Wal-Mart Sex Discrimination Case Enters New Stage

Although the Supreme Court in June ruled against plaintiffs who sued Wal-Mart for sex-based employment discrimination, those plaintiffs today filed an amended lawsuit narrowing the class from all of the women who work or have worked at Wal-Mart and Sam’s Club stores (an estimated 1.5 million), to those in the retailer’s California regions (an estimated 45,000 current employees and 45,000 former employees).

In its June decision, which split 5-4, the Supreme Court did not decide whether or not Wal-Mart had discriminated, but rather held only that the plaintiffs had failed to meet the requirement that the class have a question of law or fact in common.

Plaintiffs’ attorneys plan to file many similar suits against the giant corporation, alleging long-standing, widespread discrimination against Wal-Mart’s female employees in pay and advancement.

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A Question of Integrity

Alliance for Justice is proud to release our latest short documentary film, A Question of Integrity: Politics, Ethics, and the Supreme Court.

A Question of Integrity examines growing concerns about ethically questionable and overtly political behavior by some Supreme Court justices and explores the need to apply the same ethical standards that govern every other judge in the federal court system to the nation’s highest court.

Watch now:

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Senate Judiciary Committee Hearing for Morgan

The Senate Judiciary Committee today held a hearing on the nomination of Susie Morgan to the United States District Court for the Eastern District of Louisiana. Senator Chris Coons (D-DE) presided over the hearing; also in attendance were ranking member Senator Chuck Grassley (R-IA) and Senator Mike Lee (R-UT). Morgan was nominated by President Obama on June 7, 2011 and has waited 135 days to have her hearing before the Committee.

For the most up-to-date and comprehensive information on judicial nominations see our Judicial Selection Project page.

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Three Nominees Confirmed; 23 Left Waiting

The Senate voted to confirm three nominees to U.S. District Court seats today.  Mark Raymond Hornak and Robert N. Scola, Jr. were confirmed by unanimous consent to seats in the Western District of Pennsylvania and the Southern District of Florida, respectively.  Robert David Mariani was confirmed by a bipartisan vote of 82-17 to a seat in the Middle District of Pennsylvania.

Mariani, nominated on Dec. 1, 2010, has waited 323 days to be confirmed to fill his seat which has been declared a judicial emergency by the Administrative Office of the U.S. Courts.  It has been 91 days since he was reported out of the Senate Judiciary Committee without opposition on July 21.  Scola is also filling a judicial emergency vacancy; it has been 169 days since his nomination on May 4, 2011.  Hornak, like Mariani, has waited 323 days for his unanimous confirmation by the Senate.

For the most accurate, up-to-date information on the judicial selection process, visit the Judicial Selection Project page.

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Senate Confirms Bissoon to the District Court

Today, the Senate confirmed Catherine Bissoon to the United States District Court for the Western District of Pennsylvania by a bipartisan vote of 82-3. President Obama nominated Bissoon to the seat on November 17, 2010. It has been 335 days from her nomination to her confirmation by an overwhelming majority of senators.

The Senate took no action on 26 other judicial nominees currently pending on the Senate floor, 25 of whom were reported out of committee either unanimously or with strong bipartisan support and 9 of whom have been nominated to fill vacancies that are “judicial emergencies” as determined by the Administrative Office of the U.S. Courts.

For the most accurate, up-to-date information on the judicial selection process, visit the Judicial Selection Project page.

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Corporate Court Grants Cert. in Human Rights Cases

The United States Supreme Court today granted cert. in two cases that affect the rights of individuals seeking to hold corporations and other organizations responsible for human rights violations.

In Kiobel v. Royal Dutch Petroleum, twelve Nigerian nationals sued Royal Dutch Petroleum and two other oil companies for aiding and abetting human rights abuses committed in the Ogoni Region of Nigeria in the early 1990s. To protest the environmental damage caused by the defendants' oil exploration and production in the Ogoni region, Nigerian residents organized the “Movement for Survival of Ogoni People.” Plaintiffs allege that defendants then enlisted the Nigerian government to suppress the Ogoni activists.

In 1993 and 1994, the Nigerian military was involved in a variety of human rights abuses – shooting, killing, beating, raping, and arresting residents, as well as destroying and looting property – allegedly with the assistance of defendants.

To obtain compensation, and to deter future corporate wrongdoing, plaintiffs brought their claims under the Alien Tort Statute (ATS), alleging that defendants had aided and abetted the Nigerian government in violating the law of nations, including extrajudicial killing, crimes against humanity, torture or cruel, inhuman, and degrading treatment, arbitrary arrest and detention, forced exile, property destruction, and violation of the rights to life, liberty, security, and association.

The District Court dismissed some of the plaintiffs’ claims, finding that they were not established clearly enough under customary international law, while permitting the remainder to proceed. Both parties appealed the court’s ruling. Rather than decide the issues that had been certified for appeal, in a 2-1 decision, a panel of the Second Circuit Court of Appeals dismissed all claims by finding that corporations are not liable under the ATS.

