Category Archives: Laws/Legislation

Race, Gender, and Equal Protection Jurisprudence

Source: Dan Ziebarth, George Washington University, Date Written: July 21, 2019

From the abstract:
This essay forwards the discussion of equal protection jurisprudence concerning considerations of fairness and equality in relation to race and gender through a four-section comparative assessment. Section I will describe the historical and jurisprudential background of issues and debates in racial discrimination. Section II will describe the historical and jurisprudential background of issues and debates in gender discrimination. Section III will analyze the distinct convergence and divergences that have appeared in constitutional interpretation of equal protection jurisprudence. Section IV will assess the underlying theoretical disparities between two major schools of thought in equal protection jurisprudence, referred to as colorblind constitutionalism and antisubordination constitutionalism. Finally, the conclusion will provide remarks on equal protection jurisprudence, discuss how this has affected the state of contemporary social affairs, and argue for the adoption of equal protection jurisprudence that focuses on just procedure, which targets the consistency in unbiased processes of judicial application, as opposed to the final decision, as principal in the determination of fair and equal treatment in the administration of justice.

Democracy Diverted: Polling Place Closures and the Right to Vote

Source: Leadership Conference Education Fund, 2019

From the summary:
The surge in voting changes at the state and local level after the U.S. Supreme Court’s Shelby County v. Holder decision catalyzed a systemic examination of poll closures and other seemingly innocuous changes that could have negatively impacted voters of color. In 2016, The Leadership Conference Education Fund identified 868 polling place closures in formerly Section 5 jurisdictions in our initial report, The Great Poll Closure. This report, Democracy Diverted: Polling Place Closures and the Right to Vote, is both an update to — and a major expansion of — our original publication.

Our first report drew on a sample of fewer than half of the approximately 860 counties or county-equivalents that were once covered by Section 5. This report covers an expanded data set of 757 counties. What’s more, the 2016 report relied on voluntary reports of aggregate numbers of polling places that state election officials gave to the U.S. Election Assistance Commission. This report relies largely on independent counts of polling places from public records requests and publicly available polling place lists.

In this report, we found 1,688 polling place closures between 2012 and 2018, almost double the 868 closures found in our 2016 report. Additionally, Democracy Diverted analyzes the reduction of polling places in the formerly covered Section 5 jurisdictions in the years between the 2014 and 2018 midterm elections. We found 1,173 fewer polling places in 2018 — despite a significant increase in voter turnout. To understand the discriminatory impact of these closures, we analyzed how voters of color were impacted at the precinct level. This analysis — precisely the kind that the U.S. Department of Justice conducted under preclearance — takes time and resources. Our hope is that journalists, advocates, and voters will use this county-level polling place data to scrutinize the impact of poll closures in their communities, to understand their impact on voters of color, and to create a fairer and more just electoral system for all.

Antitrust, the Gig Economy, and Labor Market Power

Source: Marshall Steinbaum, Law and Contemporary Problems, Vol. 82 no. 3, 2019

Worker bargaining power has diminished over the last forty years. Between 1948 and 1979, median wages closely tracked output per worker. Since then, productivity has continued to increase (until leveling off in the decade of the 2000s), while median pay has stagnated, creating an ever-widening gap between median wages and productivity. The widening gap contrasts with the central prediction of neoclassical economic theory about the labor market: that workers are paid what they are worth. At the same time, inequality within the distribution of labor income is higher, and has risen faster, than can possibly be explained by any notion of a skills gap between workers and the needs of today’s employers. And since the 2000s, these dual trends demarcating the declining bargaining power of workers in the economy have been joined by a third: the reduction in labor’s share of national income, which economists had assumed was stable over the long run. In fact, it has ratcheted downward over the last two business cycles.

The aim of this paper is to augment the interpretation of these trends with an element that has received very little attention from labor-oriented scholars: the decline and erosion of antitrust law and its enforcement. Whereas there was once a sharp line where labor law ended and antitrust began, there is now a gray area, within which a more powerful firm can tell a less-powerful contractor or worker what to do without being liable under antitrust or labor law. The erosion of the statutory employment relationship, and thus the ability of employers to evade the obligations that go along with it, has received wide attention from labor scholars and in public debate. What has been ignored is that the deterioration of antitrust is what legally allows more powerful firms to tell subordinate firms, contractors, and workers what to do even if those subordinates are not, legally, their employees. Antitrust has also prevented those same subordinates from coordinating among themselves to strengthen their own hand in negotiations.

This paper considers two different ways that antitrust has contributed to the increasing imbalance of power between employers and workers. First, antitrust has legalized vertical restraints, allowing the economy’s most powerful actors to closely direct and supervise the behavior of less-powerful actors. Second, antitrust has been used by those same powerful actors to prevent less-powerful actors from organizing and coordinating on their own behalf against such concentrations of power. Parts II and III of this article deal with each of these, and the Part IV proposes a policy agenda for putting the antitrust laws to work in the labor market according to their original purpose: namely, to deconcentrate economic power…..

