ACSBlog

  • March 25, 2014


    This morning, the Supreme Court heard oral arguments in Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius. Adam Liptak of The New York Times provides a helpful analysis of the cases while Robert Barnes at The Washington Post breaks down the “vocally devout justices” and the role religion may play in their decision. For more discussion, watch an ACS briefing on the dual challenges known as the “contraception mandate cases.”
     
    Twenty-three years ago, Anita Hill accused then-Supreme Court nominee Clarence Thomas of sexual harassment. In an interview with Hill, Dahlia Lithwick at Slate reviews the new documentary Anita and describes how “Hill’s testimony had a huge impact on sexual harassment law, and in the public discourse.”
     
    Officials in Mississippi are waiting for approval from the state supreme court to execute Michelle Byrom, a mentally ill woman accused of murdering her husband. Andrew Cohen at The Atlantic explains why “the case of Michelle Byrom contains the unholy trinity of constitutional flaws sadly so common in these capital cases.”
     
    The Obama administration is expected to propose “an end to the [National Security Agency’s] mass collection of Americans' phone call data.” The Guardian’s Spencer Ackerman has the story.
     
    Karen Tani at Legal History Blog reviews The Crusade for Equality in the Workplace: The Griggs v. Duke Power Story by the late Robert Belton.

     

  • March 24, 2014
    Guest Post
    by Kent Greenfield, Professor of Law and Law School Fund Research Scholar, Boston College Law School; Faculty Advisor, Boston College Law School ACS Student Chapter
     
    I bet you’ve never thought of those three things together. Now, thanks to a couple of ACS board members, you have reason to.
     
    One of the dirty secrets about chocolate is that much of the world’s cocoa production, particularly in west Africa, depends on forced child labor. Chocolate makers around the world have long faced allegations that they know of and benefit from widespread human rights violations. Hershey, for example, controls 42 percent of the U.S. chocolate market, admits that its “major sourcing countries” include The Ivory Coast and Ghana, and acknowledges that abusive child labor practices that violate international law are rampant in those countries. (By some accounts, as much as 89 percent of children in the Ivory Coast are involved in cocoa production.) But there is no mechanism to learn whether Hershey and other like companies are complicit in such abuses, nor is there a meaningful way to hold them accountable if so.
     
    But that may be changing, thanks to ACS board member Reuben Guttman and his colleagues at Grant and Eisenhofer. Last week, Grant and Eisenhofer won an important ruling against Hershey in Delaware Chancery Court, when Hershey lost its summary judgment motion in a "books and records" suit brought on behalf of Hershey shareholders who want to learn more about its role in taking advantage of forced child labor.
     
    An early procedural victory in Delaware business court might not look like much at first glance, but it could turn out to be a significant advance in holding corporations accountable for international malfeasance. And if it does, ACS will have played an important role. Indeed, this story showcases the unique capacity of ACS to bring together the ideas of academics with innovative and visionary litigators who can bring those ideas to bear.
     
  • March 24, 2014

    As the Supreme Court prepares to hear Sebelius v. Hobby Lobby Stores Inc. and Conestoga Wood Specialties Corp. v. Sebelius, Leslie C. Griffin at Hamilton and Griffin on Rights discusses why “Conestoga could provide a more important—and dangerous—precedent than Hobby Lobby.” Walter Dellinger, Member of the ACS Board of Advisors, writes an op-ed for The Washington Post explaining why the Court should “reject claims of religious entitlement that so greatly burden the interests of others.” For more on the “contraception mandate” cases, read Professor Griffin’s ACSblog post on the Religious Freedom Restoration Act and more.
     
    Just weeks after Arizona Gov. Jan Brewer vetoed legislation that would allow businesses to discriminate on the basis of religion, an attempt in Georgia, to pass a similar bill last Thursday, has failed. Georgia Republican State Sen. Josh McKoon “attempted to attach the measure to two unrelated bills in the state legislature, hoping to get the controversial measure passed on the last day of the session.” Adam Serwer at MSNBC has the story.
     
