Supreme Court of the United States Commons^™

Constraining Public Employee Speech: Government's Control Of Its Workers' Speech To Protect Its Own Expression, Helen Norton

Publications

This Article identifies a key doctrinal shift in courts' treatment of public employees' First Amendment claims--a shift that imperils the public's interest in transparent government as well as the free speech rights of more than twenty million government workers. In the past, courts interpreted the First Amendment to permit governmental discipline of public employee speech on matters of public interest only when such speech undermined the government employer's interest in efficiently providing public services. In contrast, courts now increasingly focus on--and defer to--government's claim to control its workers' expression to protect its own speech.

More specifically, courts increasingly permit government …

Procedural Extremism: The Supreme Court's 2008-2009 Labor And Employment Cases, Melissa Hart

Publications

It has become nearly a commonplace to say that the Supreme Court under the leadership of Chief Justice John Roberts is a court of “incrementalism.” The 2008 Term, however, featured several opinions that showcase the procedural extremism of the current conservative majority. In a series of sharply divided decisions, the Court re-shaped the law that governs the workplace - or more specifically the law that governs whether and how employees will be permitted access to the courts to litigate workplace disputes. At least as important as the Court’s changes to the substantive legal standards are the procedural hurdles the five …

Case Note: Golden Gate Restaurant Association V. City And County Of San Francisco: Setting The Stage For Supreme Court Review Of The Most Important Preemption Matter In The History Of Erisa, 41 J. Marshall L. Rev. 995 (2008), Joshua Waldbeser

UIC Law Review

No abstract provided.

Mandatory Arbitration: Why It's Better Than It Looks, Theodore J. St. Antoine

Articles

"Mandatory arbitration" as used here means that employees must agree as a condition of employment to arbitrate all legal disputes with their employer, including statutory claims, rather than take them to court. The Supreme Court has upheld the validity of such agreements on the grounds that they merely provide for a change of forum and not a loss of substantive rights. Opponents contend this wrongfully deprives employees of the right to a jury trial and other statutory procedural benefits. Various empirical studies indicate, however, that employees similarly situated do about as well in arbitration as in court actions, or even …

Government Workers And Government Speech, Helen Norton

Publications

This essay, to be published in the First Amendment Law Review's forthcoming symposium issue on Public Citizens, Public Servants: Free Speech in the Post-Garcetti Workplace, critiques the Supreme Court's decision in Garcetti v. Ceballos as reflecting a distorted understanding of government speech that overstates government's own expressive interests while undermining the public's interest in transparent government.

In Garcetti, the Court held that the First Amendment does not protect public employees' speech made "pursuant to their official duties," concluding that a government employer should remain free to exercise "employer control over what the employer itself has commissioned or created." …

Silenced Citizens: The Post-Garcetti Landscape For Public Sector Employees Working In National Security, Jamie Sasser

University of Richmond Law Review

No abstract provided.

Fighting Discrimination While Fighting Litigation: A Tale Of Two Supreme Courts, Scott A. Moss

Publications

The U.S. Supreme Court has issued an odd mix of pro-plaintiff and pro-defendant employment law rulings. It has disallowed harassment lawsuits against employers even with failed antiharassment efforts, construed statutes of limitations narrowly to bar suits about ongoing promotion and pay discrimination, and denied protection to public employee internal complaints. Yet the same Court has issued significant unanimous rulings easing discrimination plaintiffs' burdens of proof.

This jurisprudence is often miscast in simple pro-plaintiff or pro-defendant terms. The Court's duality traces to its inconsistent and unaware adoption of competing policy arguments:

Policy 1: Employees must try internal dispute resolution before suing--or …

In The Service Of Secrets: The U.S. Supreme Court Revisits Totten, 39 J. Marshall L. Rev. 475 (2006), Douglas Kash, Matthew Indrisano

UIC Law Review

No abstract provided.

