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“Arrested Immigrants Are Being ‘Returned’ to Mexico,” January 2020, Capital & Main
The Department of Homeland Security has been arresting people inside the United States who normally would be put into deportation as aliens present without admission–the legalese term for undocumented–but sending them to Mexico under the Remain in Mexico/MPP program. When challenged on this, DHS says that because it sent them to Mexico, they belong in MPP. This appears to violate the statute that DHS says authorizes MPP.
“Researchers: U.S. Immigration Data Missing or Misleading,” November 2019, Capital & Main
On Halloween, Syracuse University’s TRAC, the best and in some cases only source of immigration court data, put out a report saying immigration court data has been withheld or garbled so much by the Justice Department that they believe there are serious data management problems there. This article looks at how and potential reasons why.
“Strangers in a strange land: ‘Metering’ makes asylum rights meaningless, immigrant advocates say,” July 2019, ABA Journal
This feature article explains “metering” and “Remain in Mexico,” called the Migrant Protection Protocols by the federal government even though immigrant advocates say it actually endangers their clients.
“Drug crimes prosecutions could be taking a back seat as the DOJ focuses on unlawful entry,” June 2019, ABA Journal
This is a data story based on information from the Administrative Office of the U.S. Courts, exploring to what extent the “zero tolerance” policy of former Attorney General Jefferson Beauregard Sessions III has hampered the efforts of federal prosecutors on the southern border to fight drug trafficking.
“Failure to Appear: Videoconferencing’s promise of increased access to justice has a disconnect in immigration courts,” June 2019, ABA Journal
This mid-sized piece is about the contrast between videoconferencing’s promise for certain criminal and civil matters and the criticisms of videoconferencing in immigration court.
“Whose court is this anyway? Immigration judges accuse executive branch of politicizing their courts,” April 2019, ABA Journal
This feature article is about the debate over to what extent DOJ should be permitted to interfere in–or even run at all–the immigration courts.
“Legal Prey: Increased enforcement of immigration laws has raised the risk of scams,” May 2018, ABA Journal
With increased enforcement of immigration laws comes increased chance of notario fraud—nonlawyers preying on immigrants, particularly those from Latin America, by holding themselves out as lawyers. This feature goes into why this is a problem and what lawyer groups and immigrant advocates can do.
“Forgotten Allies, Broken Promises: Afghan and Iraqi interpreters for the US are caught in a deadly immigration waiting game,” September 2017, ABA Journal
The Bush administration has ended, but for the Afghan and Iraqi nationals who helped (and are still helping) the United States in those countries, the fallout could be lifelong. This article is about visa difficulties for those former employees (including problems posed by the original Trump administration “travel ban”), and the cadre of service members, lawyers and activists trying to help them.
“Legal Logjam: Neglect and political interference have created a growing backlog in immigration courts of 540,000-plus cases,” April 2017, ABA Journal
This feature looks at the immigration court backlog as it was in late 2016 and early 2017. Events since then show that the Trump administration is committed to reducing that backlog, although perhaps not in ways that some immigration judges and respondents would prefer. Please also see this sidebar on the ABA’s role.
“First Amendment defense claims could threaten ‘revenge pornography’ statutes,” December 2019, ABA Journal
States started passing laws against revenge porn a few years ago, and First Amendment challenges to that crop of laws have finally started appearing. These defendants argue that they have a free-speech right to put nude or sexual pictures of their exes on the Internet. They’ve mostly lost in courts that have entertained that claim, but challenges continue—including in state Supreme Courts that can set precedents.
“It’s Unanimous–Almost: Oregon may finally join 49 other states that require unanimous jury decisions in criminal cases,” May 2019, ABA Journal
Oregon is the last state that permits conviction by a non-unanimous jury. This article is about the debate around that.
“More lawmakers are considering banning gay and trans ‘panic defenses’,” January 2019, ABA Journal
“Gay panic” and “trans panic” defenses–actually a group of defenses that claim temporary insanity, self-defense or diminished responsibility–are still legal in some states, but it’s fewer and fewer of them.
