Legislation Law Prof Blog

The Radical Reordering of Death Penalty Repeal: Nebraska Goes Retro

On May 29, just two days after Nebraska became the nineteenth state to abolish the death penalty, Nebraska Governor Pete Ricketts announced that he still plans to execute Nebraska’s ten death row inmates.  Death penalty foes say he can’t do this; the Governor says he can. 

While much has been made of Nebraska’s becoming the first conservative state to repeal the death penalty in over forty years, Nebraska’s repeal is remarkable for another reason, as the battle brewing in Nebraska suggests.  For the first time in nearly fifty years, a state legislature repealed its death penalty not just for future crimes but also retroactively, that is, for those currently on death row.  Nebraska’s repeal explicitly prohibits the very action that Governor Ricketts plans to take—the execution of those on Nebraska’s death row.

Over the past eight years, five other states have repealed the death penalty.  None of them did so retroactively.  In three of those states, New Jersey, Illinois, and Maryland, it took a governor’s commutation order to clear death row.  In New Mexico and Connecticut, death row prisoners were not so lucky; a total of thirteen men remain on death row in those states after repeal.  Pending legislation in Colorado, Delaware, Kansas, New Hampshire, and Washington is also not retroactive.  When these states inevitably repeal the death penalty, they will join an ever-growing list of states that have repealed the death penalty while retaining death row intact.  Abolition for most, but not all—not for the forty people on death row in these states.

Many will say this is at it should be.  Some family members of murder victims, such as the parents of slain University of Delaware student, Lindsey Bonistall, argue that retroactive repeal unsettles their expectations of retribution.  “[D]on't let the judicial process, our tragedy, trauma and pain,” they wrote to legislators, “be in vain.”

Some lawyers—including Nebraska’s attorney general—argue that retroactive repeal unconstitutionally infringes the courts’ power to render “final” judgments and the executive’s power to commute sentences.  A slew of old, poorly-reasoned state court cases certainly support this cramped view of the separation of powers.

And some advocates argue that, by repealing the death penalty going forward but not retroactively, the death penalty abolition movement merely parallels the movement to end another infamous American institution:  slavery.  In the late eighteenth century, the Pennsylvania Abolition Society, the first organization dedicated to securing slavery’s end, supported laws that would end slavery going forward but not retroactively.  “We dare not flatter ourselves with anything more than a very gradual work [of national emancipation],” the Society said in 1790, for “long habits die hard and strong interests are not overcome in an instant.”

All of these arguments against retroactivity have merit, but they should not win the day.

Family members of victims must understand that there is no record of a death row prisoner ever being executed after repeal of the death penalty.  Ever.  Failure to repeal the death penalty retroactively is a farce; history shows that those remaining on death row will probably never be executed, so why not do away with death row completely and eliminate the trauma that families will be forced to endure as they sit through literally endless appeals?

Lawyers must understand that the failure to repeal the death penalty retroactively is the height of arbitrariness.  It is nonsensical to say that a person who murders the day before repeal can be sentenced to death, while a person who just so happens to commit an identical murder the day after repeal cannot be sentenced to death.  There simply is no difference between the two murderers.  If the death penalty is too expensive, too inhumane, too discriminatory, too prone to human error, too out of step with international norms, or too unfair to victims’ families today, then it was surely all of those same things yesterday.  Recent statements by the Supreme Court and lower courts strongly support legislators’ elimination of arbitrary disparities like these.

And advocates must understand that, while the movement to abolish slavery began as a gradual enterprise, it yielded to a more radical movement demanding a complete end to slavery.  Nebraska’s retroactive repeal of the death penalty on Wednesday marks the beginning of a more radical movement to abolish the death penalty.

The next decade will undoubtedly see more states boarding the abolition train—states like California, with over 700 people on death row.  Hopefully, they, like Nebraska, will take their death rows with them.  Abolition for all.

Two new articles on factors that influence the enactment of model laws

This post was written by Nate Ela, of COWS

To wrap up this week’s posts on the model law as a mode of governance, let’s look at a couple recent articles examining factors that could influence whether state legislators decide to enact a model law. 

