Tuesday, December 10, 2013

Digging Mulhall

Supreme CourtToday, the Supreme Court dismissed the Mulhall case (see herehere, and here) as improvidently granted.  There was a dissent by Justice Breyer (joined by Justices Kagan and Sotomayor).  The dissent noted that the Court was concerned about the possibility that the case was moot (because the agreement in question expired) or that the plaintiff lacked standing (because he lived in a right-to-work state).  The dissent would have preferred that the Court rule on these questions and, if either apply, vacate the Eleventh Circuit's decision to remove any precedential value.

The dissent also raised another possible procedural hurdle:  whether Section 302 grants a private right of action.  You can file this argument under "what's good for the goose, is good for the gander."  The dissent noted that the Court long ago said such a right of action existed, but then noted that the Court's jursidprudence has since become much more restrictive against recognizing private rights of action.

For a case that ultimately had no decision, Mulhall has been extraordinarily interesting.  Expect to see many of these questions raised again soon.

-JH

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