• July 6, 2017
    Guest Post

    *This piece originally appeared on onlabor.

    by Sharon Block, Executive Director, Labor and Worklife Program, Harvard Law School

    On Friday, the Trump Administration finally took a position in the Fifth Circuit litigation over the validity of the Obama Administration’s rule to raise the overtime salary threshold to $47,476 from the $23,660 level that has been in place since 2004. On the eve of the rule’s implementation in 2016, Judge Amos Mazzant (E.D. Tex.) had issued a nation-wide injunction enjoining the Department from enforcing the rule. Judge Mazzant found that the Department lacked the authority under the Fair Labor Standards Act to impose a salary threshold for determining overtime eligibility – effectively invalidating every overtime regulation since 1938. Just prior to Inauguration Day, the Obama Administration filed a brief in the Fifth Circuit asking the appeals court to reverse the district court’s decision and lift the injunction, asserting both that the Department had the authority impose a salary threshold and that it had set the threshold at an appropriate level.

    The Trump Administration walked away from defending the new salary threshold while attempting to maintain its authority to issue in its own rule. In its reply brief, the Department of Labor continued to defend its authority to set a salary threshold in conjunction with a duties test. The Department rejected Judge Mazzant’s assertion that the statute compelled that the Department adjudge overtime eligibility strictly on the basis of a salaried employee’s duties. The Department did not, however, ask the Fifth Circuit to affirm the validity of the Obama Administration rule. Instead, the Department signaled that it was abandoning the Obama rule and that it would be revisiting the question of the appropriate salary threshold, telling the court that it “has decided not to advocate for the specific salary level ($913 per week) set in the final rule at this time and intends to undertake further rulemaking to determine what the salary level should be.”

  • July 5, 2017

    by Kaiya Lyons

    At the 2017 ACS National Convention, Professor William Yeomans concluded the breakout panel on whether to serve in an unfriendly administration by emphasizing to the room of current, former and aspiring government lawyers that public service “really is a lawyer’s highest calling.” But for too many law students, the choice to pursue that higher calling comes at a high price, as student loan debt continues to rise well beyond most public interest wages. Later in the day, ACS Board member David Frederick had a simple solution—“make law school less expensive.”

    During the “Progressive Federalism” plenary, Frederick declared that massive student loan debt is the “number one impediment to law students going out and doing public service jobs.” To support his assertion, Frederick pointed to the time-honored tradition of public interest-minded grads spending two to three years in BigLaw to pay down their student loans before entering public service. Frederick explained that, instead of starting in public service, “law students are often forced into corporate law firms” for years to pay off their loans, a practice he characterized as a type of “indentured servitude.” While this image sparked laughter and jokes from the other panelists, Frederick maintained the veracity of his comparison and went on to stress that legal education must be more affordable in order for young lawyers to pursue public interest.

    Forgiveness in Exchange for Services Rendered

    However, much to our collective disappointment, law school tuition hikes show no signs of decreasing, nor does a decrease in tuition rates seem likely. Therefore, law students and recent grads have two options: (1) take the tried-and-true path of their predecessors and enter the corporate sector for a few years with the hope that they will be able to move into the public sector later, or (2) take advantage of the government’s Public Service Loan Forgiveness program and be able to work in public interest law immediately after graduation and have their debt erased after ten years.

  • July 5, 2017
    Guest Post

    by Bidish Sarma. Sarma is an attorney who represents individuals sentenced to death and other harsh punishments including life without parole. He previously worked as a clinical teaching fellow at the Berkeley Law Death Penalty Clinic and staff attorney and Deputy Director of the Capital Appeals Project in New Orleans

