1985-1986 Annual Survey of Labor Relations and Employment Discrimination Law

Total Page:16

File Type:pdf, Size:1020Kb

1985-1986 Annual Survey of Labor Relations and Employment Discrimination Law Boston College Law Review Volume 28 Article 3 Issue 1 Number 1 12-1-1986 1985-1986 Annual Survey of Labor Relations and Employment Discrimination Law Follow this and additional works at: http://lawdigitalcommons.bc.edu/bclr Part of the Labor and Employment Law Commons Recommended Citation 1985-1986 Annual Survey of Labor Relations and Employment Discrimination Law, 28 B.C.L. Rev. 40 (1986), http://lawdigitalcommons.bc.edu/bclr/vol28/iss1/3 This Survey is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. 40 BOSTON COLLEGE LAW REVIEW [Vol. 28:25 LABOR RELATIONS LAW 1. REPRESENTATIONAL AND ORGANIZATIONAL ACTIVITY A, *Specific Evidence Required To Overturn A National Labor Relations Board Election: NLRB v. IDAB, Inc) It is a well-settled rule under federal labor law that a union representation election may be set aside for improper acts not attributable directly to a union only if those acts disrupted the voting procedure or destroyed the atmosphere necessary to the exercise of a free choice in the voting. 2 In a 1981 case, for example, the Fifth Circuit set aside an election where two former employees wore "Vote Teamsters" signs on their hats and an enlarged reproduction of the ballot with an "X" marked in the "Yes" box pinned to their shirts during the voting process Because these former employees stood near the line of voters and repeatedly urged the employees to vote for the union, the court concluded, the required atmosphere of free choice was not present.' A party objecting to an election has the burden of presenting specific evidence that the election results do not reflect the unimpeded choice of the employees. 5 In another 1981 Fifth Circuit case, the court ruled that a simple showing of misconduct was not sufficient to overturn an election. 6 The court held that the employer must present specific evidence showing that the actions interfered with the employees' exercise of free choice to such an extent that the results of the election were materially affected:, The National Labor Relations Board (Board) is responsible for making factual determinations of labor disputes brought before it.' Although the Board's findings may be appealed to a federal court, the Federal court is bound by the Board's factual determinations if substantial evidence in the record supports these determinations. 9 Where the evidence is conflicting and the Board's decision rests on credibility choices, the Board's credibility choices also bind federal courts unless the choices are inherently unreasonable. 1 ° A court, moreover, is not compelled to respect credibility choices that are based on inadequate reasons or upon no reasons at all.' * By Timothy M. Smith, Staff Member, BOSTON COLLEGE LAW REVIEW , I 770 F.2d 991, 120 L.R.R.M. 2329 (11th Cir. 1985). 2 See, e.g., NLRB v. Carroll Contracting & Ready-Mix, Inc., 636 F.2d III, 113, 106 L.R.R.M. 2491, 2493 (5th Cir, 1981); NLRB v. Claxton Mfg., 613 F.2d 1364, 1371, 103 L.R.R.M. 2980, 2986 (5th Cir. 1980). Carroll, 636 F.2d at 112-13, 106 L.R.R.M. at 2493. 4 Id. at 113, 106 L.R.R.M. at 2493. 5 Certainteed Corp. v. NLRB, 714 F.2d 1042, 1060, 114 L.R.R.M. 2541, 2554-55 (11th Cir. 1983). 6 NLRB v. Gulf States Canners, Inc., 634 F.2d 215, 216, 106 L.R.R.M. 2270, 2271 (5th Cir. Unit A), cert. denied, 452 U.S. 906, 107 L.R.R.M. 2504 (1981) (union offered to purchase gasoline for employees who transported other workers to the union meetings). 7 Id, IDAB, 770 F.2d at 996, 120 L.R.R.M. at 2332. 9 29 U.S.C. 160(e) (1982). The relevant language of 29 U.S.C. § 160(e) states, "Nile findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive." See also Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-88, 27 L.R.R.M. 2373, 2378-79 (1951) (court cited language of 29 U.S.C. § 160(e)). " See Mead Corp. v. NLRB, 697 F.2d 1013, 1022, 112 L.R.R.M. 2797, 2803 (11th Cir. 1983). "See ONA Corp. v. NLRB, 729 F.2d 713, 719, 115 L.R.R.M. 3665,3668-69 (11th Cir. 1984) December 1986) ANNUAL SURVEY OF LABOR LAW 41 During the Survey year, in NLRB v. IDAB, Inc.,' 2 the United States Court of Appeals for the Eleventh Circuit held that limited findings of threats and violence, considered cumulatively