Guess who doesn't care that its election day?

The Supreme Court.

I might be making too much of this, but they always seem to argue cases on election day. I take it as a sign that they present themselves as immune to politics. The cases they are hearing touch on issue we will raise in the sections on economic and social welfare policymaking (specifically the Fair Housing Act) - as well as items we covered in civil rights and the equal protection clause.

From ScotusBlog:

- Bank of America Corp. v. City of Miami
- Wells Fargo & Co. v. City of Miami

And a description of the case, also from ScotusBlog:

This one from the Washington Post might be more accessible.

- To recoup losses from the housing collapse, Miami pursues a novel suit.

The housing collapse of 2008 nearly broke the city of Miami. Now, its leaders have embarked on a novel and aggressive legal strategy to recoup losses from the big banks they say created the crisis with discriminatory and predatory lending practices.

It is a high-stakes effort that is being encouraged by many cities, and the banks Tuesday will ask the Supreme Court to stop it before it takes root.

Miami sued Bank of America, Wells Fargo and Citigroup under the 1968 Fair Housing Act, which bars discrimination in the sale, rental and financing of housing. The law states its purpose as providing for fair housing “throughout the United States.”

The city says that it can prove the lending institutions discriminated against Hispanic and African American residents by directing them into high-interest, risky loans. The resulting defaults destabilized Miami’s poorest neighborhoods, and the resulting loss of tax revenue sent the city to the brink of bankruptcy, they say.

In Miami’s Liberty City neighborhood, another vacant property is torn down. (Angel Valentin/For The Washington Post)

“It took us three years to really start recovering,” said Miami Commissioner Francis Suarez. “We decided unanimously as a commission that we wanted to hold the banks responsible for their lending practices, which we learned were discriminatory in nature.”

Banks have been sued by individuals and taken to task by the federal government for lending practices, but these new cases are the first in which cities are the plaintiffs and are demanding that banks be held accountable for harming their communities.
The banks counter that there is a reason such Fair Housing Act suits are novel: Congress never intended for the law to be used for such purposes.

“Municipal suits like this one were unheard of until recently, when enterprising contingency-fee counsel began pushing them,” Bank of America told the court in its brief.
The banks warn of a “trickle-down” approach that would let anyone affected by a neighborhood in decline — from the next-door neighbor to the corner dry cleaner — to sue under the act.

From Bloomberg: Sept. 11 Widow Sues Saudi Arabia Following Congress Override

The first lawsuit authorized by Congress related to 9/11 has been filed.

- Click here for the article.

A woman widowed when her husband was killed at the Pentagon on Sept. 11, 2001 sued the Kingdom of Saudi Arabia just two days after Congress enacted legislation allowing Americans to sue foreign governments for allegedly playing a role in terrorist attacks on U.S. soil.

Stephanie Ross DeSimone alleged the kingdom provided material support to al Qaeda and its leader, Osama bin Laden, in a complaint filed Friday at a U.S. court in Washington. Her suit is also filed on behalf of the couple’s daughter. DeSimone was pregnant when Navy Commander Patrick Dunn was killed.

Fifteen of the 19 men who hijacked airliners used in the attack were Saudi nationals. One jet struck the Pentagon, seat of the U.S. military, two destroyed the World Trade Center’s twin towers in New York while another crashed in a Pennsylvania field as its passengers fought back against the hijackers.

A U.S. commission that investigated the 2001 attacks said in a 2004 report that it “found no evidence that the Saudi government, as an institution, or senior officials within the Saudi government funded al-Qaeda.” Long-classified portions of a congressional inquiry that were released in July found the hijackers may have had help from some Saudi officials.

The kingdom has previously denied culpability. Its embassy didn’t immediately reply to an e-mailed message seeking comment on the suit.

An official at Saudi Arabia’s Ministry of Foreign Affairs told the state-run Saudi Press Agency on Sept. 29 that the U.S. Congress must correct the 9/11 bill to avoid “serious unintended consequences,” adding the law is of “great concern” to the Kingdom.

