Ted Frank on the Dukes v. Wal-Mart class action

The problem, Ted writes in the Examiner, isn’t that the class action is “too large” — even very large classes can sometimes fit the law’s requirements that each claim be identical in nature and capable of standing or falling together.

But the theory of the Dukes lawsuit is exactly the opposite: the plaintiffs claimed that Wal-Mart’s central office did not exercise enough authority over each of its 3,400 stores; each of the individual managers’ discretionary employment or promotion decisions–whether made by male or female managers–was, on average, discriminatory; and thus Wal-Mart was responsible for a policy that “fosters or facilitates” discrimination. …

The discrimination laws permit Wal-Mart to defend itself by demonstrating that the challenged job decision was made for a reason other than gender. For example, looking at Betty Dukes, the named plaintiff, alone, we learn that she had a female manager and that she was repeatedly disciplined for returning late from lunch breaks. …Wal-Mart is stripped of its defense because the individualized defense would be inconvenient to trying the case as a class action. …

If the Supreme Court rules in Wal-Mart’s favor later this year, it will not be to protect business, but to protect due process.

December 20 roundup

  • Texas Gov. Rick Perry may urge the state to take a step toward loser-pays [NJLRA]
  • “FCC push to regulate news draws fire” [The Hill]
  • Could litigation on behalf of Madoff victims get more than all their money back? [Salmon, more, NYT, Above the Law]
  • “Chevron Says Documents Show Ecuador Plaintiffs Worked With Government” [Dan Fisher/Forbes, more]
  • Organized trial lawyers expect to fare less well in next Congress, but prospects for actual liability reform remain slender [Joseph Weber/Wash. Times, Matthew Boyle/Daily Caller]
  • Mount Laurel rulings in New Jersey (towns given quotas to build low-income housing) described as “libertarian”, I express doubts [Hills, Prawfsblawg]
  • Criminal law’s revolving door: “prosecutors turn up the fire and then sell extinguishers” [Ribstein, TotM]
  • The wages of unconstitutionality: a Utah attorney’s curious fee niche [five years ago on Overlawyered]

“RuneScape devs refuse to cave in to patent trolls”

A UK game developer spent “tens of millions” successfully resisting a broad patent claim over online multiplayer gaming. [BoingBoing, GamaSutra]

“It is exceedingly unfortunate that the U.S. legal system can force a company with a sole presence in Cambridge, UK to incur a seven-digit expense and waste over a year of management time on a case with absolutely no merit,” [said company CEO Mark Gerhard] in a statement. “This anomaly, which could easily break smaller studios, doesn’t happen in the UK since you can pursue frivolous litigants for the costs of such claims,” he added.

CPSC vs. drop-side cribs

Lenore Skenazy: “As for cribs, one reason the drop-side models seem so ‘dangerous’ is because they are so popular. When you have millions of people using anything, no matter how safe, the odds of an accident go up because the odds go up with the numbers. … These products are not deadly. There’s a difference between a deadly product (cyanide) and a product that sometimes results in death (a grape). We keep obscuring that difference, and congratulating the folks who act as if it is only a lack of vigilance that allows anyone to die of anything other than old age.” More: Nick Farr, Abnormal Use; Rick Woldenberg.

Jim Copland on intrusive corporate prosecution

The dangers of “Deferred Prosecution Agreements” and “Non-Prosecution Agreements,” under which companies under investigation, in exchange for federal leniency, may agree to a wide variety of promises as to future conduct — including many that a court would not or could not have imposed, and which may sell out the legitimate interests of employees or other third parties. [Manhattan Institute]