• July 24, 2015
    Video Interview

    by Nanya Springer

    Some talk this week centered on the issue of reforming the U.S. Supreme Court, with one irresponsible proposal gaining moderate attention, but Erwin Chemerinsky has been talking about fixing the Supreme Court for years.  In an interview with ACSblog, Chemerinsky ‒ the Distinguished Professor of Law and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law ‒ describes the Supreme Court’s greatest failures and proposes responsible solutions.

    Chemerinsky recalls the Lochner Era ‒ a period during which the high court struck down more than 200 laws enacted to protect consumers and employees, using the rationale that such laws interfere with freedom of contract. While the Lochner Era ended nearly a century ago, Chemerinsky explains that today’s Roberts Court “is the most pro-business Supreme Court that we’ve had since the mid-1930s.”

    This claim, as Chemerinsky notes, is backed up by empirical studies. From restricting the availability of class action suits and favoring binding arbitration to weakening the influence of unions, the Roberts Court has consistently sided with corporations over consumers and employees—all while refusing to recognize poverty as a suspect classification and determining that education is not a fundamental right.

    Chemerinsky offers reasonable proposals, such as imposing 18-year nonrenewable term limits, allowing cameras inside the Court and insisting that the justices conform to the same ethical standards, particularly with regard to recusal, as judges on other courts.

    Watch the full interview here or below.

  • February 25, 2015

    by Caroline Cox

    Katrina vanden Heuvel writes in The Washington Post that there is reason to hope for significant criminal justice reform

    In USA Today, Richard Wolf explains the religious discrimination case against retailor Abercrombie & Fitch, which asks to the Supreme Court to consider whether job applicants must ask for religious accommodations or the employer should recognize the need for them.

    David Welna reports for NPR on how the Senate Intelligence Committee report on the CIA interrogation and detention techniques has changed arguments for terrorism suspects at Guantanamo Bay.

    Scott Dodson discusses Justice Ruth Bader Ginsburg and her impact on the Supreme Court and modern jurisprudence at Hamilton and Griffin on Rights.

    In The New York Times, Katie Zernike reports on a New Jersey judge’s ruling that Governor Chris Christie broke the law by not making full pension payments.

    Mark Joseph Stern takes a look in Slate at new plans from state legislatures to tackle the problem of rape on college campuses.

  • January 27, 2015

    by Nanya Springer

    The Constitutional Accountability Center recently released the fifth installment of its year-long series, “Roberts at 10,” in which Brianne Gorod details the ways Chief Justice John Roberts’ voting record has undermined the public’s access to the courts.  She points out that Roberts has consistently taken positions limiting the scope of the standing doctrine, heightening pleading requirements, restricting exceptions to state sovereign immunity and expanding arbitration.  In fact, as Gorod notes, the Chief Justice has sided with the majority in every significant decision bolstering mandatory arbitration agreements, while every case expanding access to the courts has received his emphatic dissent.

    This restricted access to the courts, and in particular the expansion of arbitration as a mandatory alternative dispute remedy, has had far-reaching negative consequences for consumers and workers.  Governed by the Federal Arbitration Act, written arbitration agreements have become a ubiquitous, lurking menace, surfacing to harm consumers again and again and again

  • December 5, 2014
    Guest Post

    by Paul Bland, Executive Director, Public Justice.

    *This post originally appeared on the blog for Public Justice.

    I regularly hear consumer and workers’-rights advocates say this crazy thing to me: “the cases on forced arbitration are so bad, they can’t get any worse.” Um, wrong. A Missouri Court of Appeals recently issued a decision that bears me out on this point, in Johnson v. Rent-A-Center.

    In this case,an 88-year-old “neighborhood staple”, Kenny Johnson, rents a refrigerator from Rent-A-Center.  A guy from Rent-A-Center comes out to the consumer’s house twice to service the refrigerator. Then, the guy came a third time, the plaintiff alleges, wearing a Rent-A-Center uniform. And, according to the lawsuit and news reports, the Rent-A-Center guy, Eric Patton, seriously beat the man with gashes to his head and robbed him. He wasn’t discovered for three days. The assailant has been criminally charged.

    So in the mouse print of the “agreement” the consumer had to sign to rent the refrigerator was a forced arbitration provision. The forced arbitration provision says that the arbitrator, not a court, will decide when the arbitration clause applies to some dispute. But in this case, the consumer makes a pretty strong point: he went to Rent-A-Center to get a refrigerator, he didn’t go there requesting that they send a guy to his house to beat him up and rob him.

    Too bad, the court says. Listing some very pro-corporation U.S. Supreme Court decisions, the Missouri court holds that it has to enforce the arbitration clause, and let the arbitrator decide whether the dispute over the guy beating up the consumer is covered by the consumer’s contract about renting the refrigerator.  In fairness to the Missouri Court of Appeal, it directly stated that it was bound to follow a U.S. Supreme Court decision, “regardless of whether we agree with the reasoning expressed therein.”

  • August 14, 2014
    Guest Post

    by Peter M. Shane, the Jacob E. Davis and Jacob E. Davis II Chair in Law, Ohio State University, Moritz College of Law

    Headlines often describe President Obama as “going it alone” on public policy in light of congressional inaction.  But his boldest moves in favor of workers’ rights are rooted in an obscure statute enacted 65 years ago – the Federal Property and Administrative Services Act of 1949 (FPASA).  That statute’s explicit purpose is to establish “an economical and efficient system for . . . [p]rocuring and supplying property and nonpersonal services” for the federal government.”  Most important, it specifically empowers the President to “prescribe policies and directives that the President considers necessary to carry out” FPASA’s purposes.

    In late July, President Obama issued two important orders resting directly on his FPASA authority. Executive Order 13672 adds to the prohibitions on employment discrimination by federal contractors a ban on discrimination based on “sexual orientation” or “gender identity.”  Executive Order 13673 imposes a variety of measures to insure that federal contractors comply with state and federal labor laws. It further prohibits employers with federal contracts worth $1 million or more from insisting on the mandatory arbitration of worker complaints dealing with sexual assault or harassment or with claims arising under title VII of the Civil Rights Act of 1964. Last February, the President issued Executive Order 13658, imposing a higher minimum wage requirement on federal contractors, as well.

    These orders have important precedents. President Kennedy relied on FPASA to prohibit race discrimination by federal contractors, a requirement amplified by President Johnson. President Nixon relied on FPASA to require federal contractors to engage in affirmative action to achieve equality in employment. President Carter used FPASA to impose a temporary system of wage and price controls on federal contractors. President Bush required federal contractors to inform employees of their right not to join a union. These orders have all been upheld in court.