DeSimone, who is suing for wrongful death and intentional infliction of emotional distress, is seeking unspecified compensatory and punitive damages.

The case is DeSimone v. Kingdom of Saudi Arabia, 16-cv-1944, U.S. District Court, District of Columbia (Washington).

More fallout:

- 9/11 bill is a global blunder that will weaken US efforts abroad.
- Congress Has Itself to Blame for 9/11 Bill.

From the NYT: House Passes Bill Allowing 9/11 Lawsuits Against Saudi Arabia; White House Hints at Veto

Great checking and balancing going on here. Congress is expanding the jurisdiction of the judiciary, the president is promising to veto, but the bill passed with more than enough votes to override it. Shows the control the general public has over the House - its tough to vote against this sort of thing just prior to the anniversary of 9/11, Even though it it may not be the wisest thing to do. Critics worry about nations allowing their citizens to sue the US in their courts.

- Click here for the article.

Here;s a chunk of it:

The bill “is a politically cost-free way for Congress to send a signal of seeming seriousness about terrorism on the dawn of the 15th anniversary of 9/11,” said Jack Goldsmith, a professor of law at Harvard who served in the Department of Justice under President George W. Bush. “Congress itself could have investigated lingering questions about 9/11, but instead is delegating those tasks to the unelected judiciary. The costs of the law will be borne by courts, which are an awkward place to ascertain Saudi responsibility for 9/11, and especially the president, who will have to deal with the diplomatic fallout with Saudi Arabia and other nations.”

The bill addresses a 1976 law that gives other countries broad immunity from American lawsuits. It amends the law to allow for nations to be sued in federal courts if they are found to have played any role in terrorist attacks that killed Americans on home soil. It also allows Americans to direct financial claims against those who funded the attacks.

The administration has argued that it would put Americans at legal risk overseas. That position seemed at least somewhat validated when Pierre Lellouche, a member of the French Parliament who is chairman of the rough equivalent in France of the Senate Foreign Relations Committee, said he would pursue legislation that would permit French citizens to sue the United States with cause.

"I have sympathy with the notion of hitting those countries which actively support terrorism,” Mr. Lellouche said Friday. But the American bill “will cause a legal revolution in international law with major political consequences.”

From the Texas Tribune: Texas Cemetery Scraps "Whites Only" Policy

Seems about time. Enforcing equal protection gets tricky when it affects the private sector.

Note the use of the courts as a remedy.

- Click here for the article.

After drawing ire for its alleged “whites only” policy, a Texas cemetery conceded its refusal to bury Latino residents is discriminatory and violates federal and state law.

Lawyers for the cemetery association, which oversees the San Domingo Cemetery in the tiny, rural town of Normanna, admitted defeat in court on Friday as part of a lawsuit filed after Dorothy Barrera was unable to bury the ashes of her husband, who was Latino, in the cemetery.

As noted in a court filing, the Mexican American Legal Defense and Educational Fund accepted the cemetery association’s “offer of judgment,” proposing that a judge should enter a ruling against them for the policy and should declare their “rule of discriminating” based on race and national origin as “void.”

MALDEF brought the lawsuit after Barrera found herself at the center of a modern-day desegregation fight. After the death of her husband of more than 40 years, Barrera, who is white, realized she would be unable to be buried beside her husband Pedro because of the cemetery’s whites only policy.

More on the Fair Housing Act and discrimination based on physical ability

The previous post includes a story that mentions the Fair Housing Act and discrimination based on physical disabilities, so here's background since it's related to civil rights policy. We don't much time - if any really - on housing discrimination since this is a survey class, but here's an opportunity to learn a bit about it since its topical. This is a bit of a loose timeline - but hopefully its instructive.