The Alien Tort Statute, which was enacted by the first Congress in 1789, establishes jurisdiction for torts “committed in violation of the law of nations or a treaty of the United States.” Considering the limited jurisdiction of the ATS, the Second Circuit majority concluded that, while states and individual men and women have been held liable for human rights violations, corporations have not. The majority acknowledged that corporations are generally considered by U.S. courts to be “persons,” with corresponding rights and liabilities. However, it insisted that liability under domestic law – including under the laws of “most or even all ‘civilized nations’” – does not create a norm of customary international law.

As Judge Pierre Leval, who concurred only in the judgment, stated in a separate opinion, the majority “deal[t] a substantial blow to international law and its undertaking to protect fundamental human rights” by creating a rule “[w]ithout any support in either the precedents or the scholarship of international law. In Judge Leval's view, the majority was wrong to derive a lack of precedent for the civil compensatory liability of corporations based on the lack of jurisdiction for international criminal tribunals.

Furthermore, the court deemed the matter a jurisdictional question, which the court may address on its own at any point, rather a question of the merits of the case, which is waived if not raised by the defendants. The Second Circuit’s holding created a split among the circuits, as the Eleventh Circuit has held that corporations can be held liable under ATS just like any private party. The issue of corporate liability under the ATS is also pending in the D.C., Seventh, and Ninth Circuits.

The Supreme Court will also hear argument in the related case of Mohamad v. Rajoun. In that case, the family of a U.S. citizen, who allegedly died of injuries sustained during torture by officers of the Palestinian Authority and the Palestine Liberation Organization, sued under the 1991 Torture Victim Protection Act (TVPA). The D.C. Circuit affirmed the district court’s dismissal of plaintiffs’ claims on the grounds that the TVPA – which establishes the civil liability of “individuals” – applies only to natural persons, not to organizations. If the Supreme Court affirms the lower courts’ decisions in favor of the defendants in each of these cases, it will allow corporations and other organizations to act with impunity to perpetrate crimes against humanity.

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Protesters Arrested at the Corporate Court

Protesting the corrupting influence of corporate money in government, 19 people, including Princeton University professor Cornel West, were arrested on the steps of the United States Supreme Court on Sunday.

After attending the morning dedication of the new Martin Luther King, Jr. Memorial on the National Mall, some 250 protestors marched from Freedom Plaza to the Court. Speaking to those gathered, many of whom were carrying signs that read “Human Need Not Corporate Greed,” West declared, “We want to bear witness today that we know the relation between corporate greed and what goes on too often in the Supreme Court decisions.”

The protesters were part of the October2011: Stop the Machine movement that has been occupying Freedom Plaza since October 6. Stop the Machine, like the Occupy DC and Occupy Wall Street movements, has been protesting the ways in which large sums of money from corporate interests are skewing politics and the economy to favor the wealthiest one percent of the population at the expense of the interests and well-being of the other ninety-nine percent of the population.

An example of Supreme Court decisions being denounced by the protesters is the 2010 Citizens United v. FEC ruling that allowed corporations to spend unlimited amounts of money on advertising to support or attack candidates in elections. One of the October2011 organizers, Kevin Zeese, said: "It is a fitting tribute to Dr. Martin Luther King, Jr. for Dr. West and the others to risk arrest protesting the unfair wealth divide and the Supreme Court empowering money over voters. In the battle for a real, participatory democracy getting money out of politics is a critical step." One protestor held a sign reading, “I can’t afford my own politician so I made this sign”; another read “No $$, No Voice.”

Alliance for Justice has been active in tracking and reporting on the Court’s numerous decisions in favor of big-money special interests through its Corporate Court campaign. To learn more about the Corporate Court, including past rulings and upcoming cases, see Alliance for Justice’s Corporate Court: Open For Business webpages.

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Arbitration: Is It Fair When Forced?

“Arbitration: Is It Fair When Forced?” was the subject of a Senate Judiciary Committee hearing held on Thursday, Oct. 13.

Sen. Al Franken (D-MN), sponsor of the Arbitration Fairness Act (S. 987) focused his questions and comments on the ways in which mandatory arbitration clauses put everyday Americans at a disadvantage in seeking justice against large corporations. Mandatory arbitration clauses, often embedded deep in the fine print of a contract, compel parties to give up their right to sue in court when they have a dispute. Instead of going before a judge and a jury, people who sign those contracts -- such as cell phone or employment contracts -- to appear before privately hired arbitrators... who are often hired by the corporation.

Among witnesses testifying was Dr. Deborah Pierce, a physician specializing in emergency medicine. Dr. Pierce described the forced arbitration process she underwent when she brought a claim against her employer for gender-based employment discrimination. Because an arbitration clause was a mandatory part of her employment contract, Dr. Pierce was barred from bringing her complaint in a court of law; instead, she was forced to take part in an arbitration process that was skewed in favor of her employer, who had a prior relationship with the organization appointing the arbitrator. Dr. Pierce was required to pay over $200,000 in arbitration costs, including half of the $450/hour fee charged by the arbitrator. People of lesser means simply would not have been able to afford to arbitrate their claims at all. When Dr. Pierce lost her case and argued that the arbitrator did not correctly apply the law to her case, the organization supplying the arbitrator responded that it “does not certify or attest to the abilities, competence, or performance of its arbitrators, and that it does not make any ‘warranties about the ability of the arbitrator to weigh facts and law.’”

