Split Supreme Court Overturns Jury Award for Wrongfully Convicted Former Death Row Inmate

Connick v. Thompson stemmed from an appeal of a $14 million jury award to an innocent man who spent 14 years on death row after prosecutors failed to turn over exculpatory evidence to his lawyers that would have prevented his conviction. This week a narrow majority of the Court exonerated Harry Connick, the former Orleans Parish District Attorney, of liability for the lack of training he provided to the prosecutors who worked in his office regarding their obligations to disclose exculpatory evidence to defendants.

More than 14 years ago, John Thompson was accused of a high-profile murder. Following the publicity surrounding the murder accusation, victims of an unrelated armed robbery came forward and accused Thompson of that robbery. Thompson was convicted of the robbery after prosecutors hid the fact that the robber’s blood type did not match Thompson’s. In the subsequent murder trial, Thompson did not testify to rebut the charges against him because doing so would have allowed his robbery conviction to be entered into evidence. Thompson was convicted of murder and spent 14 years on death row. Thompson’s private investigator found the exculpatory blood evidence one month before his scheduled execution. As a result, both of Thompson’s convictions were vacated.

Following his release, Thompson won $14 million in damages for the District Attorney’s failure to train prosecutors that they are required to disclose exculpatory evidence to defendants under Brady v. Maryland. The District Attorney appealed this award, arguing that he could not be liable based on a single violation unless strong indications existed that training was necessary.

Justice Thomas, writing for the Court, reversed the award, holding that “Thompson did not prove that [Connick] was on actual or constructive notice of, and therefore deliberately indifferent to, a need for more or different Brady training.” The Court disregarded four Orleans Parish convictions that were reversed in the 10 years prior to Thompson’s armed robbery trial because of Brady violations, stating that the reversals “could not have put Connick on notice that the office’s Brady training was inadequate with respect to the sort of Brady violation at issue here.” The Court also found that a District Attorney needs to provide less training than other municipal officials because subordinate prosecutors are generally trained to understand legal duties and have professional standards they must adhere to.

Justice Ginsburg issued a scathing dissent, which she read from on the bench. The dissent criticized the Court's decision by detailing a litany of Brady shortcomings to show that “the evidence demonstrated that misperception and disregard of Brady’s disclosure requirements were pervasive in Orleans Parish.” In addition to the blood evidence, the dissent discussed the prosecution’s failure to inform Thompson of several pieces of evidence that called into question the credibility of key witnesses. Justice Ginsburg wrote that “it was hardly surprising that Brady violations in fact occurred” since: “(1) Connick, the Office’s sole policymaker, misunderstood Brady. (2) Other leaders in the Office, who boar direct responsibility for training less experienced prosecutors, were similarly uninformed about Brady. (3) Prosecutors in the Office received no Brady training. (4) The Office shirked its responsibility to keep prosecutors abreast of relevant legal developments concerning Brady requirements.” The dissent characterized the District Attorney’s Office as a “tinderbox” in which “Brady violations were nigh inevitable.” Thompson’s expert witness called Connick’s supervision of prosecutors on Brady “the blind leading the blind.”

The four dissenting justices also responded to the majority’s argument that the general legal training all lawyers receive is sufficient to diminish a District Attorney’s Brady training obligations by noting that most law schools do not require students to take criminal procedure and that continuing legal education was not required of lawyers in Louisiana when the case was heard.

District attorneys will now have less of an incentive to ensure that the prosecutors who work for them understand their legal obligations. As a result, innocent criminal defendants may never learn of favorable evidence that could save their lives and ensure their freedom.

Click here for coverage of the decision in the New York Times.

Alliance for Justice Submits Testimony on Muslim Civil Rights

The following testimony was submitted to the United States Senate Judiciary Committee Subcommittee on the Constitution, Civil Rights and Human Rights:
Alliance for Justice is a national association of over 100 organizations dedicated to advancing justice and democracy. We have an unshakable belief in the right of all Americans to practice their religion without interference and that no citizen should ever be afraid to worship, establish religious communities, or speak openly about their religious precepts. Efforts to broadly demonize the Muslim religion or its adherents are contrary to the most fundamental principles that undergird our nation’s values and our Constitution, which guarantees to all Americans an inalienable right to freedom of religion, speech, and peaceable assembly.

It is deeply disturbing to see individuals, organizations, and members of the media intentionally advance bigotry and promote intolerant acts against Muslims, but it is unconscionable for those holding public office to participate in such efforts. Recent efforts by members of Congress to denigrate an entire group of citizens by tarring them as radicals, extremists, or terrorist sympathizers, should not go unanswered and today’s hearings are a welcome and hopeful sign that our nation has not forgotten its foundational principles.

When any group is singled out for persecution or investigation, based on nothing more than its religious affiliation, we all lose a measure of our own liberty. The fabric of our free society is eroded when all Muslims are painted as terrorists or potential criminals, despite clear evidence to the contrary, and in spite of the unambiguous message from law enforcement agencies that American Muslims have been active and willing partners in the effort to protect the nation from terrorist attacks. The notion of collective guilt is utterly anathema to American principles and must be rejected without equivocation.

Nothing could do more damage to our ability to protect ourselves from violence than to cut off from American life the very people whose cooperation is desired to help identify those who mean us harm. Our strength as a nation comes from our diversity and from a belief in a common destiny. Scapegoating the entire Muslim community for the acts of a few and directing unremitting hate speech at Muslim beliefs and institutions only serves to create a gulf that divides neighbor from neighbor and weakens the fabric of our society at a time when unity is essential.

The subcommittee and Chairman Durbin are to be commended for standing forthrightly for religious freedom, and reminding us that we are one people untied by a shared belief in tolerance, diversity, and liberty.

Consumers’ Ability to Hold Drug Companies Accountable for Inadequate Warnings at Stake in Supreme Court

The Supreme Court will hear oral arguments today in the consolidated cases of PLIVA v. Mensing, Actavis Elizabeth, L.L.C. v. Mensing, and Actavis, Inc. v. Demahy. At stake is the ability of consumers to keep pharmaceutical companies honest about the potential danger their drugs pose. The Court must decide whether Hatch-Waxman Amendment provisions governing the labeling of generic prescription drugs preclude state claims against a pharmaceutical company for failing to adequately warn consumers about health risks.

Gladys Mensing sued PLIVA for failure to warn and misrepresentation in state court after a generic drug that PLIVA manufactured caused her to develop a severe and irreversible neurological movement disorder. Mensing claims that PLIVA failed to take steps to change the label warnings despite mounting evidence that the drug carried a far greater risk of the disorder than initially indicated.

PLIVA argues that federal law impliedly preempts Mensing's state claims. PLIVA claims that simultaneous adherence to state and federal law is impossible because federal law requires generic labels to be identical to labels approved for the name brand. As a result, PLIVA states that unilaterally strengthening the warning on the generic label to avoid state law liability would violate federal law. PLIVA also argues that state claims thwart the goal of the federal Hatch-Waxman Amendments to bring low cost generic drugs to market quickly.

Mensing argues that state law claims against a generic drug manufacturer are not preempted because the manufacturer could have proposed a label change for FDA to approve without making a unilateral change. In addition, the Hatch-Waxman Amendments must be read with other FDA statutes that are meant to ensure that drugs are safe for consumer use.

