Weekly Appellate Report Podcast

Appellate Practice

May 2017



Today's show regards two U.S. Supreme Court matters, one a cert denial in a widely-followed election law case, and the other a ruling reemphasizing - and perhaps extending - the high court's endorsement of arbitration as a means of dispute resolution.

The cert denial came in a case that's attracted national attention as a judicial bellwether defining just how much free range states now have, in a post-Shelby County v. Holder world, to enact legislation that's ostensibly designed to deter voter fraud but that many say unduly restricts the fundamental right of suffrage.

Here the case (North Carolina v. North Carolina State Conference of the NAACP) arose after North Carolina, freed of the Voting Rights Act's pre-clearance requirements, passed legislation that, among other things, restricted early voting and required voters to present certain forms of identification at the ballot box. The 4th Circuit eventually struck down those provisions, and did so by dint of novel legal reasoning, using partisan discrimination as a proxy for racial discrimination and, thereby, deeming the laws racially discriminatory.

Noted election law expert Professor Richard Hasen (UCI Law) will join me to unpack the cert denial, which comes as somewhat of a surprise, as four of the Shelby County majority remain on the bench, alongside newly-minted Justice Gorsuch. Professor Hasen explains the 4th Circuit's reasoning, how its novel theory impacts other voting law cases around the country, and what the future holds for this area of jurisprudence, clearly still in ferment just a few years after the Shelby County ruling.

Then I'll speak with Professor Adam Zimmerman, from Loyola Law School, about the U.S. Supreme Court arbitration ruling rendered Monday (in Kindred Nursing Centers Limited Partnership v. Clark), which strikes down a Kentucky Supreme Court ruling that the country's high court deemed to have discriminated against and subordinated arbitration as a means of dispute resolution, in contravention of the Federal Arbitration Act. While some legal analysts view the ruling as no more than a reaffirmance of SCOTUS' pro-arbitration stance, reiterated vigorously of late, Professor Zimmerman explains why this case might actually expand, slightly but meaningfully, the Court's endorsement of the alternate method of dispute resolution.

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