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The Beginning of the End for Public Unions

Tired of unions taking money from your paycheck every month? The Supreme Court might have the answer soon.

OLYMPUS DIGITAL CAMERAStephanie Yencer-Price provides in-home care for her daughter, who requires constant care due to certain medical conditions. Illinois pays Stephanie and many others for this type of work. In 2003, Illinois began classifying personal assistants as public employees solely for the purpose of collective bargaining. As a result, personal assistants like Stephanie had to pay “agency fees” to public unions. The problem is that Stephanie and personal assistants like her are not union members. The workers took their case against the unions all the way to the Supreme Court.

Public unions are able to extract fees from non-union members because there is a “free-rider” problem. In theory, unions represent all the workers of a company or government agency. When the union negotiates for higher pay or other benefits, all workers will obtain the benefits. However, even if some workers refuse to join the union, the benefits that the union negotiates for will still go to the non-union workers. In short, the union would be representing people who are not part of the union. To ensure that workers don’t reap the benefits of union representation without paying for fees, the Supreme Court allowed unions to collect “agency fees” from non-members in a 1977 case.

The recent case of Harris v. Quinn undermines this union structure by keeping personal assistants away from the long arm of union fee collection. The Court decided that since personal assistants are hired and fired by the people they serve – rather than the state – personal assistants are not full public employees, exempting them from union fees. This case still scares union leaders though because it could easily snowball into a national right to work.

The right to work means that each individual worker has the right to choose whether he or she wants to be represented by a union. This “right” would shield non-members from union collection fees. The Court supplied the justification for this right by ruling that coerced union fees violates the 1st Amendment.

Modern Slavery

It was bold for the Court to restrict union agency fees through the 1st Amendment, but the Court used the wrong constitutional amendment. Instead of using the 1st Amendment, the Court should have based its decision on the 13th. The 13th amendment is the amendment which banned “slavery” and “involuntary servitude” in the United States. Traditional 13th amendment interpretation defined slavery as the inability to quit work. That’s exactly what mandatory union fees are.

When a worker is hired to work for a company, the worker expects to exchange labor for the company’s money. The third wheel of the relationship, the labor union, takes a portion of the worker’s pay, regardless of how the worker feels about it. The worker can’t leave the unhappy relationship with this third party and thus the worker is forced to work on the union’s behalf.

Union proponents might say that the union is also working for the non-member worker. If the worker stops paying fees, it would the union which labors on the non-member’s behalf without ability to stop. The problem with this argument is that the union is not directly laboring for the non-member. The union bargains with the employer and the employer is the one giving the benefits. In contrast, the non-union worker who is forced to give up fees is directly contributing to the union’s coffers.

Tesla Motors Will Release Its Patents – Should Other Companies Do the Same?

Elon Musk, Chief Executive Officer and Chief Product Officer of electric car producer Tesla Motors, recently announced that Tesla will release its patented technology to the public. Accompanying the announcement, Musk had harsh words for the patent system:

“When I started out with my first company, Zip2, I thought patents were a good thing and worked hard to obtain them. And maybe they were good long ago, but too often these days they serve merely to stifle progress, entrench the positions of giant corporations and enrich those in the legal profession, rather than the actual inventors.”

tesla motors elon muskMusk further commented,

“After Zip2, when I realized that receiving a patent really just meant that you bought a lottery ticket to a lawsuit, I avoided them whenever possible.”

The patent system was created to encourage innovation by granting inventors the exclusive right to sell or practice a product, design, or process. But Tesla recognizes that certain companies can benefit from non-exclusivity. Musk said,

“We believe that Tesla, other companies making electric cars, and the world would all benefit from a common, rapidly-evolving technology platform.”

Tesla already enjoys a competitive advantage in the electric car space because of its pool of engineers and manufacturing facilities. Tesla needs a mainstream marketplace for its cars more than it needs exclusivity. Enter Ford, BMW, and Toyota. If the major car companies start mass-producing electric cars, Tesla will have more potential customers, and it will encourage companies to build charging stations and other infrastructure necessary for electric cars to flourish. If Tesla’s technology platform becomes the industry standard, Tesla can also sell its batteries and other components to other electric car manufacturers.

But while an open-source model may work for Tesla, inventors and start-ups trying to break into a market should continue to pursue patents for their innovations. Exclusivity can give a fledging company the competitive advantage its needs to grow, where it would otherwise be crushed by the entrenched heavyweights.

Patents have other benefits beyond exclusivity. A patent may be necessary if you intend to license your invention. If you are seeking investment, a patent may make your company more attractive to investors or venture capital firms. Patents can also be sold or used as collateral for loans or other financing. Musk admits that Tesla used its patents to obtain financing in the early days of Tesla.

