Binders Full of Lawsuits, with Women!

Shortly after Justice O'Connor retired, Justice Ginsburg said that she was "lonely" on the bench. She had just become the sole woman on the Supreme Court. Ginsburg expressed her belief that she and O'Connor had brought certain sensitivities to the court, a quality that the other justices could not because they did not grow up as women.

Fast forward to the Ledbetter v. Goodyear Tire & Rubber Co. case, were Ginsburg displayed a passionate dissent. Not only would she read the dissent but she called the 5-4 majority "acrimonious" and called for Congress to change the law. Congress listened to the "lonely" woman.

Justice Ginsburg must have been sensitive to Lilly Ledbetter's case because in a way, they shared similar roles. Both of them had experienced the solace of being the only woman in a profession full of men. Lilly Ledbetter, a district manager for Goodyear for a number of years, was the only woman out of 28 managers. That is  somewhat different than having only eight male colleagues on the bench. And Lilly Ledbetter also had to face extremely disproportionate pay in relation to her male counterparts.

After the Supreme Court reversed a three million jury verdict for Ledbetter, Democrat lawmakers sprung into action. Ginsburg's statement that the "ball was in Congress' court," sent a message. You better have your glove and bat ready because it is time to run onto the field of legislation. 

But what was the effect of the Ledbetter v. Goodyear case? How would Congress shape the new legislation? 

The Supreme Court held in Ledbetter v. Goodyear that the statute of limitations had barred her claim because she brought the action 180 days after the discriminatory act. The majority, five men, determined that the alleged discrimination occurred when they decided to set her pay far below her male counterparts. In strictly applying the statute, the court stated that the discrimination did not occur when she was actually paid. This precluded her from being able to recover under Title VII. 

Lawmakers from both the House and the Senate began to craft new language extending the statute of limitations and defining the discrimination in a more liberal way. The new legislation agreed upon, by mostly democrats, would allow women to bring a discrimination suit after they had learned of the pay discrimination, and would not time bar the suit in relation to the discriminatory act. Although it was passed before President Obama was elected, it would be the first piece of legislation signed by him.

Reactions from both sides were predictable. Democrats hit a home run, expanding the role of women in the workplace and Republicans were outraged that employers would now have to face more lawsuits from the damn plaintiff's bar. 

Both are right to an extent. But, I feel that if we are to error; let us error on the side of equality in the workplace. When there is a woman's perspective at work, the company will be better suited to succeed.

I strongly disagree with Republican presidential candidate Rick Santorum's statement.  He recently said that the, "[Lilly Ledbetter Act] had nothing to do with changing the law with respect to pay for women or rights for women. It simply gave lawyers a longer time to sue..." 

Lawyers do not simply sue an employer for the hell of it. Lawyers have clients, and some of those clients may happen to be women who have faced discrimination. When most attorney's decide whether to take a case, he or she makes certain that the case has merit. Lawyers are bound to an oath of responsibility and despite what Senator Santorum says, will pursue a claim only if there sufficient evidence of discrimination.

Besides, this can only be good for employers. Businesses will take precaution in assessing the pay of employees and it will ensure that a person's  pay will be determined by their work, not their gender. There may be more discrimination suits initially, but the courts will delineate guidelines on when is the appropriate time to bring a suit in accordance with the Lilly Ledbetter Act.

Justice Ginsburg and Lilly Ledbetter may have shared adversity in explicating a woman's perspective to a group of men. But one thing is for sure; a whole country full of men have now heard a woman's opinion, and it is now the law of the land.

Negative Action: Why the Supreme Court Should Not Change Current Law

Chief Justice John Roberts was sworn in on September 29, 2005 with thunderous applause and praise. His appointment was seen as a win for conservatives and for originalism judicial philosophy. Despite the clear victory for traditional moral values, the Chief Justice expressed that his bipartisanship appointment proved that "judging is different from politics."

Boy, was he wrong. Politics soon became intertwined with the highest court when "Obamacare" was upheld.

