Category Archives: Laws/Legislation

Why Courts Fail to Protect Privacy: Race, Age, Bias, and Technology

Source: Bernard Chao, Catherine S. Durso, Ian P. Farrell, Christopher T. Robertson, University of Denver – Sturm College of Law, Legal Studies Research Paper No. 17-03, February 23, 2017

From the abstract:
The Fourth Amendment protects against unreasonable “searches and seizures,” but in the digital age of stingray devices and IP tracking, what constitutes a search or seizure? The Supreme Court has held that the threshold question is supposed to depend on and reflect the “reasonable expectations” of ordinary members of the public concerning their own privacy. For example, the police now exploit the “third party” doctrine to access data held by email and cell phone providers, without securing a warrant, on the Supreme Court’s intuition that the public has no expectation of privacy in that information. Is that assumption correct? If judges’ intuitions about privacy do not reflect actual public expectations, it may undermine the legitimacy of the criminal justice system and exacerbate social unrest.

Although prior research has shown that the police disproportionately target younger people and minority communities, judges tend to be male, white, educated, affluent, and older than the general population. Their intuitions may thus be systematically different. Even worse, cognitive science suggests that judges may have difficulty putting themselves into the shoes of the searched person or considering the reasonableness of the police tactics from an ex ante perspective, without knowledge about the fruits of the search.

With 1200 respondents, we conducted a large-scale survey experiment to test whether, and if so, why, contemporary Fourth Amendment jurisprudence diverges from the societal norms it purports to protect and reflect. We identify a range of privacy expectations for 18 different police practices. We use oversampling, reweighting, and randomization to investigate particular causes of this disparity between judicial and public expectations. We conclude by suggesting better ways forward, so that social science evidence can replace judicial speculation.

The Autonomy Defense of Private Discrimination

Source: Heather Whitney, Harvard Law School; University of Chicago – Law School, Date Written: February 22, 2017

From the abstract:
While a number of concerns have been raised about the on-demand economy, evidence of discrimination has been especially noted and publically condemned. Airbnb, for instance, came under fire when a Harvard Business School study showed that property owners were less likely to accept those with black-sounding names as renters and non-black hosts were able to charge approximately 12% more than black hosts. Similarly, in an October 2016 working paper conducted by the National Bureau of Economic Research, researchers looking at taxi-services Uber and Lyft showed that the cancellation rate for those with black-sounding names was more than twice as high as for those with white-sounding names. At the same time, largely in other parts of the country, many condemn not discrimination but the antidiscrimination laws designed to curb it, especially laws aimed at shielding those within the LGBTQ community from discrimination. Debates about discriminatory immigration policies dominate national headlines. 70% of the country is aware of the Black Lives Matter movement. We are, in short, in the midst of an important conversation about discrimination, the likes of which we have not seen since the Civil Rights Movement. Legal theorists and philosophers have taken note, arguing for changes to our current antidiscrimination law regime. But while these theorists have disagreed about the proper scope of antidiscrimination law, they have widely agreed in one crucial respect: namely, that any expansion of antidiscrimination law beyond their preferred scope is problematic on autonomy grounds.

The centrality of “autonomy” in these debates should come as no surprise. Throughout our history of racial conflict, all sides have claimed the ideal of autonomy as an ally to their cause. This is possible because of the concept’s flexibility. “Autonomy” can support a range of positions, depending on the presuppositions it’s packaged with. But when scholars invoke “autonomy” in a way that simply deploys these underlying presuppositions, instead of making these presuppositions explicit, situating them against reasonable rivals, and defending them, they fail to have what scholars at this point in time most crucially need: perspective. These scholars seem to neither notice nor understand why those who take different positions on questions of autonomy, or on specific legal interventions, do so, because the real bases of disagreement – which resides within these presuppositions – remain hidden. As a result, their rejection of certain antidiscrimination law regimes and support of others do little to move the debate about the proper scope of antidiscrimination law forward. Antidiscrimination law scholars are trapped in an ongoing cycle of autonomy assertions and as a result, the important debate about the proper scope of antidiscrimination law remains stalled. We cannot afford this.

My aim in this Essay is one of illumination and aid. I attempt to show why the mere assertion that a certain antidiscrimination law “violates autonomy” hides from view the true basis of disagreement and, in so doing, both fails to engage the relevant arguments while also failing to provide readers any reason to adopt the author’s preferred antidiscrimination law regime. I will do this by illuminating the presuppositions underpinning the two main conceptions of autonomy that are invoked in the antidiscrimination law literature. I then situate these presuppositions alongside rival possibilities. My hope is that this project will aid the development of more fruitful antidiscrimination law scholarship moving forward.

