March 2011

  • March 30, 2011

    Former Ohio Attorney General Richard Cordray, who garnered national attention for his efforts to hold financial institutions accountable for their heavy involvement in helping to create the Great Recession, is unlikely to be received warmly by financial industry heavyweights as he assumes leadership of the Consumer Financial Protection Bureau.

    In a recent profile, The Washington Post reports that Cordray, an ACS participant, is already raising concerns from the “representatives of the banking industry.”

    But consumer advocates and colleagues, the newspaper notes, are praising his work, and appointment to lead the federal financial watchdog group. (Last fall, The New York Times profiled Cordray’s legal action, as Ohio Attorney General, to hold companies like GMAC Mortgage accountable for allegedly filing false affidavits in scores of foreclosure proceedings.)

    The Post reports, “When the bureau officially opens this summer, Cordray will head a federal team with wide authority to write and enforce rules that will govern many of the firms that he butted heads with as a state official.”

    Cordray says his new role offers “a possibility to continue to do some of the most important work I felt I was doing as a state attorney general,” and “on a better footing, from a better foundation, with better tools, better authority and on a 50-state basis.”

    Illinois Attorney General Lisa Madigan lauded Cordray’s abilities, telling The Post, “He understands the financial, the economic, the fiscal things, as well as the law enforcement side of it. … To me, that’s the type of person you want in the position.”

    At the 2010 ACS National Convention, Cordray participated in a panel discussion on government regulation. Video of the discussion, “Regulation in the Age of Obama,” is available here.

  • March 29, 2011

    There was time, in the 1960s and ‘70s, when the United States was "more of a mind to tackle poverty," Georgetown University law school professor Peter Edelman tells Greg Kaufmann in an interview for The Nation.

    In "US Poverty: Past, Present and Future," Edelman, an ACS Board member and husband of Marian Wright Edelman, founder and president of the Children's Defense Fund, reflected on his storied career of fighting poverty. That career included working closely with Robert F. Kennedy and serving, for a time, in the Clinton administration. (Kaufmann notes that Edelman left his post in the administration in protest over its involvement in the creation of so-called welfare reform.)

    Today a sense of outrage is sorely lacking over the ever-growing number of people in poverty, Edelman (pictured at the 2010 ACS National Convention) says:

    We now have over 19 million people who live in extreme poverty - that's 6.3 percent of the population - unbelievable! These are people below half the poverty line - below about $8,500 for a family of three, $11,500 for a family of four. Up from 12.6 million in 2000! You have 6 million people in this country whose only income is food stamps - which provide income at just one-third of the poverty line. We've effectively destroyed welfare as a form of assistance - that's TANF (Temporary Assistance for Needy Families), the cash assistance that ought to go along with food stamps - because in so many states it's become virtually nonexistent. The states decide who gets it, and so in state after state - with a few exceptions - it's really hard to get on welfare.

    Regarding child poverty, Edelman says:

    Over 20 percent of children live in poverty, and over 36 percent of the extremely poor are children. Also, over half of the children in this country under age 6 who live in a household where there's a single mom are poor. That's another stunning number.

    Poverty in the country continues to hit certain races and ethnicities the hardest, Edelman adds:

    We still have poverty rates for African-Americans that are close to three times the white rate. Same for Latinos. But the African-American poverty rate tends to be more intergenerational, more persistent. Same for Native Americans. And what are the causes of that?

  • March 29, 2011
    Guest Post

    A gender discrimination case before the Supreme Court today that will decide whether women employees and former employees of Wal-Mart can proceed with a class action lawsuit against the company is among the "most important" discrimination cases, testing whether the force and intent of discrimination laws will be protected, said Marcia Greenberger, founder and co-president of the National Women's Law Center, during an ACS panel discussion about Wal-Mart v. Dukes.

    "Through the most technical and dense-sounding legal issues, this court will ultimately decide whether employees in this country, women in this country, minorities, others, older workers, disabled workers, will be able to hold employers accountable, or whether it will be left to an individual to uphold and protect her rights against the biggest employer in this country and have to find the resources on her own to combat the kind of litigation," Greenberger said.

    "It's the class action mechanism that allows employees to be able to bring these issues to the fore and to enable justice to be served and ultimately fairness to be meted out," she added.

