Source: Jonathan Harkavy, Patterson Harkavy LLP, September 9, 2020
From the abstract:
This article offers a review of and commentary on every opinion of the Supreme Court of the United States in each case relating to employment and labor law during the Court’s 2019-2020 Term. The article also briefly summarizes the Court’s grants of certiorari for its 2020-2021 Term relating to employment in the American workplace. In addition to the author’s commentary on each case, the article includes a broader look at how the Court is dealing with workplace jurisprudence, including references to its “shadow docket” and the assignment of majority opinions.
Source: Lise Gelernter, Workplace Prof Blog, September 28, 2020
Lise Gelernter (Emeritus Professor & Visiting Scholar, Buffalo) sends this guest post about two arbitration decisions authored by SCOTUS nominee Amy Barrett: Wallace v. Grubhub Holdings, Inc., No. 19-1564 (7th Cir. 2020) and Herrington v. Waterstone Mortgage, No. 17-3609 (7th Cir. 2018):
On a substantive level unrelated to the confirmation of Judge Barrett, both decisions illustrate the intricacy of two of the many unanswered questions the Supreme Court has left concerning arbitration: 1) who falls under the exemption from the FAA for what the Court called “transportation workers”? and 2) which issues of “arbitrability” does a court or an arbitrator decide?
Source: Michael Berens and John Shiffman, Reuters, June 30, 2020
In the past dozen years, state and local judges have repeatedly escaped public accountability for misdeeds that have victimized thousands. Nine of 10 kept their jobs, a Reuters investigation found – including an Alabama judge who unlawfully jailed hundreds of poor people, many of them Black, over traffic fines….
Hayes is among thousands of state and local judges across America who were allowed to keep positions of extraordinary power and prestige after violating judicial ethics rules or breaking laws they pledged to uphold, a Reuters investigation found.
Judges have made racist statements, lied to state officials and forced defendants to languish in jail without a lawyer – and then returned to the bench, sometimes with little more than a rebuke from the state agencies overseeing their conduct.
Recent media reports have documented failures in judicial oversight in South Carolina, Louisiana and Illinois. Reuters went further.
In the first comprehensive accounting of judicial misconduct nationally, Reuters reviewed 1,509 cases from the last dozen years – 2008 through 2019 – in which judges resigned, retired or were publicly disciplined following accusations of misconduct. In addition, reporters identified another 3,613 cases from 2008 through 2018 in which states disciplined wayward judges but kept hidden from the public key details of their offenses – including the identities of the judges themselves. ….
Source: Michael Gentithes, Loyola University Chicago School of Law, January 16, 2020
From the abstract:
Drastic changes in Supreme Court doctrine require citizens to reorder their affairs rapidly and undermine trust in the judiciary. Stare decisis has traditionally limited the pace of such change on the Court, acting as a bulwark to wholesale jurisprudential reversals by the Justices. Yet in recent years, the stare decisis doctrine itself has come under threat.
With little public or scholarly notice, the Supreme Court has radically weakened stare decisis. The Court has long suggested that a precedent, regardless of the quality of its reasoning, should stand unless there is some special, practical justification to overrule it. But in several recent decisions, the Court has suggested that “poor reasoning” in a prior decision both triggers stare decisis analysis and justifies overruling cases. This presents a grave threat to legal stability. Justices can always find reasoning they believe is “poor” in prior decisions. Stare decisis under this formulation provides little restraint against changing course. It also opens the door to “wave theories” of stare decisis, whereby new Justices seeking rapid change can claim fidelity to a weak version of stare decisis early in their careers, only to suggest a stronger version later to protect their own decisions.
This weakened version of stare decisis has deep analytical flaws that would allow perpetual changes to legal doctrine based simply on the current Justices’ policy preferences. The Court must not accept the alarming effects such a weak version of stare decisis would have on legal stability, consistency, and judicial legitimacy.
Source: MaryAnn Grover, Richmond Public Interest Law Review, Date Written: April 23, 2019
From the abstract:
Many have hailed the #MeToo Movement as a turning point in the way this country discusses sexual assault and sexual harassment, but when looking at the #MeToo Movement through the lens of Supreme Court nominations, it is unclear whether the impact of the Movement will be as far reaching as some imagine. The hearing of Anita Hill, which came before the #MeToo Movement, and the hearing of Dr. Christine Blasey Ford, which came after the #MeToo Movement, perhaps demonstrate that the #MeToo Movement has reached its limit culturally and now institutional change must be the focus in order for the goals of the #MeToo Movement to be fully realized. Looking to the hearing of Professor Hill to analyze what we should have learned, the #MeToo Movement to assess what we thought we learned, and the hearing of Dr. Ford to recognize what we still have to learn about survivors of sexual assault, this Article begins to develop creative solutions to ensure that our institutions change as our society changes, with the ultimate goal of creating a society where no one else has to say #MeToo.
