ACS Blog

A Victory for the Nation and Immigrants?

jleaming@acslaw.org — Fri, 30 Jul 2010 18:13:40 -0400

By Pratheepan Gulasekaram, Assistant Professor, Santa Clara University School of Law. Professor Gulasekaram teaches Constitutional Law, Immigration, and Citizenship.

As most are aware by now, a federal district court preliminarily enjoined key parts of Arizona's controversial anti-illegal immigrant law, SB 1070, ruling for the federal government in its suit against the State of Arizona. The law's opponents heralded the decision as a carefully crafted one that deals a blow to anti-immigrant forces. Here, I will briefly explain that while I believe the decision stands on firm constitutional ground, and immigrants and immigrant-advocates are justified in celebrating this preliminary outcome, it is not a complete victory.

As an initial matter, I think Judge Bolton's opinion is constitutionally sound. It does not rest on new-fangled legal theories or the acceptance of previously unrecognized suspect classes under the constitution. Instead, the decision analyzes the Arizona law under well-worn principles of federalism. It relies on decades-old Supreme Court precedent like Hines v. Davidowitz and DeCanas v. Bica, both cases addressing state lawmaking directed at non-citizens, with the former striking down an alien registration requirement similar in spirit to parts of the Arizona law. Applying this federalism framework to SB 1070, the court correctly predicted that Arizona's law is highly likely to impermissibly affect citizens and legal residents of the United States even if they are not its target, require the redirection of some federal resources, and create penalties and liabilities for undocumented persons that are not contemplated by federal law.

In addition, from the perspective of someone who teaches this area of law, I fully endorse the court's conclusion that the section of SB 1070 allowing police officers to conduct a warrant-less arrest of a person, when the officer has probable cause to believe that person has committed an offense that makes that him or her removable, is well-beyond the bailiwick of local law enforcement. Such a provision might make sense if determinations of legal status and deportability were a simple matter. However, as Judge Bolton accurately noted, determinations of removability require the careful analysis of several complex and interrelated portions of the immigration code, and are dedicated by federal law to the expertise of immigration judges and federal appellate courts. If such determinations were as lucid as the Arizona law would suggest, immigration professors could save several classes each semester attempting to decipher imprecise terms such as "crimes of moral turpitude" and "aggravated felonies," along with the various exceptions and waiver possibilities that accompany those designations.

House Passes Bill to Reduce Crack/Cocaine Sentencing Disparity

nflatow — Fri, 30 Jul 2010 18:09:52 -0400

The House of Representatives this week joined the Senate in passing legislation that would significantly narrow the gap between statutorily mandated sentences for crack cocaine and powder cocaine, "a step toward ending what legal experts say have been unfairly harsh punishments imposed mainly on blacks," The New York Times reports.

The Fair Sentencing Act of 2010 now awaits signature from President Barack Obama, who said during the 2008 presidential campaign that the sentencing disparity "disproportionately filled our prisons with young black and Latino drug users."

Under current law, the amount of powder cocaine triggering a mandatory minimum sentence is 100 times as much as the amount of crack cocaine triggering sentencing. The bill was passed in 1986 after a spate of drug-related killings.

The new law would decrease the ratio to 18-1 and eliminate the five-year mandatory minimum sentence for simple possession of crack cocaine.

"Never before have advocates for crack cocaine sentencing reform been so close to the finish line," writes Laura W. Murphy, director of ACLU's Washington Legislative Office, recalling when she convened the first conference on the crack/powder disparity 17 years ago.

"The ACLU has remained steadfast to eliminating the disparity completely," Murphy writes in The Huffington Post. "However, now that the Senate has acted to pass a reform bill that falls short of our ideal, we must confront the reality that it will nonetheless make important improvements in the lives of many people who would have otherwise been locked away for years, or decades, on end."

A statement from the Lawyers' Committee for Civil Rights Under Law also acknowledged that the bill is "not optimal" but applauded the bill's passage as a development that "should not go unnoted."

"The fight is not over," said Lawyers' Committee Public Policy Director Tanya Clay House.

For more on reforming disparities in criminal justice sentencing see video of an ACSblog interview with the Open Society Institute's Senior Policy Analyst Nkechi Taifa. Her interview followed and ACS event on reforming the criminal justice system, including its disparaties in sentencing. Video of the entire panel discussion, "Reorienting Federal Criminal Justice Policy -- An Opportunity for a More Integrative Approach?," is available here.

