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I am not an expert in class action certifications, but it seems that Justice Kennedy will be the deciding vote in Wal-Mart v. Dukes. This looks like a 5-4 reverse.

Kennedy seems to have also hinted how he will decide the case. He asked questions to both Petitioner and Respondent that focused on the same point. He sought to use Monell’s standard that permits 1983 liability if the plaintiff can show a policy, or pattern or practice, of deliberate indifference (discussed today in Connick v. Thompson) to determine whether a class action certification for discrimination was proper.

JUSTICEKENNEDY: The Chief Justice’s21question reminds me somewhat of our rule in Monell under221983: A city is not liable for a — a constitutional23violation unless it has a policy. Would you think that24we could use that as an analogue to determine whether ornot there is a common question here?

MR. BOUTROUS: Yes, Your Honor. I think the2analogue is that if a company had a policy, a general3policy, of discrimination as opposed to here, where it’s4a general policy against discrimination, and it was -inthe words of the Court in Feeney, saw patterns6throughout the company and because of sex, because of7gender, continued to allow the patterns to exist, that8would raise a different question.9

JUSTICE KENNEDY: Suppose, following theMonell analogue, there’s — it’s a — there’s a showing11of deliberate indifference to the violation. Would that12be a policy?

Later he asked Respondent about Wal-Mart’s policy:

JUSTICE KENNEDY: It’s not clear to me:14What is the unlawful policy that Wal-Mart has adopted,under your theory of the case?

Kennedy also sought to clarify Respondent’s answer to focus on whether he was referring to a pattern or practice:

MR. SELLERS: That — that is correct, but8it — it — it is the paradigm we use for determining9what you need to establish a pattern or practice ofdiscrimination.11

JUSTICE KENNEDY: Pattern or practice,12that’s correct. Help me, if you can, with this. Let’s -14let’s suppose that experts’ testimony, sociologists andso forth, establish that in industry generally and in16retail industry generally, women still are discriminated17against by a mathematical factor of X. You have a18company that has a very specific policy against19discrimination, and you look at their — the way theiremployees are treatment — are treated, and you find a21disparity by that same mathematical factor X, does that22give you a cause of action?

…

JUSTICE KENNEDY: Where there’s no24deliberate indifference and a specific policyprohibiting the discrimination, can you still proceed?

 

It turns out that Twiqbal may not be as big of a change as some academics thought, maybe. Howard Wasserman has a detailed post breaking down an FJC report that looks at dismissal rates in the years immediately before and after Iqbal.

Here are the results:

•    There was a general increase from 2006 to 2010 in the rate of filing of motions to dismiss for failure to state a claim (see infra section III.A).

•    In general, there was no increase in the rate of grants of motions to dismiss without leave to amend. There was, in particular, no increase in the rate of grants of motions to dismiss without leave to amend in civil rights cases and employment discrimination cases (see infra section III.B.1).

•    Only in cases challenging mortgage loans on both federal and state law grounds did we find an increase in the rate of grants of motions to dismiss without leave to amend. Many of these cases were removed from state to federal court. This category of cases tripled in number during the relevant period in response to events in the housing market (see infra section III.B.1). There is no reason to believe that the rate of dismissals without leave to amend would have been lower in 2006 had such cases existed then.

•    There was no increase from 2006 to 2010 in the rate at which a grant of a motion to dismiss terminated the case (see infra section III.B.1).

Here are some of Howard’s observations:

One explanation for the lack of increased success in those motions might be that Twiqbal is doing its work on the drafting process–plaintiffs are putting more information into their complaints out of an excess of Twiqbal-imposed caution. In addition, there was a 7% increase in overall case filings, suggesting that perhaps Twiqbal is not having the over-deterrent effect many feared.

Specifically, Howard comments about the increase in 12(b)(6) motions with granted with leave to amend?

