ACSBlog

  • May 16, 2016

    by Jim Thompson

    Today, the Supreme Court vacated judgments in Zubik v. Burwell, instructing both parties involved to go back to the lower courts and make “tweaks in the contraceptive mandate to eliminate any faith-based concerns ‘while still ensuring that the affected women receive contraceptive coverage seamlessly,’” reports Sarah Ferris at The Hill.

    The Obama administration on Friday issued a directive telling every public school district to allow transgender students to use bathrooms that correspond with their gender identity, report Julie Hirschfeld and Matt Apuzzo at The New York Times.

    A federal district judge in Washington, D.C., ruled Thursday that the Obama administration had improperly funded a major subsidy of the Affordable Care Act, dealing a surprise blow to President Obama’s signature legislative achievement, writes Matt Ford in The Atlantic

    P.R. Lockhart at The American Prospect says a new Mississippi law that legalizes discrimination against LGBT individuals on religious grounds “could have sweeping implications well beyond the realm of gay marriage.”

  • May 11, 2016
    Guest Post

    by Ruben J. Garcia. Ruben Garcia is Professor of Law at UNLV William S. Boyd School of Law, where he teaches Labor Law and Professional Responsibility. He can be reached at ruben.garcia@unlv.edu.

    We are looking at another hot summer of litigation over the Obama Administration’s attempts to bring a modicum of regulation to the workplace. Currently, the Department of Labor’s Persuader Rule, enacted pursuant to federal labor law, is being reviewed in three different district courts and in Congress. Since 1959, the Labor Management Reporting and Disclosure Act (LMRDA) has required employers to disclose certain expenditures used to persuade employees in their choice of a bargaining representative. Once the DOL’s final revised rule implementing the mandate of the statute was published, employers and their law firms quickly brought suit to block the rule. The House Committee on Education and the Workforce held a hearing on April 27 which included three witnesses opposed to the rule, and one supporting it. Republicans in the House have introduced a Congressional resolution challenging the revised Rule as well.

    Federal courts in three different states will soon decide whether the revised rule should be enjoined because it exceeds the DOL’s authority or violates the U.S. Constitution. Apart from the merits of these challenges, there have been several complaints about how the revised rule’s requirement to report arrangements to provide “indirect persuasion” might cause attorneys to violate their ethical duty of confidentiality. The former president of the American Bar Association testified at the April 27 hearing that the revise Persuader Rule would “undermine the confidential attorney-client relationship.” The problem with these concerns, as I and numerous other labor law and legal ethics professors have written in a letter to the Committee, is that the revised Persuader Rule can coexist comfortably with the ABA Model Rules of Professional Conduct.

  • May 11, 2016

    Thomas Tobin, a member of the Harvard Law ACS chapter and online editor for the Harvard Law & Policy Review, writes about how Senate obstruction of judicial nominations is threatening the federal judiciary and harming Americans in The News&Observer.

    Harry Bruinius examines the concept of gender identity in The Christian Science Monitor and quotes ACSblog contributor Steve Sanders, who says “the phenomenon of gender identity is still frequently misunderstood—just like the phenomenon of sexual orientation was misunderstood.”

    Fredrick Kunkle in The Washington Post writes about a new Uber drivers’ association in New York and links to a recent ACSblog post by Catherine Fisk.

  • May 10, 2016
    Guest Post

    by Steve Sanders, Associate Professor of Law, Indiana University Maurer School of Law, and affiliated faculty member in the IU Department of Gender Studies and the Kinsey Institute.  

    Why did the United States sue the governor and various state agencies of North Carolina?

    As an employer, sponsor of public universities, and provider of federally funded public safety programs and services, North Carolina’s state government is obligated to comply with the non-discrimination requirements of Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, and the Violence Against Women Act (“VAWA”).  All of these federal civil rights laws prohibit discrimination on the basis of sex. VAWA also prohibits discrimination by federal grant recipients like North Carolina on the basis of gender identity.  

    North Carolina’s recently enacted H.B. 2 requires that multiple-occupancy bathrooms and changing facilities located in North Carolina public agencies “be designated for and only used by individuals … based on their biological sex.”  “Biological sex” is defined as ““[t]he physical condition of being male or female, which is stated on a person’s birth certificate.” 

    On behalf of the United States, the Department of Justice (“DOJ”) alleges that this so-called “bathroom law,” as enforced against transgender persons, is illegal discrimination on the basis of sex.  (Other provisions of H.B. 2, such as its preemption of Charlotte’s city ordinance prohibiting discrimination on the basis of sexual orientation and gender identity, are not at issue in the suit.)

    Why did North Carolina Governor McCrory sue the United States?

    McCrory’s lawsuit asked for a declaratory judgment that North Carolina was not in violation of federal civil rights laws as the DOJ alleges.  Essentially, it was a preemptive strike in the face of warnings by the DOJ.  The legal questions in both suits are essentially the same. 

  • May 9, 2016
    Guest Post

    by Deepak Gupta, founding principal, Gupta Wessler PLLC; co-author of the ACS Issue Brief: Arbitration as Wealth Transfer

    Yesterday, at a field hearing in New Mexico, the Consumer Financial Protection Bureau proposed a watershed new rule to stop banks and lenders from using fine print to prevent consumers from banding together in court.

    Though most of us don’t even know it, we’ve all signed away our away our rights through forced arbitration clauses, which require consumers to bring any claims in a private, corporate justice system that is completely secret. The CFPB’s proposed rule would do two significant things to level the playing field: prohibit clauses that ban group lawsuits and require companies to disclose what happens in arbitration.

    To underscore what’s at stake, let’s recognize forced arbitration for what it really is: a mechanism that quietly transfers giant amounts of wealth from the poor to the rich. As Lina Khan and I explained in our recent ACS issue brief, Arbitration as Wealth Transfer, “the least appreciated effect of arbitration clauses is that companies use this fine print as a license to steal from American consumers.” That should be a cause for widespread alarm.

    Between 2008 and 2012, the CFPB found, 422 consumer financial class-action settlements garnered more than $2 billion in cash relief for consumers and more than $600 million in in-kind relief. And those numbers don’t capture the additional benefits of industry-changing injunctions and deterrence of future bad practices.

    By contrast, what do consumers get from arbitration? It should be no surprise that few consumers with low-value claims successfully advocate for themselves when forced to seek individual relief. But you might be surprised at how few. Of the hundreds of millions of consumers that interact with banks, credit cards, student loans, payday loans, debt collectors, and other companies regulated by the Bureau, how many do you think have won affirmative relief on small-dollar claims in arbitration? Well, the CFPB’s study found that in 2010 and 2011, for the nation’s leading arbitral forum, the number was just four. Not four million, not 400,000, not even 400. Just four.