Source: Greg Goelzhauser, Judicial Politics Reader – Forthcoming, Last revised: August 25, 2019
From the abstract:
Women of color face unique hurdles gaining equal access to the legal profession. This chapter considers the representation of women of color on state supreme courts, emphasizing the importance of judicial selection institutions. It makes two empirical contributions. First, it highlights women of color serving on state supreme courts through 2016 — individuals who have received comparatively little recognition for their achievements. Second, using original data on state supreme court seatings from 1960 through 2016, I examine whether selection institutions are associated with intersectional differences in seating new justices. The results indicate that women of color are more likely to be seated under appointment systems. Compared to other gender-race combinations, the results are similar for men of color, while white men are more likely to be seated through elections. Selection system choice is not associated with differences in seating white women. The results have important implications for our understanding of intersectional political representation and the judicial selection debate.
Source: Jessica A. Clarke, Vanderbilt Law Research Paper No. 19-32, Last revised: October 6, 2019
From the abstract:
The Supreme Court will soon decide whether, under Title VII of the Civil Rights Act of 1964, it is discrimination “because of sex” to fire an employee because of their sexual orientation or transgender identity. There’s a simple textual argument that it is: An employer cannot take action on the basis of an employee’s sexual orientation or transgender identity without considering the employee’s sex. But while this argument is simple, it was not one that federal courts adopted until recently. This has caused some judges to object that the simple argument must be inconsistent with the original meaning of Title VII. In the words of one Fifth Circuit judge, “If the first forty years of uniform circuit precedent nationwide somehow got the original understanding of Title VII wrong, no one has explained how.”
This Essay explains how the first forty years of circuit precedent got Title VII wrong. It demonstrates that, rather than relying on the statutory text, early appellate decisions relied on their era’s misunderstanding of LGBTQ identities as pathological, unnatural, and deviant. The errors of the early cases persisted as a result of stare decisis, until the old doctrine was rendered indefensible by changing social attitudes, the rise of textualism, and the Supreme Court’s recognition that Title VII forbids an employer from insisting that men or women conform to sex stereotypes. This account has important implications for the pending cases, as well as for social movements that seek to disable prejudice.
Source: Jonathan Harkavy, Patterson Harkavy LLP, Date Written: September 9, 2019
From the abstract:
This article summarizes in detail all decisions of the Supreme Court of the United States from its October 2018 Term (2018-2019) that affect employment law, labor relations, employment arbitration and the employment relationship generally. The article also provides commentary on each of the decisions and on the Supreme Court’s regulation of the employment relationship. The article also summarizes briefly the grants of certiorari in employment-related cases for the October 2019 Term and concludes with brief commentary on justice in the American workplace.
Source: Dan Ziebarth, George Washington University, Date Written: July 21, 2019
From the abstract:
This essay forwards the discussion of equal protection jurisprudence concerning considerations of fairness and equality in relation to race and gender through a four-section comparative assessment. Section I will describe the historical and jurisprudential background of issues and debates in racial discrimination. Section II will describe the historical and jurisprudential background of issues and debates in gender discrimination. Section III will analyze the distinct convergence and divergences that have appeared in constitutional interpretation of equal protection jurisprudence. Section IV will assess the underlying theoretical disparities between two major schools of thought in equal protection jurisprudence, referred to as colorblind constitutionalism and antisubordination constitutionalism. Finally, the conclusion will provide remarks on equal protection jurisprudence, discuss how this has affected the state of contemporary social affairs, and argue for the adoption of equal protection jurisprudence that focuses on just procedure, which targets the consistency in unbiased processes of judicial application, as opposed to the final decision, as principal in the determination of fair and equal treatment in the administration of justice.
Source: Mary Holper, Boston College Law School Legal Studies Research Paper No. 507, 2019
From the abstract:
Scholars, immigration judges, attorneys, and congressional committees have been calling for a truly independent immigration adjudication system for decades, critiquing a system in which some judges describe themselves as “U.S. imitation judges.” This article examines the lack of truly independent immigration judges through the lens of the Fourth Amendment, which applies when a noncitizen is arrested for deportation. In 1975, the Supreme Court held in Gerstein v. Pugh that to continue detention after an initial arrest in the criminal context, the detached judgment of a neutral judge is necessary; a prosecutor’s finding of probable cause is insufficient to protect the important Fourth Amendment rights to be free from an unreasonable seizure. In contrast, in the immigration detention context, no such neutral judge has any role in the process. Every person who authorizes a noncitizen’s arrest and detention works for a law enforcement agency, causing one to wonder who exactly is exercising independent judgment over decisions concerning noncitizens’ physical freedom.
This article begins with an overview of the relevant Fourth Amendment law, which requires a neutral judge to review a law enforcement officer’s warrantless arrest in order to continue detention, and demonstrates why the Fourth Amendment applies to immigration arrests, although nominally “civil.” Thus, the lack of a truly neutral judge available to review DHS arrest decisions exposes the entire immigration detention system to a Fourth Amendment challenge. To resolve this issue, I propose that, in order to continue pretrial detention for deportation, federal magistrate judges, rather than immigration judges, must make a probable cause finding. This proposal resolves the Fourth Amendment violations that occur when the only supposedly “neutral” judge, who authorizes the jailing of a human being, is regularly critiqued as not so “neutral.” While others have effectively argued that the entire immigration adjudication system needs a judge who is untethered from a law enforcement agency, in this article I focus only on the initial decision to continue pretrial detention, as this is where, in the criminal pretrial context, the Fourth Amendment’s probable cause hearing requirement attaches.