“You'll have lower prices under deregulation than you will through regulation.” Not.

Remember Enron as the Senate votes on health care. 

Here’s a famous quotes on deregulation: “You'll have lower prices under deregulation than you will through regulation.” Sounds like the arguments made for the Senate health care bill.

The quote is from Kenneth Lay. He was the CEO of Enron. Before he died in 2006, a court found that he was a central figure in a massive fraud that took advantage of deregulation of energy markets and deregulation of financial services.

For readers who remember the 1980s, the airline industry was massively deregulated. New, low-cost carriers sprouted up regularly. Today, four airlines control 70% of the market. Service has declined noticeably. You can find good fares at strange hours, but unless you fly Southwest, you’ll be gouged for schlepping your underwear on the plane.

Phones? The federal government broke up AT&T and created “Baby Bells,”— regional carriers. The market used to be competitive. And then it consolidated. Today, try to price-shop between Verizon, AT&T and Sprint. Most people wouldn’t say it’s a consumer friendly market.

Energy? It used to be regulated. Then in the 1990s and 1990s, that system gave way to “market competition.” The result? Companies such as Illinois Power were bought and merged into large regional companies. Good luck trying get service during an outage. If you have an ice storm or such, you could be without power for days or a week. It wasn’t that way when a local workforce was at the ready.

Tom Price, Secretary of Health and Human Service, promises today that the Senate bill will create market competition and benefit the patient.

Having been mistreated by my phone company, power company, and American Airlines-- and having no or very limited market alternatives, as I was promised-- I think this market competition talk is disconnected from reality.  

PHOTO CREDIT: PAUL FELL

How We View “Extreme Political Rhetoric”: Moving Toward Agreement

As a divided nation, we are beginning to come toward agreement that extreme political rhetoric is harmful.

That’s the takeaway from an item in the most recent WSJ/NBC poll. After asking the usual questions about presidential approval, health care and so forth, they asked about two attempted assassinations of members of the House, Gabby Giffords (D. Az.) and Steve Scalise (R.La.).
The questions were asked in January 2011 and June 2017.

Here are the questions and results:

(JUNE 2017) Thinking about the shootings of a Member of Congress, U.S. Capitol Police officers, and others on a baseball field in Alexandria, Virginia last week, do you feel extreme political rhetoric used by some in the media and by political leaders was an important contributor to the incident or do you feel this is an isolated incident by a disturbed person?

Isolated incident by disturbed person................................   46%

Rhetoric an important contributor ................................  41%

 Some of both (VOL) ......................................................      5%

 Not sure ......................................................................          8%

(JANUARY 2011) Thinking about the shootings of a Member of Congress, a Federal judge and others in Tucson, Arizona last weekend, do you feel the extreme political rhetoric used by some in the media and by political leaders was an important contributor to the incident or do you feel this is more of an isolated incident by a disturbed person that occurs from time to time?

Isolated incident by disturbed person.......................      71%

Rhetoric an important contributor............................  24%

Some of both (VOL).................................................       3%

Not sure......................................................................      2%

What Are “Badges of Slavery”?

In 2013, three men were convicted of kidnapping a disabled Navajo man and branding a swastika into his arm and shaving a swastika in his hair (above). The men worked in the same restaurant, and enticed their victim there to go their apartment, where they brutalized him.

Here is a summary of their criminal conduct:

At Beebe's apartment, the three white men drew on V.K.'s back with markers. They told him they would draw “feathers” and “native pride” but actually drew satanic and anti-homosexual images. They then shaved a swastika-shaped patch into V.K.'s hair (pictured above). Finally, they heated a wire hanger on the stove and used it to brand a swastika into V.K.'s arm.

William Hatch challenged his conviction, arguing that the federal Hate Crimes Act was unconstitutional because it gave an overly broad definition to “badges of slavery” under the 13^th Amendment. Hatch’s point was that the 13^th Amendment ended slavery of blacks and did not extend to crimes against Navajos.

In a fascinating decision, the Tenth Circuit Court of Appeals rejected that narrow reading and said that the 13th Amendment authorized enactment of laws to do away with the effects of slavery—hence the metaphorical expression, "badges of slavery." (The metaphor related to actual badges that were assigned to slaves, such as this one in 1817 in Charleston South Carolina, somewhat like a dog tag.)

I now quote the Court’s historical research (for the full case, read here http://caselaw.findlaw.com/us-10th-circuit/1637502.html).

Slaves could not own property, could not enter into contracts, and so forth. Slaveowners, by contrast, had complete control over their slaves and even their slaves' children. These aspects of slavery, as well as the so-called Black Codes that attempted to perpetuate the master/slave relationship as much as possible after emancipation, are what were then considered to be “incidents of slavery.”

“Badges of slavery,” by contrast, had a somewhat looser meaning. In the antebellum years, it could refer literally to a badge worn by slaves, such as copper badges issued to certain slaves in Charleston, South Carolina (see picture above). See generally Harlan Greene et al., Slave Badges and the Slave–Hire System in Charleston, South Carolina 1783–1865 (2008); Rutherglen, Badges and Incidents, at 166 (noting that “badge,” in antebellum legal discourse, was sometimes used as shorthand for “evidence permitting an inference from external appearances to legal status”).

In addition, “badges of slavery” could refer to the psychological scars that slavery inflicted upon slaves, McAward, Defining the Badges, at 577, or to any “evidence of political subjugation,” Rutherglen, Badges and Incidents, at 166.