Issue Brief Author Suggests ‘Helpful Errors’ Are Key to Criminal Justice Reform

nflatow — Fri, 30 Jul 2010 16:10:49 -0400

The U.S. criminal justice system should take a lesson in improvement from the medical community's model of embracing day-to-day errors as "important opportunities to illuminate hidden flaws," recommends the author of a recent ACS Issue Brief.

"The pattern in criminal justice has been to wait for the catastrophic miscarriage of justice. Everyone then looks for an individual or an agency to blame," writes James M. Doyle, a lawyer with Carney & Bassil and former head of the Public Defender Division of the Massachusetts Committee for Public Counsel Services, a statewide public defender agency. "The organizational accident approach is not only a more accurate way to describe what happened in a wrongful conviction; it opens a more productive avenue to remedial action."

In "From Error Toward Quality: A Federal Role in Support of Criminal Process," Doyle proposes the federal government create a national template for routinely reviewing "helpful errors" and dispense funding to localities for analysis of such errors by "everyone-to-the-table" teams of police, prosecutors, defenders, judges and any other relevant players, such as victim's advocates or probation personnel.

Doyle suggests that a federal "learning-from-error initiative" will help identify problems that undermine compliance with the Sixth Amendment, and move the criminal system away from the counterproductive practice of blaming one person or agency for high-visibility errors.

Doyle's Issue Brief is the second in an ACS series on roles the federal government can play in addressing the persistent crisis in indigent defense. Attorney General Eric Holder, Congress, and many other federal policymakers have identified reform of the indigent defense system as a priority.

In the first Issue Brief, "A Legislative Approach to Indigent Defense Reform," law professor Cara H. Drinan writes that the nation's system for upholding the right to counsel for indigent defendants is woefully lacking and needs a strong response by the federal government.

Doyle's Issue Brief is available here. For further discussion of the Sixth Amendment right to counsel, view the video of ACS 2010 National convention panel discussion, "The Federal Role in Improving Indigent Criminal Defense." Southern Center for Human Rights President and Senior Counsel Stephen B. Bright talked with ACSblog about reforming indigent defense services following his participation in the "Federal Role" panel. His interview is available here.

Senators Take to Floor to Demand Vote on Nominees

nflatow — Fri, 30 Jul 2010 15:03:00 -0400

Nine senators implored their colleagues Thursday to consent to votes on nominees for the nearly 100 federal court vacancies, echoing the comments of President Barack Obama earlier this week that the Senate should move swiftly to confirm nominees.

"This is delay for delay's sake," Sen. Ted Kaufman (D-Del.) said on the Senate floor. "Of the 27 district court nominees confirmed during this Congress, only one has received a nay vote so far, but even she was confirmed by a vote of 96-1. Not a single Republican objected to 26 out of 27 of these nominees, yet some Republican forced them to wait for weeks or months for an up-or-down vote."

Sen. Mark Udall (D-Colo.) (pictured) attempted several times to use unanimous consent requests, a parliamentary procedure that could have allowed debate and votes on 20 nominees, but Sen. Jeff Sessions (R-Ala.) objected to each of the requests, "effectively blocking any such votes," The Providence Journal reports.

"[T]hings do not always go as smoothly as you would like," Session said.

Separately, Sens. Udall and Michael Bennet (D-Colo.) wrote a joint letter asking the Senate to confirm Denver law firm partner William Martinez to U.S. District Court seat that has been vacant for almost two years, The Denver Business Journal reports.

"[A]s pressing as this situation is in Colorado, I know it isn't unique. Of the nearly 100 current judicial vacancies, 42 are considered judicial emergencies, almost half," Udall said on the Senate floor.

"These senators have good reason to be outraged," writes Constitutional Accountability Center President Doug Kendall in The Huffington Post.

Prosecutor Calls Missouri Public Defender’s Workload Crisis a ‘Contrivance’

jleaming@acslaw.org — Fri, 30 Jul 2010 12:57:11 -0400

By David Carroll, Director of Research, National Legal Aid & Defender Association (NLADA)

Recently the St. Louis Today reported that public defenders in that city are considering refusing new cases, as their colleagues at the Missouri State Public Defenders (MSPD) have already done in Springfield and Troy. The news story also reports that the prosecuting attorney calls the whole public defender caseload issue "contrived" because prosecutors handle a far greater percentage of cases than do public defenders.

