1. President Obama Sets Aggressive Tone for Second Term

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    “Turning the page on years of war and recession, President Barack Obama summoned a divided nation Monday to act with ‘passion and dedication’ to broaden equality and prosperity at home, nurture democracy around the world and combat global warming as he embarked on a second term before a vast and cheering crowd that spilled down the historic National Mall.” (David Espo, Huffington Post

    On January 21, 2013, minutes after he was sworn in for his second term as the United States President, Barack Obama laid out an aggressive agenda of social and political objectives for the next four years. 

    To help you frame these issues, we’ve compiled a reading list of selected commentary and analysis – written by some of the country’s top lawyers and law firms – discussing seven of the key issues identified by the President:

    1. Health Care Reform:

    “We must make the hard choices to reduce the cost of health care and the size of our deficit.  But we reject the belief that America must choose between caring for the generation that built this country and investing in the generation that will build its future.”

    Health Care Reform Update: Large Employers Must Offer Health Coverage or Pay Assessment (Pillsbury Winthrop Shaw Pittman LLP):

    “Coverage is considered to be unaffordable for an employee if the employee’s share of the premium would cost more than 9.5% of his or her annual household income. Under the proposed regulations, employers that otherwise provide adequate health coverage to their full-time employees may assume that the health coverage they offer is affordable for purposes of the shared responsibility payment, if the cost of coverage to an employee would not exceed: 9.5% of the wages the employer pays the employee that year, as reported on Form W-2; 9.5% of the employee’s wages (computed for salaried employees using their monthly salary and for hourly employees by multiplying their hourly rate of pay by 130 per month); or 9.5% of the Federal poverty line for a single individual living in the state in which the employee is employed.” Read on»

    What To Expect From The Affordable Care Act In 2013 (Carlton Fields): 

    “The law establishes a national pilot program to encourage hospitals, doctors, and other providers to work together to improve the coordination and quality of patient care. Under payment “bundling,” hospitals, doctors, and providers are paid a flat rate for an episode of care rather than the current fragmented system where each service or test or bundles of items or services are billed separately to Medicare. Instead of generating multiple claims from various providers for a surgical procedure, the entire team is compensated with a “bundled” payment that provides incentives to deliver health care services more efficiently while maintaining or improving quality of care.” Read on»

    Proposed Rules Implementing Affordable Care Act Rules Prohibit Discrimination by Health Insurers and Set Standards for Essential Health Benefits (Poyner Spruill LLP):

    “[T]he Department of Health and Human Services (HHS) issued proposed rules under the Patient Protection and Affordable Care Act of 2010, as amended (the Affordable Care Act or the Act), which beginning in 2014 will prohibit health insurance companies from discriminating against individuals because of a pre-existing or chronic condition.” Read on»

    Read more on Health Care Reform

    2. Climate Change:

    “We will respond to the threat of climate change, knowing that the failure to do so would betray our children and future generations.”

    On Inaugurations And Liberal Catechisms: Climate Change Makes It Back On The National Agenda (McCarter & English):

    “Who knew that civil rights started with an “S” as in Seneca Falls, Selma and Stonewall? In case you missed it Monday, President Obama laid out an ambitious agenda as he began his second term and delivered his second inaugural address.  Besides mentioning these turning points in the nation’s march to equality, he also carried the torch for a strong response to climate change… Critics will immediately and correctly point out that there is no evidence that climate change caused a specific wildfire or hurricane. (We are not so sure droughts cannot be attributed.) But the critics don’t get a free pass either.” Read on»

    U.S. Advisory Committee Releases Draft Climate Change Report for Public Consultation (Osler, Hoskin & Harcourt LLP):

    “On January 11, 2013, the U.S. National Climate Assessment and Development Advisory Committee released a draft Climate Assessment Report open for public review and commentary until April 12, 2013.  The comprehensive report covers almost thirty different topics, is over one thousand pages long, and was written by more than 240 authors.  It is expected that this report will shape the policy discourse for years to come, both in the U.S. and Canada.” Read on»

    Climate Change and Cost Benefit Analysis: Cass Sunstein Is Talking, But Is Anyone Listening? (Foley Hoag LLP):

    “Sunday’s New York Times had an op-ed piece by Cass Sunstein, recently departed head of the Office of Information and Regulatory Affairs, advocating for sensible measures to address global climate change… I don’t disagree with anything he says; I only wonder whether anyone is paying attention. On one hand, while Sunstein notes that President Obama supports cost-benefit analysis, Democrats in Congress – and many environmentalists – have long been skeptical, treating environmental questions as moral issues that should not be subject to something as crass as cost-benefit analysis.” Read on»

    Read more on climate change

    3. Gender Pay Equality

    “For our journey is not complete until our wives, our mothers, and daughters can earn a living equal to their efforts.”