If the Supreme Court sides with drug companies, makers of generic pharmaceuticals will have less of an incentive to produce up-to-date label warnings for consumers.

Update (3/31): The New York Times reports on arguments in the case.

Senate Confirms District Court Nominee

Last night the Senate confirmed Mae D’Agostino to the Northern District of New York on a vote of 88-0. Ms. D’Agostino was the 14th judicial nominee to be confirmed during the 112th Congress, and the 76th during the Obama presidency. Forty-four nominees are still pending in the Senate, including 18 who would fill seats considered to be “judicial emergencies” by the Administrative Office of the U.S. Courts.

For the most up-to-date and comprehensive information on judicial nominations, visit the Alliance for Justice’s Judicial Selection Project webpage.

Supreme Court Limits the Right to Sue Price Gouging Drug Companies

The Supreme Court held today in Astra USA, Inc. v. Santa Clara County, that the federal statute governing contracts between the Department of Health and Human Services (HHS) and drug companies to provide discounted drug prices to safety-net health care providers does not allow those providers to sue the companies when prices exceed contractual caps.

Federal law instructs HHS to enter into contracts with drug manufacturers to offer discounted prices for medication to “340B entities,” which include public hospitals, community health centers and other safety-net health care providers. Santa Clara County, which operates several of these providers, claimed that drug manufacturers breached their contract by charging them more than the contracts allow. Santa Clara argued that as the intended beneficiaries of the contracts between the government and the drug manufacturers, the healthcare providers should be allowed to sue to enforce the contract. This would ensure lower drug prices in situations where the federal government, for whatever reason, has chosen not to sue to enforce the contract’s terms.

The Court held that the statute, which mandates the contractual price caps, does not provide a private right to enforce the caps. The Court found that Congress intentionally centralized enforcement of the caps within HHS and therefore, allowing private suits to proceed “could spawn a multitude of dispersed and uncoordinated lawsuits by 340B entities.” This would result in a substantial risk of conflicting decisions related to the price caps. The opinion also noted that Congress’s prohibition against disclosure of pricing information regarding particular manufacturers is inconsistent with a private right of action because it is “the very information necessary to determine whether [a private party’s] asserted rights have been violated.”

As a result of this decision, drug manufacturers will have less incentive to abide by their contractual obligation to sell medication at a discounted rate.

Supreme Court Hears Oral Arguments in Railroad Worker Safety Case

The Supreme Court heard oral arguments yesterday in CSX Transportation v. McBride. At stake in this case is the ability of railroad employees to hold their employers accountable when the employer’s negligence results in injury. The court must determine whether the Federal Employers’ Liability Act (FELA) requires proof that an employer’s negligence was the proximate cause of an employee’s injury or whether a showing that the negligence played some part in causing the injury is sufficient for liability.

Robert McBride was a conductor working for the rail transportation company CSX. McBride was injured when a braking system he was using for approximately seven to eight consecutive hours caused his hand to fatigue and fall into one of the brakes. McBride required two surgeries to repair the damage. In addition to pain and numbness, he still suffers from limited use of his hand.

McBride sued CSX under FELA, a statute designed to improve health and safety conditions for railroad workers. A jury awarded damages to McBride because the configuration of the trains required constant maneuvers that caused his fatigue. FELA states that a railroad company is liable for injury or death “resulting in whole or in part from the negligence of” that company. CSX challenges the jury’s finding of liability on the ground that the trial judge’s jury instructions did not add a requirement that the company’s negligence also had to be the proximate cause of the injury. McBride’s attorney argues that FELA contains no such requirement.

If the Supreme Court sides with CSX, railroad employees and their survivors will have a more difficult time holding negligent employers responsible when they are injured or killed on the job.

Click here for coverage of oral arguments and here for transcripts.

Will the Corporate Court Deliver for Wal-Mart?

The Supreme Court heard oral arguments today in Wal-Mart v. Dukes, a gender discrimination class action against the retail giant. AFJ’s Justice Watch blog has highlighted specific aspects of the case in daily installments. Today’s final installment summarizes what's at stake in the case and places it in the context of the Roberts Court’s strong pro-corporate bias.

The ability of the world’s largest retailer, and largest private employer in the United States, to discriminate on a massive scale against its female employees is at stake in the biggest case of the U.S. Supreme Court’s 2010-11 term – Wal-Mart v. Dukes. In Dukes, the district court approved, and the en banc Ninth Circuit Court of Appeals upheld, certification of a class action brought by Betty Dukes and others to hold Wal-Mart accountable for suppressing women’s pay and promotion for more than a decade. Despite detailed findings by the lower court and the lack of a circuit split on the issues in dispute, the Roberts Court accepted Wal-Mart’s appeal.

Powerful corporations like Wal-Mart have consistently enjoyed a home field advantage when litigating in front of the Roberts Court. Since 1953, corporate interests have won just 42 percent of the time in the Supreme Court, but that percentage has jumped to 61 percent in the Roberts Court, with three of the seven most pro-corporate terms occurring during Chief Justice Roberts’ first five years. Just last term, the Roberts Court ruled in favor of the side that the U.S. Chamber of Commerce supported in 13 of 16 cases. The U.S. Chamber, and a wide array of other large corporate interests, have lined up on Wal-Mart’s side in this case.

Why is Wal-Mart v. Dukes so important? When Congress passed Title VII as part of the Civil Rights Act of 1964 to prohibit discrimination in employment, women working full time were paid approximately 59 percent of what men were paid, on average. Today, nearly 37 years later, women are paid only 77 percent of what men are paid. Over an average lifetime of work, this difference will result in a loss of $700,000 for a female high school graduate, $1.2 million for a college graduate and $2 million for a professional school graduate. Working women and their children also experience higher rates of poverty than men, and have a greater need for public assistance to obtain health care, including those working at Wal-Mart.

If our nation’s largest employer – with approximately 1.4 million employees, more than 860,000 of whom are women, a large percentage of whom are women of color – can avoid liability for systemic discrimination across its nationwide chain of stores, it will undermine the equal rights of all women workers. Moreover, any ruling by the Roberts Court that makes it harder for employees to bring a class action will remove an important safeguard that protects workers when they suffer discrimination.

In today’s political climate, corporations are eager to roll back the clock and destroy many of the gains workers made during the Civil Rights era. Wal-Mart v. Dukes could dramatically boost or inhibit those efforts, depending on how the Court rules.

Click here to read more about this landmark case and download AFJ's comprehensive analysis.


Supreme Court Hears Campaign Finance Cases

The Supreme Court heard oral arguments today in the consolidated cases of Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett and McComish v. Bennett. At stake in these cases is the ability of states to combat the influence of wealthy special interests in elections.

Arizona voters passed the Citizens Clean Election Act in 1998 following a set of major corruption scandals in the state legislature. The Act creates a detailed scheme under which candidates must demonstrate a certain level of support and abide by a strict set of fundraising and spending restrictions in order to receive public funds for a campaign. The Act allows a candidate to receive additional funding if the candidate faces attacks from well-financed independent expenditure groups who spend over a certain amount of money or if the candidate’s opponent refuses public funds and spends over a certain amount. The Act is designed to level the playing field when a publicly-funded candidate faces a wealthy, self-financed opponent.

