Policy Area

The title of this article appears to be deceptive if not flat out wrong as Comcast Corp. v. National Association of African American-Owned Media isn’t an employment case. Nevertheless, it presents an important legal question for employers because the law it involves applies to them as such. Understanding the issue in the case—whether a claim of race discrimination under 42 U.S.C. § 1981 fails in the absence of but-for causation—requires a little background.

Section 1981, enacted in 1866, prohibits discrimination on the basis of race in contracting and employment, among other things. It states “[a]ll persons within the jurisdiction of the United States shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.”

One can’t help but wonder if the Supreme Court decided to hear Allen v. Cooper because it involves a pirate ship. The (not very glamorous) legal issue the Supreme Court will decide is whether states can be sued in federal court for copyright violations.

North Carolina owns a ship pirate Blackbeard captured, renamed Queen Anne’s Revenge, and sunk between 1717-18. In the late 1990s North Carolina permitted a private research and salvage firm to photograph the ship. North Carolina continued to own the shipwreck and its artifacts, and the company could make money from the sale of media related to the ship. Frederick Allen, who was hired by the salvage firm to take photos and videos of the ship, sued North Carolina for infringing on images Allen copyrighted.

The Eleventh Amendment protects states and state officials acting in their official capacity from being sued in federal court. Congress may abrogate sovereign immunity by making a clear statement of its intent and validly exercising congressional power. Allen claims North Carolina can be sued in federal court for infringing on his copyright because Congress abrogated states’ sovereign immunity in the Copyright Remedy Clarification Act. 

Before an employee alleging employment discrimination under Title VII (on the basis of race, color, religion, sex, or national origin) may bring a lawsuit in federal court he or she must file charges with the Equal Employment Opportunity Commission (EEOC).

In Fort Bend County, Texas v. Davis the Supreme Court held unanimously that Title VII’s charge-filing requirement is a “mandatory procedural prescription” that a court must consider if timely...

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Traditional occupational licensing standards typically require that applicants achieve a certain number of hours of training, education and/or experience and pass a cumulative examination before a license is granted by a state. However, the time-based requirements that states implement can vary widely. For example, aspiring barbers can be required to complete between 1,000 and 2,100 hours of training, depending on the state, before they are eligible for a license. This variance in standards demonstrates the discretion states can take in setting regulations that seek to balance public protection with economic opportunity. While licensing is a means to safeguard public health and safety, overly burdensome regulations can exacerbate the economic costs of licensing such as lower economic outputs and fewer jobs.

Seeking to reduce the regulatory burden on workers, the state of Utah established an alternative to time-based licensing requirements by passing House Bill 226, which grants its Division of Occupational and Professional Licensing the ability to implement competency-based requirements.

It has been three cases and nearly a decade in the making but the Supreme Court has finally ruled in Nieves v. Bartlett that the existence of probable cause defeats a First Amendment retaliatory arrest case…with one, small caveat. The State and Local Legal Center (SLLC) filed an amicus brief in favor of the broader ruling in this case.

While police officer Luis Nieves and Russell Bartlett have different versions of what happened at Artic Man, a weeklong winter sports festival in Alaska, even the Ninth Circuit agreed that Sergeant Nieves had probable cause to arrest Bartlett. Sergeant Nieves knew Bartlett had been drinking and talking loudly when he saw Bartlett stand close to another officer and the officer push Bartlett away. But Bartlett claimed Sergeant Nieves really arrested him in violation of his First Amendment free speech rights because he had refused to speak to Sergeant Nieves previously, which Bartlett reminded Sergeant Nieves of when he was being arrested.

With the number of jobs requiring an occupational license at an all-time high, The Council of State Governments (CSG), the National Conference of State Legislatures (NCSL), and the National Governors Association (NGA) have come together to assist states in improving their understanding of occupational licensure issues and enhancing licensure portability.

Currently, the number of jobs requiring an occupational license is nearly one in four. While state licensing is important for...

New Hampshire filed a lawsuit against the Department of Justice’s November 2018 opinion on the 1961 Wire Act on Feb. 15, 2019.  An amicus brief was filed by New Jersey and Michigan. The Michigan brief included signatories from the Michigan...

As some state legislatures pass laws contradicting Roe v. Wade in the hope the Supreme Court will overturn the 1973 decision, all eyes are on anything the Supreme Court has to say about abortion.  

In a per curiam (unauthored) opinion in a case decided without oral argument, Box v. Planned Parenthood, the Supreme Court held that Indiana’s law disallowing fetal remains to be incinerated along with surgical byproducts is constitutional. The Seventh Circuit had invalidated this provision.

Merck v. Albrecht is a simple issue contained in a long story.

In 2009 in Wyeth v. Levine the Supreme Court held that federal law preempts state law failure to warn claims that a drug manufacturer failed to change a drug label if there is “clear evidence” the Food and Drug Administration (FDA) would not have approved the label change. In Merck v. Albrecht a unanimous Supreme Court held that a judge rather than a jury determines if the FDA would have approved the change.

The federal Food, Drug, and Cosmetic Act (FDCA) provides no federal remedy for unsafe and ineffective drugs but state law may in the form of a failure to warn claim. The FDA allows manufacturers to change warnings on drug labels when newer drug safety information becomes available. The Supreme Court has held if the FDA would not have approved a drug label change, which a state failure to warn law would have required, the FDCA preempts the state law claim.

What will invariably get everyone’s attention about this case is it is the second 5-4 decision where Justice Gorsuch has joined the four more liberal Justices to rule in favor of a tribe. And a ruling in the Court’s most interesting tribal case of the term is yet to come. But none of this should distract from the holding of this case.    

The Supreme Court answered yes to the question in Herrera v. Wyoming of whether an old treaty allowing Native Americans to hunt on federal land is still valid. According to an amicus brief filed by the Crow Tribe “[a]t least nineteen tribes, in at least a dozen treaties, reserved for themselves the right to hunt on Federal lands away from their respective reservations.”

In 1868 the Crow Tribe ceded most of its territory in what is now Montana and Wyoming to the United States in exchange for an agreement the Crow could “hunt on the unoccupied lands of the United State.” Clayvin Herrera invoked this treaty to defend against a charge of violating state law by off-season hunting in Bighorn National Forest in Wyoming.

In a 5-4 opinion the Supreme Court held that the treaty’s hunting rights survived Wyoming’s statehood and that lands in the Bighorn National Forest aren’t categorically “occupied” because they are in a national reserve.

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