Law students fight forced arbitration

Last month, the Supreme Court upheld the right of companies to enforce employment clauses that require employees to use arbitration to settle disagreements rather than joining class action lawsuits. Research shows arbitration agreements are being used more often by employers, but some employees — and law students in particular — are fighting back, causing some companies and law firms to reconsider the practice, according to CNN. After facing criticism for forcing summer associates to sign arbitration agreements, some law firms have reversed course and ended the practice. However, since the Supreme Court upheld the use of the agreements, even more companies are expected to force potential employees to sign them before they can be hired. CNN reports that more than half of private, non-union employers use arbitration agreements.

When mistakes lead to unfair trials

courtroom witnessA Louisiana district attorney has decided not to defend before the Supreme Court the conviction of an intellectually disabled teenage boy charged with robbery and murder. The Washington Post reports that prosecutors in the case failed to provide the teen’s attorneys with recorded witness statements that could have undermined prosecution witnesses, including the only person who claimed to be a witness to the shooting. The Post reports that the recorded statements suggested that the teen may have been set up. Mary McCord and Douglas Letter, two litigators and visiting professors at Georgetown University Law Center, examine the ramifications of prosecutorial mistakes and withholding evidence in this analysis at The Post.

Video: The Supreme Court’s ruling on employee arbitration

Opponents of arbitration suffered a setback at the Supreme Court Monday when the justices ruled 5-4 that companies can force employees into individual arbitration instead of taking collective action. The ruling could affect up to 25 million employment contracts, and gives employers the right to decide wage dispute and other possible issues like job discrimination in arbitration instead of litigation, according to The Washington Post. Robert Barnes with The Washington Post explains the significance of the ruling in this video.

Tracing the history of Citizens United: How corporations became people, too

How did corporations gain the same rights as US citizens under the Fourteenth Amendment? It can be traced all the way back to the 19th century when a “wily legal team” working on behalf of railroad corporation Southern Pacific convinced the Supreme Court that companies should have the same legal benefits of citizenship. The Atlantic has more on how one unethical Justice (the only sitting Justice ever to be arrested and charged with murder), led the nation down the path to making corporations people, too.

Healthcare Talking Points

As the Supreme Court considers the constitutionality of President Obama’s health-care reform, the Patient Protection and Affordable Care Act of 2010, there are some important points to remember.  The case has been polarizing for the United States: it would provide health insurance to some 32 million Americans lacking coverage, a major social accomplishment for some, but also would force people to buy insurance — an intrusion into civil liberties for others.

 

Here are four important things to keep in mind as the court weighs the case:

1 – The court may put off ruling on the case until 2014.

  • During the first day of oral arguments, the justices will consider if the federal Anti-Injunction Act prevents them from deciding the case before the federal mandate takes effect in 2014.
  • The Anti-Injunction Act, passed 1867, strips the court of the ability to rule on the constitutionality of a tax before that tax has been paid. The court will have to decide if the individual mandate is essentially a tax.

2 – Conservatives argue the law is “slippery slope” to broccoli mandates.

  • On Tuesday, the court is expected to listen to arguments that if the government can force people to buy insurance then it can also force them to do other things like buy health foods or buy GM cars.
  • Florida’s Republican Attorney General Pam Bondi and others have insisted that if the Affordable Care Act’s individual mandate is allowed to stand then the government could eventually also require people to “buy and consume broccoli at regular intervals” because it would positively impact interstate commerce by making consumers healthier.
  • Others, like President’s Ronald Reagan’s former Solicitor General Charles Fried, say this slippery slope argument is “totally bogus” because the government isn’t forcing people into a market that they are not already in.
  • Acting U.S. Solicitor General Neal Katyal told AFP that striking down the individual mandate, which forces Americans to purchase health insurance, would be a “grave and profound” decision.

“If the Supreme Court struck this down, I think that it wouldn’t just be about health care,” Katyal explained. “It would be the Supreme Court saying: ‘Look, we’ve got the power to really take decisions, move them off of the table of the American people, even in a democracy. And so it could imperil a number of reforms in the New Deal that are designed to help people against big corporations and against, indeed, big governments. The challengers are saying that this law is unconstitutional, which means even if 95 percent of Americans want this law, they can’t have it. And that’s a really profound thing for an unelected court to say.”

3 – Unpopularity of health care law unlikely to effect the decision.

  • According to a recent New York Times survey, President Barack Obama’s Affordable Care Act continues to be unpopular with the public, 47-38.
  • The Washington Post‘s Robert Barns noted last week that public opinion was unlikely to sway the conservative-leaning court one way or the other.

“The court has shown it is unafraid to buck public opinion to protect constitutional principles, particularly in free-speech cases,” Barns wrote.

4 – Experts expect law to be upheld.

  • A recent survey of former Supreme Court clerks and lawyers who have argued before the court found that over 50 percent expect the individual mandate to be upheld. Only 35 percent thought it would be struck down.

“I don’t think this case will be nearly as close a case as conventional wisdom now has it,” one responded replied. “I think the Court will uphold the statute by a lopsided majority.”

  • If the court does decide that the individual mandate is unconstitutional, only 27 percent thought they they would also strike down the entire law.