As the New York Times‘ Adam Liptak reported today, the Supreme Court will decide on Tuesday whether 1.5 million women will be permitted to proceed with their gender discrimination class action against Wal-Mart.

The high court is being asked to decide what role it believes social science research should play in determining whether implicit bias is responsible for women’s underpay and under-representation in Wal-Mart’s management ranks. At the center of the Supreme Court case is the testimony of Sociology Professor William T. Bielby, at University of Illinois at Chicago.

Briefs and articles for the serious student of Constitutional Law below.

Ninth Circuit Opinion in Dukes v. Wal-Mart

Opening Brief

Opposition Brief

Reply Brief

Thanks to Rex Stevens for passing these links along to me.

Jane, like her male counterparts, has a big truck with her company logo plastered on the doors, lots of specialized tools and ladders, a crew of talented helpers, 20 years in the business and several pairs of Carhartt jeans and Timberland boots (NYSE:TBL).

When she shows up to meet potential clients, she dresses like a woman and makes sure there’s no dirt under her fingernails. It’s a “presentation” thing she says. According to Jane, if she clomps into prospective clients’ gardens wearing muck boots, it’s as much of a turn-off to her prospective clients as it is being gay.

Double binds and deep and abiding biases cause many women to make extreme choices.

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What is the SAT’s ‘Jersey Shore’ Essay Question Really Asking? posted by KATIE PHILLIPS

Last Saturday, the College Board served up a mega-curveball for high school students across America: it asked them to write an essay about reality television. The question, one out of three possible essay topics distributed at random, described reality television as programs “which feature real people engaged in real activities rather than professional actors performing scripted scenes” and then asked whether “people benefit from forms of entertainment that show so-called reality, or are such forms of entertainment harmful?”

Definitely not what kids who have spent countless hours brushing up on their Shakespeare, Chaucer, and Dickens had expected.

These are the kids that are too busy studying, playing soccer, or taking piano lessons in the hopes of receiving an acceptance letter to a great college — they don’t have the time to watch or interest in the comings-and-goings of Jersey Shore’s Snooki and The Situation. These are, not surprisingly, the same kids who are complaining of the question’s ‘unfairness’ – many of whom have lamented on online forums such as College Confidential that they don’t watch any television, let alone reality shows.

The College Board, in response, has defended its prompt; saying that it was an attempt to “engage students”, and that “everything a student needs to write a successful essay is included in the prompt itself.” Meaning, they’re not grading students on how well they can opine about the Kardashians, but rather how well they can structure an essay.

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Money, Power, and Self-Determination Make Women Unhappy posted by VICTORIA PYNCHON

That’s what author Suzanne Venker’s saying in her new book The Flipside of Feminism.

Forty years have passed since the so-called women’s movement claimed to liberate women from preconceived notions of what it means to be female – and the results are in. The latest statistics from the National Bureau of Economic Research show that “as women have gained more freedom, more education, and more power, they have become less happy.”

Over at Washington Whispers, Paul Bedard has pulled from Venker’s book, Five Ways That Feminism Has Ruined America

It hurt marriage. Women want to wait so that they can keep their identities longer and men are finding easy sex, taking away a big reason for marriage.

Emasculates men. It’s better to be a wuss than speak up or mouth off and face charges of harassment or chauvinism.

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The Internet, Freedom of Speech and the Anti-Gay App posted by VICTORIA PYNCHON

Pressure is mounting on Apple (NASDAQ:AAPL) to rid its store of an Anti-Gay App. Over at the Huffington Post, Wayne Bessen writes that Exodus International, the largest Christian organization offering a “cure” for homosexuality, is bragging that Apple gave it a 4+ rating, signifying the absence of “offensive content.”

I downloaded the Exodus App today to see whether it contained something akin to hate speech which has been variously defined as any communication which disparages a person or a group on the basis of some characteristic such as race or sexual orientation; or attacks or disparages a person or group of people based on their social or ethnic group.

