Category Archives: Laws/Legislation

Regulating Marijuana: A Year and a Half In

Source: Karmen Hanson, Legisbrief, Vol. 23 no. 37, October 2015

Since voters in Colorado and Washington passed referenda to legalize and regulate marijuana and cannabis products for adult recreational use in 2012, policymakers and others have been tracking their progress. Lawmakers have learned many lessons from at least 18 months of legal sales and regulations.
Regulating Marijuana: Taxes, Banking and Federal Laws
Source: Karmen Hanson, Legisbrief, Vol. 23 no. 43, November 2015

Conservative groups helped gut Wisconsin election laws

Source: Cady Zuvichemail, Center for Public Integrity, December 16, 2015

Wisconsin Gov. Scott Walker signed into law on Wednesday measures that transform campaign finance rules and a government accountability board — two bills pushed by the very same conservative political groups implicated in an investigation into his campaign.

The new laws arrive five months after Wisconsin’s state Supreme Court closed a three-year investigation into whether Walker and moneyed conservative nonprofits illegally coordinated campaign strategy during the Republican’s 2012 recall campaign for governor. The court cleared Walker and conservative allies of any wrongdoing on the basis that Wisconsin’s campaign finance laws were “unconstitutionally vague and broad,” opening the doors for legislative rewrite.

Then the same groups named in the investigation, Wisconsin’s Manufacturers and Commerce and Wisconsin Club for Growth, pushed for the bills through lobbying and robocalls…..

Political Entrenchment and Public Law

Source: Daryl Levinson & Benjamin I. Sachs, Yale Law Journal, Vol 125 no. 2, November 2015

Courts and legal scholars have long been concerned with the problem of “entrenchment”—the ways that incumbents insulate themselves and their favored policies from the normal processes of democratic change. But this wide swath of case law and scholarship has focused nearly exclusively on formal entrenchment: the legal rules governing elections, the processes for enacting and repealing legislation, and the methods of constitutional adoption and amendment. This Article demonstrates that political actors also entrench themselves and their policies through an array of functional alternatives. By enacting substantive policies that strengthen political allies or weaken political opponents, by shifting the composition of the political community, or by altering the structure of political decision making, political actors can achieve the same entrenching results without resorting to the kinds of formal rule changes that raise red flags. Recognizing the continuity of formal and functional entrenchment forces us to consider why public law condemns the former while ignoring or pardoning the latter. Appreciating the prevalence of functional entrenchment also raises a broader set of questions about when impediments to political change should be viewed as democratically pathological and how we should distinguish entrenchment from ordinary democratic politics. ….

…..[P]olitical actors intent on entrenching their preferred parties or policies need not resort to manipulating the formal rules of the Constitution, elections, or legislation. Consider recent changes to public-sector labor law. Labor unions generally provide support to Democratic candidates, mobilizing pro-Democratic voters and funding the logistical and organizational infrastructure of Democratic campaigns. Seeking to defend their hold on power against Democratic challengers, Republican officeholders have enacted restrictive labor legislation for the purpose of weakening unions. In 2011, for instance, the Republican-dominated Wisconsin legislature overhauled the state’s collective bargaining laws to profoundly curtail unions’ ability to participate effectively in politics. In case the purpose of these measures was not apparent, the new restrictions exempted all the unions that had endorsed the Republican Governor in the previous election. The goal, it seems, was to selectively incapacitate the Republicans’ political opponents, and not just at the state level: as Wisconsin’s Republican senate majority leader put it at the time, “[I]f we win this battle, and the money is not there under the auspices of the unions . . . President Obama is going to have a . . . much more difficult time getting elected . . . .” Wisconsin Republicans intent on undermining their political opposition and entrenching their party in office did not need to resort to disfranchisement or gerrymandered electoral districts. They used labor law instead……

Police Use of Force: Rules, Remedies, and Reforms

Source: Richard M. Thompson II, Congressional Research Service (CRS), CRS Report for Congress, R44256, October 30, 2015

Several high-profile police shootings and other law enforcement-related deaths in the United States have sparked intense protests throughout the country and a fierce debate in Congress concerning the appropriate level of force police officers should wield in a society that equally values public safety and the lives of each of its citizens under law. These incidents have been the subject of several congressional hearings, have prompted the introduction of various legislative measures, and have catalyzed a new civil rights movement in the United States aimed at reforming the criminal justice system. Reformers claim that police work too closely with local prosecutors resulting in insufficient oversight and have called for greater involvement by the federal government. The law enforcement community and its supporters have countered that these recent deaths are anomalous in otherwise exemplary police conduct, and that placing the federal government in direct regulation of state and local police would present an unwarranted intrusion into state and local affairs.

To provide legal context for this debate, this report will address three overarching questions: (1) what are the constitutional rules governing an officer’s use of force; (2) what role has Congress played in providing a remedy for a violation of these rules; and (3) what are the potential reforms to these rules and remedies?

