Friday, March 5, 2021

Challenges for Black Workers After 2020: Antiracism in the Gig Economy? by Michael C. Duff :: SSRN

Challenges for Black Workers After 2020: Antiracism in the Gig Economy? by Michael C. Duff :: SSRN

Abstract

Black workers’ fortunes in the coming decades are tied to the expansion of the Gig economy, the impact of which is to destroy employee status. Because much antiracism law and policy has been transmitted to society through the medium of employment law, the disappearance of employee status should be of concern to all foes of racism. This short essay argues that Section 1981 of the Civil Rights Act of 1866 should be expanded to cover all forms of racist workplace conduct. Regulatory arbitrage will continue to challenge the definition of employment for the foreseeable future. It is fitting that one of the great antiracist laws in the history of the United States be modified to cut through the haze, ensuring that Black workers have remedies for racist workplace conduct, however the workplace may be fortuitously or strategically defined, now or in the future. Acceptable, but not quite as good, alternatives to expanding Section 1981 are to explicitly cover independent contractors with existing antiracist employment law (such as Title VII of the Civil Rights Act of 1964); or to embrace the “ABC” employment test, which makes it much more difficult for employers to inappropriately classify employees (entitled to the protections of antiracist and other employment laws) as independent contractors (who are not entitled to those protections).

Keywords: Gig economy, Title VII, Antiracism, employee status, Proposition 22, independent contractor

Duff, Michael C., Challenges for Black Workers After 2020: Antiracism in the Gig Economy? (February 23, 2021). Available at SSRN: https://ssrn.com/abstract=3791758 or http://dx.doi.org/10.2139/ssrn.3791758

Wednesday, March 3, 2021

Eric Segall: Institutional Racism, Affirmative Action, and Judicial Hubris: Part I Dorf on Law

OTHERWISE: Eric Segall: Institutional Racism, Affirmative Action, and Judicial Hubris: Part I Dorf on Law

The pernicious and negative consequences of centuries of slavery, segregation, and formalized legal racial discrimination are still all around us. As I detailed here, institutional racism pervades our schools, police forces, governmental institutions, neighborhoods, and even our private markets. In my lifetime, just a few blocks from the law school where I teach, a hotel went to the Supreme Court arguing for the right to discriminate against people of color despite a federal statute prohibiting the same. Today, GOP legislatures in well over half the states are trying to deter people of color from voting. Just yesterday, the Court heard oral arguments in such a case

Wednesday, February 24, 2021

Laurence Tribe: Justice Thomas is out of order on 2020 election | TheHill

OTHERWISE: Laurence Tribe: Justice Thomas is out of order on 2020 election | TheHill: Laurence Tribe: Justice Thomas is out of order on 2020 election | TheHill The 2020 election revealed rot in this country’s institutions.  Do...

Monday, February 22, 2021

The COVID Cases: A Preliminary Assessment of Judicial Review of Public Health Powers During a Partisan and Polarized Pandemic by Wendy E. Parmet :: SSRN

The COVID Cases: A Preliminary Assessment of Judicial Review of Public Health Powers During a Partisan and Polarized Pandemic by Wendy E. Parmet :: SSRN

The COVID Cases: A Preliminary Assessment of Judicial Review of Public Health Powers During a Partisan and Polarized Pandemic

51 Pages Posted: 1 Feb 2021

Wendy E. Parmet

Northeastern University - School of Law

Date Written: January 29, 2021

Abstract

What powers do states have to protect the public from a public health emergency? For most of the last 100 years, the protracted and robust debate about that question has been largely hypothetical. Although courts had occasion to assess the scope of state public health powers in cases concerning HIV, measles, vaping, and Ebola, to offer just a few examples, until COVID-19, no court in the past century had to determine the full reach of state public health emergency powers during a widespread and highly lethal pandemic. Nor had any court been asked to reconcile contemporary understandings of constitutional rights with the states’ need to protect its residents from such a pandemic.

In the spring of 2020, numerous state and local courts, including the U.S. Supreme Court, were presented with just those challenges. As cases of COVID-19 spiked in many American communities, governors and local officials across the country used their emergency powers to impose a range of social distancing orders (SDOs), shuttering businesses, restricting religious services, requiring the wearing of masks, and banning nonessential medical services, all in an effort to “flatten the curve.” Although the vast majority of the public supported these measures, at least initially, numerous litigants went to court seeking to enjoin SDOs. They did so against the backdrop of an increasingly polarized reaction to the pandemic, with President Trump, who had promoted social distancing in March, tweeting in April for the liberation of states as armed protesters shut down the Michigan legislature. Meanwhile, false and misleading information about COVID-19 and potential policy responses spread wildly across social media, some of it amplified by the President himself.

