February 2012

  • February 8, 2012

    by Nicole Flatow

    The U.S. Supreme Court’s decision last term rejecting a class action gender discrimination lawsuit against Wal-Mart was seen as a major blow to corporate accountability in discrimination cases. But the case is also proving its impact in areas outside of the employment or discrimination context.

    As Greenwire’s Lawrence Hurley reports, the Wal-Mart v. Dukes decision has been cited in several environmental decisions in both federal and state court, in just the first seven months since the case came down.

    Hurley provides details on three of the decisions, all of which deny class certification to plaintiffs attempting to band together to sue large companies that they allege had contaminated their water supplies.

    “The post-Wal-Mart court rulings so far also illustrate how keen the defense bar is to make the most of the Supreme Court case,” Hurley writes, quoting Richard Samp, a lawyer at the conservative Washington Legal Foundation.

    "The decision is being cited by virtually every defendant who is opposing class certification," Samp said.

    During a Senate Judiciary Committee hearing in June on the impact of Wal-Mart and a second case decided last term, AT&T v. Concepcion, University of Colorado law professor Melissa Hart warned:

  • February 8, 2012

    By Anthony F. Renzo, Professor of Law, Vermont Law School. Professor Renzo teaches constitutional rights litigation.


    Today in America nearly 20 percent of all federal prisoners (over 35,000) are confined in prisons managed by private corporations under contract with the Federal Bureau of Prisons. In its Jan. 10 opinion, Mennici v. Pollard, the U.S. Supreme Court ruled that one of those privatized prison inmates, Richard Lee Pollard, was barred from bringing a damage action in federal court against the individual corporate employees who violated his Eighth Amendment rights when they disregarded a serious medical condition that required treatment. The Court assumed that these employees were acting under color of federal law and, therefore, were federal actors subject to Eighth Amendment limitations.

    Nonetheless, in the 8-1 decision, the Court refused to imply a constitutional damage claim against these federal actors, denying a federal remedy to Pollard and thousands of other federal prisoners in privately managed prisons. According to the Court, an independent federal remedy was not available because the conduct that formed the basis for Pollard’s constitutional claim was also, at least in theory, a violation of state tort law.

    Pollard was imprisoned at California’s Taft Correctional Facility, managed under contract with the GEO Group, a private corporation. Pollard had every reason to believe that his lawsuit was authorized by the Supreme Court’s 1980 decision in Carlson v. Green, which held that federal prisoners had an implied right of action for damages against individual federal officials responsible for violating the Eighth Amendment rights of federal inmates. Carlson, in turn, was based on principles established in Bivens v. Six Unknown Named Agents, the landmark 1971 decision in which the Supreme Court ruled that the judiciary has the constitutional authority to imply a damages remedy when federal actors violate the Fourth Amendment “regardless of whether states … would prohibit or penalize the identical act” under state tort law.

  • February 7, 2012

    by Jeremy Leaming

    In a striking, though perhaps short-lived, victory for marriage equality, a federal appeals court panel invalidated California’s infamous Proposition 8, a ballot initiative that had overturned same-sex marriage in the state.

    The U.S. Court of Appeals for the Ninth Circuit ruled 2 -1 today that the anti-equality measure “served no purpose, and no effect, other than to lessen the status and human dignity of gays and lesbians,” the Los Angeles Times reports. The Ninth Circuit majority concluded that Prop. 8  subverts the U.S. Constitution’s equal protection clause.

    Prop. 8 was passed, with the backing of religious right organizations, not long after the California Supreme Court ruled that a right to wed could not be denied to same-sex couples, and that doing so would violate the equal protection rights of lesbians and gay men. Prop. 8 amended the state constitution to bar same-sex marriage.

    The majority opinion in Perry v. Brown, written by Judge Stephen Reinhardt (pictured) upheld a lower federal court ruling by retired federal judge, Vaughn R. Walker, which invalidated Prop. 8.

