• January 22, 2016
    Guest Post

    by David A. Strauss, the Gerald Ratner Distinguished Service Professor of Law, University of Chicago Law School

    There are cynics who say that Supreme Court justices are just politicians in black robes, willing to manipulate the law, and discard the Court’s own precedents, to suit their political views. But that’s misleading: the Court does not overrule its precedents very often at all. According to one analysis, in the last 75 years -- a period that includes activist Courts and restrained Courts, liberal Courts and conservative Courts -- the justices, in constitutional cases, have overruled just 91 of their previous decisions: an average of just over one each year.

    Oral argument this month in Friedrichs v. California Teachers Association made it look like a nearly 40-year-old decision called Abood v. Detroit Board of Education might be this year’s addition to that list. That would make no sense at all.

    Friedrichs, and Abood, are about the fees that public employees pay when they are represented by a labor union. Unions, of course, bargain with employers on behalf of employees, over wages, hours, and terms of employment, and they are required by law to represent all of the workers in their bargaining unit -- union members and non-members alike -- equally. Unions also engage in political activity, like campaigning on behalf of candidates. Since all employees benefit from the union’s bargaining and other workplace-related activity, the employer and union are allowed to agree that all employees will chip in to support that part of the union’s work. Otherwise, the entire arrangement might unravel: people will not pay for something -- in this case, the work that the union is required to do on their behalf -- if they can get it for free. At the same time, though, employees who disagree with the union’s political activities have a right, under the First Amendment, to refuse to pay for them. That’s what Abood held.

    It seems like a sensible compromise. But sensible or not, it has been the law since 1977. The Friedrichs litigation was ginned up by some conservative lawyers to try to get the Supreme Court to overrule Abood and hold that employees have a right to refuse even to contribute to work that the union is doing on their behalf.

    Nothing about Abood would justify the Court’s overthrowing it. 

    • Abood was a unanimous decision, and the Supreme Court has invoked it, cited it, implemented it, and relied on it many times in the intervening decades -- often unanimously. Lower courts have done the same. Only in the last few years -- decades after Abood was on the books but coinciding, of course, with a wide-ranging political attack on public employee unions -- has Abood’s status as a precedent been seriously challenged.
    • It’s not just that the courts have relied on Abood – twenty-three states have labor laws that rely on the Abood compromise. That means that collective bargaining agreements -- the workplace constitutions -- governing millions of employees and resolving countless workplace challenges will have to be rewritten, at enormous cost, monetary and otherwise, to the effective working of state and local governments.
    • And Abood is not just about labor unions. “Integrated” bar associations, to which lawyers are typically required to pay dues, engage in various forms of speech; the Supreme Court held that Abood governs that arrangement. The Court drew an analogy to Abood when it ruled that state universities could require students to pay activities fees that support student groups, including groups that propagated messages with which some students disagreed. If the Court overrules Abood, it is only a matter of time before litigants will challenge those institutions, too. Unless the courts are going to say that there are special rules that, for some reason, apply only to labor unions, they will have a hard time explaining why those other institutions are different.

    The teachers who are challenging Abood -- their lawyers, anyway -- portray this all as an epic battle about free speech and the First Amendment. But it is worth keeping things in perspective. Abood leaves teachers, and all other public employees, completely free to criticize their union as vociferously as they like. They can attack the union’s leadership, its priorities, or its tactics. Meanwhile, everyone accepts that teachers’ rights to speak in the workplace can be limited in order to make sure that schools will function well. Teachers cannot say whatever they want in a classroom; they cannot disrupt relations with their colleagues; they cannot speak abusively to students or parents.

  • January 22, 2016

    by Christopher Durocher

    Presidents Obama’s executive actions on guns, announced this month, have drawn unfair and unwarranted criticism, according to Erwin Chemerinsky, dean of the University of California, Irvine School of Law and one of the nation’s leading legal scholars. In testimony submitted to the Senate in advance of a hearing held this past Wednesday, Chemerinsky, who is also a member of ACS’s board of directors, explains that the president’s actions “are clearly constitutional. The new policies announced by President Obama are relatively modest and are entirely focused on enforcing existing statutes. Thus all are within the permissible scope of executive power without infringing the Second Amendment.”

    Among the president’s executive actions, Chemerinsky notes, is guidance from the Bureau of Alcohol, Tobacco and Firearms (ATF) that “clarifies which gun sellers are ‘engaged in the business’ of dealing firearms, and therefore must obtain federal licenses and conduct background checks on would-be gun purchasers” and directives to the ATF and FBI to “prosecute individuals who illegally attempt to obtain firearms and also to inform state law enforcement whenever a prohibited person in their state fails a background check.” Chemerinsky describes both measures as “common sense” efforts to better enforce existing federal law. He further notes that, “Not one federal court ever has questioned the constitutionality of the federal laws being enforced by President Obama’s executive order.”

