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Diana Furchtgott-Roth, Hans Bader, Ted Frank and Ramesh Ponnuru are on the case, but the much-promoted fact-checking operations in the wider press continue to show no interest.

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Mitt Romney, following a long tradition of GOP candidates unable or unwilling to resist the continued expansion of employment discrimination law, has pre-emptively blessed Congress’s 2009 enactment of the ill-advised Lilly Ledbetter Fair Pay Act gutting statutes of limitation. Hans Bader offers reasons why he should consider drawing the line. [Examiner] More: Ted Frank.

Related: Wisconsin Gov. Scott Walker signs bill repealing duplicative damages law passed by his Democratic predecessors, thus contradicting the accepted narrative in which the scope of available damages in job-bias suits is supposed to be revisable only in an upward direction.

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Lilly Ledbetter Fair Pay Act

by Ted Frank on February 4, 2008

My monthly post for NPR’s Talking Justice weblog is about their topic of the week, the Ledbetter Supreme Court case and the associated (and counterproductive) legislation passed by the House.

  • Mayor de Blasio settles firefighter bias suit on terms sympathetic to plaintiffs [City Journal: Dennis Saffran and Seth Barron]
  • One way to dodge some Culture War fights: roll meaning of “public accommodation” back to travel, lodgings, places of public amusement, etc. [Andrew Kloster, Heritage] As original/creative expression goes, florists and cake-bakers sometimes outdo NYT’s Greenhouse [Ann Althouse] From Dixie Chicks to Hobby Lobby, few escape hypocrisy when commerce collides with convictions [Barton Hinkle]
  • Department of Education’s Office of Civil Rights investigating Florida’s popular Bright Futures college scholarship program [Orlando Sentinel]
  • Do EEOC mediators overstate risk of legal action to extract big settlements from employers? [Bloomberg BNA, Merrily Archer on survey] New Colorado expansion of employment liability bad news for large and small employers alike [Archer]
  • “Religious exemptions — a guide for the confused” [Eugene Volokh]
  • Washington Post columnist repeats myth that Lilly Ledbetter “did not know she was being paid less than male counterparts” until after statute of limitations had run; Hans Bader corrects [letter to editor]
  • If helping out local people was one reason your town decided to back public housing, you might have been played for suckers [AP on DoJ suit against Long Island town over local preference]

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Left-leaning lawprofs like Erwin Chemerinsky and Arthur Miller regularly flog the idea that decisions they disagree with — such as Twombly and Iqbal on pleading, AT&T v. Concepcion and AmEx v. Italian Colors on arbitration, and Vance v. Ball State and Ledbetter v. Goodyear Tire on workplace liability — show the Supreme Court to be biased in favor of business defendants. Richard Epstein rebuts.

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There’s an awful lot of — well, confusion is one way to put it — in the early commentary on yesterday’s Supreme Court case Vance v. Ball State, on the scope of supervisorial liability in harassment cases. Here’s Jeffrey Toobin writing in The New Yorker:

As in Ledbetter, it was a vote of five-to-four, with the Republican appointees in the majority and the Democratic appointees in dissent. In Vance v. Ball State University, the Court narrowed the definition of “supervisor.” This is important because plaintiffs can win in Title VII cases only if they suffer discrimination from a supervisor, not from a peer in the workforce.

If “discrimination” is read to include “harassment,” as the law does in fact read it, this is simply untrue. Here is the second sentence of the syllabus of Vance (which is word-for-word identical with the third sentence of Justice Alito’s majority opinion):

If the harassing employee is the victim’s co-worker, the employer is liable only if it was negligent in controlling working conditions.

And here is Justice Ruth Bader Ginsburg on page 4 of her dissent stating the same standard, unchanged by the opinion:

if the harassing employee is a co-worker, a negligence standard applies. To satisfy that standard, the complainant must show that the employer knew or should have known of the offensive conduct but failed to take appropriate corrective action.

There are many miles of difference between “you can’t win,” which is how Toobin chooses to summarize the current right to seek damages for co-worker misconduct, and “you can win but you need to show employer negligence,” the more accurate way to summarize it.

