More Scalia Fallout: Free Speech Case

What do you think about this? A mayor orders the demotion of a police officer who briefly attended a rally to pick-up a campaign sign for the mayor’s opponent. It turns out that the officer picked up the sign at his mother's insistence, to replace a campaign sign that had been taken from her front yard. The mayor acted on false belief that the officer opposed his election. The officer sued, claiming that his First Amendment rights were violated. The city said, no, he can’t assert a First Amendment right because he never stated his own view about the mayoral election (again, he was acting only for his mother). In oral argument, Justice Scalia appeared to side with the employer. While the case appears to be trivial, it is important because of the prominence of social media and its tendency to create as much misinformation as accurate information—not to mention the ease of impersonating someone on the Internet and creating havoc for them. When the Supreme Court granted review of the case, here is how the issue was framed: QUESTION PRESENTED: Whether the First Amendment bars the government from demoting a public employee based on a supervisor’s perception that the employee supports a political candidate. Heffernan v. City of Paterson et al., 777 F.3d 147 (3d Cir. 2015). Justice Scalia's death appears to shift the case from a 5-4 win for the employer (or, defeat of speech rights) to a 4-4 impasse.

Funeral for Justice

President Obama’s decision not to attend the Saturday funeral of Justice Scalia—located a few miles from the White House— is a lost opportunity to unite by example. Few justices die in office, even though many work well into their 70s and 80s. One explanation for their penchant for work is that their pensions use 70 years as a qualifying age. When Chief Justice Rehnquist died in office, President Bush delivered his eulogy. Given their shared values, this is unremarkable. The last Justice to die in office who was from different political party than the president’s party was Robert Jackson (FDR appointee), in 1954. All eight fellow justices attended his funeral in Jamestown, New York. (Brief Youtube of funeral train is here, remarkable for showing evidence of racially segregated work of "Negro porters," as these workers were called). President Eisenhower was unable to attend but personally sent a four-foot tall wreath. Did these men of differing politics share a common bond? Yes—Justice Jackson (Democrat) was the lead prosecutor in the Nuremberg Trials, President Eisenhower  (Republican) was the lead liberator of Europe. We have fallen far from those days of comity. 

How Did Wealth Influence Justice Scalia?

The late justice died while a guest of J.B. Poindexter, former private equity investor and owner of a diversified manufacturing company. Click here for more.The 30,000 acre ranch where the justice died is raising new questions among legal ethics scholars about improper influencing of federal judges. No one is suggesting that Justice Scalia was bribed—not close— but there are growing questions that he immersed himself in a culture where political values may have driven discussions. (We’ll never know because the ranch and its parties are private.)

What makes this so interesting is that Justice Scalia sharply questioned whether labor unions can exact mandatory dues. On January 11, 2016, during oral argument in the Friedrichs case, he observed: “The problem is that everything that is collectively bargained with the government is within the political sphere, almost by definition. Should the government pay higher wages or lesser wages? Should it promote teachers on the basis of seniority or on the basis of ­­ all of those questions are necessarily political questions (p. 45).” Click here for the transcript. His implication is that a teacher who disagreed with her union’s politics had a First Amendment right to pay no dues.

Fair enough in principle, but how many teachers or teacher unions have access to wealthy power brokers who invite a few dozen important people to hob-knob and reinforce their particular view of politics? Post-Script: In 2011, Chief Justice Roberts issued a report that cautioned federal judges to maintain their independence—this, after it emerged that Justice Scalia and Justice Clarence Thomas had attended private political meetings sponsored by billionaire conservative donors David and Charles Koch. Were teachers or their unions invited to those meetings?

How We Bend Our Constitution

Justice Scalia was a “textualist,” meaning that he gave the text of the Constitution ultimate weight over alternative methods to resolve a constitutional issue. Thus, it is ironic that his greatest supporters read past Article II, Section 2 of the United State Constitution, which defines the powers of the President: “He shall nominate  … Judges of the supreme court (emphasis added).” The Senate, in the same section, is given the power to “advise and consent.” There is no provision in the Constitution for deferring this process; or making it optional, rather than mandatory; or submitting the matter to a vote of the people.