“A Military Injustice: Legal ethics questions and accusations of spying on the defense have stymied a Guantanamo terrorism trial,” November 2018, ABA Journal
This feature article is about the extensive legal ethics problems that derailed the prosecution of Abd al-Rahim Hussein Muhammad al-Nashiri, who’s accused of orchestrating the 2000 bombing of the U.S.S. Cole.
“Rallying for Reform: Criminal justice reform may be languishing at the federal level, but it’s becoming a reality in the states with bipartisan support,” December 2017, ABA Journal
The federal Department of Justice may be losing its taste for criminal justice reforms, but the states have picked up the mantle–and not just “blue” states. I also wrote this sidebar on an activist I encountered when reporting, who is a scientist by trade but discovered a love of legislation through her work on women’s recovery from prison.
“Age Appropriate: Fueled by new research and bipartisan interest in criminal justice reform, states are raising the age for adult prosecution back to 18,” February 2017, ABA Journal
For this feature, I had the pleasure of talking to a brain scientist as well as lawyers and criminal justice professionals. A sidebar deals with the practice of shackling juveniles.
“The Gideon Revolution: Starved of money for too long, public defender offices are suing—and starting to win,” January 2017, ABA Journal
This story is not just about the horrifying but routine underfunding of indigent defense, which is an open secret in legal circles. It’s also about the evolution of the legal arguments public defenders are using to challenge that underfunding.
“Are private education programs for shoplifters a second chance or extortion?” June 2016, ABA Journal
Private programs offered to retailers offer to deal with shoplifters through restorative justice, a sort of mediation for criminal situations that echoes some American Indian justice traditions. But people who’ve been through those programs say it’s a lot more about milking them for whatever money they can pay.
“Bail’s Failings: Court systems rethink the use of financial bail, which some say penalizes the poor” April 2016, ABA Journal
Financial bail—money bail, bond—conditions freedom on ability to pay. This article looks at a then-growing movement arguing that that’s a bad system that exploits the poor.
“Cities get mired in civil rights disputes in trying to deal with growing homeless populations” November 2014, ABA Journal
This feature story on laws addressing homelessness stems from the 2014 9th U.S. Circuit Court of Appeals decision in Desertrain v. City of Los Angeles, which said cities can’t make it a crime to sleep in cars. The article goes into case law on other things cities can and cannot do, but also into the difficulties of contending with addiction, poverty, public pressure, religious institutions’ rights and the many other ingredients that makes homelessness so hard to solve.
“California begins to release prisoners after reforming its three-strikes law,” December 2013, ABA Journal
Here in California, voters in the 1990s adopted a “three strikes and you’re out” law intended to deal with people who repeatedly commit serious or violent crimes. People with two serious or violent prior felonies were eligible for 25 to life after a third felony of any kind. This became less popular after reports started surfacing of people sentenced to prison for life for things like petty theft or drug possession. The U.S. Supreme Court rejected an Eighth Amendment challenge to the law, but in the fall of 2012, Californians voted to end life sentences for non-serious, non-violent third felonies. We also voted to let lifers petition for resentencing if they would not now qualify for a life sentence. This article is about the long, slow process of releasing people in LA County, which has by far the most petitioners and a special system set up to handle it.
“Ex-offenders face tens of thousands of legal restrictions, bias and limits on their rights,” June 2013, ABA Journal
The collateral consequences of criminal conviction are all of the restrictions that people convicted of crimes face. This could be restrictions on a convicted embezzler’s ability to work as an accountant, or broader restrictions on things like ex-offenders’ ability to live in public housing. The ABA in 2013 created a searchable database for practitioners, and this article discusses that effort among others.
“Pricing Amy: Should Those Who Download Child Pornography Pay the Victims?,” September 2012, ABA Journal
This feature story for the American Bar Association’s magazine looks at a growing number of cases in which young women whose childhood sexual abuse was photographed or recorded claim financial compensation from people who downloaded those images. The Crime Victims Rights Act authorizes payments to victims — but the article discusses whether these young women are victims of the downloaders, or only of their original abusers, and whether this is a good direction for the law to take us.
I am honored to say that this article took a silver award (second place) in the Solo Author Feature category of the 2013 Northeast regional awards of the American Society of Business Publication Editors. It was also a finalist for the 2012 Lisagor Awards granted by the Chicago Headline Society.