Lawmakers Target Anti-Poverty Programs After Paid Trips to Disney

Source: Jared Bennett, Center for Public Integrity, September 4, 2019  
This story was published in partnership with Vox.

A conservative think tank is pushing policies limiting food aid and other anti-poverty measures. After being wined and dined, Republican lawmakers are coming on board.

In December, the Foundation for Government Accountability hosted public officials from across the country in Orlando. The scene: Walt Disney World’s Swan and Dolphin Resort, an ocean-themed oasis with palatial fountains next to a lake lined with palm trees.

The FGA, a right-leaning think tank based in Naples, Florida, paid travel and lodging expenses for many of the conservative leaders in attendance, including Kentucky Gov. Matt Bevin and three White House aides.

Guests heard presentations such as “Stop the Scam: The Reality of Food Stamp Fraud.” Between sessions, the foundation treated attendees to catered desserts and a fireworks display from a terrace featuring a faux Eiffel Tower overlooking the Epcot World Showcase Lagoon, according to invitations obtained by the Center for Public Integrity through open-records requests.

The FGA aimed to send decision-makers back to their respective states, or the nation’s capital, with fresh zeal to restrict access to public assistance programs designed for low-income people, including Medicaid and the Supplemental Nutrition Assistance Program, or SNAP, formerly known as the Food Stamp Program. The association even provided road maps for achieving this goal in the form of model legislation — suggested wording for laws and regulations that could serve as a template for like-minded policymakers…..

….The FGA and its 501(c)(4) nonprofit lobbying wing, the Opportunity Solutions Project, advocate for a variety of policy proposals, from reforming licensing requirements for workers set by state and local governments, to installing work requirements for Medicaid and blocking that program’s expansion under the Affordable Care Act, also known as Obamacare…..

Copy, Paste, Legislate

Source: Center for Public Integrity, 2019

How special interest groups achieve their goals by enlisting friendly lawmakers to quietly push ‘model legislation’ in statehouses nationwide.

Articles include:
They copied bills from corporations. These lawmakers say that’s OK.
Source: Matt Wynn, James Sergent, Aamer Madhani, Center for Public Integrity, July 18, 2019

Legislators agreed to carry copycat bills handed to them by companies, lobbyists and special interests seeking to write states’ laws in bulk.

The network behind state bills ‘countering’ Sharia law and terrorism
Source: Center for Public Integrity, July 18, 2019

For anti-abortion activists, success of ‘heartbeat’ bills was 10 years in the making
Source: Center for Public Integrity, June 20, 2019

Women’s rights fighters take a page from the anti-abortion playbook
Source: Center for Public Integrity, June 20, 2019

Adoption centers: the latest battleground for religious freedom
Source: Center for Public Integrity, June 10, 2019

Related:
Copy, Paste, Legislate: You elected them to write new laws. They’re letting corporations do it instead.
An investigation by USA TODAY, The Arizona Republic and the Center for Public Integrity
Soure: Rob O’Dell, and Nick Penzenstadler, USA TODAY, June 19, 2019

….USA TODAY and the Republic found at least 10,000 bills almost entirely copied from model legislation were introduced nationwide in the past eight years, and more than 2,100 of those bills were signed into law. The investigation examined nearly 1 million bills in all 50 states and Congress using a computer algorithm developed to detect similarities in language. That search – powered by the equivalent of 150 computers that ran nonstop for months – compared known model legislation with bills introduced by lawmakers. The phenomenon of copycat legislation is far larger. In a separate analysis, the Center for Public Integrity identified tens of thousands of bills with identical phrases, then traced the origins of that language in dozens of those bills across the country…..

• Models are drafted with deceptive titles and descriptions to disguise their true intent. The Asbestos Transparency Act didn’t help people exposed to asbestos. It was written by corporations who wanted to make it harder for victims to recoup money. The “HOPE Act,” introduced in nine states, was written by a conservative advocacy group to make it more difficult for people to get food stamps.

• Special interests sometimes work to create the illusion of expert endorsements, public consensus or grassroots support. One man testified as an expert in 13 states to support a bill that makes it more difficult to sue for asbestos exposure. In several states, lawmakers weren’t told that he was a member of the organization that wrote the model legislation on behalf of the asbestos industry, the American Legislative Exchange Council.

• Bills copied from model legislation have been used to override the will of local voters and their elected leaders. Cities and counties have raised their minimum wage, banned plastic bags and destroyed seized guns, only to have industry groups that oppose such measures make them illegal with model bills passed in state legislatures. Among them: Airbnb has supported the conservative Arizona-based Goldwater Institute, which pushed model bills to strike down local laws limiting short-term rentals in residential neighborhoods in four states.