At the risk of putting myself at the center of a firestorm of disapproval, I have to say that what I viewed and read on the Exodus app was not hate speech but simply the expression of religious beliefs with which I, and many other people, disagree.

Exodus International appears to be a non-denominational religious organization that believes homosexuality is a sin. It also promotes the idea that this sin can be relieved by establishing a spiritual relationship with Jesus.

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Women lawyers - this is a great networking opportunity.

Meet your future in Orlando.

Edwin turned around two highly professional videos in less than a week after he conducted them. His company is in start-up mode and he's actively seeking both capital partners and clients. I highly recommend his work, and not just because he gave me two free videos. We'll be hiring his company to provide us with publicity before the month is over . . . we just have to negotiate the terms!

Without further ado, Edwin and She Negotiates.

Go to npr here.

You deserve a raise this year because you are working harder, longer and faster than you were before the recession. And as msnbc reported in 2009, you are doing so for less, not more, money.

 That means you are not only doing your own job, you’re also doing the jobs your laid off colleagues were doing. You’ll be difficult to replace because of that. Not only because John and Mary’s jobs are not in your historic employment description, but because fewer people will want to take on the work you’re doing now for the salary you’re now being paid.

 Your employer may need to hire two people to replace you. He or she will also have to incur the expense of hiring one or more new employees.

 You are more valuable than you believe yourself to be. You therefore have more bargaining strength than you believe yourself to have.

How to ask for a raise over at She Negotiates tomorrow.

On Monday, The Daily Asker, Roxana Popescu, penned the most popular She Negotiates post of the week - Six Things Every Woman Should Ask for in 2011. Roxana is a black-belt "asker," taking the opportunity to negotiate literally everything. She'll be adding six more categories of "asks" over at our ForbesWoman blog today so keep an eye peeled for it.

And though Roxana doesn't know it yet, we're planning on having her lead day-long bargaining expeditions in 2011 for those who don't notice the dozens of opportunities that present themselves to us every day for a little haggling. Stay tuned for that announcement over at our home She Negotiates site. For more information on Roxana's "asking" quest, see Day One:  Can I Ask for Something Every Day for a Year.

On Tuesday, She Negotiates rested so that Wednesday could bring you Forget Resolutions: Disrupt and Execute in 2011, by She Negotiates co-founder Lisa Gates. I'd just been telling a book publicist how I'd been dying the death of a thousand book promotion cuts. A couple of hundred here, a thousand there, went out to consultants in 2010 who simply threw me back on my own promotional resources with a little advice about working different or harder. That's what I hired you for! If you're suffering from a similar consultant-overload dis-ease, go no further than consulting with Lisa Gates where the focus is implement and execute. She changed my life. Let her change yours for the better in 2011.

Yesterday, our Gen-Y blogger Katie Phillips, recently graduated from the Tisch School of Arts at NYU, wrote in despair and celebration of entering the unknown in Negotiating Uncertainty: Gen-Y Women are Busy Being Born. Our boomer readers will see themselves in the same circumstances thirty or forty years ago, but this post is not for us. It's Gen-Y to Gen-Y and one of the finest pieces of writing you're likely to see anywhere on ForbesWoman. Really. Check it out.

With part 2 of Roxana's six tips for 2011 today, we'll close the week in asking, haggling, bargaining, negotiating, trading, and bartering for the first week of the new year. Please let us know which topics would be most useful to you for us to cover as we make 2011 not just the Year of Recovery, but the Year of Abundance! 

Angela was profiled in the Daily Journal today here.  As that profile noted,

Drawing on her years of experience in alternate dispute resolution, [Angela] is creating a section on women in ADR. The association has many ADR professionals in its membership, she noted, but this will be the first time it has had a section dedicated to women who have made great inroads into what had become a male-dominated practice.

Haskins also will keep a eye on addressing the changing dynamics affecting women lawyers. Two years ago, she said, WLALA President Kathy Forester of Munger, Tolles & Olson created a joint task force for women, focusing on how to make partner, stay partner and to make that be an important part of their career.

