The Legal Context for Public Policy and Administration

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02/20/2017

The Legal Context for Public Policy and Administration

PADM-GP 2109 - 001 (6394) (4 pts.)

NYU Wagner School, Spring 2017

Course Meetings: Thurs. 6:45-8:25 PM

GCASL 238 Thompson St

Room 375

Prof. Nicole A. Gordon Nicole.gordon@nyu.edu

Office Hours: by appointment (preferably 1 hour before or after class)

The law is central to the making of public policy at every level of government and in the federal

and state (and local) systems. This course looks specifically at how the law in its various forms

shapes the administration of government agencies and the work of not-for-profit (and for-profit)

entities that provide direct services or that advocate policy. Knowledge of legal frameworks and

processes is essential to undertaking these activities effectively.

This course will equip students with an understanding of the multiple sources of law and how

those sources are interpreted and applied in the context of public policy and administration. The

course will use case studies to demonstrate how those sources of law--and the governmental and

non-governmental policy actors who deploy them--operate to support or limit policy and

practice. Students will gain a clear understanding of the law’s role in influencing their work as

decision-makers in the public sector.

Major course themes include: 1) how the law and the way in which it is interpreted affect,

support, and limit public policy and practice options; 2) conflict between legal precedent and

official actions; and 3) how government or not-for-profit entities successfully navigate legal

frameworks. These issues will be treated from theoretical and practical viewpoints and will be

the basis for developing concrete skills in research, writing, and developing and evaluating

strategy in a legal context.

Each class will cover a general topic area and at least one specific sub-topic as a case study that

will involve consideration of one or more sources of law. Substantive law topics such as

administrative law, employment law, and ethics/lobbying will be integrated into the course

within the context of the above themes. Because topic areas and cases cannot be fully treated in

isolation, the class will revisit several issues and cases throughout the term. Some classes will

feature invited speakers who are or were involved with cases under study.

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Course Requirements:

In –class

Attendance: Attendance at all classes, given our limited time together, is essential: if you must

be absent, let me know in advance.

No Texting/E-Mailing, etc. in Class: self-explanatory.

Class participation

Class participation is important to your performance in the class. Please arrive in class prepared

to discuss the questions set forth in the class summaries, the readings, case studies, and other pre-

class assignments as indicated. You should also do some research in advance of class into the

case studies that are newsworthy for contemporary media coverage. And “google” outside

speakers beforehand so you know more precisely whom we are talking to.

Graded Assignments and Papers

You need to submit 2 short papers, one of which will also be the subject of an oral report

concerning a hearing you have attended. The second will have two options to choose from, and

there will be one final [paper/exam] for the class. Expectations for papers are detailed below.

Due dates will be discussed in class.

1. Assignment: attend a hearing, write a short paper on it, and present to the class (Paper

due date: Class # 7, March 9 or Class# 8, March 23 ; Oral reports to be presented:

beginning Class # 7.)

Attend and observe an administrative or legislative hearing of your choice.

You may attend the proceeding/hearing at any time during the course, but you will be

asked to make your oral report for the class starting at Class #7.

Be prepared to describe in 5-7 minutes what you observed and to give your conclusions

about how this process is or is not useful for accomplishing sound policy or practice.

Summarize your findings and comment in a 2-3-page paper describing and commenting

on same. Give your view of how the policy/practice that is the subject of the hearing you

attend is good or not.

2. Short paper (Due date: Class # 6 (Option A), March 2 or Class # 10 (Option B), April 6

(we will discuss))

Option A: a 2-3 page opinion paper describing your advice to a mayor governor, or other

government official concerning a subject of controversy, in the capacity as a Corporation

Counsel advising the Mayor of the City of New York.

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The paper should address the following:

1) stating what the issue is

2) stating what the facts and related law are

3) giving your advice

4) stating the reasons why you have come to the conclusion you have reached, including

describing the considerations on both sides of the issue and clear reasoning why your

conclusion is better than the opposite conclusion, whatever that might be.

Option B: a 2-3-page paper on “inherently governmental functions”

Based upon the CRS Report to Congress and other research you may undertake (see assigned

material for Class #14), write a 2-3 page paper as an advisor to your Congressperson

commenting on the reach of the concept of “Inherently Governmental Functions” described at p.

32 of the CRS Report. Your paper should conclude with any legislation on this topic you would

recommend. Alternatively you may choose any topic from among the sub-topics described for

Class #14 at p. 17 of this syllabus and, based on your independent research, acting as an advisor

to a legislator, propose legislative restrictions or repeal of restrictions governing contracting with

private entities for government services.

