On the quest for positive change

March 11th, 2012 § 0 comments § permalink

This website will be undergoing changes soon. I’ve had it up and running for about 14 months now, but am still experimenting with how to balance this site with my law practice.

After doing some thinking, it seems the most appropriate thing to do is to keep this site more active as a series of personal reflections about my journey as a lawyer committed to positive social change.

These are interesting times: a period of unprecedented material abundance, yet deep unhappiness. Technology has united the world, but capital and politics appear more eager than ever to keep the human race apart.

And smart, highly educated young adults find themselves without work, without purpose, and looking at a world that in many respects shouldn’t be so ugly.

I started Comar Law as a way of fighting back and championing what I see as a declining state of civilization. But I also started Comar Law as a way of providing meaning to my life.

As I get older, I realize that the quest for positive social change is also the quest for positive personal change. I want to live in a world where people take better care of each other and use their talents to inspire the best in human kind.

If this is the world I want, I realized that this is the journey I must walk as well.

Gandhi said this more eloquently: “Be the change you wish to see in the world.”

I believe fervently that while there is much out of place in this world, there is so much that is right — so many accomplishments that people have made in the name of social progress, even just in the last 100 years. Things like slavery, sexism and racism were tolerated for tens of thousands of years and are now considered rightfully repugnant. People died from diseases that are now easily prevented with a childhood vaccine.

In the face of so much progress, it would be a great shame for educated people to hold their hands up in despair at the current state of things. The battles that I think lie ahead — greater social justice, greater economic opportunities, technology in the service of the planet and not in the service of greed, and a more unified species that holds itself with dignity, compassion and civilization — are really the final stages of much greater struggles that have been already won. This is the last leg of a long marathon.

Can those who feel in their hearts — who know in their hearts — that a better world is possible give up now? Of course not.

I look forward to detailing my own journey on this blog. Happy Sunday.

Is war against the law?

February 24th, 2012 § 0 comments § permalink

(Cross-posted with COMAR LAW)

Is war against the law?

On its face, the question seems almost preposterous.

The United States has been in at least two wars in the last 11 years, and several other military actions.

But the answer under international law is surprising.

A good argument could be made that war — or at least aggressive, unjustified war — is actually illegal.

Of particular relevance is an obscure treaty from the 1920s known as the Kellogg-Briand Pact.

The Kellogg-Briand Pact, also known as the “General Treaty for the Renunciation of War,” was an international treaty signed and ratified by almost every major nation, including the United States.

The terms of the treaty are plain. Article I of the treaty obligates every contracting party to renounce war as an instrument of national policy:

ARTICLE I

The High Contracting Parties solemly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another.

Article II of the treaty obligates all parties to settle their disputes by “pacific means”:

ARTICLE II

The High Contracting Parties agree that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means.

As of January 1, 2011, the United States still lists the Kellogg-Briand pact as a “treaty in force.” Under the United States Constitution, international treaties are the “supreme law of the land.” (Art. 6 cl. 2.)

The Kellogg-Briand Pact has been modified slightly by the United Nations Charter, which permits countries to use force in self-defense and where otherwise authorized by the United Nations Security Council.

Nonetheless, under theories of international law, signatories of the Kellogg-Briand pact – including the United States – risk liability should they go to war for improper reasons.

Indeed, the Nazi war crimes tribunal at Nuremberg described aggressive war as ”the supreme international crime” under international law. Nazi leaders like Hermann Goering were sentenced to death for planning, initiating and waging wars of aggression and other crimes against peace.

Development as freedom

February 22nd, 2012 § 0 comments § permalink

(Originally posted on Triplepundit on February 17, 2012)

The rich are getting richer and the poor are getting poorer, interest rates are high, stifling investment in new businesses.

What are the alternatives to our dysfunctional economic system?

Is it possible to identify new economic and social models that can act as rallying points for concrete social and political change?

People, rightly so, are scared of utopian visions of heaven on Earth. So let’s put utopianism aside.

No promises here of a communist or capitalist paradise.

Just some concrete thoughts on what people, good people who seek good change, can think about in creating effective strategies of progress.

My favorite model is based on the phrase coined by the Nobel-prize winning economist Amartya Sen: development as freedom.

For Sen, development is not just the reduction of poverty — it is the affirmative expansion of freedom.

Not simply political freedoms (which are important), but also social freedoms that bring about freedom from want or physical suffering.

As Sen puts it, development means “removing poverty as well as tyranny, poor economic opportunities as well as systematic social deprivation, neglect of public facilities as well as intolerance or overactivity of repressive states.”