I'll be chairing the ADR Committee this year.  As part of Angela's Empowerment theme, the ADR Committee's activities will be highlighting its own "Women Do Refer" initiative ~ details here and at WLALA's web page here soon.

CONGRATULATIONS TO ANGELA!

What does this man have that you don't?

A year-end 2009 salary of $21,340,547 during one of the worst year's in the history of his industry ~ banking.

Listen!  The recession is just another excuse for not paying you what you're worth.

How do we know?

Because the most effective negotiators on the planet ~ corporate CEO's ~ are finding the downturn to be the best time to squeeze every last living dollar out of their employers.

If they can do it, so can you!

 Here's the evidence:

	Bank of America Corp. Thomas Montag 2009 Total Compensation: $29,930,431		JPMorgan Chase & Co. James Dimon 2009 Total Compensation: $9,274,494
	Citigroup Inc. John Havens 2009 Total Compensation: $11,276,454		Morgan Stanley Walid Chammah 2009 Total Compensation: $10,021,969
	The Goldman Sachs Group Inc. Lloyd Blankfein 2009 Total Compensation: $9,862,657		Wells Fargo John Stumpf 2009 Total Compensation: $21,340,547

 Whhaaaaaatttttt? do these men have that you don't have?

• Social networks with rich and powerful people who sit on their Boards of Directors and influence policy makers and Wall Street power brokers
• The self-created illusion that they are "too big to fail" /1
• The persuasive argument that only they, with their unique combination of experience, education, knowledge, savvy, can-do-spirit, and leadership qualities can pull these banks out of the sinkhole of the recession.
• Friends in very high places.
• Chutzpah and shamelessness (not that we'd want to encourage this second character flaw in our readers).
• Self-satisfaction.
• Entitlement.
• An employment history of asking for and receiving increasing levels of compensation based upon their salary negotiations at every career point possible (and every career point impossible)
• the demonstrated ability to produce results (our readers do possess this strength but haven't used it to their greatest advantage yet)
• the tendency to measure their market value by their value in the hands of their employer, not by what they "need" or what they are "worth" according to some internal metric that depends upon how they feel about thier accomplishments.

__________________

1/  This is where collective action comes in.  When we aggregate together America's employees, small business owners and homeowners, we get a non-corporate "entity" that is waaaayyyyyy bigger than some little piss-ant bank and it is we who are too big to fail.

Judy Martin, Business Journalist & Founder WorkLifeNation.com

"Lisa Gates reached into the very core of my being in order to bring me back into the reality of my dreams. Her talk is real and her methods concise. I no longer doubt what I'm doing...instead I speak, write, and live, knowing exactly why I do what I do and I realize that the goals I have set for myself are entirely up to me and attainable." 

Cicily R. Janus, Writing Away Retreats

At 8 PM Women on the Move gets down to business with attorney Victoria Pynchon, author of the Settle It Now Negotiation Blog, who has been called a “master of conflict resolution and deposition skills.”

Victoria recently became a regular contributor to Forbes.com’s “On the Docket” column.

You can call in with questions! 

Call-in Number: (347) 857-2102

One last time!! before the door closes on the opportunity to have your picture in the WLALA Tribute book and to share two tables with your fellow neutrals at the WLALA annual Installation Dinner and Gala. 

I have three more places at the table and on that ad.  I need your check for $175 and a .jpg by Friday to put you in it!  Please, let's show WLALA how eager we are to cross-refer business.

This is a particularly good year to join us as we begin the first WLALA ADR initiative in its nearly 100 year history.

ONE HUNDRED YEARS! of women lawyers - way past time to reach and firmly occupy the higher reaches of the profession.  We've been graduating from the nation's law schools in nearly equal numbers with men for more than 20 years.  My own U.C. law school class (King Hall, '80) was 50% women thirty years ago.

The ADR pipeline is full of competent -- indeed glorious -- women.  Yet the statistics at the top remain grim.