This paper should address the following:

1) description of this terminology and its meaning and purpose

2) your thoughts, based upon a reading of the materials for Class # 14, for what changes in law,

policy, or practice you would recommend in the application of the concept of “inherently

governmental functions”.

3. Final – or Possibly Take Home Exam

You will have [26] hours starting from the time the exam is uploaded into NYU Classes.

The exam should be about six double-spaced pages.

We will discuss the schedule for the exam.

Overall instructions for papers

All papers should have your name, date, and the name or position held by the person you are

addressing.

All papers should cite any applicable Constitutional, statutory, and legislative history

provisions appropriately. In addition, if there is a conflict or gap in the law, you should

say whether and how that inconsistency or gap should be filled, including applicable

policy arguments on both sides of the issues.

Please be sure to present your thinking in clear, concise, precise, grammatical writing.

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What will count most is “critical thinking”, presenting a cogent case for what you argue,

giving due consideration to arguments that might be made in opposition to your point of

view, and clarity of writing.

Good grammar, spelling, proper use of pronouns, antecedents, and other requirements of

standard English writing are expected and points will be taken off for poor or unclear

writing.

Some classes have pre-assignments listed. Be sure to take notice of these assignments and

prepare for them. These assignments along with your contribution to the discussion on the

readings count towards your class participation grades.

Late Assignment Policy: Your short paper assignment is indicated on the syllabus below. Note

that papers are due by hand at the beginning of class or ONE HOUR before class starts for that

week, sent to me as a Word Document attachment (please maintain compatibility with Word

1997-2003 i.e., no “docx”). Extensions will be granted only in case of emergency, out of respect

to those who abide by deadlines despite equally hectic schedules. Late submissions without

extensions will be penalized as much as a half/grade per day (e.g., B+ to B).

Class grading

Grading is approximately as follows:

10% - class participation generally

20% - two short papers

20% - one short, oral presentation in class (considered with class participation)

60% - final exam

Course Readings: All readings will be posted on NYU Classes. I suggest you read the

documents in the order in which they appear on the syllabus. This may NOT correspond to

where they appear on NYU Classes in the resources/documents list for the class. You may also

find additional material on NYU Classes not listed on the syllabus. This additional material is not

required reading.

Students with disabilities: Any students requiring accommodations should be in contact with

me to make proper arrangements. Please be prepared to submit your documentation from the

NYU disabilities office regarding appropriate accommodations.

Class # 1, Jan. 26 Introduction to Sources of Law

What are the principal sources of law, how do they come into existence, and how are they

amended? What is the authority for these sources and what precedence does one source enjoy

over another? What are the basic rules of interpretation? What is the “common” law? How does

it overlap with or inform our understanding of statutory and constitutional sources? What is the

intersection between these sources of law and public policy and administration? Who makes

policy in a legal context? How do the three branches of government respond when legal

ambiguities leave policy resolution in doubt? When can/should the courts or administrative

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agencies intervene if constitutional and statutory sources of the law are unclear or silent? When

does legal process determine results? What does it mean to be results-oriented or process-

oriented?

We will begin exploring these questions, in part by examining the recent New York State case of

Governor Paterson’s appointment of Richard Ravitch as Lieutenant Governor as a starting point.

Sub topics: Understanding the multiple (public and private) sources of law and how they are

applied in situations implicating all three branches of government.

Readings:

1. “Sources of Law & Their Hierarchy” (from Burnham, Introduction to the Law and Legal

System, Chapt. II, pp.37-47)

2. New York State Constitution, Art. IV, sections 5, 6 and Art. XII

3. New York State Public Officers Law Sections 41, 42, 43 (listed on NYU Classes under

Classes ##2-3—for your reference)

4. Skelos, et al. v. Paterson, et al. (New York State Court of Appeals)

5. Richard Briffault, “Skelos v. Paterson: The Surprisingly Strong Case for the Governor’s

Surprising Power to Appoint a Lieutenant Governor”, 73 Alb. L. Rev. 675 (2010)

6. James A. Gardner, “New York's Inbred Judiciary: Pathologies of Nomination and

Appointment of Court of Appeals Judges” (May 10, 2010). 58 Buffalo Law Review 15 (2010)

(page 24 fn. 26 only)

Classes ## 2-3, Feb. 2, March 9 Constitutional Interpretation: Close Reading of the Text

The U.S. and State Constitutions are not comprehensive, and may not always be the last authority.

