Friday, April 29, 2011


Can't shut 'em up and can't shut 'em down. It is big business as usual. Or as usual is defined by this Supreme Court.

As an arm of corporate America, this Supreme Court deserves much credit. As a protector of the rights of the individual against the abuses of those with power and wealth, this Court is an absolute disaster.

Over the past 2 years, the right warned of activist judges when trying to defeat the appointment to the Supreme Court of those they perceived would not be aiding and abetting their causes. Yet they applauded the determination in Citizens United where the conservatives on the bench undid history and legal precedent by finding that a corporation had somehow morphed into an individual with unfettered rights to control the destiny of this nation's elections by its pocketbooks.

Now, with the decision announced in Concepcion, those who are too big to fail, and too rich to be silenced, are found to be too clever to be sued. The right of those who have been aggrieved to aggregate by way of class action, to form an equal force against an otherwise immovable object, has been their only protection. When a "free" cell phone becomes a $30 free cellphone, who among us has the time, the energy, the know how and the willpower to work alone through the maze of litigation or an arbitration proceeding to challenge the wrongdoer?

For the giants among us to be able to insulate themselves from attack by a collective force, merely by inserting language in a document none of us has read or had an opportunity to negotiate, is contrary to legal precedent and to all values that this court should uphold. But while this is the court of last resort, they treat all efforts to reign in corporations as a case of first impression. Their decisions are activist in all the ways they should not be.

We have read of the oral argument in the pending Walmart case and can only anticipate that, consistent with Citizens United and Concepcion, this court will tell 1.5 million female employees of Walmart that they are too big a class to retain the right to sue. Get small, very small, and let each one of you move forward on your own against the biggest of them all.

This Supreme Court majority, in dealing a virtual death blow to class action litigation, has demonstrated that when it comes to questions of class, it has none at all.

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