Sociologists Stephanie Kent of Cleveland State University and Jason Carmichael of McGill University looked at some of these factors in an article published in the latest volume of Social Science Research. Professors Kent and Carmichael examined where five model laws – all intended to reduce wrongful convictions, and all promoted by the Innocence Project – were enacted. Not surprisingly, they found that that states with a Republican controlled legislature or more Republican voters were less likely to pass these laws, while the presence of advocacy organizations that are part of what they call the ‘innocence movement’ make legislative change more likely. Rather disturbingly, they also found that the frequency of discovered wrongful convictions in a state does not increase the likelihood of adopting model laws aimed at preventing wrongful convictions.

One thing a well-organized movement can do to promote the adoption of model laws is to generate empirical studies that justify the policies embodied in model legislation. This is one of the conclusions of a forthcoming article by Dee Pridgen in the NYU Review of Law and Social Change. Pridgen, a professor at the University of Wyoming College of Law, analyzes how model legislation promoted by ALEC has sought to roll back private causes of action under state consumer protection acts. Empirical reports produced by the Searle Civil Justice Institute at Northwestern University School of Law have provided what Pridgen calls a “fig leaf” for the move to abolish consumer protections. In one study, the Searle Institute created a “shadow FTC” comprised of five unnamed people said to have had experience at the FTC Bureau of Consumer Protection. This panel then reviewed a sample of consumer protection decisions from state appeals courts, and concluded that 78% of the state UDAP claims would not be considered unfair or deceptive under FTC policy statements. This sort of study, Pridgen asserts, says little about the actual state of play of state consumer protection litigation, but nevertheless is used to justify passing ALEC’s model law.

New scholarship on model laws as a means of (conservative) legal innovation

This post was written by Nate Ela, of COWS

Monday's post described how, at the turn of the twentieth century, the model law emerged as a major new tool of governance in the United States. A hundred years later, model laws are ubiquitous, used to influence public policy across a wide range of areas. Today and Friday, we’ll highlight some recent legal and sociological scholarship on how model laws are being used, and what influences whether legislators decide to act upon them.

Model laws figure into the story Douglas NeJaime and Reva Siegel tell in a forthcoming Yale Law Journal article describing the rise of what they call “complicity-based conscience claims.” Made familiar by Burwell v. Hobby Lobby Stores, these claims arise when “Persons of faith … seek[] religious exemptions from laws concerning sex, reproduction, and marriage on the ground that the law makes the objector complicit in the assertedly sinful conduct of others.” Professors NeJaime and Siegel argue that rather than settle conflict, as is sometimes suggested, these types of claims often serve to extend it. Claiming a religious objection can offer a means of criticizing the norms of an entire community, and the actions of nonbelievers.

Pointing to the Healthcare Freedom of Conscience Act, a model anti-abortion law published in 2013 by Americans United for Life (AUL), NeJaime and Siegel argue that model laws provide a means of extending conflict via conscience-based coercion claims. The AUL model law, they note, “seeks to spread the logic of complicity-based conscience claims to more types of healthcare, to more actors, and to more acts.” And in at least some states, the strategy is getting traction: Mississippi’s recently-enacted healthcare refusal law is explicitly based on the AUL model.

Vanessa Zboreak, a professor at Wake Forest, recently published an article in the Wake Forest Journal of Law & Policy analyzing two ALEC model laws designed to preempt local land use laws that restrict large confined animal feeding operations, or CAFOs. As Zboreak points out, these models are in line with a wide range of recent bills aimed at preempting municipal lawmaking, though it would be incorrect to assume that an ALEC model lurks behind every attempt by a conservative state legislature to preempt local authority. One of the most interesting sections of the article parses the relatively innovative way in which ALEC’s “Act Granting the Authority to Rural Counties to Transition to Decentralized Land Use Regulation” law goes about preemption:

Because the grant of authority to decentralize is only available to counties, and not to municipalities, by choosing this approach counties would be able to preempt zoning or planning by municipalities located within the counties. Generally, in states where both cities and counties have land use planning authority, neither local government is subservient to the other…. Under this model bill, counties would be able to neuter the (often more progressive) voices of municipal residents and city councils. And to further encourage counties to avail themselves of this opportunity to consolidate their authority, states could quite easily tie county adoption of decentralization to other incentives, such as block grant monies, and thus ensure broad adoption of this approach. 

Many recent media reports and scholarly articles have focused on how conservative activists have used model laws to advance their own favored causes. But progressives have used model legislation to promote their own causes. Friday’s post will highlight an article analyzing the success of a progressive effort to use model laws to prevent wrongful convictions.

