By: Amina Haleem
The state of American public education is in crisis. Legislative leaders are facing an uphill battle: repairing the nation’s primary and secondary public education system while attempting to appease an extremely partisan constituency. Compared to the world’s leading nations, the United States is not excelling academically. The United States is currently ranked number 10 in the 2014 World Top 20 Education Poll Official 2nd Quarter Rankings. According to the Center on International Education Benchmarking, the United States drags behind Canada, Estonia, Japan, China, and Singapore, among others, in the critical subjects of science, reading, and mathematics- areas of study the United States has been attempting to strengthen for decades.
Unfortunately, the country’s top legislators continually fail to come to a consensus on the reauthorization of the Elementary and Secondary Education Act (ESEA, previously known as No Child Left Behind law) but not for a lack of trying. In fact, both the House and the Senate have separately attempted to reauthorize the ESEA since 2007, and a number of senators have drafted several bills to do so, including Senator Tom Harkin (D- IA), and Ranking Member Lamar Alexander (R-TN). However, none of the committee markups have passed both houses. Currently, Congress is divided along party lines on education reform. In general, Republicans desire limited federal involvement by allowing local communities and states to determine academic accountability, while Democrats are more preferential to federal benchmarks for national academic standards.
The White House has also been a player in the education reform debate and has taken strides to fund its own public education programs. The Obama administration launched its Race to the Top initiative, receiving $5 billion from Congress in 2008. It dedicated this money to states that adopt strategies to promote effective teachers, rigorous assessments, improved communication, and increased educational resources. Because ESEA has yet to be reauthorized, the NCLB standards can still be legally enforced among states but all policy makers agree that the standards are too stringent and punitive to continue. One of the alternatives to those federal standards was the Common Core State Standards, a seven-year grassroots effort that began in 2009 to reform the traditional American classroom and is currently under intense criticism by state legislators and school administrators. Yet the Common Core standards has not always been so controversial. Only a few months after its release in 2010, 45 states and the District of Columbia endorsed them.
Although the Common Core State Standards aim to improve learning in public education through developing critical learning skills and student-centered teaching, many political activists and educators believe they have become tainted by federal overreach, despite originally being adopted as national standards adopted to “circumvent federal restrictions on the adoption of a national curriculum, hence the insertion of the word ‘state’ in the brand name.” Some of these standards have become piggybacked onto federal Race to the Top grants and the NCLB waivers, provoking the conservative criticism that the Common Core standards are no longer voluntary among states.
As of May 15, 2014, lawmakers from 46 states collectively introduced over 340 bills addressing college- and career-readiness education standards, including the Common Core standards. The criticism ranges from sloppy implementation to inconsistent training of teachers, providing repeal efforts by North Carolina, South Carolina, Indiana, and Oklahoma to significantly change the Common Core standards. There have also been executive orders on the issue. In particular, on May 15, 2013 the Georgia governor issued a strongly executive worded order which included the terms that “no educational standards shall be imposed on Georgia by the federal government” and “that all decisions regarding curriculum and instruction shall be made at the local level.” A legal memo from the Wisconsin Legislative Council reveals that breaking free from already-enacted Common Core standards proves to be challenging; repealing the standards could undermine the legal authority of the State Superintendent and cause the state to be “out of federal compliance”. This is because although the standards were voluntarily adopted in 2010, the state agreed to adopt the Common Core standards in its Administrative waiver from the No Child Left Behind mandates.
It is clear from the rumbling legislative debates across the country that Common Core and education policy in general, like most other national issues, is strongly divided along party lines. However, if the United States hopes to successfully achieve elementary and secondary education reform as well as become a global leader in universal subjects of math and science, the country must not only come to a consensus on basic academic standards in public education but also nationalize those standards in an agreeable way. This is what the Common Core standards attempted to do, however time has proven that the political debate over the federal government’s place in local education will continue to impede academic progress among the nation’s brightest students. In the words of Diane Ravitch, a well-known education historian, “No other nation in the world has inflicted so many changes or imposed so many mandates on its teachers and public schools as we have in the past dozen years. No other nation tests every student every year as we do. Our students are the most over-tested in the world.” In the end, American public school education continues to be the biggest casualty in the war between states and the federal government over implementation of Common Core standards.
