Christopher Kutz

We do not yet know what and when the Treasury Department knew about the now-repaid AIG Financial Products bonuses. But the following is plausible: the traders in that unit had convinced their employer that their skills were so important to minimizing the damage to their company, or would be so dangerous in the hands of their competitors, that they were able to extract compensation at least as valuable as the year before, independent of actual performance or retention. Lawyers then drafted apparently bulletproof guarantees that these bonuses would be paid. Treasury, given legislative cover by Congress, saw the bonuses as a distasteful but necessary cost of minimizing the total losses taxpayers would have to bear. Public outrage at this “business necessity,” however, could scupper the entire bailout plan.

Here is another recent story: intelligence professionals asked to use a range of surveillance and interrogation techniques the law clearly prohibited. They were able to persuade their employers that they needed access to these techniques in order to protect national security. Their employers agreed, and asked lawyers to draft documents that purported to protect the operatives from any legal consequences. Their employers may have agreed because they felt hostage to any future attack, if it might be said that they failed to exhaust all options; or because they genuinely believed that these techniques were necessary to security. When the techniques and the enabling legal documents were leaked to the public, the scandal wrought enormous damage to the reputation of the employer, domestically and abroad. Continue reading…

Erin Murphy

Since 1998, the government has overseen the aggregation of a national DNA database that now includes 6.5 million profiles. The database includes a mix of criminals and innocents rounded up in mass DNA “dragnets.” A lot of good has come from these databases: as of last December, roughly 80,900 links between genetic profiles had been made. While better data is needed to quantify how many associations led to meaningful advances in actual cases, anecdotal reports clearly suggest that DNA has dramatically aided law enforcement.

But DNA profiling, like all new scientific methods, is susceptible to misunderstanding and error. For this reason, qualified statisticians (including UC Berkeley scholars) have sought limited access to DNA profiles to ensure that the govermnment’s use of these materials is well-founded.

Although government institutions routinely grant researchers access to highly sensitive information (under strict privacy controls) the FBI and Department of Justice have refused to do this for the DNA database—and even threatened to cut off access to any state that does. This secrecy is unwarranted, because researchers are only seeking anonymous data, not any actual or identifiable biological samples.

Given the broad reliance on the accuracy of DNA matches—whether for criminal convictions despite contrary evidence or the recent approval of “familial searches” that comb databases for a perpetrator’s relatives—the government cannot defend its refusal. Neutral, qualified researchers need access to this material to protect the rights of the accused and prevent conviction of the innocent.

Erin Muprhy is Assistant Professor of Law.

Melissa Murray

The transition to an Obama White House makes public something that has been occurring in the private confines of American families for years. As the President himself acknowledged, his historic campaign would have been impossible but for the contribution of one person – his mother-in-law, Marian Robinson. As the Obamas crossed the country campaigning, Mrs. Robinson moved into their Hyde Park home to care for the couple’s young daughters.

The Obama’s “granny-nanny” arrangement may seem novel to media pundits, but it is a way of life for most Americans, who, according to recent census data, routinely rely on non-parental caregivers to care for their children. These childcare arrangements include care by grandparents and other extended family, as well as day care, nursery schools, or third party in-home paid childcare.

Regardless of the specific arrangement, the reality is the same: although we may idealize the notion of the nuclear family providing care to its dependent members in an atomistic fashion, in fact, the nuclear family relies on networks of other caregivers to help it discharge its caregiving responsibilities. Public policies aimed at supporting families should take these realities into account. More particularly, the Family and Medical Leave Act, a federal law that provides employees with the right to take time away from work to accommodate caregiving, should be expanded to include a wider range of family members. Continue reading…

Christopher Kutz

(Originally published in the Los Angeles Times, Feb. 17, 2009.)

The government should devise a simpler system to deal with household employees.

Stories about “nanny tax” problems accompany every presidential transition, with much schadenfreude about the plight of those wealthy enough to pay people to perform their household work.

No doubt some appointees who didn’t pay Social Security taxes for their household employees acted out of bad faith. Some may be genuinely surprised by the low level at which tax liability strikes. California tax liability starts when you pay someone $750 over a three-month period to work in your home, using your equipment and supplies; federal tax liability kicks in slightly higher, at $1,000 a quarter. For a housecleaner paid $150 a week, an employer owes about $1,600 a year to the federal and state government.

But we should not underestimate the number of people who, in good faith, would like to pay their appropriate share of taxes but are confused and frustrated by the obstacles government puts in their way. Given the difficulties, it is hard to believe the government really wants us to pay these taxes. Money is being left on the table. Continue reading…

Philip P. Frickey and Curtis Berkey

(Originally published in collaboration with Blue Sky in the San Francisco Chronicle, Feb. 16, 2009.)

The government’s record of collecting, holding and disbursing funds earned by American Indians on their trust lands has long been a national scandal. Litigation seeking redress has gone on for 12 years, involving several lengthy trials, 28 published judicial opinions and myriad government and private reports. The government was found liable for breach of trust in 1999, but a final resolution seems far off.