with limited findings of objectionable electioneering on the part of union representatives, did not warrant setting aside a representation election. IDAB reaffirms the principle that a party objecting to a representation election bears a heavy burden of presenting detailed reasons why the election should be invalidated." Consequently, !DAB reaffirms that an employer must offer specific evidence of acts that disrupt the voting procedures or destroy the proper atmosphere that allows employees to exercise their freedom of choice in the election. In IDAB, the Board petitioned the Eleventh Circuit for enforcement of a Board order directing IDAB Inc. (the Company) to recognize and bargain with the Interna- tional Association of Machinists and Aerospace Workers (the Union).' 4 In November of 1979, the Board had conducted an election among the Company's employees." After the election, which favored adopting the Union, the Company filed timely objections, claiming that the Union had denied employees free choice in the election because of improper electioneering and threats and acts of violence.'" Subsequently, the Board conducted an ex parte investigation of the matter and concluded that the Company's objections were without merit." To secure judicial review of the Union's alleged improper acts, the Company refused to bargain with the Union.'" As a result, the Union brought an unfair labor practice charge against the Company alleging that the Company had violated two sections of the National Labor Relations Act (the Act) by refusing to recognize and bargain with the Union.'" The Board granted the Union's motion for summary judgment and ordered the Company to bargain with the Union. 20 The Company sought review of the Board's order in the Fifth Circuit. 2 ' The Fifth Circuit ruled that the Company was entitled to an evidentiary hearing on its allegations of Union misconduct, and thus the Board's order should not be enforced." Accordingly, the matter was remanded for a hearing." (The ONA court cited NLRB v. Moore Business Forms, 574 F.2d 835, 844, where the court had refused to uphold an administrative law judge's finding because it was based on an "invalid reason of law."). 12 770 F.2d 991, 1000-01, 120 L.R.R.M. 2329, 2336 (11th Cir. 1985). 13 Id. at 998-1001, 120 L.R.R.M. at 2334-36, '4 1d. at 992-93, 120 L.R.R.M. at 2329. ' 5 Id. at 993, 120 L.R.R.M. at 2329. '6 /d. at 993, 120 L.R.R.M. at 2329-30. " Id. at 993, 120 L.R.R.M. at 2330. 18 Id. '9 Id, The Union alleged that the Company had violated Section 8(a)(1) and (5) of the Act, 29 U.S.C. 158(a)( I) and (5). Id. Section 158(a)(1) states, "It shall be an unfair labor practice for an employer — (1) to interfere with, restrain, or coerce employees in the exercise of rights guaranteed in section 157 of this title;" and § 158 (a)(5) states, It shall be an unfair labor practice for an employer to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159(a) of this title." so IDAB, 770 F.2d at 993, 120 L.R.R.M. at 2330. 21 Id. As a result of the split of the Fifth Circuit into the Fifth and Eleventh Circuits, the present IDAB case was decided ultimately in the Eleventh Circuit. 22 Id. 25 Id. (citing EDS-IDAB, Inc. v. NLRB, 666 F.2d 971, 109 L.R.R.M. 2653 (5th Cir. Unit B 1982)). At the time of the Union election, the Company's name was EDS-IDAB, Inc. The name was changed subsequently to IDAB, Inc. IDAB, 770 F.2d at 992 n.1, 120 L.R.R.M. at 2329 n.l. 42 BOSTON COLLEGE LAW REVIEW [Vol. 28:25 A hearing was held before an administrative law judge (Aq) in July and September of 1982.24 At the hearing, the Company alleged that the Union had established an organizing committee consisting of employees Victor Ugarte, Al Gonzales, Louis Jorge, and Francisco Rodriguez. 25 The Company stated that shortly before the election Rod- riguez threatened pro-Company employee Contreras with a gun. 26 In addition, the COmpany asserted, Jorge punched Contreras in the eye." Moreover, the Company alleged that Jorge twice threatened to damage employee Leon's car if Leon did not vote for the Union.28 During the campaign, the tires of pro-Company employees were van- dalized. 28 Rumors of violence or threats of violence by pro-Union employees were circulated widely." The Company further alleged that on the day of the election, numerous incidents of improper electioneering took place.