By Tolbasiaigerim CC BY SA 3.0
By: Jeff Elkin
In 1981, the Supreme Court held in Upjohn Co. v. U.S. that a communication between a corporation’s lawyer and its employees would be protected by the corporation’s attorney-client privilege only if the employees were made “sufficiently aware that” any information they disclosed would be used to represent their employer’s legal interests (the “informed communication element”). This summer,the D.C. Circuit strayed from the precedent of Upjohn in in re Kellogg Brown & Root, Inc.(“KBR”). The D.C. Circuit held that KBR’s attorney-client privilege protected from a whistleblower’s discovery request information disclosed by KBR employees during interviews by KBR’s lawyers. The D.C. Circuit found the pivotal informed communication element satisfied by two facts: (1) “employees knew that the company’s legal department was conducting a sensitive investigation,” and (2) “employees were also told [via a blanket gag order letter] not to discuss their interviews without [permission] of KBR General Counsel.” This is a significant departure from Upjohn, where employees were sufficiently informed that their statements would be used to represent their employer’s legal interests by Upjohn General Counsel’s explicit statement (1) identifying himself as a lawyer representing their employer in a specified legal matter and (2) disclosing the “legal implications” and purposes of the questioning.
While corporate lawyers can now secure privilege in the D.C. Circuit for communications with corporate client employees simply by issuing gag orders, there is a difference between can and should. Despite KBR’s denigration of the informed communication element, lawyers remain bound by affirmative duties of legal ethics requiring them to ensure employees’ understanding of the legal purposes and potentially negative consequences of disclosing information to their employer’s attorney. Lawyers also continue to be prohibited from communicating with employees in circumstances of impermissible risk to their legal rights. These duties – codified almost identically by almost all state bar association – are prescribed by the American Bar Association as Model Rules of Professional Conduct 4.3, 1.13(f), 4.2, and 4.4. Additionally, the D.C. and New York State Bar Associations have interpreted their own versions of these duties to prohibit conduct which would secure attorney-client privilege in the D.C. Circuit.
Communication under the Model Rules of Professional Conduct
Rule 4.3, as applied to the corporate context, explicitly requires corporate counsel to inform a client’s employees of certain realities before or during communications with them. First, Rule 4.3 prohibits an attorney “dealing on behalf of a client” with an unrepresented employee from stating or implying that the attorney is “disinterested.” Second, Rule 4.3 requires corporate counsel to “make reasonable efforts to correct” an unrepresented employee who the attorney “knows or reasonably should know . . . misunderstands the lawyer’s role in the matter.”
If a misunderstanding becomes evident during lawyer-client communication, Rule 4.3 requires corporate counsel to “correct” the unrepresented employee. To “correct” a misunderstanding is to make a person’s apprehension of a situation “true, accurate, or right; to remove the errors or faults.” The understanding that must be made accurate is broader than the identity of the client and the diversity of interests between the employee and his/her employer. It also encompasses the communication’s context and the lawyer’s purpose in prompting it. Therefore, Rule 4.3 requires corporate counsel to elucidate that he/she is collecting information to represent the corporation’s legal interests and is not disinterested. See Rule 4.3, Comment .
Rule 1.13(f) explicitly requires corporate counsel to “explain the identity of the client when [corporate counsel] knows or reasonably should know that the [client corporation’s] interests are adverse to those of the employees with whom the lawyer is dealing.” To “explain” is not simply to state the name of the client, but rather to “make plain or clear; render understandable; [to] explicate.” Thus, when a lawyer at least reasonably should perceive an adversity of interests between his/her corporate client and a employee with whom he/she is dealing, the lawyer shall not simply state, but rather “explain” that the lawyer represents the corporation as an entity rather than its employees.
Further, Rule 1.13, Comment  instructs that when corporate counsel recognizes circumstances where the client’s interests “may become adverse to one or more of its employees’, [corporate counsel] should advise any [such employee] of (1)the conflict or potential conflict of interest, (2) that the lawyer cannot represent such employee, and (3) that such person may wish to obtain independent representation.” Comment  also provides that “[c]are must be taken to assure that the individual understands” that the lawyer’s duty is to pursue the best interests of the client corporation – as differentiated from its employees – and that “discussions between [corporate counsel] and the individual may not be privileged [from disclosure, including to a court of law].”
The legal rights of employees represented by counsel enjoy greater, prophylactic protection from corporate counsel. Under Rule 4.2, corporate counsel “shall not communicate about the subject of the representation with a [client corporation’s employee that] the lawyer knows to be represented by [independent counsel] in the matter [without the employee’s lawyer’s consent or a court order].”