Other innovative companies, like Apple, have aggressively defended their intellectual property, most notably through its recent high-profile lawsuits against Samsung over mobile phone technology. It remains to be seen whether other tech giants will follow Tesla’s lead. But for the majority of inventors and start-ups, a patent continues to be the tried and true way to bring new ideas to the market.

Police Need a Warrant to Search Your Cell Phone

In 1973, the U.S Supreme Court held that police do not need a warrant to look inside a pack of cigarettes found in the pocket of a man who had been arrested. This decision was decided for the safety of an officer and to prevent concealment or destruction of evidence.

police need a warrant to search cell phonesJump forty years later to 2014. In the case Riley v. California, the U.S Supreme Court unanimously ruled that the police need search warrants to search the cell phones of people they arrest. This decision was made to help define the Fourth Amendment, which affirms “the right of people to be secure in their persons, houses, papers, and effects from unreasonable searches and seizures” in absence of a warrant.

This decision determined that a person’s cell phone contains more information than a person’s house. A person therefore has a “reasonable expectation of privacy” for the contents in their phone and police should not be able to search an arrestee’s cell phone without voluntary consent or a valid search warrant.

The U.S Supreme Court’s ruling makes total sense in regards to today’s high technology and the arrival of the smartphone. Nine out of ten adults in America own a cell phone and an average person has 33 apps installed. These apps contain email, pictures, bank records, intimate conversations, medical data, and GPS information.

Although officers can generally search any container within an arrestee’s car, a cell phone bears little resemblance to traditional containers. Allowing the police to freely search a person’s cell phone without a warrant would be a significant invasion of privacy, which is excessive and unreasonable under the Fourth Amendment.

Hobby Lobby Hurts Women’s Rights and the First Amendment

In the Supreme Court 5-4 decision for the Hobby Lobby case, the court determined that corporations are exempt from a contraceptive mandate of the Affordable Care Act (ACA) under the Free Exercise Clause of the First Amendment. Specifically, the Court relied on a federal law known as the Religious Freedom Restoration Act (RFRA) to defeat the provision in the context of religious objections to women’s contraceptives.

Victory-for-Hobby-Lobby-Blog-GraphicTo be clear, this decision wasn’t surprising. RFRA is arguably implicated, and when the government infringes on the free exercise of one’s religion, they have a very high burden to meet in order to justify their actions. But being unsurprising doesn’t mean this decision is a very good one.

From the outset of this lawsuit, it seemed like everyone immediately took a side. On one side, a fundamental foundation of this country is religious freedom. On the other side, every woman should have access to adequate healthcare, free from the burden of another’s religious beliefs. While in every lawsuit there is always a party that does not prevail, the problem with this case getting to where it did is that no matter how the decision would be handed down, everyone would lose.

How Does Everyone Lose?

To get a full understanding as to why this decision won’t really benefit anyone in the long run, it’s necessary to understand a little about RFRA. The RFRA was enacted in 1993, a few years after the Supreme Court handed down a decision called Employment Division v. Smith. Smith was the last in a string of cases encompassing a principal that a law would survive constitutional scrutiny as long as the law was neutral and applied to all citizens, religious or not, in the same way.

Put simply, the Court viewed the First Amendment‘s protection of the “free exercise” of religion as a shield and not a sword, meaning religion shouldn’t be a reason not to obey generally applicable laws. Or, in the words of the majority Court, allowing “the professed doctrines of religious belief superior to the law of the land” would essentially “permit every citizen to become a law unto himself.”

However, the public was generally outraged by this decision, and Congress vowed to fixed it. Congress’s cure was to write RFRA, and in doing so didn’t overrule Smith, but added an older standard to the equation, making a neutral law unconstitutional if it imposed a substantial burden one’s free exercise of religion.

Fast-forward twenty years. President Obama’s ACA has just passed, and with it, the contraceptive mandates at issue. Congress left it to the Department of Health and Human Services and health experts to determine approved contraceptive methods, making them less of a draconian mandate than simply well reasoned medical science. Plus, the businesses could always opt out and pay a tax. In any event, the owners of the stores successfully sued. People are expectedly outraged, and Congress has vowed to fix the problem. Again.

Sounds familiar, doesn’t it? There’s a saying: “a band-aid for a bullet-wound.” Only in this situation, the band-aid caused an infection requiring major surgery, which will undoubtedly have more complications. Sticking with the metaphor, the best solution is clearly to not get shot, but if you are, treat the wound properly.

Here, this means the Court should have stayed out of it, and according to 4 of the 9 justices, they quite easily could have. RFRA has been on the books 20 years now, and has rarely been litigated, because in reality many of these issues can be disposed of before going to the Supreme Court. This is another example of a case that could have avoided going as far as it did, but unfortunately, is instead going on the books as bad law.

