Three faculty members of the University of Illinois College of Law will provide commentary for WILL-AM's Legal Issues in the News, airing Monday mornings at 7:35 am.More from Legal Issues in the News »
Verity Winship University of Illinois College of Law The Supreme Court often makes headline news. But most of the judging in the United States takes place outside of the highest court. This radio commentary explores some fundamental differences between the job of Supreme Court Justices and other judges, especially trial court judges. It makes the point that your opinion about the Supreme Court – whatever it is - should not necessarily dictate how you think about judging more generally.
A proposal on how we draw legislative districts is the most important state issue in the coming election. Whether we will get to vote on the initiative is now in the hands of the Illinois Supreme Court. Known as the Independent Map amendment, the proposal would amend the Illinois Constitution to remove the redistricting power from state legislators and place it in the hands of an independent commission. On July 20, a Cook County circuit judge held the ballot initiative did not follow the rules on how we can amend our state constitution. Supporters of the initiative have appealed to the state supreme court. When we enacted our state constitution in 1970, we specified rules on how we can amend it. Illinois case law makes clear that the courts should block a proposed amendment that does not follow these rules. These rules say the principal way we can amend the Illinois State Constitution is through a proposal that comes out of the General Assembly and then is put to the voters in a general election. The reason for that limitation was to avoid the experience of some other states where voter initiatives had led to a hodgepodge of substantive laws that were difficult to change when it became necessary to do so. However, the drafters of our state constitution thought it was a bad idea to let the General Assembly be the sole gatekeeper for proposals to change the part of the state constitution that governs the legislature. That part is Article IV. Thus, a voter initiative can amend the state constitution but only if "limited to structural and procedural subjects contained in Article IV." Most everyone, including the Cook County court, seems to believe that legislative redistricting is a structural and procedural subject contained in Article IV. In debates at the Illinois Constitutional Convention, delegates even cited legislative apportionment as an example of the sort of topic that could be addressed by a voter-initiated amendment. Why, then, is there any controversy? Although there are some other issues, the legal case principally revolves around the way the Independent Map amendment would be implemented. At the heart of the Independent Map amendment is a commission that would draw the legislative maps. The Illinois auditor general would create both the panel to review applicants for the commission as well as then administer the application process for the commission itself. If the commission was not able to meet the deadline for a redistricting plan, then the Fair Map amendment specifies that two justices of the Illinois Supreme Court from different political parties would appoint a special commissioner to draw up a redistricting plan. The opponents of the Independent Map amendment point out that different articles of the Illinois Constitution govern the auditor general and state judiciary. For this reason, the Cook County court found the Independent Map amendment was not limited just to subjects contained in Article IV of the state constitution. The supporters of the Independent Map amendment counter that any redistricting plan will have to be implemented by someone. Requiring that someone to be a subject covered by the legislative powers in Article IV essentially would mean voters could not undertake a redistricting initiative. The Independent Map amendment is not an end-run around the usual amendment process to change substantive law and thus does not subvert the purpose for the limitation on voter initiatives. How one feels about the case may depend largely on the long-running debate about whether courts should follow only the literal text of a document or also consider other interpretive guideposts like the text's purpose. At the Illinois Supreme Court, the few precedents provide no clear outcome. The court ultimately has little to constrain it from coming out either way on this case. And, because the case involves issues of state constitutional law, the state supreme court is the final say. We have an elected judiciary in Illinois meaning citizens who are dissatisfied with whatever the court ends up doing can show their displeasure at the ballot box in future elections.
