Alan Morrison

  • May 6, 2013

    by John Schachter

    Lest anyone still doubt corporate influence (or is it control?) over the nation’s high court, Adam Liptak’s nearly 3,000-word article in yesterday’s New York Times should resolve any uncertainties. The Court’s business rulings, Liptak notes, “have been, a new study finds, far friendlier to business than those of any court since at least World War II. In the eight years since Chief Justice Roberts joined the court, it has allowed corporations to spend freely in elections in the Citizens United case, has shielded them from class actions and human rights suits, and has made arbitration the favored way to resolve many disputes.”

    The latest report, published in April in The Minnesota Law Review, looks far beyond cursory glances and anecdotal examples, studying 2,000 court decisions over a 65-year-period ending in 2011. “The study ranked the 36 justices who served on the court over those 65 years by the proportion of their pro-business votes; all five of the current court’s more conservative members were in the top 10,” Liptak notes. “But the study’s most striking finding was that the two justices most likely to vote in favor of business interests since 1946 are the most recent conservative additions to the court, Chief Justice Roberts and Justice Samuel A. Alito Jr., both appointed by President George W. Bush.”

    Before right-wing skeptics criticize the latest report as biased propaganda, we should note that the authors who prepared the report – Lee Epstein, a USC professor of law and political science; William M. Landes, an economist at the University of Chicago; and Judge Richard A. Posner, of the federal appeals court in Chicago, who teaches law at the University of Chicago – are no one’s idea of a leftist cabal.

    This study, meanwhile, comes on the heels of a new report by the Constitutional Accountability Center (CAC) that found that the Supreme Court continues to hear more cases involving business interests and “that the Chamber [of Commerce] continues to win the vast majority of its cases pending before the Roberts Court.” ACS’s own Jeremy Leaming took a look at this report and the broader issue just four days ago in a post for ACSblog. 

  • June 25, 2012
    Guest Post

    By Alan B. Morrison, Lerner Family Associate Dean for Public Interest & Public Service at George Washington University Law School.*


    The issue before the Supreme Court in Knox v. SEIU, decided June 21, 2012, was what procedures the union had to follow in order to allow non-members, who are required by law to support the union’s collective bargaining activities, to object to a special assessment that was going to be used in large part for political and other advocacy work that non-members claim they had a right not to support with their money. 

    To know what side Justice Samuel Alito and his four colleagues were going to take, a reader only had to go to page 3 where he discusses the budget battle in California that prompted the special assessment that was challenged in Knox. He describes the debate “and in particular the consequences of growing compensation for public employees backed by powerful public sector unions” like SEIU (emphasis added).  If the issue is whether a “powerful” public-sector union or dissenting individuals will prevail, the smart money would not be on the union.

    The conclusion that the union had to do more than it did was supported by seven Justices, and thus a ruling against it would not have been particularly noteworthy on its own. But the holding of the majority and how it got there are quite remarkable. First a little background. It is now an accepted part of labor law that, except in so-called right-to-work states, individuals who are not union members must pay their share of the costs of collective bargaining that results in contracts that benefit them as well as union members. But the Supreme Court has ruled that not every dollar that a union collects from its members as dues is properly attributable to collective bargaining, and over the years a system has developed under which non-members can object to paying those additional amounts. Thus, each year non-members have a right to opt-out and pay less than members pay, without having to give any reason for doing so, with the amount based on a formula derived from last year’s audited union expenses. Knox involved a special assessment, rather than a regular payment, and the issue was what were the rights of the would-be dissenters in that situation, where there was at least the possibility that some of those who did not dissent from the annual payment, might want to opt-out of the special assessment.

  • June 21, 2012
    Guest Post

    By Alan B. Morrison, Lerner Family Associate Dean for Public Interest & Public Service, George Washington University Law School. The writer did an unpaid moot court for plaintiffs’ counsel in the case discussed in this essay.


