• June 29, 2011
    Guest Post

    By Ann C. Hodges, Professor of Law, University of Richmond School of Law

    Critics of the National Labor Relations Board’s (NLRB) complaint against Boeing Corporation have claimed that the complaint is unprecedented, motivated by political rather than legal considerations.  Members of Congress have written articles, held hearings, and threatened elimination of the agency.  While the facts remain to be fully developed in a hearing which began on June 14, the essence of the complaint is that Boeing decided to produce some of its Dreamliner jets in South Carolina because of the union’s prior strikes at its plant in Washington. 

    The case raises an interesting legal issue, but it is certainly not so novel as to suggest a purely political decision.  The National Labor Relations Act (NLRA) expressly protects the employees’ right to strike and to join together in a union to improve their wages and working conditions.   Interference with those rights using threats, coercion or discrimination is prohibited.  The NLRB is tasked with enforcing the law where investigation reveals that a violation may have occurred.  Public statements from company officials indicated that the decision to locate production in South Carolina and seek outside suppliers for some parts was based on previous strikes by the unionized employees in Washington.  According to the NLRB’s complaint, these statements also suggested that the unionized employees stood to lose future work because of their frequent strikes.

    The NLRB regularly issues complaints against employers who threaten employees with loss of work or discriminate against employees because of their union activity, usually without such public evidence of motive.  In numerous prior cases this discrimination has taken the form of discharge, discipline, contracting out the employees’ work, eliminating a department, relocating operations, or even closing a plant.  So long as the motive is to discourage protected union activity, the conduct is unlawful.  And that is the allegation here. 

    Where employers have legitimate business reasons for discriminating against strikers or employees who have engaged in protected union activity, the NLRB may find the action lawful despite its adverse impact on the employees and the potential for chilling their future exercise of legal rights.  The interesting legal question here is whether the Board or the courts will find Boeing’s desire for a dual source to avoid the impact of the strike to be a lawful and legitimate business reason, where it has expressly tied the decision to its employees protected activity.

  • June 28, 2011

    Imagine a world in which the president must drive 500 miles to a designated "armed crisis center" before waging war, and women have the constitutional right to an abortion free of legal obstacles.

    This is "Counter-Earth," envisioned by Ruben Bolling in his latest "Tom the Dancing Bug" comic strip. View the rest of the frames from strip here.

    Bolling, a cartoonist with a law degree, participated in a panel discussion earlier this month at ACS's 10th Anniversary National Convention on nontraditional lawyers and their impact on the law. Watch video of that discussion here.

  • June 28, 2011

    The debate continued today over the legality of the ongoing U.S. military operation in Libya, as Department of State Legal Advisor Harold Koh explained the administration’s position in testimony before the Senate Foreign Relations Committee.

    Koh is the latest to wade into the debate over whether President Obama violated the War Powers Resolution by maintaining a military operation in Libya for more than 60 days without obtaining congressional approval. And his testimony comes four days after the House failed to pass two bills on the military operation — one that would have authorized military intervention for a year, and a second endorsed by House Speaker John Boehner that would have required an end to combat activity, NPR reports.

    A panel of experts addressed the legality of the military intervention in Libya during a panel on executive power at the ACS Tenth Anniversary National Convention earlier this month, with several on the panel questioning the strength of the Obama administration’s argument that the 60-day limit does not apply because the military operation in Libya does not constitution “hostilities” under the War Powers Resolution.

    During the panel and in a subsequent video interview, Ohio State University law professor Peter Shane said he thought the administration’s argument could be made with a straight face, but added, “just barely,” in later comments that followed news reports of some 60 airstrikes in Libya since April.

    Georgetown University law professor Martin S. Lederman, who was assistant deputy attorney general in the Office of Legal Counsel during the Obama administration, agreed in part, saying, “It’s just very difficult to say that a sustained bombing attack even by unmanned drones is not hostilities."

    The panelists also touched on recent reports that President Obama took the legal advice of Koh and White House Counsel Robert Bauer over that of lawyers at the Department of Justice and the Pentagon on whether congressional authorization was required.

    Walter Dellinger, who has served in high-level positions at both the Department of Justice (as acting solicitor general and as head of the OLC) and the White House (as a legal advisor), chimed in from the audience to explain the “profound difference” between getting legal advice from White House lawyers and Justice Department lawyers, and why the process matters:

  • June 28, 2011

    The Senate, after months of delay, finally approved several high-ranking Department of Justice nominations.

