The U.S. Supreme Court today turned away environmental groups’ challenges to EPA regulations of large power plants’ cooling systems. The regulations were aimed at power plants that employee “cooling water intake” structures that use water from nearby sources to help cool their facilities. The structures, as noted in today’s decision written by Justice Antonin Scalia, pose threats to the environment by destroying aquatic organisms in the water sources used by the power plants. The EPA regulations fashioned pursuant to the Clean Water Act permitted variances in their implementation if power plants could show either that the costs of compliance were “significantly greater than” the costs considered by the agency in setting the standards, or that the costs of compliance “would be significantly greater than the benefits of complying with the applicable performance standards.”

Environmental groups argued that the EPA’s cost-benefit regulations ran afoul of the Clean Water Act. A federal appeals court agreed, finding unlawful the site-specific cost-benefit variance provision. Writing for the 6-3 majority in Entergy Corp. v. EPA, Scalia said the EPA’s interpretation of the Clean Water Act was sound. “When Congress wished to mandate the greatest feasible reduction in water pollution, it did so in plain language: The provision governing the discharges of toxic pollutants into the Nation’s waters requires the EPA to set ‘effluent limitations [which] shall require the elimination of discharges of all pollutants if the Administrator finds … that such elimination is technologically and economically achievable.’” Citing a brief of the challengers, Riverkeeper, Inc., Scalia wrote that, “They acknowledge that the statute’s language is ‘plainly not so constricted as to require EPA to require industry petitioners to spend billions to save one more fish or plankton.’”

In a win for employers, the high court ruled 5-4 that they can force unionized workers into arbitration over age discrimination claims. The court’s decision in 14 Penn Plaza LLC v. Pyett overturned a federal appeals court decision that employers could not force workers into arbitration and waive their rights to take their claims to a court. Justice Clarence Thomas, writing for the majority said, “We hold that a collective-bargaining agreement that clearly and unmistakably requires union members to arbitrate age discrimination claims is enforceable as a matter federal law.” Writing for the dissent, Justice David Souter said the majority had subverted a 1974 high court ruling in Alexander v. Gardner-Denver in support of policy “favoring arbitration.” The Court in Gardner-Denver, Souter wrote, “held that a clause of a collective-bargaining agreement (CBA) requiring arbitration of discrimination claims could not waive an employee’s right to a judicial forum for statutory claims.”

In a 7-2 decision, the justices overturned a federal appeals court decision that barred payment to federal attorneys involved in state clemency proceeding. In Harbison v. Bell, Justice John Paul Stevens, writing for the majority, concluded that federal law does permit “federally appointed counsel to represent their clients in state clemency proceedings and entitles them to compensation for that representation.” The case involved a convict’s request that the government pay his public defender to represent him in a clemency petition proceeding in Tennessee. In dissent, Justice Antonin Scalia said compensation of federal attorneys should only be permitted in federal cases.

by Alex Kreit, assistant professor of law and director of Center for Law and Social Justice at Thomas Jefferson School of Las in San Diego, Calif. Kreit is author of a recent ACS Issue Brief, “Toward a Public Health Approach to Drug Policy.”

As Congress considers a new chief to lead the Office of National Drug Control policy, the nation faces a crucial moment over its policy on confronting illegal drug use.

Now is the time to look at the nation’s so-called war on drugs, conclude it not working and fashion a new course.

Nearly 40 years after President Richard Nixon signed the Controlled Substances Act into law and subsequently declared a “war on drugs,” it is difficult to describe our drug policy as anything other than a failure. 

Approximately half of high school seniors have used an illegal drug by the time they graduate, more kids say it is easier for them to buy marijuana than alcohol, and a 2008 World Health Organization (WHO) study of 17 countries found that the United States had the highest rates of illegal drug use. Indeed, the WHO found that the percentage of people who have used marijuana in America is more than double that in the Netherlands – 42.4 percent to 19.8 percent where it is openly bought and sold in coffee shops.

Meanwhile, our punitive approach to drug policy has been a leading cause of the explosion in our prison population. In the last 20 years alone, the national prison population has nearly tripled, giving the United States the world’s highest reported incarceration rate. And, of the 2.3 million Americans in prison, approximately one quarter are there because of a drug offense. 

With little comment, the U.S. Supreme Court dismissed Philip Morris’s appeal of a punitive damages award to a smoker’s widow. The high court heard oral argument late last year in the case, but today said the case in Philip Morris USA Inc. v. Williams, was dismissed as “improvidently granted.” The high court’s action lets stand an Oregon Supreme Court ruling in favor of Mayola Williams, whose husband Jesse, a longtime smoker, died of lung cancer in 1997. The Washington Post reports that the punitive damages award of $800,000 has grown with interest to almost $150 million.

