GOP Court Rules that Academic Freedom Protects a Professor’s Vicious Attacks

Republican justices on the Wisconsin supreme court ruled yesterday that Marquette violated its contract with Prof. John McAdams, a far-right wing faculty member who turned his mob of followers on a Ph.D. student, Cheryl Abbate.

Ms. Abbate had shut-down a class discussion where a student expressed homophobic opinions in class. McAdams took up the cause of the “free speech” student, who recorded the class discussion—clearly, an effort by the student to ignite controversy.

McAdams launched an unrelenting crusade against Abbate. On his blog, McAdams “doxed” her, providing personal identifying information to make it easy for others to harass her.

Vicious right-wingers threatened her with rape, called her a “c*nt,” and harassed her to the point where she felt unsafe. Abbate dyed her hair and retreated from campus life. Her classes were moved to an undisclosed location to keep her safe. Security guards were posted outside her classroom. She left the university and resumed her educational career in Colorado.

While researching academic freedom court cases, I spoke to Abbate. She confirmed the published reports of this torrent of online abuse.

The case represents the emerging Republican notion of free speech. This view is led by President Trump, who under the guise of attacking political correctness, regularly tweets deeply personal attacks-- some of them connoting violence, others racism.

A dissenting opinion criticized the majority for sanitizing the dark facts of the case: “McAdams threatened a Marquette student, the vice president for student affairs, a university provost, and a Dean that he would "raise hell" on his blog if they acted in a manner inconsistent with McAdams' wishes. McAdams pointedly told a Dean to "be careful" because "you don't want to be on my blog." Why would McAdams make such threats if he did not know what would happen to those whose names were published?”

McAdams' case was based on a contract that guaranteed him free speech, not the First Amendment. 

Marquette said that “free speech cannot be used to launch personal attacks on its students.” The university added that the case “has never been about academic freedom or a professor’s political views. Had the professor published the same blog without the student-teacher’s name or contact information, he would not have been disciplined. Marquette has been, and always will be, committed to academic freedom.” The university said it will take steps to ensure that such a situation never happens again.

The full opinion can be read here, https://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=215236. 

PHOTO CREDIT: Book Cover for J.G. Daniel, Hate or Be Hated

For National Unity, Lincoln Proclaimed a Day of Fasting. He Chose Yom Kippur.

We do not have a civil war today, but we have a divided nation.

In my research on presidential orders and proclamations, I came across this remarkable message from President Abraham Lincoln. He did not expressly order the national fast day to coincide with the Jewish Day of Atonement (Yom Kippur). But I checked the calendar for 1861. Sure enough, that day was Yom Kippur in 1861.

Proclamation 85—Proclaiming a Day of National Humiliation, Prayer, and Fasting

August 12, 1861

By the President of the United States of America

A Proclamation

Whereas a joint committee of both Houses of Congress has waited on the President of the United States and requested him to “recommend a day of public humiliation, prayer, and fasting to be observed by the people of the United States with religious solemnities and the offering of fervent supplications to Almighty God for the safety and welfare of these States, His blessings on their arms, and a speedy restoration of peace;” and

Whereas it is fit and becoming in all people at all times to acknowledge and revere the supreme government of God, to bow in humble submission to His chastisements, to confess and deplore their sins and transgressions in the full conviction that the fear of the Lord is the beginning of wisdom, and to pray with all fervency and contrition for the pardon of their past offenses and for a blessing upon their present and prospective action; and

Whereas when our own beloved country, once, by the blessing of God, united, prosperous, and happy, is now afflicted with faction and civil war, it is peculiarly fit for us to recognize the hand of God in this terrible visitation, and in sorrowful remembrance of our own faults and crimes as a nation and as individuals to humble ourselves before Him and to pray for His mercy— to pray that we may be spared further punishment, though most justly deserved; that our arms may be blessed and made effectual for the reestablishment of law, order, and peace throughout the wide extent of our country; and that the inestimable boon of civil and religious liberty, earned under His guidance and blessing by the labors and sufferings of our fathers, may be restored in all its original excellence:

Therefore I, Abraham Lincoln, President of the United States, do appoint the last Thursday in September next as a day of humiliation, prayer, and fasting for all the people of the nation. And I do earnestly recommend to all the people, and especially to all ministers and teachers of religion of all denominations and to all heads of families, to observe and keep that day according to their several creeds and modes of worship in all humility and with all religious solemnity, to the end that the united prayer of the nation may ascend to the Throne of Grace and bring down plentiful blessings upon our country.

In testimony whereof I have hereunto set my hand and caused the seal of the United States to be affixed, this 12th day of August, A.D. 1861, and of the Independence of the United States of America the eighty-sixth.

ABRAHAM LINCOLN.

Photo Credit: Zazzie.

Can a President Use an Executive Order to Cap Your Pay Raise? Yes

Forty years ago this week, President Richard Nixon showed us just how dangerous unchecked executive power can be to the free-enterprise system.

On Aug. 15, 1971, in a nationally televised address, Nixon announced, “I am today ordering a freeze on all prices and wages throughout the United States.”

After a 90-day freeze, increases would have to be approved by a “Pay Board” and a “Price Commission,” with an eye toward eventually lifting controls — conveniently, after the 1972 election.

I did not write that passage (I added the red font and underline). Gene Healy, a prominent leader of the libertarian think tank Cato Institute wrote this in 2011 (for more, read this https://www.cato.org/publications/commentary/remembering-nixons-wage-price-controls).

Richard Nixon used an executive order to “freeze” wages and prices. That means anyone who raised wages or prices over the limits set by President Nixon were subject to civil enforcement.