According to Rule 4.2, Comment , Rule 4.2 “applies even though the represented person initiates or consents to the communication.” A lawyer must “immediately terminate the communication” upon learning that a person is represented in the subject matter of the communication.. Thus, even if corporate counsel learns of the representation during an interview, permission from an employee’s lawyer is required before the interview may continue and prior to every subsequent communication.
Rule 4.2, Comment  states that where an employee “with whom the lawyer communicates is not known to be represented by counsel in the matter” – i.e., where the fact of representation cannot be inferred according to Rule 1.0(f)’s definition of “knows” and “knowledge” – “the lawyer’s communications are subject to Rule 4.3.” It is unclear what circumstances are relevant to finding such “knowledge.” However, they could include those which support a finding that the employee is at fault in the matter due to his status as a relevant supervisor or possessor of relevant authority to obligate or impute liability to the corporation. See Rule 4.2, Comment . Other circumstances from which representation could be inferred might include any where adversity – or even diversity – of interests can be expected.
Rule 4.4(a) provides another standard of conduct binding on attorneys dealing with employees of corporate clients. Rule 4.4(a) relevantly prohibits corporate counsel from using “means that have no substantial purpose other than to embarrass, delay, or burden a [client’s employee,] or otherwise use methods of obtaining evidence that violate the legal rights of such a person.” Comment  to Rule 4.4 explains that while it “is impractical to catalogue all [legal rights of a client’s employee],” they include “legal restrictions” on corporate counsel’s use of interviews and other means of “obtaining evidence from” the client’s employees. These safeguards include Rule 4.2’s proscription of communication with represented employees and the protections to unrepresented persons provided by Rules 4.3 and 1.13(f).
At least two bar associations to date have opined regarding these Rules’ application to the corporate context. First, the D.C. Bar Association’s Ethics Opinion 269 (1997) (“Opinion 269”) clarifies that a lawyer’s ethical duty of due diligence is limited by his duties to client employees. Opinion 269 recognizes that, “[W]hile a lawyer’s obligation to represent a client . . . might suggest that the client’s need for information from the employee is the lawyer’s only concern” the Rules of Professional Conduct “specifically require that they lawyer be mindful of the interests of the employee.”
The D.C. Bar’s discussion of Rules which “specifically require that the lawyer be mindful of the interests of the employee” begins with D.C. Rule 1.13(c), apparently modeled on ABA Rule 1.13(f). D.C. Rule 1.13(c) requires a lawyer dealing with a corporate client’s employee to explain the identity of the client where adversity of interests between corporate client and employee exist.
The Opinion notes that this clarification is necessary because the interviewed employee “may consider the lawyer as also representing the employee’s personal interests, absent a warning to the contrary.” This language is strikingly similar to that of ABA Rule 4.3. Also, Comment  to D.C. Rule 1.13 substantially repeats the language of ABA Rule 1.13′s Comment .
Second, the New York State Bar Association Committee on Professional Ethics Opinion Number 650 (1993) (“Opinion 650”) considered whether “a corporate attorney [may] participate in a ‘compliance with law’ program under which employees are required to report illegal or unethical behavior.” Under this program, any information collected on the Legal Department’s “help line” would be “passed on to the corporation’s compliance officer for further investigation and such other responses as may be appropriate.”
The N.Y. Bar condoned corporate counsel’s participation in the client’s “compliance with law” program, but only where the lawyer or any of his/her agents answering the help line utilizes an “adverse interest script.” Where “it appears that a caller’s interests may differ from or [reasonably could] be ‘in conflict’ with the Company’s interests,” the approved adverse interest script instructs lawyers to first “[d]etermine whether the caller is represented by counsel.” If so, corporate counsel must refuse to speak to the caller except through the caller’s lawyer.
Opinion 650 was an interpretation of New York’s Model Code of Professional Responsibility. After the ABA Model Code was replaced by the Model Rules, so was New York’s Code. It is no surprise that a correlation table reveals that the Rules which replace the Code provisions mirror ABA Rules 1.13 and 4.3. Opinion 650 marks the first imposition of a binding duty requiring corporate lawyers to issue explicit statement of the kind the Upjohn Court found sufficient to satisfy the informed communication element of attorney-client privilege (an “Upjohn warning”).