The Affordable Care Act was arguably the most watched Supreme Court Decision in modern history. By the end of the day, after Chief Justice John Roberts sided with the court liberals, he was vilified and called a traitor. Rand Paul said, “just because a couple people on the Supreme Court declare something to be ‘constitutional’ does not make it so..." Actually Rand, it does.

Now, Justice Kennedy has the same opportunity to be scorned. His swing vote decision on the current affirmative action case, Fisher v. University of Texas, will give him an opportunity to put the judiciary branch in direct line with the political line of fire.

But like Roberts, Kennedy should not fear the conservative's wrath. He should keep current law in place or uphold the tradition of encouraging diversity in schools. I have first hand knowledge that a diversified school can lead to a better understanding of others and ourselves.

The first woman on the Supreme Court Justice believed this sentiment too when in 2003, Grutter v. Bollinger, she put in place the standard for how universities may consider race as a factor.

Justice O'Connor said race may be used in a flexible non mechanic way with a number of other factors by admissions offices when they determine who will be the next batch of students. This "holistic review" has worked and almost all universities want to keep the current system in place.

Besides schools wanting a diverse student body to ensure that the best and brightest students resembles the make up of the public, there is overwhelming evidence that race relations is still a problem today. A Newsweek poll suggests that minorities still feel that relations between race have stagnated or deteriorated.  

The Trayvon Martin incident has split opinions on racial lines, the Arizona immigration law has brought attention to racial profiling, and the birther issue has led to questions of blatant racism.

One way these problems can be addressed is to ensure that students learn besides students of other races, socioeconomic backgrounds, and religion. When universities accept students based upon factors of race and other criteria, it will allow friendships to be made and differences to be embraced. This will lead to progress in race relations.

I graduated high school from an affluent, mostly white school, in Temecula. When I stepped foot into my law school after attending UCI, I met people from a wide variety of backgrounds. I was challenged for the first time to rethink some of my ideas related to affirmative action. Now that I have graduated, I know that a diverse student body is indelible to a career in law. The American Bar Association agrees, filing an amicus curiae brief in Fisher v. University of Texas to voice its support of our current law.

Justice O'Connor said in 2003 that “we expect...that 25 years from now, the use or racial preferences will no longer be necessary.” If the court agrees with her, it should keep Grutter in place until 2028. I think there is still some time left.

When Justice Kennedy makes his decision he should remember the words of Justice O'Connor. He definitely shouldn't consider the political assault on John Roberts. Maybe then Roberts statement will be correct. The Supreme Court will never have to bow to political pressure.

Facebook's IPO: Lawsuits, Billions Lost, and Wall Street Wins

There is something attractive about a criminal trial. Most of our beloved shows involve violent crimes and the aftermath of police and prosecutors trying to seek justice. Maybe too many. I lost count with how many CSI shows there are.

We are enamored with the whole process and the high stakes involved. A person's liberty is at stake versus the justice rightfully needed for the victim's family. It is fundamental to our core that we see to it that criminals are punished and that's why it catches our attention.

For me though, a botched initial public offering of a tech company and the legal aftermaths captures my interest. I'm just fascinated with the idea that an attorney can wave around a disclosure form and some documentary evidence representing the current trading price of a Facebook share and win an argument. And there are many people who are trying to do just that.

In May, the news coverage was heavy on the genius of Mark Zuckerburg and the meteoric rise of the social networking site. Look in the Wall Street Journal today and there are articles about dozens of lawsuits pending against Facebook and the underwriter, Morgan Stanley.The bases for their claims is  that the required disclosures given to investors prior to the public offering were insufficient and the analysts failed to provide realistic revenue projections.

The plaintiffs, investors who lost a substantial sum of money from the IPO, argue that there should have been more information given as to  Facebook's problems with advertisement, revenue, and trend that users are accessing Facebook with their mobile devices.

