• December 6, 2016
    Guest Post

    *This post originally appeared in The Commentator, The Official Student Newspaper of NYU School of Law

    by James Mayer

    As opposition to the Dakota Access Pipeline grows around the country, the cultural heritage issues that are central to the Standing Rock Sioux’s fight are disappearing from the national conversation, replaced by a whitewashed narrative of environmental activism.

    A Texas-based company, Energy Transfer Partners, is building the nearly 1,170-mile pipeline to carry oil from the oil fields of North Dakota to Illinois. The pipeline passes less than a mile from the Standing Rock Sioux reservation, through the Sioux’s traditional lands and, importantly, across several culturally significant burial grounds and sacred places. Dakota Access also crosses the Missouri River, the Standing Rock Sioux’s major source of fresh water, just upstream from the reservation. Energy Transfer Partners has already received a permit from the Army Corps of Engineers, yet the Standing Rock Sioux say they were not consulted during the permitting process and claim the pipeline will destroy significant cultural heritage sites. In September, a federal judge denied an injunction to stop construction until the legal issues were resolved.

    The Standing Rock Sioux oppose Dakota Access because it destroys their cultural heritage by damaging sacred sites, destroying traditional burial grounds and degrading ancestral lands and this is the foundation of their legal challenge to Dakota Access. Central to the community’s legal case is that they were not consulted in the development or permitting of the pipeline, in violation of the National Historic Preservation Act. The Sioux allege that Energy Transfer Partners did not consult with them in surveying the pipeline route and did not approach them for input until permits were nearly approved. Until Dakota Access respects and accommodates the community’s cultural heritage, the Standing Rock Sioux will continue to fight.

    This is not to say that environmental concerns are not also at the heart of the community’s struggle against Dakota Access, because environmental issues are central to the protests and are the basis of two supplemental legal claims. However, the mainstream focus on environmentalism and the inevitable comparison to Keystone XL, are silencing the issues of cultural heritage and cultural sustainability that drive the opposition to the project. For many Indigenous communities, environmentalism and cultural heritage are indistinguishable. Separating environmental concerns from cultural contexts whitewashes the issue, marginalizes Sioux agency as a key element of this protest and devalues the community’s cultural heritage.

  • December 6, 2016
    Guest Post

    by Norman Fletcher, Former Georgia Supreme Court Justice

    In 1967, Georgia enacted the Habeas Corpus Act in reaction to serious friction caused by federal habeas corpus review of Georgia criminal judgments. Georgia had grave systemic problems in its criminal justice system stemming from our most profound historical injustices. Georgia’s 1967 statute is broadly patterned after federal habeas corpus law, with one extremely important exception today: Georgia has never provided a right to counsel in habeas corpus. Over the nearly 50 years of this statute, the Georgia Supreme Court has decided scores of cases raising this very problem. The tragic case of William Sallie demonstrates it is not a theoretical one. If Georgia conducted its death penalty the way that virtually all other capital states do, we could expect that the evidence of a severely biased and untruthful juror tainting his 2001 trial would have been heard, and not procedurally defaulted, and his constitutional violations addressed. Instead, he is scheduled to die on Dec. 6, 2016.

    Read Justice Fletcher's full opinion editorial via The New York Times.  

  • December 5, 2016
    Guest Post

    by Gary C. Norman, Esq. L.L.M.

    Every July, Americans celebrate the anniversary of the Americans with Disabilities Act and its values: applauding, on one hand, the progress that has been obtained in achieving enhanced access to a range of public goods and services, including, healthcare information and decision making; and on the other, rallying for enhanced inclusion in the life of the community. My guide dog Pilot and I stood near the podium at a 2016 hearing, before the Senate Judicial Proceedings Committee of the Maryland General Assembly, in support of a bill that embodies one of the hallmarks of disability rights: autonomy. I testified supporting a bill, which will likely be re-introduced in 2017, the Richard E. Israel and Roger “Pip” Moyer End-of-Life Option Act. When a terminally ill person, regardless of physical abilities, determines that his/her remaining days or weeks will contain only suffering, aid in dying provides another option in line with these values. And it is in favor of this, with notable safeguards, I testified, hoping for a thoughtful conversation.

    Americans with disabilities have been rendered as passive, even victimized, consumers of the healthcare system. People with disabilities are shown as some of the unhealthiest among the American populous because of unequal access to social determinants of health, such as unemployment or under-employment and because of a lack of equal decision making. I support consequently aid-in-dying bills because people, including and even particularly those with disabilities, must be empowered to be in the driver’s seat for all of their intimate, important family decisions, free of external judgment.