Business in America evolved around the idea that employees should work eight hours a day, five days a week, for a forty-hour work week. Since 1940, when Congress limited the workweek to forty hours in the Fair Labor Standards Act, this has become the norm. But how often do you get a call from your boss after hours or check your work email from home? If you added all the extra time spent working from home, how many hours would you find yourself working every week? Every time you pick up your phone or open your computer outside of your job to do work, you are actually working overtime without getting paid to do so. In the United States, this is so common it is virtually expected for working employees as part of their regular employment. In fact, a 2008 study showed that half of all American employees who use email during their jobs check their work email on weekends, and over a third do it even on vacations. Are American workers being unjustly deprived of overtime pay? Or rather, do changes need to be made in the workplace to keep companies from overworking their employees? European countries focus on the latter question; changing the traditional workweek into one that favors employees during their free time. German companies, including BMW and Volkswagen, implemented restrictions on emails after normal work hours to prevent their employees from working past the clock. These companies wanted their workers to relax in their off time and prevent long-term burnout from having to constantly check their phones and email. Following in Germany's footsteps, France banned companies from emailing their employees on weekends and holidays, and also limited their ability to send emails after hours. The United Kingdom also began having discussions of passing their own version of the law. How likely is it that this new way of thinking crosses the Atlantic and enters the American marketplace? You may be surprised. Although outright bans on after-hours work-related emails and calls are not being considered, those communications may soon be considered for overtime pay. Last August, the Department of Labor began seeking input from the public on a proposal to pay employees for using electronic devices to perform work after they go home. While this is only a preliminary step, it does show that the American government is at least interested in the idea of regulating how much contact a company may have with its employees outside of regular working hours. If it were enacted today, the proposed rule would not actually do much. Currently, only those employees who make less than $455 a week are eligible for overtime pay, and those are not usually the types of jobs that require the use of email. However, starting on December 1 that minimum salary rises to $913 a week, or over $47,000 per year, which will encompass many more jobs that use electronic devices to stay connected with their workplace after hours. The new rule will affect nearly 200,000 workers in Illinois alone. Many issues will have to be resolved in determining whether the proposed after-hours communication rule is feasible in the United States, including how to track the time an employee actually spends using electronic devices to communicate with their workplace. Still, this proposed rule shows a willingness to encourage companies to allow their employees to remain free on their free time. Perhaps the prospect of paying employees overtime will move us closer to our European counterparts and re-introduce the notion of separating work time from free time.
Fifty years ago, the Freedom of Information Act, or FOIA, became the law of the land. Gaining passage of FOIA took years of work by its champions, California Congressman John Moss and a collection of journalists. Its enactment was opposed by a host of federal agencies. Once the hearings were concluded and FOIA was eventually was passed by Congress, President Lyndon Baines Johnson thought about vetoing it. But he signed the law, and FOIA became the prime tool to get documents from the federal government. FOIA's key provisions create a presumption in favor of public access to all government information. It puts the burden on the government to demonstrate that a particular piece of information falls outside that presumption, and may properly be kept secret. But the government may keep information secret only if it falls within nine specified exemptions. These exemptions concern national security, law enforcement proceedings, trade secrets, personnel files, and other sensitive matters. Of course, most agencies would prefer to withhold information that shows them in an unflattering light. So FOIA now includes response time requirements as well as an appellate process, and also has a provision that permits requestors to file lawsuits if information is not provided. Through the decades, FOIA has provided the mechanism to uncover untidy management and unsavory conduct. For example, this year, FOIA documents revealed that the Transportation Security Administration paid over one million dollars for a simple program that randomly displays an arrow pointed to the right or left on personnel iPads. The program is used so that TSA employees can direct passengers to the right or left for airline security screening. Also this year, FOIA documents confirmed that Pentagon officials deliberately misled Congress on the Defense Department's handling of sexual assault cases in order to undermine reform legislation. Older FOIA disclosures documented how the federal government turned down millions of dollars in aid from its allies after hurricane Katrina. And FOIA materials also showed that Ashton Carter, the Secretary of Defense, used his personal email account to conduct government business in violation of Defense Department Rules, even after news broke about Hilary Clinton's personal emailing while Secretary of State. Occasionally, a FOIA'd document reveals something just plain amusing, such as the fact that former attorney general Eric Holder used Kareem Abdul-Jabbar's birth name, Lew Alcindor, as his official email address. Apparently, he is a fan. One unintended consequence of FOIA has been a shift in communication styles. In response to the revelation about personal email accounts, defense Secretary Ashton Carter's spokesman, Peter Cook, advised that Mr. Carter "strongly prefers to conduct communications on the phone or in person, and like many of his predecessors rarely uses email for official government business." This is not surprising; FOIA cannot be used to find out who is meeting with whom, or to get information about what was said at meetings, unless it's memorialized in some way. So FOIA encourages a shift to verbal communications and limited record-keeping. There are also state Freedom of Information Acts, and they, too, have enforcement problems. For example, the Illinois Legislature amended the Illinois FOIA in 2009 to create an appeals process for requestors who were improperly denied access to information. But the Illinois legislature then created an exception to the right of appeal for documents the legislature itself failed to produce. According to Supreme Court Justice Louis Brandeis, "Sunlight is said to be the best of disinfectants; electric light the most efficient policeman." Getting that light to fully illuminate what should be seen remains the challenge.
