Author Archives: kyukevich

“Majority/Minority: Political Polarization and “Whitelash” in the Coming Racial Transition” with Daria Roithmayr

Austin Davis, 1L

In an event co-sponsored by BLSA and ACS, USC School of Law Professor Daria Roithmayr presented the foundation of a book she’s developing about the political reactions and anxiety resulting from the United States’ changing demographics. She focused on the impacts of “whitelash,” a term to describe the political forces that bought Donald Trump to the presidency and coined by Van Jones as the unexpected 2016 election results came in on November 8th.

The heart of her analysis focused on what she called “new faces in white places.” The proportion of whites relative to other ethnicities in America has been decreasing for some time, but demographic trends indicate that America’s white population will experience an absolute decrease by 2060. The nation’s demographic shift will primarily involve increased migration from first-generation melting pot cities, like Los Angeles, to more established “enclave cities,” like Atlanta. However, while whites will be mostly supplanted by a rise in Latinx populations, Prof. Roithmayr noted that the increased militarization of our borders may direct Latinx people to disperse more within the United States rather than congregate in any particular metropolitan area. In the meantime, sheltered white spaces will still exist, primarily in the suburbs, the “Heartland,” and the “Sunbelt.”

According to Prof. Roithmayr’s research, the population decrease by sheltered whites living in those mostly white spaces will lead to serious, troubling, and violent levels of anxiety. As demographics changes, white will begin to have more “unexpected encounters”: in the suburbs and the South, with middle class African-Americans, and in the Heartland and the Sunbelt, with young, low-skill Latinx and high-skill Asians. And unfortunately, social research indicates that racial resentment will rise in whites as they approach the demographic tipping point at which they will lose majority ethnic status, and that their economic anxiety – exacerbated by stagnating wages and union weaknesses – activates latent biases.

The outcome to this anxiety: “whitelash.” We experienced it through the 2016 election, and since then, the nation has experienced a terrifying rise in hate crimes. And they’re not occurring in a vacuum: at every level of government, exclusionary policies continue to target people of color, and regressive policies continue to oppress everyone.

But at the end of the day, Prof. Roithmayer made the point that the law has two important roles to play in our lives: protecting the minority and empowering the majority. And as America’s demographics shift, how we view “majority” and “minority” categories will shift, as well. In fact, as today’s non-white minorities gain demographic and political clout, Prof. Roithmayer sees the passage time as an inevitably positive contributor to justice and equality. She even noted that advocates for racial justice may start to see that change reflected through the “unlikely allies” of businesspeople and corporations, looking for a competitive labor force and to sell to new markets.

Ultimately, even though Prof. Roithmayer’s book is a work in progress, her presentation covered a tremendous amount of vital research and analysis for justice advocates, and the students gathered appreciated her insights in untangling America’s demographic future.

Symposium on Transgender Rights

By Han Suh, 1L

On March 24, Erwin Chemerinksy, a preeminent Constitutional Law scholar and Dean of UC Irvine School of Law, gave a talk on the legal history of transgender rights movement as part of Harvard Civil Rights-Civil Liberties Law Review’s Symposium on Transgender Rights.

Professor Chemerinksy opened the discussion by highlighting the urgent need for legal protection for transgender individuals. Despite the presence of transgender individuals from time immemorial, earliest references to transgender individuals in legal academia first emerged in 1945 and a robust discussion only began in 1990s.

Next, Professor Chemerinksy illuminated on how existing law could be used to protect transgender rights. Although 19 states and 200+ cities provide legal protection for transgender individuals, there is no existing federal statute that explicitly provides protection. Instead, transgender rights advocates have used the framework of sex discrimination. They have successfully argued that discrimination against non-gender-conforming behavior is sex discrimination. In 1989, the United States Supreme Court validated this approach in Price Waterhouse v. Hopkins.

