Dahlia Lithwick is an excellent court watcher/legal analyst. The general tone of her articles are civil to a fault. This article is civil, but it is among the few times where she shows how deeply frustrated she is and I can understand why. Operating Instructions – The Supreme Court shows corporate America how to screw over its customers and employees without breaking the law.
Start with one of the most important cases of the term, the recently deceased class-action suit filed by a million and a half women employed by Wal-Mart. The headlines—including mine—contended that the import of the court’s decision lay in the ways class-action suits would be severely limited in the future. But dig a little deeper. In his majority opinion on behalf of the five conservatives on the court, Justice Antonin Scalia found that Wal-Mart could not be held accountable for discrimination in pay and promotions because the plaintiffs lacked “convincing proof of a companywide discriminatory pay and promotion policy.” Then Scalia went one further and offered Wal-Mart, the largest private employer in the country, a virtual guidebook on how to discriminate better: Do it in bulk up and down the chain of command, and make certain to do it at every possible level.
Generall the way class action law suits work in the lower courts is the legal counsel file a brief. That brief is largely the documentation they have gathered. Enough documentation that a fair-minded judge can decide yes(or no) that a complaint may proceed based on the evidence presented in the brief. Such briefs are generally well researched and documented. That is because they basically constitute a kind of pre-trial before an actual trial starts. Yes there are anecdotal stories included. Though in a legal context dozens or hundreds or sometimes even thousands of such anecdotes, like stories of discrimination in the Wal-Mart case, constitute very real evidence. The briefs in such a large case – Wal-Mart being one of the nation’s biggest employers – also include statistics such as how many women or minorities are in supervisory positions. Those statistics would also include comparisons to other similar businesses such as Target or Kmart. The conservatives on the SCOTUS decided two remarkable things. Wal-Mart is such a big company that it is impossible to prove they discriminated based on gender and hey, it says they don’t discriminate in their employee handbook(the latter is not a joke. That was part of the majority opinion). Two, that when discrimination does occur it must be under the pretty much exact same circumstances – age, location, nature of the discrimination, etc.
The same is true for the court’s remarkable 5-4 holding in AT&T Mobility v. Concepcion. In that decision, the court read a federal statute to mean that consumers may not participate in class action suits if their contract—in this case, with a cell phone company—contains an arbitration agreement (by which, I promise you, you are currently bound). In AT&T, a class of California plaintiffs tried to bundle together their claims alleging that AT&T had engaged in false advertising and fraud by charging sales tax on phones it had promoted as free. California law provided that the mandatory arbitration provision was not enforceable and that the parties should be allowed to litigate as a class. But the court—Scalia writing again—determined that the California rule was pre-empted by the Federal Arbitration Act. “It was important [for the court] to protect defendants, such as corporations, from the ‘in terrorem’ effects of class actions, which pressure them into settlements,” writes Erwin Chemerinsky, dean of the UC-Irvine School of Law. “In fact, the Court went further and said that the Federal Arbitration Act requires that claims be arbitrated on an individual basis and that class arbitration is not allowed.”
The way class action suits gain momentum is partly through an old-fashioned phenomenon in which tells of being cheated by such and such a company filter through the grape-vine. Many individuals try to find a remedy of their own by calling or writing the company for their $15 or $50 dollars back, but finally give up. Once again the conservatives on the court have said that justice be denied these people. They may not form a class action to get everyone’s refund for the fraudulent charges. Want your money back, you’ll have to each file a lawsuit on your own. Who has the time to file a law suit for a $75 modem your DSL provider said was going to be free when you signed up and subsequently billed you for. Sure there are always that hand full of people who sue for the principal involved and they might get their money back unless their contract had a binding arbitration agreement ( which your phone or ISP contract probably has). Everyone else is screwed. What might amount to millions in over charges or fraudulent charges are for the company to keep. Imagine if such a scheme involved a political party. How many seconds would it take for conservatives to scream communism – the state taking property without due process. Conservatives at the link for this story are thrilled that corporations how have license to take people’s property without due process. And yes when the SCOTUS makes the wall to getting justice so onerous that the average person no longer has reasonable access to the courts, that is a de facto that is a form of tyranny.
Which brings us to the third case in this trifecta, a case that has gone largely unnoticed in the blur that is the end of the 2010 term: In yet another 5-4 decision last week, Janus Capital Group, Inc. v. First Derivative Traders, the court not only immunized big business from yet more awkward and messy litigation; it gave them an instruction manual on how best to lie to consumers.
[ ]…Even though Janus Capital Management did indeed produce the false prospectuses, the court found that they were actually filed by a separate legal entity—the Janus Investment Fund. And even though the Janus Investment Fund is run by Janus Capital Management, Janus Capital Management is not on the hook for the lies. Wrote Thomas, “Even when a speechwriter drafts a speech, the content is entirely within the control of the person who delivers it. And it is the speaker who takes credit—or blame—for what is ultimately said.”
Don’t even bother asking how huge financial companies will benefit from the holding in the case. It’s as easy as setting up a dummy corporation to make your false statements for you. In the wake of the holding, William A. Birdthistle, an associate professor of law at Chicago-Kent College of Law, told Bloomberg columnist Susan Antilla to expect “corporations outside of the investment-management business to alter their legal structures to gain the same protection that funds now enjoy.” As he put it, “In Delaware, with 30 minutes and $50, you can create a legal entity.“
The last speaks for itself. On its own the Janus ruling is a head spinner. All together these three rulings are as though the conservatives on the SCOTUS have given the most unscrupulous elements of business a wink and a nudge – go ahead screw over as many Americans as you like and we’ve provided the operating manual for how to do the screwing.
One last note. Conservatives claim the push back on class action suits is justified because class action lawyers make too much money. That is not a valid legal argument about the issue in question, but rather about their opinions on compensation. That conservatives tie the legals issue up with their resentment of civil litigation attorneys is another testament to their lack of understanding of the fundamental issues of justice involved. Since most civil suits for damages in the U.S. are businesses suing other businesses, all three of these rulings will come back to haunt them.
Jackson Pollock, famous for his deceptively random-seeming drip paintings, took advantage of certain features of fluid dynamics years before physicists thought to study them.
“His particular painting technique essentially lets physics be a player in the creative process,” said physicist Andrzej Herczynski of Boston College, coauthor of a new paper in Physics Today that analyzes the physics in Pollock’s art. “To the degree that he lets physics take a role in the painting process, he is inviting physics to be a coauthor of his pieces.”
They point to one of Pollock’s Untitled painting 1948-49 as illustrative of loops formed by way of fluid coiling. In coiling the thick fluids fold onto themselves. Somewhat like slowly letting out a ball of twine onto the floor and the natural overlapping.