JOL Online – Page 8 – Harvard Journal on Legislation

The Coming Collapse of the Paris Climate Agreement

By - August 16, 2017

The Coming Collapse of the Paris Climate Agreement

By Bryan H. Druzin [*]

I. Introduction

Now that the Trump administration has abandoned the Paris Climate Agreement, the question is whether the agreement will collapse. A strong case can be made that it will indeed unravel—perhaps not immediately, but eventually. Although the world’s leaders have been quick to reaffirm their continued resolve to implement the agreement,[1] the problem is that multilateral environmental agreements are uniquely fragile because their value depends directly upon the number of states that are party to it and the collective perceptions that surround this. Environmental agreements have a certain “all or nothing” quality to them. For example, an agreement to reduce carbon emissions between only two states provides little value. The value of the same agreement, however, increases dramatically with twenty, ninety, or 195 governments in hand. They are thus extremely reliant on unanimity of agreement and uniquely sensitive to the loss of it.

This is why it was so vital that the Paris Agreement lock down the participation of all the states in the international system.[2] For all of its flaws, the Paris Agreement had the strength of unanimity. Countries that remain in an environmental agreement while other states pull out understandably grow reluctant to assume the burden of their commitments.[3] Because of this, withdrawal—particularly of a major player such as the U.S.—can create a knock-on effect, causing other states to follow. A slow trickle can become a flood. This dynamic renders multilateral environmental agreements extremely “tippy” and highly susceptible to collapse.[4] For international environmental cooperation to succeed, everyone needs to be onboard and everyone needs to stay onboard.

Many hold hope that the U.S. will ultimately not withdraw from the Paris Agreement, noting that under Article 28(1) the U.S. cannot exit the agreement until three years from the date on which the agreement entered into force for the party, which in the case of the U.S. was November 4, 2016. Article 28(2) mandates that withdrawal will then take effect one year after notification is received, putting the earliest date of actual withdrawal after the next presidential election, which is to be held on November 3, 2020.[5] However, this ignores that, while not yet manifest, the process of collapse has in fact already begun. The issue now is whether further erosion can be prevented. Because the agreement depends so much on international unanimity, the Paris Agreement was dealt a potentially fatal blow the moment the U.S. signaled its intention to withdraw.

The Mathematics of Constitutional Failure

By - June 23, 2017

The Mathematics of Constitutional Failure

By Carrie Leonetti [*]

The federal courts were intended as anti-democratic structures.[1] Their interpretations of the federal constitution were supposed to be a counterweight to the excesses of the other two “democratic” branches.[2] The problem with this system is that the other two branches of government are not democratic. No one likes math less than I do, but the anti-democratic nature of our government only becomes apparent if one runs the numbers.

Begin with Congress. The Senate was designed to be less than democratic, as a concession to regional, states’-rights interests.[3] Its seats are decided not in proportion to electoral votes, but rather with an equal number of seats for each state, regardless of population.[4] California, the most populous state, has almost 39 million people. Wyoming, the least populous, has fewer than 600,000. Both get two Senators. So, in the Senate, the vote of each person in Wyoming counts for roughly sixty-seven times as much as the vote of each person in California.

This has ideological consequences. The high-population states, whose votes are diluted, tend to be “liberal” (California, New York, Illinois). The rural states, whose votes are supercharged, tend to be “conservative” (Wyoming, North Dakota, Alaska). So, the Senate ends up being not just unrepresentative geographically, but ideologically, as well.

What is “Disabled?”: Ménière’s Disease and the Americans with Disabilities Act (ADA)

By - February 22, 2017

What is “Disabled?”: Ménière’s Disease & the Americans with Disabilities Act (ADA)

By Thomas Tobin, JD ’16, Harvard Kennedy School MPP ’16[*]

The Americans with Disabilities Act (ADA) prohibits American employers from discriminating against individuals due to disability.[1] As a threshold matter, individuals bringing suit under the ADA’s anti-discrimination provisions must demonstrate that they are “disabled.” While individuals with Ménière’s Disease often suffer impairments to their personal and professional lives, are they “disabled” for purposes of the ADA?[2] Legal precedent provides prescient lessons for individuals with Ménière’s Disease as they seek relief for alleged discrimination or unfair termination at work.