I like the concept of development as freedom for several reasons:

  • Development as freedom mirrors human rights law, specifically the two major human rights treaties enacted after World War II. The International Covenant on Civil and Political Rights (ICCPR) protects rights like freedom of the press, freedom of assembly, and the right to a fair trial. Meanwhile, a sibling treaty, the International Covenant on Economic, Social and Cultural Rights (ICESCR), requires countries to ensure their citizens can make a “decent living” (article 7) and have access to health care and education. Development as freedom asks people to respect both sets of rights. Freedom of speech means little if a person does not have the education to speak her mind; freedom to live without undue government interference means little if a person cannot stay healthy.
  • Development as freedom is adaptable. In these times of growing ecological stress, development as freedom means reducing carbon impacts and creating sustainable economic systems that can last more than just a few generations.
  • Development as freedom provides dignity to ancient cultures that today grapple with endemic poverty. The world will lose something if civilizations like India and China, thousands of years old, throw away the bulk of their collected social and cultural knowledge in order to carbon copy the development paths of the United States and Europe.
  • Development as freedom means there is work to do even in so-called rich countries. The consumer society in the United States has brought many luxuries, but it has destroyed communities, wrecked the environment, and isolated and atomized people to a degree never before seen in history. Development as freedom offers a way to look beyond physical luxury to those human needs that remain impoverished even in the midst of monetary wealth. No person lives on bread alone.

Ninth Circuit strikes down Prop 8

February 7th, 2012 § 0 comments § permalink

(Cross-posted with COMAR LAW.)

The United States Court of Appeal for the Ninth Circuit today affirmed the judgment of a federal trial court in striking down California’s same-sex marriage ban “Prop 8″. Perry v. Brown, No. 10-16696 (9th Cir. Feb. 7, 2012).

But the court refrained from deciding the broader question as to whether the Constitution requires that marriage be open to gay and lesbian couples.

Instead, the court decided the more narrow question whether Prop 8 violated equal protection of the law under the Fourteenth Amendment to the Constitution.

Under the Equal Protection Clause, a law that distinguishes people into different categories must have a rational basis to a legitimate government purpose.

In Romer v. Evans, 517 U.S. 620 (1996), the Supreme Court held that a law that serves only to discriminate against disfavored groups was not a legitimate use of state power. “A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.” Id. at 633.

Romer involved an amendment to the Colorado Constitution that prohibited the state from enacting laws to prohibit discrimination against gays and lesbians. The Supreme Court struck down the amendment.

The Ninth Circuit relied on Romer in striking down Prop 8. ”The People may not employ the initiative power to single out a disfavored group for unequal treatment and strip them, without a legitimate justification, of a right as important as the right to marry.”

Prior to Prop 8, the California Supreme Court had recognized that marriage was a fundamental right possessed by all Californias, straight or gay. Accordingly, when Prop 8 was passed, it put in place a new rule of constitutional law, the only effect of which was to deprive a targeted minority of rights they had possessed.

The Ninth Circuit looked at the four possible reasons offered for the legitimacy of Prop 8: (1) furthering an interest in childrearing and “responsible procreation”; (1) proceeding with caution in changing the institution of marriage; (3) protecting religious freedoms and (4) preventing children from being taught about same-sex marriage in schools. None of these goals were actually met by Prop 8, and could not act as a rational basis for the law.

In fact, the only effect of Prop 8 was to “withdraw from gays and lesbians the right to employ the designation of ‘marriage’ to describe their committed relationships and thus to deprive them of societal status that affords dignity to those relationships.” The effect of Prop 8 is “so far removed from these particular justifications that we find it impossible to credit them.”

The Court had the opportunity to discuss whether the Due Process Clause of the 14th Amendment to the Constitution provided a “fundamental right to marry” to which gay and lesbian couples were entitled.

It declined to do so, however, since its analysis only hinged on the purpose of Prop 8. “We therefore need not and do not consider whether same-sex couples have a fundamental right to marry, or whether states that fail to afford the right to marry to gays and lesbians must do so. Further we express no view on those questions.”

Appellate court says it will not intervene in military affairs

January 31st, 2012 § 0 comments § permalink

(This post is cross-posted with COMAR LAW)

Last week, the United States Court of Appeal for the Fourth Circuit (which hears appeals from Maryland, the Carolinas and Virginia) dismissed a civil case brought by Jose Padilla against Donald Rumsfeld and other Bush-era officials for alleged violations of law taking place after 9/11.  Lebron v. Rumsfeld, No. 11-6480 (4th Cir. Jan. 23, 2012).