How a 17 Year-Old Feels the Bern

If you are dismayed that so many voters seem to be motivated by rants, name calling, race baiting, xenophobia and the like, take a moment to read Siena Roberts (Uni High, 2016). Click here.

Scalia-Ginsburg: Life Lesson from This Odd Couple

How could a very liberal, Jewish feminist and an arch-conservative, Roman Catholic traditionalist be best buddies for the past 30 years? Here are some lessons from the Supreme Court’s oddest couple.

● Ginsburg’s health problems were well known. She is a cancer survivor. Less well known, Scalia’s doctors report his heart was too weak for shoulder surgery to relieve pain. They probably shared private details of their aging and illnesses, and drew strength from each other.

● Ginsburg often wrote dissenting opinions to Scalia’s majority opinions, but privately he shared advance copies of his work so that she could strengthen her arguments—often at the expense of exposing Scalia as an unkindly (to put it mildly) justice.

● They lived life to the fullest—and shared vacations. Ginsburg went parasailing in Europe, while Scalia watched, below in fear that his friend would blow away. Before Scalia died, he completed a ten day trip to Asia and went to Texas on hunting trip—hardly the picture of an overweight, pain-stricken man with a serious heart condition nearing his 80th birthday.

The best lesson we can learn from this odd but committed relationship: Don’t demonize people just because you strongly disagree with them. Share a meal; your work; your leisure time— and your compassion for each other.

Can Republicans Stack the Supreme Court?

Yes. The number of justices for the Supreme Court is set by Congress. In establishing a Supreme Court, the Judiciary Act of 1789 provided one Chief Justice and five associate justices. After the Civil War, Congress expanded the Court to its present number of nine justices. If Republicans win the White House and 60 Senate seats, it is possible that they will expand the Court to—say, 11—, pack the Court with justices similar to Scalia, and render moot the votes of the four liberal justices.

Did Scalia Have a Liberal Side?

No, but the Justice had a libertarian side that occasionally created shared space with liberal justices. Consider Von Raab v. National Treasury Employees Union,  a broadly worded opinion that approved a drug testing program for customs agents, even though there was no evidence that drug use was an issue with these employees. The decision is the leading precedent for today's drug-testing in the workplace-- testing that sometimes is overbroad and unrelated to an employer's legitimate interests.

Here is an excerpt of his dissenting opinion, joined by a liberal Justice, John Paul Stevens:

Until today this Court had upheld a bodily search separate from arrest and without individualized suspicion of wrong-doing only with respect to prison inmates, relying upon the uniquely dangerous nature of that environment. Today, in Skinner, we allow a less intrusive bodily search of railroad employees involved in train accidents. I joined the Court's opinion there because the demonstrated frequency of drug and alcohol use by the targeted class of employees, and the demonstrated connection between such use and grave harm, rendered the search a reasonable means of protecting society. [489 U.S. 656, 681].  I decline to join the Court's opinion in the present case because neither frequency of use nor connection to harm is demonstrated or even likely. In my view the Customs Service rules are a kind of immolation of privacy and human dignity in symbolic opposition to drug use.

“Slapping Someone on the Buttocks or Grinding One's Pelvis Into Another's Behind”

Is "slapping someone on the buttocks or grinding one's pelvis into another's behind” sexual harassment? That was the issue decided yesterday by a federal appeals court. A male worker went to court after a male co-worker did this to him. The company said it was horseplay. Not so, said the jury and judge. Now, a federal appeals court has ruled, affirming a $300,000 judgment against the company that failed to take actions against this behavior. 

The court said: “Plaintiff described these incidents as escalating from a slap on the rear, to a painful grab on the rear, to grab by the hips and “hunching,” i.e., briefly simulating sex. A threatening gesture after the first incident and a verbal threat after the second apparently did nothing to prevent subsequent incidents. The incident Plaintiff observed with Gill similarly involved inappropriate touching. Taking into account all the circumstances and viewing the facts in the light most favorable to the Plaintiff, we cannot say that the jury’s determination that a hostile or abusive work environment existed was unreasonable.” For more: Click here.