Skepticism And Expertise: The Supreme Court And The Eeoc, Melissa Hart

Publications

The Supreme Court regularly denies deference to the Equal Employment Opportunity Commission's interpretations of the federal antidiscrimination laws which that agency is charged with enforcing and interpreting. The Court's lack of deference for EEOC interpretation is in part a function of the analytical framework that the Court has created for assessing the deference due to different types of administrative interpretation. But this essay argues that the Court's lack of deference cannot be entirely explained with reference to these neutral analytical criteria. The Court's attitude toward the EEOC may also be explained as a consequence both of judicial reluctance to view …

Fighting To Keep Employment Discrimination Class Actions Alive: How Allison V. Citgo's Predomination Requirement Threatens To Undermine Title Vii Enforcement, Suzette M. Malveaux

Publications

The Civil Rights Act of 1991, which provides compensatory and punitive damages and attendant jury trials in cases alleging intentional discrimination, was designed to enhance enforcement and expand remedies. Its enactment, however, has triggered a schism among the circuit courts over what the proper standard is for determining whether monetary damages or injunctive relief predominates, a necessary inquiry for determining whether plaintiffs are entitled to class certification for Title VII claims under Rule 23(b)(2) of the Federal Rules of Civil Procedure. Led by the Fifth Circuit, some federal appeals courts contend that monetary relief predominates unless it is “incidental,” and …

After 70 Years Of The Nlrb: Warm Congratulations -- And A Few Reservations, Theodore J. St. Antoine

Articles

The following essay is based on a talk the speaker was invited to deliver to the National Labor Relations Board on June 3 in Washington, D.C., on the occasion of the agency's 70th anniversary.

Stepping Through Grutter's Open Doors: What The University Of Michigan Affirmative Action Cases Mean For Race-Conscious Government Decisionmaking, Helen Norton

Publications

In Grutter, a majority of the Court for the first time identified an instrumental justification for race-based government decisionmaking as compelling - specifically, a public law school's interest in attaining a diverse student body. Grutter not only recognized the value of diversity in higher education, but left open the possibility that the Court might find similar justifications compelling as well.

The switch to instrumental justifications for affirmative action appears a strategic response to the Court's narrowing of the availability of remedial rationales. A number of thoughtful commentators, however, have reacted to this trend with concern and even dismay, questioning …

How American Workers Lost The Right To Strike, And Other Tales, James Gray Pope

Michigan Law Review

To paraphrase a veteran labor scholar, if you want to know where the corpses are buried in labor law, look for the "of course" statements in court opinions. By "of course" statements, he meant propositions that are announced as if they were self-evident, requiring no justification. Each year, thousands of law students read such statements in labor law casebooks. And each year, they duly ask themselves - prodded sometimes by the casebook's notes - how these conclusions could be justified in legal terms. But often there seems to be no answer, and the mystery continues. This Essay recounts the origins …

Labor And Employment Law In Two Transitional Decades, Theodore J. St. Antoine

Articles

Labor law became labor and employment law during the past several decades. The connotation of "labor law" is the regulation of union-management relations and that was the focus from the 1930s through the 1950s. In turn, voluntary collective bargaining was supposed to be the method best suited for setting the terms and conditions of employment for the nation's work force. Since the 1960s, however, the trend has been toward more governmental intervention to ensure nondiscrimination, safety and health, pensions and other fringe benefits, and so on. "Employment law" is now the term for the direct federal or state regulation of …

Mutiny, Shipboard Strikes, And The Supreme Court's Subversion Of New Deal Labor Law, Ahmed A. White

Publications

No abstract provided.

Section 4: Civil Rights & Employment Law, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Lochner'S Feminist Legacy, David E. Bernstein

Michigan Law Review

Professor Julie Novkov's Constituting Workers, Protecting Women examines the so-called Lochner era of American constitutional jurisprudence through the lens of the struggle over the constitutionality of "protective" labor legislation, such as maximum hours and minimum wage laws. Many of these laws applied only to women, and Novkov argues that the debate over the constitutionality of protective laws for women - laws that some women's rights advocates saw as discriminatory legislation against women - ultimately had more important implications for the constitutionality of protective labor legislation more generally. Liberally defined, the Lochner era lasted from the Slaughter-House Cases in 1873 - …

Pretender In Paradise, J. Richard Cohen

The Journal of Appellate Practice and Process

No abstract provided.

Resolving The Title Vii Partner-Employee Debate, Kristin Nicole Johnson

Michigan Law Review

In January of 2001, a New York court issued an order affirming a plaintiff's ability to bring suit against a law firm partnership for discriminatory acts that occurred during her tenure as an associate at the firm. The plaintiff, Stacy Ballen-Stier, joined Hahn & Hessen, L.L.P. as an associate and, on January 1, 1997, the firm invited her to join the partnership. According to Ms. Ballen-Stier's complaint, the words and actions of a fellow partner, Mr. Blejwas, created a hostile and abusive work environment and continued to plague her "even when [she] was away from the office." Ms. Ballen-Stier alleged …

Disabiling The Ada: Essences, Better Angels, And Unprincipled Neutrality Claims, Aviam Soifer

William & Mary Law Review

No abstract provided.