    Scrutiny of Gender Disparities in Compensation: At the Executive Level and Below (Mintz Levin):

    “By most reports, fewer women than men occupy the C-suite and those that do are paid less than their male counterparts. In its recently published 2012 S&P 500 CEO Pay Study, … Equilar Inc. reported that only 12 of the 500 chief executive officers in this year’s study were women. Although the average total shareholder return (TSR) for the companies run by the female CEOs far exceeded that of the companies run by men (2.7 percent for women compared with 0.2 percent for men), the women were paid an average of almost $500,000 per year less than their male counterparts.” Read on»

    EEOC’s New Strategic Enforcement Plan Highlights Emphasis on Systemic Discrimination Cases (Foley Hoag LLP):

    “The EEOC will use directed investigations, among other strategies, to target compensation systems and practices that discriminate on the basis of gender.” Read on»

    What Obama’s Win Means for Labor and Employment Law (XpertHR):

    “The first law President Obama signed in 2009 was the Lilly Ledbetter Fair Pay Act, and his administration’s interest in employment law continues. There could be a renewed push for the Paycheck Fairness Act in the next session of Congress in an effort to update and strengthen Equal Pay Act protections for women.” Read on»

    Read more on gender pay equality

    4. Same-sex Marriage and Gay Rights:

    “Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law – for if we are truly created equal, then surely the love we commit to one another must be equal as well.”

    “Will the U.S. Supreme Court weigh in on same-sex marriage, or sidestep the issue? Oral arguments are scheduled for March 26th and March 27th. Expect rulings in June. This video, from Bloomberg Law, has the five issues to look for in the gay marriage cases.” 

    [Link: Same-Sex Marriage Cases in 90 Seconds

    Same-sex married couples: Consider filing a Protective Claim for Tax Refund NOW (Moskowitz LLP):

    “[I]t is not un-likely that the country will at some point recognize same-sex marriages.   If and when the country does recognize same-sex unions, individuals in these unions may be able to benefit from some of the financial perks of marriage that, thus far, they have not been able to enjoy. One such benefit is the option to file joint tax returns, which often means a smaller tax bill. Couples who would benefit tax wise from a change in filing status could then file an amended tax return claiming the marital status and thereby claiming the tax refund.” Read on»

    Obama’s Mark on Employment Law - What do Employers Have to Look “Forward” To in the Next Four Years? (Akerman Senterfitt):

    “Obama has been a candid advocate for the rights of the LGBT community, most publicly through the support of same sex marriage.  However, his administration has pushed for changes in the way of LGBT rights in the employment arena as well.  The Employment Nondiscrimination Act is proposed legislation that adds sexual orientation to the protected classes under Title VII for all employers except religious organizations.  Currently, gay, lesbian, bisexual and transgender employees are not protected under Title VII by federal law or under the law of many states.  This Act has been discussed a lot, most recently the Senate Committee on Housing, Employment, Labor and Pensions held a hearing on the legislation, and it would not be surprising to see a push for the passage of this bill in the coming year.” Read on»

    Read more on same-sex marriage

    5. Immigration Reform:

    “Our journey is not complete until we find a better way to welcome the striving, hopeful immigrants who still see America as a land of opportunity; until bright young students and engineers are enlisted in our workforce rather than expelled from our country.”

    Post-Election Immigration Reform (Ogletree, Deakins, Nash, Smoak & Stewart, P.C.):

    “Negotiating the components of immigration reform will be a difficult process: any bill that might have bipartisan support in the U.S. Senate must also pass the House of Representatives, where many members oppose comprehensive immigration reform. Even those in favor of comprehensive immigration reform differ on the form it would take, with the main impasse being whether it would include a path to citizenship for the country’s undocumented immigrants.” Read on»

    Implementing the President’s DREAM Act-Inspired Executive Order (Bradley Arant Boult Cummings LLP) :

    “The Development, Relief, and Education for Alien Minors Act (the ‘DREAM Act’) was first introduced to Congress in August 2001. The bill proposed to grant conditional permanent residency to undocumented individuals who arrived in the U.S. as minors, graduated from U.S. high schools or serve in the U.S. military, lived continuously in the U.S. for at least five years before the bill’s enactment, and were of good moral character. Once an individual obtained conditional residency under the act and satisfied certain other requirements, he or she would be eligible for permanent residency. Since its introduction, the bill has been buffeted about by the House and Senate, with detractors claiming the act would encourage illegal immigration and invite fraud, and supporters arguing the act would result in myriad social and economic benefits.” Read on»

