Friday, January 21, 2022

What Democrats need from Mitch McConnell in an election reform deal.

What Democrats need from Mitch McConnell in an election reform deal.
by Rick Hasen (UCLA)

The debate over whether Democrats should pursue their large voting rights package or a narrower law aimed against election subversion became moot on Wednesday when Democrats could not muster up enough votes to tweak the filibuster rule to pass their larger package. Some Republicans are now making noise that they would support narrower anti-election subversion legislation centered on fixing an 1887 law known as the “Electoral Count Act.” Democrats should pursue this goal but think more broadly about other anti-subversion provisions that could attract bipartisan support. Bipartisan, pinpointed legislation is the best chance we have of avoiding a potential stolen presidential election in 2024 or beyond.

The wide-or-narrow voting bill debate was weird because it was never an either/or proposition. As I wrote in the New York Times a few weeks ago, “reaching bipartisan compromise against election subversion will not stop Democrats from fixing voting rights or partisan gerrymanders on their own—the fate of those bills depend not on Republicans but on Democrats convincing Senators [Joe] Manchin and [Kyrsten] Sinema to modify the filibuster rules. Republicans should not try to hold anti-election subversion hostage to Democrats giving up their voting agenda.”

Wednesday, January 19, 2022

NJ Judiciary is offering free CLE courses on implicit bias and elimination of bias

NJ Courts: Attorney Portal

The Judiciary is offering free CLE courses on implicit bias and elimination of bias

As announced in the October 20, 2020 notice to the bar, the Judiciary will offer a series of real-time virtual courses on implicit bias and elimination of bias throughout calendar year 2021.

These courses provide one option for attorneys to fulfill the requirement established by the Supreme Court’s amendment to Rule 1:42-1 (“Continuing Legal Education Required”) and CLE regulations 103:1 and 201:1 to require diversity, inclusion, and elimination of bias training for attorneys licensed in New Jersey. They will be offered at no cost to the attendees.

Governor Glenn Youngkin |

Governor Glenn Youngkin |
RICHMOND— Governor Glenn Youngkin today signed nine Executive Orders and two Executive Directives at the Virginia State Capitol, acting on several of his Day One promises to Virginians. The actions include an executive order ending the use of inherently divisive concepts – including Critical Race Theory – in public education, an executive order affirming the rights of parents to make decisions on masks in schools, and an executive order terminating the Virginia Parole Board and requesting the Attorney General begin a full investigation of the Board’s actions.
“It’s Day One, and we are going to work just like we promised,” said Governor Youngkin. “The important steps we are taking today begins the work of restoring excellence in education, making our communities safer, opening Virginia for business and reinvigorating job growth, and making government work for the people, and not the other way around. My Day One Game Plan also includes 59 pieces of legislation and a package of more than a dozen budget amendments I am working on with General Assembly leaders, including our efforts to double the standard deduction, eliminate the grocery tax, and end the tax on the first $40,000 in veteran retirement pay. It’s a new day in Virginia, but the work is only beginning.”
Executive Orders
  • Executive Order Number Two delivers on his Day One promise to empower Virginia parents in their children’s education and upbringing by allowing parents to make decisions on whether their child wears a mask in school.
    Read the full text of Executive Order Number Two.

Friday, January 7, 2022

Stealing Education - LaToya Baldwin Clark // UCLA L Rev.


Stealing Education


While most state constitutions include provisions that indicate a commitment to equal access to education within one state, that commitment remains unfulfilled. This Article shines a light on a practice that has been overlooked by those concerned about school district inequality, but that contributes to this incongruity: a phenomenon I call “stealing education.” A parent “steals” education when he falsifies a child’s residence to take advantage of a school district’s schools. Stealing education also refers to the legal infrastructure that allows for criminal or civil punishment.

In this Article, I argue that stealing education laws contribute to the apparatus of race-class opportunity hoarding, where a race-class-privileged community sequesters valuable resources to the exclusion of another race-class-subordinated community. I show how stealing education laws structure and perpetuate stratified school districts between residents and nonresidents and describe how many supporters of the laws use racist master narratives to justify the unequal distribution of rewards. The task of rationalizing the legal apparatus that denies equal educational opportunity to nonresidents is easier when supporters can appeal to “common sense” explicit racist narratives and dog whistles of inferior and undeserving Black people and Black children.

This Article focuses on one suburban-urban school district boundary that separates a majority- White school from a majority-Black school to highlight how some supporters of this structure justify this unequal system. I show how the subordinating effects of the stealing education apparatus mirror Brown-era race and class segregation. Stealing education is a perfectly legal mechanism by which to subordinate poor Black children, their families, and their communities.

Conservative Justices Express Hostility To Biden Administration’s Power

Conservative Justices Express Hostility To Biden Administration’s Power Talking Points Memo

The conservative contingent of the Supreme Court questioned agencies’ ability to mandate the COVID-19 vaccine Friday, often asking why that power shouldn’t be left to Congress instead. 

“Why doesn’t Congress have a say in this, why isn’t it the primary responsibility of the states?” Chief Justice John Roberts asked, accusing the administration of using disparate agency mandates as a “workaround” to replace congressional action.

That positioning, made clear during oral arguments over two Biden administration vaccine mandates — one for health-care workers at facilities that get federal funding, and one vaccinate-or-test policy for large employers — formed another point of evidence for the increasingly conservative Court’s growing hostility toward executive branch authority, a shift experts have been tracking for years. 

Court watchers predicted that these mandate cases might provide clues about how the now-heavily conservative bench will react to the Biden administration’s attempts to enact policy through the rulemaking process.

Such antagonism towards agency power could prove paralyzing to the Biden administration, if either the current, nonfunctional Senate or a future Republican takeover of one or both chambers cuts off all ability to legislate. 

Many of the Republican appointees to the bench did in fact give voice to skepticism about agency power in general terms, while the small liberal contingent fought back. 

Critics of the movement to strip agencies of their authority have called the shift blatantly undemocratic, vesting judges with decision-making power over oftentimes complex and technical problems instead of the experts that lead those departments, picked by the President who is, in turn, elected by the people. Justice Elena Kagan became their mouthpiece Friday. 

“So who decides?” she asked. “Should it be the agency full of expert policy makers and completely politically accountable through the President?”

“On the one hand, the agency with their political leadership can decide — on the other, courts can decide,” she continued. “Courts are not politically accountable, courts have not been elected, courts have no epidemiological expertise.” 

“Why in the world would courts decide this question?” she asked incredulously.

Wednesday, January 5, 2022

The Emory Law Journal Finds My Distinguished Colleague’s Words “Hurtful and Unnecessarily Divisive”

The Emory Law Journal editors rightly withdrew an offensive, ill grounded and, yes, racist contribution to a "festschrift" .  But "conservative" commentators declare themselves offended by political correctness.
The Emory Law Journal Finds My Distinguished Colleague’s Words “Hurtful and Unnecessarily Divisive