The Rise of the Model Law as a Mode of Governance

This post was written by Nate Ela, of COWS 

A while back, we noted a forthcoming article by Alexander Hertel-Fernandez, which asked who passes business’s model laws. We’ve been keeping our eyes out for other writing on model laws, and later this week we'll share a few recent articles. 

First, though, it’s worth remembering that despite the recent wave of media and scholarly interest, the model law is hardly a new tool of governance. The graph below shows appearances of “model law” and some variations of the term, in books published since 1820 (and subsequently scanned by Google). 

The meaning of “model law” during its first blip, around 1860, is generally different than current usage. Back then, “model law” referred to everything from a law that set the model for the Catholic church to a law seen as exemplary, but not intended to be replicated. 

The rise of the model law as a mode of governance appears to have come in the Progressive Era, around 1910. In that year, the Russell Sage Foundation published a model tenement house law, and by 1912 the annual meeting of the Association of Life Insurance Presidents included a report on progress of a model law on the registration of vital statistics. 

What isn’t reflected in the graph is that these social reformers and business associations were picking up on a movement for uniformity that got rolling a couple decades earlier. According to the official history of the Uniform Law Commission, the founding meeting of the American Bar Association in 1878 called for greater uniformity of state laws. By 1892, the Commission had been founded as a special committee of the ABA, and in that year, the Commission recommended its first three acts, one on the topic of acknowledgements, and two on wills and estates.

Uniformity was a hit, and the fever for model laws soon spread well beyond the ABA. By 1920 associations and reformers were circulating model laws for civil service, morbidity reports, weights and measures, and juvenile courts – and calling for more, to regulate everything from corporations to indoor ventilation. It was off to the races.

Later this week, we’ll highlight a few recent articles that give a sense of where the American passion for the model law has come, and how they are now being used to govern everything from abortion to farming, consumer protection to the right to counsel. 

"Reviving Legislative Generality"

The title of this post is the title of an interesting new article authored by Evan Zoldan, available on SSRN.  Here is the abstract:

The Supreme Court does not recognize a constitutional principle disfavoring special legislation, that is, legislation that singles out identifiable individuals for benefits or harms that are not applied to the rest of the population. As a result, both Congress and state legislatures routinely enact special legislation despite the fact that it has been linked to corruption and undermines the role of the judiciary. But the Court's weak protections against special legislation, and the resulting harms, are not inevitable. Instead, special legislation can be limited by what may be called a value of legislative generality, that is, a principle that legislation should be disfavored as suspect simply because it singles out identifiable individuals for special treatment.

In this article, I argue that the value of legislative generality should be enforced as an independent constitutional principle. Three pillars--history, text, and philosophical considerations--support the conclusion that legislative generality is a principle of constitutional significance.  First, the history of the revolutionary period leading up to the framing of the Constitution suggests that a key purpose of the Constitution was to address evils associated with special legislation. Second, the Constitution contains a number of under-enforced clauses that, when read together and in context, delineate a norm of legislative generality.  Third, an interpretation of the Constitution that includes a value of legislative generality fits well with a number of philosophical traditions and leads to normatively attractive results. Together, these pillars support the conclusion that legislative generality is a value with constitutional weight and suggest that current constitutional doctrine should be modified to give effect to this principle. I conclude by calling for heightened judicial scrutiny over special legislation that offends the value of legislative generality, including contemporary special legislation in the areas of immigration, public benefits, and criminal law.

 

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

This post was written by Nate Ela, of COWS

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.

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.

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

This post was written by Nate Ela, of COWS

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.

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

This post was written by Nate Ela, of COWS

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: 

 

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.

What if Everybody Voted?

This post was written by Nate Ela, of COWS

If history is any guide, turnout on this midterm election day won’t top 45% of eligible voters.  (It hasn’t since 1970.)  Over half of Americans, apparently, simply don’t feel it’s worth the trouble to vote in a midterm election. 

What if we made it easier to vote?  WhyTuesday.org notes that in the last census, 27% of nonvoters said they were too busy or couldn’t get the time off to vote.  This has long been the number one reason that Americans have said they don’t make it to the polls.  How might things be different if Election Day were a national holiday, or if we moved voting to the weekend?  Countries that vote on the weekend do have much higher rates of turnout: France (67.3%), Germany (80.2%), Thailand (82.1%), Russia (56.6%), Japan (68.7%).   

