ACSBlog

  • June 26, 2014

    by Nicholas Alexiou

    Writing for The New York Times, Adam Liptak looks at today’s Supreme Court decisions in National Labor Relations Board v. Noel Canning and McCullen v. Coakley.

    At Salon, Katie McDonough examines yesterday’s decision by the U.S. Court of Appeals for the Tenth Circuit to affirm the trial court’s finding that Utah’s same-sex marriage ban is unconstitutional.

    Slate’s Jordan Weissmann makes the argument for why now is the time to enroll in law school. Joe Patrice at Above the Law redlines the article and explains why Weissmann is off base.

    Hina Shamsi and Hugh Handeyside discuss at the ACLU’s Blog of Rights a recent decision by Judge Anna J. Brown of the U.S. District Court for the District of Oregon which found unconstitutional the system in place for one to challenge their placement on the “No-Fly List.”

  • June 25, 2014
    Guest Post

    by Susan Freiwald, Professor of Law, University of San Francisco School of Law

    The Supreme Court faced the specific question in Riley v. California as a matter of first impression – can police search a cell phone’s contents under the “incident to arrest” exception to the warrant requirement?  But several courts have recently established a privacy-protective trend when they addressed the broader question – when does new technology render pre-digital precedents inapposite?  The Supreme Court’s decision fits the trend in two key ways.  First, the Court refused to credit the government’s explanation of the technological challenges it faced, and, instead, relied on its own sophisticated understanding.  Second, the Court recognized the need to evaluate how new technology presents new answers to the inquiries behind the precedents.  Like recent federal appellate cases, and unlike the Court’s decision in United States v. Jones, however, the Riley decision announced a bright line warrant requirement for searches of cell phones that recognized that more nuanced rules would grant law enforcement agents excessive discretion.

    Skepticism towards the government’s arguments about new technology.  In past cases, courts have generally deferred to government lawyers for information about the new technologies agents use and confront in their investigations.  Ex parte litigation and the defense bar’s lack of access has exacerbated an information disadvantage.   For example, the ACLU has recently tried to obtain more information about government use of stingray devices designed to mimic cell towers and obtain location and other personal information.

    In recent cases, however, courts have brought a more jaundiced eye to the government’s claims.  In Riley, the Supreme Court rejected the government’s claim that, without a ruling in its favor, agents would lose crucial information.  Educated by technologists, amici, and academics and other researchers, Justice Roberts explained that agents could merely pop a cell phone in a Faraday bag to protect against remote wiping.  (The opinion does merge encryption with passcode locking).  Nonetheless, the Court’s knowledgeable skepticism reminds me of the Eleventh Circuit’s recent approach to cell site location data in United States v. Davis.  In that case, the court dispensed with the government’s claim that such information is not as invasive as GPS tracking information.  Because phones follow people inside as GPS trackers on their cars do not, the court found even more justification for a reasonable expectation of privacy in cell site location information.   The courts’, and particularly the Supreme Court’s, increased technological savvy represents an important shift. 

    A refusal to “mechanically” extend pre-digital precedents to new technologies.  In past cases, the government has argued that, even though cases involve new technology, they may be easily decided based on prior rules.  The Riley opinion rejected the government’s argument that it could “mechanically” apply the incident-to-arrest exception merely because people carry cell phones the same way they carry cigarette cases.  Instead, the Court reviewed the rationales of protecting officer safety and preserving evidence and determined that neither of them justified the massive privacy intrusion of searching a cell phone without a warrant (at least without exigent circumstances or some other like exception). 

  • June 25, 2014

    by Paul Guequierre

    Earlier today, the Senate Judiciary Committee held a hearing on the Voting Rights Amendment Act (VRAA). The VRAA was introduced early this year by a bipartisan group of lawmakers and is intended to repair some of the damage to the Voting Rights Act caused by the Supreme Court’s 2013 opinion in Shelby County v. Holder.

    This summer marks the 50th anniversary of the Civil Rights Act and Freedom Summer—a time marked by bloodshed over the right to vote. Forty-nine years after that historic summer, the Roberts court in Shelby County invalidated a key provision of the landmark Voting Rights Act of 1965.

