Category Archives: Laws/Legislation

Judicial Fact-Finding and Criminal Sentencing: Current Practice and Potential Change

Source: Michael A. Foster, Congressional Research Service, CRS Legal Sidebar, LSB10191, August 24, 2018

Central to the calculation of a federal criminal defendant’s sentence under the United States Sentencing Guidelines (Guidelines) is the defendant’s “relevant conduct.” That term, while encompassing conduct found by a jury or admitted by the defendant, can also include conduct that was not charged, as well as the conduct underlying charges of which the defendant was acquitted. The lower federal courts have almost uniformly approved of the use of acquitted or uncharged conduct at sentencing, so long as a judge finds by a preponderance of the evidence that the conduct occurred. The Supreme Court has also held that the use of acquitted conduct pursuant to the Guidelines presents no double jeopardy issue under the Constitution. Judicial fact-finding at sentencing has not been without its critics, however; legal commentators and multiple Justices have expressed misgivings about the continued judicial reliance on such conduct to increase sentencing ranges under the Guidelines, largely focusing on the constitutional right to a jury trial. In fact, both of President Trump’s nominees to the Supreme Court— Justice Gorsuch and, most recently, Judge Brett Kavanaugh of the United States Court of Appeals for the D.C. Circuit— have suggested during their tenures as Circuit judges that they may view judicial fact-finding at sentencing to be constitutionally problematic. Two bills have also recently been introduced in the House of Representatives that would alter the practice legislatively. Given the possibility of judicial or legislative changes in this area of criminal sentencing law, this Sidebar provides an overview of the issue by briefly describing the use of relevant conduct under the Guidelines and tracing the Supreme Court case law that has informed the practice, before addressing judicial commentary and recently proposed legislation regarding the use of acquitted or uncharged conduct at sentencing….

Laundering Racism Through the Court: The Scandal of States’ Rights

Source: Lynn Adelman, Dissent, Summer 2018

When three conservative law students founded the Federalist Society at Yale Law School in 1982, they probably didn’t expect that it would become one of the most influential legal organizations in the United States. They styled themselves as renegades, fighting back against a liberal legal establishment that was using the courts to trample individual freedoms. But the students had support from a few prominent jurists, including Antonin Scalia—one of their first faculty advisers—and with Ronald Reagan in office, the political tide was turning in their favor. Three-and-a-half decades later, the Federalist Society has some 40,000 members and millions of dollars in funding from conservative megadonors including the Koch brothers. No less than five of its current or former members have served on the Supreme Court (including Trump appointee Neil Gorsuch). Membership in the organization has become an important qualification for an appointment to the federal bench.

Moreover, since roughly the Society’s founding, the doctrine of federalism has become the basis for a new, conservative orthodoxy in U.S. law. The last two Chief Justices of the Supreme Court, William Rehnquist and John Roberts, have been strong adherents of federalism, as have virtually all of the other conservative justices. And President Trump is currently stocking the lower federal courts with like-minded jurists at a record pace.

By federalism, these legal conservatives mean that the authority of the federal government is limited, that states are sovereign bodies, and that courts should enforce limitations on federal power and bolster the power of states. On its face, the conservatives’ attachment to federalism may not seem particularly objectionable. After all, the founders did divide power between the federal government and the states so as to facilitate policymaking by those legislators most familiar with the issues in question. It is becoming clear, however, that the practical consequences of the conservatives’ attachment to federalism are far from benign. For African Americans, particularly those living in states of the former Confederacy, the impact of federalist doctrine as implemented by the Supreme Court has been no less than devastating—so much so that the justices’ view that it is justified by the principle of state sovereignty is indefensible.

In this article, I explore this issue primarily in the context of two of the Roberts Court’s most important federalist decisions, Shelby County v. Holder and National Federation of Independent Business (“NFIB”) v. Sebelius. In Shelby County, the Court struck down, on states’ rights grounds, the formula provided in the Voting Rights Act (“VRA”) for determining whether states and municipalities had to get approval from Washington (preclearance) for any change in their voting rules to ensure that the change was not racially discriminatory. Similarly, in NFIB, the Court struck down the inducement in the Affordable Care Act (ACA) for states to participate in the act’s Medicaid-expansion program on the grounds that it violated states’ rights. In both Shelby County and NFIB, Chief Justice Roberts wrote the principal opinion…..

How Trump’s tax cuts favor whites over minorities

Source: Alexis Gravely, Center for Public Integrity, August 21, 2018

Data analysis shows people of color will get much smaller tax breaks over time. ….

…. Starting next year, every income group will see their average tax rates drop. But rates for the super wealthy, those earning more than $200,000 a year, will decrease between 2.1 and 3.1 percent of their income, compared to half a percent for those earning less than $30,000, according to the Joint Committee on Taxation, a nonpartisan congressional panel that analyzes the effect of proposed tax changes in bills.

For later years, the disparities only become greater.

