UnCommon Law

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SPECIAL REPORT: The End of Affirmative Action in College Admissions Jul 01, 2023

Show notes

The Supreme Court has effectively ended the use of race as a factor in college admissions.

In a 6-3 ruling, along ideological lines, the divided Supreme Court struck down the admissions programs of Harvard and the University of North Carolina, which both used race as a factor in their admissions process.

Today, on this special edition of UnCommon Law, we’ll learn how the court came to its decision. And: Did the majority leave the door open for colleges to still consider race in some circumstances? We’ll learn why some supporters of affirmative action still have a glimmer of hope.

Featuring:

Ted Shaw — Professor at the University of North Carolina, and past president of the NAACP’s Legal Defense Fund
Michelle Adams — Professor at the University of Michigan Law School
Lee Bollinger — Outgoing president of Columbia University, and former president of the University of Michigan
Edward Blum, president of Students for Fair Admissions

4. The Case Against the FTC's Proposed Ban on Noncompetes Jun 28, 2023

Show notes

In its proposal to ban noncompete agreements nationwide, the Federal Trade Commission has touted the potential benefits to workers and the economy. But how would a ban impact business owners?

This week on UnCommon Law, part four of our series on the agency's proposal. Why are so many business owners so adamant that they need to be able to use noncompetes, even when other legal tools — like trade secret laws and nonsolicitation agreements — might protect companies without limiting employee mobility?

Featuring:

Russell Beck, trade secrets and employment mobility lawyer; founder at Beck Reed Riden LLP
Paul Dacier, EVP and general counsel at Indigo Agriculture; formerly EVP and general counsel at EMC Corporation
Syreeta Mitchell, president and CEO of MPower Logistics

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Host/Producer: Matthew S. Schwartz

Editor/Executive Producer: Josh Block

Cover Art: Jonathan Hurtarte

3. Did California's Noncompete Ban Fuel Silicon Valley Innovation? Jun 21, 2023

Show notes

California is one of just three states where noncompete agreements are almost completely banned. California is also the home of Silicon Valley, the global hub of technological innovation. Is that just a coincidence? Or would Silicon Valley be as successful even if noncompete agreements were allowed?

This week on UnCommon Law, part three of our ongoing series on the Federal Trade Commission's proposal to ban noncompete agreements nationwide. Is California’s ban on noncompete agreements really a key component to Silicon Valley’s success?

Guests:

Evan Starr, professor at University of Maryland
Margaret O'Mara, professor at the University of Washington
Ronald Gilson, professor emeritus at Columbia Law School and Stanford Law School
David Schultz, host of Bloomberg Law's On the Merits

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Host/Producer: Matthew S. Schwartz

Editor/Executive Producer: Josh Block

Cover Art: Jonathan Hurtarte

2. A Hair Stylist and Salon's Legal Battle: A Noncompete Case Study Jun 07, 2023

Show notes

This week on Uncommon Law: the second episode in our podcast series about the Federal Trade Commission’s proposed nationwide ban on noncompete agreements. We’ll look at one Minnesota hair salon and see how noncompete agreements often play out in the real world. What happens when employees leave the hair salon and try to strike out on their own?

Guests:

Heidi Hautala, a hair stylist in Minnesota
Evan Starr, professor at University of Maryland
Emily Olson, a hair stylist in Minnesota
Kylee Simonson, owner of Simonson's Salon & Spa
Chris Penwell, attorney at Siegel Brill

The case discussed in this episode is Simonson's Salon and Spa vs. Heidi Hautala, Docket No. 27-CV-15-5647 (Minn. Dist. Ct. Apr 03, 2015)

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Host/Producer: Matthew S. Schwartz

Editor/Executive Producer: Josh Block

Cover Art: Jonathan Hurtarte

1. 'She Can't Own Me': Inside the FTC's Proposed Ban on Noncompetes May 31, 2023

Show notes

This season on UnCommon Law, we’re exploring one of the most expansive Federal Trade Commission proposals of the last half century: a near-total nationwide ban on noncompete clauses. We’ll examine arguments for the ban, and talk to workers who’ve had their livelihoods crushed by oppressive covenants not to compete. We’ll look at arguments in favor of keeping noncompetes, and talk with business owners who say they’re crucial for keeping trade secrets confidential and protecting business relationships. Finally, we’ll explore a more fundamental question: Does the FTC even have the legal authority to do this?

Our first episode explores how this unprecedented proposal came to be. To understand just how out-of-the-ordinary this proposal is, we'll journey into the history of the agency, whose past rulemakings got them labeled the "national nanny" by the Washington Post, and led to threats of defunding.

Guests:

Emily Olson, hair stylist
Leah Nylen, Bloomberg News reporter
Sandeep Vaheesan, legal director of the Open Markets Institute
Evan Starr, professor at the University of Maryland

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Host/Producer: Matthew S. Schwartz

Editor/Executive Producer: Josh Block

Cover Art: Jonathan Hurtarte

Why Does the FTC Want to Banish Noncompetes? [Trailer] May 24, 2023

Show notes

This season on UnCommon Law, we’re exploring one of the most expansive Federal Trade Commission proposals in modern history: a nationwide ban on noncompete clauses. Coming May 31st.