Civil Rights and Consumer Law
“Can colleges enforce rules designed to prevent coronavirus spread?,” July 2020, Education Dive
Over the summer of 2020, many universities and colleges made plans to reopen for fall that included requirements for everyone on campus to take health measures like wearing masks, social distancing and getting flu shots. But how were they going to enforce those rules in a world where mask-wearing is politicized and undergraduates still love to socialize? This article takes a look at what strategies the schools are using.
“Will lawsuits for tuition refunds succeed? It depends, experts say,” May 2020, EducationDive
In March 2020, students and parents started suing higher education institutions, arguing that online classes were not what they were promised when they paid tuition for the spring semester, and therefore they should get partial refunds. This article looks at the chances of success in those cases, which continued to be filed several times a day going into May.
“Pelvic exams performed without patients’ permission spur new legislation,” September 2019, ABA Journal
Did you know that there is a practice at some teaching hospitals of using unconscious women’s bodies to teach students to do pelvic exams? These days, it’s out of fashion and mainly used with women who need the exams in support of a procedure, but there are exceptions.
“Dismal Grades: Plaintiffs seeking more school funding are using states’ own performance requirements to win,” April 2019, ABA Journal
Parents and education groups are using states’ own educational standards to win school funding lawsuits that previously were going nowhere.
“Shredded Heat: California relaxes one of the nation’s most restrictive laws on police personnel records,” March 2019, ABA Journal
Up until January, California had one of the most protective laws in the country about police personnel data–so protective that even prosecutors didn’t know when they might be ambushed by a defense argument that the arresting officer was a “bad cop.” This article is about a new law shining some light into those records.
“Abuses revealed of watchdog public-records laws,” March 2018, ABA Journal
Public records laws are a gift to the public–but they can be abused. States that have had enough are considering ways to reform their laws that balance the public’s right to know with preventing misuses.
“Lawyers look for secular solutions to the Orthodox Jewish divorce problem,” August 2014, ABA Journal
Under Jewish law, only the husband has the right to grant his wife a religious divorce. The Reform community largely doesn’t mind if a divorce is not religious and the Conservative community has gotten around this by inserting a clause into the marriage contract, but in Orthodox Jewish circles, wives need these documents in order to move on and enter into religiously valid second marriages. If they remarry anyway, their children are considered bastards (mamzerim) and they may be rejected from the religious communities where they’ve lived their whole lives. This enables men who want to control or punish their wives, who are called agunot—”chained women”—in Hebrew. The situation is bad enough that some religious Jews are looking to secular law for help.
“Generic drugs leave a bad taste for patients filing tort suits,” February 2014, ABA Journal
After the Supreme Court banned the most common type of prescription drug tort (failure to warn), trial lawyers — and the people they represent, who are sometimes severely disabled — have been looking for creative ways to stay in court. This article talks about an unusual victory for a theory called “innovator liability,” in which the name-brand drug maker, as author of the labeling information on the generic, is held liable for failure to warn about injuries caused by the generic.
“Victims are taking on ‘revenge porn’ websites for posting photos they didn’t consent to,” November 2013, ABA Journal
“Revenge porn” or “involuntary porn” is a creature of the Internet age — the practice of posting naughty photos of someone else online without that person’s consent. Sometimes it’s done to hurt a former lover, but other cases may involve hacking or false personal ads, with the goal of driving up traffic to a website — and thus ad revenue — or even extorting money in exchange for having the pictures taken down. Many of its victims are surprised to learn that it’s perfectly legal in most states — and even when it’s not, it’s hard to get police officers interested. And when they turn to the civil courts, there are roadblocks including the financial cost, locating the defendant, and complying with intellectual property and tort laws not designed for this situation.
“Military lawyers confront changes as sexual assault becomes big news,” September 2013, ABA Journal
Sexual assault in the military was big news in 2013, thanks to a few high-profile cases, an Oscar-nominated documentary and a Defense Department-mandated series of reports on the subject. As a result, Congress and the DoD have considered and implemented a variety of changes to the military justice system–including some that radically change the jobs of judge advocates, the U.S. military’s lawyer corps. This article is about some of those changes and how it affects JAs’ jobs.