Ménière’s Disease often manifests itself in unpredictable, episodic attacks of nausea and vertigo. While Ménière’s Disease is a progressive, long-term condition, many individuals may experience remission for several months and even years between attacks.[3] Unfortunately, the episodic nature of Ménière’s Disease created a challenge for many individuals in proving their “disabled” status under the ADA.

The ADA does not provide protection for “every individual with an impairment who suffers an adverse employment action.”[4] Individuals bringing suit must prove by a preponderance of evidence that they have a disability.[5] “Disabled” status is defined by statute and occurs when an individual suffers from “a physical or mental impairment that substantively limits one or more of the major life activities.”[6] Hearing, walking, and working are among the statutorily-defined major life activities that may be potentially affected by Ménière’s Disease.[7]

In order to prove a “substantial impairment,” an individual must demonstrate that the impact of the “disability” is permanent or long-term.[8] American courts often follow a long-standing rule that intermittent manifestations of disease processes are insufficient to establish a substantial limitation on a major life activity.[9]

Simply being diagnosed with Ménière’s Disease is not sufficient to warrant “disabled” status under the ADA.[10] In Perkins v. St. Louis County Water Company,[11] a construction worker suffering from Ménière’s Disease was repeatedly absent from work and claimed that several of his absences were due to the disease. The worker’s condition caused permanent hearing loss and occasional episodes of vertigo and vomiting. Even though Ménière’s-related episodes caused the worker to miss over two-and-one-half weeks of work, the court ruled that it was insufficient to render him unable to do his job or limit his major life activities.[12] While Perkins could conceivably be read to foreclose the ability of Ménière’s Disease patients from attaining “disabled” status, one judge in the three-judge panel went so far as to specifically note that Ménière’s Disease is not “outside the bounds of disability per se.”[13]

Plaintiffs with Ménière’s Disease have, at times, struggled to marshal adequate evidence to prove their “disabled” status. In one case, a public school teacher sought accommodation for Ménière’s Disease so that she could avoid excessive walking and ascending stairs. [14] Treatment notes found that her problems with Ménière’s Disease were exacerbated by stair-climbing and rocking. Still, her supervisors “openly questioned the nature and existence of her ailments.”[15] Ultimately, her case was dismissed for insufficient evidence that the teacher suffered from a disability that substantially limited a major life activity.[16]

In McGuire v. Miami-Dade County, a computer technician with Ménière’s disease alleged that her condition caused seizures and problems with her mobility and balance.[17] She described her limitations thusly,

I lose balance. I have to lay down. I am dizzy. I vomit a lot. Those are the attacks, but in general when I handle this condition, most of the time I’m dizzy and, at some point, noises start to bother me.[18]

The federal court was unconvinced that the limitations of the employee’s Ménière’s disease were more than temporary.[19] The court called the worker’s allegations “vague” as they did not explain with adequate specificity exactly how her condition affected her or she was affected in comparison to that of the average person in the general population.[20]

Whether an individual is “disabled” is a fact-specific inquiry, often necessitating case-by-case judgment by the courts.[21] Even if a court accepts that Ménière’s Disease is a disabling condition, it must further find that the impairment substantially limits an individual’s major life activity, such as hearing or walking.[22] Ultimately, the court must be convinced that it is a disabling condition rather than an individual’s conduct that resulted in the discriminatory action.[23] The story of Patricia Brennan provides insight on what plaintiffs should guard against when approaching the courts regarding Ménière’s Disease claims.

