• May 21, 2018

    by Rachel Geman, Partner, Lieff Cabraser Heimann & Bernstein, LLP

    A Kafkaesque beginning usually portends a bad ending, and today’s opinion in Epic Systems Corp. v. Lewis is no exception: “Should employees and employers be allowed to agree that any disputes between them will be resolved through one-on-one arbitration?”

    In a 5-4 decision, Justice Gorsuch’s majority opinion ruled that employees’ rights to participate in concerted activities under the National Labor Relations Act (NLRA) does not include the right to participation in class and collective actions. The Federal Arbitration Act (FAA) beat the NLRA.   

    Unfortunately, the Supreme Court’s views about arbitration (and interpretation of the word “agreement”) in consumer and employment contexts are no longer the relative surprise they were in 2011. The Supreme Court has not changed, in this sense, but the world around it has: as just two examples, the #metoo movement and empirical studies of the infirmities with pay secrecy show that silencing and silo-ing employees creates various kinds of inequality and other problems.

  • May 17, 2018

    by Caroline Fredrickson

    Brown v. Board of Education is back in the news. That’s not a reference to two of Trump’s judicial nominees who recently refused to comment on whether the US Supreme Court correctly decided the school desegregation case.

    There is another outrageous development. 

    Decades after the landmark decision, hundreds of thousands of New Jersey children are attending schools doubly segregated by race and poverty. The Garden State is among the most racially divided in the country. Four out of five black and Latino students in the state are taught in segregated classrooms.

    Why does this matter?

  • May 16, 2018

    by Eric J. Segall, Kathy and Lawrence Ashe Professor of Law, Georgia State University College of Law

    In the last few weeks, five Trump nominees to the federal bench refused to say at their confirmation hearings whether they thought Brown v. Board of Education was correctly decided. Of course, judicial nomination hearings have become thoroughly cynical affairs where most nominees refuse to comment on anything important. Nevertheless, all nine current Supreme Court Justices said they agreed with Brown, and the authors of an important book on judicial nominations said only a few years ago that no nominee could be confirmed without signaling assent to the decision that ended formal segregation. Yet, here we are with multiple nominees refusing to do exactly that. There was some media outcry, but not very much, and that absence reveals a lot about the state of race relations in America. We can’t even publicly agree that Brown was correctly decided?

  • May 15, 2018
    Guest Post

    Sahar Aziz, professor of law and director of the Center for Security, Race, and Rights, Rutgers Law School

    Since taking office, President Trump has prioritized one trait above all else in his cabinet appointees—blind loyalty. He wants people who will obey his orders without question, or they are fired. Picks such as Betsy DeVos for Secretary of Education, Ben Carson for Secretary of Housing and Urban Development, and Jeff Sessions as U.S. Attorney General also demonstrate his preference for candidates willing to undo Obama programs. Given that Obama touted ending America’s illegal torture program, Trump would not hesitate to reinstate it. 

    Thus, Trump’s nomination of Gina Haspel for Director of the Central Intelligence Agency (CIA) is a natural choice. Her extensive professional record, while impressive, evinces she lacks the fortitude to say no to superiors who order her to violate fundamental American values and domestic and international legal norms, like torture. So long as what she is asked to do is deemed legal by the president’s lawyers – however specious their legal reasoning – she will oblige. Some may find this approach appropriate for a political appointee. After all, cabinet members are selected because they agree to implement their boss’s political agenda.>

  • May 14, 2018

    by Lou Virelli, Professor of Law, Stetson University College of Law

    The concept of unconstitutional animus is, of course, on many people’s minds as the Supreme Court continues to mull over the legality of President Trump’s travel ban executive order. A few weeks ago, Stetson University College of Law was home to a day-long discussion of the concept of animus, centered on Bill Araiza's (Brooklyn Law School) 2017 book, Animus: A Short Introduction to Bias in the Law (NYU Press 2017). Links to the webcast of the morning and afternoon sessions are available for free, courtesy of Stetson.

    The conference, held on April 20 at Stetson, started with a panel that discussed the general concept of animus and its workability.  That panel was composed of Dan Conkle (Indiana-Bloomington), Katie Eyer, (Rutgers-Camden), and Susannah Pollvogt (Arkansas). The discussion was spirited, as the panelists had very different views about the usefulness of the animus concept in modern equality law. Those views ranged from enthusiastic support, to a suggestion that courts focus more on renewing traditional and well-established equal protection doctrines, such as tiered scrutiny/suspect class analysis, to a concern that the animus concept serves to distract social justice litigators whose best litigation option is often straightforward rational basis review.