Law

Down with Voter Suppression

Arizona Republic
(AP Photo/J. David Ake) A rizona's Proposition 200, which passed in 2004, combined two important conservative priorities: voter suppression and anti-immigration demagoguery. It required Arizona voters in federal elections to provide evidence of citizenship that went beyond the requirements of federal law. Today, the Arizona provision was struck down by the Supreme Court, with even two of the Court's most conservative members ultimately unpersuaded that the Arizona law was legal. This decision is an important victory for the voting rights, even if some of the language in the Court's opinion is more sympathetic to Arizona's ends than is appropriate. Today's case involved a question of statutory interpretation rather than the Constitution. The key issue was whether Prop 200 conflicts with the Motor Voter Act, the 1993 law creating a uniform form to streamline federal vote registration by mail. Under the Supremacy Clause of Article VI of the Constitution, conflicts between state law and a...

A Quiet Blockbuster

(AP Photo/J. David Ake) A s we near the end of this Supreme Court term, a number of cases of substantial interest to politically-aware people who aren't court specialists remain to be decided. Landmark rulings involving the constitutionality of affirmative action, crucial provisions of the Voting Rights Act, and laws discriminating against gays and lesbians are still up in the air. People without access to the physical opinions handed out at the Supreme Court building used to have to wait for media reports about the outcome of cases to trickle out. Today, opinions are released almost instantaneously in PDF form, transforming late-term opinion days into a minor event. According to Kali Borkoski of the indispensable SCOTUSBlog , more than 60,000 readers have viewed its live-blogging of yesterday's opinions, with more than 12,000 simultaneous viewers a little after 10 a.m, when the decisions are announced. However, the vast majority of these onlookers did not get rulings in the cases...

Our Bodies, Their Cells?

AP Images/Axel Heimkin
AP Images/Axel Heimkin Editor's note: On June 13, 2013, the Supreme Court, delivered its long-anticipated ruling in Association for Molecular Pathology v. Myriad Genetics. In a victory for the American Civil Liberties Union, the Court ruled that genes cannot be patented. The ruling invalidated Myriad’s key ownership claims over BRCA1 and BRCA2, two of the most important (and often deadly) players in hereditary breast cancer, and effectively overturned 30 years of patent practice. “A naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated,” wrote Justice Clarence Thomas in the unanimous decision. “It is undisputed that Myriad did not create or alter any of the genetic information encoded in the BRCA1 and BRCA2 genes." L ately I have been thinking a lot about breasts. Well, not exactly breasts, but about two of the handful of genes that influence whether breasts develop cancer. These genes are called BRCA1 and BRCA2, and among...

Justice after the Fact

WIkiMedia Commons
Although the Supreme Court is expected to wrap up its term at the end of the month, on Monday the Court declined to hand down any of the blockbuster civil-rights rulings still pending. It did, however, rule in Peugh v. United States , an important opinion that protected a vital democratic value: the prohibition against retroactive punishments. The key question in Peugh involves the application of Article I, Section 9 of the Constitution, which mandates that "No ... ex post facto Law shall be passed." This prohibition reflects longstanding common-law principles central to the rule of law. For a punishment to be lawful rather than arbitrary, it must be clear that the action for which one is being punished was illegal at the time of the offense. Permitting retroactive punishments would give the state the unlimited right to take the life, liberty, and/or property of any person state actors don't like. The ban on retroactively criminalizing criminal activity applies to sentencing as well...

How All Three Branches Conspired to Threaten Your Privacy

WikiMedia Commons
The recent revelations about the court order issued to Verizon asking them to hand over data about the calls made by millions of customers were chilling not so much for the specific information the government was asking for, but for what the order likely portended. Given its massive scope, the potential for spying into electronic communications made much more disturbing revelations inevitable. It didn't take long for the other shoe to drop. In a blockbuster story , Barton Gellman and Laura Poitras of The Washington Post have revealed the existence of a more comprehensive spying program with the code name PRISM involving the National Security Agency and Federal Bureau of Investigation, as well as at least nine telecommunications giants. It's a classic case of how checks and balances have not worked in the way the framers envisioned. Far from checking executive overreach, Congress has authorized dangerous expansions of power while various levels of the judiciary break out their rubber...

