• June 16, 2015

    by Caroline Cox

    ACS Board of Directors member Linda Greenhouse considers in The New York Times the Supreme Court’s slowness in delivering the last opinions of the term.

    Adam Winkler, ACS Board member and faculty advisor for the UCLA Law School ACS Student Chapter, discusses at Slate two cases in which Chief Justice John Roberts has sided with the liberals of the Supreme Court.

    At Hamilton and Griffin on Rights, Marci A. Hamilton argues that the big question following the Obergefell decision will be how states treat discrimination against LGBT persons.

    Noah Feldman explains at Bloomberg View that a recent Supreme Court case on terrorism in Afghanistan provides insight into the possible ruling on same-sex marriage.

    At NPR, Nina Totenberg reports on the Supreme Court’s decision to uphold the government’s visa denial to a spouse of an American citizen. 

  • June 15, 2015
    Guest Post

    by Eric Ruben, Jurisprudence Fellow, The Brennan Center for Justice at New York University School of Law

    Tomorrow, an en banc panel of the Ninth Circuit will rehear oral arguments in Peruta v. County of San Diego, a case that spawned an originalist opinion last year that would have drastically increased the number of people publicly carrying handguns in California and Hawaii.

    California, Hawaii, and seven states outside the Ninth Circuit have “may issue” laws and policies requiring applicants to show a heightened need for self-defense — something beyond a generalizable fear of being attacked — before they can receive a permit to carry concealed handguns in public. The plaintiffs in Peruta wanted to carry handguns, could not satisfy this requirement, and sued in federal court alleging a violation of their Second Amendment rights.

    Peruta represents one of the most significant Second Amendment cases since 2008, when the Supreme Court decided District of Columbia v. Heller. In Heller, the Supreme Court held for the first time in over 200 years that the Second Amendment protects an individual right to possess a handgun inside the home for self-defense. In 1791, when the Second Amendment was adopted, modern semi-automatic firearms didn’t exist and elected officials weren’t struggling to find solutions to a massive gun crime problem. But Heller expressly rejected an analysis that took into consideration the government’s interest in dealing with a deadly modern-day problem. Rather, the Heller majority, in an opinion by Justice Scalia, relied almost exclusively on an historical analysis for its conclusion, asserting that “[c]onstitutional rights are enshrined with the scope they were understood to have when the people adopted them.” The history considered in Heller, however, arguably does not dictate Heller’s holding. Liberal and conservative commentators alike have criticized Heller’s originalism for providing a misleading historical cloak for an activist judicial ruling.

    Heller left unresolved many obvious issues, such as the scope of the right to bear arms outside the home and how lower courts should decide Second Amendment challenges — through a purely originalist analysis or by applying means-ends scrutiny that would take into consideration the government’s interest in preventing violent crime, death, and injuries. Those issues have been considered by lower courts in the hundreds of legal challenges to firearm regulations since Heller, and they are at the heart of Peruta.

    The Second, Third, and Fourth Circuits have held that “may issue” laws like California’s in New York, New Jersey, and Maryland are constitutional. Those courts, and the majority of lower courts considering Second Amendment challenges since Heller, have refrained from grounding their decisions in originalism. The rejection of originalism as the sole basis for decision making is likely a reflection of the fact that (as in Heller) the history is often disputed and busy judges are neither trained nor equipped to answer nuanced historical questions on the basis of necessarily limited records. When the Second Circuit considered New York’s “may issue” statute in 2012, it found the history “highly ambiguous” and upheld the law under intermediate scrutiny, concluding that the law was substantially related to the achievement of an important government interest — public safety and crime prevention. The Third and Fourth Circuits employed similar analyses to uphold New Jersey’s and Maryland’s “may issue” laws in 2013.

  • June 10, 2015
    Guest Post

    by Arthur BryantChairman of Public Justice

    * This post originally appeared on the blog for Public Justice

    Corporate America and irresponsible government officials consistently trash lawsuits as “frivolous” and trial lawyers as “greedy.” Why? Because lawsuits and trial lawyers hold them accountable when they abuse their power, break the law, and violate people’s rights.

    Want proof? Just look at the five finalists for Public Justice’s 2015 Trial Lawyer of the Year Award. This coveted honor goes annually to the lawyers who won the verdict or settlement that made the biggest contribution to the public interest in the past year.