Researching Current Federal Legislation and Regulations: A Guide to Resources for Congressional Staff

Source: Jerry W. Mansfield, Congressional Research Service, CRS Report, RL33895, November 9, 2015

This report is designed to introduce congressional staff to selected governmental and nongovernmental sources that are useful in tracking and obtaining information on federal legislation and regulations. It includes governmental sources, such as, the Government Publishing Office’s Federal Digital System (FDsys), and U.S. Senate and House websites. Nongovernmental or commercial sources include resources such as HeinOnline and the Congressional Quarterly (CQ) websites. The report also highlights classes offered by the Congressional Research Service (CRS) and the Law Library of Congress.
This report will be updated as new information is available.

In Many States, Security Guards Get Scant Training, Oversight

Source: Jenni Bergal, Stateline, November 10, 2015

….About 90 bills were introduced in state legislatures this year dealing with the licensing and training of security officers or requirements for security companies, according to Steve Amitay, director of the National Association of Security Companies (NASCO), an industry group. In recent years, similar numbers of measures have been proposed. None of this year’s bills that would have substantially toughened state requirements was enacted, Amitay said….

….In Connecticut, a bill that would have required security guards to get more training died in the Senate. In Washington state, a measure that would have mandated FBI criminal background checks for all applicants never made it to the House floor.

In California, Democratic Gov. Jerry Brown vetoed a bill that would have made bouncers and plainclothes guards subject to the same licensing requirements that apply to private security officers.

Forty-one states, plus the District of Columbia, license security officers, but requirements vary greatly from state to state. Alaska, for example, mandates 48 hours of training initially, plus another eight hours in firearms training for armed guards. South Carolina requires four hours of training and an additional four for those who carry a gun.

While nine states—Colorado, Idaho, Kansas, Kentucky, Mississippi, Missouri, Nebraska, South Dakota and Wyoming—do not license security officers at the state level, some cities within them do, according to NASCO. Mississippi does require that guards get a separate permit to carry a gun. And 22 states have no training requirements for unarmed security guards; 15 of those have none for armed guards, either…..

The Invisible Hand of Law: Private Regulation and the Rule of Law

Source: Joel Bakan, Cornell International Law Journal, Vol. 48 no. 2, Spring 2015

…Until the 1980s, and over the previous half century, law had served (albeit unevenly and incompletely) as the main institutional vehicle for policing corporations in aid of public interests, thereby protecting people, communities, and the environment from corporate excess and malfeasance. Over the course of the 1980s and thereafter, however, law’s protective role began to diminish, and privately promulgated voluntary regimes (hereinafter “private regulation”) emerged in its place.

Importantly, no such diminishment occurred in relation to law’s parallel and prominent role in protecting corporations and their interests. Here, state legal regimes continued to operate as robustly as ever; incorporate companies; establish their mandates; protect their rights as “persons”; shield their managers, directors, and shareholders from legal liability; compel their officers to prioritize their “best interests” (typically construed as increasing shareholder value); articulate and enforce their contract and property rights; and repress dissidents and protesters who opposed their growing power.

Corporations— indeed, corporate capitalism— could not exist without these legal foundations and supports, which taken together represent a massive infusion of state legal power into society. Despite that massive infusion, many private regulation advocates and commentators presume that globalization eviscerates state legal power, and prescribe, on that basis, that private regimes should take law’s place. This Article challenges that presumption and prescription. Following examination of the rise of private regulation in Part I, Part II reveals how private regulation advocacy and commentary often obscure, and effectively render invisible, law’s robust role in constituting and protecting corporations, thereby exaggerating globalization’s alleged diminishment of state legal power. Part III claims that private regulation weakens the rule of law and its democratic potential, with the effect, Part IV explains, of exacerbating corporate threats to public interests…..

Corporate Power Ratchet: The Courts’ Role in Eroding ‘We the People’s’ Ability to Constrain Our Corporate Creations

Source: Leo E. Strine Jr., Harvard Civil Rights- Civil Liberties Law Review (CR-CL), 2016 Forthcoming

From the abstract:
At the beginning of our nation and throughout much of our history, corporations, as the creation of society, were seen as distinctive from human citizens. Human beings were born with certain inalienable rights that government could not take away. By contrast, corporations were the opposite of Lockean-Jeffersonian citizens, in the sense that they had only such rights as society gave them. Under this understanding, society could charter corporations and benefit from their wealth-creating potential while reserving for itself the right to limit corporate activities through externality-reducing legislation and other means so as to protect the public interest.

