Law and Legal
Statutory Interpretation: Theories, Tools, and Trends. Valerie C. Brannon, Legislative Attorney, April 5, 2018.”In the tripartite structure of the U.S. federal government, it is the job of courts to say what the law is, as Chief Justice John Marshall announced in 1803. When courts render decisions on the meaning of statutes, the prevailing view is that a judge’s taskis not to make the law, but rather to interpret the law made by Congress. The two main theories of statutory interpretation — purposivism and textualism — disagree about how judges can best adhere to this ideal of legislative supremacy. The problem is especially acute in instances where it is unlikely that Congress anticipated and legislated for the specific circumstances being disputed before the court. While purposivists argue that courts should prioritize interpretations that advance the statute’s purpose, textualists maintain that a judge’s focus should be confined primarily to the statute’s text. Regardless of their interpretive theory, judges use many of the same tools to gather evidence of statutory meaning. First, judges often begin by looking to the ordinary meaning of the statutory text. Second, courts interpret specific provisions by looking to the broader statutory context. Third, judges may turn to the canons of construction, which are presumptions about how courts ordinarily read statutes. Fourth, courts may look to the legislative history of a provision. Finally, a judge might consider how a statute has been — or will be — implemented. Although both purposivists and textualists may use any of these tools, a judge’s theory of statutory interpretation may influence the order in which these tools are applied and how much weight is given to each tool. This report begins by discussing the general goals of statutory interpretation, reviewing a variety of contempora ry as well as historical approaches. The report then briefly describes the two primary theories of interpretation employed today, before examining the main types of tools that courts use to determine statutory meaning. The report concludes by exploring developing issues in statutory interpretation.”
Sexual Harassment and Title VII: Selected Legal Issues. Christine J. Back, Legislative Attorney; Wilson C. Freeman, Legislative Attorney. April 9, 2018.”Title VII of the Civil Rights Act of 1964 (Title VII) generally prohibits discrimination in the workplace, but does not contain an express prohibition against harassment. The Supreme Court, however, has interpreted the statute to prohibit certain forms of harassment, including sexual harassment. Since first recognizing the viability of a Title VII harassment claim in a unanimous 1986 decision, the Court has also established legal standards for determining when offensive conduct amounts to a Title VII violation and when employers may be held liable for such actionable harassment, and created an affirmative defense available to employers under certain circumstances. Given this judicially created paradigm for analyzing sexual harassment under Title VII, this report examines key Supreme Court precedent addressing Title VII sexual harassment claims, the statutory interpretation and rationales reflected in these decisions, and examples of lower federal court decisions applying this precedent. The report also discusses various types of harassment recognized by the Supreme Court—such as “hostile work environment,” quid pro quo, constructive discharge, and same-sex harassment—and explores tensions, disagreements, or apparent inconsistencies among federal courts when analyzing these claims. Finally, this report examines sexual harassment in the context of retaliation. Does Title VII’s anti-retaliation provision protect an employee from being fired, for example, for reporting sexual harassment? How do federal courts approach the analysis of a Title VII claim alleging that an employer retaliated against an employee by subjecting him or her to harassment? The re port discusses Supreme Court and federal appellate court precedent relevant to these questions…”