Also today, in a unanimous decision, the justices upheld an Illinois Supreme Court ruling that affirmed a murder conviction of Michael Rivera even though the trial court seated a juror his lawyer sought to have dismissed. The Illinois Supreme Court held that the lawyer’s peremptory challenge should have been granted, but that failing to do resulted in a harmless error. The justices agreed. Rivera was convicted of murder for shooting Marcus Lee, a 16-year-old African-American. During the jury selection, Rivera’s lawyer sought to use a peremptory challenge to block Deloris Gomez from the jury. Gomez said during questioning that she worked in a county hospital where she interacted with patients, some of them gunshot victims, during the check-in process. Gomez maintained, however, that her work would not make her a biased juror. The trial judge, however, refused to dismiss Gomez, suggesting that she was being discriminated against. The Illinois Supreme Court concluded that while Gomez should not have been seated, the situation did not amount to the type of error that required reversal of the conviction. Writing for the Court in Rivera v. Illinois, Justice Ruth Bader Ginsburg concluded that because “peremptory challenges are within the States’ province to grant or withhold the mistaken denial of a state-provided peremptory challenge does not, without more, violate the Federal Constitution.” Ginsburg continued that the “trial judge’s refusal to excuse juror Gomez did not deprive Rivera of his constitutional rights to a fair trial before an impartial jury.”

In another unanimous decision, the Supreme Court ruled that a congressional resolution apologizing for the overthrow of Hawaii’s monarchy in 1893 did not bar the state from selling or transferring some of its land. Writing for the Court in Hawaii v. Office of Hawaiian Affairs, Justice Samuel Alito concluded that the Hawaii Supreme Court “incorrectly held that Congress, by adopting the Apology Resolution, took away from the citizens of Hawaii the authority to resolve an issue that is of great importance to the people of the State.”

Gov. Kathleen Sebelius (D-Kan.) recently published a compelling article in the Harvard Law & Policy Review, the official law journal of ACS.
 
In "Bearing the Burden of the Beltway: Practical Realities of State Government and Federal-State Relations in the Twenty-First Century," co-authored with her son Ned, Sebelius "considers ways that President Obama and the new Congress could improve federal-state collaboration." As the authors write, "This Article is not a theoretical commentary about where federalism's proper constitutional balances lies ... . Instead, we hope to share some insight into the practical challenges facing state governments today, highlighting how federal policies crafted without state governments' input are hindering state efforts to develop sound public policies of their own.”

Perhaps previewing her expected role in the Obama administration, as an aside, Sebelius and her son also write, “The authors of this piece sincerely hope that a universal health care policy comes to fruition in the near future.” However, the authors pass on providing specific elements of how such a policy should be formed.

Sebelius's confirmation hearings for Human Health and Services Secretary began on Tuesday before the Senate Health, Education, Labor and Pensions Committee and proceed Thursday before the Finance Committee.

By Paul M. Secunda, Associate Professor of Law at Marquette University and Research Fellow at the New York University School of Law's Center for Labor and Employment Law.

In Gross v. FBL Financial Services, Inc., being argued Tuesday, March 31, the Supreme Court will address how to analyze mixed-motive claims under the Age Discrimination in Employment Act (ADEA). Nothing less than meaningful access for employment discrimination plaintiffs to relief under Title VII of the Civil Rights Act of 1991 (CRA of 1991) is at stake.

Background

To understand the importance of the Gross case to employment discrimination law, it is necessary to understand a fundamental distinction that has arisen in so-called individual disparate treatment case, where a worker claims they have suffered an adverse employment action based on a protected characteristic under an employment discrimination statutes. Initially, most of these cases were handled under the McDonnell Douglas pretext framework, which requires an employee to establish that the employer’s putative legitimate, nondiscriminatory reasons for its employment actions are pretextual and the real reason for the action was unlawful discrimination.

In 1989, the Supreme Court developed another model for proving disparate treatment discrimination in Price Waterhouse v. Hopkins. There, a woman denied promotion to partner in an accounting firm was able to show both legitimate and illegitimate motives for the employment action. Although a plurality of the court decided that the plaintiff could make out a case by showing the illegitimate reasons for not promoting her were the “motivating reason,” a significant concurrence by Justice O’Connor set up that the illegitimate reason had to be a substantial part of the employer’s motivation and direct evidence was required to show that motivation. Many courts thereafter followed Justice O’Connor’s formulation.

Two years later, Congress enacted the CRA of 1991 requiring only that the illegitimate reason had to be motivating. Unfortunately, Congress did not make clear its intentions about what framework should govern age discrimination claims under ADEA. The issue thus plaguing the courts since 1991 is whether ADEA cases should continue to use the older Title VII mixed-motive analysis under Hopkins (which requires a higher showing of the illegitimate reason being substantial and direct evidence of the adverse motivation) or the lower standard under the CRA of 1991 (require mere motivating and now, after Desert Palace, Inc. v. Costa, allowing for both direct and circumstantial evidence of the motivation).  