Introduction: A close look at Judge Neil Gorsuch’s jurisprudence

Source: Amy Howe, SCOTUSblog, March 3, 2017

There will never be another Antonin Scalia. When he died on February 13, 2016, the brilliant and pugnacious jurist left behind a legacy that included almost singlehandedly bringing originalism – the idea that the Constitution should be interpreted according to what it meant when it was adopted – to the forefront of legal debate, both at the Supreme Court and more broadly. Accepting the nomination to fill the vacancy left by Scalia’s death, Judge Neil Gorsuch spoke for many when he called Scalia “a lion of the law.”

Like Scalia, Gorsuch describes himself as an originalist: In a 2016 speech at Case Western Reserve University, he told his audience that judges should interpret the Constitution and the law “by focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be.” But, if he is indeed confirmed, what effect will Gorsuch have on specific areas of the law? Last fall we hosted a symposium in which 25 different authors took closer looks at the effect that a hypothetical conservative or liberal nominee to replace Scalia might have on high-profile issues like reproductive rights, the First Amendment and class actions.

With confirmation hearings for Gorsuch scheduled to begin on March 20, we are no longer operating in the abstract. In his ten years on the U.S. Court of Appeals for the 10th Circuit, Gorsuch has still not weighed on all of the topics that we covered in last year’s symposium – including, for example, affirmative action, abortion and gun rights. But there is still plenty to learn about his jurisprudence and views on other topics, and how those views might compare with Scalia’s. Today we will kick off a series of posts by blog staffers and lawyers from the law firm of Goldstein & Russell, P.C., that will examine those views in greater depth and, we hope, provide a better sense of how Gorsuch might change the court, if at all.

How ‘voter fraud’ crusades undermine voting rights

Source: Jesse Rhodes, The Conversation, February 1, 2017

….Put bluntly, there is no evidence of widespread voter fraud by impersonation in the United States. “Impersonation” is what we call the deliberate misrepresentation of identity by individuals in order to manipulate election outcomes.

Research suggests allegations of voter fraud and the calls for stringent election rules are motivated by the desire to suppress voting by citizens of color.

Because stringent election rules suppress minority voting, Trump’s call for an attack on nonexistent voter fraud should be met with serious concern by all Americans. The last thing the United States needs is more measures that make it harder to vote. ….

Attention, State Government Watchdogs: You Might Need This

Source: Linda Poon, CityLab, February 9, 2017

A new search engine called Digital Democracy can comb through videos, transcripts, and records of what goes on in America’s statehouses. … Some of this kind of information is recorded, but little is released in a timely manner or can be easily accessed by the public. Blakeslee aims to change that with Digital Democracy, an online tool that archives every state hearing in California—and now, New York—since 2015 through videos, transcripts, and records of who said what. The tool also keeps track of elected officials and their financial ties to lobbyists and big corporations—all searchable by name, issue, bill number, etc. Think of it as Google for state government. … First launched in 2015 in California with cofounder and California Lieutenant Governor Gavin Newsom, the tool is now being taken across the country to New York via a partnership with NAACP. Digital Democracy now has information on some 15,000 individuals involved in policymaking in those two states. Eventually, Florida and Texas will get their own platforms, expanding Digital Democracy’s reach to roughly a third of all U.S. citizens….

Drug Testing Unemployment Insurance Applicants: An Unconstitutional Solution in Search of a Problem

Source: Rontel Batie, George Wentworth, National Employment Law Project (NELP), Policy Brief, February 2017

From the summary:
Historically, states have never drug tested applicants for unemployment insurance (UI), primarily because the Social Security Act prohibits states from adding qualifying requirements that do not relate to the “fact or cause” of a worker’s unemployment. In the aftermath of the Great Recession, however, some states, in a misguided effort to try to contain the high costs of their UI programs due to high unemployment rates, began clamoring to drug test UI applicants. Their hypothesis (without any facts or data to back it up) was that claims would somehow substantially decrease, either as workers tested positive for drugs or declined to apply because of their drug use.