Why Was This a Bad Decision?

Glad you asked. Here’s why:

1. It’s Unstable – First, this decision is unfavorable because it’s a clear demonstration of the ebb and flow of popular opinion influencing the supreme law of the land. As a country that has seen some bitter battles over slavery, racial equality, women’s rights, and now healthcare reform and gay rights, this is something we need to be particularly wary of. Allowing elected officials to carve out exceptions and add conditions to fundamental rights can have serious and unintended consequences, and make those fundamental rights less stable or less powerful as applied to certain groups.

To be fair, it can be argued that popular opinion established many of the rights listed above in the first place. However, that assertion misses the point; those rights were not the result of popular opinion opposing judicial decisions, but were instead reactions to protests, blood, sweat, and tears. In fact, this decision is a great example as to why Congressional reaction to popular opinion can lead to bad law. RFRA was enacted as a reaction to an unpopular Court opinion, has ironically now become the basis for this unpopular Court opinion, and even more ironically, has created the likelihood that Congress will step in again to write more laws, creating more exceptions to fundamental rights, all to appease their voting constituency.

2. New Corporate RightThe Supreme Court could have avoided this case altogether by simply saying that nowhere in their decades of First Amendment jurisprudence does a for-profit corporation have protection to “exercise” it’s religion. Instead, with this decision, the Court effectively said for-profit corporations can share the religious beliefs of their owners, giving such corporations a brand new right. For those unfamiliar with corporate law, this is backwards mainly because a primary purpose of incorporating is to create a new entity, thus limiting the liability of the owners. After this decision, owners may still avoid personal liability for the majority of lawsuits filed against the corporation, but can now make religious objections on behalf of the corporation. Additionally, non-profits already exist for this type of religious corporate personhood; are we to now assume for-profit corporations can claim tax-exempt status for religious purposes? Clearly not, but you see the point. This type of pick-and-choose, piecemeal set of protections, rights, and exemptions is dumbfounding, and feels arbitrary, at best.

3. Women’s Health Is Now Too Burdensome – Though the Court assumed the government has a compelling interest in protecting the health of women and fostering more options in their decision to become parents, they ultimately decide that the government, by requiring employers to pay for some type of contraceptive, hasn’t found the least restrictive way to meet that interest. The Court then offers a few suggestions, all of which will ultimately cost taxpayers much more than the individual corporate owners would have been on the hook for, or are simply not equipped to effectively handle being the main contraceptive choice for women. The standard the government had to meet is a notoriously high, and is really only defined by what does not measure up. Lawyers can now add “women’s health and contraception” to the list of things that are not important enough for the government to limit religious practices of a few in order to protect.

4. Tension Within the First Amendment  – If the government adheres to this decision and allows religions that do not believe in contraception to be exempt, then the result will be in complete and obvious tension with the Establishment Clause, the forgotten First Amendment cousin of the Free Exercise Clause. Without getting too deep into this point, the government cannot pass or enforce laws that respect the establishment of a religion or show favoritism to one belief over another. By allowing some religious beliefs to be exempt from a law, that law is, in essence, doing exactly what the Establishment Clause seeks to forbid.

What’s Next?

In the wake of this decision, our country may quickly find itself in a minefield of confusion and uncertainty, which is the opposite of what Supreme Court jurisprudence should accomplish. Moreover, the blame for this confusion will likely be shifted along political party lines and lead to a new law with new exceptions favoring some, but ultimately hurting the rights of the people in this country as a whole.

Legal Analysis of Jay-Z’s 99 Problems

Jay-Z’s 99 Problems was a hugely popular song when it was released. Taking a close look at the lyrics, however, I can’t help but to notice all the legal errors that are present concerning the Fourth Amendment. What’s more concerning is how many people hold those misunderstandings, too. Hopefully this blog can clear things up.

Jay-Z 99 Problems“The year is ‘94 and in my trunk is raw. In my rearview mirror is the m*********ing law. I got two choices y’all, pull over the car or bounce on the double put the pedal to the floor. Now I ain’t trying to see no highway chase with jake. Plus, I got a few dollars, I can fight the case.”

Here, Jay-Z describes having drugs in a trunk and seeing a police cruiser attempting to pull him over. He then goes over his options: pull over, or speed away. Since he knows he can hire a lawyer, Jay-Z presumably knows the law well enough to know that running is never a good idea. A high-speed chase itself will give the officer an independent basis to arrest him and search his person, impound the vehicle, and search every inch of it as well. On the other hand, a traffic stop, at worst, leads to a potentially unlawful search, which any competent criminal defense attorney should be able to suppress.

