Without DNA evidence, wrongfully convicted individuals have a much heavier burden in seeking justice. The New York Times reports on new groups that have formed to challenge wrongful convictions where no DNA evidence is available. The newspaper reports that DNA evidence has been successfully used “to exonerate more than 230 people wrongfully convicted nationwide,” but that attempts to overturn wrongful convictions where DNA evidence is not available is much harder. But clinics at universities, such as the University of Michigan and Virginia, are working to change the landscape.

The newspaper cites the Exoneration Initiative, formed recently by a New York City defense attorney. The Initiative’s Web Site states the group is “driven by its quest to free the innocent and to educate the public and the judiciary about the failings of the criminal justice system.” Dallas District Attorney Craig Watkins, told The Times that his office is working to nullify wrongful convictions after DNA tests resulted in 13 exonerations. His office, the newspaper reported, has established a conviction integrity unit to re-examine hundreds of convictions. “This is about the duty of the district attorney to seek justice,” he told the newspaper. “Justice means we right the wrongs of the past.” Watkins, a frequent ACS participant, spoke at the 2008 ACS National Convention as part of a panel discussion on the role of judges in plea bargains. Video of the panel discussion is available here.

The Obama administration has urged the Supreme Court to dismiss a case over the EPA’s refusal to regulate mercury emissions from power plants. The motion filed by the solicitor general’s office in Environmental Protection Agency v. New Jersey represents a significant break with the Bush administration.

The U.S. Court of Appeals for the D.C. Circuit had invalidated the EPA’s stance on not regulating mercury emissions. The Bush administration then appealed the court’s ruling to the Supreme Court, arguing, in part, that the emissions weren’t harmful. In its motion urging the high court to dismiss the case, the solicitor general said the EPA would “develop appropriate standards to regulate power-plant emissions” pursuant to the appeals court ruling. Scotusblog’s Tom Goldstein writes, “This motion to dismiss presents a fairly radical policy reversal for the EPA, which in its petition for certiorari had argued that the original agency finding on power plant regulations was ‘seriously flawed’ and that mercury emissions would not present a public health hazard ….”

In a seemingly surprising move, the progressive Constitutional Accountability Center (CAC) has urged a federal appeals court to find that the Constitution protects an individual right to bear arms from state infringement. The group, in a Text & History Blog post, however, notes that the only argument it makes centers on reviving the Fourteenth Amendment’s Privileges or Immunities Clause. The case before the 7th U.S. Circuit Court of Appeals involves appeals of lower federal court decisions that the 14th Amendment does not protect the individual right to bear arms from state laws or actions regulating guns. CAC argues in its brief filed on behalf of leading constitutional scholars, like Yale Law School’s Jack Balkin, that the Privileges or Immunities Clause should be reconsidered by the Supreme Court as guaranteeing “substantive fundamental rights.” Additionally, the case gives the group a chance to “bolster progressive efforts to ensure protection of a broad range of civil rights guaranteed by the Constitution.”

The group’s brief also “brings to the fore the surprisingly progressive Reconstruction history of the right to bear arms. It shows that the framers of the Fourteenth Amendment sought to constitutionally protect this right against state infringement, in large part because they wanted the newly freed slaves to have the means to protect themselves, their families and their property against well-armed former rebels.”

In an interview with ACS, Doug Kendall, CAC’s founder and president, explained that the Fourteenth Amendment’s Privileges or Immunities Clause was intended to be the Constitution’s pivotal protector of fundamental rights, but was essentially stripped of its meaning by an 1873 Supreme Court ruling. Kendall says it’s long past time for the clause to be returned to its rightful place in constitutional jurisprudence. Video of the interview is available here.

The Obama administration is preparing for its first major case dealing with the state secrets privilege, The Washington Independent and The New York Times report.

