A Step Back for Pregnant Women: A Misinterpretation of the Pregnancy Discrimination Act of 1978
By Michelle Travis
The Fourth Circuit recently took a step backwards for pregnant women in the workplace when it misinterpreted the Pregnancy Discrimination Act of 1978 (PDA) in Young v. UPS. Because this ruling sets us back 35 years to a pre-PDA era when courts tolerated blatant pregnancy discrimination, I joined an amicus brief with Legal Momentum and other employment discrimination scholars urging the United States Supreme Court to grant certiorari to review the Young case and resolve the resulting circuit court split on the proper interpretation of the PDA.
Congress enacted the PDA to overturn judicial interpretations of Title VII that had excluded pregnancy discrimination from the law’s prohibition against discrimination on the basis of sex. The PDA has two parts. The first establishes that pregnancy discrimination is indeed a form of sex discrimination. The second requires employers to treat pregnant women “the same for all employment-related purposes…as other persons not so affected but similar in their ability or inability to work.” Although the second part was intended to prevent employers from using pregnancy to exclude women from workplace benefits, the Fourth Circuit’s ruling allows employers to engage in precisely that form of sex-based discrimination.
Adapting to Climate Change in the United States: Seven Principles for Achieving Fairness
By Alice Kaswan
As the waves rolled over New Jersey, New York, and much of the Atlantic seaboard during Hurricane Sandy last fall, climate scientists’ austere graphs predicting severe climate impacts suddenly popped to life. While we don’t know whether that particular hurricane was “caused” by climate change, we do know that climate scientists predict intensifying hurricanes, heat waves, and wildfires, as well as more extreme precipitation (in some areas) and droughts (in other areas), along with, of course, the slow march of rising sea levels and retreating shorelines.
The impacts of climate change do not fall equally. That is obvious on a global level, where low-lying countries, like Bangladesh and small island states, face inundation, while poor equatorial countries face devastating heat and droughts. It is less obvious, but still true in the United States, where poor and marginalized communities without sufficient financial and social resources will face significant challenges adapting to the changing climate. While catastrophes appear to affect everyone equally, they are much harder on those who lack the resources to prepare and to cope.
Mexico: Too Big to Fail
By Bill Ong Hing
As President Obama visits Mexico to discuss, among other things, U.S. immigration reform, it's too bad that members of Congress who are involved in drafting legislation have left out a key ingredient to addressing undocumented immigration from Mexico: investing in Mexico in order to create jobs and ease the need for migrants to cross the border to seek employment. Apparently, the Obama Administration gets this. Ben Rhodes, an Obama deputy national security adviser, has acknowledged, "If the Mexican economy is growing, it forestalls the need for people to migrate to the United States to find work."
The fact that the Congress and the White House are tackling comprehensive immigration reform is good news for the estimated 11 million undocumented immigrants in the United States and their supporters. However, if the package does not include at least the first steps toward helping Mexico improve its economy and infrastructure, undocumented Mexican migration will not be solved permanently.
A Darkening Cloud Hangs Over Guantanamo
By Peter Jan Honigsberg
President Obama said at his news conference yesterday, "I continue to believe that we've got to close Guantanamo." He then added, "Congress determined that they would not let us close it."
Unfortunately, the president's comments are misleading. Congress may have passed the legislation to make it more difficult to close Guantanamo, but President Obama signed it. And he signed it more than once. He signed it each time Congress renewed the legislation. In addition, Obama has refused to work with Secretary of Defense Chuck Hagel to issue waivers that would allow for the release of prisoners, such as the 86 men who have been officially cleared for release years before.
Obama could have closed Guantanamo had he had the tenacity to follow through on his promise to close the detention facilities four years ago. Instead, not only did he not close Guantanamo but, three months ago, he shuttered the State Department office charged with finding homes for the men. He seems to have abandoned his commitment to close the detention facility.
In Guantanamo, Obama’s Promise of Hope Has Transformed Into Hopelessness
By Peter Jan Honigsberg
Over the past several weeks, the media has covered hunger strikes in Guantanamo. The coverage suggests that the military has interfered with the detainees' Korans, causing the detainees to respond with hunger strikes. As of March 26, it is unclear how many men are refusing to eat. The officials claim 31 out of 166 detainees, while the detainees' lawyers argue that a much larger group of men, perhaps even a majority, are participating in the hunger strikes. Because there is disagreement as to how many meals constitute a hunger strike, it is very difficult to determine an actual figure.
The military also acknowledges that 11 men are currently being force-fed. Twice a day, nutritional shakes are poured into tubes inserted through the men's nostrils and into their stomachs, while the men are strapped securely in restraint chairs. Three other men who are fasting have been hospitalized and are fed intravenously.
Obama ‘Doubled Downed’ with Drones while Notorious Interrogator Apologized
By Peter Jan Honigsberg
Damien Corsetti was an interrogator at the Bagram Air Force Base in Afghanistan in 2002, where, according to The New York Times, he was known as the “King of Torture.” In 2006, he was prosecuted for alleged abusive treatment he committed while an interrogator, but was acquitted. Nevertheless, he told our Witness to Guantanamo project that he had mistreated his prisoners.
When he began working in summer 2002, Corsetti believed in what he was doing. He thought they were all guilty and, like most Americans, he was angry. He explained how he had obtained information regarding several alleged plots through his interrogations in time for the U.S. to intervene and prevent the incidents from occurring. He saved American lives.
In the months that followed, however, he and other interrogators began to have doubts about their work. They asked a Judge Advocate General, or JAG lawyer, for advice. The JAG attorney assured them that their actions were legal because the Bush administration had decided not to adhere to the Geneva Conventions. After hearing the JAG assessment, Corsetti felt obligated to follow orders.
