Guest Post

  • September 3, 2014
    Guest Post

    by Jeff ClementsThe writer is the Co-Founder and Board Chair of Free Speech For People and the author of the 2014 updated and expanded edition of Corporations Are Not People: Reclaiming Democracy From Big Money and Global Corporations)

    In the November 2012 election, the same Montana voters who gave the State’s presidential electoral votes to Republican Mitt Romney by a wide margin also approved a ballot initiative that called for a Constitutional amendment to overturn Citizens United v. Federal Election Commission. Challenging the twin propositions on which that 5-4 decision precariously rests, the ballot question declared the policy of Montana as follows:

    (1)  Political spending may be regulated in order to defend the integrity of elections, prevent corruption, and to defend the political equality of all Americans; and

    (2)  corporations do not have the Constitutional rights of human beings but rather have the rights and obligations of state corporation laws. 

    Montana voters passed the ballot initiative by 75-25%, making Montana the 16th state to call for the 28th Amendment. 

    Some were surprised by the overwhelming margin. Clearly, many Montana conservatives and Republicans joined Democrats, progressives and independents in supporting the ballot initiative and the overturning of Citizens United. The landslide margin, however, followed similar results in virtually every region of the country when Americans have had a chance to vote on the question of Citizens United (as they did in Colorado and in hundreds of cities and towns that have enacted Constitutional amendment resolutions.)  Indeed, conservative opposition to special Constitutional rights for corporations and the protection of political privilege for an elite of large donors is not new. It is rooted in the traditional American concern about concentrations of power corrupting republican government.

  • September 2, 2014
    Guest Post

    by Reuben Guttman. Guttman is an ACS Board Member and a Director at Grant & Eisenhofer, where he heads the firm's Washington, D.C. office.

    Back in the fall of 2010, Congressman John Lewis gave the keynote address at Emory Law School’s National Civil Rights Access to Justice Forum co-sponsored by the American Constitution Society.  Lewis, of course, had been a leader in the Civil Rights Movement resulting in passage of sweeping civil rights legislation in the 1960‘s.  He had been a close colleague and advisor to Dr. King, traversed the Edmund Pettus Bridge on the historic march from Selma to Birmingham, stood by Dr. King on the steps of the Lincoln Memorial, and endured his share of jail time and beatings.  By 2010, Lewis had risen from the ranks of the civil rights movement and through local Atlanta politics to become a leader in the United States Congress.  He was and remains a national treasure.  But more than anything else – at least for the audience at Emory Law School – Lewis understood from personal experience the important role of lawyers in challenging accepted norms that violate fundamental rights.       

    As Lewis scanned the audience in Emory’s Tull Auditorium, his eyes focused on a bald-headed gentleman seated a few rows from the front.  And as he  talked about the role of lawyers to “agitate for what is fair and just,” to “find a way to get involved,” to “get into trouble but good trouble,” the Congressman paused to recognize the bald-headed gentleman, “a distinguished lawyer,” who epitomized all that Lewis was talking about on that November morning.  

  • August 26, 2014
    Guest Post

    By Archis A. Parasharami, litigation partner at Mayer Brown, and James Tierney, litigation associate at Mayer Brown

    *This post originally appeared on Class Defense

    In the three years since AT&T Mobility LLC v. Concepcion, courts have largely been rejecting substantive attacks on arbitration agreements that waive class actions. By contrast, in some cases plaintiffs have succeeded in avoiding arbitration by arguing that they never agreed to it in the first place.

    The latest case to address such questions of contract formation comes from the Ninth Circuit, which held last week in Nguyen v. Barnes & Noble, Inc. that  plaintiff Kevin Nguyen had not agreed to arbitration because he and similarly situated consumers lacked sufficient notice of the company’s online “browsewrap” terms of use. Because the Ninth Circuit applied New York law governing contract formation—and because the court indicated that it would have come to the same conclusion under California law—the decision is an important one for all businesses that engage in online commerce in the United States.

    In the opinion, the Ninth Circuit distinguished between the familiar “clickwrap” process—in which a user affirmatively accepts terms by, for example, clicking “I agree” after receiving notice of the terms—and “browsewrap,” in which a company makes the relevant terms available to users on the web site (usually by providing a hyperlink), but does not require a customer to record his or her assent to the terms.

    In Nguyen, each page on Barnes and Noble’s web site included a link to the applicable terms of use. If followed, the link would direct a user to the terms, which provided that a user accepts the terms by “visiting any area in the Barnes & Noble.com Site, creating an account, [or] making a purchase.” The terms, among other things, provided that parties would resolve their disputes by arbitration on an individual basis.