    In Christopher v. SmithKline Beecham (No. 11-204, decided June 18, 2012), the Supreme Court had to decide whether individual plaintiffs who were detailers for drug companies were exempt from the overtime provisions of the Fair Labor Standards Act (FLSA), which do not apply to workers employed “in the capacity of outside salesmen.” The relevant facts were undisputed and also appear to be unique to this industry. There is an interesting administrative law issue relating to whether the interpretation of the Department of Labor, which enforces the FLSA, should be given deference, but what caught my eye was the battle between the literalists and the pragmatists and how it came out in this case.

    The job of a drug detailer is to persuade doctors to prescribe the prescription drugs sold by their company to their patients in appropriate situations. By law, those drugs can only be purchased from a licensed pharmacy, with a doctor’s prescription, and the actual sales of the drugs are made by the manufacturer (the employer of the detailer) to the pharmacy, but never to a doctor or a patient directly. Detailers are paid good salaries, plus a modest bonus that is loosely determined by the sales of the drugs in their territory. The individual plaintiffs earned in excess of $70,000 per year and the industry average is above $90,000.  They regularly work between 10-20 hours a week above the 40 hours, after which they would be entitled to overtime. Their work is almost always out of the office, and no one supervises them on a daily basis.

    The issue the Court had to decide was whether these plaintiffs (and nearly 90,000 others in the industry who work in virtually identical arrangements) are exempt from the overtime law because they are outside salesmen. At stake was potentially millions of dollars in unpaid overtime for whatever period was not barred by the statute of limitations. The companies could probably restructure their pay systems in the future to minimize the impact, by reducing salaries or bonuses to offset any anticipated overtime, but they would prefer not to have to do that.

  • October 14, 2011

    by Nicole Flatow

    This week, the U.S. Supreme Court heard oral argument in a case about whether a consumer protection law that explicitly says “you have a right to sue” can be overridden by the fine print in a credit card contract.

    The case, in which plaintiffs are challenging hidden fees of as much as $257 on a card with a $300 limit, is the latest to test individuals’ ability to hold corporations accountable in the courts.

    Over the past few years, several important decisions have limited that right. In Wal-Mart v. Dukes, the court limited the scope of class actions in discrimination cases. In AT&T Mobility v. Concepcion, the court upheld a provision prohibiting class action lawsuits in a phone service contract. And in Ashcroft v. Iqbal and Bell Atlantic Corps v. Twombly, the court made it more difficult to initiate a civil lawsuit in court.

    But these are just a few of the decisions in which the Supreme Court has empowered corporations through “seemingly small” procedural rulings, explains Alan B. Morrison in his new ACS Issue Brief, “Saved by the Supreme Court: Rescuing Corporate America.” In fact, “[s]ince the late 1980s, on almost every occasion where big corporations have had a case of major significance in the High Court, the Court has ruled in their favor.” He explains:

  • May 5, 2010

    In a recent piece for Slate, Simon Lazarus of the National Senior Citizens Law Center and George Washington University Law Professor Alan Morrison provide a sharp critique of the anti-health care reform lawsuits filed by several attorneys general. According to Morrison and Lazarus, the author of an ACS Issue Brief on the constitutionality of health insurance mandates, "The state attorneys general efforts to block health care reform aren't just wrong. They're frivolous."

    Lazarus and Morrison write:

    The first problem is that state governments are the wrong plaintiffs to challenge the individual insurance mandate. No state will ever have to pay a penny in taxes or be told to take out health insurance: The law applies only to individuals. The attorneys general might have attempted to plug this gap by adding individual plaintiffs to their complaints. But even if they found those people, the AGs couldn't sue on their behalf right now, because the mandate does not take effect until 2014. Between now and then, all kinds of things could cause plaintiffs to lose their standing to sue: Their health could deteriorate and they could actually need health insurance; they might get a job with health benefits; or they might just have a change of heart. Any or all of these contingencies are quite likely, if a Massachusetts state government survey showing that only 2.6 percent of Massachusetts residents do not comply with the mandatory insurance requirement in that state's law is any indication. In lawyers' language, not only will the state attorneys general never have standing to bring these claims on their own; even the claims of real individuals are not yet "ripe."