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More on Dukes v. Wal-Mart

(Our earlier coverage of the Ninth Circuit decision.)

Hans Bader comments on the case and is even angrier than I am about the lawlessness of it. He reminds us of Professor Fried's earlier critique of Dukes author Judge Harry Pregerson:

Judge Pregerson is most famous for repeatedly defying the U.S. Supreme Court in the Robert Alton Harris case, in which he repeatedly blocked the execution of a vicious killer who murdered two boys in cold blood and then ate their dinner while they lay dying nearby, even after the Supreme Court had set aside his stays of execution as baseless. (Harvard Law Professor Charles Fried wrote a scholarly analysis of Pregerson�s actions aptly titled Impudence). Pregerson had also dissented against life sentences for violent criminals, which he regards as typically being cruel and unusual punishment.

At his own judicial confirmation hearing before the Senate, Judge Pregerson openly boasted that if the law conflicted with his own values, he would choose to apply his own values instead of the law.

As Tim Sandefur noted about the same judge four years ago, the proper remedy for this lawlessness is impeachment.

Bloomberg has the standard laudatory piece on victorious plaintiffs' attorney Brad Seligman. One substantive detail:

In the Wal-Mart case, he showed U.S. District Court Judge Martin Jenkins an e-mail by the retailer's top personnel executive saying the company had no system for telling hourly employees how to earn promotions to management. Jenkins cited the e-mail when he granted the case class-action status in June 2004, the ruling Wal-Mart appealed.

Of course, that sort of evidence, properly construed in an intellectually honest manner against the requirements of Federal Rule of Civil Procedure 23, is evidence that class treatment is not appropriate: if there is discrimination (and any large organization made up of fallible humans is bound to have some somewhere), it is discrimination happening on an individualized basis in particular stores or even particular departments of particular stores. As Brian Van Vleck notes:

For example, to the extent that Wal-Mart promulgated centralized personnel policies and procedures, the majority found that these supported a finding of �commonality.� Yet, to the extent Wal-Mart lacked such centrally imposed policies, the majority held that that, too, was evidence of �commonality� -- because it demonstrated a �common� policy of permitting subjective decisions by local managers. Predictably, Wal-Mart had no way of escaping this logical Catch-22.

Also of interest if less legal relevance, Bloomberg reporter Karen Gullo repeats the story (described in a 2004 Fortune article) that Seligman "developed his distrust of large companies as a teenager." You see, his father, an ABC television producer, died suddenly before his pension vested, and Seligman's family lost its upper-middle-class lifestyle of hobnobbing with B-list celebrity actors and had to move to a smaller house. Why this is ABC's fault rather than that of the elder Seligman's for failing to purchase adequate life insurance to cover the mortgage is never explained. (Too, one can conceive no other reason why a family without its father and with a son going to college might want a smaller house; hey, my family moved to a smaller house after I graduated high school, too, but you don't see me trying to extort billions from legitimate businesses.)



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.