This history is relevant today. President Trump is making record use of executive orders, topping President Obama. Tariffs—the product of Mr. Trump’s executive orders— are going into effect today against China. More are coming, according to the president. They will likely add costs to producers, and possibly cause inflation above and beyond a strong economy.

President Carter also used an executive order to control wages and prices. The nation’s labor unions sued to challenge the order—and they lost (AFL-CIO v. Kahn, 618 F.2d 784 (D.C. Cir. 1979)). President Franklin Roosevelt and Truman used these orders, too, albeit in times of war.

So, the bottom line is that President Trump has this power.

Economists say the power is counter-productive, though others note it helps presidents in the polls for the short term.

If you think this is inconsequential, consider: Our legacy health insurance and pension systems are the byproducts of wage and price controls. Pension and insurance benefits were “fringes” to wages, i.e., exempt from these orders because they weren't wages. 
Thus, unions bargained for these non-wage forms of compensation. Over the years, they benefited two generations of Americans but their costs mushroomed out of control.

This supports the point made by most economists: You can’t really control wages and prices with an executive order. All you’re doing is distorting markets—a whack-a-mole situation where side-bargains, underground economies, and under-the-table arrangements occur.  

For Purposes of Immigration, What is a White Person?

President Trump has strongly hinted—without expressly saying so— that immigration should be limited to white persons.  Recall his statement about “shithole” countries and preference for Nordic immigrants.

The Supreme Court faced this question— what is a white person?— at least three times in the early 1900s.

In U.S. v. Bhagat Singh Thind, 261 U.S. 204 (1923), the Court ruled that an already naturalized Hindu citizen could have his citizenship revoked by an executive order.

How so? In 1917, Congress passed a law, called the Naturalization Act, that limited citizenship to “free white persons and to aliens of african nativity and to persons of African descent.” The latter group was included due to post-Civil War constitutional amendments and statutes that conferred citizenship to  blacks.

At that time, ethonologists had a broad definition of Caucasian. It was not a “PC” idea. As the Court recognized, scientists based this on evidence of inter-marriage between whites and Asians.

The Court disregarded this evidence. Instead, it offered this analysis of race:

It may be true that the blond Scandinavian and the brown Hindu have a common ancestor in the dim reaches of antiquity, but the average man knows perfectly well that there are unmistakable and profound differences between them to-day; and it is not impossible, if that common ancestor could be materialized in the flesh, we should discover that he was himself sufficiently differentiated from both of his descendants to preclude his racial classification with either.

The Court had to make one more contortion because the plaintiff was a high-caste Hindu, meaning he was a free man in his birthplace of Punjab. How did this fact square with the idea that Constitutional framers extended naturalized citizenship to “any alien being a free white person”?

The Court said:

We are unable to agree with the District Court, or with other lower federal courts, in the conclusion that a native Hindu is eligible for naturalization under section 2169. The words of familiar speech, which were used by the original framers of the law, were intended to include only the type of man whom they knew as white. The immigration of that day was almost exclusively from the British Isles and Northwestern Europe, whence they and their forebears had come. When they extended the privilege of American citizenship to ‘any alien being a free white person’ it was these immigrants—bone of their bone and flesh of their flesh—and their kind whom they must have had affirmatively in mind. The succeeding years brought immigrants from Eastern, Southern and Middle Europe, among them the Slavs and the dark-eyed, swarthy people of Alpine and Mediterranean stock, and these were received as unquestionably akin to those already here and readily amalgamated with them. It was the descendants of these, and other immigrants of like origin, who constituted the white population of the country when section 2169, re-enacting the naturalization test of 1790, was adopted, and, there is no reason to doubt, with like intent and meaning.

The Court finished up by saying:

It is a matter of familiar observation and knowledge that the physical group characteristics of the Hindus render them readily distinguishable from the various groups of persons in this country commonly recognized as white. The children of English, French, German, Italian, Scandinavian, and other European parentage, quickly merge into the mass of our population and lose the distinctive hallmarks of their European origin. 

On the other hand, it cannot be doubted that the children born in this country of Hindu parents would retain indefinitely the clear evidence of their ancestry. It is very far from our thought to suggest the slightest question of racial superiority or inferiority. What we suggest is merely racial difference, and it is of such character and extent that the great body of our people instinctively recognize it and reject the thought of assimilation (emphasis added).

Washington, Eisenhower, Grant, Bush II: The American Tradition of Religious Tolerance

For Independence Day, we might consider a brief passage from Chief Justice Roberts’ Trump v. Hawaii majority opinion. Yes, the opinion glosses over the anti-Muslim intent behind President Trump’s revised “travel ban.” But Roberts spends a moment recalling far better examples of religious tolerance shown by our presidents than exhibited by Mr. Trump. The following brief passage is a direct quote:

The President of the United States possesses an extraordinary power to speak to his fellow citizens and on their behalf. Our Presidents have frequently used that power to espouse the principles of religious freedom and tolerance on which this Nation was founded.  In 1790 George Washington reassured the Hebrew Congregation of Newport, Rhode Island that “happily the Government of the United States . . . gives to bigotry no sanction, to persecution no assistance [and] requires only that they who live under its protection should demean themselves as good citizens.” 6 Papers of George Washington 285 (D. Twohig ed. 1996). 

President Eisenhower, at the opening of the Islamic Center of Washington, similarly pledged to a Muslim audience that “America would fight with her whole strength for your right to have here your own church,” declaring that “[t]his concept is indeed a part of America.”  Public Papers of the Presidents, Dwight D. Eisenhower, June 28, 1957, p. 509 (1957). 