An appeal in the case of Mohamed v. Jeppesen Dataplan, Inc. will be heard Monday by the 9th U.S. Circuit Court of Appeals. Binyam Mohamed is suing a subsidiary of Boeing for assisting the CIA in transporting him during a rendition. At the trial level, and in many similar lawsuits throughout the Bush administration, all claims were dismissed after the government invoked the state secrets privilege.

Critics claim the privilege was originally meant only to prevent the release of national security secrets, and that the Bush administration unfairly broadened the scope of the privilege and used it to prevent any judgments on the legality of the program itself. Ben Wizner, a staff attorney with the ACLU, told The Times that, “Every single torture case filed against a U.S. official has been thrown out without any adjudication of law or facts” because of the early and broad use of the state secrets privilege. The Bush administration’s use of the state secrets privilege has effectively barred detainees from challenging their imprisonments, Wizner said Ben Wizner.

The Justice Department has not said whether it will continue to use the state secrets privilege in the same manner as the Bush administration. Critics of the Bush administration’s use of the privilege say they the new Justice Department will not follow the same path. Meredith Fuchs, general counsel of the National Security Archives, said, “We’ve asked that the Attorney General put in place a much better system for reviewing when the Justice Department will assert the state secrets privilege. Because once it’s asserted it’s tremendously powerful.”

Last spring, Wizner participated in an ACS panel discussion exploring the Bush administration’s use of the state secretes privilege. Video of that discussion is available here. Also ACS recently distributed an Issue Brief by Fuchs examining governmental transparency. Her article is available here.

President Obama’s choice to head the CIA, Leon Panetta, told a Senate panel that in some instances he may urge the president to allow the CIA to use harsh interrogation methods on suspects detained on allegations of terrorism involvement. According to The New York Times and the Chicago Tribune, Panetta said that in extreme situations, he might request permission from the White House to use interrogation techniques beyond those authorized by President Obama’s recent executive order. Panetta would not say what type of interrogation methods he would push for. 

Panetta also testified that the “practice of ‘rendition’ — picking terrorism suspects off the street and sending them to a third country,” for detention and interrogation would continue. He claimed, however, that renditions would not take place in countries “known for torture,” the Red Cross would be granted access to prisoners, and prisoners could not be kept indefinitely. Renditions have been loudly condemned by some of America’s allies as illegal and a blatant way to get around international bans on torture. Nonetheless, Panetta defended renditions, saying some “tools” need to be preserved to “go after the bad guys.”

Finally, like Attorney General Eric Holder, Panetta said waterboarding is torture. However he also said that CIA agents who have used the method on detainees should not be prosecuted.

A new study calls into question the conventional wisdom that Supreme Court judges strategically retire when there is an ideologically similar president in office. The study, by Terri Peretti and Alan Rozzi of Santa Clara University, found that retirement decisions were instead influenced by the justices’ power in steering the Court’s direction, and their sense of ideological mission.

Peretti and Rozzi maintain:

Specifically, Justices who are more ideologically distant from the Court median are less likely to retire, as are Justices who are writing more majority opinions and thus more engaged and influential in determining the content of the Court's doctrines. We find that justices are less inclined to leave the bench when fulfilling an ideological mission by "fighting the good fight" from the wings or when steering the Court by writing majority opinions that shape legal policy.

The report concluded that only about half of the justices retiring since 1953 did so under “co-partisan” presidents. More facts from the report can be found at the National Law Journal and the WSJ Law Blog.

During a recent appearance at a Florida University, Justice Antonin Scalia had no occasion to address Supreme Court retirements, but he did become rankled when asked about his opposition to use of cameras at the high court.

The South Florida Sun-Sentinel reported that political science major Sarah Jeck asked Scalia whether his opposition to cameras at the Supreme Court was "vitiated" by the facts that the Court releases full argument transcripts, the public can attend oral arguments and that justices go out on book tours. 

"Read the next question," Scalia replied. "That's a nasty, impolite question."
 

The Palm Beach Post noted that after several reporters returned to the issue, Scalia did address it, saying he once favored televised Supreme Court proceedings, but now he thinks that "most people will only see 30-second takeouts" that could be misleading.