- Title VIII of the Civil Rights Act of 1968 is the Fair Housing Act which was the law that made discrimination in the sale, rental and financing of housing based on a variety of factors including race and gender. It is intended to protect buyers and renters from discriminatory practices by landlords, sellers and financiers. As with previous civil rights legislation, it was driven into law by the Johnson Administration and was passed soon after Martin Luther King's assassination.

- The law is implemented primarily by allowing people to sue those they allege are discriminating against them. Which allows the Supreme Court to weigh in on the merit of these suits. An unsympathetic court can throw them out.

- These lawsuits are assisted by the Department of Housing and Urban Development and specifically the Office of Fair Housing and Equal Opportunity. Click here for how to file a housing discrimination complaint. And click here for a statement of your rights to fair housing.

- This was expanded in 1988 to include discrimination against people with disabilities as well as families with children.

- The law was weakened in the late 1980s by making it more difficult to prove discrimination. The Supreme Court has also narrowed the definition of disability in several key Supreme Court cases. Click here for a review of these cases.

- Discrimination against the disabled was expanded substantively in the Americans with Disabilities Act of 1990.

- This lead to a question: What is the legal definition of a disability? "...A physical or mental impairment that substantially limits a major life activity." What does "substantially limits" mean?

- In Sutton v. United Airlines, the court ruled that it was acceptable for the airline to not hire pilots with poor eyesight even if glasses made their vision acceptable. Since the vision could be corrected, it did not "substantially limit" their life activity. They could be discriminated against. One does not a have a disability if there can be a corrective device - like a prosthesis - that allows for some degree of compensation.

- This was based on the courts interpretation of the original language of the ADA, so the language was altered in amendments passed in 2008:

In 2008, effective January 1, 2009, the ADAAA broadened the interpretations and added to the ADA examples of "major life activities" including, but not limited to, "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working" as well as the operation of several specified major bodily functions. The Act overturns a 1999 U.S. Supreme Court case that held that an employee was not disabled if the impairment could be corrected by mitigating measures; it specifically provides that such impairment must be determined without considering such ameliorative measures. Another court restriction overturned is the interpretation that an impairment that substantially limits one major life activity must also limit others to be considered a disability

- The Fair Housing Act has not been expanded to ban discrimination based on sexual orientation or gender identity.

If you are interested:
- The Disability Rights Movement.
- Timeline of disability rights in the United States.

School funding trial back on track

In the opening lectures this semester we mentioned that the Texas Constitution contains language related to the need for the legislature to adequately fund public education in the state and that a lawsuit followed the $5 billion in cuts made to the education budget following the 82nd session of the legislature.

Click here for a few stories related to the lawsuit.

The lawsuit was put on hold once the 83rd session of the legislature restored $3.9 billion, but the lawsuit is back on track.

From the Lubbock Avalanche-Journal:

The second school funding trial began Tuesday with this basic argument from the attorneys representing the more than 600 school districts in the state suing the Texas Legislature: Despite the $3.9 billion the lawmakers restored to public education funding in last year’s session, the same old problems continue because of inequitable funding.

“Nothing has changed,” argued David Hinojosa, lead school finance attorney for the Mexican American Legal Defense and Education Fund, or MALDEF. The San Antonio-based organization represents some of the property-tax poorest districts in the state and a group of parents, including two from Amarillo.

The system is also inefficient because it is not producing results, Hinojosa and other attorneys told State District Judge John Dietz.

But Texas Assistant Attorney General Shelly Dahlberg countered that the funding of the public education system is constitutional.

In last year’s session, when the Legislature restored most of the funding cuts made in the 2011 session when the lawmakers tackled a $27 billion shortfall, the state narrowed the funding gap in the overwhelming majority of all school districts, Dahlberg told Dietz.

“The Legislature also improved the equity of the system,” she said in reference to one of the key arguments the plaintiffs used when they sued the state two years ago.

From the Texas Tribune:

With the Texas school finance trial reopening Tuesday, state district court Judge John Dietz is set to consider how changes made during the 2013 legislative session could affect his February ruling that the state has underfunded its public schools.