The petitioners claim that the law is prohibited by the First Amendment, citing a host of “burdens” that discourage them from outspending publicly-financed candidates. If the Supreme Court overturns Arizona’s election law, it will close off another avenue of reform designed to reduce the undue influence of corporate interests and wealthy candidates in political races.

Click here for coverage of oral arguments.

Wal-Mart v. Dukes: The Supreme Court's Big Case Threatens the Ability to Fight Corporate Misbehavior

Tomorrow morning, the Supreme Court will hear oral arguments in Wal-Mart v. Dukes, which promises to be the Court's biggest case of the 2010-11 term.In today's Huffington Post, AFJ President Nan Aron discusses the merits and implications of the case:

What makes this case so important for all Americans is not just the injustice done to hundreds of thousands of workers, it's the desire by Wal-Mart and the corporate powers supporting their case... to restrict the ability of the women harmed by these policies to band together as a class and fight a unified battle in court.

Click here to read Nan's analysis.

This case threatens the ability of American workers to fight back against corporate misbehavior.

Any ruling by the Roberts Court that makes it harder for employees to bring a class action will remove an important safeguard that protects workers when they suffer discrimination.

Click here to read more about this landmark case on the Huffington Post.

Wal-Mart Win in Dukes Case Would Empower Corporations to Steal Wages

The Supreme Court will hear oral arguments in Wal-Mart v. Dukes, a sex discrimination class action against the retail giant, on March 29. AFJ’s Justice Watch blog will highlight specific aspects of the case in daily installments between now and the date of oral arguments.

Today we discuss why a denial of class certification would give Wal-Mart and other large corporations a free pass to unlawfully deny employees the wages they deserve.

If the Supreme Court limits access to a class action in this case, it will enable Wal-Mart to essentially rob its women employees of fair wages without serious legal consequences. In fiscal year 2010, Wal-Mart made $14 billion in profits on net sales of $405 billion. Individual sex discrimination lawsuits – even if hundreds were filed and successful – would not motivate Wal-Mart to address disparities in pay and promotions between men and women. Far from being a deterrent, a company as big as Wal-Mart would simply consider isolated awards as the cost of doing business.

A decision decertifying the Dukes class action would also make it more challenging for other plaintiffs to bring class actions, depending on the Court’s reasoning. For example, if the Court finds that the discrepancy in pay and promotion for women at Wal-Mart is not common enough to support a class action on this record, it will tend to exonerate large companies with lots of employees, managers, and outlets. A class action pending against Costco, to cite one case, may turn on the outcome of this case. Other employment discrimination class actions, where the bar is already high, may also become more difficult. Alternatively, if the Court finds that Betty Dukes and her class members cannot obtain back pay through the particular type of class action they have sought to certify, it will cripple one of the most effective remedies that class actions provide.

Proponents of greater restrictions on class action lawsuits claim that the suits are unnecessary because government agencies are responsible for enforcing workplace discrimination claims. Almost all workplace discrimination claims must first be filed with the EEOC before an employee may sue an employer. This, however, does not mean that the EEOC can do much about those claims. The EEOC received 99,992 workplace discrimination allegations in 2010 but filed only 271 enforcement actions in response. (By comparison, there are more than 860,000 women working at Wal-Mart today.) The agency has historically been underfunded and understaffed, resulting in a massive backlog of unresolved cases. As a result, the number of EEOC enforcement actions has decreased every year since 2004 despite the fact that 20,490 more discrimination claims were filed in 2010 than in 2004. Even under full staffing and funding, the EEOC would be woefully incapable of remedying even a small portion of workplace discrimination claims.

Class actions fill a void left by the inadequacy of individual lawsuits and government enforcement. The Supreme Court’s acceptance of Wal-Mart’s appeal in Dukes threatens one of the last remaining tools available to employees to protect themselves from discrimination.

Click here to read more about this landmark case and download AFJ's comprehensive analysis.


Wal-Mart v. Dukes Round-Up

Tomorrow morning, the Supreme Court will hear oral arguments in Wal-Mart v. Dukes, a sex discrimination class action against the retail giant. This is a landmark case in the fight for a fair America, and could have far-reaching implications for workers everywhere.

Alliance for Justice recently issued a comprehensive report on the background, merits, and legal ramifications of the case. The report is available for download here.

Additional background on Wal-Mart v. Dukes:

Wal-Mart v. Dukes Threatens to Undermine Class Actions as a Tool for Social Justice

The Supreme Court will hear oral arguments in Wal-Mart v. Dukes, a sex discrimination class action against the retail giant, on March 29. AFJ’s Justice Watch blog will highlight specific aspects of the case in daily installments between now and the date of oral arguments. Today we discuss the important role class actions play in leveling the playing field for everyday Americans who challenge injustice in court.

If the Roberts Court rules for Wal-Mart and raises the bar for maintaining a class action, the result could be devastating for enforcement of civil rights and employment discrimination laws. Some of the most important civil rights cases in American history were class action lawsuits. Brown v. Board of Education ended racial segregation in public schools in a class action. Griggs v. Duke Power empowered employees to remedy seemingly neutral policies that disproportionately harmed racial minorities. The pollution case portrayed in the movie Erin Brockovich and the sexual harassment case portrayed in North Country were also class actions. Class actions have allowed for historic civil rights gains because of the unique tools they provide to combat discrimination and other forms of corporate misbehavior.

Class actions play an essential role in holding corporations accountable for their widespread unlawful behavior, particularly when the harm suffered by each individual is small relative to the larger discriminatory picture. An individual is far less likely to enforce rights in court if the recoverable damages are too small to justify the cost of lengthy litigation or arbitration, a fact which often allows corporations to get away with unlawful conduct. The Supreme Court has recognized this function:
The policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights. A class action solves this problem by aggregating the relatively paltry potential recoveries into something worth someone’s (usually an attorney’s) labor.
As a result of the relative disadvantages of filing an individual claim, most plaintiffs who lose at the class certification stage, and are consequently unable to share the burdens of litigation with a larger class, do not pursue individual discrimination claims. One reason is that the cost of bringing a lawsuit can be much higher than the potential return to individual plaintiffs, resulting in “negative value” claims. For example, the average settlement in a sex discrimination claim deemed by the Equal Employment Opportunity Commission (EEOC) to have merit is $34,200, which is not enough to cover litigation costs and still compensate the plaintiff.

Many individual plaintiffs are also unaware that they have a claim. In the Wal-Mart case, for example, Wal-Mart strictly prohibits employees from discussing pay. It also tends to segregate women and men into different store departments. This keeps employees ignorant of pervasive pay discrepancies throughout Wal-Mart’s system. Even if aware they might have a claim, potential low returns and fear of retaliation keep individuals from seeking compensation when they have been discriminated against. Wal-Mart’s threats of retaliation are well-documented.

Class actions allow plaintiffs to uncover company-wide statistics that provide a more accurate measure of whether the company is engaged in a pattern of discrimination or its conduct has a discriminatory effect. The standard of proof in pattern-or-practice and disparate impact cases is also very different than in an individual lawsuit. In the former, courts look at the overall practices of a company, with plaintiffs carrying the burden of showing that unlawful discrimination has been the regular procedure or policy, or that while fair in form, company policy is discriminatory in operation. In the latter, the focus is on the decisions of management applied to each individual. Statistical evidence is often decisive in class actions, but may be irrelevant in individual lawsuits. Without it, however, discriminatory practices that can be seen in a company overview may remain hidden.

