Tag Archive for 'supreme court'

California Supreme Court: Managers Do Not Need to Ensure That Employees Take Breaks

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California has a long history of liberal and progressive politics, particularly when it comes to protecting the rights of employees. And while the state legislature has passed a wide range of laws meant to protect employees, the California Supreme Court has also played a significant role in the development of many employee-friendly policies that California employees often take for granted.

So, a recent ruling from the state’s high court comes as something of a surprise, whether you agree with the ruling or not. The Court held that California employment law does not require employers to make sure that employees actually take the breaks to which they are legally entitled.

It’s important to note that the right of all employees in California to take at least a 30-minute meal break during a standard shift, and their right to two 10-minute breaks for every four hours worked, has not been affected. If an employer were to try and stop an employee from taking their legally-mandated breaks, there would be trouble.

What the state Supreme Court did here was resolve a question that, until now, created some uncertainty for employers. The law was not clear on whether or not employers had to actually order their employees to take the breaks to which they are entitled.

In its ruling, the court essentially says that, while employers are required to offer a minimum amount of break time to their employees, the law cannot dictate what the employees actually do with that time, and if they choose to spend it working, that is their right.

I’m of two minds about this decision. On one hand, I think it leaves the door wide open for abuse, especially of employees who don’t know much about their rights under California employment law. An employer could simply “forget” to inform his or her employees that they’re entitled to breaks, and if they eventually get sued for failing to offer their employees break time, they could simply claim that the employees chose to work through their breaks. And in many cases, it would be difficult to prove otherwise.

Groups that advocate for strong protections for workers are understandably concerned that this ruling could turn into an easily-exploitable loophole in California’s worker protection laws, which are otherwise some of the strongest in the country.

On the other hand, I recognize that it would be impractical for the law to micromanage the behavior of employees on their breaks, and while the law should protect employees, ensuring that they are paid at least a minimum wage, that they have a reasonably safe work environment, and that they have breaks to ensure that they don’t become overly fatigued on the job. All of these protections tend to be good for both employees and employers in the long run. The benefits for the employees are obvious. But for the employers, having healthy employees who aren’t fatigued because they’ve been working non-stop for 10 hours can actually save them money, mostly by reducing the rate at which accidents occur, thereby reducing workers’ compensation expenses.

However, the law cannot accomplish these goals by micromanaging every little detail of how employers implement them. Doing so would be expensive, impractical, and would probably bury employers and employees in unnecessary bureaucracy.

So, how do I feel about the California Supreme Court’s ruling in this case? Honestly, I doubt it will change much for the vast majority of employees. The fact is, the majority of employers in California make a good-faith effort to comply with federal and state employment law, and probably took steps to ensure that their workers took the breaks to which they are legally-entitled.

And it’s important to note that if this ruling has a significant negative impact, with abuses taking place at a much higher rate than expected, the state legislature can always update the law to overrule the Supreme Court on this issue.

After all, in this case, the court was simply interpreting the law passed by the state legislature. If this ruling has unintended effects, or the legislature believes that the court made the wrong decision, they can simply change the law to make it clear that employers are, in fact, required to ensure that their employees actually take their breaks.

However, I doubt that this will prove necessary.

As I said, I think that most employers will not change their practices in response to this ruling.

As long as employers are clear that this ruling does absolutely nothing to compromise the rights of their employees to take breaks, and are certain to inform their employees that they have a right to take breaks, and do not try to stop them from doing so, things should be fine.

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Supreme Court Upholds Strip Searches For Any Crime

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As you’re probably aware, the Supreme Court is soon going to rule on a case that I’ve heard is kind of a big deal.

But this Supreme Court term has been marked by several other important cases that, in any other year, probably would have gotten front billing on the law blogs. For example, a few days ago the Supreme Court upheld a policy implemented by New Jersey jails that requires full strip and body cavity searches of everyone who is arrested and processed at the jail, no matter how minor the crime for which they were arrested.

And remember, at the point where a person has been arrested and booked at the local jail, they usually haven’t yet been convicted of a crime, or even formally charged with one. And, as I’m sure you know, we have a principle in the American legal system that’s often referred to as “innocent until proven guilty.” That generally means that a person can’t be punished or subjected to undue hardship in response to an alleged crime until and unless they’re convicted.

Obviously, there are some commonsense balancing acts that need to be performed: a suspect can be held in jail while they’re on trial if they’re deemed to be a threat to the public, or a flight risk. Also, measures to protect the safety of jail personnel and other inmates can be taken, including searches and confiscation of any items that might be considered dangerous.

However, this ruling appears to shift that balance sharply in favor of law enforcement even more than it already was.

