1. U.S. Supreme Court Case Update
Jan. 10, 2018
Presented by
Mark A. Hiller and Erik R. Zimmerman

2. Important Topics this Term
Partisan gerrymandering
Inter partes review of patents by the PTO
State court jurisdiction over securities class actions
Whistleblower protections under the Dodd-Frank Act
The travel ban?

3. Carpenter v. United States

4. Question Presented
Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cell phone user over the course of 127 days is permitted by the Fourth Amendment.

5. Fourth Amendment
Protects the right to be free from “unreasonable searches and seizures” and requires that warrants be supported by “probable cause.”

6. Framing the Issue
Clear invasion of privacy… or Business records of a third-party “eyewitness”?

7. Essential Question
Does the Court have to get rid of the third-party doctrine for the defendant to win?

8. Digging Deeper What rule does the defendant want the Court to adopt?
And, what about other information we share with third parties — internet searches, online purchases, “smart” devices, etc. Can the government obtain this information without a warrant?

9. Justice Gorsuch: Can’t we just focus on property rights?
Digging Deeper
Justice Gorsuch: Can’t we just focus on property rights?

10. Arbitration Cases Epic Systems Corp. v. Lewis Ernst & Young LLP v
Arbitration Cases Epic Systems Corp. v. Lewis Ernst & Young LLP v. Morris National Labor Relations Board v. Murphy Oil USA, Inc.

11. Question Presented
Whether arbitration agreements that bar individual employees from pursuing work-related claims on a collective or class basis limit the employees’ right under the National Labor Relations Act to engage in “concerted activities” in pursuit of their “mutual aid or protection,” 29 U.S.C. 157, and whether such agreements are enforceable under the Federal Arbitration Act, 9 U.S.C. 2.
From U.S. Gov’t Brief

12. Section 7 of the NLRA
“Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection …”
29 U.S.C. § 157 (emphasis added)

13. Section 2 of the FAA
“A written provision in … a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction … shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”
9 U.S.C. § 2

14. Government’s change of position (p. 13)
“In Murphy Oil, this Office previously filed a petition for a writ of certiorari on behalf of the NLRB, defending the Board’s view that agreements of the sort at issue here are unenforceable. After the change in administration, the Office reconsidered the issue and has reached the opposite conclusion.”

15. Framing the Issue
Is this an arbitration case or a labor law case? Employers: Arbitration case. These are valid arbitration agreements that must be enforced. Employees: Labor law case. These arbitration agreements violate the NLRA and are unlawful.

16. Essential Question Where to draw the line?
If the NLRA overrides the arbitration agreements in these cases, does it also override Rule 23?
What if the arbitration agreement does not require one-on-one arbitration, but specifies an arbitral forum that does?

17. Masterpiece Cakeshop v. Colorado Civil Rights Commission

18. Question Presented
Whether a baker who has a religious objection to same-sex marriage can be required to sell a wedding cake to a same-sex couple.

19. First Amendment
Protects the freedom of speech (which includes the freedom not to speak) and the free exercise of religion.

20. Colorado Anti-Discrimination Act
“It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation …” (emphasis added)

21. Framing the Issue
Is this case about the freedom of speech and the freedom of religion? Or is it about discrimination based on sexual orientation?

22. Where to Draw the Line?
What counts as speech? In other words, where is the line between speech and conduct? What counts as compelled speech? What about other protected characteristics, such as race?

23. What does Justice Kennedy think?
Justice Kennedy could cast the deciding vote, but his position was unclear after oral argument. Could he be inclined to rule that the Colorado Civil Rights Commission expressed religious animus in this particular case, and leave the larger issues unresolved?

24. Conclusion

25. Presenters Mark A. Hiller Erik R. Zimmerman
Erik R. Zimmerman