July 2011

  • July 6, 2011

    Nearly two years after she joined the Supreme Court, Justice Sonia Sotomayor is developing a unique voice that should provide some uplifting news for progressives, George Washington University law school professor David Fontana writes in a piece for The New Republic.

    Fontana noting that “many” progressives were left unmoved by Sotomayor’s testimony at her confirmation hearings, says things look different now. Commentary from the Los Angeles Times, The New York Times and Slate about her work on the court, typically supportive of the court’s progressive bloc, is noteworthy, but, Fontana writes, it is the justice’s actions away from the bench that is proving the most consequential.

    “Sotomayor,” he writes, “has become the public face of the Court’s liberal wing because she seems to be what so few justices are: a real person, with jurisprudence to match.”

    While other justices, such as Antontin Scalia and Stephen Breyer are busy plumping for their books on legal theories to primarily academic audiences, or Justice Clarence Thomas is cozying up to the Koch brothers, Sotomayor has spoken to diverse audiences on an array of issues, including some personal ones. She is also working on a book that her publisher, Fontana notes, “is a coming-of-age memoir by an American daughter of Puerto Rican immigrants.”

    Sotomayor, Fontana continues, has “shared her perspective about persistent barriers to equality with audiences at several elite law schools and with a community college in the Bronx that helped her mother become a nurse several decades ago.”

    Moreover Sotomayor (pictured with President Obama) has also used public appearances to highlight “the ways in which our legal system still reflects biases against various historically disadvantaged groups,” Fontana writes.

    He adds, “In a public interview during a visit to Northwestern Law School, Sotomayor said some of the questions she faced during her confirmation hearings were symptomatic of lingering gender bias. And, at the University of Chicago Law School, she said, “People have views of me and expectations of me that are based on stereotypes.” She also said some of Chief Justice Roberts’s views on race and the law are “too simplistic.”

    Fontana’s entire article is available here.

  • July 5, 2011

    Chief Justice John Roberts Jr. at the recent Fourth Circuit Judicial Conference grabbed a few relatively easy applause lines – by knocking the work of law professors.

    Specifically Roberts claimed that legal scholarship is not relevant to the work of lawyers and judges, saying he is on the same page with Judge Harry T. Edwards of the U.S. Court of Appeals for the D.C. Circuit, who believes there is a great “disconnect between the academy and the profession.”

    Roberts continued, “Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.”

    Roberts added that he doesn’t necessarily think anything is wrong with such an approach, albeit a relatively irrelevant one. “If the academy wants to deal with the legal issues at a particularly abstract, philosophical level,” Roberts continued, “that’s great and that’s their business, but they shouldn’t expect that it would be of any particular help or even interest to the members of the practice of the bar or judges.”

    Perhaps not surprisingly a law professor, who not only writes law review articles, but is a frequent blogger, has taken umbrage with the chief justice’s commentary on the usefulness of legal scholarship.

    In a piece posted at Concurring Opinions, University of Maryland law school professor Sherrilyn Ifill writes, “Legal scholars will on occasion indeed take up Kant (and there’s no shame in that), but more often than not, published law review articles offer muscular critiques on contemporary legal doctrine, alternative approaches to solving complex legal questions, and reflect a deep concern with the practical effect of legal decisionmaking on how law develops in the courtroom.”

    Ifill, then provides a string of cites to law review articles that she says would provide great help to judges, if they would read them.

    For example Ifill notes that her 2002 Maryland Law Review article, “Do Appearances Matter?: Judicial Impartiality and the Supreme Court in Bush v. Gore,” provides “a detailed prescription of how Supreme Court recusal practice should be reformed and codified – an area of Supreme Court practice desperately in need of reform and a matter much in the news these days in light of some of the activities of Justice Clarence Thomas and his wife, Ginni.”

    Ifill said that Roberts apparently intended to “shame academics with what he regards as our own scholarly irrelevance. But the shame is really on the Chief Justice of the United States, who demonstrated how out of touch he is with the current world of legal scholarship and the potential contribution of legal scholars to the work of judges.”

    The chief justice’s entire remarks before the Fourth Circuit conference are available from C-SPAN, by clicking on image.

  • July 5, 2011
    Video Interview

    The Supreme Court’s decisions this term in Wal-Mart v. Dukes and AT&T Mobility v. Concepcion have not only “changed the balance of power” between individuals and companies, but are part of a trend of limiting individuals’ access to the courts through procedural rulings, University of Colorado law professor Melissa Hart said during a video interview with ACSblog.

