Oyez, oyez: the first blog post of Juris Dispatch is in session. If you are at work, reading this from your phone on a train, or seeing this in a coffee shop, please rise for the “honorable” Evan Fleischer, who shall hold forth on matters concerning the United States of America and its legal matters forthwith -- and possibly offer anyone interested a snack.
Also -- I’m well aware that I’m a little bit behind on current events, but we have to start somewhere, and there’s no harm and no shame in playing ‘catch up.’
The session at NYU asks if the Court is a Court for “the 1%,” a position which Katrina von Heuvel -- the editor of The Nation -- heartily affirms.
Part of me remains cautious about von Heuvel, though she did know that John Walsh -- and, presumably, others -- had approached Elizabeth Warren to run for Senate pretty early, so she should get credit for that, but there’s something I haven’t quite put my mental processing finger on yet. Once I figure it out, I’ll let you know.
Maybe it’s that von Heuvel -- like Thomas Friedman -- drifts into a kind of rhetorical dogmatic flan without the underpinning architecture of knowing seemingly in place. I know there’s value in hiding one’s art -- truly -- but good rhetoric sometimes means putting meat on the bone, especially when it comes to phrases she uses here like, “Let us not forget Bush v. Gore,” “the rise of the right,” “the corporate domination of the court,” all of which -- when phrased the way they are and lumped together as they are -- come across as dog whistles instead of a “point.” (And let’s not even get started on the film.)
The Court reaffirmed federal preemption, which certainly is of a piece with the Chevron Nondelegation Doctrine (or so I understand it, at least.) They ruled against -- as the folks at Cornell put it -- “compulsive unionism” in Knox vs. SEIU, which -- given the historical trend line of unions in this country -- seemed to be a curious step for Justice Alito to take. They reminded your blogger of the ministerial exception to federal anti-discrimination laws in Hosanna-Tabor v. Equal Employment Opportunity Commission. They ruled against the use of GPS to track a suspect’s car in US v. Jones, which is something to keep an eye on, given the pace of technology. They offered up a sensible ruling in Maples v. Thomas.
In terms of business and the business world, there was Caraco v. Novo, RadLAX Gateway Hotel v. Amalgamated Bank (where -- in the question of debtors banning credit-based bids to allow more than just the creditor to bid on an auction sale -- the Court came down in favor of the creditor), the dismissal of First American Financial vs. Edwards, a decision unanimously in favor of workers compensation in relation to any injuries sustained on the Outer Continental Shelf in Pacific Operators OffShore v. Valladolid, a case wherein the court went in favor of reasonable equitable tolling in relation to insider trading in Credit Suisse Securities v. Simmonds (that is to say -- if proof of ‘injury’ is found after the expiration of the statute of limitations, it’s potentially permissible), Montana losing a case in PPL Montana, LLC v. Montana (though -- I have to say -- it makes me wonder how equal footing doctrine squares itself with overlying rights/appropriative rights, et. al. in a situation like this (though that might not matter at all given the government’s capacity to invoke ‘navigation servitude’), found in favor of workman’s comp once again in Roberts v. Sea-Land Services, Inc., the seemingly bizarre case of Freeman v. Quicken Loans Inc. (wherein charging unearned fees only violated federal law if the fees were split between two companies), and the case of ‘outside’ salesmen being denied overtime in Christopher v. SmithKline Beecham Corp.
Now -- did the Walmart case (Walmart v. Dukes) leave workers in a less enviable position? It sure looks like it. As Nancy Gertner argues in the video above, if we take the cases of Iqbal and Twombly -- as Suja Thomas argues persuasively -- the terminology shifts to the idea of there being a “net effect to discriminate” and not to the matters at hand. You may receive less pay and fewer promotions, but if there is no “net effect to discriminate,” you can dismiss discrimination claims.
The Chamber of Commerce also picked up notice this past term, filing multiple amicus briefs, and finding itself on the winning side of 19 of 25 cases to which they filed an amicus brief. Its most notable loss came concerning the outcome of the Affordable Care Act.
The headliner of the 2011-2012 term was -- inarguably -- the ruling on the constitutionality of the Affordable Care Act, and the speakers at the University of Virginia address it accordingly.