Recommended publications
  • Jury Trial Disparities Between Class Actions and Shareholder Derivative Actions in State Courts
    Saint Louis University School of Law Scholarship Commons All Faculty Scholarship 2019 Jury Trial Disparities Between Class Actions and Shareholder Derivative Actions in State Courts Ann M. Scarlett Follow this and additional works at: https://scholarship.law.slu.edu/faculty Part of the Business Organizations Law Commons, and the Commercial Law Commons JURY TRIAL DISPARITIES BETWEEN CLASS ACTIONS AND SHAREHOLDER DERIVATIVE ACTIONS IN STATE COURTS ANN M. SCARLETT* Abstract Class actions and shareholder derivative lawsuits are both forms of representative litigation that historically had to be brought in the equity courts to be decided by a judge, rather than in the common-law courts to be decided by a jury. In 1938, the federal courts merged law and equity by passing the Federal Rules of Civil Procedure, which allowed both legal and equitable claims to be heard within the same civil action. After law and equity merged, the Supreme Court interpreted the Seventh Amendment’s preservation of the right to jury trial as including not just actions recognized at common law, but also actions requiring resolution of legal rights. Thus, class and shareholder derivative actions brought in federal courts possess a right to jury trial for any legal claims. Like the federal courts, almost all states have now merged law and equity. However, because the Seventh Amendment does not apply to the states, the right to jury trial in class and shareholder derivative actions varies among states. While a few states appear to deny any right to jury trial in both actions based on their historically equitable nature, some states now likely permit jury trials in both actions.
    [Show full text]
  • Advisory Juries and Their Use and Misuse in Federal Tort Claims Act Cases, 2003 BYU L
    BYU Law Review Volume 2003 | Issue 1 Article 2 3-1-2003 Advisory Juries and Their seU and Misuse in Federal Tort Claims Act Cases Matthew L. Zabel Follow this and additional works at: https://digitalcommons.law.byu.edu/lawreview Part of the Civil Procedure Commons, Courts Commons, and the Torts Commons Recommended Citation Matthew L. Zabel, Advisory Juries and Their Use and Misuse in Federal Tort Claims Act Cases, 2003 BYU L. Rev. 185 (2003). Available at: https://digitalcommons.law.byu.edu/lawreview/vol2003/iss1/2 This Article is brought to you for free and open access by the Brigham Young University Law Review at BYU Law Digital Commons. It has been accepted for inclusion in BYU Law Review by an authorized editor of BYU Law Digital Commons. For more information, please contact [email protected]. ZAB-FIN 2/15/2003 2:23 PM Advisory Juries and Their Use and Misuse in Federal Tort Claims Act Cases Matthew L. Zabel ∗ I. INTRODUCTION .................................................................... 186 II. THE FEDERAL TORT CLAIMS ACT AND THE USE OF ADVISORY JURIES ............................................................ 189 A. The FTCA and Its Prohibition of Jury Trials................ 189 B. Advisory Juries in Historical Perspective....................... 193 III. ADVISORY JURIES, THE FTCA, AND CONGRESSIONAL INTENT........................................................................... 196 A. The Statutory Language Requires District Courts to Decide FTCA Cases Without the Assistance of a Jury of Any Kind .............................................................. 197 B. The Use of Advisory Juries in FTCA Cases Is Inconsistent with Congress’s Intent in Prohibiting Jury Trials Against the United States.......................... 204 IV. PRACTICAL CONSIDERATIONS AND SYSTEMIC COSTS OF USING ADVISORY JURIES IN FTCA CASES .......................