Gross: What’s at Stake

Although many believe that mixed motive cases generally favor plaintiffs more in litigation than pretext cases, it also appears that plaintiffs do much better (and get courts to give the necessary mixed-motive jury instruction) in cases where the CRA of 1991 is applicable. There is also the thought that mixed motive theory more closely reflects what happens with employment decisions in real life – the analysis allows for the decisionmaker to consider that the employer usually offers a range or layer of reasons – some legitimate, some illegitimate – when it is carrying out an adverse employment action, and it is the decisionmaker’s job to try to figure out whether the illegitimate reason motivated the employer.

Gross is a hard case to predict because there are at least two or three strong arguments cutting in different directions. One argument, likely to be favored by conservative justices like Scalia, Thomas, Roberts, and Alito, is a textualist approach arguing that Congress knew what it was doing, could have expressly included the ADEA in the CRA of 1991, but chose not to for whatever reason. If we are unhappy with the current state of affairs, the argument continues, the proper approach is to allow Congress to amend the CRA of 1991 to include ADEA claims.

The Volokh Conspiracy’s Jonathan Adler notes recent commentary exploring a legal settlement that if approved by a federal court, would grant Google vast power to control digital publishing rights. Lynn Chu, with Writers Representatives LLC, maintains that if the legal framework were approved by a federal court, it “would permit Google to post out-of-print books for reading, sales, institutional licensing, ad sales, and other publishing exploitations,” by the online search engine giant. Chu notes that the settlement is fashioned between Google and only a “handful of authors and publishers,” but would cover every author and publisher in the nation.  

Chu writes that:

There is nothing more individual in the world than a book, an author, a publisher, and the value of a contract. The aging baby boomers now flacking the settlement dome seem to understand that PDF scanning (how Google and everyone else digitizes books) isn’t rocket science; it’s cheap and easy. Books will be digitized without Google. But the Google settlement sets in amber today’s overhyped role of the Internet, ruled by that great and magnificent Oz – Google.

 

Chu says the court should reject the Google settlement:

We already have a good system. It’s called the system of private property and free contract, designed for dispersed, autonomous individuals – not command-and-control centers. The U.S. Constitution grants authors small monopolies in their own copyrights. Author market power is talent-based and individual, not collective. The class action seeks to wipe all this out – just for Google. But U.S. law does not grant any single publisher monopoly power to herd all of us into its list.

The U.S. Supreme Court today turned away Virginia’s request to review a lower court decision that invalidated the state’s anti-spam law. The Virginia Supreme Court concluded that the anti-spam law violated the First Amendment because it also prohibited political and religious messages from being sent via e-mail. The law in Virginia v. Jaynes was intended to bar unsolicited commercial e-mail.

The high court announced it would hear oral argument in a water-dispute case involving the Carolinas. Specifically, the justices will consider a Special Master report on the dispute. Lyle Denniston writes for SCOTUSblog that the justices must decide whether other entities should be allowed to enter the litigation. Denniston notes that the U.S. Solicitor General “joined South Carolina in resisting a recommendation by a Special Master who is processing the case to allow the city of Charlotte, N.C., plus an interstate water supply organization and a hydroelectric power company, Duke Energy Carolinas, to enter the case as parties. Special Master Kristin Linsley Myles, in a report formally filed in January, urged the Court to allow all three to intervene. It is that report, an interim recommendation in this water-sharing dispute, that the Court will consider at oral argument.”

“There is just one small thing standing in the way of lawmakers and the beginning of the two-week spring recess: a $3.6 trillion budget for the federal government,” reports CongressDaily. The Senate schedule tells the tale of the next five days on Capitol Hill. The budget will appear to be all that matters. And according to The Huddle, “By adjournment Friday, the president should get most of what he wants out of Congress.”

However, other items deserve note. Lawmakers will be watching the contentious special election Tuesday to determine who will take the House seat formerly held by Sen. Kristen Gillibrand (D-N.Y.) from New York’s 20^th congressional district. Also, after a “third way” proposal on labor law reform, and Sen. Arlen Specter (R-Pa.) revoking his support for “card check,” expect continued wrangling on the Employment Free Choice Act.

IN the HOUSE

On the budget, the House is openly threatening to employ a procedure known as “reconciliation,” which “creates a privilege that cannot be filibustered in the Senate,” according to The Washington Post. “That means that Democrats could pass the measure with 51 votes,” in the Senate, where the House Democrats have seen their agenda frustrated to some degree.  

The House is also scheduled to consider Senate amendments to the Sen. Edward M. Kennedy Volunteerism Act, formerly known as the Generation Invigorating Volunteerism and Education Act. Among other expansions in volunteering opportunities, the legislation would more than triple AmeriCorps positions from 75,000 to 250,000.

IN the SENATE

The Senate hopes to conclude its required 50 hours of consideration on the budget by Thursday. Beyond this, the Senate is currently scheduled to give no other item consideration of the full chamber this week.

