June 2012

Andrew Cohen, contributing editor at The Atlantic, discusses in Supreme Court Review: The Tyranny of the Majority how four of this week’s controversial decisions from the nation’s highest Court were decided by one vote. Cohen’s piece is a solid reminder that, despite the complexity and nuance of constitutional law, it is the ballot box during presidential-election years that remains the most powerful force in the determination of Supreme Court decisions.


Reuters

The future of same-sex marriage and voting rights, among other matters, rest in the hands of voters this November. Supreme Court decisions have wide-sweeping and significant controlling authority.  With regard to sexual orientation, the court will be considering the validity of California’s Proposition 8 .  On voting rights, the Court will be set to review key statutory provisions recently upheld by a federal appellate court.

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Minneapolis Police Sergeant David Clifford, 47, is the executive member of the SWAT team and a 19-year department veteran who has twice received the Medal of Valor. Last week, Clifford was charged with felony assault after he punched Brian Vander Lee in the head at Tanners Station in Andover. Clifford’s actions resulted in Vander Lee requiring life support and at least two brain surgeries. In addition to the serious criminal charges Anoka County has brought against Clifford, he will undoubtedly be named in a civil lawsuit as well. Although Clifford was off-duty, in an interview with the St. Paul Pioneer Press his criminal defense attorney alleged that Clifford was responding to Vander Lee’s “out of control” behavior. Such assertions, if maintained by Clifford, may have liability implications for the City of Minneapolis in a civil lawsuit against Clifford. Read More . . .

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In Bradwell v. Illinois, (U.S. 1873), the Supreme Court declared that allowing a woman to practice law would surely destroy her femininity. According to the 8-1 decision, law is a man’s profession and  women simply aren’t well-suited for such rigor. While that may seem archaic, it wouldn’t be until 1971 that the Court invalidated such discrimination by government against women. Reed v. Reed, (U.S. 1971). And while the Civil Rights Act of 1964 and various other laws have sought to end such discrimination, today’s United States women make only 78 cents for each dollar made by their male counterparts.

Although Bradwell was decided 140 years ago, there are those who believe such sentiments are still alive and well within some industries. In a federal lawsuit against Kleiner, Perkins, Caufield & Byers, Ellen Pao has prompted a discussion regarding whether such a culture pervades Silicon Valley.  In her three-count Complaint, Pao alleges gender discrimination, sexual harassment, hostile work environment, and retaliation; the suit also makes reference to purported discrimination and harassment against multiple female employees of the firm, including assistants and other junior partners. Some highlights from the Complaint that suggest Pao’s allegations are broader than her personal circumstances: Read More . . .

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Justice Kennedy

Tuesday’s decision in Perry v. Brown (the “Prop 8” case) means that roughly one year from now, it is likely that the United States Supreme Court will be giving its opinion on the now infamous 2008 ballot proposition that resulted in barring Californian gay couples from joining in marriage. Justice Anthony Kennedy will ultimately decide the fate of millions of gay people who wish to join in the civil institution of marriage, and his opinion will likely  have a significantly broader impact on cases involving sexual orientation discrimination.

Why I think the Court will:

  1. grant certiorari to take the case;
  2. find “Prop 8” and the 30-plus similar state ballot measures and amendments unconstitutional; and
  3. declare that gay people are a class deserving of heightened (if not strict scrutiny) analysis, which will have important implications for sexual orientation discrimination cases and employment law;

all, after the jump…

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Medical Leave and Maternity Leave

Hansen v. Robert Half Intnt’l (Minn. 2012):  The Minnesota Supreme Court ruled this week that employees taking medical leave from work do not need to mention the Minnesota Parental Leave Act (MPLA) in order to have their jobs protected by the law while on medical leave.

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