Disbarring the Bar?

By Conor Regan

The Bar Examination, a long-standing comprehensive test to become qualified to practice law, has recently become a hot topic of discussion in the legal world after The New York Times published an article titled, “Bar Exam, the Standard to Become a Lawyer, Comes Under Fire”.

Within the article, author Elizabeth Olson reported that a number of states, including Arizona, Iowa, and New Hampshire, are exploring alternate routes for law students to become certified to practice law. Naturally, this deviation has caused some exasperation from the legal community, as the Bar Exam has typically been viewed as a rite of passage that every law school graduate must endure.

A number of law school deans first impugned the validity of the bar after last summer’s exam results were released, showing the lowest scores in the past decade. These deans came under fire themselves, as many law schools have been accused of admitting less academically qualified applicants due to the recent drop in overall law school applications.

Many deans and students alike argue that the Bar does not test any significantly applicable skills for the legal profession, but rather arbitrarily tests memorization skills. Olson reports that the bar testing agency has stated that the exam is a “basic test of fundamentals that has no justification other than protecting the consumer.”

The state of New Hampshire currently has implemented the most radical approach to avoiding the Bar Exam. University of New Hampshire School of Law allows second and third year law students to participate in an apprenticeship where they learn the skills necessary to practice. If these students pass a review by state bar examiners, they are directly admitted to practice.

I would argue that the Bar serves a considerable function for all aspiring lawyers. Though the Exam may not test the most valuable skills for a lawyer, at some fundamental level everyone practicing the law must know the law, as esoteric and irrelevant some clauses may be. Abolishing the examination may drastically lower the caliber and competence of attorneys, a profession long known for its rigorous pre-professional training.

What do you think? For more information on the article, visit http://www.nytimes.com/2015/03/20/business/dealbook/bar-exam-the-standard-to-become-a-lawyer-comes-under-fire.html.

SCOTUS Challenge to Obamacare Round Two- What you need to know about King v. Burwell

By Will Reed

Everyone remembers the highly-publicized 2012 challenge to the Affordable Care Act, or "Obamacare," where conservative Chief Justice John Roberts sided with the Supreme Court's liberal wing to creatively uphold the legality of the key domestic policy of President Obama's first term.  The Court found that the individual mandate of the ACA is not supported by the Commerce Clause, as most commentators expected, but is constitutional thanks to the Taxing and Spending Clause.  Common sense would lead one to believe that the result of National Federation of Independent Business v. Sebelius (2012) was the unambiguous, ultimate, final confirmation of the legality and permanence of Obamacare and an end to Republican attempts to dismantle the law.  Yet, during the first week of March 2015, the Supreme Court heard oral arguments in King v Burwell, a second major legal challenge to the law which commentators say, once again, could effectively dismantle the law.

                  The SCOTUSBlog defines the issue as follows:

"Whether the Internal Revenue Service may permissibly promulgate regulations to extend tax-credit subsidies to coverage purchased through exchanges established by the federal government under Section 1321 of the Patient Protection and Affordable Care Act." [1]

                  To understand the implications of the issue before the Supreme Court, it is necessary to dissect some of the inner workings of the Affordable Care Act itself.  The backbone of Obamacare is the system of online healthcare "exchanges" that would be created where Americans who don't receive health insurance through their employer would go to purchase insurance.  The hope was that each state would create and operate its own exchange.  The 50 million Americans lacking health insurance would be brought together in the exchanges would expand the risk pools and lead to more competition thus lowering costs of health insurance for everyone.[2]  While the law intended for this to be done at the state level, many states, due to technical concerns or outright opposition to the law, opted to let the Federal government run the exchange in place of the state.

                   In the same section that describes how exchanges should be established, the Affordable Care Act also establishes tax credit subsidies available to those purchasing healthcare through the system.  The exact wording is that the subsidies are available to those purchasing healthcare "established by the state." 

                  The issue in King v. Burwell is whether these subsidies can be distributed in states which chose not to establish a state exchange and rely on the federal government to operate its exchange.  The first extreme position the Supreme Court could take is interpreting the text strictly which would effectively end subsidies, and much of the substance of the ACA, to people purchasing healthcare from the 37 states that do not operate state exchanges.  This ruling would essentially be saying that the Court believes Congress intentionally worded the law to deny subsidies from people in states that use a federal exchange.[3]  The other extreme would be for the Court to keep the law completely intact and subsidies would continue.  This could be done effectively by the Court finding the plaintiffs do not have standing or by accepting a loose interpretation of the term; an interpretation that is more beneficial to health insurance buyers.

