Category: Constitution

Property Owners Get a New Legal Weapon

ROBERT BRIDGES, clinical professor of finance and business economics, USC’s Marshall School of Business

This op-ed originally appeared at Forbes on July 2.

Nearly unnoticed among the marquee decisions by this year’s Supreme Court session is Koontz v. St. John’s Water Management District. The decision granted the plaintiff the right to sue a governmental agency that required a payment – or ‘exaction’ – for public facilities miles away from his property as a contingency for approval of a building permit.

The headlines the morning after the decision heralded the ‘bolstering of property rights,’ but it’s doubly ironic that the integrity of rights in real property have been so badly eroded that it would take an act by the highest court of the land to simply grant the right of an individual to challenge a clearly confiscatory act, and that other forms of exactions – unforced, implied, or provided voluntarily – are an unfortunate but normal part of today’s real estate development process.

How to Escape the Debt Ceiling Limit

EDWARD KLEINBARD, professor of law, USC’s Gould School of Law.

This op-ed originally appeared in the New York Times on Jan. 10.

The fiscal cliff may have been avoided, but an even higher-stakes political standoff — this time, over the federal debt ceiling — is just around the bend.

Congressional Republicans have said they will demand immense cuts to popular government programs in exchange for agreeing to raise the nation’s authorized borrowing limit of $16.4 trillion. The Treasury Department briefly nudged against that ceiling on Dec. 31, but used “extraordinary” financial measures to buy more time. If nothing is done, the government will soon be unable to pay all of its bills in a timely manner. This unprecedented event would profoundly damage the government’s credit rating and send the financial system into a tailspin.

How Lawyers Undermine Access to Justice

GILLIAN HADFIELD, professor of law and economics, USC’s Gould School of Law.

This op-ed originally appeared at CNN on Nov. 25.

In our country, lawyers and judges regulate their own markets. The upshot is that getting legal help is enormously expensive and out of reach for the vast majority of Americans. Anyone faced with a contract dispute, family crisis, foreclosure or eviction must pay a lawyer with a JD degree to provide service one-on-one in the same way lawyers have done business for hundreds of years.

Increasingly, the only “persons” with access to legal help are “artificial persons” — corporations, organizations and governments. No wonder that in a 2010 New York study, it was shown 95% of people in housing court are unrepresented. The same is true in consumer credit and child support cases; 44% of people in foreclosures are representing themselves—against a well-represented bank, no small number of whom engaged in robo-signing and sued people based on faulty information.

Holding the L.A. District Attorney to a Higher Standard

DAN SIMON, professor of law and psychology, USC’s Gould School of Law.

This op-ed originally appeared in the Los Angeles Daily Journal.

To its credit, the Los Angeles district attorney’s office did not ignore the cry for freedom from a condemned inmate. As a result, convicted murderer John Edward Smith is a free man after a DA investigation learned that the sole prosecution witness had falsely identified Smith as the perpetrator in a 1993 drive-by shooting. The accuser now claims that he pointed the finger at Smith only after being misled and pressured by Los Angeles police detectives.

Smith’s ordeal demonstrates how our criminal justice process can go wrong, and it highlights why fixing the process should be at the center of the race between Jacky Lacey and Alan Jackson for office of the DA.

Los Angeles County has had its fair share of faulty criminal prosecutions. Since 1989, 26 Angelinos have been declared factually innocent after having been convicted and sentenced to prison. That’s about double the rate of exonerations in the rest of California, and it doesn’t include more than 100 false convictions produced by the Rampart scandal in the late 1990s. The true number of false convictions is no doubt much greater. Smith was exonerated only because his new lawyer managed to locate his accuser, and he was eager to recant. Likewise, Brian Banks of Long Beach was exonerated months ago of his conviction for rape only because his accuser “friended” him on Facebook, agreed to meet with him, and recanted her accusation on camera.

How to Avoid False Convictions

DAN SIMON, professor of law, USC Gould School of Law.

This op-ed originally appeared at the Huffington Post.

Carlos DeLuna and Cameron Todd Willingham probably did not commit the crimes for which they were put to death by the state of Texas. In-depth inquiries into their convictions revealed bungled investigations, poor recordkeeping, mistaken eyewitness testimony, spurious forensic testimony and misconduct by law enforcement personnel, among other

Obama’s Endless Battle

MARY L. DUDZIAK, professor of law, history and political science at USC’s Gould School of Law:

This article originally appeared in the New York Times.

“The defense secretary, Leon E. Panetta, recently announced that America hoped to end its combat mission in Afghanistan in 2013 as it did in Iraq last year. Yet at Guantánamo Bay and elsewhere, the United States continues to hold enemy detainees “for the duration of hostilities.”

Indeed, the “ending” of combat in Afghanistan and Iraq appears to have no consequences for the ending of detention. Because the end of a war is traditionally thought to be the moment when a president’s war powers begin to ebb, bringing combat to a close in Afghanistan and Iraq should lead to a reduction in executive power — including the legitimate basis for detaining the enemy.

But there is a disconnect today between the wars that are ending and the “war” that is used to

Mixing Constitutional Apples and Oranges

REBECCA L. BROWN, professor of constitutional law in USC’s Gould School of Law:

This op-ed originally appeared The Times-Picayune.

“The Supreme Court will soon consider the Affordable Care Act. Some argue that the challenge to the individual mandate is about federalism — the allocation of power between federal and state governments in our republic. But a close look at the Constitution shows that this is false.

The Constitution gives Congress power “to regulate commerce … among the several States.” Anything outside this description falls to the states to govern. All prior Commerce Clause challenges to federal laws have claimed that the matter was not “commerce” or not