Category Archives: Courts

How Janus Could Spill into the Private Sector Without Radically Redefining the State Action Doctrine

Source: Boyd Garriott, On Labor blog, April 19, 2018

This term, the Supreme Court will decide Janus, where it will determine the future of agency shop agreements in public sector unions. Despite being a public-sector union case, Justice Ginsburg raised a question on many people’s minds at oral argument: “what happens in the private sector?” Her question may prove prescient, considering that five justices in Harris v. Quinn’s dicta questioned an older line of cases upholding private sector agency fee arrangements. Contrary to others who have spoken on this issue, I believe that a holding striking down public sector agency shop agreements in Janus could spill into the private sector without doing much violence to the state action doctrine….

When the Shadow Is the Substance: Judge Gender and the Outcomes of Workplace Sex Discrimination Cases

Source: Matthew Knepper, Journal of Labor Economics, Ahead of Print, April 10, 2018
(subscription required)

From the abstract:
The number of workplace sex discrimination charges filed with the Equal Employment Opportunity Commission approaches 25,000 annually. Do the subsequent judicial proceedings suffer from a discriminatory gender bias? Exploiting random assignment of federal district court judges to civil cases, I find that female plaintiffs filing workplace sex discrimination claims are substantially more likely to settle and win compensation whenever a female judge is assigned to the case. Additionally, female judges are 15 percentage points less likely than male judges to grant motions filed by defendants, which suggests that final negotiations are shaped by the emergence of the bias.

Public Unions Under First Amendment Fire

Source: Tabatha Abu El-Haj, Drexel University Thomas R. Kline School of Law Research Paper No. 2018-W-01, February 28, 2018

From the abstract:
Unions today are under First Amendment fire, with the compelled speech doctrine as the weapon of choice. Conservative interests are waging a legal war against agreements that include “fair-share service fees,” under which public-sector unions are permitted to charge non-union members to pay their share of the costs of collective bargaining. Espousing libertarian theories of free speech doctrine, the National Right to Work Legal Defense Foundation and its allies maintain that fair-share service fees, at least in the context of public-sector unions, constitute a form of political speech, and that laws mandating their payment by non-union members violate the First Amendment’s prohibition against compelled speech. The Supreme Court is poised to accept this position, having granted certiorari in Janus v. American Federation of State, County & Municipal Employees, Council 31, a case that threatens to overrule the Court’s longstanding acceptance of the constitutionality of fair-share service fees.

Notwithstanding the superficial appeal of the compelled speech argument, this Article argues that pro-union interests have plenty of cover within the First Amendment’s freedom of association doctrine. Viewing Janus and its ilk through an associational lens demonstrates the fallacies that lie behind doubts concerning the constitutionality of such agreements. Although it is doubtful that the Supreme Court will reaffirm the constitutionality of fair-share service fees this term, it is important to air such arguments in order to head off potentially even more significant First Amendment attacks on unionism that are currently underway and to articulate a theory of the First Amendment that remains consistent with the basic New Deal compromise that leaves matters regarding labor policy to our legislatures, where they belong.

Whose Money Is It Anyway: Have We Been Wrong About Agency Fees All Along?

Source: Aaron Tang, Harvard Law Review Forum, March 9, 2018

From the abstract:
In Agency Fees and the First Amendment, Professor Benjamin Sachs offers a pair of novel arguments for why the Court should pause before invalidating public sector union agency fee agreements throughout the country.

First, he argues that the money sent to unions to offset their bargaining costs is better viewed as the government employer’s money than as the employees’. Collective bargaining agreements force employees to turn the money over to the union on pain of losing their jobs, after all, and so the workers never have a “genuine choice” whether to make the payment at all. That, Sachs explains, should lead us to “treat agency fees as a direct payment from employer to union.”

Second, Sachs argues that the money might instead be better understood as the union’s all along. But for the wage premium that unions bring about for their workers, the argument goes, the fees that unions receive would not exist — and so the money is properly viewed as the union’s property from the outset.

These arguments are among the best defenses of agency fees that I have seen. Ultimately, however, both arguments are susceptible to counterattack for reasons discussed in Parts I and II herein. In a final concluding part, I express my agreement with Sachs on another point: the twenty-two states that currently permit agency fee agreements in the public sector can undo the impact of an adverse outcome in Janus by authorizing government employers to reimburse unions directly for their bargaining costs. It is this legislative alternative that, in my view, warrants the greatest attention from labor proponents in the coming years.

Historical Supreme Court Cases Now Online: More Than 35,000 Decisions Now Available, Searchable on loc.gov

Source: Library of Congress, Press Release, March 13, 2018

More than 225 years of Supreme Court decisions acquired by the Library of Congress are now publicly available online – free to access in a page image format for the first time. The Library has made available more than 35,000 cases that were published in the printed bound editions of United States Reports (U.S. Reports). United States Reports is a series of bound case reporters that are the official reports of decisions for the United States Supreme Court dating to the court’s first decision in 1791 and to earlier courts that preceded the Supreme Court in the colonial era. The Library’s new online collection offers access to individual cases published in volumes 1-542 of the bound edition. This collection of Supreme Court cases is fully searchable. Filters allow users to narrow their searches by date, name of the justice authoring the opinion, subject and by the main legal concepts at issue in each case. PDF versions of individual cases can be viewed and downloaded.

Jurisdiction Stripping: When May Congress Prohibit the Courts from Hearing a Case?

