Category Archives: Laws/Legislation

COVID-19 Occupational Licensure Policy Responses

Source: Council of State Governments, 2020

While occupational licensing regulations provide certain public health and safety safeguards, the increased health care demands imposed by COVID-19 have compelled states to evaluate which regulations may impede response efforts.

In response, states have implemented executive orders/proclamations, legislation and administrative rulings that temporarily amend certain regulations to increase the supply of health care workers, lessen administrative burdens and comply with social distancing measures.

While many of these actions were made during the onset of the COVID-19 state of emergency and exist only temporarily, states may consider additional policy actions that may be needed in the event of subsequent rises in COVID-19 cases and future health emergencies.

The following information presents a collection of state actions, categorized by policy themes and types, to assist states with developing response plans.

National data release sheds light on past polling place changes

Source: Carrie Levine, Pratheek Rebala, Matt Vasilogambros, Center for Public Integrity and Stateline, September 29, 2020

The first installment of a new national data release that will help journalists and researchers analyze polling place accessibility was released Tuesday as part of an investigative series, Barriers to the Ballot Box, from The Center for Public Integrity and Stateline. The data, posted to Github, includes polling place locations and addresses for 30 states for the 2012, 2014, 2016 and 2018 general elections, and is aimed at aiding reporting and research on the impact that polling place closures and changes could have on the 2020 election. Data for additional states will be added in the coming weeks.

Polling place reductions and changes can lower turnout by creating confusion and barriers for voters, potentially disenfranchising them. There is no national public dataset of polling place locations and addresses for past federal elections.

…The polling place location information, now in a usable data format, standardized and available to the public, can be used to track the movement and consolidation of polling places. Combined with other data, such as voter file data, it can shed new light on which voters were affected by the changes. …

…U.S. elections are administered by thousands of separate jurisdictions. Every state has different laws and deadlines governing voting, which can include unique requirements for polling places. Local authorities typically choose them based on a variety of factors.

Public Integrity and Stateline filed and tracked roughly 1,200 records requests to assemble the polling place location data.

In 12 states — Alabama, California, Georgia, Idaho, Kansas, Minnesota, Missouri, New Mexico, New York, Tennessee, Texas and Wyoming — data had to be obtained county by county for at least one of those elections….

What Is ALEC? Learn About the Organization Writing Your State Laws

Source: Sophie Hayssen, Teen Vogue, September 25, 2020

The American Legislative Exchange Commission writes “model legislation” that detractors say “sustains corporate power.”

….ALEC has existed for decades, but spent most of its life in the shadows, cultivating a reputation as a conservative organizational powerhouse. On its website, ALEC describes itself as a “nonpartisan” organization “of state legislators dedicated to the principles of limited government, free markets, and federalism.” Though that description may appear staid at first glance, its detractors argue that ALEC is central to some of the most profound shifts in American politics over the last several decades. Groups like Dream Defenders and the Center for Constitutional Rights, have accused it of resembling a “shadow-state apparatus” and promoting “legislation that sustains corporate power.”

Here’s what you need to know about the controversial organization…..

Learning from Campaign Finance Disclosures

Source: Abby K. Wood, University of Southern California Gould School of Law, USC CLASS Research Papers Series No. CLASS20-10, Date Written: June 10, 2020

From the abstract:
In an age of dark money – the anonymous political spending facilitated by gaps in our campaign finance disclosure laws after Citizens United – the Supreme Court’s campaign finance disclosure jurisprudence may be on a collision course with campaign finance disclosure laws. The collision can be avoided if the court right-sizes its assumptions around the informational benefits of campaign finance disclosure. It is therefore urgent to help the court understand what we learn from campaign finance transparency.

Campaign finance transparency teaches us more than one-dimensional information about how progressive or conservative a candidate is. It also helps us learn about candidate type. As I explain in this Article, social scientists, including myself, have run several studies examining voter learning from campaign finance information. When voters learn about a candidate’s position with regards to dark money, they learn and vote differently than if they did not have that information. And, as I show using experimental methods and using data from the FEC audits in the 1970s, where campaign finance compliance information is available to voters, voters reward over compliance and punish failure to comply. In other words, transparency about campaign finance disclosure and compliance informs voters.