Far from being a "contrivance," the Missouri public defender system has been one of the most overworked and underfunded right to counsel systems in the country for its entire history. "It is not possible [for public defenders] to control the number of criminal cases which are filed, the seriousness or complexity of the cases, or the number of persons who may appear as indigent defendants. The Constitutional right to counsel in conjunction with a lack of control over the amount of services to be delivered creates a situation in which the management options are sharply limited. Administering the public defender and appointed counsel programs within the constraints of the statutes becomes increasingly difficult as costs and caseloads climb." With such clarity, the Missouri Public Defender Commission accurately predicted the caseload problems that they would face over the next three decades in a report sent to the state legislature in 1979.

A Way to Go Despite Progress Under Americans with Disabilities Act

jleaming@acslaw.org — Fri, 30 Jul 2010 11:07:15 -0400

By Roger Bearden, Director of the Disability Law Center at New York Lawyers for the Public Interest (NYLPI). For more information about NYLPI, visit its Web site.

We have much to celebrate on the 20th anniversary of the Americans with Disabilities Act, but for many individuals with disabilities who continue to be confined in institutions, their day of celebration has yet to come.

The ADA set out a comprehensive mandate to eliminate discrimination against individuals with disabilities. While some forms of discrimination are apparent, others have proven more insidious, such as the decades-old practice of confining individuals with disabilities to institutions.

In Olmstead v. L.C., 527 U.S. 581 (1999), the Supreme Court considered the case of two women in Georgia who each had been confined in a state psychiatric hospital for several years despite the determination by their treating professionals that they could live and receive care in the community. The Court held that unjustified isolation of individuals with disabilities violated the ADA and an individual with mental illness may sue a state for failing to serve him or her in the most integrated setting appropriate to his or her needs.

JudicialNominations.org: New ACS Web-Based Project to Cover Nomination Process, Vacancies on the Federal Bench

jleaming@acslaw.org — Thu, 29 Jul 2010 18:07:54 -0400

The Senate is moving far too slowly on confirming judicial nominations, causing more vacancies on the federal bench and delaying justice for Americans, President Obama said earlier this week at the White House.

ACS is launching JudicialNominations.org, a resource that will offer all those concerned about the ability of federal courts to operate efficiently to stay on top of the judicial nominations process. JudicialNominations.org brings together for the first time an array of information, including an interactive map that allows the user to select an individual district or circuit court and identify the number of vacancies in that area, how long those vacancies have existed, whether anyone has been nominated to the seats, and how long nominees have waited for confirmation. The Web site will also provide links to congressional statements, videos, upcoming hearings and other events, and the latest nomination news.

During his Rose Garden address, Obama said he had urged leaders of both parties in Congress, to "work with us to fill the vacancies that continue to plague our judiciary. Right now, we've got nominees who've been waiting up to eight months to be confirmed as judges. Most of these folks were voted out of committee unanimously, or nearly unanimously, by both Democrats and Republicans. Both Democrats and Republicans agreed that they were qualified to serve. Nevertheless, some in the minority have used parliamentary procedures time and again to deny them a vote in the full Senate."

The president continued, "If we want our judicial system to work - if we want to deliver justice in our courts - then we need judges on our benches. And I hope that in the coming months, we'll be able to work together to ensure a timelier process in the Senate."

Visit JudicialNominations.org today and check back frequently to follow developments on judicial nominations and vacancies on the federal bench.

Senate Obstruction Takes Down Bill To Promote Campaign Transparency

jleaming@acslaw.org — Thu, 29 Jul 2010 14:52:06 -0400

By Jeffrey D. Clements. Mr. Clements is former Chief of the Public Protection and Advocacy Bureau in the Massachusetts Attorney General's Office, and now focuses on litigation and appeals with Clements Law Office, LLC. Mr. Clements filed an amicus brief in the Citizens United v. FEC case on behalf of several democracy advocacy organizations, and serves as general counsel of Free Speech for People. Mr. Clements is also author of the ACS Issue Brief, "Beyond Citizens United v. FEC: Re-Examining Corporate Rights."