The litigation has also hamstrung the Interior Department. Several Cabinet-level officials in both the Clinton and Bush administrations were found in contempt of court for the slow pace of reform. For long periods, the court even terminated e-mail service to the Interior Department, due to concerns that the account holders’ financial information was not secure. The specter of other breach-of-trust cases has chilled government initiatives in many areas of importance to Native Americans.

The trust case tests the Obama administration’s commitment to real reform concerning the government’s treatment of Native Americans. The Obama administration can signal its intention to change the way the government handles Indian affairs by changing its basic approach to the case. Rather than fighting every step of the way, the government should be primarily concerned with how to reform the trust fund management and accountability system. It should treat the plaintiffs as collaborators in a joint process to fix the system and provide justice to the account holders.

Attorney General Eric Holder and Interior Secretary Ken Salazar should create an interdepartmental working group, with a representative from the White House, to work with the plaintiffs and others to solve this problem – once and for all.

Philip Frickey is the Alexander F. & May T. Morrison Professor of Law. Curtis Berkey is a partner in the Alexander, Berkey, Williams & Weathers law firm.

Kate Jastram

It’s time to rethink our detention policies for asylum seekers. Not many people are aware that the United States routinely imprisons terrified (note: not terrorist) people who have fled to our shores seeking asylum from persecution and torture. The new Secretary of Homeland Security needs to focus on less expensive and more humane alternatives to detention, to improve conditions for those who must be detained, and above all, to give her Special Adviser for Refugees enough clout to ensure that the agency’s national security mission does not completely overwhelm the humanitarian aspect of its responsibilities.

Most asylum seekers have no criminal record and pose no threat to the public. An asylum application is a civil, not a criminal, matter, heard by an administrative judge, with no right to counsel at public expense. Yet DHS keeps asylum seekers in federal immigration detention facilities, in for-profit prisons, and in actual county jails. Conditions are uniformly grim, complete with guards, guns, and prison garb. The common denominator in our asylum detention policy is a penal model that is wildly expensive, and completely unsuited either to our needs for security or the asylum seekers’ needs for a prompt and fair hearing of their claim. Continue reading…

Bruce Ackerman and Oona Hathaway

(originally posted on The Daily Beast, Dec. 31, 2008)

The Bush administration’s infatuation with presidential power has finally pushed the country over a constitutional precipice. As of New Year’s Day, ongoing combat in Iraq is illegal under US law.

In authorizing an invasion in 2002, Congress did not give President Bush a blank check. It explicitly limited the use of force to two purposes: to “defend the national security of the US from the threat posed by Iraq” and “enforce all relevant UN Security Council resolutions.”

Five years after the fall of Saddam Hussein, the government of Iraq no longer poses a threat. Our continuing intervention has been based on the second clause of Congress’ grant of war-making power. Coalition troops have been acting under a series of Security Council resolutions authorizing the continuing occupation of Iraq. But this year, Bush allowed the UN mandate to expire on December 31 without requesting a renewal. At precisely one second after midnight, Congress’ authorization of the war expired along with this mandate. Continue reading…

David Sklansky

Law is the basic medium of government; that is why it is nearly impossible to imagine a good and effective Presidential administration without a good and effective Department of Justice. The past eight years have taken a sorry toll on the morale, prestige, and influence of the Justice Department, and few tasks facing the incoming Administration will be more important than repairing and restoring the federal government’s chief law office.In November Berkeley Law and the Berkeley Center for Criminal Justice brought together a select group of scholars from across the country, several of them Justice Department alumni, for a one-day symposium on DOJ’s future. (Papers from the symposium will be published online early next year in Issues in Legal Scholarship, a peer-reviewed journal edited at Berkeley Law.) A striking degree of consensus emerged on three points. Continue reading…

Frank Zimring

I do not believe that criminal justice deserves high priority in the first year of a new national administration. In part this is a function of the abundance of more pressing concerns in other areas. In part it is also a result the limited role of the national government in crime and punishment. But it is also true that most of the problems in federal and state criminal justice are chronic rather than acute, and historically a sense of emergency is almost never helpful in framing national criminal justice policy.

The federal government has been doing a bad job in many of the criminal justice functions. But much of the problem has been a matter of personnel rather than any programmatic details. New leadership in a variety of DOJ and research settings is job one for a new administration; the new leadership can then generate programmatic proposals in the next years of a first term. So again, there is no pressing sense that immediate programmatic work is required.

One part of the “infra-structure” stimulus package needs attention relating to criminal justice – and that is programmatic priorities and limits.  A police force initiative is one national priority (for cities and counties). Prison construction programs should probably be excluded, even in crowding situations, although the boundaries between facility upgrading and capacity expansion are hard to define and police.

Frank Zimring is the William G. Simon Professor of Law  and Wolfen Distinguished Scholar