Supreme Court's 2002 Term Employment Law Cases: Is This Justice Scalia's Court?, Rafael Gely

Faculty Publications

In a recent article,' Erwin Chemerinsky argues that the Supreme Court's constitutional law decisions of the 2002 Term "cannot be explained by any overarching theory or underlying set of interpretative principles." Instead, he argues, "constitutional law is all about value choices made by the Justices." Professor Chemerinsky also argues that given the current composition of the Court, "it is the value choices of the middle" - Justice O'Connor and Justice Kennedy - that matter the most. Professor Chemerinsky ends his article with the assertion that "[f]or better or worse, this really is the O'Connor Court." In reviewing the cases decided …

Supreme Court Weighs Rehabilitating Against Rule-Breaking Under The Ada, Mary E. O'Malley

Public Interest Law Reporter

No abstract provided.

Safe, But Not Sound: Limiting Safe Harbor Immunity For Health And Disability Insurers And Self-Insured Employers Under The Americans With Disabilities Act, Rachel Schneller Ziegler

Michigan Law Review

When Congress passed the Americans with Disabilities Act ("ADA") on July 26, 1990, supporters heralded the Act as a full-scale victory for the 43 million disabled Americans. The Act's protections went far beyond those of its predecessor, the Rehabilitation Act of 1974, which only prohibited discrimination against individuals with disabilities by entities receiving federal funding. The new act was intended to prevent discrimination by private and public employers, public services, and public accommodations. In a bill signing ceremony at the White House, in front of more than two thousand advocates for the disabled, then President George Bush likened the ADA …

The Case Against Employment Tester Standing Under Title Vii And 42 U.S.C. § 1981, Michael Bowling

Michigan Law Review

In 1964, Congress passed comprehensive legislation aimed at eradicating discrimination in employment, public accommodations, public facilities, public schools, and federal benefit programs. Title VII of this Act directed its aim specifically at stamping out prejudice in employment. Four years later, the Supreme Court resurrected the provisions of § 1 of the Civil Rights Act of 1866, which, among other things, protects citizens, regardless of race or color, in their right to "make and enforce [employment] contracts." Together, Title VII and § 1981 serve as the primary legal bases for challenging racially discriminatory actioris by private employers. More than thirty years …

Supreme Court Employment Law Cases 2001-02 Term, Rafael Gely

Faculty Publications

I set two simple objectives for the article. First, the article will summarize each of the cases. My intent is to provide those unfamiliar with the cases a brief review of the facts and a summary of the Court's reasoning. Parts II through VI provide this discussion, grouping the cases by subject area. Second, in Part VII, the article provides a "big picture" analysis of the various cases. My intent is to identify trends, issues, interesting aspects and features of the Court's term. My objective is to aid in our understanding of the patterns that might affect the Court's treatment …

Contract Rights And Civil Rights, Davison M. Douglas

Michigan Law Review

Have African Americans fared better under a scheme of freedom of contract or of government regulation of private employment relationships? Have court decisions striking down regulation of employment contracts on liberty of contract grounds aided black interests? Many contemporary observers, although with some notable dissenters, would respond that government regulation of freedom of contract, particularly the antidiscrimination provisions of Title VII of the Civil Rights Act of 1964, has benefited African Americans because it has restrained discriminatory conduct by private employers. Professor David E. Bernstein challenges the view that abrogation of freedom of contract has consistently benefited African Americans by …

Disability, Employment Policy, And The Supreme Court, Michael Ashley Stein

Faculty Publications

No abstract provided.

Toward A Motivating Factor Test For Individual Disparate Treatment Claims, Benjamin C. Mizer

Michigan Law Review

Nathan Fields, an African-American employee at the New York State Office of Mental Retardation and Developmental Disabilities ("OMRDD"), was in many ways the typical Title VIP employment discrimination plaintiff, with a case that, on its face, suggested both discriminatory and benign actions by his employer. For six years, Fields worked as a maintenance assistant in the electrical shop at OMRDD's Oswald D. Heck Developmental Center ("Heck"). During that time, he twice applied for a promotion, and on each occasion, Heck selected white employees for the position. In addition, Fields claimed that he was discriminatorily singled out for disciplinary treatment, that …

Section 7: Employment Law, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 1: Adarand Constructors V. Mineta, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.