Friday, March 27, 2015

Bipartisan Agreement to Make Massive Changes to Medicare

A bipartisan bill, H.R. 2, Medicare Access and CHIP Reauthorization ACT, would repeal the Sustainable Growth Rate (SGR) formula, which sets a cap on physician spending, and would revamp payment of physicians under Medicare. On March 26, 2015 the U.S. House overwhelmingly (392-37) voted in favor of the bill, also known as SGR replacement bill. The Senate will vote on the bill after recess.

The legislation was introduced by Speaker John Boehner (R, Ohio) and Minority Leader, Nancy Pelosi (D, California). It would repeal the SGR Medicare formula that imposes the imminent threat of cuts to Medicare providers and would eliminate the need for Congress to set payment rates for Medicare physicians annually – a process known as “doc fix”.  Since 2003, Congress has overridden the cuts imposed by SGR on 17 occasions, and the most recent override ends on March 31, 2015.  If Congress does not take action, Medicare payments to physicians will be cut by 21% on April 1, 2015.

 The H.R. Medicare Access and CHIP Reauthorization ACT will

  • Repeal the Sustainable Growth Rate Formula;
  • Ensure a 5-year period of annual increases of 0.5% in payments to physicians;
  • Set up a two-tier payment system that incentivizes a shift to value-based payment systems that reward physicians who meet performance thresholds and make care-coordination efforts for patients with chronic conditions;
  • Incentivize transition to alternative payment models (APMs) by requiring that physicians receive at least 25% of their revenue through an APM in 2018-2019, with an increased threshold overtime; and
  • Extend funding for the Children’s Health Insurance Program (CHIP) and community health centers for another two years.

These changes are estimated to cost approximately $200 billion, and $70 billion of that cost would be offset by two major program changes: (1) higher premiums for higher-income Medicare beneficiaries and (2) reduced governmental spending on supplemental insurance plans, increasing out-of-pocket costs for Medigap recipients.

Because the bill creates five years of payment stability and improves on the existing fee-for-service system, it has overwhelming and rare bipartisan support. President Obama is in support of this bill and commented, “This is how Congress is supposed to work.” He is expected to sign the agreement to repeal the SGR formula.  

However, both Democrats and Republicans have their reservations about the bill. Democrats are concerned about premium increases for higher-income Medicare recipients, while Republicans are worried about budgeting for the remaining $130 billion.

For more information, see these articles in the Washington Post and New York Times.

March 27, 2015 in News | Permalink | Comments (0)

Thursday, March 26, 2015

Republicans Propose to Block Funding for Critical Benefits

Since the 1900s, Congressional Republicans have proposed block grant style funding for Medicaid. A block grant is a fixed amount of money allocated from the federal government to states in order to support social assistance programs. On Tuesday, March 17, 2015 Republican Tom Price, chairman of the House Budget Committee, proposed another block grant budget. If approved, the proposed budget will cut assistance to public programs, while simultaneously increasing the defense budget in an effort to balance federal spending over a decade. By turning public aid programs over to individual states by 2021, he hopes that restructuring these programs will force states to spend more efficiently.

The proposed budget design is modeled on the 1990s welfare reform, which created block grants for the Temporary Assistance for Needy Families (TANF) program. As a result, in the 1990s TANF spending remained stagnant while more Americans, who were previously eligible for benefits, fell deeper into poverty. Similarly, the current budget proposal will cut spending to SNAP and Medicaid by following a parallel block grant model. Last year, as an expandable program, SNAP spending increased to $78 billion dollars as more Americans became eligible; however, the proposed budget would prevent another surge in SNAP spending by determining a fixed amount for the budget, potentially denying previously eligible low-income Americans from receiving benefits. The proposed budget includes cutting SNAP funding by about $1 trillion.

In his effort to balance the budget, the Republican house proposes cutting $5.5 trillion over ten years to public programs that benefit vulnerable Americans. These cuts involve:

  • Repealing the Affordable Care Act (ACA)
  • Reforming the Tax Code
  • Cutting funding to Medicare and Medicaid
  • Eliminating Medicaid expansion

The result of these cuts include:

  • Adults living between 100% and 138% of the Federal Poverty Guideline will be no longer be eligible for Medicaid;
  • About 37 million Americans could lose or be denied health insurance and other critical benefits.

Republicans predict that these cuts will save hundreds of billions of dollars within the decade. By cutting funding to critical benefits that affect the health of many vulnerable Americans, $2 trillion will be saved by repealing the ACA and $913 billion by turning Medicaid into a block grant program. There is also a $150 billion estimated savings by transitioning Medicare to a voucher program for anyone 56 years old or younger, after 2024. Despite medical costs rising and the general population aging, the proposed block grant funding would allocate a fixed amount of funding, which would only increase to account for inflation or a growing population.

For more information on the proposed budget please see the New York Times, Huffington Post, Modern Healthcare, and Politico.

March 26, 2015 | Permalink | Comments (0)

Monday, March 23, 2015

Oregon’s “Motor Voter” Bill Becomes Nation’s First Automatic Voter Registration Law

Amidst the passage of increasingly restrictive voter ID laws, Oregon’s current governor, Kate Brown, recently signed a groundbreaking piece of voting legislation for the state. House Bill 2177 was passed on Monday, and is the first of its kind in the nation. This bill automatically registers any eligible Oregon resident who conducts business with the Driver and Motor Vehicle Services Division to vote. Under the legislation, any Oregonian who is eligible, but not registered to vote and has interacted with the Driver and Motor Vehicle Services Division since 2013 will automatically be registered to vote and receive a ballot in the mail at least 20 days before any Election Day.

As of now, Oregon’s current voting rolls have approximately 2.2 million people registered, and the state predicts another 300,000 voters will be immediately added thanks to HB 2177. Ultimately, over 800,000 new voters can now be registered as a result of this bill. In order to implement the bill, Oregon’s DMV will communicate voter information (such as residential information, age, citizenship status, and signature) to the secretary of state’s office, which will then update the voter registration rolls.  

This measure changes the entire voting landscape in Oregon by shifting the onus of responsibility for voter registration from individual voters to the state of Oregon--replacing the opt-in system with an opt-out system. Residents who are registered to vote under the bill will be notified via mail and those who would not like to remain on the voting rolls have three weeks to notify the state that they wish to opt out. All voters will automatically be registered as unaffiliated with a political party.

This measure was a polemic one for state legislators and votes fell largely along party lines. Democrats, who were mainly in favor of HB 2177, hailed the measure as an important step to support voting rights, especially for young and low-income citizens. However, no Republican, in either the House or the Senate, voted for the bill, and many voiced concern over potential voter fraud issues, the financial burden of executing the law, and the risk of jeopardizing private information. However, as Jeff Mapes points out in an article in The Oregonian, proof of citizenship status is already required to procure a driver’s license and the bill has several provisions in place to protect the information of vulnerable groups, such as victims of domestic violence, to ensure their information is kept private.

The “Motor Voter” Bill is not the first time Oregon has led the nation in innovative voting legislation: In 1998, Ballot Measure 60 was passed, which transitioned the state to an all-mail voting system. Oregon currently has one of the highest voter-registration rates in the nation (in the 2014 General Election, 73% of eligible voters were registered and 70% cast a ballot) and the passage of HB 2177 solidifies Oregon’s position at the forefront of progressive voting policy.

Read more about Oregon’s “Motor Voter” Law in Vox, The Oregonian, The LA Times, and The Boston Globe.

March 23, 2015 | Permalink | Comments (0)

Saturday, March 21, 2015

Death Penalty Repeal in Nebraska? Firing Squad in Utah? Could Happen…

Last week, Utah’s Senate cleared the way for using the firing squad when lethal-injection drugs are unavailable.  This week, death penalty opponents urged Governor Gary Herbert to veto the bill.  Herbert says he’s “leaning toward” signing.  For more on methods of execution, including hanging and the gas chamber, see here.

