The Federalist Society

Bar Watch Bulletin February 2005

Midyear Meeting Preview

February 1, 2005

The American Bar Association Midyear Meetings take place from Thursday, February 10 through Tuesday, February 15. Once again, ABA WATCH will be reporting live from the meetings. Today we preview upcoming resolutions and other highlights from the meetings.

Resolutions

The Section of Individual Rights and Responsibilities (IRR) and the Health Law Section urge the ABA to oppose "governmental actions and policies that interfere with patients' abilities to receive from their healthcare providers…in a timely manner: (a) all of the relevant and medically accurate information necessary for fully informed healthcare decision-making; and (b) information with respect to their access to medically appropriate care, as defined by the applicable medical standard of care."

The recommendation is very similar to a resolution offered by the IRR Section at the 2004 ABA Annual Meeting, which was withdrawn. That recommendation also recognized the "importance of fully informed consent" and sought to promote existing ABA policies to protect the rights of all patients to access federally funded family planning clinics in order "to receive counseling and referrals with respect to all medical options related to pregnancy."

The ABA's Criminal Justice Section sponsors Recommendation 108A, advocating the adoption of statutes to "adequately compensate persons who have been convicted and incarcerated for crimes they did not commit." Recommendation 108B, also offered by the Criminal Justice Section, "urges federal, state, local, and territorial governments to reduce the risk of convicting the innocent, while increasing the likelihood of convicting the guilty by ensuring that no prosecution should occur based solely upon uncorroborated jailhouse informant testimony."

The Criminal Justice Section also proposes Recommendation 108C. This recommendation "urges federal, state, local, and territorial governments to reduce the risk of convicting the innocent by establishing standards of practice for defense counsel that will identify those cases that demand greater expertise and resources than other cases because of their serious nature."

The Tort, Trial & Insurance Practice Section (TIPS) offers Recommendation 109A calling for the government to conduct "an urgent study of the impact that the federal government has had in the causation of asbestos-related injuries over time and identify the appropriate role for the federal government in the solution of the present asbestos litigation crisis, without altering the responsibility of others."

The Sections of Science & Technology Law, Administrative Law and Regulatory Practice, and Health Law, along with the American Immigration Lawyers Association, urge the government "to take steps to ensure that the visa issuance process effectively protects the security of the United States, while allowing those persons who wish legitimately to study, work, or travel in the United States for scientific and scholarly purposes the opportunity to pursue those objectives."

The Commission on Homelessness and Poverty, the Standing Committee on Legal Aid and Indigent Defendants, and the Commission on Mental and Physical Disability Law propose Recommendation 111 calling for the establishment of a federal affordable housing trust to increase the availability of affordable housing.

The Tort, Trial, and Insurance Practice Section and the Litigation Section sponsor Recommendation 109C, reaffirming its support for the judicial rulemaking process set forth in the Federal Rules Enabling Act. The sponsors oppose the "Lawsuit Abuse Reduction Act" (H.R. 4571) because of its changes to Rule 11 of the Federal Rules of Civil Procedure, as they are proposed without first being submitted to the ABA-supported process set forth in the Rules Enabling Act. The sponsors oppose enactment of legislation that would "violate principles of federalism by 1) imposing the provisions of Rule 11 under any civil action filed in a state court; or 2) imposing venue designation rules or provisions upon a personal injury claim filed in a state court."

For an analysis of these recommendations and others that the House of Delegates will be considering, please see the February 2005 issue of ABA Watch, which you will receive soon.

Awards

The Individual Rights and Responsibilities (IRR) Section will award its former chairman, Cruz Reynoso, its 2005 Father Robert F. Drinan Distinguished Service Award. The award, named for the controversial Catholic priest who also served as a past IRR section chairman, honors individuals "who have shown sustained and extraordinary commitment to the section and/or its mission of providing leadership to the profession in preserving and advancing human rights, civil liberties, and social justice."
Cruz Reynoso is a former associate justice on the California Supreme Court. Along with Chief Justice Rose Bird and Justice Joseph Grodin, Reynoso failed to win reelection under California's mandatory retention election system. They were the first supreme court justices who lost their seats on the court because they failed to be retained by the voters. Along with his colleagues, Reynoso was accused of being anti-death penalty, as he voted to uphold only three of the 61 death penalty convictions that came before him on the court. Reynoso insisted he upheld the law in those cases.
In 2000, former President Bill Clinton awarded Reynoso with the Presidential Medal of Freedom. He most recently completed his service on the U.S. Commission on Civil Rights, where he served as vice-chairman. His tenure was controversial, as he and former Commission Chairman Mary Frances Berry were sharply critical of the civil rights record of President Bush and the 2000 presidential election.

ABA President-Elect Michael Greco

ABA President-Elect Michael Greco, who previously served as Chairman of the Individual Rights & Responsibilities Section of ABA, responded to questions provided by ABA Watch by email. Here's a preview of his answers:

  • Regarding his goals for his upcoming presidency: "My primary initiative as ABA President will be to inspire what I refer to as a "Renaissance of Idealism" within the legal profession… I intend to work hard to make the case with decision-makers in America's law offices that it is clearly in the interest of the lawyer, the lawyer's place of employment, the profession, and the American people, that we free up time -- to honor and deliver on the profession's long-standing commitment to public service."
  • On Judicial Nominations: "The Association has not taken a position on the question of filibustering judicial nominees. We are of course concerned about the effective functioning of the judicial system, and have spoken out in the past to urge the Administration and Congress to move forward to fill judicial vacancies when the level of vacancies has reached disturbing levels. But this is not the case today. By historic standards, vacancies today are at a remarkably low level -- just 37, a vacancy rate of only 4.2%."
  • Regarding ABA concerns about civil liberties and the USA PATRIOT Act: "Many provisions of that law are non-controversial and are needed in the war on terrorism. However a few -- for example the so-called sneak and peek searches and roving wiretaps -- also apply to ordinary criminal cases, and they afford limited judicial review. The ABA is very concerned about this, as are observers from all sides of the political spectrum, because they represent erosions in civil liberties of all Americans."
  • On citing international law in Supreme Court cases: "The American Bar Association…will continue to oppose efforts in Congress to prohibit federal judges from citing judgments, laws and pronouncements of foreign institutions in their decisions under threat of impeachment. We believe that such legislation would be ill advised and premature. Congress should instead seek ways to engage the Judicial Branch in constructive dialogue so that there can be a respectful exchange of ideas and concerns, and development of a mutual understanding of the breadth and complexity of the issues involved."
  • On proposals for medical malpractice reform: "The ABA has long believed that the medical malpractice changes proposed by the Bush Administration, and prior administrations, specifically the caps on awards in malpractice cases, will not solve the health care problems that matter the most to American families."
See the February 2005 issue of ABA Watch for the entirety of the interview.


The Federalist Society