Amy Howe Independent Contractor and Reporter
Posted Mon, October 2nd, 2017 2:50 pm
Argument analysis: An epic day for employers in arbitration case?
In the first oral argument of the new term, a divided Supreme Court seemed likely to uphold employment agreements that require an an employee to resolve a dispute with an employer through individual arbitration, waiving the possibility of proceeding collectively. The conflict among the justices could be captured by two exchanges this morning. The first came when Chief Justice John Roberts, in a back-and-forth with University of Virginia law professor Daniel Ortiz, who represented one of the employees in the case, observed that a decision in favor of Ortiz’s client would invalidate employment agreements covering 25 million people – a step that several of the justices would be reluctant to take, particularly given the court’s strong support of arbitration in recent years. Justice Stephen Breyer, on the other hand, had a very different concern: He told Paul Clement, who represented the employers in the case, that he had not seen a path for Clement’s clients to win without “undermining and changing radically” the labor laws that are the “entire heart of the New Deal.”
Before the justices turned to the oral argument in
Epic Systems Corp. v. Lewis (which was consolidated with two other cases,
Ernst & Young LLP v. Morris and
National Labor Relations Board v. Murphy Oil USA), there were opening-day ceremonies to deal with. The chief justice began the session by indicating that he had the “honor to announce” the end of October Term 2016 and to convene the new 2017 term. Roberts then recognized and honored Deputy Solicitor General Jeffrey Wall, who until recently served as the acting solicitor general – including for much of the extensive litigation over President Donald Trump’s March 6 executive order banning travel to the United States from six Muslim-majority countries. From the lectern, Wall introduced Solicitor General Noel Francisco, who was recently confirmed; the chief justice welcomed Francisco to what he described as the “important office” that Francisco has assumed.
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Recommended Citation: Amy Howe, Argument analysis: An epic day for employers in arbitration case?, SCOTUSblog (Oct. 2, 2017, 2:50 PM),
http://www.scotusblog.com/2017/10/argument-analysis-epic-day-employers-arbitration-case/Daniel Ortiz, who came to Virginia in 1985, has a wide variety of interests. A Phi Beta Kappa and summa cum laude Yale graduate, he earned a triple major in mathematics, English and history, the arts and letters. Now as a member of the Virginia law faculty, he teaches constitutional law, administrative law, electoral law, civil procedure and legal theory. In 1992 he received the Z Society Distinguished Teaching Award at the University of Virginia. He served as the Harrison Foundation Research Professor in 1992-95, the Elizabeth D. and Richard A. Merrill Research Professor in 1996-99, and the Joseph C. Carter, Jr., Research Professor in 2000-03.
After graduation from Yale, Ortiz spent two years on a Marshall Scholarship at Oxford University, where he completed a Master of Philosophy degree in English studies. Then he returned to Yale for law school and received his J.D. in 1983. He clerked for Judge Stephen G. Breyer of the U.S. Court of Appeals for the First Circuit in Boston and for U.S. Supreme Court Justice Lewis F. Powell, Jr. He was a visiting professor at the University of Southern California in 1991 and 1994-96 and at the University of California at Berkeley (Boalt Hall) in 1999.
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