Wednesday, June 25, 2014

Employment Law in SCOTUS's Final Week and Scalia on Loopholes

I haven't been blogging a lot lately, in part because I've been waiting for decisions from the Supreme Court in Hobby Lobby and Conestoga Wood, Noel Canning, and Harris v. Quinn. The Court is just not cooperating though! We should get all four of those decisions tomorrow (or in a yet-to-be scheduled date next week, probably Monday).

Heck, we can't even get a cert decision in the pregnancy accommodation case, Young v. UPS. It already went to conference last week, but no decision yet. It is scheduled to go back to conference on Thursday, with (hopefully) a cert decision soon thereafter (again, I think Monday).

In the meantime, I'm left trying to entertain myself with non-employment law cases. In dissent, Justice Scalia provided some interesting commentary on "loopholes" in ABC v. Aereo:
I share the Court’s evident feeling that what Aereo is doing (or enabling to be done) to the Networks’ copyrighted programming ought not to be allowed. But perhaps we need not distort the Copyright Act to forbid it. As discussed at the outset, Aereo’s secondary liability for performance infringement is yet to be determined, as is its primary and secondary liability for reproduction infringement. If that does not suffice, then (assuming one shares the majority’s estimation of right and wrong) what we
have before us must be considered a “loophole” in the law.It is not the role of this Court to identify and plug loopholes. It is the role of good lawyers to identify and exploit them, and the role of Congress to eliminate them if it wishes. Congress can do that, I may add, in a much more targeted, better informed, and less disruptive fashion than the crude “looks-like-cable-TV” solution the Court invents today.
I don't know enough about this specific case to offer commentary - but as a general premise, Scalia's comments seem reasonable enough.