Unless you've been living under a rock, you're probably aware that Nintendo just released Pokemon Go for Android and iOS smart phones. Pokemon Go is an augmented reality game that is becoming a sensation. The market value of Nintendo went up by billions of dollars in the first few days following its release. But there are a few things to keep in mind. When you download and install Pokemon Go, you give the app permission to access your phone's camera and GPS, among other things. You set up your avatar and catch your starter pokemon. Then you walk. The game shows your avatar on a cartoonish map using your phone's GPS. A small bar at the bottom right lets you know when there's a pokemon nearby. Once you're close enough, the pokemon will show up on your map, and you can try to catch it. Tapping on the pokemon when it appears will change your screen so that the animated character is laid on top of the camera view. When you rotate your camera, you will eventually see a pokemon sitting on top of something that is really in front of you. And it's not just your phone either. Other nearby players can find the same pokemon in the same spot. Flick your finger to throw a pokeball at it, and if you're lucky, you'll catch it. It's a game that uses the real world, and players have to walk around to play. Your neighborhood park probably has an in-game landmark, called a pokestop, where you can get free pokeballs and other in-game items. There are in-game gyms assigned to real world locations, and by going to a location, you can train your Pokemon or fight a rival faction. It's a brave new world for video games, and the release of Pokemon Go is having unexpected side effects. In the days after its release, bloggers and news agencies have reported on the game's potential benefits for both mental and physical health. Strangers have bonded over Eevees and Onyxes. But there are also some security concerns. One player wrote a blog entry about the disturbingly broad permission settings that some users encountered with the app when they logged in using their Google accounts. That blogger installed the game on iOS, and the app's permissions when he installed it, allowed the app full access to his Google account. Not all iOS users are reporting this, and Google and Nintendo have confirmed that this is a bug that will be fixed. However, even when this bug is fixed, keep in mind that Pokemon Go still collects a lot of information from you. If you are concerned about privacy, you may want to stick to Pokemon games made for Nintendo consoles. Another issue is the potential for crime. One of the items available in Pokemon Go is called Lure. If you activate a Lure at a pokestop, it will draw pokemon to the location. Nearby players will see flower petals on their screen to let them know that this is a good place to look for pokemon. In the game's first weekend, four teenagers allegedly used Lures to attract players and then rob them. Police forces are said to be receiving training about Pokemon Go, probably because of such incidents. Parents are also advised to take precautions to protect their children from predators who might use Lures to attract potential victims. Fortunately, when a Lure is set, the game displays the user name of the player who set it, so Lures are not being used anonymously. On the less harmful side, businesses located near pokestops can use Lures to attract customers. In short, if you play Pokemon Go, do so carefully and pay attention to your surroundings.
The New York Times and CNN recently ran interviews with Justice Ruth Bader Ginsburg where she was outspoken in her opposition to the candidacy of Donald Trump. In her New York Times interview, Ginsburg said that she could not imagine what the country would be like with a Trump presidency and the mere possibility made her want to move to New Zealand. To take partisanship out of it, imagine if the interviews were instead with a conservative Supreme Court justice who remarked that the thought of Hillary Clinton's election made him consider moving to New Zealand. Regardless of the candidate at which they are directed, do we want our Supreme Court justices to publicly comment on candidates for political office? Some have criticized Justice Ginsburg's comments because the federal courts, and especially the Supreme Court, should appear to the public as being above the political fray. Under this reasoning, Justice Ginsburg has undermined confidence in the Supreme Court because she has made it appear more like the other political branches of government. Those arguments have some validity, but they omit an important point. Our judicial officers not only should appear to be above the political fray, they should do their best to actually be above the political fray. My first job out of law school was clerking for a federal appeals court judge. One day we were in chambers working on a case that was before the court, and I started to comment about another judge's likely vote given that he was a conservative. The judge cut me off in mid-sentence, saying "We do not think that way in here." He was right. Judges have the same mental biases and reasoning shortcuts we all have. As humans, we are hard-wired to use these heuristics, and as a novice lawyer that is what I was doing. Because I thought the "conservative" position was preordained in this case, I did not need to reason any further. My vastly more experienced boss was much better at avoiding these logical misfires and therefore much less likely to decide a case based on his subtle and often subconscious biases. I am not suggesting that judges have a super-human ability to completely overcome their political leanings and other preconceptions about the world. Many studies confirm that ideology affects judicial decision making. These studies, however, do not find that ideology explains all of judicial decision making let alone support the idea that judges should just throw up their hands at the futility of trying to overcome ideology. Indeed, there are some studies that suggest that more legal experience leads one to be less likely to be influenced by ideology when doing legal decision-making tasks. When one looks at our sometimes arcane rules for court procedures or even the physical trappings of our court buildings, it is tempting to conclude they are there only for the outsiders – to impress upon the public the majesty and neutrality of the court system. That is only part of the story. They also are there to impress upon the judges that society relies on them to do their best to be rational decision makers, not controlled by their passions. The Judicial Conference of the United States has adopted the Code of Conduct for United States Judges. It states that a judge "should not . . . publicly endorse or oppose a candidate for public office." In making her remarks, Justice Ginsburg did not violate this ethical code because it does not apply to Supreme Court justices. Whether Supreme Court justices should be an exception to a code of ethics that applies to every other federal judge is a subject for another time. But the code does capture our aspirations for our judges – among them a call not just to appear to be above the political fray but to strive to actually do it. In making her remarks, Justice Ginsburg did not live up to that aspiration.
