• May 15, 2018
    Guest Post

    Sahar Aziz, professor of law and director of the Center for Security, Race, and Rights, Rutgers Law School

    Since taking office, President Trump has prioritized one trait above all else in his cabinet appointees—blind loyalty. He wants people who will obey his orders without question, or they are fired. Picks such as Betsy DeVos for Secretary of Education, Ben Carson for Secretary of Housing and Urban Development, and Jeff Sessions as U.S. Attorney General also demonstrate his preference for candidates willing to undo Obama programs. Given that Obama touted ending America’s illegal torture program, Trump would not hesitate to reinstate it. 

    Thus, Trump’s nomination of Gina Haspel for Director of the Central Intelligence Agency (CIA) is a natural choice. Her extensive professional record, while impressive, evinces she lacks the fortitude to say no to superiors who order her to violate fundamental American values and domestic and international legal norms, like torture. So long as what she is asked to do is deemed legal by the president’s lawyers – however specious their legal reasoning – she will oblige. Some may find this approach appropriate for a political appointee. After all, cabinet members are selected because they agree to implement their boss’s political agenda.>

  • May 14, 2018

    by Lou Virelli, Professor of Law, Stetson University College of Law

    The concept of unconstitutional animus is, of course, on many people’s minds as the Supreme Court continues to mull over the legality of President Trump’s travel ban executive order. A few weeks ago, Stetson University College of Law was home to a day-long discussion of the concept of animus, centered on Bill Araiza's (Brooklyn Law School) 2017 book, Animus: A Short Introduction to Bias in the Law (NYU Press 2017). Links to the webcast of the morning and afternoon sessions are available for free, courtesy of Stetson.

    The conference, held on April 20 at Stetson, started with a panel that discussed the general concept of animus and its workability.  That panel was composed of Dan Conkle (Indiana-Bloomington), Katie Eyer, (Rutgers-Camden), and Susannah Pollvogt (Arkansas). The discussion was spirited, as the panelists had very different views about the usefulness of the animus concept in modern equality law. Those views ranged from enthusiastic support, to a suggestion that courts focus more on renewing traditional and well-established equal protection doctrines, such as tiered scrutiny/suspect class analysis, to a concern that the animus concept serves to distract social justice litigators whose best litigation option is often straightforward rational basis review. 

  • May 11, 2018

    by Deborah Pearlstein, Professor of Law Benjamin N. Cardozo School of Law

    At Wednesday’s hearing before the Senate Intelligence Committee considering her nomination to be CIA Director, Gina Haspel talked a lot about “leadership lessons” – lessons not only reflecting the knowledge and experience she plainly has, but presumably the deeper insights and judgment one gains after trying and failing, as we all inevitably do, to do the right thing at the critical time. The great disappointment of Haspel’s testimony was in how evident it became that she seems to have learned the wrong ones.

    Even before the Wednesday hearing, Haspel’s nomination was opposed by scores of retired military leaders, and an equal number of America’s ambassadors and diplomats; there are likewise many individuals in our intelligence community who cite the same reasons as Haspel’s opponents for thinking America should never go down the torture road again. Our torture program violated the law, endangered our troops, empowered terrorist recruiters, imperiled essential counterterrorism cooperation with our most stalwart allies, did lasting physical and psychological harm both to the prisoners we tortured and the men and women we demanded torture them, and compromised our most basic values as a country. As John McCain put it back it 2005: “"It's not about who they are. It's about who we are." These lessons were hard won indeed.

  • May 11, 2018
    Guest Post

    by Barbara McQuade, Professor from Practice, University of Michigan Law School, and former U.S. Attorney for the Eastern District of Michigan

    The assault on Deputy Attorney General Rod Rosenstein should alarm all of us. In an opinion piece yesterday, Rich Lowry calls for Rosenstein’s firing. Rod Rosenstein Jumps the Shark, May 2, 2018. 

    Rosenstein has been an admirable defender of the rule of law as President Trump has tried to turn the Department of Justice into his personal law firm. 

    Because of the recusal of Attorney General Jeff Sessions, Rosenstein has been serving as the acting Attorney General for the Russia probe. Rosenstein appointed Robert Mueller special counsel and continues to supervise his investigation into links between Russia and the Trump campaign to interfere in the presidential election. 

  • May 11, 2018

    by Hina Shah, Associate Professor of Law and Director of the Women’s Employment Rights Clinic at Golden Gate University School of Law

    Last week, the California Supreme Court issued a unanimous 82-page decision in Dynamex Operations West, Inc. v. Superior Court  that settled a question of law that had not been previously decided: what is the proper legal standard in determining whether a worker is an employee or an independent contractor under California’s wage and hour laws.

    Joining 14 other jurisdictions, the California Supreme Court adopted the ABC standard to determine the worker’s classification under the “suffer or permit” language of California’s wage and hour regulations, called wage orders. A worker is presumed to be an employee unless the company can establish that (a) the worker is free from control and direction over performance of the work, both under the contract and in fact; and (b) the work provided is outside the usual course of business for which the work is performed; and (c) the worker is customarily engaged in an independently established trade, occupation or business. Failure to prove any one of these factors will be fatal to being classified as an independent contractor.