Institute for Legislative and Governmental Affairs
Programs and Events 2010 - 2011
By Arthur D. Wolf, Director
On September 17, Professor James W. Gordon presented the annual lecture on Constitution Day: “Civil Liberties During the American Civil War.” Professor Gordon described the contending positions of historians in relation to Lincoln’s suspension of the writ of habeas corpus, and the use of military arrests and military commissions to prevent and punish civilian opposition to the war.
The traditional view was that Lincoln and the military made widespread use of military arrests to silence or punish those who opposed the War. More recent empirical scholarship suggests that these arrests and military trials were far less widespread than previously assumed, took place primarily in the border states and in the occupied South, and involved guerrilla activity, spying, law-breaking in military camps, or active, tangible support for the South’s war effort, rather than mere verbal opposition to Lincoln’s policies. Professor Gordon concluded that the proposition that Lincoln greatly expanded the war powers of the Presidency in fighting the Civil War is not in dispute, but that the traditional view that he used military arrests and military trials to violate fundamental civil liberties everywhere in the North is not supported by the recent scholarship.
By recent tradition, the first Institute event of the fall semester is the commemoration of Constitution Day, celebrating its signing on September 17, 1787. This year, however, on September 7, we held the first debate among the candidates for Hampden County District Attorney. The retirement of DA William Bennett, first elected in 1990, created the vacancy.
As a prelude to the 15th Annual Supreme Court Review Conference, Professors Leora Harpaz, Bruce Miller, and I presented an overview of the work of the Supreme Court and its key decisions during the October 2009 Term. Eleven days later on October 16, Professor Giovanna Shay joined us for our 15th Annual Supreme Court Review Conference. Professor Harpaz began the conference addressing four key First Amendment cases: two involving the religion clauses and two involving the free speech clause. In the religion cases, the Court rejected a claim for campus recognition by a religious organization that refused to comply with a law school’s non-discrimination policy. It remanded a case in which the plaintiffs challenged a cross on public property, which Congress then transferred to private ownership.
I discussed two federalism cases, starting with the Court’s decision that the Second Amendment right to keep and bear arms for self-defense in the home, as defined in District of Columbia v. Heller (2008), applies to state and local governments through the Due Process Clause of the 14th Amendment. The Court also ruled that Congress may, with the aid of the Necessary and Proper Clause, authorize the United States Government to commit civilly a mentally ill, sexually dangerous federal prisoner, who has served his prison sentence.
Professor Shay explored the criminal law cases, which have constituted a large part of the Court’s docket in recent years. She addressed the three Miranda decisions the Court decided last term. While the government “won” in all three cases, she noted that the Court still seems committed to the centrality of the Miranda warning. Professor Miller concluded the individual presentations before the final panel discussion. He discussed the Court’s decision that accepted the constitutional claims of corporations (and inferentially unions) to contribute without limit to political campaigns, striking down a key feature of the McCain-Feingold Act. Professor Miller also explored the decision upholding, against First Amendment challenge, a federal criminal statute that prohibits, as material support for terrorist activity, training of members of a group designated by the Secretary of State as a Foreign Terrorist Organization on the peaceful uses of humanitarian and international law.
The Legislative Institute hosted several important programs during the spring term. Two principal events werewere the annual Fair Housing and Civil Rights Conference, and the Siena College summer legal fellows program. During Fair Housing Week in late April, distinguished speakers and guests gathered at the Law School Commons to discuss a wide variety of issues relating to housing and civil rights. A panel of experts examined the legal and practical questions surrounding predatory lending foreclosure. Case law and practical suggestions were explored to help victims develop remedies. In addition, the question of the best strategies to integrate neighbors drew an enthusiastic audience. Affordable housing, inclusionary zoning, and other affirmative steps to further the goals of fair housing were fully vetted. Creating integrated neighborhoods is one thing; sustaining them is another.
Audience members suggested a variety of ways in which both could become reality. Legal practitioners encouraged private firms to take on fair housing cases, in all of their aspects as it makes sense from social and business perspectives. The conference devoted time to employment discrimination and ways to achieve diversity in the workplace. State officials and private individuals brought to this panel insightful observations on these timely themes.
The Conference attendees also had the privilege of hearing keynote speaker Edgar Kahn. Our luncheon keynoter was our own Judge William H. (“Hank”) Abrashkin ’78, who now serves as the Executive Director of the Springfield Housing Authority.
Joyce Raphail and Joey O’Rourke were our two legal fellows this past summer from Siena College. Joyce spent the summer working with Professor Lauren Carasik, who is conducting a pilot International Human Rights clinic this fall term. Human trafficking is a major issue confronting human rights advocates. It is difficult to uncover because the perpetrators use a variety of means to disguise their activities. Among other topics, Joyce researched the laws of the states in the United States. Massachusetts was among only a handful of states that did not have a human trafficking law. During the summer program, however, the State Senate passed a bill, offered by Senator Mark Montigny (D), addressing human trafficking. It soon became public law. Senator Gale Candaras ’82 (D) invited Joyce and Joey to join her on the floor of the Senate during the debate and vote on the bill.
Joey served as an assistant to Professor Julie Steiner, who has been researching the aftermath of the oil spill in the Gulf of Mexico in April 2010. He gathered data relating to the many lawsuits that victims have filed against a variety of defendants. The civil actions generally seek damages for injuries to persons and property caused by the spill. The vast amount of litigation raises issues of judicial management as well as appropriate compensation. Although BP has set up a fund of $20 billion to compensate victims of the oil spill, critics of the program have commented on its inadequacy. Victims have complained about the slowness of the recovery, and red tape that has inhibited, in their view, the speedy delivery of a sufficient remedy.