Category Archives: Laws/Legislation

How U.S. Urban Unrest in the 1960s Can Help Make Sense of Ferguson, Missouri, and Other Recent Protests

Source: Ashley M. Howard, Scholars Strategy Network, Key Findings, November 2014

Recent protests in U.S. cities including Ferguson, Missouri, recall America’s “long hot summers” of decades ago – even though the protests of recent times are far from reaching the scope and scale of urban revolts back then. Between 1965 and 1968, 329 urban rebellions took place in 257 U.S. cities, resulting in nearly 300 deaths, 60,000 arrests, and hundreds of millions of dollars in property loss. For nearly fifty years this type of protest has lain largely dormant. But within the past decade, incidents of mass urban protest, sometimes including violent outbursts, are happening once again. Can we take lessons from the past to better understand roots and remedies for present unrest? I believe so. Urban rebellions must be understood as complex, deliberate mechanisms through which the desperate seek political recourse they feel they cannot get by other means. By understanding the texture of these modern rebellions, activists, elected officials, and policymakers can hope to find solutions that improve upon past failures.

Twenty Years of Compromise: How the Caps on Damages in the Civil Rights Act of 1991 Codified Sex Discrimination

Source: Lynn Zehrt, Belmont University College of Law Research Paper 2014-07, 2014

From the abstract:
This article takes a novel approach and reexamines the legislative history surrounding the enactment of the Civil Rights Act of 1991 with a central focus on exploring the issue of capped damages. Part I begins by briefly contrasting and summarizing the diverging remedies available under 42 U.S.C. § 1981 and Title VII. The article then shifts in Part II to an examination of the political climate and legislative history that forged the enactment of the 1991 Act, paying particular attention to the debate surrounding damages. This history reveals that many members of Congress had a discriminatory motive in capping damages for victims of sex discrimination under Title VII, and therefore, that these capped damages represent a codified version of injustice. Although prior scholarship documents the legislative history of the 1991 Civil Rights Act, it fails to adequately address the issue of capped damages. Thus, this legislative history is a substantial contribution to contemporary Title VII scholarship, as it provides necessary context for the current debate about whether to abolish the existing Title VII damage regime.

Failing Expectations: Fourth Amendment Doctrine in the Era of Total Surveillance

Source: Olivier Sylvain, Fordham Law Legal Studies Research Paper No. 2473101, July 28, 2014

From the abstract:
Today’s reasonable expectation test and the third-party doctrine have little to nothing to offer by way of privacy protection if users today are at least conflicted about whether transactional noncontent data should be shared with third parties, including law enforcement officials. This uncertainty about how to define public expectation as a descriptive matter has compelled courts to defer to legislatures to find out what public expectation ought to be more as a matter of prudence than doctrine. Courts and others presume that legislatures are far better than courts at defining public expectations about emergent technologies.

This Essay argues that the reasonable expectation standard is particularly flawed if it has the effect of encouraging judges to seek guidance from legislatures on constitutional norms and principles. Judicial review is the vital antimajoritarian check against excessive government intrusions on individual liberty under our constitutional scheme. This is a responsibility that courts cannot pass off to the political branches when, as is the case today, most people expect that the cost of network connection is total surveillance. It is beyond irony that, today, courts consult public expectation to determine private entitlements. This Essays argues that court-administered privacy law doctrine must change if the protection against “unreasonable searches and seizures” is to have any positive legal meaning. The current court-created doctrine will not be able to keep up if it compels judges to measure public expectation. It is time for courts to reassert their positive duty to say what privacy law is.

Does Protest Work?

Source: Tomiko Brown-Nagin, Howard Law Journal, Vol. 56 no. 3, 2013

Her article distills the lessons that can be learned from critical moments in protest history, examines whether modern protest movements have learned and employed those lessons, and prescribes a plan for modern social engineers to use in developing today’s effective protest strategies. …

… Does protest really work? Can citizen participation in informal politics — demonstrations, boycotts and other forms of mass participatory action — help to address issues of our time? If so, how might lawyers advance the goals of such protest movements? … The most celebrated episodes of the civil rights era can crowd out these questions and obscure answers to them. In legal literature, the constitutional dimensions of Cooper v. Aaron overshadow examination of the protest movement that gave rise to the legal action. Even when scholars specifically recall the non-lawyers who animated legal changes, they often discuss change agents in hagiographic terms. The Little Rock Nine are now iconic symbols of the hardship that blacks endured in the struggle against Jim Crow. Few have analyzed the story behind the lawsuit—the ideas, planning, groundwork, and protest — that provided the context in which the great constitutional case unfolded. It is this context—rather than the landmark lawsuits—that should command more of our attention. For a truer picture of how social change can occur, scholars must study social movements in detail rather than skim the surface of history in search of icons and moments to celebrate. If civil rights-era protests are to provide useful lessons today, when economic inequality is one of the most pressing issues of our times, we must examine the movement’s evolution and its depth and breadth. …

