ACSBlog

  • June 6, 2017
    Guest Post

    *This piece originally appeared on Take Care.

    by Douglas NeJaime, ACS Board of Academic Advisors, Professor of Law and Faculty Director, Williams Institute, UCLA School of Law and Reva Siegel, ACS Board Member and Nicholas deB. Katzenbach Professor of Law, Yale Law School.

    Religious exemptions from laws that require doctors to care for patients, employers to pay employees, or store owners to deal with customers in a respectful and nondiscriminatory way can hurt and demean citizens who do not share the claimant’s religious beliefs. Exemption claims of this kind are now spreading under the banner of religious liberty in the culture wars.

    Today, some conservatives are advancing expansive religious exemption claims to stigmatize contraception and restrict women’s access to it. Contraception is “the new abortion.” There are religious conservatives who call certain contraceptive methods “abortifacients,” even in cases where evidence shows that the methods do not operate in ways that satisfy their religious definition of abortifacients. Others oppose all methods of contraception as encouraging “a contraceptive mentality” that separates sex and reproduction.

    These claims about contraception are connected not only to abortion but also to same-sex marriage. As we documented in our 2015 Yale Law Journal article, “Conscience Wars,” many religious conservatives object to contraception, abortion, and same-sex marriage in part because they divert sex and marriage from procreative ends.

  • June 2, 2017
    Guest Post

    by Stephen Rushin, Assistant Professor of Law, University of Alabama School of Law

    While many have welcomed the increased national interest in police accountability, critics, including President Donald Trump and police unions, have warned of a so-called “war on cops.”  To their credit, there is evidence that ambush killings of police officers increased in 2016, as did the number of total police officers killed in fatal shootings. But it is difficult to know whether these numbers are part of a larger pattern, or merely a statistical aberration.

    Sen. John Cornyn (R-Texas) and Rep. Ted Poe (R-Texas) do not want to take any chances. In the “Back the Blue Act,” the two legislators (along with several co-sponsors) propose several alterations to federal law meant to protect police officers. Ultimately, though, there is serious reason to doubt whether this measure would make local law enforcement substantially safer. And it is a virtual certainty that, if passed, this law would severely hamper efforts to hold police officers accountable for wrongdoing.

    The measure would create new federal crimes for the assaulting or killing of federally funded law enforcement officers. It would limit habeas relief for some cases involving the killing of a police officer. And it would expand the federal death penalty to cases involving the killing of police officers. There is a lot to say about this bill—much of which has already been covered in depth by other media outlets or advocacy organizations.

  • June 2, 2017
    Guest Post

    by LaJuana Davis, Professor of Law, Samford University Cumberland School of Law

    Four mothers of Mississippi schoolchildren filed a federal civil rights lawsuit last week charging the state has failed to provide for public education under the requirements of an 1870 law that set conditions of the state’s readmission to the Union following the Civil War. The suit’s plaintiffs, represented by the Southern Poverty Law Center (SPLC), have asked the court to void amendments to the state’s education article enacted after Reconstruction and restore education rights guaranteed under the 1868 constitution. Specifically, the suit claims that the state violated the Congressional Act of 1870 that conditioned Mississippi’s readmission to the Union on the state agreeing to never deprive its citizens of “school rights and privileges” secured by the 1868 state constitution. However, the complaint alleges, subsequent amendments to those school guarantees have resulted in a minimalist education clause that simply allows the legislature discretion to provide for whatever public school education that the legislature sees fit.

    The suit’s lead defendant, Mississippi Gov. Phil Bryant, responded in a statement that the suit was simply a fundraising attempt by SPLC “on the backs of Mississippi taxpayers.” While Gov. Bryant may be irritated by the second challenge to Mississippi’s education scheme brought by SPLC in a year, Mississippi has had far fewer education adequacy lawsuits than most states, largely due to the minimal standard of education that its state constitution requires.

    Because Mississippi’s education clause requires no particular standard of education to be provided, the plaintiffs claim that some schoolchildren are learning in overcrowded classes   taught by inexperienced teachers and that those children have access to fewer educational resources and opportunities than students in other school districts. Most of the inequalities are being shouldered by majority-Black school districts, which may be affecting their students’ academic achievement.

  • June 1, 2017
    Guest Post

    by Terri Gerstein, Leadership in Government Fellow, Open Society Foundations; Former Labor Bureau Chief, the Office of New York State Attorney General Eric Schneiderman.

    A sandwich maker in a shop that is part of a national chain. A cub reporter, fresh from college, reporting on news from local courthouses. A woman who travels all over the state to draw blood for insurance company medical exams. What did they have in common? All of them were subject to out-of-control non-compete agreements.

    Use of non-compete agreements is growing, with a recent report indicating that nearly one in five employees are currently subject to these constraints. These agreements restrict future employment, prohibiting an employee from taking a new job with a competitor of their current employer. Generally, they contain time and geographic limitations, preventing the employee from working for a competitor for, say, two years and within a 75-mile radius.  

    Historically, non-competes have been used in relation to high-level employees, with special skills or knowledge of confidential information or trade secrets. Think secret formula.

    But more and more rank-and-file workers are constrained by non-competes. Think no secret formula, no highly-classified customer list, no special skills at all. Workers agree to this for a simple reason: they need a job. The expanding use of non-competes constrains workers’ job mobility and ability to improve their lives; it also thwarts workers’ ability to bargain for better wages or conditions. If the boss knows you cannot go anywhere else, there is no need to give you a raise.

  • June 1, 2017
    Guest Post

    *This piece is part of the ACSblog Symposium: 2017 ACS National Convention. The symposium will consider topics featured at the three day convention, scheduled for June 8-10, 2017. Learn more about the Convention here

    **This post is based on written testimony for a 5/15/17 California State Senate hearing on SB 185.

    by Karin D. Martin, PhD, Assistant Professor of Public Management, John Jay College of Criminal Justice & The Graduate Center, City University of New York

    Monetary penalties—fines, fees, surcharges, restitution and any other financial liability from contact with the criminal justice system—are a ubiquitous and growing feature of punishment in the U.S. On the one hand, these sanctions have the potential to achieve the aims of punishment with far fewer economic and social costs than incarceration. On the other hand, monetary sanctions produce disproportionate harm—particularly among those least able to pay—at the same time that they create a perverse incentive for courts, municipalities and other entities that can both create and collect monetary sanctions.

    How these sanctions are enforced can be quite particularly problematic. Jurisdictions do everything from entering civil judgments to revoking or extending probation/parole or incarcerating people for non-payment. Unpaid debt also subjects people to regular court summons, the issuance of warrants and pursuit by private collection agencies. Many jurisdictions also do something that too often directly undermines people’s ability to pay their court-ordered debt: suspend driver’s licenses.