ACSBlog

  • May 2, 2017
    Guest Post

    *This piece originally appeared on StateAG.org.  

    by James Tierney, Former Maine Attorney General and Lecturer in Law at Columbia Law School

    In a letter sent last week, 21 state attorneys general and the Office of Consumer Protection of Hawaii urged Secretary of Education Betsy DeVos to immediately reconsider “the Department of Education’s revocation of critical student loan service reforms.” The policy and guidance memoranda withdrawn by the Department addressed industry-wide procedures by student loan servicing companies that were the subject of investigations and enforcement actions by the Illinois and Washington state attorneys general, among others.

    The April 24 letter highlights some of the industry practices that contributed to more than a quarter of borrowers being delinquent or in default on a student loan, according to a report by the Consumer Financial Protection Bureau (CFPB):

    “In its 2015 report, the CFPB identified troubling student loan servicer practices – including paperwork processing errors and failure to provide accurate information – that discourage the use of income-driven repayment plans. By reforming service incentives and strengthening consumer protections, the rescinded guidance sought to eliminate the loan servicing failures that keep borrowers from entering affordable repayment plans.” — April 24 letter from 21 state attorneys general to Department of Education

    According to Forbes, 44 million borrowers owe approximately $1.3 trillion in student loan debt, making it the second-largest type of consumer debt behind mortgages.

  • May 2, 2017

    by Christopher Wright Durocher

    In his speech at the National Rifle Association’s (NRA) annual meeting last Friday, President Trump reiterated his unwavering support for the organization and its anti-gun violence prevention agenda, promising “to the NRA—I will never let you down!” As Congress considers legislation that would virtually eliminate states’ gun permitting regimes, President Trump’s promise could turn out to be a threat to public safety.

    If there is a bright light in efforts to address gun violence, it is the work that state and local governments have pursued in recent years to enact sensible regulations. In 2016, for example, voters in California, Nevada* and Washington State  approved gun violence prevention ballot measures to, among other things,  expand background checks and enhance mechanisms to remove firearms from those determined to be a danger to themselves or others. Since the 2008 landmark ruling in District of Columbia v. Heller, the federal judiciary has also largely upheld the right of states and cities to protect their residents from gun violence through these and other types of regulations, including restrictions on carrying concealed weapons.

    Earlier this year, however, Sen.  John Cornyn (R-Texas) and Rep. Richard Hudson (R-N.C.) introduced legislation that could hamstring these local efforts and undermine states’ ability to determine their own gun policy. Sen. Cornyn’s Constitutional Concealed Carry Reciprocity Act and its House companion bill would permit anyone allowed to conceal carry in their home state (including residents of states that require no permit for concealed carry) to conceal carry in any state, regardless of that state’s gun laws. The House version of the bill goes one step further and enables residents to circumvent their own state’s conceal carry permitting requirements by allowing them to apply for a permit from another state with less restrictive gun regulations. This would give one state the power to essentially nullify all other states’ conceal carry laws and nationalize the most relaxed permitting requirements.

  • April 27, 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

    by Orly Lobel, Professor of Law, University of San Diego School of Law

    I am pleased to be a speaker at the ACS 2017 National Convention, which takes place in June 8-10 in Washington D.C. My talk, which will be part of a panel discussion entitled A Second Gilded Age? The Consolidation of Wealth and Fracturing of Employment, will bring together several lines in my research: the gig economy, platform regulation and governance, human capital, intellectual property and antitrust law. In April 2016, I had the honor to deliver the 12th Annual Pemberton Lecture at the 9th Circuit Court of Appeals. I delivered a paper called The Gig Economy and the Future of Employment and Labor Law, which was later published in the USF Law Review and can be read here. I ask: What is the future of employment and labor law protections when reality is rapidly transforming the ways we work? What is the status of gig work and what are the rights as well as duties of gig workers? I propose four paths for systematic reform, where each path is complementary rather than mutually exclusive to the others.

  • April 26, 2017
    Guest Post

    by Brian W. Stull, Senior Staff Attorney, Capital Punishment Project at the American Civil Liberties Union

    Monday’s argument in Davila v. Davis involved a technical question of habeas corpus procedure: can a prisoner’s failure to raise the ineffectiveness of his direct appellate counsel in a collateral state post-conviction proceeding be excused by the ineffectiveness of the post-conviction lawyer? But the answer may turn on the more familiar judicial concern over opening floodgates. Some of the justices appeared concerned that the extension of Martinez v. Ryan and Trevino v. Thaler Davila proposed would do just that. To ground that discussion in facts, Justice Breyer asked for empirical data. While the advocates did not have ready answers at the lectern, answers were relatively easy to find at the computer.

    Justice Breyer asked petitioner Davila’s attorney to “what extent has the Martinez claim proved a burden on Federal court? Is there any empirical information?” Counsel did not have a ready answer. Justice Breyer later asked the same of the Solicitor General of Texas, who repeated the figure of 3,800 cases, which Texas had previously cited in its Respondent’s Brief.

    It is easy to reproduce this figure by searching on Westlaw for those district court decisions citing either Martinez or Trevino. Sure enough, the number is nearly exact (3,837). But spot checking of the 3,800 leads to at least three pertinent observations. First, not all cases citing one of the two decisions involved a claim under Martinez/Trevino. A court may cite Martinez or Trevino for a proposition stated within, without deciding a claim based on the decisions.

  • April 26, 2017
    Guest Post

    by Joe Mendelson, Former Legal Director at the International Center for Technology Assessment, Former Democratic Chief Climate Counsel for the Senate Environment and Public Works Committee and Author of 1999 Petition Seeking EPA Regulation of Carbon Pollution that Led to the Litigation in Massachusetts v. EPA; David Bookbinder, Former Chief Climate Counsel at the Sierra Club and Current Chief Counsel at the Niskanen Center; and Lisa Heinzerling, Justice William J. Brennan, Jr. Professor of Law, Georgetown Law and  Lead Author of the Petitioners’ Briefs in Massachusetts v. EPA

    Ten years ago this month, the Supreme Court issued its landmark ruling in Massachusetts v. EPA, holding that the Clean Air Act gives the Environmental Protection Agency the power to control the pollutants that cause climate change and that the George W. Bush administration had illegally refused to exercise this authority based on political considerations that had no basis in the Clean Air Act.

    The Trump administration has marked this anniversary with dubious ceremony. Last week, President Trump issued an executive order directing the rollback of Obama-era regulations that addressed climate change. Earlier, Trump's EPA chief, Scott Pruitt, publicly questioned the established scientific evidence of the link between human activities and rising temperatures. Pruitt, a lawyer, not only stepped into an area beyond his expertise but also managed to get the law wrong at the same time. Congress, Pruitt claimed, had never acted, and thus EPA's efforts to use the Clean Air Act to bring carbon pollution under control were illegitimate. The claim reflects an astonishing ignorance about the law that he is charged with implementing.

    Far from occurring in a legislative vacuum, EPA's carbon pollution controls are the culmination of a 50-year historical path to limiting these pollutants. It started in 1965 when during a speech to Congress President Lyndon B. Johnson spoke of modernizing the Clean Air Act to address air pollution threats before they occurred. He noted that “this generation has altered the composition of the atmosphere on a global scale through…a steady increase in carbon dioxide from the burning of fossil fuels.” During the following legislative debate on the Clean Air Act where Congressman Helstoski urged action because, “It has been predicted that by the year 2000, the amount of atmospheric carbon dioxide may have increased by about 50 percent; and many believe that this will have a considerable effect on the world’s climate.”