    Let us have, therefore, this thoughtful conversation about death with dignity, which I am convinced meets rights-based and bioethical-based goals of autonomy.

    Discussions on the merits of aid-in-dying bills should make clear the end-users of the medication are people who are truly on the precipice of death as a result of a terminal disease. Several other modalities for ameliorating, easing or even hastening the active dying process, such as terminal sedation, are already available. Indeed, rendering this kind of decision arguably comprises a constitutional right. Numerous legislatures are now considering an additional option: allowing a physician to prescribe upon request to individuals within 6 months of death a lethal dose of medication that adults can voluntarily consume, when and whether they choose, to die peacefully in their sleep. This is the option of medical aid in dying, and it is already authorized in five states: California, Montana, Oregon, Vermont and Washington.

  • December 1, 2016
    Guest Post

    by Ruben J. Garcia, Professor of Law, University of Nevada Las Vegas William S. Boyd School of Law

    Today, Dec. 1, was the day that the Obama Administration’s revision to the overtime rules would have gone into effect, were it not for a nationwide injunction issued by a federal court last week. The revised rule aimed to increase the amount under which employees would be automatically eligible for overtime pay for hours worked over 40 in a week. The rule required all employees earning below $47,476 to be paid time and a half for hours worked over 40 in a work week. Now, those employees will only be eligible for overtime if they also meet the tests for exempt duties as promulgated by the U.S. Department of Labor (DOL), a subject of frequent litigation because of the inherently subjective elements the exempt duties tests.

    On Nov. 22, a federal court in the Eastern District of Texas enjoined the DOL’s revision of the Rule which determine when an employee is “exempt” from the overtime pay requirements. Business groups complained primarily about the Rule’s index which would automatically keep the salary threshold in line with increases in cost of living—the absence of which has kept the minimum salary at a stagnant level for decades. States sued to block the rule principally on a federalism challenge, which was turned away by the federal court in short order based on Supreme Court precedents. 

    But the Court accepted the challenge of the states and the private plaintiffs under the Administrative Procedure Act, finding that the DOL went beyond its authority in setting the salary minimum at $47,476. On this theory, the DOL has a minimal role in filling out congressional intent about the extent of the overtime exemption for “bona fide executive, administrative, and professional” exemption from overtime requirements under the Fair Labor Standards Act of 1938. For decades, the DOL has set a presumptive salary threshold, beneath which workers are eligible for overtime regardless of their duties. Over that threshold, workers might be exempt if they perform sufficient duties. The revised rule did not affect the duties standards most recently revised in 2004 during the Bush administration. The 2016 revision, however, raised the salary threshold from $23,660 to $47,476. This doubling of the threshold beneath which employees are automatically entitled to overtime pay brought loud protests from the business community about how the increase would decrease the flexibility of employers and workers. Nonetheless, many employers increased employee salaries to ensure that workers would still be over the salary limit for the overtime exemption. Although the court expressly stated it was not challenging the authority of the DOL to set any threshold, the court did not say what salary level would have been reasonable.

  • November 30, 2016

    by Caroline Fredrickson

    President-elect Trump posted one outlandish tweet after another all the way to the White House. But his latest tweet on flag-burning topped most of the others.

    On Nov. 29, Trump tweeted:

    Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!

    The tone and text of the post read like something that a ruler from a bygone era without the checks and balances of the U.S. Constitution would say.  Most alarming is the sweeping and ominous part about “consequences.” Fortunately, a chorus of critics checked Trump.

    The very next day, both The New York Times and The Washington Post editorialized against Trump’s tweet.  The headline in the Post’s View summed up the problem, “In one tweet, Trump trashes two constitutional amendments.”

    In 140 characters, the next president knocked the First and 14th Amendments. The Supreme Court ruled almost three decades ago that burning a flag is protected speech under the First Amendment. Ironically, Trump’s model of the ideal Supreme Court Justice, the late Antonin Scalia, joined the majority decision in the 1989 case, Texas v. Johnson.

    Even Senate Majority Leader Mitch McConnell (R-Ky.) and House Majority Leader Kevin McCarthy (R-Calif.) chimed in right after the tweet to educate the public and president-elect about the First Amendment protection. Both members of Congress felt compelled to voice their support for this protected speech. McCarthy tried to shut down the debate by stating the unlikelihood of congressional action.