The Situationist

Judge Nancy Gertner on the Situation of Discrimination Claims

Posted by The Situationist Staff on October 27, 2012

From YLJO (the essay of an essay titled Losers’ Rules by Judge Nancy Gertner):

Each year, the United States District Court for the District of Massachusetts holds an extraordinary panel. All active judges are present to answer questions from the bar. A lawyer’s question one year was particularly provocative: “Why are the federal courts so hostile to discrimination claims?” One judge after another insisted that there was no hostility. All they were doing when they dismissed employment discrimination cases was following the law—nothing more, nothing less.

I disagreed. Federal courts, I believed, were hostile to discrimination cases. Although the judges may have thought they were entirely unbiased, the outcomes of those cases told a different story. The law judges felt “compelled” to apply had become increasingly problematic. Changes in substantive discrimination law since the passage of the Civil Rights Act of 1964were tantamount to a virtual repeal. This was so not because of Congress; it was because of judges.

Decades ago, law-and-society scholars offered an explanation for that phenomenon, evaluating the structural forces at work in law-reform litigation that lead to one-sided judicial outcomes. Focusing on employment discrimination claims, Marc Galanter argued that, because employers are “repeat players” whereas individual plaintiffs are not, the repeat players have every incentive to settle the strong cases and litigate the weak ones.Over time, strategic settlement practices produce judicial interpretations of rights that favor the repeat players’ interests.More recently, Catherine Albiston went further, identifying the specific opportunities for substantive rulemaking in this litigation—as in summary judgment and motions to dismiss—and how the “repeat players,” to use Galanter’s term, take advantage of them.In this Essay, drawing on my seventeen years on the federal bench, I attempt to provide a firsthand and more detailed account of employment discrimination law’s skewed evolution—the phenomenon I call “Losers’ Rules.” I begin with a discussion of the wholly one-sided legal doctrines that characterize discrimination law. In effect, today’s plaintiff stands to lose unless he or she can prove that the defendant had explicitly discriminatory policies in place or that the relevant actors were overtly biased. It is hard to imagine a higher bar or one less consistent with the legal standards developed after the passage of the Civil Rights Act, let alone with the way discrimination manifests itself in the twenty-first century. Although ideology may have something to do with these changes, and indeed the bench may be far less supportive of antidiscrimination laws than it was during the years following the laws’ passage, I explore another explanation. Asymmetric decisionmaking—where judges are encouraged to write detailed decisions when granting summary judgment and not to write when denying it—fundamentally changes the lens through which employment cases are viewed, in two respects. First, it encourages judges to see employment discrimination cases as trivial or frivolous, as decision after decision details why the plaintiff loses. And second, it leads to the development of decision heuristics—the Losers’ Rules—that serve to justify prodefendant outcomes and thereby exacerbate the one-sided development of the law.

Read the entire essay here.

Related Situationist posts:

For a list of Situationist posts discussing the research on implicit bias and the IAT, click here. To review a collection of Situationist posts discussing Nancy Gertner‘s work, click here.

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