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Bar Watch Bulletin January 2004

2004 Midyear Preview, Tort Reform
January 01, 2004
--The American Bar Association Midyear Meetings are scheduled from February 5-10 in San Antonio. Once again, ABA WATCH will be on hand to provide daily updates.

Here is a preview of recommendations that will be considered in San Antonio:

  • Recommendation 104 urges U.S. courts to exercise jurisdiction over petitions for habeas corpus filed by foreign nationals challenging the legality of their detention at the U.S. Naval Base at Guantanamo Bay, Cuba.
  • Recommendation 103D, sponsored by the Individual Rights Section and the Family Law Section, urges that states be allowed to determine their own qualifications for civil marriage between two persons. It also would oppose any federal enactment that would restrict the ability of a state to give effect to a civil marriage validly contracted between two persons under the law of another jurisdiction.
  • Recommendation 110, sponsored by the Standing Committee on Continuing Legal Education, the Commission on Racial and Ethnic Diversity in the Profession, and several other ABA entities, calls for the "elimination of bias" continuing legal education credit to become mandatory.
  • Recommendation 8A urges legislatures to enact laws requiring law enforcement agencies to videotape all interrogations of suspects held for questioning or, where videotaping is impractical, to audiotape such interrogations.
  • Recommendation 103A, offered by several ABA entities including the Section of Individual Rights & Responsibilities (IRR) and the Standing Committee on Law and National Security, "recognizes the principle of universal criminal jurisdiction as an important tool in the worldwide effort to strengthen the rule of law by providing the means for the prosecution of persons who have committed serious international crimes, regardless of where they are committed or by whom or against whom."
  • Recommendation 109 urges "federal, state, territorial, and local governments to adopt legislation that promotes school violence prevention education, instruction, awareness training, and programs for children, parents, teachers, and school administrators." It also urges all lawyers to support such education.

ABA WATCH will be attending the meetings and reporting daily upon noteworthy happenings. Some of the events that will be covered include:

  • A panel on "The Promise of Brown v. Board: Yesterday, Today and Beyond" marking the golden anniversary of the Supreme Court's decision.
  • Public hearings of the Kennedy Commission, which is examining criminal justice issues.
  • "'Son of PATRIOT' - The Proliferation of Counter-Terrorism Initiatives Across the Globe in the Aftermath of 9/11 and the Impact of these Laws on the International Human Rights Framework" will examine whether the Act has triggered the passage of a wave of similar laws and assess the impact of these laws on human rights and U.S. national security.
  • The ABA's Spirit of Excellence Awards, honoring Civil Rights Commission Chairman Mary Frances Berry and former Acting U.S. Assistant Attorney General Bill Lann Lee, among others.
  • "A Moratorium on Executions: The Professional Responsibility to Make the Case," sponsored by ABA Death Penalty Moratorium Implementation Project, a panel examining "the state of the moratorium movement around the country, the role of the ABA and other bar associations in this movement, and ways that individual lawyers and bar associations can get involved."
  • ABA Watch will be sent to members in early February. Look for an interview with ABA President-Elect Robert Grey, a piece on recent ABA policy concerning gay rights, and a preview of recommendations to be considered by the ABA House of Delegates in the issue.

In other ABA news…..

--The December 2003 issue of ABA Journal features an article profiling the American Constitution Society (ACS) and its attempts to counter the influence of the Federalist Society. Titled, "Herding Liberals," the articles traces the growth of the ACS, notes some of its prominent members, and compares and contrasts its development with the Federalist Society's genesis two decades earlier. The article can be found online here: http://www.abanet.org/journal/redesign/12fconst.html.

--ABA President Dennis Archer released a statement with regards to the Department of Defense's decision to allow unlawful combatant Yaser Esam Hamdi to meet with an attorney. While "encouraged" by the decision, the Association is disappointed by the DOD's statement that access is "a matter of discretion" and "should not be treated as a precedent." According to Archer, this "falls far short of the strong position of the ABA that any United States citizen or resident who is detained and declared to be an "enemy combatant" should have access to counsel and to meaningful judicial review of their status." He expresses "hope that the Department's decision in Hamdi's case is the first step in correcting a policy that could tear at the Bill of Rights, the very fabric of our great democracy, and erode our cherished constitutional safeguards."

Archer also released a statement applauding the Second Circuit's decision on Padilla v. Rumsfeld. According to Archer, "The court has underscored the need for the government to work within the framework of the Constitution in fighting terrorism. It has reaffirmed the fundamental due process rights of each of us to meaningful judicial review and access to counsel when the government proceeds against us."

--Dennis Archer recently wrote to Newsweek magazine and NBC News Anchor Tom Brokaw about the American tort system. He criticizes the two media outlets' recent reports on the state of the American civil justice system. Archer writes, "Newsweek's and NBC's anecdotal rather than empirical report of lawsuits that appear to go wrong would have readers believe that tort cases always do. This is false. The overwhelming majority of cases filed each year represent genuine issues of harm and suffering. The overwhelming majority of decisions that result represent justice. Courts have ways of weeding out frivolous lawsuits. Overly punitive judgments may be appealed. There are multiple remedies for corporations, government agencies, hospitals and the like who believe they are sued unfairly."

"Being able to be heard in a court of law is the individual's principal safeguard, a safeguard that makes our country safer, our products better, our services more attuned to the needs of individuals. Destroy that ability and we slice a major gash in the protective bulwark of our justice system."

Newsweek's article, "Civil Wars" can be found here: http://www.msnbc.msn.com/id/3660738 and in the December 15, 2003 issue. The article detailed anecdotally several accounts of doctors, teachers, criminal justice officials, and other professionals who have been threatened by lawsuits.

--Dennis Archer recently published a statement praising out-going Kentucky Governor Paul Patton's December 8 decision to commute the death sentence of Kevin Stanford to life in prison. Archer wrote, "Execution, the ultimate sanction, should be reserved for the 'worst of the worst' offenders, defined according to a degree of intent and culpability that minors simply cannot meet. The time has come for all states to cease executing those who commit crimes as minors." A.P. Carlton, Archer's predecessor as ABA president, had earlier written to Governor Patton in opposition of Stanford's death sentence.
Kevin Stanford was convicted of raping and murdering a gas station attendant in 1981, when he was 17. His case, concerning whether states can execute convicted juveniles, went before the U.S. Supreme Court in 1989 and last year. Kentucky Attorney General Ben Chandler opposed offering clemency in this case.

Ernie Fletcher replaced Patton as governor of Kentucky on December 9.