And just days after the attacks of September 11, 2001, President George W. Bush returned to the same Islamic Center to implore his fellow Americans—Muslims and non-Muslims alike— to remember during their time of grief that “[t]he face of terror is not the true faith of Islam,” and that America is “a great country because we share the same values of respect and dignity and human worth.”  Public Papers of the Presidents, George W. Bush, Vol. 2, Sept. 17, 2001, p. 1121 (2001). Yet it cannot be denied that the Federal Government and the Presidents who have carried its laws into effect have—from the Nation’s earliest days— performed unevenly in living up to those inspiring words.

I add to this list President Ulysses Grant. He issued an order as a Union general to oust every Jewish soldier from his command. He came to regret it, and showed his remorse by showing up to dedicate a synagogue while he was president.

Happy Independence Day. May we remember our nation’s origins as diverse groups of people who fled religious persecution to be immigrants in a new land.  

Photo Credit: PragerU

Trump Front Runner Amy Coney Barrett Says “A Thing Worth Doing is Worth Doing Badly”

Amy Coney Barrett is a dream nominee for Donald Trump. He likes attractive people. Check that box. 

She has seven children and is having a phenomenal career. Great armor against Democrats; great appeal to Republicans.

Really, on the surface the only thing not to like is that her name sounds too much like Comey.

I worry about her intellect and values. She is plenty smart; but also plenty narrow and rigid.

I had a brief interaction with her when she was an Executive Editor with the Notre Dame Law Review, where I published a research article.

I mention this because part of her academic career has been built by publishing her research in the same journal where she served as an editor (though she has impressive publications elsewhere, too).

I’ve read two of her recent articles. They are extremely well-written. She is a deep thinker. But again, she plows her furrow in very narrow and also troubling lines.

To summarize my concerns, let me quote her most recent article, “Originalism and Stare Decisis,” published in her “home” law review, which reads like an obsequious tribute to Justice Antonin Scalia. She concludes with these thoughts (quotes in red text):

CONCLUSION

Justice Scalia admitted that “in a crunch I may prove a faint-hearted originalist.” Stare decisis, however, rarely put him in a crunch, mostly because of the underappreciated features of our system that keep the law stable without need for resort to the doctrine of stare decisis. To the extent he was occasionally faint hearted, however, who could blame him for being human? As the Justice himself put it:

As for the fact that originalism is strong medicine, and that one cannot realistically expect judges (probably myself included) to apply it without a trace of constitutional perfectionism: I suppose I must respond that this is a world in which nothing is flawless, and fall back upon G.K. Chesterton’s observation that a thing worth doing is worth doing badly.

Nothing is flawless, but I, for one, find it impossible to say that Justice Scalia did his job badly.

What is she saying here? The Constitution is fixed in meaning by what white male framers envisioned at the 1787 Constitutional Convention. A justice should start here, and also try to end here with his or her analysis. If the present doesn’t really match the realities of 1787— for example, a woman’s right to control her reproductive decisions— it’s okay because taking down Roe—a bad thing to do from the standpoint of stare decisis (precedent) is “a thing worth doing is worth doing badly.”

C.K. Chesterton-- the background authority Barrett admires by implication-- was a brilliant writer and philosopher who routinely referred to himself as an “orthodox” Christian.

If you want to read her most recent publication click here https://scholarship.law.nd.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=4734&context=ndlr.

Rating Trump’s Nominees in Employment and Labor Law Cases

In late May 2016, Law360 asked me to review candidate-Trump’s shortlist of potential Supreme Court nominees. Law360 is a daily newspaper for lawyers and has sections similar to a regular newspaper. I wrote the following for the Employment and Labor Law section (under this title).

I reviewed five judges from the list. They might not even be on Mr. Trump’s list. Nonetheless, after researching these judges, I was impressed by their qualifications— even though I would not agree often with their rulings.

For readers who don’t want more detail, here is my conclusion.

Assessment: It is easy to see why conservatives would support these judges. Even in this brief survey, they evince skepticism of administrative rulings; favor the free operation of labor markets in contrast to judicial or administrative regulation; and one case demonstrates a high regard for personal liberties—even when it means siding with a probationary teacher over his school district employer. In sum, at this early juncture, these erudite judges appear to have little or nothing in common with their political patron, a bombastic loudmouth who defies ideological classification.

 ********

As Donald Trump mutes his intolerance and vulgarity, he recently announced his possible Supreme Court nominees. Already, these judges get high marks from judicial analysts as mainstream judges with rock-solid conservative credentials. Less reported but important to know, the Heritage Foundation’s John Malcolm published a list of eleven potential nominees on March 30^th in the Daily Signal— a list that Trump has mostly cut and pasted in his highly ad hoc approach to institutional questions. Trump seems to be using a branding strategy by tailoring his list to a scholarly conservative group. If it is brilliant politically it also betrays his lack of commitment to, and understanding of, the judiciary.

The question I pose is: How do Trump’s nominees rate in employment and labor law cases? But first, some caveats. I will not vote for Trump. Second, my research sample is preliminary and focuses on five of the eleven nominees. With these disclaimers, I find that these judges are thoughtful, pragmatic, and somewhat libertarian in the following employment and labor cases. In these opinions, they appear more temperate than Justice Scalia.

Judge Brett Kavanaugh (D.C. Court of Appeals): This important court was at its best in SeaWorld of Florida, LLC v. Perez, 748 F.3d 1202 (D.C. Cir. 2014). Judge Merrick Garland wrote the majority opinion in a fascinating case upholding OSHA’s fine against SeaWorld for failing to comply with the general duty clause under the Occupational Safety and Health Act. OSHA acted after a whale trainer, Dawn Brancheau, was killed in a pool by Tilikum during a performance before a live audience. Based on SeaWorld’s history of killer whale injuries to its employees, Judge Garland found that the agency had reasonable grounds to impose its fine.