State Judicial Elections and Environmental Law: Case Studies of Montana, North Carolina, Washington and Wisconsin

Source: John D. Echeverria, Vermont Law School Research Paper No. 19-14, October 12, 2014

From the abstract:
This paper presents case studies of the judicial electoral process and its implications for environmental legal protections in four states: Montana, North Carolina, Washington, and Wisconsin. The paper builds on prior scholarship on judicial elections and on the efforts of special interests to secure the election or defeat of candidates for judicial office. It attempts to determine whether successful efforts to change the personnel sitting on specific state courts have, in fact, influenced subsequent rulings by these courts in environmental law cases. The paper concludes that the ideological orientation of a majority of the judges on a state’s highest court has a powerful influence on the court’s rulings in environmental law cases. In each of the four states studied, the outcomes of recent elections have had a demonstrable effect on the outcomes of subsequent environmental law cases.

10 U.S. Supreme Court Cases That Matter for State and Local Governments

Source: J.B. Wogan, Governing, October 3, 2014

The U.S. Supreme Court will hear cases this term related to religious freedom in state prisons, taxes on railway carriers, traffic stops and more. … The State and Local Legal Center (SLLC) has identified 10 cases, including Holt’s, that might affect state and local government. …
U.S. Supreme Court Questions Out-of-State Income Taxes
Source: Liz Farmer, Governing, November 12, 2014

The justices heard arguments Wednesday in a case that could cause localities across the country to lose millions in annual tax revenue.

Understanding the Organization, Operation, and Victimization Process of Labor Trafficking in the United States

Source: Colleen Owens, Meredith Dank, Amy Farrell, Justin Breaux, Isela Banuelos, Rebecca Pfeffer, Ryan Heitsmith, Katie Bright, Jack McDevitt, Urban Institute, October 2014

From the abstract:
This study chronicles the experiences of labor trafficking victims from the point of recruitment for work, their forced labor victimization, their attempts to escape and get help, and their efforts to seek justice through civil or criminal cases. The report finds that legal loopholes and lax enforcement enable labor traffickers to commit crimes against workers in major US industries: agriculture, domestic work, hotels, restaurants, and construction. Interview and case file data detail the ubiquity of trafficking, which occurs both in plain sight and behind lock and key. Detailed recommendations propose next steps for policy and practice.

The Uncertain Future of the Corporate Contribution Ban

Source: Richard Briffault, Columbia Public Law Research Paper No. 14-405, July 25, 2014

From the abstract:
Concern about the role of corporate money has been a longstanding theme in American politics. The first permanent federal campaign finance law – the Tillman Act of 1907 – prohibited federally-chartered corporations from making contributions in any election and prohibited all corporations from making contributions in federal elections. Subsequently amended, continued, and strengthened over a century the federal corporate contribution ban is still on the books. Twenty-one states also prohibit corporate contributions to candidates in state elections.

The Supreme Court sustained the federal corporate contribution ban as recently as 2003 in FEC v. Beaumont, but that decision and the corporate contribution ban today rest on shaky ground. The Roberts Court has demonstrated little respect for either legislated campaign finance restrictions or the Court’s own campaign finance precedents. In Citizens United v. FEC, the Court struck down a ban on corporate campaign spending. In so doing, it disavowed one of the justifications Beaumont relied on and called into question another. To be sure, Citizens United stressed that the case concerned only spending not contributions and invoked the Court’s longstanding practice of applying more stringent review of spending rules than contribution limits. But Citizens United’s assertion of the First Amendment rights of corporations surely casts a shadow on the contribution bans. This year’s decision in McCutcheon v. FEC – which ratcheted up the Court’s review of contribution restrictions – darkens that shadow still.

