Wednesday round-up

By Adam Chandler
on Jun 22, 2011 at 8:39 am

Going into a third day of coverage, commentary on Monday’s decisions, particularly Wal-Mart v. Dukes, has yet to abate. With respect to the Wal-Mart decision, this round-up will begin with news analysis related to the decision and then proceed to opinion pieces.

Although the Court’s decision in the Wal-Mart case put an end to the case in its current form, attorneys for the plaintiffs have indicated that they are likely to renew their legal challenges again on a smaller scale, including by filing individual discrimination claims and by filing charges with the EEOC.  Bloomberg, the New York Times, and the Sydney Morning Herald all have coverage of the plaintiffs’ future plans, while Reuters reports that the case has so far cost the law firm representing the plaintiffs “about $5 million in attorney hours and . . . $2 million on experts and discovery.”  “Meanwhile, House Minority Leader Nancy Pelosi is calling on Congress to pass legislation that effectively reverses the decision,” according to the ABA Journal. In addition, as the Wall Street Journal reports, the decision has implications for other pending class-action lawsuits; Lyle Denniston of  SCOTUSblog highlights the decision’s connection to tobacco litigation currently pending before the Justices. Finally, NPR’s Nina Totenberg reported on reactions to the Wal-Mart decision (here) as well as Monday’s other decisions more generally (here).

As a sidebar to the more substantive coverage of the Wal-Mart decision, both the WSJ Law Blog and ABA Journal update readers on Ted Frank, who invested ten percent of his net worth in options contracts betting that Wal-Mart’s stock price would go up if the Court ruled in Wal-Mart’s favor (which it did). In fact, however, Frank lost “tens of thousands,” and he explains the situation in his own words at PointofLaw Forum. (Frank was mentioned in a round-up earlier this month.)

On the opinion side, the editorial boards of the New York Times and the Los Angeles Times criticize the Wal-Mart outcome, while the editorial board of the Christian Science Monitor criticizes Justice Ginsburg for what it characterizes as her “surprising presumption of collective guilt” on the part of the male Wal-Mart managers. In an op-ed for the New York Times, Nelson Lichtenstein argues that the managers are just one piece of the puzzle. Lichtenstein contends that “the sex discrimination at Wal-Mart that drove the recent suit is the product not merely of managerial bias and prejudice, but also of a corporate culture and business model that sustains it, rooted in the company’s very beginnings.” Finally, at National Review Online’s The Corner blog, Kellyanne Conway suggests, perhaps counterintuitively, that women should “feel liberated” by the decision because “it upholds their rights as individuals who have unique lives, experiences, circumstances, and yes, harms, rather than meld them together in a gender blob.” Additional commentary on the decision comes from the Nation (via NPR), Slate, PrawfsBlawg, the Huffington Post (also here), and the Seattle Times.

Wal-Mart v. Dukes is not the only case from Monday lingering in the headlines. Greenwire’s Lawrence Hurley (via the New York Times) discusses the impact of the Court’s decision in the greenhouse-gas case American Electric Power Co. v. Connecticut and observes that the Court “left several key legal questions unanswered,” which “are likely to be litigated in short order.” The Connecticut Mirror explains the “strategic dilemma” now faced by the states that lost the case. Meanwhile, in an opinion column for Nature, Douglas Kysar discusses the ruling’s “good, bad and downright ugly implications for US climate policy.” (Thanks to ACSblog for the link.) The editorial board of the New York Times posits that the decision “is, in fact, . . . clarifying and positive” – “vindicating the Clean Air Act, which is under siege in the House, and increasing pressure on the Environmental Protection Agency to carry out its authority to regulate greenhouse gases under that act.” And the Wall Street Journal editorial board lauds the Court for “str[iking] down one of the legal left’s most destructive theories, and not a moment too soon.”

Turner v. Rogers, in which the Court held that an indigent parent facing the prospect of incarceration for his failure to pay child support does not have an automatic right to counsel, also remains the subject of debate. The Atlantic’s Andrew Cohen deems Turner – which he describes as “Gideon v. Wainwright meets the Lifetime Channel” – the “most compelling opinion of the day” from Monday. At Concurring Opinions, Russell Engler argues that, “[f]rom an Access to Justice and Civil Right to Counsel perspective,” Turner “provides a basis for cautious optimism despite the opinion’s flaws.” Similarly, in a post at ACSblog, Rebekah Diller sees the decision as “a mixed result for the rights of indigent parents.”

One story unrelated to Monday’s decisions is attracting wide coverage. In a speech yesterday to the Children’s Congress of the Juvenile Diabetes Research Foundation, Justice Sotomayor spoke openly about her lifelong struggle with Type 1 diabetes. NPR’s Nina Totenberg describes the scene: “Seated in an armchair with about 150 children on the floor around her, Sotomayor delivered a personal message of inspiration and perseverance to children who also suffer from the disease.” Moreover, as USA Today’s Joan Biskupic notes, the Justice “has never spoken so publicly and in such personal terms about her life with the condition.” The Los Angeles Times, Education Week’s School Law blog, the Washington Post’s Reliable Sources blog, the Associated Press (via the Wall Street Journal), and Fox News Latino all have additional coverage of Sotomayor’s remarks.

Briefly:

• In his Opinionator column for the New York Times, Stanley Fish endorses the Court’s recent decision in Nevada Commission on Ethics v. Carrigan as an example of the Court resisting “the temptation of allowing the First Amendment to swallow the legal system.”

• Justice Ginsburg is being honored this week with the Jefferson Award, a national prize for public service. The Associated Press (via the Washington Post) has the story.

• At the Blog of LegalTimes, Tony Mauro reports that five brothers were admitted to the Supreme Court bar on Monday, “possibly an all-time record.”

• Techdirt discusses Monday’s cert. grant in Mayo Collaborative Services v. Prometheus Laboratories, Inc., a Federal Circuit case on the patentability of medical diagnostic tests.