"Why should I be a party to the miseducation of the American people?" Scalia said.

According to an interview with The Blog of Legal Times, The Florida Atlantic University junior seemed a “little stunned, but not cowed,” by Scalia’s reaction. "He can dish it out, but he can't take it, I guess," she said. "I'm generally a very polite person. I'm really surprised the way it turned out. It was not a preposterous question."

President Obama has announced some changes to the faith-based office that was established during the Bush administration. The president signed an executive order this afternoon, which The New York Times reported, creates a “newly revamped faith-based office ….” The order, the newspaper said, requires the faith-based office to seek review from the Justice Department of grants that could pose constitutional and civil rights problems. During the Bush administration, the religious office distributed federal dollars to groups regardless of whether the money supported programs that were operated by people of only one faith. Groups like Americans United for Separation of Church and State frequently argued that the Bush administration funneled public dollars to Christian groups supportive of the administration. Bruce Prescott, a board member of the group, told The Washington Post that, “There is nothing that can undermine the church more than easy money and loose accountability.”

At a religious gathering this morning at the White House, Obama said that faith should not be used as tool to divide people. “Instead of driving us apart, our varied beliefs can bring us together to feed the hungry and comfort the afflicted,” he said. Obama also said that the faith-based office should serve all people “no matter their religious or political beliefs,” The Times reported.

by Catherine Singley, a Policy Analyst at the National Council of La Raza.

In the latest sign that the recession will leave no sector of the economy untouched, Microsoft announced in late January that it plans to lay off 5,000 employees. As workers began to deliver the news to their families and friends, Sen. Chuck Grassley (R–Iowa) delivered a letter to Microsoft’s chief executive, Steven A. Ballmer, saying, “It is imperative that in implementing its layoff plan, Microsoft ensures that American workers have priority in keeping their jobs over foreign workers on visa programs.”

What does this mean?

The foreign-born workers the Senator refers to are highly skilled employees Microsoft hired from abroad through the H-1B temporary worker visa program. By demanding that Microsoft gives American workers “priority in job retention” over those on visas, the Senator is implying that the company should lay off workers based solely on their immigration status, and possibly their national origin, regardless of merit or job performance. Doing so could violate Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on an “individual's race, color, religion, sex, or national origin,” as well as other applicable federal or state laws. As a voice for U.S. Latinos, 60 percent of whom are U.S. citizens, the National Council of La Raza (NCLR) has always viewed business visa programs with some degree of skepticism. However, program flaws should be addressed through the legislative process, not by inciting violations of civil rights laws.

Richard Epstein, a University of Chicago professor of law and one the nation’s leading libertarian scholars, has responded to an ACS guest blog post challenging the professor’s claims that the Employee Free Choice Act (EFCA), which is pending in Congress, poses serious constitutional problems. In December, Epstein, in an opinion piece for the Wall Street Journal, contended that EFCA, if enacted, would prove an affront to the First Amendment and the Constitution’s Takings Clause.

Yesterday, Georgetown University Law Center Professor Michael H. Gottesman, in a guest blog post for ACS, examined Epstein’s claims surrounding EFCA and concluded that debate on the proposed measure “can comfortably remain on the terrain of policy, uncomplicated by concerns of unconstitutionality. For Epstein’s imagined constitutional difficulties haven’t the remotest chance of gaining judicial acceptance.” Gottesman’s entire analysis of Epstein’s arguments is available here.

Epstein responded at length to Gottesman’s blog post. See his entire response below the jump.

The NAACP Legal Defense and Education Fund, Inc. (LDF) is taking on a deepened split within the federal appeals court circuits over limits on legal challenges to discriminatory use of civil service exams for employment purposes. LDF has asked the Supreme Court to review Lewis v. City of Chicago, where the 7th U.S. Circuit Court of Appeals nullified a lower court ruling that found that the City of Chicago illegally used an exam process to hire white applicants over black applicants by a five-to-one ratio. The lower federal court found that Chicago officials had violated the civil rights of more than 6,000 black firefighter applicants.