Though a blanket gag order will satisfy the informed communication element of attorney-client privilege in the D.C. Circuit post-KBR, a lawyer’s legal ethical obligations require a higher standard of conduct. The ABA Model Rules permit a lawyer to communicate with a corporate client’s employee in representation of the client only if three conditions are met: (1) the employee is not represented in the matter; (2) the employee understands the identity of the client, the lawyer’s role in the matter, and the purpose of the conversation; and (3) the communication is elicited in compliance with all rules of law and legal ethics. However, even if these conditions are met by pre-communication statements – including Upjohn warnings –the lawyer ethically must clarify an employee’s misconceptions as they arise. The D.C. Bar recognized these requirements in its Opinion 269. As the Supreme Court held in Upjohn and the New York State Bar reiterated in Opinion 650, an attorney should impart these clarifications as explicit statements. Mere gag orders will not suffice.
By: Reginald Augustus
Are the police waging war in our neighborhoods? The militarizing of the police in response to protestors, in the aftermath of the police shooting death of Michael Brown in Ferguson, Missouri, has many asking this question. As tension mounts in the Ferguson community, the practice of shifting military equipment to police departments has led to a surge in scrutiny by lawmakers.
All over this country, local police departments are being armed with military grade weapons and equipment by the Department of Defense. In 1997, Congress enacted the 1033 program that expanded the practice of distributing extra military gear and allowing the reassignment of military equipment to local law enforcement. The 1033 program was established by Congress due to concerns of being “outgunned by drug criminals.” Additionally, the Department of Homeland Security has provided funding for arms through “terrorism grants” in excess of $34 billion for items such as surveillance drones and an Army tank. The overarching purpose was to keep the police and communities safe from both armed drug groups and terrorist events.
However, there are many who argue that there has been excessive use of the military equipment by police departments across the country. An ACLU year-long report found that policing has become both “excessively militarized” and has “occurred with almost no oversight.” The report states that over 800 paramilitary raids were studied, and nearly 80 percent related to “ordinary law enforcement purposes” such as serving search warrants on homes. In contrast, only 7 percent were for legitimate emergencies, such as a “barricade or hostage situation.” Further, the report found that due to the way the war on drugs targets colored communities, that people of color have a higher probability of being affected by such paramilitary raids.
Several lawmakers from both parties have come out with “stern condemnations” of the “military-style weaponry” response in Ferguson and plan to “do something about it.” The Senate Armed Services Committee Chairman Carl Levin stated that the Senate plans to “review” the Defense Department program. Senator Claire McCaskill, another committee member, is also reviewing the program and is working with Representative Hank Johnson to introduce a bill to end the reassigning of military weapons to law enforcement agencies. Others such as Senator Rand Paul and Senator Patrick Leahy have also been critical of the military type response in Ferguson. Leahy has stated “equipping police officers with the tools of war does nothing to repair a torn community.” However, it is not clear how much support there actually is in Congress right now for the repeal or revision of the program.
Similarly, there have been veteran law enforcement officials from some of America’s largest police forces who have come out against the militarization of local police. Norman Stamper, who was the former Seattle police chief, wrote that he regretted the use of “military-style tactics” that were employed against demonstrators of the 1999 World Trade Organization conference held in Seattle. The former chief now believes that the correct approach should include “an authentic partnership in policing the city,” including officers, civilian employees, and representatives from the community. In a recent statement, Attorney General Eric Holder emphasized the need to use other alternatives such as the Department of Justice’s Community Oriented Policing Services , and not police militarization as a first response to violence.
Still others, such as police Chief Jerry Wilson, have argued that the military tactics are more harmful then helpful. Wilson stated that “an intimidating police presence didn’t prevent confrontation, it invited it.” He further noted that while you should be prepared to respond with “riot-control teams,” they should be nearby but “out of sight of protestors.” Additionally, Major Max Geron of the Dallas Police Department explains that police who interact with protestors should come to terms with them as to what is allowable and unallowable. In addition, training has not been required by the government in many instances where police departments have received military equipment.
It appears that the militarization of the police has not been used for its intended purpose but for situations that require a more diplomatic approach. As it has played out recently in Ferguson, the military-style tactics implemented by law enforcement toward a community that is already distrusting of the police only serves to incite as opposed to quell tensions.