Personally, I think that this decision was probably unnecessary. Jail authorities already have a good deal of discretion to search anyone who’s incarcerated if they have even the slightest reason to believe that they might be smuggling weapons or contraband into the jail. Likewise, any hint that the inmate might pose a safety threat to jail staff or other inmates can be grounds for a complete search.

However, the justices who dissented in this case noted that people arrested for relatively minor crimes, like shoplifting or DUI, are generally perpetrated by people who pose no significant threat to society, and are usually nonviolent. Also, those crimes are almost never premeditated, meaning that the people who commit them don’t wake up in the morning anticipating that they’ll be in jail before the day is out.

All this adds up to the obvious conclusion that someone who’s arrested for a minor crime committed on an impulse has almost certainly not gone to any lengths to conceal weapons or drugs in their body cavities, or anywhere else on their person.

Of course, some people will argue that the fact that a person “almost certainly” doesn’t have a weapon means that “there’s still a chance!

But the liberties that many of us take for granted all come at a cost: for every freedom we enjoy, there’s going to be a few people who will abuse that freedom. For example, we could probably reduce domestic violence and many other types of crime by installing surveillance cameras in every home. But we aren’t going to do that, nor should we. As a society, we’ve decided that the right to privacy is worth the cost that comes with the fact that it’s relatively easy for people to commit crimes in their own homes.

Likewise, I don’t think there’s anything inherently wrong with accepting the much, much smaller risk that a person arrested for shoplifting has a weapon hidden in a body cavity, in exchange for the right to not be subjected to such indignity as a matter of course, even before you’re convicted, or even charged, with no particular suspicion that you’re even trying to smuggle something into the jail.

So, although the Supreme Court has said that this practice is permitted under the Constitution, I hope that authorities in other parts of the country refrain from adopting it. Again, this is not to say that intrusive searches are never justified. Obviously, any reasonable suspicion that a person might be smuggling something into the jail would be grounds for that type of search.

I think this whole case illustrates a serious problem that’s come up in recent years: if you come out in favor of civil liberties, you’re accused of being “soft on crime.” And no politician or judge wants to give that impression. And once a measure like this is implemented, it’s very unlikely to be discontinued. For example, even though there’s ample evidence that most of the “security” measures taken by TSA are extremely costly, and do little to nothing to make flying any safer, there’s virtually no chance that any of them will be discontinued. Why? Because somebody would actually have to make the decision to do so.

And the next time there’s a significant security breach, whoever chose to “loosen” security would probably get the blame for it, regardless of the actual cause.

I don’t pretend to have an answer to this problem. I’m not disputing that we sometimes need to balance freedom and security. But maybe, just maybe, we could use a little more common sense when doing that balancing act.

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Health Care Reform: On Life Support, But Not Dead Yet

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On March 28, the Supreme Court wrapped up 3 days of oral arguments in what might be its most important case in decades. It just heard a challenge brought against the Patient Protection and Affordable Care Act, also known as the healthcare reform law we’ve been hearing about nonstop for the last two years.

Now that we’ve gotten a small hint of what the justices think about the law, based on the questions they asked during arguments, what do we know? The only thing that’s completely certain is that we still don’t know how this is going to turn out. The court isn’t expected to rule on the case until sometime in June. But by all accounts, things didn’t go well for the Obama administration, which was defending the law.

The law’s opponents probably shouldn’t pop the champagne just yet. But its supporters might want to have some whiskey on hand, come June.

One analyst described the proceedings as a “train wreck” for the Obama administration. Justice Kennedy, widely considered the swing vote on which the healthcare reform will stand or fall, asked the government’s lawyer some very pointed questions which seemed to betray his skepticism of the law’s constitutionality.

Before I go any further, here’s a very brief recap of the issues: the stated goal of the Affordable Care Act (ACA) is to increase the number of Americans who have health insurance coverage. There are several means by which Congress could have gone about achieving this goal. The method it chose is a so-called “individual mandate.” Basically, the law, when and if (and after today, that looks like a really big “if”) it goes into effect, insurance companies will be prohibited from turning away customers because of pre-existing conditions. But if this rule were in place by itself, it would simply encourage people to hold off on buying health insurance until they actually get sick, at which point their treatments would be covered. Obviously, this would either cause premiums to skyrocket, or insurance companies to simply go out of business.

So, to get around this problem, the law also requires almost all Americans to obtain health insurance (either through their employer, a government program, or buying it directly), or pay a tax penalty each year. The idea is that this would bring a large number of young and healthy people onto the insurance rolls. These people are very profitable to insure, because, on average, they don’t sustain nearly as many medical expenses as other populations. These increased profits would, in theory, offset the added expense of ensuring people with pre-existing conditions.