Nor is Toobin the only one to make this mistake. An error-strewn U.K. Guardian opinion story reacting to the case asserts (to quote its subheadline) that “the US supreme court has ruled that job harassment only counts if it’s from a ‘supervisor’.” That’s flatly untrue, for the reasons above. Author Jason Farago also swallows whole the sharply disputed contentions of misconduct leveled by the plaintiff in the Ball State case, although no level of the court system appears to have done so; a trial court found Vance’s treatment “neither sufficiently severe nor pervasive to be considered objectively hostile for the purposes of Title VII” and neither the Seventh Circuit nor the Supreme Court elected to reach that issue. Indeed, Justice Ruth Ginsburg in her dissent chooses to illustrate the feared impact of the new rule by reciting details of other cases that could be affected, as opposed to Vance’s.

Admittedly, it’s not easy to stay on top of the details of a law as complex as Title VII, and we all make honest mistakes. But when given the choice between risking dullness by accurately describing the actual state of the law, and embellishing a tale of conservative insensitivity so as to inflame their left-leaning readers, Toobin and Farago appear to have a head start on that old bit of advice, “print the legend.”

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October 26 roundup

by Walter Olson on October 26, 2012

  • Remembering George McGovern: “The endless exposure to frivolous claims and high legal fees is frightening” [Bob Dorigo Jones]
  • “One student was told she couldn’t cast a vote for homecoming queen unless she submitted to the tracking regime.” [CNet via Doctorow, BoingBoing]
  • Couple says law firm sued them following crash of RV they’d sold months earlier [Chamber-backed Southeast Texas Record]
  • L.A. city council moves to ban pet stores [L.A. Times via Amy Alkon]
  • “Willie Gary’s law firm ordered to pay $12.5 m to lender” [Nate Raymond, Reuters] Touring the tasteful promotional materials of longtime Overlawyered favorite Gary [Above the Law]
  • Further debunkings of Lilly Ledbetter narrative [Victoria Toensing, Adler, more, earlier] And fact-checking PolitiFact could turn into a full-time job; Hans Bader is still on the case [CEI]
  • Fifth Circuit panel backs Louisiana monks’ right to produce handcrafted caskets [NOLA.com, Ilya Shapiro/Cato, earlier]

While I’d rate the debate stylistically as a draw (this time Obama actually studied for the test) I’ve a feeling Romney may have made further voter inroads by continuing to emphasize his Massachusetts-moderate side. “Obama just talks the game on ‘assault weapons,’ but I actually got a bill passed” must be the unlikeliest Republican applause line of the evening. And was Romney really bidding to get to the left of Obama on education spending and government-guaranteed contraceptives, to name but two?

Highlights of my Tweets as part of the Cato debate-Tweet team, as usual in reverse chronological order:

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Politics roundup

by Walter Olson on September 7, 2012

  • “Someone tell Gov O’Malley that Swiss bank UBS is helping build a Maryland bridge.” [background; State of Maryland, PDF, via Dan Alban] Dems’ trade xenophobia escapes ire aimed at GOP’s purported immigration xenophobia [Barro] “Buried in the 2012 Democratic platform: Official declaration of war on Switzerland.” [@daveweigel]
  • Are you better off than you were four years ago? Kyle Graham traces that question back to 1900, and no doubt it’s older [ConcurOp]
  • Fact-checkers snooze during Dems’ Lilly Ledbetter show [Ted Frank/PoL, Hans Bader/Examiner] Read in full context, Obama’s “you didn’t build that” remarks “would inspire largely the same reaction.” [Larimore, Slate]
  • Former Florida Gov. Charlie Crist is least surprising Dem endorser of the year, as Overlawyered readers have reason to know [Betsy Woodruff, NRO, on Morgan & Morgan connection]
  • Great Society legacy: tax-funded nonprofits play key role in NYC corruption [Steven Malanga, WSJ]
  • “Details of the Auto Bailout You Won’t Hear in Charlotte” [Dan Ikenson, Randal O'Toole, Cato; Tim Carney, Washington Examiner ("Here’s the truth: what Romney proposed for Detroit was more or less what Obama did"); Shikha Dalmia on Gov. