Category Archives: Laws/Legislation

Why there’s global urgency to enhance pensions

Source: Adam Mayer, Toronto Star, August 17 2014

As Ontario gets going on its supplementary pension plan, Britain has already launched one and the U.S. has one under consideration. … South of the border, a proposal that would supplement U.S. Social Security was laid out by Iowa Senator Tom Harkin in February and is in the early stages of debate. Harkin’s plan would cover 75 million Americans without any pension at all. … Harkin’s plan would be mandatory for companies with more than 10 people. Both employees and employers would contribute and the money could be directed into one of several privately run funds. …

how top up pension plans compare

Harkin Unveils Legislation to Address Retirement Crisis, Rebuild Private Pension System
Source: Senator Harkin, Press Release, January 30, 2014

Harkin, Chair of Senate Pensions Committee, Proposes “Universal, Secure, Adaptable (USA) Retirement Funds Act” to Expand Access to Privately-Run, Portable Retirement Plans

Harkin’s legislation would create a new type of privately-run retirement plan that combines the advantages of traditional pensions—including lifetime income benefits and pooled, professional management—with the portability and ease for employers of a 401(k). The key features of USA Retirement Funds include:
∙ Universal Coverage: USA Retirement Funds would be available to everyone, including the more than 61 million people without access to a workplace retirement plan and the 14.5 million people who are self-employed.
∙ Automatic Enrollment: Employees would be automatically enrolled at a rate of 6 percent per year, but could choose to raise, lower, or stop their contributions.
∙ Secure Lifetime Income: Benefits would be paid monthly for life, and participants would be shielded from market volatility and other risks.
∙ Lower Costs: Pooled, professional management and risk sharing will reduce the cost of retirement by up to 50 percent.
∙ Portability: People would be able to take their benefit with them as they change employers.
∙ Simple and Easy for Businesses: Small businesses can easily participate and would not have to take on risk or undue administrative burden.

Bill snapshot

Enhancing Social Security for Women and other Vulnerable Americans: What the Experts Say

Source: Heidi Hartmann, Institute for Women’s Policy Research (IWPR), IWPR #D504, July 2014

From the abstract:
This report was conducted by Institute for Women’s Policy Research (IWPR) to gather expert opinion about the likely direction and timing of new legislation affecting Social Security and to identify opportunities to raise the special concerns of women and other vulnerable populations in future legislative debates, so that their needs can be addressed.
Recently Proposed Legislation Affecting Social Security (Appendix to IWPR #D504)

Symposium: Building the Arc of Justice: The Life and Legal Thought of Derrick Bell: Foreword

Source: Matthew H. Charity, Western New England Law Review, Vol. 36, 2014

From the abstract:
The four articles in this Symposium issue pay tribute to the work of Professor Derrick Bell by building on his challenges to the permanence of racial domination, to the potential limitations of good will inherent in the concept of interest convergence, and to the question of permanence not just of racism, but of other systemic biases since recognized, written on, and litigated. The articles range from the 19th century to the hegemonic war on terror; from Latin identity as a disruptive force, to recognition of subjugated identities allowing for the creation of coalitions to end oppression.

Discrimination Against State and Local Government LGBT Employees, An Analysis of Administrative Complaints

Source: Christy Mallory and Brad Sears, LGBTQ Policy Journal, Vol. 4, 2013-2014

From the abstract:
This article documents evidence of recent discrimination against lesbian, gay, bisexual, and transgender (LGBT) public sector workers by analyzing employment discrimination complaints filed with state and local administrative agencies. We present information about 589 complaints of sexual orientation and gender identity discrimination filed by public sector workers in 123 jurisdictions. We find that discrimination against LGBT people in the public sector is pervasive and occurs nearly as frequently as discrimination in the private sector, and at rates similar to discrimination based on sex and race. Currently, no federal law prohibits discrimination against LGBT people, and most states do not have laws prohibiting such discrimination.