While it is impossible to know the exact effects of a ruling striking down the subsidies, commentators estimate that 8 million people would lose health insurance and millions more would see costs double or triple.  Others predict that the spike in prices would send markets into chaos and eventually collapse.[4]  One of the main concerns has been the effect striking down the subsidies would have on children who receive healthcare through their parents as proscribed by the Affordable Care Act and would potentially lose their coverage.  All of these negative effects would be concentrated among the poor who benefit the most from the subsidies of the ACA.[5]

When considering that the government initially assumed each state would in fact set up its own exchange together with the language of the subsidy clause, there does not seem to be any question that the government would have wanted its subsidies to be extended to all Obamacare exchange participants.  However, lawyers and research organizations generally agree that, as worded, the law punishes states that do not establish an exchange system. 

Of course, eight million Americans losing health insurance is not a politically beneficial outcome for Republicans or Democrats.  One obvious outcome of a ruling striking down the federal subsidies would be many states, burdened by the political reality of forcing their citizens to pay taxes funding Obamacare while not providing the benefit of the law, would set up exchanges thus mitigating the effect.  Beyond that, there is already talk of Congressional Republicans seeking to fill the void that such a ruling would leave with their own system restoring some of the subsidies.[6]

Politically of course, the stakes could not be higher for President Obama and the Affordable Care Act.  The stakes are similarly high for purchasers of health insurance on one of the federal exchanges.  Oral arguments were heard in the first week of March and the Court's ruling is expected June or July.  As expected, the decision will likely hinge on the decision of swing-vote Justice Robert Kennedy and, due to his decision in the original ACA case, Chief Justice Roberts.

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[1] SCOTUSBlog

[2] Nussbaum. Health Insurance Exchanges. Bloomberg. Mar 4, 2015. Web http://www.bloombergview.com/quicktake/health-insurance-exchanges

[3] Ryan Teague Beckwith.  4 ways the Supreme Court could rule on Obamacare.  Time.  March 4, 2015.  Web

[4] Ian MIllhisher. Republican Governor Says He Wants The Supreme Court Case Against Obamacare To Lose. ThinkProgress.  March 16, 2015. Web

[5] Stephen Stromberg. What would happen to children if the Supreme Court dismembers Obamacare. March 17, 2015. Web

[6] Sean Parnell.  Supreme Court Hears Obamacare Case.  March 18, 2015. Web http://news.heartland.org/newspaper-article/2015/03/26/supreme-court-hears-obamacare-case

Does CISA Violate Our Privacy and Civil Liberties?

By Sarah Nelson

Senior Democratic Senator Dianne Feinstein introduced the Cybersecurity Information Sharing Act of 2014 (CISA) for consideration to the Senate Select Committee on Intelligence (SSCI) on July 10, 2014 (Wired). The stated purpose of the bill is to “improve cybersecurity in the United States through enhanced sharing of information about cybersecurity threats, and for other purposes” (ACLU). On March 12, 2015 the SSCI voted 14 to 1 to pass CISA from committee to be considered by the entirety of the Senate (Wired). The only no vote came from vocal privacy proponent Senator Ron Wyden from Oregon (Wired). Wyden was joined in his opposition with various civil liberties groups, including the American Civil Liberties Union (ACLU), the Free Press Foundation and the Electronic Frontier Foundation (Wired). Senator Wyden released a press statement stating, “If information sharing legislation does not include adequate privacy protections then that’s not a cybersecurity bill – it’s a surveillance bill by another name.” (Wyden) So, are Senator Wyden’s concerns founded? And if so, how will our privacy be violated if CISA is passed?


How CISA Compares to the Defeated CISPA


The Cyberintelligence Sharing and Protection Act (CISPA) originated in the House of Representatives in April of 2012 as a set of amendments to the National Security Act of 1947 (Default). CISPA was designed to allow the intelligence community to coordinate with private corporations to combat cybersecurity threats. The bill was passed by the House and sent to the Senate twice, once in 2012 and once in 2013, but was defeated in the Senate both times (ACLU). President Obama went on record in 2013 saying that if CISPA passed the Senate he would immediately veto it (ACLU).