In other news, Nebraska’s judiciary committee, in a unanimous 8-0 vote, cleared the way for consideration of death penalty repeal by the full legislature.  Significantly, Nebraska’s repeal bill seeks to do what no other recent repeal has done—end the death penalty for those currently on death row as well as for future crimes.  (In New Mexico and Connecticut, inmates on death row prior to repeal remain there post-repeal; in New Jersey, Illinois, and Maryland, governors commuted the sentences of those on death row.)  The Nebraska bill states that, “In any criminal proceeding in which the death penalty has been imposed but not carried out prior to the effective date of this act, such penalty shall be changed to life imprisonment without possibility of parole.”

March 21, 2015 in News | Permalink | Comments (0)

Friday, March 13, 2015

On Right to Work, Part 3: Imagining new models, and policies, for unionism

Half of the states in the U.S. now have “right to work” laws on the books. As earlier posts this week have discussed, such laws do not create anything resembling a real right to work. To the contrary, they create a legal privilege to have job that is covered by a collective bargaining agreement, without paying dues or joining a union.

Legalizing free-riding creates serious problems for labor unions. For decades, their membership and fundraising model has relied on dues collected from members at workplaces with collective bargaining agreements. When workers can free-ride on such agreements, both membership and dues drop off. One study found that within a decade after the passage of “right to work” laws, states generally see a 5% drop in the number of union members. This is a major hit, even in the context of a gradual decades-long decline in union density in every state (NPR’s Planet Money created a map that illustrates the decline over the past 50 years.)

The secular decline and deliberate legislative dismantling of the old model has prompted attempts to imagine what new models for labor unions might look like, and how legislative changes might support them. In a 2006 article in The Nation, Richard Freeman and Joel Rogers proposed a model of “open source unionism,” in which unions would use digital tools to represent workers individually, even at workplaces not covered by collective bargaining agreements. The table below, from their book What Workers Want, summarizes the differences.

Open Source Unionism
Freeman and Rogers, What Workers Want (2006), p. 197


In a useful book that came out last year on innovative public policies to support low-wage workers, Freeman reports that a wide variety of “labor organizations,” many along the lines of open-source unionism, have emerged to provide services to workers in a time when unions can no longer do what they used to. 

But even as new organizations emerge to represent workers in new ways, unions themselves must figure out new strategies for representing workers. A central element of a model along the lines of open-source unionism would be allowing unions to represent workers as individual dues-paying members, rather than as workers at a site covered by a collective bargaining agreement.

In “Restoring Equity in Right to Work Law,” Professors Catharine Fisk and Benjamin Sachs note how such individual representation would be problematic under current federal and state laws. Federal labor law, designed for the traditional model of unionism, requires unions to equally represent all workers in workplaces covered by collective bargaining agreements. In “right to work” states, workers in such workplaces can now decline to pay dues and join the union. Since unions are still required to represent all workers equally, they end up representing many nonpaying nonmembers. One of the possible solutions that Fisk and Sachs propose would be to change federal law so unions can represent only members who pay dues.

This and other ideas for how to reimagine labor law came as part of a thought-provoking symposium issue of the UC Irvine Law Review last May. If you’re not interested in reading all of the contributions, a recent Washington Post Wonkblog post summarized many of their proposals, which range from giving unions a role in immigration reform legislation, to making union elections automatic, to better protecting workers’ freedom of association.

At the moment, the form or forms that workplace democracy will take in the future remains uncertain. But the spread of right to work laws and other anti-union legislation is clearly provoking worker advocates to reassess and reimagine their strategies. Even as some commentators predict that a national right to work law could come within the next decade, the White House is planning a summit on labor for this fall. We can expect to see increasing interest in how labor laws might be changed to either defend the old model of unionism, or, perhaps more realistically, help shepherd a new one into being.

March 13, 2015 in Advocacy, News, Theory | Permalink | Comments (0)

Wednesday, March 11, 2015

On Right to Work, Part 2: Envisioning a *real* right to work, from a French revolutionary to Frank Underwood, via FDR.

Yesterday’s post sought to understand why Scott Walker might have rebranded “right to work” as “freedom to work.” Among other things, his move makes one wonder if conservatives might be concerned that some Americans could (mis)understand “right to work” to actually mean what it says. What if people believed they should have a real right to work?

It isn’t entirely inconceivable. The notion that people should have a right to work has a long history, and has emerged from time to time in policy proposals. Once in a long while, politicians have even sought to act on the proposals. Today, the idea remains very much alive, and could even have a natural constituency.

One early proposal for a right to work came in France, in 1839. Louis Blanc, a Parisian journalist, wrote a series of articles that would be collected and published in 1840 as The Organization of Labor (l’Organisation du Travail). Blanc was a critic of social conditions, and believed that the market would never provide jobs sufficient to meet the needs of the poor. His vision? As he wrote, ASSURE the poor man work.”

Louis Blanc


Blanc proposed to do this by having the state set up a system of “social workshops” in various branches of industry. The government would begin by regulating these closely, including the scale of employment; but after a few years, Blanc believed, the workshops would become self-sustaining voluntary associations.

In the wake of the Revolution of 1848, Blanc became a member of the provisional government. This provided a chance to realize his vision. The government published a decree announcing it would bind itself “to guarantee the existence of the workman by labor,” and to “guarantee labor to all citizens.”

The workshop system began to be set up, and workers were recruited to help build public infrastructure. Yet ultimately the system neither received the full support of the government, nor delivered on the promises of guaranteeing work to all citizens. Blanc fell out of favor both with the poor and the National Assembly, and was forced into exile. 

Although his experiment had failed, Blanc’s ideas lived on, and spread. By 1911, an English version of his proposal had been published in the United States.

During the Great Depression, President Franklin Delano Roosevelt began to develop the ideas that would lead him to suggest Americans have a right to work. In his 1944 state of the union address, he argued that during the course of the Depression and the Second World War, Americans “have accepted, so to speak, a second Bill of Rights.”  He put two rights at the top of the list:

  • The right to a useful and remunerative job in the industries or shops or farms or mines of the nation;
  • The right to earn enough to provide adequate food and clothing and recreation 


Roosevelt died the following year; his bill of economic and social rights was never adopted as part of our written constitution. The work relief programs of the New Deal were neither imagined as, nor converted into, ongoing social workshops. And although the Humphrey-Hawkins Full Employment Act authorized the creation of a “reservoir of public employment” as a response to high unemployment during the 1970s, such a reservoir has never been established. 

Nevertheless, FDR’s vision remains alive in contemporary political debates, and the American policy imagination. In a 2004 book, Cass Sunstein described the Second Bill of Rights as “FDR’s Unfinished Revolution,” and argued that we need it now more than ever. When Sunstein was nominated by President Obama as a top advisor, conservatives seized on this as a reason to oppose his confirmation. Glenn Beck, master of the paranoid style, even cited the Second Bill of Rights when he named Sunstein “the most dangerous man in America.” 

So the idea of a real right to work is still with us. In fact, just a few weeks ago it was proposed by none other than the President of the United States. 

[Spoiler alert: if you haven’t yet binged your way through the first two seasons of House of Cards, consider doing so before reading on. Or you can just catch up on the plot here.] 

The president in question, of course, is Frank Underwood, not Barack Obama. In the latest season of House of Cards, Underwood confronts an unemployment crisis by proposing a radical work-guarantee program. (This isn’t the first time the policy has played a leading role: Kevin Kline created such a program when he played POTUS in the 1993 film Dave.) 


The fictional political world imagined by House of Cards is incredibly cynical, and some reviewers have found its policy-focused plotlines to be tedious. But its creators have tried to imagine how a real right to work policy might play out, and are effectively screen-testing the idea in front of millions of Americans. They have prompted commentators to debate whether it could happen. Does the political deals the show depicts defy political logic? In any case, would the policy be legal? Is it doable in the real world? Is it just plain bonkers?

Meanwhile, out in the real world, scholars have laid out proposals for how a job guarantee program might work. Bill Quigley, a professor at Loyola Law School in New Orleans, has proposed a constitutional right to a job at a living wage. Pavlina Tcherneva, a professor of economics at Bard College, has argued (here and here, and in this video) for creating jobs in the social enterprise sector, rather than through direct public employment. Her proposal is informed by prior research finding that after the 2001 economic crisis in Argentina, poor women far preferred the government’s guaranteed jobs program to the cash transfer policy that replaced it. 