In committees, a handful of nominations are moving forward. Among them is the nomination of Gov. Kathleen Sebelius (D-Kan.) – who recently published a piece in ACS’s official journal the Harvard Law & Policy Review – for Health and Human Services secretary. Also this week, the Judiciary Committee will consider President Obama’s first nomination to the federal bench, U.S. District Judge David F. Hamilton nominated for the Seventh Circuit U.S. Court of Appeals.

The major workers’ rights bill pending in Congress will not spark job losses if enacted says Dean Baker in an interview with ACS Blog. Baker, co-director of the Center for Economic and Policy Research, said that opponents of the Employee Free Choice Act (EFCA) have mounted a misleading campaign to scuttle the bill’s passage. Baker talked with ACS Blog after participating in a recent panel discussion at the National Press Club on EFCA. His interview is below.

Also in an interview with ACS Blog, American Rights at Work Research Director Julie Martinez Ortega says EFCA is critical to helping build the nation’s middle class, and to helping make employers more competitive. Ortega was also a participant of the recent panel discussion, which can be watched here.

By Corynne McSherry, Staff Attorney and Kahle Promise Fellow with the Electronic Frontier Foundation, which champions civil liberties in the networked world.

Digital right advocates have long worried that use of content filters on user-generated content sites such as YouTube, ostensibly designed to identify and allow easy removal of copyright-infringing works, would necessarily result in the removal of legitimate music and videos. It’s not hard to see why: machines have a hard time discriminating between an identical copy and a transformative remix.

In the past few months, those fears have become a reality. As a result of a dispute between Warner Music and YouTube, Warner has set YouTube ‘s “Content I.D.” filter to remove all videos identified as containing any Warner music. (For more than two years, Warner permitted these uses and silently shared in the advertising revenue for the videos that included a "match" to its music.) As a result, thousands of videos are being disappeared from one of the Internet’s most popular and accessible arenas. In fact, according to statistics kept by YouTomb, there were twice as many videos removed from YouTube in January 2009 as in the entire previous year combined.

The censored videos include:

·        A homemade instructional video by a sign language teacher that used a Foreigner song, “Waiting For a Girl Like You,” in the background;

·        An a cappella tribute to film score composer John Williams;

·        A series of very funny “literal videos” in which the creator has rewritten the lyrics to 80s-era music videos to match the actual visuals (happily some of these are still available on another site);

·        Multiple homemade videos by amateur musicians (aka the “Living Room Rock Gods” or LRRG) intended to teach other amateurs how to play their favorite songs;

·        A parent’s video of a 4-year-old lip-syncing to another Foreigner hit, “Juke Box Hero.”  (Pictured below.)

These videos are clearly non-infringing fair uses. For example, the Juke Box Hero lip-sync is a transformative, noncommercial video that does not substitute for the original song, and there is no plausible market for "licensing" to parents the right to video their own children lip-syncing. There is no infringement and no reason for being censored off YouTube, except irresponsible, mechanized over-enforcement by Warner Music.

Improper takedowns on YouTube are not new. For example, during last year’s election season, both presidential campaigns had parodic campaign commercials taken down from YouTube because they incorporated footage from network newscasts. The problem is getting worse, however, with the deployment of automated tools, such as YouTube’s Content I.D. system, that remove content without bringing a human into the loop.

Although YouTube users can dispute Content I.D. takedowns (as some of the LRRG have,) many are afraid to do so. Challenging a dispute could invite a lawsuit, and a loss could put the user on the hook for statutory damages and even attorneys’ fees. However unlikely—it’s hardly in the interest of a copyright owner to sue a creator who has engaged in an obvious fair use, and we’re not aware of any content owner ever suing an individual YouTube user over a remix video—that is a chance that many people aren’t willing to take.

Warner has attempted to disclaim responsibility, claiming it simply identifies “unlicensed tracks” – YouTube takes them down. YouTube, for its part, acknowledges its users “disappointment” and leaves them to file formal disputes or swap in a new song—the latter option being a poor one for all of the videos identified above.

Enough finger-pointing. This is copyright-as-censorship at its worst and it must be stopped. First, YouTube must fix the Content I.D. system so that it does not remove videos unless there is a match between the video and audio tracks of the work alleged to be infringed. Second, Warner should use the filter solely to identify infringing works, bringing a human into the loop before videos are taken down. That’s the only way to ensure that the fair use “dolphins” can be pulled from the takedown dragnet. If Warner won’t take that reasonable step, it should at least promise that no one will be sued for simply challenging a Content I.D. removal. Warner loses nothing with this promise: even after a user files Content I.D. dispute, Warner still has the option of using a formal legal notice under the Digital Millennium Copyright Act to remove videos to which it really objects. But fair users will gain something crucial: reassurance that they can raise the red flag without finding themselves in the middle of an expensive and unexpected lawsuit.

Until these steps are taken, YouTube’s potential as a platform for free speech and new creators will remain unrealized.

