The Federalist Society

Bar Watch Bulletin February 15, 2006

House of Delegates

February 15, 2006

The American Bar Association's Midyear Meeting took place in Chicago from Wednesday, February 8 until Monday, February 13. Once again, ABA WATCH covered the Meeting live from Chicago. Today, we offer the report on Monday's House of Delegates session. Many resolutions were adopted by the ABA during the House of Delegates, most of which were passed unanimously. Of the measures that were voted upon, only two issues – domestic surveillance and a proposal to increase ABA membership dues – resulted in any debate.

Accreditation Requirements and Diversity Standards for Law Schools
ABAWatch learned of a measure that was adopted over the weekend by the ABA’s Council of the Section of Legal Education and Admissions to the Bar that “calls for law schools to show they are taking 'concrete action' to diversify both their students and faculty.” This action comes after the Supreme Court rulings three years ago regarding the University of Michigan Law School that held that “race can be taken into account for law school admissions but should not be the ‘sole factor’ or the ‘whole factor’ in determining acceptance.” By passing the revised Standard 211 (Equal Opportunity and Diversity Standard), the Council essentially declares that law schools, “rather than pledging to implement ‘equal opportunity and diversity,’ must now show that they are making adequate attempts to do so, including things such as appointing a diversity officer, hosting forums or making diversity an integral part of recruitment.” George Mason University Law Professor and critic of the measure David Bernstein said "I don't think that that ABA should be setting uniform standards for all law schools with the threat of loss of accreditation to enforce the uniformity." The revised Standard 211 reads:

Standard 211. EQUAL OPPORTUNITY AND DIVERSITY.
(a) 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. (b) 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.

Interpretation 211-1:
The requirements of a constitutional provision or statute that purports to prohibit consideration of gender, race, ethnicity or national origin in admissions or employment decisions is not a justification for a school’s non-compliance with Standard 211.

Interpretation 211-2:
Consistent with the U.S. Supreme Court’s decision in Gruter v. Bollinger, 539 U.S. 306 (2003), a law school may use race and ethnicity in its admissions process to promote equal opportunity and diversity. Through its admissions policies and practices, a law school shall take concrete actions to enroll a diverse student body that promotes cross-cultural understanding, helps break down racial and ethnic stereotypes, and enables students to better understand persons of different races, ethnic groups and backgrounds.

Interpretation 211-3:
This Standard does not specify the forms of concrete actions a law school must take to satisfy its equal opportunity and diversity obligations. The determination of a law school’s satisfaction of such obligations is based on the totality of the law school’s actions and the results achieved. The commitment to providing full educational opportunities for members of underrepresented groups typically includes a special concern for determining the potential of these applicants through the admission process, special recruitment efforts, and programs that assist in meeting the academic and financial needs of many of these students and that create a more favorable environment for students from underrepresented groups.

This measure, though adopted by the Council, still must be passed by the House of Delegates in August.

Task Force on Domestic Surveillance in the Fight Against Terrorism
The House of Delegates adopted, with very little debate, a recommendation (302) which calls “upon the United States President to abide by the Constitutional system of checks and balances and respect the roles of Congress and the judiciary and opposing any further electronic surveillance that does not comply with FISA.” This recommendation is sponsored by ten ABA entities and spearheaded by the ABA’s Task Force on Domestic Surveillance, its Sections of International Law. The Task Force is a “bipartisan” group comprised of experts in the areas of national security, constitutional law, and criminal justice, among others, and chaired by Neil Sonnett, a criminal law attorney and former Assistant United States Attorney. The Federalist Society will be publishing a special, separate issue of BarWatch on Thursday regarding this important and controversial issue.

Slavery Commission
The ABA’s Section of Individual Rights and Responsibilities was a very active supporter and the author (or co-author) of many resolutions and recommendation at Monday’s House of Delegates meeting. One of the recommendations they authored solely was 108A, which “urges Congress to create and appropriate funds for a Commission to study and make findings relating to the present day social, political, and economic consequences of both slavery and the denial thereafter of equal justice under law for persons of African descent living in the United States and authorizes the Commission to propose public policies or governmental actions, if any, that may be appropriate to address such consequences.” According to the report, “this resolution would encourage the Congress to formally and comprehensively study this country’s ‘legacy of inequity’ and propose and policies or governmental actions that may be appropriate.” The report cited in its conclusion local legislatures that were currently “enacting statutes on this issue, conducting studies, or creating Commissions to examine post-slavery discrimination.”

