The Issue Spotter

(Source) In Cedar Point Nursery v. Hassid (2021), the U.S. Supreme Court ruled that California’s Agricultural Labor Relations Act (“ALRA”) constituted a per se physical taking under the 5th Amendment’s Takings Clause (applicable to states through the 14th Amendment). The ALRA gave union organizers a “right to take access” to an agricultural employer’s worksites to help employees exercise their union rights.  This “right to take access” violated the Takings Clause in its infringement on a property owner’s right to exclude persons from their property.  Furthermore, the ability of union organizers to access worksites inconveniently distant from public spaces has enabled isolated workers to learn about and exercise their workplace rights. Think of workers in a ski town or at one of Orlando, Florida’s many amusement parks. There is no public property where workers can easily meet near their workplace to organize—all the surrounding land is the employer’s private property. As a result, the NLRB has interpreted the National Labor Relations Act (“NLRA”) to permit permits non-employee union organizers to access an employer’s physical premises to organize workers. The Court in Cedar Point Nursery v. Hassid overturned a California law creating that right because it constituted a per se taking in [read more]

(Source) On January 10th, 2023, the Supreme Court heard oral arguments in Glacier Northwest, Inc. v. International Brotherhood of Teamsters (No. 21-1449). Ready-mix concrete supplier Glacier Northwest appealed a Washington Supreme Court decision that barred its lawsuit against a union under Washington state tort law for allegedly intentionally destroying company property during a labor dispute. The Washington Supreme Court held that the National Labor Relations Act (“NLRA”) preempted this sort of state tort suit. The events that gave rise to the suit unfolded while workers were actively bargaining for a collective bargaining agreement. The NLRA requires that employers and unions bargain in “good faith” by adhering to certain obligations. Failing to meet these obligations qualifies as an unfair labor practice (“ULP”), which is unlawful under the NLRA. Cement-mixer drivers in Washington, represented by the Teamsters Union and employed by Glacier Northwest, grew frustrated with the pace of bargaining and voted to strike by walking off the job— a common form of labor action protected by the NLRA. On the day of the strike, drivers scheduled to report to work early arrived as usual, loaded their trucks’ drums with cement, and conducted their morning deliveries. When the clock struck the coordinated [read more]

(Source) In recent times, the Supreme Court has faced record low approval ratings and a series of controversies. Despite this increasing unhappiness with the Court’s performance, there is not much the American public can do to change how the Court operates. The Court is incredibly insulated from public opinion and the political process. Justices serve for life and set their own ethical standards. Unlike the rest of the federal judiciary, no code of conduct explicitly applies to Supreme Court Justices. This state of affairs has led to concerns about impartiality, especially as related to the Justices’ spouses’ political and business activities. Given this reality, the Supreme Court should adopt a code of conduct for itself. A code of conduct will help maintain uniform standards of impartiality and help avoid impropriety. The most recent ethical controversy plaguing the Court surrounds Chief Justice John Roberts’ wife’s recruiting work. Jane Sullivan Roberts works at the legal recruiting firm Macrae and has received six-figure commissions for helping place top legal talent at law firms. Politico reported that some of these firms have argued cases before the Supreme Court, but the Chief Justice has never acknowledged these specific conflicts of interest or recused himself due [read more]

(Source) Title 42 expulsion during Pandemic Section 265 of the Public Health Service Act (42 U.S.C. § 265) promulgated that when the CDC determines by reason that there is a communicable disease in a foreign country and that if the suspension of the right to introduce the persons and property into the United States is in the interest of public health, the CDC shall have the power to prohibit, in whole or in part, the introduction of such person or property into the United States. Since March 2020, the CDC issued public health emergency order and allowed rapid expulsion of border crossers, which include asylum seekers, without a hearing which overrides immigration law that allows Asylum seekers to enter without authorization and apply at the ports of entry. The grant of asylum is purely discretionary, and even if the asylee established a well-founded fear of persecution under Title 8, they may still not be allowed to stay. When such asylum seekers are removed, they will typically be deported to their home country, where they allegedly will face persecution and torture. Such removal might violate International Convention Against Torture (“Torture Convention”) and Federal Statutes and Regulations (8 C.F.R § 208.16) if the claimed persecutions were true. Moreover, [read more]

(Source) Fremont High School in Oakland, California used to have the highest rate of suspension in its district, 1 in 3 students dropped out, and only 1 in 4 students qualified to attend public college in California.  But since the Oakland Unified School District (OUSD) made a $2.5 million investment to expand its restorative justice program throughout the district in 2017, incidents leading to suspension have dropped dramatically and the number of students who qualify for college admission has “nearly tripled.”  OUSD is one of several school districts throughout the country to adopt restorative justice practices as an alternative to retributive justice over the past two decades.  David Ryan Castro-Harris of Amplify RJ defines restorative justice as “a philosophy and set of practices, rooted in Indigenous teachings, that emphasize our interconnection by repairing relationships when harm occurs while proactively building and maintaining relationships to prevent future harm.”  Restorative justice conferences bring together people who have caused harm, those who have been harmed, and stakeholders from the surrounding community.  All involved parties have the opportunity to share their experience and how the harm affected them before collaborating to find an appropriate solution.  Quantitative research suggests that these practices have a positive [read more]

                                                                                                           (Source) January 25, 2010 marked the day when Live Nation, the largest producer of live concerts in the world, and Ticketmaster Entertainment, the world’s leading live entertainment ticketing and marketing company, completed their Department of Justice-brokered merger. At the time, officials touted the fact that the merger would encourage competition and drive ticket prices down. However, since then, Ticketmaster’s prices more than tripled over the past two decades. Today, various estimates show that Ticketmaster controls ticketing at 70-80% of major concert venues in the United States. The reality was that in 2010, two giant entertainment companies joined together to create a behemoth, dubbed Live Nation Entertainment. Rather than encourage competition, Live Nation stifled it, and its sway on the market allowed new subsidiary Ticketmaster to continuously increase ticket prices. A monopolist is a firm with significant and durable market power, but merely possessing monopoly power is not [read more]

                                                                                                            (Source) Although voting is the centerpiece of our democratic process, it is not a right that all Americans exercise. According to a Pew Research Center study of fifty countries, the United States ranks around the middle in turnout in national elections among people of voting age. There are many proposed legislative solutions to increasing voter turnout, but among the most bold is making Election Day a federal holiday. The history of Election Day is actually one of convivence. The first Tuesday after the first Monday in November was chosen as the date for federal elections back in the nineteenth century in order to facilitate voting. November occurred after the harvest but before the worst of the winter storms, and Tuesday meant that people did not have to vote on Sundays or Wednesdays, reserved for church and market day respectively. However, as modern life has evolved, the [read more]