The 7th Circuit, however, overturned that ruling, claiming that applicants had waited too to challenge the city’s discriminatory use of the exam. LDF notes that five federal circuits – 2nd, 5th, 9th, 11th and the D.C. Circuits – have ruled that legal challenges are viable each time an employer uses exam results in a discriminatory manner and three Circuits – 3rd, 6th and 7th – have concluded such lawsuits are only viable shortly after exam results are announced.

In its cert petition, LDF argues that, “This legal distinction is of enormous practical importance, effectively determining whether an employer may indefinitely follow a discriminatory employment practice if affected employees or applicants fail to object to the initial promulgation of the procedure within the brief Title VII [of the Civil Rights Act of 1964] limitations period. The use of employment practices such as the hiring procedure at issue here is widespread – and is in fact required by state or local law for many public employers across the country – making the need for a nationally uniform claims-accrual rule paramount.”

See the LDF petition in Lewis v. Chicago here.

Last week, President Obama signed into the law the Lilly Ledbetter Fair Pay Restoration Act, which overturned a 2007 Supreme Court decision that limited an employee’s ability to sue an employer over pay discrimination. The Fair Pay Act extends the time frame for workers to file lawsuits challenging discriminatory pay.

In early March, the California Supreme Court will consider the constitutionality of the anti-gay measure law that was enacted by Proposition 8. The Court announced it would hear arguments in the case on March 5. The Los Angeles Times reported that a decision will be issued within 90 days following those arguments. The Court will also consider whether Proposition 8, if upheld, invalidates the gay marriages that were performed in the state before its passage.

Civil liberties groups, such as the National Center for Lesbian Rights (NCLR), are urging the state’s high court to find the law an unlawful change to the state constitution. NCLR said that Proposition 8 is “invalid because the people of California have established strict safeguards that prohibit the underlying principles of the California Constitution from being changed by a simple majority vote. By taking away a right of only one group, Proposition 8 violates the most basic principle of our government: that all people are entitled to equal treatment under the law.”

NCLR is joined by Lambda Legal, the ACLU, Equality California and other civil liberties groups in challenging Proposition 8. Last year, the California Supreme Court ruled that lesbians and gay men have a constitutional right to marry, but the passage of Proposition 8 altered the state Constitution to specifically bar legal recognition of gay marriages. The California attorney general has also asked the Court to nullify Proposition 8, arguing that fundamental rights, like the right to marry, cannot be subverted by voters. Stephen Barnett, a UC Berkeley law professor, told the Los Angeles Times that he thought the arguments challenging Proposition 8 were “long shots.”

In a guest blog for ACS, Liz Seaton, director of projects and managing attorney for NCLR, explored the case against the constitutionality of Proposition 8. Seaton’s blog post is available here.

by Michael H. Gottesman, Professor of Law, Georgetown University Law Center.

The proposed Employee Free Choice Act (EFCA) authorizes National Labor Relations Board (NLRB) certification of unions when a majority of employees have signed cards designating a union to represent them, and mandatory arbitration of the terms of a first collective bargaining agreement if the employer and union are unable to reach agreement on their own.  Richard Epstein, America’s most prominent libertarian legal scholar, authored a recent op-ed piece in the Wall Street Journal contending that EFCA, if enacted, would be unconstitutional. In his view, card check recognition abridges the employer’s right of free speech protected by the First Amendment; and mandatory arbitration, if it results in terms more expensive than the employer would have agreed to on its own, represents a “taking” violative of the Fifth Amendment.

The debate over EFCA can comfortably remain on the terrain of policy, uncomplicated by concerns of unconstitutionality. For Epstein’s imagined constitutional difficulties haven’t the remotest chance of gaining judicial acceptance.