In a symbolic swearing-in ceremony today, U.S. Attorney General Eric Holder again signaled his intention to lead the department in a new direction. Holder, the 82nd attorney general and a former member of the ACS Board of Directors, said during the ceremony at the Justice Department headquarters that he would strive to be guided by the nation’s cherished principles, such as equality before the law. The Washington Post also reported that Holder tried to “inspire career prosecutors demoralized by political hiring scandals during the Bush years.”

Holder, in regards to upholding constitutional values, said:

My friends, the true test of our nation’s greatness is whether we uphold our most cherished principles, not when it is easy, but when it is hard. Our nation – our Department – has met this test in times past. We will do so again. You – the women and men who compose the Department of Justice – know that there is no contradiction between our ideals and our efforts to enforce the law. Our commitment to the rule of law, to equal protection, and to Due Process are not an obstacle to overcome, but the foundation upon which you – and generations of our predecessors – have built this Department’s long and storied history.

 

The U.S. Supreme Court has obstinately stood by one its worst rulings writes David H. Gans of the Constitutional Accountability Center (CAC). More than a hundred years ago, the high court in United States v. Cruikshank overturned convictions of three men involved in a deadly mob attack on African Americans in Louisiana.

Gans, director of CAC’s Human and Civil Rights Program, maintains that the case should have been clear cut:

The Fourteenth Amendment placed on state governments a duty to protect its citizens and other persons living in its jurisdiction from criminal acts and civil wrongs, and gave Congress the right to legislate to secure the right of protection when states refused to carry out their constitutional duty. This right of protection was one of the very reasons the Fourteenth Amendment was added to the Constitution – immediately after the Civil War, Southern states had left the newly freed slaves utterly unprotected from violent reprisals and other wrongs at the hands of white terrorist groups.  

Instead of overturning Cruikshank, the Court treats it, Gans writes, as a “super-precedent immune from reconsideration because it was decided soon after ratification of the Fourteenth Amendment.”

by Steve Sanders, a Chicago attorney specializing in appellate litigation and co-editor of the Sexual Orientation and the Law Blog. His personal homepage is www.stevesanders.net.

Conservative columnist George Will this week offered a bracing condemnation of the elected legislators – or, in his words, the 328 “braying ... yahoos” – who voted to punish a “small, unpopular group” by taxing the AIG bonuses. Will also accused both the president and Congress of “lawlessness” and “situational constitutionalism” for their handling of issues such as NAFTA, standards for Mexican trucks on U.S. highways, congressional representation for the District of Columbia, and the financial crisis generally. 

Without getting into the merits of Will’s complaints, let it first be said that it's refreshing to hear a conservative sounding alarm bells about the threats that the political branches of our government sometimes pose to constitutional principles. Indeed, this is the same instinct that animates many of us who advocate and litigate on behalf of individual rights and civil liberties. Of course, even the gutsiest civil libertarian might blanch before excoriating legislators (at least in public) as “yahoos.” After all, civil libertarians have had to learn what sells. Reasonable arguments are more likely to work than ad hominem, tell-it-like-it-is condemnations, as cathartic (and apt) as those condemnations might sometimes be.

What’s more curious about Will’s attack, though, is that it seems itself to be a bit “situational.” When the issues he cares about are at stake – protecting NAFTA, denying representation to the residents of D.C. – Will calls down wrath against opportunistic politicians whom he says regard the Constitution as merely a “cobweb constraint.” Yet when it comes to attempts by Congress or the states to legislate in others ways that threaten individual rights and constitutional values, Will, like so many of his brethren, seems willing to entrust basic human liberties to the wisdom of these same politicians.

Cities, states and localities are struggling to address a rising tide of homelessness. “These are able-bodied folks that did day labor, at minimum wage or better, who were previously able to house themselves based on their income,” said Michael Stoops, executive director of the National Coalition for the Homeless.

Rising unemployment is forcing many Americans into a desperate position where, Slate writes, they “are turning to a strategy that has cropped up repeatedly in American history – squatting.

“Squatting, or unlawfully occupying and making use of land that belongs to someone else, tends to emerge when poverty and homelessness intersect with absentee ownership.” How lawmakers have managed these situations so far has been as variable as the locations in which tent cities are arising.

“While encampments and street living have always been a part of the landscape in big cities like Los Angeles and New York, these new ten cities have taken root – or grown from smaller enclaves of the homeless as more people lose jobs and housing – in such disparate places as Nashville, Olympia, Wash., and St. Petersburg, Fla.,” reports The New York Times. “A tent city in Sacramento prompted Gov. Arnold Schwarzenegger to announce a plan Wednesday to shift the entire 125-person encampment to a nearby fairground. That came after a recent visit by ‘The Oprah Winfrey Show’ set off such a news media stampede that some fed-up homeless people complained of overexposure and said they just wanted to be left alone.”

Paul Stack, operations manager of a homeless outreach center in Sacramento, said, “They just popped up about 18 months ago. One day it was empty. The next day, there were people living there.”