In postbellum legal discourse, “badges of slavery” came to be used primarily as a synonym for slavery's continuing “incidents,” as perpetuated by the Black Codes. McAward, Defining the Badges, at 581; Rutherglen, Badges and Incidents, at 165. But “badges of slavery” also arguably extended to “widespread [private] violence and discrimination, disparate enforcement of racially neutral laws, and eventually, Jim Crow laws.” McAward, Defining the Badges, at 581.

Later in the opinion, the court explained why the Hates Crimes Act applied to Hatch’s conduct:

“Congress could rationally conclude that physically attacking a person of a particular race because of animus toward or a desire to assert superiority over that race is a badge or incident of slavery…. Just as master-on-slave violence was intended to enforce the social and racial superiority of the attacker and the relative powerlessness of the victim, Congress could conceive that modern racially motivated violence communicates to the victim that he or she must remain in a subservient position, unworthy of the decency afforded to other races.”

Company Lawyer Stands Liable for Arranging Deportation of Litigious Employee

A lawyer’s duty to zealously represent a client does not extend to having your client's litigious employee deported.

So ruled the Ninth Circuit Court of Appeals yesterday.

Meet Jose Arnulfo Arias, an immigrant who filed a lawsuit against his employer for wage violations.

Meet the attorney, Anthony Raimondo of Raimondo & Associates, who represented Arias’ former employer, Angelo Dairy, in a wage-and-hour lawsuit.

During that lawsuit, Raimondo had arranged for U.S. Immigration and Customs Enforcement to take Arias into custody at a scheduled deposition and then remove him from the country.

The ruling yesterday determined that “employer” is defined as “any person acting directly or indirectly” in an employer’s interest in relation to an employee.

The ruling paves the way for Arias’s retaliation lawsuit. Wage and hour laws prohibit employers from retaliating against employees for lawsuits for redress.

The back story? When Arias found out about Raimondo’s contact with ICE, he allegedly suffered “extreme anxiety” over worries that he would be deported, and agreed to settle.

Now, the company’s lawyer is on the hook; and likely, will go to trial or settle with Arias. 

Is Assassination Speech Protected by the First Amendment?

Johnny Depp sparked a controversy when he remarked, “When was the last time an actor assassinated a President?” 
How far can someone take this kind of talk and be protected by the First Amendment?

Rankin v. Ardith (1987) is the leading case on the issue. Ardith McPherson worked in the Harris County sheriff’s office.

When she learned of an assassination attempt on Ronald Reagan, she told a co-worker, “Shoot, if they go for him again, I hope they get him.” Another co-worker overheard the conversation and reported it. Ms. Rankin was fired for the comment.

The Supreme Court ruled that her speech was protected. The President’s life or death was deemed by the Court to be a matter of public concern, and thus, Ms. Rankin’s speech was protected. Statements that are incorrect, unpopular or ill-advised still enjoy constitutional protection.

Johnny Depp’s stupid question is akin to Ted Nugent’s stupid statement before the 2012 election, where the faded rock star said that President Obama would “either be dead or in jail by this time next year.” Not to be forgotten is President Trump’s former butler, Anthony Senecal, whose Facebook rants called for President Obama to be killed. 

Assassination speech is protected, unless it conveys specific incitement to plot and act. 

It's also important for the rest of us to exercise our First Amendment rights to denounce this type of speech.

Make America Great Again … Stop Cheating Employees on Overtime

A federal appeals court issued a major ruling yesterday on overtime pay for cable technicians. The employees were awarded $3.8 million.

Here is a quote from the decision (in red text):

FTS Technicians presented evidence that FTS implemented a company-wide time-shaving policy that required technicians to systematically underreport their overtime hours. Managers told or encouraged technicians to underreport time or even falsified timesheets themselves. To underreport overtime hours in compliance with FTS policy, technicians either began working before their recorded start times, recorded lunch breaks they did not take, or continued working after their recorded end time.

FTS Technicians also presented documentary evidence and testimony from technicians, managers, and an executive showing that FTS's time-shaving policy originated with FTS's corporate office.

There is more to this story. The employees won a verdict in 2012 directing FTS to pay for missed overtime. For the past five years, the matter has been in court because there aren’t precise records for the hundreds of members of the class. That’s because it’s the employer’s responsibility to keep time records accurately—and here, that didn’t happen.

The long-story short is that the appeals court said yesterday that a sample of reliable estimates from the larger class is sufficient to uphold the award of damages.

“Why Your Race Needs to Be Collectively Ovened”: ACLU’s Internet White-Terror Lawsuit

Tanya Gersh, a Jewish woman in Montana—and an outspoken critic of Donald Trump and his whites-first constituents— received intimidating e-mails, such as this:

“Thanks for demonstrating why your race needs to be collectively ovened. You have no idea what you are doing, six million are only the beginning. We are going to keep track of you for the rest of your life. You will be driven to the brink of suicide & We will be there to take pleasure in your pain & eventual end.”

One message included an image of the woman being sprayed with a green gas, along with the words: “Hickory dickory dock, the kike ran up the clock. The clock struck three and the Internet Nazis trolls gassed the rest of them.”

After Trump's election, Alt-Right supporters organized a march in her town to drive Ms. Gersh and her family from their residence. See the photo above.

The ACLU has now filed a lawsuit in Montana federal district court against Andrew Anglin, the man who runs an extremist web forum called The Daily Stormer. Anglin published 30 posts urging his followers to launch a “troll storm” against Tanya Gersh, a real estate agent in Whitefish, Montana.

Similar to the approach I am working on in my current research article, the lawsuit uses anti-intimidation laws to shutdown private conspiracies that seek to deprive individuals of civil rights. What my work has in common with this lawsuit is the idea that Internet hate speech is not protected if it is so targeted and specific as to cause a person to be fearful or living in a community—or in my case, of being employed in a workplace where nooses and swastikas are brandished, and where unions seek segregation of whites and blacks (there is a pending lawsuit with this fact pattern).