    After an hour or so of debate the Senate today confirmed James Cole’s nomination to be Deputy Attorney General by a vote of 55 to 42. The Deputy Attorney General, as The Washington Posted noted in an editorial deploring the delays of his confirmation, “is essentially the chief operating officer of the Justice Department, including its national security operations.”

    The Senate, on voice-vote, also confirmed the nominations of Lisa Monaco, to be assistant attorney general for national security, Cole’s deputy, and Virginia Seitz to be assistant attorney general to head the Office of Legal Counsel (OLC). President Obama nominated Seitz, a partner at Sidley Austin and a frequent ACS participant, in January.

    The Post editorial noted that the nominations of Seitz and Monaco were subject to months of delay “despite no public opposition to their confirmation.”

    During today’s floor action, Republicans did not attempt to explain the delay of those nominations, but Sen. Charles Grassley reiterated his objections to Cole. Specifically, Grassley complained that Cole has favored prosecuting alleged terrorism suspects in federal courts instead of military tribunals. At the recent ACS 10th Anniversary National Convention, Attorney General Eric H. Holder Jr., also said the federal courts were more than capable of handling terrorism cases, citing a string of successful prosecutions. Video of Holder’s remarks is available here.

    Senate Judiciary Chairman Patrick Leahy took to the Senate floor to blast the “extensive and unnecessary delays,” of all three of the DOJ nominations. He called them “unprecedented” delays and said the obstructionism was not related to the qualifications of the nominees.

    In a press statement Leahy added, “The unprecedented filibuster of the nomination of the Deputy Attorney General has been especially egregious. The Deputy Attorney General is the number two position at the Justice Department, a position with key national security responsibilities. Despite significant bipartisan support and unquestionable qualifications, Jim Cole’s nomination has been blocked for nearly a year.”

    ACS Executive Director Caroline Fredrickson also decried the ongoing obstruction of the president’s nominations, including judicial nominations.

    “Today’s votes are emblematic of a confirmations process that has seriously gone awry,” Fredrickson said. “As Senator Leahy noted, these nominations for high-ranking Justice Department positions should have been filled months ago. Instead needless obstructionism continues to win the day. It has slowed the president’s efforts to place judges on the federal court bench and deprived the Justice Department of a national security team. The unprecedented delays in the confirmation process are harming the effectiveness of our courts to dispense justice and the president’s ability to carry out national security responsibilities.”

  • June 28, 2011
    Guest Post

    By Richard M. Zuckerman. Litigation partner in the New York office of SNR Denton US LLP. Mr. Zuckerman was counsel for several amici curiae in Brown v. EMA.

    At oral argument, one “originalist” had kidded the other. “What Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them?” Justice Alito asked.

    Justice Scalia gave his response on Monday, writing for a majority of the Supreme Court in Brown v. EMA, and striking down, on First Amendment grounds, California’s law making it a crime to give or sell a violent video game to a minor.

    While the decision broke no new ground in First Amendment jurisprudence, it is destined to be oft-cited because of the strength of its articulation of two principles: First Amendment protections do not depend on the nature of the medium. And the limited exceptions that the Court has recognized to the First Amendment -- Justice Scalia noted obscenity, incitement, and fighting words -- cannot be transmuted into other areas.

    “[V]ideo games communicate ideas -- and even social messages -- through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world). That suffices to confer First Amendment protection,” Justice Scalia wrote. “[W]hatever the challenges of applying the Constitution to ever-advancing technology, ‘the basic principles of freedom of speech and the press, like the First Amendment's command, do not vary’ when a new and different medium for communication appears.”

    Justice Scalia noted that obscenity is one of very few, limited exceptions to the First Amendment. The Miller/Ginsberg rule—which holds that the First Amendment does not preclude making it a crime to give a minor non-obscene sexual material that is “harmful to minors” -- cannot be expanded to make it a crime to give a minor violent material. Miller/Ginsberg simply adjusts the boundaries of “an existing category of unprotected speech,” the Court held. California’s attempt to use Miller/Ginsberg as a basis to restrict minors’ access to violent video games seeks “to create a wholly new category of content-based regulation that is permissible only for speech directed at children.”

    The Court rejected California’s argument that the regulation should be allowed to protect minors. “No doubt a State possesses legitimate power to protect children from harm, but that does not include a free-floating power to restrict the ideas to which children may be exposed.”