In Fort Lauderdale, Fl., however, “There are very few places … where [homeless people] can stop and park without police chasing them off,” reports CNN.

New York lawmakers and the governor have agreed to restructure the state’s strict drug laws. The agreement, which must be approved by the Assembly and Senate, would repeal much of the state’s drug laws, such as mandatory minimum prison sentences for low-level drug offenders, once considered among the nation’s toughest, The New York Times reports.

The new drug policy would give state judges greater discretion to force first-time drug offenders into treatment instead of prison and allow some prisoners to petition the government to have their current prisons sentences commuted. A spokesperson for Gov. David A. Paterson (right) said the agreement reflects “the governor’s core principle to focus on treatment rather than punishment to end the cycle of addiction.” In a recent ACS Issue Brief, Professor Alex Kreit urges lawmakers to take similar approaches to combating illegal drug use. Citing new studies, Kreit concludes that the nation’s war on drugs is a “failure,” and says more resources must be put into treatment and prevention. The Issue Brief is available here.  

States where religious groups are less influential are more likely to push for expanding marriage rights, a USA Today analysis finds. The newspaper cites a string of New England states with growing populations of people following no religion where lawmakers are considering same-sex marriage bills. “Same-sex marriage proposals are sweeping into New England state legislatures this spring, particularly in places where organized religion religious opposition may be the weakest,” the newspaper reports. In Vermont, the state Senate recently approved a bill supporting same-sex marriage. Legislatures in New Hampshire, Rhode Island and are New York are also likely to consider similar measures. The newspaper notes that in states where high populations of religious believers do reside, it is much more likely the states have or are considering laws or amendments banning same-sex marriages.

A bipartisan group of House Judiciary Committee leaders has filed an amicus curiae brief in the case of NAMUD v. Holder. In NAMUD, the Supreme Court is considering whether Congress’s 2006 extension of the landmark Voting Rights Act was sufficiently justified to pass constitutional muster.

In their amicus brief, Reps. John Conyers (D-Mich.), Jerrold Nadler (D-N.Y.), James Sensenbrenner (R-Wisc.) and Melvin Watt (D-N.C.), along with former Rep. Steve Chabot (R-Ohio), urged the court to uphold Section 5 of the Act, which “gave the legislation teeth,” according Jeffrey Toobin.

Section 5 singles out states and counties with histories of discriminating against African-Americans through erecting obstacles to their exercise of the right to vote. Under Section 5, those districts may only change election laws with approval from the Justice Department.

ACS is co-hosting a discussion of NAMUD and recent evidence of racially polarized voting patterns featuring John Payton, president and director-counsel of the NAACP Legal Defense Fund and Reps. Sensenbrenner and Watt at 12:00 p.m. on Thursday, April 2 at the National Press Club. Registration is free here and video of the event will be made available, along with video of prior ACS events, here.

Oral argument in the case is scheduled for the Supreme Court’s final day of the term on April 29.

Sitting en banc, the 9^th U.S. Circuit Court of Appeals heard oral argument yesterday in the largest sex discrimination case in American history in Dukes v. Wal-Mart.

The issue considered by the court was “whether to uphold a lower court ruling allowing about 2 million current and former female Wal-Mart workers to sue the firm for sexual discrimination as a group,” reports Reuters. “The lawsuit argues that female workers were paid less and received fewer promotions at Wal-Mart than male counterparts and that the firm’s corporate structure fostered this gender discrimination and made it pervasive at over 3,000 U.S. stores.”

Wal-Mart is challenging the class certification granted by the district court and previously approved 2-to-1 by the 9^th Circuit. According to the San Francisco Chronicle, “The company maintains that allowing as many as 2 million past and present female workers to claim they were harmed by Wal-Mart policy, rather than requiring each woman to prove she was wrongly denied pay or promotion, ‘takes away the rights of the defendant,’ attorney Thedore Boutrous told an 11-judge panel.”

“This is not ‘Wal-Mart didn’t know what was going on,’” plaintiffs’ counsel Brad Seligman (pictured above with lead plaintiff Betty Dukes) told the court. “This is conduct that was approved of and acquiesced [to] for years.”

“The Obama administration has sided with the plaintiffs,” wrote the San Jose Mercury-Sun. “The U.S. Equal Employment Opportunity Commission filed a brief last week arguing Wal-Mart’s position would keep the government from ever seeking punitive damages from companies with a pattern of discrimination and would impede the EEOC’s ability to enforce discrimination laws.”

Observers expect either party to appeal to the Supreme Court upon losing before the 9^th Circuit.

The Supreme Court entertained oral argument today in Citizens United v. Federal Election Commission, and “seemed poised to create a new exception to federal power to regulate what advocacy groups can say during national political campaigns,” according to SCOTUSBlog.

Last year, the Federal Election Commission (FEC) blocked pay-per-view broadcasts of a film entitled “Hillary: The Movie,” which NPR reports was “a slashing critique of then-Sen. Hillary Clinton.” The Supreme Court has since been asked to review that censorship, with the conservative group that produced the film alleging that its First Amendment rights were violated as a result.