The Strange Careers of Jim Crow and Donald Trump

As you may know, Jim Crow is a term that refers to the South’s segregationist history, roughly from the end of the Civil War to the mid-1960s. As I blogged some months ago, the term Jim Crow is explained in C. Vann. Woodward’s The Strange Career of Jim Crow. He speculates the term came from Tom Rice, an entertainer who mocked black people while performing in black face.

Here is new information I uncovered in my research. A New York Times interview in 1881 with 72 year-old actor relates the source of Rice’s demeaning blackface song-and-dance routine that became widely popular in the South. The actor described the early history of negro minstrelsy and a memorable show in Louisville of a slave who was “very much deformed, the right shoulder being drawn up high, the left leg stiff and crooked at the knee, giving him a painful but laughable limp.” The slave, who apparently took his last name from his owner, a man named Crow, sang a whimsical song and would give a little jump at the end of each verse.  See An Old Actor’s Memories, N.Y.TIMES (June 5, 1881).

Thus, Rice popularized the demeaning imagery of an addled black man who was also physically disabled. 

The first few lines of Rice's song-and-dance shed light on today’s stereotyping of black culture:

Come, listen all you gals and boys, Ise just from Tuckyhoe;

I'm goin, to sing a little song, My name's Jim Crow.

CHORUS [after every verse]

Weel about and turn about and do jis so,

Eb'ry time I weel about I jump Jim Crow.

I went down to the river, I didn't mean to stay;

But dere I see so many gals, I couldn't get away.

The imagery seems to feature the black man as ignorant, aimless, and oversexed.

Thinking back on last year’s campaign, I was struck by Donald Trump’s apparently effective linkage of Mexicans as rapists and his mockery of physical disability—to my mind, a modern echo of Jim Crow’s damaging and enduring mockery of black people. These crude attacks win over many millions of people. 

PHOTO CREDIT: By Edward Williams Clay - Institute for Advanced Technology in the Humanities at the University of Virginia: Home - pic, Public Domain, https://commons.wikimedia.org/w/index.php?curid=391950

Future of Unions: Small Groups, More Disruptive, Fewer Contracts

Since the nation’s main labor law was enacted, employers have fought it. And they have mostly won.

How so? More than half our states forbid compulsory union dues. Great, you say? The idea behind dues paid by everyone reflected the fact that unions are by law the exclusive bargaining agent for all employees in that group. Example: If Employer A has 100 employees, and 51 vote for a union, the union must represent all 100 employees. (If you're in an HOA, it's identical logic. You pay whether you are in the majority or the minority for a special charge.)

Old-style unions wanted a contract with their employers. Yes, they would often strike for this. Once a contract was in place, strikes were forbidden by contract and replaced by arbitration.

So, what’s new? Yesterday, the Supreme Court refused to hear a federal appeals case that upheld the NLRB’s idea of “micro-unions.” 

Cosmetics sales people in stores such as Macy’s wanted their own union. Macy’s countered, “Let’s have an election involving all employees.” When employers seek “wall-to-wall units,” they win almost every time. It’s the main reason that Wal-Mart remains totally nonunion.

The NLRB said that cosmetics sales people are paid differently than others sales people, so they can have their own “micro-union.”

Going forward, unions will continue their recent efforts to organize smaller, more skilled workers in a larger work group. They don’t necessarily want to have a contract, given how one-sided these have become (e.g., employers force employees into their own arbitration systems and also force employees to waive all their legal rights to public courts).

If there is a bottom line, it is this: The Fight for Fifteen and Occupy movements typify the wave of the future—loosely organized, energized, boisterous protests usually centered on a very specific demand, for example, a living wage.

Labor relations is dying, and so are collective bargaining agreements. But worker unrest is not going away.

Son of a Witch!

Yes, there is a witch hunt.

Win for the Redskins, The Slants … and Confederate Flag and Monuments

Matal v. Tam, decided by the Supreme today, opens with Justice Alito’s informative summary:

“This case concerns a dance-rock band’s application for federal trademark registration of the band’s name, “The Slants.” “Slants” is a derogatory term for persons of Asian descent, and members of the band are Asian-Americans. But the band members believe that by taking that slur as the name of their group, they will help to “reclaim” the term and drain its denigrating force.

The Patent and Trademark Office (PTO) denied the application based on a provision of federal law prohibiting the registration of trademarks that may “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead.” 15 U. S. C. §1052(a). We now hold that this provision violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”

The case will allow The Slants to register their name with the U.S. Patent and Trademark Office—but the more notable win is for the Washington Redskins.

In 2014, the U.S. PTO revoked the registrations of their name. This decision ends a two-decade effort by Native American activists to cancel the team’s registrations as pressure to change the name.

Interesting to note, the Obama administration didn’t make up the disparagement clause—they did, however, broaden it. The disparagement clause was created in 1946, in the Lanham Act.

Until now, courts ruled that the disparagement clause in the Lanham Act didn’t violate the First Amendment because it never barred real-life use of the offending remark (e.g., Redskins, Slants, or Chief Illiniwek), nor does it prevent the owner from enforcing common law trademark rights.

Today, the Court rules that the ban amounted to “government speech.”

First Amendment lawyers wonder how far this new precedent will be stretched. Already being discussed: Walker v. Texas Division, Sons of Confederate Veterans, 576 U.S. ___ (2015). Two years ago, the Supreme Court ruled that Texas did not have to grant a request to create a Confederate flag license plate.