    [Show full text]
  • Standards of Appellate Review in the Federal Circuit: Substance and Semantics
    Standards of Appellate Review in the Federal Circuit: Substance and Semantics Kevin Casey,* Jade Camara** & Nancy Wright*** Introduction “Standards of review” denote the strictness or intensity with which an appellate court evaluates the action of a trial tribunal including, for the United States Court of Appeals for the Federal circuit, a district court judge, a jury, or an agency. At first blush, a discussion of standards of review might appear superficial, or worse, of little consequence. Some might believe that a standard of review is merely a semantic label affixed to a particular issue by an appellate court, and that such labels are virtually irrelevant to the likelihood of success on the merits of an appeal.1 It is tempting to say that standards of review are meaningless rationalizations applied to justify a decision once made. Others might believe that standards of review are obvious: the parties can simply look up the appropriate standards applicable to the issues involved in their 2 particular appeal. Experienced appellate advocates realize, however, that those who frame their appellate practice using such beliefs undermine their chances of obtaining a favorable judgment on appeal. Appellate judges who provide tips almost invariably advise advocates * Kevin R. Casey has B.S. Degrees from Rensselaer Polytechnic Institute in both Materials Engineering and Mathematics. He received an M.S. Degree in Aerospace-Mechanical Engineering from the University of Cincinnati and worked as an engineer with the General Electric Company. He obtained his J.D. Degree, Magna Cum Laude, from the University of Illinois, where he was Editor-in-Chief of the law review and served for two years as a judicial clerk to The Honorable Helen W.
    [Show full text]
  • Summary Jury Trials: Is There Authority for Federal Judges to Impanel Summary Jurors?
    Valparaiso University Law Review Volume 27 Number 2 Spring 1993 pp.461-494 Spring 1993 Summary Jury Trials: Is There Authority for Federal Judges to Impanel Summary Jurors? Molly M. McNamara Follow this and additional works at: https://scholar.valpo.edu/vulr Part of the Law Commons Recommended Citation Molly M. McNamara, Summary Jury Trials: Is There Authority for Federal Judges to Impanel Summary Jurors?, 27 Val. U. L. Rev. 461 (1993). Available at: https://scholar.valpo.edu/vulr/vol27/iss2/6 This Notes is brought to you for free and open access by the Valparaiso University Law School at ValpoScholar. It has been accepted for inclusion in Valparaiso University Law Review by an authorized administrator of ValpoScholar. For more information, please contact a ValpoScholar staff member at [email protected]. McNamara: Summary Jury Trials: Is There Authority for Federal Judges to Im SUMMARY JURY TRIALS: IS THERE AUTHORITY FOR FEDERAL JUDGES TO IMPANEL SUMMARY JURORS? I. INTRODUCTION The Federal Rules of Civil Procedure guarantee a "just, speedy, and inexpensive determination of every action"1 for all litigants in the United States federal courts. Yet, the United States has become an increasingly litigious society, making the guarantee of a'just and speedy trial difficult for the federal courts to uphold.2 Although scholars disagree as to the cause of America's increased litigation, 3 none deny that this increase has created a severe backlog problem in the federal court system.4 In an effort to alleviate the backlog problem, scholars and judges have proposed solutions such as the use of magistrates, 5 pretrial conferences,' and the creation of additional judgeships.7 1.
    [Show full text]
  • The Constitution United States of America
    ThisThis publicationpublication supplementssupplements SenateSenate DocumentDocument 115–8,112–9, TheThe ConstitutionConstitution of the UnitedUnited StatesStates ofof America:America: Analysis Analysis andand InterpretationInterpretation—it­­­­––it shouldshould bebe insertedinserted intointo thethe pocketpocket onon thethe insideinside backback covercover ofof thatthat volumevolume 115th116th Congress DOCUMENT SENATE 2nd2d Session Session No.No. 116–20 115–8 " ! THE CONSTITUTION OF THE UNITED STATES OF AMERICA ANALYSIS AND INTERPRETATION 20202018 SUPPLEMENTSUPPLEMENT ANALYSISANALYSIS OFOF CASESCASES DECIDEDDECIDED BYBY THE SUPREME COURTCOURT OFOF THETHE UNITED STATES TO JUNEJULY 14,28, 20202018 PREPARED BY BY THE THE CCONGRESSIONALONGRESSIONAL RRESEARCHESEARCH SSERVICEERVICE LIBRARY OF OF CCONGRESSONGRESS VALERIE BBRANNONRANNON CAITLAINVICTORIADEVEREAUX KILLIONLEWIS ANDREW NNOLANOLAN ATTORNEY EEDITORSDITORS GEORGIA GKOULGKOUNTINA SMUMMEREGHAN NORWOODTOTTEN MLEGHANEGAL E TDITORSOTTEN LEGAL EDITORS U.S.U.S. GOVERNMENTGOVERNMENT PUBLISHINGPUBLISHING OFFICE 31–34442-432 WASHINGTONWASHINGTON : : 20202018 Online Version: Online www.gpo.gov/constitutionannotated; Version: www.gpo.gov/constitutionannotated www.constitution.congress.gov For sale by the Superintendent of Documents, U.S. Government Publishing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC 20402–0001 ISBNISBN 978-0-16-095800-7978-0-16-094937-1 TABLE OF CONTENTS TABLE OF CONTENTS .........................................................................................
