Guest Post

  • May 3, 2016
    Guest Post

    by Gene R. Nichol, the Boyd Tinsley Distinguished Professor of Law and Director of the Center for Poverty, Work & Opportunity, UNC School of Law

    Two weeks ago, federal district court judge Thomas Schroeder issued a 485- page opinion upholding North Carolina’s  “monster” voter ID law, HB 589. It apparently takes more than a few pages to explain the acceptability of patent voter suppression. A lot of folks in the Tar Heel State were outraged. A lot cheered. None were surprised. The George W. Bush appointee had carried out his assignment with thoroughness, if not enthusiasm.

    Schroeder’s ruling upheld sweeping changes to North Carolina voting practices. Voters now have to present one of six forms of photo identification – pointedly excluding state university IDs – to secure a ballot. The statute also notably curbed early voting, prohibited same day registration, banned out of precinct voting, and ended an early registration program for first time voters. Leaders of the General Assembly had openly expressed their delight with the Supreme Court’s gutting of the Voting Rights Act in the Shelby County case. Now, they rejoiced, the full Monty was possible. They wouldn’t fumble this chance.

    The State Board of Elections identified a whopping two instances of “possible” voter impersonation in the previous fourteen year period. We could all understand the urgency. Rick Hasen deemed North Carolina’s new voting law “the worst seen in the United States” in a half-century. Over two hundred thousand Tar Heels were estimated to lack the newly-demanded credential. The newspapers filled with stories of poor, elderly, sick, disabled and disadvantaged citizens struggling to satisfy the dishonest requirement. Schroeder was unmoved. You know, there’s just gonna be some hardship and exclusion when it comes to voting. It’s not as if we’re talking about something important – like a concealed carry permit.

  • May 2, 2016
    Guest Post

    by Katherine G. Minarik, Partner, Bartlit Beck Herman Palenchar & Scott, LLP*

    With its cert grant in one chapter of the epic Apple v. Samsung patent litigation war, the Supreme Court expanded the spotlight on patent remedies this year. Although Samsung will not be heard until next Term, the grant came not long after the Court heard argument in Halo v. Pulse, a case about the proper standard for awarding enhanced damages, for which a decision is expected soon.

    It is not a surprise – or at the very least it was a predictable result (patent law pun intended) – that the Court is paying increasing attention to patent remedies. Scholars have counted up 78 patent cases before the Court from 1952 through the recent grant in Cuozzo v. Lee.  The Samsung grant makes 79 patent cases in the last 65 years. And a full 40 percent of those cases have been before the Court since 2006.

    While patent law can seem a bit enigmatic to many a non-patent lawyer, the reality is that what the Court is doing in patent law is common practice. The Court sees something not working, believes the Circuit Courts (or here, just the Federal Circuit Court) not fixing it, and steps in. Over the past decade, the Court has seen a lot of things not working in patent law: In 2007, KSR v. Teleflex loosened the standard for assessing the obviousness of a patented invention. In 2014, Nautilus v. Biosig loosened the standard for assessing indefiniteness of a patented invention. Also in 2014, Alice v. CLS Bank loosened the standard for assessing the patentability of the subject matter of a patent.

  • May 2, 2016
    Guest Post

    by Tom Nolan, Associate Professor of Criminology, Merrimack College; 27-year veteran of the Boston Police Department

    The city of Cleveland recently settled a federal wrongful death lawsuit for $6 million with the estate of Tamir Rice, a 12-year-old boy shot to death by Cleveland police officers on November 22, 2014. The shooting death of Rice, along with the deaths of Eric Garner, Sandra Bland, Freddie Gray, Michael Brown, Walter Scott and too many others have led to the incisive interrogation of the police narrative in their use of deadly force, particularly in the shooting deaths of men and women of color. Not all such deaths however, have received the widespread condemnation and exposure that the deaths of Rice, et al. saw, exposure that spawned the Black Lives Matter movement.      

