Category Archives: Laws/Legislation

Race, Law, and Inequality, 50 Years After the Civil Rights Era

Source: Frank W. Munger and Carroll Seron, Annual Review of Law and Social Science, Vol. 13, October 2017
(subscription required)

Over the last several decades, law and social science scholars have documented persistent racial inequality in the United States. This review focuses on mechanisms to explain this persistent pattern. We begin with policy making, a mechanism fundamental to all the others. We then examine one particularly important policy, the carceral state, which can be described as the most important policy response to the civil rights era. A significant body of scholarship on employment discrimination presents a site for explaining the transformation of law on the books into the law in action. Finally, we review scholarship on the persistence of segregation and concentrated neighborhood disadvantage and their attendant impact on racial inequality. We conclude with two themes that deserve special emphasis: the need for theory drawing these fields together and our need, above all at this moment in our history, for public scholarship changing the discourse, politics, and law perpetuating racial inequality.

IssueVoter

Source: IssueVoter, 2017

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  • What Unions Do for Regulation

    Source: Alison D. Morantz, Annual Review of Law and Social Science, Vol. 13, 2017
    (subscription required)

    From the abstract:
    The question of how organized labor affects the content, enforcement, and outcomes of regulation is especially timely in an era in which protective laws and regulations are being scaled back or minimally enforced and union membership is in decline. This article surveys literature from a wide array of regulatory domains—antidiscrimination, environmental protection, product quality, corporate governance, law enforcement, tax compliance, minimum wage and overtime protection, and occupational safety and health—in an effort to identify common findings on what unions do for regulation. Literature on the topic has taken up five questions: how labor unions affect the passage of protective laws and regulations; how they affect the outcomes that regulators target; how they affect the intensity of regulatory enforcement; the specific activities and channels of influence they use to influence regulated outcomes; and the role they play in self-regulation. Drawing on empirical literature from the domains listed, I review and analyze literature on each of these questions and offer several conclusions and suggestions for future research.

    Presidential obstruction of justice: The case of Donald J. Trump

    Source: Barry H. Berke, Noah Bookbinder, and Norman Eisen, Brookings Institution, October 10, 2017

    From the introduction:
    In this paper, we break down and analyze the question of whether President Trump may have obstructed justice and explain the criminal and congressional actions that could follow from an obstruction investigation. Addressing the possibility of criminal behavior by President Trump and the complicated issues it raises is not a task that we take lightly. Dissecting allegations of criminality leveled against an individual who has been duly elected president and who has sworn to preserve, protect, and defend our Constitution is an inherently solemn task. But it is our hope that by presenting a rigorous legal analysis of the potential case against the president, we will help the American people and their representatives understand the contours of the issues, regardless of whether it is eventually litigated in a court of law, the halls of Congress, or the court of public opinion.

    Our paper proceeds in four parts. In Section I, we summarize the relevant facts and allegations that can be gleaned from witness testimony and credible media reports. In Section II, we explain the law governing obstruction of justice and how it applies to the apparent facts and allegations as currently known. In Section III, we lay out the options available after Special Counsel Mueller has completed his investigation. These options include referral of the case to Congress, indictment of the president, holding the case pending removal of the president, and closing the case without indictment. Finally, in Section IV, we discuss the actions that Congress could take concurrently with or in addition to Mueller’s investigation. We explain that although Congress’s decision to take those steps is ultimately governed by both political and legal standards, there is precedent for impeaching a president on grounds that he has obstructed justice, obstructed a congressional investigation, or been convicted of a crime, should those circumstances arise.

    We also have appended a number of documents that form the factual and legal basis for this white paper. Appendix A contains a factual chronology with the sources we relied on as well as a copy of former FBI Director James Comey’s statement for the record before the Senate Intelligence Committee. Appendix B contains copies of the federal obstruction laws and other relevant criminal statutes. Appendix C contains the authorities governing Special Counsel Mueller, including the Department of Justice’s special counsel regulations and the order defining his jurisdiction. Appendix D contains the articles of impeachment we discuss, official versions of which can be difficult to locate.

