• January 16, 2015

    by Caroline Cox

    At The Atlantic, Matt Ford discusses how supporters of the death penalty may inadvertently be leading to its demise.

    Robert Barnes of The Washington Post reports on the oral arguments in a Supreme Court case that considers whether a sock counts as drug paraphernalia.

    Alisa Wellek writes in the Huffington Post about the same case, arguing that it shows how the War on Drugs supports the War on Immigrants.

    At Salon, Katie McDonough reports that advocates for abortion rights are now arguing for greater abortion rights in foreign aid.

    Randal Morrison discusses at Hamilton & Griffin on Rights the oral arguments in Reed v. Gilbert and how the case is not about religious discrimination.

  • January 15, 2015

    by Reuben A. Guttman, Director, Grant & Eisenhofer; Member, ACS Board of Directors

    *This post originally appeared on The Global Legal Post.

    A half century ago, in Boire v. Greyhound, 376 US 473 (1964),  the United States Supreme Court opined that two or more employers could exist as “joint employers” for the purposes of labor relations.  Elaborating on this joint employer doctrine, the United States Court of Appeals for the Third Circuit, in a case known as NLRB v. Browning-Ferris Industries oPennsylvania, 691 F.2d 1117 (3rd Cir. 1982) held that “the joint employer concept recognizes that the business entities involved are in fact separate but that they share or co-determine those matters governing the essential terms and conditions of employment.”

    The joint employer doctrine allows for the imposition of liability against entities that do not sign the employee’s paycheck and do not provide monetary benefits but – still – in other ways exercise or share control over the terms and conditions of employment.  Last month this tiny gem of labor doctrine formed the basis of 13 complaints, encompassing 78 separate charges,  brought by the General Counsel to the National Labor Relations Board against McDonalds USA, LLC, and McDonald’s franchisees as  “joint employers.”  

    The complaints allege that the respondents interfered with employees’ rights to engage in concerted-protected activity, that is, organise a labor union, and in some cases retaliated against employees for doing so.  While the substantive allegations are to some degree routine, the use of the “joint employer” doctrine to impose liability on the parent company – albeit the entity that probably does not pay workers directly – is the more interesting part of the case.  The issuance of a complaint by the NLRB General Counsel is not a finding of liability; it is the beginning of a process that will cause the case to proceed to trial before an Administrative Law Judge, review of any decision by the full NLRB, and perhaps a hearing before a United States Court of Appeals where the decision will be enforced or overturned.  Whatever the outcome, renewed focus on the joint employer doctrine is important in an era where employment paradigms are so complex that a myriad of entities may play a role in decisions that impact individual workers.

  • January 15, 2015
    Guest Post

    by Michael Leachman, Director of State Fiscal Research, Center on Budget and Policy Priorities, State Fiscal Policy Division

    As state legislative sessions begin, right-wing groups are ramping up a nationwide campaign to convene a constitutional convention to propose amendments that would strip the federal government of much of its power to invest in national priorities and protect civil rights.

    As respected legal voices in the states, ACS members can help defeat this campaign by educating policymakers and the public (through op-eds, testimony and the like) about its radical goals and misleading claims. 

    Here’s the background.  Under Article V of the Constitution, Congress must call a convention to propose constitutional amendments if two-thirds of the states formally request one.  In the late 1970s and early 1980s, many states passed resolutions calling for a convention to propose a federal balanced budget amendment.  At one point, 32 states had passed resolutions along these lines, close to the 34 states required.  But over the next 25 years, no more states passed resolutions and half of the states that had passed resolutions formally rescinded them, fearing that a convention would throw open the Constitution to harmful changes.

    The tide turned in 2010 as the American Legislative Exchange Council (ALEC) and its allies began pushing anew for state resolutions.  Since then, eight states have adopted new resolutions calling for a convention to propose a balanced budget amendment.  Some proponents claim that 24 states have “live” applications, including those passed in the late ‘70s and early ‘80s but never rescinded.  They’ve targeted another 15 states for the coming year.

  • January 15, 2015

    by Caroline Cox

    At Bloomberg View, Noah Feldman argues that Justice Antonin Scalia could be the key to ending the Affordable Care Act.

    Nina Totenberg reports for NPR on the Supreme Court case that has the justices considering whether a sock counts as drug paraphernalia.

    At Buzzfeed, Chris Geidner provides a guide to the multiple same-sex marriage cases that the Supreme Court could decide to hear this term.

    Jonathan Rapping writes in The Nation that the problems with the American justice system go beyond abusive policing.

  • January 14, 2015
    Reclaiming Accountability
    Transparency, Executive Power, and the U.S. Constitution
    Heidi Kitrosser

    by Heidi Kitrosser, Professor of Law, University of Minnesota Law School

    It is fairly well known by now that the Obama administration has prosecuted more persons for allegedly leaking classified information to journalists than all previous administrations combined.  Yet much less attention has been paid to the legal justifications offered for these prosecutions. 

    Like its predecessors, the Obama administration has consistently maintained in litigation that communications conveying classified information to journalists are “wholly unprotected by the First Amendment.”  This argument, which has been largely successful in the handful of prosecutions to reach courts over the years, rests on the notion that speech about government activities – speech that ordinarily would be deeply protected from content-based prosecution under the First Amendment – loses all protection once marked by the classification stamp.  That stamp is wielded by the millions of persons with some form of classification authority, authority that stems primarily from presidential executive order.