    A journalist from the San Francisco Bay area recently sent me a video taken with a police body camera from a May evening in 2014, looking for analysis, context and commentary. The video showed police officers from the city of Hayward, California as well as officers from the Bay Area Rapid Transit (BART) police attempting to take James Greer, a 46-year-old man of color and grandfather who reportedly weighed 380 pounds, into custody on suspicion of driving under the influence. Hayward police had stopped Greer’s pickup truck and administered a brief field sobriety test before making the decision to arrest Mr. Greer. An officer asked Mr. Greer if he suffered from any medical conditions and he replied that he suffered from a hernia and pointed to the area of his stomach. Greer initially cooperated with officers, but then began offering resistance that can best be described as minimal and perfunctory. As is in keeping with standard police practices that are of late far too frequently captured and memorialized via video, Greer was immediately, violently, and decisively slammed to the pavement—on his stomach.          

    I have seen many of these “police videos” and am frequently sought out for comment and perspective on what is depicted. What I saw in the Hayward police video was one of the most shocking, outrageous, offensive, and noxious examples of police excess that I have ever witnessed—this in a career as a police practitioner, academic, observer, and analyst that dates back to the 1970s.

  • April 29, 2016
    Guest Post

    by Geraldine Sumter, attorney, Ferguson Chambers & Sumter, P.A., Charlotte, North Carolina

    In a Special Session on March 23, 2016, the state of North Carolina enacted House Bill 2 (“HB2”) which ensured that an ordinance passed by the City of Charlotte to recognize the human rights of the LGBT community would not become law. That ordinance contained a provision which allowed transgender persons to use the bathroom which corresponded with their gender identity. The General Assembly, riding on a wave of unfounded hysteria about child molestation in bathrooms, enacted HB2 in one day. The text of this bill was not released to the public in advance of the opening of the special session. It was signed into law by the governor within hours of its passage. Since the passage of HB2, there has been considerable attention given to the bathroom issue.

    An equally devastating result of HB2 is that it deprives every citizen of the state of North Carolina who might have a claim involving illegal discrimination in the work place (race, sex, age, national origin, religious belief, or disability) from suing in state court. Since 1985 when the North Carolina Supreme Court recognized a common law cause of action for wrongful discharge in violation of public policy, North Carolina citizens have been able to pursue claims for wrongful discharge in state court. The General Assembly abolished that right when it enacted HB2. The North Carolina General Assembly now forces its citizens to resort to federal court to pursue claims that they may have involving wrongful discharge against their employers.

    One may think that the availability of the federal remedy renders concern about the deprivation of the right to pursue these claims in state court as being trivial. However, a review of the differences in the access to the courts shows the harm that the enactment of HB2 will have on North Carolina citizens.

  • April 27, 2016
    Guest Post

    by Catherine Fisk, Chancellor’s Professor of Law, University of California, Irvine School of Law           

    Although it has been widely reported that Uber has agreed to settle class action suits by drivers in California and Massachusetts, it is far from clear that the settlement will be approved or that, even if it is approved, it will resolve the question of the employment status of Uber drivers. And it seems fairly clear that the settlement does not protect some drivers from poor working conditions.

    The two class actions allege that Uber misclassifies its drivers as independent contractors and thereby deprives them of the right to receive tips, minimum wage, overtime, and reimbursement for the expenses they incur (like the cost of the vehicle, insurance, and gas). The settlement agreement stipulates that, in exchange for payments totaling between $84 and $100 million and Uber’s agreement to modify the way it eliminates drivers from its program and to meet regularly with elected representatives of the Uber Driver Association, the plaintiff classes will abandon their claim that they are employees rather than independent contractors.

    Uber has touted the settlement as a major victory in its effort to keep its drivers as independent contractors rather than employees. If the settlement is approved, it would be a temporary victory on that issue. Another judge recently rejected a proposed settlement of a similar action brought by Lyft drivers because the judge found the agreement on damages failed adequately to compensate the plaintiffs, but in his order rejecting the settlement the judge said that he would accept a settlement that did not provide that drivers were employees.

    But Uber’s legal troubles over the employment status of its drivers will not end even if Judge Chen accepts the settlement, and there is no assurance that he will. Objections to the proposed settlement have been filed by other lawyers who represent some of the class members and who were apparently not involved in the settlement negotiations. And, of course, drivers who started working for Uber after the period covered by the suit are not among the plaintiffs in the class. Therefore, the settlement agreement will not foreclose them from suing for misclassification.