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Penn Law faculty comment on the top legal decisions & developments of 2013

December 19, 2013

Important court decisions, revelations about NSA spying, and high-profile trials were among the legal events that captured headlines in 2013. Here, Penn Law faculty to weigh in on the year’s top legal developments.

Important court decisions, revelations about NSA spying, and high-profile trials were among the legal events that captured headlines in 2013. We asked members of the Penn Law faculty to weigh in on the year’s top legal developments.

The Zimmerman verdict.

Dorothy E. Roberts, the George A. Weiss University Professor of Law and Sociology: A Florida jury acquitted neighborhood watch volunteer George Zimmerman, 29, in the shooting death of unarmed 17-year-old Trayvon Martin as he walked home carrying a soft drink and bag of Skittles. The verdict set off nationwide protests against racial profiling and criticism of state “stand your ground” self-defense laws.

Edward Snowden’s revelations.

Anita L. Allen, Penn Vice Provost for Faculty, Henry R. Silverman Professor of Law and Professor of Philosophy: Snowden’s revelations of massive communications surveillance and data collection by the National Security Agency raise large questions about the amount of privacy Americans should give up to enhance national security measures. For some, Snowden’s revelations suggest the need for a more aggressive role for a privacy oversight board and greater accountability for the FISA court.

Administering Obamacare.

Cary Coglianese, Director of the Penn Program on Regulation and Professor of Law and Political Science: Although Congress passed Obamacare over three years ago and the Supreme Court upheld it last year, the Affordable Care Act faced pivotal implementation challenges throughout this past year. There’s an obvious, overarching lesson from the ill-fated launch of the website, namely that the ultimate success of any law depends not merely on how it is written – or even on how well it is defended in court – but also on how well it is administered. Other lessons about administrative law, of course, will be drawn from the Obama Administration’s decisions during this past year to delay a series of key provisions of the health care reform statute. The key question centers on the proper use of the executive branch’s enforcement discretion. By extending deadlines for compliance beyond those found in a statute, does an administration simply make the kind of practical accommodations that are needed to fulfill the mission and spirit of a new law? Or does the executive branch reach a point where it fails in its duty to execute law “faithfully” – even perhaps to the point of effectively rewriting the terms of the statute? These questions will no doubt continue to persist well into the new year.

Fisher v. University of Texas and the debate over affirmative action.

Dorothy E. Roberts, the George A. Weiss University Professor of Law and Sociology: The Supreme Court remanded a challenge to the University of Texas affirmative action admissions policy, directing the lower court to apply the strict scrutiny standard. The court affirmed prior holdings that racial quotas are impermissible but considering race is not categorically unconstitutional, leaving some uncertainty about the constitutionality of various affirmative action approaches.

50th Anniversary of Gideon v. Wainwright.

Louis S. Rulli, Practice Professor of Law and Director of Clinical Programs: The 50th Anniversary of Gideon v. Wainwright sparked a national conversation about the right to counsel in both criminal and civil matters.  On December 4, 2013, Judge Robert S. Lasnik, United States District Court for the Western District of Washington at Seattle, issued what may be one of the most significant post-Gideon decisions in many years.  The Court found a “systemic deprivation of the right to the assistance of counsel and the Cities’ (City of Mount Vernon and the City of Burlington) responsibility for the deprivation.”  The plaintiffs brought this action alleging that the Cities regularly and systematically failed to provide effective assistance of counsel to indigent persons charged with crimes, thereby violating both the federal and state constitutions and necessitating injunctive relief.  The Court entered a broad-based injunction, expressing “grave doubts regarding the Cities’ ability and political will to make the necessary changes on their own.” The Court concluded with the following language:  “The notes of freedom and liberty that emerged from Gideon’s trumpet a half a century ago cannot survive if that trumpet is muted and dented by harsh fiscal measures that reduce the promise to a hollow shell of a hallowed right.”  Wilbur v. City of Mount Vernon, No. C11-1100RSL, Case 2:11-cv-01100-RSL.

Kiobel v. Royal Dutch Petroleum and the Alien Tort Clains Act

William Burke-White, Professor of Law: Kiobel v. Royal Dutch Petroleum essentially guttied the Alien Tort Claims Act. The Alien Tort Claims Act had provided a means for foreigners to enforce violations of the law of nations (such as torture) in U.S. courts. The Kiobel decision drastically limited the scope of ATCA claims, requiring that the violation occur in the US.


