ACSBlog

  • December 31, 2014
    Guest Post

    by Leslie Bailey, Staff Attorney, and Paul Bland, Executive Director, Public Justice. This post first appeared at the Public Justice Blog.

    USA Today has run a startling and powerful editorial that shines a bright light on a dark practice. All too often, corporations that have manufactured defective and sometimes deadly products, or are engaged in other severely illegal behavior, ask courts to cover up the wrongdoing. Through the excessive use of secrecy orders, far too many courts have sealed evidence and allowed corporations to conceal facts that – if they had become publicly known – would have stopped dangerous and illegal behavior.

    In particular, USA Today focuses on the case of Rich Barber, whom we had the privilege of successfully representing in a challenge to abusive court secrecy. Rich’s son was killed because a Remington rifle had fired without the trigger being pulled due to a design defect that Remington knew about and concealed for decades. USA Today argues that a pattern developed over a number of cases: a particular plaintiff would discover key internal documents of the gun manufacturer relating to the defect and its knowledge, and Remington would settle the cases and demand (and get) broad secrecy orders sealing up the evidence. As a result, the public didn’t learn of the defect for many years, and many more people died. 

    USA Today notes that Rich Barber’s work, and that of Public Justice, helped break down this wall of secrecy. Rich championed important legislation in Montana that now restricts courts from sealing records in cases involving public safety.

    I urge you to read USA Today’s editorial in its entirety, and to share it with others. Its editorial board put the entire problem in perspective:

    Clever use of court secrecy – confidential settlements and ‘protective orders’ to seal documents – helped keep evidence of the rifle’s potential dangers under wraps. Had court documents been public, injuries might have been prevented and lives saved. 

  • December 29, 2014

    by Jeremy Leaming

    In an interview for Montana Public Radio, retired state supreme court Justice James C. Nelson urged more people to pay attention to the deluge of money being spent by politically conservative interests to shape the makeup of state courts, which hear and decide thousands of matters every year affecting all parts of our lives and communities.

    Nelson (pictured), speaking with MTPR News Director Eric Whitney, cited studies sponsored by ACS that show effects of the flooding of money from, primarily business interests into state judicial elections – 89 percent of all state court judges face voters in some type of election. And the financial impact, driven by politics or ideology, on the judicial system is not good.

    In the interview, which has aired over the last several days and runs a bit longer than 8 minutes, Nelson focused on research released in October by ACS, Skewed Justice. It showed, among other items, a disconcerting impact special interests are having on the outcome of criminal justice cases. (Nelson also noted the 2013 ACS-sponsored report, Justice at Risk as offering more evidence of the detrimental effect money is having on state supreme courts, which should be impartial.)

    Nelson, citing Skewed Justice, said it revealed that the more TV ads aired during state supreme court judicial elections, the less likely justices are to vote in favor of criminal defendants. Thus, special interests or as Nelson calls them dark forces, are at least putting a thumb on the scale of justice, so-to-speak. One that only the privileged in this country has the means to do.

    Listen to the interview here and read Nelson’s ACSblog post from earlier this year on the Supreme Court cases that have altered precedent, weakening a long tradition of campaign finance regulations in elections.

    [picture by Eric Whitney]

  • December 23, 2014

    by Nanya Springer

    Just because a prisoner relinquishes her freedom doesn’t mean she must also relinquish her freedom of religion. At least that’s the way it’s supposed to be, pursuant to the Constitution’s First Amendment.

    Unfortunately for Sakeena Majeed—and countless inmates in facilities throughout the U.S.—the fact that inmates retain their fundamental constitutional rights is either not well known, or simply not well respected. 

    Majeed argues in a recently filed lawsuit that upon her arrival to serve a 60-day sentence at the Cuyahoga County Jail in Cleveland, Ohio, a corrections officer told her attendance at weekly Christian prayer services was mandatory. When she objected to mandatory participation, explaining she was Muslim, the corrections officer threatened to send her to solitary confinement. Majeed was therefore forced to attend Christian services every Friday for the duration of her sentence, at one point being publicly mocked by another corrections officer for not actively participating in the worship.

    This is not a difficult case if the corrections officer is found to have coerced Majeed into religious practice. The Supreme Court has held repeatedly and unequivocally that the Constitution prohibits the government from compelling individuals to engage in religious practices, and that includes inmates. 

