January 11 is the 13th anniversary of the opening of the detention center at Guantanamo Bay, Cuba. Nearly six years have passed since President Obama announced on his second day in office that he would shutter the detention center within one year. 127 detainees still remain at Guantanamo, 59 have been cleared for release, many for years. Over these 13 years, Guantanamo has been a black stain on America, a stain that Obama himself has acknowledged. Because of Guantanamo, people around the world have come to question the United States’ position as world leader in human rights and the rule of law.
The eleventh day of the eleventh month has been, for over a century, a symbolic time to recognize the contributions to America made by the men and women of the Armed Forces, our veterans.
Within the School of Law, we have at least 17 current students who have already served in the military and are now devoting their future careers to law. While the role of lawyers as leaders will come naturally to them, we have an important responsibility to veterans, not just on Veterans Day, but throughout the year.
Our World Champions are not the only stars in town. This month, our School of Law has achieved many important victories and milestones. Through the excellence and efforts of our students, staff, faculty, and alumni, we are—in Bumgardnerian fashion—striking out injustice.
Here are ten of our Notable Achievements:
The Supreme Court faced the specific question in Riley v. California as a matter of first impression—can police search a cell phone’s contents under the “incident to arrest” exception to the warrant requirement? But several courts have recently established a privacy-protective trend when they addressed the broader question—when does new technology render pre-digital precedents inapposite? The Supreme Court’s decision fits the trend in two key ways. First, the Court refused to credit the government’s explanation of the technological challenges it faced, and, instead, relied on its own sophisticated understanding. Second, the Court recognized the need to evaluate how new technology presents new answers to the inquiries behind the precedents. Like recent federal appellate cases, and unlike the Court’s decision in United States v. Jones, however, the Riley decision announced a bright line warrant requirement for searches of cell phones that recognized that more nuanced rules would grant law enforcement agents excessive discretion.
In Utility Air Regulatory Group v. EPA, seven members of the Supreme Court upheld the most important feature of the EPA’s Prevention of Significant Deterioration (PSD) program: the ability to require the vast majority of new and modified sources to install the “Best Available Control Technology” for reducing greenhouse gases (GHGs). As a consequence, eighty-three percent of significant new and modified sources will continue to be subject to the BACT requirement for their GHG emissions. Although the Court reversed, by a five-to-four vote, EPA’s contention that greenhouse gas emissions alone could trigger the PSD program, that reversal will have little impact because it will eliminate PSD requirements for only about three percent of significant stationary GHG sources. Justice Scalia’s majority opinion had some choice words for EPA, but it remains to be seen whether those words spell trouble for newly emerging climate regulations.
Power plants are not only one of the nation’s largest sources of greenhouse gases, they are also a significant source of sulfur dioxide, nitrogen oxides, particulates, and mercury, all of which have direct public health and welfare consequences. EPA’s recently proposed Clean Power Plan, which applies Clean Air Act § 111(d) to reduce greenhouse gases (GHGs) from the nation’s fleet of fossil-fuel power plants, will have important implications for these ubiquitous co-pollutants. Although the primary goal of the Clean Power Plan is to reduce GHGs, ancillary co-pollutant benefits are an important consideration in evaluating alternative mechanisms for controlling GHGs.
Since 1986, I have been briefing the international and treaty standards that apply to U.S. cases through amicus curiae briefs filed on behalf of Human Rights Advocates. Despite the fact that the U.S. Constitution provides that treaties are the supreme law of the land, courts’ receptivity to the use of the international standards and treaties has ebbed and flowed. However, even during the ebbs, it is important that the courts be made aware of that body of law. Indeed, sometimes it can be a catalyst for bringing the U.S. in line with more humane practices, as has been shown by two extreme sentences that the U.S. has used for juvenile offenders despite the fact that the vast majority of countries do not use them: the death penalty and life without parole (JLWOP). The almost worldwide prohibition of these two sentences played a role in the U.S. Supreme Court holding the death penalty unconstitutional for juvenile offenders in Roper v. Simmons, 543 U.S. 551 (2005) and in beginning the limiting of life without parole sentences in Graham v. Florida, 560 U.S. 48 (2010). A recent report discusses various types of advocacy where the international standards have proven to be useful: Challenging Juvenile Life Without Parole: How Has Human Rights Made A Difference?
While the Court did not refer to the international standards in the more recent case of Miller v. Alabama, 576 U.S. __ (2012), most likely the result of the backlash from some groups against using international law, it is still important that courts be aware of those standards in addressing U.S. law so they can place U.S. and state law in context. Recent cases where these standards have been raised in amicus curiae briefs include:
For over a dozen years, since the attacks on 9/11, a new and pernicious term has permeated the war lexicon and the mainstream: enemy combatant. Although originally intended as the United States' designation for al Qaeda and Taliban captives, it is now often indiscriminately applied to alleged terrorists throughout the world. In 2009, President Obama abandoned the term, substituting language more consistent with the Geneva Conventions. However, the term enemy combatant is still on Americans' radar screens.
Many scholars of international law believe that the U.S. deliberately invented the term in order to circumvent the protections of the Geneva Conventions (GC). Under the GC, the universe of combatants are two: lawful (also called prisoners of war) and unlawful.
You don’t have to look far to encounter “fracking,” shorthand for hydraulic fracturing, a method of extracting oil and gas from the earth by injecting a mixture of chemicals, sand, and water into shale rock formations deep underground at high pressures. Fracking itself is not a novel technology, but the advent of horizontal drilling, which allows drillers to drill across broader swaths of rock, has improved the return on investment for pioneering oil and gas companies. The result is a proliferation of wells in places like Colorado, Texas, Pennsylvania, North Dakota, and West Virginia; and controversy in places like New York, Vermont, and California, among others. Proponents see fracking as a panacea that will make the United States a top global producer of natural gas, and move the country away from coal and toward cleaner energy. Opponents point to the myriad questions that surround fracking, its risks, and the ultimate effects it may have on the communities in which it takes place.
As we begin 2014 together, I hope you all have had a happy holiday season.
Before closing the door on 2013, our first year of working together, I want to share with you what it meant to me when I recently—in the past month—witnessed women on two separate occasions who were driven to tears by their experiences with our law school. One was a grandmother who traveled from Southern California to see her grandson be sworn in to the California bar at our ceremony at St. Ignatius Church. He is the first lawyer in the family and the path over generations was not easy. The other was a small businesswoman who contacted one of our clinics for help to fight off a large company whose legal actions threatened to shut down her dream before it got off the ground. We provided both the legal expertise and the personal understanding that enabled her to persevere and prevail.