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When I teach civil rights law, I always start the semester with a misleadingly straightforward hypothetical scenario. Imagine a police officer pulls over an unarmed driver for a broken taillight and eventually shoots and kills the driver. Did the officer break any criminal or civil rights laws? This exercise never fails to set off a fiery debate: Did the driver obey the officer? Why couldnt the cop have used a taser? Dont people have a right to not to be killed over a minor traffic infraction? And sooner or later, one student typically reminds the class of a fundamental point about America: But hes a police officer.

Think about that. But hes a police officer.

When cops, unlike average civilians, deploy brute force under certain circumstances, we excuse the violence as law and order. But when law enforcement officers abuse their authority, violating our rights, we have federal criminal civil rights law to hold them accountable.

Except we pretty much dont.

Section 242 of Title 18 of the federal codemakesit a crime for a public official acting in their official capacity to willfully deprive a person of their constitutional rights. Yet prosecutors rarely bring charges under the statute, averaging just41cases per year. The recent federal indictment of the Minneopolis police officers related to the killing of George Floyd is an exception that highlights just how infrequent such prosecutions are, even when they are clearly warranted.

Why? The answer boils down to a little-known 1945 Supreme CourtcasecalledScrews v. United States.

In that case, Sheriff Claude Screws of Baker County, Georgia, had arrested Robert Hall, a Black man, for allegedly stealing a tire. Screws and two other officers then drove Hall to the local courthouse, where they bludgeoned him while he was handcuffed with their fists and a blackjack. The officers then dragged Halls limp body from the courthouse to the jail and called an ambulance. Hall died within the hour.

Screws was charged and convicted under the law known today as 242. But he appealed. Screwss argument went something like this: because 242 is so poorly written, he couldnt have known that he was breaking it. And punishing him for a law that he couldnt have known he was breaking, his logic ran, violated his due process rights under the Fifth Amendment.

The Supreme Court agreed and overturnedScrewss conviction. To hear the justices tell it, the statute was indeed so vague that it had failed to give him fair warning about what he could and couldnt do. But rather than strike down 242, the Court decided instead to save the law from unconstitutionality, holding that to violate the law, a public official need willfully deprive a person of their constitutional rights.

If only curing 242s deficiencies had been so simple.

But Congress can fix it, and the Brennan Center has published areportlaying out a blueprint enabling lawmakers to do just that. And it is essential because there are so many places where a lack of local accountability allow police to act with impunity. The broad strokes are illustrated by our two main suggestions.

Start with 242s due process problem. Recall from theScrewscase that criminal defendants bear a right to know what conduct is illegal. Our first recommendation would take care of this by having Congress spell out what conduct is off limits. It can do this by including some of the most egregious criminal civil rights violations the Supreme Court has long understood as out-of-bounds excessive force, sexual misconduct, and deliberate indifference to the medical needs of a person in custody.

Turn now to 242s high standard-of-proof problem. Thanks to theScrewsopinion, prosecutors must establish beyond a reasonable doubt that a public official willfully deprived a person of their rights. But proving specific intent basically, establishing what a person was thinking when they acted is a difficult needle to thread. Hence prosecutors reluctance to bring 242 charges. Indeed, just look at what all it took for Derek Chauvins 242 indictment to happen: a chilling video capturing the barbaric plunder of George Floyds body that sparked a national racial awakening.

Our second recommendation would remedy this. Congress should lower 242s intent standard from willfully to knowingly or recklessly. No longer would a jury need to try to peer into a defendants mind as part of finding a defendant guilty.

By taking together our twin suggestions, Congress would make it easier to pursue and prove 242 violations. And that would signal that our Constitution cannot tolerate palpable misconduct and brutality. That the lives of those routinely subjected to state cruelty matter. That America can be better than this.

Read more:
How Congress Can Give Teeth to the Federal Law on Police Accountability - brennancenter.org

Why are police being trained to kill their fellow residents? How did ordinary people come to be the enemy? It seems traditional police have been displaced by a kind of military force where a candy bar, cellphone or raised hands can all get you killed. The more weapons police acquire, the more they opt to shoot first and call the ambulance or coroner later.

Have we forgotten Americans have the Bill of Rights, the constitutional amendments meant to protect U.S. citizens from government overreach? The Fourth Amendment is the right to be secure in our home, person and effects unless a warrant is issued. The Fifth Amendment is the right not to bear witness against ourselves. The Sixth Amendment is the right to a speedy trial with impartial jurors and a lawyer. The Eighth Amendment is no excessive bail or punishment. The 14th Amendment, though not in the Bill of Rights, says no person shall be deprived of "life, liberty, or property, without due process of law." Please look them up.