    “Proposition 8 worked a singular and limited change to the California Constitution: it stripped same-sex couples of the right to have their committed relationships recognized by the State with the designation of ‘marriage,’ which the state constitution had previously guaranteed them, while leaving in place all of their other rights and responsibilities as partners – rights and responsibilities that are identical to those of married spouses and form an integral part of the marriage relationship,” Reinhardt wrote.

    Prop. 8 also resulted in an ignoble state constitutional rule that protected marriage only for straight couples, Reinhardt said.

    “In adopting the amendment, the People simply took the designation of ‘marriage’ away from lifelong same-sex partnerships, and with it the State’s authorization of that official status and the societal approval that comes with it,” Reinhardt wrote.

  • February 7, 2012

    by Jeremy Leaming

    A forthcoming study says the U.S. Constitution may not be the model charter it once was, and suggests other governing documents, such as the Canadian Charter of Rights and Freedoms, may be more inspirational to people seeking to secure liberty and equality.

    As The New York Times’ Adam Liptak puts it, the U.S. Constitution “has seen better days,” and “its influence is waning.” Liptak bases his observations on a forthcoming study by Washington University Law School Professor David Stephen Law and University of Virginia Law School Professor Mila Versteeg. Liptak describes the study as bristling with data and says the professors conclude, “Among the world’s democracies, constitutional similarity to the United States has clearly gone into free fall.”

    The reporter says there are numerous reasons for the Constitution’s waning influence, including its “terse and old” language, and the fact that it “guarantees relatively few rights.”

    He also notes that at least one of this country’s Supreme Court justices has recognized the Constitution’s faltering influence. Justice Ruth Bader Ginsburg said recently during a visit to Egypt that she “would not look to the United States Constitution if I were drafting a constitution in the year 2012.”

    Liptak also cites a 2002 Harvard Law Review article by former Israeli Supreme Court president Aharon Barak, who wrote that the Constitution’s declining “global stature” has coincided with a diminished view of the U.S. Supreme Court “among courts in modern democracies.” Barak also wrote that Canadian law “serves as a source of the inspiration for many countries around the world.”

    The study by Law and Versteeg also notes the rising influence of the Canadian Charter of Rights and Freedoms, which as Liptak points out “is both more expansive and less absolute” than the U.S. Constitution.

    Indeed the Canadian charter’s language on equality is broader than America’s Constitution, stating that “Ever individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” Additionally the charter notes that the equality provision does not prevent the government from taking action to improve the “conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

  • February 6, 2012

    by Jeremy Leaming

    Judith L. Lichtman one of the nation’s leading -- and most successful -- advocates for equality says she has no intention of ceasing the work she loves anytime soon. And that is tremendous news for a nation where inequalities still loom large.

    In an interview with Kathryn Alfisi for Washington Lawyer, Lichtman (pictured) provides insight into her decades-long career of fighting pervasive racial and gender discrimination, as well as income inequality. She entered law school in the 1960s, which was not at any easy endeavor for women because of deeply held prejudices, and she faced hazing for it.

    Not terribly long after graduation, Lichtman launched what would become a tireless career as a civil rights activist. She started out investigating segregation and other forms of racial discrimination in southern cities.

    “Despite the requirements to integrate public accommodations in Title II of the Civil Rights Act of 1964, there remained many places where public accommodations were segregated,” Lichtman said. “We definitely needed to be cautious during the spring and summer of 1966. One could see segregation all around.”

    Later, Lichtman, a member of the ACS Board, would join the Women’s Legal Defense Fund, now the National Partnership for Women & Families, as its executive director. There she oversaw several landmark achievements, including the passage of the Family and Medical Leave Act (FMLA) during President Bill Clinton’s first few weeks in office.

    It took, Lichtman recalls, nearly nine years to enact FMLA.

    “We Americans always like to say that we’re a family friendly nation, but for that to be true, people need to be able to take time off for medical needs without fear of losing their jobs,” she said. “We were vilified at that time as really being social engineers, but today we estimate that FMLA has been used more than a 100 million times and is wildly popular.”