    Finally, one crucial caveat that is important to note: the publication of this paper comes at a time when our understanding of the facts is still developing and without the benefit of the investigative tools that a prosecutor (or even a defense attorney) might employ. While we fully expect that our understanding of the facts relevant to this case will improve in the weeks and months ahead, we believe that the analysis we provide and the precedents we have collected will be relevant to the discussion regardless of what the investigations by Special Counsel Mueller and by Congress uncover…..

    Related:
    Appendix

    Deregulating For Dollars: How Trump’s Anti-Regulation Agenda Could Boost His Own Pocketbook

    Source: David N. Cicilline and Rick Claypool, Public Citizen, October 11, 2017

    From the introduction:
    …. This report highlights six examples of cases in which President Trump’s business interests could benefit from his administration’s plans to dismantle public protections. Gutting these protections – the Environmental Protection Agency’s Clean Water Rule and ban on brain-damaging pesticide chlorpyrifos, the Department of Labor’s overtime rule, the National Labor Relations Board’s “joint employer” rule, the Equal Employment Opportunity Commission’s pay transparency rule and the Department of Homeland Security’s cap on H-2B visa workers — could benefit the Trump Organization. At the same time, these rollbacks would harm low- and middle-income Americans, many of whom supported his candidacy.

    The report also provides nine additional examples off anti-corruption restrictions, consumer protections and worker protections that could be rolled back under Trump, to the potential benefit of his companies. It also notes Trump’s potential conflicts of interest relating to an affordable housing program from which he and his family profit and details how Trump could benefit from restrictions on class action lawsuits and tax cuts to benefit corporations and the rich.

    At issue are not only the direct monetary gains that Trump may garner from deregulatory moves. His ongoing ownership of a wide range of business interests can’t help but color his approach to regulatory policy, as it relates both to specific rules and broad policy considerations.

    The stakes are high. Trump’s deregulatory agenda will result in more workers facing injuries and discrimination, more consumers ripped off and more pollution accelerating climate change and poisoning our air and water. The more Trump’s deregulatory agenda is realized, the more the costs will be borne by the American public. ….

    Electoral College Reform: Contemporary Issues for Congress

    Source: Thomas H. Neale, Congressional Research Service, CRS Report, R43824, October 6, 2017

    The electoral college method of electing the President and Vice President was established in Article II, Section 1 of the Constitution and revised by the Twelfth Amendment. It provides for election of the President and Vice President by electors, commonly referred to as the electoral college. A majority of 270 of the 538 electoral votes is necessary to win. For further information on the modern-day operation of the college system, see CRS Report RL32611, The Electoral College: How It Works in Contemporary Presidential Elections, by Thomas H. Neale ….

    MapLight – Data

    Source: Maplight.org, 2017

    MapLight tracks several data sets that you can search for evidence of money’s influence on politics.

    CAMPAIGN CONTRIBUTIONS
    Top contributions from major donors to congressional politicians.

    CONGRESSIONAL BILLS
    Bills paired with contributions, positions taken by special interests, and vote results.

    LEGISLATORS
    Profiles of elected officials with campaign finance statistics.

    LOBBYING
    See how much money companies and interest groups spend trying to influence lawmakers.

    BULK DATA SETS + APIS
    Use MapLight’s data for your own research or software project.

    The Supreme Court’s Quiet Assault on Civil Rights

    Source: Lynn Adelman, Dissent, Fall 2017
    (subscription required)

    It is a little-known and disturbing fact that the Supreme Court is in the process of gutting what may be the most important civil rights statute Congress has ever passed. It is particularly distressing that the harm is being done by a largely unanimous court—and that, other than a few legal scholars, no one seems to be paying any attention.