    This spring, ACS published “The Voting Rights Amendment Act of 2014: A Constitutional Response to Shelby County,” an Issue Brief by five constitutional scholars analyzing the major elements of the VRAA, which is aimed at remedying some of the damage inflicted by the Shelby County decision.

    Racial discrimination in elections is alive and well. From stringent voter ID laws to the weakening of the Voting Rights Act by the Roberts court, the right to vote is being undermined and the disenfranchisement of the marginalized is reaching significant proportions.

    So what can be done? Scholars William Yeomans, Nicholas Stephanopoulos, Gabriel J. Chin, Samuel Bagenstos, and Gilda R. Daniels examine various aspects of the legislation, and explain why the bill is well within congressional power to enact.

    Read the issue brief here.

  • June 25, 2014
    BookTalk
    Failure to Flourish: How Law Undermines Family Relationships
    By: 
    Clare Huntington

    by Clare Huntington, Professor of Law, Fordham University School of Law

    Inequality is the issue of the decade. Both income and wealth are concentrated at the top, and social mobility in the United States, although varied in its particulars, is lower than in most developed countries.

    One way to increase social mobility is to increase human capital, but, as I show in Failure to Flourish: How Law Undermines Family Relationships (Oxford University Press 2014), this can happen only if we strengthen families. Education is a key component of human capital, but what happens at home in the first few years of life—long before a child starts Head Start or pre-kindergarten—can set a child on a trajectory that is difficult to alter in later years.

    Family law is part of the problem. Too often, instead of helping strengthen families, our legal system undercuts family relationships, making it harder for parents to provide children with the relationships necessary for healthy child development.

    We can think of family law in concentric circles. At the center are rules about creating and ending relationships, including laws about marriage, divorce, adoption, and parentage. In the next ring are laws governing family behavior, such as child abuse and domestic violence laws. In an outer ring are legal structures and policies that we tend not to think of as family law but which deeply affect families nonetheless. These include tax policy, criminal justice, zoning, food stamp regulations, and laws governing workplace discrimination, among others.

  • June 25, 2014

    by Paul Guequierre

    Proponents of marriage equality garnered two major victories today. This morning U.S. District Judge Richard L. Young ruled Indiana’s ban on marriages by gay and lesbian couples unconstitutional and the U.S. Court of Appeals for the Tenth Circuit upheld an earlier ruling that Utah’s same-sex marriage ban is unconstitutional. The Hoosier state’s marriage ban becomes the latest in a string of bans to be ruled unconstitutional since the U.S. Supreme Court’s historic rulings last year striking down Section 3 of DOMA and California’s Prop. 8. Utah’s marriage ban was struck down in December.

    According to the Human Rights Campaign, in Baskin v. Bogan, Lambda Legal and local private counsel sued the state on behalf of same-sex couples who argue that Indiana’s ban on marriage equality violates the U.S. Constitution.  In his ruling, Judge Young wrote, “In time, Americans will look at the marriage of couples such as Plaintiffs, and refer to it simply as a marriage – not a same-sex marriage. These couples, when gender and sexual orientation are taken away, are in all respects like the family down the street. The Constitution demands that we treat them as such.”   

    The Indy Star reports that Marion County Clerk Beth White is prepared to issue marriage licenses to same-sex couples in her office at the City-County Building in Downtown Indianapolis.

    Over in Utah, the Salt Lake Tribune reports that by upholding a Utah judge’s decision, the Tenth Circuit became the first appeals court to rule on the issue, setting a historic precedent that voter-approved bans on same-sex marriage violate the Fourteenth Amendment rights of same-sex couples to equal protection and due process. But the court stayed the implementation of their decision, pending a decision from the U.S. Supreme Court

    The split ruling affects all states in the Tenth Circuit: Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.

    Earlier this month, U.S. District Court Judge Barbara Crabb ruled Wisconsin’s marriage ban unconstitutional. Hundreds of marriages took place in the Badger state before Crabb stayed her ruling. Just a week before Crabb’s ruling, the U.S. Supreme Court refused to block marriages of same-sex couples in Oregon.