  • August 21, 2014
    Guest Post

    by Atiba R. Ellis, West Virginia University College of Law, (@atibaellis)

    In a previous post, I discussed the triumph of the Civil Rights Act of 1964. Its passage sounded the death knell of legalized white supremacy and promised an era of equal opportunity.  With the shooting of Michael Brown and the subsequent civil unrest and siege policing in Ferguson, Mo., we must recognize another reoccurrence reminiscent of fifty years ago -- protest and in response to enduring racial subjugation. 

    The Ferguson situation is about the unjustified death of a Black youth (and the fact that this happens all too often in America). This happened in the context of the reality of structural inequality in America that civil rights policy has failed to address. As I argued in that earlier post, formal equality does not go far enough to remedy the enduring legacies of white supremacy, legacies that keep repeating themselves in police violence, political underrepresentation, and minority economic stagnation. It fosters a de facto second-class society for people of color without the economic wherewithal to navigate the system. 

    This structural reality exists and replicates notwithstanding the good intentions of the law or of people who rely on formal equality as remedy. Daria Roithmayr, Ian Haney Lopez, and Michelle Alexander have provided lucid scholarly explanations of different facets of 21st century racism.  The situation in Ferguson illustrates this reality in a number of ways.

    First, the shooting of Michael Brown offers a view on the reality of the enduring abuse that people of color suffer at the hands of the police. The problems of racial profiling, the use of excessive force by police departments, and the violence suffered by Black men and boys in particular has been well documented.  To take just one source: the ACLU has written numerous accounts about racial profiling in the United States. What their work makes clear is that the police disproportionately target minorities, and particularly minority youth because of their race.  And as a recent post on their blog has made clear, such profiling, and the tragic deaths that accompany it, are all too common in the United States.  And for those minority youth that survive these encounters, they are disproportionately incarcerated. The Sentencing Project has documented not only the 500 percent increase in incarceration rates in U.S. prisons generally over the last century, but the fact that a Black male under 35 has a 1 in 10 chance of being incarcerated.

    Second, as others have noted, Ferguson is two-thirds Black and one-third white, yet its mayor and five of the six members of its city council are white. And the overwhelming majority of its police force is white. And, as The New York Times has reported, this segregated power structure is the product of a long history of racial tension. The patterns of overzealous policing and unrepresentative governance make clear that the authorities in Ferguson are out of touch with the interests of the majority of people in Ferguson. This suggests a failure of competitive politics and a resistance of the government in Ferguson to hear the interests of its people. (Even when activists in Ferguson have sought to register people to vote – presumably to encourage people to use the democratic process rather than self-help violence – this too becomes highly contested.)

  • August 20, 2014
    Guest Post

    by Robert N. Weiner, Litigation Partner, Arnold & Porter LLP

    *This post originally appeared on Balkinization

    Sometimes, lawyers are fortunate that an opponent does not get the opportunity to reply to their argument and they get the last, unchallenged, word on an issue. The Halbig case [D.C. Circuit Court panel opinion negatively impacting the federal government’s effort to help low-income persons obtain health care insurance] presents a prime example. On Monday, the plaintiffs seeking to nullify a key provision of the Affordable Care Act filed their response to the Government’s petition for rehearing en banc. The response takes full-- albeit not fair -- advantage of being the last word before the D.C. Circuit considers the petition.

    To begin with, the Halbig plaintiffs never cite Rule 35 of the Federal Rules of Appellate Procedure, even though it is the controlling authority regarding en banc review. The Rule expressly recognizes that rehearing en banc is appropriate in order to avoid intercircuit conflicts, and that provision is directly applicable hereCurrently, there is a conflict between Halbig in the D.C. Circuit, denying tax subsidies to help low income families afford insurance in states with a Federal Exchange, and King in the Fourth Circuitallowing such subsidies. A grant of en banc review by the D.C. Circuit will automatically vacate the Halbig decision ending the intercircuit conflict and presenting the full court the opportunity to avoid one altogether if the D.C. Circuit ultimately agrees with the Fourth. If there is no conflict, the Supreme Court will have no compelling reason to take this rather narrow, yet overblown issue of statutory interpretation.

    The absence of a Government opportunity to reply may also have loosened the reins on the discussion of case law in the Halbig response. Arguing against rehearing en banc, the Halbig plaintiffs cite instances where the D.C. Circuit has denied such review in important cases. But the response fails to point out that most of those cases predate the amendment of Rule 35 in 1998 expressly identifying avoidance of a circuit split as a basis for en banc review and emphasizing in the Advisory Committee Notes the particular importance of such review in cases like this one, where rehearing could resolve the conflict. D.C. decisions that came before that change in Rule 35 shed no light on whether en banc review is appropriate on this ground.

    Of the post-1998 D.C. cases cited by the Halbig plaintiffs, one involved a situation where the Supreme Court had already granted cert on the issue. The other cases cited presented no conflict. Thus, none of these cases resolves whether en banc review is appropriate here, where the D.C. Circuit’s panel opinion is the source of the intercircuit split.