• 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.

  • May 9, 2016

    by Jim Thompson

    The Lawyers’ Committee for Civil Rights Under Law on Friday released a report examining Chief Judge Merrick Garland’s record in civil rights cases and urging the Senate to hold a hearing for the Supreme Court nominee. Lydia Wheeler provides commentary on the report in The Hill.

    In The Atlantic, Richard L. Hasen considers whether the Supreme Court will hear a challenge to the 2002 McCain-Feingold Act, a measure that prohibits political parties from raising unlimited funds in the form of soft money.  

    According to an analysis by lawyers at the University of California, Los Angeles Law School, North Carolina could lose as much as $4.8 billion in federal funding if the state does not pull back from implementing its discriminatory law on public bathroom access for transgender individuals, reports Julia Harte at Reuters.   

  • May 5, 2016
    Guest Post

    by Paul Bland, Executive Director, Public Justice

    *This post first appeared on the Huffington Post.

    Banks and payday lenders have had a good deal going for a while: They could break the law, trick their customers in illegal ways, and not have to face any consumer lawsuits. Armed by some pretty bad 5-4 Supreme Court decisions, they could hide behind Forced Arbitration clauses (fine print contracts that say consumers can’t go to court even when a bank acts illegally), even when it was clear that the arbitration clauses made it impossible for a consumer to protect their rights.

    But the free ride is coming to an end. After an extensive study, that proved beyond any doubt how unfair these fine print clauses have been for consumers, the CFPB is taking a strong step to reign in these abusive practices. In a new rule, the CFPB says banks can no longer use forced arbitration clauses to ban consumers from joining together in class action lawsuits. That means banks can no longer just wipe away the most effective means consumers often have for fighting illegal behavior.

    This is a common sense rule that will go a long way in combating some of the financial industry’s worst practices.

  • May 5, 2016
    Guest Post

    By Senator Patrick Leahy (D-Vt.), Ranking Member, Senate Judiciary Committee

    Senators have sworn a solemn oath to uphold the Constitution. That means taking seriously our responsibility to ensure that the Federal Judiciary – a co-equal and independent branch of government – can perform its function under our Constitution. When Democrats held the Senate majority, we worked hard to fulfill our constitutional role to consider and confirm judicial nominees to fill vacancies in courts throughout the country. Despite constant obstruction by Senate Republicans who blocked President Obama’s nominees at every turn, we reduced the number of judicial vacancies to 43 by the end of 2014. 

    Sadly, the progress we made now seems like a distant memory. Vacancies have increased 75 percent since Republicans took over the Senate majority. In some states, vacancies have reached such high levels that it is hard to see how individuals can obtain prompt justice. In Texas, for example, there are 10 vacancies. Alabama and Pennsylvania each have are six vacancies.

    There are 20 judicial nominees pending on the Senate floor who were all unanimously voice voted out of the Judiciary Committee. Several of them are from states with Republican home state Senators who support their nomination. Yet it is the Republican leadership that is holding up these noncontroversial nominees. They claim that despite longstanding judicial vacancies in the states, President Obama’s nominees are being treated with the same level of fairness as the nominees of his predecessor. That claim is simply untrue. Democrats overcame filibuster after filibuster to confirm judicial nominees in the last Congress. And since taking over the majority last year, Republicans have confirmed just 17 judges. In the last two years of the Bush administration with a Democratic Senate, we confirmed 68 of President Bush’s judicial nominees. There is nothing fair about this Republican obstruction.

    In addition to the 20 nominees ready for their confirmation vote, there are 35 more judicial nominees awaiting a hearing, including 7 circuit court nominees. Three of these circuit court nominees have blue slips returned by both of their home state Senators and are ready for a hearing. They should be scheduled for a hearing without delay.