    David v. Signal International

    In 2005, Signal International, a large contractor in Alabama and Mississippi, was hired to help rebuild the Gulf Coast in the wake of Hurricanes Rita and Katrina. It recruited nearly 500 pipefitters and welders from India with promises of good jobs and permanent U.S. residency. The recruits paid $10,000 to $25,000 just to be considered. But Signal brought them here on guest worker visas, with no possibility of residency; forced them to live in “man camps” on “the reservation,” with up to two dozen workers in a trailer with one bathroom; and deducted $1,050 monthly from their pay to do so. When Signal learned some workers were organizing to take action, they locked those workers in a trailer, terminated the leaders of the organizing movement and attempted to forcibly deport them. One became so distraught he attempted suicide.

    The Southern Poverty Law Center (SPLC) and a team of public interest and private attorneys fought for seven years – and continues to fight – to hold Signal accountable. When the judge would not let the case proceed as a class action, the SPLC recruited an extraordinary group of lawyers to represent hundreds of workers  in a dozen related lawsuits in multiple jurisdictions on a pro bono basis. David v. Signal International was the first to go to trial. Led by Alan Bruce Howard of Crowell & Moring in New York, with other attorneys from that firm, the SPLC, the American Civil Liberties Union, the Asian American Legal Defense and Education Fund, the Louisiana Justice Institute in New Orleans, and Sahn Ward Coschignano & Baker in Uniondale, NY, the lawyers navigated numerous complex challenges, including explaining immigration law to jurors and presenting testimony from workers who did not speak English. They won a unanimous $14 million jury verdict for five workers in a four-week trial. The jury found Signal had engaged in labor trafficking, fraud, racketeering and discrimination. This is the largest labor trafficking litigation in U.S. history. The David verdict is just the beginning. The claims of the other workers have yet to be heard.

  • June 10, 2015

    by Caroline Cox

    At SCOTUSblog, Alan B. Morrison, co-faculty advisor for the George Washington University Law School ACS Student Chapter, considers whether the decision in Zivotofsky v. Kerry that the executive branch has the exclusive power to recognize foreign sovereigns will result in another legal battle.

    Russell Berman writes at The Atlantic that President Obama is aggressively defending the Affordable Care Act just as the Supreme Court prepares to issue its decision in King v. Burwell.

    Mother Jones reports that a ruling from the conservative Fifth Circuit on the law Wendy Davis famously filibustered in 2013 will close almost all Texas abortion clinics. Davis will speak at the upcoming ACS National Convention.

    Amanda Marcotte argues at Slate that the Fifth Circuit’s decision could signal the decline of abortion access throughout the country.

    Rick Hasen writes at Election Law Blog on the Supreme Court’s decision to hear another redistricting case next term.

  • June 9, 2015

    by Nanya Springer

    Anyone who has attended law school is well aware of the fanatical attention that is paid each spring to the latest U.S. News & World Report rankings.  Law students fret over what the rankings mean for their employment opportunities, administrators consider how the rankings will affect their current positions and salaries, and prospective applicants categorize their “reach” and “safety” schools based on the numbers.  If a school’s ranking takes a substantial tumble, it’s not unheard of for the top students to jump ship, transferring to higher-ranked schools.  And although everyone plays along with this annual ritual, most know that U.S. News rankings are not necessarily the best indicator of a quality legal education.

    In an article for Washington Monthly, Alan B. Morrison of George Washington Law argues that the influence wielded by U.S. News rankings “might be warranted if the ratings were based on solid methodology, but they are not.”  For example, he questions the soundness of valuing a “3.4 [GPA] in electrical engineering from MIT as . . . worse than a 3.8 in the history of cinema from Podunk State,” as well as of the assumption that undergraduate institutions use the same curve for grading.  Further, he criticizes the lack of consideration of certain factors, such as location, that may be very important to some students but wholly irrelevant to others.  “The goal of any information system about educational institutions should not be just to provide students with facts,” he asserts, “but also guidance to help them think through the decisional process, including what factors may be important to at least some applicants and why.”

    One of the most fundamentally flawed aspects of the system, Morrison says, is that it assumes there is a “uniformly agreed upon definition of law school quality and that U.S. News uses it in creating its rankings.”  Because there is no acknowledgment of subjective measures of value, there is bound to be disagreement about the rankings ‒ particularly among similarly ranked institutions.  To see what a more practical set of guidelines would look like, check out Morrison’s own list of relevant factors for law school applicants to consider.