Most recently, the bathroom backlash such as North Carolina HB2 have ensued. Professor Chemerinsky observed that bathrooms have been at the core of many civil rights efforts such as desegregation and Gay and Lesbian rights. In the bathroom debate, opponents of transgender rights have capitalized on the language of privacy and safety and the language of state rights. Such language of state rights has been used similarly in discussions on abolition, child labor, federal minimum wage, segregation, and Gay and Lesbian rights.

Under the Trump administration, new laws or regulations for transgender rights are highly unlikely. Hence, Professor Chemerinsky argues that existing law, especially laws against sex discrimination, is the most promising tool and framework for litigation. He closed the talk with three additional points. First, transgender right litigation will be substantially different from marriage equality litigation. Marriage equality litigation deliberately started in state courts using state constitutions; whereas transgender rights cases can be and have been brought to federal courts using the constitution and federal statutes. Second, bringing transgender cases to court while Justice Kennedy is in office is a wise strategy. Third, a major public relations effort is necessary to change social attitude to build momentum for progress of transgender rights.

Professor Chemerinsky left us with a powerful case for litigating for transgender rights through the sex discrimination framework and encouraged students and other symposium attendees to actively engage with advancing legal rights for transgender individuals.

A Conversation with Former Solicitor General Don Verrilli

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Kassi Yukevich ’17 speaks with Former Solicitor General Don Verrilli

Sarah Grant, 1L

On March 2, Don Verrilli, Solicitor General of the United States from 2011-2016, spoke to students at an event co-sponsored by the American Constitution Society, the Women’s Law Association, and the HLS Democrats. Prior to his appointment by President Obama as Solicitor General, Mr. Verrilli served as the Associate Deputy United States Attorney General and in the White House Counsel’s Office as Deputy Counsel to the President. Before joining the government, he was a litigation partner at Jenner & Block LLP in Washington, DC and argued a dozen cases before the U.S. Supreme Court.

Mr. Verrilli opened the discussion by talking about his background in private practice, where he developed a reputation as one of the nation’s premier appellate advocates, and his path to the Solicitor General’s Office. Mr. Verrilli said that it was unusual for someone to move from the White House Counsel’s Office to the Solicitor General position, but that it was beneficial in his case because he personally knew and had the trust of the President and Attorney General. As a result, he was given a great deal of freedom in running the office and deciding which cases to take up. He knew on certain high-profile, intensely political cases, however, like those leading to the eventual recognition of same-sex marriage rights, that the decision on how to proceed had to be President Obama’s to make.

On the topic of marriage equality, Mr. Verrilli talked about reading the mood of the public and of the Supreme Court justices, particularly Justice Kennedy, when deciding which cases to support and in what way. He also discussed meeting with President Obama in the lead-up to Obergefell to decide how to argue the case, in light of the fact that the Due Process arguments made in previous cases did not seem to resonate strongly with the justices. Out of that meeting came the approach that Mr. Verrilli successfully adopted at oral argument, which focused on the human element of marriage equality and stressed the importance of empathy and compassion, and the freedom to love.

In response to questions from students, Mr. Verrilli discussed his approach to oral argument and how it evolved as he became more comfortable in the position of Solicitor General. He started out too conservative and deferential, he said, and was less persuasive as a result. Eventually, he came to embrace the more forceful style of his days in private practice. The opposition in politically-charged cases often played to the justices’ emotions both in the briefs and at oral argument, and to win Mr. Verrilli needed to be able to match them rhetorically as well as on the law. The best preparation, he said, was to go through rounds and rounds of moots beforehand with staff attorneys from the Solicitor General’s Office and from elsewhere in government. They almost always anticipated the precise questions the justices would ask, so he rarely faced a question in oral argument for which he had not prepared.

The event concluded after nearly 90 minutes of Q&A, and was a great opportunity for students to learn more about the work of the Solicitor General’s Office, and the judicial setbacks and landmark successes of the Obama Administration in pursuing a progressive agenda.