For example, both the U.S. and New York State Constitutions are ambiguous or silent on areas

relating to succession in the case of death or inability of the chief executive. How are we to read

and interpret these basic documents?

We will study how the challenging legal and practical problems of succession have been resolved

in crisis situations, in part through continued discussion of the Paterson-Ravitch appointment.

Sub-topic(s): Presidential (and Gubernatorial) Succession. How have ambiguous U.S. and New

York State constitutional provisions been interpreted? Is Ted Cruz a “natural born citizen of the

United States and therefore “qualified” under the U.S. Constitution to serve as President of the

United States?

Readings:

1. “Sources of Law & Their Hierarchy” (from Burnham, Introduction to the Law and Legal

System, Chapt. II, pp.54-61 and skim to top of 67)

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2. New York State Constitution, Art. IV, sections 5, 6 and Art. XII

3. New York State Public Officers Law Sections 41, 42, 43

4. John D. Feerick, The Twenty-Fifth Amendment: Its Complete History and Applications

(1992) at pp. 5-23

5. Draft of Article II as submitted to Committee on Style in 1788 and Draft of Article II as

submitted to the Convention by the Committee on Style

6. U.S. Constitution Art. II and Amendment XXV

7. Second Report of the Continuity of Government Commission, Presidential Succession (June

2009)

8. Fordham Law Presidential Succession Report 2012 (read Executive Summary only)

9. Art.1 and Art. II U.S. Constitution (excerpts)

10. OED Entry for “Natural Born Citizen” 1933

11. McManamon - (Cruz not eligible) Part II - most useful part, esp. about 1790 vs. 1795 statutes

12. Katyal & Clement (Cruz is eligible)

Pre-Class Assignment for Classes ## 2-3: Be prepared to discuss whether you agree with the

conclusion in Skelos v. Paterson (4-3 decision) as a matter of law and why and whether Ted Cruz

is eligible to serve as President of the United States. Class #2 will continue discussion from class

#1 and will focus on the New York State Constitution and the readings listed for class # 1. Class

#3 will focus on the U.S. Constitution. The reading list above for U.S. Constitutional subjects is

therefore more important for Class #3, but they are substantial, so you should consider beginning

to acquaint yourself with them beginning in the period before Class #2.

Confirmed Outside Speaker (March 9): Peter J. Kiernan, Counsel to former Gov. Paterson

Classes # 4-5, Feb. 16, 23 Legislative Sources, Conflicts in Statutory Interpretation, and the

Politics of Resolving Conflicts; Studies in Campaign Finance Reform

Statutes are interpreted through many avenues, such as by examining the plain language of the

text, the purpose of the statute, and legislative history. We will study a statute that generated

conflicting interpretations within New York City government over the lawful amount of public

funds due to candidates for public office after the City Charter was amended by adoption of a

Charter Revision ballot proposal.

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Sub topic(s): Did the New York City Charter of 1998 contemplate a $4-$1 or a $1-$1 public funds

match for contributions to candidates in the New York City Campaign Finance Program? How

was the conflict between the NYC Campaign Finance Board’s interpretation of the statute and

that of the Mayor’s office resolved? What are public policy arguments in favor of or against

public matching funds programs generally and with respect to particular forms of programs?

Readings:

1. Opinion of Attorney General Robert Abrams in letter to Edward I. Koch, re: power of NYC to

enact campaign finance legislation, Oct. 21, 1987

2. New York City Campaign Finance Board post-election report, “An Election Interrupted…”,

Sept. 2002 pp. 3-6

3. NYC Admin. Code Sections 3-701, et seq. (NOT required reading: available for your

reference as you read NYCCFB Advisory Opinion and other documents—see selected

sections, especially Section 3-703)

4. Charter Revision letter from NYC CFB (Aug. 1998)

5. NYCCFB Advisory Opinion re: 4-1 matching (Oct. 23 1998)

6. New York City Campaign Finance Board, Ballot Issues Voter Guide, November 3, 1998,

Section on Possible Ballot Proposal: Charter Revision Commission’s Proposal on Campaign

Finance Reform, pp. 14 & ff.

7. NYC Local Law No. 21 of 2001

8. New York Times and Daily News articles on 4-1 matching

9. Citizens United v. FEC, 558 U.S. 310 (2010) just headnotes (skim)

https://www.supremecourt.gov/opinions/09pdf/08-205.pdf

OR

Excerpts prepared by U. of Missouri Law School

http://law2.umkc.edu/faculty/projects/ftrials/conlaw/citizensunited2010.html

10. McCutcheon v. Federal Election Commission, posing the basic debate about quid quo pro vs.

access/influence (and issue of First Amendment preventing campaign finance reform)

https://www.supremecourt.gov/opinions/13pdf/12-536_e1pf.pdf

Syllabus (6 pp.)

