• November 16, 2015

    by Jim Thompson

    In response to the tragic terrorist attacks in Paris, Paul Krugman at The New York Times explains why our strategy for responding to such acts of terror must be rooted in reason, not fear.

    The Editorial Board of The New York Times urges the Senate to confirm Obama’s court nominees before more individuals suffer from our understaffed justice system.

    Elsewhere in The Washington Post, Terrell Jermaine Starr says Missouri protesters’ efforts to exclude media from their “safe space” provides a lesson about press freedom and journalistic ethics.

     At The American Prospect, Rachel M. Cohen opines that the Rental Assistance Demonstration program may do more harm than good for public housing in the United States.

  • November 13, 2015
    Guest Post

    by Justin Pidot, Associate Professor of Law, University of Denver Sturm College of Law

    News broke last week that the New York Attorney General is investigating Exxon Mobil for providing false information about climate change to investors and the public. Similar investigations of other energy companies may be on the horizon.

    Specifics about the investigation are in short supply. This could be, as an article in Forbes suggests, the opening salvo in a billion dollar litigation campaign like that brought against big tobacco for concealing information about the health risks of smoking. Or it could be a more limited effort to ensure that energy companies fully comply with their obligations to disclose information under securities laws.

    My guess is the latter is true. Just four days ago, the New York AG’s office announced that it had entered a settlement with Peabody Coal under which the company would revise shareholder documents and more fully disclose climate risk in the future. In 2008 and 2009, the New York AG entered similar settlements with three other energy companies. These settlements do not involve million or billion dollar payments, but rather, simply require better information about the risks that climate change poses to the financial health of the companies involved. Frankly, they look a lot like run-of-the-mill settlements of potential securities violations. No one would pay any attention except they involve the words “climate change.”

    Not only does this investigation seem relatively unremarkable, it also seeks to vindicate principles upon which we should generally be able to agree. Legal regimes that require information disclosure need enforcement to stay vigorous.

  • November 13, 2015
    Guest Post

    by Reuben A. Guttman and Caroline M. Poplin, M.D., J.D. Guttman practices law with Guttman, Buschner & Brooks PLLC and was counsel for whistleblowers in cases involving Abbott, Pfizer, GSK, CHS and Pharmerica, among others. Poplin, M.D., J.D., is Medical Director and Of Counsel for Guttman, Buschner & Brooks PLLC and also was involved in cases against Abbott, Pfizer, GSK, CHS and Pharmerica.

    In recent months, Planned Parenthood, a health care provider for low-income women, has been under the focused scrutiny of a Congressional oversight committee. Among its many healthcare services, many of which involve preventive care, Planned Parenthood also provides abortions. The organization has been accused in political circles of selling fetal tissue. Though this may be a crime, there have been no criminal indictments let alone convictions and the evidence seems flimsy, if not fabricated, with congressional oversight itself pretextual.

    Of course, if Capitol Hill politicians are sincerely interested in looking into how federal dollars are being spent for preventive medicine, care for the nation’s children, and care for the infirmed and the elderly, there are real targets to focus on; targets where billions of dollars have been spent for medical care which, in some cases, has neglected the fundamental tenet that has passed from practitioner to practitioner through the ages: “first, do no harm.”

    For starters, look no farther than the pharmaceutical industry where some of the world's largest drug companies – which feed on funds from Medicare, Medicaid, and the Veterans Administration – have pled guilty to conduct that has admittedly placed lives at risk. Abbott, GlaxoSmithKline, Pfizer, and Johnson & Johnson are just a few of the names that make the list.

  • November 13, 2015

     by Jim Thompson

    In The Huffington Post, Geoffrey R. Stone discusses the issue of free speech on college campuses and argues that “universities have a deep obligation to protect and preserve the freedom of expression.”

    Following Justice Sonia Sotomayor’s sole dissent in Mullenix v. Luna, Matt Ford at The Atlantic reflects on her previous efforts to defend the Fourth Amendment’s constraints on law enforcement.

    In The New York Times, Jesse McKinley reports that Gov. Andrew Cuomo (D-NY) announced Tuesday that he will “unilaterally establish a $15 minimum wage for all state workers, making New York the first state to set such a high wage for its public employees.”

    At Hamilton and Griffin on Rights, Angela Morrison explains why Tyson Foods, Inc. v. Bouaphakeo could have significant implications for low-wage workers.

    Linda Greenhouse, a member of the ACS Board of Directors, writes in The New York Times that the Roberts court will have the opportunity to “demonstrate that it cares more about principle than politics” when it reviews the Fifth Circuit’s decision to uphold the injunction against DACA and DAPA.

  • November 13, 2015
    Guest Post

    by Samuel A. Marcosson, Professor of Law, University of Louisville Louis D. Brandeis School of Law

    On November 6, the Supreme Court granted cert in seven cases (which it promptly consolidated for briefing and argument as Zubik v. Burwell) to resolve the issue it left open when it ruled in Burwell v. Hobby Lobby that private, for-profit companies are entitled to a religious exemption from the Affordable Care Act’s mandate to provide contraceptive coverage to their employees. At issue is whether the accommodation the government provides to nonprofit employers satisfies the requirements of the Religious Freedom Restoration Act (RFRA). If it doesn’t, employees of these nonprofits will, like their counterparts at Hobby Lobby, lose their contraceptive coverage. A decision exempting the nonprofits from the contraceptive mandate would make Zubik one of the landmarks of the Term, and a disaster in the Court’s religion jurisprudence.

    Zubik tests the limits of the dangerous path the Court began to walk in Hobby Lobby. The majority opinion there departed from the Court’s long-standing approach in religious accommodation cases of carefully considering the impact of a proposed accommodation on third parties who would be burdened by it. In Hobby Lobby, of course, those third parties were the employees who lost coverage for contraceptive care that, under the ACA, is an essential element of comprehensive health insurance and which, for many, avoids enormous expense and “helps safeguard the health of women for whom pregnancy may be hazardous, even life threatening.” The Court gave almost no weight to the interests and needs of those employees who would be deprived of the essential coverage the ACA had mandated.

    The Court faces an even starker choice in Zubik because the claim on the other side of the scale, the burden claimed by the employers to their religious exercise, is more attenuated than it was in Hobby Lobby. A nonprofit that objects to providing contraceptive coverage receives an accommodation simply by certifying to HHS that it has a religious objection. As Justice Alito admitted in Hobby Lobby, a nonprofit which files the certification is “effectively exempted . . . from the contraceptive mandate.” In other words, to be accommodated under the ACA regulations, all the objecting nonprofits must do is tell HHS exactly what they are telling the Supreme Court: that they have a religious objection to providing contraceptive coverage.