Source: Kevin M. Lewis, Congressional Research Service, Legal Sidebar, LSB10100, March 15, 2018

The U.S. Supreme Court recently issued its decision in Patchak v. Zinke, a case implicating a host of difficult legal issues concerning the respective powers of Congress and the judiciary. Patchak ultimately upheld the Gun Lake Trust Land Reaffirmation Act (Gun Lake Act) against a separation-of-powers challenge. However, because a majority of the Court could not agree on the legal basis for its decision, Patchak’s ultimate meaning with respect to Congress’s power over the courts remains uncertain. The various opinions in Patchak signal sharp divisions on the Court concerning the scope of Congress’s power to “strip” the jurisdiction of federal courts. Whereas at least four Justices appear to view that power as being “plenary” in nature, at least four other Justices embrace a more restricted view of Congress’s authority. Patchak also implicates several other important issues related to the law of federal courts, including whether a particular law alters a court’s jurisdiction, as well as what Congress must say in order to modify the government’s sovereign immunity.

This Sidebar analyzes Patchak and its relevance to Congress. The Sidebar begins by briefly describing the Court’s prior attempts to demarcate the boundaries of Congress’s power to take cases away from the federal judiciary. The Sidebar then discusses the facts and opinions in Patchak and analyzes the effect Patchak may have on Congress’s legislative objectives.

Modes of Constitutional Interpretation

Source: Brandon J. Murrill, Congressional Research Service, CRS Report, R45129, March 15, 2018

When exercising its power to review the constitutionality of governmental action, the Supreme Court has relied on certain “methods” or “modes” of interpretation—that is, ways of figuring out a particular meaning of a provision within the Constitution. This report broadly describes the most common modes of constitutional interpretation; discusses examples of Supreme Court decisions that demonstrate the application of these methods; and provides a general overview of the various arguments in support of, and in opposition to, the use of such methods of constitutional interpretation.

Will the Court Consider the Facts in Janus?

Source: Andrew Strom, On Labor blog, February 28, 2018 

Mark Janus’s lawyers are desperate to have the Court decide Janus v. AFSCME without considering any facts.  Janus is an Illinois state employee, who is represented by AFSCME Council 31.  Like all other employees in his bargaining unit, he is required to pay fair share fees to the union to cover the costs of providing representation.  Janus wants to Court to rule that these fees are unconstitutional without even considering how AFSCME spends these fees.  Janus also thinks that somehow the Court can decide that his refusal to fund union speech on workplace issues is protected by the First Amendment without overturning a series of cases holding that the grievances of public employees are not a form of speech protected by the First Amendment.  In addition, Janus thinks that merely by saying so, the Court can decide that states have a compelling interest in requiring lawyers to pay bar dues to mandatory bar associations, but no similar compelling interest in requiring public employees to pay fair share fees.  Janus’s lawyers realize that the more the Court considers actual facts, the harder it is for them to win their case, so their approach has been to insist that the case can be decided without any factual record.  But, the oral argument made clear that if the Court is not prepared to simply reaffirm its forty-year old precedent in Abood v. Detroit Board of Education, the only responsible move is to remand the case to develop a factual record…..

Related:
Coverage After the Janus Oral Argument
Source: Maddy Joseph, On Labor blog, February 28, 2018

The Supreme Court heard oral argument on Monday in Janus.  Analyses report that, as expected, there were pointed questions for AFSCME and Illinois by Justices Alito and Kennedy; the four liberal justices took every opportunity to highlight the potential effects of overruling Abood on collective bargaining and the ability of governments to manage their workforces.  Justice Gorsuch was silent.  There is a summary on SCOTUSblog, plus another analysis there.  NPR, the Wall Street Journal, and the LA Times also have solid summaries.  At the Atlantic, Garrett Epps highlights how little hard evidence there is in Janus–with no trial, there is not a developed record; and neither Janus nor the U.S. filled in those facts at argument.

The Times had a nihilistic editorial: assuming that the Court would overrule Abood, the editorial put Janus in political context.  It began with Merrick Garland and ended, “Whatever the justices decide in Mr. Janus’s case, the drama that preceded it is another reminder of the importance of every Supreme Court appointment.”…..

Argument analysis: Gorsuch stays mum on union fees

Source: Amy Howe, SCOTUSblog, February 26, 2018

The Supreme Court heard oral argument today in Janus v. American Federation of State, Municipal, and County Employees, a challenge by an Illinois child-support specialist to the fees that he is required to pay to the union that represents him, even though he does not belong to any union. Although this is the first trip to the Supreme Court for Mark Janus, the employee, it was the third time in four years that the justices have taken the bench to consider the issue presented by Janus’ case. After roughly an hour of sometimes testy debate in the courtroom, the outcome almost certainly hinges on the vote of the court’s newest justice, Neil Gorsuch – who did not tip his hand, opting instead to remain silent…..

Unions are confronted with an existential threat

Source: The Economist, February 22, 2018

Mark Janus could be making history this year. On February 26th the social worker from Illinois will be sitting with his two lawyers in the hallowed setting of the Supreme Court as the justices hear one hour of oral arguments in Janus v American Federation of State, County and Municipal Employees, which asks whether public employees like himself, who choose not to join their designated union, may still be charged a compulsory “agency fee” to support collective bargaining. Mr Janus argues that the fee violates his First Amendment right to freedom of speech, because it forces him to subsidise an organisation whose bargaining position he rejects.

The court’s ruling in the case could determine the future of the labour movement…..