Guest Post

  • April 21, 2016
    Guest Post

    by Joseph M. Sellers and Miriam R. Nemeth. Mr. Sellers is the head of the Civil Rights and Employment practice group at Cohen Milstein Sellers & Toll, PLLC. Ms. Nemeth is an associate in that practice group. In May, Cohen Milstein will be opening an office in Raleigh, North Carolina that will be headed by the Honorable Martha Geer, who is leaving the North Carolina Court of Appeals to take on that role.

    North Carolina has justifiably been pilloried in recent weeks for enacting legislation that requires public school students and state employees to use the bathrooms reserved for their biological sex, regardless of the gender with which they identify. In many ways, this legislation resurrects memories of racially segregated restrooms that were mandated by law until the middle of the last century. Motivated by the same kind of fear and unjustified stereotypes as before, the segregation this time is directed at transgender people.

    The bill’s requirement that state employees and public school students use restrooms designated for their sex at birth, regardless of the gender with which they identify, is bad enough. But the bill also limits protections against sex discrimination to one’s “biological sex,” which further reinforces state-sponsored hostility to transgender people. Although such a limitation may not impose the same daily inconvenience or humiliation as the restroom restriction, it wholly exempts transgender people from the state’s legal protection. Like the bigotry of racism, this officially sanctioned discrimination rests on unfounded stereotypes and fears about transgender people. Nowhere else do we require employees and students who wish to use public restrooms to announce what their genitalia look like.

    Even more troubling and little noticed, however, this legislation also gutted the state’s civil rights laws. Enacted as the Public Facilities Privacy and Security Act, a wholesome title that masks its pernicious effect, this legislation withdrew a private right for anyone (not just transgender people) to challenge in the state’s courts any form of discrimination in employment and public accommodations. Part III specifically provides that the state’s existing statutory protections—including the language added by House Bill 2—do not “create or support a statutory or common law private right of action and no persons may bring any civil action based upon the [discrimination prohibitions] expressed therein.” House Bill 2, Sess. Law 2016-3, Pt III. In that one clause, the legislation abolished North Carolina’s common law cause of action for wrongful discharge based on discrimination, which had been recognized by the courts since 1989.

  • April 20, 2016
    Guest Post

    by Christopher Kang, National Director, National Council of Asian Pacific Americans

    *This post first appeared on HuffPost Politics.

    This morning, the Senate Judiciary Committee held a hearing on judicial nominations for just the second time this year.

    At this point, I’m not worried about Senate Republicans doing their job—I’m worried that they’ve forgotten what doing their job even looks like.

    Senate Republicans are not only politicizing and undermining the Supreme Court, with their refusal to even consider Chief Judge Garland’s nomination, but they are doing the same thing to lower courts as well. They are likely to damage our entire judiciary—all for political gain, so they can leave more vacancies open for President Trump to fill.

    Since January 2015, Senate Republicans have confirmed only 17 judicial nominees.

    In comparison, from January 2007 to April 2008, Senate Democrats confirmed 45 of President Bush’s judicial nominees.

    The difference is even starker when you consider the circuit courts—the level of our federal courts just below the Supreme Court.

    In fact, with respect to circuit court confirmations, Chairman Grassley has work to do if he doesn’t want the worst record in almost 120 years.

    So far, Chairman Grassley has held hearings on only two circuit court nominees—the last one was ten months ago—and he has not indicated whether he will allow any of the seven pending circuit court nominees to move forward, taking the obstructionist mantra of “No Hearing No Vote” to a whole new level.

  • April 19, 2016
    Guest Post

    by Charles Duan, Director, Patent Reform Project, Public Knowledge

    Cuozzo Speed Technologies, LLC v. Lee, which will be argued in the Supreme Court on April 25, is fundamentally a case about how technical language is to be understood by those not intimately familiar with that language, namely judges and juries. Of course, in the matter of specialized patent jargon, the question presented in Cuozzo could very well be Exhibit A. That question is: whether the U.S. Patent and Trademark Office properly applies the broadest reasonable interpretation standard when construing claims during inter partes review. I don’t expect that sentence to be fully comprehensible even to the educated readers of this blog, so let’s break it down to reasonable terms.

    A patent gives a person exclusive rights over an invention, allowing the patent owner to stop others from making, using, selling, or doing other things with the invention. But for the patent to have that function, it must define what things are within the scope of the invention and what things are not. That definition of the scope of the invention (and thus the scope of the exclusive rights) is done in a part of the patent called the “claims.” Each claim is structured as a sentence identifying all the features that must be present for the patent to be infringed. Here’s an example from Cuozzo’s patent:

    10. A speed limit indicator comprising:
    a global positioning system receiver;
    a display controller connected to said global positioning system receiver, wherein said
    display controller adjusts a colored display in response to signals from said global positioning system receiver to continuously update the delineation of which speed readings are in violation of the speed limit at a vehicle's present location; and
    a speedometer integrally attached to said colored display.