The Side Effects of Abortion Restrictions
By Maya ManianFor the Conference on Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries
State personhood laws pose a puzzle. These laws would establish fertilized eggs as persons and, by doing so, would ban all abortions. Many states have consistently supported laws restricting abortion care. Yet, thus far, no personhood laws have passed. Why? I am currently writing an article that offers a possible explanation. I suggest that voters’ recognition of the implications of personhood legislation for health issues other than abortion has led to personhood’s defeat. In other words, opponents of personhood proposals appear to have successfully reconnected abortion to pregnancy care, contraception, fertility, and women’s health in general. Public concern over the “side effects” of personhood laws seems to have persuaded even those opposed to abortion to reject personhood legislation. If this is so, personhood opponents may have struck on a strategy that could apply more broadly. Various anti-abortion regulations—not just personhood laws—have deleterious “side effects” on women’s health. Focusing the public’s attention on these side effects could not only create stronger support for access to abortion care but could also better promote the full spectrum of women’s healthcare needs.
Mixed Messages on Medical Marijuana
By Julie NiceCalifornia Supreme Court at University of San Francisco
USF School of Law had the great pleasure of hosting oral arguments of the California Supreme Court this morning as part of the school’s centennial celebration. The arguments did not disappoint, as USF students, staff, and faculty were treated to a very lively exchange among the justices and the lawyers arguing before them. A decision about whether local governments can ban medical marijuana dispensaries hangs in the balance.
State laws protect qualified patients and their caregivers from prosecution for medical marijuana cultivation and use. But zoning laws of the City of Riverside ban medical
marijuana dispensaries as public nuisances. The case before the state’s highest court focuses on whether state law “preempts” local governments from exercising their
traditional authority to regulate land use. Unfortunately, the state has given rather mixed messages about protecting medical marijuana users while also not stepping on local toes.
This morning the justices lobbed some tough questions at lawyers for both sides. But it seemed like an especially uphill battle for the lawyers representing the medical marijuana dispensary, Inland Empire Patient’s Health and Wellness Center. This is because the State Constitution expressly protects local governmental power to regulate for the benefit of the public welfare, including by enacting zoning regulations that restrict land use. Moreover, state courts presume that local regulations are valid, unless state law clearly preempts. So the burden to prove state preemption rests heavily on the medical marijuana dispensary.
Clearly the state legislature could have expressly preempted local bans on medical marijuana dispensaries, but simply did not do so. Instead, state law appears to leave
plenty of room for local governments to exercise much of their traditional regulatory power. One key question the justices asked is whether the local government’s power to
regulate an activity includes the power to totally ban the activity. J. David Nick, attorney for the dispensary, answered that it does not. While some justices appeared skeptical
of his response, one justice later noted that the definition of the power to regulate was indeed “debatable.” Mr. Nick otherwise relied heavily on one of the stated purposes of
the state law to protect the availability of medical marijuana in a uniform and consistent manner among the counties.
As for the city’s lawyer, Jeffrey Dunn, the questions seemed a bit more forgiving. Some justices pressed him about the state law’s stated purpose of making medical marijuana
available with consistency and uniformity among the counties. Other justices probed whether the protection of “cultivation” for medical use includes “distribution” or not.
While state law protects cultivation, Dunn insisted, it does not protect distribution. Now the California Supreme Court must interpret the mixed messages within state law, including deciding these definitional questions about whether regulation includes prohibition and whether cultivation includes distribution. Given the presumptive thumb on the city’s side of the scale, the arguments did not give much comfort to the dispensary.
Although the outcome remains uncertain, what the state highest court’s session demonstrated most clearly was the strength of an independent judiciary in action. The justices were highly engaged in asking probing questions of both sides. As they sparred with each lawyer, the real conversation seemed to be the one between the justices.
Whatever the decision, the state’s highest court won’t necessarily have the last word. If voters don’t like the result, they can press state lawmakers either to clearly preempt local bans or to clearly allow local bans. In the end, it’s entirely up to the state to either allow continued local experimentation or to establish a uniform statewide stance. The state just has to say so.
Isolated Inside the Administration
By Peter Jan Honigsberg
People who have been following the cycle of violence after 9/11 -- in particular the human rights and rule of law violations that occurred in the detention center in Guantanamo Bay, Cuba -- are aware of the solitary confinement and isolation abuses that were endemic to Guantanamo. Isolation and its pernicious effects, however, did not only exist in Guantanamo. In the system of injustice that speaks to the decade following 9/11, high-ranking officials in the Bush administration who did not step firmly in line with the Bush/Cheney policy of torture and disregard of the rule of law were also isolated.
Certainly the isolation endured by the high-ranking government and military officials was not of the mental ruination, mind-numbing and sensory deprivation kind that the detainees suffered at the naval base detention center. Nevertheless, high-ranking officials in the Bush administration who preserved their integrity and adherence to the rule of law – and thereby stood in conflict with Bush administration policy – were isolated and marginalized from policy-making decisions.
Class Certification Standard and the U.S. Supreme Court
By Joshua DavisThe United States Supreme Court recently heard oral argument in a case, Comcast Corp. v. Behrend, involving the standard for class certification. I drafted an amicus brief on behalf of the American Antitrust Institute and the American Independent Business Alliance.
The decision to certify a class can determine the outcome of litigation. Often, the stakes in an individual case are too small for its prosecution to make economic sense. Class certification allows a small number of plaintiffs to sue on behalf of a much larger group, giving rise to economies of scale. As a result, unless a court certifies a class, a defendant may be able to get away with violating the law simply because no one can afford to challenge its conduct in court. So changes in the class certification doctrine can have significant consequences. But those consequences can be difficult to predict because of the complexity of class certification doctrine.