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March 01, 2011

Delegates Adopt Numerous Policies; Board Approves Priorities for the Year

Laurel Bellows is president-elect nominee

The ABA House of Delegates, meeting Feb. 14 during the Midyear Meeting in Atlanta, adopted new policies on a wide range of topics, and the association’s legislative priorities were established for this session of Congress.

Topics addressed by the ABA’s 560-member policymaking body included proposals for cuts in fiscal year 2011 funding for the Legal Services Corporation, efforts to prevent and remediate bullying and youth-to-youth harassment, mandatory civic education in elementary, middle and secondary schools, and methods to alleviate the state court funding crisis.

Prior to the delegates’ meeting, the ABA Board of Governors approved a list of legislative and governmental priorities that will be the focus of advocacy efforts by the association’s Governmental Affairs Office during the First Session of the 112th Congress (see page 7).

During the meeting, the House of Delegates nominating committee selected Laurel G. Bellows, of Chicago, to be president-elect nominee of the association. If elected at the Annual Meeting in August, Bellows will serve one year as president-elect before becoming ABA president in August 2012 for a one-year term (see page 5).

The following is a summary of the legislative recommendations approved by the delegates.

Administrative Law

SEC Requirements. Urges Congress to revise the definition of “person” subject to Securities and Exchange Commission reporting requirements under the Dodd-Frank Wall Street Reform and Consumer Protection Act relating to disclosure of the source and chain of custody of mineral ore sold to fund firearms and provide other support for rebel militias and even some government soldiers in the ongoing armed conflict in the Democratic Republic of the Congo.

Civic Education

Civic Education. Urges federal, state, territorial and local governments to require civic education for elementary, middle and secondary students in the nation’s public schools, and to provide competitive grant funding for programs to meet this requirement.


Case Management. Supports the ongoing efforts by the Administrative Office of the U.S. Courts to update and enhance the functionality of the federal judiciary’s Case Management/Electronic Case File system to continue to meet the case filing needs of judges, chambers, clerks’ offices, the bar, debtors, litigants, claimants, trustees and other users in light of changing technology.

State Court Funding. Urges Congress to enact legislation that would amend the federal tax code to let states recover overdue court-ordered financial obligations – including court-ordered victims’ restitution, fines, fees and costs – by intercepting federal tax refunds that are due to the debtors who owe the debts to the states.

ALJ Independence. Reaffirms the judicial independence and authority granted to the Central Panel Administrative Law Judges in the Model Act Creating a State Central Hearing Agency, adopted by the House of Delegates in February 1997.

Criminal Law

Disclosure. Urges federal, state, territorial, tribal and local courts to adopt a procedure whereby a criminal trial court shall disseminate to the prosecution and defense a written checklist, prepared by local prosecutors and defense attorneys,  delineating in detail the general disclosure obligations of the prosecution under Brady v. Maryland, 373 U.S. 83 (1963), and its progeny and applicable ethical standards. Also provides that any omissions or deficiencies in the written checklist should not relieve either the prosecutor or defense counsel of their legal and ethical responsibilities with respect to providing and seeking disclosures.

Post-conviction Relief. Urges Congress to amend 28 U.S.C. §§ 2241(d) and 2255 (f) (1) to provide equitable tolling of the one-year statute of limitations for filing for post-conviction relief when the prisoner shows good cause, including situations in which a prisoner  has exercised due diligence and has timely requested his attorney to file a §2254 petition or a §2255 motion and the attorney has failed to do so in a timely manner.

Sentencing. Urges the U.S. Sentencing Commission to complete a rigorous and comprehensive assessment of the Federal Sentencing Guidelines for high-loss economic crimes to ensure that the guidelines for such crimes are proportional to offense severity and adequately take into consideration individual culpability and circumstances.

Juvenile Offenders. Urges federal, state, tribal, local and territorial governments to use electronic monitoring and home detention at government expense for juvenile offenders who are legally eligible for secure detention but whose risk of flight or further offending does not require secure pre-trial detention or incarceration.

Disability Law

Survivor Benefits. Urges Congress to enact legislation amending Title 10, U.S. Code, to permit the payment of military Survivor Benefit Plan benefits to a special needs trust for the benefit of a disabled beneficiary.

Disaster Mitigation. Endorses the Recommendations for an Effective National Mitigation Effort, a white paper on hazard mitigation prepared by the National Emergency Management Association, which urges collaborative partnerships across professional disciplines and equal partnerships among government subdivisions as a starting point.

