Disclaimer: I am not a lawyer. I am not licensed to give legal advice. This is a commentary on basic theories put forth in legal education. Absolutely nothing in this post or this blog should be construed as legal advice.
Alrighty then, let’s get to it. As a black person, law school completely shatters any remaining notions you may have had that justice is blind and impartial. Bullshiggity. As my AP US History teacher told us, “The Constitution was written by and for rich white male property owners.” Despite amendments to the contrary, it remains that way in fact. The problem is not so much with the machinations of the legal system as with access. Except for cases of criminal defendants, lawyers ain’t free. You gotta pay to play in the court system.
Sometimes (okay, make that a lot of times), what’s legal isn’t always right or fair. For instance, unless you work for the government your boss can do just about anything short of harassment. Unpaid overtime? Consistently changing your hours at the last minute? Making you reschedule your vacation even though you put in for it six months ago and have someone to cover your work? All legal, and doubly so if you’re in an “at will” employment state (meaning you don’t sign a contract to work for them). So what if that baby isn’t yours…if you were married when she was born, you gotta take care of her (assumed paternity). If you promised your baby mama that you’d pay child support as long as she didn’t take you to court and later found out you weren’t the father…sorry, you’re a daddy now! Pay up.*
The latest legal issue to irk me is the Wal-Mart wage discrimination case. The Supreme Court denied class action certification** because the class, which was thousands of female employees, was unmanageably large. Having just finished my second semester of Civil Procedure, my legal mind gets it. We owe fairness to the defendant as well as the plaintiffs, and trying to decide how to provide relief in the form of money damages would be problematic. Trying to prove that Walmart had an overarching policy of discrimination that trickled down into the management of hundreds of thousands of stores, is problematic. However, Walmart is a multibillion dollar international corporation. In order to ensure efficiency and uniformity of management, common sense says that if you can find more than one store in more than one state that discriminates against women, they’re all doing it. At any case, that’t the crux of the issue to be tried! Courts are supposed to be efficient, but we live in a world of Big Business and the courts have a responsibility to adjudicate the big messes they create. And they shouldn’t get to brush off a case simply because it would be hard to prosecute.
Robert Bone of Texas Law School has an interesting analysis of this issue. You can find it here:
http://www.vanderbiltlawreview.org/2010/11/sorting-through-the-certification-muddle/
He argues that the bar for class cert and the extent to which merits should be considered at the cert stage should depend on part on the relative resources of each party and the probability of plaintiffs prevailing. That’s a really rough characterization, because I’m not a legal scholar.