“When the argument turned to such First Amendment horrors as banning books, banning Internet expression, and banning even Amazon’s book-downloading technology, ‘Kindle,’ the members of the Court seemed instantly to recoil from the sweep of arguments made by Deputy Solicitor General Malcolm L. Stewart,” for the FEC, reported SCOTUSBlog’s Lyle Denniston . “Even Justice David H. Souter, who tends to support government regulation of campaign spending looked and sounded stunned.”

The issue before the court is whether the 90-minute film could be characterized more appropriately as a documentary or as a campaign attack ad warranting FEC regulation.

ACS’s fourth annual Constance Baker Motley National Moot Court Competition enters its second preliminary regional round this weekend at Howard University School of Law. More than 70 teams from 45 law schools are participating in the regional competitions with the final round to be held at the 2009 ACS National Convention in Washington, D.C. this summer. The Moot Court case centers on issues dealing with the extent of presidential power and access to justice, including whether the executive branch can successfully raise the state secrets privilege to dismiss a legal challenge to a warrantless domestic spying program. The competition will take place on March 28 and 29 at the Howard University law school. Lawyers interested in serving as judges in the moot court should respond via this webform.

The moot court competition is named in honor of Constance Baker Motley (right), who played a vital role in the advancement of civil rights and women’s rights in American. Motley, who died in 2005, won nine of the ten cases she argued before the U.S. Supreme Court and became the first African American woman to be elected to the New York State Senate. In 1966, Motley became the first African American woman appointed to the federal judiciary, and in 1993 she was inducted into the National Women’s Hall of Fame.

Lawyers who want to judge in this weekend’s moot court competition should complete this webform.   

The Treasury Department is applying a full-court press to support Secretary Timothy Geithner’s “Legacy Assets” plan – a public-private partnership to relieve bank of $1 trillion in toxic assets. While stocks have soared, commentators are questioning how Congress will field this proposal in addition to the administration’s already ambitious agenda.

Meanwhile, the war of words on the Employee Free Choice Act (EFCA) continues heating up. Three corporations offered a compromise to EFCA. However, the compromise was roundly criticized: business lobbyists called it a “non-starter,” unions condemned the effort as “cutting backroom deals trying to protect their narrow interests,” and the lawmakers who introduced EFCA termed it “unacceptable.”

IN the HOUSE

The House has another chance to pass the Omnibus public lands act, which has seen a procedural gauntlet including amendments and previously being defeated in the House. The bill would set aside hundreds of thousands of acres of wilderness currently unprotected.

The DC Voting Rights Act continues languishing in the House after the Senate passed an amended version that would weaken DC gun safety laws.

IN the SENATE

The Senate proceeds one senator short. The determination of whether Al Franken or Norm Coleman will join the chamber from Minnesota will soon appear before the state’s supreme court. An attorney for Coleman says the three-judge panel overseeing the ongoing trial is likely to enlarge Franken’s lead. However, Coleman’s camp is more optimistic about their chances before the supreme court.

After House passage last week, the Senate now considers the TARP bonus tax bill, which would tax bonuses at a rate of 90 percent if distributed by companies that took bailout money. Less likely to advance this week is a recently introduced bill to provide cameras for federal courtrooms. Also, the Senate is “expected to adopt” the House bill creating thousands more opportunities for paid community service.

In a post for Politico’s “The Arena,” former Solicitor General Walter Dellinger examines the nomination of Dawn Johnsen to head the Office of Legal Counsel (OLC). The Senate Judiciary Committee voted 11-7 last week to send the nomination to the entire Senate for consideration. Johnsen (right) is a professor of law at Indiana University School of Law and former acting assistant attorney general for OLC during the Clinton administration.

Dellinger says Johnsen’s critics have raised unfounded criticisms of her professional career:

Dawn’s legal work at the outset of her career for a pro-choice advocacy organization (at a time it seemed the Supreme Court soon might overrule Roe v. Wade), and her more recent work for the American Constitution Society have also been raised against her. But the relevant question is not what causes or parties an individual has worked for in the past, but whether this is a person who can put those prior public service efforts aside when entering into the United States Department of Justice. Officials of both parties have shown that men and women of character do just that. For example, one of our most admired former Justice officials, Theodore B. Olson, has shown how it is done right. Both before and after heading OLC and servicing as Solicitor General, Ted Olson, has been an active, committed and effective advocate for his political party and for conservative causes. But everyone who follows the administration of justice knows that when he assumed the duties at the Department, he left his party and his politics at the door and advanced no interest other than the interests of the United States. Dawn’s work at OLC shows that she is cut from the same cloth.

by Alex J. Luchenitser, Senior Litigation Counsel for Americans United for Separation of Church and State. Luchenitser served as lead counsel in a successful challenge to the State of Iowa’s funding and sponsorship of a fundamentalist religious prison program through which inmates received special material benefits in exchange for submitting to intensive indoctrination.