Chopped Liver?

Why is your ADR practice not everything that Tony Piazza's or Eric Green's or even Steve Cerveris' is?  Research shows that both men and women have negative implicit attitudes toward women in leadership and authority positions.  The good news is that women are slightly less pre-disposed than are men to picture a man in a suit when they're looking for access to money and power.  I've had at least half a dozen women commercial litigators look straight at me and say "I don't know any women mediators."

Huh????

Followed by, "well their names are never on the lists [circulated in my firm]."

Women, with their slightly reduced inability to "see" women in authority positions, are our foot in the door. And the new WLALA ADR Committee is our opportunity to open that door wide.

As a member of the CPR-led Joint Task Force on Diversity, I have heard the verdict of JAMS and the AAA.  "The market has spoken.  Commercial lawyers just don't hire women and minorities."

What????

We're advocates, for goodness sakes.  When we come into town we have to register our skills of persuasion with local law enforcement authorities.  We're change agents, opinion makers, powerful holders of the keys to the kingdom. 

And the market has spoken? 

We make the market!

This year's ADR Committee is dedicated to closing the gaping void between men and women neutrals.  We're not going to ask for special treatment, picket the LASC's ADR office, pass new laws or burn our ADR certificates, Super Lawyer plaques, Ivy League diplomas, or our bras (not at this age!). 

We're going to market like no one has ever marketed before and we're going to do so as a group so that we don't each hesitate, as we women tend to do, to promote ourselves and our services.

2010 and 2011 will be the years in which top women will refer to other top women.  2010 and 2011 will be the years in which we close the income gap not only between men and women neutrals but between men and women lawyers (its 40% at the top).  2010 and 2011 will be the years in which we make a market younger women lawyers will be entering in the next decade and the one after that -- one in which they'll flourish after they grow weary of fighting over interrogatory objections and e-discovery.

How?

Marketing.  Proctor and Gamble does  not say, "well, the market doesn't want a new improved laundry detergent."  P&G asks "how?" not "can we?"  And it certainly never says "we give up, the market has spoken."

We're putting our first stake in the ground on September 16 at the  WLALA Gala.  There's no event more important for women neutrals to attend this year. 

Our current attendees will appear in two full-page ads in the Tribute Book and two color flyers to be distributed at the dinner. 

To date those women are Eleanor Barr, Joan Kessler, Lynne Bassis, Katherine Edwards, Laurel Kaufer, Linda Klibanow, Denise Madigan, Stephanie Maloney, Deborah Rothman, Jan Frankel Schau, Gretchen Taylor, Caroline Vincent, Diane Wayne, Linda Bulmash, Lisa Gates (my She Negotiates business partner), Kathy Balin, and Erica Bristol. 

We need three more women neutrals to fill table two.  If you want to sit at another table, ask a woman litigator to change places with you while whispering "cross-refer" in her ear.  The key is that you'll be there to network.  You'll show your support to WLALA by showing up and WLALA women (among the most entrepreneurial in the Bar) will see your beautiful face and panel affiliation or business name in the  Tribute Book while enduring the inevitably tedious speeches at these events. 

Do you want to double your income by 2012?  If we've lasted this long in a profession that was solidly male when so many of us were in high school, we can close this gap by coming together and just doing it.

And if the $175 is too steep a price during these recessionary times or if you'll be out of town or otherwise engaged on the 16th of September, please let me know that you want to be a member of the new WLALA Committee by return email.

Our first event will be an afternoon on arbitration in October with CPR CEO Kathy Bryan and other powerful women attorneys, GC's and CEO's who arbitrate, either as advocates, as clients or as arbitrators.  The panel will be moderated by complex-commercial AAA arbitrator Deborah Rothman.

Shock me!  Let's fill Table Three!!

I look forward to hearing from you and to kicking the last pitiful shards out of that darn glass ceiling.

