Guest Post

  • November 19, 2015
    Guest Post

    by Chris Edelson, assistant professor of government, American University’s School of Public Affairs. He is author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror (University of Wisconsin Press, 2013). His second book, Power Without Constraint: The Post 9/11 Presidency and National Security will be published in spring 2016 by the University of Wisconsin Press.

    The terrorist attacks in Paris leave us all horrified – as do the attacks in Lebanon last week that have received less public attention worldwide. Terrorism is meant to make people afraid, and it does its job. Part of what we must do in responding to these attacks is to manage our fear and prevent it from ruling us or pushing us (or our elected officials) to make bad decisions.

    No one (except the terrorists themselves) wants to see another attack against civilians. Some elected officials and candidates for office, however, have made counterproductive statements following the Paris attacks. Sen. Ted Cruz (R-Texas) declares the U.S. should only accept Syrian refugees who are Christian, arguing that “[t]here is no meaningful risk of Christians committing acts of terror.” Jeb Bush similarly suggested that the U.S. should focus “on the Christians who have no place in Syria any more.” Bush also described the Paris attacks as “an organized attempt to destroy Western civilization.” Sen. Marco Rubio (R-Fla.) similarly described what is happening as “a clash of civilizations.” Republican presidential candidates criticized Hillary Clinton and other Democratic presidential candidates for declining to use the words “radical Islam” when discussing the fight against ISIS. Donald Trump suggested (not for the first time) that it may be necessary to consider closing some mosques in the United States (though he said he is not personally considering this – yet).

    These candidates surely want to find a way to take meaningful action to keep Americans and others safe from ISIS. (Though Sen. Cruz leveled the very troubling and baseless charge that President Obama “does not wish to defend this country.”) But many are making a serious mistake by speaking about ISIS and terrorism in ways that draw religious lines between Christians and Muslims. This is not a matter of “political correctness,” it is a matter of logic, fact and reason. Of course ISIS is Islamic. But ISIS practices a form of Islam that the vast majority of Muslims reject. In fact, ISIS has terrorized and killed many Muslims it sees as apostates. It may well serve ISIS’s purposes to describe its terrorist acts as part of a religious war: After the Paris attacks, ISIS referred to France as “the carrier of the banner of the Cross in Europe” and a leader of “the convoy of the Crusader campaign [i.e. the military campaign against ISIS in Iraq and Syria].”

  • November 19, 2015
    Guest Post

    by Ann C. Hodges, Professor of Law, Richmond School of Law

    The Supreme Court’s grant of certiorari in Friedrichs v. California Teachers Association suggests that it is considering overturning almost 40 years of precedent allowing unions to charge for the representation that they are required to provide to workers. Little has changed since the Court, in Abood v. Detroit Board of Education, approved this important part of the labor relations systems adopted by many states to deal with their workers. In fact, Court decisions since Abood have given employers even more freedom in dealing with their workforces and in restricting the workers First Amendment rights in order to further the employer’s interest in providing efficient and effective government services. 

    In a new ACS Issue Brief I authored addressing Friedrichs, I point out the strong government interests that warrant the very limited infringement on First Amendment rights imposed by requiring employees to pay for the services they receive from unions.  The case is not about charging for union political activity. That is already prohibited. Nor does the requirement to pay fair share fees restrict the ability of employees to advocate for their own views with the government, including opposing the union’s negotiated collective bargaining agreement in open forums. Further the employees can remove the union as representative if a majority of their coworkers oppose union representation. The Court has approved far more onerous restrictions on employee speech rights in the interest of government efficiency. 

    Unions forced to represent workers without compensation will struggle to fulfill their function in the labor relations systems adopted by employers to manage their workforces. The goal of labor peace may be threatened. The resources available to unions to exercise their First Amendment rights and those of their members will be diminished by the failure of employees to pay for the services provided. Reducing the voice of workers in the marketplace of ideas creates even more space for the dominance of the corporate voice. Our democracy flourishes when all participate. Dominance by one segment of society impoverishes us all.

    For more information about the risks posed by invalidating the many existing state statutes allowing unions to charge fair share fees and the reasons that the Court got is right in 1977, read the ACS Issue Brief.

  • November 18, 2015
    Guest Post

    by Doron M. Kalir, Clinical Professor of Law, Cleveland-Marshall College of Law

    The fact that the Roberts Court is business-friendly is, by now, well documented. It is also no secret that the Court is generally hostile to the once-venerable institution of class actions. And most recently, as The New York Times ably demonstrated, the Court has moved to elevate arbitration as the preferred mode of dispute resolution. The accumulated effect of these three trends has been devastating: Millions of Americans – customers, employees, patients, and investors, among others – are routinely denied their fundamental right to have a day in court. Some call that the privatization of the justice system.