The Verizon Data Order and Why It Matters

WikiMedia Commons
G lenn Greenwald of The Guardian had a major scoop yesterday, revealing a court order requiring the communications giant Verizon to hand over information about all the calls in its system, domestic or international. As Greenwald explains, this means "the communication records of millions of US citizens are being collected indiscriminately and in bulk – regardless of whether they are suspected of any wrongdoing." This is a major story that reveals glaring flaws in the current rules governing surveillance and national security—p articularly since, as Atlantic Wire 's Elspeth Reeve points out , it's unlikely that Verizon is the only company being required to turn over records of the calls made by its customers, or that this is the only type of information being sought by the government To be clear, the potential legal and policy problems of this policy are not the same as those of the Bush administration's warrantless wiretapping, which went ahead without the approval of the special...

Scalia Gets It Right

AP Images/Charles Rex Arbogast
The collection of DNA evidence is a powerful crime-control tool, but it also has the potential to lead to greater invasions of privacy. Today, a bare majority of the Supreme Court held in Maryland v. King that the former considerations should outweigh the latter. The Court's ruling both creates important Fourth Amendment law and illustrates some important facts about the personnel on the Court. The question at issue in Maryland v. King is whether DNA information could be collected (via a cheek swab) from someone arrested for—but not convicted of—an offense. The facts of the case certainly make a superficially compelling argument for permitting the practice, as DNA evidence collected from Alonzo King was used to identify him as a suspect in a rape case. But the fact that the policy "worked" in this particular case is not, in itself, an argument that the practice of collecting DNA information from people who haven't been convicted of a crime is a "reasonable" search and seizure under...

Not Too Shabby So Far: Obama's Judicial Legacy

flickr/The Library of Congress
Flickr/Cliff E arlier this week, the White House announced that President Barack Obama would name nominees to fill three vacant seats on the D.C. Circuit Court, touching off a new battle between the White House and Republicans over filibusters and presidential privileges. Despite the fact that appointing judges is one of the powers given to every president by the Constitution, some Republicans reacted as though Obama were doing something horrible by fulfilling this obligation. (You'd almost think they didn't accept the legitimacy of his presidency.) In any case, this argument is likely to heat up over the next few weeks, so we might benefit from some context as charges and counter-charges start flying. To begin with, some background. The nominations at issue here are those to the circuit courts—also known as the courts of appeals—and to the district courts. There are 13 circuit courts with a total of 179 seats, and 89 district courts with a total of 677 seats. The circuit court seats...

Shorting the D.C. Circuit

Wikimedia commons
Flickr/Cliff At least since the Reagan administration, Republicans have taken judicial nominations, especially to the federal circuit courts , much more seriously than Democrats have. As a result, Republican presidents have gotten relatively more nominees confirmed, and their nominees have been younger and more ideologically consistent than their Democratic counterparts. Yesterday, however, there was a sign that this could be changing. As the Prospect 's Paul Waldman noted , Michael Shear of The New York Times reported that President Obama would be simultaneously nominating individuals for all three current vacancies on the D.C. Circuit. This move is clearly intended to make Republican obstructionism a major issue of Obama's second term. And while it's not clear how this bold advance will play out, under any scenario something good will come out of it. As Waldman notes, for now the central Republican argument against the nominations is that Obama is trying to "pack the court." As...

Republicans Looking Sheepish On Obama Court Nominees

Flickr/NCinDC
One of the biggest criticisms activist liberals have had of the Obama administration is that they have not moved aggressively to put their stamp on the federal judiciary. While there has certainly been Republican obstruction of Obama nominees, in many cases the administration hasn't even bothered to nominate anyone to open seats. There are currently 82 vacancies on the federal bench, and in 58 of those, the administration has offered no nominee. So it's good news that they have announced that they are about to offer nominations for the three vacancies on the Court of Appeals for the D.C. Circuit, widely considered the second most important court in the nation, since it hears many critical cases involving the scope of government power. It looks like the administration is betting that the more nominations they put up at the same time, the more attention the issue will get if Republicans try to block them, and the more attention it gets, the more difficult Republican filibusters will be...