Judge Kavanaugh’s dissenting opinion is thoughtful, provocative—and reflects a libertarian soul.

At the same time, it conflicts with Chevron deference to agency expertise. Judge Kavanaugh wrote: “Many sports events and entertainment shows can be extremely dangerous for the participants. Football. Ice hockey. Downhill skiing. Air shows. The circus. Horse racing. Tiger taming. Standing in the batter’s box against a 95 mile per hour fastball. Bull riding at the rodeo. Skydiving into the stadium before a football game. Daredevil motorcycle jumps. Stock car racing. Cheerleading vaults. Boxing. The balance beam. The ironman triathlon. Animal trainer shows. Movie stunts. The list goes on.”

He observed that “the participants in those activities want to take part, sometimes even to make a career of it, despite and occasionally because of the known risk of serious injury. To be fearless, courageous, tough—to perform a sport or activity at the highest levels of human capacity, even in the face of known physical risk—is among the greatest forms of personal achievement for many who take part in these activities.”

Judge Kavanaugh’s legal analysis said: “Whether SeaWorld’s show is unreasonably dangerous to participants and should be banned or changed is not the question before us. The question before us is whether the Department of Labor has authority under current law to make that decision—in addition to the authority already possessed by Congress, state legislatures, state regulators, and courts applying state tort law.” He believed the agency exceeded its authority.

Judge Steven Colloton (8^th Circuit Court of Appeals): Judge Colloton wrote an impressive and highly consequential decision in Brady v. National Football League, 644 F.3d 661 (8th Cir. 2011). Recall that NFL players, after a failed strike in 1987, decertified their union and successfully sued the NFL for damages and equitable remedies in the Minnesota district court. Judge Doty’s 18-year hegemony over this collective bargaining relationship was out of touch with Judge Ralph Winter’s superior understanding of the antitrust labor exemption in National Basketball Ass’n v. Williams, 45 F.3d 684 (2d Cir. 1995). As I noted in a Tulane Law Review article in 2012 (see http://www.tulanelawreview.org/narcotic-effect-of-antitrust-law-in-professional-sports-how-the-sherman-act-subverts-collective-bargaining/), Judge Doty’s flawed approach “addicted” players to antitrust litigation by relieving them of the pain of negotiating concessions during regular labor-management negotiations. Serious students of labor law know that federal courts must stay out of the collective bargaining relationship and leave the parties to their own devices.

In Brady, the district court in Minnesota enjoined the NFL’s lockout of players after the CBA expired. This was a legal victory for the lead plaintiff, Tom Brady. The core issue was whether the Norris-LaGuardia Act divested the district court from enjoining the NFL’s lockout. That law—the product of immense frustration by labor unions with the propensity of federal judges to enjoin their lawful strikes, boycotts, and pickets— all but removed federal jurisdiction in labor disputes.

Brady’s position was that Norris-LaGuardia applied only to court interference with a union’s use of economic weapons. Wanting to have his cake and eat it, too, Brady said that district court had jurisdiction to enjoin the NFL’s reciprocal version of a strike— a lockout.  

Judge Colloton dismissed this reasoning in these terms: “A one-way interpretation of § 4(a)—prohibiting injunctions against strikes but not against lockouts—would be in tension with the purposes of the Norris-LaGuardia Act to allow free play of economic forces and to withdraw federal courts from a type of controversy for which many believed they were ill-suited and from participation in which, it was feared, judicial prestige might suffer. We are not convinced that the policy of the Act counsels against our textual analysis of [NLGA] § 4(a).”

Judge William Riley (8^th Circuit Court of Appeals): In Gibson v. Caruthersville School Dist. No. 8, 336 F.3d 768 (8th Cir. 2003), this conservative judge wrote impassioned dissent in support of a probationary teacher who was denied reappointment after a student alleged that this instructor grabbed him by the throat. The teacher exercised his right to a name clearing hearing in a public proceeding. However, after adjournment in the hearing, the school district refused to allow him to continue with his public defense. The lower court denied the teacher’s petition for a hearing on his non-renewal; and the appeals court affirmed.

Judge Riley put a heavy emphasis on procedural due process for public employees in this closely reasoned dissent: “The majority rejects what can be reasonably inferred from the facts: the District had no intention of giving Gibson the opportunity to tell his side of the story, and used available procedural means to effectuate its goal. Following the opening hearing round, the District tried to obtain a settlement and a release from Gibson. When that attempt failed, the District closed a critical portion of the public hearing. When Gibson resisted and filed a petition for writ of prohibition to keep the hearing open, the school board voted against renewing Gibson’s teaching contract. . . . Once the school year ended, the District advised Gibson’s attorney that the termination issue was moot and completion of the hearing was unnecessary.”

Framing this in constitutional terms, Judge Riley reasoned: “The Supreme Court has declared the right to procedural due process is ‘absolute’ in the sense that it does not depend upon the merits of a claimant’s substantive assertions, and because of the importance to organized society that procedural due process be observed [and] ... the denial of procedural due process [is] actionable for nominal damages without proof of actual injury.”

Judge Thomas Hardiman (3d Circuit Court of Appeals): In an important decision, EEOC v. Allstate Insurance Co., 778 F.3d 444 (3d Cir. 2015), Judge Hardiman wrote a unanimous opinion that ruled against Allstate’s former employees. As the company reorganized its business to de-emphasize employment of agents, it gave these employees four options: conversion to independent contractor, a buyout with an interest in their sales account, and two severance pay plans. To execute an agreement, employees were required to sign a release of all claims against Allstate. The EEOC sued for 6,200 agents, alleging that the waiver requirement was unlawful retaliation in violation of Title VII, ADA, and ADEA.

