Amicus, Freedom of Expression

Rick Perry Tests the Limits of the Establishment Clause (Again)

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Texas’s policy fails to distinguish itself from past Texas schemes rejected by courts, and it fails to pass muster under the Establishment Clause precedent of the Fifth Circuit and the Supreme Court. Perry’s personal conduct is even more out of bounds. In his advocacy of a purportedly neutral piece of legislation in such sectarian terms, he has crossed the line between accommodation of religion and active advocacy — and it is not the first time the governor has done so.

Amicus, Courts & Judicial Interpretation, Poverty and Economic Justice

Statutory Rights, Related Regulations, and the Bounds of “Interpretation”

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In the wake of Gonzaga Univ. v. Doe, in which the Supreme Court entrenched a tight-fisted test for whether Congress has guaranteed a statutory right to individuals, the lower courts have felt out the bounds of a new doctrine piecemeal. Recently, in Shakhnes v. Berlin, the Second Circuit held that at least in some cases where Congress confers a right with bounds set by flexible standards – as opposed to hard and fast rules – and a regulation subsequently “defines or fleshes out that right” by imposing a rigid rule, the statute provides the “source” of a right but the regulation ultimately defines the limits of what is enforceable under § 1983. The court ignored persuasive reasoning that would have provided a conceptually sounder basis for deciding the narrow issue at bar, but in so doing mitigated the unduly harsh consequences of the narrower conception of rights that would follow from such reasoning in the wake of Gonzaga.

Amicus, Labor and Employment

Wal-Mart’s Heavy Hand

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Do we have a qualifying patient? Check. Subject to a disciplinary action? Check. By a business? Check. For medical use of marijuana? Check. Open and shut: Mr. Casias was wrongfully dismissed and must be compensated. Except the Sixth Circuit didn’t see it that way.

Amicus, Poverty and Economic Justice

Google’s Privacy Policy, Revisited

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A perspective on data collection that emphasizes dignity would bring the nature of these transactions into the open . . . when this is all done secretly and without sufficient concern for the transactions that occur between parties who are all deserving of basic respect and dignity, everyone loses.

Amicus, Courts & Judicial Interpretation, Criminal Justice

Supreme Court Needs To Answer Questions Dodged In U.S. v. Jones

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Reviving the trespassory model of the Fourth Amendment, the Court in U.S. v. Jones has raised more questions about data privacy than it answered. If the mere existence and transmission of data can signal a lack of a reasonable expectation of privacy, the only way to demonstrate a subjective interest in privacy will be to go off the grid. There has to be a better way.

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