A few days ago, Senate Republicans united to defeat the Disclose Act, critical legislation intended to respond to the Supreme Court's invalidation in Citizens United v. FEC of the ban on the use of corporate general treasury funds to make independent political expenditures. The House passed the Act in June. But despite the wishes of large majorities of the American people and of 58 of 100 Senators, the legislation could not get past a Republican filibuster.

Following the modern and somewhat insulting acronym trend, the formal name of the legislation is the "Democracy Is Strengthened By Casting Light on Spending in Elections Act". The Senate version of the Disclose Act would amend the Federal Election Campaign Act of 1971 to restrict political contributions, independent expenditures and electioneering communications by government contractors, recipients of TARP bail-out money, holders of federal off-shore drilling leases, and foreign national corporations. The Act would apply to "corporations and other organizations" and requires reporting and disclosure of the identity of donors to an independent expenditure campaign, disclosure of political spending to shareholders and members, and certification and "stand-by-your-ad" statements by responsible officers of the corporation ("I am XXX and I approve this message.")

In January, President Obama rightly called the Citizens United decision a "strike at democracy itself." Most Americans agree. According to a recent comprehensive poll about Citizens United, 82% of respondents worried that Congress "will not go far enough to keep corporations from having too much influence," and 77% believe that Congress should promote a Constitutional amendment to address the problem.

Yet, in a measure of how damaged our democracy has become due to special corporate interest money, a minority of Senators representing a fraction of the American people killed even the modest response of requiring reporting and disclosure of corporate political spending, and restricting such spending by certain foreign corporations and government contractors.

In doing so, the surreal and undemocratic world of Washington circa 2010 was on full display:

First, preference for action by a wide majority of the American people and even a wide majority of the US Senate doesn't matter. The bizarre filibuster rule, appearing nowhere in the Constitution, again allowed legislation to "fail" despite the support of 58 Senators representing 3/4 of the States and of the American people. Once again, regardless of the wishes of the other 306 million Americans, those fighting for necessary reform were reduced to begging unsuccessfully for the support of Senators Collins and Snowe, representing the 1.3 million good people of Maine.

A Reality-Based Thriller Takes On Promoters of Torture

jleaming@acslaw.org — Thu, 29 Jul 2010 12:25:51 -0400

By Barry Eisler is an award-winning author of bestselling thrillers. Eisler spent three years in a covert position with the CIA's Directorate of Operations and has worked as a technology lawyer. Eisler also blogs on torture, civil liberties and the rule of law.

As a thriller writer, blogger, and former CIA officer who continues to adhere to his oath to protect and defend the Constitution, I've never been so satisfied with one of my novels as I am with Inside Out.

I'm a big believer in the power of fiction to promote ideology, and in fact addressed this subject recently in an essay for NPR on George Orwell's Nineteen-Eighty-Four. I'm appalled at how effectively the right has been using fiction to promote torture, and conceived of Inside Out in part as a way to fire back: a means of depicting not a cartoon fantasy, but rather the true causes and consequences of torture, consequences that include worsening erosion of our values, increased damage to national security, and the continued degradation of the Constitution itself.

Of course, Inside Out is filled with great characters, edge-of-your-seat action, and steamy sex - it's a thriller, after all. But what sets it apart from most works of the genre is the timeliness and relevance of the story. The ninety-two interrogation videos the CIA confessed last year to destroying, and which form the foundation for the book's plot, are back in the news now, as independent prosecutor John Durham concludes his two-year obstruction of justice investigation. And the other subjects at the heart of Inside Out - torture, ghost detainees, renditions, the real nature of America's Establishment - continue to be the most profound and controversial political issues of the day.

Federal Judge Blocks Parts of Ariz. Immigration Law

jleaming@acslaw.org — Wed, 28 Jul 2010 13:53:05 -0400

U.S. District Judge Susan Bolton has issued a preliminary injunction blocking key portions of the Arizona immigration law scheduled to take effect tomorrow.

The Associated Press reports that the law will take effect, "but without many of the provisions that angered opponents -- including sections that required officers to check a person's immigration status while enforcing other laws. The judge also put on hold a part of the law that required immigrants to carry their papers at all times, and made it illegal for undocumented workers to solicit employment in public places."

Before the judge's ruling, The Arizona Republic reported that uniformity among police authorities on enforcement was lacking.