What might Americans think of a right to work law that lived up to its name? You might find potential supporters in unexpected places. In his book, Sunstein notes that a 1998 poll found 64% of Texans agreed that “the government should see to it that everyone who wants to work can find a job.” Even a majority of self-described conservatives agreed with the statement. (The complete polling data are here.) 

Millennials could be a natural constituency for a real right to work law. The effective unemployment rate among Millennials (18-29 years old) hit 16% as recently as 2013. Since then the situation has gotten a bit better, but the unemployment rate for younger Millennials (16-24 years old) is still more than double the overall national rate

A Pew study has found that Millennials are more likely than older generations to say they support an activist government. But the parents of Millennials might also see the value of a jobs program, since currently they are the ones doling out financial support to their kids, a pattern that is cutting into their retirement savings.

Whether or not politicians will propose a real right to work, and whether it could gain public support, remains to be seen. For the time being, “right to work” still refers to policies that dismantle the membership and collective bargaining models that labor unions and employers have relied on for decades. In Part 3, we’ll look at policy ideas that unions and legislators might pursue now that “right to work” is law in half of the states.

March 11, 2015 in Advocacy, News, Theory | Permalink | Comments (1)

Tuesday, March 10, 2015

On Right to Work, Part 1: Governor Walker’s Hohfeldian Moment of Truthiness

Yesterday, Wisconsin governor and all-but-official presidential candidate Scott Walker signed a so-called “right to work” bill into law. It was published today. Wisconsin is now the 25th state with such a law. But interestingly, Walker was careful not to describe what he signed as a “right to work” law. From his quotes at the signing event to the sign taped to his desk to his press release, he instead called it a “Freedom to Work” law.


(Mike De Sisti/Milwaukee Journal-Sentinel, via Associated Press)

This tweak was a bit odd, since Wisconsin’s Legislative Reference Bureau had summarized S.B. 44 by writing “This bill creates a state right to work law.” The term “right to work” also appeared in the text of the bill itself, and now in 2015 Wisconsin Act 1

Why the difference? Why “freedom” rather than “right”?

It could be that Walker and his aides were simply looking for a better frame. Though it’s not clear what was wrong with “right to work” in the first place. “Right to work,” which no less a wonk than Ezra Klein has called “a triumph of framing,” has put opponents on the defensive, fumbling for alternatives such as “right to work for less,” or “so-called ‘right to work’” (see above), or even “right to freeload.” 

Perhaps instead — who can really say? — the change was because Walker doesn’t want to foster the impression that his law actually creates a right to work. It doesn’t, of course, not any more than it creates a duty to provide employment. (More tomorrow, in Part 2, on ideas of what that — an actual right to work — might look like.) 

If this is the real reason behind Walker’s reframing — and admittedly, it’s probably not — then he might be commended for trying to get things at least a little closer to the truth. We might think of “freedom to work” as an almost-truth, a little bit of Walkerian truthiness.

Why does it get closer to the truth? Here we must summon the ghost of Wesley Hohfeld, who just over a century ago wrote in the Yale Law Journal that “the term ‘rights’ tends to be used indiscriminately to cover what in a given case may be a privilege, a power, or an immunity, rather than a right in the strictest sense; and this looseness of usage is occasionally recognized by the authorities.”

Hohfeld famously (at least among legal scholars) took it upon himself to clear things up, by laying out a scheme of fundamental jural relations: 

 Screen Shot 2015-03-10 at 11.28.29 AM

In Hohfeld’s terminology, jural correlatives are legal relations in which one thing corresponds to another. For example, if X has a right against Y to receive employment, the correlative is that Y is under a duty toward X to provide employment. Obviously, this sort of right-duty relation is not what is at stake in “right to work” laws.

Instead, Walker’s reframing moves us over one column in Hohfeld’s table of jural correlatives. Hohfeld noted that “a privlege is the opposite of a duty, and the correlative of a ‘no-right.’” Here, if we think of Walker’s “freedom” as equivalent to Hohfeld’s “privilege” then at least Walker has identified, probably unknowingly, the correct jural relation in play. As Hohfeld put it, “A ‘liberty’ considered as a legal relation (or ‘right’ in the loose and generic sense of that term) must mean, if it have any definite content at all, precisely the same thing as privilege.” 

So the law Walker signed gives workers a legal privilege — not to work per se (they already had that privilege), but to work without having to join a union or pay dues. This is the jural opposite of the duty that collective bargaining agreements could have created for workers as recently as last week. Then, a collective bargaining agreement could have created a duty on the part of a worker to pay the equivalent of dues. Not so anymore. After today, agreements renewed, modified, or extended may not create such a duty. 

The correlative to the new legal privilege created by Walker’s “freedom to work” law is a no-right on the part of any person to compel a worker to join a union or pay the equivalent of dues as a condition of employment. What’s more, the law criminalizes the violation of this no-right. This is to say that any bosses (union or actual) who assert a right to compel union dues or membership not only don’t have that right, but have also committed a Class A misdemeanor. This criminal liability provision, of all things, is what falls under the title “Right to Work” in Section 12 of the Act.

In the end, then, putting “so-called” in front of “Right to Work” is conceptually correct. As Walker seems to have acknowledged, the law doesn’t create a right to work — it creates a freedom, or legal privilege, to work without having to pay dues or join a union. Put differently, it creates a legal privilege to free-ride on the agreements that unions have negotiated with employers.

Tomorrow, Part 2 will take a look at some visions people have had of a real right to work — and how their proposals have played out. And, later in the week, Part 3 will survey legislative proposals for the labor movement, now that workers in half the states have a legal privilege to free-ride.

March 10, 2015 in News, Theory | Permalink | Comments (0)

Monday, March 9, 2015

Catching up on news from the states

In case you missed them, some interesting articles came out late last week concerning legislative developments in the states.
ProPublica and NPR reported extensively on the ways in which many states have been rolling back worker compensation benefits in recent years. The story was released along with a set of interactive maps, graphs, and graphics that allow you to compare reforms, benefit levels, and employer premiums state by state. Lest this overwhelm readers with data, there's also a moving photo essay illustrating how cutbacks in California have affected the quality of life of an injured worker. 
The New York Times reported on how legislatures in a number of states have been debating whether to allow businesses to discriminate against same-sex couples on religious grounds, in anticipation that the Supreme Court will rule in favor of same-sex marriage later this year.
And Politico reported on a visit by progressive state legislators to Washington DC late last week, noting that their meetings with administration officials and liberal leaders in Congress "seem to signal that national Democrats are finally gearing up to counter a well-financed network of conservative groups led by the American Legislative Exchange Council (or ALEC)," by lining up in support of the State Innovation Exchange (or SiX).

March 9, 2015 in Advocacy, News | Permalink | Comments (0)

Saturday, March 7, 2015

The Crime of Homelessness & Guest Blog by UC Berkeley's Policy Advocacy Clinic

Increasingly, cities across the nation are making it a crime to experience homelessness. As the Director of the new Homeless Rights Advocacy Project at the Seattle University School of Law (HRAP), I'm fortunate to work alongside amazing community advocates and SU law students to combat this trend and to advance the rights of homeless adults, youth, and children. One of HRAP's core partners has been the UC Berkeley School of Law’s Policy Advocacy Clinic- an exceptional group of Berkeley law students working on under the supervision of Professor Jeff Selbin. This group recently released a bombshell of a report, detailing the scope and extent of the criminalization of homelessness throughout California. The Berkeley clinic's damning findings have prompted much-needed legislative attention to this problem. (This May, SU's HRAP students will release an analogous series of reports on criminalization of homelessness throughout Washington state). Today, the Legislation Law Prof Blog celebrates this important anti-criminalization work with a guest blog from Berkeley's Policy Advocacy clinic.


Berkeley Law’s Policy Advocacy Clinic Professor Jeffrey Selbin, and students Marina Fisher, Nathaniel Miller, and Lindsay Walter are pictured above (left to right).

