Fed Cts Eschew Social Media

May 31, 2013 by Leave a Comment

youtubeAre federal courts out of touch?

 The National Center for State Courts reported the results of a recent survey that would indicate that federal courts literally are out of touch. The survey shows federal courts have thus far largely eschewed the use of “social media,” including Facebook, Twitter and YouTube.

 Out of the 135 responding courts, only 21 (15.6%) said that they were using social media (split almost evenly between District and Bankruptcy Courts).

This blog, of course, is concerned that federal courts are pro-business  and that federal judges disproportionately dismiss employment cases.  But the bigger issue is the extent to which federal courts simply are out of touch with the American citizenry.

Why would the judicial branch of the federal government pass up the incredible opportunities  offered by social media to inform the public about the court system and to essentially make the case that federal courts are important and should received taxpayer dollars?

 One can look for clues at the U.S. Supreme Court, the leader of the federal judiciary. It still refuses to allow television cameras in its courtroom. Television is archaic technology that dates back to the 1920s.

 Courts do have web pages, of course, but this is a small concession to the universe of opportunity available through social media. Here are some of the many uses of social media that federal court system could benefit from:

  •   Courts are in the business of deciding legal issues. Facebook and Twitter are tailor-made for courts to notify the public and the media when an important legal decision is issued or when a jury verdict is in.
  •  Social media offers the potential for timely dissemination of  useful information to the general public (i.e., Snow day – Court closed; Jury trial postponed so jurors need not report for duty; Delays possible – Parking lot closed for re-paving, etc.).
  •  Imagine the increase in efficiencies that would occur if a court posted YouTube videos showing how the court operates. For example, what should a visitor expect with respect to security screening methods?  Where do pro-se litigants sit in a courtroom and how do they present their case to a judge? 
  • Social media offers tools that can be used to education the citizenry about civil and criminal justice issues. What are the rules of evidence? What is hearsay? This type of educational outreach would be especially useful to litigants who cannot afford an attorney, which includes most poor and middle class Americans.

 Perhaps most importantly, social media offers the federal court system the opportunity to  build trust in the institution and to counteract common negative stereotypes about federal courts –  remote, insular,  obtuse,  elitist, pro-business, inappropriately “activist,” influenced negatively by political considerations, out of touch, etc.. These negative stereotypes  affect the public’s understanding of the important issue of judicial independence.  Enhanced trust also could come in handy when the federal court asked  taxpayers for money to operate.

  One wonders what model of leadership, administration or management is being followed in the federal courts? What credible business school today recommends that an institution which serves the general public reject the very tools of communication that are  most in use by the general public?  And, the last time I looked,  Facebook, YouTube and Twitter were free. 

Filed Under: DISPATCHES, FEDERAL, U.S. SUPREME COURT Tagged With: , , , , , ,

Judges Who Blog

April 26, 2013 by Leave a Comment

gavelI was surprised to find out this week from LawSites that I may be one of only three judges in the United States who “blog.”

 I am an appellate justice for a Native American tribe in Northern Nevada. I work for a sovereign nation that has its own court and code of laws but  is bound to the United States by a complex series of federal laws and treaties.  I formerly worked as a tribal court judge for another tribe.

 I don’t blog about being a judge, per se, though that experience undoubtedly informs my blog.

I write about employment discrimination, workplace bullying and abuse – from a worker’s perspective.  I began blogging after I took a job at a national domestic violence organization and became a target of a bullying supervisor.  I have since written a book, Surviving Bullies, Queen Bees & Psychopaths in the Workplace.

 I find it appalling that the United States is one of the few industrialized countries in the world that does not protect workers from workplace bullying,  which is a widely recognized form of  violence that can severely impact a target’s health, lead to physical violence,  and costs society billions each year in lost work hours, higher medical costs, social services expenditures, etc.

 Back to blogging judges  …

 It seems a shame to me that more judges don’t blog. Their silence supports the status quo, which works largely to benefit corporate interests, the powerful and the rich (who contribute to political campaigns).   