From Protest to Perry: How Litigation Shaped the LGBT Movement’s Agenda

Source: Gwendolyn Leachman, University of Wisconsin Legal Studies Research Paper No. 1271. July 25, 2014

From the abstract:
This Article empirically examines how litigation shapes the substantive agenda of a social movement. Critical scholars have argued that movement lawyers, as professionals and elites, tend to substitute their own priorities for those of their clients. Yet lawyers and litigation can also influence a movement’s agenda through subtle, organizational dynamics rather than through the volitional, ethical choices made by movement lawyers. This Article reexamines critiques of civil rights lawyering through a case study of the movement for lesbian, gay, bisexual, and transgender (“LGBT”) rights. This case study draws on quantitative and qualitative analyses of original data from more than two decades of LGBT movement history. These analyses reveal that litigation garnered more news media coverage than other tactics and that the LGBT movement organizations that used litigation had a greater likelihood of survival than organizations that did not. These benefits made litigation the most visible and established of all the LGBT movement’s tactics. In addition, LGBT protest organizations responded to the legal issues projected in the mainstream media to form their agendas, subtly redirecting those protest organizations away from their original priorities and toward legal goals. This Article makes a novel contribution to existing scholarship by exposing systemic processes that may privilege movement litigation relative to protest, elevating the issues being litigated to top movement priorities. Significant implications follow for theories of law and social change. The dominance of legal issues on the LGBT movement’s agenda marginalized movement demands for cultural transformation or structural change in favor of assimilationist goals, such as the right to marry, that translate well into formal legal claims. Understanding the dynamics revealed here, which allow litigation to set a social movement’s agenda, will help civil rights lawyers in the LGBT movement and beyond to provide more effective representation and to achieve more far-reaching social change.

The Rise and Rise of the One Percent: Getting to Thomas Piketty’s Wealth Dystopia

Source: Shi-Ling Hsu, Florida State University – College of Law, Public Law Research Paper No. 698, August 8, 2014

From the abstract:
Thomas Piketty’s Capital in the Twenty-first Century, which is surely one of the very few economics treatises ever to be a best-seller, has parachuted into an intensely emotional and deeply divisive American debate: the problem of inequality in the United States. Piketty’s core argument is that throughout history, the rate of return on private capital has usually exceeded the rate of economic growth, expressed by Piketty as the relation r > g. If true, this relation means that the wealthy class – who are the predominant owners of capital – will grow their wealth faster than economies grow, which means that relatively speaking, the non-wealthy will fall behind.

But even if we accept Piketty’s assertion that this has been an “historical fact,” why is r > g most of the time? Piketty offers a few economic factors and a few legal rules, but mostly demurs as to why the “forces of [wealth] divergence” generally overwhelm the “forces of [wealth] convergence.” This review argues that legal rules and institutions exhibit an inherent bias towards some forms of private capital, and serve to inflate returns to private capital – Piketty’s r. Meanwhile, not only is it more difficult to make economic growth – Piketty’s g – keep pace, but it is more contentious. The result is that returns to private capital have indeed commonly exceeded the rate of economic growth. This review argues that this historical truism can be traceable to a capital-friendly bias that inheres in legal rules and institutions. This review identifies several areas of law in which this bias is particularly pronounced, and serves to inflate returns to private capital, driving it above the rate of economic growth, and exacerbating economic inequality. This review closes by arguing for a greater attention paid to funding education, which is not only an equalizing “force of convergence,” but also a predicate to economic growth.