    [Show full text]
  • Is There a Constitutional Right to Jury Trial of Equitable Defenses in New York?
    St. John's Law Review Volume 74 Number 1 Volume 74, Winter 2000, Number 1 Article 1 Is There a Constitutional Right to Jury Trial of Equitable Defenses in New York? Bernard E. Gegan Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. ST. JOHN'S LAW REVIEW VOLUME 74 WINTER 2000 NUMBER 1 IS THERE A CONSTITUTIONAL RIGHT TO JURY TRIAL OF EQUITABLE DEFENSES IN NEW YORK? BERNARD E. GEGANI This article is dedicated to the memory of Benjamin N. Cardozo, whose insight into the law made the crooked straight and the roughplaces plain. INTRODUCTION The subject of this article is the constitutionality of section 4101 of the New York Civil Practice Law and Rules (CPLR), which, in addition to setting forth the traditional legal actions triable by jury as of right,1 also provides "that equitable defenses and equitable counterclaims shall be tried by the court."2 Under the former Civil Practice Act,3 which the CPLR replaced in 1963, 4 all defenses, whether legal or equitable, were triable in the same manner as the plaintiffs action;5 only counterclaims * Whitney Professor of Law, St. John's University School of Law. I thank my colleague Vincent Alexander for his valuable comments on drafts of this article.
    [Show full text]
  • Putting Mandatory Summary Jury Trial Back on the Docket: Recommendations on the Exercise of Judicial Authority
    Fordham Law Review Volume 63 Issue 4 Article 7 1995 Putting Mandatory Summary Jury Trial Back on the Docket: Recommendations on the Exercise of Judicial Authority Lucille M. Ponte Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Lucille M. Ponte, Putting Mandatory Summary Jury Trial Back on the Docket: Recommendations on the Exercise of Judicial Authority, 63 Fordham L. Rev. 1069 (1995). Available at: https://ir.lawnet.fordham.edu/flr/vol63/iss4/7 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. Putting Mandatory Summary Jury Trial Back on the Docket: Recommendations on the Exercise of Judicial Authority Cover Page Footnote The author gratefully acknowledges the research assistance of Margo Reder, Adjunct Professor of Law and Research Associate, Bentley College, on this Article. This article is available in Fordham Law Review: https://ir.lawnet.fordham.edu/flr/vol63/iss4/7 PUTTING MANDATORY SUMMARY JURY TRIAL BACK ON THE DOCKET: RECOMMENDATIONS ON THE EXERCISE OF JUDICIAL AUTHORITY LUCILLE M. PONTE* INTRODUCTION ITH the spiraling costs,' excessive delays,2 and exploding caeoads of the civil courts,3 many disputants view traditional litigation as unable to meet their conflict resolution needs.4 More and more parties are turning away from the judicial system and are resort- ing to private dispute resolution firms.5 Recognizing this growing * Assistant Professor of Law, Bentley College.