Best,

Vickie

Victoria Pynchon, Esq., Incoming Chair, WLALA ADR Committee
ADR Services, Inc. and She Negotiates Consulting and Training

The Back Story

When I first dipped my big toe into mediation's waters by taking Mediating the Litigated Case in a downtown hotel ballroom back in the Spring of 2004, generous attorney-mediators like Jeff Kichaven, Laurel Kaufer, Bob Steinberg, Jan Frankel Schau, Steve Cerveris, and Deborah Rothman all arrived on the beachhead of my new profession with advice, support, empathy, and warnings.  Starting a new profession, particularly one that is entrepreneurial, is just like moving into a new neighborhood and these wonderful mediators were my Welcome Wagon (for which I will always be grateful).

It didn't take me long to learn where the landmines were buried. And a lot of them surrounded the perimeter of the downtown Los Angeles Superior Court.  There's an mediation pro bono panel there where new mediators can first practice their new trade, learning the skills, picking up best practices, and, beginning to build a reputation for excellence among the litigation and trial bar.  This was all good and I was grateful for the opportunity to have cases referred to me to test my new-found mediation knowledge and growing skill-set.  Never mind that I was paid to practice my new legal trade as soon as I'd passed the Bar.  I understood that this was a kind of internship and I was happy for the opportunity to serve.

My new mentors, however, as well as pretty much everyone else I met, had some dire warnings about conflict between panel mediators and the Superior Court.  Conflict?!?  By May of 2004 (a month after I'd finished my first mediation class) I'd enrolled in the Master of Laws program at the Straus Institute for Dispute Resolution, not because I thought it would give me a necessary credential, but because I was on fire for this new field of study. 

How could there be simmering conflict in a community of conflict resolvers, I repeatedly asked, long before I realized (once again) that people chose their occupations at least in part to work on improving their ability to handle situations that baffle them.  Yes, we conflict resolvers were, like therapists, "wounded healers."  We had conflict issues!

The Problem

The problem that existed when I entered the mediation profession was this - the pro bono panel had been providing free mediation services to Los Angeles lawyers for years.  There are a set of understandable and complex reasons for the initial "decision" to ask L.A. citizens (panel members are not necessarily lawyers) to provide free mediation services on behalf of the Court to the organized bar. Those reasons, and the unresolved conflict that existed in 2004, are the same today as they were then - witness Jeff Kichaven's recent Daily Journal article excoriating the maintenance of this free service once again, this time on behalf of women and minorities.

Here's the intro to Jeff's article:

August 13, 2010 DIVERSITY IN MEDIATION:HERE'S HOW By Jeff Kichaven

They wanted that other woman who speaks on the topic of women negotiating.  You know the one . . . what's her name.  Yes, that's her.  The annual meeting committee gave her a ring and she quoted them $10,000 for an hour keynote.  To be fair, an hour keynote takes all day.  First, you've got to travel, then stay over night, then, if you're really serious about being of service to women lawyers, you get up early and listen to the morning speaker, talk to your table mates, find out what their challenges are, and, then alter, ever so slightly, your noon keynote to deliver exactly what this particular unique group of women need to hear.  You stay after, of course, to answer questions and sell copies of your book, which is, after all, your time, the time you'd be spending anyway spreading the good news that women can negotiate away the glass ceiling and the pay gap and their kids' private school tuitions.  Because that's just how you roll.  So it's never just an hour.

Still.

$10,000. 

"Did you negotiate with her?" I asked.

"The search committee didn't even try," said my friend.  "They figured her price was retail."

I don't mind being second choice.  That other woman, well, shoot, she pretty much started the whole women-negotiating-revolution.  I get it.  So I gave my quote and added, "but I'm not a suit on a hanger at Bloomies.  You don't have to buy me retail.  Remember some of what I taught you about money and value."

"Uhhhhh, make an aggressive first offer?"