One of the last acts of the Bush administration was to propose a regulation that would allow officials in federal prisons to bar books from prison-chapel libraries if the books “could incite, promote, or otherwise suggest the commission of violence or criminal activity.” (Emphasis added.)

But many of the world’s most prominent sacred texts could “incite” or “suggest” the commission of violence. Like the Quran, for example. Indeed, it has. At least based on the interpretations some have given it. And, for that matter, so has the Bible.

The result of the regulation, then, would be to allow prison officials to ban just about any religious text they deem unfit. A couple years ago, the Bush administration tried to do the same thing through another route: creating a list of 150 books per religion that would be allowed in chapel libraries. This attempt to produce an official governmental list of “approved books” was wisely blocked by Congress after it generated widespread outrage.

The Bush administration justified its censorship plans on the grounds that terrorists may try to radicalize and recruit prison inmates. That, certainly, is not a concern that should be taken lightly.

Yet we should not, in trying to protect ourselves, compromise the fundamental freedoms and principles of our democracy, lest we become like those whom we most fear. And if prison inmates find that their jailers ignore those principles by wielding a heavy hand of censorship, ultimately this may only increase inmates’ hatred of authority and result in the very radicalism we wish to prevent.

Prisoners have little in prison. For some, religious study becomes a large portion of their lives there, one of the few things that can give their time meaning. To be sure, some inmates falsely profess religion in the hope of obtaining material gains. But others are able to improve their lives, and how they impact the lives of others, by learning a faith.

The Obama administration has promised to be welcoming of all faiths and to rectify the excesses of its predecessor. Abandoning the proposed prison-censorship regulation — as urged by a broad coalition of civil-liberties groups and religious organizations — will be one way it can do both.

With senators readying to consider President Obama’s pick to lead the nation’s drug control office, a new ACS Issue Brief author urges lawmakers and the administration to advance vastly different policies to combat illegal drug use. Alex Kreit, a professor and director of the Center for Law and Social Justice at the Thomas Jefferson School of Law, after studying decades of research on the nation’s drug policies concludes that “our punitive approach to drug policy has been a leading cause of the explosion in our prison population.” During the last 20 years, Kreit writes, “the national prison population has nearly tripled, giving the United States the world’s highest reported incarceration rate. And of the 2.3 million Americans in prison, approximately one quarter are there because of a drug offense.”

In “Toward a Public Health Approach to Drug Policy,” Kreit says the nation’s war on drugs, which has been undergirded by a “vigorous enforcement of uncompromising criminal justice measures” has not only resulted in overcrowding prisons, but has done nothing to curb illegal drug use. Kreit urges the Obama administration and Gil Kerlikowske (right), the former Seattle police chief, who has been nominated to head the Office of National Drug Policy to start shifting resources to supporting treatment and prevention measures.

Kreit concludes in part:

As Congress prepares to consider President Obama’s nomination of Seattle Police Chief Gil Kerlikowske to head the ONDCP, now is the ideal time to come to grips with the fact that adopting a ‘war’ strategy to address a public health problem has not worked. After 40 years, there is a rapidly growing consensus among policy analysts, foreign leaders, and the public that our war on drugs had been a failure.

 

Obama nominated Kerlikowske on March 16; the Senate Judiciary Committee has not yet set a date for a hearing on his nomination.

Kreit’s Issue Brief is available here.

With outrage peaking over bonuses for American International Group employees, the House has passed legislation that would tax such bonuses at a rate of 90 percent. Whether such a tax bill is constitutional is examined by David Savage in The Los Angeles Times.

“[N]o bill of attainder or ex post facto law shall be passed,” according the constitution. Bills of attainder punish specific people, and ex post facto laws punish past wrongdoing. The 90 percent tax rate passed by the House would apply to people earning more than $250,000 in adjusted gross income in 2009 and who get bonuses from companies receiving $5 billion in bailout money.

However, Savage writes that opponents of the law “are not likely to win a court challenge if the legislation becomes law, because courts have given legislatures broad leeway to raise and lower taxes without running afoul of the Constitution, legal experts said.”

“The courts are very reluctant to strike down tax legislation,” said Edward McCaffrey, a professor of tax law at the USC Gould School of Law. “I think a tax this high and this targeted raises some difficult questions, but at the end of the day, I would bet a constitutional challenge would not work.”

While the House passed the bill with a bipartisan 328-93 vote, according to Politico, “The Senate vote won’t be nearly as easy.” The bill’s uncertain future in the Senate is subject to a group of senior Republicans who have vowed to obstruct its progress.

Obama issued a statement saying that the House measure “rightly reflects the outrage” that the public feels over the bonuses. As to whether he may sign the bill into law, Obama has said only that he hopes to see a bill passed “that will serve as a strong signal to the executives who run these firms that such compensation will not be tolerated.”