Some states – including Delaware, Hawaii, Kentucky, Montana, New Jersey, New York, Ohio, West Virginia, and the territory of Puerto Rico – have made Election Day a civic holiday, meaning state employees get the day off. Congressman Steve Israel (D-NY) has introduced The Weekend Voting Act, H.R.1641, in the U.S. House of Representatives, where govtrack gives it a 1% chance of being enacted. (You can learn about other reforms that would make it easier to vote or increase turnout here, and sign a White House petition to make Election Day a holiday here.)

Even with these attempts at reform, it’s worth asking: is the United States in fact the greatest democracy in the world?  At least in terms of voter turnout, it definitely isn’t.  Indeed, with just 47.7% average turnout since 1945, the U.S. ranks dead last among G8 countries, and 138^th out of the world's 172 countries.  The numbers are enough to make one wonder if there might be some people in the United States who like it this way, and would prefer not to have more Americans at the polls.

But what if things were different?  What if we not only got time off work to vote, but we were also expected to vote as one of our civic duties?

In 1996, Professor Arendt Lijphart used his Presidential Address to the American Political Science Association to think through these questions.  He reasoned that low voter turnout is a serious democratic problem, because, among other things, it systematically biases the vote against less well-to-do citizens, and it leads to unequal political influence. After considering possible reforms like weekend voting, Lijphart concluded that, in the end, compulsory voting is the better option – its advantages “far outweigh the normative and practical objections to it.”  If you think low turnout is problematic -- or, especially, if you don't -- the speech is worth a read.

From time to time, Americans have actually experimented with making voting a legal duty.  From 1777 to 1789, the Georgia state constitution required people to vote (at least those white men who then had the franchise).  And during the early 1890s, Kansas City required its residents to vote. In 1896, the Missouri Supreme Court struck down the provision in Kansas City v. Whipple, but as former White House counsel John Dean has pointed out, that case didn't resolve the question of whether it would be permissible under the U.S. Constitution to require citizens to vote.

Looking around the world, there are 22 countries that require their citizens to vote (though not all of them enforce the requirement). These include Greece, Belgium, Mexico, most of the countries in South America, and even the Democratic Republic of the Congo. In Australia, where voting has been mandatory since 1924, voter turnout rates are regularly between 93 and 95 percent.

So when you head to the polls today – and we at ALICE certainly hope you do – take a moment to think about whether the U.S. should join the club.  Would it be un-American to require our fellow citizens to participate in choosing our elected representatives?  Or is it more un-American to be okay with the fact that in midterm elections, most of them don’t?

Poverty, Race, and Policymaking

The Poverty & Race Research Action Council is a terrific resource for anyone interested in policymaking or legislative issues, especially those that concern the disparate impact of laws and government on marginalized groups. 

For instance, in the PRRAC monthly updated issued today, PRRAC reported some progress on HUD's fair housing planning-- especially concerning patterns of segregation and other disparities in HUD programs-- and the Department of Education's assessment of intradistrict resource disparities:

Progress on fair housing planning:  HUD took another step forward in the planned release of a new rule clarifying the Fair Housing Act's "Affirmatively Furthering Fair Housing" obligation for state and local government recipients of HUD funding.  This latest step is a draft assessment form for jurisdictions to use to analyze local patterns of segregation in HUD programs and disparities in access to opportunity for different racial and ethnic groups, using HUD-supplied data.  The improved reporting requirements will force communities to confront these issues, and will give the public more information about how their federal funds are being spent.  Improvement is still needed in several key sections of the draft, to promote strong community participation and identify action steps that state and local agencies will take to address identified problems.  Here are links to the draft assessment tool and notice and request for comment in the Federal Register. If you have thoughts on these materials, please forward them to PRRAC or share them on the Legislation Law Profs Blog.

Intradistrict resource disparities:  The Department of Education has issued a comprehensive Title VI guidance on assessing the racial impacts of disparities in key educational resources (school funding, advanced courses, experienced teachers, school facilities, instructional materials and technology, and extracurricular opportunities) across schools within a school district. In the  footnotes, the Department also acknowledges the importance of assessing racial disparities across school districts within a state, and the impact of racial isolation and concentrated poverty on student opportunity. 

 

 

Last year's best read on legislative process?

As you are likely aware, the academy suffers from a shallow bench of scholars who carefully mine the field of legislative process. I share William Eskridge’s “collective lament” that such a critical area is woefully under-illuminated. The Legislation Law Profs Blog constantly seeks to showcase some of the most interesting and impactful studies and commentary on legislative process, drafting, statutory interpretation, and policymaking.