“A Freelancer’s Legal Primer,” December 2007, The Writer magazine
A Freelance Success column with tips for writers on following copyright law and avoiding bad contracts.
Two reluctant entrepreneurs tackle challenge of copyright duration,” May 2016, ABA Journal
This feature is about the Durationator, a tool for figuring out copyright duration under a legal regime that depends very much on the work’s publication date.
“Can patent laws halt the reselling of used ink cartridges? Federal Circuit to consider,” February 2016, ABA Journal
This dispute centered around whether you can reuse something you bought and own. In a copyright context, Kirtsaeng says yes. But patents aren’t copyrights!
“Patent holders allege financial companies are misusing new post-grant review process for profit,” December 2015, ABA Journal
This is about ‘reverse patent trolls,’ who sue not to assert worthless patents but to invalidate other people’s patents.
“‘Raging Bull decision could rouse patent holders to sue decades after alleged infringement,” September 2015, ABA Journal
This is about whether the Supreme Court would, or should, import a copyright decision into patent law. It’s also the only thing I’ve ever written about adult diapers.
“Is Sherlock ‘complete’? 7th Circuit will consider when literary characters are free from copyright,” June 2014, ABA Journal
The administrator of Sir Arthur Conan Doyle’s estate is assertive about protecting the estate’s copyrights, and argued in this case that because some of those copyrights are from after a change in law in the 1920s, all of the material is copyrighted.
“Indian Boundaries: How a rural murder case could return nearly half the state of Oklahoma to tribal control,” September 2018, ABA Journal
This midsized piece is about the case that went to the U.S. Supreme Court as Carpenter v. Murphy, concerning whether Congress ever officially canceled its treaty giving land to the Muscogee (Creek) Nation of Oklahoma. The Supreme Court retained the case for its 2019-2020 session.
“Lawsuits dispute whether the Indian Child Welfare Act is in the best interests of children,” October 2016, ABA Journal
This feature discusses the series of lawsuits challenging the constitutionality of the Indian Child Welfare Act, a federal law that requires courts to take extra steps before removing a Native child from his or her home. Defenders of ICWA, including many tribal communities, say those practices are child welfare best practices anyway; the conservative movement sees them as both racist and contrary to children’s best interests.
“South Dakota class action highlights violations of the Indian Child Welfare Act,” May 2015, ABA Journal
The Indian Child Welfare Act requires states to add certain protections when they want to remove children who are or could be members of federally recognized tribes from their homes. South Dakota was sued for failing to follow those procedures.
“Indian tribes are retaking jurisdiction over domestic violence on their own land,” April 2015, ABA Journal
This is a feature on the then-new ability of certain federally recognized tribes to prosecute domestic violence that occurs on their land. They haven’t had that authority for more than a century, and because federal prosecutors often turn down those cases as too small, the result was that certain crimes just didn’t get prosecuted. The results for women, largely women of color with limited financial means, were and are bad.
“American Indians challenging eagle feather rules get a boost from Hobby Lobby ruling,” January 2015, ABA Journal
Bald and golden eagles are federally protected, both as our national symbol and as endangered species. But their feathers are also important to some indigenous religions. The Hobby Lobby ruling created case law that was more favorable to religion, and those practitioners saw an opportunity.
Law Practice and Legal Community
“The job is killing them: Family lawyers experience threats, violence,” September 2018, ABA Journal
This feature story is an attempt at a data story, based on a Utah lawyer’s research into violence against lawyers. We were unable to include all the data visualizations I made, but here is state-by-state data and here is a look at threats for all the states studied.
“Firms provide pro bono assistance to Kansas City communities,” September 2018, ABA Journal
This is a short front of book piece on an innovative legal aid program in western Missouri, where lawyers adopt a struggling neighborhood and act as a part-time general counsel to community leaders.
“Storm Troopers: Legal community meets relief challenges after hurricanes Harvey and Irma,” February 2018, ABA Journal
This magazine cover story focuses on the legal community’s response to Hurricanes Harvey and Irma, and was part of a package of hurricane stories.