The Constitutional Structure of Voting Rights Enforcement

Source: Franita Tolson, Florida State University – College of Law, Public Law Research Paper No. 690, September 18, 2013, Last revised: July 9, 2014

From the abstract:
Scholars and courts have hotly debated whether the preclearance regime of the Voting Rights Act is constitutional under the Reconstruction Amendments. In answering this question, this Article is the first to consider the effect of section 2 of the Fourteenth Amendment on the scope of Congress’s enforcement authority. Section 2 allows Congress to reduce the size of a state’s delegation in the House of Representatives for abridging the right to vote in state and federal elections for “any reason except for participation in rebellion, or other crime.” This Article contends that section 2 influences the scope of congressional authority under section 5 of the Fourteenth Amendment, which gives Congress the “power to enforce, by appropriate legislation, the provisions of this article.” Section 2, with its low threshold for violations (i.e., abridgment on almost any grounds) that trigger a relatively extreme penalty (reduced representation), illustrates the proper means/ends fit for congressional legislation passed pursuant to section 5 to address voting rights violations. Renewed focus on section 2 also sheds light on the textual and historical links between the Fourteenth and Fifteenth Amendments, links that provide a broad basis for Congress to regulate state and federal elections. Contrary to the Supreme Court’s recent decision in Shelby County v. Holder, this Article concludes that requiring preclearance of all electoral changes instituted by select jurisdictions under the Voting Rights Act is actually a lesser penalty than reduced representation under section 2, and thus is consistent with Congress’s broad authority to regulate voting and elections under the Fourteenth and Fifteenth Amendments.

Congress Wants to Give Businesses a $276 Billion Tax Break That CEOs say Doesn’t Spur Investment

Source: Matt Gardner, Citizens for Tax Justice and Institute on Taxation and Economic Policy (ITEP), Tax Justice blog, August 14, 2014

All is quiet in the streets of the nation’s capital as members of Congress have fled to their home districts for their annual August recess. But as is the case every August in recent years, our elected officials left a lot of unfinished business. Among this incomplete work is the future of “bonus depreciation,” which is as contradictory as it sounds. This huge tax break allows companies to accelerate tax write offs for equipment and other infrastructure investment. First enacted to address the recession during the George W. Bush administration, it has been repeatedly re-enacted, expanded during the most recent economic collapse and finally expired at the end of 2013.
Bonus Depreciation: Economic and Budgetary Issues
Jane G. Gravelle, Congressional Research Service, CRS Report, R43432, July 7, 2014

U.S. Corporate Capital Expenditures: Consciously Uncoupled from Federal Tax Incentives

Source: Bloomberg BNA, August 2014

Marriage of Necessity: Same-Sex Marriage and Religious Liberty Protections

Source: Robin Fretwell Wilson, University of Illinois College of Law, Illinois Program in Law Behavior and Social Science Paper No. LBSS14-35, June 10, 2014

From the abstract:
In the space of one year since the U.S. Supreme Court decided Hollingsworth v. Perry and U.S. v. Windsor, the number of states recognizing same-sex marriage has exploded. Even though the Supreme Court eventually “stopped short of deciding whether the Constitution guaranteed a right to same-sex marriage,” the Court’s basic vindication of same-sex couples’ right to equal treatment spurred newly enacted legislation as well as judicial decisions, erasing a boundary that had largely confined same-sex marriage to the Northeast.

The recent explosion in judicial decisions (all but four of which are stayed) obscures the fact that, overall, a significant generator of marriage equality remains voluntary enactment by state legislatures and voters (“Enacting Jurisdictions”). Thus far, voluntary recognition of same-sex marriage has been yoked to religious liberty protections for religious objectors who adhere to a heterosexual view of marriage — exempting them from requirements to facilitate marriages inconsistent with their religious beliefs, like providing a reception hall. Indeed, every single legislature to recognize same-sex marriage, and the single state to recognize it by popular referendum, has built in protections for religious objectors who adhere to a traditional view of marriage, although these vary greatly from place to place. In many Enacting Jurisdictions, more robust protections resulted in successful legislation where a bill with thinner or non-existent ones had failed just years before.
By recognizing marriage equality while providing important, if imperfect, protections to religious objectors, these laws deliver important gains to supporters and opponents alike. Ironically, prominent voices on each side now caution against the kind of compromise that made possible marriage-equality laws that serve both sides.

This Article contends that we stand at a critical moment in the same-sex marriage movement. A clear-eyed examination of the marriage movement’s success — and the challenges facing it going forward — reveals that both sides will benefit from remaining at the bargaining table, although the gains to each will be different.

