US Supreme Court Review: Two Labor Law Cases (Noel Canning and Harris v. Quinn)

US Supreme Court OT2013 logo(This is another post in our series, Looking Back at the U.S. Supreme Court’s 2013 Term.) Last month I commenced a series of posts of the United States Supreme Court’s labor and employment law decisions last term by blogging on the Court’s decision in the First Amendment public employee free speech case of Lane v. Franks, No. 13-483 (June 19, 2014).  In two separate blog posts, I will comment on two labor law Court decisions (NLRB v. Noel Canning and Harris v. Quinn) and two employee benefit/ERISA decisions (Burwell v. Hobby Lobby Stores, Inc. and Fifth Third Bancorp v. Dudenhoeffer).  This post discusses the labor law cases.

To begin, National Labor Relations Board v. Noel Canning, 134 S. Ct. 2550 (June 26, 2014), is obviously much more than just an ordinary labor law case.  Yes, it concerns the validity of decisions made by the National Labor Relations Board (NLRB or Board) when it had a quorum based solely on presidential recess appointments from roughly January 2012 through August 2013.  More specifically, on January 4, 2012, President Obama, faced with the prospect of another two-member Board (see below why this is a problem), used his constitutional recess appointment powers to make three intra-recess appointments.  In an effort to prevent any intra-session appointments, the Republican-controlled House of Representatives refused to give its consent to the Democratic-controlled Senate to go into recess.  See U.S. Const. Art. II, sec. 5 (“[n]either House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days . . . .”).  In response, the Senate held very brief, pro forma sessions in which no business was conducted.

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“With Friends Like These . . .”: New Critiques of Graham and Miller

The U.S. Supreme Court’s decisions in Graham v. Florida (2010) and Miller v. Alabama (2012) undoubtedly constitute the most important developments in Eighth Amendment law over the past decade. Graham banned life-without -parole (LWOP) sentences for juveniles convicted of nonhomicide offenses, while Miller prohibited mandatory LWOP for all juvenile offenders, even those convicted of murder. I have a lengthy analysis of the two decisions in this recently published article.

A special issue of the New Criminal Law Review now offers a pair of interesting critiques of Graham and Miller. Interestingly, both authors seem sympathetic to the bottom-line holdings of the two decisions, but they nonetheless disagree with central aspects of the Court’s reasoning (and, to some extent, also with one another). Both focus their criticisms on the Court’s use of scientific evidence regarding the differences between adolescent and adult brain functioning.

The more radical perspective comes from Mark Fondacaro, a psychologist who has emerged as a leading critic of retributive responses to crime and advocate for scientifically informed risk-management strategies.  

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Technology at the Court: Riley and Aereo

Like the legal profession generally, the United States Supreme Court has a reputation as slow to embrace new technologies. For example, Justice Kagan shared in an interview last year that the Justices rarely use email. Yet at the end of the recent term, the Court decided cases affecting two evolving technologies: cell phones and streaming video services. Unanimous in the judgment in Riley v. California, the Court held that the search incident to arrest doctrine does not allow police officers to search through the contents of an arrestee’s cell phone without obtaining a warrant. In American Broadcasting Companies v. Aereo, the Court concluded that a provider of video streaming services engages in a public performance and infringes copyrights by using dedicated antennae to capture broadcast signals and then transmit them to subscribers over the internet. However, in the opinions in these cases, the Justices seem careful to avoid allowing any personal unfamiliarity with cell phones or with Aereo’s streaming service to affect the quality of their decisions. Instead, the Justices confront the technologies in a pragmatic manner, focusing on the functions easily accessible to average users and avoiding analysis of underlying technological details.

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