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January 13, 2012


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Brian Ray

It's important to recall that Hibbs was a complete surprise at the time, coming on the heels of a consistent set of precedents limiting the Section 5 power to abrogate sovereign immunity as well as a nearly uniform set of lower court decisions applying those precedents to strike down the FMLA. It will be interesting to see if the current court reverts to the pre-Hibbs approach or does something different. The legislative record even for the other provisions of the FMLA was frankly pretty thin on actual recent violations by state employers (which is, after Boerne, the standard for demonstrating the scope of potential prophylactic protection), but the majority in Hibbs found it sufficient nonetheless.

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