attention to judicial efficiency.

“On the other hand, the opportunity to uphold the Medicaid extension could protect the court in the event it decided to strike down the individual mandate, creating an appearance of balance in what would really be a devastating loss for the government,” Magarian says.

'Occupy' protests a First Amendment balancing act

2011-11-18 00:00:00

The Occupy protests present a classic First Amendment problem: balancing political dissent against government control of property.

“In theory, the government has very limited authority to curb expressive activity in what the law calls ‘public forums,’” says Gregory P. Magarian, JD, constitutional law expert and professor at Washington University in St. Louis School of Law.

Public forums are government-owned spaces, such as parks and sidewalks, that accommodate general public uses, rather than being dedicated to specific government functions.

Magarian notes that the government retains the power to limit the “time, place, or manner” of expressive activity in public forums.

“This power supposedly enables the government to preserve the public’s interest in using public spaces,” he says.

“In practice, however, the government’s ‘time, place or manner’ authority swallows First Amendment rights whole.

“The Supreme Court has held that vaguely framed concerns about safety, access to public space, and even aesthetics can justify the government in shutting down or drastically limiting political protests in public forums. As a practical matter, when free speech in public forums inconveniences the government, the government almost always gets its way.”

Magarian says that in a democratic political culture, no aspect of expressive freedom is more important than the people’s ability to protest the established political order.

“In our legal system, where decisions like Citizens United protect moneyed interests’ dominance of political debate, keeping public resources available for poorly funded dissenters is especially crucial,” he says.

“Yet, as municipal governments start to experience “Occupy fatigue,” most of their efforts to evict or restrict the protesters probably will succeed.

“The Occupy protests should lead us to take a hard look at how our legal system protects – or fails to protect – meaningful opportunities for political dissent,” Magarian says.

“Only specific, well-documented government concerns about public safety or public order should justify government restrictions on the protests,” he says.

“In this respect, the political substance of the Occupy movement makes no difference. First Amendment law should enable political dissenters left, right, and center to present their ideas to the public.”

Health insurance non-benefit expenditures unnecessarily excessive

Jessica Martin — 2011-11-16 00:00:00

The U.S. remains on track to spend twice as much for health care as for food, yet millions are without insurance or uninsured.

“Health insurance premiums also continue to rise – on average another 9 percent in 2011,” says Merton Bernstein, JD, leading health insurance expert and the Walter D. Coles Professor of Law Emeritus at Washington University in St. Louis.

Bernstein

“Medical care costs can change direction if policy makers stop whistling past a significant contributor – non-benefit costs.”

Bernstein details the numerous stages of the process for billing medical care services and the processing of these bills by insurers in his current Health Affairs piece, “Pay Attention to Health Insurance Non-Benefit Costs.”

He estimates, using Best’s Insurance data, that about one billion non-Medicare billings are processed yearly.

“Even with modest non-benefit costs for each step in the billing and payment process, the resulting national health care bill is enormous,” Bernstein says.

Made In India screening at law school Nov. 16

Jessica Martin — 2011-11-14 00:00:00

The Washington University in St. Louis School of Law is hosting a screening and discussion of the award-winning documentary Made In India at 7 p.m. Wednesday, Nov. 16, in the Bryan Cave Moot Courtroom of Anheuser-Busch Hall.

The event is free and open to the public.

Made In India explores the practice of “outsourcing” surrogacy arrangements to countries in which poor women will agree to gestate pregnancies for intended parents from the U.S. and elsewhere for a much lower price than demanded on the domestic market.

The film, directed by Rebecca Haimowitz and Vaishali Sinha, raises powerful and provocative questions about the practice without taking a position.

After the screening, there will be a panel discussion with Haimowitz, Valerie S. Ratts, MD, associate professor of obstetrics and gynecology at the School of Medicine, and Rebecca Wanzo, PhD, associate professor of women, gender, and sexuality studies in Arts & Sciences.

Susan Frelich Appleton, JD, the Lemma Barkeloo and Phoebe Couzins Professor of Law, will serve as discussion moderator.

On Thursday, Nov. 17, some screening attendees will participate in lunchtime discussion groups with law school faculty about questions raised by the film.

Liz Chen will be available after the film screening to give more details on the discussions.

The screening and luncheon are part of the series “Narratives of Law and Life: Using Film to Explore the State’s Role in Constructing Identity,” supported by a Diversity and Inclusion Grant awarded by the Office of the Provost at Washington University.