Supporters of the law, SB 1070, the newspaper reports had hoped it would help uniformity among the various counties on enforcement. "But a survey of Arizona police agencies indicates there is anything but a uniform approach," The Republic reports. The law requires police officers, during the enforcement of other laws, to question a person's immigration status if the officers have a reasonable suspicion that the person is in the country illegally. The law also makes it a crime for immigrants not to carry immigration documents. But Judge Bolton's ruling, which came after hearings on three of the seven federal lawsuits challenging the law, puts a halt, for now, on those portions of the law, The Republic reported. In her ruling, Judge Bolton said the Department of Justice "was likely, but not certain, to prevail on those points [that it is better to place a preliminary injunction on a law likely to be judged later as pre-empted by federal law, among others] at a later trial in federal court, The New York Times reported. It also noted that the judge had made "no ruling on the six other suits that also challenged the law."

Beyond the legal challenges, the law has attracted widespread criticism. The Times recently editorialized, that the law is constitutionally suspect because "Only the federal government can set or enforce immigration policy."

Beyond watching a video of training standards, The Republic noted that police departments across the states are taking varying approaches. The Washington Post reported that "the hardest-line approach is expected in the Phoenix area, where Maricopa County Sheriff Joe Arpaio plans his 17th crime and immigration sweep."

The Republic, after citing some of the varying enforcement tactics, concluded that the approaches "are a reflection of the confusion that persists among agencies tasked with enforcing the law ...."

Mark Spencer, president of the Phoenix Law Enforcement Association, blasted the law, noting that it would add to the burden of the U.S. Immigration and Customs Enforcement (ICE).

"In light of the state statute, you have policy that appears to be designed to be costly, invasive or intrusive to citizens and burdensome to ICE," he said. "You take those three ingredients, and you have a policy that appears designed to undermine the rule of law."

The newspapers also noted that opponents of the law are planning protests within the state. Liz Hourican of CodePink told The Post that the group plans to "block the driveway for immigration officers in downtown Phoenix."

Recently Labor Secretary Hilda L. Solis and AFL-CIO President Richard Trumka discussed the immigration system and how it affects the economy and needs to be reformed. Secretary Solis and Trumka agreed that a path for immigrants to become documented needs to be found. Video of that discussion is available here.

For additional analysis of the Arizona law, see video here of a panel discussion on the topic from the 2010 ACS National Convention. Following that panel discussion, MALDEF leader Thomas A. Saenz talked with ACSblog about immigration reform. His interview is available here.

Obama Urges Swift Confirmation of Judicial Nominees

nflatow — Tue, 27 Jul 2010 16:57:55 -0400

President Barack Obama today urged Senate Minority Leader Mitch McConnell (R-KY) and others in the Senate to fill the vacancies "that continue to plague our judiciary."

"Right now, we've got nominees who've been waiting up to eight months to be confirmed as judges," Obama said in the Rose Garden.

Most of these nominees have been voted out of committee by large majorities and "[b]oth Democrats and Republicans agreed they were qualified to serve," Obama said.

"Nevertheless," Obama continued, "some in the minority have used parliamentary procedures time and again to deny them a vote in the full Senate."

Reform of the parliamentary procedure that "infiltrates policy discussion at every step," the filibuster rule, may be imminent, The Huffington Post reports. Democratic candidates and sitting senators say a measure reforming rules allowing silent filibusters that force a supermajority vote may be the first item on which senators vote in 2011.

"What was recently considered impossible is now looking inevitable," The Huffington Post reports.

A National Public Radio report adds, "confirmations are one area where Senate rules give Republicans enough power to have a substantial impact. Unless Republicans grant unanimous consent, senators must spend days debating a judicial nominee before a vote. That's true even without a filibuster."

Obama's remarks followed a meeting with congressional leaders from both parties during which they discussed legislation on climate change and job creation, in addition to confirmation of judicial nominees.

The inclusion of judicial nominations in his address signals a possible shift in approach for Obama, The Blog of the Legal Times suggests, noting that Obama has rarely raised the issue in public, "focusing instead on legislative priorities such as health care and financial regulation."

Since Obama took office, he has nominated 86 people for federal judgeships, of which 37 have been confirmed, according to the Associated Press. There are now about 100 vacancies on the federal bench.