Attorneys for the state will spend the next four weeks arguing that new high school graduation requirements and the $3.4 billion lawmakers added back to the public education budget in 2013 should change his mind. But the most prominent player in the state’s defense of the lawsuit could remain outside the courtroom, where the trial has become a political football in the state’s heated 2014 gubernatorial contest.

The leading Republican candidate for governor, Greg Abbott, is also the state’s attorney general. His office is responsible for the state’s defense against the more than two-thirds of Texas school districts that are suing over what they say is an inadequate and unfair funding system in a case that is expected to travel to the state Supreme Court.

He said last week that he does not plan to appear in court during the latest hearings. That has not stopped his expected Democratic opponent, Wendy Davis, from lobbing attacks based on his role in the litigation. Davis, a Fort Worth state senator, has her own connection to the school finance lawsuit. In 2011, she filibustered the 2011 budget bill that enacted the $5.4 billion in cuts that led to the litigation that arose two summers ago.

Tribpedia contains full background of the case.

Texas School Districts lobby and lawyer up.

The Fort Worth Star Telegram reports that independent school districts in the state have organized prior to the 83rd session in order to push for a restoration of the $5.4 billion in finding lost in the previous session.

In related news, the lawsuit against those cuts continues. Schools argue that the cuts violated the mandate in the Texas Constitution that adequate provisions be made for public education in the state.

Detail about the lawsuits can be found here at the website of the Texas Association of School Boards.

Ross Ramsey argues that all spending decisions will be at a standstill until this issue is worked out.

From the Houston Chronicle: Texas spends big bucks suing federal government

Texas Attorney General has been racking up bills suing the national government:

The Texas attorney general's office has filed 24 lawsuits against the federal government since Obama took office — litigation that has cost the state $2.58 million and more than 14,113 hours spent by staff and state lawyers working those cases.

Many of those have resulted in defeats, including the recent high-profile lawsuits defending Texas' strict law requiring voters to show picture ID at the polls and the new state-approved voting districts that a federal appeals court ruled were discriminatory toward minorities. Those two cases alone cost more than $2 million, according to records obtained by The Associated Press using the Freedom of Information Act.

Texas Attorney General Greg Abbott said the costs are worth it, calling the litigation "a fight against the unprecedented ideology coming from the Obama administration." In an interview, he said the legal battles he wages are meant to promote industry and protect Texas jobs.

Pay Equity Act Blocked in the Senate

Some fodder for 2302 as we get ready to plunge into the legislature. Story in the NYT, here's the vote, largely party line. The name of the bill is the Paycheck Fairness Act.

The bill would have amended a key piece of New Deal legislation: the Fair Labor Standards Act of 1938. The FLSA established the minimum wage and overtime pay, and prohibited child labor. It applied to individual who were engaged in commerce or the production of good for commerce (note the constitutional justification). The act has been amended heavily, but the most important amendment was added in 1963 when the Equal Pay Act was amended to the original bill. It made it illegal to pay workers lower wages due to gender.

The purpose of the bill was to make it easier for women to investigate whether they are being paid unequally, which allows them to pursue a claim of discrimination. It also made it easier for women to take cases to court. From the NYT story:

Tuesday’s bill sought to bar companies from retaliating against workers who inquire about pay disparities and open pathways for female employees to sue for punitive damages in cases of paycheck discrimination.
We can use this story to discuss a variety of matters related to the class.

- the ideological differences between conservatives - who do not like restrictions on business and tend to be suspicious about claims of discrimination - especially when they involve lawsuits - and liberals - who prioritze equality among all other values and often seek to increase access to the courts as ways of redressing claims of discrimination.

- it allows us a peek at the bill making process (click here for detail on the bill - from Thomas).