Recently, I was reminded of an article that just might be my vote for the best read on legislative process last year: Abbe Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 STAN. L. REV. 901, 915 (2013). Here's the SSRN link and the abstract of the article is reproduced below.  What do you think?  Do you have other nominees for most impactful reads published last year?  Let us know!

Abstract:     

What role should the realities of the legislative drafting process play in the theories and doctrines of statutory interpretation and administrative law? The ongoing debates frequently turn on empirical assumptions about how Congress drafts and what interpretive rules Congress knows, but there has been almost no testing of whether any of these assumptions reflect legislative reality. We have attempted to fill that void. This is the first of two Articles reporting the results of the most extensive empirical study to date — a survey of 137 congressional counsels drawn from both parties, both chambers of Congress and spanning multiple committees — on topics ranging from drafters’ knowledge and use of the textual and substantive canons of interpretation, to legislative history, the administrative law deference doctrines, the legislative process and the Court-Congress relationship.

Our findings have implications for virtually every swath of the interpretive debates. We can report, for instance, that there are some canons that our drafters know and use — Chevron and the presumption against preemption, for example, but that there are other canons that our drafters know, but consciously reject in favor of political or other considerations, including the presumption in favor of consistent usage, the rule against superfluities, and dictionary use; and still other canons, like Mead and noscitur a sociis, that our drafters do not know as legal rules but that seem to be accurate judicial reflections of how Congress drafts. Our interviews also elicited a treasure trove of information about key influences on the drafting process that legal doctrine rarely considers, from the variety of audiences for legislative history, to the way in which the personal reputation of particular agency heads affects delegation decisions, to the fact that drafting conventions depend on the type of statute being drafted and its path through Congress.

All of these findings, and many others, allow us to press for a more precise answer to one of the fields’ foundational questions: that is, what should be the purpose of these canons of interpretation? Judges, often using the unhelpful generalization that they are Congress’s “faithful agents,” have legitimized these doctrines using a variety of conflicting justifications, some of which turn on empirical reality, some of which do not, and most of which aim to justify many different types of canons that seem to be doing very different types of work. Do the canons reflect how Congress actually drafts, and so effectuate legislative supremacy? Or do judges use the canons for more dialogical reasons, such as to encourage Congress to draft more precisely — and does Congress listen? Might the canons, despite how "neutral" some appear, instead be understood to effectuate judicial values that are external to the legislative process — such as advancing constitutional norms or imposing coherence on the U.S. Code? Our study illuminates this variety across the normative bases for the canons also reveals that each set of justifications rests on a very different vision of the judicial power and the Court-Congress relationship.

THEORY & ADVOCACY: New Article on Restrictive Voting Laws

As a follow-up to our prior post on the Voting Rights Act, here is an interesting article presenting new data regarding restrictive voting laws—“Vulnerability in Numbers: Racial Composition of the Electorate, Voter Suppression, and the Voting Rights Act.”

Here is the abstract:

In Shelby County v. Holder, the Supreme Court rendered one of the most potent antidiscrimination provisions of American law a dead letter: the preclearance regime of the Voting Rights Act of 1965 (VRA). Shelby County held that the formula determining which jurisdictions are required to obtain federal approval for voting law changes was outdated and offensive to states’ rights. The Court ignored ample evidence of discrimination in the covered jurisdictions, focusing instead on improvements in voter turnout and registration. We present new empirical evidence that the proposal and passage of restrictive voting laws, such as photo identification requirements and reductions of early voting opportunities, are associated with racial factors such as larger African American populations and increases in minority voter turnout. These results are consistent with the interpretation that restrictive voting laws have been pursued in order to suppress Democratic-leaning minority voters, and they are suggestive that racial discrimination is a contributing factor to this type of legislation. The increases in registration and turnout that Shelby County hailed as evidence that preclearance is no longer needed are actually risk factors for potentially discriminatory voting laws. We suggest opportunities for countering discrimination after Shelby County. The evidence we present is relevant to litigation under remaining provisions of the VRA, especially the prohibition on voting laws with a discriminatory effect under Section 2. Finally, we suggest that our findings should inform the Congressional response to Shelby County: a new coverage formula should include the racial characteristics we identify as risk factors.