“So I pull over to the side of the road. And I heard “Son, do you know what I’m stopping you for?” “Cause I’m young and I’m black and my hat’s real low? Do I look like a mind reader, sir, I don’t know. Am I under arrest or should I guess some more?”

So the driver wisely chose to pull over. By submitting to a show of police authority, the Fourth Amendment has officially been triggered. Next, the officer approaches his window, and asks him if he knows why he was pulled over. This is an important question we’ve all heard. Every stop needs to be predicated on reasonable suspicion, and every search on probable cause. If there isn’t any, the stop and search, respectively, are not valid. At this point, the driver should start taking mental notes, or, better yet, telling the officer he will be recording the conversation.

However, the driver doesn’t ask for any sort of cause, but just lists unfortunate stereotypes. When it comes to making traffic stops, the Supreme Court does not have a problem with profiling as a portion of the officer’s subjective determination, so long as it isn’t solely racial, and there are objective, specific and articulable reasons for the stop in the first place.

He does say and do some smart stuff. Saying “I don’t know” to an officer is always better than admitting guilt or trying to talk yourself out of something. Additionally, asking “am I under arrest” is maybe the most important question someone in his position can ask. If the officer were to tell Jay-Z’s driver he was not under arrest, yet looked around the car anyway, the search would be illegal unless the officer can demonstrate probable cause for the search itself. His next response to the officer, however, is not so smart.

“Well, you was doing fifty-five in a fifty-four. License and registration and step out of the car. Are you carrying a weapon on you, I know a lot of you are.” “I ain’t stepping outta s**t all my paper’s legit.”

Regardless of how minor the infraction is, the stop is lawful. Jay-Z’s driver was speeding. Thus, he cannot refuse to comply with a lawful command of a police officer who has lawfully detained him. Refusing to do so is essentially asking to be arrested.

Moreover, the officer may have had a lawful reason for asking him to step out of the car, such as a protective weapons search. This kind of search also applies to the vehicle itself, so if the officer has a specific reason to believe the vehicle has weapons, the officer can perform a protective search where weapons may be readily accessible.

I know it may sound bogus, but as long as the stop is lawful, the officer can order Jay-Z’s driver (and any passengers) to step out of the car, and arrest him for refusing to do so. Moreover, depending on the circumstances, the officer may also be justified in patting down Jay-Z’s driver and performing a limited weapons search of the car.

“Well do you mind if I look around the car a little bit?” “Well, my glove compartment’s locked, so is the trunk, and the back. I know my rights so you’re gonna need a warrant for that.” “Aren’t you sharp as a tack, you some type of lawyer or something, somebody important or something?” “Nah I ain’t pass the bar but I know a little bit, enough that you won’t illegally search my s**t.”

Luckily, it seems as though the officer in this song doesn’t know criminal procedure very well either, and no one is arrested. So, ignoring the trouble Jay-Z’s driver already could have got himself into by refusing to comply with a lawful order, his response to an officer asking to look around the car is spot on. As a general rule, never consent to search. Consenting to search obliterates challenging a search as lacking probable cause. This is not being rude or uncooperative, it is simply exercising your Fourth Amendment right. Jay-Z’s driver does just that. However, he expresses it poorly.

What his response does express well is a fundamental misunderstanding about the law. Put simply, locking your glovebox, trunk, and back doors will NOT require the police to get a warrant before searching them. In fact, pursuant to the Supreme Court case California v. Acevedo, there is essentially no warrant requirement for automobiles or their compartments. All the police need is probable cause that evidence of a crime will be found within. There are a few hypothetical situations where a warrant may still be required, but for our purposes—and Jay-Z’s—the warrant requirement is completely irrelevant.

“We’ll see how smart you are when the K-9s come.”

This line presents an interesting dilemma. The Supreme Court has held dog sniffs of automobiles are not a search. Therefore, if Jay-Z’s driver was pulled over by a K-9 unit, and the dog was immediately on hand, walked around the car and alerted officers to the “raw” in the trunk, he’d be sunk.

However, here the officer says “when the K-9s” come. Well, here is another situation where the officer doesn’t seem to know the law very well. Police officers cannot detain someone longer than necessary to facilitate a dog sniff. So, if he pulled Jay-Z’s driver over for speeding, he could only lawfully detain him long enough to get his identification, run his license, and process a ticket. Anything further would be an illegal detention, or would require an independent basis justifying detaining the suspect longer. Here, the cop doesn’t seem to have a leg to stand on. Even if the K-9 sniff uncovered all the drugs in the trunk, they’d be suppressible.

Jay-Z then ends with the hook. Of all the 99 problems his driver has, knowledge of his legal rights seems to be one, too. But, that’s admittedly not very catchy.