Click here to read more about this landmark case and download AFJ's comprehensive analysis.


Wal-Mart’s Centralized Corporate Control Spreads Gender Discrimination Throughout the U.S.

The Supreme Court will hear oral arguments in Wal-Mart v. Dukes, a sex discrimination class action against the retail giant, on March 29. AFJ’s Justice Watch blog will highlight specific aspects of the case in daily installments between now and the date of oral arguments. Today we discuss how Wal-Mart’s centralized corporate control spreads gender discrimination from headquarters to every region of the United States.

Wal-Mart argues that the plaintiffs’ theory of liability should fail because of Wal-Mart’s sheer size. The company maintains that the large number of its stores, managers, and employees means that pay and promotion decisions “turn[ed] on decisions made by individual store managers” and cannot support the commonality among class members that is required for class certification.

Plaintiffs counter with a powerful narrative that shows how sex discrimination at Wal-Mart was the inevitable byproduct of a strong and centralized corporate system that originated in the company’s Home Office in Bentonville, Arkansas, and permeated each of the company’s stores in the United States.

The key issue here is not the size of Wal-Mart. After all, if the core of an apple is rotten, it does not matter how large the apple is – it is still rotten. The issue is whether Wal-Mart’s employment system perpetuated a male-dominated hierarchy that suppressed women’s promotion and pay throughout Wal-Mart’s thousands of stores. The answer to this question is clearly yes.

Don Soderquist, the company’s former vice chairman and chief operating officer, wrote in his book The Wal-Mart Way that Wal-Mart is “intentional about dispersing our culture throughout the company and determined that our values and beliefs be on the mind of every associate.” Soderquist describes the numerous meetings that occur for employees at every level of the company’s hierarchy and writes that “we have taken advantage of every single one of these opportunities to preach Wal-Mart culture.”

Wal-Mart’s engrained practices are also maintained by promoting from within and requiring people in line to become assistant managers – the lowest salaried management position – to go through a 4-5 month training program at the Walton Institute, where the message is that women are not aggressive enough and would lower standards if promoted to management. Once employees become Store Managers, they are also required to relocate regularly, which spreads Wal-Mart culture but disadvantages women who typically have less flexibility than their male counterparts to relocate suddenly. Sam Walton, the company’s founder, recognized as early as 1992 that this requirement is unnecessary for business purposes and deprives the company of talented female managers, but the policy remains.

Centralized control at Wal-Mart is pervasive. All personnel policies, including compensation and promotion guidelines, are set by the Home Office. Each store has the same job categories, job descriptions, and management hierarchy. Regional management meets at least weekly at the Home Office to discuss developments in individual stores. The company has a sophisticated computer network that allows the Home Office to monitor daily activities at every store. Managers are tied to the Home Office through a computer link called the Manager’s Workbench. The Home Office controls each store’s temperature and mandates what music will be played inside. Wal-Mart also has a strict anti-union policy that it enforces uniformly throughout its stores.

Within the context of this highly uniform corporate structure devoted to pushing the “Wal-Mart Way,” Store Managers, District Managers, and Regional Vice Presidents – more than 85 percent of whom are men, and most of whom have been trained at the Walton Institute – get to make largely unfettered pay and promotion decisions. Under Wal-Mart’s employment system, there is:
  • No criteria for making promotion selections;
  • No oversight or systematic review of compensation or promotion decisions;
  • No posting of most promotion opportunities; and
  • No written information about the management trainee program, and no ability for hourly employees to apply for it.
In addition, Wal-Mart managers can:
  • Offer raises based on undefined “exceptional performances;”
  • Depart from starting pay rates for whomever they choose; and
  • Through a “tap on the shoulder,” decide who becomes a management trainee.
The result is a system in which male managers promote people like themselves who accept and perpetuate Wal-Mart’s male-dominated corporate structure.

Tellingly, Wal-Mart knew at least six years before this lawsuit was filed that its employment practices would likely be seen by courts as discriminatory and subject to class-wide relief, after it hired a prominent law firm to evaluate whether its policies promoted sex discrimination. Akin Gump found widespread gender disparities. “By one measure, the law firm found, men were five and a half times as likely as women to be promoted into salaried, management positions.” The law firm advised Wal-Mart to take remedial steps in 1995, but Wal-Mart ignored the advice and continued its practices.

As a legal matter, the Supreme Court has recognized that Title VII should apply when “an employer’s undisciplined system of subjective decision-making has precisely the same effects as a system pervaded by impermissible intentional discrimination.” A strong corporate structure “creates the context – the policies, the decision-making systems, the work environment and culture – in which individual decisions are made.” These holdings support liability here.

Click here to read more about this landmark case and download AFJ's comprehensive analysis.


Shocking Statistics Demonstrate Extent of Nationwide Sexism at Wal-Mart

The Supreme Court will hear oral arguments in Wal-Mart v. Dukes, a sex discrimination class action against the retail giant, on March 29. AFJ’s Justice Watch blog will highlight specific aspects of the case in daily installments between now and the date of oral arguments. Today we discuss the overwhelming statistical evidence that demonstrates the degree to which women are denied opportunities for advancement at Wal-Mart.

At the time this lawsuit was filed in 2001, Wal-Mart divided the United States into 41 regions. Each region contained approximately 11 districts, and each district contained six to eight stores. Overall, there were more than 3,000 stores. The lawsuit also includes Sam’s Club, which is wholly owned and run by Wal-Mart.

Plaintiff’s statistical expert, Dr. Richard Drogin, found that women employees at Wal-Mart were paid less than men in every year, and in virtually every job, even when relevant non-discriminatory factors were considered. This pattern was found in every one of the 41 Wal-Mart regions. Moreover, the disparity in pay between comparably employed women and men has increased every year since 1997. Strikingly, this disparity exists despite the fact that women, on average, have longer tenure at Wal-Mart – 4.47 years v. 3.13 years – and higher performance ratings.

The following table demonstrates the pay and promotion differential for field management positions and the three largest hourly job categories in 2001, the year this lawsuit was filed.

Click to enlarge

The massive disparities between men and women in these statistics support a prima facie case of employment discrimination. One reason for this is the stark break between hourly department managers, the vast majority of whom are women, and the next management level up, where employees are trained for salaried management positions. (See the entries above and below the black line in the table.) To move upward, an employee at Wal-Mart needs to receive a discretionary “tap on the shoulder” from upper-level management, which is overwhelmingly male. Women cannot apply for this promotion. Overall, if plaintiffs’ class certification is upheld, they will have a strong case of pattern-or-practice or disparate impact discrimination.

Indeed, Wal-Mart has among the worst records of American retailers in the percentage of women in management, prompting the company’s Executive Vice President for People to say that “we are behind the rest of the world.” Wal-Mart had a far lower percentage of female managers in 2001 than their closest competitors had in 1975. When this lawsuit was filed, women comprised 34.5 percent of Wal-Mart’s managers, compared to 56.5 percent of comparable retailers’ managers. One of plaintiffs’ experts put the odds that this discrepancy can be explained by chance as “less than one chance in many billions.”

Plaintiffs’ statistics demonstrate a clear pattern of nationwide discrimination that demands class certification in this case.

Click here to read more about this landmark case and download AFJ's comprehensive analysis.


