Who says that judges can't be concise? Well, okay, I say that all the time but there's an exception to every rule.

I was attempting to read through the Ninth Circuit's opinion regarding the grant of class status to all female Wal-Mart employees, past and present, but it's 138 pages and no. Just. No. I do not hate myself enough to slog through that long of a decision on the FRCP and class certification at this moment in time. Just. No.

Then I read through Judge Kozinski's dissent. One paragraph that neatly and utterly summarizes my view of the case. Read it. It's a thing of beauty.  (All you have to do is go to the last page of the document)

I do think it's important to remember what was decided.  All this decision is about is whether or not the class would be certified, not whether or not Wal-Mart discriminates against women as a corporate policy.  This was a split ruling, the class sought was every woman who worked for Wal-Mart ever.  The class certified was the current female employees with remand for further findings on the prior employees.

Here's my completely and totally uninformed opinion - look, statistically, some manager at Wal-Mart discriminated against a woman because she was a woman.  The sheer numbers involved make that probable.  I find it utterly improbable that there is a corporate policy to do this.  It makes no financial sense.  Lumping every single woman who works at Wal-Mart into one pool makes no sense.  The job classifications don't mesh, the supervisory oversight, the competency of the employee and on and on are just too different.  I cannot possibly see this withstanding scrutiny even under the ridiculously loose terms for class certification.  Before everyone says "oh hey Ninth Circuit of course it will be overturned" remember that whichever side lost was going to take this up.  If it was 6-5 the other way, it would still go up.

I cannot believe I'm defending the Ninth Circuit, but here goes.  The case law on class certification is all over the place.  There were rule changes that were supposed to improve things that just made it that much worse.  The Ninth Circuit is pretty much betting on which way the Supremes would come down.  Both sides have legal support for their positions.  Bluntly, I would have made sure this was a 6-5 decision to kick the Supremes in the head to make them take the case. 

I love that dissent though.  That's bench slapping at its finest.

Posted by: alexthechick at 12:28 PM | No Comments | Add Comment
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