"At this point in his presidency, President George W. Bush had 62 percent of his district court nominees confirmed, while Obama has had 45 percent confirmed." the Associated Press reports.

View Obama's remarks here. (Scroll down to the bottom for his comments on judicial nominations.)

Accessibility on the Internet, and Other Challenges for the ADA at 20

nflatow — Tue, 27 Jul 2010 13:16:27 -0400

Twenty years after enactment of the Americans with Disabilities Act, the law faces a new challenge: adapting to changing technology and the Internet, says Kareem Dale, President Barack Obama's top disability advisor in an interview with The Washington Post.

In celebrating the law's 20th anniversary, Dale points out the "sea change" of progress that has been made, with developments as simple as curb cuts on street corners for wheelchairs and Braille in hotel rooms, "but we're not done," he qualifies, citing the lack of clarity as to whether websites have to comply with the ADA.

"Many courts have said no and maybe a couple have said yes, but it's been an open question," Dale said.

Attorney General Eric Holder announced last week that the Department of Justice will soon seek comment on four proposed rules that would create accessibility requirements for websites, movies, equipment and 911 call-taking technology, Main Justice reports.

Thomas Perez, assistant attorney general for civil rights, has said in the past that ADA applies to websites, according to Main Justice.

"Companies that do not consider accessibility in their website or product development will come to regret that decision, because we intend to use every tool at our disposal to ensure that people with disabilities have equal access to technology and the worlds that technology opens up," Perez said in April.

During the event commemorating the 15th anniversary of the American Association of People with Disabilities, Holder announced the creation of a new position, special assistant for disabilities, under the deputy associate attorney general for diversity management.

President Obama also issued a public service announcement in honor of the ADA's anniversary.

View ACSblog commentary on the ADA at 20:

Sen. Tom Harkin, one of the original sponsors of the ADA, looks back at the progress made from "pre-ADA America," when people with disabilities "had to crawl on their hands and knees to go up the stairs," but calls it shameful that young people with disabilities are housed in institutional settings like nursing homes.
Emily Benfer, director of the new Health Justice Project at Loyola University Chicago School of Law, authored an issue brief on the necessity of the ADA Amendments Act of 2008. In a new guest post, Benfer highlights the importance of education and coalition-building in furthering the ADA's goals.

Here is some other notable commentary:

"Is the ADA DOA?" asks workplace and labor columnist Eve Tahminciolglu. She points to "pretty sad numbers" from a recent study, showing that 61% of people say the act has made no difference in their life, while 23% report the act has made their life better. She urges stronger enforcement of the act in a blog on The Huffington Post.
Bloomberg News Executive Editor for Washington Albert R. Hunt also writes that employment problems persist 20 years after the ADA's passage - the jobless rate for disabled people is double that of "able-bodied workers" - but said "progress, in politics, business and social mindsets is impressive," citing as one recent victory the health care bill's ban on health insurance companies' denial of coverage because of pre-existing medical conditions.
Fifty percent of people with disabilities are not working, the same as 20 years ago, according to Andy Imparato, president of the American Association for People with Disabilities. In a PBS Newshour interview, Imparato says the official unemployment figure of 14 percent is misleading because it counts only those who are actively looking for work, and many have given up. View a video segment here.
The Guardian's Michael Tomasky asks, "Would the ADA pass today?" While "it is agreed nearly across the spectrum - nearly - that this was a good thing," Tomasky points to Senate candidate Rand Paul's (R-KY) comment that requiring businesses to provide access isn't "fair to the business owner." "Paul is more extreme than your average Republican, but it does make one wonder whether today's Republican Party would have supported the ADA," Tomasky writes.

Digging Up Jim Thorpe's Past

nflatow — Tue, 27 Jul 2010 11:17:24 -0400

Some 57 years after legendary Native American athlete Jim Thorpe died, his son is contesting the site of his father's burial.

Jack Thorpe, 72, waited until his father's widow, Patricia, and his three half-sisters died before filing suit against a Pennsylvania town bearing his father's name for return of his body, The New York Times reports.

Patricia, Jim Thorpe's third wife, had made a deal with two neighboring Pennsylvania towns that they merge into one, name the town Jim Thorpe and maintain a memorial to Jim, according to The New York Times.

Jack Thorpe is now suing Jim Thorpe, Pa. under a federal law intended to give Native American artifacts back to their tribal homelands, according to the Associated Press.