Personal Stories Demonstrate Indignities Female Employees Face at Wal-Mart

The Supreme Court will hear oral arguments in Wal-Mart v. Dukes, a sex discrimination class action against the retail giant, on March 29. AFJ’s Justice Watch blog will highlight specific aspects of the case in daily installments between now and the date of oral arguments. Today we highlight some of the declarations from women who described the deep-seated sexism that is pervasive among Wal-Mart managers. For example:
  • Senior management for Sam’s Club, a Wal-Mart affiliate, often referred to female store employees during Home Office executive meetings as “Janie Qs” and “girls.” When a female executive who was new to the company objected to the terms, the criticism was not well received and senior managers continued to use them.
  • A Wal-Mart company newsletter featured a photograph from a company event showing Wal-Mart’s Executive Vice President of Operations and Chief Operating Officer posing on a leopard-skin stiletto high-heel-shoe chair while surrounded by women singing and dancing.
  • When a female employee with five years at Wal-Mart and a Master’s Degree asked her department manager why her pay was less than that of a just-hired 17-year-old boy, the manager said: “You don’t have the right equipment.…You aren’t male, so you can’t expect to be paid the same.”
  • A manager told plaintiff Chris Kwapnoski that she needed to “doll-up” and “blow the cobwebs off” her make-up.
  • A store manager also told Kwapnoski that he gave a male associate a larger raise because the male associate had “a family to support.” This was a common refrain from Wal-Mart managers.
  • A male department manager told a female employee that male employees will always make more than female employees because “God made Adam first, so women would always be second to men.”
  • During a job interview to be a department manager, an assistant manager told Cleo Page that it was man’s world and that men control managerial positions at Wal-Mart.
  • A male support manager responded to a female employee’s request for a transfer to Hardware by asking, “[y]ou’re a girl, why do you want to be in Hardware?”
  • When a female district manager asked a male store manager why he always put female assistant managers in charge of Softlines, he responded “because that’s what women know.”
  • When a female employee with experience in Sporting Goods expressed interest in becoming a Sporting Goods department manager, a male assistant manager told her, “[y]ou don’t want to work with guns.”
  • When a female employee sought a position as a meat cutter, a male meat manager told her that Wal-Mart does not hire women as meat cutters. Similar arguments were used by managers to keep women out of the Electronics and Domestics departments.
The bias against women also pervades the Walton Institute, a company training center that “provides an educational environment for Wal[-M]art leaders from around the world to learn more about themselves and about Wal[-M]art’s unique company culture and how to sustain that culture.” At Institute sessions, participants in a discussion on diversity within the company were told that so few women were managers because “men have been more aggressive in achieving those levels of responsibility.” Company executives and managers also said that promoting women would require standards to be lowered.

Sam Walton, Wal-Mart’s founder, was an avid quail hunter and from the earliest days of the company invited top managers to an annual quail hunt. When women urged an alternative bonding experience, it was rejected as interfering with tradition. One woman who was hired from outside to be a Vice President of Sam’s Club described Wal-Mart as a “very tight, deep culture” and “very closed.” As she recalled, “I didn’t go hunting with them, I didn’t go fishing with them, I wondered if I had been able to do some of those things if I might have assimilated more quickly into the organization.” Female store managers were also required to attend business functions at strip clubs and Hooters. Wal-Mart’s Executive Vice President for People defended holding a district meeting at Hooters by claiming it was “one of the best places to meet and eat” in town.

Plaintiffs’ statistics provide a clear picture of the degree to which women are denied opportunities to succeed at Wal-Mart, but personal stories demonstrate the daily indignities that female employees must endure. For more information, click here to download AFJ’s special report on Wal-Mart v. Dukes.


How “The Wal-Mart Way” Ruined Two Women’s Careers

The Supreme Court will hear oral arguments in Wal-Mart v. Dukes, a sex discrimination class action against the retail giant, on March 29. AFJ’s Justice Watch blog will highlight specific aspects of the case in daily installments between now and the date of oral arguments. Today’s installment introduces the personal stories of Wal-Mart employees Betty Dukes and Edith Arana. Dukes and Arana were enthusiastic employees who suffered the effects of the company’s discriminatory practices.

When Betty Dukes started at Wal-Mart, she was energetically committed to advancing within the company. She dreamed of working her way up from a $5-an-hour part-time cashier position into corporate management. Instead, she toiled for several frustrating years with very few opportunities for advancement. After discussing her concerns with a district manager, store managers retaliated against her. They wrote her up for returning late from breaks despite the fact that male colleagues evaded punishment after doing the same thing or after failing to clock out at all. Dukes later received a demotion and pay cut for asking a colleague to let her make change from a cash register, even though this was a common employee practice. The financial strain forced Dukes to move in with her mother.

Dukes has said she hopes this case will change Wal-Mart’s practice of blocking women from entering management, and will ensure women receive equal pay. A Baptist minister, she put her “Betty vs. Goliath” struggle in biblical terms, stating that, “David had five stones but only needed one.”

Edith Arana accepted a $7-an-hour job at Wal-Mart after 10 years in retail because she believed that Wal-Mart was “a family-based company” where “you can come in as a cashier, and the sky is the limit.” Arana often took on heavy workloads, was commended for going “beyond what is expected” and was praised for doing “an outstanding job filling in where she is needed—anywhere, anytime.” Nonetheless, management consistently denied her promotions and gave them to men with less experience.

Arana also tried to enlist in Wal-Mart’s assistant manager training program, but was consistently denied. A store manager promised to recommend Arana for the program but reneged after she was forced to take sick leave after a car accident. This missed opportunity became particularly important when Arana became the sole breadwinner for her husband and three children after her husband developed liver cancer. Arana felt that no matter how well she performed, store management would not allow her to advance because she was a woman. Eventually, her heavy workload led a doctor to order her to take leaves of absence. Arana called herself “destroyed and devastated” by her experience with Wal-Mart.

Dukes and Arana are two of the named plaintiffs in this case whose stories are representative of the many employees who suffered as a result of pervasive sex discrimination at Wal-Mart.

For more information, click here to download AFJ’s special report on Wal-Mart v. Dukes.

Supreme Court Ruling Protects Employees who Verbally Complain About Illegal Employer Practices

The Supreme Court held yesterday in Kasten v. Saint Gobain Performance Plastics that anti-retaliation provisions of the Fair Labor Standards Act (FLSA) apply to employees who make verbal complaints to their employers about possible violations of labor laws as well as those who make written complaints. In this case, an employee was fired after making repeated verbal complaints that the company’s practice of not allowing employees to clock in for time spent donning required protective gear was illegal.

The court looked to functional considerations, stating that “an interpretation that limited the provision’s coverage to written complaints would undermine the Act’s basic objectives,” which prohibit “labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers.”

The opinion also notes the high illiteracy rates among the poor in the years prior to passage of the FLSA and asked rhetorically: “Why would Congress want to limit the enforcement scheme’s effectiveness by inhibiting use of the Act’s complaint procedure by those who would find it difficult to reduce their complaints to writing, particularly illiterate, less educated, or overworked workers?” The court added that limiting the scope “would also take needed flexibility from those charged with the Act’s enforcement” by preventing the use of hotlines, interviews and other methods of receiving verbal complaints. The court also found the views of federal enforcement agencies to be persuasive, noting that both the Secretary of Labor and Equal Employment Opportunity Commission believe that verbal complaints are covered.