Scholar Spotlight: Professor Michael Tonry

It's no secret that the American penal system is desperately broken.  For example, Michelle Alexander's compelling book, The New Jim Crow, exposed how mass incarceration targets black men and functions as a contemporary system of racial control. 

Professor Michael Tonry's new article, Remodeling American Sentencing: A Blueprint for Moving Past Mass Incarceration, offers an ambitious vision for " just, fair, and effective sentencing systems."  Tonry's article proposes a series of 10 legislative reforms to criminal sentencing to reduce mass incarceration. Some of these are quite radical - including reducing sentences of more than 5 years to just 5 years. Tonry contends that if all these proposals were enacted, the imprisonment rate would be reduced by half and yet would still remain 3-3.5 times that of other developed western countries.
Tonry's article is available here.
What do you think?  Does Tonry's blueprint help to improve America's penal system?  What other policies or proposals could help?
Do you know of new scholarship that would be of interest to subscribers of the Legislation Law Profs Blog? If so, please let us know! You can post directly to the blog in a comment or email any one of the co-editors.

After Shelby County

The landmark case of Shelby v. Holder continues to provoke criticism for its impact on discrimination in voting rights. In a new article, Christopher Elmendorf (UC Davis) and Douglas Spencer (U Conn), offer new hope. Here’s the abstract and link to After Shelby County: Getting Section 2 of the VRA to Do the Work of Section 5:

Abstract:  Until the Supreme Court put an end to it in Shelby County v. Holder, Section 5 of the Voting Rights Act was widely regarded as an effective, low-cost tool for blocking potentially discriminatory changes in election law and administration. The provision the Supreme Court left standing, Section 2, is generally seen as expensive, cumbersome and almost wholly ineffective at blocking changes before they take effect. This paper argues that the courts, in partnership with the Department of Justice, could reform Section 2 so that it fills much of the gap left by the Supreme Court’s evisceration of Section 5. The proposed reformation of Section 2 rests on two insights: first, that national survey data often contains as much or more information than precinct-level vote margins about the core factual matters in Section 2 cases; second, that the courts have authority to create rebuttable presumptions to regularize Section 2 adjudication. Section 2 cases currently turn on costly, case-specific data and estimates. Judicial decisions provide little guidance about how future cases, relying on different data, are likely to be resolved. By creating evidentiary presumptions whose application in any given case would be determined using national survey data and statistical models, the courts could greatly reduce the cost and uncertainty of Section 2 litigation. This would also end the dependence of vote-dilution claims on often-unreliable techniques of ecological inference, and would make coalitional claims brought jointly by two or more minority groups much easier to litigate.

SSRN link:  After Shelby County

Do you know of new scholarship that would be of interest to subscribers of the Legislation Law Profs Blog? If so, please let us know! You can post directly to the blog in a comment or email any one of the co-editors.

Can law be used to control implicit bias?

There has been an uptick on discussions about race and bias in recent weeks: MTV partnered with the NAACP and Southern Poverty Law Center to launch a campaign addressing hidden bias in Millennials. Mark Cuban talked openly about his own biases. And "Blindspot: The Hidden Biases of Good People" was released.

An implicit bias is a positive or negative mental attitude towards a person, thing, or group that is held at an unconscious level. It predicts certain behaviors, including how we treat people, how we evaluate job candidates and students, how we make decisions. Since 1998, over 4.5 million people have taken the Implicit Association Test, which assesses the test taker's biases. The results strongly suggest that the majority of poeple hold implicit and unconscious bias towards other groups. (To get up to speed on implicit bias, check out Jerry Kang's website and Ted Talk on "Immaculate Perception.") 

What does this mean for the rule of law? Judges, law makers, attorneys, and public citizens alike are all susceptible to implicit bias.

The Law of Implicit Bias, by Professor Cass Sunstein and Professor Christine Jolls, examines the special challenge created by implicit bias in antidiscrimination law because "it suggests the possibility that people are treating others differently even when they are unaware that they are doing so." The article contemplates strategies for controlling implicit bias in and through law.

Society would be well-served if legislative lawyers, legislative faculty and lawmakers made controlling implicit bias one of the objectives in developing new laws and reforming old ones.    

 

Guest Blog on SKILLS: Can Law School Clinics Lobby?