Witnesses opposing the Arbitration Fairness Act attempted to argue that forced arbitration was beneficial to ordinary people, claiming that without it companies might not be willing to offer services like credit cards at all.

Questioning Victor Schwartz, a lawyer representing the U.S. Chamber of Commerce, Sen. Franken asked whether he thought it was fair to have people sign contracts with hidden mandatory arbitration clauses.  The Chamber lawyer simply replied “fairness is in the eyes of the beholder,” and other witnesses argued that people wishing to avoid mandatory arbitration could simply avoid opening bank accounts, buying mobile phones, or engaging in any activity that involves signing contracts. Under further questioning by Sen. Franken and Sen. Richard Blumenthal (D-CT), they were forced to concede that it was nearly impossible, in the 21st century to avoid the clauses which appear in the vast majority of credit card contracts, car financing arrangements, cell phone contracts, nursing home residency agreements, and in almost every agreement to purchase a good or service online.

Sen. Sheldon Whitehouse (D-RI), pointed out that the right to a court trial was a right held to be essential to the working of our American democracy by the Founders—so much so that a system to provide for courts of law and the right to a trial by jury in certain situations are written into the Constitution.  He described the situation posed by mandatory arbitration clauses as one in which citizens are unknowingly forced to sign away their rights to a fundamental freedom guaranteed in the Constitution, and wondered if the opinions of some of his colleagues about such clauses might be different if, within the fine print of a contract, people were forced to agree to give up their 2nd Amendment right to bear arms.

The Arbitration Fairness Act, introduced by Senator Franken and co-sponsored by Senators Blumenthal, Whitehouse, and others, would amend the Federal Arbitration Act to state that “no predispute arbitration agreement shall be valid or enforceable if it requires arbitration of an employment dispute, consumer dispute, or civil rights dispute.” This act would return arbitration to its original intent under the law—as a process into which parties of equal power and standing could voluntarily choose to enter when a dispute arose and they both wanted to seek an alternative to litigation. Alliance for Justice is one of many organizations that signed a letter to the Senate Judiciary Committee supporting the Arbitration Fairness Act.

To learn more about the dangers of mandatory arbitration and the ways in which recent decisions by the Supreme Court to uphold forced arbitration clauses are benefiting corporations in evading justice when they violate the rights of ordinary people, download Alliance for Justice’s new report, Arbitration Activism: How the Corporate Court Helps Business Evade Our Civil Justice System.

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Senate Confirms Three District Court Nominees

Today, the Senate confirmed Alison Nathan to the United States District Court for the Southern District of New York by a vote of 48-44; Susan O. Hickey to the United States District Court for the Western District of Arkansas by a bipartisan vote of 83-8; and Katherine B. Forrest to the United States District Court for the Southern District of New York by a unanimous voice vote.

The Senate took no action on 27 other judicial nominees currently pending on the Senate floor, 26 of whom were reported out of committee either unanimously or with strong bipartisan support and 9 of whom have been nominated to fill vacancies that are “judicial emergencies” as determined by the Administrative Office of the U.S. Courts. There are now 107 current and future vacancies in the federal judiciary—1 in 8 judgeships— and only 7 fewer than there were at the beginning of the current Congress.

With the confirmation of Alison Nathan, the number of life-tenured openly gay federal judges has increased to three; two of these were appointed by President Obama and one by President Clinton.

For the most accurate, up-to-date information on the judicial selection process, visit the Alliance’s Judicial Selection webpage.

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Thirty Nominees Awaiting Final Senate Votes

Today the Senate Judiciary Committee voted five judicial nominees out of committee, moving them forward to the full Senate for confirmation, bringing the total number of nominees awaiting floor votes to 30.  

Adalberto José Jordán, nominee to be United States Circuit Judge for the Eleventh Circuit, and three United States District Court nominees: Mary Elizabeth Phillips to the Western District of Missouri, Thomas Owen Rice to the Eastern District of Washington, and David Nuffer to the  District of Utah were reported out on a unanimous, en banc voice vote. John M. Gerrard to the District of Nebraska, was reported out on a bipartisan voice vote, with only one senator voting no.

Both Jordán and Nuffer have been appointed to fill vacancies designated as “judicial emergencies” by the Administrative Office of the United States Courts. Currently there are 32 judicial emergency vacancies, with 20 persons nominated to fill the seats. 

Responding to the strain being placed on our justice system by the lack of judges in the courts, the Committee also reported out S.1014, the Emergency Judicial Relief Act on a vote of 15-3, with Senators Grassley (R-IA), Sessions (R-AL), and Coburn (R-OK) voting no. The bill would establish ten new judgeships in parts of the country where courts are overloaded because the bench is woefully understaffed.

Holding swift votes on the 30 nominees pending on the Senate floor, all but 1 of whom came out of Committee with little or token opposition, is one way the Senate can take direct, immediate action to ease the burden on our judiciary and ensure that the American people have access to justice.

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

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Florence v. Board of Chosen Freeholders: Stripping Away Privacy Rights?

