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Wednesday round-up

Epic Systems v. Lewis, in which the court held on Monday that arbitration clauses in employment contracts that require employees to forgo class and collective actions are enforceable, continues to attract attention from court-watchers. Scott Bomboy reports on the decision for Constitution Daily. At the Cato Institute’s Cato at Liberty blog, Walter Olson maintains that decision “was neither surprising nor novel as a legal matter,” “[n]or – notwithstanding the variously breathless, furious, and apocalyptic reactions it has drawn from stage Left – is it objectionable as a matter of policy, or ‘anti-worker.’” At The American Prospect, Simon Lazarus disagrees, asserting that “what stands out is that [Justice Neil] Gorsuch went out of his way to trivialize—evidently seeking to gut—the provisions of federal labor law that Justice Stephen Breyer had called, during the oral argument, ‘the entire heart of the New Deal.’” Additional commentary comes from Ernie Haffner at his eponymous blog, the editorial board of The Wall Street Journal, and Garrett Epps at The Atlantic, who notes that the dissent “closed with a foretaste of the next battle in the majority’s arbitration offensive: … Title VII of the Civil Rights Act of 1964[, ] which covers sex discrimination on the job.”


  • For this blog, Andrew Hamm covers a conversation this week between two former U.S. solicitors general, Justice Elena Kagan and Paul Clement.
  • NFIB revisits this term’s opinion in Encino Motorcars v. Navarro, in which the court ruled that auto-service advisors are exempt from the Fair Labor Standards Act’s overtime-pay requirement and rejected the principle that FLSA exemptions should be construed narrowly, suggesting that “because this will have tremendous practical implications for small business in innumerable cases across the country, it is fair to say that Encino Motorcars was this year’s great ‘sleeper’ case.”
  • At the Brennan Center for Justice, Ciara Torres-Spelliscy looks at this term’s decision in Jesner v. Arab Bank, which held that foreign corporations cannot be sued for human-rights violations under the Alien Tort Statute, suggesting that “[l]ike many other cases, Jesner turns in part on how one reads history — and the Supreme Court seems to be taking the wrong lessons from the history of human rights law.”
  • In an op-ed for the Chicago Tribune, Robert Bruno argues that a ruling for the petitioner in Janus v. American Federation of State, County, and Municipal Employees, Council 31, in which the court will consider whether an Illinois law allowing public-sector unions to charge nonmembers for collective-bargaining activities violates the First Amendment, would “effectively forc[e] wage cuts on 5 million workers and shrink[] our nation’s economy.” [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.]
  • In an op-ed for the Washington Examiner, Adam Carrington observes that “the essential question” in three cases the court will decide before the end of June “is similar: can the government force you to use something that is your own—your speech—in the ways it demands?”
  • Corbin Barthold, in an op-ed for Forbes, applauds the solicitor general’s recommendation that the court review a decision in favor of “a group of iPhone owners, seeking to represent a class of plaintiffs, [who] accused Apple of illegally monopolizing distribution of iPhone software applications.”
  • At his eponymous blog, Sheldon Nahmod looks at the court’s summary reversal in Kisela v. Hughes granting qualified immunity to a police officer in an excessive-force case, in which “the Court yet again chastised the Ninth Circuit (and implicitly other federal courts) for making the clearly settled law inquiry at too general a level.”
  • In an essay for the Michigan Law Review, Caroline Mala Corbin discusses the equal-protection implications of last term’s decision inTrinity Lutheran Church v. Comer, in which the court held that a state cannot deny a church a public benefit because of the church’s religious status.
  • At Congressional Quarterly, Kenneth Jost reports on the continuing “imbalance between male and female lawyers” in Supreme Court arguments.

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Recommended Citation: Edith Roberts, Wednesday round-up, SCOTUSblog (May. 23, 2018, 7:18 AM),