    As you can see, this claim is full of terms whose meanings are not immediately apparent. What exactly is a “display controller?” What is supposed to happen when the “display controller adjusts a color display?” And what does it mean for the speedometer to be “integrally attached” to the color display?

  • April 18, 2016
    Guest Post

    by Jennifer Hunter, Associate General Counsel, and Elena Medina, Assistant General Counsel, Service Employees International Union

    A recent decision by a trial court in Wisconsin striking down the state’s so-called “Right to Work” law highlights one reason why those laws are unfair to union members: It requires them to pay out of their own pockets for their union’s representation of other people who choose not to pay anything.

    What the decision leaves unstated is the bigger reason why the laws, more aptly called “Right to Work for Less,” are bad for working people in general. The real reason why corporations and wealthy special interests push for these laws in states across the country is not concern for the rights of individual workers. Rather, it is to weaken the ability of ordinary people to join together in unions to build a country in which everyone can make enough to sustain their families.

    In his decision last week, Dane County Circuit Court Judge William Foust struck down Wisconsin’s Act 1, which precludes unions from charging the workers they represent their fair share of the costs of that representation. As the judge pointed out, unions have a duty under federal law to fairly represent all of the workers in the bargaining units that elect them, including by bargaining a contract that benefits all of them and providing union members and non-members alike with representation if they are harmed by a violation of the contract. Judge Foust found that Wisconsin violates the Takings Clause of the Wisconsin Constitution by creating a free-rider situation in which unions are legally required to provide that representation to workers who pay nothing.

    The Honorable Diane Wood of the 7th Circuit Court of Appeals observed in another case on the same issue that this inherent conflict is akin to a “rule providing that, as a condition of receiving a business license in a city, a company selling gasoline had to give it away to any customer who did not want to pay.”

  • April 15, 2016
    Guest Post

    by Shoba Sivaprasad Wadhia, Samuel Weiss Faculty Scholar and Clinical Professor of Law, Penn State Lawauthor of Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases (NYU Press 2015).                         

    On November 20, 2014, President Obama announced two deferred action programs. One extends a program known as Deferred Action for Childhood Arrivals, or “DACA.”  The other creates a new policy known as Deferred Action for Parents of Americans and Legal Residents, or “DAPA.” Despite the fact that deferred action is a longstanding tool in immigration with a rich source of law and history, the state of Texas and 25 other states filed a lawsuit against the Administration to challenge the legality of these programs. The case, United States v. Texas, is the subject of an oral argument at the U.S. Supreme Court on April 18, 2016. The Court will hear arguments on four questions of law. Legal questions over the authority to exercise discretion and whether the plaintiffs have “standing” to bring this challenge have been analyzed extensively by scholars. This article discusses one of those issues – whether the updated DACA and new DAPA directives were legally required to undergo “notice and comment rulemaking” under the Administrative Procedure Act (APA).

    The plaintiff-states have argued that rulemaking is required under the APA. For certain rules, section 553 of the APA requires agencies to engage in formal rulemaking, where the government publishes a notice of the proposed rule and the parties then provide input primarily through the submission of written comments within a specified time period. Recognizing that the government would be unable to function efficiently if all rules required this lengthy and elaborate procedure, section 553 exempts "general statements of policy" from the notice and comment rulemaking requirement. The Supreme Court has held that "general statements of policy" include agencies' announcements as to how they plan to exercise discretionary powers going forward.

    In the memorandum announcing DAPA, the Secretary of Homeland Security explicitly instructed U.S. Citizenship and Immigration Services (USCIS) officers to assess the facts of each individual case and to exercise discretion even in cases where all the threshold criteria – some of which are themselves discretionary – have been met. The challengers argue that this is a pretext and that in practice USCIS officials will be pressured into approving DAPA requests mechanically. To prove this, Texas has relied on the low rate of denials among recipients of an earlier program, DACA 2012.

    This rationale is flawed. First, the DAPA program has discretion built into it as confirmed by the program’s actual requirement that the individual “present no other factors, in the exercise of discretion, that makes the grant of deferred action inappropriate.” Second, DACA requestors are a highly self-selected group. Moreover, the DAPA program has not even begun, so there is no evidence to show that employees are not using discretion, assuming of course the test even rests on the discretion exercised by boots on the ground as opposed to the Secretary of DHS, a point reasonably questioned by scholars. There is no basis for assuming that the DAPA approval rates will mimic those for DACA.