- we can see the filibuster in action - or at least what passes for filibusters today. Senate procedures, as they exist today, require 60 votes for bills to be considered on the floor of the chamber. This is a supermajority and empowers a minority. They can't get things passed, but they can make it impossible for anyone else do either. The bill only received 52 votes, just a mere simple majority. There have been many such votes recently, which leads to questions about the viability of the current Senate.

- the vote was almost party line. All Republicans votes against bringing it to the floor. All but one Democrats voted in favor of it. This helps bolster the case that parties are increasingly polarized.

- and since its an election year there is speculation that Democrats only brought this up - knowing that it would be filibustered - to put Republicans on the record as being opposed to equal pay. Perhaps this becomes an election issue.

From Texas Tribune: A Guide to the Texas School Finance Lawsuits

Catching up with an evolving issue in the state: following last year's budget cuts to schools, some districts sued the state. Texas Tribune provides background of the lawsuits here.

Are civil rights policies working?

This author says they are not, and we need to transform how discrimination is addressed.

CIVIL rights have transformed American society, and made it fairer and less divided, by outlawing overt racial discrimination and making bigotry socially unacceptable. That success has inspired a host of social groups to press for new civil rights.

But civil rights have barely made a dent in today’s most severe and persistent social injustices, such as the disproportionate incarceration of African-Americans, the glass ceiling that blocks career advancement for many women and high unemployment among the elderly; in fact, some of these problems have gotten worse despite civil rights laws intended to address them. Today’s most pressing injustices require comprehensive changes in the practices of the police, schools and employers — not simply responses to individual injuries.
The author questions the use of lawsuits as a vehicle for handling civil rights complaints (notice the discussion of Brown and the Seattle Supreme Court decisions). 2301 students should be aware of this policy after discussing civil rights in class. 2302 students should read this because it points out the role the Supreme Court has played in promoting civil rights at one point, and being more skeptical of them recently.

- In a related story: Female Wal-Mart Employees File New Bias Case.

From the NYT: Broad Ripples From a PAC on Tort Reform

Some background on one of Texas' strongest interest groups: Texans for Lawsuit Reform.

- The group's website.
- The groups' PAC.
- Topics: Texans for Lawsuit Reform.

A Big Business Friendly Term

Commentators seem to agree (here's an exception) that the recent Supreme Court term was great for big business in the United States. Dahlia Lithwick complains that their decisions have given corporations a guide book for how to discriminate among their employees and lie to customers and investors. Much of this is achieved by limiting the ability of people to take cases to the judiciary.

She highlights three specific cases:

- Wal-Mart v. Dukes
- AT&T Mobility v. Concepcion
- Janus Capital Group, Inc. v. First Derivative Traders

For 2302, her article highlights points we've raised the about the court narrowing "standing" and making it more difficult for people to actually take cases to court. For 2301 this is a great example of the ability of a well financed, cohesive small group to win out over a larger, less cohesive group in the political process.

Supreme Court Allows Contracts Forbidding Class-Action Arbitration

The Supreme Court continues to make class action lawsuits more difficult to move forward. The case is  AT&T Mobility v. Concepcion.

From the NYT:

Businesses may use standard-form contracts to forbid consumers claiming fraud from banding together in a single arbitration, the Supreme Court ruled on Wednesday in a 5-to-4 decision that split along ideological lines.

Though the decision concerned arbitrations, it appeared to provide businesses with a way to avoid class-action lawsuits in court. All they need do, the decision suggested, is use standard-form contracts that require two things: that disputes be raised only through the informal mechanism of arbitration and that claims be brought one by one.

“The decision basically lets companies escape class actions, so long as they do so by means of arbitration agreements,” Brian T. Fitzpatrick, a law professor at Vanderbilt University, said. “This is a game-changer for businesses. It’s one of the most important and favorable cases for businesses in a very long time.”

The decision fits in with recent rulings that have favored arbitrations and been wary of aspects of class actions. 

More Tort Reform on the Way: Loser Pays

In 2302, once we wrap up the executive branch we head into the judiciary. One of the more consistently controversial topics over the past several years has been tort reform, which can be defined as one many efforts to change the manner in which accusations of damage (torts) are addressed in the civil courts.

