ACSBlog

  • May 5, 2015
    Guest Post

    by Bill Lurye, General Counsel, and Matt Stark Blumin, Associate General Counsel, at American Federation of State County and Municipal Employees (AFSCME)

    On February 9, less than a month into his first term as governor of Illinois, Bruce Rauner issued an executive order barring state employee unions from collecting fair share fees, thus unilaterally transforming Illinois into a right-to-work state for state employees.  He justified this extreme act by arguing that, in his opinion – though contrary to Supreme Court precedent dating to 1977 – such fees violate the First Amendment.  Rauner’s anti-union executive order is a blatantly illegal power grab, and unions have filed suit to overturn it.

    As is the case in many states, Illinois’ public sector labor relations statute expressly authorizes collective bargaining agreements allowing unions to collect fair share fees, and over 40,000 state employees are covered by collective bargaining agreements (CBAs) that include fair share fee provisions.  Yet, despite strong separation of powers language in the Illinois Constitution that prevents him from legislating, Governor Rauner has declared that he will not turn over any of the contractually owed fair share fees to unions, no matter what the duly enacted state labor law statute says.

    First, some background on fair share fees in Illinois.  Just like a private sector union under the National Labor Relations Act (NLRA), a public sector union under Illinois law is required to represent every employee in a unionized bargaining unit whether or not the employee is a member of the union.  This means that the unions have to do lots of costly work on behalf of nonmembers, like negotiating the CBA fairly on the nonmembers’ behalf and handling any grievances they have.  Fair share fees represent the cost to the union of providing those services to nonmembers, and nothing more.  (Members who pay full union dues additionally fund other work by the union, such as lobbying or political donations, that fair share fees don’t cover.)  As even Justice Scalia has recognized in his concurrence in Lehnert v. Ferris Faculty Association, fair share fees “allow the cost of . . . the union’s statutory duties to be fairly distributed; they compensate the union for benefits which ‘necessarily’ – that is, by law – accrue to the nonmembers.”

  • May 5, 2015

    by Caroline Cox

    At SlateDahlia Lithwick hosts a podcast exploring the oral arguments in Obergefell v. Hodges and interviews Douglas Hallward-Driemeier, one of the three lawyers who argued for marriage equality.

    Jeff Clements writes at The Hill about the liberal law professors who oppose a 28th Amendment to the Constitution that would overturn Citizens United

    At The American ProspectLincoln Caplan profiles Justice Elena Kagan, arguing that her work has expanded the role of a Supreme Court justice. 

    In The Washington PostRobert Barnes discusses how Chief Justice John Roberts is the Supreme Court's "most scrutinized player" as the public waits for the Court rule on several high profile cases. 

    Brad Lander and Karl Kumodzi consider at The Nation how funding problems in cities are exacerbating racial and economic inequality.

  • May 4, 2015

    by Caroline Cox

    At The New York Times, Jesse Wegman considers the lethal injection case before the Supreme Court and how “both the logic and the practice of the death penalty begin to collapse inward on themselves.”

    Nina Totenberg of NPR discusses the ruling in Williams-Yulee v. Florida Bar and its implications.

    David Savage reports in the Los Angeles Times on the oral arguments in the same-sex marriage cases and how opponents of marriage equality are arguing that marriage is not centrally about love or fedelity.

    At Hamilton and Griffin on Rights, Marci A. Hamilton reviews the history of the marriage equality movement and the religious freedom questions it raises.

    At Salon, Joanna Rothkopf profiles Marilyn Mosby, the Baltimore City state’s attorney that recently deemed Freddie Gray’s death a homicide.