“Paper Terrorists: ‘Sovereign citizens’ plaster courts with bogus legal filings–and some turn to violence,” May 2014, ABA Journal
This feature is about sovereign citizens, a group of people who believe a group of conspiracy theories that affect how they interact with governments, especially the courts. Oddly, it’s one of the most viewed articles I’ve ever written.
“The Dream Bar: Some Children Illegally Living in the United States Grow Up to Want to Be Attorneys,” January 2013, ABA Journal
This feature for the ABA Journal looks at the growing number of young people who were brought to the United States illegally as children, grew up here, and now want to be attorneys. Because the attorney admissions process is different from other state licensing, and because ethics is a part of every bar admission, undocumented status would be an issue even without the highly controversial political climate surrounding it. The story looks at the politics and legal minutiae of bar admissions for such young adults, including past cases, “character” requirements for bar admissions and how immigration law plays in.
“Milking It: Raw Milk Advocates Lose the Battle But Win the War,” July 2012, ABA Journal
The federal government has strongly advised against unpasteurized “raw” dairy products for nearly a century and banned it in interstate commerce for decades. But states have a patchwork of different regulations, and advocates of raw milk, who believe it has health and taste benefits that outweigh any risks, have taken the issue to court.
“Profiting for Good: New Corp Structure Helps Nonprofits Deliver Benefits,” January 2012, ABA Journal
A few states have adopted a new corporate structure that combines the social-good features of a nonprofit with an opportunity to make a profit. Benefit corporations are for-profit corporations just like any other, but their structure allows them to avoid investor lawsuits when they make the less profitable choice in the name of a higher mission.
“Righting Injustices: ABA Medal recipient Dale Minami built a career around inclusion and civil rights for Asian Americans,” September 2019, ABA Journal
Dale Minami was a trailblazer for Asian American lawyers in many ways–he was among the first Asian Americans to become a prominent attorney, has balanced civil rights work with paying the bills throughout his career, and has been active in promoting Asian American interests both inside and outside the law. To mark his receipt of the ABA Medal in the summer of 2019, I wrote this profile that tried to pay homage to all of those roles.
“No Summer Soldier: When things go wrong, immigrants serving in the military look to Margaret Stock,” January 2019, ABA Journal
This is a profile that’s part of the Members Who Inspire series, highlighting ABA members doing interesting and worthwhile work. Stock balanced an Army Reserves career with a legal career, is a MacArthur “genius grant” alum and is now attempting to help the foreign-born soldiers who are suffering because the MAVNI program–which she developed–was canceled.
“Who is William Barr, Trump’s pick to replace Sessions as AG?,” December 2018, ABA Journal
All about Attorney General William Barr, written with research shortly after his nomination was announced.
“In law and music, surmounting new challenges has defined Paula Boggs’ career,” July 2016, ABA Journal
This is another Your ABA profile. Paula Boggs has been an Army paratrooper, a Pentagon aide, a BigLaw attorney, general counsel of Starbucks, a musician, a new mom of a teenager and a presidential campaign surrogate. Taking a position in ABA leadership was surely easy by comparison.
“Meet the father of the landmark lawsuit that secured basic rights for immigrant minors,” February 2016, ABA Journal
This is a profile of Carlos Holguín of the Center for Human Rights and Constitutional Law here in LA. He was a major force behind Flores v. Meese, the case that in 1997 became the Flores settlement. That settlement is one of the few, and perhaps the most thorough, documents outlining the civil rights of minors held by U.S. immigration authorities.
“Mueller’s report is in; what happens now?,” March 2019, ABA Journal
All the potential legal actions related to the Mueller Report.
“Can Trump legally use emergency powers to build a border wall? Experts weigh in,” February 2019, ABA Journal
This is about to what extent the president can legally divert money to build a border wall, as well as some of the likely avenues for a legal challenge.
“Was Trump’s appointment of acting AG Whitaker within the law?,” November 2018, ABA Journal
This explainer discusses the Federal Vacancies Reform Act and the extent to which its use to appoint Matthew Whitaker as Acting AG could violate the Constitution’s Appointments Clause.