Padilla, an American citizen, was labelled an “enemy combatant” by President George W. Bush and indefinitely detained for close to four years without trial until he was transferred into civilian custody in early 2006.

Padilla sued Rumsfeld and other officials for violating his constitutional rights, specifically:

  • Denying Padilla his right to counsel under the First, Fifth and Sixth Amendments;
  • Denying Padilla his right to access a court under Article III of the Constitution, the First and Fifth Amendments, and the Habeas Corpus Suspension Clause;
  • Subjecting Padilla to cruel conditions of confinement in violation of the Fifth and Eighth Amendments;
  • Subjecting Padilla to coercive interrogations (torture) in violation of the Fifth and Eighth Amendments;
  • Denying Padilla his freedom of religion under the First Amendment and the Religious Freedom Restoration Act;
  • Denying Padilla access to information protected by the First Amendment;
  • Denying Padilla his freedom of association under the First Amendment; and
  • Denying Padilla due process protected by the Fifth Amendment.

In a surprisingly broad decision, the Fourth Circuit dismissed Padilla’s claims because of concerns of interfering with “military affairs,” which the court stated were the purview of Congress and the President as Commander in Chief.  (Slip op., at 14-15.)

In the court’s view, Congress gave the President the ability to label American citizens “enemy combatants” in 2001, when it passed the Authorization of Use of Military Force after the 9/11 attacks.

Allowing Padilla to seek money damages for past constitutional wrongs would bring judicial review into “sensitive military decisions” made by the executive branch, which might burden future executives with the prospect of “civil litigation and potential personal liability.” (Slip. op, at 20.)

The court also expressed hesitation about interrupting the “established chains of military command” and “military intelligence” by permitting the suit to proceed. (Slip. op., at 22-23.)

The court surmised that people who wish to fight their enemy combatant status can do so through a habeas corpus proceeding. The fact that it took the Government almost four years to charge Padilla — an American citizen — with any type of crime did not affect the court’s calculus. (Slip op., at 17-18.)

The court also dismissed two related causes of action made by Padilla under the Religious Freedom Restoration Act and for declaratory relief.  ”Claims implicating national security and war powers flash caution signals all their own. Courts have long been reluctant to interpret statutes in ways that allow litigants to interfere with the mission of our nation’s military, preferring that Congress explicitly authorize suits that implicate the command decisions of those charged with our national defense.”

The effect of Lebron is that American citizens who may be innocently caught up in the paranoia of contemporary terrorism policy may be prevented from seeking monetary damages against the people who deprive them of their rights.

This “military affairs” exception to civil rights law is highly suspect, particularly in light of the fact that Padilla was seeking redress against the chief architects of his detention — people such as Donald Rumsfeld — and not the soldier at the bottom of the chain-of-command just following orders.

Shielding so-called “military decisions” from civil liability creates a perverse incentive for policymakers to claim a military logic to any decision that implicates constitutional rights in order to avoid future judicial inquiry.

If there’s any question that a policy is unconstitutional, just call it a “military decision” and the courts will stay out.

The Fourth Circuit has effectively said: “We will not review decisions made by Congress or the President that relate to military affairs.”

In an era when the line between military and civil domains continues to weaken and blur, the Fourth Circuit risks losing oversight of these political branches in chief areas of government activity.

By attempting to respect “checks-and-balances,” the Fourth Circuit may have done the exact opposite.

Police need a warrant to install a GPS tracker

January 24th, 2012 § 0 comments § permalink

(This post is cross-posted with COMAR LAW)

The United States Supreme Court has unanimously held that police officers need a warrant before they can monitor an individual with a GPS tracking device.  United States v. Jones, No. 10-1259, 565 U. S. ____ (2012).

The decision provides cautious optimism of renewed concern by the Supreme Court for 4th Amendment protections in the digital age.

In Jones, federal agents placed a GPS tracker under the Jeep of a DC nightclub operator who had suspected involvement in narcotics trafficking. The agents tracked the jeep for 28 days and generated over 2,000 pages of geo-location data.

Eventually the federal government indicted Jones. He moved to throw out the GPS data as the fruit of an unconstitutional search.

All nine justices agreed the use of a GPS tracker without a warrant was unconstitutional, but they disagreed why it was unconstitutional.