The bill allows corporations to share private personal data with the government without legal justification (Default). For example, if a person were to send an email on their personal email account, that email and anything attached could be seized under this bill. So an agency like the National Security Agency (NSA) has permission to seize an individual’s private data from a company like Google without the authorization of a subpoena if the information being taken is “directly pertaining to a vulnerability of, or threat to, a system or network of a government or private entity”. Privacy organizations and civil liberties activists argue that this legal language is broad to the point of absurdity (Default).

Proponents of CISPA argue that the bill has been amended to address any substantial privacy violations. The two representatives that sponsored the bill in the House Permanent Select Committee on Intelligence, Mike Rogers and Dutch Ruppersberger, argue that the bill specifically forbids the federal government from using collected information for “any other lawful purpose unless the government already has a significant cybersecurity or national security purpose in using the information” (ACLU). Those that condemn the bill would argue that the oversight on what constitutes a “significant” purpose is virtually nonexistent (Wired). Friends of CISA also note that it has the endorsement of some of the most major tech corporations in the world today, including Facebook, Microsoft, Apple and AT&T (Default). These corporations have released statements saying that they find CISA to be a helpful piece of legislation in outlining how cyber threats are to be reported to intelligence agencies (Default).

CISPA and CISA were both created to accomplish the same mission, to secure the networks of technology companies against cyber attacks. To do this, the bill gives powers to the United States government to investigate cyber threats. The bills share virtually the same language to the point that CISA is considered to be CISPA being “resurrected from the dead” (Forbes). CISA is considered to be more of a danger to whistleblowers than CISPA, since under CISA private information given from tech companies is usable in criminal proceedings such as prosecutions under the Espionage Act (ACLU). So CISA takes everything worrisome about CISPA and expands on it.


What Will Happen?


Chairman of the SSCI Richard Burr issued a statement to the press that the SSCI had added amendments to the bill that prevented tech companies from “data dumping” vast collections of information to intelligence agencies (Wired). However, since the proceedings of the Senate Select Committee on Intelligence are classified, it is still unclear as to what amendments have been added onto the bill since the last time the text was open to the public (Wyden). We will have to wait and see what the amended version of the bill will mean for our privacy.


Works Cited

"CISA Cybersecurity Bill Advances Despite Privacy Concerns | WIRED." Wired.com. Conde Nast Digital, n.d. Web. 15 Mar. 2015.

"CISA Isn't About Cybersecurity, It's About Surveillance." American Civil Liberties Union. N.p., n.d. Web. 15 Mar. 2015.

"Controversial Cybersecurity Bill Known As CISA Advances Out Of Senate Committee." Forbes. Forbes Magazine, n.d. Web. 15 Mar. 2015.

"Senate Intelligence Panel Considers CISA Bill to Enhance Private-Public Threat-Sharing Capabilities." Default Podcast. N.p., n.d. Web. 15 Mar. 2015.

"Wyden: Cybersecurity Bill Lacks Privacy Protections, Doesn't Secure Networks | Senator Ron Wyden." Senator Wydens. N.p., n.d. Web. 15 Mar. 2015.

First Amendment Legend Mary Beth Tinker Fights for Student Rights Across the Country

By Jenna Spoont

Mary Beth Tinker, the plaintiff in Tinker v. Des Moines Independent Community School District (1969), is a First Amendment legend. The case came to the Supreme Court because Ms. Tinker, her siblings and friend, wore black armbands to school to protest the Vietnam War. The students were told to remove their armbands. The students said that the forced removal of the armbands violated their First Amendment rights. The Court held that students do not shed their First Amendment rights when they are on school property.

Ms. Tinker travels across the country and shares her story about the case. I invited her to speak to my Justice and the Legal System class on Feb. 25. She noted during her presentation that she only wore the armband at school for a few hours—just a few hours changed the course of history.

Recently, Ms. Tinker traveled to North Dakota to testify for the passage of a state bill, the John Wall New Voices Act (HB 1471). The bill looks to create a new section in the North Dakota Century Code, “relating to freedom of expression rights of students of public institutions of higher education and public schools.”[1] This bill passed 92-0 in the state’s House. Now, bill must be sent to the state’s Senate.