It is unsurprising that the study found an increase in 12(b)(6) motions granted with leave to amend. Courts dismiss with leave in cases of factual insufficiency, where the plaintiff has not pled enough facts or with enough detail. The whole point of Twiqbal was that plaintiffs must plead more facts and factual detail (even if it is not clear how much more), enough to convince the court the claim is plausible. Follow-up studies will explore what happens after these dismissals with leave to amend: Does the plaintiff replead? Does the defendant move to dismiss the amended complaint? We might expect an indirect effect here–Twiqbal leads to more dismissals with leave to amend, followed by a subsequent 12(b)(6) challenging the amended complaint eventually being granted, this time without leave to amend on the ground that the plaintiff already had multiple opportunities to amend and still had not made factually sufficient allegations. In fact, the study did find that more 12(b)(6) motions in 2010 were challenging amended complaints–this suggests that more amended complaints are being filed, perhaps in response to dismissals with leave to amend, perhaps in general response by plaintiffs to Twiqbal.

Stay tuned, as I’m sure there will be many more studies like this about the effects of fact pleading on court systems.

In Connick v. Thompson, Justice Thomas writing for the majority answers this question in the affirmative; Justice Ginsburg answers with a resounding no, especially if you go to Tulane University (Benchslap!).

This case considered whether a District Attorney’s failure to train his prosecutors about Brady v. Maryland constituted deliberate indifference,and permitted the imposition of 1983 liability.

Justice Thomas argued that unlike police officers, who lacked training in the law, prosecutors possess many of the legal tools and knowledge of the Constitution to figure out Brady. Simply put, by going to law school and passing the Bar, an attorney has all of the skills needed to be a prosecutor:

Attorneys are trained in the law and equipped with the tools to interpret and apply legal principles, understand constitutional limits, and exercise legal judgment. Before they may enter the profession and receive a law license, all attorneys must graduate from law school or pass asubstantive examination; attorneys in the vast majority ofjurisdictions must do both. See, e.g., La. State Bar Assn. (LSBA), Articles of Incorporation, La. Rev. Stat. Ann. §37,ch. 4, App., Art. 14, §7 (1988 West Supp.) (as amended through 1985). These threshold requirements are de-signed to ensure that all new attorneys have learned how to find, understand, and apply legal rules. Cf. United States v. Cronic, 466 U. S. 648, 658, 664 (1984) (noting that the presumption “that the lawyer is competent toprovide the guiding hand that the defendant needs” ap-plies even to young and inexperienced lawyers in their first jury trial and even when the case is complex).

Beyond law school, attorneys must take continuing legal education:

Nor does professional training end at graduation. Most jurisdictions require attorneys to satisfy continuing-education requirements. See, e.g., LSBA, Articles of In-corporation, Art. 16, Rule 1.1(b) (effective 1987); La. Sup. Ct. Rule XXX (effective 1988). Even those few jurisdic-tions that do not impose mandatory continuing-educationrequirements mandate that attorneys represent theirclients competently and encourage attorneys to engage incontinuing study and education. See, e.g., Mass. Rule Prof. Conduct 1.1 and comment 6 (West 2006). Before Louisiana adopted continuing-education requirements, it imposed similar general competency requirements on itsstate bar. LSBA, Articles of Incorporation, Art. 16, EC 1–1, 1–2, DR 6–101 (West 1974) (effective 1971).

And what about the Character and Fitness exam and ethical requirements of the profession:

In addition, attorneys in all jurisdictions must satisfy character and fitness standards to receive a law license and are personally subject to an ethical regime designed toreinforce the profession’s standards. See, e.g., LSBA, Articles of Incorporation, Art. 14, §7 (1985); see generally id., Art. 16 (1971) (Code of Professional Responsibility). Trial lawyers have a “duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process.” Strickland v. Washington, 466 U. S. 668, 688 (1984). Prosecutors have a special “duty to seek jus-tice, not merely to convict.”

In light of all of these skills, District Attorneys can rely on their prosecutors’ ability to learn the law, and are different from police officers:

Prosecutors are not onlyequipped but are also ethically bound to know what Bradyentails and to perform legal research when they are uncer-tain. A district attorney is entitled to rely on prosecutors’ professional training and ethical obligations in the ab-sence of specific reason, such as a pattern of violations, to believe that those tools are insufficient to prevent futureconstitutional violations in “the usual and recurring situa-tions with which [the prosecutors] must deal.”9 Canton, 489 U. S., at 391. A licensed attorney making legal judg-ments, in his capacity as a prosecutor, about Brady mate-rial simply does not present the same “highly predictable”constitutional danger as Canton’s untrained officer

Justice Ginsburg is not so sanguine about the prospects of law students, you know, learning in law school.

