The things I know now

I have a fantastic teacher for property who often says things like "now that you're lawyers" or "now that you have lawyer-brains." Today, during one of our review sessions before finals, she explained this by comparing how far we've come since the first weeks of school. Which is true, but I still think it's a little scary to be held to "lawyer standards" after less than 1/6 of my schooling.

I just read an article in WaPo that required using my lawyer-brain. Basically, 6 women are suing Wal-Mart for discrimination against female employees. It's a class action suit that started in California in 2001 (that's the procedural history for ya). Wal-Mart is challenging whether it's an appropriate class action. The women won the right to certify as a class in federal district court, and the appeals court upheld with a 6-5 vote. The Supreme Court just granted certiorari, meaning they'll hear arguments this spring.

So how does my lawyer-brain respond to this, especially during this crazy period leading up to finals?

Oooh, that's a Rule 23 issue! We just learned that last week. Federal Rules of Civil Procedure (the Bible for law) Rule 23 - Class Actions says that (a) a class must meet these four prerequisites: numerosity, commonality, typicality, and representativeness. Wal-Mart says the class doesn't meet commonality, which says there must be a common question of law or fact for all members. Yes, they're all female and employees, but that's not enough in common - some are hourly, some salaried, and they work all over the country and under a variety of job titles.

(a) makes sense to me and you need all four. (b) is trickier - types of class actions - and you need to fit in (at least) one category:

23(b)(1)(A)- kinda like Rule 19 required joinder - you need all the people added to the class that way everyone gets the same result.

23(b)(1)(B) - kinda like A except it has to do with if the result would hurt those not joined. Not sure if I get this...

23(b)(2) - the big bad company is being a jerk (cigarette companies, credit cards) and the only way to make them stop is a big class action creating injunctive relief. This, I get. It's Erin Brockovich.

23(b)(3) - there is a clear common question of law or fact and it's most efficient to have one giant case.

Wow. That was a good review, but sometimes I want to turn this off. I have a plan for not going crazy this week - that will be my next post.