Delegate Elisa Frazier served as the presenter of the recommendation to the House. She stated: “As we clear away the debris of a hurricane, let us clear away the legacy of inequity.” She further suggested that the resolution “is not about reparation,” but only urges Congress to study the issue. After no debate, the recommendation was adopted.

Native Hawaiian Recognition
Recommendation 108B, another measure developed by the Individual Rights Section, “urged Congress to pass legislation to establish a process to provide federal recognition and to restore self-determination to Native Americans.”

The report states that “current policy. . .does not adequately address the status of Native Hawaiians as indigenous people native to the United States. As used in this Recommendation, self-determination and self- governance mean an authority similar to that which American Indian and Alaska Native governments possess under the Constitution to govern and provide for the heath, safety, and welfare of their members. The Recommendation does not seek to recognize a right of secession from the United States or to accord to Native Hawaiians any independent international status.”

According to the accompanying report, the United States recognized that the overthrow of the Kingdom of Hawaii in 1893 was illegal. In 1993, Congress passed Joint Resolution 19, which “encourages acts of reconciliation to heal the wounds between the United States and the Native Hawaiian people.” (To read a copy of the resolution, go to http://www.hawaii- nation.org/publawall.html.) However, as President Greco said, "Native Hawaiians as an indigenous people in our country should be afforded the right to create their own governing body. Congress needs to approve legislation now that will establish the process for native Hawaiians to do that." When put to a vote, the recommendation was adopted without any opposition.

Immigration Law Issues
The Commission on Immigration proposed seven policies designed to improve the American immigration system as it presently operates. Former ABA President Robert Grey opened the discussion of the policies by declaring that “the United States has long been a beacon of freedom and liberty. We need to address the deficiencies of America with regard to immigration.” The policies that were discussed and voted upon include:

107A, which “supports the due process right to counsel for all persons in removal proceedings and the availability of legal representation to all non-citizens in immigration -related matters;”

107B, which “supports a regulated, orderly and safe immigration system that promotes national security, addresses the undocumented population, need for immigrant labor, value of family reunification, and the need for an effective enforcement strategy; and supports lawful permanent residence and citizenship for undocumented persons who entered the United Stated states as minors;”

107C, which “Urges an administrative agency structure that will provide all non –citizens with due process of law in the processing of their immigration applications and petitions, and in the conduct of their hearings or appeals, by all officials with responsibility for implementing U.S. immigration laws;”

107D, which “supports a transparent, user-friendly, accessible, fair and efficient system for administering immigration laws that has sufficient resources to carry out its functions in a timely manner;”

107E, which “opposes the detention of non-citizens in immigration removal proceedings except in extraordinary circumstances, which would include a determination, following a hearing and subject to judicial review, that a person presents a threat to national security or public safety, or presents a substantial flight risk;”

107F, which “supports the establishment of laws, policies, and practices that ensure optimum access to legal protection for refugees, asylum seekers, torture victims, and others deserving of humanitarian refuge;”

107G, which “supports avenues for lawful immigration status, employment authorization, and public benefits for victims and derivative family members, of human trafficking and other crimes described in 101(a)(15)(U)(iii) of the Immigration and Nationality Act and supports the use of Legal Services Corporation funding to provide services to such victims.”

Each of these recommendations was adopted without opposition.

Asbestos-Related Claims Litigation
The House of Delegates adopted a sequence of recommendations, proposed by the Tort Trial and Insurance Practice Section, which seek to “protect the rights of injured claimants if the current tort-based legislation asbestos litigation system is changed to an administrative process. The recommendations included:

106A, which “recommends that any legislation establishing an administrative process in lieu of state, territorial or federal tort-based asbestos-related claims should insure access by claimants to adequate representation in the claims process.”