Lindsay Walter is a second year law student at the University of California, Berkeley School of law. She co-authored California’s New Vagrancy Laws: The Growing Enactment and Enforcement of Anti-Homeless Laws in the Golden State as a part of Berkeley Law’s Policy Advocacy Clinic with Marina Fisher, Nathaniel Miller, and Jeffrey Selbin. Professor Selbin, Marina, Nate, and Stephanie Campos, legal fellow at the Policy Advocacy Clinic, also contributed to this blog post.

Too Close To Home: California’s Anti-Homeless Laws

“Every city.” The three of us sat dumbfounded. Two words summed up all of the data we had collected in researching the criminalization of homelessness in California. After examining municipal codes for 58 California cities and categorizing relevant code sections based on restricted activity, we analyzed the number of anti-homeless laws in each city. These laws are more commonly referred to as “quality-of-life” laws. We rejected this misnomer because these laws do not enhance the lives of housed or homeless people. On average, California cities have nine such laws. Every city studied has at least one municipal code—a restriction on sitting and sleeping in public places, resting in legally parked vehicles, begging, or sharing food—that can be used to criminalize people simply because they do not have a home. More shockingly, cities are increasing the pace of enactment of such laws.

Figure 1

Under the supervision of Clinical Professor Jeffrey Selbin and on behalf of the University of California, Berkeley, School of Law’s Policy Advocacy Clinic, I worked with Berkeley law student Nathaniel Miller and public policy student Marina Fisher to write a report about the criminalization of homelessness in California. We produced the report for the Western Regional Advocacy Project (WRAP), a coalition of social justice organizations dedicated to exposing and eliminating the root causes of civil and human rights abuses that impoverished and homeless people experience.

In writing the report, we understood that our objective was to compile information and present our findings about the criminalization of homeless people at the local level. We recognized that such thorough research had not been consolidated before—and after navigating and streamlining inconsistent municipal city codes and puzzling through incomplete enforcement data, we understood why we were the first to do so.

But we did not know how close to “home” the issues in this report would hit. As native Californians, we were disheartened to discover how little progress our communities had made over time in terms of recognizing the basic human rights of all people. Learning that every city had at least one municipal code section in its arsenal to criminalize those without housing seemed cruel. The pervasiveness of these laws across our state indicated that some of the more infamous parts of our American history—laden with laws criminalizing people for no reason other than being “undesirable” in the eyes of their community—lived on.

As we learned more about city municipal codes and their enforcement against homeless people, we struggled to craft a solution to address the pervasiveness of anti-homeless laws across the state. Our legal training emphasizes assigning liability—who has the obligation to remedy the harm done? From a public policy perspective, we similarly ask: what is the root of the social problem? The answer to both, unsurprisingly, is complicated: we, as a community, have the obligation to ensure that people are not criminalized for their mere existence; and we, as policymakers, elected officials, educators, lawyers, students, neighbors, and members of shared geographic space, are the root from which change must emanate.

Given the entrenchment of discrimination in our communities and in our laws, change will be incremental. We need to recognize and celebrate every step made in the right direction. Oregon and Colorado recently introduced Right to Rest bills in their state legislatures. And after months of advocacy and weeks of lobbying efforts, State Senator Carol Liu agreed to author California’s Right to Rest Bill. This bill will prohibit cities from enacting and enforcing local laws that infringe on the human right to exist by denying individuals the right to rest, sleep, and share food in public. The legislation will force cities to find alternate ways of addressing the problem of homelessness without resorting to criminalization through citations and arrests.  

Still, passing a Right to Rest Bill in California will not be enough. Enforcement patterns indicate that harassment and criminalization are the primary tools police agencies have to remove “unwanted” people from the streets. These practices reflect political agendas that respond to public sentiment, suggesting a larger cultural shift needs to happen. Collectively, we must find solutions to provide housing and social services to those in need. By doing this, we will make our communities, and California as a whole, places that we are proud to call home.

Figure 2

March 7, 2015 in Advocacy, News | Permalink | Comments (0)

Friday, February 27, 2015

Georgia Becomes the 14th State to ‘Ban the Box’ on Job Applications

Earlier this week, Georgia Governor Nathan Deal signed an executive order that prohibits state agencies from requiring job applicants to disclose their criminal history in initial application forms. In doing so, Georgia joined 13 other states (including Illinois, Massachusetts, and Minnesota) and over 100 cities that have adopted similar policies aimed at decreasing employment discrimination among individuals with criminal histories.


‘Ban the Box’ policies strive to increase employment and career development opportunities for individuals with criminal convictions. Without initial knowledge of an applicant’s criminal history, employers cannot automatically exclude a qualified applicant based solely on past offenses. The National Employment Law Project estimates that nearly 70 million Americans have criminal records and policies like “Ban the Box” facilitate the reintegration of these individuals into the workforce, reduce recidivism, and increase employers’ pools of qualified applicants.  


The executive order states that over 1,300 offenders re-enter Georgia’s communities each month. The provisions laid out in Georgia’s ‘Ban the Box’ order work to eliminate some of the barriers that ex-offenders face when reintegrating into society. Specifically, it prohibits the use of application forms that require candidates to disclose their criminal records and prevents the use of an individual’s criminal history as an automatic disqualifier from a job. Georgia’s order also provides applicants with the opportunity to discuss the nature and relevance of their criminal history, along with the rehabilitation efforts they have made, with the employer.


While six states have ‘Ban the Box’ policies that apply to both private and public employers, Georgia’s order applies only to employment offered through the state and specifically excludes “sensitive governmental positions.” Nonetheless, Governor Deal’s executive order is important step towards decreasing job discrimination and increasing employment opportunities for people with criminal histories.


See the Huffington Post and the Washington Post for more information.


February 27, 2015 | Permalink | Comments (0)

A Look Inside the Local Government Wing of ALEC

Last summer, the American Legislative Exchange Council (ALEC) announced the launch of a spinoff organization aimed at local government. The American City County Exchange (ACCE) aims to "advance limited government and free market principles in local government through model policies, conferences and online collaboration."

In December, ACCE held its first winter meeting, and it has announced that its second annual conference will be held this July. These meetings give a sense of the ACCE policy agenda, which, not surprisingly, mimics that of ALEC. As the Center for Media and Democracy reported last week, labor issues such as right to work, pensions, and minimum wages are scheduled for discussion at the upcoming meeting.

Also up at CMD's website is a fascinating report on the ACCE winter meeting by Steve Arnold, a Fitchburg, Wisconsin alderman who went "undercover" to find out what was going on. He saw a "corporate dating service in action," where industry lobbyists made presentations on their pet issues and courted officials in what Arnold describes as a "you scratch my back, I’ll scratch yours" manner. Perhaps most interesting is Arnold's reporting on ALEC's "contradictory approach to local control," exemplified by an emerging ALEC/ACCE strategy for pushing right to work through local initiatives in Republican-controlled states right to work states.

The report, available here, is a must-read for anyone interested in local government law and policy.

February 27, 2015 in Advocacy, News | Permalink | Comments (0)

Thursday, February 26, 2015

Codifying Hate

Codifying Hate

Like many other law schools across the nation, here at Seattle U we are celebrating Diversity Week. The terrible irony is that this very week, I’ve seen a stunning display of new anti-diversity laws proposed across the nation: Texas, West Virginia, Florida, Kentucky, Arkansas, and Tennessee are just some of the latest jurisdictions to advance the codification of hate, particularly against LGBTQ people.  Check out the two articles below for more on how some states seem to be celebrating anti-diversity week.
First, behold West Virginia and Arkansas:

West Virginia Committee Passes Bill Banning Non-Discrimination Ordinances by David Badash

February 25, 2015 4:22 PM

West Virginia lawmakers have advanced a bill that would ban towns and cities from enforcing local non-discrimination ordinances. In a heated debate that lasted about one hour, the West Virginia House Committee on Government Organization just passed a bill that bans local governments from enforcing non-discrimination ordinances that expand the state's non-discrimination law. The vote was 16-8.