A few years back, caps were placed on the amount of damages which could be awarded by a jury in medical malpractice cases.Currently, the tort reform is focusing on "loser pays," the idea that losers in civil cases should pay the court costs of the winners. Advocates argue -- again -- that this would discourage frivolous suits from being filed. Opponents argue that this would scare off most any lawsuits, even those that are worthwhile, since there is never a guarantee that one is likely to prevail in a court case.

Houston attorney Paul Simon thinks this is an effort to further strip away legal rights.

links:
- American Tort Reform Association.
- Texans for Lawsuit Reform.
- Perryman Group analysis of malpractice reform.
- Tort Reform Unlikely to Cut Health Care Costs.
- "Loser Pays" a Winner in the Texas Legislature?

- Point of Law: Loser Pays.

How to Sue the State of Texas

In 2301, in several lectures - notable federalism and civil rights, we discussed state sovereign immunity and the concept that a state has to allow itself to be sued in order for that to be allowed as a remedy. Here's an example from Burka Blog:

The former Texas Teach coach has retained Capital Alliance, formerly known as the Eppstein Group, to oversee the filing and passage of a bill giving Leach permission to sue the state. Bryan Eppstein confirmed the facts to me in an interview earlier today.The suit is the result of what Leach has contended is a wrongful termination of his contract by Texas Tech following his suspension and subequent firing in December 2010.


Burka's post goes on to point out the part of the Texas Code that details the procedure for such bills.

FYI in case you ever need it.

Ashcroft v. al-Kidd

The Supreme Court will hear arguments on a case involving both the material witness statute and whether the Attorney General can be sued.

The case is Ashcroft v. al-Kidd.

- ScotusBlog. Argument preview: An old law in new guises?
- ScotusBlog: Ashcroft v al-Kidd.
- Wikipedia: Material Witness Statute.
- Wikipedia: Qualified Immunity Doctrine.

The ACLU Defends The Ten Commandments In School

Via the Daily Dish: As long as they're posted by students exercising free speech:

The ACLU of Virginia has come to the defense of a group of Christian athletes in Floyd County.

In an e-mail sent Friday afternoon, the civil liberties group said it had e-mailed the principal of Floyd Co. High School (FHS), and urged him to allow students to post their personal views, including copies of the Ten Commandments, on the lockers.

The e-mail comes one day after WSLS first reported that members of the Fellowship of Christian Athletes at FHS claims school leaders took down the copies of the Ten Commandments on their lockers.

School leaders would not confirm or deny the incident to WSLS. They would only state school policy that messages other than those such as 'happy birthday,' or 'go team,' were allowed to be posted on lockers without school administration permission.

The e-mail from ACLU of Virginia legal director Rebecca K. Glenberg drew a distinction between "school imposed religious expression," and "the personal religion expressions of students." The ACLU distinguishes the situation at FHS, from the Ten Commandments controversy in the Giles County Schools system.

"Schools have the authority to ban all displays on school property," said ACLU of Virginia Executive Director Kent Willis, in a news release. "But if a school allows students to post some kinds of personal messages on their lockers, it must also allow other kinds of messages, including those that have religious content The removal of the Ten Commandments from student lockers at Floyd County High School appears to violate the First Amendment rights of students by discriminating against religious expression," added Willis in the release.

Suing Rapists

In 2301, when we cover federalism, we touch on U.S. v. Morrison which -- along with U.S. v. Lopez, seemed to mark the end of the indiscriminate use of the commerce clause to justify endless expansions of federal power. But while the case stated that the federal government lacked the constitutional power to allow women access to its courts for lawsuits against their attackers, the state courts could, and perhaps should.

That availability of these courts has been limited however, as the following story illustrates.

Are the State Attorney Generals' Lawsuits Against Health Care Reform Frivolous?

According to these authors, yes.