Female Political Candidates Are Treated As Circus Freaks

By: Professor Jessica A. Levinson

This is an excerpt from an article by Professor Jessica A. Levinson on the San Francisco Chronicle

The message that these comparisons between Clinton and Fiorina send is clear — each side gets its one female candidate, no more, no fewer. It is all but understood that Clinton would not pick a female running mate. There would be no need, because we have already checked the gender box on her candidacy. Similarly, in the unlikely event that Fiorina were nominated for president, or chosen as a vice presidential candidate, it is all but assured that she would be the only female on that ticket.

Female candidates are therefore made into circus-like oddities. Come one, come all, and take a look at the women who want to be president. Let’s stop making female candidates circus freaks.

Read the full article here

Oppression vs. Discrimination: How the Law Failed Ellen Pao

By: Professor Sean M. Scott

This is an excerpt from a post by Dean Sean Scott on the Ms. Magazine blog.  

The issue in Pao’s case is not whether she was legally discriminated against, although cases such as this one highlight the inadequacy of the law in redressing the harm that goes unnamed but characterizes the experience of many women in the work force, particularly those in male-dominated fields. The law can do a better job of providing those who want to challenge their place in the social scheme with more effective tools to do so. Perhaps the question the law should be asking is not whether there was discrimination, but rather whether the actions undertaken, regardless of motive, result in the subordination of another based on her gender, race, ethnicity or some combination of all of these characteristics.

 The larger societal issue is how to begin to see the patterns of oppression that need no individual animus to replicate themselves. Until we can see, recognize and acknowledge that the harm suffered is oppression, not discrimination, the lives of women in the workplace will continue to be filled with Faustian choices.

Read the full post on the Ms. blog

The Bellwether Settlement

By Professor Adam Zimmerman

Prof. Zimmerman is guest blogging on Prawfsblawg, where this post originally appeared.

A curious thing is happening in a Bergen County court in New Jersey. A set of trials scheduled to go forward this summer were resolved through an unusual settlement process. In a case that involved more than 3,000 defective hip-implants, the parties reached a $1 billion global settlement in record time, using what the court described as an unprecedented series of "bellwether settlements."

By way of background, courts have used "bellwether trials" for a long time to resolve large numbers of similar lawsuits. In a bellwether trial (or trials), the parties select a small group of cases for jury trial out of a large group of similar claims. A steering committee of plaintiff and defense counsel then use information gleaned from trial outcomes to resolve the remaining cases. Bellwether trials have been used to resolve many high profile cases--perhaps most famously in the Vioxx litigation against Merck and, most recently, in GM's litigation over its defective ignition switches.

But instead of "bellwether trials," the court facilitated a system of "bellwether settlements." That is, rather than use juries to decide the merits and value of certain cases, the parties--supervised by the court, magistrates and special masters--relied on a structured sample of 21 mediations involving typical plaintiffs to forge a global settlement. It was hoped that the different settlement outcomes, much like a bellwether trial, would offer the parties crucial "building blocks"--providing critical information about how to globally resolve the remaining cases. And Judge Martinotti, the New Jersey judge designated to handle all of the cases, was incredibly successful. The process not only resolved more than 2,000 lawsuits in New Jersey state court, but another 1,000 pending lawsuits in federal multidistrict litigation, all in one fell swoop.

A few thoughts beneath the fold.

Mass Compensation After September 11

By Professor Adam Zimmerman

Prof. Zimmerman is guest blogging on Prawfsblawg, where this post originally appeared.

Thanks to everyone for having me this month. For those of you who don’t know me, I write about complex litigation, mass torts and administrative law. Lately, I've been writing a lot about the issues that come up when mass disputes appear in unusual places—like administrative adjudication and agency settlements, federal prosecution agreements, private corporations, and even, the Presidency.

Despite some personal experience with it, I haven’t written much about the mass litigation that followed September 11. (But see here). However, in the last few weeks, we've crossed two small milestones for thousands of recovery workers who claim they suffered toxic injuries at Ground Zero. The first was announced by Sheila Birnbaum, the administrator of the new September 11 Victim Compensation Fund, which Congress reopened to pay claims brought by first responders. After three years overseeing the Fund, Birnbaum announced that she had resolved $1 billion dollars worth of claims for over 4,400 first responders.