The John Wall New Voices Act defines “school-sponsored media,” “student journalist” and “student media adviser.” In the act, “a student journalist has the right to exercise freedom of speech and of the press in school-sponsored media, regardless of whether the media is supported financially by the institution or by use of facilities of the institution or produced in conjunction with a class in which the student is enrolled.”

But why is this bill so important to North Dakota, anyway? In Hazelwood School District v. Kuhlmeier (1988), the Supreme Court held that educators can exercise “editorial control over the style and content of student speech in school-sponsored expressive activities as long as their actions are reasonably related to legitimate pedagogical concerns.” This decision, which has been known to “chill student speech,” applies to student journalists, student actors, really any student on school property who uses their First Amendment rights. North Dakota’s House of Representatives just voted to reverse that precedent in their state.

But here’s the catch in the bill and here’s where Tinker becomes a grey area: students do not have the right to exercise freedom of speech if the material “So incites students as to create a clear and present danger…and substantial disruption of the orderly operation of the institution.” Under Tinker, students have the right to express themselves freely as long as the expression does not cause a “substantial disruption.”

But what, technically, is the definition of a disruption? This question raises the idea of heckler’s veto, when a reacting party impacts the acting party’s First Amendment rights.

Here’s an example of a heckler’s veto: On September 17, 2014 (Constitution Day)[2], the U.S. Ninth Circuit Court of Appeals decided not to rehear and not to rehear en banc Dariano v. Morgan Hill Unified School District, “a civil rights suit brought by high school students who were asked to remove clothing bearing images of the American flag after school officials learned of threats of race-related violence during a school-sanctioned celebration of Cinco de Mayo.”[3] The panel in the Ninth Circuit “held that school officials anticipated violence or substantial disruption of or material interference with school activities, and their response was tailored to the circumstances.”[4]

According to the Ninth Circuit’s summary, the dissenting judges on the panel held that “the reaction of other students to the speaker is not a legitimate basis for suppressing student speech absent a showing that the speech in question constitutes fighting words, a true threat, incitement to imminent lawless action, or other speech outside the First Amendment’s protection.”[5] The judges also say that the heckler’s veto doctrine condones “the suppression of free speech by some students because other students might have reacted violently.”[6]

On December 15, 2014, the petitioners filed a writ of certiorari to the Supreme Court. The issue in the case is the following: “whether the Ninth Circuit erred by allowing school officials to prevent students from engaging in a silent, passive expression of opinion by wearing American flag shirts because other students might react negatively to the pro-America message, thereby incorporating a heckler’s veto into the free speech rights of students contrary to Tinker v. Des Moines Independent Community School District.”[7] The case was distributed for a March 27 conference. Mary Beth Tinker and her brother, John, filed an amicus brief in favor of the petitioners. The Center for Constitutional Jurisprudence and the Alliance Defending Freedom also filed amicus briefs, also in favor of the petitioners.

We will find out soon if the Court decides to grant certiorari for this case. Stay tuned!

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[1] http://www.legis.nd.gov/assembly/64-2015/documents/15-0825-01000.pdf?20150120102330

[2] http://dailycaller.com/2014/09/18/ninth-circuit-affirms-that-its-illegal-to-wear-american-flag-shirts-on-cinco-de-mayo/

[3] http://cdn.ca9.uscourts.gov/datastore/opinions/2014/02/27/11-17858.pdf

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] http://www.americanfreedomlawcenter.org/wp-content/uploads/2012/02/Dariano-Petition-for-Cert-Final.pdf

Arizona Redistricting

By Michele Bastacky 

Although not a new issue, redistricting has become highly contentious again, this time in Arizona.  In more than half of the states in the country state legislators are the sole groups responsible for the redistricting process.  However, some states have created alternative methods for the redistricting process such as the formation of unbiased and/or independent or bipartisan commissions.  

