1. 2012 Elections: You Win Some, You Lose Some - Legal Perspective…

    The votes have been cast and the ballots counted, but one important question remains: what do this year’s elections mean for the nation? 

    For your reference, here’s a roundup of post-election legal analysis, from lawyers and law firms on JD Supra:

    Winners and losers in the workplace:

    • “Constituencies in a number of states have made their votes known regarding hot topic labor relations issues. From California to Alabama, voters alternatively approved and struck down a number of initiatives and ballot referenda.” (XpertHR
    • “With the passage of a new municipal law that becomes effective November 18, 2012, the City of Newark, New Jersey, will join more than 40 other municipalities in limiting an employer’s right to inquire into a job applicant’s criminal history.” (Epstein Becker Green
    • “… the impact for employers will probably be far less than was suggested during the campaign season.  Much will depend on the level of compromise that comes out of Washington.” (Pullman & Comley
    •  “Controversial labor and employment legislation that stalled in the current Congress is expected to meet the same fate during the next Congress, leaving changes to workplace policy largely in the hands of the regulatory agencies. The Obama Administration is likely to continue to turn to the federal agencies to achieve its labor and employment agenda, albeit at an even more dramatic pace than during the president’s first term.” (Littler
    • “Right now the [National Labor Relations] Board has four members and one vacancy. Two active members (Sharon Block and Richard Griffin) are vulnerable to challenge as the President’s allegedly improper recess appointments… Meanwhile, we can look forward to more Board decisions and opinions invalidating employer social media policies, taking a dim view toward employment-at-will disclaimers, taking an expansive view on protected concerted activity, and much more.” (Constangy, Brooks & Smith

    Legalized marijuana advocates score big:

    • “Massachusetts voters passed a referendum question eliminating state criminal and civil penalties for the medical use of marijuana by patients with certain ‘debilitating medical conditions’… Under the new law, patients may obtain a written certification, from a physician with whom the patient has a bona fide physician-patient relationship, that the patient has a qualifying debilitating medical condition and would likely benefit from medical use of marijuana.” (Mintz Levin
    • “Voters in Colorado and Washington threw down the gauntlet before the federal government Tuesday, legalizing marijuana for recreational use in defiance of federal law. Though a similar measure failed in Oregon, marijuana reform advocates scored additional victories in Massachusetts, which became the 18th state to legalize medical marijuana, and in the cities of Detroit and Grand Rapids, which decriminalized personal possession.” (Lawyers.com
    • “Despite the ‘buzz’ about Colorado and Washington’s new laws, including snarky references to the Colorado state song, ‘Rocky Mountain High,’ predictions suggesting a dramatic effect of these laws on drug-free workplace policies are likely little more than hot air.” (Littler

    California voters say no to GMO labeling:

    • “Yesterday, California voters rejected Proposition 37, the Right to Know Genetically Engineered Food Act by 53 percent to 47 percent. The voter initiative would have required labeling of most foods with genetically modified ingredients, estimated to include up to 80 percent of the foods found in most grocery stores. It would also have prohibited labeling or advertising processed foods as ‘natural,’ whether they were genetically engineered or not.” (Morrison & Foerster
    • “Interestingly, the Ballotpedia webpage for Proposition 37 listed the California Democratic Party and the Green Party of California as supporters of the failed ballot initiative and the California Republican Party as being opposed to the initiative.  Donors to the ‘No on 37’ campaign included Monsanto, E.I. Dupont De Nemours & Co., DOW Agrisciences, Bayer Cropscience, BASF Plant Science, Syngenta Corporation, and the Biotechnology Industry Organization (BIO).” (McDonnell Boehnen Hulbert & Berghoff
    • “…Proposition 37 prompted a lively legal and scientific debate throughout the country on the subject of food labeling in general and genetically engineered labeling in particular. For the present, however, there will be no mandatory labeling of genetically engineered foods in California.” (McKenna Long & Aldridge

    Public education gets a $6 billion boost in the Golden State:

    • “… California voters have rallied behind Governor Jerry Brown’s plan to stave off sharp cuts to public education. Proposition 30 temporarily raises sales tax and income tax in order to restore funding to the State’s public education. Passage of Proposition 30 will raise about $6 billion annually for education.” (Kronick Moskovitz Tiedemann & Girard

    Same-sex marriage gains ground:

    • “Voters in Maine and Maryland yesterday approved ballot measures that will bring same-sex marriage to the states, the first time in history the issue has won a popular vote. The result of a third such ballot question in Washington state is still pending. In Minnesota, voters rejected a ballot measure that would have written a ban on gay marriage into the state constitution, though the practice remains illegal under state law.” (Lawyers.com