Affirming the lower court, Judge Hardiman ruled that Allstate’s offer to permit terminated employees to convert to independent contractor status was sufficient consideration for the employees’ release of claims against employer; and the employees’ refusal to sign a release was not a protected activity. At the core of this mainstream ruling, Judge Hardiman’s opinion stated that “the EEOC here fails to articulate any good reason why an employer cannot require a release of discrimination claims by a terminated employee in exchange for a new business relationship with the employer.” He added: “We acknowledge the Commission’s concerns about the prospects of employers trading releases for new business opportunities and terminated employees facing ‘financial pressure’ when offered such a deal. But the EEOC fails to explain why this financial pressure is more offensive to the antiretaliation statutes than the pressure one is bound to feel when required to sign a release in exchange for severance pay.”

Associate Justice Allison Eid (Colorado Supreme Court): Justice Eid’s dissenting opinion in City of Brighton v. Rodriguez, 318 P.3d 496 (Colo. 2014), mirrors a growing trend of employer-friendly worker compensation rulings that narrow the “scope of employment” and “arising out of” predicates for a worker’s recovery.

After Helen Rodriguez, a city administrator, talked with co-workers at the top of a stairway at her office, she walked downstairs and fell suddenly. The steps were dry and clear. She did not trip, slip, or lose her balance; nor was she dizzy. At the emergency room, doctors found that she had four unruptured aneurysms on the right side of her brain. Eventually, she had surgery for these aneurysms. At a worker’s comp hearing, a medical specialist for the city testified that the “most likely” cause of Rodriguez’s fall was a fainting or dizziness episode caused by her aneurysms, although he could not state this conclusion with a reasonable degree of medical probability.

One legal issue was whether the claimant’s personal conditions were so far removed from conditions of work that her resulting injuries were outside the scope of employment. Another issue was whether the injury was caused by a “neutral risk”— a factor not associated with employment or the person. In Colorado, examples of compensable neutral risk-injuries include homicide by car thieves while the employee returns from a work errand and death of a farm-hand by a lightning strike while tending to his employer's horses.

The majority classified Rodriguez’s injury in the neutral risk category— a compensable category— stating that an “unexplained fall is necessarily caused by a neutral risk. Because Rodriguez’s fall would not have occurred but for the fact that the conditions and obligations of her employment—namely, walking to her office during her work day—placed her on the stairs where she fell, her injury ‘arose out of’ employment and is compensable.”

Justice Eid dissented. She faulted the majority for “placing her unexplained fall on equal footing with ‘neutral risks’ like car thieves, lightning bolts, or stray bullets. These risks are not merely neutral, however; they are also known.” She continued: “The majority’s error, however, is to expand the concept of ‘neutral risks’ to include injuries that occur at work where the cause is not known. Such an unexplained injury is not categorically ‘neutral,’ as the majority would have it. Rather, an unexplained injury defies categorization…. Unlike an injury resulting from a known, neutral threat, an unexplained fall by definition does not establish causation, and therefore cannot satisfy the claimant’s obligation to demonstrate that an injury arose out of employment.”

Assessment: It is easy to see why conservatives would support these judges. Even in this brief survey, they evince skepticism of administrative rulings; favor the free operation of labor markets in contrast to judicial or administrative regulation; and one case demonstrates a high regard for personal liberties—even when it means siding with a probationary teacher over his school district employer. In sum, at this early juncture, these erudite judges appear to have little or nothing in common with their political patron, a bombastic loudmouth who defies ideological classification.

Death of a Precedent

I pose this question to you: Will the Supreme Court overrule Roe v. Wade?

Put aside CNN, Fox, the New York Times and other news sources. Think about the question in light of this research— my article, “Death of a Precedent: Should Justices Rethink Their Consensus Norms?”

Post your thoughts on FB or email me at mhl@illinois.edu. I’m eager to hear your hunch and your reasoning. 

But first, some info. Roe was decided by a 7-2 vote in 1972 (46 years ago). There were no concurring opinions—a simple 7-2 vote. You might want to think about this information as you read the results of my study.

Here is a summary of my research article:

I explore the birth and death of Supreme Court precedents. Since its inception, the Court has explicitly overruled 205 of these cases. Some were created in a unanimous vote. Others emerged amid strife, a byproduct of polarized voting. My research asks: Did the margin of votes in these precedents affect their longevity? What effect did the number of concurring and dissenting votes have on a precedent’s life? Did the number of concurring and dissenting opinions shorten a precedent’s duration?

This study finds that overruled precedents which were decided with conflict tended to die early, while those decided by consensus usually lived longer. More specifically:

●         Overruled precedents lasted an average of 20 years.

●         Shorter-lived precedents (20 years or less) had more dissenting votes than longer-lasting opinions. For the former, only 23.6% had no dissenting votes; by comparison, 48.5% of longer-lasting opinions had no dissenting votes.

●         Among all overruled precedents, 19% were decided by a margin of one vote (e.g., 5-4 vote).

●         A precedent’s longevity was strongly correlated with the margin of votes and number of concurring opinions. Close cases with multiple opinions were more likely than others to be overruled.

I found that 26.3% of the overruled cases had one or more concurring opinions, while 59.5% of these cases had one or more dissenting opinions.

A plausible interpretation is that dissent alone does not shorten the life of a precedent; but when the majority is unable to unite in its reasoning for a ruling this double-layered fragmentation hastens the overruling of a precedent. In other words, the most fragile overruled precedents are those where the majority’s disarray compounds the effect of dissenting votes.

