Labor and Employment Law Institute focuses on Justice Brandeis' legacy

If Supreme Court nominee Merrick Garland is not confirmed by July 20, 2016, he will beat Justice Louis Brandeis' 125-day record for the longest amount of time between a Supreme Court justice being nominated and confirmed. But that's not the only connection between Garland and Brandeis, said Lance Liebman, professor and former dean at Columbia Law School. Liebman delivered the keynote address June 9 at the 33rd annual Carl A. Warns and Edwin R. Render Labor and Employment Law Institute. "The 1916 to 2016 connection has not gotten as much attention as it should," Liebman said. Both Brandeis and Garland were nominated after justices died in election years, and both faced -- or are facing -- deeply contested confirmations, thanks in large part to politics. "The connections to this year from 100 years ago are just fascinating and overwhelming," Liebman said. 

But he was at the institute to consider another aspect of Brandeis' legacy: what he might think about modern American work law.

Liebman focused on companies like Uber, which act as intermediaries between those needing a service and those willing to provide the service. Uber, an on-demand ride service, does not claim its drivers as employees. Drivers use their own cars and set their own schedules, but Uber does have restrictions on what kind of cars can be used and manages how and when the drivers are paid.

"What would Brandeis say about that?" Liebman asked.

Brandeis emphasized facts and economics when forming legal opinions, he said, but there are not yet specific answers to questions about what such businesses will do about providing health care or regulating hours.

"We're not ready to do that in this particular area of change in the law," Liebman said. "A Brandeisian thinker would be a good thing in trying to figure this out."

View more photos from the event online.