ACSBlog

  • August 1, 2014
    Guest Post

    by Lisa Heinzerling, the Justice William J. Brennan, Jr., Professor of Law, Georgetown Law; Co-Faculty Advisor, Georgetown University Law Center ACS Student Chapter

    Imagine a government warning on tobacco products that gave nearly equal prominence to both the pleasures and pains of using tobacco products. The "warning" would tell citizens that whether they should use tobacco products or not was – despite the government's long practice of recommending against such use – actually a pretty close case. Tobacco use is just so pleasurable, it turns out, that its risks – of bad health, of early death – might be worth it.

    Or imagine a parent saying the same thing to her child: here are the risks of using tobacco products, she'd say, but here on the other side are the wonderful pleasures. You make the call; it's too close for me to judge.

    Despite its strangeness, this is exactly the kind of statement the White House and the Food and Drug Administration have collaborated in propounding in the context of a proposed rule deeming certain tobacco products subject to FDA regulation under the Family Smoking Prevention and Tobacco Control Act. Economists from the FDA and the White House's Office of Management and Budget published a study purporting to estimate the amount by which the health benefits of tobacco use reduction are offset by a loss of the pleasure of using such products. When the FDA's proposed rule on tobacco products went to the White House for review, White House economists, rather than placing this study in the dustbin where it belonged, doubled down on its strange analysis. Indeed, they ended up increasing the FDA's estimate of the extent to which the "lost pleasure" associated with reducing tobacco use offsets the health benefits to be gained.

  • August 1, 2014
    Guest Post

    by Atiba R. Ellis, Associate Professor, West Virginia University College of Law

    *Noting the 50th anniversaries of Freedom Summer and the Civil Rights Act of 1964, ACSblog is hosting a symposium including posts and interviews from some of the nation’s leading scholars and civil rights activists.

    As we celebrate the fiftieth anniversary of the Civil Rights Act, and the fiftieth anniversary of the Freedom Summer protest, it is well worth reflecting on the how the movement challenged us to not only establish formal legal equality, but also to address enduring poverty. The Civil Rights Movement sought to persuade America that all Americans are equal. The Freedom Summer riders (and the many, many more who pressed for civil rights) sought to expose the inequality and oppression in the segregated south of 1964.

    The passage of the Civil Rights Act, the Voting Rights Act, the Fair Housing Act, still impact us today.  These enactments represent significant progress towards the goal of fostering equality. Moreover, with the contemporary tide of referenda and judicial rulings on marriage equality, the Civil Rights Movement continues to evolve to protect many people who fifty years ago weren’t deemed deserving of civil rights.

    Though we think of Martin Luther King, Jr., Freedom Summer, and formal legal equality when we think about the Civil Rights Movement, we should also remember that the struggle is really, as historian Jacqueline Dowd Hall explained, a “long civil rights movement.”  Hall’s work locates the genesis of the twentieth century movement in the 1930s with the social transformations that occurred due to economic disruption of the Great Depression.  Moreover, the long arc of legal transformation to foster equality began with the Civil War and the Reconstruction Amendments.  The civil rights struggle began with confronting the subordination and poverty slavery created.

    In this sense, the long civil rights struggle had economic equality of opportunity at its core from the beginning. As Jeremy Leaming discussed on this blog, the question of racial equality in twenty-first century America is at a crossroads in light of retrenchment in civil and voting rights.  Yet racial inequality and poverty walk hand and hand and continue to affect the lived experiences of people of color.

    NPR host Michel Martin recently wrote an article in the National Journal, discussing the key obstacles that women of color continue to face in the twenty-first century.  In discussing this article on NPR’s All Things Considered (where she called her essay her own “Letter from the Birmingham Jail”) she explained how poverty creates an enduring problem for racial minorities:

    People of color particularly — but not exclusively blacks and Latinos — are connected to poverty and to disadvantage in ways that often our white colleagues don't understand. That causes you to have to think about things that they aren't thinking about. And that's the kind of thing that I really feel a need to call attention to.

    Martin’s words -- especially as they reflect her own experience navigating the intersection of race and class-- remind us that poverty daily affects the lives of people of color, no matter how affluent.  Indeed, it is a yet-to-be-fulfilled civil rights issue of the long civil rights movement.

  • August 1, 2014
    Guest Post

    by Estelle H. Rogers, Legislative Director, Project Vote

    Not long ago in these virtual “pages,” I opined that judges were beginning to “get it” -- to understand that the enticing but superficial reasonableness of requiring photo ID to vote is far from the whole story. Yesterday, we encountered several judges who don’t get it at all, and Wisconsin’s voters are the worse for it.

