Posts from the ‘Old Print Archives’ Category

Being FAIR to Religion: Rumsfeld v. FAIR's Impact on the Associational Rights of Religious Organizations

by STUART McPHAIL

Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (FAIR) garnered much political attention because of the issue underlying the case: whether “don’t ask, don’t tell” is a sound policy.1 However, that question was not before the Supreme Court. The Court considered only whether law schools’ protests against the policy—refusing military recruiters access to students—were constitutionally protected speech.2 The Court was not sympathetic; in ruling against FAIR, a consortium of law schools, it limited a protection that it had greatly expanded only six years earlier: the right to expressive association.
The effects of this limitation are yet to be seen, but will likely come as a disappointment to libertarians who saw great promise in the broad association rights set forth in Boy Scouts of America v. Dale.4 Interestingly, the impact of FAIR may be felt most by religious organizations—groups that have traditionally had their own associational protections, but which today may rely only on the right of expressive association. The irony of this is that FAIR, a case noted for its defense of an anti-homosexual policy, may have its greatest impact on religious organizations that seek to keep homosexuals out.

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Building on a Broken Employer Sanctions System: The Impact of the Bush Administration's SSA No-Match Letter Proposal

by KIMBERLY FOX

In August 2007, approximately one year after Congress’s failed attempt at comprehensive immigration reform, the Department of Homeland Security (DHS) took action. Declaring that “until Congress chooses to act, we’re going to take some energetic steps of our own,” DHS Secretary Michael Chertoff introduced the Bush Administration’s twenty-six policy proposals aimed at cracking down on illegal immigration. This Essay focuses on the “linchpin” of the Bush Administration’s plan, a revamped Social Security Administration (SSA) no-match letter scheme, a policy that “seem[s] to dominate most public discussions on immigration.” This Essay offers analysis of the Final Supplemental Rule, reissued on October 23, 2008.

No-match letters have long informed employers that their employees’ wage and earning reports, in the form of W-2 tax forms, do not match official SSA records. Sometimes these letters result from an employee’s inclusion of fraudulent personal information on his or her tax forms. In such a case, if an employer had “knowledge” of a worker’s unlawful status and hired or employed said worker, employer sanctions result under the Immigration Reform and Control Act of 1986 (IRCA).

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ID at the Polls: Assessing the Impact of Recent State Voter ID Laws on Voter Turnout

by SHELLEY DE ALTH

Last spring, in Crawford v. Marion County Election Board, the Supreme Court upheld Indiana’s law requiring voters to show picture identification in order to vote, but the Court divided four ways over the issue. Central to the Justices’ debate and the applicable constitutional balancing test was the degree of the burden that the law imposes on voters. This Essay surveys the voter ID controversy and describes original empirical research finding ID laws to have a negative impact on voter turnout. Since the Court left open the possibility of as-applied challenges to voter ID laws, future litigants who can produce research such as this will have a much stronger case to have these laws declared unconstitutional.

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You Can't Build on Shaky Ground: Laying the Foundation for Indigent Defense Reform Through Values-Based Recruitment, Training, and Mentoring

by JONATHAN A. RAPPING

On August 21, 2005, twenty-four new public defenders gathered in Vidalia, Georgia to begin an intensive, three-week training period. They graduated from seventeen different law schools in twelve different states. More than thirty years separated the oldest from the youngest. They were male and female; African-American, Caucasian, and Latino. Some were born and raised in Georgia while others had no previous connection to the state. But they shared a commitment to join an exciting movement to reform indigent defense. Before enacting legislation to establish a state-wide public defender system aimed at improving the quality of representation for indigent defendants, Georgia was among a long list of states known for the abysmal quality of representation provided to their poorest citizens in criminal cases. These twenty-four lawyers would soon be practicing in seventeen public defenders’ offices across the state,3 on a mission to help change that dubious reputation. Most had never met one another before that day, but they would soon share a bond, anchored by their commitment to indigent defense.

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The Obama Factor: The Impact of the 2008 Presidential Election on Future Voting Rights Act Litigation

by KRISTEN CLARKE

The 2008 presidential contest proved to be of historic proportions, resulting in the victory of Barack Obama, the nation’s first black president. The contest itself played out in dramatic fashion, with a nontraditional slate of party candidates, exceptionally competitive party primaries, record levels of individual campaign contributions, aggressive grassroots mobilization efforts, spikes in voter registration, and high Election Day turnout and participation rates. Moreover, this was the first election since the adoption of the modern system of presidential nomination through primaries in which neither major party had an incumbent’s name appear on the ballot. Beyond its historical significance, Obama’s victory has spawned a number of interesting debates on the issues of race and discrimination. Indeed, some commentators
have begun pointing to Obama’s presidential victory as singular evidence that we have overcome and resolved the problem of race in America. In particular, some have suggested that his victory marks the beginning
of a “post-racial” era in which race bears less significance or consequence.

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Not Old or Borrowed: The Truly New Blue Federalism

by ROBERT A. SCHAPIRO

Progressives once feared federalism as a mechanism for allowing deviant, pernicious practices to persist. Federalism, it seemed, might constitute a polite, historically grounded justification for blocking the federal government from guaranteeing basic human rights to people throughout the United States. After all, “states’ rights” provided a rallying cry for opposition to the civil rights movement of the 1950s and 1960s. Thus, in 1964, a leading political scientist wrote, “[I]f in the United States one disapproves of racism, one should disapprove of federalism.”

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Bearing the Burden of the Beltway: Practical Realities of State Government and Federal-State Relations in the Twenty-First Century

by KATHLEEN SEBELIUS and NED SEBELIUS

Throughout much of the twentieth century, progressives relied on a dominant federal government to ensure that their policies were successfully implemented in the more conservative states. President Franklin Roosevelt demanded a federal solution to the economic crisis of the 1930s and gave America the New Deal. Presidents Truman, Eisenhower, Kennedy, and Johnson each used the authority of the federal government to force states to accept suffrage for African Americans, the desegregation of public schools, and the slow, uphill march of the civil rights movement through the 1960s.
In response, when the conservative agenda took over the Oval Office with the election of President Reagan in 1981, state governments were promised a New Federalism—a relationship defined by a smaller federal government, with reduced oversight and greater freedom for state innovation.1 It was to be a new day for state initiative, free from federal meddling.

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Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?

by KEVIN M. CLERMONT and STEWART J. SCHWAB

Five years ago we surveyed how employment discrimination plaintiffs fared in federal court.1 We wrote in summary that they have a tough row to hoe. Compared to other plaintiffs, they manage fewer resolutions early in litigation, and so they have to proceed to trial more often. They win a lower proportion of cases during pretrial and at trial. Then, more of their successful cases undergo appeal. On appeal, they have a harder time both in preserving their successes and in reversing adverse outcomes.
This tough tale was an important story for several obvious reasons. For one, employment discrimination cases, the so-called “jobs” category, had come to constitute a very big fraction of the federal civil docket. Such cases then reigned as the largest single category of federal civil cases, at nearly ten percent of that docket.

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