4. Affirmative Action's Diversity Dilemma Spells Its Doom Dec 22, 2022

Show notes

It’s been almost 20 years since Justice Sandra Day O’Connor, intentionally or not, set an affirmative action countdown in motion. On Oct. 31, the Supreme Court heard arguments that Harvard and the University of North Carolina go too far in their use of race in admissions. Will the diversity rationale — the heart of affirmative action defenses since 1978 — convince this staunchly conservative court?

Also, while diversity has been the reason affirmative action has survived legal tests — was it ever the best reason, under the Constitution, for affirmative action? Or have advocates been hamstrung by an argument that doesn't go far enough?

Are race-conscious admissions policies about to fall? The conclusion to our four-part series on affirmative action at the Supreme Court.

Guests:

Edward Blum, president of Students for Fair Admissions
William Lee, partner at WilmerHale
Kimberly Robinson, Supreme Court reporter for Bloomberg Law
Lee Bollinger, president of Columbia University
Ted Shaw, professor at the University of North Carolina School of Law
Michelle Adams, professor at the University of Michigan Law School

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Host/Producer: Matthew S. Schwartz

Editor/Executive Producer: Josh Block

Cover Art: Jonathan Hurtarte

3. Meet Affirmative Action's Biggest Foe, Edward Blum Dec 15, 2022

Show notes

For decades, over multiple decisions, the Supreme Court has been clear: The U.S. Constitution allows colleges to take race into account when they craft their incoming classes. And yet race-conscious admissions policies continue to face attacks.

Today, on part three of our four-part series on affirmative action, we’ll meet the man who has perhaps done more than any other in recent memory fighting to end the use of race in America’s public policies. Will Edward Blum be successful in convincing today’s solidly conservative high court to end affirmative action in education?

Guests:

Edward Blum, president of Students for Fair Admissions
Ted Shaw, professor at the University of North Carolina School of Law
Garrett Epps, professor at the University of Oregon School of Law

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Host/Producer: Matthew S. Schwartz

Editor/Executive Producer: Josh Block

Cover Art: Jonathan Hurtarte

2. Diversity on Trial: Affirmative Action's Michigan Test Nov 15, 2022

Show notes

In 1978, the Supreme Court allowed colleges to take race into account when crafting their incoming classes. Throughout the '80s and '90s, that’s what many schools did: To get a diverse incoming class, universities used race as one factor among many.

But some schools get a lot of applicants — tens of thousands of students applying for just a few thousand spots. How do you complete an individualized review of so many people? How do you make sure you consider race consistently across those tens of thousands? Is there a way to streamline the process while still complying with what Justice Lewis F. Powell, Jr. said the Equal Protection Clause requires?

This is the second episode of UnCommon Law's three-part series about the Supreme Court's biggest affirmative action in education cases. In the first episode we looked at the 1978 case of Allan Bakke, an applicant to medical school who was denied admission. In this episode, we explore the 2003 cases of Gratz v. Bollinger and Grutter v. Bollinger.

Guests include:

Diego Bernal — Texas state representative and former president of the Latino Law Students Association at the University of Michigan Law School
Michelle Adams — Professor at the University of Michigan Law School
Greg Stohr — Supreme Court reporter for Bloomberg News
Ted Shaw — Professor at the University of North Carolina, and former president of the NAACP’s Legal Defense Fund
Terence Pell — President of the Center for Individual Rights
Marvin Krislov — President of Pace University, and former vice president and general counsel at the University of Michigan
Lee Bollinger — President of Columbia University, and former president of the University of Michigan
Agnes Aleobua — Principal of Citizens Academy Glenville in Cleveland, and former student intervenor at the University of Michigan
Cristina Rodríguez — Professor at Yale Law School and former clerk to Supreme Court Justice Sandra Day O’Connor

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Host/Producer: Matthew S. Schwartz

Editor/Executive Producer: Josh Block

Cover Art: Jonathan Hurtarte

1. Affirmative Action Faces Toughest Test in a Generation Oct 25, 2022

Show notes

For more than 50 years, colleges and universities around the country have taken race into account as they craft their incoming classes. But now a pair of lawsuits could change the face of higher education in this country. It’s the biggest challenge to affirmative action in a generation. And, given the makeup of this Supreme Court, it is very likely affirmative action in college admissions could be found unconstitutional.

Over three episodes, we will explore the legal issues around affirmative action in higher education. Does the equal protection clause of the Fourteenth Amendment prohibit all discrimination based on race? Or is benign discrimination permissible — taking race into account in order to help groups that have been marginalized? Does the constitution leave room to remedy society’s ills?

In this episode, we explore the 1978 case of Regents of the University of California v. Bakke — the first challenge to affirmative action decided by the Supreme Court. Guests include:

* Robert “Bo” Links — Attorney for Allan Bakke
* Michelle Adams — Professor at the University of Michigan Law School
* Ted Shaw — Professor at the University of North Carolina, and former president of the NAACP’s Legal Defense Fund
* Garrett Epps — Professor at the University of Oregon School of Law
* John Jeffries — Former dean of the University of Virginia School of Law

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Host/Producer: Matthew S. Schwartz

Editor/Executive Producer: Josh Block

Cover Art: Jonathan Hurtarte

To comment on this episode, tag @BLaw and @SchwartzReports on Twitter!

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