These findings point to useful policy innovations for states and cities while the federal government is unable or unwilling to regulate, such as “disclosure disclaimers” and campaign finance audits. I explain implications for the courts, campaigns, and policymakers, as well as limitations on the argument.

Wealth Tax Design: Lessons from Estate Tax Avoidance

Source: Jason Oh, Eric M. Zolt, UCLA School of Law, Law-Econ Research Paper No. 20-01, January 27, 2020

From the abstract:
Presidential candidates Elizabeth Warren and Bernie Sanders have both proposed ambitious new annual wealth taxes based on academic work by Emmanuel Saez and Gabriel Zucman. They project these proposals to raise trillions of dollars over the next ten years. Some critics challenge the Saez-Zucman approach to measuring the aggregate wealth of those subject to a wealth tax. Other critics including Larry Summers and Natasha Sarin have used data from estate tax returns and the relatively small amount of revenue the estate tax currently raises to question the revenue projections of these proposals. This comparison can be useful only if one thinks carefully about specific estate tax strategies and how these strategies translate to an annual wealth tax. This article engages in that exercise. When one takes a closer look at estate tax avoidance and how it maps onto an annual wealth tax, a much more complex narrative emerges.

That narrative has four major themes. First, there are some estate tax planning techniques (like valuation games and charitable contributions) which pose similar challenges to an annual wealth tax. These structures provide some support for critics like Summers and Sarin who argue that the annual wealth tax will struggle to raise the projected revenue. Second, other structures (such as grantor-retained annuity trusts ) work well to minimize estate taxes but are of limited use for structuring around an annual wealth tax. Projecting wealth tax revenue using estate tax revenue without considering the revenue consequences of these strategies will understate wealth tax revenue. Third, other techniques (including the use of lifetime estate/gift exemptions) highlight possible synergies between an estate and wealth tax. In many ways, a robust estate tax will make the wealth tax harder to avoid and vice-versa. The converse is also true: a poorly designed estate/gift tax will undermine an annual wealth tax. Adopting a wealth tax without strengthening the gift and estate makes little sense. Fourth, one of the major lessons of estate tax planning is that it is much easier to minimize estate taxes on future wealth than existing wealth. A myriad of techniques allow taxpayers to “freeze” the value of assets for estate tax purposes. Freezing techniques will also prove helpful in minimizing wealth taxes. It is possible that even a well-designed wealth tax will have a base that shrinks rather than grows over time.

Coronavirus Response Resource Center

Source: Government Finance Review, 2020

The resources in this center reflect the latest guidance and materials on the recently enacted laws passed in response to the coronavirus pandemic. The programs and funding were included in the Families First Coronavirus Response Act (FFCRA) and the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). Given the fluid nature in the release of guidance and implementation of the various programs.

Breaking contracts over coronavirus: Can you argue it’s an ‘act of God’?

Source: Andrew Schwartz, The Conversation, March 31, 2020

The coronavirus pandemic has prevented countless people from fulfilling their contracts, from basketball players to babysitters. Could all of these people be sued for breach of contract, or are they excused due to this extraordinary event? What about payments made in advance, such as tickets bought for a concert that has now been canceled or a dorm room leased at a college that is now closed? ….

….Force majeure clauses are common in corporate contracts. They dictate which types of unexpected events will excuse performance and how to deal with payments already made or other losses. The precise wording of these clauses is key. Some might expressly mention pandemics or government orders, while others might not. Similarly, some clauses might call for full restitution, while others might provide for 50% refunds or no refund at all. Whatever the force majeure clause says will displace the ordinary rules of impossibility and restitution.

The contract between the NBA and its players, for example, includes a force majeure clause that specifically covers epidemics. It states that basketball teams can withhold part of their players’ salaries for each canceled game, and ESPN reported that the league was considering it. ….

