Sarah’s Buckets Hit SCOTUS (Oh, and Fox News Settles Dominion Case)

Also: DeSantis' death penalty changes stump David.

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BREAKING! Sarah’s buckets have finally arrived at the Supreme Court. Also: Fox News agrees to pay and pay and pay… but won’t tell you about it.

Today’s buckets:

-You can’t leave our relationship

-Bonus: Footage of New York and New Jersey debating the validity of their pact

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  1. VV

    TWA is special to me. It was the airline that took me across the Atlantic Ocean when I immigrated to the United States when I was a child. There are few more spectacular ways to be introduced to America than the view of New York City out the window of an airplane at the end of a transatlantic flight.

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  2. Rheyduck

    The "three buckets" metaphor does go back a bit farther, at least according to Google N-Gram https://books.google.com/ngrams/graph?content=three+buckets&year_start=1940&year_end=2019&corpus=en-2019&smoothing=3

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    Dougherbert

    One other point. In big litigation matters I've worked on dating back to the 1980s, we always hired (or sometimes just considered hiring) PR consultants. Admittedly, we never hired a Justice Department spokesman, but Big Law lawyers definitely aren't unaware of the need for PR help.

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    Clifford Luebben

    In reference to one of your passing comments: my understanding is the Roman Catholic faith actually places greater weight on Sunday mass participation than most Evangelical traditions. One RC friend told me it is considered a mortal to miss Sunday mass although it gets downgraded to a venial sin if your employer requires it (RCs here feel free to correct me if I’m wrong)

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    Clifford Luebben

    I hate making phone calls. I will go out of my way to avoid them, but even I still call a hotel in advance if I anticipate arriving past 10pm. Even the major chains are not guaranteed someone at the desk 24 hours at each location.

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    W James Anderson

    I appreciate you guys. I’m just a blue collar dude that likes to stay somewhat informed. My favorite part of this episode is when David… you get scolded at the end. I was gutturally laughing👊

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    Hawks Law Office

    Genuine question: If Dominion Voting's damages model was so weak, why didn't Fox file an Answer (after Fox's motion to dismiss was denied on March 31st) that admitted liability but not damages? Alternatively, assuming Delaware law allowed this, why didn't Fox allow a default judgment against it on liability and again just contest damages in an evidentiary hearing?

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  8. Ejscharf

    I listened with interest to the discussion of Groff - perhaps more interest than most because I practiced employment and labor law for the Postal Service for 33 years. I was tickled by one thing I heard, and surprised by another. First, what tickled me: Sarah’s suggestion that “undue hardship” should be a fact question for the jury. Imagine you run a large business, with more than 600,000 employees, the majority of which have blue collar jobs in tens of thousands facilities across the country. Next, imagine you have to make job assignments and schedules for those employees. Finally, imagine that while management is making these decisions, it has to consider whether a jury would find any of these assignments implicated the concept of “undue hardship,” without any guidance on what that term means. And this leaves aside the fact that the Postal Service employees, like all federal-sector employees, must first bring their discrimination claims before the EEOC, where administrative judges decide these cases in the first instance. Without supplying those judges a controlling legal standard, they’d be left to apply their own personal brand of “undue hardship.” As for what surprised me because it was not mentioned: Approximately 400,000 postal employees are in bargaining units subject to collective bargaining agreements. For the most part, the rules governing these agreements are identical to those applicable to the private sector. The heart of any collective bargaining agreement, after pay and benefits, is the seniority provisions. This is because in general, and in the Postal Service in particular, seniority provisions largely control job assignments, including work schedules. Typically, those with higher seniority are in a position to obtain preferred days off, including Sundays. Now, imagine the impact on collective bargaining, and employees with lengthy seniority, if senior employees are denied their preferred days off by a junior employee. In this situation, the Postal Service is stuck in the middle, especially since the senior employees are likely to file grievances under the collective bargaining agreement, and perhaps, NLRB charges. In summary, the Groff factual situation is a lot more factually complex than what I heard in the podcast. It reminded me of what a federal judge once told me: “Everyone wants to discuss the law, but I want to hear about the facts.”

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      Dougherbert

      As an employment lawyer in the private sector (recently retired), I definitely second ejscharf's arguments. The idea that you can just give a case to a jury on a standard-less "undue burden" charge without doing significant harm to America's employers is just wrong.

      Keep in mind what happens when a defendant loses one of these unpredictable cases. Not only does the defendant have to pay damages, which can be quite significant (especially if the judge awards "front pay," as they usually do), but also has to pay its own lawyers AND the plaintiff's lawyers.

      And if the plaintiff loses the case, the defendant still has to pay its own lawyers, who are unlikely to be cheap. There is no such thing as a "win" for the defendant in these cases.

      Experience under the "undue burden" standard of the Americans with Disabilities Act is instructive. The ADA has slightly more detail in the definition of what is "undue," but the standards are so vague that they provide no real guidance. The result has been that employers routinely err massively on the side of going along with whatever demand for accommodation is made, even if it is highly burdensome.

      And I also think Sarah and David greatly underestimate the resentment that will occur when self-proclaimed religious believers are able to demand and get preferential treatment in the workplace. Remember that courts are highly reluctant to judge the sincerity of alleged religious beliefs, so it is very likely that spurious claims of religious accommodation will become common. This is what happened during the days of resistance to employers' COVID vaccine mandates, but fortunately employers were able to ignore these because the "de minimis" standard was not clearly not met.

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  9. Bradgreenwald

    Looked for a "Requests" box and couldn't find one. I'd love to hear a short segment on Martin v. City of Boise. It think it has had consequences (similar to a light carpet bombing in some cities like mine) which were unanticipated by SCOTUS when they denied cert. Why have no other cases come up challenging or creating a circuit split? The 8A reasoning seems redonkulous and deserving of a "nah dog", so what happened?

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  10. Rmock

    I think we can resolve David's claim against the Manor House by considering his assumption that there would be a driver at whatever hour he arrived as if it were governed by a law requiring accommodation. David's expectation of a driver might be seen as a sort of disability, or a result of his exercise of his religion (in which, apparently, God has promised him he would never have to walk a mile in the rain at 1 AM).

    I have told a generation of undergraduate business law students that, while the standard for how much accommodation is required isn't precise, they should expect it to be essentially "reasonable accommodation" and thus a jury question. (I admit I have tended to lump disability and religious conviction into the same bucket. They are properly two buckets, or perhaps six, but I've kept it to one bucket for sake of simplicity, and because my goal in an undergrad business law class is not to make them lawyers, but to make them afraid, so they will consult lawyers when they need to.) (Next time I get a chance to teach that class, I will definitely tell them there are TWO buckets: one for accommodations that don't inconvenience anyone else significantly, and another one for accommodations that force someone else to do the thing you don't want to do.)

    So it's a jury question, whether it is reasonable to expect a rural Manor House to have drivers after midnight. Does it matter if rain is in the forecast? Does it matter if the customer is an Iraq veteran who can pack for a week in a lunch box, which I have personally witnessed to be within David's capability?

    If Sarah is called as a witness, her incredulity that David could expect such a thing is going to be pretty persuasive to the trier of fact.

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