    League of Women Voters v. Walker and Milwaukee Branch of the NAACP v. Walker were split decisions in which majorities of the Wisconsin Supreme Court held the state’s strict photo ID law (”Act 23”) constitutional under the Wisconsin constitution, the same state constitution whose explicit right to vote provision led to contrary rulings by the trial courts in both cases.

    It is tempting at this point simply to quote extensively from the dissenters, among whom Shirley Abrahamson, the octogenarian Chief Justice of the court, stands out in her steadfast refusal to follow the majority’s tortured logic -- or rather, tortured conclusion.  It cannot really be called logic.

    In NAACP, for example, the court construed a state regulation – not even properly before it – that explicitly required certain documentary proof in order to receive the free ID.  Recognizing that obtaining those underlying documents may involve a fee, the court “saved” the regulation, and thus Act 23, by declaring that the need for underlying documents may be excused (though granting such an excuse rests in the discretion of state bureaucrats).  Therefore requiring photo ID does not constitute an undue burden.  Therefore it must be analyzed under a rational basis test.  Therefore as long as it is rationally related to a legitimate government interest, it is constitutional. 

    What is the legitimate government interest?  Prevention of fraud, of course.  Never mind that the one example of fraud advanced by the state in both cases was allegedly committed by a supporter of Governor Walker in his recall election, who has now been indicted on 13 felony counts of voter fraud for, inter alia, registering more than once, voting multiple times, voting where he didn’t live, and lying to election officials.  None of these offenses would have been prevented by the strict photo voter ID law at issue in the case, and indeed, all of them were discovered without such a law in effect.

  • August 1, 2014

    by Rebekah DeHaven

    August 1, 2014

    On Monday, the Senate voted 50-43 to confirm Pamela Harris to the U.S. Court of Appeals for the Fourth Circuit. Judge Harris was a founding member of ACS’s Board of Directors.

    The Senate Judiciary Committee held a hearing on four nominees the following day:

    Madeline Cox Arleo to the U.S. District Court for the District of New Jersey;

    Victor Allen Bolden to the U.S. District Court for the District of Connecticut;

    David J. Hale to the U.S. District Court for the Western District of Kentucky; and

    Gregory N. Stivers to the U.S. District Court for the Western District of Kentucky.

    On Wednesday, Senate Majority Leader Harry Reid (D-Nev.) filed cloture on the nomination of Jill Pryor to the U.S. Court of Appeals for the Eleventh Circuit; cloture was invoked the following day by a vote of 58-33. Pryor is the 100th Obama judicial nominee to require a cloture petition, which is a testament to the continued obstructionism in the Senate. Her confirmation vote will take place in September when the Senate returns from the August recess.

    Also on Thursday, President Obama announced two new judicial nominations: Allison Dale Burroughs to the U.S. District Court for the District of Massachusetts, and Amit Priyavadan Mehta to the U.S. District Court for the District of the District of Columbia.

    Of note, the vacancy crisis and its impact on the workload of judges was mentioned in an op-talk in The New York Times about wellbeing and long work hours.

    Our “Recently on JudicialNominations.org” posts will resume in September when the Senate returns to session following the August recess.

    There are now a total of 57 current vacancies and 24 future vacancies. There are 25 pending nominees. There are 19 judicial emergencies. Eight nominees remain pending on the Senate floor.

    For more information on judicial nominations, see the latest from “In the News” and “Recommended Readings” on JudicialNominations.org, a project of ACS.

     

  • August 1, 2014

    by Ellery Weil

    The New York Times Editorial Board discusses a recent decision by the National Labor Relations Board general counsel which found McDonald’s jointly responsible for the treatment of its workers at all of its franchises and argues that this should spur an increase in wages for fast food workers.

    Writing for SCOTUSblog, Lyle Denniston reports that challengers of the provision of the Affordable Care Act which provides subsides to those who obtain health insurance via the federal exchange are rushing their case to the Supreme Court, after two federal appellate courts delivered opposite rulings on the issue last month..

    At Politico, Laura W. Murphy compares attempts to reform the National Security Agency in the wake of revelations about the scope of its spying to successful efforts to limit the disparities in drug sentencing born from the War on Drugs.

    Benjamin Wittes writes at Lawfare about the CIA inspector general’s report regarding alleged hacking of Senate Select Committee on Intelligence (SSCI) staff files and records by the CIA.