Illinois social worker Patricia Brennan suffered from Ménière’s Disease, complaining of dizziness, decreased hearing in one ear, vertigo, and loss of balance.[24] She was subsequently terminated, and she brought suit against her former employer claiming it had failed to accommodate her disability. The Brennan court and the parties did not dispute that Ménière’s Disease was an impairment, but they contested whether Brennan was “disabled” as a result of the condition. Even as her doctor had characterized her hearing loss in her left ear as “severe,” the court claimed that she had:

offered no evidence to show how that loss affected her overall ability to hear in comparison to that of an average person in the population, whether the loss was mitigated by the use of a hearing aid and whether, when the loss occurred, it was expected to be temporary or permanent.[25]

The court went on to note that she had an operation restoring her hearing after she was dismissed from her job. Moreover, the court declared that the social worker’s ability to walk was impaired during episodes of vertigo, but the record showed that her walking was not impaired when she did not have vertigo.[26] The court dismissed her claim for insufficient evidence.

It is an unfortunate reality that individuals may suffer from employment discrimination due to their Ménière’s Disease. In order to prevail in court and prove their claim, they must demonstrate evidence of how they are affected by the condition. It is often necessary to provide sufficient evidence to (a) establish that one has Ménière’s Disease and (b) demonstrate how it is disabling in order to prove “disabled” status.

For example, a utility worker at a tire plant was found to suffer from hearing loss and tinnitus after multiple tests. [27] His employer was required to conduct annual hearing tests, the standard threshold shift test, to determine whether the plant caused its workers permanent hearing loss.[28] This worker was dismissed from his job after his employer claimed that he falsified the hearing tests. The court found there was sufficient evidence that he did not adulterate his test results. Instead, he suffered from Ménière’s Disease which would explain his abnormal test results.

In another case, a bank teller in Ohio suffering from Ménière’s Disease was subjected to teasing at work for her vertigo and hearing loss.[29] Even while her hearing loss was self-described as “profound,” the teller’s colleagues and supervisors were “snickering and laughing.” From the available evidence, the court concluded that the teller’s hearing loss was permanent, not temporary.[30] Her former employer claimed that the teller’s non-use of a hearing aid was proof that her hearing could have otherwise been controlled and was not disabling. In this case, the teller testified with specificity and had corroborating doctors’ notes that showed that her Ménière’s Disease had caused total hearing loss in her left ear, a reduction of her hearing in her right ear, and vertigo and constant tinnitus.[31] According to the teller, a hearing aid would be “of no value.”

Ultimately, whether an individual is “disabled” is a fact-intensive inquiry for the courts. To prove that one is “disabled” due to Ménière’s Disease under the ADA means to prove by a preponderance of the evidence that it affects one or more of an individual’s major life activities. Future claimants can learn from past precedent, which all too often has found insufficient evidence to prove “disabled” status. To increase the odds of prevailing, future claimants should assemble available medical evidence to substantiate and corroborate their listing of symptoms, document the extent of their limitations to fundamental life activities due to Ménière’s Disease, and communicate clearly the extent of these limitations to court officials, especially in a deposition. Further, a best practice would have an expert, such as a physician or audiologist, detail specificity exactly how Ménière’s Disease has affected the individual in comparison to that of the average person in the general population.

Obtaining “disabled” status under the ADA is a threshold issue to achieving its statutory protections. The episodic nature of Ménière’s Disease can create a significant barrier for individuals to avail themselves of the ADA’s relief. Such barriers may be especially high if defendants attempt to confine Ménière’s-related impairments to an intermittent manifestation of a disease process not worthy of “disabled” status.[32] By detailing the extent of these impairments, future plaintiffs can express their arguments in terms of major life activities and better present evidence before the court to surpass this critical threshold. In doing so, claimants can further educate courts about the disabling nature of Ménière’s Disease for many individuals and specifically how it has affected them. Documenting the disabling nature of their condition can assist individuals with Ménière’s Disease in obtaining “disabled” status.

[*] Tommy Tobin recently served as Instructor of Law at UC Berkeley’s Goldman School of Public Policy, where he taught a module on food law and policy.

