Supreme Court Hears Argument on Whether NLRB Actually Still Exists

Yesterday morning, the U.S. Supreme Court heard oral argument in an important case at the intersection of labor law, statutory interpretation, and administrative law. In New Process Steel, L.P. v. NLRB, on appeal from the Seventh Circuit Court of Appeals, the Court will decide whether a two-member National Labor Relations Board (NLRB or Board) has the authority to engage in adjudication on behalf of the Board. The Board has operated with only two members for over two years, since the appointments of two Board members expired on December 31, 2007. Just before that time, effective midnight, December 28, 2007, the Board delegated all of its powers to a group of three members to continue to issue decisions and orders as long as a quorum of two members remained. Since that time, the two Board members remaining, acting as a quorum of the group, have issued over 500 decisions. 

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Filip Expresses Concern About the Return of Sentencing Disparities

jailed womanFormer U.S. Deputy Attorney General Mark R. Filip warned at Tuesday’s Hallows Lecture that disparities in sentencing by federal judges are returning since the U.S. Supreme Court ruled five years ago that sentencing guidelines are only advisory.

Filip, who also is a former federal judge and now practices with a Chicago law firm, said that United States v. Booker in 2005 reduced the import of sentencing guidelines that dated to the late 1980s, “returning us to an era of indeterminate sentencing.” While he said that commentary on Booker from both judges and defense lawyers has been generally favorable, data on sentencing patterns since the decision show that in different parts of the country, significantly different sentences are being given for comparable convictions. 

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Troubling Trends in the Federal Criminal Justice System

In his terrific Hallows Lecture yesterday evening, former U.S. District Judge Mark Filip criticized a number of recent trends in the federal criminal justice system, including the use of return-on-investment measures of law enforcement success and the requirement that corporations suspected of wrongdoing retain costly compliance monitors.  Audio of the Lecture is now available here.  We expect to post the text of Judge Filip’s remarks and additional commentary in the next few days.

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