Scalia’s Vacuum & Mukasey’s Paradox


As jurisprudence goes, the last few years have seen legal thinking so daft that one could conclude that it was the babblings of psycho ward inmates.

The hand’s down babbler in chief is, of course, Supreme Court Justice Antonin Scalia, who in writing for the majority in turning aside a lawsuit against Wal-Mart by women employees “reasoned” that the failure of the retail giant to have a uniform employment policy which may result in systematic gender bias has no standing because there is no policy.

Having let that sink in, we’ll move on the former Attorney General Michael Mukasey, who runs a close second for what one commentator called Mukasey’s Paradox.

That is, lawyers cannot commit crimes like justifying the use of torture when they act under the orders of a president, and a president cannot commit a crime when he acts under advice of these lawyers.

Please pass the Paxil.

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  • superdestroyer

    Shaun,

    The Wal-Mart ruling as a 9-0 ruling by the Supreme Court. The liberal and conservatives justices just differed on the reason for supporting the ruling.

    Do you really want all employers to have hard quotas for hiring and promotion so that they cannot be subjected to frivolous lawsuits like the Wal-Mart lawsuit. Do you really want to make every employer have to go through the legal gymnastics that fire and police departments go through in order to hire competent people?

  • http://kikoshouse.blogspot.com/ SHAUN MULLEN, TMV Columnist

    sd:

    Another willful misreading of the circumstances and my take on them.

    The 9-0 ruling was on a certification issue. The 5-4 ruling was on the merits of the lawsuit.

    This is not a matter of what I want. The matter is not the issue of hard quotas or what you want. The matter is that yet again Scalia and his hard-right brethren staked out a result that suited their anti-woman, pro-corporation philosophy and then found a “reason” to back that up that was pure fantasyland.

    Another blogger provided this stinging analogy:

    “Imagine if you had a chain of department stores in the Deep South in the mid-sixties, and corporate headquarters had no official policy on the hiring and promotion of blacks. According to Scalia, there could be no discrimination because no one ever told the branch managers to be bigots.”

    I rest my case.

  • Dr. J

    AFAIK no one said there was no discrimination, simply that it has to be proven more conclusively than it can as a class action. It’s not enough to claim “These women were discriminated against, I’m a woman too, therefore I was discriminated against. Look at how women do on average–it must all be discrimination.” It’s reasonable that the burden of proof is higher than that.

  • DLS

    What a nice whack to the class-action scam.

  • http://kikoshouse.blogspot.com/ SHAUN MULLEN, TMV Columnist

    DLS

    Yeah. No more shipyard workers dying of asbestiosis getting some financial relief for their medical bills and their survivors. No more first responders dying from the toxic cocktail they inhaled at Ground Zero getting some financial relief for their medical bills and their survivors. No more . . .

    You are a hard-hearted son of a bitch and obviously quite proud of that fact.

  • DLS

    I’ll ignore the emotive and illogical stuff.

    It’s a scam. The claims are often questionable, and moreover arguing that everyone be treated the same flies in the face of reality, routinely*. To top it off, how much do the victims (or “victims”) get, versus what the lawyers (“plaintiffs”) get?

    Now, you might have had one good quibble, had you been serious and logical. The word “scam” is ambiguous as I have used it. There are scams targeting individuals in which the scammer tries to get people’s bank information “so you can get your settlement.” Perhaps I should have been more proper, and said that this “representative plaintiff” racket is a racket. It’s just going after deep pockets with a grossly inflated damage claim. (Again, what do the “victims” get, and what do the “repreasentative plaintiffs” get?)

    Never mind other details such as how clear a “class” of plaintiffs must be, or that we now have the specter of having federal class action lawsuits where before they would have been heard in state courts.

    * among a group of individuals, obviously, and that doesn’t even consider members of the same “class” that consist of, for example, ordinary individuals and large institutional investors, which likely have different interests (so what does that say about a single as-large-as-possible “class”?)

  • DLS

    That’s food for thought, Shaun, if you can quit non-thinking and quit misbehaving for a rare moment and try thinking for a Change.

  • superdestroyer

    Shaun,

    You must have read over the parts where the plantiff lawyers argued that statistical differences in promotion between men and women is evidence of discrimination. The only solution to having statistical difference is blatant quotas.

    Why are liberal so interested in quotas and promote them every chance they get. Even when the University of Michigan was caught red-handed with documents showing that they hand separate and unequal admission standards, the left still fully supporst state sanction racism, open discrimination, and want even more quotas.

  • http://kikoshouse.blogspot.com/ SHAUN MULLEN, TMV Columnist

    dls:

    Speaking of class-action “scams,” I am sure you will agree this one is a lulu:

    Dow Chemical wages a years long cover-up of the toxic effects on its Agent Orange on GIs in Vietnam. Thousands of GIs develop cancers unquestionably as a result of exposure, including two friends who had an extremely rare form of brain cancer.

    Dow Chemical paid out big bucks as the result of a class-action lawsuit. As a result, it’s share price plummeted.

    By your calculus this was unfair to Dow and its shareholders. You not only believe that my friends should not have been compensated, leaving squat for their widows and children, two of whom have birth defects common to fathers exposed to Agent Orange, but you probably would have gone into the ICUs that were their final homes and ripped the tubes out of their noses. Because it all was so unfair to Dow and its shareholders.

    Correct?