Via Paul Secunda at the Workplace Prof Blog, I have learned the news of the day: Senator Tom Harkin has introduced a bill to overturn the shameful Coke opinion issued by the Supreme Court last year. As you likely know, I’ve been fixated on the Coke case for a number of years — and this really would be a very nice conclusion. It doesn’t change the weird administrative law ramifications of the Coke decision — but it would do something far more important: get home health care workers overtime and the minimum wage.
Posted by Ethan Leib on September 26, 2007 at 12:17 PM
Comments
perhaps my excessive use of question marks made my post seem more aggressive than it was meant to be.
i guess i just don’t find anything “shameful” about a unanimous court opinion dealing with an obscure administrative law question, even though the ultimate disposition of the case is an unfortunate result for those situated similarly to the petitioner (although, increase wages –> fewer jobs . . .)
Posted by: andy | Sep 27, 2007 4:16:48 PM
I don’t think unanimity is definitive evidence about a decision’s shamefulness. Nor do I think law professors are disabled from having emotional reactions to cases, unanimously decided or otherwise. Nor do I think one has to find a “conspiracy” to believe that a case was unanimously decided shamefully. The “law giver” here — the DOL — did enact a shameful rule. But that rule was, I think, inconsistent (or very likely inconsistent) with the enabling statute. Yes, it is good for Congress to come and fix it (and we really are a long way from that!). But that became necessary only because the Court — whose job it is to have the enabling statute trump an agency’s ad hoc rationalizations for a largely inconsistent set of regulations — decided to be complicit in the agency’s law-giving by fashioning bizarre rules of administrative law. The fact that the Second Circuit twice decided unanimously that previous Supreme Court precedent required a different result might help you tone down your rhetoric.
Posted by: Ethan Leib | Sep 27, 2007 10:33:13 AM
“Senator Tom Harkin has introduced a bill to overturn the shameful Coke opinion issued by the Supreme Court last year.”
“shameful”? If an opinion is unanimous, don’t you think you should be blaming Congress and the agencies, rather than the Court? do you think all nine justicies conspired to hurt home health care workers? Isn’t the more natural conclusion that the lawgiver, and not the law interpreter, had enacted a “shameful” rule?
i expect the public at large to attribute the contents of judicial opinions to the individual justices, but to see this on a professors’ blog is somewhat surprising. a more neutral response would be to say that the legislature is overturning the law at issue in Coke, not the shameful practices of the justices.
Posted by: andy | Sep 27, 2007 4:49:37 AM