Supreme Court ruling and bad lawyers
Let me preface this by saying, I am not a lawyer. But I know one when I see one.
The Supreme Court ruled on a very minute point of law yesterday that has tremendous impact on future cases. The case involved a pay discrimination case that had numerous legal screw ups from the start.
Let's start with the bad lawyering and then get on to the bad adjudicating.
1) The lawyers didn't press claims under all of the avenues possible. For some reason, the attorneys in question failed to press for an Equal Pay claim and instead focused on a Title VII claim (it's not really important what these claims are... merely that there were two ways to procede and rather than choose both as they could have done they only chose one)
2) Then, when seeking Supreme Court intervention, the lawyers decided NOT to appeal the critical element of the appeals court ruling and instead went with a tangential (though still important) section of the ruling. In this case, the court ruled A was incorrectly applied and therefore B lacked sufficient evidence. The lawyers attacked A being incorrectly applied and failed to ever raise the issue of whether or not B truly lacked evidence.
3) Finally, the attorneys failed to frame their argument in the proper framework. The allowed Alito et. al. to view the discussion in a particular angle that didn't work for them. This is the cardinal rule of debate and is particularly important when you're the plaintiff. You MUST frame the argument correctly or else you just lose.
Let's look in a little more depth at #3. Basically, the case said, the following:
1) Ms. Ledbetter was discriminated against in pay decisions
2) Ms. Ledbetter did not find out about the discrimination until much later
3) Ms. Ledbetter then filed a claim alleging that prior pay discrimination had affected current pay (due to a system of % based raises)
4) Ms. Ledbetter lost because the judges claimed (based on precedent) that "A discriminatory act which is not made the basis for a timely charge . . . is merely an unfortunate event in history which has no present legal consequences."
What the attorneys should have done, was to frame the argument this way:
1) Goodyear's system is designed to perpetuate discriminatory decisions by basing all raises on the prior period's wages.
2) Each annual evaluation should be considered a discrete event in which the pay of someone is reanalyzed. If the employee is found to have a disparity in pay with their colleagues it should be addressed and not perpetuated.
Moving on to the bad adjudicating:
The cases sighted by Alito really call in to question the man's intelligence. In fact, on page 10 he references a case involving AT&T that is about the worst example of law I've ever seen in my life. Basically, AT&T adopted a rule that seniority in a certain male dominated position would be based only in time in that position and not time at the company (a special rule for the company as no other position had this rule). Then women started to move in to the position. Then AT&T announced lay offs and laid off all of these new women (plus some men presumably). The court granted that the root reason for adopting the rule was discriminatory (having not seen the evidence, I can't opine on this, but it seems an odd thing for a company to do). However, they then went on to say that the time for a claim to be filed started when the rule was adopted and not when the rule was applied. That's about the most ridiculous thing I've ever heard of.
1) It allows any company which still has sexually discriminatory policies on their books to continue to apply them because they weren't challenged originally.
2) It forces someone to file a complaint and mount a legal case BEFORE damages have been seen. This same court that was sooooo skeptical of the states cases against the EPA regarding potential future damages, now wants to place the burden of identifiying and litigating what may or may not be discriminatory on kind hearted, deep pocketed skeptics who have not yet been harmed by a policy.
I had high hopes for Roberts to be a voice of reason (even if he turned out to be conservative in general) but this case clearly shows that the Chief Justice is not that man.
10 Comments:
"That's about the most ridiculous thing I've ever heard of."
What if I told you that some poster on IMDB stated (paraphrasing) "the 2003 Ang Lee version of "Hulk" was a great movie." Do you edit your above statement to read "That's the second most ridiculous thing I've heard all day?"
nope... I would not be surprised to learn that there are 6 such individuals that think "the Hulk" was a great movie... That would be one more than the number of people that think this ruling makes sense (Alito, Roberts, Thomas, Scalia and Kennedy for the record)
It's a shame. The Supreme Court should be the most logical group of nine individuals in the country. Clearly, they are not. But, I knew that when they upheld the Kelo decision. That was as obvious a case as I have read about, but nonetheless, they ignored the Constitution in favor of "progress."
actually, I think they were right to decide Kelo the way they did... I don't really like that particular application but the fact is that it's a state's rights issue
No one was deprived of just compensation nor due process... and the state's should have pretty broad authority to determine what is in the "public" interest...
I absolutely disagree. Private properties should not be seized unless they are used for government operated or created uses, such as roads, and even then they should only be seized if no alternative can be found. To hand over someone's property to a private company for building a store or warehouse or stadium or anything else is not a precendent anyone should accept. It opens up every single private property to businesses who already have their hands too deep into politicians pockets. No private property owner is safe. And it is already bad enough the Constitution allows seizure of property for PUBLIC use. Now they are authorizing PRIVATE use. That's what businesses are.
"the state's should have pretty broad authority to determine what is in the "public" interest..."
Isn't it in the interest of the "public" for the state to leave us members of the public to ourselves as long as we don't infirnge upon the rights of others to do the same? I don't need any government to decide for me what i can and cannot do as long as I'm not hurting anyone else. That's nanny statism, communism, and fascism all cleverly rolled into one big conspiracy of control.
