A view of the Walmart construction site at Ritchie Highway and Jumpers Hole Road in Pasadena, Maryland

A view of the Walmart construction site at the intersection of Ritchie Highway and Jumpers Hole Road in Pasadena, Maryland.

2011 predictions update

Everyone makes predictions for the upcoming year, but how many people go back and actually score themselves?

1. The Supreme Court will reverse the Ninth Circuit in Wal-Mart v. Dukes.
TRUE

2. Judge Roger Vinson of the U.S. District Court for the Northern District of Florida will find the health care reform law to be unconstitutional.
TRUE

3. The FCC will approve new net neutrality rules (that will probably happen in the next week or so), but the federal courts will find that this oversteps their authority (again).
PARTIALLY TRUE (case is still pending)

4. At least one politician (state legislator or above) will resign when a video of their misconduct goes viral.
Thankfully, we didn't get video of Weiner's weiner, but he did resign. PARTIALLY TRUE

5. North Korea's Kim Jong-il will die and his son, Kim Jong-un, will take over.
TRUE and TRUE

6. At least one Philadelphia sports team will make it to the Super Bowl, NHL Finals, or World Series.
FALSE (unfortunately)

7. Patriots' QB Tom Brady will win the NFL MVP and Eagles' QB Michael Vick will finish second.
TRUE (Note: Brady was unanimous; there was no second place)

8. Baltimore (BWI) will record less than 30 inches of snowfall this winter (please)
TRUE (I think the official number was 18-19 inches)

9. I will get accepted to law school (please) and actually go this time!
FALSE (long story)

10. Stuxnet's creator(s) will be revealed (total guess).
FALSE

And one more for the road that I am most certain of:

DEFCON19 will be canceled.
Always TRUE

Top ten update

With the news this morning that Wal-Mart succeeded at the Supreme Court in having the Dukes class action suit dismissed, it's time to update the top ten predictions for 2011. Here's a look back at the predictions with updates:


1. The Supreme Court will reverse the Ninth Circuit in Wal-Mart v. Dukes. YES

2. Judge Roger Vinson of the U.S. District Court for the Northern District of Florida will find the health care reform law to be unconstitutional. YES

3. The FCC will approve new net neutrality rules (that will probably happen in the next week or so), but the federal courts will find that this oversteps their authority (again). YES and NO

4. At least one politician (state legislator or above) will resign when a video of their misconduct goes viral.  YES and NO (Chris Lee and Anthony Weiner have both resigned, but over pictures and not video)

5. North Korea's Kim Jong-il will die and his son, Kim Jong-un, will take over. NO

6. At least one Philadelphia sports team will make it to the Super Bowl, NHL Finals, or World Series. NO (only the Phillies are left)

7. Patriots' QB Tom Brady will win the NFL MVP and Eagles' QB Michael Vick will finish second. YES (Brady was unanimous)

8. Baltimore (BWI) will record less than 30 inches of snowfall this winter (please) YES (14.4 inches)

9. I will get accepted to law school (please) and actually go this time! NO (wait-listed, blah!)

10. Stuxnet's creator(s) will be revealed (total guess). NO


And of course, the bonus prediction: DEFCON19 will be canceled. YES :-)

Los Angeles Times is wrong about the Wal-Mart class-action lawsuit

The Los Angeles Times editorializes about the Wal-Mart class-action lawsuit today, and to no surprise, they've read the issue entirely wrong:

There is currently no limit on the size of a class, nor should there be...In other words, Wal-Mart's size shouldn't immunize it to a lawsuit that otherwise meets legal standards.

But this case isn't simply about the size of the class.  Experts acknowledge that a class this large could conceivably go forward if Wal-Mart had a nationwide policy that equally affected all of the women in the class.  But as Ted Frank wrote in the Washington Examiner:

...the theory of the Dukes lawsuit is exactly the opposite: the plaintiffs claimed that Wal-Mart's central office did not exercise enough authority over each of its 3,400 stores; each of the individual managers' discretionary employment or promotion decisions--whether made by male or female managers--was, on average, discriminatory; and thus Wal-Mart was responsible for a policy that "fosters or facilitates" discrimination.

