“…I Don’t Think ‘Moderate’ Means What You Think It Means” [David Lat, Above the Law]
Posts Tagged ‘Supreme Court’
Wal-Mart v. Dukes: some early analysis
Yesterday’s decision was the most momentous Supreme Court pronouncement on class actions in many years, addressing issues that go far beyond the case at hand. A sampling of early analysis:
* Some consideration of merits okay at certification stage. Paul Karlsgodt:
For more than 30 years, plaintiffs’ counsel and many courts have cited the Court’s opinion in Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) as prohibiting any examination of the plaintiffs’ claims on the merits at the class certification phase. Consistent with the majority trend in the lower federal courts, the Supreme Court’s decision in Wal-Mart Stores, Inc. confirms that a court should consider and resolve any issues of fact that are necessary to determine whether one or more elements of Rule 23 are satisfied, regardless of whether those issues may overlap or be identical to one or more issues to be decided in ruling on the merits of the plaintiff’s claims.
In its day the Eisen case was a milestone in the 1960s-1970s liberalization of class action procedure, and seemed at the time to authorize the plaintiff’s side to dream up all the actions it wanted while the defense side could not block the actions at the certification stage by pointing out that they were bogus on the merits. Russell Jackson bluntly assesses the case’s fate: “Stick a fork in Eisen v. Carlisle & Jacquelin. It’s done!”
* Statistical proofs can’t be used to bypass individualized defenses. At least in the context of back pay discrimination claims, all nine justices agreed that the company had a right to assert individualized defenses based on the details of particular cases rather than simply hand over a giant damage check based on some formula derived from statistical testimony. In particular, the Court said:
Because the Rules Enabling Act forbids interpreting Rule 23 to “abridge, enlarge, or modify any substantive right,” a class cannot be certified on the premise that Wal-Mart will not be entitled to litigate its statutory defenses to individual claims.
Russell Jackson draws out implications for actions far removed from the employment context:
This means that third-party-payor claims and consumer fraud class actions will not be able to prove causation or reliance using statistical proof like that proposed and rejected in McLaughlin v. American Tobacco Co., 522 F.3d 215 (2d Cir. 2008) in order to facilitate class certification. This is BIG NEWS!!!
* Subjective managerial discretion under less suspicion. Returning to the employment context, a key issue in the case is whether plaintiffs could assert the requisite common question by challenging Wal-Mart’s delegation of decentralized discretion to store managers over many issues of pay and promotion. The Court majority refused to entertain such a challenge. Michael Fox:
The 5-4 opinion seems to pull the teeth from what I have always considered one of the more dangerous Supreme Court opinions, Watson v. Fort Worth Bank and Trust, a 1988 decision which seemed to permit a disparate impact case any time an employer’s promotion practices were subjective (which was every employer) and there was a disparate impact (almost every employer).
If Fox is right, this is a giant step in the right direction, and helps correct a pernicious tendency in modern employment law to pressure large employers into maintaining more centralized (and inevitably more bureaucratic) personnel policies.
Law, fairness, and Wal-Mart v. Dukes
I’ve got an instant analysis up at Cato at Liberty of the retailer’s big Supreme Court win today in Wal-Mart v. Dukes, the class action certification case. The Court ruled unanimously that the Ninth Circuit had jumped the gun in certifying the case as a class action, and 5-to-4 (Scalia writing) that plaintiffs had failed to assemble the evidence needed for certification. (& welcome Real Clear Politics “Best of the Blogs”, Atlantic Wire, Nicole Neily/Daily Caller, Jon Hyman, SCOTUSBlog)
More: Josh Blackman (with a comment on the Court’s recognition of the work of the late Richard Nagareda), Hans Bader, Jim Copland, John Steele Gordon. Spot-the-errors dept.: Dahlia Lithwick. Briefs and other resources on the case at SCOTUSBlog.