Mindful of the goal of drug-free workplaces but also of the lack of any data that drug use was an issue among the unemployed, in 2012, Congress reached a narrow compromise on drug testing UI claimants, one that took into account the serious constitutional issues with suspicionless drug testing. Congress agreed to allow, not require, states to test UI claimants in two specific, narrow circumstances: (1) workers who had been discharged from their last job because of unlawful drug use, and (2) workers looking for jobs in occupations where applicants and employees are subject to regular drug testing. Consistent with the new federal law, the U.S. Department of Labor issued regulations that closely tracked the legislation, defining occupations subject to regular testing to mean occupations where testing is legally required (either now or in the future), and not merely permitted.

Congressional Republicans, unhappy with the compromise they agreed to in 2012, have criticized the Labor Department regulations since they were proposed, claiming they were too narrowly drawn even though they closely tracked the legislation. The House of Representatives is now planning to invoke the Congressional Review Act to invalidate these regulations; and presumably, proponents of drug testing are counting on passage of a bill introduced in the 114th Congress by Rep. Kevin Brady (R-TX) that would effectively allow states to drug test all jobless workers filing for unemployment insurance. This bill, which we expect will be reintroduced shortly, would allow states to define occupations that “regularly” drug test to include all occupations where testing (including pre-employment testing) is permitted. If passed, this bill would open the floodgates for states to arbitrarily and unconstitutionally drug test its citizens solely because they are applying for UI benefits.

No one should be so confident that this bill could pass the Senate. Proponents have been trying to build support for drug testing UI claimants for years; but for the very narrow compromise reached in 2012, there has been no wider bipartisan support for the policy. Indeed, that is because such drug testing is simply another humiliation piled onto unemployed workers—a hurdle designed to be so stigmatizing that it discourages people from even applying for a benefit that they have earned in the first place….

The Foreign Emoluments Clause and the Chief Executive

Source: Andy Grewal, University of Iowa, Legal Studies Research Paper No. 2017-12, February 3, 2017

From the abstract:
The 2016 Presidential election brought widespread attention to a part of the Constitution, the Foreign Emoluments Clause, that had previously enjoyed a peaceful spot in the dustbin of history. That clause generally prohibits U.S. Officers from accepting “emoluments” from foreign governments, absent Congressional consent. Several commentators believe that President Trump will inevitably run into this prohibition, given the global business dealings of the Trump Organization. They read “emolument” as referring to any payment received from a foreign government, such that even a diplomat’s payment of a room reservation fee at the Trump Hotel establishes an impeachable offense.

This Article argues that the commentators have interpreted emoluments far too broadly. Numerous legal authorities show that “emoluments,” as used in the Foreign Emoluments Clause, refer to payments from a foreign government made in exchange for the U.S. Officer’s performance of services (office-related compensation). The term does not refer to any and all payments from a foreign government.

Putting aside definitional issues, vexing questions arise when determining whether an emolument arises in a transaction between a foreign government and a business entity owned or affiliated with a U.S. Officer. The Office of Legal Counsel and Comptroller General have struggled with the issues, but their approaches suffer from conceptual flaws. This Article proposes an alternative three-part business entity test to help analyze the problems.

After tangling with the definitional questions related to emoluments and the complications presented by business entities, this Article examines whether the activities of the Trump Organization establish violations of the Foreign Emoluments Clause. It concludes that market-rate transactions between the Trump Organization and foreign governments do not come within the clause. However, payments to the Trump Organization in excess of market rates may establish potentially unconstitutional gifts, emoluments, or bribes. Payments made to President Trump personally in exchange for services would also raise constitutional problems.

Affordable Care Act Executive Order: Legal Considerations

Source: Congressional Research Service, CRS Reports & Analysis Legal Sidebar, January 24, 2016

On January 20, 2017, President Donald J. Trump issued an executive order (EO) declaring his intention to “seek the prompt repeal of the Patient Protection and Affordable Care Act [ACA]” while minimizing “economic and regulatory burdens of the Act,” ensuring that the ACA is “efficiently implemented,” and preparing to allow states “more flexibility and control.” Broadly, the EO issues the following three directives to executive branch agencies:

– First, it directs agencies with authorities or responsibilities under the ACA to “waive, defer, grant exemptions from, or delay the implementation of” any ACA provision that would impose a fiscal or regulatory burden on states or a host of private entities (including individuals, health care providers, health insurers, and medical device manufacturers).
– Second, the EO directs those same agencies to provide greater flexibility and cooperation to states in implementing healthcare programs.
– Third, the EO directs all agencies with responsibilities relating to healthcare or health insurance to encourage the development of a free and open interstate market for health services and health insurance…