• February 8, 2016
    Vagrant Nation
    Police Power, Constitutional Change, and the Making of the 1960s
    Risa L. Goluboff

    by Risa L. Goluboff, John Allan Love Professor of Law and Professor of History, University of Virginia School of Law

    Long before I finished writing Vagrant Nation: Police Power, Constitutional Change, and the Making of the 1960s, my new book about the rapid downfall of age-old vagrancy laws in the 1960s, I began talking about it with colleagues, lawyers, and friends. Each time I did, they pointed out connections to the present.

    The present each had in mind was very different, however. To poverty lawyers and scholars, my tale of the downfall of vagrancy laws—originally passed and long used to criminalize the status of being idle and poor—naturally led to questions about homeless policies today. To political activists who learned from my book that vagrancy laws had long been used against unpopular speakers—everyone from the Industrial Workers of the World to Communists to civil rights leaders and Vietnam War protestors—Occupy Wall Street seemed the natural endpoint. Scholars and activists focused on race and policing saw how stop-and-frisk in many respects had replaced the vagrancy arrests of those who seemed suspicious to the police. More generally, they reflected that the arbitrary and discriminatory policing I describe in the book is still (or once again) the subject of considerable controversy and social movement organizing today. Those interested in criminal law identified analogues to the vagrancy laws in the criminalization of certain people for their status—though now the most obvious examples are convicted sex offenders and undocumented immigrants rather than gay men, prostitutes, or poor people.

    My colleagues were all right. Much of the social, criminal, and political regulation that exists today has roots, analogues, echoes, or precursors in the single category of criminal law that made vagrancy illegal in every state in the nation for hundreds of years. Vagrancy laws that outlawed not only being idle and poor but also being immoral or dissolute, or wandering about with no apparent purpose, were eminently flexible. They could do, and did do, just about anything law enforcement authorities—or the powerful people in their communities—wanted them to do.

  • February 8, 2016

    by Jim Thompson

    In advance of Whole Woman’s Health v. Hellerstedt (formerly Whole Woman’s Health v. Cole), Robert Barnes at The Washington Post discusses a brief that cautions against laws “protecting women” written by men.

    In the Los Angeles Times, David G. Savage considers whether the Supreme Court will rule against President Obama’s use of executive authority and undermine his executive actions on immigration.

    On Saturday, New York Gov. Andrew Cuomo announced the state of New York will bar insurance coverage of conversion therapies aimed at changing the sexual and gender orientation of young people, reports Laila Kearney at The Huffington Post.

    At Jost on Justice, Kenneth Jost explains why voter ID laws suppress minority participation in elections, noting that in this year’s primary elections, “a strict ID law could be expected to depress Latino turnout by 9.3 points, black turnout by 8.6 points, and Asian American turnout by 12.5 points.”

  • February 5, 2016

    by Jim Thompson

    The United Nations has declared abortion a human right, crucial to achieving gender equality worldwide, reports Lauren Barbato at Bustle.

    On Wednesday, Google Fiber announced a partnership with ConnectHome, an initiative by the U.S. Department of Housing and Urban Development and the White House, to provide public housing residents with free gigabit connections, expanding access to the Internet for low-income individuals, writes Mark Bergen at Recode.

    Current New Mexico law mandates a life sentence for offenders convicted of three separate violent felonies. In a move toward harsher penalties and away from national trends, the New Mexico House of Representatives passed a bill that would increase the number of felonies that qualify as “strikes” under this “three-strike” law, says P.R. Lockhart at The American Prospect.

    Ellen Nakashima and Andrea Peterson at The Washington Post discuss developing negotiations between the United States and the United Kingdom that would enable the British government to service wiretap orders on American communications firms for criminal and national security investigations involving its citizens. This agreement is intended to be reciprocal.

    At Race and the Law Prof Blog, Craig L. Jackson criticizes the United States Constitution’s lack of enumerated social rights, stating “in effect, our constitution is an incomplete document.” 

  • February 5, 2016
    Guest Post

    by Kent Greenfield, a Professor of Law and the Dean’s Research Scholar at Boston College, where he is the faculty adviser for the ACS student chapter. He is the author of the forthcoming Corporations Are People Too (And They Should Act Like It). Follow him on Twitter @Kentgreenfield1

    If government employees can object to funding a union’s political activity, should shareholders have the right to object to a corporation’s? The Supreme Court has answered no, and a new case risks making the gap between the rights of dissenting employees and dissenting shareholders more stark.

    But there is good reason to treat shareholders and employees differently.

    The tension arises from two lines of free speech cases. One protects corporations’ right to spend money in elections while another allows government employees to opt out of their share of union dues. These cases have little in common at first glance. But the corporate spending cases assume that shareholders have no right to object, while the union cases enshrine the right to object as a constitutional value.

    In January, the Court heard arguments in Friedrichs v. California Teachers Association. That case is a challenge to the 1977 case Abood v Detroit Board of Education, which allowed unions to charge employees they represent a fair share of the costs of collective bargaining. Objecting employees can refuse to fund a union’s political involvement, the Court said, but had to pay for non-political activity. Court watchers believe the justices will use Friedrichs to expand government employees’ rights to object to include the non-political.

    Meanwhile, the Court’s protections of corporate speech pay little heed to the interests of dissenting shareholders. In Citizens United v Federal Election Commission six years ago (how time flies!), the Court rejected the argument that shareholders should be protected from corporate spending with which they disagreed. “Allowing government to use the excuse of protecting shareholder rights to stifle the speech of private, voluntary organizations undermines the First Amendment,” said the Court. Critics are already blasting the Court’s apparent inconsistency. Corporations can engage in political activities without concern for the views of shareholders, but unions must offer objecting employees an opt-out from paying even for collective bargaining?

    But it is a false analogy.

    Let me be clear. Overruling Abood would be a mistake, and Citizens United was a blunder. But shareholders and employees are not the same.

    Unions are associations, united by a common and collective purpose. The union itself has a legal duty to represent the interests of its members and others in the bargaining unit. And the union is financed by contributions from its members and others who benefit from its representation.

  • February 4, 2016

    by Jim Thompson

    In The Atlantic, William Barber and Jonathan Wilson-Hartgrove explain how the Supreme Court’s 2013 ruling in Shelby County v. Holder ushered in a new era of Jim Crow laws– “Jim Crow, Esquire.”

    The Editorial Board at the Los Angeles Times urges Congress to pass the Voting Rights Amendment Act, “which would automatically subject a state to pre-clearance if 15 or more voting-rights violations had occurred there over the last 25 years (or 10 violations if one was committed by the state government itself).”

    Many residents of Flint have justifiably stopped paying water bills, and a federal class action lawsuit on behalf of Flint water customers seeks $150 million in refunds and damages, reports Steve Carmody at NPR.

    Nina Frank at Hamilton and Griffin on Rights blasts the myth of black criminality and says this common misconception “contributes to the devaluation of black lives as well as the exclusion of black men and women from all sectors of the workforce.”