The job of peace officers is to arrest a suspect who is presumed innocent until proven guilty under U.S. laws. When police officers take on the added roles of judge, jury and executioner, the rule of law vanishes and injustice reigns. Lady justice is not only blind, she is also colorblind.

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Originally posted here:
Your Views: Police overstepping their roles too often - Gazettextra

While the details of the WTO patent waiver have not been determined (or more properly negotiated), it is important to consider the structure of the international trade regime in which the waiver will operate and the consequences of any agreement defining exactly what will be waived.

The GATT/TRIPS agreement is a treaty, which (of course) is an agreement between countries, and disputes and accommodations are between their governments. The extent to which a private company's patent or other IP rights are protected under the terms of these agreements depends on actions of these governments in enforcing them on the company's behalf. Thus, for protections like patents, a government can agree to "turn a blind eye" to infringement by companies in other countries (or other governments) by refusing to press the rightsholder's case before the WTO, to pressure the governments unilaterally (as in the Watch List and Special Watch List of the U.S. Trade Representative's Special 301 Report), or otherwise support a private company's private actions using an infringing country's legal system. Such "passive" actions (i.e., refusing to enforce rights in violating or "scofflaw" countries) requires very little affirmative action by a government. These are the types of de facto waivers that can be effective, for example, for patented drugs that can be produced by conventional drug production technology wherein description of an active pharmaceutical ingredient molecule.

The details of COVID vaccine production have been set out in various new sources (see Neuberg et al., "Exploring the Supply Chain of the Pfizer/BioNTech and Moderna COVID-19 Vaccines"; Weiss et al., "A COVID-19 Vaccine Life Cycle: From DNA to Doses," USA Today, Feb. 7, 2021; King, "Why Manufacturing Covid Vaccine to at Scale Is Hard," Chemistry World, Mar. 23, 2021; Cott et al., "How Pfizer Makes Its Covid-19 Vaccine," New York Times, April 28, 2021). But these are certainly not disclosed in the detail necessary for commercial production, and the complexities of production are illustrated in graphics from the Times article, wherein the DNA is prepared in Chesterfield, MO and shipped to Andover, MA for mRNA production; then the mRNA shipped back to Chesterfield or Kalamazoo, MI for packaging into the vaccine nanoparticles; and then sent back to Andover for testing before release. While some of this complexity may be company-specific, it also represents the different technological requirements for preparing an effective vaccine. It is unlikely that most of the countries in favor of the waiver (except India and South Africa) have the technological infrastructure for producing the vaccine. And the company in India, the Serum Institute ("the largest vaccine maker in the world"), having the greatest likelihood of being able to reproduce the vaccine if the waiver is put in place recently was forced to "hand over its vaccines to the [Indian] government," according to an article in the New York Times (Schmall et al., "India and Its Vaccine Maker Stumble over Their Pandemic Promises," May 9, 2021).

It is evident that, in the almost total absence of patents involved in COVID vaccine preparation, the disclosure needed to reproduce these vaccines (no matter how difficult that may be in practice) are protected by trade secrets. If the WTO imposes this waiver, the question will be whether the U.S. will compel disclosure of trade secret owned by U.S. companies, or have disclosed them to the extent such secrets are part of regulatory filings. Either action would constitute a "taking" under the Fifth Amendment ("Nor shall private property be taken for public use, without just compensation"); see Epstein et al., "The Fifth Amendment Takings Clause," Interactive Constitution: Common Interpretation. Seemingly simple and straightforward, almost every word in the clause is open to interpretation, none perhaps as much as determining what "just compensation" entails. It is likely that, should the government act peremptorily with regard to takings of trade secrets justified by any WTO waiver clause, the effect on trade secrets will carry the greatest consequences and be the cause of most controversy. Indeed, the prospects arising therefrom are likely some of the biggest impediments towards effectuating any waiver in a manner that could have any chance of achieving the stated goal of facilitating COVID vaccine production.

This prospect also raises the issue of how any such waiver will be implemented in the U.S. Treaties are not necessarily "self-executing" and need to become enforceable through an Act of Congress. The distinguishing feature of such treaties are that "provisions in international agreements that would require the United States to exercise authority that the Constitution assigns to Congress exclusively must be deemed non-self-executing, and implementing legislation is required to give such provisions domestic legal effect." See Mulligan, "International Law and Agreements: Their Effect upon U.S. Law," Congressional Research Service 7-5700, Sep. 19, 2018. The necessity for Congress to act, although not having the heavy weight that entails approving treaties (i.e., a two-thirds majority vote in the Senate) nonetheless could be expected to face significant opposition should it be interpreted to permit the government to exercise a form of "eminent domain" over pharmaceutical companies' trade secrets. In this regard such an act could readily be characterized as "forced technology transfer" and even IP theft, should, for example, such trade secrets be capable of use to weaponize rather than immunize against viral infections.