Marcy Karin runs the Work-Life Law and Policy Clinic at ASU’s Sandra Day O’Connor College of Law. The Work-Life Clinic is an integrated law clinic that works on administrative litigation, legislative and regulatory advocacy, and community education efforts on employment law and policy issues for low-income individuals and nonprofit organizations working on their behalf. This work includes cases and projects related to unemployment insurance, reasonable accommodations for people with disabilities, time off, flexible scheduling, unpaid wages, discrimination, reentry, and civil justice for military families.

“Over the past decade, policy advocacy has exploded onto the clinical legal education scene, bringing with it not only the promise of new teaching opportunities, but also the problems of the unknown. Professors that teach in clinics know that there is a fine line between policy advocacy and lobbying, but they do not necessarily know where that line is, or what happens if one crosses it; and so “lobbying” has been relegated to the shadows—a creature of tax, of government funding, of technical disclosure requirements.  The ‘L’ word of which we dare not speak.”

Recently, Kevin Barry (Quinnipiac Law School) and I co-authored Law Clinics and Lobbying Restrictions to thrust clinic lobbying out of the darkness and into the light.  We do this by explaining how the labyrinthine law of lobbying—including federal income tax law, federal and state laws governing recipients of state funding, and federal and state lobbying disclosure laws—applies to law school clinics and how professors might best comply with the law.  The appendices contain questions designed to help professors explore each area of lobbying law to identify when clinic policy work may trigger reporting or disclosure requirements or prevent someone from doing this important work.

With this article, we hope to embolden professors (and, by association, their students) to “lobby” more with a one-stop shopping guide to help traverse this rewarding, but sometimes complicated, terrain.  In sum, YES law school clinics can “lobby”!

THEORY: Use of Gender Neutral Pronouns in Legal Drafting

Much has been written about various components of hetero- and masculo-normativity embedded in the English language. In What Is “Eet”? A Proposal To Add A Series Of Referent-Inclusive Third Person Singular Pronouns And Possessive Adjectives To The English Language For Use In Legal Drafting (59 S.D. L. Rev. 79 (2014), Professor C. Marshall Thatcher proposes a radical solution to one of the most glaring, and obviously problematic of these: the persistence of the “masculine rule” or “generic he” in the English language, and specifically in legal texts. 

The "masculine rule" refers to the use of “he” as an indefinite, as well as masculine, pronoun in situations where the pronoun’s antecedent could refer to either gender, e.g., “a researcher has to be completely objective in ____ findings.” As the author points out, this rule is “is unabashedly sexist; it is discriminatory in its gender bias, and is therefore unfair”—in addition to being imprecise and potentially confusing.

While many people—and most modern style guides—have critiqued use of the “generic he,” the author points out its continued use in legal writing and in widely-cited legal texts, including statutes, judicial opinions and jury instructions. For instance, a federal statute provides that in determining the meaning of any Act on Contract, unless the context indicates otherwise, words importing the masculine gender include the feminine as well (see 73 AM JR. 2D Statutes§ 219 (1974 & Supp. 1997)).

Still, a comprehensive solution has proven elusive. Style guides suggest that if possible one should rewrite the sentence to avoid the use of a gendered pronoun. If that proves impossible they fragment on further gender-neutral substitutes such as “he or she,” “s/he” or use of the plural “they” to refer to singular nouns.  Grammar purists (RIP, William Safire) and others, including the author, object to the use of “he or she” and “s/he” as clunky, and to the use of “they” as inappropriate because “[n]o singular can be they” (but see the OED, which says that “the use of plural pronouns to refer back to a singular subject isn’t new: it represents a revival of a practice dating from the 16th century.”

A third option, however—the one which the author proposes—is the creation, and addition to the English language, of a whole new set of gender-neutral pronouns, including “ee,” “eet” and “herim.” While this approach has been adopted in some places—the author notes that the official National Encyclopedia of Sweden recently incorporated a new gender-neutral pronoun—English has remained stubbornly resistant.  As the American Heritage Book of English Usage puts it “[l]ike most efforts at language reform, [such] well-intended suggestions have been largely ignored by the general English-speaking public, and the project to supplement the English pronoun system has proven to be an ongoing exercise in futility.”

But hope springs eternal, and we should all be supportive of efforts to permanently undo the many inherently sexist features of the English language. Moreover, lest we be too quick to dismiss the possibility of change, we should remember that the English language has always been highly syncretic, and continues to evolve constantly – after all, it was scarcely a century ago that people were referring to “animalcules” and “beldams,” and these days you can all freely google or tweet this article without violating any linguistic norms. And any profession that gave us terms like "impracticable," "after-acquired property" and "surrebuttal" ought to be able to handle "eet" and "herim."