Today, the Court heard oral arguments for Florence v. Board of Chosen Freeholders, a case involving the blanket strip search policy of corrections facilities in New Jersey.  The question before the Court is whether individuals’ Fourth Amendment right against unreasonable searches is violated when, upon arrest and placement in a county jail for even minor offenses, they are subjected to a visual body cavity search in the absence of reasonable suspicion that they carry contraband.

Albert Florence and his family were stopped by a state trooper for a traffic violation in Burlington County, New Jersey.  After running Florence’s tags, the trooper arrested him for non-payment of a court fine, even though Florence carried proof of payment of that fine in his car for just such a situation.  At both the Burlington County Detention Facility and the Essex County Correction Facility, Florence was forced to undergo a thorough strip search, including a visual body cavity search, by the corrections officers.

Florence and other people arrested for minor offenses, such as traffic arrests for running a stop sign or having a broken headlight, brought a class action lawsuit against the corrections facilities and county officials.   The district court found that the officials violated Florence’s Fourth Amendment right against unreasonable searches.  The Third Circuit Court of Appeals reversed, holding that the facilities’ security interest in preventing the smuggling of contraband outweighs the privacy interests of detainees.

During argument today, the justices focused on when a suspicionless search would be reasonable and whether body cavity searches were significantly more intrusive than simple visual searches. Justice Kennedy thought that the blanket search policy might be valid because, in his own experience, county jails are more dangerous than state penitentiaries.  Justice Scalia questioned whether it made sense to draw the line for visual cavity searches at the point where it would be allowed for felony arrests but not arrests for minor offenses.

However, when the counties’ attorney suggested that reasonable suspicion was not required for a body cavity search, he received push back from some justices.  Justice Sotomayor said that the requirement of reasonable suspicion for cavity searches, which has been adopted in virtually every circuit, has been fairly successful, and she questioned the advisability of changing the rule to allow jails to further invade individual privacy.  Sotomayor further observed that contraband generally comes into correction facilities through contact visits and corrupt guards, rather than through intake.  Justice Kagan observed that for “somebody who is arrested on the spot, there is no opportunity for planning, for conspiracy with respect to contraband.”

If the Supreme Court allows this blanket body cavity search policy to stand, it will further erode Fourth Amendment protections against police searches.

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Corporate Court grants cert. in home mortgage scam case

In another case that pits everyday Americans against large corporation, the Supreme Court has granted cert. in the mortgage loans case Freeman v. Quicken Loans Inc. The case arises from a group of lawsuits out of Louisiana in which borrowers, including Tammy and Larry Freeman, claim that Quicken Loans violated the Real Estate Settlement Procedures Act (RESPA) by charging them loan-discount fees on their mortgages without providing reduced interest rates in return.

It is common practice for people taking out a home mortgage loan to pay “points,” which are based on a percentage of the overall loan amount.  But the expectation is that the lender will reduce the borrower’s interest rate over the life of the loan.  In this case, the Freemans secured a mortgage loan from Quicken and were charged $980 for a “loan discount fee” (the points), but Quicken did not provide the Freemans and other borrowers the discounted rate they paid for.  Through such fraudulent practices, Quicken received hundreds or thousands of dollars in ill-gotten fees from each borrower.

The question for the Supreme Court is how to interpret RESPA, which prohibits kickbacks and other abuses in the mortgage industry.  Here is the key language in the statute:

No person shall give and no person shall accept any portion, split, or percentage of any charge made or received for the rendering of a real estate settlement service in connection with a transaction involving a federally related mortgage loan other than for services actually performed.

The Freemans argue that the Act was intended to forbid unearned fees, regardless of whether a third party was involved in the improper fee arrangement.  Quicken argues that the law only prohibits lenders from receiving an unearned fee when that fee is divided with a third party in the form of a kickback.  The Fifth Circuit agreed with Quicken, ruling that there was no violation of the Act if an unearned fee is charged by a single party and there is no third party taking a share.

The Circuit Courts are divided on this issue, with the Fourth, Fifth, Seventh and Eight Circuits limiting the Act to third party kickbacks and the Second, Third and Eleventh Circuits believing that the Act applies to all unearned fees. The Department of Housing and Urban Development supports the interpretation that the statute should apply to all unearned fees.  The Solicitor General has filed a brief supporting the Freeman’s petition for certiorari.

This is the second RESPA case on the Corporate Court’s docket this year.  The other case is First American Financial Corp. v. Edwards, which threatens to undermine a host of laws that protect consumers by awarding damages when corporations violate them.

If the Court sides with Quicken, it will allow mortgage lenders to cheat homebuyers out of hundreds or thousands of dollars without giving them anything in return.

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Medical-Malpractice Narrative Undercut by Simple Reality

Are "skyrocketing" medical malpractice insurance premiums making it impossible for health-care practitioners to keep delivering quality care to patients? That's the current narrative in support of so-called tort reform legislation, but an important article published in Medscape Today (subscription required) undercuts that narrative with simple facts.

Medical groups, including the AMA, have constructed this narrative as part of their push for a legislative "fix" for the so-called problem, and have recently asked the Congressional deficit "supercommittee" to include medical malpractice caps in any deficit-reduction proposal. They've been working to convince patients and politicians that insurance claims are driving up medical costs, and that Washington can rein in health-care costs by enacting a national cap on medical malpractice damage awards for patients who are injured as a result of their medical treatment.