    [Show full text]
  • Federal Rules Civil Procedure
    FEDERAL RULES OF CIVIL PROCEDURE DECEMBER 1, 2016 E PL UR UM IB N U U S Printed for the use of THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES 114TH CONGRESS " COMMITTEE PRINT ! No. 8 2nd Session FEDERAL RULES OF CIVIL PROCEDURE DECEMBER 1, 2016 E PL UR UM IB N U U S Printed for the use of THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES U.S. GOVERNMENT PUBLISHING OFFICE WASHINGTON : 2016 For sale by the Superintendent of Documents, U.S. Government Publishing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800 Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001 COMMITTEE ON THE JUDICIARY ONE HUNDRED FOURTEENTH CONGRESS BOB GOODLATTE, Virginia, Chairman F. JAMES SENSENBRENNER, JR., Wisconsin JOHN CONYERS, JR., Michigan LAMAR S. SMITH, Texas JERROLD NADLER, New York STEVE CHABOT, Ohio ZOE LOFGREN, California DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas J. RANDY FORBES, Virginia STEVE COHEN, Tennessee STEVE KING, Iowa HENRY C. ‘‘HANK’’ JOHNSON, JR., Georgia TRENT FRANKS, Arizona PEDRO R. PIERLUISI, Puerto Rico LOUIE GOHMERT, Texas JUDY CHU, California JIM JORDAN, Ohio TED DEUTCH, Florida TED POE, Texas LUIS V. GUTIERREZ, Illinois JASON CHAFFETZ, Utah KAREN BASS, California TOM MARINO, Pennsylvania CEDRIC RICHMOND, Louisiana TREY GOWDY, South Carolina SUZAN DelBENE, Washington RAU´ L LABRADOR, Idaho HAKEEM JEFFRIES, New York BLAKE FARENTHOLD, Texas DAVID N. CICILLINE, Rhode Island DOUG COLLINS, Georgia SCOTT PETERS, California RON DeSANTIS, Florida MIMI WALTERS, California KEN BUCK, Colorado JOHN RATCLIFFE, Texas DAVE TROTT, Michigan MIKE BISHOP, Michigan SHELLEY HUSBAND, Chief of Staff & General Counsel PERRY APELBAUM, Minority Staff Director & Chief Counsel (II) FOREWORD This document contains the Federal Rules of Civil Procedure to- gether with forms, as amended to December 1, 2016.
    [Show full text]
  • The Future of Summary Jury Trials in Federal Courts: Strandell V
    UIC Law Review Volume 21 Issue 3 Article 1 Spring 1988 The Future of Summary Jury Trials in Federal Courts: Strandell v. Jackson County, 21 J. Marshall L. Rev. 455 (1988) Gerald L. Maatman Jr. Follow this and additional works at: https://repository.law.uic.edu/lawreview Part of the Civil Law Commons, Dispute Resolution and Arbitration Commons, Judges Commons, and the Legal Profession Commons Recommended Citation Gerald L. Maatman Jr., The Future of Summary Jury Trials in Federal Courts: Strandell v. Jackson County, 21 J. Marshall L. Rev. 455 (1988) https://repository.law.uic.edu/lawreview/vol21/iss3/1 This Article is brought to you for free and open access by UIC Law Open Access Repository. It has been accepted for inclusion in UIC Law Review by an authorized administrator of UIC Law Open Access Repository. For more information, please contact [email protected]. ARTICLES THE FUTURE OF SUMMARY JURY TRIALS IN FEDERAL COURTS: STRANDELL v. JACKSON COUNTY GERALD L. MAATMAN, JR.* INTRODUCTION Alternative Dispute Resolution (ADR) is a mechanism to which lawyers and litigants are turning with increasing frequency to save time and money attendant traditional civil litigation in federal courts. The search for litigation alternatives stems from dissatisfac- tion with congested court dockets, long delays, and the high cost of litigating. The ADR movement enjoys broad support.' Indeed, the subject has its own specialized journals and an ABA Standing Com- mittee.2 Law schools and legal casebooks are now endeavoring to * Associate, Baker & McKenzie, Chicago, Illinois. B.A., Washington & Lee Uni- versity; J.D., Northwestern University. The author represented the plaintiffs in Strandell v.
