February 2018

  • February 28, 2018
    Guest Post

    by Daniel S. Goldman, former Assistant U.S. Attorney for the Southern District of New York

    On February 16, Special Counsel Robert S. Mueller III unsealed a 37-page indictment charging 13 Russian nationals and three entities principally with conspiring against the United States to infiltrate the 2016 election through a sophisticated and complex scheme that included the use of stolen identities of American citizens to surreptitiously influence and infiltrate social media sites such as Facebook, Instagram and Twitter. Although each United States intelligence agency has definitively stated, without equivocation, that Russia meddled in the 2016 presidential election, those agencies were constrained to explain how Russia did so with any detail because of legal restrictions on classified material. Yet for the first, time, this indictment provides extensive detail about how one aspect of this Russian meddling in the 2016 election occurred.

  • February 28, 2018
    Guest Post

    by A.H. Neff

    *This piece was originally posted on Crooks and Liars.

    "There's no limit to what can be accomplished if it doesn't matter who gets the credit."

    Versions of this team-first principle have been attributed to, among others, Benjamin Jowett, Father Strickland, William T. Arnold, Harry Truman, Ronald Reagan, Charles Edward Montague, and Edward Everett Hale. 

    It might not be possible to say conclusively who deserves credit for this insight - original-authorship credit, that is - but it is pertinent to Special Counsel Mueller's investigation, especially when his investigation focuses on Trump, his family, and their businesses.

  • February 28, 2018
    Guest Post

    by Gabe Roth, executive director, Fix the Court

    On April 16, the nine justices of the U.S. Supreme Court will take the bench for arguments in an obscure section of the tax code. Then, about an hour later, Justice Alito will leave the bench before the start of a patent infringement case, WesternGeco LLC v. Ion Geophysical Corp.

    The Chief won’t be putting his fellow Bush 43 appointee in timeout; rather, Alito will be recused due to his stock ownership in WesternGeco’s parent company, Schlumberger. According to his most recent financial disclosure report, Alito held between $1 and $15,000 in Schlumberger shares at the end of 2016. (Justices’ holdings are given in ranges, and the 2017 report won’t come out until June.)

  • February 28, 2018
    Guest Post

    by Katie Eyer, Associate Professor at Rutgers Law School

    *Professor Eyer’s Issue Brief on this subject, Sex Discrimination Law and LGBT Equality is available on the ACS website.

    Since the 1970s, LGBT employees have argued that discrimination against them violates Title VII’s ban on discrimination “because of…sex.”  Despite the fact that such arguments already had support under the growing body of precedent construing Title VII’s sex discrimination provisions, the courts—unable to believe that Congress could have intended for LGBT employees to be protected—initially rejected those arguments. The Second Circuit’s recent decision in Zarda v. Altitude Express—the latest in a string of decisions recognizing that anti-LGBT discrimination in the workplace is discrimination “because of…sex”—further demonstrates that, stripped of such extra-textual assumptions about Congressional intent, anti-LGBT discrimination clearly is also sex discrimination.

  • February 27, 2018
    Guest Post

    by Alice O’Brien, General Counsel, National Education Association

    For the fourth time in six years, the Supreme Court yesterday took up the question of whether a state may require public sector employees to pay for the collective representation a union provides as part of the state’s chosen system of labor management relations. And yet again, at argument, Justice Kennedy came in swinging against a strawman – teacher tenure.

    As the Solicitor General of Illinois explained the interest that state has in a “stable, responsible, independent counterparty” in bargaining, the Justice sarcastically queried whether that interest extended to promoting “teacher tenure.” In raising the issue, Justice Kennedy was returning to a well-trod theme. In all three of the arguments since Knox involving fair share fees, Kennedy has viewed tenure –inexplicably – to be somehow relevant to the constitutionality of fair share fees.