Erwin Chemerinsky

  • May 12, 2011

    Law firms devoted to the interests of large corporations are not surprisingly taking advantage of a road being forged by the Supreme Court’s conservative wing to hobble efforts of consumers and workers to challenge corporate malfeasance.

    Reporting on the high court’s recent opinion in AT&T v. Concepcion, in which the high court’s conservative wing led by Justice Antonin Scalia shut down a consumer led-class action lawsuit against one of the nation’s largest telecommunications companies,The New York Times noted, “Though the decision concerned arbitrations, it appeared to provide businesses with a way to avoid class-action lawsuits in court. All they need do, the decision suggested, is use standard-form contracts that require two things: that disputes be raised only through the informal mechanism of arbitration and that claims be brought one by one.”

    In May 10 “newsletter” produced by Foley & Lardner LLP, John Douglas suggests that big employers should take advantage of the Concepcion opinion, and notes that the same conservative majority appears ready to continue protecting corporate interests, citing recent oral argument in Wal-Mart Stores, Inc. v. Dukes involving the nation’s largest worker class-action lawsuit alleging discrimination against the retailing giant.  

    Douglas writes:

    Based on the behavior of the Justices during the oral argument [in Wal-Mart v. Dukes] of the case (, it is already expected that the Supreme Court's upcoming decision involving a nationwide class action against Wal-Mart may throw some sand in the gears of a current juggernaut of class actions already attempting to raise claims of systemic discrimination based on sex and race. AT&T Mobility does the same thing. Particularly in the area of wage and hour class actions, AT&T Mobility should provide some long-awaited music for the ears of employers swamped by wave after wave of wage and hour class actions raising ever more technical, and “creative,” legal theories.

    How is this? Simply put, at least potentially, every employer big enough to face significant class action litigation risk (generally those with more than a couple dozen employees) can now have its employees sign an agreement to arbitrate as a condition of employment — and furthermore, require that any claim brought in arbitration be an individual one.

    As noted here earlier, Constitutional law scholar and professor Erwin Chemerinsky in a piece for the Los Angeles Times blasted the Concepcion majority as “favoring the interests of businesses over consumers, employees and others suffering injuries.”


  • May 11, 2011

    The Supreme Court’s recent decision in AT&T Mobility LLC v. Concepcion is “nothing other than a conservative majority favoring the interests of businesses over consumers, employees and others suffering injuries,” writes UC Irvine School of Law dean Erwin Chemerinsky in an op-ed in the Los Angeles Times.

    Chemerinsky explains that the court’s decision to deny individuals with claims of about $30 each their right to file a class action because the Federal Arbitration Act trumps California law does not comport with the Act itself, which provides that arbitration agreements are not to be enforced when the state court deems them unenforceable, as California law did here.

    “The Supreme Court ignored this and explicitly said that it was important to protect defendants, such as corporations, from the in terrorem ("in fear") effects of class action that pressure them into settlements,” Chemerinsky writes. “The court's conservative majority could not have been clearer that it was favoring businesses over consumers.”

    [The National Senior Citizens Law Center’s Rochelle Bobroff fleshes out this point in a guest post for ACSblog.]

    Chemerinsky notes Justice Stephen G. Breyer’s dissent, which points out that “only a lunatic or fanatic sues for $30,” and that the class action mechanism is intended for precisely these situations.

    He continues:

  • April 18, 2011

    In light of increasingly “ugly” and “expensive” judicial elections such as the recent Wisconsin Supreme Court justice race, states should be permitted to impose more limits on judicial campaign spending than they do on other types elections, write University of California, Irvine law school dean Erwin Chemerinsky and Hofstra law professor James J. Sample in The New York Times.

    “More than 7 in 10 Americans believe campaign cash influences judicial decisions. Nearly half of state court judges agree. Never before has there been so much cash in the courts,” the op-ed explains.

    Chemerinsky and Sample urge advocates for abolishing judicial elections to “come to terms” with the reality that “judicial elections are here to stay,” and instead focus their energy on “incremental changes” that will reduce the influence of money on judges. (A New York Times editorial published last week urged the use of a merit panel rather than election to select Wisconsin’s judges.)

