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ABA Journal of Labor and Employment Law




During its 2013-14 term, the Supreme Court focused on labor relations, wage and hour law, whistleblowing, and employee benefits in several cases. The Court also addressed constitutional issues concerning the First Amendment, the Recess Appointments Clause, and affirmative action. The Court did not decide any employment discrimination cases during the term. Even without employment discrimination cases, the 2013-2014 term provided ten key cases of importance to labor and employment lawyers. Three of these cases involved distinctly different matters of concern for organized labor. Two cases addressed employee whistleblowing matters. Three cases focused on employee benefits. Two cases addressed issues tangentially-related to employment law. One case involved affirmative action. Another case addressed taxation of severance payments.

In assessing the past term, one has to note the remarkable number of unanimous rulings. On the other hand, many of those "unanimous" decisions arose from general agreement on a limited result with blistering opinions questioning the majority's rationale. At one point, commentators even referred to the unanimity of the Supreme Court this past term as "specious" or "faux-nanimity." To explore the common theme of false unanimity, this Article reviews both the unanimous components of the decisions as well as the Justices’ existing divisions, especially over different approaches to interpreting the meaning of words. Finally, the Article identifies the significance of the Supreme Court’s 2013-14 labor and employment decisions and forecasts similar issues likely in store for the Court in the near future.

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American Bar Association



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