Opinion of the Court, pp. 1-3, 7-9, 14-22, 35-36, 39-40

Concurring opinion (Thomas), all (5 pp.)

Dissenting Opinion (Breyer), pp. 1-14.

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11. L. Powell, The Influence of Campaign Contributions on Legislative

Policy http://www.cfinst.org/pdf/papers/02_Powell_Influence.pdf (skim)

12. Donor Diversity Through Public Matching Funds

Sundeep Iyer, Elisabeth Genn, Brendan Glavin, Michael J. Malbin

May 14, 2012

http://www.brennancenter.org/publication/donor-diversity-through-public-matching-funds (skim)

13. N. Gordon, “Options for Continued Reform of Money in Politics: Citizens United Is Not the

End” draft June, 2016 at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2775452

Read sections I at pp. 3-5, II at pp. 5-32 (skim), and IV at p. 37-40. To appear in Albany Law

Review, cite will be added when known.

14. “Governor: Effort to combat corruption is 'aggressive action'”,

David Klepper, Associated Press, August 24, 2016

http://www.washingtontimes.com/news/2016/aug/24/little-fanfare-for-latest-effort-to-combat-

albany-/

15. Fact Check: What the Supreme Court Got Wrong in its Money in Politics Decisions

Lawrence Norden, Iris Zhang

January 30, 2017

http://www.brennancenter.org/analysis/scotus-fact-check and

Five to Four

Lawrence Norden, Brent Ferguson, and Douglas Keith

https://www.brennancenter.org/sites/default/files/publications/Five_to_Four_Final.pdf

(skim)

16. Followthemoney.org Check your representative’s information on this website and find out

what you can about the influences of various special interests on that person.

17. Jane Mayer, “Dark Money –Introduction, pp. 1-23

Chapters 9-12 (pp. 236-332) (skim)

Pre-Class Assignment: Perform independent research (in addition to the readings) on the models

of public campaign finance programs: full, matching, hybrid and familiarize yourself with the

issues raised by the Supreme Court’s decisions in Citizens United v. FEC and McCutcheon v,

FEC with respect to public financing of campaigns and the constitutional rights of corporations.

Be prepared to give sources for the information you rely upon.

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Confirmed Outside Speaker (February 23): Lawrence Norden, Deputy Director of the Brennan

Center's Democracy Program

MARCH 2, NO CLASS (make-up is half hour extra on Feb. 2, Feb. 9, and Feb. 16) but please

submit paper on this day as applicable (Option A).

MARCH 9, CLASS #3 (See above)

March 16, NYU Closed

Class #6, March 23 Law, Politics, & Pragmatism: The Case of the Brooklyn Museum

Taxpayer money often goes to causes that are not supported by individual elected officials or by

members of the voting public. We will examine controversial cases in which conflicts over the

proper use of public money was at issue.

When New York City attempted to withdraw taxpayer funding from a respected museum that

mounted an art exhibit that some deemed offensive, a lawsuit ensued, and ultimately the matter

was resolved by a settlement. As we will study in detail, each side had arguably defensible

moral/political positions, but the law and policy bases for those positions were not as clear.

Sub-topic(s): The development of case law as distinct from statutory enactments.

Readings:

1. Photographs and articles on the “Sensation” exhibit

2. Philippe de Montebello NY Times op. ed. on this topic (“Making a Case for Bad Art”) (2001)

3. Brooklyn Institute of Arts and Sciences v. Rudolph W. Giuliani (You may skip pp. 14-20)

4. Briefs in the Brooklyn Institute case:

a) Brief of the City of New York pp. 1-16; [34-45]; 45-59

b) Brief of Brooklyn Institute of Arts and Sciences pp. 1-21, 40-56 [57-60], 61-63

Pre-Class Assignment: Paper #2 is due (if you choose Option A).

Confirmed Outside Speaker: Len Koerner, former Chief of Appeals Division, NYC Corporation

Counsel (argued the Brooklyn Institute case)

March 30 See Class #9

Class # 7, April 6 Executive and Agency Sources of Law

Public law relies heavily on agency rules and regulations, as well as practices. How are these

developed? What does “Notice and an Opportunity to Comment” on proposed rules require?

What discretion does an agency have in interpreting the laws it implements and what deference is

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owed to an agency’s interpretation? How “creative” can an agency be in establishing

administrative law—e.g., what is the difference between an agency’s mandate and its powers?