First Amendment. As things stand presently (i.e., without EFCA) employers, during the course of an NLRB election campaign, are free to air their views about the downsides of unionization so long as they refrain from threats or coercion. Epstein grieves that employers will lose this opportunity if EFCA is enacted, as a union would be able to conduct a “clandestine organizing campaign” and produce a card majority before the employer is aware of the need to speak out in opposition. Whatever its power as a policy argument, this observation has no purchase under the First Amendment. It’s one thing to say that the government can’t muzzle an employer from expressing its views. It’s quite another to say that the government has to structure its laws to provide employers notice about when their speech might be most efficacious. Under EFCA, employers will remain free to voice their views about the downsides of unionization whenever and as often as they want. They can rail against unions on a continuing basis, so long as they refrain from threats or coercion. That’s all the First Amendment guarantees them. Epstein’s “advance notice” theory is unheard of in First Amendment jurisprudence, and would produce preposterous results. Consider just one example: Under Epstein’s theory, a court couldn’t entertain a lawsuit by an employee against her employer unless she first notified the employer of her intention to sue, so that the employer would have an opportunity to express its views about the desirability of her bringing suit.    

Animal welfare groups are urging a federal court to conclude that Ringling Brothers and Barnum & Bailey Circus harshly mistreats its elephants in violation of a federal law. The groups, including the Animal Welfare Institute, the American Society for the Prevention of Cruelty to Animals and the Fund for Animals, maintain in their lawsuit that the circus uses clubs and bull hooks on the elephants and keeps them confined in unpleasant conditions, all in violation of the Endangered Species Act. In a press release about the case, the Animal Welfare Institute says that the groups have amassed photos, video and “internal Ringling Bros. documentation” to prove the abuse of the elephants. An attorney for the circus told The New York Times that the circus has passed federal and state inspections on its treatment of animals and called the lawsuit “false and distorted.” Tracy Silverman, an attorney for the Animal Welfare Institute, told the newspaper, “We simply want the elephants to be treated humanely and in accordance with the law.”

The U.S. Supreme Court has ordered the Florida attorney general to respond to a petition filed by the Equal Justice Initiative seeking review of a life imprisonment sentence. The Equal Justice Initiative has urged the high court to review the life imprisonment sentence of Joe Sullivan for a sexual assault. A Florida judge sentenced Sullivan to life in prison without parole when he was 13. In an article about the case, The New York Times’ Adam Liptak writes that the court’s order for a Florida response to EJI’s petition “probably means that at least one justice considered the case significant or difficult” and that in 2005, the high court invalidated the use of the death penalty for crimes committed by teenagers. In that case, Roper v. Simmons, Liptak notes that Justice Anthony Kennedy “said that even older teenagers are different from adults. They are less mature, more impulsive, more susceptible to peer pressure and more likely to change for the better over time.”

EJI maintains that Sullivan’s sentence – a life in prison for a crime where no killing was involved – is a violation of the Eighth Amendment’s ban on cruel and unusual punishment.” EJI says that Sullivan is one of only two 13-year-olds in the nation “to be sentenced to die in prison for an offense in which no one was killed,” and that, only “eight people in the country are sentenced to die in prison for any offense committed at the age of 13.” Sullivan’s case is part of EJI’s National Litigation Project “to challenge death-in-prison sentences imposed on young adolescents.” Bryan A. Stevenson, EJI’s executive director, told the Times that, “I don’t think it’s possible to say that a 13-year-old will never change and that life without parole is an appropriate punishment.”

Louisiana’s governor is pushing new legislation purportedly aimed at cracking down on sex offenders that the Sentencing Law and Policy Blog tags as a “manic panic” approach on sex offenders. The Blog cites an article by the Shreveport Times that Gov. Bobby Jindal (R) is calling on lawmakers to pass a bill that would hold day care owners liable for knowingly allowing registered sex offenders to come onto their property. Jindal, the newspaper reports, is also asking for a new law that would require some sex offenders to continue undergoing psychiatric evaluations after their prison terms end.