This paper argues that, assuming the Court continues to recognize the constitutional validity of contribution limits and to apply a less strict standard of review of contribution restrictions – admittedly a big “if,” a corporate donation ban ought to pass constitutional muster. The ban advances two long-recognized public interests that justify contribution restrictions: the protection of the rights of politically dissenting shareholders, and the prevention of the evasion of constitutionally valid limits on individual donations to candidates. Although Citizens United dismissed the shareholder-protection concern in the expenditure context, shareholder protection is an important interest previously acknowledged by the Court in cases dealing with contribution restrictions, and a contribution ban is closely drawn to protect that interest. So, too, the Court has long accepted the prevention of the circumvention of individual-to-candidate contribution limits as a constitutionally sufficient justification for other contribution restrictions. The use of corporations to evade disclosure requirements has become a regular occurrence since Citizens United freed corporations to engage in independent spending. If corporations could also make contributions, they could easily become a means to avoid the donation limits on the people who are closely associated with a corporation. Although McCutcheon tightened the “fit” required between the important public interest a campaign finance law is intended to sustain and the restrictions imposed by that law, the corporate contribution ban is narrowly tailored, and leaves room for other forms of campaign finance activity for the individuals affiliated with the corporation.

In Citizens United and McCutcheon, the Court emphasized that campaign finance restrictions cannot be justified by the goal of reducing the political power of the wealthy. Although much of the impetus for the corporate contribution ban is public anxiety over corporate wealth and power, the shareholder-protection and anti-circumvention justifications are not triggered by concern about corporate wealth but, rather, reflect other key features of the corporate form – its artificial existence as a legal to achieve ends desired by the individuals who have created it, and the potential for those who control the corporation to exploit shareholders. These two interests work in tandem, with shareholder-protection having greater purchase for multi-shareholder publicly-held entities, and anti-circumvention more relevant for single-shareholder, closely-held or nonprofit corporations. Together, they make the case for the corporate contribution ban for reasons other than the equality-promoting goal that Citizens United and McCutcheon so vehemently rejected.

Privacy in Public

Source: Joel R. Reidenberg, Fordham Law Legal Studies Research Paper No. 2493449, September 8, 2014

From the abstract:
As government and private companies rapidly expand the infrastructure of surveillance from cameras on every street corner to facial recognition for photographs on social media sites, privacy doctrines built on seclusion are at odds with technological advances. This essay addresses a key conceptual problem in US privacy law identified by Justice Sotomayor in U.S. v. Jones and by Justice Scalia in Kyllo v. U.S.; namely that technological capabilities undermine the meaning of the third-party doctrine and the 4th Amendment’s ‘reasonable expectation of privacy’ standard. The essay argues that the conceptual problem derives from the evolution of three stages of development in the public nature of personal information culminating in the ubiquitous transparency of citizens. This ubiquitous transparency destroys any “reasonable expectation of privacy.” The essay then argues that transparency without privacy protection challenges the democratic values of public safety and fair governance. To restore the balance and relocate privacy away from the no longer workable “reasonable expectation” standard, the essay argues for a new normative approach to privacy that would protect observable activity where such activity is not “governance related,” but rather “private regarding.” The essay concludes by showing that this distinction is consistent with the First Amendment and draws on established doctrines in tort law and First Amendment jurisprudence.

The Problem of Voter Fraud

Source: Michael D. Gilbert, Virginia Public Law and Legal Theory Research Paper No. 2014-56, September 5, 2014

From the abstract:
Voter ID laws have provoked a fierce controversy in politics and public law. Supporters claim that such laws deter fraudulent votes and protect the integrity of American elections. Opponents, on the other hand, argue that such laws, like poll taxes and literacy tests before them, intentionally depress turnout by lawful voters. A vast literature, including legal scholarship and opinions of the Supreme Court, accept these two narratives. But these narratives are wrong, or at least incomplete. Voter ID laws can have many effects, including surprising ones like this: they can exacerbate fraud. To illustrate, suppose that without a voter ID law candidates A and B would receive 13 and 10 lawful votes, respectively, and B would receive two fraudulent votes. Candidate A wins non-fraudulently, 13 to 12. Now suppose that with a voter ID law, candidates A and B would get nine and nine lawful votes, respectively (less than before because of depressed turnout), and B would get one fraudulent vote (less than before because of fraud deterrence). Candidate B wins fraudulently, 10-9. The conditions necessary for ID laws to have this effect are simple and may be common. The paper captures this risk with a formula, the Election Integrity Ratio, which judges and scholars could use to determine when ID laws protect elections — and when they cause the very problem they purport to solve. The paper has implications for constitutional law and public policy. It also has broad reach. Any law that deters fraudulent votes, depresses lawful votes, or does both — citizenship and residency requirements, for example, which are used throughout the United States and around the world — are subject to the analysis herein.