Writing for five of his colleagues, Justice Scalia argued the search was unconstitutional because “the Government physically occupied private property for the purpose of obtaining information.”  Such a “trespass” on property, combined with the search for information, would have been a search at the time the Fourth Amendment was adopted in the 18th century. Accordingly, the placing of a GPS tracker under a private vehicle for the purposes of gathering investigative data similarly required a warrant.

Justice Scalia acknowledged that his “property-based” analysis was an older approach to the Fourth Amendment, predating the modern test formulated in the 1967 case United States v. Katz.

Under Katz, a court ignores issues of property rights and instead examines an individual’s “reasonable expectations of privacy” in determining the appropriateness of Fourth Amendment guarantees. Justice Scalia argued that Katz augmented, but did not fully replace, the older property-rights based approach.

Four other justices agreed that the GPS tracking at issue was unconstitutional but disagreed with Justice Scalia’s reliance on a property-based approach to 4th Amendment protection. Writing for the concurrence, Justice Alito wrote that the Katz test remained the exclusive method of determining 4th Amendment protection.

Under Katz, Justice Alito concluded that “society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period.”  The 4 weeks of monitoring was long enough to require a warrant.

In a third concurrence, Justice Sotomayor wondered out loud whether current Fourth Amendment jurisprudence can make sense of future technological developments.

This is an excellent question.

Neither test employed by the Court is well prepared for intricate technological fact patterns that are sure to emerge in the coming years.

In an age when people will be able to integrate communications technologies seamlessly into their lives — or even into their bodies — it is clear that modern societies may rest on fundamentally different assumptions than those that existed in 1789.

At some point, law will need to change to reflect this new reality.  The real issues will be:  (1) who will make those changes — nine justices? Congress? the states? — and (2) whether privacy is buttressed or sacrificed as a result.

Comar Law Year One Newsletter

January 4th, 2012 § 0 comments § permalink

Comar Law is proud to present its 2011 retrospective, and goals for 2012. Click below for the PDF file.

Comar Law 2011 Restrospective

A Bill of Rights attack on California’s concealed knife law

October 12th, 2011 § 0 comments § permalink

(This post is cross-posted with Comar Law)

Comar Law is proud to post a brief recently filed on behalf of a defendant convicted under California’s concealed “dirk and dagger” law (Cal. Pen. Code sec 12020(a)(4)).

In an appellate filing filed on October 5, 2011, Comar Law argued to California’s Second Appellate District that the law violated the Second and Fourteenth Amendments to the United States Constitution.

The State of California has until early November to respond.

Comar Law will post any published decision issued by the Second Appellate District.

Is it time for a global sustainability treaty?

September 16th, 2011 § 0 comments § permalink

(This post was originally published on TriplePundit.com on September 12, 2011)

Law has the power to promote common values that help change societies for the better. At the international level, treaties are the legal mechanism by which a shared vision is enacted by and between different countries.

It is tempting to cynically dismiss international agreements, but they can be surprisingly effective. Treaties like the United Nations Charter, the International Bill of Rights, the Convention Against Torture and even the Kyoto Protocol are all documents that shaped the current international order.

As global population tips towards seven billion people and with growing concern over access to clean water, energy resources and the effects of climate change, the moment is increasingly ripe for sustainability to become an issue of international importance. A binding “Sustainability Treaty” could help distill a shared set of values that advocates all over the world could use to frame conversations related to sustainability.

Here are some issues that a Sustainability Treaty could tackle:

Resource preservation and trade:  International trade is already globally managed through the General Agreement on Tariffs and Trade and the World Trade Organization (in addition to regional trade blocks like the European Union and NAFTA). A Sustainability Treaty can take these trade agreements to the next level by mandating cooperation related to the use and trade of necessary resources likely to cause conflict in the coming century. Concerns about peak water and peak oil are better addressed through trade agreements that incentivize water- or oil-rich countries to trade these goods at reasonable prices in exchange for (say) favorable trading conditions for other goods, direct investment, or technology transfers.

Sustainable development:  It’s wrongheaded for Americans to see rising BRIC nations only as competitors or threats to the current global order — on the contrary, the spread of affluence and basic necessities to places like India and China creates an unprecedented opportunity for mutual growth and technological advancement.  A Sustainability Treaty can change the conversation about sustainability by correctly pushing for needed economic and technological reforms that will lay the foundation for the affluence of the 21st century.  For example, countries could agree to global gas mileage standards on new cars, joint development on new forms of energy technologies or re-thinking agricultural production.