Part I shows that same-sex marriage has spread across American through three different avenues: judicial decisions, state laws enacting same-sex marriage, and ballot initiatives — with judicial decisions being fraught with risk for religious dissenters while legislative or popular enactments offers important, if flawed, protections to religious organizations and individuals.

Parts II and III document that a “perfect storm” of characteristics favoring marriage equality in the Enacting Jurisdictions, together with extensive bargaining around religious liberty, nudged same-sex marriage legislation over the finish line. Even with these favorable conditions, marriage equality bills just barely squeaked over the line to enactment, helped by religious liberty exemptions.
That advantageous political terrain is now nearly exhausted, as Part IV documents. This part argues that, going forward, one would reasonably expect more robust religious liberty protections to play a central part in any legislative compromises over same-sex marriage, at least for the near term.

Part V evaluates the impulse of some opponents to dig in, resisting same-sex marriage at all costs — relying on constitutional bans against same-sex marriage. This part shows that constitutional amendments banning same-sex marriage do not provide the bulwark against change that some assume.

Part VI concludes that, in the tougher political terrain that looms, those who care about marriage equality can continue to sew up legislative victories, locking in marriage equality sooner — but the price tag in the short term will be to agree to robust religious liberty protections for dissenters. On the other side, those who wish to protect religious objectors from the unintended consequences of same-sex marriage should act with all deliberate speed to lock in robust religious liberty protections, because the window for securing them is closing.

It is Political: Using the Models of Judicial Decision-Making to Explain the Ideological History of Title VII

Source: Kate Webber, Nova Southeastern University Shepard Broad Law Center Research Paper No. 14-002, May 22, 2014

From the abstract:
Scholars and observers often explain or interpret Supreme Court decisions based on the ideology of the sitting Justices. Many offer a similarly political account of the Court’s decisions in actions brought under Title VII of the Civil Rights Act of 1964 (“Title VII”). Certain events in the history of Title VII do suggest ideological decision-making by the Supreme Court. Dozens of the Court’s Title VII opinions are split between the conservative and liberal Justices. On three separate occasions, including most recently the Lilly Ledbetter Fair Pay Act of 2009, a more liberal Congress amended Title VII in order to override the Supreme Court’s conservative interpretation of the statute. Yet subsequent to each of these amendments, the conservative Justices continued to vote to restrict Title VII, apparently following their political preference over Congressional intent.

The full history of Title VII, however, does not conclusively establish that the Supreme Court is deciding cases according to ideological viewpoint. Although numerous split decisions fall along ideological lines, other cases, including a number of unanimous decisions, reflect votes contrary to political viewpoint and potentially indicate a different dynamic. The fifty years of Title VII jurisprudence therefore present the opportunity to assess whether Justices’ votes on issues of employment discrimination are determined by their respective ideology.

To answer this question, this article turns to the work of political science scholars, specifically, the models of judicial decision-making developed by political theorists over the past two decades. These models use sophisticated empirical techniques to test whether the Justices of the Supreme Court vote according to their ideology and to explain the circumstances when Justices vote contrary to their viewpoint. Their work can be divided into three predominant models, attitudinal, strategic and integrated, all of which agree that that ideology influences Supreme Court decisions, but offer different explanations for the exceptions when the Court’s ideological pursuit is apparently constrained. The political science models therefore offer the potential to explain Title VII’s varied jurisprudence.

This potential, however, is not fully realized. The strategic and integrated models fail to effectively explain a significant portion of the Supreme Court’s Title VII decisions because these models have generally failed to study the effect of statutory overrides on the Court’s decision-making. This article therefore draws on the few studies of overrides that are available, and some of the more context-specific analyses, to draw a more nuanced model for Title VII and to account for the apparent exceptions to ideological decision-making. Ultimately, this article asserts that the history of Title VII is not only political, but particularly so, with the Supreme Court exhibiting strong resistance to any restraint on their ideological voting in the area of employment discrimination.