106B, which “recommends that any legislation establishing an administrative process in lieu of state, territorial or federal tort-based asbestos-related claims should insure that awards to claimants not be depleted by taxation or by subrogation from any private or governmental entity and should not unduly foreclose independent claims existing under state, territorial or federal law relating to safety or other obligations of employers.”

106C, which “recommends that any legislation establishing an administrative process in lieu of state, territorial or federal tort-based asbestos-related claims should contain specific provisions to insure adequate upfront financing and disclosure of certain information concerning contributors.

106D, which “recommends that any legislation establishing an administrative process in lieu of state, territorial or federal tort-based asbestos-related claims should contain specific contingent provisions to respond to any potential occurrence of a shortfall of funds.

Other Recommendations
The House of Delegates reviewed and voted upon many other issues as well. They include:

-Recommendation 102, which “opposes legislation and policies that prohibit, limit or restrict placement into foster care of any child on the basis of sexual orientation of the proposed foster parent when such foster care placement is otherwise determined to be in the best interest of the child.” The recommendation was adopted.

-Recommendation 103, which “reaffirms opposition to legislation that places a dollar limit on recoverable damages that operate to deny full compensation to a plaintiff in a medical malpractice action and opposes the creation of healthcare tribunals that would deny patients injured by medical negligence the right to request a trial by jury or the right to receive full compensation for their injuries.” The recommendation was adopted without opposition.

-Recommendation 109, which “supports the use of federal consent decrees as an important tool for resolving litigation and opposes legislation that limits the efficacy of consent decrees when state and local governments are parties thereto, such as those proposed in S. 489 and H.R. 1229.” The recommendation was adopted without opposition.

-Recommendation 110, which “urges the adoption by states of a uniform law that would permit unsworn declarations under penalty of perjury to be executed by persons located outside the United States in lieu of affidavits, verifications, or other sworn documents, as is currently the federal practice under 28 U.S.C. §1746.” The recommendation was adopted without opposition.

- Recommendation 111, which would “adopt[s] the Statement of Core Principles of the legal profession, adopted at the international bar presidents meeting in Paris, France, November 19, 2005 and urges bar associations throughout the world actively to support and advance the Rule of Law.” President Greco presented the recommendation and said that “the independence of the judiciary is indispensable to the rule of law.” The recommendation was adopted without opposition.

-Recommendation 112, which “urges the Attorney General of the United States to issue a memorandum to Freedom of Information Act (FOIA) officials at federal agencies clarifying that the designation of agency records as “sensitive but unclassified” cannot be a basis for withholding agency documents from release.” The recommendation was adopted without opposition.

- Recommendation 177B, which “recommends that membership dues be increased by approximately 17% to be effective with Fiscal Year 2006-07 and further recommends that limited testing of new dues pricing concepts be allowed.” Opposition statements to this recommendation included “We shouldn’t increase membership dues until every other option has been exhausted,” and “Increasing membership dues is like conducting business as GM does. You don’t ask GM to raise their prices.” Nonetheless, the recommendation was adopted.

- Recommendation 300, “urging, under warranted circumstances, the expansion of the use of the pardon power to provide relief to non-citizens otherwise subject to removal on grounds related to conviction.” The recommendation was adopted without opposition.

- Recommendation 301, “recommending the United States Bankruptcy Courts in each federal district permit attorneys who have received electronic case filing (ECF) training in any district to file documents electronically in bankruptcy cases in any other district.” The recommendation was adopted without opposition.

-Recommendation 303, “reaffirming its support in principle for the granting of a permanent injunction enjoining future infringement of a patent that has been adjudicated to be valid, enforceable and infringed by the infringer in accordance with the principles of equity on such terms as the court deems reasonable.” The recommendation was adopted without opposition.

- Recommendation 305, which urges “Congress to investigate the response of the federal government to Hurricanes Katrina and Rita and urging state governments in the states affected by these hurricanes to explore mitigation efforts for future natural disasters. A supporter of the bill offered “This House must raise their voice NOW. We cannot remain silent.” Recommendation 106E, which “supports the principle that emergency preparedness plans should take into account the needs of individuals with household pets or service animals as an essential part of the response to any disaster or emergency situation,” was withdrawn on its own and assimilated into 305. The recommendation was adopted without opposition.


The Federalist Society