Recently in Laws/Legislation Category

Source: National Conference of State Legislatures, February 9, 2010

Amid the most difficult economic situation since the Great Depression, state legislatures addressed sentencing and corrections policies that better manage correctional populations and budgets. In 2009, states fine-tuned sentencing laws, expanded community-based diversion programs, and created policies and programs aimed at reducing recidivism. California, Delaware, Maryland, Montana, Oregon and Washington increased the monetary thresholds for theft-related crimes, to better align low-level offenses with less severe penalties. States required presentence risk assessments to identify defendants appropriate for community-based sentences. In Illinois and New Hampshire, presentence screening that includes treatment recommendations must be completed for current military or veterans diagnosed with a mental illness.

Source: R. Sam Garrett, Congressional Research Service, R41054, February 1, 2010

From the summary:
Following the Supreme Court's January 21, 2010, ruling in Citizens United v. Federal Election Commission, questions have emerged about which policy options could be available to Congress. This report provides an overview of selected campaign finance policy options that may be relevant. It also briefly comments on how Citizens United might affect political advertising. A complete understanding of how Citizens United will affect the campaign and policy environments is likely to be unavailable until at least the conclusion of the 2010 election cycle.

If Congress pursues additional legislation, at least two broad choices could be relevant. First, Congress could provide candidates or parties with additional access to funds to combat corporate influence in elections. Second, Congress could restrict spending under certain conditions or require those making expenditures post-Citizens United to provide additional information to voters or regulators. Options within both approaches could generate substantial debate. Some may contend that the only way to provide Congress with the power to directly affect the content of the ruling would be to amend the Constitution.

Bills introduced as of this writing that may be relevant for legislative responses to Citizens United include, but are not necessarily limited to H.J.Res. 13, H.J.Res. 68, H.R. 158, H.R. 1826, H.R. 2056, H.R. 3859, H.R. 4487,H.R. 4511, H.R. 4517, H.R. 4522, H.R. 4523, H.R. 4527, H.R. 4537, H.R. 4540, S. 752, S. 2954, and S. 2959. Given the pace of developments since the ruling, this report is not intended to be exhaustive. Relevant legislation that has been introduced thus far is reflected through selected examples. Additional legislation will be included in future updates. This report is not intended to provide a legal analysis of Citizens United or of legal issues that might affect the policy options discussed here. CRS Report R41045, The Constitutionality of Regulating Corporate Expenditures: A Brief Analysis of the Supreme Court Ruling in Citizens United v. FEC, by L. Paige Whitaker discusses legal aspects of the decision.
See also:
Life After Citizens United
Source: National Conference of State Legislatures, February 18, 2010

Source: Human Rights Campaign Foundation, 1/26/2010

From the summary:
The comprehensive state-by-state report provides a complete summary of all the state legislation introduced and passed in 2009 that affected lesbian, gay, bisexual and transgender people and their families. The report indicates that despite disappointments in 2009, it was a banner year for positive legislation affecting the LGBT community, with as many positive bills passed this past year as in 2007 and 2008 combined. The report also details expectations for 2010.

Source: Paul M. Secunda, Marquette Law School Legal Studies Paper No. 10-03, February 19, 2010

From the abstract:
Citizens United has wrought widespread changes in the election law landscape. Yet, a lesser-known impact of this watershed case might have a significant impact in the workplace: It may permit employers to hold political mandatory captive audience meetings with their employees.

To eliminate this danger, and consistent with the First Amendment framework for election law issues post-Citizen United, this Article urges Congress to consider language similar to that enacted by the Oregon Worker Freedom Act Law, SB 519 (effective Jan. 1, 2010). SB 519 prohibits termination of employees for refusing to attend mandatory political, labor, or religious meetings held by their employers.

Such a federal law would constitute permissible employment standards legislation and also would not run afoul of the First Amendment speech rights of employers under Citizens United. Employers would still able to communicate their views about political candidates and parties with their employees as the First Amendment now contemplates, but they will not be able to force them to listen to such speeches at the risk of losing their jobs or other benefits of employment.

Source: Human Rights Campaign Foundation, January 26, 2010

From the summary:
The comprehensive state-by-state report provides a complete summary of all the state legislation introduced and passed in 2009 that affected lesbian, gay, bisexual and transgender people and their families. The report indicates that despite disappointments in 2009, it was a banner year for positive legislation affecting the LGBT community, with as many positive bills passed this past year as in 2007 and 2008 combined. The report also details expectations for 2010.