Prison In Twelve Landscapes

Emma Goold, Section Representative

The Prison in Twelve Landscapes is a documentary film about prison that never once steps foot inside one. Instead, director Brett Story says, she wanted to illustrate how the prison extends far beyond its walls and generates a low-level violence that permeates our society. The violence of waiting, in a scene at 34th & 7th in NYC, where lines of women and children of color wait for busses to visit prisons upstate. The violence of loneliness, seen through the eyes of the producer of the “Calls from Home” show, which broadcasts longing messages from family members to their loved ones in prison. The violence of fear, in a community that is building small parks for the purpose of forcing out residents on the sex offender registry. The violence of poverty, which makes residents in a former coal-mining town in eastern Kentucky hope for a federal prison that will bring money and job security to their community.

There are less subtle forms of violence, too, like the heart-wrenching scenes from Ferguson, Missouri. In one, a woman describes how she faced fifteen days in jail after receiving a ticket because the lid had fallen off her outdoor trashcan. In another, a man describes how he was pulled over and issued a ticket for driving without insurance. Though he was able to show proof of insurance, he was still charged more than $200 in court costs.

In a Q&A session with the director led by HLS Professor Umunna after the screening, Ms. Story suggested that by showing the multiple functions that prisons serve, we can begin to imagine ways to achieve those functions without the prison. This is a compelling sentiment, but perhaps only to those who already recognize the pitfalls of our system of mass incarceration. Those who opt in to a Tuesday evening showing of a film entitled The Prison in Twelve Landscapes on a university campus are perhaps, as Professor Umunna put it, “the choir” when it comes to these issues. That raises a challenge, for us especially, as a community of progressive activists. How do we disseminate this kind of powerful imagery to those who are not yet convinced of the pervasive violence of the prison system? And more importantly, how do we foster an atmosphere in which people are truly willing to have their worldview challenged and to engage in meaningful dialogue?

The Psychology of False Confessions

Kaitlyn Gerber, 1L 

On November 11, Harvard ACS, alongside 1L Section 2, hosted Dr. Richard Leo, an expert in false confessions, police interrogations, coercion and wrongful convictions. Dr. Leo is currently the Hamill Family of Law and Psychology at the University of San Francisco Law School, and has advised or worked on hundreds of cases involving false confessions, including two of the Central Park joggers, and Jessie Misskelley, Jr. of the West Memphis Three. On Friday, his talk focused on a lesser-studied aspect of criminal justice: why would anyone confess to a crime he or she did not commit, and how do false confessions affect a subsequent trial?

Dr. Leo began with an overview of how false confessions are studied – a tricky concept, considering it may require mimicking coercive circumstances in a laboratory. He noted that some cases have multiple false confessions, where one person implicates another, who then also confesses falsely. In particular, he noted several aggregated studies which have confirmed that since 2004, over 200 confessions have been proven to have been false.

He noted that the consequences of a false confession in the criminal justice system are wide-ranging and dramatic: they cause police to close cases, defense attorneys to presume their client’s guilt, and judges to sentence more severely for the criminal’s failure to show remorse. Prosecutors, meanwhile, are more likely to set higher bail and impose higher charges, while jurors are more likely to convict (even when they know a confession is coerced). The law, he noted, almost never permits appeals based on innocence when the basis of that appeal is a coerced confession.

Knowing that many students would find it surprising (and perhaps counterintuitive) that people may falsely confess to crimes they did not commit, Dr. Leo then outlined his understanding of why people make false confessions. Specifically, he named three errors: misclassification, where police decide someone must be a guilty suspect despite a lack of evidence; coercion in a police interrogation, and contamination, when police feed suspects information not known to the public.

In particular, he noted that coercion usually proceeds when the police convince a suspect that he is caught, and that a confession is the only way out. Dr. Leo also noted that because American police are allowed to lie in interrogations, they often fabricate information (i.e., “we have it on video that you committed the crime”), leading a suspect to feel that he is trapped, and perhaps even convincing the suspect that they actually committed the crime.

