In Pierson v. Ray, the United States Supreme Court introduced the concept of immunity for government officials liable for damages under 42 U.S.C. § 1983; alleging that while immunity is not inherently mentioned in the statute, there is also no indication that Congress intended to eliminate commonlaw immunities. Since its inception, the policy behind qualified immunity has continuously evolved, and some have criticized its negative impact on the protections afforded under the Fourth Amendment. Moreover, the Supreme Court has gradually expanded the scope of qualified immunity in search and seizure cases by establishing the good-faith rule and broadening the “objective reasonableness” standard for a finding of probable cause. A recent qualified immunity case, Messerschmidt v. Millender, further expands the interpretation of probable cause and restores the defense that otherwise unreasonable conduct may be excused by approval of a magistrate—a justification the Court previously rejected.

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Kali Morris, Comment, Messerschmidt v. Millender: A Probable Cause Free-For-All, 48 Gonz. L. Rev. 431 (2013).

The Americans with Disabilities Act (“ADA”), enacted in 1990, was enacted to protect individuals from discrimination on the basis of disability. Since 1990, the U.S. Supreme Court narrowed the ADA’s application. Congress reacted to this narrowing of the ADA by passing the Americans with Disabilities Act Amendments Act (“ADAAA”) in 2008 (effective January 1, 2009).

Because the ADAAA is still new legislation, this article examines the ADAAA in order to better understand the changes to the ADA. This article begins with an examination of the ADA and the relevant U.S. Supreme Court cases: Sutton v. United Air Lines, Inc. and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams. Next, this article analyzes the ADAAA, examining how Congress reacted to Sutton and Toyota, the statutory language used within the ADAAA, and the various changes to the ADA juxtaposed with the sections that remain the same. The article concludes that while Congress was successful in expanding coverage with passage of the ADAAA, the full ramifications of these changes are unknowable until a body of case law on the ADAAA is developed by the courts.

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Teressa L. Elliott,The Path to the Americans with Disabilities Act Amendments Act: U.S. Supreme Court Cases, Congressional Intent,and Substantial Change, 48 Gonz. L. Rev. 395 (2013).

Recently, articles are showing up in the news, specifically the Atlantic and the Wall Street Journal, discussing the persistent problem of equality for professional women in the workplace, specifically mothers. Anne Marie Slaughter, a Princeton professor who recently left her job at the state department due to problems with balancing her work and home-life, wrote an article in the Atlantic. That article described a woman whose life was the  epitome of the feminist ideal: a mother and policy adviser for Secretary of State Hillary Rodham Clinton. That ideal was accompanied, however, by a domestic disaster brought on by weeks spent away from her family and a rebellious teenager who had a mother with little time for him. As she questioned whether her job in Washington was doable and at what cost, she began hearing from younger women who complained about the advice given by the likes of Ms. Sheryl Sandberg. Sandberg, a top executive at Facebook, cautions women that in order to get ahead and have it all, they must push “higher-harder-faster.” Slaughter states that the Obama administration and other top companies have failed to realize that the pressures facing women in the workplace are far different than those facing men, even men that are fathers. The workplace is evolving and so too must the leading court opinions on inequality.

Since Roe v. Wade and its progeny, the prevailing view has been that women’s ability to control their reproductive life is necessary to achieve equality. In fact, the Supreme Court’s opinion on  equality has been, “[t]he ability of women to participate equally in the economic and social life  of the Nation has been facilitated by their ability  to control their reproductive lives.” “Their ability to realize their full potential, the Court recognized, is intimately connected to ‘their ability to control their reproductive lives.’”Although women and minorities are no longer excluded from most jobs by law or overt discrimination, significant barriers continue to preclude full workplace equality for these groups. Particularly, the legal profession lacks gender and racial parity as women and minorities remain dramatically underrepresented in senior positions and may be getting less out of their jobs than their white, male counterparts. Other professions, such as academia, suffer as well. Despite these significant disparities, there is no consensus on how to progress toward full workplace equality or what such equality would look like.Mothers and caregivers in particular suffer great indignities and discrimination based solely on their roles as mothers and caregivers.