Labor Antitrust’s Paradox

Source: Hiba Hafiz, Boston College Law School Legal Studies Research Paper No. 521, Last revised: 19 January 19, 2020

From the abstract:
Growing inequality, the decline in labor’s share of national income, and increasing evidence of labor market concentration and employer buyer power are all subjects of national attention, eliciting wide-ranging proposals for legal reform. Many proposals hinge on labor market fixes and empowering workers within and beyond existing work law or through tax-and-transfer schemes. But a recent surge of interest focuses on applying antitrust law in labor markets, or “labor antitrust.” These proposals call for more aggressive enforcement by the Department of Justice (DOJ) and Federal Trade Commission (FTC) as well as stronger legal remedies for employer collusion and unlawful monopsony that suppresses workers’ wages.

The turn to labor antitrust is driven in part by congressional gridlock and the collapse of labor law as a dominant source of labor market regulation, inviting regulation through other means. Labor antitrust promises an effective attack because agency discretion and judicial enforcement can police labor markets without substantial amendments to existing law, bypassing the current impasse in Congress. Further, unlike labor and employment law, labor antitrust is uniquely positioned to challenge industry-wide wage suppression; suing multiple employers is increasingly challenging in work law as a statutory, doctrinal, and procedural matter.

But current labor antitrust proposals, while fruitful, are fundamentally limited in two ways. First, echoing a broader antitrust policy crisis, they inherit and reinvigorate debates about the current consumer welfare goal of antitrust. The proposals ignore that, as a theoretical and practical matter, employers’ anticompetitive conduct in labor markets does not necessarily harm consumers. As a result, workers’ labor antitrust challenges will face an uphill battle under current law: where consumers are not harmed, labor antitrust can neither effectively police employer buyer power nor fill gaps in labor market regulation left by a retreating labor law. Second, the proposals ignore real synergies between antitrust enforcement and labor regulation that could preempt the rise of employer buyer power and contain its exercise.

This Essay analyzes the limitations of current labor antitrust proposals and argues for regulatory sharing between antitrust and labor law to combat the adverse effects of employer buyer power. It makes three key contributions. First, it frames the new labor antitrust as disrupting a grand regulatory bargain, reinforced by the Chicago School, that segregated labor and antitrust regulation to resolve a perceived paradox in serving two masters: workers and consumers. The dominance of the consumer welfare standard resolved that paradox. Second, it explains how scholarly attempts to invigorate labor antitrust fail to overcome this paradox and ignore theoretical and doctrinal roadblocks to maximizing both worker and consumer welfare, leaving worker plaintiffs vulnerable to failure. Third, it proposes a novel restructuring of labor market regulation that integrates antitrust and labor law enforcement to achieve coherent and effective regulation of employer buyer power. It refocuses labor antitrust claims on consumer welfare ends and relegates worker welfare considerations to a labor law supplemented and fortified by the creation of substantive presumptions and defenses triggered by labor antitrust findings as well as labor agency involvement in merger review.

Janus-Faced Judging: How the Supreme Court is Radically Weakening Stare Decisis

Source: Michael Gentithes, Loyola University Chicago School of Law, January 16, 2020

From the abstract:
Drastic changes in Supreme Court doctrine require citizens to reorder their affairs rapidly and undermine trust in the judiciary. Stare decisis has traditionally limited the pace of such change on the Court, acting as a bulwark to wholesale jurisprudential reversals by the Justices. Yet in recent years, the stare decisis doctrine itself has come under threat.

With little public or scholarly notice, the Supreme Court has radically weakened stare decisis. The Court has long suggested that a precedent, regardless of the quality of its reasoning, should stand unless there is some special, practical justification to overrule it. But in several recent decisions, the Court has suggested that “poor reasoning” in a prior decision both triggers stare decisis analysis and justifies overruling cases. This presents a grave threat to legal stability. Justices can always find reasoning they believe is “poor” in prior decisions. Stare decisis under this formulation provides little restraint against changing course. It also opens the door to “wave theories” of stare decisis, whereby new Justices seeking rapid change can claim fidelity to a weak version of stare decisis early in their careers, only to suggest a stronger version later to protect their own decisions.

This weakened version of stare decisis has deep analytical flaws that would allow perpetual changes to legal doctrine based simply on the current Justices’ policy preferences. The Court must not accept the alarming effects such a weak version of stare decisis would have on legal stability, consistency, and judicial legitimacy.