“On April 9, the American Library Association (ALA) released The State of America’s Libraries report for 2018, an annual summary of library trends released during National Library Week, April 8–14, that outlines statistics and issues affecting all types of libraries. The report affirms the invaluable role libraries and library workers play within their communities by leading efforts to transform lives through education and lifelong learning. During this time of rapid social change, libraries of all types are providing welcoming spaces to an increasingly diverse population; working with the community to offer social service support and health resources, career, and small business development assistance; and combating fake news by providing tools to assess and evaluate news sources. The function of libraries as community centers is readily recognized. A Brookings Institution article even referred to librarians as “ad hoc social workers and navigators” who “help local people figure out the complexities of life.” This role is especially evident, and never more essential, than in times of crisis, and 2017 had its share of adversity—from natural disasters to shootings on school campuses. The report found that libraries continue to face challenges that carry with them the potential for censorship, to a variety of books, programs, and materials. The ALA Office for Intellectual Freedom (OIF) tracked 354 challenges to library, school, and university materials and services in 2017. Some individual challenges resulted in requests to restrict or remove multiple titles or collections. Overall in 2017, 416 books were targeted—direct attacks on the freedom to read…”
James Fisher: “I recently received an email from Netflix which nearly caused me to add my card details to someone else’s Netflix account. Here I show that this is a new kind of phishing scam which is enabled by an obscure feature of Gmail called “the dots don’t matter”. I then argue that the dots do matter, and that this Gmail feature is in fact a misfeature. Finally I’ll suggest some ways the Gmail team can combat such scams in future…”
The United States Holocaust Memorial Museum: “Lest We Forget – More than 120 large-scale portraits of Holocaust survivors—including 23 who volunteer at the United States Holocaust Memorial Museum—will be showcased at the Lincoln Memorial Reflecting Pool this month. Don’t miss this powerful exhibition, which is on display now until Sunday, April 22. Monday, April 9-Sunday, April 22 – Lincoln Memorial Reflecting Pool, Washington, DC The installation—designed by German-Italian artist Luigi Toscano and hosted in cooperation with the Embassy of Germany—provides a human angle to Holocaust remembrance. It helps ensure that the world never forgets and inspires us to fight hatred and antisemitism today. The exhibition has traveled to public spaces around the world including Germany, Ukraine, and the United Nations headquarters in New York City. Toscano is a photographer and filmmaker from Mannheim, Germany. After being deeply affected by a visit to Auschwitz when he was 19, he began to travel and meet with Holocaust survivors in Germany, the United States, Ukraine, Israel, and Russia to take their pictures and hear their stories. His portraits are meant to provide voice and visibility to these survivors. Join the conversation about this exhibition online using #AskWhy and #lwf.”
Mehlman Castagnetti Rosen & Thomas: CONTENTS Q2 2018 THESIS & CONTENTS: Revolutionary Tools Enable Revolutionary Times – Reform movements succeed when the methods, motivation & moment converge. We are reaching such a time. [31 pages slide deck]THE METHODS Revolutionary Tools Enable Revolutionary Times; THE MOTIVATION Why Citizens Increasingly Demand Change; THE MOMENT New Leaders Emerging to Challenge Washington / Fill the Vacuum; WHAT’S NEXT Where We Go From Here…
Democratic control of Congress preferred 69%-28% over Republicans, majority of young Democrats “definitely voting” in midterm elections, Harvard youth poll find – “A new national poll of America’s 18- to 29-year-olds by Harvard’s Institute of Politics (IOP), located at the Kennedy School of Government, finds a marked increase in the number of young Americans who indicate that they will “definitely be voting” in the upcoming midterm Congressional elections. Overall, 37 percent of Americans under 30 indicates that they will “definitely be voting,” compared to 23 percent who said the same in 2014, and 31 percent in 2010, the year of the last “wave” election. Young Democrats are driving nearly all of the increase in enthusiasm; a majority (51%) report that they will “definitely” vote in November, which represents a 9-percentage point increase since November 2017 and is significantly larger than the 36 percent of Republicans who say the same. At this point in the 2014 election cycle, 28 percent of Democrats and 31 percent of Republicans indicated that they would “definitely” be voting. In the Spring of 2010, 35 percent of Democrats and 41 percent of Republicans held a similar interest in voting. Preference for Democratic control of Congress has grown between now and the time of the last IOP poll. In Fall 2017, there was a 32-point partisan gap among the most likely young voters, 65 percent preferring Democrats control Congress, with 33 percent favoring Republicans. Today, the gap has increased to 41 points, 69 percent supporting Democrats and 28 percent Republicans.