Given the centrality of stare decisis (precedent as establishing the rule of law), dissensus must be kept in check. If the Court is to maintain its vitality and pre-eminence, its overruled precedents should live longer. To the extent that Justices write a concurring opinion or vote to dissent in order to plump their reputations; or indulge a personal fancy, or reserve an issue for a future case, or cement their place in history as a swing voter or great dissenter, these judicial vanities infect precedents with dysfunction. The better approach is to reinvigorate the Court’s consensual norms—for example, by narrowing holdings to attract larger voting margins, and encouraging more communal decision-making.

For Liberals: Is There Anything Encouraging About the Supreme Court?

Yes. But to be clear, much of this past term was very discouraging. Since this is widely reported—and grieved by liberals— let me point out two modest signs of encouragement.

I clearly recall when Anthony Kennedy was appointed by President Reagan. I was a recent law graduate. The appointment depressed me, much as his retirement does. Very strange, my change in attitude. 

For 17 years, he was a solid conservative vote. Suddenly, he started to be the fifth vote in major cases on gay rights and abortions.

He changed—somewhat—and it is the way he changed that liberals recall as he retires.

Chief Justice John Roberts is on a similar trajectory. Over the past 12 years, Roberts has moved steadily from the right to the center in his voting. Over the last two years, he has voted as often as Justice Kennedy as the “median justice”— a statistical measure of a justice’s vote compared to each other on a liberal-to-conservative scale.

If you are a liberal and think this is small comfort, you’re probably right. But keep in mind that Roberts was the key fifth vote to uphold the constitutionality of Obamacare (Affordable Care Act).

My hunch is that Roberts has accepted the fact that he can be a pivotal justice by siding with the remaining four liberals, just like Kennedy. What will be his issues? Will he move more to the center? Time will tell.

One other item of note: The Court this term issued only 59 signed opinions, the lowest number since 1858. 

Personally, I hope they continue on this trend to decide fewer cases—and I am serious. 

It’s time for Congress to stand up to the executive branch, whether the president is Trump, Obama, or the next person who governs by executive order. The nation will be better off with fewer major controversies settled by the Supreme Court (e.g., the Bush-Gore election of 2000).

Judge Brett Kavanaugh and Me: One of Us Is on the Short List

In 2009, Judge Brett Kavanaugh and I published research articles in Minnesota Law Review, a respected outlet for legal scholarship.

His article is titled "Separation of Powers During the Forty-Fourth Presidency and Beyond," is here, http://www.minnesotalawreview.org/wp-content/uploads/2012/01/Kavanaugh_MLR.pdf).

In it, he makes the argument that a sitting president should never be required to sit for any type of investigative hearing, nor turn over documents. The constitutional framers, he argues, believed that impeachment was the only recourse against lawless behavior of a sitting president.

My article, “Do Courts Create Moral Hazard? When Judges Nullify Employer Liability in Arbitrations: An Empirical Analysis,” (here, http://www.minnesotalawreview.org/wp-content/uploads/2012/01/Leroy_mlr.pdf), argues that employers are incentivized to disregard sexual harassment because (a) they force so many women to take their claims to arbitration, instead of court, and (b) the financial consequences—which I measured—  made breaking the law more tolerable than eradicating harassment.

Kavanaugh’s research article (with its obvious appeal to President Trump) and well-earned conservative credentials make him an attractive finalist for Donald Trump’s nominee for the Supreme Court. He is a highly regarded judge.

The Nancy Pelosi Effect: Time for Union Leadership to Change?

(Nancy Pelsosi pictured with President John F. Kennedy republished by Business Insider)

Once a union elects someone as president, that person stays in power for 20 or more years. That was my finding in a research study in the 1980s—and its probably true today.

Let’s look at two prominent labor leaders, Randi Weingarten (president of teachers union) and Leo Girard (president of steelworkers union).

Weingarden was never a teacher. She was a labor lawyer who worked on contract negotiations and arbitrations and then transitioned to union politics.

She was first elected to a national leadership position in 1997. She remains in a position of power as president of a national teachers union.

In 2003, Weingarden reportedly sold the UFT’s headquarters at 260 Park Avenue South and two other buildings at 48 and 49 East 21st Street for $63.6 million and moved the union's offices to Lower Manhattan, purchasing a building at 50 Broadway for $53.75 million and leasing the building next to it, 52 Broadway, for 32 years. The UFT also financed a $40 million renovation of both buildings.

With yesterday’s Supreme Court ruling on unions dues, it seems like a good time to unwind the real estate holdings in lower Manhattan and move closer to teachers—closer in terms of how teachers work and live.

Leo W. Gerard was elected president of the United Steelworkers (USW) in 2001. He’s been president ever since.

The Democratic Party is stale. These union leaders are stale. Isn’t it time for a new generation of progressive leaders, people who are closer to their constituents in terms of life experiences?

Pack the Court: How Democrats Can Get Back the Stolen Supreme Court Seat

Senate Republicans stole a Supreme Court seat from President Barack Obama. Yes, it was lawful. But it will have long lasting consequences, including likely payback for Republicans.

For people who despair of Justice Kennedy’s retirement, the following history offers some solace.

In the late 1920s through mid-1930s, a conservative bloc of justices called the Four Horsemen struck down liberal Democratic laws. The Four Horsemen rode a car to work together to coordinate positions and arguments. They opposed New Deal policies for unemployment and economic recovery, and they invalidated state laws regulating labor and business relations.

The votes this term—for example, the anti-union 5-4 vote today in Janus v. AFSCME— resemble the votes of the Four Horsemen.

A fifth justice was a swing—but mostly conservative—vote. He was Owen Roberts. His role was similar to that of Justice Kennedy.

Public opinion reached a point of frustration with the Four Horsemen. They were blocking many progressive laws.