    The statute in question is Section 1983 of the United States Code, which was enacted in 1871 as part of Reconstruction. Section 1983 enables people to bring suits in federal court to enforce the rights created by the Fourteenth Amendment—which, among other things, prohibits state officials from depriving persons of due process and equal protection of the law. The law was designed to provide a federal remedy against officials who violated the rights of the newly freed slaves or who stood by while others, like the Ku Klux Klan, did so. Specifically, it authorizes individuals to sue in federal court “any person who under color of law” violates their constitutional rights. The purposes of the law are to compensate persons whose constitutional rights have been violated and to deter future violations. Actions brought under Section 1983 are known as constitutional tort suits.

    After Congress enacted Section 1983, the law lay largely dormant for some ninety years. In 1961, however, in Monroe v. Pape, the Warren Court breathed life into the statute. The plaintiff in Monroe alleged that thirteen Chicago police officers broke into his home in the early morning without a warrant, made his family stand naked, and interrogated him under physical threat. The Supreme Court upheld the plaintiff’s claim for damages under Section 1983 and interpreted the “under color of law” requirement to include actions by government officials taken under the badge of their authority even if the actions exceeded what they were permitted to do under state law. A police officer who used excessive force—as in the Monroe case—would be a prime example.

    As the result of Monroe, Section 1983 became the primary vehicle for enforcing constitutional rights in the United States, and that remains true to this day. As Professor Lynda Dodd of the City University of New York (CUNY) has shown, although the statute has never received as much attention as some of the 1960s-era statutes such as the Civil Rights Act of 1964, Section 1983 has served as a central pillar of civil rights work for more than half a century. It is the means by which plaintiffs challenge the use of excessive force by police officers, race-based patterns of stop and frisk, unconstitutional conditions of confinement, wrongful convictions, and other kinds of official misconduct…..

    The 2017 CPA-Zicklin Index of Corporate Political Disclosure and Accountability – Sustained Growth Among S&P 500 Companies Signals Commitment to Political Disclosure and Accountability

    Source: Bruce F. Freed, Center for Political Accountability (CPA), September 26, 2017

    The CPA-Zicklin Index benchmarks the political disclosure and accountability policies and practices of leading U.S. public companies. Issued annually, it is produced by the Center for Political Accountability in conjunction with the Zicklin Center for Business Ethics Research at The Wharton School at the University of Pennsylvania.

    The indicators used to score companies are available here, and the detailed Scoring Guidelines can be downloaded here. To see the raw data used to compile this report, see this spreadsheet.

    Related:
    Your favorite companies may be political black boxes
    Source: Lateshia Beachum, Center for Public Integrity, September 26, 2017

    A New Study Shows Just How Many Americans Were Blocked From Voting in Wisconsin Last Year

    Source: Ari Berman, Mother Jones, September 25, 2017

    Trump won the state by 22,748 votes. ….

    …..Even though Brinkman was already registered in Wisconsin and had other forms of ID, poll workers only allowed her to cast a provisional ballot. It was never counted. “I was very frustrated,” she said. “This past election was kind of a big one.” She described herself as “liberal” and said she didn’t vote for Donald Trump, who carried the state by just 22,000 votes.

    A comprehensive study released today suggests how many missing votes can be attributed to the new law. Researchers at the University of Wisconsin-Madison surveyed registered voters who didn’t cast a 2016 ballot in the state’s two biggest counties—Milwaukee and Dane, which is home to Madison. More than 1 out of 10 nonvoters (11.2 percent) said they lacked acceptable voter ID and cited the law as a reason why they didn’t vote; 6.4 percent of respondents said the voter ID law was the “main reason” they didn’t vote.

    The study’s lead author, University of Wisconsin political scientist Kenneth Mayer, says between roughly 9,000 and 23,000 registered voters in the reliably Democratic counties were deterred from voting by the ID law. Extrapolating statewide, he says the data suggests as many as 45,000 voters sat out the election, though he cautioned that it was difficult to produce an estimate from just two counties.*….

    Related:
    Elections Center Affiliates Release Initial Results from Voter ID Study
    Source: Professor Kenneth R. Mayer (Principal Investigator) and Ph.D. candidate Michael G. DeCrescenzo, September 25, 2017

    Initial findings from a new study on the effects of Wisconsin’s voter ID requirement.

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