Source: Donald Taylor, Labor Law Journal, Vol. 60 no. 3, Fall 2009

The Garrity Rights doctrine protects public employees from being compelled to incriminate themselves in investigatory interviews with their employers. The Fifth Amendment to the United States Constitution prohibits the government from compelling a person to incriminate themselves, and public workers are employees of the government itself; therefore they are protected from being compelled by their employer to incriminate themselves in an investigatory interview.

Source: National Association of State Boards of Education, 2009

The NASBE State School Health Policy Database is a comprehensive set of laws and policies from 50 states on more than 40 school health topics. Originally begun in 1998, and maintained with support from the Division of Adolescent and School Health (DASH) of the Centers for Disease Control and Prevention (CDC), the policy database is designed to supplement information contained in CDC's School Health Policies and Programs Study (SHPPS).
The database contains brief descriptions of laws, legal codes, rules, regulations, administrative orders, mandates, standards, resolutions, and other written means of exercising authority. While authoritative binding policies are the primary focus of the database, it also includes guidance documents and other non-binding materials that provide a more detailed picture of a state's school health policies and activities. Most of the collected laws and policies govern the education system, but health department, transportation, and social services policies are also included as appropriate. Hyperlinks to the full written policies are provided whenever possible

Source: Simon Lazarus and Harper Jean Tobin, Advance: The Journal of the ACS Issue Groups, Vol. 3 no. 1, Spring 2009

This paper spotlights two arenas in which the federal courts have been significant players in implementing--and undermining--the nation's statutory safety net. The first is the health insurance back-stop for low-income Americans, Medicaid, and particularly the ability of Medicaid beneficiaries to enforce their statutory rights in court. Here, the Court has woven a web of rules that, while superficially merely procedural, in fact implement a substantive, ideological agenda. They are, as candidly acknowledged by prominent conservative scholar-advocate Michael Greve of the American Enterprise Institute, "The Supreme Court's anti-entitlement doctrines," which are "connected, such that plaintiffs who manage to evade one obstacle are bound to stumble over another."

The second area is the staple of middle-class health insurance, employer-sponsored health plans, again in particular the availability to beneficiaries of judicial remedies for violations of their rights. Here the Court has turned a landmark 20th century reform, the Employee Retirement Income Security Act of 1974 (ERISA), into what the late Judge Edward Becker described as "a shield that insulates HMOs from liability for even the most egregious acts of dereliction committed against plan beneficiaries, a state of affairs directly contrary to the intent of Congress." To the 134 million Americans covered by employer-sponsored plans, the Court has delivered a judicial one-two punch--eviscerating ERISA's remedial provisions while preempting
state alternatives.

Source: Marick F. Masters, Raymond Gibney, And Thomas J. Zagenczyk, Industrial Relations: A Journal of Economy and Society, Volume 48 Issue 4, Published Online: 24 Aug 2009
(subscription required)

From the abstract:
Labor's participation in politics requires money. Within legal restrictions, unions use compulsory dues to pay for much of their involvement. Such usage has continually raised controversy, leading to a host of U.S. Supreme Court decisions to give nonmember dues-payers the right to object to union political spending. We examine the current legal framework and are the first to report comprehensive data on union political spending financed from dues. We estimate the potential impact of a national "worker paycheck protection" law on labor's political spending. With the potential to reduce money available to finance union involvement in politics, such a law may lessen the ability of labor to have its voice heard by lawmakers, especially in the face of shrinking density in the workforce. The importance of this is demonstrated by the large role unions played in the 2008 congressional and presidential elections. Despite Democratic victories in that historic year, "paycheck protection" is likely to loom large, fueled by efforts to enact the Employee Free Choice Act.

Source: Paul M. Secunda, Workplace Prof Blog, August 25, 2009

The Second Circuit revisited the question of whether the employee's motive is dispositive in determining whether speech is on a matter of public concern (for those of you who were getting ready for me to lash out on Garcetti grounds for old time's sake, the district court actually found the employee was speaking as a citizen and thus had potential First Amendment protections).

In Sousa v. Roque, No. 07-1892 (2nd Cir. Aug. 21, 2009), the Second Circuit concluded that the employee's motive in speaking out is NOT dispositive on whether he spoke on a matter of public concern (the so-called Connick test and the second step in the public employee free speech five-step). The employee had been vocal about workplace violence issues and appeared to suffer various forms of retaliation for his pains.