April 2011

  • April 27, 2011

    The Supreme Court led by its conservative wing issued an opinion limiting states’ ability to nullify contracts that prohibit class action arbitration.

    In AT&T Mobility v. Concepcion, Justice Antonin Scalia writing for the 5-4 majority concluded that a provision of the Federal Arbitration Act (FAA) bars enforcement of a California law that nullifies contracts that prohibit class-action arbitration. Scalia was joined by Chief Justice John Roberts, Anthony Kennedy, Clarence Thomas and Samuel Alito. The opinion overturns a ruling by the U.S. Court of Appeals for the Ninth Circuit, which found that the FAA provision did not preempt the California law.

    Scalia wrote that the “overarching purpose of the FAA … is to ensure the enforcement of arbitration agreements according to their terms so as to facilitate streamlined proceedings. Requiring the availability of classwide arbitration interferes with fundamental attributes of arbitration and thus creates a scheme inconsistent with the FAA.”

    Justice Stephen Breyer, joined by Justices Ginsburg, Sotomayor and Kagan, lodged a dissent, arguing that California’s law “is consistent with the federal Act’s language and primary objective.”

    Breyer added, “California is free to define unconscionability as it sees fit, and its common law is of no federal concern so long as the state does not adopt a special rule that disfavors arbitration.”

    The Associated Press says today’s opinion “could greatly restrict the use of class actions, in which a party represents a much larger group, in disputes over contracts.”

    In a guest post for ACSblog, Public Justice’s Paul Bland Jr. charged that the “corporatist idea that the FAA preempts all state law limiting class-action bans hasn’t caught on in the lower courts because there is no serious legal or intellectual basis for it. If the Supreme Court decides to completely federalize the law in this area, it will have to invent from whole cloth new federal law that is not supported by anything in the language of the FAA or in its history.”

    Bland also participated in an ACS briefing on the AT&T Mobility v. Concepcion case. Video of the briefing, which included a panel discussion, is available here.

    Update: Senate Judiciary Chairman Patrick Leahy, in a statement on the opinion, said, "The opinion of five Supreme Court Justices in AT&T v. Concepcion will further weaken protections for consumers. The divided court decided that state laws which would protect consumers' rights to band together are preempted by Federal law. This is the latest in a series of cases where five conservative justices have hampered the rights of consumers to be protected by state laws. Class actions are an effective way to ensure consumer protection, but today's opinion by the Roberts Court continued to move in a direction that undermines this access to justice for hardworking Americans."


  • April 27, 2011
    Practical Advice

    For those contemplating a career in law and therefore potentially investing in a legal education, this article for The New Republic by University of Colorado law school professor Paul Campos is a must-read.

    Campos reports on the “main sources of information on post-law-school employment rates,” and how faulty they are. His report suggests that prospective students would do well to examine closely or ignore the claims by most of the ABA-accredited schools that within nine-months of graduation almost all their graduates have full-time employment.

    The professor says the numbers do not represent the true employment of recent graduates. In fact, according to his own study of the available information, he says the numbers of gainful employment are likely much, much lower.

    Campos writes:

    In the course of my research, I audited a representative sample of individual graduate responses and found several instances of people describing themselves as employed permanently or full-time, when in fact they had temporary or part-time jobs (I found no instances of inaccuracies running in the other direction). Perhaps some graduates exaggerate their employment status out of embarrassment, or for strategic reasons, but, whatever their reasons might be, this apparently not uncommon practice suggests that the true employment rate should be lowered even further.

  • April 26, 2011
    Video Interview

    Social media scholar danah boyd, a senior researcher at Microsoft Research and a research associate at Harvard University's Berkman Center for Internet and Society, recently spoke with ACSblog about young people, privacy, and the Internet.

    boyd explains why young people gravitate toward social media sites as a way of figuring out their place in the world, and why she believes the Children's Online Privacy Protection Act (COPPA), while well-intentioned, is not working the way it should.

    While COPPA was designed to require parent permission for children younger than 13 to participate in social media, the law has, in effect, created a ban for children younger than 13, with both parents and children systematically skirting that ban by lying about the child's age, she explains.

    “Parents are finding themselves written out of this and disempowered by the system, and they’re teaching their kids to lie,” boyd says.

    She suggests that education about use of social media is a better solution than age restrictions.

    Watch the full interview below.

  • April 26, 2011

    A Religious Right organization is urging a federal court in California to invalidate the 2010 decision striking the state’s anti-gay marriage law, Proposition 8, because the judge who issued that opinion is gay, the Los Angeles Times reports.

    The newspaper notes, “In a court filing, the sponsors of the ban on gay marriage, ProtectMarriage, asked the chief judge of the federal court in San Francisco to nullify last August’s ruling by former U.S. District Chief Judge Vaughn R. Walker, who retired earlier this year.”

    The group’s filing states, “Judge Walker’s 10-year-long same-sex relationship creates the unavoidable impression that he was not the impartial judge the law requires.”