  • January 22, 2016
    Guest Post
    by Daniel Nazer, Staff Attorney and Mark Cuban Chair to End Stupid Patents, Electronic Frontier Foundation
    *This post is part of the ACSblog Symposium on Patent Law Reform.
    If you got sued for patent infringement in 2015, chances are pretty good that you were sued in the Eastern District of Texas. An astonishing 2,514 patent lawsuits – or 44 percent of the national total – were filed there this year. Over 1,500 of these cases were filed before a single judge: Judge Rodney Gilstrap. While patent suits have clustered in Eastern Texas for nearly a decade, this year saw an unprecedented concentration. This extreme forum shopping raises important questions about procedural fairness and due process.
    Why are so many patent cases filed in the Eastern District of Texas? It’s not for the barbecue. And it’s not because the remote, largely rural district is a technology hub. Rather, it’s because local rules and practices make the district attractive to patent plaintiffs. More specifically, local practices make the district very attractive to companies – known as patent trolls – whose sole business model is to buy patents and sue.
    For example, the Eastern District of Texas judges that most frequently hear patent cases have standing orders requiring parties to submit letter briefs asking permission to file for summary judgment. This makes it harder for defendants to avoid a costly trial. A recent study found that judges in the district granted only 18 percent of motions for summary judgment on the basis of patent invalidity. (In contrast, the grant rate nationwide was 31 percent.) Considering that this study did not include cases where the defendant wasn’t even permitted to file for summary judgment in the first place, it follows that the true grant rate in the Eastern District of Texas is even lower.
    In addition to the inconvenience of litigating in a distant forum, local rules make discovery more expensive. The local discovery order in patent cases requires parties to automatically begin producing documents before the other side even requests them. This practice ‒ which, in EFF’s view, is not consistent with the Federal Rules ‒ particularly burdens patent defendants. That is because unlike shell company patent trolls, operating companies need to search and produce a huge volume of documents. These burdensome discovery practices create pressure to settle weak cases and thus attract trolls to the district.
  • January 22, 2016

    by Jim Thompson

    On Thursday, the U.S. Court of Appeals for the D.C. Circuit denied a stay of the Obama administration’s Clean Power Plan, preserving power plant carbon emissions regulations even as states mount challenges to the rule, report Brent Kendall and Amy Harder at The Wall Street Journal.

    The Editors at the Corporate Crime Reporter highlight the work of Public Justice Chairman Arthur Bryant to hold Remington accountable for selling a popular firearm with a dangerous defect.

    In The Global Legal Post, ACS Board member Reuben Guttman examines the spectacle of the presidential election and notes that “the next president will have the ability to make appointments tipping the balance of the judiciary including the Supreme Court.”

    The Maryland House of Delegates overrode Gov. Larry Hogan’s veto of a measure that would allow former felons to vote upon being released prison as opposed to after the completion of probation or parole, says Pamela Wood at The Baltimore Sun.

    In The Washington Monthly, Nick Warshaw, president emeritus of the UCLA Law Student Chapter and an ACS Next Generation Leader, writes about a way to counter the corrosive effects Super PACs are having on our elections. 

  • January 21, 2016
    Guest Post

    by Eric J. Segall, the Kathy and Lawrence Ashe Professor of Law, Georgia State University College of Law

    Texas’ lawsuit against the Obama administration over its proposed new immigration regulations adds one more important public policy issue to the Court’s term which already has abortion, affirmative action, voting rights, and freedom of speech and religion on its agenda. This battle over immigration policy, however, does not belong in federal court because Texas should not be allowed to turn what is essentially a political controversy between Republicans and Democrats over immigration reform into a federal case.

    The Supreme Court has long required every plaintiff in federal court, including individuals, corporations, and the states, to suffer a personal injury caused by the defendant that can be redressed by the Court. This requirement of injury, known as standing, is a constitutional prerequisite to jurisdiction that cannot be waived by the parties or the Court. The Justices have repeatedly said that standing is necessary to maintain the appropriate separation of powers between unelected, life tenured federal judges and the elected branches of government.

    President Obama’s new immigration regulations, collectively known as DAPA, seek to change the immigration status of approximately four million undocumented aliens who are parents of children who are either legal citizens or legal resident aliens. Texas argues that only Congress has the power to alter the legal status of those immigrants.

    Texas may disagree strongly and sincerely with the President’s policy and/or think such a policy is illegal, but it may only challenge that policy in federal court if it has suffered an injury sufficient to satisfy the Court’s standing doctrine. The primary injury Texas has alleged in this lawsuit is that it will incur increased expenses because, once the regulations go into effect, Texas will feel obliged to provide driver’s licenses at reduced costs to some people with altered immigration status under DAPA. Yet, nothing in DAPA implicates the manner in which Texas provides driver’s licenses to its citizens. The proposed regulations leave all issues relating to Texas driver’s licenses, including their costs, up to Texas.

    Texas also argues that, even though it has the final decision on whether to grant driver’s licenses to DAPA beneficiaries, the need to change or reconsider its current policies gives it sufficient injury to support its lawsuit. Texas also argues that it will incur additional expenses in a host of different ways including “healthcare, law-enforcement, and education costs,” if DAPA goes into effect.

    Texas’ argument fails to support standing because it would allow any state to sue the federal government every time either Congress or the president increases or decreases the number of legal immigrants in this country.  Whenever the federal government changes immigration requirements, both the states’ expenses (in terms of its services) and revenues (through taxes now collected from more legal residents) “may” go up or down. But changes in Texas’ public policy because of those shifts remain completely up to the State of Texas.

    If the states could sue the federal government every time either Congress or the president passes legislation that alters how Texas manages its own public policy due to the number of people lawfully in the state, virtually all federal policy (beyond immigration law) will be transferred from elected officials to federal judges. The very purpose of the standing doctrine is to prevent that transfer of power.

    Texas relies on the Court’s 5-4 decision in Massachusetts v. EPA where the justices allowed Massachusetts to challenge decisions made by the EPA relating to global warming which allegedly harmed the coastline in that state. But, in that case Massachusetts asserted that its own sovereign property was being damaged by allegedly illegal federal policies. In this case, Texas remains sovereign over all of its internal policies and all of its property.