Priorities for the Next President: Labor and Employment Law

In responding to the question, “What should be the highest priorities of the next President in the areas of law that you teach,” the answers in labor and employment law are many and clear.

The next President should first focus on the following three areas in the labor and employment law context: labor rights, workplace anti-discrimination and civil rights, and employee benefit rights.

Labor Rights: The percentage of American workers covered by union contracts is now below 8%, as opposed to 16% as recently as 1985. Without unions to fight for them, workers fall behind in wages, benefits, and standard of living.  Additionally, companies like Wal-Mart are calling meetings to tell employees not to vote for the Democrats in this year’s election.  Unionized workers earn more and are more likely to have pensions and health insurance than non-unionized workers.  Workers should have the freedom to choose whether to join a union without harassment or intimidation.  The next President should therefore sign the Employee Free Choice Act, a bipartisan effort to assure that workers can exercise their right to organize and secure initial agreements with their employers.  The next President should also act to restore collective bargaining rights to nurses and other workers excluded as “supervisors,” and to ban employers’ practices of permanently replacing striking workers. The next President should sign into law the Public Safety Employer-Employee Cooperation Act to assure public safety workers who put their lives on the line every day their right to bargain collectively.  Finally, the next President should work to appoint members of the National Labor Relations Board who will work to protect employee choice by outlawing employer captive audience meetings during election campaigns.

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When the Lawyer Messes Up, Should the Defendant Suffer the Consequences?

This is the question posed by a criminal procedure case the Supreme Court recently agreed to hear.  In Puckett v. United States (lower court decision at 505 F.3d 377), the prosecutor and defendant entered into a plea agreement: in return for Puckett’s guilty plea, the prosecutor agreed to support Puckett’s request for a sentence reduction based on acceptance of responsibility.  When sentencing occurred, however, the prosecutor actually argued against acceptance, and the district court judge denied the requested reduction.  On appeal, both sides agreed the prosecutor had breached the plea deal, but did not agree on whether Puckett was entitled to withdraw his guilty plea (the typical remedy for a breach).  The problem was that Puckett’s lawyer neglected to argue at sentencing that there had been a breach.  As a result of this forfeiture, the Fifth Circuit reviewed Puckett’s breach claim using the “plain error” standard, which required Puckett to show that the breach actually affected the sentence he received–a difficult burden in most cases because it is hard to know for sure the extent to which a sentencing judge is influenced by a prosecutor’s argument.  Absent the lawyer’s neglect, Puckett would have been entitled to relief without showing prejudice under Santobello v. New York, 404 U.S. 257 (1971).

In the Supreme Court, the parties will argue about whether Puckett and others like him should be penalized through plain error review when their lawyers fail to object at sentencing to the breach of a plea agreement.  As a general matter, I do not care for the “gotcha” games that appellate courts play through forfeiture and plain error doctrines.  I appreciate the judicial economy concerns that are used to justify the requirement that lawyers make all objections to trial court proceedings in a timely fashion, but the stakes are too high in criminal cases to hold clients strictly accountable for their lawyers’ mistakes–especially considering that most criminal defendants cannot afford to pick their own lawyers and are stuck with whomever is appointed to represent them.  I might feel differently in cases in which there is some good reason to think the lawyer intentionally held back on an objection or argument for tactical reasons.  But such cases are rare.  I hope, then, that the Supreme Court make clear in Puckett that breach-of-plea-agreement claims are not subject to plain error review.

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Imagining the Reasonable Jury

As has already been noted here, Dan Kahan dropped by the law school earlier this week and gave three fascinating presentations to the law school community. One, which Michael commented on earlier, was on his paper (co-authored with David Hoffman and Donald Braman) criticizing the Supreme Court’s decision in Scott v. Harris, entitled “Whose Eyes are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism.”

In brief, Kahan and his co-authors argue that the Supreme Court went awry in Scott by refusing to credit the views of “an identifiable subcommunity” as being within the realm of those held by “reasonable jurors.” This refusal to credit such beliefs with reasonableness, they argue, is potentially destructive of the legitimacy of the justice system.

It’s a fascinating argument, backed by a novel empirical approach to assessing the views of “reasonable jurors” in a use of force case like Scott. But I’m left with a question about the theory, and a question about Scott: Today, I want to focus on the theory: How are judges to tell when the views of “an identifiable subcommunity” are at issue, making summary judgement less appropriate? Monday, I’ll focus on Scott: I’m not certain that the Scott holding is as Kahan et al. describe it, which way may mute their concern.

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