This article posits that the era of focusing on the right to procure an abortion and control reproduction has run its course. Instead, the next step forward in the pursuit of equality must focus on the right to a healthy lifestyle.

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Sandra Simpson, The Elusive Quest for Equality: Women, Work, and the Next Wave of Humanism, 48 Gonz. L. Rev. 279 (2013).

This article explores the Court’s continued embrace of Imbler and concludes that this adherence is best understood in terms of the Court’s identification of prosecutors with other participants in criminal proceedings and the Court’s reluctance to subject prosecutors to possible lawsuits from those who are charged but not convicted. This article proposes that these concerns be addressed by limiting the potential size of the plaintiff class to those plaintiffs who make a threshold showing of factual innocence. Such a showing is the same that is required from criminal defendants who are suing their counsel for malpractice, and the concerns raised by the courts in these criminal defense malpractice actions mirror the concerns underlying prosecutorial immunity. Requiring plaintiffs to meet this threshold showing, as well as meet the current pleading requirements, could balance the Court’s concerns with protecting prosecutors who fail to win a case with some accountability for the innocent victim(s) of deliberate prosecutorial misconduct.

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Karen McDonald Henning, The Failed Legacy of Absolute Immunity Under Imbler: Providing a Compromise Approach to Claims of Prosecutorial Misconduct, 48 Gonz. L. Rev. 219 (2013).

In light of the recent gun control legislation that failed to pass in the senate, Christopher Strain’s presentation on “Evil Black Guns: Hate, Instrumentality, and the Neutrality of Firearms” was quite timely.  The presentation postulated the theory that guns are inherently evil because they are created for the primary purpose of causing death.  This is in contrast to the long-used statement often quipped by gun rights supporters “guns don’t kill people, people kill people”.   Instead, this presentation twisted the gun rights debate into a discussion on the purpose of guns.  That is that if a gun is created to kill it can hardly be surprising that it achieves its goal.  Removing the human actor from the issue of gun rights was in a word, inflammatory.  I can hear the outraged cries of gun rights supporters arguing that guns are used for all sorts of purposes; hunting, target practice, and protection among others.  And yet, after Professor Strain stopped speaking the unequivocal truth that could not be ignored was that the ultimate end goal of a gun, when fired, is to destroy life.

xomiele on Flickr- CC-BY-NC-SABy Alex Ainsley

By Alex Ainsley

On Thursday, the Pursuit of Just conference featured Dr. Christopher Strain and his lecture “Evil Black Guns: Hate, Instrumentality, and the Neutrality of Firearms”. Dr. Strain’s primary contention is that in the wake of mass shootings in Tucson, Aurora, and Sandy Hook, it has become increasingly difficult to view guns as neutral actors in the gun control debate. He explores the prevailing view of guns as neutral actors exemplified in the tautology “guns don’t kill people, people kill people”. This view, that technology is value-neutral, is known as instrumentalism. Examining what he calls “technological determinism”, Dr. Strain challenges the notion that guns are inert actors in this debate. He argues guns, in fact, do change peoples’ behavior and make them more likely to respond to certain situations with aggression or violence. He cites an increasing body of research from scholars like Frank Zimring and Bruno Latour to prove his point.

Strain further contends that if guns are not neutral, then they must be either good or bad. He believes that they could hardly be considered good. Therefore, even if you use them for self-defense or hunting, society should view them through the conceptual framework of a necessary evil.

Finally, Dr. Strain examined the link between guns and hate. He believes that in the United States, particularly on the far right, the saturation of guns and violent rhetoric is a danger combination. Extrapolating his earlier analysis regarding guns and triggered behavior, he believes that guns run the risk of guns being uses supplements to rhetoric and debate. This danger is compounded by the prevailing belief in what Strain calls “insurrectionism”, the notion that guns are necessary as a stop-gap to the tyranny of the government.