The Slants case will provide support for efforts by Confederate flag supporters to overturn government bans on these flags and monuments.

Trump Takes Position Against Workers in Supreme Court Case

If Donald Trump is fighting for the American worker, you wouldn’t know this from the legal brief his lawyers filed on Friday in a major case before the Supreme Court.

As Reuters-Legal reports today, the Trump administration on Friday sided with employers in a Supreme Court case over the rights of workers to bring class action lawsuits against companies, court documents showed.

The case involves a ruling from the National Labor Relations Board that prohibits employers from requiring employees to waive class action claims.

What might that case look like? Let’s say your employer fails to pay you overtime when you are on call for Saturday as a mechanic, a nurse, a delivery driver and so on. Your restriction states that you must be within 20 minutes of reporting to work in case of a “call out.”

Depending on the extent of restrictions, the employee is owed pay for this time.

I discussed this matter with a nurse in Champaign last week.

My hunch is that she lacks the money to fight her employer for overtime pay.

Also, it’s unlikely that a lawyer will take her claim for pay, given its fairly small size.

It’s a different story if the nurse has 50 co-workers who are similarly affected. If they act as a group (called a class, in legal terms), they are on a more even footing with their employer—and they’ll attract good representation.

Donald Trump talks a big game about favoring the American worker, but so far his policy positions are more consistent with being a billionaire businessman.

Interrupting Julius Caesar: Using Conspiracy Law to Combat Right-Wing Conspiracy Leaders

How to fight back against right-wing conspiracy kooks? Last night, two protesters interrupted the Public Theater’s production of Julius Caesar, with one storming the stage to accuse the actors of inciting political violence. Trump supporter and conspiracy theorist Jack Posobiec filmed his partner-in-crime, right-wing blogger Laura Loomer, as she marched on-stage mid-performance.

“BREAKING: Julius Ceasar Gets SHUTDOWN,” Posobiec tweeted along with a video of the stunt, which showed Loomer shouting “Stop the normalization of political violence against the right!” as she marched on-stage.

Let’s compare that to Glasson v. City of Louisville (6^th Cir. 1975). Marjorie Glasson was on a sidewalk along a street where President Nixon’s motorcade was traveling in 1970. She held up a poster that read, “Lead us to hate and kill poverty, disease and ignorance, not each other.” A Louisville police officer tore up her sign, saying it was “detrimental.”

Glasson sued under Reconstruction-era civil rights laws. One law was the Ku Klux Klan Act. The city argued that since Ms. Glasson wasn’t African-American, the law couldn’t be applied to her. The federal appeals court disagreed, noting that the Ku Klux Klan Act was intended not only to protect freed slaves but also their political supporters.

Nearly 100 years after the law was passed, the court said that the law was passed to protect people who exercise their right to political dissent. The Klan Act isn’t limited to opponents of the KKK.
Section 1985(3) applies to private actors (not just state actors, as in Glasson). See Griffin v. Breckenridge (1971). 
Back to Julius Caesar. A “Section 1985(3)” [Ku Klux Klan Act] lawsuit would also need to show a conspiracy to deprive people of their civil rights.

Look at the facts: This was (pardon the pun) a staged and coordinated effort by the extreme right “news guy” Posobiec and his partner to interfere with the theater's right to voice a political view by putting on a play, and the right of patrons to watch the play without interruption. 
It’s time to fight conspiracy nuts with a conspiracy lawsuit.

Supreme Irony: Women Attorneys Lead Trump Investigation

Donald Trump’s crude treatment of women set a new low in American politics and culture. His demeaning view of women is visible in his administration, populated almost entirely by sycophantic men.

Bob Mueller apparently doesn’t buy the idea that only 50% of the adult population is qualified to do serious work.

Here are two attorneys he recently hired.

Jeannie Rhee (pictured above) has spent her private practice career advising clients who are the subject of government investigations, including white-collar criminal investigations, False Claims Act allegations and securities enforcement matters. In her public practice, Ms. Rhee also served as a Deputy Assistant Attorney General where she advised the Attorney General, the White House and senior agency officials on constitutional, statutory and regulatory issues regarding criminal law, criminal procedure, executive privilege, civil rights and national security. Ms. Rhee graduated from Yale Law School.

Lisa Page is an experienced Justice Department trial attorney. She has deep experience with money laundering and organized crime cases. She knows the territory where Paul Manafort took allegedly illegal payments from Russian-backed operatives in Ukraine. Ms. Page worked on the FBI task force in Budapest, Hungary, that focuses on Eastern European organized crime. She is a legal expert in money laundering cases.

Are Congress Shooting Victims Covered by Workers Comp?

Probably yes, due in part to Marilyn Ezzy’s broken finger in a 1980 softball game. Ezzy was a summer intern. Her law firm sponsored a softball team. She was encouraged but not required to play. After she broke her little finger in a game, her employer refused to cover medical costs. She claimed for workers comp—and in a “lead case” before the California appeals court, she won.

The court applied a version of the “work factors” test—the activity was directed by the employer, the games benefited the law firm by promoting esprit de corps, the firm’s name was on t-shirts, the team was composed of firm employees, and so on.

Rep. Scalise’s injuries are extremely serious, and his medical costs (guessing here) could top $1 million. He might have some type of permanent impairment. Over and above health insurance, worker’s comp would cover his hospitalization, medical and rehabilitation. Hypothetically, if he has a permanent partial disability, worker’s comp will pay an additional sum— likely in the hundreds of thousands— for this loss of capacity.

