Ferguson ’18 and Sowers ’19 prevail in final round of Dean’s Cup moot court tournament

February 21, 2018Duke Law News

Zach Ferguson ’18 and Will Sowers ’19 were awarded the 2018 Dean’s Cup by a three-judge panel after squaring off against Zack Ezor ’19 and Meredith Compton ’19 in the final round the moot court tournament on Feb. 20. The four finalists had briefed and argued a highly complex case involving right-to-work laws and the Fifth Amendment’s Takings Clause.

Judge Srikanth Srinivasan of the U.S. Court of Appeals for the D.C. Circuit, who served as the panel’s chief judge, called the competition “incredibly close,” praising all the competitors for their oral advocacy and “tremendously clear and insightful briefs,” noting the difficulty of the issues presented by the Seventh Circuit case Int'l Union of Operating Eng'rs Local 139 v. Schimel.

“This is a hard problem, not just in the sense that it’s hard to decide who was right — it’s actually hard to understand,” he said. “Not just. This is conceptually a very difficult issue and even just on the statute, just trying to figure out how these provisions interrelate, you have to draw Venn diagrams. I think you’re all to be commended for keeping it well-organized in your own minds and in your presentations, so kudos to you.”

Judge Amul Roger Thapar of the U.S. Court of Appeals for the Sixth Circuit and Judge Pamela Harris of the U.S. Court of Appeals for the Fourth Circuit also praised the quality of the students’ advocacy.

Ferguson and Sowers argued for the state of Wisconsin — the respondent — in the case, defending the state’s right-to-work law, which bans requirements that employment be conditioned on membership in a union. The petitioners, labor unions represented by Compton and Ezor, argued that the law violates the National Labor Relations Act (NLRA), and that, because it allows non-dues paying employees to benefit from labor negotiations, it constitutes an illegal taking under the Fifth Amendment’s Takings Clause, which states that "private property [shall not] be taken for public use, without just compensation."

“This case is about preserving the balance … between robust federal protections for unions and a discrete, narrower authority reserved to states,” Compton argued. “Wisconsin Act I upends this balance by eliminating the ability for unions to seek any compensation from non-members in violation of federal law and violation of the Fifth Amendment.”

Compton argued that the NLRA preempts the Wisconsin law, while Ezor contended that the Takings Clause does not allow Wisconsin to require unions to provide free services to non-union members.

Ferguson and Sowers argued that the 1947 Taft-Hartley Act empowers states to enact right-to-work laws such as Wisconsin’s, and that only a “tortured” reading of the Takings Clause would interpret preventing unions from charging dues to non-members as a “taking.”

“The union has asked this court to do two things no federal appeals court has done in the history of the Taft-Hartley Act,” Ferguson said. “First they asked the court to invalidate the right-to-work laws in 28 states by effectively reading section 14b [which enables the creation of such laws] out of the statute. Second, they ask this court to hold that the union’s services are property and that the government commits a taking whenever it prevents unions from charging non-members for services they never asked for in the first place.”

The judges peppered all the student advocates with questions about the seeming tension between the NLRA and right-to-work laws, and what defines just compensation under the Takings Clause, among other issues involved in the case. They were impressed, Judge Harris said, that the students did not shy away from addressing the complex questions presented by the case.

“I’m much more accustomed to having students [in moot court arguments] try to protect themselves by going back to case law,” she said. “You guys were great — you stepped up to the hard questions. I thought you were right where we were in terms of our concerns and genuine questions. I think it’s very unusual and I was really impressed.”

Thapar also praised the students’ acumen and poise.

“I thought this problem was incredibly complex for moot court, and you all did a really great job of distilling it,” he said. “As a contingency for doing moot courts, you all should have to do pro bono work in our courts. I should have cut that bargain. I’ve done 10 years of judging and 10 years of moot courts and I’ve never seen anyone better.”

 

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