The Medscape Today article notes that despite the rhetoric, medical malpractice insurance premiums have actually been declining.

Although there was a time when the insurance premiums were increasing, the article notes:

[I]n 2011, they declined for the fourth straight year for 3 representative medical specialties, according to a publication called Medical Liability Monitor (MLM). Its annual rate survey, highly regarded in the field, was published this week.

Rates for obstetrician/gynecologists, general internists, and general surgeons decreased on average by a miniscule 0.2% this year after a 0.5% decrease in 2010. Rate decreases of 2.5% in 2009 and 4% in 2008 were more substantial. . . .

[A] downward trend is a downward trend, even though it is leveling out, and another upward trend is not imminent, said Chad Karls, a consulting actuary from a company called Milliman, who edits the MLM rate survey.

"Rates will remain flat in the foreseeable future," Karls told Medscape Medical News.

Medscape acknowledges that it is possible that caps in some states may have contributed to the national decline of insurance rates, but points out that this possibility falls far short of the claims made by supporters of a national cap. Those supporters claim that statewide caps have:

[L]ed to fewer malpractice claims being filed, which in turn has lowered premiums — a pattern attested to by a number of academic articles. However, premiums also have decreased in states, such as Oregon, that do not cap noneconomic damages.

"So caps can't be the only reason," Karls said. "I think the push for patient safety and risk management also has played a role" in reducing claims and premiums.

The article notes that even the American Medical Association seems to acknowledge that the so-called “crisis” in premium rates is no longer a crisis, referring merely to “rising,” rather than “soaring” or “skyrocketing” costs of premiums in a recent letter to the Joint Select Committee on Deficit Reduction which urges the Committee to include medical malpractice caps and tort reform as part of its savings plan for the federal budget.

Alliance for Justice, along with twenty other consumer and patient-safety groups, sent an open letter to the deficit supercommittee refuting the claims of malpractice cap supporters. The letter urges the committee not to include caps in their plan, and lists the many ways in which such caps would actually increase government costs (for example, by making it difficult or impossible to recoup Medicare expenses lost to fraud) while severely compromising patient safety.

For more information on AFJ's efforts to ensure that patients don't lose their rights to seek justice in court, see our Civil Justice webpage.

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Senate Confirms District Court Nominee

This evening the Senate confirmed Jane Triche-Milazzo to the Eastern District of Louisiana on a vote of 98-0. Judge Milazzo was nominated on March 16^th, 2011. There are 25 other judicial nominees pending on the floor, all but one of whom were reported out of committee unanimously or with strong bipartisan support. Five more nominees are likely to be reported to the floor this Thursday.

For the most accurate, up-to-date information on the judicial selection process, visit the Alliance for Justice’s website.

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CompuCredit v. Greenwood: Does a “Right to Sue” Really Mean a Right to Sue?

This morning, the Supreme Court heard oral arguments in CompuCredit v. Greenwood, a case that will decide whether a federal law requiring that consumers be informed of their “right to sue” voids mandatory arbitration clauses in credit repair contracts.

Plaintiffs in this case are a class of consumers who sued CompuCredit for deceitful marketing tactics under the Credit Repair Organization Act (CROA).  These consumers signed up for credit cards which CompuCredit claimed would help them rebuild their credit. Instead, credit card holders were charged $257 per year in undisclosed fees, plus interest, if the fees were not paid.  The credit card agreement also included a mandatory arbitration clause which the consumers now claim is invalidated by the CROA.

The CROA requires that agreements between credit repair companies and consumers must contain the language: “You have the right to sue a credit repair organization that violates the Credit Repair Organization Act.”  The consumer plaintiffs claim that this language voids the mandatory arbitration clause in CompuCredit’s contracts with them, thus giving them an actual, meaningful “right to sue.” CompuCredit argues that consumers must go to arbitration rather than bringing their lawsuit in court because the CROA requires only disclosure of a right to sue and not an actual right to sue.  Both the federal district court and the Ninth Circuit Court of Appeals ruled in favor of the consumers, holding that the CROA voids the arbitration clause.

The argument today found the justices on both sides of the issue. Justice Ginsberg observed that the statute’s language requiring consumers to be notified of a right to sue must include an actual right to sue, as anyone who read the notice would believe.  Likewise, Justice Kagan observed that the CROA “says you have a right to sue, and you [-- CompuCredits’ counsel --] are asking us essentially to read that language as: You have a right to bring a claim in court, but it's probably going to end up in arbitration because of the nature of your form contract.”  Justice Scalia, on the other hand, was open to CompuCredit’s reading of the “right to sue” language as merely providing notice and not a substantive right because the language creating the requirement was not located in the substantive part of the statute.  

This case comes to the Supreme Court at a time when consumers are increasingly being forced from the courts into mandatory arbitration. The Court’s recent cases involving arbitration agreements have held that they are enforceable under the Federal Arbitration Act. 