Would You Boycott This Astronomer?

A group of scientists, including a lead researcher from Israel (pictured here), have confirmed evidence of gravitational waves that Einstein predicted 100 years ago. News reports say that scientists compare this to the moment that Galileo used a telescope to look at the planets. As reported by the LA Times: “The discovery of these waves, created by violent collisions in the universe, excites astronomers because it opens the door to a new way of observing the cosmos. For them, it’s like turning a silent movie into a talkie because these waves are the soundtrack of the cosmos…. ‘Until this moment, we had our eyes on the sky and we couldn’t hear the music," said Columbia University astrophysicist Szabolcs Marka, a member of the discovery team. ‘The skies will never be the same.’"
Today’s news shows how counter-productive it is to support and promote the academic campaign to boycott Israeli academic institutions, their faculty, and their research.

Your Pet and Forced Labor

Some pet owners were shocked to learn that their pet food has fish that was apparently harvested by Thai slave workers who were putting in 20 hours a day catching and processing seafood. The pet owners sued Mars, the parent firm of Iams. A federal judge tossed the lawsuit because no statute compels Iams to disclose the possibility that its product uses forced labor. The case is Wirth v. Mars Inc. Here is the interesting complaint filed by pet owners: Click here.

Desecration: More Than Vandalism

When the Maryam Khatoon Mosque was destroyed in Iraq last year, this wasn’t a crime against property. It was a crime against Muslims who worship there. The same is true for an 1,800 year old Christian church that was destroyed in 2014 in Iraq. There are no Jewish temples of significance in Iraq—when the last temples were destroyed in a 1949 pogrom, surviving Jews were forced to leave.

For the third time in less than a year, a menorah has been desecrated at our community Jewish Center. The scale of destruction differs— but then, this is the U.S., where freedom to worship is so deeply rooted that lesser forms of destruction feel intensely violating to Americans. This is why graffiti spray-painted on an American mosque or a fire at an African-American church pose a fundamental threat to our core democratic values. These constitute attacks against the American people.

To date, the criminal justice system has been lenient in dealing with destruction of our community menorah. But that is because this crime has been mischaracterized as “vandalism.” A menorah is not a thing; nor is its destruction akin to tearing down a stop sign as a prank.  Its destruction is a desecration, and our courts must treat this as a threatening act against a people. Hopefully, the offenders will be caught, and our courts will impose a penalty that sends a strong message of deterrence.

Why Bedbugs' First Blood Meal Matters to Higher Ed

Should the Chamber of Commerce accredit colleges? A serious battle is shaping up over how college degree programs are evaluated and accredited. The business community believes that higher education does a poor job of preparing students for the work world. More specifically, as reported by the Brookings Institution, “just 11 percent of business leaders believe college graduates are properly equipped for entering the workforce – while 96 percent of college chief academic officers feel they turn out work-ready graduates.” The Chamber of Commerce’s study concludes that accreditation is “operated by higher education for higher education,” but does not reflect the needs of employers and future employees.

College leaders and faculty would question the premise that curriculum should be tied to an external labor market. At the core of a college, there are many disciplines where questions are raised simply to investigate and understand the world better. If the agenda for science was closely tied to the current needs of a business, society’s generation of innovative ideas would be narrowed by the corporate community.

Still, colleges cannot ignore the message that the Chamber of Commerce is sending. A concluding thought—this on bed bugs, of all things! Cornell University faculty recently completed a map of the bedbug’s genome. The pest was virtually eradicated 60 years ago with DDT, an extremely toxic chemical—but surviving bugs adapted and are now resistant to insecticides. The researchers found that the number of genes was consistent throughout the bedbug life cycle, but they observed notable changes in gene expression, especially after first blood meal. The bug basically grows a thicker skin after its first blood meal. This study might or might not have commercial implications—but more fundamentally, it shows how life adapts in a nimble way to existential threats. Will the Chamber of Commerce understand the value of research and study that has no bottom-line impact?

