[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; merit briefs] in Wal-Mart v. Dukes [oral argument transcript, PDF], a gender discrimination class action lawsuit estimated to include more than 1.5 million women—the largest class action lawsuit in US history. The issues are (1) whether claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2) [text] and, if so, under what circumstances; and (2) whether the class certification ordered under rule 23(b)(2) was consistent with rule 23(a). The case was filed in 2001 by female Wal-Mart employees [class website] who contend that Wal-Mart’s nationwide policies result in lower pay for women than men in comparable positions and longer waits for management promotions than men. Wal-Mart appealed to the Supreme Court in August after the US Court of Appeals for the Ninth Circuit upheld class certification [JURIST reports] in April. Counsel for the petitioner Wal-Mart argued that the certified class failed to meet cohesion requirements because of the diverse nature of managerial discretion in the individual stores nationwide:

The delegation of discretion in some ways is the opposite of cohesive claims that are common to everyone in the class. The common policies that the plaintiffs point to are either neutral and not argued to be discriminatory or they are affirmatively nondiscriminatory. The company has a very strong policy against discrimination and in favor of diversity.

Counsel for the respondent certified class argued that although the company did not have a “formal policy of discrimination,” the management staff used a common policy that was discriminatory toward women seeking advancement within the company.

In Fowler v. United States [oral arguments transcript], the court heard arguments on whether a federal court can convict an individual of murdering a witness under the federal witness tampering statute [18 USC § 1512(a)(1)(C) text] without first proving that the victim provided evidence of a federal crime to authorities. The statute prohibits killing or attempting to kill a person with the intent to prevent the person from providing information about a federal crime to police or a court. The US Court of Appeals for the Eleventh Circuit ruled [decision, PDF] that Charles Fowler violated the statute by killing a police officer who had stopped Fowler and his accomplices while they were in a stolen vehicle containing drugs, had recently committed an interstate robbery and were planning a bank robbery. Fowler protested that prosecutors failed to establish that it was likely the officer would transfer information to federal investigators or that it was likely that a federal investigation would be opened. The court held, however, that prosecutors need only establish that the defendant killed the victim to prevent the communication of a possible federal offense and that they had met that burden. Counsel for the petitioner Fowler argued that the court should apply a narrower, “realistic likelihood” standard when determining if the victim would have provided information to federal authorities, rather than the government’s vague, “reasonably possible” standard. Counsel for the respondent government replied that the reasonableness standard gives the jury discretion to determine whether a victim could have provided evidence to a federal agent, since it is not possible to know the “specific intent” of the deceased victim.