How can an agency make law outside of its rule-making authority? We will continue the study of

statutory interpretation by examining issues in health law, such as recent federal food safety

legislation, posting of calorie counts in restaurants, posting of cigarette warnings, or use of

environmental impact regulations as a means to address lead poisoning in children.

Sub-topic(s): The changing interpretation of adequate basis for asylum status under immigration

law in the case of female genital mutilation; Administrative Law

Readings:

1. Summary of cases related to asylum for victims of female genital mutilation (undated)

2. Asylum statute: Immigration and Nationality Act Section 241(b)(3)(A), 8 U.S.C. Section

1231(b)(3)(A) (2006)

3. Asylum regulation: 8 C.F.R. Section 1208.16(b)(A)(i)

4. Matter of Kasinga, BIA June 13, 1996

5. Matter of A.K. BIA, Sept. 5 2007

6. Matter of A-T BIA, Sept. 27 2007

7. Matter of Bah (Court of Appeals for the 2d Circuit), June 11, 1998

8. Matter of A-T, decided by Attorney General Mukasey, U.S. DOJ, Sept. 22, 2008

9. Equality Now, “Action Alert” April 29, 2010

10. Lisa M. Koenig and Archana Pyati, “Litigation in Landmark

Asylum Case Over Domestic Violence Resumes” New York Law Journal, June 24, 2009

Pre-Class Assignment: Paper #1 is due today or at next class. Beginning of oral reports on your

observations of hearings.

Class # 8, April 27 Review; Conflicts Among Sources of Law and Branches of

Government: What Takes Legal or Practical Precedence; Unilateral Action by the

Executive Branch

When does federal law take precedence over state law? Does statutory enactment always take

precedence over the common law? What happens when state and federal law conflict? What

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happens when the laws of different states conflict with each other? What powers do localities

have to act when federal or state law is contrary or silent? Possible issues for study are local anti-

smoking laws, conflicting state laws on marriage and medical marijuana, and Arizona’s anti-

immigration law.

Conflict among branches of government will also be re-visited from earlier class discussion,

including the question: What is the authority of the Executive in interpreting and carrying out the

law…and can the Executive decline to do so?

Sub-topic(s): Pre-emption; conflict over constitutionality of congressional line of succession to

the presidency; Power of NYC to enact Campaign Finance Program against backdrop of NY State

Constitution and statutes.

Readings:

1. Opinion of Attorney General Robert Abrams in letter to Edward I. Koch, re: power of

NYC to enact campaign finance legislation, Oct. 21, 1987

2. New York Municipal Home Rule Statute, Article 2, Section 10.1.a.(1)-(12), Section

10.1.c, and Section 11 (just skim these sections to get a sense of the law).

3. D. Katz, R. Magee, “New York City’s Campaign Finance Law is Unconstitutional”

(Albany Government Law Review Fireplace, March 16, 2009 (read ONLY first 10 paras.

And last 5 paras.)

4. McDonald v. NYCCFB (JUST SKIM Lightly)

5. President Ford’s Speech and Proclamation Pardoning Pres. Nixon, Sept. 8, 1974

6. U.S. Constitution Article II, section 2

7. Obama Executive Order Closing Guantanamo, January 22, 2009

8. Obama Executive Order March 10, 2011

9. Obama Memorandum March 4, 2009

10. Obama Executive Order Sept. 7 2015 re Federal Contractors and Paid Sick Leave

11. House of Representatives lawsuit vs. Executive re: Executive Orders Memorandum for the

Hon. Abner J. Mikva, Counsel to the President, on “Presidential Authority to Decline to

Execute Unconstitutional Statutes”, November 2, 1994

12. CRS Report for Congress “Executive Orders and Proclamations” March 9, 1999 pp. 2-5

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13. Kelley & Marshall, “Going it Alone: The Politics of Signing Statements from Reagan to

Bush II” (Social Science Quarterly, 2010) (just pp.169-174 and 183-185)

14. Clinton signing statement 1993

http://www.presidency.ucsb.edu/ws/index.php?pid=46101 (also in “Resources”)

Pre-Class Assignment:Individual Research for Class Discussion: check one of the following

briefly:

a) What constitutional and policy arguments are there for and against President Ford’s pardon of

former President Nixon?

b) To what extent has President Obama’s Executive Order closing Guantanamo been

implemented and to the extent not, why not?

c) What occasioned the November 2 1994 memorandum on Presidential Authority to Decline to

Execute Unconstitutional Statutes?