...

One can quickly see why this does not work as a class action. In the words of Professor Richard Epstein, the procedural tail is wagging the substantive dog.

The discrimination laws permit Wal-Mart to defend itself by demonstrating that the challenged job decision was made for a reason other than gender. For example, looking at Betty Dukes, the named plaintiff, alone, we learn that she had a female manager and that she was repeatedly disciplined for returning late from lunch breaks.

Yet if a court ties together claims that are not alike, it will have trouble trying the case as a single class action--unless it pretends that the parts that are not alike are not part of the lawsuit. Wal-Mart is stripped of its defense because the individualized defense would be inconvenient to trying the case as a class action.

But that is precisely backwards. If there are too many individualized issues to permit a defendant to defend itself adequately in a class action, that means the correct ruling is not to have a class action.

Emphasis is mine.  The case isn't about the size of the class, per se.  The size of the case is only relevant because it brings together claims that are not alike, and therefore prevents Wal-Mart from defending itself from disparate, individualized claims.

Some thoughts about 2011

I'm not big on predictions, mostly because people make ambiguous ones that are difficult to judge.  So here's my attempt at a handful of predictions for 2011 that should be easily distinguishable with a yes or no answer:

1. The Supreme Court will reverse the Ninth Circuit in Wal-Mart v. Dukes.

2. Judge Roger Vinson of the U.S. District Court for the Northern District of Florida will find the health care reform law to be unconstitutional.

3. The FCC will approve new net neutrality rules (that will probably happen in the next week or so), but the federal courts will find that this oversteps their authority (again).

4. At least one politician (state legislator or above) will resign when a video of their misconduct goes viral.

5. North Korea's Kim Jong-il will die and his son, Kim Jong-un, will take over.

6. At least one Philadelphia sports team will make it to the Super Bowl, NHL Finals, or World Series.

7. Patriots' QB Tom Brady will win the NFL MVP and Eagles' QB Michael Vick will finish second.

8. Baltimore (BWI) will record less than 30 inches of snowfall this winter (please)

9. I will get accepted to law school (please) and actually go this time!

10. Stuxnet's creator(s) will be revealed (total guess).

And one more for the road that I am most certain of:

DEFCON19 will be canceled.

Class action lawsuits and common sense

Let's say I purchase a product which turns out to be defective and causes some sort of injury to me.  I can file a lawsuit against the manufacturer to recover damages.  Now presume that 10,000 people also purchased the same product and were similarly injured.  The courts would be overwhelmed with 10,000 lawsuits that alleged the same general facts about how the product was defective.  The answer is the class action lawsuit, which brings together many claims into one.  This improves the efficiency of the court because there is no need to repeat the same general facts over and over and over again.

A problem with a class action lawsuit when the circumstances surrounding the injury are different in each case.  This is precisely the problem with Dukes v. Wal-Mart, which will be heard by the Supreme Court this term.  This case is the largest class-action lawsuit ever, and involves alleged discrimination against women in promotion decisions at Wal-Mart.  The legal issue is not about whether the discrimination occurred, but whether or not it should be a class-action case in the first place.  The Ninth Circuit (en banc) affirmed the class certification of the District Court (6-5) in a decision that is almost certain to be overturned.

At the Supreme Court level, the decision will be about the intricateness of Rule 23 of the Federal Rules of Civil Procedure (the rule concerning Class Actions).  From a common-sense perspective, class action lawsuits make sense when they provide efficiency to the courts, but not at the expense of the rights of the parties involved.

For a similar perspective, see the article Manhattan Moment: Courts shouldn't ignore due process to create class actions in the Washington Examiner.