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Posted 22 Sep 2016 in Commentary
Twenty-one states are suing the Department of Labor over new overtime rules which make it more likely states will have to pay more employees overtime. They are seeking an injunction which will prevent the new rules from going into effect on December 1, 2016.

Posted 24 Aug 2016 in Case Notes, Commentary
Is the North Carolina legislature in a “Catch-22” or are its problems entirely of its own making? The Supreme Court might weigh in on these questions in McCrory v. Harris. McCrory v. Harris is a typical redistricting case in at least two respects. First, it raises so many legal issues that it is impossible to know what the Supreme Court will focus on. Second, beyond all the technical legal arguments, plaintiffs’ fundamental objection to the redistricting plan is familiar:  they claim the legislature packed minority voters into safe minority districts under the guise of complying with the Voting Right Act (VRA) to reduce minority voters’ influence in other districts. North Carolina claims it is caught in a “Catch-22.”

Posted 24 Jun 2016 in Case Notes, Commentary
As a result of the Supreme Court’s decision in Birchfield v. North Dakota in states that criminalize the refusal to take a blood alcohol concentration tests, officers should offer only a breath (not blood) test unless they have a warrant. The Court held 5-3 that states may criminalize an arrestee’s refusal to take a warrantless breath test. If states criminalize the refusal to take a blood test police must obtain a warrant. The State and Local Legal Center (SLLC) filed an amicus brief arguing that states should be able to criminalize warrantless refusal to consent when a person is arrested upon suspicion of drunken driving.  

Posted 23 Jun 2016 in Case Notes, Commentary
Ironically, had Justice Scalia lived Fisher II might have been 4-4 or become Fisher III. But instead the more liberal Justices plus Justice Kennedy prevailed in this win for affirmative action. In Fisher v. University of Texas at Austin the Supreme Court ruled 4-3 that the University of Texas at Austin’s race-conscious admissions program is constitutional, as least of 2008, when this case was first brought. Justice Kagan did not participate in this case.

Posted 22 Jun 2016 in Commentary, IMLA Briefs
Whoever thought up merger probably long ago gave up worrying if it was unconstitutional, if they even ever thought about it. But now that person (and numerous cities, counties, and states) have reason to worry. In Murr v. Wisconsin the Supreme Court will decide whether merger provisions in state law and local ordinances, where nonconforming, adjacent lots under common ownership are combined for zoning purposes, may result in the unconstitutional taking of property. The State and Local Legal Center (SLLC) filed an amicus brief arguing that these very common provisions are constitutional. 

Posted 15 Jun 2016 in Case Notes, Commentary
In fact at this point Trinity Lutheran Church of Columbia v. Pauley may be more about post-purchase depression than anything else. This case involves religion; a topic the Roberts Court has mostly shied away from even when it had the benefit of nine Justices. But the Court agreed to hear it before Justice Scalia died. There are two ways of looking at this case, both of which are hard to argue with: state aid to religious organizations means less money for secular causes, and all preschool students should have access to safe playgrounds no matter where they go to school.

Posted 13 Jun 2016 in Case Notes, Commentary
It is hard to keep quiet when you have a secret big enough that ABC’s 20/20 is interested in interviewing you. But if you talk too soon will the lawsuit your secret culminates in be dismissed? The False Claims Act (FCA) allows third parties to sue on behalf of the United States for fraud committed against the United States. Per the Act a FCA complaint is kept secret “under seal” until the United States can review it and decide whether it wants to participate in the case. In Rigsby v. State Farm the Supreme Court will decide what standard applies when deciding whether to dismiss a case because of a seal violation. Some federal circuits dismiss all cases.