Environmental Law

Toxic Substances. Urges Congress to enact legislation to reform the Toxic Substances Control Act that would, among other things, enhance the Environmental Protection Agency’s ability to ensure the safety of chemical substances in commerce and encourage public confidence in, and broad stakeholder understanding of, federal chemical control authorities and regulatory policies and practices.

Individual Rights

D.C./Territorial Representation. Urges the House of Representatives to restore the right of D.C. citizens and citizens in American Samoa, the Commonwealth of the Northern Mariana Islands, Guam, Puerto Rico and the U.S. Virgin Islands to have their elected congressional representatives vote on proposed legislation considered by the full House.

Intellectual Property

DNA Technology. Supports evaluation of inventions relating to DNA technology by the same uniform standards that apply in evaluating patent eligibility of inventions relating to other natural materials or subject matters, and opposes new exclusionary rules for DNA that go beyond the long-standing exceptions to patent eligibility recognized by the U.S. Supreme Court.

Legal Education

Law School Clinics. Reaffirms support for ethical independence of law school clinical programs consistent with the ABA Model Rules of Professional Conduct, and opposes attempts by persons or institutions outside law schools to interfere in the ongoing activities of law school clinical programs and courses.

Legal Research

Law Library of Congress. Supports efforts by the Law Library of Congress and the Library of Congress to create and continue programs that (1) develop, maintain and enhance the Law Library’s services, facilities, operations and staff, and the acquisition of materials and their preservation and care, and (2) utilize the best technologies and methods available to make the Law Library’s vast and growing collections accessible.

Legal Services

Legal Services Corporation (LSC). Opposes any proposal to cut funding for the LSC for fiscal year 2011, and urges Congress to support increased funding of the Corporation to the level necessary to provide needed services to low-income Americans.

Military Law

Military Justice. Urges states and territories to adopt the Model State Code of Military Justice and the Model Manual for Courts-Martial to provide an updated body of law to govern state National Guard forces who, when mobilized for state missions, are not subject to the Uniform Code of Military Justice.

Public Contract Law

Due Process. Opposes the adoption of legislation by Congress that would mandate suspension or debarment of a single entity or class from bidding on or receiving federal contacts and grants without regard to the existing regulatory framework that provides for agency discretion in suspension and debarment determinations.

Tax Law

Transaction Tax Overpayment. Adopts the Model Transaction Tax Overpayment Act and encourages adoption by appropriate legislative bodies of the act, which applies to state and local taxes that a seller is required to collect from a purchaser on taxable sales and obligated to remit to state and local tax collectors.

Tort Law

Medical Practice Standards. Supports the development and use of evidence-based, clinical or medical practice guidelines or standards regarding patient care and safety that are created by independent organizations comprised of experts, recognizing the need to incorporate updates on a continuous basis and further recognizing that such guidelines are not necessarily synonymous with the applicable standard of care in any particular jurisdiction.

Medicare Secondary Payer Act. Urges Congress to acknowledge that there is no regulatory or statutory basis for medical set-asides for third-party liability settlements, judgments or awards under the Medicare Secondary Payer Act, and to provide clear, predictable and consistent procedures for the submission, uniform determination and timely approval of any third-party medical set-aside settlement proposals voluntarily submitted to the Centers for Medicare & Medicaid Services (CMS) in response to the non-binding recommendations of CMS.

Seized Animals. Urges federal, state, tribal, territorial and local legislative bodies and governmental agencies to enact laws and implement policies to ensure the humane treatment and disposition of seized animals in a timely manner.

Youth at Risk

Bullying. Urges federal, state, territorial, tribal and local officials to prevent and remediate the existence and dangers of bullying, including cyberbullying and youth-to-youth sexual and physical harassment, by, among other things, defining these acts and developing education programs to assist teachers, parents and children in identifying victims and enhancing appropriate interventions.

Teen Courts. Urges federal, state, territorial, tribal and local governments to create and provide appropriate support for Youth or Teen Courts that will divert youth from the formal consequences of juvenile court petitions, proceedings, adjudications or juvenile justice sanctions.

Uniform State Laws

The delegates approved the following uniform state laws: Uniform Partition of Heirs Property Act; Uniform Faithful Presidential Electors Act; Uniform Electronic Recordation of Custodial Interrogations Act; Amendment to Article 9 of the Uniform Commercial Code; and Uniform Military and Overseas Voters Act.

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