ACSBlog

  • June 19, 2017
    Guest Post

    *This piece originally appeared on JOTWELL.

    by SpearIt, Associate Professor of Law, Thurgood Marshall School of Law

    Devon W. Carbado, From Stopping Black People to Killing Black People: The Fourth Amendment Pathways to Police Violence, 105 Cal. L. Rev. 125 (2017), available at SSRN.

    Why is it so easy for police to kill Black people?

    The answer to this question is urgent in light of ongoing police violence across the country. Virulent videos of Blacks subjected to police aggression have spread nationwide by phones, computers, TVs and tablets. These troubling, yet spectacular visuals, have pulled the covers back to allow mainstream America to see the dark and ruthless nature of law enforcement. Unarmed Blacks have senselessly died by strangling, tasing, and shooting in the back at the hands of police. Recently reported was an unarmed man shot despite his being on the ground with hands raised in surrender. Another was reportedly killed despite lawfully carrying a firearm. The ample proof of police wrongdoing raises alarming flags about the status quo, where police killing of Blacks is prevalent and successful prosecution of police is not.

    In this article, Devon Carbado offers a compelling answer. He asserts that Fourth Amendment doctrine paves a path for police to engage civilians, especially Blacks, in ways that escalate into violence and death. Police officers are embodied with various levels of discretion in their enforcement efforts, and can be motivated by social motives, including cultural biases. Carbado shows, with meticulous detail, how Fourth Amendment doctrine leaves racism virtually unchecked in policing practices. Rulings by the Supreme Court on search and seizure make it clear that where police have a pretext to stop a person on the street or in a vehicle, the seizure is lawful so long as the officer has a requisite level of suspicion to make the stop. That there is little constitutionally to curb the police’s use of discretionary power when choosing one person over another puts a sarcastic twist on the meaning of “con” law.

  • June 19, 2017

    by Christopher Wright Durocher

    Wednesday’s horrific shooting during a practice for members of the GOP congressional baseball team was an unnecessary reminder of the prevalence of gun violence in the U.S. The event was notable for its high-profile victims, including Rep. Steve Scalise (R-La.), a member of House’s Republican Leadership, but it was otherwise bleakly common—an average of 90 people die from gun violence each day and, by some counts, this was the 195 mass shooting of 2017 (the 196th mass shooting occurred hours later in San Francisco).

    The incident, which left five wounded, including a congressional aide, a lobbyist and two Capitol Police officers, was described by Breitbart with the headline “Man Opens Fire on Congressional Baseball Practice; Good Guy with Gun Shoots Back.” The “good guys with guns” narrative is an all too common trope we hear from the NRA and its allies after a high-profile shooting, particularly mass shootings. In 2012, a week after the Sandy Hook massacre left twenty-six dead, including twenty children, NRA Executive Vice President Wayne LaPierre said, “The only way to stop a bad guy with a gun is with a good guy with a gun.” Since that time, this trope has been deployed in response to mass shootings to justify expanding gun availability and ownership and reducing or eliminating gun safety regulations. The only problem is that there’s no evidence that it’s true.

    The epidemiology of mass shootings is complicated and anything but straightforward. That said, there are some things we do know. A review of mass shootings between 2000 and 2012 published by the FBI reveals that the median response time for police is three minutes. Admittedly, three minutes is a long time when facing an armed assailant, and with the aid of high-capacity magazines and semi-automatic weapons, shooters are capable of inflicting grievous damage in such a short time. As Rep. Mike Bishop (R-Mich.), a witness to Wednesday’s attack, observed, “He had a rifle that was clearly meant for the job of taking people out, multiple casualties, and he had several rounds and magazines that he kept unloading and reloading.” 

  • June 19, 2017
    Guest Post

    *This piece originally appeared on the EPI blog.

    by Celine McNicholas, Labor Counsel, Economic Policy Institute


    Today, the Acting Solicitor General switched the government’s position in National Labor Relations Board v. Murphy Oil USA, Inc, from arguing in favor of working people to arguing in favor of big business. The move is deeply disappointing, and represents a stark departure from standard practice. It is the clearest indication yet of where the Trump administration stands: with corporate interests and against working people.

    The Murphy Oil case is significant for workers. It will determine whether mandatory arbitration agreements with individual workers that prevent them from pursuing work-related claims collectively are prohibited by the National Labor Relations Act (NLRA). These agreements have become increasingly common.

    The NLRA guarantees workers the right to join together to improve their terms and conditions of employment and prohibits employers from interfering with or restraining the exercise of these rights. In Murphy Oil, the National Labor Relations Board is arguing that agreements that force workers to waive their right to pursue work-related claims on a class or collective basis interfere with workers’ rights under the NLRA and are prohibited. The Solicitor General argued this position just last October, and there has been no change in the law since then. As a matter of fact, just last month the United States Court of Appeals for the Sixth Circuit held that these mandatory arbitration agreements and class action waivers are prohibited by the NLRA. The only thing that has changed is the administration.

  • June 14, 2017
    Guest Post

    *This piece originally appeared on Take Care

    by Brianne Gorod, Chief Counsel, Constitutional Accountability Center

    When President Trump took the oath of office, he swore to “preserve, protect and defend” the Constitution of the United States. Yet since he took that oath, he has been flagrantly violating a critical provision of the Constitution that was designed to ensure that the nation’s leaders would always put the national interest above their personal self-interest.      

    Today, Sen. Richard Blumenthal, Rep. John Conyers, and 194 other members of Congress have gone to federal court seeking to put an end to the president’s willful violations of the Constitution. We, at the Constitutional Accountability Center, are proud to represent them in this effort. 

    When the nation’s Founders came together to draft a new national charter, they were profoundly concerned about both corruption of federal officeholders and foreign influence over the nation. They understood what a threat corruption posed and they worried that foreign nations might attempt to meddle in America’s affairs, including by giving benefits to the nation’s chief executive to subvert his loyalties. 

    In response to those concerns, the Founders included in the Constitution the Foreign Emoluments Clause, which prohibits any person “holding any Office of Profit or Trust under [the United States]” from “accept[ing] . . . any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State” without “the consent of the Congress.”  Although there has been a great deal of talk about this Clause since Donald Trump’s election, there has been much less talk about five of its most important words: “the consent of the Congress.” 

  • June 14, 2017
    Guest Post

    *This piece originally appeared on the Economic Policy Institute’s Working Economics Blog.

    by Marni von Wilpert, Associate Labor Counsel, Economic Policy Institute

    Yesterday, the Trump administration took yet another step against working people by announcing that the Department of Labor (DOL) will rescind its “persuader rule,” which would have helped level the playing field for workers by letting them know the source of the anti-union messages they receive during union drives.

    Unions help union and nonunion workers in countless ways. They raise wagesmake workplaces safer and close the gender pay gap. Most importantly, unions let workers have their voices heard on the job. The ability of people to join together to negotiate for better working conditions and pay is even more important in an era of forced arbitration, where women who are sexually harassed often cannot get justice in a courtroom and workers who are being cheated out of minimum wage often cannot file class action lawsuits. All workers deserve a voice in their workplaces and a union is one of the best ways for working people to make sure they are getting treated fairly on the job.

    But many employers fight unionization efforts at every turn, by hiring professional anti-union consultants—“persuaders”—to bust their employees’ organizing drives with sophisticated anti-union campaigns. Union-busting firms promise to equip employers with “campaign strategies” and “opposition research” and produce anti-union videos, websites, posters, buttons, T-shirts and PowerPoint presentations for employers to deploy against their workers’ unionizing efforts. Employers spend large amounts of money to hire anti-union consultants—sometimes hundreds of thousands of dollars.