March 2011

  • March 28, 2011
    Guest Post

    By Sarah Crawford, Director of Workplace Fairness, National Partnership for Women & Families

    Tomorrow, the Supreme Court will hear oral argument in Wal-Mart v. Dukes - the high profile class action case involving 1.6 million women who have worked at Wal-Mart. The Court is poised to decide whether or not the women can proceed as a class to challenge the systemic discriminatory pay and promotion practices of the country's largest employer. More than a decade after the women first filed their lawsuit, the Court's decision will determine if the women will finally get the chance to present the merits of their claims in court.

    During ten years of litigation, the class has amassed an impressive body of evidence. Statistical evidence shows that women were receiving significantly less pay and fewer promotions than their male counterparts - despite better performance reviews, greater seniority and fewer disciplinary issues. Anecdotal evidence demonstrates a corporate culture of gender stereotypes and a lack of objective standards for making personnel decisions.

    Before the class can get to the merits of their claims of discrimination, however, they must first convince the Supreme Court that the lower courts properly certified the class under Rule 23 of the Federal Rules of Civil Procedure. The Court has taken up the question of whether the class of women satisfy Rule 23(a)'s requirements of numerosity, commonality, typicality and adequacy, as well as Rule 23(b)(2)'s requirement that "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole."

  • March 28, 2011
    Guest Post

    By Paul M. Secunda, Associate Professor of Law, Marquette University Law School.

    When I read last week about the Wisconsin Republican Party asking for the emails of a well-respected University of Wisconsin history professor, William Cronon, I instantaneously knew that the good professor had touched upon something that the Republicans did not want to be common public knowledge. Dr. Cronon had written on his new blog a post that referenced a recent op-ed that he had written in The New York Times about the on-going dispute about the Wisconsin "budget repair" bill and Republican attempts to take away most collective bargaining rights from most public employees in Wisconsin.

    In his blog post in particular, Dr. Cronon, like any good academic, had undertaken a meticulous and objective examination of who was responsible for the legislative agenda of Wisconsin Governor Scott Walker and his Republican allies. Based on the fact that similar conservative legislation was percolating in many state legislatures throughout the country, Dr. Cronon surmised that the American Legislative Exchange Council (ALEC) and other conservative advocacy groups had spoon-fed Walker his anti-union legislation. Dr. Cronon did not draw any ultimate conclusions on these matters, but only suggested that other people conduct research to determine what role ALEC and these other conservative clearinghouses had played in the current labor crisis in Wisconsin.

    Cronon must have hit pay dirt.

    Within a couple days of his blog post, the University of Wisconsin was served with an open records request from the Wisconsin Republican Party that demanded all of Dr. Cronon's university emails that included certain political terms (including Scott Walker, recall, Republican, and collective bargaining) from January 1, 2011 and forward. The not-too-veiled point was to find evidence that Dr. Cronon was politicizing his position as a history professor at Madison and taking part in the recall efforts against Wisconsin Republican Senators and Walker himself for promoting this anti-union legislation.

  • March 28, 2011
    As noted earlier this month federal courts across the country are in dire need of judges due to increasing vacancies that are not being filled by the U.S. Senate, causing senior judges to work longer and shoulder larger case loads.

    "Nationwide, senior judges handle 21 percent of the federal court's caseload," The Patriot News (PN), a Pennsylvania broadsheet, reports. "In the Middle District of Pennsylvania, eight of the 11 sitting judges are seniors. The longest-serving senior judge in the district, William J. Nealon, joined the bench in 1962."

    The newspaper highlights several of the district's senior judges, such as U.S. Middle District Judge Malcolm Muir, 96, who is "inundated with Social Security appeals."

    "It is likely that without Muir and other senior judges, the federal court system would implode," the PN states.

    Another senior judge, Richard P. Conaboy, 86, says, "It's frustrating. The cases keep piling up. We have much more civil rights, employment discrimination and immigration lawsuits."

    Yvette Kane, chief judge of the Middle District told the newspaper, "the wheels would stop turning" without the continued work of the aging judges.

    Judge Conaboy added, "It is a crisis here in our district."

    The Los Angeles Times recently reported that a "third of the legal case load" for the U.S. Court of Appeals for the Ninth Circuit is handled by its senior judges. The Ninth Circuit's clerk told the Times, "We'd be sunk without them."

  • March 25, 2011
    A federal appeals court has rejected a conservative legal group's argument that federal protections of an endangered species violate the Commerce Clause.

    A unanimous panel of the U.S. Court of Appeals for the Ninth Circuit upheld the federal protections of delta smelt, a small fish endemic to California, against challenges from the Pacific Legal Foundation, which argued that the protections diminished water exports from the Delta, The Sacramento Bee reported. The federal protections of the fish were created pursuant to the Endangered Species Act. The Pacific Legal Foundation argued that the fish are "purely intrastate species," with no "commercial value," and therefore the federal government regulations to protect the fish were "invalid exercises of constitutional authority [under the Commerce Clause]."

    The Ninth Circuit panel disagreed, writing in part, that "Congress has the power to regulate purely intrastate activity as long as the activity is being regulated under a general regulatory scheme that bears a substantial relationship to interstate commerce." Citing the Eleventh Circuit, the panel ruled that "the Endangered Species Act is a general regulatory statute bearing substantial relation to commerce."

  • March 25, 2011

    Before recessing last week, the Senate confirmed two to the U.S. District Court for the District of Columbia, the Judiciary Committee approved nominee Edward Chen, and President Obama nominated two to district courts. The toll that long delays in the judicial confirmation process have taken on the bench's diversity was the subject of an article by the NAACP Legal Defense & Education Fund's Leslie Proll in The Huffington Post. One example is the experience of nominee Edward DuMont, who would be the first openly gay person appointed to a federal appeals court, but whose hearing the Judiciary Committee has not yet scheduled despite having been nominated almost a year ago.

    The Latest from "In the News"