Podcast interview: Cato’s Ilya Shapiro
David Kopel of the Independence Institute interviews my Cato Institute colleague Ilya Shapiro on Cato’s active amicus-filing program, ObamaCare challenges, “Libertarian ConLaw 101,” and more. You can listen here.
Wal-Mart v. Dukes symposium at Point of Law
The distinguished panel includes Lester Brickman and Myriam Gilles (Cardozo), Richard Epstein (NYU), Jim Copland and Ted Frank (Manhattan Institute), R. Matthew Cairns (Gallagher, Callahan & Gartrell and the 2011 president of the Defense Research Institute), Russell Jackson (Skadden), and Andrew Trask (McGuire Woods). You can follow the discussion here.
Fastening ethics rules on the U.S. Supreme Court
Easier said than done, especially given the mandates of the Constitution about the structure of the judiciary, warns Brookings’s Russell Wheeler. Relatedly, Ed Whelan at NRO “Bench Memos” scrutinizes the ethics charges floated by some left-leaning groups against Justices Scalia and Thomas in recent weeks (parts one, two, three).
March 3 roundup
- EU imposes unisex insurance rates [BBC, Wright]
- Law blog on the offense? TechnoLawyer asserts trademark claim against Lawyerist over “Small Law” [Lawyerist]
- “Pro-business Supreme Court” meme strikes out yet again as SCOTUS backs “cat’s-paw” bias suit theory by 8-0-2 margin [Josh Blackman, Schwartz, Fox; Lithwick locus classicus]
- Subprime CDO manager sues financial writer Michael Lewis over statements in his book The Big Short [AW, Salmon, Kennerly]
- Police in Surrey, England, deny advising garden shed owners not to use wire mesh against burglars [Volokh, earlier]
- Patterns of intimidation: protesters swarm Speaker Boehner’s private residence [Hollingsworth, Examiner] Unions fighting Wal-Mart in NYC plan actions at board members’ homes [Stoll] Report: GOP lawmakers in Wisconsin fear for personal safety [Nordlinger, NRO] White House pushing street protests [Welch, Nordlinger] Age of Civility short lived [Badger Blogger, Althouse, Sullivan]
- In clash with trial lawyers, Cuomo proposes pain and suffering limits in med-mal suits [NYDN, more: NYT] “Bloomberg looks to Texas for ideas on changing medical malpractice laws” [City Hall News]
- Hey, should we seize his drum set? Infuriating video on cop raids and forfeiture laws [Institute for Justice, Michigan]
What judges do and how it’s misunderstood
Justice Samuel Alito’s Wriston Lecture before the Manhattan Institute last fall is now online.
(Still) misreporting Citizens United
At The Atlantic, civil libertarian Wendy Kaminer catches Washington Post columnist Katrina Vanden Heuvel misrepresenting the role of campaign spending in the defeat of Wisconsin Sen. Russ Feingold, and the New York Times — in a more appalling lapse of journalistic standards — digging in to defend gross misstatements about the high court’s opinion.
January 26 roundup
- Cato Institute scholars liveblog reaction to State of the Union speech and GOP response, plus video on Facebook with Gene Healy and Julian Sanchez, more video;
- Private store owners get beaten up for lack of ADA ramps. On the other hand, when the federal government is building courthouses… [Sun-Sentinel; earlier here and here]
- “Securities suits filed in 2010 again a record” [Business Insurance]
- Do mass tort “claims facilities” enable participants to bypass the strictures of legal ethics? [Monroe Freedman, Legal Ethics Forum]
- Latest workplace-retaliation ruling once more undermines “pro-business Supreme Court” narrative [Bader, Examiner, more]
- Jacob Sullum reviews Daniel Okrent book on Prohibition [Reason]
- Another “lawyers excited about coming wave of bet-the-company climate change suits” article [AFP]
- Dickie Scruggs: “It was never about the money for me, this litigation” [four years ago on Overlawyered]