In light of the Senate’s recent tabling of expanded background checks, this discussion could not have come at a better time. Regardless of where you stand on the political spectrum, Dr. Strain provides a useful framework for analyzing the gun control debate and, more broadly, how we perceive firearms as a society.

Martin Luther King once said that, “True compassion is more than flinging a coin to a beggar.  It comes to see that an edifice which produces beggars needs restructuring.”  His point, to the best of my understanding, is that true service is not fleeting gestures of empathy, but rather the difficult exploration of complex systems of institutional oppression that submerges “the others” of society in perpetual “otherness.”   Such exploration allows us to understand why people are flung to the fringes of our communities, creating opportunities to effectively ameliorate suffering.

Social justice leaders here at Gonzaga University appreciate the crucial role critical analysis plays in attacking systematic oppression.  To that end, Gonzaga Law School and the Washington Task Force on Race and the Criminal Justice System have collaborated to bring the Pursuit of Justice conference here to Spokane, Washington April 18-20.  According to the conference website:

This pairing provides opportunities to align interests in understanding and addressing fear and ignorance of the “other” with interests in how these conditions manifest in hatred, intolerance, and inequality. The conversation will be centered around how these problems affect the pursuit of justice.

Of special interest is the matter of racial inequality in the criminal justice system, among broader concerns within the conference theme, as approached through the lenses of research, education, practice, and advocacy…

This conference will bring together and engage members of academia and other education circles, the legal community, government, and non-governmental organizations, as well as policy experts, journalists, human rights leaders, community organizers, and engaged global citizens. We anticipate richly interdisciplinary, cross-sector participation from international, national, and regional audiences.

All those in the Spokane area who share Dr. King’s vision of a service culture that appreciates the deep roots of injustice and the critical analysis required to end them would do well attend such an important conference.

First, this ruling is wrong because the majority incorrectly dismissed the argument that local education safety substantially affects interstate commerce by broadly asserting that such a conclusion would “covert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.”  If Congress could regulate school safety, the Court reasoned, then nothing would stop it from infringing upon other traditional areas of state law, like family affairs.  However, the Court generalized the law’s scope far too much, allowing the majority to impermissibly reach a “slippery slope” conclusion.  The law did not touch local school policy, such as curriculum or dress codes; rather, it required a minimum level of safety to ensure a vibrant and comfortable learning environment.  And as Justice Breyer pointed out in his dissent, it is certainly no logical leap to conclude that the aggregate effect of the safety of America’s schools has a substantial (even direct) affect on the nation’s economy.

Local school safety is distinguishable from other local aspects of life traditionally left to the states, such as family law, because education has an unusually strong tie to interstate commerce.  Especially today, the connection between education and the national economy is clear.  A perfect example is the U.S. House of Representatives Committee on Education and the Workforce.[1]  Congress has recognized through structuring its committees that it is a waste of time to deal separately with education and workface development because of their inextricably intertwined relationship.  Yes, an argument can be made that extremely local activities, such as parenting and a child’s nutrition, also in the aggregate ultimately substantially affect interstate commerce.  But the pipeline from school to the workforce, and by extension interstate commerce, is much more direct and significant than other areas of local activity.

Second, the Court justified striking down the law because it “contains no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interest commerce.”  This is a curious argument, considering the Court has never required a jurisdictional hook.  In Gonzales v. Raich,[2] the Court upheld making local cultivation and consumption of medical marijuana a federal crime under the Commerce Clause by concluding that, even if the marijuana off which a federal conviction was based never touched interstate commerce, “the likelihood that the high demand in the interstate market will draw such marijuana into that market” was enough to assume a substantial effect on interstate commerce in the aggregate.  Essentially, the Court held that the temptation to enter the high-demand interstate market for marijuana was too great to allow local growers to avoid federal law enforcement.  Surely, if the Court can make an assumption that medical marijuana will enter the interstate market, then there is no reason to dismiss the notion that firearms in the aggregate impact an interstate market.  If the ruling of Wikard v. Filburn[3] teaches us anything, it’s that the Court cannot look at local activity in isolation, but rather must consider its aggregate effect on the national economy.  Whether the particular gun Lopez carried to school crossed state lines matters as little as whether Roscoe Filburn would have purchased interstate wheat or whether Angel Raich would have sold her medical marijuana to a drug user in Nevada.  If Congress could have found a rational basis for determining a local activity substantially affects interstate commerce, then Court is not permitted to interfere.