    DIRECTV, Inc. v. Imburgia, a case emerging out of an intermediate state court in California, is another case reflecting these trends. At first sight, it may not seem a likely candidate to become one of the Term’s blockbusters. Allegedly a typical state contract-interpretation case, it looks benign, almost boring to read. Yet it is anything but. It represents nothing short of a last-ditch effort by state courts to shield consumers from these emerging trends. Will it be successful or – as some predict – destined to fail? Only days will tell.

    The facts of the case are somewhat complicated. In 2007, Amy Imburgia contracted with DIRECTV to receive programming services. Predictably, her Customer Agreement contained an arbitration-only, no-class action clause. Unpredictably, it also contained language abolishing that clause should “the law of your state . . . find this agreement to dispense with class action procedures unenforceable.” And that is precisely what happened – the California Supreme Court held such provisions to be “unconscionable” and therefore unenforceable.

    Four years later, in AT&T Mobility v. Concepcion, the U.S. Supreme Court reversed the California rule. Class-action waivers in arbitration agreements, the 5-to-4 decision held, are enforceable, reasoning that the Federal Arbitration Act (FAA) preempts state law. Despite Concepcion, however, the California Court of Appeals ruled in this matter that the individual-only arbitration clause is still unenforceable. Why? The court reasoned that the term “the law of your state,” as included in this particular consumer contract, should not be interpreted to include federal interpretation of that law (the “Supremacy Clause” version), but rather only state law as interpreted by state courts.

  • November 18, 2015
    Guest Post

    by Craig L. Jackson, Professor of Law, Texas Southern University Thurgood Marshall School of Law

    Can Congress create standing for violation of a statutory right by identifying as injury the violation of that statutory right? What does that mean? What seems to be a relatively simple question from reading Supreme Court cases that appear to stand for the position that Congress can create standing apparently is more complex than the cases let on. In Spokeo v. Robins, which is before the Supreme Court this term, the Court is being asked to resolve the question of whether the credit reporting firm Spokeo’s misreporting of Robins’ personal information alone creates standing on Robins’ part to sue Spokeo under the  Fair Credit Reporting Act.

    The Act provides a cause of action for persons who are the subject of credit reporting where the reporting firm does not follow the Act’s procedural requirements. Does that alone create the kind of standing required by Article III’s case and controversies provision? This was alluded to in Warth v. Seldin, quoting Linda R. S. v. Richard D. (“[A]ctual or threatened injury required by Art. III may exist solely by virtue of ‘statutes creating legal rights, the invasion of which creates standing…’”), restated in Lujan v. Defenders of Wildlife (Nothing in this contradicts the principle that "[t]he . . . injury required by Art. III may exist solely by virtue of ‘statutes creating legal rights, the invasion of which creates standing.'"), and reiterated in Justice Kennedy’s Lujan concurrence (“In my view, Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before, and I do not read the Court's opinion to suggest a contrary view.”). What makes the question even more interesting is the fact that Robins’ actual injury may have been speculative, at best, as no specific harm to his credit rating or employment opportunities were alleged in his complaint against Spokeo.

    The language from Warth, Lujan, and Kennedy’s concurrence in Lujan may have given the impression that a congressional act can create injury (through the bestowal of statutory rights) where none had existed before. By that understanding, Congress can, for whatever purposes, green light suits against offending actors by virtue of a violation of an act by declaring that violation harm to the potential plaintiff. This was certainly the understanding of the Ninth Circuit, and it was apparently the understanding held by Justice Sotomayor as evidenced by this exchange during oral arguments earlier this month:

  • November 17, 2015
    Guest Post

    by Michael Selmi, the Samuel Tyler Research Professor of Law, George Washington University Law School

    *This post is part of ACSblog’s Symposium on Labor and Economic Inequality.

    It is the best of times and worst of times for workers. On the upside, the plight of workers is receiving national attention, particularly low-wage workers, with a proliferation of initiatives to raise the minimum wage and to fight wage theft. At the same time, union membership continues to decline, now at below seven percent of the private workforce, with little indication of any likely rebound. Efforts to modify the legal structure to make union organizing more practical have been stymied in Congress, and again there is no reason to believe the law will change any time soon. 

    These parallel developments – an increased focus on employee well-being and the diminished influence of unions – should be in tension with one another given that for the last hundred years, unions have played a central (some would say the central) role in improving the employment conditions of workers. But it turns out that unions, as well as the Obama administration and other entities dedicated to worker welfare, have adopted a variety of creative means to improve working conditions.

    Take the most salient change over the last five years: minimum wage laws. Despite broad public support for increasing the minimum wage (including by a majority of Republicans in a recent Pew Research center poll), the federal minimum wage remains stalled at $7.25 an hour, significantly below its historical level once inflation is taken into account. President Obama initiated a campaign to move the federal minimum wage to $10.10 an hour, and later mandated such a wage for federal contractors, a move that required no Congressional action. With federal legislation stalled, more than 20 states have taken action to raise their minimum wage, including by popular vote in the deep red states of Arkansas and Nebraska.