The court recognized the need to protect employers, stating that the FLSA applies only to statements that give “fair notice that an employee is making a complaint that could subject the employer to a later claim of retaliation.” Nonetheless, the court held that verbal statements can be “sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.”

Supreme Court Allows Investors’ Drug Lawsuit to go Forward

The Supreme Court held today in Matrixx Initiatives v. Siracusano that a drug company that fails to report adverse events that their products cause may still be liable to investors even if the adverse events were statistically insignificant.

Matrixx Initiatives manufactured Zicam, a nasal gel used to treat colds. As early as 1999, Matrixx was aware that Zicam was causing some patients to experience severe nasal burning followed by anosmia, the permanent loss of smell. Nonetheless, the company denied clinician requests to study the issue further. To artificially inflate the price of its stock, Matrixx did not reveal this risk in its disclosures to shareholders, nor did it inform shareholders that it had already been sued over the issue. In fact, the court noted that Matrixx even “issued a press release that suggested that studies had confirmed that Zicam does not cause anosmia when, in fact, it had not conducted any studies relating to anosmia and the scientific evidence at that time, according to the panel of scientists, was insufficient to determine whether Zicam did or did not cause anosmia.” Matrixx claims that it had no duty to tell shareholders about these problems because experiencing loss of smell was not a statistically significant risk.

The court rejected Matrixx’s proposed statistical significance requirement for materiality and reiterated the current standard. The standard, which the court believes the anosmia information to have met, states that a plaintiff must show that the defendant demonstrates “a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the total mix of information made available.” The court stated that “Matrixx’s categorical rule would artificially exclude information that would otherwise be considered significant to the trading decision of a reasonable investor.” The opinion also analogized the case to other circumstances, stating that courts frequently permit expert testimony on causation based on evidence other than statistical significance and that the Food and Drug Administration “similarly does not limit the evidence it considers for purposes of assessing causation and taking regulatory action to statistically significant data.” The ruling affirmed the Court of Appeals’ holding that the plaintiffs adequately pleaded the element of a material representation or omission.

Supreme Court Arguments Address Attorney’s Fees in Civil Rights Cases

Today the Supreme Court heard oral arguments in Fox v. Vice, a case with important implications for victims of civil rights violations. At stake in this case is the balance between allowing people whose civil rights are violated to seek justice in court, and protecting defendants when suits are deemed frivolous. The Court must determine whether a plaintiff in a civil rights action must pay federal statutory attorney’s fees when the plaintiff’s federal claims are deemed frivolous but the state claims are not.

Ricky Fox, a candidate for police chief in Vinton, Louisiana, was the victim of an extortion plot engineered by the incumbent chief. The incumbent was convicted of criminal extortion as a result of the plot. Fox sued the chief in a state court for federal civil rights violations and related claims based on state law. The Fifth Circuit deemed Fox’s federal claims to be frivolous but did not address the merits of his state claims. The court also ordered Fox to pay all of the convicted extortionist’s legal fees based on a federal statute allowing the payment of fees to the successful party when a claim is deemed frivolous. Fox argues that the court could not award the defendant all of his attorney’s fees when only federal claims are deemed frivolous but state claims requiring an examination of the same facts are not.

Billy Vice, the incumbent police chief who won the attorney fees at issue in this case, died on August 26, 2010. The Supreme Court determined that the case could go forward with Vice’s estate replacing him as a party to the case.

If the Supreme Court sides with the defendant, victims of civil rights violations could become reluctant to sue because they risk being saddled with their opponent’s attorney’s fees in addition to their own.

Senate Confirms Judicial Nominee, Processes Several Others through Committee

On Monday the Senate confirmed James Boasberg to the United States District Court for the District of Columbia on a vote of 96-0. Judge Boasberg was nominated on June 17, 2010, and was reported out of committee without opposition on Dec. 1, 2010, but did not get a confirmation vote at the end of the 111th Congress. He was renominated at the beginning of the 112th Congress, and was again reported out of committee without opposition on Feb. 3, 2011.

The Senate Judiciary Committee processed several nominees this week. On Wednesday, it held a hearing for Bernice Bouie Donald, nominee to the United States Circuit Court for the Sixth Circuit and J. Paul Oetken and Paul A. Engelmayer, nominees to the United States District Court for the Southern District of New York, and Ramona Villagomez Manglona, nominee to the District Court for the Northern Mariana Islands.

No Republican senators appeared at the hearing. If confirmed, Mr. Oetken would become the first openly gay man to be confirmed to the federal bench.

This Thursday the Senate Judiciary Committee also reported out the nomination of Edward Chen to the United States District Court for the Northern District of California on a party-line vote. If confirmed, Judge Chen would become the second Asian American to ever serve in the Northern District, which contains San Francisco.

The Senate Judiciary Committee, at the request of Republican senators, also held over votes until its next meeting on the nominations of Goodwin Liu to the United States Court of Appeal for the Ninth Circuit, John J. McConnell to the United States District Judge for the District of Rhode Island, Kevin Hunter Sharp to the United States District Court for the Middle District of Tennessee, Roy Bale Dalton, Jr. to the United States District Court for the Middle District of Florida, and Claire C. Cecchi to the United States District Judge for the District of New Jersey. Republican senators have made this request the first time nominees come up for a vote in executive session for every nominee during the 112th Congress.

For the most up-to-date and comprehensive information on judicial nominations, visit the Alliance for Justice’s Judicial Selection Project webpage.

New report on Wal-Mart v. Dukes case details stakes and legal ramifications

Alliance for Justice today released a comprehensive report on the biggest case of the U.S. Supreme Court’s 2010-11 term. The report analyzes the stakes and legal ramifications of Wal-Mart v. Dukes, which concerns the right of as many as 1.5 million female Wal-Mart employees to hold the retail giant accountable for a pattern of discrimination that pervades every region of the giant retailer’s U.S. operations. Oral arguments in the case are scheduled for Tuesday, March 29.

The report, “Wal-Mart v. Dukes: Will the Supreme Court Protect Wal-Mart’s Discrimination Against Women?” is available for download here.

In addition to describing key facts in the case, the report explains its broader implications not just for employment discrimination claims, but for all class actions against major corporations. According to the report, “If our nation’s largest employer can avoid liability for systemic discrimination across its nationwide chain of stores, it will undermine the equal rights of all women workers. Moreover, any ruling by the Roberts Court that makes it harder for employees to bring a class action will remove an important safeguard that protects workers when they suffer discrimination.”