What My Students Think About Immigration and Employment

I teach an experimental course, “Immigration, Employment and Public Policy.” Here is a brief sample of thoughts from students: Amnesty: One student opposes amnesty to 10 million-plus unlawful aliens because that same deal was made in 1986 with the premise that amnesty would be a one-time policy. We would encourage more unlawful immigration, and undermine the front-door (legal) approach. But other students argued that deporting millions of aliens would be very costly, and undermine key sectors of our economy that depend on this labor source, e.g., agriculture, restaurants, construction and home healthcare. Enforcement: No one favors building a massive fence, but some students believe technology is already available to freeze undocumented people out of the economy. Yet one student noted: If we fully deploy this technology, we might have few or no unlawful immigrants, but our personal liberties would be severely compromised as we rely on a national registration and identity system. Families: Several students related stories about a family member who lawfully immigrated to the U.S. The American system encourages family unification; and once these “pioneers” settled in the U.S., they brought other family members. Their offspring are in our class as promising and productive members of our nation. But students asked: If our nation’s immigration system favors family unification, what’s the sense in deporting unlawful aliens whose young children were also brought unlawfully and whose siblings were born in America?

University of California Secretly Monitors Faculty E-Mail

Inside HigherEd reports that the University of California installed a new software that monitors faculty e-mails and websites they visit but told only a handful of faculty about it— those people being on the Academic Senate-Administration Joint Committee on Campus Information Technology. One of the committee members went public with the information. A storm of protest has ensued.

The university system says it does not read people’s emails, and the system was installed after a serious cyberattack exposed the medical records of 4.5 million patients who use the UCLA medical system. On the other side, opponents say that if the university had good intentions, it should have notified users of the policy. And if the university’s intent was to discourage cyberattacks, it should have disclosed the monitoring system to deter hacking.

“Secret” doesn’t mix well with “e-mail” and “public university.” If there is a compelling need for this type of massive data capturing, make the case for it in public. An unfortunate consequence of this policy might be to discourage the use of university e-mail, driving job-related communication into private email accounts. 

Respect Women at Work: Why Employment Is Better Than Contracting

My research on independent contracting was picked up by the New York Times: Click on this. In short: when employers use independent contractor agreements, women cannot sue for sexual harassment. Sex discrimination laws are largely premised on an employment relationship. In situations where women are hired for their beauty or sex appeal, this is a problem. Picture from Daily Beast, click here. 

Not Uplyfting: Drivers Settle with Uber’s Competitor

Drivers for Lyft, a main rival to Uber, have tentatively settled their lawsuit for $12.5 million. My critical reactions are in this interview: Click on this.

Don’t Worry, Be Happy: Rauner’s Wife Has New $100,000 Chief of Staff

Cue this and come back for the rest… (Background music here!)

Okay, now we can talk. The Chicagoist reports extensively on the odd juxtaposition of Gov. Rauner blaming Democrats for failing to fund social services while, on the same day, his wife, Diana Rauner, announced the hiring of a $100,000 Chief-of-Staff. Now that’s shaking things up! News is here.

“How Courts View Academic Freedom”: My Research in Journal of College and University Law

Here is my study based on 339 court rulings involving First Amendment claims made by college or university faculty members who allege that their school violated their academic freedom. Courts ruled for schools (and against faculty members) in 73% of cases.

Don’t Want Collective Bargaining? Why Unions Won’t Go Away

Suppose Bruce Rauner, Scott Walker, Rebecca Freidrichs (teacher whose case on mandatory union dues is before Supreme Court)—and many others— get their wish of severely weakening or abolishing collective bargaining. Will unions wither and die? No. Unions flourished before collective bargaining, mostly as organizations that relied on militancy—sit-down strikes, mass protests, coordinated strikes by area unions at multiple employers, etc. The point of collective bargaining was to take labor struggles off the street, and out of the parking lot, and into a conference room where bargaining would replace intimidation.

Would the end of collective bargaining be the end of unions? Yes, if you lived in Iran or North Korea, where labor unions are brutally repressed for their mere existence. Even China today allows unions and strikes are very common there—and no, this is not why China’s economy is falling (look at a centrally planned economy that over stimulates industrial sectors, builds cities no one wants, doesn't let its currency float in a free market, etc.).

