Wednesday, May 30, 2007


Based upon the Supreme Court's decision in Ledbetter v. Goodyear, an employer that is currently practicing pay discrimination can defend against a victim's claim by proving that it had engaged in such discrimination for a long period of time. In other words, incredibly if an employer can demonstrate that it had a history of pay discrimination that was initiated and existed more than 180 days before the employee filed her claim, then the claim will be barred. I visualize this future courtroom scenario:

Plaintiff's Counsel: Your honor, the moment my client discovered that she was being discriminated against in respect to her pay, she immediately filed the appropriate claim and this lawsuit.

Defense Counsel: Your Honor, the Ledbetter decision provides an absolute defense to this action. My client has a long history of discrimination, and its credo is never to pay women, African-Americans or Hispanics what it pays to white males for the same work or position. Since the discrimination begins the day they are hired and we have employed the plaintiff and these other employees for years, although the disparity continues to this day, this complaint must be dismissed, because more than 180 days has elapsed since we started discriminating against her.

The Court: Counsel, in accordance with the Ledbetter case, since you have established that your client has had a long history of discrimination, the motion to dismiss will be granted.

The Court has concluded that the "unlawful employment practice" occurs when the salary is first fixed and that the required claim must be made within 180 days thereafter. Apparently this time line applies "even if the effects of the initial discriminatory act were not immediately apparent to the worker and even if they continue to the present day". (NYTimes 5/30/07) Putting aside the practical problems faced by an employee in attempting to learn about the pay disparity, and the hesitancy one might have to sue despite that knowledge, how can its continuance not be an "unlawful employment practice"?

Supporters of the opinion point out that it eliminates stale pay claims. But this decision does not deal with how far back the claim may go, but rather whether it reaches the threshold of allowing the claim at all. It is inconceivable to me that an employer can be shielded from a continuing pay discrimination claim solely on the grounds that the discrimination has been ongoing for a long time, but that is exactly what this decision holds. A history of discrimination constitutes a defense to a discrimination claim!

Thursday, May 24, 2007


In a previous post (Punitive Damages v. The Death Penalty 3/22/07) I discussed the difficulty I thought the Supreme Court would have reconciling its decision that a jury in awarding punitive damages could not consider prior harm to identifiable victims, while a jury in a death penalty case could consider the possible (and unlikely) effect upon unknown persons. The prosecutor in the Weaver case, in urging the death penalty, had argued to the jury in emotional terms that they should "send a message" to deter others. I think such an argument is totally inappropriate and agree with the Eighth Circuit that it is "unfairly inflammatory" and should warrant reversal.

The dissent from the per curiam opinion which dismissed the writ of certiorari on the grounds that it was improvidently granted, is more interesting in what it says about the Antiterrorism and Death Penalty Act of 1996 (AEDPA) than what it says about the propriety of the prosecutor's closing. Although the history of the matter is somewhat convoluted, apparently everyone agrees that the District Court improperly dismissed the defendant's habeas petition on the ground that he failed to exhaust his remedies, because he expressed his intention to apply for certiorari from the Supreme Court. His original petition was filed pre-ADEPA, but he re-filed after its adoption.

Not without considerable justification, the dissent argues that the matter should have been decided on the merits as to whether or not the Eighth Circuit had exceeded its authority under the Act in setting aside the capital sentence. However, what caught my attention was the following question posed by the dissent: "Is what happened here any less rational, any less fair****than the random fact that one petitioner's habeas action was filed a day before AEDPA's effective date, and another petitioner's could not be filed until one day after?" What a difference a day makes! The logic is compelling, but the consequences of the statute are chilling.

Further logic suggests that what would have been grounds to reverse the imposition of the death penalty on one day might be gone the next. The dissent suggests that the Court's failure to deal with the matter on the merits causes harm by requiring the State of Missouri to try the defendant again after two decades, and "The greatest harm is done to the AEDPA, since dismissing the writ of certiorari leaves the grossly erroneous precedent on the books".

But could it be that the greater harm comes from the Act itself which may serve to deprive a person sentenced to death of grounds for reversal which otherwise would be recognized, but for the more stringent standard of review mandated by AEDPA. Many, who heretofore would have avoided the death penalty, will now face it ----solely by act of Congress. Here today; gone tomorrow.

Saturday, May 19, 2007


They both have demeaned the legal profession. A huge billboard in Chicago's nightclub district proclaims: "Life's short. Get a divorce" It features photographs of "a sexy, scantily clad woman on one side and a buff, bare-chested man on the other". (NYTimes 5/13/07) No matter what the message or the motive of the messenger, no one can dispute the right of the lawyer to offer her wares in this fashion. It has met with considerable success. As with the Attorney General, apparently all things are to be judged by whether or not they are working, not whether they are right or wrong. Illegal wiretapping, secret prisons, torture, unlawful detentions, political firings of U.S. attorneys, suspension of habeas corpus, rejection of the Geneva Convention, and undoubtedly a host of other conduct yet to be revealed (such as a coercive hospital visit to the previous Attorney General seeking approval of an illegal wiretapping scheme) are all justified on the basis that no further attacks have occured since 9/11. Ergo, these tactics, like the billboard poster, are working, The only difference being that encouraging divorce is not illegal or unconstitutional, although in this administration it might be one day.

