November 2010

  • November 9, 2010
    Guest Post

    By Elizabeth B. Wydra, Chief Counsel, Constitutional Accountability Center (CAC). Wydra's analysis is cross-posted at CAC's Text & History blog.
    You know it's been a less-than-thrilling morning at the Supreme Court when the only time the courtroom audience really perked up was at a rather inexplicable joke by Justice Stephen Breyer about a "9,000-foot cow." (Something about how mountainous Switzerland could discriminate against other European countries' milk products by enacting the facially neutral law that it will only buy milk from cows that graze in meadows above 9,000 feet.) Perhaps that is inevitable in a case that involves preemption doctrine, state contract principles of unconscionability, and forced arbitration. But as complicated as the legal argument in AT&T v. Concepcion may have been in the Court today, it was perhaps just as impenetrable as what is at the core of the case: the lengthy, legalese-heavy, fine print that many of us never read in our cell phone contracts (or employment contracts, health insurance agreements, or other contracts that consumers are effectively forced to sign these days in order to obtain goods and services). And in many of those contracts-as in the contract the Concepcions signed with AT&T-the fine print will require that all disputes be resolved through arbitration, not through the court system, while banning class actions. Accordingly, the Court in Concepcion could decide whether individuals can band together to hold big corporations accountable for misconduct-including discrimination in the workplace and widespread consumer fraud in the marketplace-or whether corporations can get away with wrongdoing so long as they do it on an individually small scale, making individual claims too small to pursue.

    The Concepcions sued AT&T on behalf of themselves and all others who were charged $30.32 in sales tax for a supposedly free mobile phone. If successful, the class action could have yielded millions of dollars for all of AT&T's customers who were improperly charged. But because the arbitration agreement contained a provision banning class actions, the Concepcions were faced with fighting just for their own $30, an amount over which it's hardly worth the time and expense of pressing a legal claim against a corporate giant like AT&T. The company would essentially get away with allegedly fraudulent behavior because the fraud was, for each consumer, not worth fighting over when the expense of filing fees, lawyers, etc., are taken into account.

  • November 9, 2010
    A group of same-sex couples is joining the battle to defeat the so-called Defense of Marriage Act (DOMA), which bars government recognition of gay marriages.

    The couples are represented by two separate federal lawsuits lodged on their behalf by the Gay and Lesbian Advocates and Defenders (GLAD) and the American Civil Liberties Union, The New York Times reports.

    As The Times notes, "The two new lawsuits, which involve plaintiffs from New York, Connecticut, Vermont and New Hampshire, expand the attack geographically and also encompass more of the 1,138 federal laws and regulations that the Defense of Marriage Act potentially affects ...."

    The lawsuit brought by GLAD is its second one challenging the constitutionality of DOMA. In July, U.S. District Court Judge Joseph L. Tauro ruled in Gill et al v. Office of Personnel Management et al, that the law is unconstitutional on a number of fronts. Not only does the law violate the equal protection clause, it subverts the rights of states to regulate marriage, Tauro concluded. "The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and in doing so, offends the Tenth Amendment. For that reason, the statute is invalid," the judge wrote.

    GLAD's new lawsuit, Pedersen et al. v. Office of Personnel Management challenges the law's denial of "protections and responsibilities to married gay and lesbian couples."

    In a press statement, GLAD's Civil Rights Project Director Mary L. Bonauto said, "DOMA must fall. In 1996, when Congress passed DOMA, the stated goal was to harm gay people and same-sex families with this law, and sadly, it has succeeded. Married gay and lesbian couples fall through the federal safety nets that exist for other married people. We have to keep the pressure on and get DOMA off the books before it does even more harm."

    As reported by Chris Geidner for Metro Weekly, the ACLU and the law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP are representing Edith Windsor, the widow of Thea Spyer. "Windsor was forced to pay a $350,000 estate bill because of the federal government's refusal to recognize Windsor's marriage to Spyer. Robert Kaplan, a partner at the law firm, told Metro Weekly, "I have an 81-year-old client, and $350,000 is a hell of a lot of money - a huge amount of money that she paid in violation of the Constitution. My client had to pay the government, and she wants her money back. What we're seeking in the case is a check back - with interest."

    In a press statement on the lawsuit, ACLU's Lesbian, Gay, Bisexual and Transgender Project Director James Esseks said, "Edie and Thea were together for 44 years, the last two of which they were lucky enough to spend as a married couple. All Edie is seeking is the same treatment for her marriage that the federal government appropriately gives to married straight couples. It is completely unfair for the federal government to pretend the Edie and Thea were strangers, and to tax them that way."

    The Times notes that while President Obama has called DOMA discriminatory, and for its repeal, the Department of Justice, citing a tradition of defending congressional acts in court, has appealed Judge Tauro's ruling, and is likely to defend the law against the new challenges.

    Earlier this year, Bonauto talked with ACSblog about progress to advance marriage equality - noting the states that now recognize same-sex marriages - and the challenges that remain. Her interview is available here.

  • November 9, 2010

    In his new book, Yale Law Professor Douglas Kysar challenges the United States' current approach to regulating the environment, suggesting a new model that deemphasizes cost-benefit analysis.

    During an ACS event focused on the book, Regulating from Nowhere: Environmental Law and the Search for Objectivity, panelists took a step back from the usual debates about particular environmental issues and engaged in a philosophical discussion about whether our current models for setting environmental policy can actually reflect our ideals.