The Sentencing Law and Policy Blog concludes that, “This story provides yet another example of the one-way ratchet of criminal laws and the potential harm of legislative reactions to one awful crime. Unless carefully crafted and limited, a law making it a felony for a day care owner to even allow any registered sex offender to come onto the facility’s property could (and likely would) have a lot of unforeseen consequences for both day care operators and families.”

Chief Justice John G. Roberts Jr. is helping to push the high court closer to weakening procedural safeguards for criminal defendants. The New York Times’ Adam Liptak analyzes recent rulings that reinterpret the Fourth Amendment’s exclusionary rule, which bars improperly obtained evidence from use at trial. In the high court’s recent Herring v. United States decision, a 5-4 majority concluded that unlawful police conduct should not require the suppression of evidence if all that was involved was isolated carelessness, the Times noted. In that case, Bennie Dean Herring was arrested in one Alabama county based on incorrect information from another county’s police authorities. The warrant that Herring was arrested on had actually been withdrawn. The high court majority found that the exclusionary rule could not be used to invalidate Herring’s conviction on drugs and weapons charges.

Liptak maintains that the decision “suggested that the exclusionary rule itself might be at risk,” noting that along with Roberts, Justices Antonin Scalia, Clarence Thomas and Samuel Alito Jr. are “certain votes” in favor of doing away with the exclusionary rule. Pamela S. Karlan, a Stanford law professor and faculty adviser for the law school’s ACS student chapter, told the Times that while the exclusionary rule may be safe for the time being, noting that five votes are not now available to ditch the rule, “you are not going to see any dimension along which there is going to be an expansion of defendants’ rights in this court.”

Former Justice Department attorney John Yoo claims in an op-ed for the Wall Street Journal that his much-maligned memos intending to provide legal cover to the Bush administration’s use of harsh interrogation techniques – some, many define as torture -- for military detainees in Afghanistan and Iraq were produced in good faith. Andrew Sullivan says the “key issue is whether the cockamamie legal opinions Yoo delivered to his superiors were a sincere and genuine attempt to say what the law was – or obvious attempt to provide pseudo-legal cover for the war crimes the president and vice-president believed were necessary to save America.”

Sullivan notes a piece by Harper’s Scott Horton examining Yoo’s ongoing defense of his legal analysis, widely condemned by lawyers and academics as seriously flawed, underpinning his torture memos. Horton, a Harper’s contributing editor, writes that he believes Yoo is struggling to shield himself from potential criminal liability for his legal work, grasping at the most attractive appearing defense:

It’s very difficult to penetrate Yoo’s claims as to his subjective understandings – one fact that makes the good-faith defense so attractive. But we see in his current column and other recent statements tale-tell signs that suggest this defense is dishonest. The bottom line is this: how could someone who earned a law degree from Yale and became a tenured member of the law faculty at Berkeley, one of the nation’s most prestigious law schools, appear to be so incredibly ignorant?

 

Immediately after reading Yoo’s memos it struck me that they were the product of reverse-engineering. The way they drifted through issues, the bizarre choice of precedent, the curious misreading of the Constitution in which the clause granting to Congress the authority to address questions surrounding detainees simply disappears – and the equally tendentious and absurd readings of international conventions and precedents – could be explained if you imagined that Yoo had been approached and told to craft a memorandum that legalized practices already in place.

Horton’s article is available here. Horton also participated in “Voices Against Torture: Writers and Lawyers on the Way Forward,” an event hosted by ACS and PEN American Center late last year. Audio of the event is available here.

President Obama today signed executive orders overturning some Bush administration policy unfavorable to unions. The Associated Press reports that Obama’s orders will reverse Bush era rules intended to discourage employees from joining unions and to undermine collective bargaining. Obama said that, “We need to level the playing field for workers and unions that represent their interests. I do not view the labor movement as part of the problem. To me, it’s part of the solution. You cannot have a strong middle class without labor movement.”