Instead, law enforcement should attempt to establish some level of trust with the local community.Working with community leaders in order to resolve differences should be the first order of business. The need for military arms and equipment should only be used for their intended purpose such as to deal with dangerous drug raids and terrorist incidents. While law enforcement officials should be prepared in situations where riots may occur, they should not initiate an aggressive stance with their local communities when such actions are not yet justified. Additionally, there should be mandatory training for all police departments that receive military grade gear. The training should include a discussion on the limitations of their use. Police actions that include the use of military-style tactics and equipment should be reviewed periodically with violators losing privileges of their use.
By: Nor Powanda
The Supreme Court issued 144 opinions this term and the Justices ruled unanimously in 65% of the 72 cases, the highest such percentage since the 1940s. But one case, Burwell v. Hobby Lobby, decided 5 – 4, reversed the impression of a united Supreme Court and startled the nation. Among the reasons Hobby Lobby received so much attention was the Court’s recognition that a corporation can have religious beliefs. This recognition once again sparked a debate over corporations’ personhood and whether corporate entities have the same rights as natural persons. So what is corporate personhood and what does the Hobby Lobby decision mean for corporations?
Corporations are associations of individuals or other organizations and associations that form a legal entity. The corporate entity is separate and distinct from people who create and own them. The individuals or associations that form the corporate entity are the shareholders of the corporation. The basic and principal advantage of a corporation is that, because the corporation is considered a separate entity, the owners and individuals who run it have limited personal liability for the entity’s dealings or debts. This means that individuals who own and run the corporation cannot usually be held responsible for the liabilities of the business.
The law defines corporations as artificial persons. For legal purposes, they are treated as singular acting bodies—i.e., a plaintiff suing a corporation will be suing the corporation and not the natural persons individually who make up the corporation. Another example is when iTunes users agree to the terms and conditions of Apple, they are contracting with Apple Corporation and not with the Apple’s shareholders or managers. The corporate persons are a fiction, but the law personifies them.
This personification found its basis in the 14th Amendment in the Supreme Court’s Santa Clara County v. Southern Pacific Rail Road decision over a century ago. In prior cases the Court had been urged to extend the equal protection of the 14th Amendment, which states in part that, “no state shall…deprive any person of life, liberty, or property without due process of law, nor deny to any person…the equal protection of the laws” to corporations. Although the question in Santa Clara did not require the Court to decide whether the term “person” is limited to natural breathing persons, the Court noted in a headnote that the Constitution does in fact forbid the government from denying the equal protection of the law to all persons, including corporations. The substance of Santa Clara involved Southern Pacific Railroad’s challenge to taxes imposed by California and counties throughout the state.
This jurisprudence took hold in subsequent cases and the Court forced state and federal legislatures to treat corporations the same as natural persons for the purposes of contracting and property rights. In the latter part of the 20th century, the Court applied Santa Clara to justify corporations’ First Amendment right to free speech. For example, in First Nat’l Bank of Boston v. Bellotti the Court relied on Santa Clara to allow corporations to spend unlimited money on ballot initiatives. Even though the Court’s landmark 2010 Citizens United v. Federal Election Commission decision did not involve the specific question of corporate personhood, it relied on Bellotti in holding that political speech is “indispensable to decision making in a democracy, and this is no less true because the speech comes from a corporation.”
Hobby Lobby involved the Affordable Care Act requirement that corporations, including closely held corporations (which are mainly family owned and operated, such as Hobby Lobby), pay for insurance coverage for contraceptives. Hobby Lobby’s owners argued this requirement of the healthcare law violated their exercise of religion under the 1993 Religious Freedom Restoration Act since they run their business according to Christian principles. (It is worth noting that Hobby Lobby objected to paying for specific types of contraceptives and not across the board contraceptives. Still, the objection was based on religious principles).
While the majority maintained Hobby Lobby is a narrow decision and only applies to closely held corporations, the dissenters warned of far reaching consequences, calling the Court’s holding “a decision of startling breadth.” Critics see Hobby Lobby as an extension of the Court’s Citizens United decision, expanding corporations’ rights and making big businesses ever more powerful.
Whether Hobby Lobby would have received as much attention as it did if the case did not involve a gender issue is not entirely clear. The healthcare law and gender equality are bitterly contested political issues. Nonetheless, it remains a fact that in Hobby Lobby the Court for the first time recognized a right that is generally exercised by a natural person and not an artificial entity, which, as Justice Stevens put it in his Citizens United dissent, “[h]as no conscience, no beliefs, no feelings, no thoughts, no desires.”