But, in recent decades, the interactive effect of federal jurisprudence is eroding the ability of society to constrain its own corporate creations. First, recent Supreme Court decisions like Citizens United have freed corporations to use treasury funds to make unlimited political expenditures. This is likely to make politicians more responsive to moneyed interests, including both corporations and the economic elites who control them. Corporations have exercised their newfound ability to use treasury funds to influence the political process, often in the form of untraceable “dark money.” Second, the Supreme Court’s decisions in other areas have dampened the political influence of minorities and less-affluent citizens. For example, Shelby County struck down important elements of the Voting Rights Act, despite the fact that the Act, like the McCain-Feingold Act struck down in Citizens United, had overwhelming bipartisan support. Similarly, the Court has not intervened in cases involving voter identification laws and extreme gerrymandering, legislative action that is likely to diminish the voting power of less affluent voters. And at the same time, as the Court has freed corporations to act on the political process without stockholder consent, it continues to subject labor unions to more election spending restrictions than corporations, diminishing the voice of workers as compared to moneyed interests. Third, recent Supreme Court decisions like National Federation of Independent Business v. Sebelius and Hobby Lobby have made it more expensive for Congress to adopt regulatory and social welfare legislation, and have also suggested that expansions of the social security net will be struck down as unconstitutional. Fourth, although it might be thought that these shifts in jurisprudential direction might result in a more favorable environment for executive branch regulators, who have been able to put in place measures to regulate corporate behavior, the reality has been on balance otherwise. Although there has been lipservice to deferential review, federal judges have overturned important corporate regulatory measures, in decisions that can be seen as involving a substitution of the judiciary’s own policy views over the judgment made by the regulator selected by Congress. Taken together, the decisions of the Roberts Court and other like-minded federal judges have had the practical effect of increasing the power of corporations to influence the electoral and regulatory process, diminishing the ability of human citizens to constrain their corporate creations in the public interest, and reducing the practical ability of Congress and executive agencies to adopt and implement externality regulations and new social welfare regulation. The result has been to alter the relationship between society and the corporations that it has created.

Finally, the article considers whether this pattern of decisions is the result of jurists applying precedent and exercising judicial restraint. Because the decisions involve a conscious decision by judges to depart from precedent and to overturn the decisions of the political branches, these decisions are properly regarded as involving judges willing to break new ground, depart from traditional principles of judicial restraint, and move the law in a direction they think better for society.

Labor Protest Under the New First Amendment

Source: Catherine Fisk and Jessica Rutter, Berkeley Journal of Employment and Labor Law, Vol. 36 no. 2, 2015

Low-wage workers across the country have recently gripped the nation’s attention with public demonstrations calling for workplace fairness. But as these workers and the unions supporting them employ new and innovative strategies to organize their workplaces and improve their working conditions, employers and the National Labor Relations Board have charged them with violating section 8(b)(7) of the National Labor Relations Act, which prohibits peaceful picketing to organize workers or gain employer recognition of a union. This article analyzes the history and impact of labor picketing restrictions in light of the Supreme Court’s recent First Amendment jurisprudence. We demonstrate that the National Labor Relations Board, its enforcement officials, and the courts can no longer apply old law prohibiting picketing for recognitional and organizational objects. The NLRA’s prohibitions on labor unions picketing to obtain recognition or get workers to join them are unconstitutional speaker-based and content-based discrimination. We describe how the Board and the courts can adopt narrower interpretations of labor picketing that accord with the Supreme Court’s recent First Amendment cases. Specifically, we advance three proposals to bring the Board’s interpretation and enforcement practices into compliance with the Constitution, and a fourth approach that might at least partially address the constitutional infirmities of the Board’s current approach. All of these proposals aim to ensure that section 8(b)(7) will be violated only by conduct that actually or imminently coerces employees or companies in the selection of a bargaining representative through methods other than peaceful persuasion of consumers or employees to cease doing business with the firm.

Lane v. Franks: The Supreme Court Clarifies Public Employees’ Free Speech Rights

Source: Thomas A. Schweitzer, Touro College – Jacob D. Fuchsberg Law Center, Touro Law Center Legal Studies Research Paper Series No. 15-33, 2015

From the abstract:
On June 19, 2014, the United States Supreme Court decided an important First Amendment case concerning the free speech rights of government employees. While public employees speaking as citizens on issues of public concern have the same right to freedom of speech as other citizens when they speak on matters of public concern, the Court has held that when they make statements pursuant to their official duties, they must accept certain limitations on their freedom of speech. In Lane v. Franks, the Court unanimously rejected the extreme position of the Eleventh Circuit, which had held that a public official had no remedy when he was fired in retaliation for turning in a “no show” office holder who was tried, convicted and imprisoned.

While two other appellate courts had conferred broader protection on public employees’ free speech rights in similar cases, there were only a handful of such cases. However, Lane’s actions, which presumably led to his termination, manifestly promoted the public interest in combatting government corruption. Thus, the lower courts’ position that Lane had suffered no remediable wrong evidently convinced all the justices that prompt action was required to set the Eleventh Circuit straight.