Finally, he had several policy suggestions for improvement: namely, mandated electronic recording for police interrogations, as well as improved police training. He also thought there should be legal changes in probable cause requirements for interrogation, as well as regulations for the reliability of confessions evidence (note: with some humor, he acknowledged that most law professors disagree that this would be possible, but he thinks it would definitely help).

Ultimately, Dr. Leo’s talk provided an expert’s view on a problem that is often under-acknowledged in our justice system: the fact that sometimes, despite confessing to a crime and apparently knowing “insider” information, a person might actually be innocent.

A Courageous Career

Han Suh, 1L

On October 31, ACS and HLS Defenders hosted a lunchtime talk with Judge Nancy Gertner (Ret.) who served on the U.S. District Court for the District of Massachusetts for 17 years.

Judge Gertner shared that in the beginning stages of her career, the lack of experience or preexisting rigidity, in fact, enabled her to be more adventurous, creative, and unapologetic. As a result, as her first high profile case, she defended a radical lesbian feminist antiwar activist, Susan Saxe, accused of robbery and murder. Such daring selection of cases and arguments enabled her to further reflect her passion into her work. Her cases ranged from civil rights, sex discrimination, criminal defense to abortion.

Judge Gertner’s first meeting with Senator Ted Kennedy shows her commitment for social justice and her comradery with her peers. Before he decided to recommend her, Judge Gertner asked Senator Kennedy to consider recommending a lawyer with a criminal defense or a civil rights career for the bench even if he decided not to recommend her specifically. She reminded him that this would not only to reward the individual but also to validate and thank the litigators in such practice areas. This anecdote highlighted her loyalty to the community of lawyers who pursue liberalism and feminism.

On her experience on the bench, Judge Gertner noted that she was acutely aware of her new position and responsibility regarding the application of law. Although strict sentencing guidelines sometimes restricted her options in ruling, Judge Gertner took utmost care in hearing the individual stories of the accused and making sure they knew they were heard. Even long after conviction and sentencing, she followed the lives of those she sent to prison. People were always more than numbers for her, even when her job might have pushed her in the other direction.

Realizing she had much experience and passion to offer in a different capacity, Judge Gertner retired in 2011. She continues to promote civil rights through sentencing reform and critiques of mass incarceration. She is also a member of American Constitution Society.

Judge Gertner’s career and insights continue to inspire and encourage the progressive students at HLS.

The Undue Burden Test and the Future of Reproductive Justice

A Conversation with Stephanie Toti, Lead Counsel in Whole Woman’s Health

By Leyla Salman, 2L

On November 3, ACS joined the Harvard Law Students for Reproductive Justice and the Women’s Law Association in hosting Stephanie Toti, a Senior Council at the Center for Reproductive Rights who successfully argued Whole Woman’s Health v. Helllerstedt before the Supreme Court.

Ms. Toti began by giving us an overview of the case. Whole Woman’s Health was a challenge of two provisions of Texas law that imposed unnecessary challenges on women seeking an abortion in Texas. First, the statute contained an admitting privileges requirement which mandated that physicians who perform abortions must have admitting privileges at a local hospital. In effect, this requirement resulted in the closure of more than half of the Texas facilities that provided abortions. The second requirement demanded that all facilities where abortions may be performed have to be multi-million dollar surgical facilities. This caused the closure of more than one half of the remaining abortion facilities.