Paper #1 is due today if it was not submitted in the previous class. Continuation of oral reports.

Class # 9, March 30 How Should the Interaction of the Private and Not-For-Profit Sectors

with Government be Regulated?

What restrictions apply when private and not-for-profit actors lobby government officials? When

these actors give gifts to government employees, or when they make campaign contributions to

elected officials? When former government employees appear before their former agencies?

When private sector and not-for-profit employees join government? What kinds of rules apply to

government employees that do not apply to not-for-profit or private sector employees? We will

examine the legal and policy values that apply in these circumstances.

Sub-topic(s): Lobbying laws

Readings:

1. ABA Task Force Report on “Lobbying Law in the Spotlight: Challenges and Proposed

Improvements” (2011) (skim) But read pp. 1-6.

2. U.S. Constitution, First Amendment (“Petition for Redress of Grievances”) (see NYU

Classes)

3. “Lobbying and the Petition Clause”, Maggie McKinley, 68 Stanford L. Rev. 1131 (2016)

Harvard Public Law Working Paper no. 16-21; April 11, 2016

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2762012 OPTIONAL

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4. “Principles of the Law, Government Ethics” American Law Institute Chapter 4, The

Election-Related Activities of Public Servants (skim but read pp. 1-3 and 60-63) (see

NYU Classes)

5. [* James B. Jacobs, et al., “Pension Forfeiture—A Problematic Sanction for Public

Corruption”, American Criminal Law Review (Fall, 1997) ONLY IF YOU ARE

INTERESTED]

6. Ethics: Plain Language Guide, NYC Conflicts of Interest Board —Study Contents Page

and SKIM the rest

7. NYCCFB -website—read on “Doing Business”/Contribution Cards

8. Bopp Press Release—optional

9. 2014 NYAA document seminar—optional

Pre-class assignment: Find the origin of the word “lobbyist”. Continued oral reports on hearings.

Confirmed Outside Speaker: James Capalino, CEO of Capalino + Company, top lobbying firm in

New York City, with a background in senior management roles in NYC government, public

relations, real estate, and construction management.

April 13 See Class # 11 below

Class # 10, April 20, Legal Process: Litigation and Administrative Procedures

What does the typical legal process look like? How do agencies get brought into court? What

happens when they are: who represents them and what responsibilities do they have to provide

information (discovery, FOIA, personal testimony)? What immunities do government officials

enjoy? How do class actions change public policy? What are administrative adjudicative

processes like and what issues do they determine? How much must administrative processes

resemble those required for the courts (U.S. Constitutional question)? What judicial review is

available for administrative actions? What role is there for alternative dispute resolution?

Readings:

1. Charles Dickens, Bleak House, Chapter 1

2. New York State Overview of Administrative Law Proceedings (skip sections on Article 1,

Article 2, and Article 4) (Hearing Officers Manual)

3. Mathews v. Eldridge, 424 U.S. 319 (1976) (Supreme Court case on administrative procedures

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for termination of social security disability benefits to comport with due process) (read only

Parts I and IIIA of Powell majority opinion; skim parts IIIC, D and E)

4. 42 U.S. C. Section 1983

Pre-class Assignment: Continued reports on hearings. Paper #2 (Option B) is due.

Class # 11, April 13 Not-For-Profit Advocacy (1): How do you Choose your Forum (or does

it Choose you?)

Not-for-profits have options to accomplish policy change through any of the three branches of

government. How do they decide what avenue to pursue? Can they operate strategically or must

they operate opportunistically?

Sub-topic(s): Role of the public, press, social media

Readings:

1. Dorchen A. Leidholdt, Testimony of Sanctuary for Families before the NewYork City

Council on Combating Sex Trafficking in NYC, October 19, 2011

2. Lawyer’s Manual on Human Trafficking, 2011, http://www.nycourts.gov/ip//LMHT.pdf

a. “What We Know….” Chapt. 1, pp.1-13

b. “Defining and Identifying Human Trafficking”, Chapt. 2, pp. 27-30, 36, 39-40

c. “New York State’s Human Trafficking Law”, Chapt. 3, pp. 51-59

d. “Immigration Remedies for Victims of Human Trafficking, Chapt.14, Pp. 222-223

3. Trafficking Petition: Urge NYPD Commissioner Raymond Kelly to Act Swiftly to End

Demand in NYC | Change.org, http://www.change.org/petitions/urge-nypd-commissioner-

raymond-kelly-to-act-swiftly-to-end-demand-in-nyc

4. Nicholas D. Kristoff, “Where Pimps Peddle Their Goods”, NY Times, March 17, 2012

New York Times, April 6, 2012, "In Spain, Women Enslaved by a Boom in Brothel Tourism",

Suzanne Daley

5. “Is Prostitution Just Another Job?”, by Mac McClelland New York Magazine March 2016

Pre-Class Assignment: Choose a change in policy that was effected through the executive (or

administrative agency) route, by enactment of a law by the legislature, or through litigation.