    [Show full text]
  • Goldstein & Russell, P.C
    GOLDSTEIN & RUSSELL, P.C. 7475 Wisconsin Ave., Suite 850 Bethesda, MD 20814 August 7, 2020 Honorable Scott S. Harris, Clerk Supreme Court of the United States Washington, D.C. 20543 Re: Google, LLC v. Oracle America, Inc., No. 18-956 Dear Mr. Harris: Petitioner Google respectfully submits this “supplemental letter brief[] addressing the appropriate standard of review for the second question presented, including but not limited to the implications of the Seventh Amendment, if any, on that standard.” May 4, 2020 Order. The second question presented arises from Oracle’s argument that the trial evidence was insufficient to support the jury’s verdict that Google’s limited reuse of the Java SE declarations was fair use. The settled standard of review governing that assertion asks whether—construing all the evidence in support of the verdict—a reasonable jury could find fair use. The Federal Circuit erred in applying de novo review based on its incorrect premise that only a court can decide fair use. This Court should reverse and reinstate the judgment in Google’s favor. Remanding the case for a third appeal before the Federal Circuit would unnecessarily extend this decade-old litigation and deprive the lower courts and the software industry of certainty on the lawfulness of the longstanding, widespread practice of reusing software interfaces. The jury in this case found that Google’s reuse of certain Java SE declarations to create the Android smartphone platform was a fair use. Oracle moved for judgment as a matter of law (JMOL) under Federal Rule of Civil Procedure 50. The district judge denied that motion in a detailed opinion that applied a well-settled standard of review: It construed the evidence in support of the verdict and concluded that a reasonable jury, after weighing all that evidence and applying the court’s instructions, could find fair use.
    [Show full text]
  • Federalism and the State Civil Jury Rights
    HAMILTON 65 STAN. L. REV. 851 - PRODUCTION.DOC (DO NOT DELETE) 3/25/2013 10:31 AM FEDERALISM AND THE STATE CIVIL JURY RIGHTS Eric J. Hamilton* Judicial federalism scholarship has concentrated on the interplay between the U.S. Supreme Court and state supreme courts for incorporated rights, where the former sets the floor for rights in the states. But little has been said about ju- dicial federalism and the unincorporated rights, where states are unrestricted in their freedom to define the rights. The Seventh Amendment presents a one-of-a- kind experiment in judicial federalism, as the only federal constitutional right that is duplicated in the great majority of state constitutions and has generated an ap- preciable body of case law. In this Note, I analyze the evolution of state court treatment of the intertwined-issues problem, both before Beacon Theatres, Inc. v. Westover announced the federal rule, and today. Surprisingly, I reveal first, a genuine split of authority in the states between the Beacon Theatres rule and a narrower rule, and second, that the states had nearly uniformly agreed to the narrower rule before Beacon Theatres—a fact not discussed by the Beacon Thea- tres Court or litigants. The Beacon Theatres decision has transformed the doctri- nal landscape over more than fifty years; many state courts have uprooted their state rules and planted the federal rule in its place. This Note concludes that state supreme courts need a distinct approach for unincorporated rights, such as the Seventh Amendment, to serve judicial federalism norms. INTRODUCTION....................................................................................................... 852 I. THE CONSTITUTIONAL RIGHT TO A JURY TRIAL IN CIVIL CASES .....................
    [Show full text]
  • What Jury? a New Approach to Obviousness After KSR V. Teleflex Rishi S
    Journal of Intellectual Property Law Volume 18 | Issue 1 Article 10 October 2010 What Jury? A New Approach to Obviousness after KSR v. Teleflex Rishi S. Suthar Follow this and additional works at: https://digitalcommons.law.uga.edu/jipl Part of the Intellectual Property Law Commons Recommended Citation Rishi S. Suthar, What Jury? A New Approach to Obviousness after KSR v. Teleflex, 18 J. Intell. Prop. L. 295 (2010). Available at: https://digitalcommons.law.uga.edu/jipl/vol18/iss1/10 This Notes is brought to you for free and open access by Digital Commons @ Georgia Law. It has been accepted for inclusion in Journal of Intellectual Property Law by an authorized editor of Digital Commons @ Georgia Law. Please share how you have benefited from this access For more information, please contact [email protected]. Suthar: What Jury? A New Approach to Obviousness after KSR v. Teleflex WHAT JURY? A NEW APPROACH TO OBVIOUSNESS AFTER KSR V TELEFLEX Rishi S. Suthat TABLE OF CONTENTS INTRODUCTION ............................................................ 297 II. B ACKG RO UN D ............................................................................................. 299 A. OBVIOUSNESS IN GENERAL ......................... ..... 299 1. Ongins in Hotchkiss ............................... 299 2. Statutoy Adopion in 35 U.S.C J 103.......................................... 299 B. THE APPROACH PRIOR TO THE CREATION OF THE FEDERAL CIRCUIT ...................................... 300 1. Seventh and Ninth CircuitApproach...............................................
    [Show full text]