Targeted at the LGBT community, the bill, if it becomes law, would nullify the non-discrimination laws in six West Virginia cities, and would ban other jurisdictions from enacting non-discrimination laws that protect LGBT people, the elderly, and veterans.

The legislation is being pushed through as a commerce bill, under the claim that it will attract businesses from out of state who would prefer to not have to deal with varying laws in different cities. In truth, most businesses have far stronger non-discrimination  policies than any in the state.

The bill, HB 2881, known as the West Virginia Intrastate Commerce Improvement Act, was filed just Monday and scheduled Tuesday night, displaying Republican's desire to push it through without time for factual debate.

It mirrors a similar bill that just became law in Arkansas, another that is being debated in Texas, and one that is already law in Tennessee. Opponents say it undermines local control.

HB 2881 is sponsored by Republican Rep. Lynne Arvon, who is also sponsoring an anti-gay, religious license to discriminate bill, the West Virginia Freedom of Conscience Protection Act.

The bill moves to the full House for a vote.

Next, check out Texas, Florida, and Kentucky:

 Texas Bill Would Punish Businesses If They Don't Discriminate by Zack Ford

Posted on February 26, 2015 at 9:06 am

Texas State Rep. Debbie Riddle (R) has introduced two new bills that seek to criminalize the use of bathrooms by transgender people. Not only could trans people face jail time and fines for using gender-segregated facilities that match their gender, so too could businesses who make their facilities open to trans patrons.

H.B. 1747 would amend Texas’ existing laws on disorderly conduct by adding a provision that relates to when a person “enters a public restroom that is designated by a sign for members of the opposite sex of the actor.” Sex, it specifies, is established by the individual’s driver’s license. In Texas, transgender people actually can obtain identity documents that match their gender — if judges cooperate.

Riddle’s other bill, H.B. 1748, does not offer the same flexibility. It defines gender as what is “established at the individual’s birth” or “established by the individual’s chromosomes,” with chromosomes controlling if there’s a mismatch. Thus, it erases the experience of transgender people as it sets out very strict rules for who can use what facility. Under HB 1748, it would be a Class A misdemeanor for any individual over the age of 13 to “enter a locker room, shower facility, or toilet facility that is designated for use by persons of a gender that is not the same gender as the individual’s gender.”

Under Texas law, a Class A misdemeanor shall be punished by a fine of up to $4,000 and up to a year in jail. The bill creates exceptions only for those serving a custodial purpose, providing medical assistance, or accompanying a young child that is not of the same gender. The bill also targets any “operator, manager, superintendent, or other person with authority over a building,” stipulating that they may not allow anyone to enter a locker room, shower facility, or toilet facility that does not match their gender. Any facility owner who does allow such access has committed a state jail felony. Texas law would dictate a minimum of 180 days in prison with a maximum of two years, as well a fine up to $10,000.

ThinkProgress has sought comment from Riddle’s office since Monday morning, successfully making contact several times over the course of the week. She has refused, however, to respond with any statement about the anti-transgender legislation she has introduced. On Facebook, however, she did mention back in January her intention to introduce a bill that “will protect women & children from going into a ladies restroom & finding a man who feels like he is a woman that day.”

Riddle’s legislation mirrors similar bills introduced in Florida and Kentucky. Florida Rep. Frank Artiles (R) justified his bill, which is nearly identical to Riddle’s in the way it criminalizes transgender bathroom usage, by using the same line that a man could “choose to feel like a woman that day.” Such claims ignore that transgender people experience and identify with a consistent gender, not one that flips from day to day.

The Kentucky bill, which surprisingly advanced out of a Senate committee this week, specifically targets schools. It would allow cisgender students to sue schools that allow transgender students to use the bathrooms that match their identities. Its sponsor, Sen. E.B. Embry, Jr. (R), admitted that his primary concern is “those who cross dress but are clearly boys (or girls as the case may be),” but his bill nevertheless would target all transgender students as well. Riddle’s bill in Texas similarly includes schools among the building owners that would be criminally liable for allowing transgender bathroom access.

Despite supposed concern for the privacy of women, these bills actually threaten the safety of transgender people, who face significant levels of discrimination and harassment when trying to use the restroom. Michael Silverman, executive director of the Transgender Legal Defense & Education Fund (TLDEF), condemned the bills as “pernicious” for the risk they pose to transgender people. “Lawmakers who sponsor this kind of mean-spirited legislation purport to be looking out for public safety,” he explained. “But in reality, they are creating unsafe conditions by putting transgender people at great risk for harassment and violence.”

February 26, 2015 | Permalink | Comments (0)

Wednesday, February 25, 2015

Prevention is Key: Reactive Lead-gislation Does Not Address Chronic Lead Exposure

Current Laws Do Not Adequately Protect Against Lead Hazards

Most laws in place today, at the federal, state and local level, react to the dangers of lead poisoning, yet do little to prevent negative health outcomes. The majority of current laws merely require landlords to address an already existing lead problem rather than ensure tenant health before families move into an unhealthy environment. Only when an inspection report identifies a lead hazard, is the landlord served a mitigation notice and required to make repairs. To protect vulnerable tenants these policies should be amended to prevent lead exposure, instead of simply react to it.

For example, on the federal level, the Residential Lead-Based Paint Hazard Reduction Act, and the Toxic Substance Control Act address the issue of lead as a contaminant and public health threat by mandating the disclosure of the known presence of lead in a building, and regulating how the substance is monitored. However, because these policies do not require the landlord to conduct a proactive lead inspection, these laws do little to protect tenants from initial lead exposure.

Like the federal laws, state legislation is commonly reactive rather than preventative. For example, the Illinois Lead Prevention Act of 2006, allows for action after a lead harm is discovered, but does not address the issue of lead poisoning prevention. Under the Lead Poisoning Prevention Code, which implements the act, elevated blood lead levels for pregnant women and children 16 years and under are designated as 10μg/dL and for all others as 25μg/dL. Even if an individual has an elevated blood level level, an inspection by the Illinois Department of Public Health is not required unless the individual meets a separate set of standards laid out by the Lead Poisoning Prevention Code (77 Ill. Adm. Code 845.85). Laws, such as these, would be more effective if they were proactive and prevented lead exposure before harm occurred.

Lead Poisoning: A Preventable Public Health Concern

Lead poisoning is one of the most common, yet preventable, pediatric problems in the United States. Lead poisoning stunts brain and nervous system development, causing learning disabilities, behavioral problems, developmental delay, seizures, hyperactivity, and speech disorders. These conditions ultimately result in increased societal costs such as reduced academic success, juvenile delinquency, difficulty finding employment, and life-long health problems. Lead poisoning and exposure is especially dangerous for pregnant women and children, and its effects on health are irreversible.

While there are many sources of lead exposure, including gasoline and water from lead pipes, lead paint is the primary cause of lead poisoning. Alarmingly, this harmful environmental hazard is found in many homes. Although the use of lead paint was banned in 1978, it is still present in many older homes and becomes an even greater health risk with time. As paint ages, it deteriorates and flakes off, resulting in free dust particles. Ingesting or inhaling lead paint dust causes lead poisoning. For children living in houses where lead paint is present, this exposure is a serious health concern.  

Lead poisoning disproportionately affects low-income and minority children. Due to the dearth of safe, decent, and affordable options, low-income and minority families are typically limited to poorly maintained housing stock, where the prevalence of lead is high. African-American and Hispanic children are three and two times more likely to experience lead poisoning than Caucasian children.  

Fortunately, some jurisdictions have implemented preventative lead laws to protect tenants from the dangers of lead poisoning:

  • Washington, DC implemented a Rental Housing Business License Program (D.C. Mun. Regs. Tit. 14, § 200), which requires all landlords obtain a license before they can rent their properties. More importantly, if the tenant has a child in their household and the property dates before 1979, the rental property owner must obtain a clearance report from a licensed professional to determine that there is no threat of lead paint to the family.

  • Philadelphia, Pennsylvania created a Lead Court to specifically address non-compliance with the city’s lead remediation laws. If properties are found to be in violation of lead hazard laws, owners are required to appear in court opposite city prosecutors trained on lead hazards. Studies show  that Lead Court has been successful in increasing the number of properties that are in compliance with lead laws (Campbell C., “Philadelphia’s Lead Court is Making a Difference”Journal of Health, Public Policy and Law. Duke University Press, 2013).