Sean Anderson University of Illinois College of Law By: Sean Anderson Recently, I appeared as a contestant on the TV game show Jeopardy. Inspired by that experience, today's category is "game show law," although I'm afraid I don't have any prize money to give away. As a contestant on a game show, your entire experience is surrounded by law. To mention one example, you have to sign documents agreeing to lots of stuff you will and won't do, which brings into play the field of contract law. But I want to focus on a different aspect of game show law: the still-palpable effects of the infamous quiz show scandals that happened almost sixty years ago. Back in the 1950s, it came to light that the producers of several major shows had been coaching contestants in order to create maximum drama and deliver champions they thought would please viewers. When those manipulations became public, the outcry was swift and huge. Ratings for game shows dropped, and most were pulled off the air. Congress got into the act, passing an amendment to the Federal Communications Act that outlawed a range of practices that might predetermine the outcome of a game show, such as supplying contestants with secret assistance or inducing them to "throw" all or part of a game. Based on my Jeopardy experience, I can tell you that the people who produce TV game shows today work very hard to avoid even the appearance that the results of their shows are in any way rigged. Before you go on the show, for example, they ask you multiple times to disclose any relatives or friends who work for the show or related employers, previous contestants you might know, and other connections that might trigger suspicion. Once you arrive to tape the show, you're subject to a whole host of rules designed to avoid even the slightest possibility that anyone could provide you with answers or other help. You have to turn off your cell phone. You're not allowed to talk to, or exchange signals with, anyone in the studio audience. You can't go anywhere at all during the taping day, including lunch, unless you're accompanied by one of the show's staff members. The show also maintains considerable separation between employees who deal with contestants and those who prepare the questions and answers, as well as anyone who, like host Alex Trebek, gets to see those questions and answers ahead of time. And finally, the show doesn't rely entirely on its own employees to maintain all those rules. The show pays an independent company to assign one of its employees to be on the set for each taping day, keeping an eye on the show's compliance with its own procedures and providing an outside hand in some of the key steps for maintaining the show's integrity. As I understand it, what I saw with Jeopardy is pretty typical of U.S. game shows these days. So next time you watch an episode of your favorite one, spare a moment to think of all these procedures, based on both law and the producers' self-interest in avoiding even a hint of anything fishy. And marvel that it all came about because of a scandal that happened six decades ago.
By: Paul Heald Paul Heald University Of Illinois College of Law Well, if you've seen them on Facebook or some other fringe media outlet, then you know that monkey selfies are all the rage. That's right, British photographer David Slater handed a camera to a madly grinning macaque in Indonesia and like any other self-absorbed Millennial, it immediately took a series of selfies. Such compelling pictures, in fact, that they've been copied all around the world. Taking umbrage at this exploitation of the macaque, the organization People for the Ethical Treatment of Animals (PETA) has filed a lawsuit in (where else?) San Francisco, demanding that all proceeds from the distribution of the images be collected for the benefit of the monkey. PETA claims that the monkey is the author and owner of the photo under U.S. copyright law. Now, Congress does have the power to pass laws for the benefit of non-humans, but the judge in a preliminary ruling has held that nothing in the Copyright Act suggest that monkeys can be copyright owners. And the Copyright Office, in a recent regulation, agrees. Well... fair enough, I suppose, but what about the claim of Slater that he, the owner and lender of the camera, is entitled to a copyright in the photos? Here's where things get interesting, and we have to travel back to the very first photograph case considered by the Supreme Court. In the 1880s, Napoleon Sarony staged a famous photo of dramatist and mega-wit Oscar Wilde. Shortly thereafter, he was ripped off by a lithographer who copied the photo. The infringer claimed that Sarony's camera had merely captured a pre-existing reality: Wilde, with a pensive expression, sitting down with a book in his hand. The photo, therefore, was unoriginal and could not be protected. This was an argument against the protectability of photography in general, the Court rejected it, noting the orginal choices made by Sarony in setting the launch background scene, posing Wilde, and lighting the set, it found the photo orginal and protected. Interestingly, the Court refused to hold that all photos are necessarily protected. The "ordinary" production of a photo might not pass the orginality test. So, we must consider whether David Slater made significant original choices in staging the monkey selfie. The facts surrounding the now-famous photo are a bit slim, but if he merely handed his camera over to the macaque and encouraged him to go at it, he probably cannot claim to have made an original contribution. I don't think that we can predict future courts would adopt a total copyright ban on animal camera handlers, however. One could imagine a moviemaker creating a highly original set, purposefully lighting it, and then strapping a carefully-calibrated camera on the back of a dog or cat. That might be enough original input from the movie maker to secure him or her a copyright in the resulting product. Interestingly, Slater claims that his English copyright has already been secured, and this rings true, given that the UK originality requirement is so low as to be merely a ban on plagiarism. The telephone white pages, for example, are sufficiently original to be protected by UK copyright, while here the Supreme Court has declared they are not. I'll conclude by noting that differences in the protection of fact-based works like the phone book between here and Europe are non-trivial. Here, facts are unprotected. A fact is not original and anyone can appropriate it. The EU has special protection for databases that can extend to facts. In the US, for example, I can scour the web pages of local newspapers and establish a useful movie times web site because the fact of when a movie start time is not original. If I do the same in the EU, I'm a law breaker. Hmmm... I think we can guess now why the macaque was grinning so crazily.