“Millennials and post-Millennials are on the verge of transforming the culture of politics today and setting the tone for the future,” said John Della Volpe, Polling Director at Harvard Kennedy School’s Institute of Politics. “This generation of young Americans is as engaged as we have ever seen them in a midterm election cycle.
Trio of articles – Court rules women can’t be paid less than men based on past wages; Sexual harassment in at work; the Womanly art of having an opinion
This is still an issue for women in 2018 [why]…via ABCNews: “Employers cannot pay women less than men for the same work based on differences in their salaries at previous jobs, a federal appeals court said Monday. Pay differences based on prior salaries are discriminatory under the federal Equal Pay Act, a unanimous 11-judge panel of the 9th U.S. Circuit Court of Appeals said. The decision overturned a ruling last year by a smaller panel of 9th Circuit judges that had been criticized by equal pay advocates. Allowing pay differences based on previous salaries would perpetuate wage gaps between men and women that are based on discrimination in the job market, Judge Stephen Reinhardt wrote. Reinhardt — considered among the most liberal members of the 9th Circuit — wrote the opinion before he died last month. “Although the (Equal Pay) Act has prohibited sex-based wage discrimination for more than fifty years, the financial exploitation of working women embodied by the gender pay gap continues to be an embarrassing reality of our economy,” Reinhardt wrote. Women made about 80 cents for every dollar men earned in 2015, according to U.S. government data. The ruling came in a lawsuit by California school employee Aileen Rizo, who learned in 2012 while having lunch with her colleagues that male counterparts hired after her were making more money. Fresno County public schools hired Rizo as a math consultant in 2009 for a little under $63,000 a year. The county had a standard policy that added 5 percent to her previous pay as a middle school math teacher in Arizona…The Equal Pay Act, signed into law by President John F. Kennedy in 1963, forbids employers from paying women less than men based on gender for equal work performed under similar working conditions. But it creates exemptions when pay is based on seniority, merit, quantity or quality of work or “any other factor other than sex…”
See also via Pew – Sexual Harassment at Work in the Era of #MeToo – Many see new difficulties for men in workplace interactions and little effect on women’s career opportunities and via WSJ (paywall) ‘Sharp’ Review: The Womanly Art of Having an Opinion – “Female thinkers who came up in a world that was not eager to hear women’s ideas about anything.”
And in case you have not checked yet – Staring Monday April 9, 2018 Facebook now lets you know if your data was shared with Cambridge Analytica [not that you can do anything at all about it – see – above…]
“The Internal Revenue Service (IRS) reports that nationally there are now 616 corporate giants. These are companies that reported $20 billion or more in assets. As recently as FY 2010 virtually every (96%) corporate giant received an IRS audit. By FY 2016, this had fallen to only three out of four (76%). And last year, during FY 2017, the audit rate tumbled to a mere two out of every four – or roughly half (54%). This means that nearly half of these corporate behemoths escaped any IRS audit. What are the revenue implications of allowing these 285 corporate giants to escape an audit? Some inkling of the magnitude of lost revenue to the federal coffers is suggested by the sizable amount of unreported taxes turned up in the 331 audits that were conducted of these largest firms. In total, these few hundred audits resulted in uncovering $10.4 billion in federal taxes that had not been reported. This amount was more than turned up in the combined 933,785 audits last year of tax returns filed by all individual.Congressional cutbacks to IRS’s budget have severely trimmed the ranks of available IRS revenue agents. Fewer auditors mean that fewer audits can be conducted. New responsibilities for implementing the December 2017 tax reform act impose many new demands on the agency. Without adequate resources to meet already existing needs, IRS’s efforts to meet these new demands can only exacerbate existing problem. To read the full report, go to: http://trac.syr.edu/tracirs/latest/507/.”