The administration's public position raises the likelihood of an infringement on private property unprecedented in the U.S. It also has implications for other aspects of foreign policy; for example, at least some of the trade secrets belong to BioNTech, a German company. Germany has not agreed to the waiver, and should the U.S disclose BioNTech's trade secrets, no doubt Germany would have cause to seek redress against America. This is but one of the possible legal consequences that the recent capitulation to the purported global "kumbaya" of the WTO waiver is likely to create.

More complications will likely arise as the negotiations proceed. Provided the Administration is properly advised and the waiver properly limited (e.g., to patents) these and other deleterious consequences may be avoided. In view of the possibility of serious liability arising by improvident acquiescence to generally uninformed calls for a broad waiver, it might not be a bad idea for all those involved in innovation (universities, technology transfer offices, pharmaceutical companies, patent lawyers, and economists) counter these opinions with the facts and make their viewpoints known and voices heard.

Continue reading here:
If the Devil of the WTO IP Waiver Is in the Details, What Are the Details? - JD Supra

Listen to SocioEconomic Research Prof. Oren M. Levin-Waldmans discussion of his most recent essay, The Argument that Labor Shortages are Due to Additional Unemployment Benefits isOverly Simplistic this Wednesday, May 19, 2021. He can be heard every second Wednesday morning from 10-11am EST on the Westchester On the Level broadcast. The broadcast is heard Live or On Demand by clicking onto the hyperlink noted http://tobtr.com/s/11941110 Please note that the hyperlink changes every second week and is specific to the essay discussed. Listeners are welcome to share their inquiry with respect to the topic of the subject discussed. The call-in number to the broadcast is 1-347-205-9201.

NEWARK, NJ May 19, 2021 The latest jobs report is weak noting that there are labor shortages, and that employers are having a hard time filling jobs. Of course the typical conservative response has been that because the federal government has extended Unemployment Insurance (UI) benefits and have added to the payments an additional supplemental benefit, unemployed workers have no incentive to return to work. Although this argument is nothing new and reflects the standard reservation wage theory, it is also overly simplistic.

The purpose of UI was to provide replacement income so that unemployed workers would have time and space to match their skills and abilities with those jobs that are available. In the past, especially in a manufacturing based economy, employers knowing that their workers could receive UI benefits, had little incentive to maintain their workforces during a downturn. Because most states finance UI through ratables, those firms with a greater history of layoffs can be expected to pay higher premiums. Still, employers never paid the full costs of laying their workers, and workers have never received sufficient replacement income to support themselves.

Although many countries around the world provide benefits between 75 to 80 percent in lost wages, most states barely reach 50 percent, and even then there is a maximum so that those on the higher end are effectively getting 20- 30 percent in replacement income. What, then, is the incentive not to work? Some studies in the past have suggested that UI generally lengthens unemployment spells as workers will typically wait until their benefits are about to run out before they seriously start looking for jobs. At best, ones unemployment is prolonged by a couple of weeks, but it is hard to believe that most people would turn down a job if their UI replacement income is only a fraction of what their market income would be from a job.

The reservation wage holds that there is a wage beneath which one will not accept a job. This reservation wage is usually the last wage received prior to unemployment. Most state UI programs require unemployed workers to accept suitable jobs that are offered. One is not required to accept a job that pays more than 10 percent less, but suitable in many cases will be defined as a job paying up to 10 percent less. Therefore, proponents of the reservation wage theory maintain that UI generally speaking, and excluding any type of supplemental payments, similarly prolongs unemployment.

Now we can address the current labor market where the unemployment was caused by government mandated shutdowns in response to a pandemic. A policy response preferable to the various COVID relief packages would have been to not send every worker, regardless of whether they lost their jobs, a stimulus check. Rather those locked out of their jobs and those business owners forced to close should have received 100 percent compensation in lines with the Constitutions Fifth Amendment Takings clause.

Both business owners property and workers property in their labor was effectively seized by the state without just compensation. Yes, the initial CARES Act, provided loans to businesses which would be forgiven if they maintained their workforces. Perhaps if shutdowns only lasted a few weeks, as we were initially told in order to flatten the curve, this would have been enough. But shutdowns ended up lasting for months, and even businesses that could reopen could only do so at in many cases 30 percent capacity. Given that, how likely is it that these workers would have been called back?

To simply blame labor shortages on supplemental benefits misses much of what has been happening, as well as it reveals many hardships particularly for low-wage workers. Workers with children but with no place to put their kids are not likely to return to work. Most of the countys schools have been operating remotely, thereby forcing workers to stay home with their children.

