Guest Post

  • June 24, 2014
    Guest Post

    by Justin Pidot, Assistant Professor, University of Denver Sturm College of Law; Member, Board of Directors, ACS Colorado Lawyer Chapter; Faculty Advisor, University of Denver Sturm College of Law ACS Student Chapter

    The Supreme Court handed down its decision in Utility Air Regulatory Group v. EPA yesterday. While vacating aspects of the EPA’s decision, the Court chose to leave EPA with authority to address the vast majority of the polluters the agency sought to regulate. In so doing, the opinion also offers a twist on the Court’s continuing debate about statutory construction and administrative law. 

    Those needing a  refresher on this case, please refer to my two previous ACSblog posts, here and here. For the purposes of understanding the opinion, suffice it to say that the case involves EPA’s “tailoring rule,” which applies one of the more arcane provisions of the Clean Air Act – the Prevention of Significant Deterioration provisions (or “PSD”) – to greenhouse gases (“GHGs”). In so doing, EPA regulated two categories of sources: those subject to PSD regardless of their GHG emissions (referred to as “anyway sources” because they are already subject to PSD anyway). And those only subject to PSD because of the amount of GHGs they emit.

    The High Court’s View of the Tailoring Rule

    Justice Scalia authored the opinion for the Court, which was largely favorable to EPA despite his staunch opposition to Clean Air Act regulation of greenhouse gases in the 2007 Massachusetts v. EPA case. Writing for a seven-member majority, Scalia upheld the tailoring rule’s requirement that “anyway sources” control GHG emissions.  Writing for the conservative bloc of five justices, Scalia also ruled that EPA unreasonably applied PSD to sources that would not be subject to PSD but for their GHG emissions. 

    Practically speaking, this is a significant win for EPA. As Scalia acknowledges, “anyway sources” account for 83 percent of GHG emissions from stationary sources. EPA strenuously defended its authority to regulate “anyway sources”—both in its briefing and at argument—and its emphasis clearly paid off. The sources the Court’s conservatives exempted from the reach of PSD account for only an additional 3 percent of emissions.

    The decision also suggests that seven of the justices now view the issues decided in the Massachusetts v. EPA case as settled. Only Justices Thomas and Alito expressed the view that the case should be overruled. 

  • June 24, 2014
    Guest Post

    by Arthur Bryant,​ Chairman, Public Justice 

    *This piece is cross-posted on the Public Justice blog.

    Harvard Law School Professor Laurence Tribe, one of America’s preeminent constitutional scholars, says the U.S Supreme Court’s majority is not denying access to justice to consumers, workers, and civil rights plaintiffs just because it is “favorable to big business” and “doubts(s) that civil rights litigation does all that much good.” Tribe says the real reason is more fundamental and disturbing: The Roberts Court is an “anti-court Court.”

    We cannot leave this be. Tribe offers one solution; I have two more.

    Tribe’s new book, Uncertain Justice: The Roberts Court and the Constitution, co-authored with Joshua Matz, reviews and analyzes the Supreme Court’s rulings in several key areas – including equality, health care, campaign finance, freedom of speech, and privacy – since Chief Justice Roberts was appointed in 2005. In 2010, Tribe served as the first “senior counselor on access to justice” in the Obama administration. Perhaps for that reason, the final chapter of the book, “Making Rights Real: Access to Justice,” is the most revealing and instructive.

    Tribe documents the Roberts Court’s “dramatic rewriting” of procedural rules to “unmistakably” favor big business, including an “assault on class actions” and rulings that make it “virtually impossible to escape arbitration agreements.” He writes:

  • June 18, 2014
    Guest Post

    by Kimberly Stietz, Law Clerk, Magistrate Judge Franklin L. Noel, U.S. District Court for the District of Minnesota; Program Committee Co-Chair, ACS Minneapolis-St. Paul Lawyer Chapter

    On June 6, the the U.S. District Court for the District of Minnesota honored Freedom Riders from the state and marked the beginning of the traveling “Freedom Riders” exhibition that will be on display for two weeks in the Minneapolis U.S. Courthouse lobby. The exhibition examines six months in 1961 when more than 400 courageous Americans—old and young, black and white, men and women, Northern and Southern—risked their lives to challenge segregated facilities in the South. “In 1961, seven ordinary Minnesotans—including Robert Baum, Clare O’Connor, Dave Morton and Peter Ackerberg—took an extraordinary bus ride to Jackson, Mississippi, and in the process changed the course of American History forever,” said Magistrate Judge Franklin L. Noel.