    Though not a difficult case, it is one that occurs far too often, as Rob Boston of Americans United for Separation of Church and State points out. Boston notes that coercing inmates to participate in faith-based programs and services is not an uncommon occurrence in American jails and prisons. Even following release, former inmates have been compelled to participate in religious-themed programs as a condition of parole.

    Majeed’s case is indicative of a broader trend, one in which government institutions abuse their authority by forcing religion on a captive and powerless population. Prisoners give up many rights, but their right to engage (or not engage) in a faith of their choosing isn’t one of them.  

  • December 19, 2014
    Guest Post

    by Nicholas Bagley, Assistant Professor of Law, University of Michigan Law School. This piece first appeared at The Incidental Economist.

    Before the Supreme Court granted King v. Burwell, the Journal on Health Politics, Policy and Law invited me to write a counterpoint to an essay by Jonathan Adler and Michael Cannon, two of the architects of the litigation. I’m pleased to report that drafts of their point and my counterpoint are now available.

    Writing the counterpoint allowed me to pull together a punchy, non-technical, and thorough explanation for why I think the challengers should lose this case. It also gave me a chance to emphasize the strongest argument in the government’s favor—a point that’s at risk of getting lost in the fog of statutory analysis.

    To prevail, it’s not enough for the King challengers to show that it’s possible to read the ACA to eliminate tax credits from states that refused to set up their own exchanges. They must also demonstrate that the ACA does so unambiguously—and that the IRS’s contrary interpretation is therefore unreasonable. Under Chevron, if the ACA could be read in a couple of different ways, the courts owe deference to the IRS’s authoritative decision about how best to read it.

    The challengers must therefore believe that the judges and commentators who read the statute differently than they do—including yours truly—are all behaving unreasonably. That’s an extraordinary claim, one that, as Adrian Vermeule has noted, “verges on self-refutation.” As I explain in my counterpoint:

    [E]ven if you think that Adler and Cannon’s [interpretation] is plausible, maybe even attractive, the contrary interpretation offered by the government is at least reasonable. That brings me to the aspect of their argument that troubles me the most: their unyielding conviction that they’ve identified the only possible construction of the ACA. Nowhere do they so much as acknowledge the possibility that maybe, just maybe, they’re wrong.

    That’s because they can’t admit to doubt. Because of the deference extended to agency interpretation, doubt means they lose. But their unwillingness even to acknowledge ambiguity reflects an important difference between legal advocacy and neutral interpretation. To be clear, Adler and Cannon deserve immense credit for their lawyerly ingenuity: they’ve constructed a facially plausible argument in support of an exceedingly strange interpretation of the ACA. But the courts would violate their obligation of fidelity in statutory construction if they mistook that ingenuity for genuine obeisance to congressional will. The latest challenge to the ACA is political activism masquerading as statutory restraint.

  • December 19, 2014

    by Rebekah DeHaven

    This week we saw a strong ending to the 113th Congress with the confirmation of all twelve district court nominees who were on the Senate floor. On Tuesday, December 16, the Senate confirmed all nominees by voice vote, with the exception of one who was confirmed by a roll call vote (noted below):

    • Haywood Gilliam, Northern District of California;
    • Amit Priyavadan Mehta, District of D.C.;
    • Jorge Alonso, Northern District of Illinois;
    • John Blakey, Northern District of Illinois;
    • Allison Burroughs, District of Massachusetts;
    • Stephen Bough, Western District of Missouri, 51-38;
    • Joan Azrack, Eastern District of New York;
    • Loretta Biggs, Middle District of North Carolina;
    • Robert Pitman, Western District of Texas;
    • Amos Mazzant, Eastern District of Texas;
    • Robert Schroeder, Eastern District of Texas; and
    • Elizabeth Dillion, Western District of Virginia.

    These votes bring 2014 to a close with an impressive total of 89 judicial confirmations. The 113th Congress concludes with only 42 current judicial vacancies and 25 future vacancies. When President Obama took office in 2009 there were 55 current judicial vacancies, and this week's votes finally brought the current number of vacancies below where the President began. In President Obama’s six years, there have been 307 confirmations, adding significant diversity to the federal bench.

    When the Senate returns in January there will be 43 current vacancies and 24 future vacancies.[1] Of the 43 current vacancies, 12 are now considered judicial emergencies. All pending nominations were returned to the President at the end of the Senate session, and President Obama will need to re-nominate them at the beginning of the 114th Congress.



    [1] A Western District of New York future vacancy will become current on 1/3/2015.