Made in India, the first film in the 2011-12 series, complicates the understanding of many different identities, including parental, gender, genetic, ethnic and national identities, while also showing how law and culture shape these understandings.

For more information, email Appleton at appleton@wulaw.wustl.edu.

Brown receives dean’s medal from Washington University law school

Jessica Martin — 2011-11-14 00:00:00

Kent D. Syverud, JD, law dean and the Ethan A.H. Shepley Distinguished University Professor at Washington University in St. Louis, presented the Dean’s Medal to alumnus Mel F. Brown, JD, Nov. 9 at the annual Scholars in Law dinner.

The Dean’s Medal is the highest honor the dean can bestow upon a graduate of the School of Law.

Mel Brown

Brown

Mel F. Brown is a 1961 graduate of the law school. He also earned his undergraduate degree from WUSTL in 1957.

Brown, a former U.S. Army officer, is the retired chairman of Founders Bancshares. He is a former president and CEO of Deutsche Financial Services, a unit of Germany’s largest bank, with world headquarters in St. Louis.

He was president and chief executive of ITT Commercial Finance and, under his leadership, the company grew to become the largest in its industry. He currently is the chairman of Triad Bancshares.

Brown is well known in St. Louis for his community service efforts. Although Washington University always has been one of his most cherished endeavors, he has served on countless other boards, such as the Missouri Historical Society, St. Louis Symphony Orchestra, Forest Park Forever, Missouri Foundation for Health and the Whitaker Charitable Foundation.

A longtime supporter of the law school, Brown was a founding member of the School of Law National Council. He initiated and personally funded the Mel Brown Family Loan Repayment Assistance Program to address the debt burden for those pursuing a legal career of public service.

Brown also has served on the university’s Board of Trustees from 1999-2002 as executive vice chair and chair of the Alumni Board of Governors, and has been president of the William Greenleaf Eliot Society as well as the Eliot Society executive committee, serving three years as national patrons chair.

Brown received the law school’s Distinguished Alumni Award in 1996, the Arts & Sciences Distinguished Alumni Award in 2007, and the Founders Day Distinguished Alumni Award in 2008.

Brown gave his first scholarships in 1984 to WUSTL’s Olin Business School in memory of his late wife, Jacqueline Hirsch Brown, AB ’63, who died in 1981. Twenty-eight years later, he continues to support students through the Mel and Pamela Brown Scholar in Law program.

Numerous flaws in ‘personhood’ movement, says family law expert

2011-11-07 00:00:00

On Nov. 8, Mississippi voters will cast their ballots on Initiative 26, which would make every “fertilized egg” a “person” as a matter of law.

“Many have rightly condemned this so-called ‘personhood’ initiative as an attack not only on abortion rights, but also on the ability to practice widely used methods of birth control, to attempt in vitro fertilization, and to grieve a miscarriage in private, without a criminal investigation by the state,” says Susan Appleton, JD, family law expert and the Lemma Barkeloo and Phoebe Couzins Professor of Law at Washington University in St. Louis.

“But these criticisms fail to identify another flaw in the reasoning of the initiative’s proponents,” she says. “The proponents assume that attaching the label of ‘person’ to fertilized eggs, embryos and fetuses necessarily establishes a legal basis for criminalizing abortion, or even for requiring its criminalization.”

Appleton says that U.S. law and legal tradition have never punished all behavior that results in the death of a person. Examples include the principles of self-defense and the Good Samaritan laws, which observers have argued (both before and after Roe v. Wade) apply to abortion.

“First, our laws have never required one individual to give up part of his or her body to save another person, even the individual’s own child,” she says.

“While we always find admirable, for example, life-saving donations of bone marrow or kidneys to others, we have no laws compelling such altruism even if a person — including one’s child — would die without the donation. Indeed, it’s not a crime to refuse to perform far less invasive or demanding actions although another person’s death will result.

“Second, our laws have always allowed causing the death of another in the exercise of self-defense, especially in the face of threats to one’s body.”

Appleton, the co-author of a family law casebook and a casebook on adoption and assisted reproduction, is a member of the Board of Directors of the local Planned Parenthood affiliate.

“Apparently, the proponents of the Mississippi initiative believe that the criminalization of abortion follows seamlessly from an expanded understanding of personhood,” Appleton says.

“They ignore, however, what it would mean to single out pregnant women for physical sacrifices and burdensome duties not required of any other class of citizens. Such exceptional treatment would raise serious equal protection questions.

