Bad legal reporting 101

This story by Robert Barnes of the Washington Post is called “Two Supreme Court Cases To Test Corporate Interests.” The cases, which the Supreme Court just decided to hear this term, are Dukes v. Wal-Mart, a suit over alleged classwide employment discrimination, and American Electric Power Co. v. Connecticut, an environmental case.
The headline, as well as the actual story, takes the familiar approach of viewing complex legal disputes in which one party is a corporation as a vehicle for keeping score of corporate victories and thereby assessing left-wing claims that the Supreme Court is “pro-business” not “pro-people.” Under this approach to reporting, the merits of a particular dispute are an after-thought at best.
Even applied to several terms of Supreme Court decisions, this approach is a very crude and imperfect mode of analysis. As a method of reporting on a given case, it is worthless.
Take Dukes v. Wal-Mart, a case I’ve been following for a long time. It involves allegations that Wal-Mart engaged in sex discrimination on a nationwide basis against a class that includes up to 1.5 million female employees. The issue before the Supreme Court will be whether a class action should have been certified under Rule 23 of the Federal Rules of Civil Procedure given the facts before the district court. In 2006, I posted an op-ed about the case from the Wall Street Journal by my friend Eric Dreiband.
Large corporations certainly would like to see the district court’s order certifying the class overturned by a ruling that will hold plaintiffs to a high standard under Rule 23. But it’s odd to say that this “interest” is being “tested” by the case. No Justice will say that they are testing this corporate interest (whatever that means is this context). They will say, in effect, that the case tests the relationship between the class certification requirements of Rule 23 and Title VII’s prohibition against the disparate treatment of female employees.
It’s possible that particular Justices don’t really see the case this way, but instead view it as a question of whether corporations or civil rights plaintiffs and trial lawyers should have their way. But I see no reason to believe that this is how any Justice views the case. Barnes certainly doesn’t provide any evidence to support such a belief.
Finally, notice the bias of Barnes’ particular special interest based narrative. The outcome of Dukes isn’t just of interest to corporations which, in a worse case scenario, will pass the added costs of settling class actions on to consumers. The certification of mass classes in employment discrimination cases will be of enormous benefit to the plaintiffs’ bar. But Barnes never mentions this reality.

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