"Well, yes.  But that's not what I'm talking about here.  I'm talking about the money is meaningless lesson.  You remember.  You can't eat or drink it.  It won't actually do the surgery nor build an addition to your house.  Remember how it just evaporated overnight right before George Bush left office?  Remember how your house was worth $500,000 on Monday and two fifty on Tuesday?

'Money has a value only because we give it value.  It's only worth what we say it's worth.

"Uhhhh . . . . "

"O.K.  I know.  I talk too much and too vaguely."

Here's the deal.  My price is X + expenses.  That's negotiable.  I don't tell you it's negotiable because as soon as I do you'll start negotiating!  And since it was me who taught you to negotiate, I'm not wild about bargaining with you.  The desire to teach is way to strong in me.

"I'm negotiable.  So is that other woman, the one whose book title is Ask for It!  And money isn't the only measure of value.  It would also be of value to me for your women's bar association to sell my book.  Of course I'll bring it with me to autograph and the like.  But you could also include it on your invitations.  If someone in your Bar Association blogs, they could give it a review.  If you haven't already pledged that you wouldn't give away anyone's email address, you could give me your mailing list so I can stay in touch with your members.  Each of your members also has her own network.  We could brainstorm about ways that you could give me the benefit of my pre-speech networking acumen to get more women to your convention.  It's hard to sell seats these days.  How many people are you expecting?  What if we double that?  Could you pay me my full fee then?

"None of us is a suit on a rack.  And what we can do for one another is so much greater than opening our wallets and shelling out a few dollars that money sometimes seems just laughable.  So let me say this again.  I know you've heard it before but I want to highlight it here again.

"I am a store of value and you are too.  My network, my social capital is a store of the store of value of each member in it.  And in that, you and I are both rich.

"Got it?"

My friend, my student, is smiling, even though I can't see that over the telephone.

"I got it."

"Now what was that offer again?"

 The next game changing She Negotiates workshop is still open for a few last-minute members.  We start on Monday.  Don't be a suit on a rack.  Join us!

(cross posted at She Negotiates)

The blog, which is today offering prizes, is here.

Testimonials

It's the quality instruction, real world experience, and bevy of resources brought to you by Victoria Pynchon that makes this course a stand out. On the internet a lot of people purport to deliver courses that will 'transform your life' or 'bring you to a new level in your business,' but often prove to be nothing more than advertising vehicles to enhance their lives and not yours. Victoria, with the support of that fabulous woman behind the Craving Balance curtain, Lisa Gates, has created a real winner with this course. And yes, it is transformative--it changes your beliefs about what you're capable of doing and having, because you're given the know-how and tools to make it happen."

Doreen Lima, Wildly Successful Personal & Professional Development

 "I am embarrassed to admit that I had only a glimmer of the science behind the negotiation process. And I had not given much thought to how often we bargain every single day in every part of our lives. Victoria has opened my eyes and helped me to fill a huge gap in my business and life tools. The change in my attitude toward money was a surprising bonus! I no longer dread talking about the fees I charge for my services. I may never eagerly embrace negotiation, but I no longer fear it and better yet, I appreciate and enjoy the process now. Thanks to She Negotiates, I am making great bargains and walking away when I say it’s the right time."

CaZ of Writing Bytes and 2 Chicks at Home

"Thank you so much Vickie and Lisa for raising my level of awareness of the power of negotiation, for helping me re-examine my self worth, and for encouraging me to stand up for my bottom line and not be swayed by someone else's bottom line."

Lori Lacey, Corporate Learning Specialist and Coach

"I learned more during this hands-on negotiating course than in another higher-priced class I took. Victoria and Lisa helped me make the emotional changes necessary to demand a higher value for my work, and taught a step by step process for getting the most from sales negotiations." 

Linda Gryczan, Mediator

 "Victoria and Lisa are an amazing team. Their individual areas of expertise create the perfect blend and balance for understanding the subtle nuances of the art and science of negotiation, and they do so in a way that is fearless and authentic. Thank you for this incredible opportunity. You've empowered me and I am grateful."

Debra Healy, Beaverton, Oregon