A federal judge has rejected an attempt by supporters of California’s anti-gay marriage law to hide financial contributors to the cause from public disclosure. The religious advocacy group Protect Marriage, which helped spearhead Proposition 8 to amend the California Constitution to bar gay marriage, had asked a federal court to overturn a law requiring disclosure of donors of $100 or more to the political initiative. U.S. District Judge Morrison England ruled that, “If there ever needs to be sunshine on a particular issue, it’s a ballot measure.” England added that the state has the authority to require “full and fair disclosure of everyone who’s involved in these political campaigns.”

The San Francisco Chronicle reported that the supporters of the anti-gay marriage law would appeal the judge’s ruling to the 9th U.S. Circuit Court of Appeals. Proposition 8, which invalidated a 2008 California Supreme Court decision that lesbian and gay couples have a constitutional right to marry, was supported by nearly $30 million from 36,000 donors, the Chronicle reported. The anti-gay marriage initiative was also strongly supported by the Mormon church and socially conservative lobbying outfits, such as James Dobson’s Focus on the Family.

Civil liberties groups in California, including the National Center For Lesbian Rights (NCLR), have lodged a lawsuit against the measure, arguing that it amounted to an illegal change to the California Constitution. NCLR Legal Director Shannon Minter said that, “If Prop 8 is permitted to stand, it would be the first time an initiative has successfully been used to change the California Constitution to take away an existing right only from a historically targeted minority group.”

In a guest blog post for ACS, NCLR’s Liz Seaton explored the legal challenge to Proposition 8, noting that the ballot initiative “drastically alters the equal protection guarantee in California’s Constitution, and that the rights of a minority cannot be eliminated by a simple majority vote….” Seaton’s article is available here.

The bill signed today by President Obama deals a blow to the Supreme Court’s trend of narrowing access to the courts, but as noted by TPM and the ACLU, a more far-reaching fair pay act is still pending in Congress. TPM reported that the Paycheck Fairness Act, which it described as a “broader bill addressing pay discrimination” remains mired in Congress. TPM notes that the bill, although approved by the House, has not been considered by the Senate. TPM’s Elana Schor writes that big business lobbyists are “rooting” for the Paycheck Fairness Act to remain bottled up in Congress. Schor cited testimony before a congressional committee “strongly opps[ing]” the paycheck act by the U.S. Chamber of Commerce. The business group argued that fair pay supporters have not proved discrimination causes disparity in pay, and that women’s choices are to blame for a pay-gap. In its press statement lauding the enactment of the today’s equal pay law, the ACLU noted that, “Now that Congress and the President have restored access to the courthouse, it is time to close the loopholes that make wage discrimination possible by passing the Paycheck Fairness Act.”

President Obama’s first major bill signed into law provides workers greater ability to challenge discrimination in pay. Late yesterday Congress gave final approval to the Lilly Ledbetter Fair Pay Restoration Act and Obama signed the bill this morning. The law is named after the Alabama woman who worked at Goodyear for many years only to learn that she had been paid significantly less than her male counterparts. When Ledbetter sued, a jury agreed that the tire company violated her civil rights and awarded her hundreds of thousands in back pay. But the in 2007, the Supreme Court dismissed her case, saying that she waited too long to lodge the lawsuit against Goodyear. Subsequently, Ledbetter became an eloquent voice for pay equity, addressing the 2008 Democratic National Convention calling on lawmakers to support the fair pay act. The law, The Washington Post reports, will allow workers to bring law suits six months after they receive any paycheck that they allege is discriminatory.

Ledbetter was present at this morning’s signing of the law. “We are upholding one of the nation’s first principles: that we are all created equal and each deserves a chance to pursue our own version of happiness,” Obama said at the signing ceremony. “While this bill bears her name, Lilly knows that this story isn’t just about her. It’s the story of women across this country still earning just 78 cents for every dollar men earn – women of color even less – which means that today, in the year 2009, countless women are still losing thousands of dollars in salary, income and retirement savings over the course of a lifetime.”  