 Since 2000, Arizona has become one of one seven states that utilizes a specially formed bipartisan commission to determine the district’s electoral geography, with the goal of reducing political bias. _[1] This bipartisan commission was created through a referendum, Proposition 106, and is composed of two Democrats, two Republicans, and one independent designated to chair the commission.  Until recently, this method was successfully utilized to establish more politically balanced districts, free of a purposeful political majority.   As a result of the redistricting, there still remained safe Republican and Democratic seats, however, the state typically still had a few competitive seats, making political races more fair.  As neither political party wanted to lose their chances of maintaining a safe seat the Republican Governor Jan Brewer (sworn in 2009), chose to fire the chair of the committee, Colleen Coyle Mathis, in December of 2011.  The Arizona Supreme Court had a hearing over the issue of the firing and ruled that it was without just cause and reinstated her as commission chair. _[2] 

Earlier this year the Arizona Supreme Court ruled on Arizona State Legislature v. Arizona Independent Redistricting Commission (2013) and rejected the challenge against the electoral commission, finding the commission within the proper use of the term “legislature” of the Elections Clause of the Constitution.  Because Republican state officials remained dissatisfied with the Arizona Supreme Court decision, they have filed an appeal that has made its way to the US Supreme Court, which heard the case over Arizona redistricting on March 2, 2015. _{[3] [4]}  Arizona Republicans presented the argument that state election issues should be left to the state legislatures as is mandated by part of the Elections Clause of the Constitution.  Former Solicitor General Paul Clement argued that the founding fathers did not intend for a direct democracy, and that the state legislatures are responsible for elections within individual states.  Clement like many other Republicans do not believe that the authority to influence elections through redistricting should be left to an “unelected and unaccountable commission”.  Currently, the only available option for the state legislature to regain control of the redistricting process would be for the state to have another referendum to place the process back under the legislature’s jurisdiction.  However, the likely result of another referendum is anticipated to be unfavorable to the legislature.  _[5]

The opposing position led by former Solicitor General Ted Olson, argues that the Republicans are misreading the Constitution, and that the word “legislature” within the Constitution has a quite broad definition, comprising the “entity or collection of individuals that made the law” which would include the people of Arizona.  Olson fears that if the Supreme Court rules in favor of the collective view of Arizona Republicans held view that the legislature has the authority to create districts, the districts would become progressively uneven and favor the particular party in power, creating more safe seats and non-competitive elections.  Olson also contends that by allowing the commission to continue, the people, who created it through referendum, are part of the legislative process, which he believes to be one of the original and fundamental ideals of the founding fathers.  Therefore Olson holds that the referendum is a legal, constitutionally allowed amendment to the state Constitution. _[6]

During the US Supreme Court proceeding in the case of Arizona State Legislature v. Arizona Independent Redistricting Commission, the justices that tend to favor more conservative rulings appeared more opposed to electoral redistricting commissions being seen as constitutional, while the more liberal justices favored the position supporting the constitutionality of laws that allow these commissions.  As of now, it appears that the deciding vote will be determined by which side Justice Kennedy finds Constitutional.  Justice Kagan, who was the most actively vocal while hearing the case posed the question of what would happen if this commission was found unconstitutional as she asserted, “you take the 2011 law in Mississippi adopting voter ID requirements; 2007, Oregon, voting by mail; 1962, Arkansas, use of voting machines. All of these things were done by referendum or by initiative with the legislative process completely cut out. So would all of those be unconstitutional as well?”. _[7]

            Depending on the ruling, other states’ laws would likely be impacted, which would have far-reaching consequences that could significantly influence the 2016 national election.  _[8]

  

References

1.     "Independent Redistricting Commission." Independent Redistricting Commission. AZ.gov, n.d. Web. 07 Mar. 2015.

2.     Totenberg, Nina. "Supreme Court To Weigh Power Of Redistricting Commissions." NPR. NPR, 2 Mar. 2015. Web. 06 Mar. 2015.

3.     "Arizona State Legislature v. Arizona Independent Redistricting Commission." SCOTUSblog RSS. SCOTUSblog, n.d. Web. 07 Mar. 2015.

4.     Parti, Tarini. "High Court Hears Redistricting Case." POLITICO. POLITICO LLC, 2 Mar. 2015. Web. 07 Mar. 2015

5.     Totenberg, Nina. "Supreme Court To Weigh Power Of Redistricting Commissions." NPR. NPR, 2 Mar. 2015. Web. 06 Mar. 2015.

6.     Ibid.

7.     Parti, Tarini. "High Court Hears Redistricting Case." POLITICO. POLITICO LLC, 2 Mar. 2015. Web. 07 Mar. 2015

8.     Ibid.