While corporate personhood has generated new interest in recent years, the debate is not a new one. The exercise of corporate power has been a concern and a matter of debate for as long as corporations have been around. In the1930’s Justice Louise Brandeis famously argued that large corporations caused economic dislocation, distorted democracy and, at times, hurt the general welfare of the public. Brandeis called for the state regulation of corporations by limiting their size, life span and to dictate their purposes.
A corporation’s right to property, contract and free speech (with certain limitations) has long been established. Allowing corporations to exercise a religious right is a case of new impression by any measure. It is too soon to know the true effect of Hobby Lobby on corporate personhood. What rights corporations seek next or want to expand on will show Hobby Lobby’s reach and true effect.
By: Philip Stevens
Previously on Legislation and Policy, I addressed several reasons conservatives could support the full legalization of marijuana while retaining the core values of conservatism. I laid out a case for what I thought to be a both reasonable and logical plan towards legalization. In short, I argued the conservative “doctrine facilitates the process of legalization better than any other.” Recently though, Republican Rep. Thomas Massie of Kentucky introduced a bill backed by 221 Republicans and 20 Democrats which would approve spending to undo the recent decriminalization in the District of Columbia. The decriminalization currently states possession of an ounce or less of marijuana is no longer a criminal offense, but a civil offense punishable by a fine of $25. The bill also works to loosen the District’s historically strict gun-control laws, defunding enforcement of the ban on open-carrying.
Contrary to the conclusions of my previous post, Republicans will not accept legalization of marijuana. Such a proposition is idealistic, and legislators know that even with sufficient votes, it would splinter the conservative voter base. Federal decriminalization is far more probable. It would lighten the burden on federal and state police and court systems, decreasing the control of the federal government over private activity. However, when packed into a spending bill that mangles it with other issues such as gun-control decriminalization cannot get far. The recent Republican push to strengthen Washington D.C. gun rights combined with the decreased funding for decriminalization alludes to the future of the Republican Party. There are two simple lessons I think to be learned from this recent move by House Republicans.
First, it is apparent that Republican legislators do not support the decriminalization of marijuana. Understanding this policy helps to understand the sort of campaign Republicans will be running in state congressional elections ahead as well as the 2016 Presidential election. Previously, I mentioned how Democrats will continue to support marijuana legalization more than republicans. However, decriminalization is a separate issue. Decriminalization does not carry the same message of acceptance of law-breakers. It does not condone drug-use as many conservatives dread. Decriminalization also does not withhold punishing pot-users, at least when using in public.
However, as evidenced by the new bill, Republicans are continuing their trend against decriminalization. Worrying though, is not a change in D.C. law, but instead their defiant stance on this issue. Key voting groups such as Millennials, Latino Americans, and African Americans continue to stray away from the Republican platform. House and many Senate Republicans may retain their offices into the future. However, without these key voting groups, the oval office will remain distant. African American males are thought to be arrested more frequently for marijuana possession. Further, Millenials have the highest support for legalization out of any generation. The 2008 presidential election was costly, and the 2012 election demonstrated Republicans lost some campaigning prowess from the 1980s. Republicans cannot forgo catering to such important and growing segments of the American voter base.
Second, Republicans are convinced of the importance of comprehensive gun-control legislation. (I won’t delve into the intricacies of the new D.C. handgun-ruling, as my colleague has already done so quite comprehensively). Publicized gun-related crimes are ingrained in recent memory. Even though homicides committed with a firearm have dropped since the 1990s, the issue of gun control remains stained in the American consciousness, due to the recent horrific massacres including Sandy Hook, Navy Yard, Santa Monica, and Aurora. Democrats have responded with proposals restricting access to weapons and increasing background checks. Republicans however, with increased momentum for the national pressure for legislative response to mass shootings, are working to instead ensure law abiding citizens have greater control over their firearms.
The recent bill reinforces the Republican goal for the nation. By aiming their sights on one of the most staunch gun control territories, Republicans hope to demonstrate the superiority of their position. Further, with Judge Scullin of the District Court for the Northern District of New York, recently ruling against the constitutionality of DC’s historic open-carry ban, Republicans may have momentum needed to ensure their constituents support in future elections.