At that point, President Roosevelt proposed to “pack the Court” with his nominees.

To do that, he would need a statute from Congress to expand the Supreme Court from 9 to 15 justices. And here’s the interesting part: The number of justices on the Court is not set by the Constitution. It is set by a regular statute.

The Judiciary Act of 1789 set the number at six: a chief justice and five associate justices. In 1807, Congress increased the number of justices to seven; in 1837, the number increased to nine; and in 1863, it rose to 10. In 1866, Congress passed the Judicial Circuits Act, lowering the number of justices to seven. In 1869, Congress raised the number of justices to nine, where it has stood ever since.

Back to Justice Owens: He started to vote with liberals after FDR proposed the packing plan.

The implication? If Democrats run the table by electing a president and regaining control of the Senate, and House, they can amend the Judiciary Act and increase the Court to 10 or 11 (or another number). 
They could argue they are taking back the seat that Republicans stole, and adding another seat as a lesson—and punishment— for stealing Obama’s chance to name a justice.

It would add to the bitterness of our politics. But we’ve had it before.

How Jimmy Carter and Donald Trump Are Similar: Migrants on Military Bases

These two presidents couldn’t be more different, but they ordered migrants to be detained on military bases.

In the late 1970s, waves of “boat people” came ashore (or were rescued by the Coast Guard) in Florida from Haiti and Cuba. The public was divided. Many Floridians were outraged to see destitute brown and black people appear out of nowhere in their communities.

President Jimmy Carter resettled new migrants from Cuba and Haiti to a federal fort in Puerto Rico in Executive Order 12244. The order had an oblique quality. It designated Fort Allen in Puerto Rico as a place for the immediate relocation and temporary housing of Haitian and Cuban nationals. It also provided for the immediate relocation and temporary housing of Haitian and Cuban nationals in Florida; and suspended federal water safety and environmental laws for this purpose. Nothing in the title of the executive order suggested that it dealt with immigration.

The lessons?

One is that our immigration laws and procedures cannot handle a surge.

Second, both presidents bent to public pressure in local communities to remove unwanted immigrants.

Third, Carter put his order under a heading that dealt with sanitation standards. Trump, facing a similar challenge, incites Americans to hate on migrants.

Fourth: As noted by a blog reader, Carter did not separate children from families.
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Postscript: Many of the Cubans and Haitians were granted asylum. Forty years later, they and their children are mostly an American success story.

Trump Falsely Claims U.S. Has No Merit-Based Immigration. We Do. Here Are Main Points

Whether you favor more immigration, the same, or less, let’s be clear: the U.S. already has a merit-based immigration system (separately, we have asylum and lottery visas). The public record on Melania’s entry to the U.S. is unclear. She came to the U.S. to work as an elite fashion model. She had a job here before she arrived (common for her skill level). Maybe she had an O-1 visa which is specifically for fashion models (downside: it’s temporary); or maybe she had an EB-1 visa is for “extraordinarily talented” people (hence, called the Einstein visa but commonly used for elite pro athletes). EB-1 is a permanent visa—a green card.

I’ve kept the descriptions for merit-based visas short in the hope that you’ll quickly read them.

When Trump says “skill based immigration” he means an English proficiency test. The following visas are based on occupation, skill, training, and education—but not an English proficiency test. 

TEMPORARY VISAS (FROM SEVERAL MONTHS TO THREE OR MORE YEARS)

H-1A - registered nurses

H-1B - workers with "specialty occupations" admitted on the basis of professional education, skills, and/or equivalent experience;

H-1C - registered nurses to work in areas with a shortage of health professionals under the Nursing Relief for Disadvantaged Areas Act of 1999;

H-2A - temporary agricultural workers coming to the United States to perform agricultural services or labor of a temporary or seasonal nature when authorized workers are unavailable in the United States;

H-2B - temporary non-agricultural workers (e.g., hotel maids) coming to the United States to perform temporary services or labor if unemployed persons capable of performing the service or labor cannot be found in the United States;

H-3 - aliens coming temporarily to the United States as trainees, other than to receive graduate medical education or training;

O-1, O-2, O-3 - temporary workers with extraordinary ability or achievement in the sciences, arts, education, business, or athletics; those entering solely for the purpose of accompanying and assisting such workers; and their spouses and children;

P-1, P-2, P-3, P-4 - athletes and entertainers at an internationally recognized level of performance; artists and entertainers under a reciprocal exchange program; artists and entertainers under a program that is "culturally unique"; and their spouses and children;

Q-1, Q-2, Q-3 - participants in international cultural exchange programs; participants in the Irish Peace Process Cultural and Training Program; and spouses and children of Irish Peace Process participants;

R-1, R-2 - temporary workers to perform work in religious occupations and their spouses and children.

See other sections of this Glossary for definitions of Exchange Visitor, Intracompany Transferee, and U.S.-Canada or North American Free-Trade Agreement classes of nonimmigrant admission.

PERMANENT VISAS (GREEN CARD)

Employment-Based Immigration: First Preference EB-1 Extraordinary Ability

Employment-Based Immigration: Second Preference EB-2 Advanced Degree

Employment-Based Immigration: Third Preference EB-3 “Skilled workers” are persons whose job requires a minimum of 2 years training or work experience, not of a temporary or seasonal nature; also  “Professionals” are persons whose job requires at least a U.S. baccalaureate degree or a foreign equivalent and are a member of the professions

Employment-Based Immigration: Fourth Preference EB-4 “Religious workers”

Employment-Based Immigration: Fifth Preference EB-5 “Investor visa.”   Congress created the EB-5 Program in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors.