Prof. Caplan on PrawfsBlawg: Jury Selection All Over the Place

By Professor Aaron Caplan

This was originally posted on PrawfsBlawg as part of the Strange Bedfellows series.

Jury selection appears often in the Con Law canon. The first SCOTUS case to find a violation of the Equal Protection Clause, Strauder v. West Virginia (1879), involved a statute that included only white men in the jury pool. Hoyt v. Florida (1961), an anti-canonical case usually taught as an example of the bad old days before sex classifications were deemed (quasi-) suspect, involved a law that excused women from the jury pool. Batson v. Kentucky (1986) involved a prosecutor’s peremptory strikes on the basis of race, but it tends to be taught in Criminal Procedure courses. Its progeny Edmonson v. Leesville Concrete (1991) applied Batson to peremptory strikes in civil cases; it is taught more often in introductory Con Law courses than is Batson, because it is conceptualized as a case about the state action doctrine. More recently, the first US Court of 

Appeals decision holding sexual orientation to be a (quasi-) suspect classification (included in my casebook) arose in the civil Batson context, after a gay man was peremptorily stricken from a jury deciding an antitrust claim against a manufacturer of HIV medications. SmithKline Beecham v. Abbott Labs, 740 F.3d 471 (9th Cir. 2014).

These decisions are often taught and presented in casebooks as if jury selection just happens to be the factual setting in which a legal question (usually involving equal protection) just happens to arise. This is a lost opportunity, because the jury trial can be worthy of independent consideration in a Con Law survey course. Even if not taught together on the same day or same unit, it can be valuable to use such cases to emphasize the jury as an institution of constitutional dimension.


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Prof. Caplan Publishes An Integrated Approach to Constitutional Law

Professor Aaron H. Caplan's An Integrated Approach to Constitutional Law is a "groundbreaking casebook is ideal for one-semester introductory Constitutional Law courses of 3–5 units that teach both structure and rights. Its novel approach presents constitutional law as a coherent system, not as isolated doctrines in silos. The book integrates subjects ordinarily taught in Con Law I and II; it integrates historical and doctrinal approaches; it integrates features of a casebook and a study guide; and it presents each case as an integrated whole, so that students learn relationships among doctrines while studying the details of each. Its tone is accessible, while its structure allows for sophisticated classroom discussion. A detailed teacher's manual offers charts, graphics, and additional source materials, significantly enhancing accessibility for first-time adopters."

Article III, Mandatory Arbitration, and Corporate Settlement Mills

By Professor Adam Zimmerman

Prof. Zimmerman is guest blogging on Prawfsblawg, where this post originally appeared.

To follow up on Richard's post, I wanted to ask your thoughts about another aspect of the Supreme Court’s most recent Article III decision in Wellness Int’l v. Sharif (2015). As a reminder, Sharif is one of many cases that asks how much power Congress can give to bankruptcy courts, legislative courts and other dispute resolution programs without threatening our independent federal judiciary. Over at Indisputably, Jean Sternlight argues that the opinion raises "substantial questions as to the constitutional legitimacy of ... private mandatory arbitration." She observes:

[Sharif] held that litigants may “knowingly and voluntarily” allow a bankruptcy judge to hear claims that, absent such consent, Article III would bar the bankruptcy judge from deciding...

Yet, while the Justices who have spoken on the topic seem inclined to find arbitration permissible, the principles espoused by the Court cast doubt as to the constitutional legitimacy under Article III of mandatory private arbitration. Lower court decisions have blithely held that arbitration is permitted because parties waive their right to go to court when they agree to arbitrate, but the issue is not so simple...

[W]hen courts have sought to justify arbitration on the ground that parties “consented” to bring claims in arbitration rather than in court, they have not applied the “knowing and voluntary” definition of consent recently applied in Sharif. If courts did look for knowing and voluntary consent they would find that while many business-to-business arbitration agreements meet the test, few if any consumer and employment clauses do so.

(H/T Jeff Sovern). I wonder whether Sternlight’s argument cuts more broadly. "Mandatory arbitration" refers to "take-it-or leave" it agreements forged between businesses and consumers before a dispute arises. But do you think the same analysis could apply to recent efforts by policymakers to encourage or require similar corporate dispute resolution programs after-the-fact? Some thoughts after the jump.