Last term in AT&T v. Concepcion, the Court upheld a company’s right to include in its standard contract a waiver of the consumer’s right to sue or participate in a class action.  This was devastating for consumers’ rights because an individual consumer will not have the resources or incentive to take on a corporation when they have been cheated out of a small amount of money and must find strength in numbers to bring such a lawsuit. If consumers are not allowed to band together as a group, corporations will not be held accountable for their deceptive or harmful practices.  One of the few remaining exceptions to the rule in AT&T is where federal law provides an express right to sue.

This Thursday, Senators Al Franken and Richard Blumenthal will lead a Senate Judiciary Committee hearing entitled “Arbitration: Is It Fair When Forced?” to address the problems caused by the Supreme Court’s forced arbitration cases.

AFJ released a special report today highlighting how the Corporate Court has used the arbitration system to help businesses evade justice.

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Former Judges Speak Out on Overmilitarizing Counterterrorism Efforts

In an op-ed last Friday, three former federal judges criticized Congressional attempts to “overmilitarize” America’s counterterrorism efforts.

Former D.C. Circuit Court of Appeals Judge and AFJ Champion of Justice Honoree Abner Mikva, former District Court Judge for the Western District of Texas William Sessions, and former Third Circuit Court of Appeals Judge John Gibbons argue that legislation pending in Congress undermines the fundamental role of our nation’s courts by giving the power of “judge, jury and jailer” to the U.S. military.

The National Defense Authorization Act of 2012, which has passed the House and is awaiting a vote in the Senate, includes provisions that would codify the practice of indefinitely detaining terrorist suspects without charges. The bill would be applicable to anyone – even U.S. citizens – detained in anti-terrorist efforts anywhere in the world, including on U.S. soil.

The group of judges emphasized the fact that the criminal justice system, rather than military commissions, is best equipped to handle terrorism cases, and has the most experience doing so. While civilian courts have the benefit of hundreds of terrorism-related trials, military commissions, such as the one at Guantanamo Bay, have handled few such trials and are plagued by constitutional problems. The judges concluded by calling on President Obama and Congress “to support a policy for detention and trial of suspected terrorists that is consistent with our Constitution and maintains the use of our traditional criminal justice system to combat terrorism.”

In monitoring our government’s counterterrorism programs, AFJ has sought to ensure that our most cherished constitutional freedoms are not sacrificed, and that those who made the decision to condone torture are held to account. Click here to learn more about our work for torture accountability.

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Obama Nominates Shwartz to the Third Circuit

President Obama has nominated Judge Patty Shwartz to the United States Circuit Court of Appeals for the Third Circuit. Since 2003, she has served as a Magistrate Judge on the United States District Court for the District of New Jersey.  She has taught as an adjunct professor of law at Fordham University School of Law since 2009.

Judge Shwartz graduated from Rutgers University in 1983 with highest honors and was named the Outstanding Woman Law Graduate of her class upon graduating from the University of Pennsylvania Law School in 1986.  Her previous legal experience includes working as an associate at Pepper, Hamilton & Scheetz (now Pepper Hamilton LLP);  serving as a law clerk to the Honorable Harold A. Ackerman of the United States District Court for the District of New Jersey from 1987 to 1989; and working in a variety of positions in the United States Attorney’s Office for the District of New Jersey from 1989-2002.

With this nomination, there are now 53 nominees pending for the 109 current and future vacancies in the federal judiciary.  For the most up-to-date and comprehensive information on judicial nominations, visit the Judicial Selection Project webpage.

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Wallach, Four District Court Nominees Voted Out of Committee

Today the Senate Judiciary Committee voted five judicial nominees out of committee in a unanimous, en banc vote, moving them forward to the full Senate for confirmation. The nominees are Evan Wallach, nominated to be a United States Circuit Judge for the Federal Circuit, and four United States District Judge nominees: Dana Christensen to the District of Montana, Cathy Bencivengo to the Southern District of California, Gina Marie Groh to the Northern District of West Virginia, and Margo Brodie to the Eastern District of New York.  They now join 21 other pending nominees awaiting confirmation by the Senate.

Consideration of all five had been “held over” by Republicans at the last meeting of the Committee.  Holding over nominees, even when there is no opposition to their appointment, has been a consistent tactic by Republican senators seeking to slow down the judicial confirmation process. This tactic was continued at the Committee today, with Republican ranking member Sen. Grassley (R-IA) automatically holding over the nominations of Adalberto José Jordán to the Eleventh Circuit Court of Appeals and District Judge nominees John M. Gerrard, Mary Elizabeth Phillips, Thomas Owen Rice, and David Nuffer to the District of Nebraska, the Western District of Missouri, the Eastern District of Washington, and the District of Utah, respectively.

Both Jordán and Nuffer have been appointed to fill vacancies designated as “judicial emergencies” by the Administrative Office of the United States Courts.  Also automatically held over was consideration of S.1014, Emergency Judicial Relief Act, a bipartisan bill that would establish ten new judgeships in parts of the country where courts are overloaded because the bench is woefully understaffed.

Rather than playing delaying games in an attempt to keep President Obama’s nominees off the bench, Republicans in the Senate should be moving with all speed to ensure that these vacancies are filled so that people seeking justice in the courts of our nation can be heard.

