9th Circuit: Garcetti Poses Mixed Question of Law and Fact

Posted on Categories Labor & Employment LawLeave a comment» on 9th Circuit: Garcetti Poses Mixed Question of Law and Fact

Scales Thanks to Ross Runkel for providing this summary of an interesting new Garcetti public employee free speech case, Posey v. Lake Pend (9th Cir. 10/15/2008), considering whether the determination of if an employee is speaking pursuant to his official duties is a question of law or fact.  Of course, this is an important question because it goes to whether these cases can be disposed of by the court on summary judgment:

Posey sued the public employer, asserting a claim for 1st Amendment retaliation.  The trial court granted summary judgment in favor of the employer.  The 9th Circuit reversed.

The court framed the primary issue on appeal as “whether, following the Supreme Court’s recent decision in Garcetti v. Ceballos, 547 IS 410 (2006), the inquiry into the protected status of speech in a First Amendment retaliation claim remains a question of law properly decided at summary judgment or instead now presents a mixed question of fact and law.”

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Time for Racial Impact Statements in Wisconsin?

Posted on Categories Criminal Law & Process, Race & Law4 Comments on Time for Racial Impact Statements in Wisconsin?

As reported in the new issue of Sentencing Times, Iowa and Connecticut adopted new laws earlier this year that call for the preparation of racial impact statements as sentencing bills are working their way through the state legislative process.  In many states, it is already required that fiscal and environmental impact statements be prepared for new legislative proposals, but Iowa and Connecticut are the first to adopt a similar policy with respect to racial concerns.  This seems like a good idea for other states to consider–particularly states like Wisconsin with glaring racial disparities in their prison populations.  Of course, the fact that a sentencing proposal might exacerbate racial disparities would not (and should not) necessarily preclude its adoption, but the debate over such proposals would benefit from more self-conscious and well-informed attention to their racial impacts.

When Should Records Be Sealed in Employment Discrimination Cases?

Posted on Categories Labor & Employment Law, U.S. Supreme CourtLeave a comment» on When Should Records Be Sealed in Employment Discrimination Cases?

Sealed_record Thanks to friend of the blog, Jack Sargent, for pointing me to this fascinating dispute before the U.S Supreme Court now concerning the sealing of a record in an employment discrimination case.

From the reporters committee for freedom of the press blog:

The Reporters Committee for Freedom of the Press today filed a brief asking the U.S. Supreme Court to review a decision that allowed all records in a federal employment discrimination case to be hidden from the public. The Reporters Committee filed the brief on behalf of itself and 29 other leading media organizations.

The friend-of-the-court brief was filed in support of The Legal Intelligencer, which petitioned the Supreme Court for review after the Third Circuit Court of Appeals rejected its request to intervene in Doe v. C.A.R.S. Protection Plus Inc. The newspaper sought to unseal the docket and record in Doe, a case in which the plaintiff claimed she was wrongly fired because she had an abortion.

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The Impact of the Economic Collapse on U.S. Employee Benefits

Posted on Categories Health Care, Labor & Employment LawLeave a comment» on The Impact of the Economic Collapse on U.S. Employee Benefits

Medical_symbol2 One of the less followed stories during the economic collapse is its potential impact on the employee benefits of employees in the United States.  Not only will workers lose a substantial part of their pensions because of the falling price of securities in their 401(k) accounts, but there might even be a bigger problem discussed in this article from Columbus Business First:

As a national debate over the future of the nation’s health-care system swirls, a new report from a liberal think tank indicates fewer working-age Americans, including Ohioans, are being covered under employer-sponsored health plans.

A briefing paper from the Washington, D.C.-based Economic Policy Institute, titled The Erosion of Employer-Sponsored Health Insurance, shows employer coverage for workers and their families dropped for the seventh consecutive year. About 63 percent of Americans, or 164.5 million, under age 65 were covered in 2007, about 3 million workers fewer than in 2000, during which about 68 percent were covered.

Employer-sponsored insurance coverage for working-age Ohioans fell at a similar rate over the decade. Last year, 6.8 million Ohioans, or nearly 69 percent, were covered by their employers, down more than 400,000 from 7.2 million, or 74 percent, six years earlier.