Maryland v. King and the increased collection of DNA by law enforcement. 

Dorothy E. Roberts, the George A. Weiss University Professor of Law and Sociology: There has been a huge expansion of federal and state DNA databases for law enforcement purposes, raising privacy and government surveillance concerns.  The Supreme Court held that a Maryland law authorizing collection of DNA from felony arrestees did not violate the Fourth Amendment because the practice is a reasonable police booking procedure.


Narrowed enforcement of federal marijuana laws.

Stephanos Bibas, Professor of Law and Criminology: The Obama administration expanded use of policies of non-enforcement and tailored enforcement to narrow statutes.  The latest example is DOJ’s policy outlining the limited circumstances in which the federal government will focus on enforcing federal marijuana laws, in response to Colorado’s and Washington State’s laws legalizing marijuana.  The feds will focus on enforcing the laws to prevent:

  • the distribution of marijuana to minors;
  • revenue from the sale of marijuana from going to criminal enterprises, gangs and cartels;
  • the diversion of marijuana from states where it is legal under state law in some form to other states;
  • state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;
  • violence and the use of firearms in the cultivation and distribution of marijuana
  • drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;
  • growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands;
  • preventing marijuana possession or use on federal property.

 Japan’s Parliament approves a secrecy law.

Eric A. Feldman, Professor of Law: In December the world’s second most important industrialized democracy took a big step back from its commitment to freedom of information and threw a large veil of secrecy around a wide, undefined set of government activities when its Parliament passed a new secrecy law.




France legalizes same-sex marriage.

Eric A. Feldman, Professor of Law: During the conflict over same-sex marriage in the U.S., many seemed not to notice, or not to care, that a similar debate was occurring elsewhere. After a long and extremely contentious conflict, with all of the requisite street protests and arrests, France early last summer legalized same-sex marriage, as well as adoption by same-sex couples.



 Implementation of the America Invents Act.

David S. Abrams, Professor of Law: Switching U.S. rights to a patent from the previous “first-to-invent” system to a “first inventor-to-file” system for patent applications is the biggest revision to the patent code in almost 60 years.



Association for Molecular Pathology v. Myriad Genetics, Inc. and gene patents. 

Dorothy E. Roberts, the George A. Weiss University Professor of Law and Sociology: The Court unanimously held that molecular diagnostic company Myriad Genetics, Inc., could not patent the BRCA1 and BRCA2 gene mutations that increase the risk of breast and ovarian cancer because naturally isolated DNA is not patentable.


The Supreme Court’s same-sex marriage and voting rights decisions.

Kermit Roosevelt, Professor of Law: Windsor, Perry, and Shelby County are all extremely important decisions. Taken together, they show us how the Court thinks about civil rights issues. With respect to the newer civil rights movement, LGBT equality, the Court seems aware of the direction the country is moving, and while it shows no eagerness to get out in front of public opinion, it doesn’t seem inclined to fight the trend either. Eventually, I expect the Court will decide that the Constitution requires states to permit same-sex marriage, but it’s not in a rush to get there.

What is the Court in a rush to do? To declare victory for the older civil rights movement, the one for racial equality, and to move on. The way to end race discrimination, Chief Justice Roberts once said, is to stop discriminating on the basis of race. He seems to think that race discrimination is a problem of the past, and that government laws and practices that try to prevent or remedy such discrimination merely exacerbate racial tension for no good reason.  The Roberts Court is encouraging the government, and indeed the whole nation, to put race discrimination behind us and move on. It can require this, to some extent, with the government—it can strike down affirmative-action programs and federal laws, like the Voting Rights Act, motivated by concern about state discrimination. Whether that will in fact end race discrimination, or rather allow it more room to operate, is a different question.

Dorothy E. Roberts, the George A. Weiss University Professor of Law and Sociology:  In United States v. Windsor, the Court took a giant step toward upholding the equal rights of same-sex couples to be legally married. It held that the restriction of “marriage” to heterosexual couples in section 3 of the Defense of Marriage Act (DOMA) violated the due process clause of the Fourth Amendment.

While more than 30 states have passed voter ID laws, in Shelby v. Holder the Supreme Court struck down sections 4 & 5 of the Voting Rights Act of 1965.  The majority’s colorblind approach ignores how seemingly race-neutral state statutes continue to disproportionately disenfranchise minorities.