President Trump: Let’s Discuss “Beaner Hopping” and “Curb Stomping” of Immigrants and Gays

As President Trump paints illegal immigrants as public safety threats, let’s talk about how white supremacist gangs terrorize immigrants and gays.

On Nov. 8, 2008, Marcelo Lucero, an Ecuadorian immigrant, was murdered in the town of Patchogue, N.Y. Police say a gang of teenagers who called themselves the Caucasian Crew were responsible for the killing.

They target Latino residents as part of a sport they termed “beaner-hopping.”

White-member gangs also use “curb stomping” for an initiation rite.

Featured in a 1998 movie, American History X, this intensely violent act is called a curb stomp, also curbing, curb checking, curb painting, or making someone bite the curb.

It begins by confronting a suspected immigrant or gay person on a street.

The victim is forced to the ground. His mouth is forcefully opened on a curb. Usually, a gang member holds down the victim's head.

The attacker stomps on the victim’s head from behind, causing severe injuries and sometimes death.

In the picture above, Dane Hall, 20, lost six teeth, suffered a broken jaw in multiple places and a piece of broken bone was shoved into his brain during an attack while he was leaving Club Sound in Salt Lake City on Friday night, Aug. 26, 2011. Hall is openly gay and believes the attack was a hate crime. He said his attackers uttered gay slurs during the assault.

The Yellow Deli— Operated by Religious Sect— Cited for Child Labor

“Twelve Tribes” is a cult-like Christian group with 3,000 members in the U.S. and other countries. Local “tribes” live together in self-sustaining communities, with many operating cafes — all named The Yellow Deli Cafe — in small nearby towns. In the U.S., they operate charming restaurants in tourist towns such as Rutland, Vermont and Oneonta, New York.

Part of the problem seems to be underage wait staff or kitchen help. But the problem is much deeper.

These communes also manufacture and market cosmetics. Acure, a cosmetics retailer, was a purchaser of Twelve Tribes products until a few weeks ago. 

Amazon was a distributor of these products.

Last week, “Inside Edition” ran a blockbuster story using a hidden video camera to show underage children (as young as about 10) working at the Twelve Tribes cosmetics packaging factory in New York. See here https://www.youtube.com/watch?v=0Q4v9bhVL3w.

The New York Department of Labor recently found several child labor law violations at a soap factory owned by the Twelve Tribes. It has more investigations in progress.

A woman raised on one of the communes told reporters that the labor violations have been going on for years, but it’s not the only type of abuse the children there are facing.

In a Twitter message, she said, “What the public doesn't seem to understand is that ritualized beatings, ones canonized in the leaders’ “Teachings” with step by step instructions on how to “train” your children by “breaking their will,” that when you mix this type of child rearing with a utilitarian government like they have in the Twelve Tribes; the result is child slavery in our backyards.”

Combine Departments of Labor and Education? How Trump Plan Would Hurt You

No one has ever proposed combining the U.S. Department of Labor and Department of Education. But President Trump will make such an announcement shortly.

Most people don’t know what the Department of Labor (DoL) does for them. Here are some of its key functions.

Wage and Hour: This agency sues employers who fail to pay people minimum wages and overtime. Hourly employees cannot afford to hire a lawyer; and 54% of employers force people into arbitration. DoL sues in behalf of regular workers who are cheated on their pay. They don't go to arbitration. They sue in federal court.

Safety: OSHA is a part of DoL. It enforces workplace safety laws. Combining DoL and the education department would likely leave less money to enforce safety laws. Workplace injuries have been declining steadily from 2003-2016, during the Bush and Obama administrations. That trend would probably be reversed if the agencies are “streamlined.”

Child Labor: This is no longer a serious problem in the U.S. That’s because DoL takes a zero-tolerance approach against anyone who uses child labor. (Note: federal law exempts child labor in common sense settings such as family farms, camps, babysitting, newspaper delivery and similar … but not large scale commercial farming, factories, and so on).

Labor Statistics:  We take this for granted, but DoL collects an amazing amount of data that affects our lives. They track unemployment claims which in turn drives key economic policies. They track inflation, measured as CPI (Consumer Price Index). This has a major effect on the interest rates for our mortgages and credit cards. 
Are you or your parents drawing Social Security? If so, there is an automatic COLA (cost-of-living index) that annually increases payouts to prevent erosion due to inflation. DoL sets that baseline figure. The combination idea is a backdoor way to politicize the Bureau of Labor Statistics—a decidedly non-political outfit— to lower your benefits.

Pension Insurance: Some of us are in a private sector, traditional retirement plans. The DoL has a branch called Pension Benefit Guaranty Corporation. When companies such as Trump Casino (Atlantic City, NJ) go bankrupt (as his company did), people like Trump are off the hook for pensions—but a government insurance plan pays benefits to workers and retirees who are stiffed.

Black Lung Benefits: Who can forget the political love affair between Donald Trump and coal miners? DoL administers a special insurance fund for miners who are diagnosed with pneumoconiosis, commonly called black lung disease. Disabled miners are also entitled to medical services needed to treat their disease. The Black Lung Disability Trust Fund pays these benefits when there is no liable coal mine company or when the liable company either cannot or does not pay. When the Trust Fund pays on behalf of a liable coal company, the Department seeks reimbursement.

The thought of diluting the resources of the Department of Labor is part of a larger reverse Robin Hood strategy to take from the poor and give more to the rich. More people are becoming uninsurable due to pre-existing conditions as Trump abandons the Affordable Care Act. All the talk about the $1,000 bonuses for some employees has subsided—meanwhile, companies have record stock buy-back programs with their tax cuts.

With this proposal, the basics of the early 1900s are on the line—child labor, minimum wages, and pensions.

PHOTO CREDIT: DAILY KOS