Protests, polarization, and misinformation: these formed the environment in which state and federal courts confronted the initial wave of constitutional challenges to COVID-19 SDOs. In deciding those claims, and in the absence of significant contemporary precedent, most courts looked to the Supreme Court’s 1905 decision in Jacobson v. Massachusetts. A complex and multifaceted decision, Jacobson has been cited frequently in the 115 years since it was decided. But never before had it been used so prominently to decide the constitutionality of broad state SDOs in the midst of a pandemic. And never before had it been relied upon to such an extent in such a lethal, partisan, and heated moment.

How did the courts respond to the initial wave of litigation? This Article offers some preliminary observations by examining court opinions published in Westlaw reviewing abortion, free speech, and free exercise claims that cited to Jacobson between March 21 and May 29, 2020, when the Supreme Court handed down its first COVID-19 opinions. This examination shows that although lower courts offered different interpretations of Jacobson, all accepted the importance of the state’s interest in protecting the public’s health. Moreover, no court questioned the seriousness of the pandemic; nor did any adopt the misleading information about the pandemic that was widely available on social media.

Nevertheless, at least until May 29, when Chief Justice Roberts and Justice Kavanaugh issued concurring and dissenting opinions respectively accompanying the Supreme Court’s refusal to block the application of California’s social distancing order to religious services, the lower courts diverged over how to reconcile the deference that Jacobson accords to public health authorities with the protection of fundamental constitutional rights. Further, while factual distinctions regarding state-specific SDOs likely help explain some of the different outcomes, the shifting nature of the claims and the evolving politics around SDOs may also have played a role, raising critical questions as to how courts may respond should states impose new SDOs either in response to a “second wave” of COVID-19 or a future pandemic.

Keywords: COVID-19, public health, Jacobson,

Parmet, Wendy E., The COVID Cases: A Preliminary Assessment of Judicial Review of Public Health Powers During a Partisan and Polarized Pandemic (January 29, 2021). San Diego Law Review, Forthcoming, Northeastern University School of Law Research Paper No. 399-2021, Available at SSRN: https://ssrn.com/abstract=3777244

Sunday, February 21, 2021

OTHERWISE: John Rawls at 100, "A Theory of Justice" at 50

OTHERWISE: Legal Theory Blog: John Rawls at 100, "A Theory of Justice" at 50: John Rawls - the most influential legal philosopher of the past century - is paid just tribute by UVA legal philosopher Lawrence Solum.   .

Saturday, February 20, 2021

Tim Kaine: Virginia’s ending the death penalty shows other states how to do the same - The Washington Post

Tim Kaine: Virginia’s ending the death penalty shows other states how to do the same - The Washington Post:  As I read Senator Kaine's essay I was surprised to learn that he - a former defender in capital cases (and  veteran of the Jesuit Volunteer Corps) - had, while Governor, allowed executions to go forward despite his personal opposition.  Why?  
Could he not have imposed a moratorium?  Virginia Governors serve only one term.  Was he looking forward to running for Senate? Is his acquiescence any different than the New Jersey trial judges and state Supreme Court Justices who acquiesced in the people's legislative will but rigorously reviewed every case?  Employing what Justice John Wallace called "super due process" the New Jersey Supreme Court effectively blocked executions for twenty five years.  

Thursday, February 18, 2021

OTHERWISE: Chafetz: Nixon/Trump: Strategies of Judicial Aggrandizement - Georgetown - forthcoming

Josh Chafetz's forthcoming Strategies of Judicial Aggrandizement is a rare treatment of the courts the way others are treated.  We are accustomed to the charge that bureaucracies try to increase their power, that legislatures overreach, and that Presidents tend toward the imperial (thank you Arthur Schlesinger, Jr.).  But rarely does "judicial aggrandizement" get any attention.
OTHERWISE: Chafetz: Nixon/Trump: Strategies of Judicial Aggrandizement - Georgetown - forthcoming:  

Supreme Court shadow docket: Congress scrutinizes it and considers reform.

OTHERWISE: Supreme Court shadow docket: Congress scrutinizes it and considers reform.: We've gotten used to it: the late hours order granting or denying a stay of the Trump rush to execute before the libs take back the White Ho...