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

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Supreme Court Hears Oral Argument in Hosanna-Tabor v. EEOC

Yesterday, the Supreme Court heard oral arguments in Hosanna-Tabor v. EEOC, a case over whether a disabilities discrimination claim can be brought against a religious school by a secular teacher. 

Cheryl Perich was a teacher of primarily secular subject matter at Hosanna-Tabor Lutheran School.  She had been certified in the past as a “called” teacher within her denomination, meaning she had undergone some training in religious doctrine.  After she became ill and took medical leave, the school tried to get her to resign. When this failed, they expressed concern that Perich could not handle a classroom because of her disability.

When Perich threatened to sue the school for disability discrimination, the school fired her.

At issue in this case is whether Hosanna-Tabor was properly acting within the court-created “ministerial exception” to the Americans with Disabilities Act (ADA) when they fired Perich.  Under the exception, which is intended to uphold the First Amendment guarantee of the separation of church and state, a religious institution is immune from discrimination suits if a fired employee had primarily religious duties.  The ministerial exception is largely accepted in the lower courts but has not yet been addressed by the Supreme Court.

During yesterday’s argument, Justice Scalia was vocally in favor of the Church’s position, saying “It’s none of the business of the government to decide what the substantial interest of the church is.”  However, other justices questioned whether Perich could be considered a ministerial employee who would be subject to the exception.

When the attorney arguing on behalf of Perich suggested that she was not a “minister” because she performed an important secular function, Chief Justice Roberts observed that under such logic the Pope, as a head of state in addition to being the head of the Roman Catholic Church, would be considered not a minister.

Justice Sotomayor expressed concern that allowing the exception to stand would keep teachers from reporting illegal conduct to the government, and asked the lawyer representing the church whether a church should be allowed to fire a teacher for reporting a sex abuse scandal.

If the Court sides with the church in this case, they will be condoning retaliation and discrimination against a teacher at a religious school for reasons unrelated to religious doctrine.  Such a decision would insulate religious institutions from discriminating against employees with disabilities under the ADA.

Coverage of oral arguments can be found in the Washington Post and via Reuters. A transcript of the argument can be downloaded from the Supreme Court’s website.

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Steve Jobs and introspection about oneself

As the whole world knows, Steve Jobs died. And it wasn't a surprise. He'd been battling illness for years. He was the Thomas Edison of our era.

But let's go beyond that. Why?  Because of this famous Stanford commencement speech: 

Several quotes stick out the most, and they have been repeated ad infinitum all over the Internet and the news. I will repeat them anyway, taken from The Stanford Daily's text of the speech:

You've got to find what you love. And that is as true for your work as it is for your lovers. Your work is going to fill a large part of your life, and the only way to be truly satisfied is to do what you believe is great work. And the only way to do great work is to love what you do. If you haven't found it yet, keep looking. Don't settle. As with all matters of the heart, you'll know when you find it. And, like any great relationship, it just gets better and better as the years roll on. So keep looking until you find it. Don't settle.

Remembering that I'll be dead soon is the most important tool I've ever encountered to help me make the big choices in life. Because almost everything — all external expectations, all pride, all fear of embarrassment or failure - these things just fall away in the face of death, leaving only what is truly important. Remembering that you are going to die is the best way I know to avoid the trap of thinking you have something to lose. You are already naked. There is no reason not to follow your heart.

No one wants to die. Even people who want to go to heaven don't want to die to get there. And yet death is the destination we all share. No one has ever escaped it. And that is as it should be, because Death is very likely the single best invention of Life. It is Life's change agent. It clears out the old to make way for the new. Right now the new is you, but someday not too long from now, you will gradually become the old and be cleared away. Sorry to be so dramatic, but it is quite true.

Your time is limited, so don't waste it living someone else's life. Don't be trapped by dogma — which is living with the results of other people's thinking. Don't let the noise of others' opinions drown out your own inner voice. And most important, have the courage to follow your heart and intuition. They somehow already know what you truly want to become. Everything else is secondary.

Wow.  If that doesn't hit you, nothing will. Facing your own mortality is absolutely no fun at all, but death is the one thing in life that is absolutely guaranteed.

Obviously, I'm no Steve Jobs.  No one is.  But it nonetheless makes you think about your own life. What do I love?  My family? Of course.  My wife?  Far beyond my poor power to express it. 

But my job -- law? I don't know.  At one time, yes.  But I honestly don't believe it is great work anymore much of the time.  I think the profession is completely different than it was in 1993.  For better or worse, providing legal services is often more of a commodity than a learned profession.  Am I good at it? I like to think so. But am I as good or better at lawyering than anything else? I don't think so. I have been told that I am good at a lot of things.  Maybe I am and maybe I'm not. 


As a kid I wanted to be a lawyer and then go into politics so I could serve the people and make the country a better place. This was entirely my choice in life -- my parents never pushed me in any direction.  Then I saw how dirty politics was. 

In college, virtually all my professors -- including the pre-law adviser --  thought I would make a terrific member of the academy as one of their colleagues.  But that didn't work out for many reasons, most of them my own and some of them because of the market and changes in the profession. (Let's be honest and politically incorrect: there aren't many jobs out there at all, let alone for those in my situation who didn't want to teach what is now the current rage in that profession.)