“Perhaps in an equalizing effort, forced kidney and bone marrow donations would become the new regime and the privilege of self-defense would be substantially narrowed for everyone,” she says.

Appleton notes that “equal treatment would mean that any pregnant woman who agreed to an abortion would herself become a criminal, as an accomplice or conspirator, just like anyone else who agreed to a premeditated homicide.”

She says that personhood has never been the critical issue.

“The critical issue has always been whether, as a society, we trust and respect a woman’s ability to make the difficult, even life-and-death, choices that we allow others to make when confronted with either another’s need for lifesaving help or an unwanted attack on one’s body,” Appleton says.

“Pregnant women, no less than other citizens, must be entitled to make such decisions.”

The court is in session

2011-11-07 00:00:00

Mary Butkus

Mark Zoole, JD, adjunct professor at the School of Law, addresses a panel of judges during a question-and-answer session after a Special Session of the U.S. Court of Appeals for the Armed Forces (CAAF) in the Bryan Cave Moot Courtroom Nov. 2. The CAAF session featured a panel hearing arguments on both sides of the case of United States v. Thomas Hayes. The case concerns a U.S. Navy midshipman who pled guilty to stealing military property and selling it on eBay. The panel of five judges were Chief Judge James E. Baker (center); Judges Charles E. Erdman, Scott W. Stucky and Margaret A. Ryan; and Senior Judge Walter T. Cox. Third-year law student Justin Lepp argued an amicus brief in support of the appellant Hayes. CAAF holds Special Sessions at law schools as part of an educational outreach program. About 175 law students, professors and members of the public — including approximately 30 guests from Scott Air Force Base and Fort Leonard Wood — attended the session.

Religious arguments both damage, strengthen the political process

Jessica Martin — 2011-10-27 00:00:00

Despite the separation of church and state, religion plays a significant role in political debate.

Magarian

In the run up to the Republican primaries that begins January 2012, Mitt Romney has had to address his membership in the church of Jesus Christ of Latter Day Saints, as he did in the 2008 election.

Gregory P. Magarian, JD, free speech and election law expert and professor of law at Washington University in St. Louis, says that certain forms of religious argument pose a meaningful threat to democracy, but restricting these arguments would be an even larger threat to U.S. political culture.

“Arguments about religion undoubtedly make public political debate more contentious, fractious and difficult,” he says. “But religious argument threatens to destabilize the debate in ways that should ultimately strengthen our democracy.”

Magarian discusses religion’s role in politics in “Religious Argument, Free Speech Theory, and Democratic Dynamism,” published in a recent issue of the Notre Dame Law Review.

“Many people’s political convictions about, for example, gay marriage, draw upon their religious or conscientious commitments,” he says.

“If we push those influences to the margins of political discourse, our debate will be less engaged, less informative and ultimately less likely to generate the fresh insights needed to move us toward resolving our differences.”

Dinner explores legal history and feminist vision of sex equality in the workplace

2011-10-18 00:00:00

Litigation and legislative reforms have achieved formal rights to equal treatment for women in employment. But women continue to perform disproportionate amounts of caregiving in the home, to suffer economic penalties for childbearing and to face discrimination on account of motherhood in the workplace.

“The disconnect between formal equality and the deepening work-family conflict is no accident,” says Deborah Dinner, JD, legal historian and associate professor of law at Washington University in St. Louis. Dinner argues that one path toward resolving this paradox lies in history.

“If you look at history, feminists had a much richer vision of sex equality,” she says. “They set out not only to achieve same treatment of men and women — formal equality — but to transform the relationship between paid employment and reproductive work in the home.”

Dinner concludes that “feminists’ historic vision remains relevant today and could guide both contemporary judicial doctrine and legislative reform toward a more expansive conception of sex equality.”

She discusses the law’s role in sex equality and opportunities for reform in “The Costs of Reproduction: History and the Legal Construction of Sex Equality,” published in a recent issue of the Harvard Civil Rights-Civil Liberties Law Review.

Dinner says that feminists pursued anti-discrimination laws and affirmative social-welfare entitlements in service of a two-prong distributive justice agenda.

First, they aspired to equalize responsibility for childrearing between women and men within the home. Second, they sought to reallocate the economic costs of pregnancy, childbirth and childrearing between men and women within the household, and from the private family to the larger society.

“The cost-sharing dimension of the feminist vision for sex equality has not yet come to fruition,” she says.

Dinner notes that one of the most troubling issues for feminists, from a half-century ago through the present day, is the status of pregnant women in the workplace.