    Dream Act Might Be a Nightmare for Employers (Polsinelli Shughart PC):

    “Deferred action is a discretionary decision by the Department of Homeland Security not to pursue immigration enforcement (e.g. deportation) for a specific period of time. The deferred action program is commonly referred to as a ‘Dream Act;’ however, what is one individual’s dream may turn into a nightmare for an employer. As part of applying for deferred action qualifying aliens are also eligible for employment authorization. Generally, work permit applications take two to three months to process so by this fall, potentially hundreds of thousands of individuals will receive lawful permission to work in the United States. Some of these individuals might already be employed by your company.” Read on»

    Read more on the Dream Act and immigration reform

    6. Gun Control:

    “Our journey is not complete until all our children, from the streets of Detroit to the hills of Appalachia to the quiet lanes of Newtown, know that they are cared for, and cherished, and always safe from harm.”

    Under Fire: Why The NRA Can’t Duck And Cover (Levick):

    “When President Obama rolled out his new gun control plan at the White House, he included some small but noticeable concessions for the National Rifle Association (NRA) and other advocates of responsible gun ownership. First, there is the fact that the Administration did not opt for an easy fix, simply pursuing an all-out ban on assault weapons and leaving it at that. With the inclusion of measures aimed at improving background checks, halting illegal gun trafficking, and ensuring gun-owners’ mental health and stability, there is a decent chance that a balanced, common-sense approach will win out over reactionary solutions that might make us feel good, but not make us any safer.” Read on»

    Obama Signs 23 Executive Orders Aimed at Gun Violence (Lawyers.com):

    “… the president called on Congress to reinstate the assault weapons ban that was in place from 1994 to 2004, as well as outlawing high-capacity magazines that hold more than 10 rounds of ammunition. He further asked legislators to close the gun show loophole that allows people to buy firearms from private dealers without having to first pass a background check. Additionally the report called for laws that expand access to mental health treatment and eliminate restrictions on federal gun violence research, among several other proposals.” Read on»

    White House Gun Control Proposals Include School Safety And Mental Health Initiatives (Franczek Radelet P.C.):

    “In the wake of the Sandy Hook Elementary School tragedy, President Obama has announced numerous executive actions and legislative proposals to address gun control, school safety, and mental health issues nationwide. The White House has issued presidential memoranda, calls for legislative proposals, and announced other executive actions that encompass four overarching goals: 1) closing background check loopholes to keep guns out of dangerous hands; 2) banning military-style assault weapons and high-capacity magazines, and taking other steps to reduce gun violence; 3) making schools safer; and 4) increasing mental health services.” Read on»

    Read more on gun control

    7. Sustainable Energy:

    “The path towards sustainable energy sources will be long and sometimes difficult. But America cannot resist this transition; we must lead it. We cannot cede to other nations the technology that will power new jobs and new industries – we must claim its promise.”

    D.C’s Clean-energy Conundrum (Mintz Levin):

    “Few issues are now as politically polarizing as the role of government in supporting clean-energy technologies. It pits those concerned about global warming against climate science skeptics; those who see government playing a role in shaping a new industry against those who support a free-market approach; and clean-technology funders and technologies against incumbent energy interests. These debates only heated up during the presidential campaign, as promises of new clean-technology jobs faced off against reports of failed green technology companies. For some, ‘clean energy’ is synonymous with ‘government overreach.’” Read on»

    So What’s The Big Idea? (BakerHostetler):

    “Many governments, demonstrating a priority for clean energy production, have been subsidizing solar and wind power to produce electricity (and batteries to power automobiles), but their own international trade laws confound their efforts: they cannot export the subsidized clean technology without encountering countervailing duty complaints… There is a critical and accelerating need to reconcile unavoidable subsidies for alternative energy (enabling it to catch up to a century or more of subsidies for ‘conventional’ energy) with fair trade, and to dismantle other protectionism.” Read on»

    International Investment Treaties as a Possible Shield Against Government Cutbacks in Subsidies for the Green Energy Sector (K&L Gates LLP):

    “A number of governments around the world have recently curtailed their incentive schemes for green energy producers. These measures have often led to disruption of the basic economic assumptions of many ongoing or newly completed projects, and have severely impacted the volume of new investments, particularly in the solar energy sector… The type of the risk involved in these measures, i.e. political and legislative risk, is typically considered to be immune from standard legal actions available to aggrieved business, at least on a domestic level. International investment treaties may however provide an option for certain parties adversely affected.” Read on»

    Read more on sustainable energy

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Notes

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