Churches are not Places of Public Accommodation

By - November 28, 2016

Churches are not Places of Public Accommodation [*]

By Caleb C. Wolanek, JD ’17 [**]

On September 1, the Massachusetts Commission Against Discrimination stated that churches would be subject to the Commonwealth’s “public accommodation” statute.[1] Although Attorney General Maura Healey some time ago slipped “houses of worship” onto her website’s list of places of public accommodations[2] (even though churches are nowhere listed in the public accommodations statute),[3] the Commission’s September 1 “Gender Identity Guidance” boldly stated that “[e]ven a church could be seen as a place of public accommodation if it holds a secular event, such as a spaghetti supper, that is open to the general public.”[4]

But the Commission does not get to write the law—the legislature does. And the text and history of Massachusetts’s nondiscrimination statute shows that churches are not places of public accommodation and are thus not subject to the nondiscrimination statute.[5]

1. The Massachusetts law historically regulated businesses.

Consider the statute’s history. As the Supreme Court noted in 1995, early common law required that “innkeepers, smiths, and others who made a profession of public employment” practice nondiscrimination.[6] Similarly, Professor Joseph Singer writes that “[a]ntebellum law imposed a duty to serve the public on common inns and on common carriers. . . . [I]t “also characterized other businesses as ‘common callings,’ and based the duty to serve the public on the fact that a business had held itself out as open to the public.”[7]

In 1865, Massachusetts was the first state to codify this duty when it prohibited racial discrimination in “any licensed inn, in any place of public amusement, public conveyance or public meeting in th[e] Commonwealth.”[8] The Commonwealth soon expanded the statute to include theatres,[9] skating rinks,[10] and finally any “other public place kept for hire, gain or reward.”[11]

This language was omitted in 1950 when the nondiscrimination statute started referring exclusively to “place of public accommodation.”[12] That designation had been created in 1933 to refer to a list of businesses: “any inn, . . . restaurant, eating-house, public conveyance on land or water or in the air, bathhouse, barber shop, theatre and music hall.”[13]

In 1953, the legislature adopted the current definition: “any place, whether licensed or unlicensed, which is open to and accepts or solicits the patronage of the general public.”[14] This two-pronged definition of “place of public accommodation” persists today.[15]

This history reveals that the public accommodation statute is aimed at businesses, not mere gatherings. This explains the definition’s “patronage” prong. Just as your local movie theatre might call its guests “patrons,” and just as your corner grocer might have a sign at the door saying “Thank you for your patronage,” so too does the statute single out those with customers. Although one might claim patronage means mere “support,” the statute’s history favors a business-oriented reading.[16] Indeed, although the statute regulates hospitals, clinics, and pharmacies, it only reaches those that “operat[e] for profit.”[17]

2. Church meetings are not businesses, so they are not places of public accommodations.

Simply put, churches are not businesses. Church members gather to encourage and admonish one another as they live out their faith; they do not meet to sell goods or services. Although churches often accept donations, these are used to facilitate the religious mission (such as feeding the hungry or paying the church electric bill). These are not business transactions. Indeed, the IRS recognizes that there is no quid pro quo involved with these donations—as demonstrated by the fact that they are tax-deductible.[18]

One might cite several statutory examples of places of public accommodation in an attempt to show that business patronage is not required. That argument does not succeed. The statute says that an “auditorium, theatre, music hall, meeting place or hall, including the common halls of buildings,” is a place of public accommodation.[19] But this seems to refer to something like a convention center. In those places, including in the “common halls” (which I read to mean “lobby”), persons who rent space and then sell admission (or sell products therein) must practice nondiscrimination. But a church, acting as a church, typically does not sell admission or products. Even if a church hosts a spaghetti dinner that is open to the public, it is not a restaurant.

Two other examples are a “boardwalk or other public highway” and a “public library, museum or planetarium.”[20] To be fair, neither of these usually charges admission. But these are also usually government institutions. Government libraries and museums need not be labeled places of public accommodation because they are actually public—that is, society as a whole owns them. Even when private citizens own a public library or museum (and do not charge dues or admission), they are organized for the express purpose of allowing the public to use those facilities. And even then, a transactional element remains in libraries: one may take the book only with permission, and they must either bring it back or pay a fine. A church is not that kind of an institution. Churches are gatherings of the faithful, not businesses.