 I would argue that silence does not serve the judiciary.  As Alexander Hamilton stated in The Federalist Papers,  the judiciary is the weakest branch of government because it controls neither sword nor purse.  The judiciary has utterly failed to make its case to American taxpayers for  appropriate funding.

 According to the American Bar Association,  most states have cut court funding by at least ten percent in recent years. Many states have stopped filling judicial vacancies and/or laid off judges. Many states have frozen or cut the salaries of judges or staff, despite ever increasing caseloads.  Many courts have reduced their opening hours or even close on some work days.

 It’s almost like the painful post-Internet downfall of the Post Office, but there is no satisfactory alternative to the court system for the vast majority of Americans.

 By its silence, the judiciary fails in particular to effectively champion the plight of people who need a just resolution of civil disputes. Civil courts are largely inaccessible to the poor and, increasingly, to the middle class. This has led to injustice on a massive scale. Meanwhile,  taxpayers become more disillusioned, which makes the judiciary even weaker.  

 I suspect that some people find the judiciary  to be arrogant and secretive – perhaps because its leaders on the U.S. Supreme Court refuse to allow their proceedings to be televised and it’s virtually impossible to work there unless you graduate from an Ivy League law school.  

Also, judges seem to think – admittedly with some justification – that they will never be promoted if they voice a public opinion on anything that is  more substantial than the weather.

 But the biggest disservice that is done by the silence of the judiciary involves the public perception of the work of a judge.  

 Many people don’t realize that being a judge is really hard work.  Imagine trying to make a good decision,  with the clock running,  rarely enough reliable information or too much conflicting information to be helpful, with emotions running high on both sides.  Even if the stakes seem low to you or me, they are always high to the litigants.

 A few years ago, a judge in Reno, NV, was shot while standing in his office through a plate glass window  by a sniper crouched in a parking lot across the street from the courthouse. The sniper was a litigant in a divorce case who had just murdered his wife. The judge was presiding over that case.   

 A good judge must be strong enough to make the right decision when it does not serve that judge’s interests. When it goes against the grain of powerful people who feel entitled to more justice than they deserve. A good judge must be strong enough to do the right thing when it could alienate a campaign donor or someone with power over the judge. It can be  like a politician from a “red” state  who has to vote on gun control every day.

Justice is the elusive goal that good judges strive to reach in their deliberations.  But justice is often a moving target. It can be difficult to find the bulls-eye. If you make a “mistake,” there is  an appeals court that will point it out.  Sometimes you make the right decision legally but you know in your heart that it isn’t right on a moral or human level.  You don’t forget those cases.

 There is so much about the judiciary that people don’t know because the judiciary has not told them. I think more judges blogging might help people understand that the course of justice is often imperfect, even when everyone is working in good faith toward a just resolution.

Knowing that so few judges blog makes me feel oddly vulnerable – like the soldier who stands up in a field while bullets whistle past.  Alas, it may be  time to  give up any expectation of promotion to the federal bench.  

 

 

Filed Under: ABOUT, CULTURE, DISPATCHES Tagged With: , , , Alexander Hamilton, , Judges, LawSites, Native American Tribe, Post Office, The Federalist Papers,

Employer gets Immunity from Class Action

March 23, 2013 by Leave a Comment

boardroom

Workers this week suffered another  potentially devastating blow when an influential appellate court ruled in Parisi v. Goldman Sachs & Co, that a former managing director could not file a class action lawsuit against  Goldman Sachs for sex discrimination because she had signed a contract agreement to arbitrate employment disputes.

The decision by the  Second Circuit Court of Appeals in New York creates a scenario that  allows a savvy employer to class-action proof itself.