Rep. Scalise is actually an employee. Benjamin Franklin suggested at the Constitutional Convention that representatives and senators receive no pay, but his idea was rejected. The 2016 salary for rank-and-file members of the House and Senate is $174,000 per year; they pay into Social Security, and their employment is regulated by the U.S. Office of Personnel Management. 

It therefore seems he is covered by the federal version of worker’s comp (Federal Employees' Compensation Act)—and since the Ezzy case is widely followed, it seems more likely than not that his injuries would be analyzed along the lines of Marilyn Ezzy’s broken finger in 1980.

The congressional police officer who was shot is clearly covered.

The Tyson lobbyist, Matt Mika, has critical injuries—and his medical and rehab issues might be somewhat similar to Rep. Scalise.

However, he might have a tougher time claiming worker’s comp. Unlike Marilyn Ezzy, he is not employed by Congress. Tyson likely has a third-party carrier, and likely, they will not be sympathetic but rather try to avoid paying a huge claim. They’d argue that Mika was outside the scope of employment—and they would be on solid ground in distinguishing Mika’s case from Ezzy.

Regardless, prayers and best wishes to all the shooting victims.

Is Terror a Status Crime?

Today’s shooting was a likely terror attack. It appeared to have a political motive. It was violent. It aimed to shake the public’s confidence in basic security. But the shooter didn’t fit the preeminent narrative of terrorism.

Is terror a status offense? In other words, if two identical acts of terror are committed, one by a 66-year-old white man, and one committed by a 22-year-old Muslim, are we able to condemn them both as terror attacks without differentiating the status of the attacker?

Our Constitutional framers were deeply concerned about “status” crimes. A status crime makes a person's status the core element of an offense, not his conduct.

Therefore, they categorically outlawed all “bills of attainder.” 

That refers to an act of a legislature declaring a person or group of persons guilty of some crime and punishing them.

We’ve had them in the past. During the height of anti-Communist passions, Congress enacted a labor law. In United States v. Brown, 381 U.S. 437 (1965), the Supreme Court invalidated the section of the labor statute that criminalized a former communist serving on a union’s executive board. Brown was convicted because he was a Communist and a labor leader.

We’re not at that point of labeling a group of people as terrorists; but the stark differences in responses to the recent Manchester and London attacks, compared to the attack on our American lawmakers, suggests that we might see attainders in the future.

Flag Day 2017: Two Flags for a Deeply Divided U.S

Are we a united nation? The first picture is a U.S. flag sent to me by a student who has served our nation in combat. Ben writes: “Here is a flag for your desk. This flag means a lot to me and to many others who spent 7 months from away from home working to defend it. We don’t see political views, we don’t see race, we just see freedom and democracy. While we have opinions, the flag supersedes our opinions. Our oath is to the nation and to the flag—so it remains on our shoulders daily.”

The second picture is hard to look at, especially after reading Ben’s powerful homage to our nation’s flag. The perverted flag was displayed by Jeffrey Hall. As reported by the Washington Post  last year, here is his vision for America: “I want a white nation.” Mr. Hall once patrolled the U.S.-Mexico border looking for illegal immigrants. He often spoke at rallies, promoting the goals of the National Socialist Movement, the largest neo-Nazi organization in the U.S. country, with 46 chapters in 20 states. Hall was shot and killed by his then-10-year-old son, who killed his father while Mr. Hall was asleep on his living room couch. The son later said that his father beat him constantly.

My student, Ben, is serving this nation for you, for me, for our children, and grandchildren—and even for the Joseph Halls of America.

Thank you, Ben and your fellow service members, for making America great. Let’s hope we can all rally around the flag you sent me, which I proudly display in my office.

How Does the Antichrist Relate to Job Bias?

Sometimes an idiosyncratic case makes an important and more general point.

The Facts in EEOC v. Consol Energy (4^th Cir. 2017): Beverly Butcher, a 37- year employee at a Pennsylvania coal mine, had a sincere belief in the Antichrist. He got into trouble with his employer after his religious accommodation request was denied.

Mr. Butcher believes that a mark on his right hand is tantamount to the “Mark of the Beast,” and therefore shows allegiance to the Antichrist.  

The Company implemented a new hand-screen system that involved a biometric marker on everyone’s right hand. Mr. Butcher offered to check in with his shift supervisor or punch in on a time clock, but his employer insisted on scanning his hand or imposing discipline.

Forced to choose between a hand scan and a future of fire and brimstone in Hell, Mr. Butcher retired.

Later, he learned that the Company offered two employees with hand injuries alternate methods to track time.

A federal appeals court on Monday upheld a $590,000 jury verdict against Consol Energy Inc. for Mr. Butcher to retire because it would not accommodate his evangelical Christian beliefs. The three-judge panel concluded, “It is not Consol’s place as an employer, nor ours as a court, to question the correctness or even the plausibility of Butcher’s religious understandings."

The court added that the only relevant inquiry about Butcher’s beliefs is whether they are sincere, which the jury found they were.

The lesson? If an employee makes a highly unusual request for a religious accommodation, the employer can only consider whether the request reflects a sincerely held belief.

The court did not address whether an alternate method of tracking time would be unduly burdensome for the employer. In this case, Consol made no attempt to consider an accommodation. (Other cases establish that an employer need only consider a “de minimis” accommodation.)

Why You Should Know About “Pleaks”: U.S. Government Historically “Leaks Like a Sieve”

Donald Trump has called Jim Comey a “leaker,” and also cast aspersions on other “leakers.” Is leaking an offense? What’s the history of leaks?

In 2013, Prof. David Pozen published a law review article that took up these questions. He found that leaks from the executive branch are common, strategic, and long-standing, as are unwanted leaks and also some leaks that cross the legal line. He calls many of these leaks "pleaks" because they serve a public purpose.