And this so-called “individual mandate” is the central issue of the constitutional challenge to the law. Basically, under the constitution, the federal government is one of enumerated powers, meaning that it can only engage in activity which is expressly permitted by the Constitution, and forbidden from doing everything else. One of the powers granted to Congress in the constitution is the power to regulate interstate commerce. Over the years, the Supreme Court has read this to mean that Congress can pass laws regulating almost any activity that has some conceivable effect across state lines. Given the interconnected nature of a modern economy, this gives Congress the power to regulate almost anything. However, Congress has never before required individual Americans to buy a product or service, as the ACA does. Although the powers of Congress under the Commerce Clause are broad, everyone agrees that they are not unlimited. Opponents of the ACA are now arguing that this is where we should finally draw the line.

And at the end of the third day of oral arguments, it appeared that at least 4 Supreme Court justices agreed with the opponents of the law, plus Justice Kennedy appearing to lean in that direction. The 4 liberal-leaning justices appeared firmly in favor of letting the law stand.

However, all is not lost for supporters of the ACA. While things aren’t currently looking good for it, there’s still a chance that it will be upheld. In his questioning of the government’s lawyer, Justice Kennedy seemed to hint that he might be open to analyzing the mandate under a stricter standard of review than other federal regulations. It would remain to be seen whether or not the insurance mandate would meet that standard.

And assuming that the individual mandate is overturned, there’s another question: does that mean the rest of the 2,000+ page law is also invalidated? Many laws contain a “severability provision,” stating that, if any single part of the law is declared unconstitutional, the rest of the law should remain in effect. The ACA, however, does not contain such a provision. So, the question the court has to consider is whether or not Congress would have passed the rest of the law

It seems pretty clear that, if the mandate is overturned, the prohibition on discrimination against people with pre-existing conditions would have to go as well, since it simply isn’t viable without the mandate. As to the hundreds of other provisions in the law, there’s a good chance that they’ll stand.

In the end, however, this is just me reading the tea leaves. We’ll find out this law’s fate in June, and I’ll be sure to keep you updated.

Police Need a Warrant for GPS Tracking

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The U.S. Supreme Court’s 2012 term will likely go down in history as one of the most important and eventful Supreme Court terms in decades. It is hearing cases having to do with healthcare, immigration, and many other important topics.

And today, the Court delivered a very interesting and important decision about the 4th Amendment right to be free from unreasonable searches and seizures: it has held that, for police to place a GPS tracker (or, presumably, any other device capable of tracking a car’s location), they must obtain a search warrant. In a rare unanimous ruling, the Court held that tracking a car with a GPS device is a “search” for the purposes of the 4th Amendment. The opinion can be found here (.PDF).

The surreptitious use of tracking devices has been a very important tool for law enforcement for decades. It allows the police to see where a suspect’s vehicle is driven, and when. Obviously, this information can prove extremely useful in some criminal investigations.

The 4th Amendment to the constitution enshrines the right of individuals to be secure from “unreasonable search and seizure,” and it says that search warrants cannot be issued without probable cause. Note, however, that it does not say when a warrant is required to conduct a search, or even if a warrant is required. However, over the years, the courts have carved out a rule that seems to work pretty well: a search conducted without a warrant is presumed to be unreasonable, and therefore unconstitutional, with a few very specific exceptions (consent from the owner or resident of the property to be searched, for example).

So courts often have to determine whether or not a particular act constitutes a “search” for the purposes of the 4th Amendment. For example, courts have ruled that using infrared cameras to peer inside a person’s house constitutes a “search,” and therefore requires a warrant. On the other hand, they have held that a police officer walking by a house, and happening to see illegal activity through a window or open door, does not constitute a search, and that information obtained via such means can be used in court whether or not there was a search warrant.

So, does tracking a car via GPS constitute a search? The Court said yes. Writing for the Court, Justice Scalia boiled down his position to this: “It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information.  We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted. “

The court seems to be focusing on the fact that, in order to obtain this location information, the government had to make a significant intrusion into the private property rights of the defendant. It spent less time dwelling on the question of whether or not the defendant had a reasonable expectation of privacy with respect to his car’s location on a public road.

The Supreme Court has noted that their 4th Amendment analysis doesn’t rest entirely on the law of property. For example, an overnight houseguest at your home has the exact same 4th Amendment rights with respect to the belongings he has in your home as you would. This is the case even though he has no property interest in the home being searched. Instead, it’s the defendant’s privacy rights that the court is looking at.

However, that does not mean that property rights can’t enter the equation, as illustrated in this case.

