ACSBlog

  • January 27, 2015

    by Nanya Springer

    The Constitutional Accountability Center recently released the fifth installment of its year-long series, “Roberts at 10,” in which Brianne Gorod details the ways Chief Justice John Roberts’ voting record has undermined the public’s access to the courts.  She points out that Roberts has consistently taken positions limiting the scope of the standing doctrine, heightening pleading requirements, restricting exceptions to state sovereign immunity and expanding arbitration.  In fact, as Gorod notes, the Chief Justice has sided with the majority in every significant decision bolstering mandatory arbitration agreements, while every case expanding access to the courts has received his emphatic dissent.

    This restricted access to the courts, and in particular the expansion of arbitration as a mandatory alternative dispute remedy, has had far-reaching negative consequences for consumers and workers.  Governed by the Federal Arbitration Act, written arbitration agreements have become a ubiquitous, lurking menace, surfacing to harm consumers again and again and again

  • January 27, 2015

    by Caroline Cox

    In The New York Times, Nicholas Confessore writes that the Koch brothers’ pledge to spend $889 million in the 2016 campaign is on par with both parties’ spending.

    David Savage reports in the Los Angeles Times on the Supreme Court’s decision that casts doubts on health benefits for union retirees.

    At Bloomberg News, Greg Stohr writes that Oklahoma’s step to find an alternative drug for executions leaves the Supreme Court case about lethal injection in question.

    Lauren-Brooke Eisen considers the future of grand jury reform at the blog for the Brennan Center for Justice.

    At Slate, Kathryn Kolbert explains how Texas used bad science in order to restrict abortion access.

    Stephanie Gallman of CNN reports that the Georgia Board of Pardons and Paroles denied clemency in the case of Warren Hill, a man with a lifelong intellectual disability. ACSblog featured a guest blog on the case last week. 

  • January 26, 2015
    Guest Post

    by Adam Winkler, Professor of Law at the UCLA School of Law.

    *This post is part of the ACSblog King v. Burwell symposium.

    During oral argument in the Fair Housing Act case this past week, Justice Antonin Scalia explained how another high-profile case coming later this term—King v. Burwell—ought to be decided. The King case involves the latest challenge to the Affordable Care Act. The challengers argue that the ACA does not authorize tax credits for people purchasing insurance on exchanges set up by the federal government rather than the states. They rely on a provision in the law that says such credits are available for insurance bought “through an Exchange established by the State.” Read in isolation, that provision would seem to suggest that the credits are available only on the 14 exchanges run by the states, not in the 36 states with exchanges run by the federal government.

    In the hearing in the Fair Housing Act case, however, Justice Scalia—whose vote is almost certainly necessary for the ACA challengers to win their case—elucidated why the ACA challengers should lose. The Court’s obligation in interpreting a statute, Scalia said, is to “look at the entire law,” not just “each little piece” in isolation. “We have to make sense of the law as a whole,” Scalia insisted. Whether or not something is allowed by a statute can only be determined “when all parts are read together.”

    Anyone who reads the “whole law” in the ACA case would easily conclude that credits are available on the federally run exchanges. Start with the basic objectives of the law. According to the authors of the law, “The Affordable Care Act was designed to make health-care coverage affordable for all Americans, regardless of the state they live in. Providing financial help to low- and moderate-income Americans was the measure’s key method of making insurance premiums affordable.” That basic goal would be completely undermined if federally run exchanges couldn't offer the tax credits.

  • January 26, 2015

    by Caroline Cox

    In The New York Times, Adam Liptak considers how the “courtesy fifth” vote to stay executions reveals a lethal gap in the justice system.

    Nina Totenberg of NPR reports that the Supreme Court has agreed to rule on the constitutionality of Oklahoma’s method of execution by lethal injection.

    At The New Republic, Brian Beutler argues that there is clear evidence that Republicans view their own case against the Affordable Care Act as spurious.

    In the Los Angeles Times, Douglas NaJaime asserts that the only way for the Supreme Court to justify excluding same-sex couples from civil marriage is “to imagine a model of marriage that does not exist.”

    Leslie C. Griffin looks at the recent Supreme Court decision on a federal whistleblower at Hamilton & Griffin on Rights.

  • January 23, 2015
    Guest Post

    by Rena Steinzor, Professor of Law, University of Maryland Carey School of Law, and President of the Center for Progressive Reform. Steinzor is also author of the new book, Why Not Jail? Industrial Catastrophes, Corporate Malfeasance, and Government Inaction from Cambridge University Press.

    Candice Anderson was 21 when she lost control of her Chevrolet Cobalt in a moving stall caused by a defective ignition switch, drove into a tree, and killed her fiancé. Two years later, in 2006, Texas police charged her with reckless homicide. Her parents liquidated their retirement account to pay for her defense. She pled guilty, spent five years on probation, paid $10,000 in fines, and had to live with the shame of the crime on top of the grief of the accident. In 2014, General Motors (GM) sent Anderson a letter explaining that her accident was the company’s fault. A judge in Texas cleared her criminal record a few weeks ago.

    The Department of Justice has opened a criminal investigation into GM’s conduct and the next attorney general will decide whether and how to charge the company. President Obama’s nominee, Loretta Lynch, will need to make a break with the misguided policies of her predecessor, Eric Holder, when the GM case hits her desk.

    Under Holder, the Justice Department has handled white collar criminal cases involving the largest companies in the world with “deferred prosecution agreements,” a form of settlement that does not require the defendant to acknowledge any criminal culpability, no matter how heinous the crime. Instead, these special deals require the defendant to pay large sums of money in civil penalties. Given their ample financial resources, such sums end up being an affordable cost of doing business. 

    Deferred prosecution agreements undermine the straightforward application of white collar criminal laws that punish everything from racketeering and fraud to deadly violations of health, safety, and environmental laws. The Obama Justice Department has entered roughly twice the number of deferred prosecution agreements as the George W. Bush administration and has been rightly criticized for embracing the corrupt notion that some firms may be “too big to jail.”