3. Community use does not transform churches into places of public accommodation.

But perhaps the Commission is not attempting to restrict what churches do when they gather as a church. After all, the example the Commission gave was that of a “secular” spaghetti dinner. It might have also looked at when a town uses a church building as a polling place on Election Day, or a local piano teacher uses the main hall for a recital. Perhaps the Commission attempts to apply the nondiscrimination statute to those activities.[21]

But this approach does not succeed. After all, the mere fact that an event does not involve preaching or prayer does not make the gathering non-religious.[22] A more realistic position is that churches are pervasively religious.[23] Therefore, imposing a nondiscrimination requirement actually does inhibit religious activities.

Indeed, the very motivation for opening the church building to a “secular” event might be religious in nature.[24] This is because a church does more than teach from sacred texts. It also tries to embody those teachings—such as the common admonition to love one’s neighbors. This results in community service. Holding the church building out as a safe and comfortable space is a way to love the neighborhood.[25] But because the church is motivated by its faith, it will almost certainly be selective when allocating the use of its property. (This selectivity would also undermine the “openness” prong of the statutory definition.) A traditional mosque or Southern Baptist church would probably not host a beer festival, and it is hard to imagine many churches hosting an atheist convention.

4. Interpret the law to avoid First Amendment violations.

Even assuming the statute’s applicability is ambiguous, we should read the text in a way that avoids a First Amendment violation.[26] Although nondiscrimination is an important goal, so too is enforcing the First Amendment.

Enforcing nondiscrimination raises serious free exercise concerns. After all, if telling a church it must not fire a minister violates the Free Exercise Clause (because it infringes on the church’s autonomy to preach its message),[27] would it not also violate the Constitution to prohibit what those at a church gathering may say? There are also freedom of speech[28] and freedom of association[29] issues. The Commission should avoid, not invite, these conflicts.[30]

5. Conclusion

Public accommodation laws are well-intentioned; their goal is to ensure that all citizens have equal standing in society and public life. But these laws should not infringe on freedom of conscience. Therefore, churches should not be considered places of public accommodation. The Commission should let them be, not threaten them with a statute enforced by fines and jail time.

Churches are physical embodiments of religious convictions. Telling a church that it cannot act on its beliefs—that it must accept the presence of perceived wrong in its midst—seriously hinders the church’s mission. Worse still, it risks forcing compliance for the sake of compliance—something I thought we abandoned long ago.[31] The First Amendment protects church autonomy from state intrusion by means of a “wall of separation.”[32] Massachusetts should not breach that wall.[33]

[*] This article was updated on December 14, 2016, to reflect movement in the lawsuit discussed.

[**] J.D. Candidate, Harvard Law School; B.A. in Political Science, Auburn University. Josh Craddock helped me identify several arguments to make. Any remaining errors are, of course, my own. In the interest of disclosure, I note that I have supported several of the groups that filed the Horizon Christian Fellowship v. Williamson lawsuit mentioned below.

Making Cities Work

By - November 2, 2016

Making Cities Work

By Nino Monea JD ‘17

National elections dominate the news. But precious little policy is actually coming out of Washington these days. And officials there are often disconnected from our daily lives. At the local level, the challenges of how to run an effective city may appear more mundane on the surface, but that does not mean they are less important, or less complex.

Among the most persistently vexing questions that local leaders face is how to attract families and businesses. In January, professors from Wayne State University and Michigan State University published a working paper that found that virtually all trendy economic development strategies employed by cities over the past several years, such as building casinos, are not the driving force behind growth.[1]

Many cities attempt to spur economic growth using unproven techniques. Casinos are a perfect example of economic snake oil. In Atlantic City, lawmakers successfully pushed casinos on a skeptical population with the promise that the casinos would dedicate 2% of their annual revenue to the “health and well-being” of the city.[2] After being built, the casinos were able to subvert the “health and well-being” part of the deal through a legal loophole.[3] Much like the slot machines that they peddle, casinos usually have long odds for the city.