The Marshall Project – The link between immigration and crime</span exists in the imaginations of Americans, and nowhere else. “…As of 2017, according to Gallup polls, almost half of Americans agreed that immigrants make crime worse. But is it true that immigration drives crime? Many studies have shown that it does not. Immigrant populations in the United States have been growing fast for decades now. Crime in the same period, however, has moved in the opposite direction, with the national rate of violent crime today well below what it was in 1980… According to data from the study, a large majority of the areas have many more immigrants today than they did in 1980 and fewer violent crimes. The Marshall Project extended the study’s data up to 2016, showing that crime fell more often than it rose even as immigrant populations grew almost across the board. In 136 metro areas, almost 70 percent of those studied, the immigrant population increased between 1980 and 2016 while crime stayed stable or fell. The number of areas where crime and immigration both increased was much lower — 54 areas, slightly more than a quarter of the total. The 10 places with the largest increases in immigrants all had lower levels of crime in 2016 than in 1980…”
Stanford researchers use machine-learning algorithm to measure changes in gender, ethnic bias in U.S.
Stanford News: New Stanford research shows that, over the past century, linguistic changes in gender and ethnic stereotypes correlated with major social movements and demographic changes in the U.S. Census data.
“Artificial intelligence systems and machine-learning algorithms have come under fire recently because they can pick up and reinforce existing biases in our society, depending on what data they are programmed with. A Stanford team used special algorithms to detect the evolution of gender and ethnic biases among Americans from 1900 to the present. But an interdisciplinary group of Stanford scholars turned this problem on its head in a new Proceedings of the National Academy of Sciences paper published April 3. The researchers used word embeddings – an algorithmic technique that can map relationships and associations between words – to measure changes in gender and ethnic stereotypes over the past century in the United States. They analyzed large databases of American books, newspapers and other texts and looked at how those linguistic changes correlated with actual U.S. Census demographic data and major social shifts such as the women’s movement in the 1960s and the increase in Asian immigration, according to the research. “Word embeddings can be used as a microscope to study historical changes in stereotypes in our society,” said James Zou, an assistant professor of biomedical data science. “Our prior research has shown that embeddings effectively capture existing stereotypes and that those biases can be systematically removed. But we think that, instead of removing those stereotypes, we can also use embeddings as a historical lens for quantitative, linguistic and sociological analyses of biases.” Zou co-authored the paper [Word embeddings quantify 100 years of gender and ethnic stereotypes with history] Professor Londa Schiebinger, linguistics and computer science Professor Dan Jurafsky and electrical engineering graduate student Nikhil Garg, who was the lead author…”
Pew: “The role of so-called social media “bots” – automated accounts capable of posting content or interacting with other users with no direct human involvement – has been the subject of much scrutiny and attention in recent years. These accounts can play a valuable part in the social media ecosystem by answering questions about a variety of topics in real time or providing automated updates about news stories or events. At the same time, they can also be used to attempt to alter perceptions of political discourse on social media, spread misinformation, or manipulate online rating and review systems. As social media has attained an increasingly prominent position in the overall news and information environment, bots have been swept up in the broader debate over Americans’ changing news habits, the tenor of online discourse and the prevalence of “fake news” online. In the context of these ongoing arguments over the role and nature of bots, Pew Research Center set out to better understand how many of the links being shared on Twitter – most of which refer to a site outside the platform itself – are being promoted by bots rather than humans. To do this, the Center used a list of 2,315 of the most popular websites and examined the roughly 1.2 million tweets (sent by English language users) that included links to those sites during a roughly six-week period in summer 2017. The results illustrate the pervasive role that automated accounts play in disseminating links to a wide range of prominent websites on Twitter…”
