• November 18, 2015
    Guest Post

    by Doron M. Kalir, Clinical Professor of Law, Cleveland-Marshall College of Law

    The fact that the Roberts Court is business-friendly is, by now, well documented. It is also no secret that the Court is generally hostile to the once-venerable institution of class actions. And most recently, as The New York Times ably demonstrated, the Court has moved to elevate arbitration as the preferred mode of dispute resolution. The accumulated effect of these three trends has been devastating: Millions of Americans – customers, employees, patients, and investors, among others – are routinely denied their fundamental right to have a day in court. Some call that the privatization of the justice system.

    DIRECTV, Inc. v. Imburgia, a case emerging out of an intermediate state court in California, is another case reflecting these trends. At first sight, it may not seem a likely candidate to become one of the Term’s blockbusters. Allegedly a typical state contract-interpretation case, it looks benign, almost boring to read. Yet it is anything but. It represents nothing short of a last-ditch effort by state courts to shield consumers from these emerging trends. Will it be successful or – as some predict – destined to fail? Only days will tell.

    The facts of the case are somewhat complicated. In 2007, Amy Imburgia contracted with DIRECTV to receive programming services. Predictably, her Customer Agreement contained an arbitration-only, no-class action clause. Unpredictably, it also contained language abolishing that clause should “the law of your state . . . find this agreement to dispense with class action procedures unenforceable.” And that is precisely what happened – the California Supreme Court held such provisions to be “unconscionable” and therefore unenforceable.

    Four years later, in AT&T Mobility v. Concepcion, the U.S. Supreme Court reversed the California rule. Class-action waivers in arbitration agreements, the 5-to-4 decision held, are enforceable, reasoning that the Federal Arbitration Act (FAA) preempts state law. Despite Concepcion, however, the California Court of Appeals ruled in this matter that the individual-only arbitration clause is still unenforceable. Why? The court reasoned that the term “the law of your state,” as included in this particular consumer contract, should not be interpreted to include federal interpretation of that law (the “Supremacy Clause” version), but rather only state law as interpreted by state courts.

  • November 18, 2015

    by Jim Thompson

    Nina Totenberg at NPR writes that lawyers for a lesbian mother in Alabama are asking the Supreme Court to reverse a decision of the state’s highest court rejecting the mother’s parental rights which were granted to her in Georgia.

    At Slate, Dahlia Lithwick argues that Justice Anthony Kennedy, who will likely be the swing vote in Whole Woman’s Health v. Cole, should vote against Texas’s abortion law.

    Washington state’s attorney general released a 48-page report Monday investigating allegations about Planned Parenthood profiting from sales of fetal tissue and "found no indication that procedures performed by Planned Parenthood are anything other than performance of a legally authorized medical procedure,” reports Becca Andrews in Mother Jones

    In a piece for Jacobin, Jonah Birch examines government repsonses to the terrorist attacks in Paris, noting the predictible efforts to turn "tragedy into war."

  • November 18, 2015
    Guest Post

    by Craig L. Jackson, Professor of Law, Texas Southern University Thurgood Marshall School of Law

    Can Congress create standing for violation of a statutory right by identifying as injury the violation of that statutory right? What does that mean? What seems to be a relatively simple question from reading Supreme Court cases that appear to stand for the position that Congress can create standing apparently is more complex than the cases let on. In Spokeo v. Robins, which is before the Supreme Court this term, the Court is being asked to resolve the question of whether the credit reporting firm Spokeo’s misreporting of Robins’ personal information alone creates standing on Robins’ part to sue Spokeo under the  Fair Credit Reporting Act.

    The Act provides a cause of action for persons who are the subject of credit reporting where the reporting firm does not follow the Act’s procedural requirements. Does that alone create the kind of standing required by Article III’s case and controversies provision? This was alluded to in Warth v. Seldin, quoting Linda R. S. v. Richard D. (“[A]ctual or threatened injury required by Art. III may exist solely by virtue of ‘statutes creating legal rights, the invasion of which creates standing…’”), restated in Lujan v. Defenders of Wildlife (Nothing in this contradicts the principle that "[t]he . . . injury required by Art. III may exist solely by virtue of ‘statutes creating legal rights, the invasion of which creates standing.'"), and reiterated in Justice Kennedy’s Lujan concurrence (“In my view, Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before, and I do not read the Court's opinion to suggest a contrary view.”). What makes the question even more interesting is the fact that Robins’ actual injury may have been speculative, at best, as no specific harm to his credit rating or employment opportunities were alleged in his complaint against Spokeo.

