The Federalist Society

Bar Watch Bulletin February 13, 2006

Legal Education, Health Care, Lobbying

February 13, 2006

The ABA's Council of the Section on Legal Education and Admissions to the Bar voted this weekend on equal opportunity and diversity standards for law students and faculty. Preliminary discussion of proposed changes were initiated in November 2004 by the ABA Standards Review Committee and assisted by a set of recommendations for revisions prepared by the Section's Diversity Committee. The Council considered the Committee's recommendations and additional recommendations offered by Gary Palm ("the Palm proposals") on behalf of himself and other members of the Clinical Legal Education Association (CLEA) and the Society of American Law Teachers (SALT).

The proposed revised standard, Standard 211, is titled the "Equal Opportunity and Diversity Effort." Previously, the Standard only governed admissions; the revisions extend its reach to cover faculty hiring. Part (a) reads: "Consistent with sound legal education policy and the Standards, a law school shall demonstrate, by concrete action, a commitment to providing full opportunities for the study of law and entry into the profession by members of underrepresented groups, particularly racial and ethnic minorities, and a commitment to having a student body that is diverse with respect to gender, race and ethnicity."

Part (b) reads, "Consistent with sound educational policy and the Standards, a law school shall demonstrate by concrete action a commitment to having a faculty and staff that are diverse with respect to gender, race, and ethnicity."

According to the ABA, "The requirement of the Standard is stated in terms of effort. There was extended discussion on this issue, as some urged that the Standard be stated in terms of results. Specifically, it was suggested that the Standard should build on the language of the Grutter case and require that law schools have a "critical mass" of students from traditionally underrepresented groups. Evidence was provided to show continuing under-representation in law school and in the legal profession of individuals from groups that have been historically discriminated against, and the argument was made that only a results test could ensure that there would be substantial progress toward increasing access to legal education and the profession. The Council and Committee ultimately decided that genuine effort cannot always assure results. The focus on effort also recognizes the constraints imposed upon some schools by applicable law and the demographics of the school's area."

The proposed Standards were approved by the Council with some modifications, and will be posted to the ABA's website later this week.


Panel Discussion on Health Care in Prisons

The ABA held a panel on Saturday afternoon titled "Advocating for Health as a Human Right: Health Care in Prison and Detention, " which took a look at the current status of health care distribution not only in the domestic American prison system but also at Guantanamo Bay.

Women's rights attorney Susan Fogel acted as the moderator and opened the panel by stating that there are currently 45.8 million people in the United States who have no health insurance. Of those millions, "One fourth of them are black women and 13% are white women." She then suggested that, "Human rights encompasses negative (free from interference) and positive (obligation of government to protect them) rights."

Patty Skuster, who does work in international reproductive rights, said that "Human rights are bound in the inherent quality and dignity of everyone," that government has an "obligation to protect them." She proceeded to detail how the United States must submit a report annually to the United Nations detailing the current situation of incarceration in America. Concurrently, NGOs submit reports of their own on the same subject and a committee of experts (professors, judges, etc) at the U.N. must decide if the United States is complying with those established standards.

Historian and author Alan Elsner of Reuters News Service initially suggested: "We should be thinking about the rights of prisoners in the context of the general health crisis in the United States. There are many ties between communities and jails." He was alluding to the argument that when prisoners are released back into their respective communities there tends to be a spike in HIV cases. Many people, he maintained, also forget about the mental health side of detention. There are roughly 300,000 "mental health" sufferers currently in the American prison population, many of whom return after they are initially released. One way to fix the current system, he maintained, is by offering health care to prisoners AFTER they leave prison. He cited a report that said that it costs, on average, $62,000 a year to hold a prisoner, and $14,000 if they are provided health care after completion of a prison sentence.

David Fathi, of the ACLU National Prison Project, opened his remarks by declaring that over the past 25 years, the rights of prisoners have been deteriorating. He feels that the Supreme Court has steadily cut back on those rights and that "in light of recent developments, that is not likely to be changed any time soon."

To Gretchen Rohr, an attorney who works with prisoners in a number of southern states, "monitoring is the blood, sweat, and tears of protecting prisoners' rights." She stated that depriving medical treatment and health care in prisons "is actually used as a form of torture. The lack of these are forms of punishment." Yet, "many people like those who watch Fox News do not care about people in prisoners." She concluded that "Reducing dependency on private contractors is the key to improving healthcare in prisons."

Later, when moderator Susan Fogel asked the panel what they thought about the Supreme Court citing foreign law in their rulings, Mr. Fathi stated: "I think this is very encouraging." Mr. Elsner believes "It is one of the red rags for the conservative movement as seen in the Alito hearings." To him, "it is a political football. It enrages the right."

Panel on Federal Lobbying Reform

William Luneburg, a professor at the University of Pittsburgh School of Law, opened this Sunday morning panel by giving the attendees a synopsis of recent "developments" relating to proposals by Senators Russ Feingold and John McCain on the important and very timely issue of federal lobbying reform. Both Senators have produced versions of a reform Bill. However, Sen. McCain's Bill would address disclosure only whereas Sen. Feingold's version includes a measure to regulate conduct. The difference between these two bills "is the essence of the debate on Capitol Hill." Luneberg presented the question whether the bills should go beyond disclosure, and maintained that "it is not enough. It is not going to save the image of the Republican Party."

Professor Luneburg then addressed two issues he believes must be the focus of lobbying reform. First, there is a money problem in that too often lobbyists are on the payroll of a Congressman, often in the role of treasurer for his campaign. He argued that there must be restrictions on individuals in this position. Second, there must be an enforcement mechanism. "There needs to be someone who monitors lobbyists and enforces those laws."

Panelist Thomas Susman, a D.C. based attorney, added to Professor Luneburg's comments by offering three principal changes that he maintains need to be made. First, lobbying reform measures must not do any harm. They should be fully tested before they are enacted. Second, the reform must be made responsive to the problem. There could be, for example, "an increase in penalties to violators of the Lobbying Disclosure Act of 1995." Thirdly, there must be a check on the ethical decision-making being done by members of Congress.

Mr. Craig Holman of Public Citizen offered what he believes to be the "Six Benchmarks for Lobbying Reform." They are:

1.) Break the nexus between lobbyists, money, and lawmakers.
2.) Prevent private interests from financing trips and from subsidizing travel for members of Congress and staff, and executive branch officials and federal judges.
3.) Ban gifts to members of Congress and staff.
4.) Oversee and enforce ethics rules and lobbying laws through an independent congressional Office of Public Integrity and increase penalties for violations.
5.) Slow the revolving door: Prohibit members of Congress and senior executive branch officials from making lobbying contracts or conducting lobbying activities for compensation in either branch for two years after leaving their positions.
6.) Place sunshine on lobbying activities and financial disclosure reports: Require lobbying reports and Members' financial disclosure reports to be filed in an electronic format and made fully searchable on the Internet.


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