News: SCOTUS and Statutory Interpretation—EPA v. EME Homer City Generation, L.P.

The plain meaning rule and Chevron deference take center stage in yesterday’s Supreme Court ruling in ENVIRONMENTAL PROTECTION AGENCY v. EME HOMER CITY GENERATION, L.P., 2014 WL 1672044, which upheld the EPA’s authority to regulate air pollution emitted in upwind states that causes harm in downwind states.

For more on the EPA’s “War on Coal,” see here.

Call for Papers: Legislative Causes and Solutions to the Working Poor Phenomenon

The AALS Section on Poverty Law will sponsor a session at the 2015 AALS Annual Meeting. The title of the program is Working But Poor: Understanding and Confronting the Working Poor Phenomenon. In collaboration with the Loyola Journal of Public Interest Law, the Section seeks papers for publication and presentation.

Employment was historically viewed as a means to gain financial security. However, full-time workers increasingly struggle to meet their basic needs. This program will examine the working poor phenomenon – that, despite being fully-employed, many workers still live in poverty. The panel will discuss the increased number of working poor and their deepening poverty, explore possible causes of the working poor phenomenon, and consider whether and how employment might once again offer a reliable means to raise people out of poverty. 

Among the questions contemplated involve Legislative Causes and Solutions: Which government policies have contributed to the working poor phenomenon? Which have alleviated or minimized worker poverty? How effective are minimum wage and overtime laws at alleviating poverty? Living wage ordinances? How do these laws relate to areas more traditionally viewed as poverty law? What are the relative strengths and limitations of federal policies as compared to state and local policies? 

The deadline for submissions is August 8, 2014. See attached for additional information. 

  Download AALS Poverty Section Call for Papers 2015 Program (1)

 

Theory and Skills: The Art of Legislative Lawyering and Six Circles Theory of Legislative Advocacy

In "The Art of Legislative Lawyering and Six Circles Theory of Legislative Advocacy" (Chai Feldblum, McGeorge Law Review 2003) describes the necessary skills for legislative advocacy and how that translates into the law school setting. The article was written by Chai Feldblum, Commissioner of the Equal Employment Opportunity Commission, during her tenure as a Professor of Law at Georgetown Law Center and as the founder of the school's Federal Legislation and Administrative Clinic. 

With Commissioner Feldblum's permission, we are sharing the article here (Download The Art of Legislative Lawyering - Chai Felblum) and posting the abstract below.

ABSTRACT

A "legislative lawyer" is a person who exists in Washington, D.C., and in almost every city and state in this country where legislation and administrative regulations are developed. But most people do not know who that person is or what that person does. In fact, most advocacy organizations that should be hiring legislative lawyers have no idea who a legislative lawyer is. 

The author coined the term "legislative lawyer" when she created a Federal Legislation Clinic at the Georgetown University Law Center in Washington, D.C. over a decade ago. The author needed to explain to her faculty colleagues what type of law she intended to teach her students in the Clinic and why such learning deserved six (now ten) law school credits.

The author explained at the time, "legislative lawyers" are individuals who practice law in a political, advocacy context. Good legislative lawyers are: (1) good at comprehending, analyzing, and manipulating legal text and, at the same time, good at understanding the political dynamics of legislative and administrative systems; (2) able to gain the trust and respect of both legal players and political players in an advocacy effort because of their joint competency in law and politics; and (3) able, because of such trust and respect, to be effective and creative translators and negotiators between the often disparate worlds of law, policy, and politics.

The author’s primary goal in this article is to describe the skills and talents of a good legislative lawyer. The legislative lawyer is a key component of the author’s Six Circles Theory of Effective Advocacy. She developed this theory mostly (although not exclusively) out of her experience working on the Americans with Disabilities Act from 1988 to 1990. An additional goal of this article, therefore, is to set forth the Six Circles Theory of Effective Advocacy and to highlight its potential contribution towards structuring an effective legislative or regulatory effort.

The author’s final goal of this article is to provide an overview of how she teaches "legislative lawyering" in a law school clinical setting. The author hopes this section of the article, together with its appendices, will be useful to anyone who wishes to establish a similar clinic focusing on legislation and administrative regulations.