    "Much of environmental health and safety law is being confused and distorted by applying that wrong lens and so its aims are being misunderstood," Kysar said during the panel discussion, explaining that the current welfare economics approach "condemns laws without really understanding what it is they're intended to do."

    He explained that the cost-benefit analyses policy-makers use to set, for example, acceptable levels of pollutants start with flawed assumptions. One such assumption is that U.S. policies will never affect other nations' policies, obscuring the likelihood that a major shift in U.S. policy would cause other countries to follow suit.

    "I think that today we are at the threshold of an era where we absolutely have to think of planetary governance to an extent," said Sheila Jasanoff, a professor of science and technology studies at the Harvard Kennedy School.

    Jasanoff suggested that we are currently entering a "constitutional moment," in which we will reconsider our constitutional principles in light of our understanding that regulating our environment and our health is a global issue.

    "I think that the question for law that rises and rises is sort of played out in different harmonies throughout Doug's book is what role does American constitutional law have in charting the course toward this new era in which we have to think of supranational governance," Jasanoff said.

    Watch the full discussion below.

  • November 8, 2010
    Guest Post

    By Sandra S. Park, a staff attorney in the ACLU Women's Rights Project. Ms. Park was counsel on the ACLU's amicus brief in Flores-Villar v. United States.
    When a child is born to an unmarried U.S. citizen living abroad, the parent's ability to transmit U.S. citizenship to the child turns on this question: Was the child born to a U.S. citizen father, or mother?

    If the child's mother is a U.S. citizen, the child will automatically be a U.S. citizen at birth, so long as the mother previously had lived in the U.S. for one year, at any age.

    But if only the child's father is a U.S. citizen, the law mandates more: The father must legitimate or legally acknowledge his child and have resided in the U.S. for many more years, at an age set out by statute.

    The law, originally enacted in 1940, is one of the few remaining in the U.S. Code that explicitly discriminates based on gender, and for that reason, has been the subject of a number of equal protection challenges. The Supreme Court first examined the legitimation requirement imposed on fathers in Miller v. Albright (1998), resulting in a splintered plurality opinion. In 2001, the Court revisited the issue in Nguyen v. INS, a case co-counseled by the ACLU, and upheld the legitimation requirement. In an opinion that has been widely criticized, the Court found that the legitimation condition fulfilled the government's interest in assuring that a biological parent-child relationship exists, and that the father and child have a demonstrated opportunity to develop a meaningful relationship.

    On Wednesday, the Supreme Court will hear argument in a challenge to the gender-based residency requirements contained in the law - Flores-Villar v. United States. Ruben Flores-Villar was born abroad in 1974. His U.S. citizen father brought him to this country when he was two months old, legally acknowledged him, and raised him as a single parent. Flores-Villar sought citizenship through his father, but was rejected based on his father's failure to satisfy the residency criteria for unmarried fathers: ten years in the U.S. prior to the child's birth, at least five of which were after the father was 14 years old. When Flores-Villar was born, his father had lived in the U.S. for more than a decade; however, because he was 16 years old, he could not show that five years of his residency occurred after the age of 14. Had Flores-Villar been born to a U.S. citizen mother with the same history of residency, he would have acquired citizenship through his parent.

  • November 8, 2010
    Guest Post

    By David Cole, a professor at Georgetown University Law Center, and counsel to several charities and foundations objecting to expansion of the "material support" statute.
    Last summer, the Supreme Court ruled that the First Amendment did not protect speech advocating peace and human rights if expressed to, or in conjunction with, a foreign group that the United States has designated "terrorist." The Court's decision in Holder v. Humanitarian Law Project employed reasoning that could have broad implications for First Amendment freedoms generally, as it held that the government's interest in denying "legitimacy" to a proscribed organization was a "compelling interest" that justified a content-based law criminalizing speech urging only lawful, nonviolent conduct.

    But two cases now pending in federal courts of appeals threaten to expand still further the reach of laws banning "material support" -- to prohibit aid even to organizations that have never been "designated" as terrorist or otherwise proscribed by the government. Their resolution will be the next front in the struggle to protect civil liberties from the mandate to suppress support for terrorism. They threaten to expand the law far beyond the already broad reach the Supreme Court endorsed in Humanitarian Law Project, and to chill the legitimate humanitarian aid activities of countless charities and foundations across the United States.

    In the first case, United States v. El Mezain, pending in the U.S. Court of Appeals for the Fifth Circuit, a federal judge ruled that individuals can be held criminally liable under the "material support" statute not only for supporting groups the government has formally designated and placed on an official list, but also for supporting non-designated groups, not on any government lists, if the government later proves that the non-designated group was linked to a designated group. The court required no showing that the donor knew or even should have known that the non-designated group was in any way connected to a proscribed organization.

    If this decision is upheld, any charity that provides aid or does work in conflict-ridden regions around the world will be vulnerable to prosecution. Even if the charity engages in due diligence, carefully checks the government's lists of proscribed groups and individuals, and scrupulously avoids funding anyone on the list, it could still be prosecuted. Under this view of the law, there is literally nothing a charity can do to ensure that it will not be prosecuted - short of exiting the field altogether. The decision has such sweeping ramifications that the defendants' appeal has been supported by an amicus brief from a wide variety of charities, foundations, and non-governmental organizations - including the Council on Foundations, which represents 1,750 U.S.-based foundations; the Carter Center, founded by former President Jimmy Carter; the American Friends Service Committee; the Rockefeller Brothers Fund; the conservative Rutherford Institute; and the bipartisan Constitution Project.