Among the information and themes explored in the report are:

  • Whether Wal-Mart’s size and the sheer number of its stores, managers, and employees will prevent class certification for widespread gender discrimination. The report addresses this core issue in the case from a number of angles. It tells the personal stories of Betty Dukes and Edith Arana, excerpts declarations of more than 110 other women who filed stories of discrimination, and recounts statistical evidence that shows pay and promotion disparities in each Wal-Mart region and for virtually every job category. The report also explains how Wal-Mart created a structure that led to an upper-level management that consists of nearly all men, while women comprise the vast majority of lower-level employees. Tellingly, Wal-Mart has among the worst records of American retailers for hiring women in management, with its management practices stuck where its rivals were in the mid-1970s. Moreover, it was warned about its discriminatory practices six years before this case was filed by a law firm that found that men were “five and a half times as likely as women to be promoted.” Wal-Mart ignored the firm’s advice and continued its practices.
  • What’s at stake for the women at Wal-Mart? Class actions play an essential role in holding corporations accountable for their widespread unlawful behavior, particularly when the harm suffered by each individual is small relative to the larger discriminatory picture. As a result of the relative disadvantages of filing claims, most plaintiffs who lose at the class certification stage do not pursue individual suits, which, even if successful, would not force Wal-Mart to change its discriminatory practices. Thus, as the report states: “If the Supreme Court limits access to a class action in this case, it will enable Wal-Mart to essentially rob its women employees of fair wages without serious legal consequences.”
  • What’s at stake for American workers? If the Supreme Court decertifies the class action here, it will make it more challenging for other plaintiffs to bring class actions. Depending on the Court’s reasoning, a decision favoring the corporation could make it harder for class actions to be filed against other large employers with many outlets, managers, and employees. The Supreme Court might also undermine the availability of back pay for injured class victims.
  • Will the Roberts Court buck or continue its pro-corporate trend? Powerful corporations like Wal-Mart have consistently enjoyed a home-field advantage when litigating in front of the Roberts Court. Since 1953, corporate interests won 42 percent of the time in the Supreme Court, but that percentage has jumped to 61 percent in the Roberts Court, with three of the seven most pro-corporate terms occurring during Chief Justice Roberts’ first five years. Just last term, the Roberts Court ruled in favor of the side supported by the U.S. Chamber of Commerce in 13 of 16 cases. The U.S. Chamber, and a host of other corporate interests, are supporting Wal-Mart in this case.

Obama Makes Two District Court Nominations

Yesterday President Obama nominated two women to federal district court seats. Mary Geiger Lewis was nominated to the United States District Court for the District of South Carolina and Jane Margaret Triche-Milazzo was nominated to the United States District Court for the Eastern District of Louisiana.

In announcing their nominations, President Obama said that “these women have had distinguished legal careers and I am honored to ask them to continue their work as judges on the federal bench.” Ms. Lewis is a partner at Lewis & Babcock in Columbia, South Carolina, and Ms. Triche-Milazzo is a District Judge of the Twenty-third Judicial District in the State of Louisiana.

There are now 46 nominees to the 116 vacancies on the federal bench.

For the most up-to-date and comprehensive information on judicial nominations, visit the Alliance for Justice’s Judicial Selection Project webpage.

Panel discussion on Equal Justice for All now available on YouTube

Last week's panel discussion on corporate influence over the federal courts is now available on YouTube. Use the playlist viewer below to watch the keynote address by Senator Sheldon Whitehouse, as well as remarks by Suzette Malveaux of the Catholic University of America, Bill Luyre of AFL-CIO, and Jeffrey Rosen of the George Washington University.

Malveaux, an expert on the impact of procedural mechanisms on civil rights, spoke about the legal avenues everyday Americans must have in order to hold powerful corporate interests accountable, and how those methods have been undermined. She noted that “One of the biggest issues that we see coming out of the Supreme Court is access to justice, or just access to the court system in general…. If you look at the Constitution, we have a due process concern that people have their right to their day in court; and that is a fundamental notion of our judicial system. And… it's becoming harder and harder for people to have their day in court, or to actually have access to the system.”

Luyre addressed the fate of labor and employment law in the lower federal courts, which are often dominated by appointees friendly to business interests, saying, “Sometimes I wonder if those who are involved in the confirmation of judges and the selection of judges… understand just how important it is to have good judges.” He went on to point out that “The courts… lack for the most part union lawyers, civil rights lawyers, consumer lawyers, legal service lawyers, public defenders, folks who have had to deal with working people on a day-to-day basis in many different settings.”

Rosen, author of the widely-read and influential New York Times Magazine article “Supreme Court, Inc.,” talked about the trend in pro-corporate decisions at the Supreme Court and philosophical distinctions within the conservative majority. In discussing how pro-business trends can be countered, he asserted that “the one lesson that we can take from the Tea Party is the importance of grassroots activism. They mobilized people, they got them on the Mall, they proposed constitutional amendments. They also filed lawsuits, but they really created a national consensus around economic populism. And I think that if we neo-progressives are to have legal success in the courts, we need first to have political success, need to mobilize, need to make the case for why in these tough economic times a pro-corporate tilt is not advisable.”

The panel's question-and-answer session will be available soon.

A growing consensus on ethics reform

Court-watchers have been growing more and more concerned over the increasing politicization of the Supreme Court, as exemplified by recent accounts of overtly partisan activities.

Leading the call for reform was a group of 135 law professors from all across the country. They sent an open letter to leaders in the US House and Senate. And two weeks ago, Alliance for Justice joined Congressman Chris Murphy to announce legislation that would bolster the Supreme Court's recusal process and make the nine justices subject to the same mandatory code of conduct that applies to every other federal judge. Since then, others have added their voices in blogs, petitions, letters to their representatives, and the pages of local newspapers.

Here are some of the must-read stories on ethics reform in just the last two weeks:

The Washington Post
An ethics code for the high court

New York Times
The Court's Recusal Problem

The Hill's Pundit Blog
Supreme Court Ethics

National Law Journal
Ethical oversight for the justices

Toledo Blade
Roberts Rules

You can read more on judicial ethics, including the law professors' letter and more media coverage in the new Alliance for Justice ethics resource center.

Senior judges work to take up strain on courts

Today's LA Times profiles the work being done by senior judges in the federal courts. The escalating crisis in our courts has led to a crushing caseload for many courts as the Senate has been glacially slow to debate and confirm judges to fill vacancies. Senior judges are now being called upon to work long past retirement to help manage the growing workloads.
[Judge Betty] Fletcher, who turns 88 this month and relies on a walker to navigate airports and courthouse corridors, retired a dozen years ago yet still works full time, on what is known as senior status, for the U.S. 9th Circuit Court of Appeals. She travels throughout the court's nine-state region for hearings and spends seven days a week poring over foot-high stacks of written filings.

As federal courts stagger under the weight of mounting caseloads and vacant judgeships go unfilled for years, senior judges like Fletcher have come to the rescue, especially in the 9th Circuit, where they shoulder a third of the legal load.

"It's kind of a double whammy," Fletcher said of the courts that have had no new judgeships added in 21 years and that have declining numbers of active judges because of partisan posturing in Congress. Nearly 11% of the nation's 875 lifetime positions are empty.
Click here to read the full article.

For the most up-to-date and comprehensive information on judicial nominations, visit the Alliance for Justice’s Judicial Selection Project webpage.

Can someone explain the Walmart small store strategy, please?

I don't get it.  I guess I am not just not as smart as the folks in Bentonville.  Walmart was originally a dumpy box of a store with the interior feel of a warehouse.  It wasn't a great place to shop, although it sure was the place to buy American and cheaply, at that.  Now the stores look nicer and the products are all from China but the media says Target, which I still enjoy way, way more than a Walmart, may be cheaper.  (My wife prefers Walmart locally because of size, perceived value and the fact that our Target isn't a super store.)

