Supreme Court roundup

  • More on this to come, but Epic Systems, the workplace arbitration decision, is an epic win for contractual freedom and a big loss for the class action bar [earlier here and here]
  • SCOTUS will revisit 1985 Williamson decision, which “makes it very difficult to bring takings cases in federal court.” [Ilya Somin on cert grant in Knick v. Township of Scott, earlier]
  • Gorsuch and Thomas: similar originalist methods, which do not always arrive at similar results [Ilya Shapiro]
  • “Can Agencies Adjudicate Patentability?” Two views of the recent case Oil States Energy Services v. Greene’s Energy Group [Cato “Regulation,” Jonathan Barnett and Jonathan Stroud via Peter Van Doren]
  • “Victory for Defendant Autonomy and the Criminal Jury Trial in McCoy v. Louisiana” [Jay Schweikert]
  • Quantitative analysis of amicus brief success at Supreme Court tells many stories, among them the sterling record of the Cato Institute’s amicus program [Adam Feldman, Empirical SCOTUS]


  • Ginsburg’s opinion is laughably bad. First of all, calling the other position “egregious” is way over the top. Second, the idea that there was a sotto voce limitation on the FAA is just risible. She doesn’t like the result of neutral interpretive rules and analysis and lashes out with an opinion every bit as bad as Stevens’ CU opinion.

  • The link in the third bullet point seems to be the same as a previous link; it just goes to the decision itself.

  • Considering the majority of contracts out there that are contracts of adhesion, what good does freedom of contract actually do anyone? Especially on things like products/services where the contract terms are pretty much all the same throughout an industry regardless of which company you’re dealing with, or with employment where the workers/job applicants are disposable and fungible?

  • I don’t understand the “epic win for contractual freedom” argument. Surely the vast majority of people would not consider it an epic win if employers routinely had contractual prohibitions such as:

    – Prohibition of firearm ownership
    – Requiring voting for certain candidates or political parties
    – Permitting law enforcement to search their homes without a warrant
    – Forbidding the exercise of religion
    – etc…

    Yet giving up the right to a trial by jury is somehow different? That one is a win?

    • This case did not involve a waiver of jury trial, but rather an agreement to proceed individually rather than through class action. But waivers of jury trial are routinely approved by courts in other circumstances and rightly so, since they are efficient and voluntary. Your parade of imagined horribles, some of which items are unlawful under other statutes and some of which are not particularly horrible, could be extended at length: the very wicked employment contract also chills your speech by preventing you from standing on a table in the employee cafeteria shouting epithets at the boss, it may require you to forswear your constitutional right to travel, and so on and so forth.

      We’ve disagreed on this issue numerous times in the past, so I’m sorry I haven’t convinced you yet. Maybe tomorrow’s post will do it.

  • Nope. Not convinced. Just because certain companies have monopolies doesn’t mean that I actually agree with their contract terms. I merely agree to pay them x for y service because I need it to work/etc. Everything else is bs.