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Tuesday round-up

The Supreme Court decided two cases yesterday. In a major employment case that was argued on the first day of the term, Epic Systems v. Lewis, the court held 5-4 that arbitration clauses in employment contracts that require employees to forgo class and collective actions are enforceable. Amy Howe has this blog’s opinion analysis, which first appeared at Howe on the Court. Subscript has a graphic explainer for the decision. For USA Today, Richard Wolf reports that “[m]illions of workers routinely sign such arbitration agreements unknowingly, only to find out later that they are barred from collective action.” Additional coverage comes from Jess Bravin for The Wall Street Journal, Marcia Coyle and Tony Mauro at The National Law Journal (subscription or registration required), Adam Liptak for The New York Times, Ariane de Vogue at CNN, Robert Barnes for The Washington Post, Lawrence Hurley at Reuters, Kevin Daley at The Daily Caller, Andrew Hanna and Josh Gerstein at Politico, Lydia Wheeler at The Hill, Elizabeth Lowman at Jurist, David Savage for the Los Angeles Times, Dave Jamieson at HuffPost, Greg Stohr at Bloomberg, and Nina Totenberg at NPR, who reports that the dissent warned of “huge underenforcement of federal and state statutes designed to advance the well-being of workers.” According to Joan Biskupic at CNN, the “forceful tone” of the dissent, parts of which Justice Ruth Bader Ginsburg read from the bench, suggests that “Ginsburg and the three other liberals may increasingly be in the minority as the court nears the end of its annual session in late June — and more likely to speak out.”

At the Pacific Legal Foundation, Deborah La Fetra maintains that the “decision upholds workers’ and employers’ freedom to choose how to resolve workplace disputes,” one that “both workers and employers have reason to celebrate.” Not celebrating is Ian Millhiser at ThinkProgress, who argues that “[a]s a practical matter, [the] decision … will enable employers to engage in small-scale wage theft with impunity, so long as they spread the impact of this theft among many employees.” Additional commentary comes from Ron Chapman and Christopher Murray at Ogletree Deakins, Anthony Glenn at The National Law Review, Mark Joseph Stern at Slate, Helaine Olen in an op-ed for The Washington Post, Russ Bleemer at CPR Speaks, R. Scott Oswald at The Employment Law Group, and Terri Gerstein and Sharon Block in an op-ed for The New York Times.

Yesterday’s second opinion was in Upper Skagit Indian Tribe v. Lundgren, in which the justices, by a vote of 7-2, remanded a property dispute involving an Indian tribe to the lower court for it to consider an alternative common-law basis for its holding that the tribe was not immune from suit. Ronald Mann has this blog’s opinion analysis, and Subscript’s graphic explainer is here. Zachary Uram covers the decision at Jurist. Mark Walsh has a first-hand account of yesterday’s opinion announcements for this blog.

The court also added four cases to its merits docket for next term and asked for the views of the solicitor general in one case. Amy Howe covers the order list for this blog; her coverage first appeared at Howe on the Court. At Jurist, Ashley Rundell recaps the new cases. At Crime and Consequences, Kent Scheidegger observes that in Royal v. Murphy, a newly granted capital case in which the justices will decide whether Congress has disestablished the boundaries of an Indian nation in Oklahoma, affecting the state’s ability to prosecute crimes involving Indians, “[b]eneath this legal question of Indian law and statutory construction is the justice of an actual murder case.”

At Constitution Daily, Scott Bomboy considers how last week’s decision in Murphy v. National Collegiate Athletic Association, in which the court struck down the federal law that bars states from legalizing sports betting, could affect “the actions of some states to legalize medical or personal marijuana use.” In an op-ed for The Wall Street Journal, Eric Tirschwell explains why the decision is “bad news for the gun lobby.”

At the Election Law Blog, Richard Pildes observes that after yesterday’s October-sitting opinion from Justice Neil Gorsuch, “it is most likely that Chief Justice Roberts is writing the opinion for the Court in [partisan-gerrymandering case Gill v. Whitford],” and that “the narrowest path to a decision in that context is for the Court to hold that there is no standing for individuals to bring partisan gerrymandering claims on a state-wide basis to a plan as a whole” Responding, also at the Election Law Blog, Nicholas Stephanopolous warns that “if the Court is drawn to district-specific claims because of their seemingly less expansive reach, it should be careful what it wishes for,” and that “[i]t may well find that in its effort to cabin partisan gerrymandering litigation, it has done exactly the opposite.”


  • For this blog, Andrew Hamm reports that Justice Ruth Bader Ginsburg received the Henry J. Friendly Medal yesterday at the American Law Institute.
  • At Washingtonian magazine, Amanda Whiting reports that “the battle over Maryland’s 6th [in Benisek v. Lamone] is different than other gerrymanders—and not just because Democrats are the culprits,” because “[t]he pols who rigged this district left behind a massive paper trail that lays out exactly how it all happened, an operation so fine-grained that mapmakers parked a district line less than a block from a candidate’s house.”
  • At The Hill, Lydia Wheeler covers the conflicting signals about the possible retirement of Justice Anthony Kennedy that have “whipped [Washington] into a frenzy.”
  • At Law360 (subscription required), Amy Lee Rosen reports that a “Third Circuit ruling on appeal to the Supreme Court that prevented an electricity supplier from claiming a double deduction on a consolidated tax return has some practitioners worried that, if accepted, the justices could solidify a stand-alone tax doctrine previously used only as a method of statutory interpretation.”
  • At Politico, Katherine Landergan and Andrew Hanna report that “[b]lue state lawmakers are waging a preemptive strike against an anticipated U.S. Supreme Court decision [in Janus v. American Federation of State, County, and Municipal Employees, Council 31] that could decimate the power of public-sector unions across the nation.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the respondents in this case.]
  • At The World and Everything In It (podcast), Mary Reichard discusses the oral arguments in Wisconsin Central Ltd.v. United States, which asks whether stock options are taxable compensation under the Railroad Retirement Tax Act, and Chavez-Meza v. United States, which asks how fully a judge must explain a sentencing modification.
  • In an op-ed for Law360 (subscription required), Jay Lapeyre weighs in on patent case WesternGeco LLC v. ION Geophysical Corp., which asks whether damages for infringement of a domestic patent overseas include lost profits for overseas contracts the patentholder would have obtained if the infringement had not occurred, arguing that “a rule that would make Ion liable for such lost profits would be very disruptive to economic development in the United States, particularly in the technology sector.”
  • At the Cato Institute’s Cato at Liberty blog, Andrew Grossman and Ilya Shapiro weigh in on New Prime Inc. v. Oliveira, an arbitration case on next term’s docket, urging the court to “clarify, as it has many times before, that independent contractors are not employees and statutory terms such as ‘employee’ mean[] precisely what they say.”

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Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (May. 22, 2018, 7:31 AM),