“In the late 1960s, working women who became pregnant faced a dire situation,” she says.

“Employers routinely fired pregnant workers regardless of their capacity to continue working, or required them to take mandatory, unpaid maternity leaves that lacked any guarantee of a job when a woman was ready to return to the workplace.”

Legal feminists used temporary disability as a new means to regulate pregnant workers consistent with the prohibition on sex discrimination in employment contained in Title VII of the Civil Rights Act of 1964.

“Temporary disability posed three strategic advantages,” Dinner says.

“First, the model would require employers to conduct an individual evaluation of pregnant women’s capacity to perform their job duties.

“Second, the model drew a distinction between pregnancy and childbearing, thus distinguishing between women’s biological role in reproduction and social norms about who holds responsibility for childrearing.

“Third, including pregnancy within disability insurance benefits would extend economic security to pregnant women. But it did so via a sex-neutral legal category, rather than a sex-unique entitlement that risked discouraging employers from hiring women.

“By 1972, legal feminists succeeded in convincing the Equal Employment Opportunity Commission, the agency charged with enforcing Title VII, to issue guidelines requiring employers to treat pregnancy as it did other temporary disabilities,” she says.

In 1974 and ’76, however, the Supreme Court issued two decisions, Geduldig v. Aiello and General Electric Co. v. Gilbert, which rejected the temporary disability model and outraged legal feminists.

Following Gilbert, women’s rights, civil rights, labor, and perhaps most surprisingly, anti-abortion groups formed a coalition to campaign for legislation that would override the decision.

“The Pregnancy Discrimination Act of 1978 (PDA) defines unlawful sex discrimination under Title VII to include discrimination ‘because of or on the basis of pregnancy, childbirth, and related medical conditions,’ ” Dinner says.

“The ambiguity about whether the PDA requires only formal equal treatment or the affirmative accommodation of pregnancy in the workplace continues to plague the courts,” Dinner says. “Particularly when deciding disparate-impact claims that challenge harsh absenteeism policies, courts often interpret the PDA to prohibit only discriminatory animus against pregnant women and not to impose redistributive mandates on employers.

“In deciding these cases, courts might do well to hesitate before separating the issue of sex equality from that of cost sharing, and antidiscrimination from affirmative entitlements. In the past, feminists understood that sex equality would require redistribution of the costs of reproduction. Advocates and courts today can draw on this history to interpret the PDA in a more expansive manner.”

Dinner says that augmenting the Family and Medical Leave Act (FMLA) is one place Congress might start if it wanted to combat sex-role stereotypes and advance women’s equal employment opportunity.

“The FMLA falls short of helping women to achieve equal participation in the labor market in at least two significant respects,” she says.

“First, leave-taking patterns under the FMLA have reinforced a sexual division of caregiving labor within the family, which in turn deepens sex-role stereotypes that prompt employer discrimination against women.

“Second, FMLA leave is disproportionately inaccessible to low-income men and women — those who need its protections the most — who either do not meet the eligibility criteria or who cannot afford to take unpaid leave.”

Congress and state governments could remedy these limitations by augmenting the federal FMLA or state equivalents, Dinner says.

“Specifically, they might establish incentives to encourage men to take advantage of their protections under the act, and they might enact a paid-leave mandate,” she says.

“Although some might label the latter hopelessly utopian, the success of advocates in campaigning for paid parental leave in California attests to the political feasibility of such a bill.”

Social Security increase is welcome but inadequate

Jessica Martin — 2011-10-18 00:00:00

Social Security recipients will receive a cost of living adjustment (COLA) of 3.6 percent beginning in 2012 — the first increase since 2009 — but it won’t go far enough, says Merton C. Bernstein, LLB, a nationally recognized expert on Social Security.

“COLA is welcome but will not fully maintain beneficiary purchasing power,” says Bernstein, the Walter D. Coles Professor Emeritus at the Washington University in St. Louis School of Law.

Bernstein

“The formula setting that rate does not meet fully the needs of Social Security recipients, especially when considering medical costs.”

Bernstein says that the formula understates the impact of health care costs that are heavier for seniors and the disabled and surviving family members who often are not employed and lack health insurance.

“At the same time, private retirement plans do not begin to match Social Security COLA,” he says.

“State and local employee retirement plans either lack such a feature or they do not seek to offset inflation in its entirety. These plans often reduce whatever COLA they have when economic times get tough – just when it is most important.”