May 2011

  • May 11, 2011

    The Supreme Court’s recent decision in AT&T Mobility LLC v. Concepcion is “nothing other than a conservative majority favoring the interests of businesses over consumers, employees and others suffering injuries,” writes UC Irvine School of Law dean Erwin Chemerinsky in an op-ed in the Los Angeles Times.

    Chemerinsky explains that the court’s decision to deny individuals with claims of about $30 each their right to file a class action because the Federal Arbitration Act trumps California law does not comport with the Act itself, which provides that arbitration agreements are not to be enforced when the state court deems them unenforceable, as California law did here.

    “The Supreme Court ignored this and explicitly said that it was important to protect defendants, such as corporations, from the in terrorem ("in fear") effects of class action that pressure them into settlements,” Chemerinsky writes. “The court's conservative majority could not have been clearer that it was favoring businesses over consumers.”

    [The National Senior Citizens Law Center’s Rochelle Bobroff fleshes out this point in a guest post for ACSblog.]

    Chemerinsky notes Justice Stephen G. Breyer’s dissent, which points out that “only a lunatic or fanatic sues for $30,” and that the class action mechanism is intended for precisely these situations.

    He continues:

  • May 11, 2011
    Guest Post

    By Daniel J. Rohlf, Professor of Law, Lewis and Clark Law School


    In his book Last Chance to See, Douglas Adams – known by most for his cult classic Hitchhikers Guide series – recounts a story based on the Sibylline books. In the tale, a mysterious woman offers to sell the books of knowledge to the residents of a prosperous city, but when they refuse to pay she burns half of the collection. Later, when she renews her offer to sell as the city’s fortunes begin a steady decline, citizens protest that they cannot afford her higher price for the remaining books. She burns more of the books. Finally, when the old woman returns with the single remaining book of knowledge, the now-desperate townspeople pay a dear price for it. “It had better be good,” they cry.

    “It is,” the old woman retorts, “and you should have seen the rest of it.”

    Adams reportedly consideredLast Chance to See, which chronicled his travels to encounter vanishing wildlife, his favorite work. Unfortunately, his allegorical tale about saving endangered species is playing out today in real life in Washington D.C. 

    Congress in 1973 passed the Endangered Species Act (ESA) in a far-reaching effort to identify and conserve imperiled species and the ecosystems upon which they depend. However, recent events on Capitol Hill underscore our faltering efforts – and sometimes even unwillingness – to protect invaluable biological resources at a time when species and their ecosystems are under growing pressures from global as well as local threats.

    For the first time in ESA’s history, Congress in April mandated removal of an endangered species from the Act’s protected rolls when Montana Senator John Tester slipped into the hard-fought budget bill a provision effectively striking gray wolves in the western U.S. from the list of endangered species. To many, this legislative delisting sent a signal that Congress, motivated by the sluggish economy or political opposition by powerful constituencies, may be increasingly willing to strike down conservation measures for species in danger of extinction. A rash of such bills are currently pending before lawmakers

    Another bill proposed by Senator Tester in April perhaps best exemplifies the wrong approach to federal endangered species policies. Reacting to environmental organizations’ efforts to ban a use of lead in ammunition used for hunting – which spreads toxic lead throughout the American landscape -- Tester recently sponsored a bill outlawing federal regulation of lead ammunition. In so doing, Tester ignored the fact that lead annually poisons millions of non-target animals each year; the litany of species killed by lead includes highly endangered California condors, which despite extensive recovery efforts by the U.S. Fish and Wildlife Service (FWS) may again become extinct in the wild simply because they risk lead poisoning whenever they eat. The Montana senator also overlooked lead’s threats to people as well; hunters endanger themselves and their families because tiny pieces of lead often contaminate the meat people consume from game killed with lead bullets. Rather than defending an unacceptable status quo, lawmakers and the executive branch should encourage investment in solutions. Non-lead bullets are as effective as those made with lead, though they cost a bit more and require hunters to change long-held habitats. But modest additional expenditures for non-toxic ammunition and a simple willingness to change ammunition types would pay huge dividends in terms of wildlife saved from lead poisoning, and in the many people spared from ingesting toxic lead fragments. 

  • May 11, 2011
    Guest Post

    By Rochelle Bobroff, Directing Attorney, Herbert Semmel Federal Rights Project, National Senior Citizens Law Center


    What good is Medicaid insurance if doctors won’t provide preventive care and pharmacists won’t dispense medications?  When reimbursement rates are too low, doctors and pharmacies can decline to provide care.  Then without meaningful access to medical care and services, individuals are likely to experience dire health consequences that are much more expensive to treat in emergency rooms. 

    To lower their short term Medicaid costs, some states are slashing rates reimbursement for medical providers.  But lowering rates only for low-income Medicaid beneficiaries does not drive down the cost of health care.  Instead, providers just stop serving Medicaid patients and keep getting paid higher rates by everyone else.  And without preventive care, beneficiaries are prone to end up seeking emergency treatment, eliminating in the long term any short term fiscal savings.