On what basis can one be confident that law schools acquaint students with prosecutors’ unique obligation under Brady? Whittaker told the jury he did not recall covering Brady in his criminal procedure class in law school. Tr. 335. Dubelier’s alma mater, like most other law faculties, does not make criminal procedure a required course.21

21See Tulane University Law School, Curriculum, http://www.law.tulane.edu (select “Academics”; select “Curriculum”) (as visited Mar.21, 2011, and in Clerk of Court’s case file).

Ouch for Tulane University. What does RBG think about the Bar Exam?

Connick suggested that the bar examination ensures that new attorneys will know what Brady demands. Tr. 835. Research indicates, however, that from 1980 to the present, Brady questions have not accounted for even 10% of the total points in the criminal law and procedure section of any administration of the Louisiana Bar Examination.22 A person sitting for the Louisiana Bar Examination, moreover, need pass only five of the exam’s nine sections.23 One can qualify for admission to the professionwith no showing of even passing knowledge of criminal law and procedure.

What about CLE and internal training?

Louisiana did not require continuing legal education at the time of Thompson’s trials. Tr. 361. But cf. ante, at 12–13. Primary responsibility for keeping prosecutors au courant with developments in the law, therefore, residedin the District Attorney’s Office. . . . The 1987 Office policy manual was a compilation of memoranda on criminal law and practice circulated toprosecutors from 1974, when Connick became District Attorney, through 1987. Id., at 798. The manual contained four sentences, nothing more, on Brady.15

So law school is useless. The bar is useless. Training is non-existent. But aren’t lawyers “trained in the law and equipped with thetools to interpret and apply legal principles, understandconstitutional limits, and exercise legal judgment?” Nope.

The majority’s suggestion that lawyers do not need Brady training because they “are equipped with the tools to find, interpret, and apply legal principles,” ante, at 17– 18, “blinks reality” and is belied by the facts of this case. See Brief for Former Federal Civil Rights Officials and Prosecutors as Amici Curiae 13. Connick himself recognized that his prosecutors, because of their inexperience, were not so equipped. Indeed, “understanding and complying with Brady obligations are not easy tasks, and theappropriate way to resolve Brady issues is not always selfevident.”

Justice Ginsburg also cites to several lines in the record stressing the fact that rookie Prosecutors fresh out of law school don’t know jack.

In 1985, Connick acknowledged, many of his prosecutors“were coming fresh out of law school,” and the Office’s “[h]uge turnover” allowed attorneys with little experienceto advance quickly to supervisory positions. See Tr. 853– 854, 832.

By 1985, Dubelier and Williams were two of the highest ranking attorneys in the Office, id., at 342, 356– 357, yet neither man had even five years of experience as a prosecutor. . . . Brady obligations,” on the job or otherwise.

Whittaker agreed it was possible for “inexperienced lawyers, just a few weeks out of law school with no training,” to bear responsibility for “decisions on . . . whether material was Brady material and had to be produced.” Id., at 319.

But Connick acknowledged that he had “stopped reading law books . . . and looking at opinions” when he was first elected District Attorney in 1974.

So law school is not helpful. The bar is not helpful. CLE is not helpful. Internal training is not helpful. Lawyers cant learn by themselves. Where the heck are lawyers, prosecutors in particular supposed to learn how to do their job?

In Connick v. Thompson, Justice Thomas writing for 5 members, found that a single violation of Brady v. Maryland but a prosecutor is not sufficient to establish a pattern of failure to train that results in 1983 liability.

I will post more analysis as I read through the opinion.