    Hart, who spoke with ACSblog following testimony last week before the Senate Judiciary Committee, explained that both Wal-Mart and AT&T imposed procedural blocks on litigation that will make it harder for individuals to hold corporations accountable.

    “I think that this court is showing itself as extremely hostile to various forms of litigation … and is imposing rules on its own as a policy matter that really change the ability of people to get access to the courts,” said Hart. “That will have consequences across many kinds of litigation, not just in these particular contexts.”

    Hart noted that the court’s decision in Wal-Mart “really redefined” the class action rule at issue, imposing a higher standard for overcoming the “threshold inquiry” of whether to certify an employment discrimination class than would have been imposed on these plaintiffs in proving discrimination by Wal-Mart.

    “[The court] made it extremely difficult to imagine what an employment discrimination class might look like,” Hart said.

    She added during her Judiciary Committee testimony that the class action mechanism is “the only way to reach many kinds of systemic misconduct.”

    “[T]he erosion of this tool insulates companies from any serious risk of litigation from many kinds of potentially illegal behavior,” she said.

    Watch the video interview with Hart below, watch the Judiciary Committee hearing here, and learn more about how corporations are faring in the courts at the new ACS Web page, Corporations and the Courts.

  • July 5, 2011
    Video Interview

    Following a Senate Judiciary Committee hearing last week assessing the impact of recent Supreme Court decisions on corporate accountability, ACSblog spoke with Betty Dukes, the lead plaintiff in one of the most notable cases this term in which the court sided with corporations, Wal-Mart v. Dukes.

    Dukes lamented that the Supreme Court’s decision in Wal-Mart was a vote against the rights of her and her fellow plaintiffs “to have our voices heard.”

    “I feel that my rights have been violated,” she said, alluding to the claims of egregious gender discrimination in the case, “and I want to address [that] openly and honestly in a court of law.”  

    During the Senate Judiciary Committee hearing, Dukes expressed concern that women would be deterred from going forward with their employment discrimination claims against Wal-Mart, now that the court had blocked their ability to sue together as a class and halted a case that started ten years ago.

    "It is not easy to take on your own employer,” she said. “It is even more difficult when that employer is the biggest company in the world. In this country, there are many Betty Dukes who want their voices to be heard when they are denied equal pay and equal promotion. For many of these women, I am afraid that the court’s ruling will leave them without having their due day in court."

    Watch ACSblog’s video interview below, and watch the hearing here.

  • July 5, 2011

    An Ohio law aimed at greatly curtailing the rights of public workers has sparked massive protests and what appears to be a successful drive to place it before voters this fall. Opposition has also formed against similar anti-collective bargaining laws in Michigan and Wisconsin.  

    More than a million Ohioans recently signed a petition to put  the law, Senate Bill 5, on the November ballot, in hopes of repealing it, The Plain Dealer recently reported. The signatures, the newspaper added, were “ceremoniously” delivered to the Secretary of State’s office in Columbus by more than 6,000 marchers. The newspaper said the more than 1 million signatures “are the most in more than a decade at least,” to be submitted to state officials.

    Melissa Fazekas, a spokeswoman for We Are Ohio, a group that launched the petition drive to repeal the anti-collective bargaining law, also lauded the large number of marchers involved in submitting the signatures, saying they “are proof that while our campaign may be out spent, we will never be out worked, or out volunteered or out supported by hard working Ohioans.”

    Like his counterparts in Wisconsin and Michigan, Gov. Kasich argued that Senate Bill 5, which The New York Times noted could cut public sector jobs in parts of the state where the private sector has long stopped producing opportunities, is necessary to help local officials overcome budget shortfalls.

    In a guest post for ACSblog, Ohio State University law school professor James J. Brudney, said the claims in both Ohio and Wisconsin that fiscal conditions are the reasons to limit collective bargaining have been “exposed as a smokescreen.”

    Brudney continued:

    Fiscal crises are occurring in states like Texas and Virginia that bar collective bargaining. And 2010 budget deficits are as high in the nine states that banned collective bargaining for most all public employees as in the fifteen states that allowed it for theirs. Tellingly, leading proponents of Senate Bill 5 asserted as their core justification for the bill not money but flexibility. The Senate bill author and Ohio’s governor talked constantly about the need for flexibility to manage Ohio’s public workforce. Yet Ohio’s experience since collective bargaining became lawful in 1983 makes it very hard to make a case for inflexibility.