Here’s what was at stake on the day Stephanie Toti argued before the Supreme Court: Had these requirements been allowed, the effect on a woman’s freedom of choice in Texas would have been detrimental. Per year, there are about 70,000 abortions performed in the state of Texas. Under these provisions of Texas law, the number of clinics would have dropped to less than ten, all of which are centered in metropolitan areas. Ms. Toti emphasized that there would not have been a single abortion provider south or west of San Antonia, an area that alone is larger than the entire state of California. In addition to women who would have been cut off geographically from abortion clinics, even those who lived in cities would have to wait three to four weeks to just get an initial appointment at a clinic. Given these difficulties, women who could afford to travel to other states did. Many of those who did not have the financial means to cross state lines to obtain an abortion were forced to carry unwanted pregnancies to term or attempt to self-induce an abortion.

Next, Ms. Toti discussed the meaning of the undue burden standard, the standard by which abortion regulations are judged under the Constitution. This standard originates from a Justice Kennedy opinion in Planned Parenthood v. Casey (1992) which upheld the part of the ruling of Roe v. Wade that found a woman has a constitutional right to seek an abortion but altered the standard for restrictions on that right. The court in Casey decided that the state may not place a substantial obstacle in the way of a woman’s ability to get an abortion but did not define that term. Thus, over the ensuing 25 years, lower federal courts started to diverge in their interpretation of the standard, depending on the state’s overall political ideology. More conservative courts deemed that the sole inquiry to be made was whether the regulation made it virtually impossible to get an abortion. More progressive-leaning courts like the 7th Circuit found a requirement to question whether the law actually serves the state’s purpose of protecting the woman’s health or advancing an interest in human life.

The Supreme Court granted certiorari to clarify the undue burden standard. The opinion by Justice Breyer made clear that the burden is undue if it is not justified by a proportional benefit. Importantly, the 5-3 majority found that courts have an independent obligation to evaluate laws where constitutional rights are at stake. Here, the Court explained, none of the laws’ benefits brought forth by the state of Texas justified the burdens it imposed on women’s right to access. The opinion states that the evidence of benefit had to be actual, not speculative. Ms. Toti thinks this was an immensely important part of the decision which showed that there is no room for junk science in abortion laws. The same rules of evidence that apply in all other court cases should apply in abortion cases, and lower courts were reminded that they can rely only on reliable and credible evidence.

Finally, Ms. Toti shared some of her thoughts about arguing in front of the Supreme Court with us. She said that she was incredibly nervous the day of oral argument but had prepared with more than half a dozen moot courts. She was amazed by the vibrant showing of support outside the Courthouse. More than 3,000 people assembled that day to support abortion rights. Stephanie Toti wholeheartedly believes that what happened outside the courthouse that day is every bit as important to the impact of the reproductive justice movement as what happened inside the courthouse.

Stephanie Toti left us with these thoughts: The Whole Woman’s Health decision is game-changer in the struggle for reproductive justice. It will help fight restrictive laws that subject women seeking abortion to needless obstacles and prevent them from accessing safe care. However, it is important to remember that because the undue burden test is fact- specific, existing restrictive abortion laws aren’t automatically invalidated but must be struck down, one by one, and state by state. There is still work to do, and Ms. Toti is eager to do it.

Hamilton, Race, and American

Daniel Magalotti, 1L

On October 6th, Professor Annette Gordon-Reed, the Charles Warren Professor of American Legal History at Harvard Law School and a noted scholar of Thomas Jefferson, spoke to students about her thoughts on the hit musical Hamilton and its larger context in American society.

Professor Gordon-Reed looked at the controversies surrounding the musical and its dichotomy. One on hand, it unites the likes of Barack Obama and Dick Cheney in their admiration, but on the other hand some historians consider the musical to be historically inaccurate and glosses over the more negative aspects of the Founding Fathers and the society in which they lived.

For example, while Hamilton was a member of the New York Manumission Society, he was not a committed abolitionist as the musical suggests. Although he did arrive in North America later than the predecessors of other founding fathers, the narrative of him as an immigrant in the style of Ellis Island is not true.

