The media certainly accurately reported the significance of the 5-4 Wal-Mart v. Dukes decision (penned by Justice Scalia) that the Supreme Court issued yesterday. The New York Times is certainly correct that this opinion represents a "bad day" for civil rights claimants. The Wall Street Journal is also correct that decision is a major win for large corporations generally and will impact claims ranging from securities fraud to products liability.Much less reported is the fact that Wal-Mart was represented by Eugene Scalia's law firm, and Eugene Scalia represented Wal-Mart in the past. A Wal-Mart watch group circulated a petition seeking Justice Scalia's recusal. It is hard for me personally to imagine objectivity in a case where my daughter's firm was representing a litigant. Apparently, however, the Supreme Court disagrees. A bill in Congress may alter this outcome.
In the meantime, as I mentioned in my last blog, Eugene Scalia represents the Business Roundtable in litigation against the SEC concerning the SEC's rules on shareholder proxy access to nominate directors of publicly held firms. Will Justice Scalia recuse himself from this litigation? That would seem appropriate.
