March 2011

  • March 31, 2011
    Video Interview

    Workers, consumers and many other individuals without the means to lodge lawsuits on their own against massive corporations may find an important avenue to courts cut off if the Supreme Court rules in favor of Wal-Mart in its effort to shut down a class action employment discrimination lawsuit, according to constitutional law experts following the case.

    Adam Klein, a partner at Outten & Golden, and chair of the law firm’s class action practice group, told ACSblog in an interview following a recent event examining the case, that a decision in favor of Wal-Mart may indeed limit class actions.  

    “What it comes down to is whether employees who don’t earn a lot of money, who don’t have access to lawyers to prosecute their cases on an individual basis can find a way back into the court system without the right to bring class actions,” Klein said. “That’s the core issue, I think, in the Wal-Mart case. The hope is that there are ways around whatever limitations the Supreme Court places on class action employment cases.”

    Klein noted that smaller class actions would likely still be an option even if Wal-Mart successfully defeats the large gender discrimination class action it faces. Watch his entire interview below or download a podcast of it here.  

  • March 31, 2011
    Convicting the Innocent
    Where Criminal Prosecutions Go Wrong
    Brandon L. Garrett

    By Brandon L. Garrett, a professor at the University of Virginia School of Law. You can follow updates related to Garrett’s book, “Convicting the Innocent: Where Criminal Prosecutions Go Wrong,” at the book’s Facebook page here.

    On January 20, 1984, Earl Washington, Jr. was found guilty of rape and murder in the state of Virginia and sentenced to death. After nine years on death row, DNA testing cast doubt on his conviction and saved his life. However, he spent another eight years in prison before more sophisticated DNA technology proved his innocence and convicted the guilty man. 

    DNA exonerations have shattered confidence in the criminal justice system by exposing how often we have convicted the innocent and let the guilty walk free.   Wrongful convictions are ubiquitous in the news.  In just the past few weeks, yet another innocent man was freed by DNA tests in Virginia.  Improvements to eyewitness identification procedures in response to wrongful convictions have been considered by legislators, scandals have wracked  dozens of crime laboratories and Congress is considering legislation in response, and the U.S. Supreme Court ruled that civil rights actions can be used to seek DNA testing, In my new book, Convicting the Innocent: Where Criminal Prosecutions Go Wrong, I examine what went wrong in the cases of the first 250 wrongfully convicted people to be exonerated by DNA testing. I studied their trial transcripts, pre-trial hearings, appellate and post-conviction rulings, and confession statements. 

    A close look at the transcripts from Washington’s original criminal trial sheds light on how he was convicted in the first place.  His lawyer had never tried a death penalty case before, and it showed.  The guilt phase of the trial was only five hours long.  The prosecution presented a series of witnesses, but Washington was defended for all of forty minutes. His lawyer never claimed he was innocent, never challenged his confession, and never hired an expert to develop how he confessed due to mental retardation. The jury heard that Washington confessed to a series of details that supposedly only the killer could have known. We now know this confession was false and this mentally retarded young man likely just answered “Yes, sir,” each time law enforcement told him more about how the crime happened.

  • March 31, 2011
    Video Interview

    Following a recent ACS event on Wal-Mart v. Dukes, the class action employment discrimination before the Supreme Court, law professor Suzette Malveaux talked with ACSblog about the stakes involved in the case.

    “What makes Wal-Mart such a big case, an important case is not so much its size, but really the impact it might have on other types of class actions, and in particular employment discrimination class actions,” Malveaux, an associate professor of law at Catholic University’s Columbus School of Law, said.  

    Malveaux, author of a new article in the Harvard Law & Policy Review, the official journal of ACS, said an adverse ruling against the Wal-Mart plaintiffs could create significant hurdles for others in bringing class action litigation against big businesses.

    Malveaux said her article “addresses one of the primary questions before the Supreme Court, and that’s whether or not the plaintiffs in this case could get monetary relief for the discrimination that they suffered; they are challenging systemic, company-wide policy, but they are also seeking monetary relief.”

    She continued, “And the Court is going to be looking at whether that is appropriate. And that is important because employees will often seek monetary relief as well trying to get the systemic discrimination policy to end, they also want to get back pay, they want to get monetary relief for the discrimination. So the Court is going to be looking at what’s he proper standard for allowing the case to go forward as a class action. And there’s a real risk that that standard might go up. And if that standard goes up, it is going to make it much more difficult for employees and consumers and many people with small claims and few resources to collectively come together and challenge systemic discrimination.”

    Watch the professor’s interview below or download the podcast of it here.

  • March 31, 2011

    Wis. Gov. Scott Walker says his administration will comply with a state judge’s order against implementing a measure that would severely slash rights of the state’s public workers, the Milwaukee Journal Sentinel reports.

    The governor’s decision to halt implementing the controversial law was announced not long after Dane County Circuit Judge Maryann Summi issued a brief order stating, “Based on the briefs of counsel, the uncontroverted testimony, and the evidence received at the March 29, 2011 evidentiary hearing, it is hereby DECLARED that 2011 Wisconsin Act 10 has not been published within the meaning of the (state statutes), and is therefore not in effect.”

    Walker’s Administration Secretary Mike Huebsch said in a statement that while the administration believed the so-called “budget-repair” bill was legal, it would follow Judge Summi’s order and “suspend implementation of it at this time.” 

    In a guest post for ACSblog, Peg Lautenschlager, former Attorney General of Wisconsin, lauded Judge Sumi’s March 18 opinion that the measure was passed in violation of the state’s open meetings law. In their effort to pass the measure over staunch opposition from Democratic lawmakers, Wisconsin Republican lawmakers took “devious” steps to get the measure to Gov. Walker, likely violating the state’s government transparency law, Lautenschlager wrote.

  • March 30, 2011

    The Supreme Court heard oral arguments yesterday in Wal-Mart v. Dukes, the gender discrimination case that could decide the future of class actions, and the justices appeared to divide largely along gender lines, suggesting a possible win for Wal-Mart, Bloomberg reports.

    Although the issue on appeal centered around the nature of the class action, “the disagreement among the justices focused as much on the substance of the federal job-discrimination laws as on the requirements for class actions,” according to Bloomberg.

    Justice Anthony Kennedy questioned the nature of the alleged unlawful policy, saying, “Your complaint faces in two directions. You said this is a culture where Arkansas knows, the headquarters knows, everything that's going on. Then in the next breath, you say, well, now these supervisors have too much discretion. It seems to me there's an inconsistency there …”