Research the history of the change and be prepared in class to present on the substance and

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background of the change and the role of the not-for-profit advocacy groups in achieving it.

Confirmed Outside Speaker: Dorchen A. Leidholdt, Director, Sanctuary for Families’ Center for

Battered Women’s Legal Services

April 20, see Class # 10 above

April 27, see Class # 8 above

Classes ## 12-13, May 4 Not-for-Profit Advocacy (2): Competing Strategies for Success in a

Legal/Litigation Context

Advocates must decide on the most effective legal strategy when they want to challenge

government action. In the death penalty arena, advocates have attempted to work state-by-state on

repeal of local statutes; tried to challenge protocols for executions (such as lethal injection); and

tried to persuade the U.S. Supreme Court that the death penalty is “cruel and unusual”

punishment. We will study these approaches as well as approaches in the arena of punishment of

juveniles to determine which strategies have been most effective and why.

Sub-topic(s): Juvenile Life Without Parole, lethal injection

Readings:

1. EJI report: Cruel and Unusual: Sentencing 13- and 14-Year-Old Children to Die in Prison

2. Roper v. Simmons (U.S. Supreme Court case on sentence of death as applied to juvenile

death penalty) (2008) (carefully read official court syllabus of opinion (pp.1-4); opinion of

the Court, pp. 6-25 (skim part IV at pp. 21-end); look at appendices; read Stevens

concurrence p. 1; skim O’Connor dissent at part D, pp. 18-19; and skim Scalia dissent at

part III, pp. 16-23.)

3. Graham v. Florida (U.S. Supreme Court case on sentence of life without parole as

applied to juveniles) (2009) (carefully read official court syllabus of opinion, pp. 1-4; read

opinion of the Court at pp. 1-7 (optional –gives the facts of the case), 10-24, skim pp. 25-

28, skim pp. 29-31, look at appendices, read Stevens concurrence, p. 1, and Thomas dissent

at A, pp. 10-14 and skim n.11 at p. 19).

4. Miller v. Alabama (U.S. Supreme Court case on Juvenile Life Without Parole) (2012) (just

headnotes)

5. Baze v. Rees (U.S. Supreme Court death-penalty case on lethal injection) (2007) (carefully

read official court syllabus of opinion, pp. 1-5; Part B of opinion of the Court at pp.5-7 and

fn. 2 at pp. 12-13; parts A and B at pp. 15-22; Alito concurrence at pp. 2-5; Stevens

concurrence at pp.1-4 and last paragraph of the concurrence beginning at bottom of p. 17.

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If you are interested, there is a detailed history of forms of execution in Europe in the

Thomas concurrence and, again if you are interested, the Ginsburg dissent includes a

comparison of Kentucky’s protocol with that of other states.

6. Death Penalty Information website (see especially “Fact Sheet” tab)

7. Berkeley Death Penalty Clinic website (see particularly material on lethal injection)

8. A. Liptak and L.Petak, "Juvenile Killers in Jail for Life Seek a Reprieve", New York

Times, April 21, 2011, A13 (optional)

9. Scott Hechinger, “Juvenile Life Without Parole: An Antidote to Congress’ One-Way

Criminal Law Ratchet?”, 35 NYU Law and Social Change (2011) (optional)

10. NY Times, “Juveniles Facing Lifelong Terms Despite Rulings, Erik Eckholm, January 19,

2014 (optional)

11. Glossip v. Gross, U.S. Supreme Court case on use of particular drug for lethal injection

(June 29, 2015) (headnotes)

Classes # 13, May 4 (cont.) Not-for-Profit Advocacy (3) and Government Policy in a Global

Context: International Law, Comparative Law, and U.S. Reliance on Foreign Law/Practice

International law, comparative law, and U.S. reliance on foreign law and foreign practice all

involve reference to non-U.S. sources of law but are entirely distinct areas. We will study the

distinctions between them, the areas in which U.S. entities must take international and foreign law

into account, and the limits (to date) of influence of international and foreign source materials on

U.S. legal thinking.