The appellate court ruled that Lisa Parisi, a former managing director of Goldman Sachs, could not sue the company in a class action because she agreed to submit all employment disputes to binding arbitration when she signed a “managing director” agreement in 2003.  Since the “managing director” agreement is  silent as to class actions,  Parisi must proceed to arbitration  on an individual basis. Bottom line: Parisi can’t sue in class action and she can’t arbitrate in class action.

 Parisi, who was fired in 2008,  alleged Goldman Sachs conducted a “pattern and practice” of sex discrimination against top female employees in violation of Title VII of  the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”) and the New York City Human Rights Law.  She said she could not proceed in arbitration with a class action claim without Goldman Sachs permission and thus was effectively being denied her right to sue the company for systemic sex discrimination.. In other words, she said the arbitration clause in her  agreement must be invalidated because arbitration would preclude her from vindicating a statutory  right to file a “pattern and practice” class action lawsuit.

The appellate court agreed with Goldman Sachs that no substantive statutory right exists for employees to pursue a class action “pattern-or-practice” claim.

The court’s decision reversed two earlier decisions by a federal magistrate and a  district court judge who both denied Goldman Sach’s motion to compel arbitration in the case.

 The ruling  is a  boon to employers who are prescient enough to force new hires or employees who are being promoted to sign over-reaching binding arbitration clauses;  it  effectively negates the possibility that the employee will participate in a costly class action lawsuit down the road.   

Goldman Sachs took the position that it could not be sued by Parisi in federal court because of the arbitration clause, and it could not be compelled to defend a class action suit in arbitration because the arbitration clause in the agreement Parisi signed  was silent as to the arbitration of class claims.

Goldman Sachs is not entirely of the woods. Parisi filed the class action lawsuit along with two other Goldman Sachs employees,  Shanna Orlich, an associate, and H. Christina Chen-Oster, a vice president, who reportedly did not sign binding arbitration agreements with Goldman Sachs and presumably could proceed without Parisi.

Parisi’s employment agreement  contained an  arbitration clause in which she agreed  to arbitrate any dispute, controversy or claim arising out of or based upon or relating to “Employment Related Matters.”  The agreement defined  “employment related matters” are defined as “matters arising out of or relating to  or concerning this Agreement, your hire by or employment with the Firm or the termination thereof,  or otherwise concerning any rights, obligations or other aspects of your employment relationship in respect of the Firm.”

 The appellate court reasoned that  the U.S. Supreme Court has consistently interpreted the Federal Arbitration Act as establishing a “federal policy favoring arbitration agreements.”  It also cited an earlier ruling in which the appeals court  concluded that in Title VII jurisprudence “pattern-or-practice” simply refers to a method of proof and does not constitute a “freestanding cause of action.”  Chin v. Port Authority of New York, 685 F.3d 135, 148 (2d Cir. 2012).

The arbitration clause in question states the Plaintiffs claims will be “finally settled by arbitration in New York City before, and in accordance with the rules . . . of, the New York Stock Exchange, Inc. (“NYSE”) or . . . the  National Association of Securities Dealers (“NASD”). If both the NYSE and NASD decline  to arbitrate the matter, the matter will be arbitrated before the American Arbitration Association  (“AAA”) in accordance with the commercial arbitration rules of the AAA. You agree that any  arbitration decision and/or award will be final and binding.”

Goldman’s appeal was supported by briefs from the U.S. Chamber of Commerce and the Securities Industry and Financial Markets Association. Parisi had support from the NAACP Legal Defense and Education Fund and the National Women’s Law Center.

The case is Parisi v. Goldman Sachs & Co, 2nd U.S. Circuit Court of Appeals, No. 11-5229.

Filed Under: DISPATCHES, EEOC, TITLE VII, U.S. SUPREME COURT Tagged With: "pattern and practice" of discrimination, arbitration clause, Chin v. Port Authority of New York, , , , Goldman Sachs, H. Christina Chen-Oster, Lisa Parisi, NAACP Legal Defense and Education Fund, National Women's Law Center, Parisi v. Goldman Sachs & Co, , Shanna Orlich, The Second Circuit Court of Appeals, ,

The New Untouchables – Wall Street Crooks

March 16, 2013 by Leave a Comment
The New Untouchables – Wall Street Crooks

Most of the federal appellate decisions I read every week attempt to justify why federal judges were  correct when they summarily dismissed a worker’s claims against an employer before the case even got to a jury.