Labor unions fully anticipate the loss of dues, and have proposed the concept of minority representation. Click on this. This means that unions could represent only the people who voted for it, paid dues, and supported its politics (just like Rebecca Freidrichs is arguing to the Court). The problem there: It's not practical to have a union for, say 40%, of the workforce ... those folks would probably bargain better wages and benefits than the unrepresented group; and the unrepresented group would be affected by strikes over which they have no say. Also, click here. 

The bottom line is that unions will survive if the Freidrichs case eviscerates mandatory dues. Unions will tend to withdraw from formal collective bargaining, and fall back to constitutional rights of assembly and a profusion of employee laws that limit unjust dismissal. They will use social media into shaming employers to do more for workers. Unions won’t go away, they will adapt.

Any Knucklehead Can Be President

ProfLERoy takes a breather to pass along a fun and somewhat provocative picture.

Quiz: Only President to Reduce Illegal (Unauthorized) Immigration Since 1990?

Today, the Supreme Court announced that it will review President Obama’s controversial “Deferred Action” program. More on that in a moment. Look at this chart, from the Pew Research Center:

Illegal immigration rose steadily from 3.5 million in 1990—when George Bush was president—through 2007, when George W. Bush’s second term ended. Presidents have little effect on immigration. The driver: the economy. When the economy tanked as Bush II left office and Obama entered, this had a major effect on curbing immigration. Since Obama has taken office, nearly 1 million illegal immigrants have left the U.S. No other president can make this claim.

But that gives Obama too much credit (or blame)—again, it’s the economy; it’s hostility in states such as Arizona and Texas; and it’s an improving economy in Mexico.

Obama has considerable executive authority over immigration policy because the USCIS, and Departments of Justice, Homeland Security, and State are under his power. Obama makes the argument, in his executive action, that Congress has not passed a sufficient budget to deport everyone. His focus is on deporting criminals—and his administration has deported more per month than Bush II. Texas and 25 other states disagree. They say he has exceeded his constitutional authority, and also usurped their powers. 

Tax Cheats Hurt Responsible Employers

The Treasury Department says that when employers misclassify workers as independent contractors (instead of paying wages to them as employees), they save about $3,710 per worker per year in employment taxes on an annual average of $43,007 in earnings. U.S. Dep’t of Treasury, Employers Do Not Always Follow Internal Revenue Service Worker Determination Rulings (June 13, 2014), at 2, available here.  The upshot: Not only are workers shortchanged, but tax burdens weigh more heavily on responsible employers. 

Do You Have Fitbit? Surprise!

If you visit a Fitbit website—say, to synch your Fitbit to your phone— you are now required to agree to arbitration. In other words, if you had a future reason to sue Fitbit (failure to abide by warranty; defective product; etc.), you are required to waive your right to seek redress in a court, and appear before an arbitrator, likely chosen by the company. Details are here.  Meanwhile, at Guitar Center, Sean Lynch—a seven year employee— was required to go online and sign an arbitration agreement. If not, he’d be fired. For more, click on this.

In California, this type of forced agreement is called for what it is— an adhesion contract, which is lawyer-speak for a contract that has the appearance of an agreement but is actually the product of compulsion by a party with superior power over a party who signs under duress. In most states—and also, in most federal-law situations— these agreements are upheld by courts. (Thanks to my South Bend Bureau for a key tip here!)

What Drives Immigrant Genius? Marginality

New research challenges the long-held notion that immigrant geniuses— Einstein, Freud, Marie Curie, Victor Hugo, W.H. Auden, Vladimir Nabokov, Nikolas Tesla— succeeded due to outsized ambition. The key is “cognitive flexibility”— the ability to see things as others do not. A provocative Wall Street Journal article reports research showing that “it isn’t the immigrant’s ambition that explains her creativity but her marginality. Many immigrants possess what the psychologist Nigel Barber calls ‘oblique perspective.’ Uprooted from the familiar, they see the world at an angle, and this fresh perspective enables them to surpass the merely talented. To paraphrase the philosopher Schopenhauer: Talent hits a target no one else can hit. Genius hits a target no one else can see.” Read more here.