A Trifecta of Illegitimacy

Let’s review a few basics about the Rule of Law in the United States of America.  First of all, the Executive Branch (in the form of the President) is given the power to enforce federal law by our United States Constitution.  In contrast, the Legislative Branch (in the form of the Congress) is given the power to make the law.  So, for example, if the Legislative Branch has passed a statute that grants all refugees seeking political asylum the absolute right to file such a claim when they reach our nation’s borders (which it has, in the Refugee Act of 1980), then the President cannot simply declare that right to be “suspended” and instruct officers with the Customs and Border Protection office to turn such refugees away when they arrive at U.S. airports or other ports of entry.

As a side note, none of the Executive Orders or Presidential Directives issued by President Obama relating to the enforcement of the immigration laws directly contravened explicit language contained in a statute passed by Congress.  The legal debate over the unilateral actions taken by President Obama concerned the scope of the President’s discretion to choose how to enforce the law and how to prioritize deportations.  They did not concern whether the President had the authority to order government officials to ignore explicit commands contained in the law.  The Order by President Trump to “suspend” the entry of refugees from specified countries without complying with the provisions required under the Refugee Act of 1980 is in direct conflict with an Act of Congress.

Second, the United States has signed treaties that obligate us to treat persons who are “refugees” in certain ways.

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Women in Wisconsin Law: Lavinia Goodell

This is the first part of a three-part series on Women in Wisconsin Law. 

Throughout Wisconsin’s history, women have played an instrumental role in the development of the state’s legal system. Among these women was Lavinia Goodell of Janesville, the first woman admitted to practice law in Wisconsin.

Before her move to Wisconsin, Goodell worked as an editor for several newspapers in New York. During this time, Goodell confided in a coworker that her life’s ambition was to become a lawyer. When Goodell’s parents retired to Janesville, Wisconsin, in 1871, she was convinced into joining them with her father’s promise that she would be able to study law. Upon arriving in Wisconsin, Goodell’s father helped his daughter find attorneys who would permit her to study law alongside them through an apprenticeship. After demonstrating her ability to successfully practice law as an apprentice, Goodell sought admission before the local circuit court and, with the support of several prominent local lawyers, was admitted to practice in the Circuit Court of Rock County, Wisconsin, in 1874.

After being admitted to practice law at this local level, Goodell opened her own law office that primarily represented woman and the elderly. Despite being able to practice at this local level without much difficulty, one of Goodell’s cases in 1875 was appealed to the Wisconsin Supreme Court. When the supreme court did not allow her to argue the case, Goodell filed an application for state admission.  

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Uber Retirement

Although by no means a new question regarding retirement, the noteworthy growth of gig companies in the sharing economy has renewed concerns that even more American workers will lack access to employment-based retirement plans.  Although some argue that the gig economy offers workers advantages including more independence and flexibility, company-sponsored retirement saving is not one of them.  This is a dangerous state of affairs, as employment-based retirement plans make up a critical part of an individual’s strategy for retirement security.

Such retirement plans, like the nearly-ubiquitous 401(k) plans, provide a necessary bulwark against destitution in old age, especially given that Social Security provides only partial income replacement and few Americans have put away much in private savings.  Yet, independent contractors, which is how most gig companies classify their workers, are approximately two-thirds less likely than standard employees to have access to an employer-provided retirement plan.

Much academic and judicial ink has already been spilt over whether Uber drivers and other members of the sharing economy are members of the so-called “contingent” workforce or “precariat” (part-time, leased, temporary, and per diem workers), not entitled to receive retirement benefits as part of their employment.  Whether these employees are statutory employees is of utmost importance because it largely determines whether gig workers are covered by employment laws, as most such laws center on the employer-employment relationship.

What all these jobs have in common is that the work activity is happening outside of the traditional safety net of employment and are highly unstable.  Whereas statutory employees are covered in the United States by numerous labor and employment law statues that provide security and protection in the workplace, workers in these alternative work arrangements are not.  Once stable employment relationships have given way to relationships that are much more arms-length, regardless of whether it is a contractor situation, temporary employment, or a one-time encounter.

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