  • In Boulder, Colorado a landlord must apply for a license and have all rental 9 units inspected prior to any tenancy every four years or before new ownership (Boulder, Colo. Rev. Code of Ordinances § 10-3-2). A handful of other jurisdictions have legislation that prevents lead poisoning from homes by mandating that all properties be inspected before they are put on the rental market.

  • New York City has a number of policies surrounding lead safety. These include the New York City Safe Housing Act Alternative Enforcement Program , which addresses housing maintenance code violations by compelling the owner to make effective repairs or have the city government do so within four months of citation. New York City’s Lead Poisoning Prevention and Control Act requires lead inspection, disclosure to any prospective tenants, and approved remediation techniques (N.Y.C. Admin. Code § 27-2056.4).

By abating lead paint, these policies present a better way to address lead poisoning before it causes harm to tenants. As we continue to see the ripple effects of lead poisoning on low-income children and families, it is time for all jurisdictions to adopt preventative strategies to reduce the rates of lead exposure.

For more information about lead poisoning in Illinois, visit

To learn more about model healthy home policies such as these, click here.


February 25, 2015 | Permalink | Comments (0)

Monday, February 23, 2015

Right to Work Comes to Wisconsin

Last Friday, Wisconsin State Senate Majority Leader Scott Fitzgerald introduced a "right to work" bill and announced he would call an extraordinary session this week to pass it. Within hours, Governor Scott Walker, who as recently as December had maintained that pushing right to work would be "a distraction" from his legislative agenda, announced that he would sign the bill.

On Saturday, Jason Stein of the Milwaukee Journal Sentinel reported that provisions of the Wisconsin draft bill are strikingly similar to the ALEC model bill on the topic. (The text of the Wisconsin bill is here, and the ALEC model is here.) Today, Stein reports that Senator Fitzgerald started drafting his bill in mid-December -- apparently despite Walker's assertion it would be a distraction -- and looked to Michigan's right to work law as a model. (24 states have enacted right to work laws.)

long article up at Bloomberg News lays out how Governor Walker has managed to get within reach of this major legislative victory, despite -- and perhaps partly thanks to -- years of declarations that he'd never get to this point. Among other things, the article suggests Walker may have been playing a long game of "divide and conquer," as he said on video to a major donor who asked him if Wisconsin would ever become a right to work state.

Wisconsin's union leaders have called for protests at the Capitol building tomorrow and Wednesday, but some have apparently acknowledged that the bill is fated to pass. This is part because, unlike the 2011 bill that undid collective-bargaining rights for public-sector unions, the right-to-work legislation has no fiscal provisions that require a three-fifths quorum to debate and pass. In 2011, that requirement allowed Democrats to temporarily block the legislation by fleeing to Illinois.

Of course, all of this comes at the same time as a new biennial budget bill has sparked debates in Wisconsin, and Walker is receiving national attention as a serious contender as an (all-but official) candidate to be the Republican presidential nominee. Union leaders have suggested that right-to-work is being used as a distraction from the budget bill, which among other things proposes to cut $300 million in funding for the state university system.

Although achieving such policies through a "divide and conquer" strategy might help Walker maintain his current lead among the most conservative voters, it remains to be seen whether, should he ultimately become the Republican nominee, such a hard-line reputation would continue to be a benefit, or turn into a major liability.

February 23, 2015 in Advocacy, News | Permalink | Comments (0)

Saturday, February 21, 2015

Transgender Litigant Challenges ADA’s Exclusion of “Gender Identity Disorder”

Thanks to the ADA Amendments Act of 2008, the ADA now protects far more people with disabilities than it once did.  However, the Amendments did nothing to change the ADA’s blanket exclusion of a small subset of impairments that includes Gender Identity Disorder (GID).  Those who experience clinically significant and persistent distress as a result of an incongruence between their gender identity and assigned gender at birth, and who experience discrimination on that basis, have no recourse under federal disability law.  This may be about to change.

On January 20, 2015, lawyers for Kate Lynn Blatt filed a first-of-its kind equal protection challenge to the ADA’s GID exclusion.  According to Blatt’s attorneys:  “The Congressional Record reveals nothing more than constitutionally impermissible discrimination, devoid of any compelling, important, or legitimate governmental interest. . . . The GID exclusion in the ADA was the result of moral animus on behalf of a small group of U.S. Senators, who, in a feverish attempt to exclude the mental impairments they deemed morally unfit, unconstitutionally deprived transgender individuals of the ADA’s protection.” 

Along with GID, the ADA excludes pedophilia, exhibitionism, voyeurism, compulsive gambling, kleptomania, pyromania, and psychoactive substance use disorders resulting from current illegal use of drugs.

State and national LGBT rights organizations have filed an amicus brief in support of Ms. Blatt’s position:

“Federal law has an important expressive function, especially concerning the messages it sends about disadvantaged groups.  The fact that Congress went out of its way to exclude GIDs, along with a variety of distinctly different conditions that the DSM classified as sexual behavior disorders and/or that the law treats as criminal or reckless, sends a strong symbolic message:  transgender people have no civil rights worthy of respect.  By maintaining this exclusion, the ADA perpetuates the very thing it seeks to dismantle: ‘the prejudiced attitudes or ignorance of others’ and the ‘inferior status’ that people with disabilities occupy in our society.”

Plaintiff's attorneys have notified the U.S. Attorney General of the constitutional challenge as required by the Federal Rules of Civil Procedure.  The AG’s Office has 60 days to respond to the challenge, should it choose to do so.  It has not done so yet.

February 21, 2015 in News | Permalink | Comments (0)

Thursday, February 12, 2015

Save the Date and CFP for 2016 Poverty Law Conference

Dear friends:

We invite proposals for presentations at a Spring 2016 conference, “Poverty Law: Academic Activism” to be held on Feb. 19-20, 2016, hosted by Seattle University School of Law. The conference will focus on the connection between academics and activism, broadly understood. Just as “poverty law” is a broad category that includes everything from welfare and education programs to immigration and tax policy, so too, “academic activism” includes a wide range of activities. This conference will explore how members of the legal community directly engage with activists to effect social, legal, and policy changes; how scholarship can help improve the lives of the poor; and how to educate the next generation of poverty warriors.

The conference is organized around these three tracks – direct engagement, scholarship, and teaching – and the hope that the conference will be a large gathering of those whose work (including direct involvement as well as scholarship) focuses on or relates to poverty law. The deadline for proposals is Friday, April 25, 2015. Please submit the title of your presentation with an abstract or overview of no more than 300 words to erosser@wcl.american. To submit a full panel presentation, include the above information for all panelists.

Additionally, for those who are interested (though this is not a requirement for participation in the conference), conference participants may have publication opportunities with both the Seattle Journal for Social Justice and the Seattle Law Review. Registration is free, but conference attendees will be responsible for their own travel expenses. We look forward to seeing you in Seattle in February 2016!

If you have any questions, please contact the conference organizers:

Sara Rankin

Seattle University School of Law

(206) 398-4393


Ezra Rosser

American University Washington College of Law

(202) 274-4064


February 12, 2015 in News | Permalink | Comments (0)

Thursday, February 5, 2015

Every State Flunks Fair Tax Test

The Institute on Taxation and Economic Policy (ITEP), a non-profit, non-partisan research organization that works on federal, state, and local tax policy issues, just released the 5th edition of its annual assessment of the fairness of the state and local tax systems in all 50 states.  The assessment "discusses important features of each state’s tax system and includes detailed state-by-state profiles that provide essential baseline data to help lawmakers understand the effect tax reform proposals will have on constituents at all income levels." 

The ITEP study concludes that "every state fails the basic test of tax fairness... In other words, every single state and local tax system is regressive and even the states that do better than others have much room for improvement."

Check out ITEP's detailed and compelling analysis here.

Sad to say that this editor of the Legislation Law Prof's blog represents the #1 most terrible state:  Washington.  Check on your state's status!