    To address the issue of rates so low that treatment is refused, the Centers for Medicare and Medicaid Services (CMS) issued proposed regulations last week that explain the requirements of federal law when states seek to lower Medicaid rates.  The regulations “clarify that beneficiary access must be considered in setting and adjusting payment methodologies for Medicaid services.” 

  • May 11, 2011
    Guest Post

    By Adam Winkler, a constitutional law professor at UCLA School of Law.


    Tuesday’s oral argument in the U.S. Court of Appeals for the Fourth Circuit unmasked the true revolutionaries in the battle over health care reform. Ever since President Obama’s signature legislative accomplishment was enacted, opponents have taken to the airways decrying the law as a radical attempt to expand the power of the federal government. Never before has Congress regulated “inactivity” and forced citizens to do something like buy health insurance, they have insisted. 

    Of course, it doesn’t take long to find examples of Congress doing just that: forcing people to file tax returns, serve on juries, sign up for the selective service. But those are different, health care’s opponents argued, because none of them required individuals to purchase a product from a private party. When it was pointed out that Congress forced people to purchase firearms and ammunition in the militia acts of 1792, opponents once again came up with a creative answer. That was an exercise of Congress’s Militia Power, not the Commerce Power. Left unanswered was why Congress would have the power to mandate such transactions under any other clause but the Commerce Clause – an especially bewildering distinction given that we’re talking about mandated commercial transactions.

    The judges on the Fourth Circuit were, indeed, bewildered.

  • May 10, 2011

    As the U.S. Senate finally confirmed the nomination of Judge Edward Chen to a vacant seat on the U.S. District Court of the Northern District of California, ACS conducted a teleconference with bloggers about the ongoing crisis of escalating vacancies on the federal bench.

    Chen, a federal magistrate judge since 2001 was nominated to the U.S. District Court seat, which has been declared a judicial emergency by the Administrative Office of the U.S. Courts, more than 21 months ago.

    Chen’s nomination, as noted by Senate Judiciary Chairman Patrick Leahy in a statement, was obstructed by Republicans who opposed his civil rights advocacy work. At a point in his legal career, Chen was a staff attorney for the American Civil Liberties Union (ACLU).

    Chen was confirmed today largely along a party-line vote of 56 – 42.

    In Leahy’s statement today, he blasted the opposition to Chen, calling it “ugly.” He continued, “One Republican Senator [on the Senate Judiciary Committee] in explaining his opposition said that Judge Chen has the ‘ACLU gene.’"

    Leahy noted that this should have been “an easy nomination to confirm. It is no surprise that Judge Chen’s nomination received the highest possible rating from the American Bar Association’s Standing Committee on the Federal Judiciary, unanimously ‘well qualified.’"

    Last week, Senate Majority Leader Harry Reid forged an agreement to limit debate on Chen’s nomination, hindering efforts by Republicans to block an up-or-down vote on Chen.

    ACS Executive Director Caroline Fredrickson lauded the action, calling it “a disservice to the nation to keep our federal courts hostage to petty politics.”

    Fredrickson added that for nearly “two years, Republicans have worked to scuttle the nomination of this highly qualified and experienced jurist.” With federal court vacancies on the rise, Fredrickson blasted the delay tactics as “inexcusable.”

    Chen (pictured), as Sen. Leahy noted, will become “only the second Asian Pacific American to serve on the district court bench in the 150-year history of the Northern District of California.”

    In today’s ACS teleconference for bloggers, Fredrickson said there is far too little media coverage of the rancorous situation surrounding judicial nominations, which is leading to an escalating number of vacancies on the federal bench. She cited progress such as the recent confirmation of Rhode Island lawyer John “Jack” McConnell Jr. to the U.S. District Court for the District of Rhode Island.

    But Fredrickson said that this recent movement of the president’s judicial nominations “belies the truth that there has been a systematic delay of judicial nominees by Republicans in the Senate; people have gotten bottled up after having a unanimous vote out of the Senate Judiciary Committee, completely uncontroversial nominees who are held up because people can simply hold them up.”

    She added that this is “a problem that is not getting better, it is getting worse. We anticipate a great number of retirements” of federal court judges over the coming years, which will produce more vacancies.

    The teleconference also included commentary from noted constitutional law professor and ACS Board Chair Geoffrey R. Stone, and Professor and blogger Scott Lemieux.

    Professor Stone examined several consequences of the continued obstruction of judicial nominations, saying one of the most damaging is the politicization of the judicial nominations process.

    Lemieux, a blogger at The American Prospect and Lawyers, Guns & Money, noted that the federal courts have long been skewed to the right due to the many Republic-appointed nominees. Unless the federal courts become more balanced, it means that policies enacted by the Obama administration are in danger of either being invalidated by the federal courts or interpreted in ways that are far afield from congressional intent.

    Listen to audio of the teleconference here. To follow the number of vacancies on the federal bench and status of the judicial nominations, see JudicialNominations.org.