    The language from Warth, Lujan, and Kennedy’s concurrence in Lujan may have given the impression that a congressional act can create injury (through the bestowal of statutory rights) where none had existed before. By that understanding, Congress can, for whatever purposes, green light suits against offending actors by virtue of a violation of an act by declaring that violation harm to the potential plaintiff. This was certainly the understanding of the Ninth Circuit, and it was apparently the understanding held by Justice Sotomayor as evidenced by this exchange during oral arguments earlier this month:

  • November 17, 2015
    Guest Post

    by Michael Selmi, the Samuel Tyler Research Professor of Law, George Washington University Law School

    *This post is part of ACSblog’s Symposium on Labor and Economic Inequality.

    It is the best of times and worst of times for workers. On the upside, the plight of workers is receiving national attention, particularly low-wage workers, with a proliferation of initiatives to raise the minimum wage and to fight wage theft. At the same time, union membership continues to decline, now at below seven percent of the private workforce, with little indication of any likely rebound. Efforts to modify the legal structure to make union organizing more practical have been stymied in Congress, and again there is no reason to believe the law will change any time soon. 

    These parallel developments – an increased focus on employee well-being and the diminished influence of unions – should be in tension with one another given that for the last hundred years, unions have played a central (some would say the central) role in improving the employment conditions of workers. But it turns out that unions, as well as the Obama administration and other entities dedicated to worker welfare, have adopted a variety of creative means to improve working conditions.

    Take the most salient change over the last five years: minimum wage laws. Despite broad public support for increasing the minimum wage (including by a majority of Republicans in a recent Pew Research center poll), the federal minimum wage remains stalled at $7.25 an hour, significantly below its historical level once inflation is taken into account. President Obama initiated a campaign to move the federal minimum wage to $10.10 an hour, and later mandated such a wage for federal contractors, a move that required no Congressional action. With federal legislation stalled, more than 20 states have taken action to raise their minimum wage, including by popular vote in the deep red states of Arkansas and Nebraska.

  • November 17, 2015
    Guest Post

    by Adam Winkler, Professor of Law, UCLA Law. Winker is author of Gunfight: The Battle over the Right to Bear Arms in America.

    As the Supreme Court has made clear, the Second Amendment is not an insurmountable barrier to gun control. President Barack Obama should not let the stalemate in Congress be one either. That’s why I, along with numerous other law professors, signed the “Statement of Law Professors on the Constitution and Executive Action to Reduce Gun Violence.” Even in the absence of new federal gun legislation to require every gun buyer to pass a simple background check, the president should continue to seek ways to reduce gun violence through executive action.

    Although Obama’s use of executive powers follows longstanding presidential tradition, it has proven controversial. Some have suggested – incorrectly – that executive action on guns would be unauthorized under the Constitution or undermine the Second Amendment right to keep and bear arms. In fact, however, the Second Amendment gives the government wide leeway to regulate guns to enhance public safety. Moreover, the Constitution vests Obama with the obligation to insure that congressional mandates “be faithfully executed,” enabling him to take executive action.

    Executive action designed, for instance, to clarify existing federal statutes is clearly within the president’s power. The president can, and should, clarify when a gun seller is “engaged in the business” of dealing firearms and thus required to have a federal license. He should also apply the existing federal law barring gun possession by people convicted of misdemeanor crimes of domestic violence to non-married couples and prioritize prosecution of illegal gun buyers. None of these reforms undermine the individual’s right to keep and bear arms for self-defense.  

    As with all individual rights, the president should be sure to pursue only those executive actions that do not infringe the Constitution. As the Statement suggests, however, there is much President Obama can still do to reduce gun violence well within the Constitution’s boundaries.