As to the firings of the U.S. attorneys, nothing infuriates me more than the party line that these are political appointments, and the President, as did President Clinton, can replace them all. Yes, these appointments are political as are those to the courts, but once appointed, U.S. Attorneys, Judges and Justices cease to be political agents. To do otherwise violates their oath of office. Prosecutors should not be dismissed for pursuing criminal conduct by members of the party in power or failing to pursue actions for the sole purpose of embarrassing the opposition and affecting the outcome of elections. Justice is not meant to be used as a political weapon.

So look for a billboard with that infamous picture of the hooded prisoner at Abu Ghraib on one side and a smiling picture of the Attorney General on the other saying: "Stop Terror. Torture Works", because there is little that the current Attorney General does not have in common with the sleazy divorce lawyer.

Tuesday, May 8, 2007


I have followed with some interest the libel suit instituted by a Massachusetts judge against the Boston Herald, which resulted in a $2 million verdict against the newspaper and was recently upheld. (NYTimes 5/8/07) I remember being outraged when I read that the judge, among other reported misconduct, had said about a rape victim: "She's 14. She got raped. Tell her to get over it." If true, it was inconceivable to me that such a person could be permitted to continue serving on the court. Apparently the jury found that it was not true and rendered its verdict accordingly.

What makes this case unusual, is that judges who are criticized rarely have the opportunity to respond in any fashion. Usually, they must remain silent no matter how unfair, unjust or untrue the accusations. I am totally in favor of robust analysis and criticism of judicial opinions and conduct, but the judge's inability to respond should place an enhanced burden on the critic to be accurate and fair.

I strongly believe this, not so much to protect the judge's sensibilities, but to maintain the public's confidence in the judiciary. I have spoken out for years about my concern that this constant barrage against judges, the mantra of "activist", "liberal", "soft-on-crime" and "legislating from the bench", all serve to erode the public's perception of and confidence in the judiciary. These labels which may produce some immediate political gain, in the long run will harm our judicial system if it causes the people to cease to believe in it.

Saturday, May 5, 2007


I find it ironic, but not surprising, that the NRA opposes a bill that would prohibit suspected terrorists from buying firearms. (AP 5/5/07) I should disclose that I have never seen a gun control bill that I didn't like. I agree with the slogan that: "Guns Don't Kill People; People Kill People", but call me crazy, I think a person who did not have a gun would have difficulty shooting anybody.

But the tens of thousands of deaths every year and the slaughter of innocents by guns doesn't seem to deter the trend of having every American citizen packin'. "A Gun in Every Pocket" is reminiscent of the old slogan: "A Chicken in Every Pot", except there the goal was to feed all people, rather than improve their chances of killing others or being killed.

Having disclosed my bias, the irony that I see is the supposition (maybe incorrect) that many, if not most, of the members of the NRA have no difficulty with the unfettered discretion of the President in detaining "suspected terrorists" indefinitely and denying them many traditional rights. Apparently it is acceptable to incarcerate them on suspicion, but not deprive them of their right to bear arms.

Of course, the ultimate irony may occur when one of those "activist, liberal, soft-on-crime, legislating judges" that conservatives are always complaining about, comes along and agrees with them and declares the statute unconstitutional on the same grounds that they oppose it.

Friday, May 4, 2007


The Ohio Supreme Court (NYTimes 5/3/07) "overturned a law that required a prosecutor's consent to allow felons who had pleaded guilty to seek DNA tests that could prove their innocence". The Times reports that other states have similar legislation. We know that innocent persons are convicted of crimes, and there is probably an even larger number of those who plead guilty to crimes that they did not commit----many in fear of going to trial and receiving a much longer sentence than the plea bargain provides. (Which may explain the reduction in criminal trials reported by Adam Liptak NYTimes 4/30/07.) There is no way to calculate how many such cases exist because the same fear precludes subsequent challenges.

But what is difficult to understand is why a state legislature would enact such a statute even if only one innocent person entered a guilty plea. The proffered justification for the denial is that it interferes with the peace of mind of the victim "if a convict sought a hearing on DNA tests". It is difficult to envision how a DNA test would involve the victim, but even if it did, one would think that a victim would prefer to be inconvenienced rather than run the risk of having an innocent person remain in prison while the real criminal roamed free.

The Ohio Supreme Court wisely overturned the legislation on the ground that it violated the separation of powers and declared that the legislature"may not impede the judiciary in its province to determine guilt in a criminal matter". We should be searching for ways to ease the plight of innocent persons confined for crimes they did not commit, no matter how small the number may be, rather than impose barriers to their exoneration.