"The bones of my father do not make or break your town," Jack Thorpe told the Associated Press."I resent using my father as a tourist attraction."

Thorpe told The Times that he's not trying to change the name of the town, but only to have his father's remains returned. No trial date has been set in federal district court in Scranton, Pa., and representatives for the town said they are unsure how they will proceed.

The ADA and the Path to Equal Opportunity

nflatow — Mon, 26 Jul 2010 17:52:28 -0400

By Emily Benfer, director of the newly created Health Justice Project and a clinical professor at Loyola University Chicago School of Law. Benfer authored an issue brief on amendments to the ADA available here.

In honor of the 20th anniversary of the enactment of the Americans with Disabilities Act (ADA), the Senate unanimously passed S. Res. 591. The resolution describes the prejudice and discrimination faced by people with disabilities and the importance of the ADA to the provision of "equality of opportunity, independence, economic self-sufficiency, and full participation for Americans with disabilities." Sen. Tom Harkin, an original sponsor of the ADA who introduced the resolution, stated, "The ADA has broken down barriers, created opportunities and transformed lives."

It certainly has moved us away from the appalling pre-ADA past, one in which people with disabilities were forcibly isolated, institutionalized, excluded and socially outcast. As Senator Harkin recalled, people with disabilities were forced to crawl on their hands and knees to climb a flight of stairs. They lacked access to employment, education, public facilities, voting, and a host of other activities. They were subjected to intolerance and stereotypes on a daily basis. In sum, people with disabilities were denied the opportunity to fully participate in society - a form of exclusion that the society recognizes as discrimination.

We have made great strides in twenty years, opening doors to employment, civic involvement and public places. In fact, we have all benefited from the accommodations made possible by the ADA. Everyone - from people in wheelchairs to people pushing strollers or riding bikes - enjoys the assistance of curb cutouts at street corners. Thanks to accessible voting machines, our democracy is better informed and more just. Our workplaces and schools are more productive and ingenuous because of the diversity of experiences and ideas commingling in inclusive environments.

But our work is not finished. We must oppose any stalemate in progress and be vigilant, guarding against all attempts to narrow the scope of opportunity and protection. Such attempts are commonplace, as demonstrated by the need for the ADA Amendments Act of 2008. The ADA Amendments Act was necessary to restore the original broad scope of the ADA and overturn the Supreme Court's narrowing of it.

Analysis Calls Roberts Court Most Conservative in ‘Living Memory’

nflatow — Mon, 26 Jul 2010 17:13:40 -0400

A front-page analysis of the Supreme Court's ideological direction in Sunday's New York Times calls the court under Chief Justice John G. Roberts Jr. "the most conservative one in living memory."

Citing the replacement of Justice Sandra Day O'Connor with Justice Samuel Alito as one of the primary causes for the change, the article predicts:

If the Roberts court continues on the course suggested by its first five years, it is likely to allow a greater role for religion in public life, to permit more participation by unions and corporations in elections and to elaborate further on the scope of the Second Amendment's right to bear arms. Abortion rights are likely to be curtailed, as are affirmative action and protections for people accused of crimes.

Decisions favoring criminal defendants, unions, people claiming discrimination or violation of their civil rights are considered liberal, the article explains. Decisions striking down economic regulations and favoring prosecutors, employers and the government are said to be conservative.

According to data collected by political scientists, "four of the six most conservative justices of the 44 who have sat on the court since 1937 are serving now: Chief Justice Roberts and Justices Alito, Antonin Scalia and, most conservative of all, Clarence Thomas."

Retired Justice John Paul Stevens also noted in an interview in April that "every one of the 11 justices who had joined the court since 1975, including himself, was more conservative than his or her predecessor, with the possible exceptions of Justices Sotomayor and Ruth Bader Ginsburg."

During the 2010 ACS National Convention, Sen. Al Franken discussed the impact that the conservative wing of the court has had on the case law.

"I don't think you need to be a lawyer to recognize that the Roberts Court has, consistently and intentionally, protected and promoted the interests of the powerful over those of individual Americans," Franken said. "And you certainly don't need to be a lawyer to understand what that means for the working people who are losing their rights, one 5-4 decision at a time."

For more analysis of the high court's recent term, see video of the ACS Supreme Court term review.