So, what does this mean? Well, it shows that, when it comes to privacy rights with respect to the 4th Amendment, there is a lot of common ground on a Supreme Court that seems defined by 5-4 decisions falling along predictable ideological lines. Although the Justices differed on their precise reasoning, this very pro-privacy decision was unanimous.

While I’ve been critical of some of the trends the Supreme Court has been taking in recent years, the Roberts court has been pretty consistent in upholding the 4th Amendment. And this is a trend that we should all be happy about.

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Should Stephen Glass Be Allowed to Practice Law?

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Stephen Glass was a journalist for the highly-respected news magazine The New Republic. This would be an incredibly coveted position for any young journalist. So, it was to the surprise of many when it was revealed that Glass had completely fabricated several of the articles he wrote for the magazine. He was caught in 1998, and immediately fired. Obviously, he was completely disgraced as a journalist, and these days he probably couldn’t get a job sweeping the floors at a newspaper.

Over the last 10 years or so, he’s largely kept out of the public eye. While working at The New Republic, he attended law school at Georgetown University. He graduated, and passed the New York bar exam in 2000. However, because of his history of pathological lying, the New York bar refused to grant him a license, on the grounds that he lacked the moral character necessary to practice law in that state. He has spent most of the last 10 years working as a paralegal and performing in a comedy troupe, of all things.

After petitioning the New York bar for several years, he gave up on his attempts to get a law license there. He then took and passed the California bar exam, and is now facing the exact same obstacles to getting admitted to the State Bar of California.

I should note that Glass was not convicted of any crime in connection with his inglorious tenure at TNR. He was never even charged with a crime, as far as I can tell. Indeed, making up a bunch of news stories is not a criminal act.

However, a criminal conviction is not a necessary precondition for a finding that an applicant lacks the moral character necessary to practice law. State agencies tasked with licensing and regulating lawyers are free to look into every aspect of an applicant’s background, searching for conduct that reflects poorly on their character. And they should be free to do this, in my opinion.

Based on his history, the State Bar of California refused to give him a law license. So far, however, Glass has fared better in his efforts to challenge this decision than he did in New York: after a 10-day trial, California’s State Bar Court ruled in Glass’s favor, overruling the State Bar’s initial decision. The Bar Court’s appellate division upheld the trial court’s ruling in a 2-1 decision, agreeing that Glass proved, at the trial, that he had rehabilitated himself, and should be given an opportunity to practice law.

However, the Supreme Court of California has accepted the State Bar’s petition to review the decision. While the state Supreme Court is technically the final arbiter of questions relating to a California attorney’s fitness to practice law, it rarely gets directly involved in these cases, having delegated most of those duties to the State Bar, and the specialized courts it has at its disposal. This is the first time the Supreme Court of California has agreed to review a prospective attorney’s moral character in 11 years.

This indicates that the Court has serious doubts about the decision of the lower courts and, by extension, the issue of Glass’s moral character.

While I haven’t reviewed the entire transcript from Glass’s trial in the lower court, and obviously can’t see into his soul, I think the Supreme Court made the right decision in deciding to take this case, even though I haven’t formed an opinion on how it should ultimately decide.

California’s rules governing the moral character of attorneys are meant to be flexible. There are few offenses that are an absolute bar to becoming admitted to practice law in that state. Instead, the State Bar is given broad discretion, allowing it to view an applicant’s history in the most complete context possible. This also allows them to consider events that took place after the applicant engaged in some type of suspect conduct, to determine if he or she has been rehabilitated.

As I mentioned earlier, the fact that the California Supreme Court took this case (a type of case it rarely accepts) indicates that it has very serious reservations about letting Stephen Glass practice law. And while it may ultimately uphold the decisions of the lower courts, and allow Glass to practice law, I think it’s correct to take a very close look at this case.

Honesty and loyalty are very important in the legal profession, and Stephen Glass has shown in the past that he is (or was) a pathological liar. He may have some type of mental illness or personality disorder that caused his pathological lying. If that’s the case, it’s sad, and he should seek help. But that would not change the fact that a pathological liar is unfit to practice law, regardless of the root cause of their lying.

While I’m not going to second-guess the court’s ultimate decision, my gut tells me that Glass should probably not be admitted to practice law. Regardless of his subsequent actions, he’s shown that he’s capable of telling huge lies to advance his career in journalism, and that he will go to extreme lengths to cover them up. This demonstrates serious issues with his character and/or psychology.

While I think the legal profession should be open to as many people as possible, that doesn’t mean I think it should be open to everyone. Habitual liars are one group that I’m not too worried about excluding from the practice of law.

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