February 5, 2015 in News | Permalink | Comments (0)

Tuesday, February 3, 2015

The Baffling Problem of Unpublished Decisions

Why are the majority of federal appellate court decisions unpublished?  As a law student long ago, I learned not only that unpublished decisions have no precedential value, but also that courts opt to deem a decision unpublished as a sort of accelerant--  deeming a decision as unpublished allows busy federal courts to move more quickly through their dockets-- the judges can roll up their sleeves, resolve the immediate dispute in an expeditious manner, and then wash their hands of that pesky precedential pressure.  

But do courts also exploit the opportunity to dodge scrutiny on cases of great significance?  New York Times writer Adam Liptak takes a peek into the baffling problem of unpublished decisions in his article below.

Courts Write Decisions That Elude Long View

Feb. 2, 2015


WASHINGTON — In April, a federal appeals court issued a 40-page decision on a serious subject, ruling that a trial judge had unlawfully increased a prison sentence out of vindictiveness.

The decision was a good example of judicial craft, closely reasoned and carefully written. The judges voted 2 to 1, suggesting that the legal question the decision resolved was a hard one.

But the decision was “unpublished,” as are 88 percent of decisions issued by federal appeals courts. That means it set no precedent. It was a ticket good for only one ride.

The decision, from the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., made sure that no one missed this point. Its first word, “unpublished,” was underscored, and it bore a standard legend: “Unpublished opinions are not binding precedent in this circuit.”

Last month, the Supreme Court refused to review the ruling, over the dissenting votes of Justices Clarence Thomas and Antonin Scalia. While explaining why the court should have taken the case, Justice Thomas raised important questions about the vast subterranean body of decisions that do nothing more than resolve one dispute at a time.

“True enough, the decision below is unpublished and therefore lacks precedential force in the Fourth Circuit,” Justice Thomas wrote. “But that in itself is yet another disturbing aspect of the Fourth Circuit’s decision, and yet another reason to grant review.”

He accused the Fourth Circuit of violating its own standards by refusing to publish the decision. He also suggested that the appeals court had acted strategically to avoid review of its ruling.

Supreme Court justices have long been wary of unpublished decisions for that reason. “Nonpublication must not be a convenient means to prevent review,” Justice Harry A. Blackmun wrote in a 1991 dissent joined by Justices Sandra Day O’Connor and David H. Souter.

In a 2006 interview, Justice John Paul Stevens said he was more likely to vote to grant review of such rulings “on the theory that occasionally judges will use the unpublished opinion as a device to reach a decision that might be a little hard to justify.”

These days, technology has turned the term “unpublished” into a misnomer. With the availability of legal databases and websites for courts, almost every decision issued by an appeals court is instantly available. And, because of a 2006 amendment to the federal rules of appellate procedure, lawyers are free to cite unpublished opinions issued after Jan. 1, 2007.

But without the force of precedent to require courts to rule similarly the next time around, these decisions create a sort of lawlessness, Judge Richard S. Arnold of the United States Court of Appeals for the Eighth Circuit wrote in 2000. “We may have decided this question the opposite way yesterday,” he wrote, “but this does not bind us today.”

Judges say that unpublished decisions are a sensible reaction to a crush of work.

“We simply do not have the time to shape and edit unpublished dispositions to make them safe as precedent,” Judge Alex Kozinski of the Ninth Circuit explained in 2004. “In other words, we can make sure that a disposition reaches the correct result and adequately explains to the parties why they won or lost, but we don’t have the time to consider how the language of the disposition might be construed (or misconstrued) when applied to future cases.”

Erica J. Hashimoto, a law professor at the University of Georgia and a lawyer for the prisoner in the recent case, Plumley v. Austin, No. 14-271, said “requiring courts to author binding precedent in every case is simply unworkable.”

The Fourth Circuit, for instance, decided about 4,000 cases in a recent 12-month period, or 267 for each of its 15 active judges.

“Because published opinions create binding precedent for all other cases considered by that court, those opinions, unless crafted with the utmost care and precision, can have significant unintended consequences for all sorts of other cases,” Professor Hashimoto said. “Anticipating those consequences requires an incredible investment of time.”

Still, it is hardly clear that judges are making the right choices about which opinions to publish, Scott E. Gant wrote in 2006 in the Boston College Law Review.

“The premise that judges can and should make this determination at the moment a ruling is made, and without the benefit of input from others, is seriously flawed,” he wrote.

In a 1977 speech, Justice Stevens said the approach rested on “a false premise,” specifically “that an author is a reliable judge of the quality and importance of his own work product.”

David R. Cleveland, a law professor at Valparaiso University in Indiana who has written extensively on unpublished opinions, said that Justice Thomas’s recent criticism was characteristic of the Supreme Court’s fitful attention to the issue.

“Individual justices have expressed dissatisfaction with the system and individual instances of it,” Professor Cleveland said, “and they should be commended for spotting the problem and speaking out against its harm to appellate justice.”

In a 2009 article in the Marquette Law Review, he calculated that litigants had asked the Supreme Court to consider the “constitutionality or propriety” of designating an opinion as unpublished in at least 36 petitions seeking review. But the court has never ruled on the issue.

“Rather than occasionally expressing disapproval of an individual symptom of the problem,” Professor Cleveland said, “the court should consider addressing the underlying illness.”

February 3, 2015 in News | Permalink | Comments (0)

Friday, January 30, 2015

Supreme Court Halts Missouri Execution, Then Reverses Eighth Circuit, Sending Case Back for Conflict-Free Counsel to Litigate Equitable Tolling of Blown Statute of Limitations

MCWe are thrilled to welcome guest bloggers, Jennifer Merrigan and Joseph Perkovich, who worked with Saint Louis University School of Law students to halt Mark Christeson’s execution and reverse a lower court decision, exercising the federal statutory right to counsel for individuals sentenced to death by a state court. Ms. Merrigan and Mr. Perkovich, along with John R. Mills, are Mark Christeson's pro bono counsel and the principal attorneys of the Phillips Black Project, a nonprofit, public interest law practice focused on death penalty representation. Phillips Black’s attorneys founded and direct the Death Penalty Proportionality Project at the Saint Louis University School of Law. The Death Penalty Proportionality Project provides law students the opportunity to provide legal representation to individuals sentenced to death and allows them to contribute to research on Missouri’s death penalty statute.

On January 22, the U.S. Supreme Court, by a vote of 7 to 2, decided Christeson v. Roper, 574 U.S. ___ (2014), 2015 WL 232187, summarily reversing the judgment of the Eighth Circuit Court of Appeals and returning Mark Christeson’s death penalty habeas corpus case to the lower federal courts for further proceedings. The Western District of Missouri and the Court of Appeals had contravened the high Court’s decision in Martel v. Clair, 565 U.S. __, 132 S.Ct. 1276 (2012), where it established the “interests of justice” standard applicable to the federal statutory right to counsel for individuals sentenced to death. 18 U.S.C. §3599. Clair held that the interests of justice shall determine motions to substitute appointed counsel pursuant to §3599(e), which “contemplates that a court may ‘replace’ appointed counsel with ‘similarly qualified counsel . . . upon motion’ of the petitioner.” Christeson, (slip op., at 4). On October 28, 2014 the Court had stayed Mr. Christeson’s scheduled execution in order to consider his certiorari petition.

The need for Mr. Christeson’s substitution of his court-appointed counsel emanated from their violation, in 2005, of his 1-year federal habeas corpus statute of limitations under 28 U.S.C. §2254 (Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)). The court-appointed attorneys “failed to meet with Christeson until more than six weeks after his petition was due” and ultimately filed a cursory petition “117 days too late.” (Slip op., at 2). As the high Court noted, leading legal ethicist Lawrence Fox of the Ethics Bureau at the Yale Law School had reported to the district court that “if this was not abandonment, I am not sure what would be.” (Slip op., id). Over seven years ago, this error ended Christeson’s federal case in the Eighth Circuit without any substantive review of the constitutional violations in his 1999 trial in Missouri state court.