But that isn't the main thrust of this piece.  Rather, it is about the small store format that the company is pursing.  I really don't get that.  So Walmart is going to open a 10,000 sf store in Chatham, a south side Chicago area known as a solid middle class minority neighborhood.  (Yes, I have driven through it and driven by this site many times.  It is not a particularly pedestrian friendly location, though not an awful one either.)  Okay, that is bigger than a 7/11 or convenience store but smaller than a Walgreen's and certainly small than the Jewel-Osco almost next door, where you can get a whole lot more selection.  The only thing I guess they figure is price will win.

But then there is a different issue: cannibalization. The company is building a SuperCenter right in the neighborhood.  One store will not siphon off the other?  The one saving grace of the small format store is fewer employees, perhaps meaning less overhead.  I can see a store like this in central business districts, but in a urban area next to a Lowe's and a Home Depot, not to mention a Marshall's and a Best Buy?  Not getting this one at all.

Walmart was at its best when it followed the tenets of Mr. Sam.  This is away from that, in my opinion.  As this post from a couple of weeks ago says, "As retired executives at A & P and Sears could tell Wal-Mart executives, the middle is a very bad place for retailers to be."  In my eyes, at least, Walmart is better off going back to 1978 than in this direction.

Full disclosure: we do own a very -- indeed, laughably -- small amount of Walmart stock.

PS: Many thanks to my friend Duke Long for encouraging me to write this.

I'm still alive! A thought on lawyers racing to the bottom

I know I haven't posted in three months.  I even write a farewell post, but decided not to put it up in case I changed my mind so I would then not look like a schmuck or the blogging equivalent of a pinch-drunk boxer coming back for more punishment.  I have been concentrating on work and other things in my personal life.  As to the former, you can guess what that is about.  As to the latter, well, I am not prepared to discuss that except to say it is all good and hopefully will be better as time goes on.  If things go the way I want I will eventually tell you about it.

A couple of weeks ago one of my old bosses called with about the highest compliment one professional can pay another: a referral.  It was for a small deal that his firm could not handle economically but that I could.  After quoting a rate that I thought was fair -- I later realized that it was identical to the rate on my proprietary formula that I have for pricing flat fees -- we adjusted it and sent it on to the prospect.  About an hour later I found out I wasn't getting the work, because someone else agreed to do it for less than a third of what I thought was a fair and reasonable price to do a good job.

I'm not, by the way, trying to slam the firm that eventually got the assignment, although some might say that you get what you pay for.  Efficiencies and all exist, and perhaps this firm has a way to do good work at a cheap rate, and if so I commend them.  Nor do I have sour grapes about the work.  I am right now about as busy as I want to be.

As for me, I am not willing to go in that direction.  When you hire me you hire exactly that: me.  And I think I am pretty good at my job, if I do say so myself.  I'm not farming the work off to paraprofessionals, good that they may be in many instances.  Call me a control freak, or just someone that does not want to deal with employees. day out.  And I don't take shortcuts.  So if to survive in this "profession" -- which unfortunately is becoming less one by the day sometimes -- I have to take those shortcuts, then I will find another way to make a living.  Somehow I do not see that happening any time soon, although you never know.

I will have another post up shortly.

One Nominee Confirmed, Six Reported Out of Committee

Yesterday the Senate confirmed Max Cogburn, Jr. to a seat on the United States District Court for the Western District of North Carolina on a vote of 96-0. The confirmation vote was significant in two ways. First, the Senate has up until this point only confirmed nominees on Mondays, so having two votes in one week is a good sign. Second, Cogburn was the fourth nominee confirmed this week, the most out of any week this Congress. With 117 remaining vacancies on the federal bench the Senate needs to keep confirming at least that many nominees a week to cut into the huge backlog of vacancies.

The Senate Judiciary Committee also reported six nominees to the floor. Caitlin Halligan, nominee to the United States Court of Appeal for the District of Columbia, was reported out on a 10-8, party-line vote. The other five nominees—Jimmie Reyna, nominee to the United States Court of Appeal for the Federal Circuit, John A. Kronstadt, nominee to the United States District Court for the Central District of California, Vincent L. Briccetti nominee to the United States District Court for the Southern District of New York, Arenda L. Wright Allen, nominee to the United States District Court for the Eastern District of Virginia, and Michael Francis Urbanski, nominee to the United States District Court for the Western District of Virginia—were reported out on voice votes. There are now three circuit court and eight district court nominees awaiting confirmation votes on the Senate floor.

For the most up-to-date and comprehensive information on judicial nominations, visit the Alliance for Justice’s Judicial Selection Project webpage.

New York Times Urges Supreme Court to Hold Ashcroft Accountable

In a powerful editorial today, the New York Times urged the Supreme Court to rule against the former Attorney General in the case of Ashcroft v. Al-Kidd.

The case involves the Justice Department, at the time led by Ashcroft, and its misuse of "material witness" warrants to detain American citizens without counsel, even when the government had no intention of using as witnesses in any case. Mr. Kidd was held for more than two weeks. During his detention, he was repeatedly interrogated, and treated more like a prisoner or suspect than a witness. He was never called as a witness in any cases.

The Times editorial notes that 31 former prosecutors have also urged the Supreme Court to side with Mr. Kidd, and ignore Mr. Ashcroft's argument that he cannot be sued in this case:
The former prosecutors’ brief underscores why the justices should uphold the judgment of the United States Court of Appeals for the Ninth Circuit that Mr. Ashcroft forfeited immunity when he devised the strategy that led to the [material witness] statute’s misuse.


It can’t be used to detain someone because it simply doesn’t grant that power. The Non-Detention Act says clearly: “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” After Sept. 11, 2001, Mr. Ashcroft asked Congress for that authority. Congress said no — and the Justice Department’s misuse of the material witness statute was a ruse to get around that rebuff.

Despite the “settled understanding” to the contrary, the department got away with that ruse until this case. The Supreme Court should say it has no power to do so.
Click here to read more on the Al-Kidd case.

Equal Justice for All: Senator Whitehouse Discusses Corporate Influence on the Courts

Alliance for Justice hosted a panel discussion on the effects of pro-corporate decisions on the lives of everyday Americans. The event was opened by a keynote speech from Senator Sheldon Whitehouse.

Senator Whitehouse called on all Americans to remember that the Constitution provides not just basic rights, but a mechanism to make sure that those rights cannot be trampled by wealthy and powerful interests:
The jury serves as our last sanctuary, as Americans, when the forces of society may be arrayed against us: when the governor’s mansion has been bought by special interests; when lobbyists have the legislature tied in knots; when the newspaper owners have steered public opinion against you – the hard square corners of the jury box stand firm against the influence and money of special interests.
Following the keynote, a panel of legal experts discussed Supreme Court cases, labor and employment laws, and legal procedures that have benefitted wealthy corporations in the courtroom.
In too many cases, corporate influence can steer an appeals court to overturn a jury verdict, or even prevent everyday Americans from putting their cases before a jury.

The panel consisted of:

  • Bill Lurye, Associate General Counsel at AFL-CIO. Lurye coordinates the AFL-CIO's Judicial Project, and is a contributing editor to Employment Discrimination Law.
  • Suzette Malveaux, Associate Professor of Law at the Catholic University of America’s Columbus School of Law. Malveaux is an expert on the impact of procedural mechanisms on civil rights.
  • Jeffrey Rosen is a Professor of Law at the George Washington University, as well as the legal affairs editor of The New Republic.
Video of the panel's remarks and their question-and-answer session will be available online in the coming days.