U.S. Senator Chuck Grassley (R-Iowa), claimed in a letter to Microsoft that it must fire foreign workers before firing “similarly qualified American employees.” Grassley sent the letter to Microsoft after learning of its plans to cut 2,000 – 3,000 jobs over the next 18 months. In his letter, Grassley also argued that the nation’s “immigration policy is not intended to harm the American work force” and that “Microsoft has a moral obligation to protect these American workers by putting them first during these difficult economic times.”

But as noted on the ImmigrationProf Blog, the co-founder and partner of an immigration law firm, Peng & Weber, told The Seattle Times that firing workers based on their immigration status could violate anti-discrimination laws. “I know of no immigration law that would require Microsoft or any other U.S. company to lay off its lawfully employed foreign workers first,” Cletus Weber told the newspaper. “To the contrary, I believe arbitrarily laying off lawfully employed foreign workers first would subject these companies to potential legal liability under federal anti-discrimination laws.”

Microsoft spokesperson Lou Gellos told the newspaper that, “For many of the employees here on visa, being laid off means that they have to leave the country on very short notice, in many cases uprooting families and children.”

The Obama administration today released a list of key appointments to the Office of White House Counsel. TPM reports on the list here. Among President Obama’s appointments is Trevor W. Morrison, a Columbia Law School professor and author of an Issue Brief distributed by ACS. Morrison was tapped to be Associate Counsel to the President for National Security Affairs. In his Issue Brief, which was also published in Advance: The Journal of the ACS Issue Groups, Morrison examined the Bush administration’s legal reasoning for its controversial stances on torture, its signing statement regarding a ban on torture and its defense of domestic wiretapping. Morrison’s Issue Brief is available here.

In an article for the ABA Journal, Ben Trachtenberg, a visiting law professor at Brooklyn Law School, writes that the nation’s incarceration rate continues “top the world in per capita imprisonment” and that it is long past time for policymakers to revisit the subject. Even if state and federal lawmakers were not grappling with tough economic times, they would do well to use alternatives to incarceration, which Trachtenberg says “drains public treasuries without providing any future benefit.” He adds that California already spends more than $10 billion on incarceration. Blindly dumping boatloads of money into building more prisons could be countered by turning to “nonincarceration alternatives, such as drug treatment for addicts and community services for small-time thieves,” which “cost less and reduce misery across the board,” Trachtenberg maintains. “A rational criminal justice system,” he continues, “would, while shortening sentences of certain offenders, keep others out of prison altogether. With alternative treatments and punishments, a state shrinks its prison budget, allows convicts to keep their jobs and support their families, and makes recidivism less likely.”

Following quickly on the Senate’s approval, the U.S. House of Representatives has passed the bill intended to help employees challenge discrimination in pay. The House, on a 250 – 177 vote, approved the Lilly Ledbetter Fair Pay Act, which The New York Times reported “is likely to be the first significant legislation signed by President Obama.”

Calls for passage of a fair pay law were heightened after the U.S. Supreme Court dismissed Lilly Ledbetter’s pay discrimination case against Goodyear, where she had been a supervisor. Ledbetter sued the tire company after learning that she had been paid significantly less than her male counterparts for many years. A jury agreed that Ledbetter’s civil rights had been violated and awarded her $360,000 in back pay. But, the high court, in its Ledbetter v. Goodyear Tire & Rubber Co., decision concluded that Ledbetter had waited too long to bring the lawsuit. Rep. George Miller (D-Calif.), a supporter of the Ledbetter Act said, “The Supreme Court decided to commit legal jujitsu to satisfy a narrow ideological agenda,” the Times reported. Sen. Barbara Mikulski, a sponsor of the Senate bill, told the newspaper that employers could avoid being sued as long as they “don’t discriminate.”