In other words, the investors feel duped into buying a stock that was overvalued. It sounds ridiculous, right? They should have been more careful. Haven't they heard of "buyer beware?"

Wall Street is never simple and that has been proven with the third largest IPO in our history. There seems to be a lot of news coming forward that despite investors losing money and Facebook losing respect in the mind of investors, Wall Street ended up with more money than usual. That shouldn't sound ridiculous, they always win.

The banks used an underwriting provision called a stabilization clause, or a Greenshoe option, to minimize their risk. It paid off. While Zuckerburg lost billions, Morgan Stanley was handing out the pool of about $100 million.

Not only did banks profit from their underwriting services, they profited from taking short positions on the Facebook stock. Traders at Goldman Sachs and JP Morgan took positions that the shares would decline in value. These complicated and controversial trades almost always benefit the banks despite the damage done to the issuing company.

When its all said and done, we have laws in place which enable investment banks to engage in this business. We can put some blame on Facebook for overvaluing itself or the underwriters for failing to disclose all material information. At this point, it may not matter. The average investor lost money, Facebook lost money, and the banks made money. Like I said, it is totally legal but its like they are getting away with a crime. The banks are the ones robbing the investors.

It may be best to just watch CSI. In those shows, there is always justice at the end.

Mayweather Knocked Out in Court!

Floyd Mayweather Jr. is one of the most successful boxers of all time. He has a perfect record of 43-0. No losses, and all wins. It's too bad for him that it does not carry over into the court. He's losing all those fights.

A couple of days ago, Mayweather was forced to pay his nemesis, Manny Pacquiao, over $113,000 in legal fees and costs. Pacquiao's attorneys made the legal jab when Mayweather failed to show up to his own deposition. The court stated that it was "obviously intentional," and ordered monetary sanctions.

This case is not for a battery or an upper punch. Pacquiao sued Mayweather in federal court for defamation when Mayweather made a statement that claimed Pacquiao used performance enhancing substances. Instead of retaliating with his fists, Pacquiao retained an attorney. I would have liked to see the fight on pay-per-view.

A defamation case gives justice to those who believe that their reputation has been tarnished due to a false statement. Pacquiao has every legal right to pursue this remedy, but it seems unnecessary. Mayweather seems to be losing the fight for the public's respect. It could be because of his domestic abuse conviction or the controversial win against Victor Ortiz. But, its probably a combination of the two.

Mayweather is also losing any fans he may have had in the legal field. He is blatantly disrespecting the judiciary. The deposition of a party is a necessary part of the discovery process. It allows all of the necessary evidence to come before the court. It is within the court's power to sanction those individuals that refuse to participate and rightly so.

I do not think it will have any effect on Mayweather's finances. He makes millions for each fight he takes part in, before it is even decided who wins. One contract showed that a Mayweather-Pacquiao fight would have netted over $50 million for both. A $113,000 sanction is like chump change to the champ.

Ultimately, this dispute between the two must be decided in the boxing fans eyes highest court  - the boxing ring. We will have to wait and see whether Mayweather wins this legal fight first. It's not looking good, his 0-2 record in court  proves the law has been the Kryptonite to this undefeated boxing champ.

Vote (with an ID) or Die!

From 1776 until now, we have had men and women die for our freedom. In risking and sacrificing their lives , our citizens in uniform believed that it secured the rights of all people. Including those people without photo identification.

Unfortunately, the right to vote has been turned into a polarized issue. Just like with any issue our elected officials can argue about, it has become a party line vote. I would not be surprised if Republicans and Democrats took party positions on whether Coca-Cola or Pepsi was more American.

It did not have to be this way. Right after the Tea Party birth in 2010, newly Republican-controlled legislatures started passing voter ID laws with the hopes of preventing fraud. There was only one problem with their goals. There was no fraud occurring.

Before Pennsylvania's highest court heard arguments on the validity of the law, both parties stipulated that, "[the state] will not offer any evidence in this action that in-person voter fraud has in fact occurred in Pennsylvania and elsewhere,” nor will it "offer argument or evidence that in-person voter fraud is likely to occur in November 2012 in the absence of the Photo ID law."

