Judiciary

How Clearing Criminal Records Puts People to Work

CityLab: “There are nearly 70 million Americans with a prior arrest or conviction. The mark on their record follows them around, sometimes for 30 or 40 years.”

“Enter expungement, sealing, and set-aside. These legal terms sometimes refer to different processes state to state, but they end with the same result: prior offenses not showing up on background checks for employment. Depending on the state, a criminal record can effectively remove every right a citizen has—like the right to vote, serve on a jury, run for office, or even travel internationally. Going through expungement restores those rights.”

“A recent study put the national cost of the employment penalty for former prisoners and those convicted of felonies at $78 to $87 billion annually.”

Police Spy Tools Evolve Faster Than Lawmakers Can Keep Up

Bloomberg: “In late October, a group of Maryland legislators met with police officials, attorneys, privacy advocates, and policy analysts to discuss creating a legal framework to govern aerial surveillance programs such as the one the Baltimore Police Department had been using to track vehicles and individuals through the city since January.”

“The Baltimore surveillance program broke new ground by bringing wide-area persistent surveillance—a technology that the military has been developing for a decade—to municipal law enforcement. The police department kept the program secret from the public, as well as from the city’s mayor and other local officials, until it was detailed in August by Bloomberg Businessweek. Privacy advocates, defense attorneys, and some local legislators called for the program to be suspended immediately, until the technology could be evaluated in public hearings.”

ACLU attorney David Rocah: “What this program has done is that it has brought home the reality that the nightmare is here, and if we don’t act, it will be too late.”

The Constitutionalism of Trump’s Crony Capitalism

Greg Weiner: “As bad as the economics of the Carrier shakedown may be—and it is entirely unclear in which direction the shaking went down, except to note that a supply of rents tends to create a demand for them—the constitutional politics are far worse.”

“Presidential intimidation (threats of ‘consequences’) of individual companies is the very definition of coercion applied to an individual. Section 301 of the Trade Act of 1974 appears to authorize the President to take measures against countries that inhibit American commerce. Trump is threatening, here, to slap self-destructive 35 percent tariffs on individual companies that facilitate commerce.”

“The only apparent way the President could target individual companies would be by rewriting the 1974 statute by way of deliberate misinterpretation: in other words, presidential unilateralism. Consequently, this may well be the first test of Congress’ capacity to stand up for its own statutes against the other political branch.”

Fake News May Not Be Protected Speech

Noah Feldman: “In the free marketplace of ideas, true ideas are supposed to compete with false ones until the truth wins — at least according to a leading rationale for free speech. But what if the rise of fake news shows that, under current conditions, truth may not defeat falsehood in the market? That would start to make free speech look a whole lot less appealing.”

“But to take the marketplace metaphor seriously means admitting that sometimes, markets fail. Holmes himself gave us the most famous example of market failure when he said, in a different 1919 case, Schenck v. United States, that even ‘the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.'”

“The question is whether government regulation of fake news would be justified and lawful to fix this market failure. Obviously, it would be better if the market would fix the problem on its own, which is why attention is now focused on Facebook and Google. But if they can’t reliably do it — and that seems possible, since algorithms aren’t (yet) fact-checkers — there might be a need for the state to step in.”

Obama White-Collar Overtime Pay Mandate Blocked by Judge

Bloomberg: “An Obama administration policy that would have given more white-collar workers overtime starting Dec. 1 was blocked nationwide by a federal judge in Texas.”

“The decision Tuesday is a victory for 21 states and dozens of business groups that sued, complaining the new rule would increase government costs in their states by $115 million next year alone and would put private employers on the hook for millions of dollars more, possibly leading to layoffs.”

Is Brexit Over After Today’s British High Court Ruling?

Quartz: “A huge obstacle just landed in the way of Brexit.”

“The UK’s High Court has ruled that the government cannot trigger Article 50—the official notification to leave the European Union—without a vote in Parliament.”

“Could this stop Brexit from happening?”

“Theoretically, yes. That’s because—assuming the government doesn’t win its appeal—a bill to trigger Article 50 will now have to pass through both houses of Parliament; there is a small chance that it might not.”

“That said, lawyer Joylon Maugham thinks there is little or no enthusiasm’ in Parliament for rejecting a bill that goes against the wishes of people as expressed by the result of the referendum. There is, however, enthusiasm to scrutinize whether the May’s negotiations with the EU are satisfactory enough before Article 50 is triggered.”