Still, the question remains: Are current labor shortages a function of generous UI payments, especially the supplemental payments? It is possible particularly at the low end of wage scale, but as one moves up on the wage scale, it is highly unlikely. Any number of workers could still be afraid to return to work because the nature of their jobs is such that they will have high exposure to other people (many of whom have still not been vaccinated) and therefore they are at a greater risk of contracting the virus themselves.

Although it is possible that these benefits, particularly at the low end of the wage distribution may be a factor in these labor shortages, it is most likely not the determining factor. And yet, it begs another question: if employers really believe that workers are forsaking work just to get more benefits, then why not respond according to the dictates of the marketplace? The laws of supply and demand still apply here. Employers seeking workers amid labor shortages can always offer higher wages.

Perhaps that is the rub. Employers dont really want to pay workers more because it will increase their costs and/or eat into their profits. It is always easier to blame workers as they have done for years. In the face of global competition, businesses have often accused workers of wage rigidity, i.e. not being flexible in their wage demands.

Is there no room for compromise? In all likelihood these defined supplemental payments were offered because it was easier for state labor departments to offer. The policy should have been designed to ensure workers would get up to 80 percent, and maybe even 100 percent of their wages, but that would have been much more complicated, as each workers record would have to be searched and evaluated on its own merits and according to a formula. This would no doubt result in workers experiencing delays in getting anything.

The UI system does need a complete overhaul. States should be offering higher reimbursement rates, and they should be making it more costly for employers to lay their workers off. And yet, since these extended benefits are temporary, states concerned about their effects could always tweak them. Why not require that workers accept jobs that are offered with the state paying them the difference between their employers wages and their current benefits? If jobs remain unfilled, we will know that this is not the main reason. Moreover, it enables employers to continue offering lower wages.

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Author of Restoring the Middle Class Through Wage Policy: Arguments for a Middle Class

https://www.palgrave.com/gp/book/9783319744476;

Understanding Public Policy in the United.States.

https://tophat.com/marketplace/social-science/political-science/textbooks/understanding-public-policy-in-the-united-states-oren-levin-waldman/3473

The Minimum Wage: A Reference Handbook

https://www.abc-clio.com/ABC-CLIOCorporate/SearchResults.aspx?type=a

Wage Policy, Income Distribution and Democratic Theory

http://www.routledge.com/books/details/9780415779715/#reviews

The Case of the Minimum Wage: Competing Policy Models

https://www.sunypress.edu/Searchadv.aspx?=Oren+M.+Levin-Waldman&txtISBNSearch=&txtKeyword_summary_or_toc=&txtKeyword_subject=

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BIOGRAPHY

Oren M. Levin-Waldman is faculty member in the School of Public Affairs and Administration at Rutgers University-Newark, and Socioeconomic Research Scholar at Global Institute for Sustainable Prosperity Research.

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Learn more at the professors Website: https://www.econlabor.com/. Direct email to olevinwaldman@gmail.com

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Oren M. Levin-Waldman, Ph.D

https://www.econlabor.com/

Office: (914) 629-6351

Excerpt from:
The Argument that Labor Shortages are Due to Additional Unemployment Benefits is Overly Simplistic By OREN M. LEVIN-WALDMAN - Yonkers Tribune.

On March 12, 2021, the US Department of Health and Human Services (HHS) amended, its Declaration under the Public Readiness and Emergency Preparedness Act (PREP Act) for the seventh time. The Seventh Amendment expands the category of individuals authorized to administer COVID-19 vaccines to properly trained individuals even if prescribing, dispensing, and administering vaccines is not within the scope of their license or usual responsibilities. Specifically, the Amendment action authorizes dentists, EMTs, midwives, optometrists, paramedics, physician assistants, podiatrists, respiratory therapists, and veterinarians, as well as medical students, nursing students, and other health care students in the professions listed under the PREP Act with proper training and professional supervision, to serve as vaccinators. As covered persons under the Act, the Amendment also affords these individuals sweeping PREP Act immunities from state and federal personal injury claims arising from the authorized administration of the vaccine (for more on PREP Act immunities, see our reporting here).

In particular, HHSs latest amendment increases the COVID-19 vaccine workforce to now cover the following people (subject to certain training and certifications):

Like the Fifth Amendment to the Declaration, which as we reported here also added additional categories of qualified people to administer COVID-19 vaccines, any state or local law that prohibits or effectively prohibits the individuals authorized in the Seventh Amendment from administering COVID-19 vaccines is preempted.

As with the Trump Administration before it, this amendment represents a continuation of the Biden Administrations expansion of the PREP Act in an effort to provide a pathway for states to expand and support their vaccination workforce to defeat the pandemic.

View post:
Seventh Amendment to PREP Act Declaration Further Increases the Pool of Authorized COVID-19 Vaccinators - JD Supra