With no evidence of past fraud or evidence that fraud will likely occur in the future, the Pennsylvania Republican Legislature has passed laws that could prevent thousands from voting. And there just so happens to be evidence of the law's negative effect on the poor, minority, and elderly. Even Jim Cramer, the host of Mad Money, has said it has caused a burden to his father.

Pennsylvania's counsel should have at least mentioned that there have been 13 credible cases in the past 10 years throughout the whole country. I mean its less than the amount of UFO sightings reported, but it is still a number. 

If this law is not about preventing fraud, then what is it really about? Could it be about politics? Sadly, there's recorded evidence to support that.

Mike Turzai, the Pennsylvania House Majority Leader, said so clearly while he was being recorded. In puffing his chest in a speech regarding the Pennsylvania House's accomplishments he stated, "voter ID, which is going to allow Mitt Romney to win the state of Pennsylvania, done!"

That takes some brass. The main legislator responsible for passing the voter ID law in Pennsylvania said that it will allow Mitt Romney to win, not that it will prevent in-person voter fraud.

I know that some Republicans will shrug their shoulders and dismiss it immediately. I know that for other moderate and reasonable minded Republicans it will cause a moment for concern. Winning a presidential election is not as important as the fundamental right to vote.

Many years ago, this country came to the conclusion that it is better that everyone get's an opportunity to vote. Not just a few. We decided that everyone should have a say in what direction America should take.

When the lower court in Pennsylvania relied on precedent to rule in favor of the voter ID law, it cited a 1869 case in which the court upheld a tough and similar law. That historic case said that if the law were not passed, the vote “would be to place the vicious vagrant, the wandering Arabs, the Tartar hordes of our large cities, on a level with the virtuous and good man.”

I do not think the Republicans have a monopoly on virtuous and good men. Nor do I think the Pennsylvania legislature should be the judge on what is virtuous. That should be left to Someone else. And when I head into the ballot box on November 6, I hope that I do not have to bring my birth certificate, social security card, and driver's license. As far as I'm concerned, all I need is my belief that we can move forward.








 

Innocent Until Strong Armed into Court?

The dust has settled and the cycles are long gone but there still remains a fog over the polarizing figure, Lance Armstrong.

It has been almost a week since Armstrong has decided to drop his fight against the United Stated Anti-Doping Agency ("USADA") and there has already been screams of constitutional violations and injustice. One yahoo contributor called Armstrong the modern day "Robin Hood," and called the whole situation a "travesty of justice."

I think she's completely right. This reminds me of when the Sheriff of Nottingham stripped Robin Hood of his archery trophies because of his alleged doping. There was absolutely no proof that the witch concocted the testosterone steroid and supplied it to Robin of Loxley. And the testimony of Little John against Robin Hood was completely motivated by his desire to smear Robin's name. Obviously I jest. Robin Hood fought the allegations till the end and ultimately proved his innocence.

Lance Armstrong is undeniably an inspiring figure. He was diagnosed with testicular cancer as a young man and beat it. His charity does great work and helps individuals live a more healthy lifestyle. But, this does not change the fact that there is overwhelming evidence that he cheated. Armstrong's courage and success against a horrible disease does not mean a successful argument can be made that he has been denied his due process rights.

USADA, in accordance with authority given to it through various treaties ratified by the United States Congress, moved to sanction Armstrong when a number of people came forward willingly to testify against him. The list of adverse testimony was credible and long. The list's length may have rivaled the Tour de France route.

Instead of vindicating his claims of innocence with an adversarial proceeding that would have given him the opportunity to cross-examine his teammates, present exculpatory evidence, and present his own witnesses, Armstrong elected to drop the fight. He issued a statement later in the week that said we should not cry for him. Don't worry, I won't.