And, just compensation is a subjective term. If someone has spent their entire life living on their justly acquired property who can say what is a reasonable amount of money to remove them from that property? They may not be satisfied with any amount of compensation because they have the perfect view or memories in that home or whatever else THEY deem valuable. What if they worked their whole life to build and maintain that property and it held tremendous worth to them, but was a modest home by other people's standards? No one can put a price on that hard work, that personal investment of time and effort, other than that individual. Call me an idealist for proposing this philosophy that the peace of mind one SHOULD have when owning their own things is more valuable than a shopping center, but for crying out loud, there is plenty of land in this country for the government, businesses, and even transportation infrastructure to thrive without moving people out of their homes.
First of all, I meant the state as in Maryland, Florida, etc. not the state as in the government in general.
Second, I wasn't saying this is a good policy at all... I just feel that the Supreme Court shouldn't be involved in making policy (ironically, I feel they DID make policy on this recent ruling). A strict reading of the constitution indicates that the subject was left open ended by the founders and therefore should not be opined on by the courts...
Clearly, the states should do something (and many, if not most, of them have already) but the supreme court shouldn't
You know what? I just re-read Amendment V of the Constitution and it said "nor shall private property be taken for public use, without just compensation." The property was not taken for public use. The immediate use upon seizure is for a private company to do whatever they wanted (in that case a water front shop and entertainment district if I'm not mistaken). So just compensation is irrelevant since it was being seized for private use. The slippery slope of granting the government the ability to seize private property to be handed to anotehr private entity is very scary. No compensation at all needs to be granted, one could argue. It's just forfeited at the whim of God knows who.
I knew what you meant regarding "state." I see no difference between a particular state and The State (government). All forms of government should be extremely limited in their abilities to seize private property for ANY reason. They only sensible reason to seize a property at all is that the private property is situated that a foreign invasion could be easily applied unless a military base is built on that exact spot. Roads, bridges, etc are important, but it is very rare that they cannot be built around a private property. The compensation should be agreed upon by the buyer and seller. If the seller tries to ask too much he or she might just have to deal with an 8 lane highway speeding immediately past his or her property forever and forfeiting any compensation he would have been due. In almost every case the seller will sell. In the rare cases they do not, they will suffer the consequences and it will be likely that future propositions are accepted within reason so as to avoid such a problematic outcome for the seller. I just refuse to agree that the government NEEDS a property that badly that they will seize it aside from national security implications. And private companies have no right to property they do not justly purchase without government interference.
again... I'm agreeing with your policy statement... I'm just saying that the question before the supreme court was very narrow and the supreme court didn't "blow it" as many people would have you believe (as evidenced by a quite rare 9-0 vote, btw)
1) Was there just compensation? Yes, this was not disputed.
2) Was there due process? Yes, again this was not disputed (as I recall it was disputed early on but long since resolved and not a question for the court).
3) Was it for public use? Here's the only real question the Court had to answer. There's (literally) tons of precedent that says the state has significant leeway in interpreting these kinds of things. The state was able to demonstrate that the land would contribute to higher property values and that the area needed a development of this type.
As far as the Supreme Court goes, the state vs. federal distinction is incredibly important. The constitution doesn't forbid what they did (in fact, even if we accept your argument that this wasn't public use, the fact is, the constitution doesn't prohibit the taking of property for private use... in fact, it's fairly silent on this issue of property rights for individuals). Therefore, the supreme court had no standing to stop the transaction...
The system worked exactly like its supposed to, by the way. People were pissed. Many states passed amendments to prohibit this type of transaction and those that didn't will likely have some outflow of people... Voting with your feet is an important part of our society.
OK, you've convinced me about the decision.
You asked a short while back what we might want to change about the Constitution. I would like to shore up some of the ambiguities. Saying someone cannot be stripped of "life, liberty, and property without due process" leaves decisions open to whatever "due process" is. At any time by any government body, language can later be written to amend what due process means for We the People. It was my understanding that due process was meant to be something along the lines of, "if you are charged with a crime, you will have to be arrested, tried, and convicted by a jury of your peers in a court of law for your life, liberty, and/or property to be taken from you," as opposed to due process meaning whatever guidelines the government sets up for any random purpose. Whereas the term istelf is not being incorrectly interpreted, it seems to me that the purpose when it was written was to protect the people, not the government. When it is so loosely defined it allows the government such leeway as to completely destroy the protection of the people as was it's intent. Perhaps "substantive due process" would be better because that implies or by definition means, "a limit on the government's power to enact laws or regulations that affect one's life, liberty, or property rights." If we were to discuss the purpose for the taking of the property in Kelo I would argue that the reason, depressed area, is subjective and not the problem of the landowner whose is unjustly being stripped of his or her property. Build up around them as I suggested earlier. It may drive them out or influence them to move and if it does not, that is the risk the developer takes. Often times a unique property amongst greater wealth adds character to an otherwise cookie cutter existence. Now I'm just speaking philosophically, but the main point is taking what someone owns who has not committed a crime is unjust. I think you said you agreed with me there. Thank God.
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