Sub-topic(s): U.N./ human rights/ success of “international law” evolution in commercial vs.

criminal law context; use of foreign law in U.S. Supreme Court death penalty cases.

Readings:

1. Roper v. Simmons (studied in previous week, discusses the use of foreign law for guidance in

U.S. decisions. Re-read Opinion of the Court at pp. 21-end referring to non-U.S. law; O’Connor

dissent at part D, pp. 18-19; and Scalia dissent at part III, pp. 16-23.)

2. Graham v. Florida (studied in previous week, discusses sentence of life without parole as

applied to juveniles) (read Opinion of the Court at pp. 29-31 and dissenting Opinion of Justice

Thomas at fn. 11, p. 19).

3. [ A. Liptak and L.Petak, "Juvenile Killers in Jail for Life Seek a Reprieve", New York Times,

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Page 17 of 18

April 21, 2011, A13] (repeat from previous class)

4. [Editorial, "Co-Victims Against the Death Penalty", NY Times, April 29, 2011, p. A20]

5. [Scott Hechinger, “Juvenile Life Without Parole: An Antidote to Congress’ One-Way Criminal

Law Ratchet?”, 35 NYU Law and Social Change (2011)] (repeat from previous class)

6. Kenneth Roth, "The Charade of US Ratification of International Human Rights Treaties",

Chicago Journal of International Law (Fall 2000)

7. Harold Hongju Koh, “Agora: The U.S. Constitution and International Law: International Law

as Part of Our Law”, American Journal of International Law (January 2004) (skim)

8. Roger P. Alford, “Misusing International Sources to Interpret the Constitution” , American

Journal of International Law (January 2004) (skim)

Class # 14 (Interspersed) International Law cont’d and Not-For- Profit and For-Profit

Provision of Direct Services

Contracts and other private agreements are a source of legally enforceable rights and

responsibilities governing agencies’ operations and the delivery of services. Government often

makes agreements with not-for-profit and for-profit entities that provide direct services under

contract or subject to government regulation. Why does government seek outside services? How

do various legal constraints support or inhibit the provision of these services by non-governmental

sectors? What legal standards must these non-governmental entities meet? How are those

standards different from what government would have to meet?

Sub-topic(s): Legal issues that arise from religious institutions providing foster care/adoption

services or refusing as health providers to offer abortions/birth control; reliance on private entities

like Blackwater Worldwide to provide security in Iraq; private prisons; charter schools; use by

non-profit (and for-profit) organizations of private agreements to further their mission;

privatization.

Readings:

1. Congressional Research Service (CRS) Report to Congress, “Private Security Contractors in

Iraq: Background, Legal Status and Other Issues”, August 25, 2008

a. (pp. 1-6; skim from p. 6 beginning at “State Department and DOD Private Security

Contracts” to p. 11;

b. read p. 11 beginning at “Sources of Controversy” to p. 23 top; skim pp. 23-31;

c. read pp. 31 beginning at “Issues for Congress” to p. 43; skim p. 43 beginning at

“Tighter State Dep’t Oversight” to p.48;

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d. read p. 48 beginning at “Cost Issues” to p.50;

e. skip section on “Selected Legislation” except look at H.R. 5658 and S. 3001 on p.

53).

2. Bureau of Justice Assistance monograph on “Emerging Issues of Privatized Prisons”,

February, 2001 (read pp. ix-xi; 1-22, stop after heading “Costs” on p. 22; paragraph on

“Inmate Services…” pp. 29-30, p. 33 beginning at “Health Care” through p.38; and pp. 59-

60.)

3. Letter of Jim McDonough, Fla. Commissioner of Corrections, to Hon. Marco Rubio, Feb. 1,

2008 re Aramark (skim)

4. The Sentencing Project, "Prison Privatization and the Use of Incarceration" (2004)

5. Jesse Livermore, WTF Finance, “The Profitability of the Private Prison System” (2011)

6. Everything you Ever Wanted to Know About Private Prisons….”, Christie Thompson, Dec.

18, 2014 https://www.themarshallproject.org/2014/12/18/everything-you-ever-wanted-to-

know-about-private-prisons#.VrF90KDZP

7. “Private Companies Profit from Almost Every Function of the American Criminal Justice

System” http://www.inthepublicinterest.org/private-companies-profit-from-almost-every/

8. The Guardian, “The Way to End Prison Privatization Could be Corporate Incompetence”,

Chandra Boz http://www.theguardian.com/commentisfree/2016/jan/21/end-prison-

privatization-criminal-justice-reform-chandra-bozelko

Pre-Class Assignment: Readings

Final Exam: details TBD.