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An Epic Supreme Court Decision on Employment
Court Updates |
2018/05/26 00:24
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False dichotomy, meretricious piety, and pay-no-attention-to-that-man-behind-the-curtain misdirection are vital arrows in the quiver of any lawyer or judge, no matter of what persuasion.
These tricks were on particularly egregious display in Epic Systems Corp. v. Lewis, a 5-4 decision announced Monday in which the Supreme Court’s conservative majority continued its drive to narrow protection for employee rights. (The opinion, written by Justice Neil Gorsuch, was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito; the dissent, by Justice Ruth Bader Ginsburg, was joined by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan.)
The issue in Epic Systems was this: Can an employer require its employees, as a condition of keeping their jobs, to submit to individual arbitration of wage-and-hour and other workplace-condition claims—not only without an option to go to court, but without an option to pursue even private arbitration in common with other employees making the same claim?
Employees’ objection to a “no group arbitration” clause is that individual arbitration may concern amounts too small to make pursuing them worthwhile. Thus, these clauses make it easier for employers to maintain unfair or even unlawful employment structures and salary systems.
The question required the court to interpret two federal statutes—the Federal Arbitration Act (1925) and the National Labor Relations Act (1935). The FAA says that “a written provision in a contract evidencing a transaction involving commerce” requiring the parties to arbitrate instead of litigate disputes “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” The NLRA provides that “employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
Begin with text: the NLRA states that it is designed to counter “inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract and employers who are organized in the corporate or other forms of ownership association.” There is no language like this in the FAA. The best histories of the FAA’s adoption suggest that it was designed to efficiently settle disputes among merchants—business interests with comparable bargaining power. The Act itself says it should not be read to affect “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” The sponsors stated during deliberations that it was not designed to cover labor agreements.
Thus, the issue is whether the no-group-arbitration clause, by violating that provision of the NLRA, provides “grounds as exist at law” to bar the employer-imposed requirement of individual arbitration.
Gorsuch accused Ginsburg, author of the dissent, and the other three moderate liberals—Breyer, Sotomayor, and Kagan—of improperly consulting their own policy preferences, refusing to harmonize two easily reconcilable federal statutes, and illicitly smuggling extra-legal commentary—legislative history—into judicial decisions. But this was purest rhetorical Pecksniffery. Gorsuch himself quite cheerfully invoked a pro-arbitration policy preference; did no more to harmonize the two statutes than did the dissents; and ignored actual history, and the text of the NLRA, in favor of a spurious extra-legal non-textual narrative of the FAA. |
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Palestinians want international court to investigate Israel
Legal Information |
2018/05/25 00:23
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Calling it a “historic step” toward justice, the Palestinian foreign minister asked the International Criminal Court on Tuesday to open an “immediate investigation” into alleged Israeli crimes committed against the Palestinian people.
The development was sure to worsen the already troubled relations between the internationally backed Palestinian Authority and Israeli Prime Minister Benjamin Netanyahu’s government. Peace talks have been frozen for over four years, and contacts between the two sides are minimal.
Speaking to reporters at the ICC in The Hague, Netherlands, Palestinian Foreign Minister Riad Malki said he submitted the “referral” to the court during a meeting with the ICC’s chief prosecutor, Fatou Bensouda.
The referral sought an investigation into Israeli policies in the West Bank, east Jerusalem and Gaza Strip since the state of Palestine accepted the ICC’s jurisdiction in 2014, he said.
This includes Israeli settlement policies in the West Bank and east Jerusalem, as well as the recent round of bloodshed in the Gaza Strip, where Israeli fire killed over 100 Palestinians during mass protests along the Gaza border, Malki added.
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High court to hear challenge to Virginia uranium mining ban
Court Updates |
2018/05/22 00:23
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The Supreme Court agreed Monday to hear a challenge to Virginia's decades-old ban on uranium mining.
The state has had a ban on uranium mining in place since 1982, soon after the discovery of a massive uranium deposit in the state's Pittsylvania County. It's the largest known deposit in the United States and one of the largest in the world.
The owners of the deposit put its value at $6 billion and said it would be enough uranium to power all of the United States' nuclear reactors continuously for two years.
A few years after the deposit was discovered, the price of uranium plummeted and interest in mining it waned for about two decades. But after the price of uranium rebounded, the deposit's owners attempted between 2008 and 2013 to convince Virginia lawmakers to reconsider the ban. After that effort failed, they sued Virginia in federal court in 2015. The hope was that a court would invalidate the ban and clear the path for mining the uranium. Lower courts agreed with the state, however, and dismissed the lawsuit.
In asking the high court to take the case, the companies underscored the importance of uranium to the United States. Nuclear reactors powered by uranium generate about 20 percent of the electricity consumed in the United States, the companies say. Uranium also powers the nation's fleet of nuclear submarines and aircraft carriers. But 94 percent of the uranium the U.S. needs is imported, they said.
Turning the Virginia deposit into usable uranium would involve three steps. First, the uranium ore would have to be mined from the ground. The uranium would then need to be processed at a mill, where pure uranium is separated from waste rock. The waste rock, called "tailings," which remain radioactive, would then have to be securely stored.
The owners of the Virginia deposit argue that the state can regulate the uranium mining, the first step in the process, but not if the state's purpose in doing so is protecting against radiation hazards that arise from the second two steps. They say that's what motivated the state's ban. They argue the Atomic Energy Act gives federal regulators the exclusive power to regulate the radiation hazards of milling of uranium and of handling and storing the leftover tailings.
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Bitter, expensive fight for Arkansas court seat to drag on
State Law Issues |
2018/05/21 00:23
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A bitter and expensive fight for an Arkansas Supreme Court seat that drew more than $1 million in outside spending and a flurry of attack ads will drag on for another six months, with an incumbent justice heading into a runoff in November against an attorney backed by an out-of-state Republican group.
Justice Courtney Goodson and David Sterling, the chief counsel for the state Department of Human Services, advanced to a runoff in the November election for the state's highest court in Tuesday's non-partisan judicial election. The two were the top candidates in a three-person race for Goodson's seat, with Appeals Court Judge Kenneth Hixson finishing third.
Goodson had faced a barrage of attack ads and mailers from the Judicial Crisis Network, a Washington group that had targeted her during her unsuccessful bid for chief justice two years ago. The group, which doesn't disclose its donors, spent more than $935,000 on TV ads bashing Goodson and Hixson, according to the Brennan Center for Justice, which tracks judicial campaign spending.
"Today was a huge victory for honest people who are fed up with the lies dark money is spreading about me," Goodson told The Associated Press Tuesday night.
The ads led to a court fight over whether they should be broadcast and Goodson said she planned to continue that legal battle. Days before the primary, a state judge ordered Little Rock area TV stations to stop airing one ad, while another judge said the spot could resume running in northwest Arkansas. Goodson has filed a similar lawsuit aimed at halting the lawsuits in the Fort Smith area. Some media and free speech advocates have opposed Goodson's lawsuits, saying judges should not decide what is broadcast during elections.
The ad that sparked the court fight criticizes Goodson over gifts received from donors and a pay raise the court requested last year. An Associated Press Fact Check of the ad found that some of its claims are misleading. The Judicial Crisis Network continued its criticism of Goodson Wednesday.
"The citizens of Arkansas want and deserve integrity on the state's Supreme Court - Justice Goodson can't run from her record of pay increases, favoritism and residing in a swamp of conflicts of interest," Carrie Severino, the group's chief counsel and policy director, said in a statement.
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