    Given all of his “tough-on-crime” rhetoric and crime-related fear-mongering on the campaign trail, it is no surprise that President Trump—primarily through his attorney general, Jeff Sessions—has doubled down since taking office. What we have seen so far suggests that the Trump-Sessions brand of justice has at least two core components: an aggressive charging strategy (consistently charging the most serious offenses) and the continued exploitation of unfettered prosecutorial power. Blessed with extraordinary power himself, AG Sessions is acting on his bizarre and unfounded belief that prosecutors are somehow disadvantaged in the criminal justice system. For months, commentators have wondered aloud whether the judiciary—most importantly, the Supreme Court—will stand up to the executive branch and act independently to protect constitutional norms. The Court’s weighty travel ban order issued last week provides a metric ton of tea leaves on this question for those inclined to read them. Less obvious, but nonetheless significant, are two recent decisions the Court has made regarding the due process obligation prosecutors possess to disclose exculpatory evidence to criminal defendants. Inspiring concern, these decisions point to the possibility that the Court (or a near-majority of the justices) will sign off on the administration’s expansive view of prosecutorial authority.         

    Last week, the Supreme Court issued its opinion in Turner v. United States. This was a fact-intensive case that I wrote about for the ACSblog here back in March. As several court-watchers anticipated, the Court decided the case in a narrow fashion; it took the opportunity to—as I characterized it three months ago—use its familiar and “well-worn minimalist approach in the Brady due process context.” What was surprising, however, was the outcome. Amy Howe, a wise spectator at SCOTUSblog, wrote in an oral argument preview that it appeared the “justices granted review to reverse the men’s conviction.”

  • July 5, 2017
    Guest Post

    by Brandon L. Garrett, Justice Thurgood Marshall Distinguished Professor of Law, University of Virginia School of Law and Lee Kovarsky, Professor of Law University of Maryland Francis King Carey School of Law. Professors Garrett and Kovarsky co-author a habeas corpus casebook, Federal Habeas Corpus: Executive Detention and Post-conviction Litigation, published by Foundation Press. 

    This week, in Davila v. Davis, the Supreme Court blocked a promising avenue for criminal defendants to enforce their rights to counsel. After Davila, when a state habeas lawyer forfeits an argument that an inmate was deprived of the constitutional right to appellate counsel, the inmate is out of luck. The holding came in a death penalty case, but the rule applies against noncapital defendants too.

    The fact pattern was familiar: trial counsel objected to an unlawful jury instruction, but appellate and state habeas lawyers ignored the claim. And the instructional error was really important, because it likely allowed Davila to be convicted of capital murder based on insufficient evidence of intent. Texas permits the death penalty to be imposed for multiple intentional killings, and has a transferred intent rule providing that, in situations where someone trying to murder one person kills another, the killing is still “intentional.” Erick Davila killed two people, but the evidence strongly suggested that he had tried to kill only one person—who was not a victim. Davila means that, had the scenario involved trial counsel’s failure to challenge the instruction rather than appellate counsel’s failure to appeal the issue, the claim could be revived in federal court. But because appellate counsel made the mistake, it cannot.

    What a mess.

  • July 5, 2017

    by Dan Froomkin

    The Supreme Court term that ended last week was fairly tame – at least by recent standards. But top Court observers on an American Constitution Society panel on Thursday said that beneath the collegiality and calm were signs of major fissures likely to deepen and become more acrimonious when the Court reconvenes in October.

    And nothing may have made that more clear than the Court's parting decision, crafting a compromise of sorts that lifted a stay on major parts of President Trump's hugely controversial travel ban.

    "It is muscular. It is the court drawing its own line – not based in statute, not based in executive order -- about how this semi-stay is going to be accomplished," said Lee Rowland, senior staff attorney for the ACLU's Speech, Privacy, and Technology Project. "I think that's an indicator that the Court is willing to wade in to some serious controversy, including making foreign policy itself."

    Paul Clement, a former solicitor general now at Kirkland & Ellis LLP, said the Court's travel ban decision was "a good way to think about the transition from this last term, which was kind of sleepy, and they decided a lot of things with eight justices, and didn't make any waves" to "a term full of blockbusters."

    And there's no question that Trump's addition to the Court, Justice Neil Gorsuch, will be a key element in that transformation.

    For now, said Tom Goldstein, the co-founder and publisher of SCOTUSblog, "I think that one of the things that's going on is what we call the left on the Court is trying to be relatively tactical and trying to accommodate what they think is the inevitable pivot of the Court still further to the right… and trying to build some sort of consensus."