Professor Gordon-Reed said it may be the fact that African-American and Hispanic actors play Hamilton, Jefferson, Washington, and others that make some aspects of their characters more palatable to the audience, in comparison to white actors taking those roles. She noted in particular that the actual Hamilton of early America is less attractive to modern readers than the musical’s character.

Another factor that draws people from all walks of life to Hamilton is that the conflict between Hamilton in Jefferson in the musical, the conflict between industrialism and agrarianism, is a battle that has raged since the 1790s. Even today, we as a nation still grapple the questions that Hamilton and Jefferson fought over in Washington’s administration. While show creator Lin-Manuel Miranda has said that Hamilton “is a story about America then, told by America now,” perhaps, in the estimation of Professor Gordon-Reed, it is also a story about American now.

Professor Gordon-Reed accepts the musical as a piece of art and hopes it will inspire others to study history. While there is some fear that some will simply accept the characters presented on stage as true history, she expects that others, especially younger audience members, will be inspired by the musical to critically look at our national narrative and chart a new path for historical scholarship.

The event was also covered by the Harvard Gazette: http://news.harvard.edu/gazette/story/2016/10/correcting-hamilton/

Upcoming ACS and HLPR Symposium: A Retrospective on the Obama Years

obama-legacy-series-poster-templateMark your calendars!

The Harvard Law School Chapter of the American Constitution Society and the Harvard Law & Policy Review are excited to announce that we will be hosting a symposium called “Forward: A Retrospective on the Obama Years.” The symposium will feature the architects, implementers, and advocates behind President Obama’s agenda, including several past and current members of the President’s administration. The symposium will include on-campus speaking engagements and online guest essays throughout November, with the majority of the symposium occurring over the week of November 13-19.

Our first speaking engagement will be tomorrow, November 2 at 12 PM in WCC 2004. This lunch lecture will feature Jonathan Greenblatt, former Special Assistant to the President and Director of the Office of Social Innovation and Civic Participation, who will speak about the President’s efforts to advance service, innovation, and civic engagement.

Please join us, and be sure to check our website, our Facebook page, and our Twitter page for scheduling updates!

#retrobama

What Happened? The Curious Case of Social Change in 20th Century America

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Danielle Haley, ACS 1L Rep

Robert Putnam, famous for his books Bowling Alone: The Collapse and Revival of American Community and the more recent Our Kids: The American Dream in Crisis, has long been studying the continuing individualization and isolation of the American populace. In both those books, he looks at how decreasing civic and community participation occurred after the 1960’s. On October 14, Professor Putnam spoke with the American Constitution Society not about either of those books – but of the next book.

This next book is prompted, he claims, by the nagging “why” that comes to follow these ideas. Why is it that we’ve seen declining civic life? Why is it that we have a stricter meaning of “our kids” than we once did? Why are we so isolated?

Professor Putnam has looked at a composite of social science data to discover a new “We-I” relationship. The name comes from an interesting event revealed when a google frequency counter is used on the words “we” and “I”. After 1968, the frequency of the use of “I” in American writing nearly doubles, and continues to grow. The use of “we’ declines the entire time.

Professor Putnam describes a “We-I” curve which tracts various social factors. Higher incidents of “we” correlate with more civic involvement, more marriages, younger marriages, and higher charitable giving rates. After the apex of the “We” community, the “I” societies tend to focus far less on these communal traits. The We-I curve follows that of the rise and decline of civic involvement, and follows issues discussed in his earlier works.

America is currently at a point of very high “I”-ness. It is the lowest it has been since the early 1920’s. While that is a cause for frustration, Professor Putnam thinks there may be something to be learned there. After 1920, there is a sudden upward leap in civic involvement, community focus, and “we”-ness. If we can discover what lead to that surge, it may be possible to shift back to a we-based society today.

This possible book would focus on this “We-I” curve, and looks at its explanatory power as well as possible explanations for the curve itself. An interesting addition to his previous works, students enthusiastically asked questions about the potential of these new ideas and what they mean for the American attitude.