In April 2014, his federal court-appointed lawyers reached out for advice from the authors of this post, Jennifer Merrigan and Joseph Perkovich, after receiving an order from the Missouri Supreme Court to show cause why their client’s execution date should not be set. But, when the authors met Mr. Christeson, it was clear that he did not understand that his appointed lawyers had blown his federal statute of limitations. As the Supreme Court noted, Mr. Christeson “appears to have severe cognitive disabilities that lead him to rely entirely on his attorneys.” A Rule 60(b) motion to re-open his case in order to litigate equitable tolling of the missed statute of limitations would be the only way to obtain any federal review of the constitutional violations in his trial and appeal.

Noting that the court-appointed attorneys were “initially receptive to . . . assistance,” the high Court found that they “soon refused to allow outside counsel access to their files,” eventually precipitating the authors to file a pro bono motion for substitution of counsel to protect his interests. While Mr. Christeson’s pro bono counsel were litigating his statutory right to appointed counsel, the Missouri Supreme Court scheduled his execution. Overall, the federal district court twice denied motions for substitution and the court of appeals twice rejected appeals before the case was able to make its way into the U.S. Supreme Court via an application for a stay of execution pending disposition of the cert. petition, which was filed with the support of amicus briefing from Former State and Federal Judges by Goldstein & Russell,  P.C. and Legal Ethicists and Capital Habeas Practitioners by the Yale Ethics Bureau.

Capital warrant litigation is complex and enormously time consuming. In Mr. Christeson's case it was especially difficult, as counsel were litigating with no resources and no case file after having been on the case for mere months. As adjunct clinical professors at the Saint Louis University School of Law, the authors enlisted clinical students, Aly Ricci and Kristin Swain, to assist with research, record review, and witness interviews. The support of SLU's clinical program, especially by the Supervisor of the Criminal Defense Clinic Susan McGraugh, and Dean Michael Wolff were instrumental in the around-the-clock litigation.

  Aly Ricci Kristin Swain
Saint Louis University School of Law Clinical  Students, 3Ls

On October 28, roughly twelve hours before Mr. Christeson’s scheduled execution at 12:01 a.m. CDT, Justice Alito, in his capacity as the circuit justice for the Eighth Circuit, took perhaps the unprecedented step in Supreme Court history of ordering supplemental briefing in relation to an application for a stay of execution. The order called for the parties to brief “whether the record shows” that Mr. Christeson authorized pro bono counsel to seek substitution as his attorneys. About two hours later, the parties filed their briefs, wherein pro bono counsel, after obtaining over the phone a release from Mr. Christeson in order to file attorney-client privileged communications, lodged with the Court briefing and, pursuant to Rule 32.3,  documentation manifesting his retention of the pro bono attorneys months earlier and correspondence, typed by a fellow inmate working in the law library, expressing his desire to have his appointed lawyers replaced because they did not have his “best interest in mind.” Just two hours before he was scheduled to be executed at midnight, the U.S. Supreme Court granted Mr. Christeson a stay pending the determination of his certiorari petition. After six relistings, the Court entered its opinion simultaneously granting certiorari and reversing the Eighth Circuit.

Christeson found that the Court of Appeals’ “principal error was its failure to acknowledge [the court-appointed lawyers’] conflict of interest. Tolling based on counsel’s failure to satisfy AEDPA’s statute of limitations is available only for ‘serious instances of attorney misconduct.’” (Slip op., at 5), quoting Holland v. Florida, 560 U.S. 631, 651-652 (2010). The “serious instances of attorney misconduct” here regarded their abandonment of Mr. Christeson at the critical juncture in his federal case, namely when they needed to file a habeas petition within the 1-year limitations period. Justice Alito dissented, joined by Justice Thomas, acknowledging the “serious” error by the court-appointed attorneys and opining that full briefing and argument should have been ordered. (Slip op., dissenting opinion at 2-3).

Already, the Court's ruling has provided the basis for a remand in another capital case. On January 27, a panel of the Fifth Circuit Court of Appeals, “[i]n light of the Supreme Court’s decision in Christeson . . .,” sua sponte vacated in part its previous opinion denying a Certificate of Appealability under 28 U.S.C. §2553 of the denial of a federal habeas petition. Tabler v. Stephens, No. 12-70013 (unpub.), 2015 WL 327646. Tabler extends to ineffective assistance of federal habeas counsel the equitable rule in Martinez v. Ryan, 132 S.Ct. 1309, 1315 (2012), that the inadequate assistance of state habeas counsel “may establish cause for a prisoner’s procedural default of a claim of ineffective assistance at trial.” The Fifth Circuit panel relied on Christeson to explain that “[b]ecause Tabler’s attorneys for his state habeas proceedings were also his attorneys for his federal habeas proceedings, they faced a conflict of interest that could have prevented them from arguing that their performance in Tabler’s competency hearing was deficient, and, accordingly, Tabler’s statutory right to counsel was violated.”

As for Mark Christeson’s case, the next step is for it to return on remand to the Eighth Circuit. In the meantime, the authors and their clinical students continue to work on his behalf.  

January 30, 2015 in Advocacy, Monthly Spotlight, News | Permalink | Comments (0)

Thursday, January 29, 2015

Losing the Hunger Games...Again

Recently, there has been a lot of press surrounding increases in hirings and gains in hourly wages, but this overlooks the millions of people that continue to struggle to make ends meet. For some of those individuals, the struggle to get basic necessities is about to get worse.

Over the course of 2015, hundreds of thousands of vulnerable Americans will be at risk of losing necessary food assistance benefits, or "Food Stamps," through the Supplemental Nutrition Assistance Program (SNAP) that, until now, has helped put food on their tables. As unemployment rates fall, around 1 million single adults will become ineligible to receive SNAP benefits due to a three-month time limit for unemployed, able-bodied adults without dependents (ABAWDs). 

The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 limits SNAP benefits to just three months in a three-year time period for ABAWDs who are not working or participating in a workfare program for at least 20 hours a week. The provision includes a clause that allows states with sustained high unemployment rates to apply for a 12-month ABAWD waiver that suspends the three-month limit. Because of the poor economic climate, in recent years, many states have received ABAWD waivers, eliminating the time limit for the ABAWD population. Current waivers will expire at the end of this fiscal year and will need to be renewed for FY2016. However, as unemployment rates fall, very few states will qualify for this waiver.

Although unemployment rates are declining, many ABAWDs are still struggling to find full-time employment due to lower education levels and limited job opportunities. While states can cut off SNAP benefits for unemployed ABAWDs after three months, according to the provisions in The Farm Bill of 2002, states are not required to fund employment and training programs for ABAWDs. In other words, states can remove unemployed ABAWDs from the SNAP rolls without making an effort to find them a position in a work or training program for 20 hours a week. In fact, most states do not offer these programs, meaning that the responsibility to search for a job or a work/training program falls on the individual, which can be very difficult as workfare programs have limited resources and openings.

Even those who are actively seeking work and are willing to accept any position offered will still be cut off from SNAP benefits and will not be provided with support to find employment. According to US Department of Agriculture, individuals who will be subject to the three-month time limit have an average monthly income of 19 percent of the poverty line (or 81% below the poverty line), making them one of the most vulnerable groups in the country.  Because this population is able-bodied and without dependents, it is unlikely for them to qualify for other benefits.

Not only do SNAP benefits put food on the tables of millions of hungry Americans, but food assistance has also stimulated the economy and served as a lifeline for entire towns.  For example, in Woonsocket, Rhode Island almost $2 million of SNAP funding pours into the town each month, stimulating the city’s food industry and starting the monthly “boom-and-bust” cycle of the nearly bankrupt town. For more information, see this article in the Washington Post.

To learn more about the relationship between poverty and food insecurity from Feeding America’s Poverty and Food Insecurity Fact Sheet click here. For statistics and infographics on food insecurity from the USDA Economic Research Service click here.

For more information about which state’s have accepted the waiver for FY2015, click here.

ThinkProgress has covered the reinstatement of the work requirements in SNAP in Maine, Ohio, Indiana, and New Mexico.

January 29, 2015 in Advocacy, News | Permalink | Comments (0)