    They explain that while states are permitted to impose limits on direct contributions by persons to candidates, states are not permitted to set restrictions on outside spending. Such indirect spending to candidates is ever-increasing: In 2008 for the first time, spending by non-candidate groups nationally exceeded spending by candidates on the ballot.

    “In the legislative and executive offices, it is accepted that special-interest lobbying and campaign spending can influence votes; but that is anathema to our most basic notions of fair judging,” they write. “Thus, the Supreme Court should hold that the compelling interest in ensuring impartial judges is sufficient to permit restrictions on campaign spending that would be unconstitutional for nonjudicial elections.”

    Read the full article here. For more on judicial selection, see an ACSblog video interview with Justice at Stake Executive Director Bert Brandenburg on Caperton v. Massey, a 2009 Supreme Court decision on judicial conflict of interest referenced in the op-ed.

  • October 21, 2010
    The Conservative Assault on the Constitution
    Erwin Chemerinsky

    By Erwin Chemerinsky, founding dean of the University of California, Irvine School of Law and a preeminent scholar on constitutional law.
    Since Richard Nixon ran for President in 1968, conservatives have sought to change constitutional law in a conservative direction. To a large extent, in virtually every area of constitutional law, they have succeeded. The focus of my new book, The Conservative Assault on the Constitution, is to describe what has happened and how conservative presidents and justices have lessened constitutional protections and moved constitutional law significantly to the right.

    Between 1968 and 2009, Democratic Presidents appointed only two justices to the Supreme Court, Ruth Bader Ginsburg and Stephen Breyer, while Republican Presidents appointed a dozen justices. Many Republican-appointed justices - like Antonin Scalia and Clarence Thomas - are as conservative as any who have served on the Supreme Court. John Roberts and Samuel Alito have been everything that conservatives could have hoped for and liberals could have feared.

    That, of course, leaves Anthony Kennedy as the swing justice on the Court. But Kennedy, an appointee of President Ronald Reagan, is much more likely to side with the conservatives than with the liberals. Last year, there were 12 5-4 decisions split along ideological lines, with Roberts, Scalia, Thomas and Alito on one side, and Stevens, Ginsburg, Breyer, and Sotomayor on the other. Justice Kennedy sided with the conservatives in nine of these dozen cases and with the liberals in three. The year before, there were 16 ideologically divided 5-4 cases and Justice Kennedy sided with the conservatives in 11 of 16.

    The success of these justices in remaking constitutional law in a conservative direction must be understood as part of a larger conservative agenda. Because the Supreme Court decides cases one at a time, because not every case has come to a conservative result, and because Roe v. Wade has not been overruled, it is easy to underestimate the dramatic successes that conservatives have had.

    The focus of my book is to show what has happened across many areas of constitutional law. I examine six areas. Chapter 1 focuses on how a series of Supreme Court decisions in the 1970s, 1990s, and the last decade have led to schools that are increasingly racially separate and unequal.

  • May 11, 2010

    "Proposals like Sen. Joe Lieberman's to take away a suspect's citizenship put the nation on a dangerous path," writes UC Irvine School of Law Founding Dean Erwin Chemerinsky (pictured) in the Los Angeles Times. Chemerinksy, a frequent ACS participant, took to the pages of the Times amid persistent critiques of the federal response to an attempted bombing in Times Square, including a proposal by Sen. Lieberman to strip terrorism suspects of citizenship.

    Chemerinsky writes:

    Those who commit terrorist acts can and should be severely punished; stripping them of their citizenship and failing to inform them of their right to remain silent serve no additional purpose.

    There is no reason to believe that advising terrorism suspects of their rights obstructs effective law enforcement. Take the case of Faisal Shahzad, accused of placing the car with explosives in Times Square. He spoke to authorities before being given his Miranda warnings, and continued to speak after. In fact, police have demonstrated over decades that they can function effectively even when suspects are advised of their rights. If there is a public safety emergency, current law permits questioning without Miranda warnings. Those determined not to speak will refuse to do so whether or not they have been informed of their rights.