Majority Opinion

Here is the most important section from the syllabus explaining the core of the holding:

Thompson mistakenly relies on the “single-incident” liabilityhypothesized in Canton, contending that the Brady violation in his case was the “obvious” consequence of failing to provide specific Brady training and that this “obviousness” showing can substitutefor the pattern of violations ordinarily necessary to establish munici-pal culpability. In Canton, the Court theorized that if a city armed its police force and deployed them into the public to capture fleeing felons without training the officers in the constitutional limitation onthe use of deadly force, the failure to train could reflect the city’s de-liberate indifference to the highly predictable consequence, namely, violations of constitutional rights. Failure to train prosecutors intheir Brady obligations does not fall within the narrow range of Can-ton’s hypothesized single-incident liability. The obvious need for spe-cific legal training present in Canton’s scenario—police academy ap-plicants are unlikely to be familiar with constitutional constraints on deadly force and, absent training, cannot obtain that knowledge—isabsent here. Attorneys are trained in the law and equipped with the tools to interpret and apply legal principles, understand constitu-tional limits, and exercise legal judgment. They receive training be-fore entering the profession, must usually satisfy continuing educa-tion requirements, often train on the job with more experiencedattorneys, and must satisfy licensing standards and ongoing ethicalobligations. Prosecutors not only are equipped but are ethicallybound to know what Brady entails and to perform legal research when they are uncertain. Thus, recurring constitutional violationsare not the “obvious consequence” of failing to provide prosecutorswith formal in-house training. The nuance of the allegedly necessarytraining also distinguishes the case from the example in Canton. Here, the prosecutors were familiar with the general Brady rule. Thus, Thompson cannot rely on the lack of an ability to cope with constitutional situations that underlies the Canton hypothetical, but must assert that prosecutors were not trained about particular Bradyevidence or the specific scenario related to the violation in his case. That sort of nuance simply cannot support an inference of deliberateindifference here. Contrary to the holding below, it does not follow that, because Brady has gray areas and some Brady decisions are dif-ficult, prosecutors will so obviously make wrong decisions that failingto train them amounts, as it must, to “a decision by the city itself to violate the Constitution.” Canton, 489 U. S., at 395 (O’Connor, J., concurring in part and dissenting in part). Pp. 11–19.

Justice Scalia’s Concurring Opinion

Justice Scalia, joined by Justice Alito, concurred to reply to a number of Justice Ginsburg’s arguments.

Scalia concedes that Prosecutors will mess up, and merely showing Brady violations is not equivalent to showing a deliberate indifference to train, as a failure to train liability is only available in “limited circumstances.”

Thompson’s failure-to-train theory at trial was not based on apervasive culture of indifference to Brady, but rather on the inevitability of mistakes over enough iterations of criminal trials. . . . That theory of deliberate indifference would repeal the law of Monell1 in favor of the Law of Large Numbers. Brady mistakes are inevitable. So are all species of error routinely confronted by prosecutors: authorizing a bad warrant; losing a Batson2 claim; crossing the line in closing argument; or eliciting hearsay that violates the Confrontation Clause. Nevertheless, we do not have “de facto respondeat superior liability,” Canton, 489 U. S., at 392, for each such violation under the rubric of failure-to-train simply because the municipality does not have a professional educational program covering the specific violationin sufficient depth.3

Here is the heart of Scalia’s reasoning—he does not want courts second-guessing the policies of municipal employees:

Worse, it would “engage the federal courts in an endless exercise of secondguessing municipal employee-training programs,” thereby diminishing the autonomy of state and local governments.

Justice Ginsburg’s Dissenting Opinion

Justice Ginsburg wrote a lengthy 32-page dissent, which she read from the bench. This is a tact she has employed in the past, such as in Ledbetter, to stress her vigorous disagreement with a case. Ginsburg relies on the lengthy trial record to show that this Brady violation was not aberrant.

As the trial record in the §1983 action reveals, the conceded, long-concealed prosecutorial transgressions were neither isolated nor atypical. . . . What happened here, the Court’s opinion obscures, wasno momentary oversight, no single incident of a lone officer’s misconduct. Instead, the evidence demonstrated that misperception and disregard of Brady’s disclosure requirements were pervasive in Orleans Parish. That evidence, I would hold, established persistent, deliberately indifferent conduct for which the District Attorney’s Officebears responsibility under §1983.

