Supreme Court on unions: Could have been worse, but still not good

July 8, 2014

Supreme Court Justice Antonin Scalia could have ridden to the rescue of public employee unions in Harris vs. Quinn, the important labor rights case the Court decided Monday, as some scholars thought he might. But he didn’t.

“The dicta in Harris about Abood is serious, and it shows that some number of Justices would like to overturn Abood,” writes Benjamin Sachs, a labor law expert at Harvard Law School. In other words, there might be a plurality to overturn Abood, but not a majority. Sounds like a hairsbreadth escape for Abood, this time.

Breyer’s Greatest Triumph Over Scalia

July 8, 2014

An op-ed by Cass R. Sunstein. The U.S. Supreme Court’s historic decision on recess appointments has been treated as a big loss for the Barack Obama administration. That’s narrow thinking, in terms of the arc of constitutional law and the system of separation of powers. A look at the actual opinions shows that the most important questions in the case produced a sharp split between Justice Antonin Scalia’s approach to constitutional interpretation and that of Justice Stephen Breyer — long Scalia’s principal intellectual adversary. The outcome was an unambiguous victory for Breyer.

Alito’s Day in Court

July 8, 2014

An op-ed by Noah Feldman. Chief Justice John Roberts’ announcement yesterday that Justice Samuel Alito would deliver both of the Supreme Court final decisions for the term marked a personal triumph for Alito. Thus far, his year at the court had been relatively quiet. He’d for the most part refrained from any dramatic concurrences or dissents — as though keeping his powder dry for Burwell v. Hobby Lobby, the biggest religious-liberty decision in years.

Supreme Court Keeps the Faith in Hobby Lobby

July 8, 2014

An op-ed by Noah Feldman. Today, in the U.S. Supreme Court’s much-anticipated Hobby Lobby case, swing Justice Anthony Kennedy tried to cut the unborn baby in half. He joined four conservatives, signing a majority opinion written by Justice Samuel Alito stating that closely held corporations are exempt from the Affordable Care Act’s contraceptive mandate.

Court Doesn’t Kill Unions. Yet.

July 8, 2014

An op-ed by Noah Feldman. Labor unions lost a legal battle today as the U.S. Supreme Court held, 5-4, that “partial” public employees can’t be required to contribute to unions to cover the cost of collective bargaining. The unions averted, for now, a far greater disaster: the possibility that the court would reverse its precedent and hold that no public employees at all can be made to contribute to unions’ collective-bargaining costs. That result could’ve broken many public unions. But the sword of Damocles still hangs over them.

How to Train an NSA Watchdog

July 8, 2014

An op-ed by Susan Crawford. We are witnessing another swing of the pendulum in the way the U.S. conducts surveillance. This time, to ensure that National Security Agency programs remain effective without violating people’s privacy, Congress needs to ensure that the NSA is subject to better judicial oversight.

Facebook’s mind game was a violation of trust

July 8, 2014

About 700,000 of Facebook’s one billion or so users recently served as test subjects in a psychology experiment. Researchers altered the users’ “news feeds” — the news stories and photos that roll across everyone’s Facebook’s home page…The clearly marked ads we understand — nothing hidden about that agenda. But for everything else, “people really are trusting them to be acting more or less in their interests,” said Harvard law professor Jonathan Zittrain…The US does not have anywhere near the same attitude toward regulating the Internet as Europe, and even if we were to adopt tougher restrictions here, Zittrain points out those would likely violate the companies’ First Amendment right to publish what they choose. So Zittrain suggests an alternative — Internet gatekeepers would voluntarily agree to abide by ethical standards similar to what doctors, lawyers and financial planners pledge. Those standards would codified in the companies’ terms of service, so they would be legally bound to follow them.

Nasty medicine

July 8, 2014

POISON pills are again being dispensed by corporate America with all the enthusiasm of an exterminator in a rat-infested basement. The metaphorical rodents nowadays are not just hostile bidders—the pests that the poison-pill defence was designed to exterminate, back in the 1980s—but in some cases shareholders simply trying to change the way companies are run…Lucian Bebchuk, a Harvard law professor and campaigner for corporate-governance reforms, calls this “pernicious”: the board would be seeking to stifle legitimate debate among the owners of the company by making it hard to build a majority for change.

Money Is Raised; Now Lessig’s Super Pac Must Win

July 7, 2014

The “super PAC to end all super PACs” reached its fund-raising goal in just over two months, but now comes the hard part: winning elections. The Mayday PAC, a project begun May 1 by the Harvard Law School professor Lawrence Lessig, seeks to elect a Congress that will achieve “fundamental reform in the way political campaigns are funded by 2016,” beginning with five pilot races in this year’s House elections. In a July 4 posting to supporters after announcing the PAC reached its goal, Mr. Lessig wrote, “You have guaranteed” change.

Hilary Clinton’s Real Challenge

July 7, 2014

An op-ed by Cass R. Sunstein. Consider this hypothesis about modern presidential elections: Whenever American voters elect a new president, they choose someone who is, along a critical dimension, the antithesis of the incumbent. The Incumbent Antithesis hypothesis, as I’ll call it, fits recent history, and it may be correct. If so, it suggests a real challenge for the next Democratic nominee, even if it is Hillary Clinton — perhaps especially if it is.