So it was back to law, the original choice. I enjoyed law school.  The professor I worked for there - one of the smartest guys on the planet in my opinion - also thought I would make a great teacher.  Deja vu, huh?

And I generally enjoyed my law practice the last -- wow -- almost eighteen years now.  It is only recently that I have felt like there has to be more to this than what I have been doing.  So you have those lingering thoughts: Have I settled?  Maybe.  Owning my own law firm gives me the flexibility to take off a lot of Wednesdays to be with my wife on her day off.  A 9-5 job usually doesn't.  Other jobs might pay as well but entail more working hours.  Some call it golden handcuffs.  I don't.

My wife is smarter than me.  She shrugs this off by and large and just does her job -- which I think is much more fulfilling -- because it is what she knows and is what she is good at.  She can't imagine doing anything else, while I can imagine doing ten other things as well, albeit for less money and while working more hours.
Is this my announcement that I am retiring from law?  Absolutely not.  But it does make me think: What else is out there? Is this truly my destiny, or is it something else?  What does my heart in fact say?  I don't know right now.  The death of someone like Steve Jobs at all too young an age has spurred me to be more introspective about my own life and my own future, and maybe it will for you, too.  Whether we have the courage of those convictions remains to be seen.  So stay tuned, and stay in tune with your life every day, because you never know when it will be your last.

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Hearings on Five Nominees, Two to Fill Judicial Emergencies

The Senate Judiciary Committee today held hearings on the nominations of Stephanie Dawn Thacker to the United States Court of Appeals for the Fourth Circuit and of Michael Walter Fitzgerald, Ronnie Abrams, Rudolph Contreras, and Miranda Du to serve as United States District Judges in the Central District of California, the Southern District of New York, the District of Columbia, and the District of Nevada, respectively.

If confirmed, Fitzgerald and Du will both be filling vacancies that have been deemed “judicial emergencies” by the Administrative Office of the U.S. Courts. Senator Dick Durbin (D-IL) presided over the hearings; also in attendance were committee members Senator Mike Lee (R-UT) and Senator Chris Coons (D-MD).

With 108 vacancies in our federal courts, 32 of them judicial emergencies, the Senate should move swiftly to put these well-qualified nominees on the federal bench.

For the most up-to-date and comprehensive information on judicial nominations, download the Alliance for Justice’s Judicial Selection Snapshot and The State of the Judiciary May–August 2011: Judicial Nominations in the 112th Congress.

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Senate Confirms Six Judicial Nominees

Yesterday evening the Senate confirmed Henry F. Floyd to the Fourth Circuit Court of Appeals by a vote of 96-0. Judge Floyd was previously a United States District Judge for the District of South Carolina. The Senate also confirmed the following nominees to serve as District Court judges by unanimous consent: Nannette Jolivette Brown for the Eastern District of Louisiana; Nancy Torresen for the District of Maine; William Francis Kuntz, II for the Eastern District of New York; Marina Garcia Marmolejo for the Southern District of Texas; Jennifer Guerin Zipps for the District of Arizona.

Four of the six confirmed nominees—Floyd, Kuntz, Marolejo, and Zipps—are filling vacancies that have been designated judicial emergencies by the Administrative Office of the U.S Courts. Judge Zipps is filling the seat left vacant by the death of Judge John M. Roll in the shooting incident that severely injured Congresswoman Gabrielle Giffords (D-AZ). The other confirmed nominees filling judicial emergencies, all of whom faced no opposition, all waited over 200 days to take their seats on the bench. Judge Floyd waited 249 days, Judge Kuntz waited 209 days, and Judge Marmolejo waited an incredible 433 days to be confirmed.

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

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Supreme Court Hears Oral Argument in Douglas v. Independent Living

Today the Supreme Court heard oral arguments in Douglas v. Independent Living of Southern California, a case which could affect the ability of Americans to have their day in court.

In the Douglas case, a group of Medicaid beneficiaries and providers challenged California’s attempt to cut reimbursement rates in violation of federal law. The Supreme Court today heard arguments on whether these private plaintiffs can bring a suit against the state for violating federal law.

If the Court finds in favor of California, Medicaid recipients will have their benefits reduced and have a harder time getting care. It will also pave the way for states to gut other federally-funded public assistance programs. 

In today’s arguments, the justices appeared split on the issue of whether private actors could bring such lawsuits. Chief Justice Roberts seemed inclined towards California’s argument, noting that the court does not generally allow private actors to sue unless a law expressly says they may. Justice Breyer said he was troubled by giving federal judges too much authority to weigh in on Medicaid payments because it could lead to courts preventing federal agencies from “doing their business.” 

However, other justices seemed more inclined to side with the plaintiffs. Justice Ginsburg noted that there was no effective way to enforce the Medicaid Act without private plaintiffs. Justice Kagan censured California for putting the new rates in place before receiving federal approval in an attempt to do an “end run” around the regulatory process. 

Last week, AFJ released a report on the Douglas Case and its potential impact on everyday Americans. You can download a PDF of the report here.

Coverage of the oral argument is available from the AP and from the LA Times. A transcript is available from the Supreme Court's website.

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