[PDF]          [Westlaw]          [LexisNexis]

America’s farmland is being developed at an alarming rate. Between World War II and the mid-1970s an average of 1.4 million acres of agricultural land was developed each year-an area larger than the State of Delaware.

In 1982 there were approximately 1.41 billion acres of nonfederal rural land in the United States, with 421 million acres regularly used as cropland; the remaining 993 million acres were primarily range, pasture, or forest land. Some of these remaining 933 million acres are considered cropland reserve. But in fact, only 153 million acres have high or medium potential for conversion. The rest have little or no suitability as farmland.  According to the National Agricultural Lands Study, by the year 2000 the country’s cropland reserve will probably be in full production. Those projections were made in the early 1980s. Today, the actual rate of development nationwide is not known, but by 1984 three million acres of agricultural land a year were already being developed and permanently lost for food production.

Although high-tech farming has produced high-yield crops, there are two primary limitations as to what the soil of America can produce. First, there is a limit on the amount of land that can be economically farmed. Not all of the reserve agricultural land is ideally suited for crop production. Some of the cropland reserve will require extensive and expensive preparation and erosion control in order to be cultivated. Second, not all farmland can be in production all of the time because of the constraints of agricultural science and basic practicalities. Some land needs to be left fallow in order to replenish the soil. Economic conditions or illness may prevent a farmer from planting all of his arable ground. Even if all of the land is planted, there is no guarantee of a good yield. As any farmer can tell you, the one thing that is certain about farming is that farming is uncertain.

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Agriculture in Japan, for centuries the backbone of the nation, has survived a long and torturous evolution. Once a tool of powerful Tokugawa taskmasters to maintain discipline and obedience in a feudal society, Japanese agriculture has never completely shed its vestigial character. Deeply rooted in history and tradition, the agricultural community has long faced the arduous task of sustaining a native population. The expectations imposed on agriculture and the ability of the Japanese agricultural sector to meet a nation’s requirements are, and have been, uniquely tied to significant historical forces that have combined to shape the nation as a whole. The tone during the various stages of Japanese agricultural development is best captured by looking at the uncertain interplay of powerful, but opposing forces in the nation’s social, economic and political development.

The clash of external influences with native Japanese traditions is much more than a distant echo from the World War II era. However, patterning of trust has developed between progressive elements in the Japanese government and ancestral farm families traditionally wary of deviations from their accustomed way of life. The basic goal of the Japanese farmer parallels that of the nation preservation. Japanese farmers embody the virtuous trait of endurance (gaman); each maintains a basic loyalty to himself, an expectation of himself. However, under this honorable ethos, Japanese farmers have now manifested their inability to keep pace with their rapidly developing society.

The chain of historical events leading Japan from Tokugawa times through post World War II reconstruction and up to the present industrial-technological revolution has exerted tremendous pressures on successive Japanese governments to shape public policy with a view to the benefit of the nation as a whole. Nowhere in Japanese society, however, are the contradictions between the dynamic forces of change and persistent traditions more evident or disruptive than in the field of agriculture. Japan’s agricultural problems can be attributed not only to an untenable farm structure, but also to basic geographical and economic limitations. The Japanese government, especially in the post World War II era, has taken an active role in the ongoing transition of agriculture from its feudal legacy into a vital and productive sector of the economy, that is responsive to the changing needs of a modern nation. But the transition is far from complete. The Japanese government is currently attempting to balance conflicting interests. On the one hand, the government has enacted socially valuable programs that provide the agricultural community with a relatively decent standard of living. On the other hand, the government would now like to induce small-scale, part-time farmers off the land in order to facilitate the development of a modern, large-scale and full-time agriculture

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