  • May 4, 2015
    Guest Post

    by Tom Nolan, Associate Professor of Criminology, Merrimack College; 27-year veteran of Boston Police Department

    I applaud Marilyn Mosby's swift and decisive move in charging the six Baltimore police officers on Friday, May 1 with crimes ranging from second-degree murder to manslaughter, assault and false imprisonment, and I'm hopeful that she'll get the result that she's seeking, if that’s what the interests of justice determine is warranted.  However, I don't believe that the Baltimore officers will be convicted of any murder or manslaughter charges and that this likely result will lead to more civil unrest.  According to The Washington Post, in order to secure a guilty finding in Maryland for second degree murder in the death of Freddie Gray, (the “depraved heart” murder), the judge or jury must agree that there is proof beyond a reasonable doubt of three necessary elements for conviction: (1) that the defendant (here the police transport van driver, Officer Caesar Goodson), actually caused Freddie Gray’s death; (2) that Officer Goodson’s conduct itself posed a very high risk to endangering Gray’s life; and (3) that Goodson, aware of the risk he was causing to Gray’s life, acted with extreme disregard of the life endangering consequences of his actions.

    To secure a manslaughter conviction, even for involuntary manslaughter, prosecutors must convince a judge or a jury (and these will likely be jury trials), that the officers in Baltimore knew or should have known that their actions were a direct threat to Gray’s life and that what the police did in arresting, subduing and transporting Gray was something they knew was inherently dangerous or that it was done with a reckless disregard for human life.

    Prosecutors will face an uphill and arduous battle in securing convictions against these six police officers, even given the current climate of public skepticism, mistrust, and suspicion (and even disdain) of the police that began in earnest in Ferguson last August.  For what the police engaged in on April 12 in Baltimore, even in its violence, brutality and senselessness, was nothing if not the routine and mundane activities of the police, particularly in communities of color in cities across the United States. What happened to Gray, we may very well learn from defense counsel in the upcoming trials of the officers, was standard operating procedure (with an unintended, accidental and tragic result), perhaps even in compliance with police policy, as well as tactics and strategies that the officers were trained in, and all in a day’s work in the perilous, violent and dangerous world that the police believe that they toil in selflessly, thanklessly and courageously every day.  This is the police narrative, always and already, and one that prosecutors will need to challenge vigorously in order to secure any convictions against the “Baltimore Six.” 

  • May 1, 2015
    Guest Post

    by Atiba R. Ellis, Professor of Law, West Virginia University College of Law. Follow him on Twitter @atibaellis.

    The New York Times recently published a story entitled, “1.5 Million Missing Black Men.” The graphic portrayed how the war on drugs, American policies of mass incarceration and other structural forces, have left these African American men and their communities oppressed in the United States because these men are incarcerated, disabled from full citizenry or deceased.

    A purely academic discussion of this data and its meaning was what this blog post was supposed to be about.  But over the past weekend, we saw the city of Baltimore, Md. react to the fact that Freddie Gray is now missing forever.  Gray’s fatal injuries, inflicted during his custody of the Baltimore Police Department, provide us a specific case of an African American man going missing. Mr. Gray’s death puts into relief how one person loses his life due to the policies and structures of inequality, and the Baltimore police officers involved have now been charged in Mr. Gray’s death.

    Yet it isn’t simply Gray’s death that teaches us something about structural racism. The uprising that occurred in reaction to Gray’s funeral, the reaction to opinion leaders and the Internet opinion-sphere all teach us something about how our language regarding racism falls prey to a gap of misunderstanding and misperception. This is a multilayered problem reflective of the complicated tableau of race in America.

    On one level, Gray’s death is one more tragedy that we can add to the long list of tragedies that seem to target African American men. Gray is forever missing, along with Eric Garner, Tamir Rice, Michael Brown and many more. And, as Professor Elwood Watson points out, black women like Dr. Ersula Ore or Kathryn Johnston similarly suffer violence, abuse and death due to this same system of oppression.

    Though the factual circumstances vary, it appears that all these people I’ve named are the casualties of either the war on drugs, the effects of declaring poor minority neighborhoods “high crime neighborhoods,” police bias against people of color or all of the above.  This results in their individual and communal struggles against siege policing and its short and long-term effects. Because of these factors, these men and women lose their lives or their livelihoods in a manner not subject to due process.