Pollution and waste:  The 1987 Montreal Protocol has been hailed as an example of international cooperation related to human-caused ecological problems (specifically the depletion of the ozone layer). A Sustainability Treaty can build on that success by tackling problems associated with other sources of toxic pollution and waste, particularly plastics and e-waste.  More ambitiously, a Sustainability Treaty could even address the issue of nuclear waste and put together a comprehensive framework for a nuclear clean-up and even phase-out of outdated and waste-producing nuclear technology.

Climate change:  The Kyoto Protocol was the international community’s first effort to tackle climate change, and while it placed climate issues on the radar of governments and international organizations, as a practical matter carbon emissions continue to rise. Perhaps the flaw in current climate strategy is tackling the issue alone when in reality climate change is tied to a larger conversation about the creation of sustainable civilizations.  Hold-outs to Kyoto (specifically the United States) might find it more politically feasible to talk about climate change within the context of trade or development opportunities as well.

What are some other issues that might be addressed in a Sustainability Treaty?

Protecting public participation through California’s anti-SLAPP law

September 15th, 2011 § 0 comments § permalink

(This post is cross-posted with COMAR LAW)

The right to participate in the public political process is the essence of democracy.

It is what gives people control over the direction of their society.  It makes people citizens instead of subjects.

In the Anglo-American tradition, the right to participate has a long history.

Clause 61 of Magna Carta gave the barons the right to petition the king for redress for any breach of that Charter.

The English Bill of Rights of 1689 similarly provided, “[I]t is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal.”

In the Declaration of Independence, the Framers highlighted the infringement of their right to participate as a reason for the Revolution:  ”In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury.  A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.”

In the United States, the right to participate finds life in the First Amendment.

The First Amendment protects the rights of (i) free speech, (ii) assembly, and (iii) the right to petition.

And in California, these rights are afforded a separate guarantee by the California Constitution, which protects the rights of Californians to “freely speak . . . on all subjects,” “petition government for redress of grievances, and assemble freely to consult for the common good.”

A significant threat to public participation comes about through so-called “SLAPP” suits — “SLAPP” standing for “strategic lawsuit against public participation.”

For example:  someone who publishes an article in a newspaper and then is sued over that article confronts a SLAPP suit, as expressing an opinion in public — free speech — is a constitutionally protected right.

Someone who mounts a vigorous defense in a court proceeding and then is sued over that conduct confronts a SLAPP suit, as the petitioning of a court — the right of redress — is a constitutionally protected right.

SLAPP suits are concerning for a variety of reasons, but one of the most troubling aspects is that it is usually the stronger and more financially capable party that brings the SLAPP suit.  The defendant facing a SLAPP suit may be compelled to settle to make the headache go away and avoid the burden of trial.

Fortunately, California law provides an important mechanism for dealing with SLAPP suits:  the “anti-SLAPP” law, codified at Cal. Civ. Proc. Code § 425.16.

The anti-SLAPP law permits a defendant to strike a lawsuit at the very beginning of the lawsuit — within 60 days of service of the complaint — by forcing a plaintiff to show to the court that the lawsuit is meritorious.

These are classic SLAPP fact patterns:

  • In 1996, after several rounds of appeals, the Church of Scientology sought to set aside a $2.5 million judgment that had been awarded to Lawrence Wollersheim, a former member of the Church who was awarded general and punitive damages for intentional infliction of emotional distress.  In response to the Church’s new lawsuit, Wollersheim filed an anti-SLAPP motion, arguing that the Church was seeking to punish him because of his right to petition the courts for redress.  The Court of Appeals for the Second District agreed, writing that the Church had employed “every means, regardless of merit, to frustrate or undermine Wollersheim’s petition activity. When a party to a lawsuit engages in a course of oppressive litigation conduct designed to discourage the opponents’ right to utilize the courts to seek legal redress, the trial court may properly apply [the anti-SLAPP statute].”  The court then struck the Church’s lawsuit.  Church of Scientology v. Wollersheim, 42 Cal.App.4th 628 (1996).
  • Jay Leno and NBC were sued in 2006 for defamation and intentional infliction of emotional distress by an egg donor who was the subject of joke by Leno on his “Headlines” routine.  In response, Leno and NBC filed an anti-SLAPP motion, arguing that no reasonable person would have taken the joke to be factual or defamatory.  The court agreed and struck the plaintiff’s lawsuit.  Drake v. Leno, 34 Med.L.Rptr. 2510 (2006).

If you are a defendant facing a lawsuit based on activity that is protected by the California or federal Constitutions — in particular, speaking freely or accessing the courts — you may be entitled to end the lawsuit under the anti-SLAPP law.

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