Washington, Colorado, and the Headaches of a Legal High

AP Photo/Damian Dovarganes
When Colorado and Washington State passed ballot measures legalizing marijuana last November, they weren’t just the first states in the country to do so—they were the first governments in the world to do so. While other nations and states, most notably the Netherlands and California, have decriminalized marijuana possession, the drug is still technically illegal. That means that while it’s tolerated by law enforcement, the government need not concern itself with a full-scale system for regulation and taxation. But there are advantages to legalizing the drug; Washington and Colorado can have a hand in making the product safer while they benefit from tax revenues. Both states are in the early stages of creating systems for taxation and regulation; the Washington State Liquor Control Board released a set of standards earlier this month, while Colorado’s state legislature has passed a series of recommendations from a task force. The differences between the two states' approaches will...

Five Voting Fights You’ll Care About Come Election Time

AP Images/Dave Martin
Remember last year when we all cared about voting policies? Back then, newspapers were filled with updates on different states’ legal battles over strict voter ID—the laws that require photo identification to cast a ballot. Republicans pushed the laws, ostensibly to combat fraud, but Democrats and voting-rights advocates argued that the actual goal was to suppress likely Democratic voters, since poor and nonwhite communities disproportionately lack ID. With Republicans controlling an unprecedented number of state legislatures in the wake of the 2010 Tea Party wave, voter-ID bills began popping up across the country in 2011 and 2012. Similar battles emerged when some states tried to remove names from voter rolls too close to an election. Then there was early voting; Republicans, most notably in Florida and Ohio, cut back early voting days and hours, and voters in several Florida counties faced hours-long lines. Then Obama won, created a commission to find solutions and everyone stopped...

The DOJ's Freedom of Speech Breach

WikiMedia commons
O n Monday, news broke that federal officials had secretly seized the phone records of Associated Press reporters. AP President Gary Pruitt reacted with understandable anger, calling the seizure "an overbroad collection of the telephone communications of The Associated Press and its reporters." Is Pruitt right? There are two questions that need to be answered. Was the seizure legal? And, if so, was it justified? The answer to to the first question, at least based on what we know now, is "probably." A subpoena for records as part of an investigation, as opposed to a search warrant, does not require judicial approval. Intuitively, it may seem as if the First Amendment should shield the press from government investigators. But, at least under current Supreme Court doctrine, this isn't the case. In the 1972 landmark case Branzburg v. Hayes , the Court held that "[t]he First Amendment does not relieve a newspaper reporter of the obligation that all citizens have to respond to a grand jury...

D.C. Circuit v. Worker Rights

WikiMedia Commons
Last week, a decision by the D.C. Circuit Court of Appeals provided an excellent example of how both presidential action and inaction can matter. Because of the former, the National Labor Relations Board had issued a rule intending to alleviate the power disparities between workers and employers. But in part because of action by Republican presidents and inaction by Democratic presidents, the rule is no longer in effect. And while the outcome of the case is hardly surprising, the sheer radicalism of the court's holding is yet another sign of how in the tank much of the powerful D.C. Circuit is for powerful business interests. The case involved a 2011 regulation issued by the NLRB which required employers to post notices informing workers of their right to join a union and providing basic information about how to contact the NLRB. The regulation was challenged by business groups based on an assortment of legal arguments. The District Court upheld the authority of the NLRB to issue the...

LLM: Lawyers Losing Money

AP Images/Chitose Suzuki
American University’s Washington College of Law (WCL) is in crisis. Situated in the toughest job market for lawyers in the United States, the Washington, D.C. school has fallen 11 spots in the U.S. News rankings since the class of 2013 applied. This is in part due to the release of detailed employment statistics that show the schools’ full-time, long-term legal employment rate of 39 percent ranks 5th out of 7 area law schools. A group of students have started a petition to fire Dean Claudio Grossman and a WCL theatrical troupe staged a play, “Grossman’s Eleven,” alluding to the 2001 heist movie starring George Clooney. The school is undergoing a $130 million expansion and has moderately grown its LLM program—a once rare post-graduate degree whose recent proliferation is becoming to critics a symbol of unscrupulous law school practices. American is not alone in growing its LLM program. From the early 1970s to the late 1990s, the LLM was a marginal degree aimed primarily at foreign...

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