Rather than creating long-term growth, these sorts of projects often amount to little more than spitting matches between states. In 2013, then-Texas Governor Rick Perry made headlines for buying television ads in California encouraging businesses in the Golden State to relocate to Texas.[4] The end result is not that new jobs are created; they are simply relocated.[5]

Last year, Boston fervently attempted to win its bid to host the 2024 Olympic Games. The bid was vigorously opposed by the community group No Boston Olympics, which pointed out that the average price tag to an Olympic host city is $15 billion.[6] The group also cited research that shows Olympic Games are bad investments. In fact, there has never been a profitable one, unless accounting tricks are used to gin up the numbers, such as counting subsidies from the government as revenue.[7]

At least Boston had a relatively happy ending, as the community activists ultimately won and forced the city to drop its bid,[8] and so the city did not end up losing any money. The same cannot be said for Brazil, which hosted the 2014 World Cup. The country spent $600 million to build a massive stadium in the rainforest city of Manaus that was used for all of four games.[9] Another World Cup stadium cost Brazil $550 million and is now being used as a parking lot.[10] This is a tremendous waste, given that, in Rio de Janeiro alone, over 200,000 people lack adequate housing.[11]

Of course, not everything in life can be measured in dollars and cents. There can be perfectly legitimate reasons to invest in public projects that do not return a profit. The Hubble Space Telescope has not earned a dime, but that doesn’t make its photos any less stunning, or the knowledge about the universe that we have gained from it any less profound. But at the same time, if the goal of a project is explicitly to bolster economic growth, municipal leaders need to be upfront about what works and what does not.

In addition to being honest about which projects work, we also need to ask whom the projects are working for. In Detroit, casinos did honor their agreement to hire at least 51% Detroit residents, but several years after their development, there was no black representation in the casinos’ ownership, and the entry-level workers saw lower-than-expected wages.[12] Moreover, the promise that the casinos would deliver $73 million for minority- and women-owned businesses never came to be.[13]

In Boston, wealthy developer John Fish appeared to be the principal beneficiary from hosting the Olympics. Although he pledged to not bid on any projects, he said he would pursue contracts with transportation and college building agencies that would likely see upgrades in preparation for the games.[14] Conversely, many areas around the state would not have seen any investments from the Olympics.[15] Even worse, in Brazil, hundreds of thousands were displaced when their communities were bulldozed to make way for the gleaming new stadiums.[16]

So is there anything that cities can do? According to Professor Laura Reese, a co-author of the economic development report from January, the solution is straightforward: “[j]ust run a good basic city.”[17] To do this, city leaders should invest in things such as education, which is more strongly connected to economic growth.[18]

While investing in public schools and basic municipal services probably is not as glamorous as a shiny new development project, it is a sounder strategy. It is no secret that there are tremendous benefits of early childhood intervention programs —particularly in low-income communities. A Rand Corporation survey of well-designed early childhood intervention programs found a litany of benefits ranging from higher academic achievement to lower delinquency and crime rates, and even greater success in the labor market down the road.[19] The return on every dollar invested ranged from $1.80 to a whopping $17.07.[20] The studies tended to the largest returns when long term benefits, such as careers and reductions in crime.

The benefits of a strong education system can also have benefits for people other than the individual students. For all of the efforts municipal leaders take to woo businesses with one-time investments or tax breaks, companies often want a trained workforce – something education is crucial to accomplish. That explains why local auto dealers have donated equipment to help with vocational training programs at Arizona high schools.[21] They see it as a way to help increase the number of skilled technicians in the area that they hope to later hire.[22]

More broadly, a report from researchers at Napier University in Edinburgh examined what factors businesses consider when deciding to locate or relocate. They found that some of the most important factors were a well‑educated workforce and low crime rates.[23] On a similar note, the U.S. State Department has put together a list to help its employees decide where to live when they are deployed on tours to new locations. It urges families to consider social networks, career opportunities, and educational opportunities.[24]

This should not come as a surprise. When families and businesses have to make long-term decisions, they look at the fundamentals, not frivolities.

Rather than putting all of a city’s eggs in one basket, the better course is to focus on core issues that have widespread appeal. Nearly everyone wants good schools, safe communities, and robust municipal services. If a city gets these things right, people and businesses will come, and entertainment venues that the community wants will naturally flow from that.

All this goes to prove the wisdom of Lee Brice’s advice on the secret to success: “Don’t outsmart your common sense.”[25]