News release: “Elsevier, the information analytics business specializing in science and health, has launched Mendeley Data, a new, cloud-based platform designed to help universities and researchers manage, share and showcase their research data. With Mendeley Data, researchers can safely record and share research data while improving its reuse via publication, while universities can showcase institutional outputs and improve their collaboration rate. The volume, complexity and fragmentation of research data has historically made it difficult for researchers and universities to have a clear, single overview of their data, its quality, and how it is being used. However, there is increasing pressure on institutions to improve their data management and comply with funding bodies’ mandates to share funded research data alongside publications. Wouter Haak, Elsevier Vice President of Product Strategy, said: “Research data is incredibly valuable, but much of its value is currently locked away or lost, and this slows down the pace of scientific advancement. We developed Mendeley Data to provide researchers and universities with an end-to-end solution for data management, from the lab bench all the way to the vice chancellor’s office.” Research data management is technically challenging on many levels, particularly because the data is often sensitive (for example, involving patient medical records) or housed in separate silos. Some research data is still typically recorded in paper notebooks, necessitating expensive and time-consuming re-work if notes are lost. Many researchers and institutions also lack the ability to securely and easily share their data with collaborators around the world, which limits their exposure…”
A little-noticed bill that was passed at the end of 2017 made significant changes to the NJ Hazardous Discharge Site Remediation Fund (HDSRF) grant and loan program. The legislation, A1954 signed into law on 1/15/18. Below are a summary of the changes. Thanks to our friends at the Brownfield Coalition of the Northeast (BCONE) for providing us with this information. These changes will be discusses at the 9th Northeast Sustainable Communities Workshop to be held on May 23, 2018 at the New Jersey Institute of Technology, Newark, NJ
Fourteen changes by the Brownfields Office at NJDEP are:
- 25% matching grants for innovative technology and limited restricted use remedial actions have been eliminated from the program.
- 50% matching grants for innocent parties have been eliminated.
- Annual grant caps to municipal/county/redevelopment authorities are reduced from $3,000,000 to $2,000,000.
- The additional grant amount permitted in a Brownfield Development Area (BDA) is reduced from $2,000,000 to $1,000,000.
- Annual loans caps are reduced from $1,000,000 per year to $500,000 per year.
- The statewide annual award cap for recreation/conservation; affordable housing; and renewable energy grants is reduced from $5,000,000 to $2,500,000.
- At least 30% of the moneys in the fund shall be allocated for grants to municipalities, counties, or redevelopment entities for PAs, SIs, RIs, and RAs of a site not located in a BDA.
- Moves sites in Planning Areas 1 and 2 down to the third priority from the second and makes BDAs the second priority.
- Readiness to proceed has been added as a factor in prioritization of applications.
- NJEDA’s annual reporting requirements are to include the amount of remediation costs expended for each site for the previous calendar year and the remaining balance.
- NJEDA is required to adopt criteria for public entities that indicates that the property will be developed within a 3 year period from completion of the remediation.
- Places timeframes for completing remediation steps based on the date the grant is awarded for:
a. Preliminary Assessments or Site Investigation at 2 years after the date of the award.
b. Remedial Investigations at 5 years after the date of the award.
Failure to complete the task will result in cancellation of the award.
13. Requires the applicant of a supplement grant to demonstrate that the previous grant/loan award was fully expended or will be fully expended.
14. The law took effect on 1/15/18 and applies to any application for financial assistance or a grant from the HDSRF pending before the DEP on the effective date of the law or submitted on or after the effective date. It does not apply to any application determined to be technically eligible and recommended for funding by the DEP and pending before NJEDA on the effective date.