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The Wisconsin Supreme Court Amends Its Rules to Permit Citation of Unpublished Opinions, with Limitations

Posted on Categories Legal Research, Legal Writing, Wisconsin Court SystemTags , 1 Comment on The Wisconsin Supreme Court Amends Its Rules to Permit Citation of Unpublished Opinions, with Limitations

As you probably already know, yesterday the Wisconsin Supreme Court heard the petition of the Wisconsin Judicial Council to amend Wisconsin Statue section 809.23(3), to permit citation of unpublished Wisconsin Court of Appeals opinions as persuasive authority.

Beth Hanan, managing member of Gass Weber Mullins and Vice Chair of the Wisconsin Judicial Council, kindly offered the following summary of the hearing and the court’s decision to amend the rule.  (Please note that these are Beth’s own, individual comments and are not the comments or thoughts of the Judicial Council.)

Taking a cautious step into a national trend, yesterday the Wisconsin Supreme Court voted 6:1 to permit citation of unpublished authored appellate decisions, with several limitations.  Amended Wis. Stat. (Rule) s. 809.23(3), like Fed. R. App. P. 32.1, will be prospective only.  This means that parties and courts will be able to cite those unpublished authored opinions which are released on or after the planned effective date of the amended rule, July 1, 2009.  When parties cite such opinions, they will have to file and serve copies of the opinions.  The rule specifically will  provide that parties are not required to cite unpublished opinions.  Finally, the supreme court has ordered that a committee be formed to plan the roll out of the rule and devise a means of tracking its effectiveness or particular difficulties it may create.  Those statistics will be used by the court to review the rule three years after its adoption.

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The Indian Scrabulous Decision

Posted on Categories Intellectual Property LawTags Leave a comment» on The Indian Scrabulous Decision

Thanks to reader Apar Gupta, I have the text of the decision by the High Court of Delhi in Mattel, Inc. v. Agarwalla, a copyright and trademark action by Mattel against the Agarwalla brothers, the makers of Scrabulous. I posted a brief news item about the case earlier, and posted a four-part series on the American lawsuit against Scrabulous over on Prawfsblawg in August. (See Part I, Part II, Part III, Part IV.)

As the Agarwalla brothers reported a few weeks ago, the Indian decision held that Scrabulous did not likely infringe on Scrabble’s copyrights, but that the name “Scrabulous” does likely infringe on Scrabble’s trademarks. The court therefore issued an “ad interim injunction,” which I assume is the same as a preliminary injunction, against further use of the Scrabulous name. But my primary interest is copyright law, and the court’s copyright analysis, although very brief, is fascinating. Essentially, the court held that because the board and rules are necessary for game play, and game play is not copyrightable, therefore the board and rules are not copyrightable either. I think this probably goes too far, but it’s an interesting example of a court grappling with the nature of copyright in games.

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Priorities for the Next President: Make Way for Faith-Based Alternatives

Posted on Categories Religion & Law3 Comments on Priorities for the Next President: Make Way for Faith-Based Alternatives

I tend to be supportive of faith-based alternatives in state funded social programs and education for a variety of reasons. For better or worse, we live in a time and place in which most such services are going to be publicly funded. To exclude faith based approaches is to eliminate a set of approaches that might be quite effective and sends a message about the propriety of faith-based perspectives in the public square.

Such approaches must be carefully designed to avoid compulsion and to ensure the availability of secular alternatives. But government should also avoid the temptation to remake faith-based approaches in its own image. I am opposed, therefore, to the expansion of federal and local civil rights laws to the extent it interferes with the ability of faith-based organizations to hire for mission, i.e., to prefer hires who share the group’s religious presuppositions. Continue reading “Priorities for the Next President: Make Way for Faith-Based Alternatives”

Priorities for the Next President: Stay Out of the Way of Local Government

Posted on Categories Uncategorized1 Comment on Priorities for the Next President: Stay Out of the Way of Local Government

My scholarship focuses on local government law, so you might assume that the next President would have little to do with my area of the law. Quite the contrary. In this era of shrinking government budgets and greater national debt, it is certainly conceivable that our next President will be faced with cutting spending on the federal level. It’s also plausible that Congress and the new President may make cuts in federal aid to state and local governments. I am somewhat agnostic on this issue. I have argued that decentralized decisionmaking leads to the more efficient and effective provision of goods and services, as well as policy outputs. I have also noted that much progressive policymaking occurs on the local level–more so than at the state and federal level. For these reasons, I might be inclined to encourage the new President to continue to fund local governments with block grants for various programs and services. But I also understand the need to get federal spending under control. What I am resolute on, however, is that any such cuts in funding should not be replaced with unfunded mandates for local governments from the federal government.