Between 2019 and 2025, many Americans earning less than $30,000 will see their taxes increase until their effective rates are actually higher, as much as 0.7 percentage points more than if the new tax law had not passed, according to the JCT. The wealthy will continue to pay at lower rates, as much as 1.5 percentage points lower.

That’s not only a bad deal for the poor; it has a disproportionate impact on blacks and Hispanics. Nearly 40 percent of black households earn less than $30,000, followed by 30 percent of Hispanic households, according to the Center’s analysis. Only 22 percent of white households earn less than $30,000. ….

How To Fire An Employee Returning From Leave

Source: Maureen Minehan, Employment Alert, Volume 35 Issue 15, July 24, 2018
(subscription required)

An employee has major surgery and uses six weeks of Family and Medical Leave Act (FMLA) leave during recovery. While he’s absent, another employee takes on his duties and finds a major mistake had been made in a calculation on an important project and a number of assigned tasks were incomplete or poorly done. Normally, this level of performance would result in termination, but you can’t fire someone just returning from leave, can you? Isn’t that just asking for a lawsuit?

Terminating an employee who is returning from any type of protected leave can be tricky, but it’s doable if you have the right evidence and documentation. Courts will look closely to be sure the termination isn’t a pretext for illegal discrimination, but if the business justification is clear, they are apt to side with the employer.

Employee Benefits—Tax Cuts and Jobs Act of 2017

Source: Mark E. Bokert and Alan Hahn, Employee Relations Law Journal, Vol. 44, No. 1, Summer 2018
(subscription required)

On December 22, 2017, President Trump signed into law the Tax Cuts and Jobs Act of 2017 (TCJA), which significantly amends the Internal Revenue Code of 1986 (Code). While the main focus of the TCJA may be on lowering corporate and individual tax rates, the TCJA also includes meaningful changes in the area of employee benefits and executive compensation, including changes to the Patient Protection and Affordable Care Act (ACA), the tax treatment of how public companies and tax-exempt organizations pay their executives, and the tax treatment of various fringe benefits. Among the changes in the benefits and compensation arena, the TCJA effectively repeals the ACA individual mandate by reducing the individual mandate penalty to zero, effective as of January 1, 2019; prohibits public companies from deducting certain performance-based compensation paid to their top executives; and provides that nonprofit organizations are subject to excise taxes for certain compensation packages paid to their highest paid employees.

Some expected changes impacting benefits and compensation never came to fruition. For example, while some earlier drafts of the TCJA included a repeal of Section 409A of the Code and the expansion of Health Savings Accounts (HSAs), the final law does not include any meaningful changes in these areas.

This column provides an overview of some of the changes enacted by the TCJA that impact the employer-employee relationship. Employers will want to work with their legal counsel to understand the nuances of the TCJA to determine whether any of their employee benefits plans or executive compensation arrangements should be amended in light of the TCJA and whether they should consider revising benefit packages offered to their employees.

What We Can Learn About Stare Decisis (Respect for Precedent) from the Last Supreme Court Term

Source: Vikram David Amar, Verdict, August 6, 2018

The 2017–18 Supreme Court term was noteworthy for many reasons. One is the fact that the Court overruled two longstanding (at least 40 years old) constitutional precedents by 5–4 votes, albeit with different lineups. In Janus v. American Federation of State, County and Municipal Employees, Council 31, the five more conservative justices held that it violates the First Amendment for public employees who choose not to become a member of the public sector union that represents them to nonetheless have to pay so-called “fair share” fees to the union to defray the cost of collective bargaining. In contrast, in South Dakota v. Wayfair, Justice Ginsburg joined four of the more conservative justices in the majority to uphold against a Commerce Clause challenge a state law requiring an online retailer that does significant business in the state but that lacks a brick-and-mortar presence in the state to collect and remit sales taxes, while the usually more conservative Chief Justice Roberts led Justices Breyer, Kagan and Sotomayor in dissent.

Notwithstanding these distinctive lineups (which perhaps can be explained at least in part by reference to the subject matter of the two cases) the justices’ writings in both cases, looked at in connection with each other, can help us better understand important principles about the proper way to implement the doctrine of horizontal stare decisis—the Court’s respect its own prior rulings. In particular, I focus below on the justices’ approach to three questions that are raised by one or both of the high-profile stare decisis cases of last term…..

Viewpoint: Boss Can’t Be Janus Fix

Source: Chris Brooks, Labor Notes, July 25, 2018

In the wake of the Supreme Court’s Janus decision, a new approach to financing unions called “direct reimbursement” is gaining traction with Democratic politicians, academics, and even the New York Times editorial board.

It boils down to this: rather than public sector workers paying dues, their government employer would pay an equivalent amount directly to the union.

Proponents claim this approach will neutralize the impact of the Janus decision and shore up union budgets.

The idea has legs. New York’s most senior Democratic Assemblyman Richard Gottfried is sponsoring a bill to allow public sector unions to negotiate this scheme into their contracts. Hawaii is entertaining a version too.

Backed into a corner and fearful for the future, some unions might jump at this quick fix. It’s a big mistake.