A summary of the changes for private party grants and loans is Attached
New York Times Magazine – As China’s Xi Jinping consolidates power, owners of Hong Kong bookstores trafficking in banned books find themselves playing a very dangerous game: “…The Chinese government has long sought to shape and control information, but the scope and intensity of this effort was something new — and its origins could be traced to a 61-year-old bookseller and a few stacks of forbidden titles. “I never expected anything like this, just as a poor man never dreams of striking it rich overnight,” Lam said. Throughout his ordeal, he had to remind himself that in China, as in his books, the line between the outlandish and the ordinary is often too thin to register. “Contemporary China,” he said, “is an absurd country.”…Ask a publisher in Hong Kong and he or she will tell you that the phrase “banned books” is something of a misnomer. No one within Hong Kong, a semiautonomous Chinese territory, wanted to squash the publishing industry. That dictate came from Beijing and held limited legal force in Hong Kong. For 60 years the city had protection from direct interference, first as a British colony and then, since 1997, under an agreement with Beijing known as “One Country, Two Systems.”…”
Consumer Reports – “When you fill a prescription at your local drugstore, you probably assume that using your insurance is the best—maybe even the only—way to pay. So you might be surprised to learn that you can sometimes pay less if you don’t use your insurance. And there’s a good reason that counterintuitive cost-saving strategy isn’t widely known. Pharmacists are often bound by “gag clauses” in contracts with pharmacy benefit managers (PBMs)—companies that act as go-betweens for drugmakers, insurers, and drugstores—from sharing that information. Gag clauses are particularly worrisome given the results of a March 2018 study in JAMA – Overpaying for Prescription Drugs: The Copay Clawback Phenomenon. It found that for one in five prescriptions, insurers required people to pay more for their medication with insurance than what they would if they simply paid the pharmacy’s retail price. The good news is that there’s a simple way to get past the problem of gag clauses. Just ask a pharmacist “how much would you charge me if I didn’t use my insurance,” says Victor Curtis, R.Ph., senior vice president of pharmacy for Costco. That allows him or her to have a candid conversation with you about the price of your medication..” [h/t Pete Weiss]
Berkeley News: “The fastest-growing course in UC Berkeley’s history — Foundations of Data Science — is being offered free online this spring for the first time through the campus’s online education hub, edX. Data science is becoming important to more and more people because the world is increasingly data-driven — and not just science and tech but the humanities, business and government. “You’ll learn to program when studying data science — but not for the primary purpose of building apps or games,” says Berkeley computer science Professor John DeNero. “Instead, we use programming to understand the world around us. ”The course — Data 8X (Foundations of Data Science) — covers everything from testing hypotheses, applying statistical inferences, visualizing distributions and drawing conclusions, all while coding in Python and using real-world data sets. One lesson might take economic data from different countries over the years to track global economic growth. The next might use a data set of cell samples to create a classification algorithm that can diagnose breast cancer. (Learn more from a video on the Berkeley data science website.)
OUPBlog: “On 20 April 1974, President Richard M. Nixon declared National Volunteer Week those Americans whose unpaid “efforts most frequently touch the lives of the poor, the young, the aged and the sick, but in the process the lives of all men and women are made richer.” Since that time, this commemoration has been extended to a full month to recognize the nearly one-in-four Americans, numbering nearly 63 million, who offer their time, energy, and skills to their communities. Volunteer activities are far-ranging and encompass activities like tutoring school children, beautifying run-down neighborhoods and littered highways, planting community gardens, giving tours of historical sites, ringing up purchases at a hospital gift shop, delivering meals to homebound older adults, performing music for nursing home residents, or offering one’s professional, managerial, or organizational skills to non-profit organizations.
While it might appear that older adults are the recipients of volunteer labor, they actually play a large and vital role in the volunteer work force. A recent study by the Corporation for National Community and Service documented that more than 21 million adults aged 55 and older contributed more than 3 billion hours of volunteer service to their communities in 2015, with these contributions valued at $77 billion.
Each April, National Volunteer Month provides a time to celebrate the contributions of volunteers young and old, raise awareness of the personal and societal benefits of volunteering, increase public support for this vast and often invisible unpaid workforce, and educate potential volunteers about the opportunities available to them. In honor of the 21 million older adult volunteers, we have created a reading list of articles from Gerontological Society of America journals that reveal new scientific insights into the benefits of volunteering for older adults and the people and communities they help…”