When the Justice System Fails You

What do you do? This is what over a million women in the Wal-Mart case will feel if the Court refuses to certify the class action. There have been terrible rulings before. Rulings that misrepresent the facts or record, rulings that just evince pathetically bad judgment. Rulings to protect one party that distort the record or mistate it by the Court or their law clerks who are no more experienced than twenty year old law students. But Courts do fail you- not irregularly- sometimes it is political, sometimes bad judgment, even from Judges you expect should know better-sometimes they want to protect industries, sometimes there is a personal or corrupt stake in the outcome when they refuse to recuse, and they always have precedent to support wrong decisions- or we would have a perfect system and there would be perfect Justice in the world. There obviously is not either. It is not unlikely that the Court will either rule against Wal-Mart even though there is obvious discrimination going on (it is not a question of the merits there just certification under technical FRCP rule 23 grounds). If the Court in Wal-Mart refuses to certify the plaintiffs then some of them are not going to be able to start over and bring new suits- it will be too costly. They won't be able to afford attorneys. Their individual damages are not great enough to make it worth their or any attorney's time-so goes the calculation. So the injustice will go unaddressed. When this happens people resign themselves to- so what, I don't care anymore. The Walmart case hopes to address institutional injustice- a predominant pattern and practice of sexism. If it persists in getting unaddressed then this has a devastating effect on morale of both plaintiffs attorneys and their clients. Justice doesn't get done. People generally scream that class action attorneys are the ones who make all the money and their clients don't benefit. Given that the case went on for ten years to the Ninth Circuit and the Supreme Court and that there were ten law firms associated with it at various stages, if you do a calculation of numbers of attorneys, numbers of years, the per attorney pay out calculated per the salary the attorneys may not be getting as huge a windfall as thought. In any class action, after the costs in a national class action of that size, with multiple law firms after spreading the wealth people don't always strike the lottery. And the company wouldn't change without them. When Justice fails however -or gets it badly wrong-there is a clear temptation to just throw in the towel and say- whatever- don't care anymore. Can't care anymore. Just don't care. That is what the Supreme Court risks in a bad decision in Wal Mart- it's all wrong and I can't care any more. The greatest risk to bad Justice is the sense of fatalistic futility and a sense of their irrelevance.