The AAA-CAS, the alternative dispute resolution organization, that would have been the impartial determiner of Armstrong's guilt is not a perfect judicial proceeding. But that does not mean it is insufficient, obsolete, or unfair. One could make the argument that it is on par with most judicial courts in the United States.

A case in arbitration still has an equitable process. It is not a sham proceeding. Thousands of people use arbitration every year and receive an award or a favorable result. Furthermore, Armstrong would have been able to appeal in the event that he was found guilty of doping.

It is unfortunate to see people vilify USADA when it was simply doing what it was formed to do - keeping international sports free from doping. Of course, there may be some ways to improve the independence of the proceedings for the athletes accused of doping. Armstrong's case could have moved that conversation forward.

Armstrong made the decision to forego the arbitration yet still claim his innocence and victories. He does this despite the federal court's dismissal of his suit against USADA and determination that the AAA-CAS is a capable fact finder. It makes one wonder whether he has simply ran out of steam. Or maybe the performance enhancing drugs have no effect on his ability to present a case. I'll have to ask Robin Hood.

Legimate Rape: Something "Akin" to Rape?

I have friends that fall on every notch of the political scale. They range from tea party conservatives to occupy progressives.  With that in mind and as a preface, I want to discuss a heated political issue that should be non-partisan. I am afraid, however, that like with every public matter - it will turn into a dividing issue among friends and colleagues.

The 2012 election cycle is one of the most important in our lifetimes. There is a lot at stake in regards to what values and economic reforms we ultimately embrace. We have two distinct presidential candidates with clear differences in opinion about the economy. It will be a stark choice. However, many people are unaware that there are other important issues at stake.

Recently, a candidate for the senate in Missouri, Todd Akin, started a firestorm of controversy when he took up the issue of abortion. He was answering a question on why he vehemently opposes a rape exception to the anti-abortion law when he made the following statement:

"'From what I understand from doctors, that’s really rare,' 'If it’s a legitimate rape, the female body has ways to try to shut that whole thing down. But let’s assume that maybe that didn’t work or something, I think there should be some punishment, but the punishment ought to be of the rapist, and not attacking the child."

His statement is scientifically unsound. A woman's body cannot shut down ovulation of an egg merely because it was the product of rape. There is no legitimate rape. There is just rape.

I do not think this should be a dividing issue.

The comment, however, does put into perspective a Republican party position, which will cause debate. The Republican party wants to add a human life amendment which would ban abortion in all instances, even rape. The RNC will vote to add this position to its platform before the convention in Florida.

Furthermore, state legislatures, throughout the year, have attempted to pass "personhood" bills, which would legally make a fertilized egg a "person." The law's effect would make an abortion illegal in all circumstances.

It is not news that conservatives and Republicans are pro-life. It is newsworthy that elected officials are taking drastic measures to overturn forty years of precedent. Some of the candidates, like Akin, are explaining their position, albeit poorly.

Roe v. Wade, a 1973 decision, established abortion as a 14th Amendment liberty right. In Pennsylvania v. Casey, the court upheld that restrictions on previable abortions are unconstitutional when they cause an undue hardship to the woman. This has been the law for decades. The court in Casey even acknowledged that precedent should be followed to avoid further political polarization.

A pro-life individual has a right to oppose abortion. I understand the moral, ethical, and legal arguments against abortion. I emphasize with them. Everyone should do what they can  to help prevent abortions through education and counseling. Those tools needs to be utilized. That's where I draw the line.

Like my conservative friends, I think the government should stay out of our personal lives. Elected officials should not impose their religious beliefs via a constitutional amendment. Women should be able to make their own decisions.

No matter what I think, this election will have consequences. Even on non-economic issues, like abortion.

Ultimately, we can spend a lot of time trying to overturn a law or we can take steps to decrease the need for abortions. We can educate individuals about sex and its consequences. We should implement values in our schools that can help prevent unwanted pregnancies and strengthen the family.

I guess pushing for a radical change in the law regarding a woman's right to choose is also an option. That is why we have elections.