• Industry groups have had extraordinary success pushing copycat bills that benefit themselves. More than 4,000 such measures were introduced during the period analyzed by USA TODAY/Arizona Republic. One that passed in Wisconsin limited pain-and-suffering compensation for injured nursing-home residents, restricting payouts to lost wages, which the elderly residents don’t have…..

Why the Right Hates Voting Rights: An Interview With Ari Berman

Source: Luke Savage, Jacobin, September 6, 2019

Conservatives in the United States know they can’t win on a level playing field — so they’ve started rigging the electoral rules in their favor, democracy be damned.

When the Republican Party recaptured the House in the 2010 midterm elections, it marked not only the end of a relatively brief period of Democratic control but also the beginning of a wider offensive against voting rights that has been underway ever since. By capturing key statehouses in 2010 and in the years that followed, Republicans have been increasingly able to tilt the electoral process in their favor — a strategy that has profoundly affected the results of recent elections and was one of the major backdrops to Donald Trump’s surprise Electoral College victory in 2016.

Jacobin’s Luke Savage sat down with Mother Jones senior reporter Ari Berman to discuss the history of gerrymandering and voter suppression — and the considerable impact both continue to have on the course of US politics.

Will Nondisclosure Agreements Become A Relic Of The Past?

Source: Maureen Minehan, Employment Alert, Volume 36, Issue 18, September 4, 2019
(subscription required)

An employee alleges her manager sexually harassed her for months. She quits and files a lawsuit alleging sex discrimination. After a series of negotiations, she agrees to settle the charges for $100,000 and a positive reference. In exchange, your company wants her to sign a nondisclosure and non-disparagement agreement to protect you from bad publicity. You know some states have outlawed this practice in the wake of the #MeToo movement. Is it still legal?

A Constitutional Standard to End Gerrymandering

Source: Alton Frye, PA Times, Vol. 5 no. 1, Spring 2019
(subscription required)

To cure the corruption of gerrymandering, take the profit out of it. The Constitution provides the standard for doing so by specifiying that representatives are to be chosen “by the People of the several States.” That provision followed debate in the convention of 1787 that, according to James Madison’s notes, explicitly rejected the option of empowering state legislatures to choose members of the federal house of representatives. In practice, by asserting authority to draw congressional district lines on a partisan basis, state legislatures have usurped the power vested by the Constitution in the people of the states.

Analysis demonstrates that allocating seats in the House according to the statewide vote of the people would produce a national legislature comparable in partisan balance to the current House, but with much greater equity among the parties at the state level. Applying that constitutional mechanism would rob parties of the advantage sought from gerrymandering and create incentives for the fair redistricting procedures that courts and citizens have long sought. This study illustrates the outcomes that would result, increasing competitiveness in 39 states…..

Employee Benefits—Proposed Regulations Provide Employers with More Flexibility in Offering HRAs to Employees

Source: Mark E. Bokert and Alan Hahn, Employee Relations Law Journal, Vol. 45, No. 1, Summer 2019
(subscription required)

From the abstract:
The Departments of Treasury, Labor, and Health and Human Services jointly issued proposed regulations (the “Proposed Regulations”) providing employers with greater flexibility in offering health reimbursement arrangements (“HRAs”) to employees. Importantly, if the Proposed Regulations are finalized in substantially its current form, employers would be able to offer employees an HRA that “integrates with” individual health insurance coverage. As a result, these Proposed Regulations, in essence, would enable employers to offer HRAs in lieu of a traditional group health plan to their employees. Additionally, the Proposed Regulations set forth conditions under which an HRA can be recognized as a limited excepted benefit HRA, which provides employers with another vehicle to provide employee benefits to their employees.

The Proposed Regulations are set to take effect for plan years beginning on and after January 1, 2020, although this is dependent on the regulations being finalized. The deadline for submitting comments on the Proposed Regulations was December 28, 2018.

The Courts Won’t End Gerrymandering. Eric Holder Has a Plan to Fix It Without Them.

Source: Ari Berman, Mother Jones, July/August 2019

While Democrats are fixated on 2020, Holder is fighting for fairer maps in 2021 and beyond. ….

….So Holder is pursuing a new strategy, trying to elect down-ballot candidates who can deliver fairer maps and voting laws. The NDRC invested $350,000 in the Wisconsin Supreme Court race, hoping that a liberal majority on the seven-­member court might strike down any egregious gerrymanders in the next round of redistricting in 2021. “I don’t think that 10 years or so ago, you would have a former attorney general campaigning for a state Supreme Court justice,” Holder told me. “This is a recognition on the part of the Democratic Party, on the part of progressives, that we need to focus on state and local elections to a much greater degree than we have in the past.”

But if Democrats are belatedly recognizing this need, few besides Holder are acting on it. He is playing a long game in a party driven by instant gratification and consumed by the mess in the White House. While the party’s presidential contenders are attracting big crowds, donors, and volunteers determined to defeat President Donald Trump in 2020, Holder is focused on 2021…..