    SCOTUSblog’s Lyle Denniston provides analysis of the group’s filing and link to it. He writes that the filing is the “latest effort by the measure’s supporters to challenge Judge Walker; they have pending in the Circuit Court a request to block any further public release of the videotape of the trial in his court, contending he has wrongly made public portions of that recording, which is now under seal after the Supreme Court blocked public broadcasting of the trial itself.”

    In post for Legal Ethics Forum, University of Minnesota Law School Professor Richard W. Painter, the former White House Chief Ethics lawyer for President George W. Bush, took issue with a couple of bloggers who also charged that Judge Walker should not have heard the Prop. 8 case.

    “The absurdity of this claim is obvious,” Painter wrote. “The mere fact that a judge belongs to a class of persons affected by a case does not require recusal.”

    In other events regarding the struggle to advance marriage equality, The New York Times reports on one of the nation’s largest law firms, King & Spalding, and its decision to step away from defending the anti-gay law, the Defense of Marriage Act (DOMA), in court. Since the Obama administration announced earlier this year that it would stop defending the law in court, Republicans in the U.S. House of Representatives turned to outside counsel to defend the law, and tapped King & Spalding attorney Paul D. Clement.

    Clement, a former U.S. Solicitor General in the Bush administration, resigned from the law firm yesterday after it decided to drop the case. Clement, the newspaper reports, will represent the Republicans’ argument against DOMA as a partner at Bancroft PLLC.

    Announcing his resignation from King & Spalding, Clement said, “Defending unpopular clients is what lawyers do.”

    King & Spalding Chairman Robert D. Hayes Jr. said in a statement that the firm inadequately vetted the case and should not have agreed to take it. The Times noted a clause in the House contract that barred the “firm’s lawyers from any advocacy for or against bills that would or repeal the marriage act.”

    Evan Wolfson, president of Freedom to Marry, lauded King & Spalding for dumping the case.

    “In America, every person deserves a defense, but not every position does,” Wolfson said in a press statement. “King & Spalding has recognized what President Obama, the Department of Justice, and many members of Congress have joined Freedom to Marry in concluding: federal marriage discrimination and the so-called ‘Defense of Marriage Act’ are indefensible.”   


  • April 25, 2011
    Guest Post

    By Ellen Dannin. Professor Dannin is the Fannie Weiss Faculty Scholar and Professor of Law at Penn State Dickinson School of Law and a Researcher at the Employment Policy Research Network (EPRN). This essay was prepared as part of the EPRN's work in shaping the future of employment policy and practice.

    Not Just Jobs, but Good Jobs

    In this era of high unemployment, the United States has increasingly become a country of bad jobs that are held by people desperate to provide food and shelter for themselves and their families. As a result, many workers and unemployed workers have become so desperate that they are willing to forego fair treatment on the job, the enforcement of laws enacted to provide safe, fair, and remunerative work, and the working conditions of other employees who have benefitted from collective bargaining.

    For decades, workplace laws have also been weakened by judicial decisions, a process referred to as “judicial amendments.” The National Labor Relations Act’s protections and rights have been progressively weakened through judicial decisions. Before it, the Clayton Act was passed in 1914 to reverse judicial amendments of the Sherman Act that gave federal courts the power to issue sweeping injunctions in labor disputes. In 1932, Congress tried to overturn judicial amendments that weakened the Clayton Act by passing the Norris-LaGuardia Act. Workplace laws continue to be subject to the process of judicial amendments today. For example, Congress amended Title VII in 1978, 1991, and 2009, and the Americans with Disabilities Act (“ADA”) in 2008, in order to overturn judicial amendments and reinstate the protections Congress had created. Other laws, such as the Occupational Safety and Health Act (“OSHA”), have long failed to achieve their purposes as a result of judicial amendments.

    When people across this country go to work, they enter a place where democratic rights of due process, equal protection, and voice must be checked at the workplace door.

    This situation is certainly sad for those workers and their dependents. But problems created by a society composed of many desperate people are not just a personal tragedy. Their effects erode our collective well-being, the promise of this country, and our survival as a democratic society.

    Who Owns a Job?

    We need a serious discussion as to whether work in a democracy should be the same as or different from work in a dictatorship. Put another way, should our constitutional rights to due process, equal protection, and freedom of assembly and speech affect the way work is conducted and the roles and rights of employers and employees in the workplace?

    The very idea that constitutional and democratic values and rights could – or even should – be part of the fabric of the workplace will strike many as ludicrous. It seems obvious that the workplace belongs to the employer, and an employer can treat its property as it wishes. This means that employers are allowed to set workplace rules, even if the rules are bad ones and even if they are destructive to the company. Employees have no rights to participate in setting rules and processes and are allowed to retain their jobs only as long as they are productive, loyal, and obedient.

    Unions and their roles and obligations under federal and state collective bargaining laws do more than just allow employees to negotiate their terms and conditions of employment. They also create rights to industrial due process and equal protection. Despite their effects on workplace relationships and power, justifications made for union representation and collective bargaining do not include issues of job ownership and the role of work in a democratic society.