Here is the summary of Prof. Pozen’s fascinating article, "The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information,” published in Harvard Law Review:

Abstract

The United States government leaks like a sieve. Presidents denounce the constant flow of classified information to the media from unauthorized, anonymous sources. National security professionals decry the consequences. And yet the laws against leaking are almost never enforced. Throughout U.S. history, roughly a dozen criminal cases have been brought against suspected leakers. There is a dramatic disconnect between the way our laws and our leaders condemn leaking in the abstract and the way they condone it in practice.

This Article challenges the standard account of that disconnect, which emphasizes the difficulties of apprehending and prosecuting offenders, and advances an alternative theory of leaking. The executive branch's “leakiness” is often taken to be a sign of organizational failure. The Article argues it is better understood as an adaptive response to external liabilities (such as the mistrust generated by presidential secret keeping and media manipulation) and internal pathologies (such as overclassification and bureaucratic fragmentation) of the modern administrative state. The leak laws are so rarely enforced not only because it is hard to punish violators, but also because key institutional actors share overlapping interests in maintaining a permissive culture of classified information disclosures. Permissiveness does not entail anarchy, however, as a nuanced system of informal social controls has come to supplement, and all but supplant, the formal disciplinary scheme. In detailing these claims, the Article maps the rich sociology of governmental leak regulation and explores a range of implications for executive power, national security, democracy, and the rule of law.

Photo Credit: Newseum Institute 

Fake News About the Ninth Circuit’s 80% Reversal Rate

Today, the Ninth Circuit Court of Appeals joined the more conservative Fourth Circuit Court of Appeals in finding that the Trump administration’s travel ban is unconstitutional because it discriminates categorically against Muslims.

You’ll hear the president and his Fox News surrogates say that the Supreme Court overturns 80% of the Ninth Circuit’s rulings.

Here is why that number is true but also false and misleading. 

But let’s start with this analogy. Over the past 30 years, my wife and I have agreed 99% of the time on issues that relate to raising our three children. I can distinctly recall rare occasions—because I am sometimes reminded of them— when my recommendation was “X” and my wife recommended “Y” and my recommendation prevailed, only to be the perfectly wrong approach. The point is that when my wife and I disagree, my failure rate is about 80%.

Does that make my decision rate an 80% failure as a father/husband? Of course not. I am usually right, but my wife is more right than me. My 80% failure rate is that small sliver of cases where we disagree, and my view prevail. Then, my decisions are about 80% wrong.

Turning to President Trump and Fox News, they are referring to Roy E. Hofer’s excellent but flawed research article, “Supreme Court Reversal Rates: Evaluating the Federal Courts of Appeals.” It's here:

https://www.americanbar.org/content/dam/aba/migrated/intelprop/magazine/LandslideJan2010_Hofer.authcheckdam.pdf. 

What Trump and Fox won’t tell you if that the Supreme Court’s average reversal rate for all the federal circuits is 68%, according to Hofer's research.

So, let’s stop and consider this: Does this number mean that all the appeals courts are “rogue” or “biased” or incapable of applying the law? No. 

What Hofer, and now Trump and Fox, don’t tell you is that the court’s primary jurisdiction is called “certiorari,” a term that means the Court has discretion to fully review a lower court case. In more than 99% of cases that are appealed to the Supreme Court, the Court declines to grant certiorari. Thus, these appeals court rulings are either correct as a matter of law, or not so flawed that the Supreme Court decides to review them.

Now, consider this explanation: “In short, social media claims that 80 percent of cases decided by the Ninth Circuit were overturned were flat out false; more than 99 percent of that circuit’s decisions stood and the Supreme Court reviewed a scant 0.106 percent of circuit court cases each year. Although figures from 2010 maintained the “Ninth Circuit [had] the second highest reversal rate at 80 [percent],” the “highest” was the Federal Circuit court’s median of 83 percent. However, left out of both the rumors and the blog post was the fact that the average rate of accepted cases ruled upon differently by the Supreme Court than a lower circuit court was over 68 percent across all courts.” See here: http://www.snopes.com/ninth-circuit-court-most-overturned/. 

Returning to my parenting analogy: Being 80% wrong in a very narrow set of circumstances does not make a parent 80% wrong in his or decisions as a parent. For me, the clear implication is that when my wife and I conflict, I should listen to my wife. However, for the Ninth Circuit—whose rulings are upheld in 99% of Supreme Court decisions— they aren’t one person in conflict with a second person. They make decisions in groups called panels (usually three), and they are often trying to figure out how another group of judges—at least five of them—will rule if their decision is appealed.

I’ll simply say that we’ve raised three good kids notwithstanding my occasional mistakes, and the Ninth Circuit has been in the mainstream of American law in 99% of its rulings.

Round 1 Winners, Tourney of Trump (TOT)!

With “truth” and “liar” emerging as a tourney trend, Round 1 of Tournament of Trump produced a dramatic upset as the No. 8 seed, Who Do You Trust?, knocked off the No. 1 seed, The Apprentice, in the Kremlin Region. Other winners in the region were The Biggest Loser (2 seed), To Tell the Truth (4 seed), and the 6 seed, You Don’t Say, in another upset.

In the West Wing Region, the No. 1 seed, I’ve Got a Secret, cruised to an easy win. In fact, all the favored teams won: No. 2, The Biggest Loser, No. 3, You Don’t Say, and No. 4, To Tell the Truth.

In the Capitol Hill Region, another 8 seed pulled off a stunning upset, as Password knocked off Are You Smarter than a Fifth Grader? The 7 seed, Tattle Tales, pulled another huge upset. Favorites Deal or No Deal (3 seed) and Truth or Consequences (4 seed) prevailed.

