• July 29, 2015
    Guest Post

    by Michael Waterstone, J. Howard Ziemann Fellow and Professor of Law, Loyola Law School Los Angeles 

    This week is the 25th anniversary of the Americans with Disabilities Act (ADA).  The ADA prohibits discrimination on the basis of disability in employment, government programs and services, and privately owned places of accommodation.  It was and remains an ambitious law, requiring employers and business owners to make reasonable accommodations, at their own expense, to be more accessible to people with a wide range of disabilities.  And although there is still a long way to go, the ADA should be celebrated for its role in moving people with disabilities into the mainstream of society.

    Both the ADA and the Americans with Disabilities Amendments Act (passed in 2008) passed with remarkable bipartisan support.  Disability has never entered the culture wars, and in many ways disability rights have transcended traditional political commitments.  But while legislative political elites in both parties have been very comfortable taking pro-disability rights positions, the public at large is less aware of and sometimes hostile to the ideals and goals of the disability rights movements.  Everyone likes and identifies with a feel good story about athletes who “overcome” disability.  But how many business owners have welcomed the idea of making physical or programmatic changes to accommodate difference?

    Although the ADA has a constitutional basis, it is primarily celebrated as a legislative success.  Lawyers and advocates who bring disability law cases are reluctant to engage constitutional law as a source of relief for people with disabilities.  And they have good reasons to be wary.  The ADA offers ample protections, moving deep into the private sphere in a way constitutional law could not.  And the doctrinal resting place of disability constitutional law is a bad one – under Cleburne, government classifications on the basis of disability are only entitled to rational basis scrutiny. Lawyers in the disability rights movement know how to count to five and have reasoned that the Supreme Court is an inhospitable place for equality claims generally.

    At this important milestone in the disability rights movement, I want to suggest that the next 25 years should include more of an engagement with disability constitutional law.  I take this position for several reasons.  First, there is a lot that is unclear, and potentially up for grabs, about equality law.  Cases like Windsor and Obergefell do not fit neatly into conventional tiered Equal Protection Clause analysis, instead looking at some mix of the nature of the interest protected and the legislative classification.  Simply accepting that Cleburne closed the constitutional canon on all disability claims does not sufficiently engage these evolving notions of equality.

  • July 28, 2015

    by Jim Thompson

    Jennifer Steinhauer at The New York Times writes about bipartisan congressional efforts to reform the outdated mandatory sentencing laws that have left our federal prisons overcrowded.

    In The National Law Journal, Karen Sloan reports on a new “low bono” program in Baltimore, quoting Dean Robert Weich of the University of Baltimore School of Law who argues that this program will benefit students, schools and the profession alike.

    Christian Parenti argues in Jacobin that the public sector is to blame for the buildup of a modern police state that has tones of an oppressive, white supremacist past. 

  • July 27, 2015

    by Jim Thompson

    Frank Bruni at The New York Times discusses the failures of the Electoral College system, quoting John Koza, the well-known advocate for a national popular vote, and citing a FairVote study that confirmed candidates focus their campaigns on certain electorally-valuable states while ignoring the rest.

    Nancy Cook writes in The Atlantic about the need for greater social safety nets and expanded labor protections for the growing population of freelance workers.

    In The Atlantic, J. Douglas Smith examines potential setbacks to the “one person, one vote” principle of American democracy. A forthcoming Supreme Court case, Evenwel vs. Abbott, threatens to reverse decades of democratic gains.

    At The Guardian, Ed Pilkington reports on transgender inmates, quoting Ilona Turner of the Transgender Law Center who argues that denial of medical services for transgender prisoners constitutes an Eighth Amendment violation.

  • July 24, 2015

    by Jim Thompson

    Terri Lively quotes ACS President Caroline Fredrickson in a Fortune article about our misguided views on overtime pay and the challenges this creates for working parents.   

    Heather Digby Parton reports at Salon about the frequent and dangerous use of force by America’s police.  

    At Jacobin, Jennifer Mittelstadt discusses the exclusionary realities of the New Deal and imagines a more inclusive, socially-responsible welfare system.  

    In The Washington Post, Harold Meyerson discusses the partisan implications of a ruling in favor of the plaintiffs in the forthcoming Supreme Court case Friedrichs vs. California Teachers Association.

  • July 24, 2015
    Video Interview

    by Nanya Springer

    Some talk this week centered on the issue of reforming the U.S. Supreme Court, with one irresponsible proposal gaining moderate attention, but Erwin Chemerinsky has been talking about fixing the Supreme Court for years.  In an interview with ACSblog, Chemerinsky ‒ the Distinguished Professor of Law and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law ‒ describes the Supreme Court’s greatest failures and proposes responsible solutions.

    Chemerinsky recalls the Lochner Era ‒ a period during which the high court struck down more than 200 laws enacted to protect consumers and employees, using the rationale that such laws interfere with freedom of contract. While the Lochner Era ended nearly a century ago, Chemerinsky explains that today’s Roberts Court “is the most pro-business Supreme Court that we’ve had since the mid-1930s.”

    This claim, as Chemerinsky notes, is backed up by empirical studies. From restricting the availability of class action suits and favoring binding arbitration to weakening the influence of unions, the Roberts Court has consistently sided with corporations over consumers and employees—all while refusing to recognize poverty as a suspect classification and determining that education is not a fundamental right.

    Chemerinsky offers reasonable proposals, such as imposing 18-year nonrenewable term limits, allowing cameras inside the Court and insisting that the justices conform to the same ethical standards, particularly with regard to recusal, as judges on other courts.

    Watch the full interview here or below.