    The Freedom Riders had a simple but daring plan: board buses in small, interracial groups and travel through the South to test and challenge segregated facilities. Representative Keith Ellison (D-Minn.) served as the keynote speaker for the event and noted that the actions taken by the Freedom Riders were as innovative in the 1960s as social media campaigns that inspire revolutions like the Arab Spring are today. “We must be creative and break free from traditional methods of activism to realize contemporary civil rights goals related to immigration, voting rights, minimum wage and more,” Ellison said.

    The Freedom Riders endured savage beatings, humiliation, and imprisonment, but ultimately, their brave actions changed American forever. The exhibition combines powerful images and news coverage of the Freedom Rides and examines the movement from diverse perspectives. The exhibition is a companion to the May 2011 PBS Broadcast of the AMERICAN EXPERIENCE film Freedom Riders.

    “The District Court is pleased to host this powerful and inspirational exhibition,” said Chief Judge Michael J. Davis. “People of all walks of life will be able to learn about the bravery of the Freedom Riders to secure the constitutional rights of all citizens. These are people who faced grave danger, who changed the face of America, and we are more than happy and extremely proud to highlight their legacy.”

  • June 16, 2014
    Guest Post

    by Gabe Rottman, Legislative Counsel, ACLU Washington Legislative Office. Mr. Rottman will participate in “The Web as the New Battleground over Free Expression,” a panel discussion at the 2014 ACS National Convention.

    The internet, perhaps the greatest information revolution in living memory, presents profound threats to personal privacy. A few weeks ago, the highest court in the European Union issued an extraordinary ruling on the subject. In a mistaken attempt to reach the laudable goal of giving individuals more power over their personal information online, the court gave individuals the power to punch holes in the historical record.  Such a power would seriously threaten free speech.

    The decision was a landmark in an ongoing effort, on both sides of the pond, to create what many call a “right to be forgotten” in privacy law. The right to be forgotten means individuals have a legal right to control personal information held by third parties and posted online. 

    Most agree that there can be some form of that right for material that you post yourself (for instance, you should have the right to demand that Facebook completely delete your page if you want to leave the service). But other types of information shouldn’t be so easy to erase —especially something like a newspaper article reporting truthful information in the public interest. Even if that article is deeply embarrassing to an individual covered or quoted, it shouldn’t be taken down.

    But that’s exactly what happened in the European case. In the late 1990s, a Spanish lawyer had his home put up for auction by the government to pay a debt. When someone Googled his name, two links would come up to notices in La Vanguardia, a Spanish newspaper, which had been placed by a Spanish government agency to promote the auction. In other words, this lawyers’ tax debt was a matter of both public record and public interest.

  • June 13, 2014
    Guest Post

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

    Reading the opinion of Judge Treu in Vergara v. California, one gets the sense that the state did not fight very hard to defend its teacher tenure protections from constitutional challenge. From the judge’s recitation of the evidence, it appears that the state “defendant” conceded or provided evidence that there were thousands of grossly ineffective teachers in the California system, that school administrators didn’t bother to try to fire them because they thought it was too hard, that poor teachers adversely affect students’ education and that poor teachers are disproportionately found in schools with large populations of minority and low income students.  

    Based on this evidence, much of it generously submitted by the state defendant, Judge Treu found that the laws that provide teachers with tenure, due process prior to termination and seniority protection from layoff deprive minority and low income students of their fundamental interest in an education of equal quality. Further, and not surprisingly given the recitation of the evidence, the judge found that the defendants did not show a compelling interest to meet the high burden required by the application of strict scrutiny to these laws.

    The California statutes at issue included the following: 1) the statute that provides for teacher tenure after a two year probationary period; 2) the statutes that provide due process for tenured teachers that school districts intend to terminate; and 3) the statute that provides for layoffs on the basis of seniority, with limited exceptions. The judge held that each of these statutes denied students a quality education by allowing poor teachers to remain in the classroom. While the opinion mentions that two unions representing teachers were permitted to intervene, there is little mention of any evidence supportive of the statutes at issue, which might have provided the justification required to establish their constitutionality.