Jottings By An Employer's Lawyer

Wednesday, February 20, 2008

Supreme Court Employment Law Docket -- Decide Two, Add Three

If he wasn't the first with the latest news from the Supreme Court's latest employment and labor law action, Ross Runkel at the LawMemo Employment Law Blog was the first that I saw.

Check here for his summary of Preston v Ferrer (S.Ct. 2/20/08). Short hand version, the Supreme Court found a California statute pre-empted by the Federal Arbitration Act. Probably nothing earth shattering here.

The second case decided today, LaRue v. DeWolff, Boberg & Assoc (S.Ct. 2/20/08) might have more impact as it allows an individual to sue for breach of fiduciary duty in connection with defined contribution ERISA plans. The Supreme Court had to distinguish a prior decision of its own where individuals were not allowed to bring a claim for their own injury in a defined benefit plan. And the differences between the two types of plans was the key distinction.

Ross also was the first to report on yesterday's Supreme Court action where they added three more labor and employment law cases to their docket. See Three new Supreme Court cases . Two deal with unions and the third is an ERISA case.

None of those three jump out at me as presenting burning issues which are begging to be decided, which raises a question for which I have been, so far unsatisfactorily, seeking an answer. Why has the Roberts Court become so interested in labor and employment law issues?

It seems to me that there have been an inordinately high number of cases where they have granted cert and/or asked for the government's view on whether cert should be granted. It's just a feeling, nothing "scientific" like the tea leaf reading that goes on over at SCOTUS Blog or Howard Bashman's How Appealing.

My best guess -- maybe there were two or three justices who were interested in employment law cases but didn't regularly attract enough votes to grant cert and maybe Roberts and/or Alito have supplied the missing link. Maybe one of the Supreme Court scholars in the blogosphere will enlighten us.

Update: The LaRue case is the more significant of the two decisions handed down yesterday. See some in depth analysis from Paul Secunda at Workplace Prof Blog, Reflections on the LaRue Decision. Stephen Rosenberg at the Boston ERISA and Insurance Blog has a preliminary first take at The Supreme Court Decides LaRue, In Probably Predictable Fashion. He has promised a more in depth look once he gets through with some court appearances, which I am sure will be worth checking back for.

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I don't claim to be a Supreme Court scholar, just a lawyer who practices in this area. I think you are right on the money that Alito has a greater interest in employment law than O'Connor did, and Roberts has a greater interest than Rehnquist did. This interest probably comes from their backgrounds as federal appellate judges, who have to face employment law cases on a daily basis.
I agree with anonymous. As appeals judges (and, in Chief Justice Roberts' case, as an attorney who represented private parties in appeals), Justice Alito and Chief Justice Roberts have seen firsthand the proliferation of employment cases in the lower courts, and the myriad issues that bedevil employment lawyers. They are thus much more familiar than their colleagues on the Court with how labor and employment cases work in practice, and likely more interested in having the Court resolve many of those issues.
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