In 1977 in Abood v. Detroit Board of Education, the Supreme Court ruled that public employees, including school teachers, could legally be required to pay a fee if they refuse to join a public-sector union. According to the Detroit Board of Education, the fee was necessary to off-set the costs the union incurred while bargaining on behalf of union and non-union members alike.
A similar case came to the Supreme Court in 2014, but the Supreme Court did not answer the primary question of Abood, instead ruling that the public employees in question were not actually public employees. Last year, the Supreme Court was left in deadlock in a similar case on the same issue after Justice Scalia’s passing.
Janus v. AFSCME, brought by an employee of the Illinois Department of Healthcare and Family Services who does not believe he should be legally obliged to join a union, is pending cert in the Supreme Court. William Messenger, Staff Attorney at the National Right to Work Foundation, joined us to discuss the probability of Janus being heard at the Court and what that could mean for the future of public-sector employees and unions.
William L. Messenger, Staff Attorney, National Right to Work Legal Defense and Education Foundation, Inc.
Some antitrust lawyers often say the federal government’s decisions about which mergers to challenge, which monopolists to rein in, and which price-fixers to send to jail are relatively consistent regardless of who occupies the White House. But has federal antitrust enforcement really been entirely apolitical, based on economics, and divorced from other issues such as trade, job creation, and national security? Should it be? A panel of distinguished practitioners and former top government officials from both parties discussed these issues in our Teleforum, which was especially timely given calls by Senate Democrats for increased antitrust enforcement as part of “A Better Deal” and the increasing use of competition law by foreign governments against U.S. companies.
Jon Leibowitz, Partner, Davis Polk & Wardwell LLP, and Former Chair, Federal Trade Commission
William E. Kovacic, Global Competition Professor of Law and Policy & Director, Competition Law Center, The George Washington University Law School, and Former Chair, Federal Trade Commission
Seth Bloom, President & Founder, Bloom Strategic Counsel PLLC, and Former General Counsel, U.S. Senate Judiciary Committee Antitrust Subcommittee
Tad Lipsky, Former Senior Federal Trade Commission, U.S. Justice Department Antitrust Division Official, and Retired Partner, Latham & Watkins
Moderator:Richard M. Steuer, Senior Counsel, Mayer Brown LLP, and Former Chair, American Bar Association Antitrust Section
Major American corporations are pressuring their outside law firms to meet diversity goals both firm-wide and in the legal teams assigned to the company’s work. For example, Facebook announced this year that the law firm teams working on its matters must consist of at least 33 percent women and minorities. This pressure has resulted in the widespread use of race and gender preferences in hiring, promotion, and work assignment decisions by America’s premier law firms. Are these preferences legal under Title VII of the 1964 Civil Rights Act and 42 U.S.C. § 1981? Are they good policy? Curt Levey, a constitutional law attorney who has worked on several affirmative action cases – including the University of Michigan cases (Grutter and Gratz) – joined us to analyze the arguments on both sides of these questions.
Curt Levey, President, The Committee for Justice and Legal Affairs Fellow, FreedomWorks
On February 22, 2017, the Supreme Court decided Fry v. Napoleon Community Schools, a dispute involving the Individuals with Disabilities Education Act (IDEA), which in exchange for federal funding requires that states provide a “free appropriate public education” to children with certain disabilities. E.F., a child who has a severe form of cerebral palsy, was assisted in various daily activities by her service dog Wonder. Officials at Ezra Eby Elementary School, however, refused to allow Wonder to join E.F. in kindergarten, so her parents (the Frys) proceeded to homeschool her instead. They also filed a complaint with the U.S. Department of Education’s Office of Civil Rights (OCR), alleging that the exclusion of E.F.’s service dog violated federal disabilities laws, including Title II of the Americans with Disabilities Act and section 504 of the Rehabilitation Act. OCR sided with the Frys and Ezra Eby relented. Concerned about possible resentment from Ezra Eby officials, however, the Frys instead enrolled E.F. in a different elementary school that had welcomed Wonder. The Frys also filed suit against Ezra Eby’s local and regional school districts (and principal) in federal district court, seeking declaratory and monetary relief for the alleged violations of Title II and section 504. The District Court dismissed the suit on the grounds that the Frys had failed first to exhaust administrative procedures available under the IDEA, as required by section 1415(l) of that law. A divided panel of the U.S. Court of Appeals for the Sixth Circuit affirmed, concluding that section 1415(l)’s exhaustion requirement applies whenever the plaintiff’s alleged harms are “educational” in nature.
The Supreme Court, however, granted certiorari to address confusion in the courts of appeals as to the scope of section 1415(l)’s exhaustion requirement. By a vote of 8-0, the Court vacated the judgment of the Sixth Circuit and remanded the case. In an opinion delivered by Justice Kagan, the Court held that exhaustion of the administrative procedures established by the IDEA is unnecessary when the gravamen of the plaintiff’s suit is something other than the denial of the IDEA’s core guarantee of a “free appropriate public education.” The Court then remanded the case to the Sixth Circuit for application of that standard to the Frys’ complaint in the first instance: is their complaint fundamentally about denial of a free appropriate public education, or about something else? Justice Kagan’s majority opinion was joined by the Chief Justice and Justices Kennedy, Ginsburg, Breyer, and Sotomayor. Justice Alito filed an opinion concurring in part and concurring in the judgment, in which Justice Thomas joined.
To discuss the case, we have Daniel Woodring, principal at Woodring Law Firm.
From Martin Shkreli to the Epipen, decisions about pharmaceutical pricing and distribution have been very much in the news of late. Much of the discussion centers on whether or not it is immoral to charge high prices. The question remains, however, about whether those business practices raise antitrust concerns. Can a high price in and of itself violate antitrust laws? What about policies that limit the channels through which a particular product is distributed? Professor Michael Carrier of Rutgers Law School analyzed these questions, noting the arguments both for and against a finding of antitrust liability, as well as discussing the particular circumstances that have raised a red flag from an antitrust perspective in some of these recent cases.
Prof. Michael A. Carrier, Distinguished Professor of Law, Rutgers Law School