    Writing for the The New York Times, Member of the ACS Board of Directors Linda Greenhouse comments on the most recent decision from the high court regarding railroad rights-of-way to reveal “how far the Supreme Court should go to acknowledge the real-world context of its decisions.”
     
    The public’s call for more transparency at the high court continues. At Jost On Justice, Kenneth Jost comments on the “Supreme Court’s obsession with secrecy.”
     
    Gerard Magliocca at Concurring Opinions reveals how the “Four Horsemen”—the four conservative justices who opposed President Roosevelt’s New Deal programs from 1932–1937—made it to the Supreme Court. 
  • March 21, 2014

    by Nicholas Alexiou

    The Religious Freedom Restoration Act (RFRA) should not be read to provide for-profit employers the extraordinary power to block women workers from access to the most effective contraceptive methods, states an amicus brief lodged with the Supreme Court on behalf of the Guttmacher Institute and Professor Sara Rosenbaum, an expert in law and policy surrounding healthcare concerns.

    The friend-of-the-court brief authored by Dawn Johnsen, a distinguished professor at the Indiana University Maurer School of Law (and a member of the ACS Board), and includes former U.S. Solicitor General Walter Dellinger as Counsel of Record explains that the for-profit companies – an arts-and-crafts chain store and a cabinet manufacturer – have “failed to recognize the vastly different effectiveness and cost of different forms of contraception, the substantial degree to which cost determines which contraceptive methods are actually used, the health and social factors that affect a woman’s method of choice, and the resulting consequences for women’s health, family and well-being, and risk of unintended pregnancy and abortion.”

    In the brief, Johnsen and Dellinger note that cost-sharing promoted by the Affordable Care Act is critical to allowing every woman to have access to the most effective forms of contraception available. It is claimed that hormonal intrauterine devices (IUD) are “45 times more effective than oral contraceptives and 90 times more effective than male condoms in preventing pregnancy based on typical use” and that “[a]lmost one-third of American women report that they would change their contraceptive method if cost were not an issue.” However, the cost of IUDs is an overwhelming issue for many Americans as implantation can cost “a month’s salary for a woman working full time at minimum wage.”

    To rule in favor of the corporations in these cases “would deny to female employees and their insured family members vital access to the full range of contraceptive methods, inflicting financial harm and erecting obstacles to needed medical care.”

  • March 21, 2014
    Guest Post
    by Reuben A. Guttman, Director, Grant & Eisenhofer; Member, ACS Board of Directors
     
    This post originally appeared on The Global Legal Post.
     
    In his Gettysburg Address of 1863, United States President Abraham Lincoln spoke about a "government of the people, by the people and for the people." Fast forward 151 years, and the meaning of that phrase is not so clear. Who runs government? Is the United States Federal Government run in all instances by those who have been elected by the people? As the government struggles to govern and enforce regulatory compliance in an era where technological advancement and globalization have created new challenges, its reliance on the private sector or private contractors has reached new peaks.
     
    Extensive use of private contractors
     
    Private contractors, of course, were used by the Union Army during the Civil War; they built the nation's nuclear weapons complex during World War II and have supplied the military with armaments from guns to fighting vessels. That the government buys things from the private sector is no surprise. Nor is it a surprise that the government buys discrete services from the private sector. Government buildings, for example, are cleaned by private contractors.
     
    Yet, how much can the government contract out before it is delegating functions that it should perform itself? Political scientists talk about the problem with contracting out "inherently governmental functions" but what does that term really mean? Is it like what former Supreme Court Justice Stewart said about obscenity, "I know it when I see it"? Or is there some objective definition?
     
    Delegating to the private sector
     
    It may be easier to answer these questions after looking at how much has been delegated to the private sector. Wake up in the morning and drive to work in a hurry and you may be turned in for a speeding ticket by a private contractor that operates and, in theory, calibrates equipment that clocks drivers and photographs speeders. If your infraction is markedly more serious than a speeding violation and prison time is mandated, you may find yourself in a jail run by a private contractor and staffed with private prison guards. While your criminal case will still be heard by judge who is a government employee, the same cannot be said for all civil cases as civil dispute resolution is actually being privatised.