So few of these cases make it through the federal judiciary that it has raised questions about objectivity and balance.

Perhaps that is why it is so irksome that the U.S. Department of Justice failed to criminally prosecute even a single Wall Street executive in connection with the 2008 collapse of Wall Street, which caused widespread unemployment and a massive loss of wealth for senior citizens who are facing an uncertain retirement.  ( Note: The PBS show Frontline did a superb job examining the DOJ’s failure to prosecute in the documentary, The Untouchables.)

Now it appears the U.S. Securities and Exchange Commission – which at least did something even if it was too little, too late – is effectively foreclosed from bringing future prosecutions for civil fraud arising from the Wall Street meltdown.

The U.S. Supreme Court unanimously ruled last month in Gabelli v. SEC that while some private plaintiffs can extend the statute of limitations through the so-called “discovery rule,” the SEC cannot.  The Court held that the five-year statute of limitations for the SEC to bring a civil suit seeking penalties for securities fraud against investment advisers begins to tick when the fraud occurs, not when it is discovered.

Is it over? Will the titans of Wall Street who brought down the economy to fill their own pockets   continue to summer in Nantucket and winter in the Carribean?  It seems so.

The SEC alleged that Marc Gabelli, a portfolio manager, and Bruce Alpert, chief operating officer at the investment firm Gabelli Funds, LLC, allowed a client to engage in a trading technique known as “time zone arbitrage”  from1999 and 2002 while assuring  other investors in the same mutual fund that the technique would not be tolerated. Time zone arbitrage unfairly takes advantage of the differing time zones between markets. The SEC launched its investigation in 2003, but did not file a complaint until 2008.

Gabelli and Alpert argued the SEC waited too long to bring charges against them.  The U.S. Court of Appeals for the Second Circuit in New York  disagreed, ruling that the time runs out five years after the agency discovers — or could have reasonably been expected to discover — the fraud.

In a 9-0 ruling, the U.S. Supreme Court in Gabelli v. SEC reversed the appellate court and said the SEC cannot extend the statute of limitations through the so-called “discovery rule.” Chief Justice John Roberts wrote:  “Unlike the private party who has no reason to suspect fraud, the SEC’s very purpose is to root it out, and it has many legal tools at hand to aid in that pursuit. It can demand that securities brokers and dealers submit detailed trading information.”

In some respects, the Supreme Court’s decision represents good public policy because it requires federal investigators to move quickly and protects innocent  citizens  from costly and protracted investigations.  But in another sense, the Court’s decision represents very bad public policy because iIt contributes to what courts like to call the appearance of prejudice. Many citizens feel – with good reason – that the system is tilted in favor of the rich and powerful and the Gabelli decision does nothing to disabuse them of that notion.

Meanwhile, Eric H. Holder Jr., the nation’s attorney general, remained unapologetic this week:

 “I am concerned that the size of some of these institutions becomes so large that it does become difficult for us to prosecute them when we are hit with indications that if we do prosecute — if we do bring a criminal charge — it will have a negative impact on the national economy, perhaps even the world economy,”

So much for the Dodd Frank financial regulation law, which was the .Obama administration’s remedy for problem of banks that are too-big-to-fail.

Filed Under: CULTURE, DISPATCHES Tagged With: Attorney General Eric Holder, Bruce Alpert, Discovery Rule, Dodd Frank, federal judiciary, Frontline, Gabell;i Funds, Gabelli v. SEC, LLC, Marc Gabelli, , The Untouchables documentary, Time zone arbitrage, U.S. Court of Appeals for the Second Circuit, U.S. Department of Justice, U.S. Securities Commission