Ginsburg notes the only way to root out this problem, which is often hard to detect, is through the imposition of § 1983 liability:

The prosecutorial concealment Thompsonencountered, however, is bound to be repeated unless municipal agencies bear responsibility—made tangible by §1983 liability—for adequately conveying what Brady requires and for monitoring staff compliance.

In a curious section, Justice Ginsburg comments on the state of legal education, both in law schools, CLE, and through internal training:

In 1985, Connick acknowledged, many of his prosecutors“were coming fresh out of law school,” and the Office’s “[h]uge turnover” allowed attorneys with little experienceto advance quickly to supervisory positions. See Tr. 853– 854, 832. By 1985, Dubelier and Williams were two of the highest ranking attorneys in the Office, id., at 342, 356– 357, yet neither man had even five years of experience as a prosecutor. . . . Brady obligations,” on the job or otherwise. Tr. 728–729. Whittaker agreed it was possible for “inexperienced lawyers, just a few weeks out of law school with no training,” to bear responsibility for “decisions on . . . whether material was Brady material and had to be produced.” Id., at
319. . . . But Connick acknowledged that he had “stopped reading law books . . . and looking at opinions” when he was first elected District Attorney in 1974. . . . Louisiana did not require continuing legal education at the time of Thompson’s trials. Tr. 361. But cf. ante, at 12–13. Primary responsibility for keeping prosecutors au courant with developments in the law, therefore, residedin the District Attorney’s Office. . . . The 1987 Office policy manual was a compilation of memoranda on criminal law and practice circulated toprosecutors from 1974, when Connick became District Attorney, through 1987. Id., at 798. The manual contained four sentences, nothing more, on Brady.15

And here is the kicker, and a serious benchslap to Tulane University:

On what basis can one be confident that law schools acquaint students withprosecutors’ unique obligation under Brady? Whittaker told the jury he did not recall covering Brady in his criminal procedure class in law school. Tr. 335. Dubelier’s alma mater, like most other law faculties, does not make criminal procedure a required course.21
21See Tulane University Law School, Curriculum, http://www.law.tulane.edu (select “Academics”; select “Curriculum”) (as visited Mar.21, 2011, and in Clerk of Court’s case file).

And what about the bar Exam?

Connick suggested that the bar examination ensures that new attorneys will know what Brady demands. Tr.
835. Research indicates, however, that from 1980 to the present, Brady questions have not accounted for even10% of the total points in the criminal law and procedure section of any administration of the Louisiana Bar Examination.22 A person sitting for the Louisiana Bar Examination, moreover, need pass only five of the exam’s nine sections.23 One can qualify for admission to the professionwith no showing of even passing knowledge of criminal law and procedure.

And what about lawyer’s ability to learn about the law?

The majority’s suggestion that lawyers do not need Brady training because they “are equipped with the tools to find, interpret, and apply legal principles,” ante, at 17– 18, “blinks reality” and is belied by the facts of this case. See Brief for Former Federal Civil Rights Officials and Prosecutors as Amici Curiae 13. Connick himself recognized that his prosecutors, because of their inexperience, were not so equipped. Indeed, “understanding and complying with Brady obligations are not easy tasks, and theappropriate way to resolve Brady issues is not always selfevident.”

In conclusion, Ginsburg finds that this Brady violation as not an outlier, but part of a pattern:

In sum, despite JUSTICE SCALIA’s protestations to the contrary, ante, at 1, 5, the Brady violations in Thompson’s prosecutions were not singular and they were not aberrational. They were just what one would expect given theattitude toward Brady pervasive in the District Attorney’s Office. Thompson demonstrated that no fewer than fiveprosecutors—the four trial prosecutors and Riehlmann—disregarded his Brady rights. He established that theykept from him, year upon year, evidence vital to his defense. Their conduct, he showed with equal force, was a foreseeable consequence of lax training in, and absence of monitoring of, a legal requirement fundamental to a fair trial.

Today Justice O’Connor turns 81. Happy Birthday!