ACSBlog

  • February 1, 2016

    by Jim Thompson

    President Barack Obama announced executive action Friday that requires companies with 100 employees or more to report to the U.S. Equal Employment Opportunity Commission how much they pay their employees broken down by race, gender and ethnicity, reports Bourree Lam at The Atlantic. This new rule “will help to root out discrimination and reduce the gender pay gap—which, according to the White House, leaves women in full-time jobs earning 79 cents for every dollar a man earns.”

    In a surprising turn of events, a grand jury in Harris County, Texas, empaneled to investigate criminal wrongdoing by Planned Parenthood, announced indictments against the anti-abortion activists who falsified documents to conduct a series of sting videos against the medical services provider, Dahlia Lithwick writes in Slate.

    Nic Cavell at Wired urges voters and politicians to resolve the issues of gerrymandering in American politics.

    Thursday, after years of increasing class sizes, pay cuts, deteriorating school conditions and emergency managers, several teachers in Detroit filed a lawsuit against the school district, says Kristina Rizga in Mother Jones.

  • January 29, 2016
    Guest Post

    by Ross Eisenbrey, vice president, Economic Policy Institute

    *This post originally appeared on epi.org.

    Employers are increasingly forcing employees to give up their right to sue in court and to accept private arbitration as their only remedy for violations of statutory and common law rights. Private arbitration can forbid class actions, limit damages, allow the employer to choose the arbitrator, and cut off appeals, resulting in a system unfairly tilted in the employer’s favor. As Stone and Colvin find, employees are much less likely to win in mandatory arbitration than in federal court: employees in mandatory arbitration win only about a fifth of the time (21.4 percent), whereas they win over one-third (36.4 percent) of the time in federal courts.

    Differences in damages awarded are even greater. The typical award in mandatory arbitration ($36,500) is only 21 percent of the median award in the federal courts ($176,426). While there are additional factors to consider in comparing the two systems, at the outset it is important to recognize that in a simple comparison, mandatory arbitration is massively less favorable to employees than are the courts.

                       

  • January 29, 2016
    Guest Post

    by Jessica Pezley, Judicial Clerk, Oregon Circuit Courts

    The debate over the constitutionality of the death penalty took on a renewed vigor last term in Oklahoma’s lethal injection case, Glossip v. Gross, in which Justice Breyer in dissent suggested it “highly likely that the death penalty violates the Eighth Amendment.” While the Court decided 5-4 that Oklahoma’s use of the lethal injection drug midazolam—part one of a three-part drug cocktail meant to numb an individual from the pain caused by the other drugs working to stop the heart—was constitutional, the close vote and impassioned dissent highlighted a growing skepticism of capital punishment in the Court. Flash-forward to this term and the issue was high on the docket with four cases raising procedural questions about the death penalty. Two have since been decided.

    First, in Hurst v. Florida the Court deemed unconstitutional a sentencing scheme that charged the judge, and not a jury, with making the ultimate sentencing decision in capital cases. Decided 8-1, Hurst seemed to indicate the direction the Court would take in its three remaining death penalty cases. Then, just over a week later in Kansas v. Carr/Kansas v. Gleason, the Court voted 8-1 against recognizing additional Eighth Amendment procedural protections. What accounts for this difference? And what do these inconsistent results spell out for the remaining two death penalty cases, Foster v. Chatman and Williams v. Pennsylvania?

    In Carr, the Kansas Supreme Court vacated three death sentences—those of the Carr brothers and of Gleason, a defendant in an unrelated case—because of the lower court’s failure to affirmatively instruct the jury that mitigating factors need not be proved beyond a reasonable doubt, and in the case of the Carr brothers, not allowing severance at the sentencing phase of trial. Kansas’s attorney general challenged this decision, and the Court granted certiorari on the question of whether the Eighth Amendment demands the procedural protections recognized by the Kansas Supreme Court.

    It became readily apparent that the respondents in Carr were in trouble. Justice Scalia halted oral argument to recount, at length, the grisly details of the Carr brothers’ crime spree, known as the Wichita Massacre. It came as no surprise then, when the opinion for the case was handed down, that Justice Scalia, writing for the majority, used over two pages of his 18-page opinion to again hash out the horrendous facts. In the remaining pages, the Court found little trouble in dispensing with the respondents’ arguments.

  • January 29, 2016

    by Jim Thompson

    In The Orange County Register, ACS Board member Erwin Chemerinsky defends the constitutionality of President Obama’s executive action on gun control.

    Jill Dash, ACS’s vice president of strategic engagement, highlights the current judicial vacancy crisis on Bankrate.

    Rachel M. Cohen at The American Prospect considers how Cruz-Guzman v. State of Minnesota, a provocative civil rights case, could change the landscape of American education. The statement of the plaintiffs can be read here

    At Jacobin, John Patrick Leary says the Flint water contamination crisis underscores “the human toll of running a state like a business,” writing, “when a government is run like a business, much of its infrastructure and personnel become superfluous.”

    Detroit school teachers’ “sick outs” and the Flint water crisis highlight the disastrous consequences of Michigan’s emergency manager laws, opines Julia Lurie at Mother Jones.

    In The American Prospect, Eliza Newlin Carney reviews a score of new books examining the growing influence of dark money in politics, including Rick Hasen’s Plutocrats United and Derek Cressman’s When Money Talks. Hasen’s ACSblog BookTalk can be read here, and Cressman’s BookTalk can be found here

  • January 28, 2016
    BookTalk
    When Money Talks
    The High Price of "Free" Speech and the Selling of Democracy
    By: 
    Derek Cressman

    by Derek Cressman, a longtime reform advocate and architect of anti-Citizens United voter instruction measures in California, Colorado and Montana.

    Common sense tells us that if money is equivalent to political speech, then that speech is not free. But contemporary campaign finance jurisprudence presumes that paid advertisements, which can indeed disseminate political speech, deserve identical First Amendment protections as the free press. Supreme Court rulings such as Buckley v. Valeo, Citizens United v. FEC, and McCutcheon v. FEC have undone post-Watergate reforms to limit big money in politics and have given a small group of billionaires an outsized role in deciding who runs for office, who wins elections, and what issues dominate our political discourse.

    I wrote When Money Talks: The High Price of “Free” Speech and the Selling of Democracy in order to draw a bright line between paid speech (which is funded by the speaker and foisted on the listener unsolicited) and free speech (which is sought out and usually paid for by the listener when she buys a newspaper, for example). It’s an instruction manual intended to equip citizens with arguments and an assortment of tools to overturn Supreme Court rulings in Citizens United and related cases. It eschews legalese for plain talk, but includes plenty of arguments that lawyers, academics, and advocates will find provocative.

    Once the line is drawn between paid and free speech, some constitutional protections for paid speech remain – as Justice Stevens has eloquently explained. So while we may limit the amount of money anyone spends on paid speech, we may not ban it entirely and must justify the limits with a compelling public interest.

    Legal scholars have long debated the extent to which preventing corruption or promoting equality justify some restrictions on paid speech. I offer a third interest: the wisdom of the crowd. For both voters and legislators to make wise decisions about public policy, we need robust but also balanced information from opposing viewpoints.