What if the phone company charged you for your phone calls based on who you were or what you were talking about? It sounds absurd in the telephone context, but that type of practice is at the heart of the modern net neutrality debate. For the last several years, broadband providers have been pondering the idea of creating a fast lane for Internet content. As a user, you wouldn't pay more, but the people who produce the content that you access may have to pay more if they want their stuff to get to you faster. If your favorite show was on both Netflix and Hulu, and your service provider had a fast lane agreement with Netflix, it would probably be more pleasant to watch the show on Netflix, instead of Hulu. But that doesn't have anything to do with the actual quality of the video streaming provided by Netflix or Hulu, just how much either of them is willing to pay for preferential treatment by your ISP. The federal court of appeals in the DC Circuit recently made its third ruling about net neutrality in the last seven years. The court defines net neutrality as "the principle that broadband providers must treat all Internet traffic the same, regardless of source." That case, United States Telecom Association v. FCC, resulted in this court upholding the FCC's 2015 Open internet Order. There are five open Internet rules in the Open Internet Order. The first three rules are bright line rules: No blocking content, no throttling traffic, and no paid prioritization of one type of traffic over others. The fourth rule is a general conduct rule and prohibits broadband providers from unreasonably interfering with users' choices or the service offerings of third party service providers like Netflix and Google. The fifth rule addresses transparency concerns. The recent ruling is the most recent step in protecting net neutrality, and its significance will be more easily understood with a brief history lesson. In 2007, Comcast was caught interfering with Internet traffic that used a specific peer-to-peer file transferring method, the bittorrent protocol. The FCC took administrative action against Comcast over this, but the DC Circuit Court of Appeals held that the FCC had not established that the agency had adequate authority under the law to require Comcast to follow open internet rules. That was Comcast v. FCC, decided in 2010. The FCC went back and identified a statutory source of authority for open Internet rules in its 2010 Open Internet Order. The rule was challenged by Verizon, and the DC Circuit heard arguments again. This time, the court agreed with the FCC that the agency has the statutory authority to enact open Internet rules – BUT the rules were still no good, because based on earlier cases, broadband providers were not telecommunication services, so the FCC had less authority to regulate their behavior compared to, say, AT&T's home phone service. That was Verizon v. FCC in 2014. This is where the 2015 Open Internet Order comes into play. The FCC reclassified wired and mobile broadband Internet access services as telecommunications services in its 2015 Open Internet Order that was just upheld by the federal appeals court in DC. The open nature of the Internet is important to preserve. It helps keep the playing field even, and supports new Internet startups that would not be able to pay extra for premium fast lane treatment. The fight for a free and open Internet may not be over yet, but open Internet activists have achieved a significant victory with this recent case.
Global Soccer, Corruption, and FIFA As a Victim of Crime (ReBroadcast)
FIFA – the organization that governs soccer worldwide – had much of its leadership indicted in 2015. Indictments pointed to corruption, misappropriation, embezzlement, kickbacks and bribes. Some FIFA officials pled guilty, promising to forfeit millions of dollars to the US criminal authorities. In March 2016, FIFA came forward to claim some of that money. It filed a "victim statement," explaining how it was harmed and why it should get its money back. This radio commentary looks at FIFA's role as a victim of crime.
Global Soccer, Corruption, and FIFA As a Victim of Crime (ReBroadcast)