Federal policymakers, including the President, seem to like to influence matters on the local level. It is one thing to do this through conditions attached to federal funding (I don’t love this approach, either, but I can accept it given that localities can choose to reject the money if they decide the conditions are unacceptable). But it is entirely another thing to attempt to dictate policy on the local level from the federal level without proper funding. Such unfunded mandates run afoul of federalism principles. Moreover, cities (and even states) face drastically different challenges where macro-level policymaking–the “one size fits all” approach–does not make much sense. Localities must have the resources and the autonomy to craft individualized solutions to their unique problems. Hopefully this will include continued aid from the federal (and state) government. But it certainly should not be impeded by unfunded mandates from the federal government. This should be the priority of the new President with regard to local government: Stay out of the way.

What Do Reasonable Jurors Get to Decide After Scott v. Harris?

Posted on Categories Legal Scholarship, Speakers at Marquette, U.S. Supreme CourtLeave a comment» on What Do Reasonable Jurors Get to Decide After Scott v. Harris?

This is my second post commenting on Dan Kahan’s talk last week about his paper, co-authored with David Hoffman and Donald Braman, entitled “Whose Eyes are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism.” (It was originally one post but got long.) Scott v. Harris is the case involving the video of the police chase, a video the Supreme Court found so compelling that it ruled the denial of summary judgement to the defendant police officer was error. Kahan and his co-authors argue that Scott harmed the legitimacy of the justice system when it concluded that all reasonable people would view the video tape the same way. In fact, Kahan et al. demonstrate that a significant number of potential jurors disagree with the majority’s view.

On Friday, I tangled with the article’s proposed solution to the problem of denying those jurors their day in court. Today, I want to examine the decision itself–did the majority really rule that no reasonable juror could conclude that the force used in the case was excessive? That’s actually not the way it looks to me. Rather, it looks to me like, after a preliminary finding about dangerousness, the Scott majority pretty much threw the whole fact vs. law distinction out the window. Scott doesn’t just insult “unreasonable” jurors; even reasonable jurors get short shrift.

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To Shave or Not to Shave: That is the Question in This Workplace RFRA Case

Posted on Categories Labor & Employment Law, Religion & LawLeave a comment» on To Shave or Not to Shave: That is the Question in This Workplace RFRA Case

Beard In the last two weeks or so, my employment discrimination law class has been studying disparate impact litigation.  One of the more challenging cases that we study is the Fitzpatrick case from the 11th Circuit concerning the no-beard policy of a fire department.

The policy is supported by the need to have a good seal between a firefighter’s respirator and his face.  The policy was claimed to have a disparate impact on black firefighters with a skin condition making in difficult for them to shave.  The 11th Circuit, in 1993, found that although there might be a disparate impact, the fire department was able to show that the practice was consistent with business necessity because of safety concerns the fire department had regarding use of these respirators by firefighters even with so-called shadow beards.

Fast-forward fifteen years and now comes a similar case in the D.C. Circuit concerning the no-beard policy of the fire department. Instead of race discrimination, this suit alleges that a clean-shaven face for safety personnel violates some employees’ religious freedoms under the Religious Freedom Restoration Act of 1993 (RFRA).  As such, the Title VII framework does not apply and instead the court must balance the exercise of religious liberties with competing government interests. This type of balancing test reminds me much more of a public employee case involving free speech rights.

In any event, the BLT blog has the details: Continue reading “To Shave or Not to Shave: That is the Question in This Workplace RFRA Case”

Priorities for the Next President: Labor and Employment Law

Posted on Categories Labor & Employment LawLeave a comment» on 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. Continue reading “Priorities for the Next President: Labor and Employment Law”

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

Posted on Categories Criminal Law & Process, U.S. Supreme Court2 Comments on 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.