    Taxmageddon looms bigger than ever

    • “Just two days ago, Barack Obama was re-elected as President.  In addition, the Republican Party retained control of the House of Representatives, while the Democratic Party retained control of the Senate. What does this mean for future tax policy, and transfer tax policy (e.g., estate and gift tax policy) in particular?  Well, the short answer is that it is probably still too soon to tell, and we may not even have a definitive answer until the end of 2013.” (Carr, McClellan, Ingersoll, Thompson & Horn
    • “To put matters in perspective: Unless current law is amended, all of the Bush tax cuts will expire at the end of the year, as will various other temporary tax provisions (e.g., AMT relief for middle class Americans, extension of estate tax relief, and a variety of tax credits that are enjoyed by individuals, as well as the R&D tax credit and a host of other tax credits relied upon by the business community, some of which need to be extended retroactively to the beginning of 2012).” (Patton Boggs

    Health care reform continues apace:

    • “While Mitt Romney and Paul Ryan campaigned on the promise to repeal the U.S. Patient Protection and Affordable Care Act, and to reform Medicare and Medicaid, their defeat does not mean the health industry should expect no change in 2013.  A combination of factors, including the impending year-end fiscal cliff, the necessity of revisiting the debt ceiling and the overwhelming imperative to address the growing federal debt, are expected to require lawmakers to substantially alter the Medicare and Medicaid programs in a manner that could be disruptive to the health sector.” (McDermott Will & Emery
    • “President Obama’s re-election guarantees that implementation of national healthcare reform will proceed, and makes it likely that the ACA’s expansion of private and public sector coverage will take place on time in 2014. According to the most recent estimates from the Congressional Budget Office (CBO), this means that, starting in 2014, nine million Americans will get their health insurance through health insurance exchanges, with that number growing to 25 million by 2017.” (Manatt, Phelps & Phillips
    • “We should get our first glimpse of what an Iowa statewide exchange may look like on November 16, 2012, the deadline for States to submit their exchange blueprints to the federal government. We are also eagerly awaiting regulations implementing a variety of provisions of concern for employers, including the employer ‘play or pay’ requirements which we hope will provide clearer guidance on a large employer’s obligation to provide affordable, minimum value insurance to full-time employees.” (Davis Brown

    Cybersecurity is back on the table

    • “Cybersecurity may seem like a bipartisan issue, but partisan rancor in an election year doomed early efforts to pass cybersecurity legislation. The re-election of President Obama, and the continuation of a divided Congress, make it more likely that cybersecurity policy will be accomplished through executive order. Such an executive order had been drafted prior to the election, and seems likely to gain speed.” (Reed Smith

    No major changes for Internet law:

    • “… President Obama does not support SOPA as last proposed.  I’ve blogged on the pros and cons of SOPA…  Like every election I have been a part of, this one was described as the most important of my lifetime.  If technology and internet law are your main issues, this was not an earth shaker.  SOPA and PIPA were already headed toward serious re-writes regardless of the outcome.” (Looper Reed & McGraw

    Consumer financial protection should strengthen:

    • “With President Obama’s reelection and control of the Senate remaining firmly in control of the Democrats, the CFPB’s hand has strengthened. I had been saying all along that even if Mitt Romney became President, it was unlikely that there would be any weakening of the CFPB until at least 2014 when Romney would have had the opportunity to appoint a new director.” (Ballard Spahr

    Alabama gets a new line of credit:

    • “By a resounding 69% affirmative vote, Alabamians approved a measure that amends an existing Alabama Constitutional Amendment to allow the State to issue general obligation bonds to finance economic development incentives.” (Bradley Arant Boult Cummings

    Mixed results in political contests:

    • “To help you assess yesterday’s election, K&L Gates has prepared a comprehensive [132-page] guide that summarizes the results and their impact on the 113th Congress, which will convene in January. The Election Guide lists all new members elected to Congress, updates the congressional delegations for each state, and provides a starting point for assessing the coming changes to the House and Senate committees.” (K&L Gates
    • “With some notable exceptions, yesterday was a good day for incumbents running for re-election to the Texas appellate courts.” (Smith Law Group
    • “It was a big night for Democrats in Minnesota. As expected, President Obama carried the State by 53% to 45% for Mitt Romney, while Senator Amy Klobuchar was elected in a landslide, 65% to 30% for Kurt Bills. Most surprisingly of all, Democrats captured control of both houses of the Minnesota Legislature.” (Winthrop & Weinstine
    • “Republicans held their grip over both chambers of the Florida Legislature in the first election following the spring 2012 redraw of state’s legislative and congressional district lines. The redistricting exercise occurs every 10 years following the most recent U.S. Census, and when complete requires all 160 members of the Florida Legislature to run for office.” (Carlton Fields
    • “A Republican-sponsored proposal to give the GOP-dominated Legislature more control over Florida’s court system has been defeated at the polls.” (Shumaker, Loop & Kendrick
    • “Most casual observers would suggest that the election of 2012 will have little impact on the State Legislature in one of the ‘bluest’ states in the United States.  They would be wrong. Although the composition of both chambers of the Massachusetts State Legislature will remain relatively unchanged for the 2013–2014 Legislative Session, the policy discussions set in motion by the current leadership will be executed in force during the first few months of the new year.” (McDermott Will & Emery


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