In the Trump Tower Region, the 1 seed, Jeopardy, won as did the No. 2 seed, Let’s Make a Deal. The No. 6 seed, Pass the Buck, upset the No. 3 seed, Dancing with the Czars. The 4-seed, The Weakest Link, also won.

Regional MVPs were Ky Retweet, Kevin Love-Russia, Russell Westwing, and “King James” Comey.

Round 2 kicks off this week with play during the Attorney General Sessions' session, and concludes on or before June 23, when tapes and memos are due to congressional committees.

(Thanks to former students KF and JN for their "influence" by playing along and sharing some thoughts.)

Comey News Coma? Kansas Story Offers Hope for National Unity

A remarkable development in Kansas offers hope for bipartisan respect and cooperation. Kansas elected Gov. Sam Brownback twice on his pledge to severely government and cut taxes. He promised that the decline of the public sector would spur growth of Kansas’ economy. His promises failed. Kansas has posted six straight years of growth below the national average.

Worse, his ideas led to massive cuts for public schools. Democrats were furious; but over the years, so were many Republicans. 

This week the Republican-controlled legislature overrode Brownback’s veto of a bill that would undo some of his tax cuts and raise $1.2 billion over two years.

This is a stunning revolt by moderate Republicans, who have decided to work for now with Democrats.

What’s notable here?

For one, Brownback’s budget is cut from the same cloth as Trump’s first budget. Both proposed deep cuts to public schools and public health.

There’s more. In the 1950s, Kansas was at the center of one of the greatest Supreme Court decisions, Brown v. Board of Education (1954). In that case, Kansas argued that racially segregated public schools were constitutional as long as they were equal—the so-called “separate but equal” doctrine that was a pillar of racial segregation.

Fast-forward to May 2017, when the Kansas Supreme Court ruled that Brownback’s budget was unconstitutional because it severely cut programs for minority students. Interestingly, it had the same effect on rural school districts that keep tiny Kansas towns alive.

The budget cuts accentuated the educational advantage of a few wealthy suburban counties near Kansas City.

The court’s unanimous decision said: “We conclude the state’s public financing system, through its structure and implementation, is not reasonably calculated to have all Kansas public education students meet or exceed the minimum constitutional standards of adequacy.”

Whatever comes of James Comey’s testimony, it won’t heal the nation and it won’t undo a disastrous budget that is before the Congress.

Here’s hoping that the little school house on the Kansas prairie will “Make America Unified Again.” 

Do You Have a Right to be Happy?

Yes—and it’s not the product of oft-criticized Democrats who contend for an expansion of rights.

It’s rooted in a theory of natural law that is stated in the Declaration of Independence.

The Continental Congress that met in Philadelphia in 1776 adopted most of Thomas Jefferson’s opening paragraph that declared independence. He wrote, “all men are created equal.” All people have “inalienable rights,” including “life, liberty, and the pursuit of happiness.” Jefferson derived these ideas from 17th and 18th-century philosophers who believed that universal laws of nature dictated not only the movement of stars and creation of life but also human existence.

Why this post today? My online class is reading a case about Target store security officers who were required to answer questions about their sexual thoughts. California has a state constitution that copies words from the Declaration of Independence. Courts view these rights as creating a right to privacy—here, the right to be free from sharing your sexual thoughts with a prospective employer.

Later today, I’ll work on my research that traces citizenship rights for freed slaves and their descendants. Ironically, Jefferson owned slaves. When he wrote those about those expansive rights grounded in human nature, he overlooked slaves, women, and “Indians” (a term used in the Constitution).

The point? Our society still struggles with the concept “all men are created equal.”

What do you think that term means? Does it apply to illegal aliens in the U.S., and if so, to what extent? 

It’s Not Too Late to Play TOURNAMENT OF TRUMP

Round 1 of Tournament of Trump tips off when James Comey is sworn-in to testify.

It’s easy to play. Just look at the match-ups on this chart. Click to enlarge it.

These are TV game shows whose titles might or might not fit the testimony.

You can complete a chart, as one of my former students did—or you can simply e-mail your choice of one or more “games” that you think will best reflect the testimony on Thursday.

Just e-mail me your thoughts at m-leroy@illinois.edu.

I’ll post results sometime soon. TOT will then be down to the Sweet 16.

You might be wondering when will Round 2 be played and what will it be?

I honestly don’t know, but the only thing standing in the way of Round 2 is if Trump has a sudden onset of sanity.

“Education is Not Mayonnaise”: Republicans Reject DeVos Budget Proposal

Republicans bluntly challenged Betsy DeVos’s proposed budget for the Department of Education.

By bluntly, I mean Roy Blunt, Republican Chair of the Senate Committee on Labor, Health and Human Services, Education and Related Agencies.

The Missouri Republican said: “This is a difficult budget request to defend. I think it’s likely that the kinds of cuts that are proposed in this budget will not occur, so we need to fully understand your priorities and why they are your priorities.” He added: “the outright elimination of several large formula grant programs — like the 21st Century Learning Centers — I think will be all but impossible to get through this committee.”

Another Republican, Sen. John Neely Kennedy, chided DeVos over her complete reliance on the private sector to fund education in America: “Education is not mayonnaise, and, frankly, the day we start treating the education of our children like we do the marketing of a condiment is the day we have given up on our kids.” For more, see Valerie Strauss's article in today's Washington Post, here: https://www.washingtonpost.com/news/answer-sheet/wp/2017/06/06/what-we-just-learned-from-betsy-devoss-painful-appearance-before-congress/?utm_term=.67de228b9301 

Comparing Today’s Orlando Shooting and London Terror Attack

This morning, a gunman killed six people, including himself, at his former workplace. This appears to be a revenge attack related to his termination in April.