    The procedural issues in the case include whether the class is properly before the court seeking injunctive relief when they are also seeking monetary damages as part of their claim, explained McGuireWoods lawyer Andrew Trask, who suggested the case was brought under the wrong provision, Rule 23(b)(2), and should have instead been brought under Rule 23(b)(3), which imposes a more onerous burden on the plaintiffs.

    But Suzette Malveaux, an associate professor of law at Columbus School of Law, Catholic University, explained that Rule 23(b)(2) is silent as to whether or not monetary damages may be sought, and that the rule's drafters intended to allow plaintiffs to seek monetary relief, so long as that relief did not overshadow any injunctive relief sought.

  • March 29, 2011
    Guest Post

    By Rick Hasen, Visiting Professor, University of California, Irvine School of Law. This analysis is cross-posted at the Election Law Blog.

    Will an adverse ruling in McComish doom future viable public financing plans?

    I have now reviewed the transcript of yesterday's oral argument. News reports from oral argument are unanimous in predicting that the Court will strike down the matching fund provision of Arizona's public financing law, which provides extra funding (up to a point) for candidates who participate in the voluntary public financing system and face a high spending opponent or a high independent spending against the candidate. This is no suprise; indeed I predicted this in June, when the Court granted an extraordinary stay in the case.

    More interesting at this point is the question whether there will remain other viable and constitutional public financing systems after the Arizona system falls. In Slate, I explained the logic of why a rational candidate would not choose to participate in a flat public financing system (like the way the moribund presidential public financing system works) unless there are adequate safeguards that the participating candidate won't be outspent. As I wrote at Summary Judgments back in November,

    [A ruling striking down the Arizona law] is likely to take away one of the only tools available to drafters of public financing measures to make such financing attractive to candidates. Public financing has a number of benefits, including reducing the threat of corruption and the appearance of corruption, providing a jump start for new candidates who are not professional politicians, and freeing up candidates and officeholders to have more time to interact with voters. But rational politicians who are serious candidates will not opt into the public financing plan unless they think they will be able to run a competitive campaign under the public financing system. The whole point of the extra matching funds in the Arizona plan is to give candidates assurance they won't be vastly outspent in their election. While an adverse ruling by the Supreme Court in McComish would not mean that all public financing systems would be unconstitutional, it would eliminate one of the best ways to create effective public financing systems.

  • March 29, 2011
    Guest Post

    By Emily J. Martin, Vice President and General Counsel, National Women's Law Center.

    The Supreme Court heard oral argument today in Wal-Mart v. Dukes, the case that will decide whether the hundreds of thousands of women employed at Wal-Mart stores around the country will be able to come together to challenge companywide policies leading to discriminatory pay and promotion decisions. The Court's decision will not only determine whether the women of Wal-Mart will be able to move forward with their claims; it may also determine whether class actions will continue to be viable for individuals across the country experiencing discrimination on the job.

    Why does this matter? Because women (and men) facing discrimination at work-and in particular pay discrimination-face significant obstacles to challenging that discrimination, as the National Women's Law Center set out in its friend-of-the-court brief in support of the women of Wal-Mart. Class actions help overcome these systemic obstacles.

    First, if women don't know how much men in their company are making, they won't know if they are making less. Evidence in this case indicates Wal-Mart had a pay secrecy policy, so if women found out about coworkers' salaries, it was by word-of-mouth or sheer accident. And this is not unusual. Employees typically have little or no information about their co-workers' wages and salaries. Indeed, many employers maintain rules explicitly barring discussion of pay within the workplace. In a recent survey by the Institute for Women's Policy Research, 50 percent of respondents, and 61 percent of private sector employees, reported that discussing pay was prohibited or discouraged in their workplace. And late last year, a minority of senators successfully blocked passage of the Paycheck Fairness Act, which would have prohibited employers from punishing employees who talk about their compensation. As a result, pay is hidden under a veil of secrecy, making pay discrimination difficult for individuals to detect. Class actions help lift this veil by subjecting an employer's discriminatory pay practices to judicial scrutiny regardless of whether each employee in the class has independently been able to gather the information to determine she has suffered pay discrimination.