Where does this leave the city of Washington? As a federal district, it has a limited role in affairs regarding its federal budget. Mayor Vincent Gray warned such action may require shutting down the city’s medical marijuana program. Also, Delegate Eleanor Holmes Norton, the non-voting House member representing the District, called into question Rep. Massie’s bill, saying “Rep. Massie may think D.C. will be one of the most permissive gun jurisdictions in the country — where you can openly carry assault weapons in the street and get a gun with no background check — but he’s wrong.” Delegate Norton is likely correct and such a bill is unlikely to pass the Senate. However, the bill accurately showcases the Republican platform and its membership’s overwhelming agreement on two key issues; pot and guns.
By: James Gossmann
The city of San Jose filed an antitrust suit against Major League Baseball in the hopes of moving the Oakland A’s baseball team to San Jose. Under MLB rules, the San Francisco Giants possess the power to restrict the move, as the A’s would be moving into their designated territory. The San Francisco Giants, afraid of losing revenue by splitting its market share between itself and the A’s, refused to waive its right to territorial exclusivity. The District Court dismissed the suit, citing that Major League Baseball is exempt from antitrust litigation.
The Sherman Act of 1890 was the landmark legislation which attempted to curtail the creation of monopolies and anticompetitive practices. Followed shortly by the Federal Trade Commission Act and the Clayton Act, Congress strengthened the government’s power to regulate any interstate commerce which was in danger of becoming anti-competitive.
Professional sports and antitrust have always come into conflict. While the Sherman Act prohibits every contract, combination or conspiracy in restraint of trade, teams regularly come together to negotiate agreements between players and owners for rules governing the draft system and broadcasting rights in order to create a functioning league. Both of these practices are anticompetitive, but are permitted because such practices preserve the appeal of the various sports. The sport with the most leeway in terms of anti-competitive activity is baseball.
A 1922 Supreme Court case, Federal Baseball Club of Baltimore v. National League, created a unique exemption for baseball by refusing to call it interstate commerce, making baseball immune from antitrust regulation. By declaring “baseball only a game and not a business”, the Court ruled that baseball did not fall under the federal jurisdiction necessary for the Sherman Act to apply. While common sense dictates that this questionable reasoning would have been overturned over the years as the commercial reach of baseball grew to extend beyond state lines, the Supreme Court has refused to overrule the baseball exemption in Toolson v. New York and Flood v. Kuhn. Instead, the Court passed the buck and left it up to Congress to change the baseball exemption.
In recent years, the courts have come close to addressing this issue. A 1993 ruling in the Eastern District of Pennsylvania held that antitrust law does in fact apply to baseball, only for the lawsuit over a team’s relocation to be settled on the eve of the trial. The issue of antitrust application to deny relocation of a baseball team has not been litigated until the Oakland A’s.
Congress’s efforts to correct this Supreme Court mistake has been minimal, with the passing of a law that invalidated an MLB practice of preventing players from trading to competing teams. However, Congress has failed to address the MLB rules governing the relocation of teams.
Luckily however, courts have refused to extend this exemption to all sports, and baseball is the only sport with such an exemption. In other leagues, if an owner is denied the ability to move his team, the league is vulnerable to suit on antitrust grounds. This vulnerability to antitrust regulation was settled in Los Angeles Mem’l Coliseum v. NFL, where the Supreme Court held that the NFL could not prevent the Raiders from moving from Los Angeles to Oakland.
The San Francisco Giants are worth over $1 billion, while the Oakland A’s are valued at only $495 million. This valuation is greatly influenced by the market size where the baseball team lays claim to, as well as the stadium the team plays in. Major League Baseball’s efforts to restrain the A’s from leaving their outdated stadium and failing market constitutes an effort to divide sales territories, which has been held by the FTC to be “almost always illegal.”
Major League Baseball has come out to defend its long standing privilege. Claiming a “contractual and economic right to carefully evaluate team relocation proposals for the benefit of all major clubs.” The MLB convincingly argues that Congress and the Courts have had opportunities to revoke this antitrust exemption, and their silence on the matter makes MLB practices legal.
San Jose lost its initial round of litigation, but the federal appeals court is supposed to come down with a decision this summer. The district court brought up the central theme of the failure of the judiciary or legislative branch to correct the antitrust exemption by claiming it was an issue for Congress, not the courts. If courts continue to be so unyielding in its adherence to precedent, it will fall on lawmakers to once again scale back the Supreme Courts gift of immunity from antitrust regulations to baseball.