This weekend, three terrorists killed seven people and critically injured more than 20 people in London.

There will be no federal ban on guns in a private workplace; no call for more gun control; no psychological screening of people who are fired from work to see if terminated employees are safe to move about freely in the U.S.

So, let’s look at some data.

The chart above is for 2010, produced by the U.S. Department of Labor. 

It shows that in 2010, 405 people were shot and killed at work.

In the same year, 4 people were killed in terror attacks on U.S. soil. In 2011, 0 deaths; 2012, 2012, 7 deaths; 2013, 7 deaths, and 2014, 18 deaths. Source is here: http://www.start.umd.edu/pubs/START_AmericanTerrorismDeaths_FactSheet_Oct2015.pdf

Workplace homicides are a much greater threat to Americans than visitors and immigrants who are already subject to extremely high levels of "vetting." 

RIP, Prof. Fred Kummerow: Working Past 100

Prof. Fred Kummerow has been a faculty member at UIUC since 1950, though I never met him.

Still, he is in an inspiration to me and hopefully you.

Last week, he died at 102 years of age and wisdom.

Research: His life’s work was on the harmful effects of trans fats. His work was pathbreaking—and it was ignored for decades. His most significant study showed a direct link between the consumption of foods containing trans fats and heart disease in women. The New York Times reports, “It was a turning point in scientific and medical thinking about trans fats.”

Family: He was married to Amy Kummerow, who passed away at age 94. They had three children and three generations of descendants during Prof. Kummerow’s long life.

Inspiration: The picture of Prof. Kummerow shows him at his Urbana office at age 99. He maintained an active research program and worked past his 100^th birthday.

Best Fact: As the New York Times reports, “Professor Kummerow began his campaign to halt the use of trans fats when he found that food manufacturers had continued to rely heavily on trans fats even after his findings were corroborated by other scientists. In 2009 he filed a petition with the F.D.A. to ban the use of trans fats but, he said, received no response. He then sued the agency in 2013.”

Here is a man who fought for his principles—and to save lives— as he approached the century mark.

Thank you, Prof. Kummerow, for a life well-lived.

Can Your Employer Bar You from Recording at Work? Not Anymore

Whole Foods Market has a blanket policy that bars employees from making audio or video recordings at work. On Thursday, a federal appeals court ruled that this type of blanket rule violates federal labor law.

In a unanimous ruling, the panel of judges said the company’s rule was so broad that it would deter employees from documenting unlawful working conditions.

The ruling is significant because many employers have adopted these blanket bans. The court's ruling does not permit employees to make recordings as they please. It simply means that an absolute ban has no legitimate business justification.

Does America Need Thicker Skin or a Speech Code?

The most remarkable discussion in my classes this year involved a student from Ghana and her classmate from Germany. We were discussing whether an American Nazi has a right to share his group’s pamphlets in non-work areas of the workplace.

My student from Ghana contended that we all need to grow a thicker skin. We cannot regulate hate speech out of existence—it will always be there, she said. When we hear hate speech, we should not ban it nor remain silent. We must speak out against it.

My student from Germany said that her nation has been spared the ugliness and raw hatreds that the U.S. and other nations have suffered due to its strict regulation of racial and religious hate speech. These laws have preserved civility in Germany—more so than in the U.S., UK, France and elsewhere. She compared hate speech to a genie that, once freed from its bottle, is very hard to contain.

I will think about this debate as Portland braces for a weekend of protests by Alt-Right hate groups.

To my German student’s point, unbridled hate speech fueled the rage of the man who murdered two defenders of a Muslim woman. Would he have reached the point of derangement if we had Germany’s speech codes?

To my Ghanaian student’s point, if we limit hate speech, will we know where and when to draw a line that preserves America’s unique traditions of free speech?

I welcome your thoughts at m-leroy@illinois.edu.

Photo Credit: Karlie Kloss, Lifehack Quotes

Name One Good Reason to Ask for a Woman’s Salary History

Only one state— Massachusetts— prohibits employers from asking job applicants for their current salaries or salary histories (California and New York will soon join). Philadelphia recently enacted a similar law.

Women are more inclined than men to take the first offer put out by an employer (68% of women, and 52% of men, do not negotiate). This factor contributes to pay discrimination against women as a group.

If your group asks for less and gets less—in this case, women— and if next employers ask for salary history, the gender gap remains in place. Currently, women earn about 79% of men. It’s moved up from 76% in the early 1980s. One study estimates that the gender gap will disappear by 2085.

Now comes a major ruling from Philadelphia, where a federal judge dealt a temporary setback to a lawsuit challenging the law.

The challenger is the Chamber of Commerce of Greater Philadelphia.

Essentially, the court told the business group that it cannot make abstract arguments about harm or injury to member corporations. Instead, it must produce at least one employer who alleges that the law will harm the firm—and explain what the injury is.

What would that look like? Here are some tongue-in-cheek answers.

May it please the Court, my client has increased its profits and remained competitive by offering women less money than we will pay going forward under this law.

***

Your Honor, my client objects to the principle that it can be sued in a court of law.

***

Our corporation asserts the natural and fundamental right to maintain the inequality of women. This natural right has existed since the dawn of civilization.

The case is Chamber of Commerce of Greater Philadelphia v. City of Philadelphia, U.S. District Court for the Eastern District of Pennsylvania, No. 17-cv-1548.

Photo Credit: Open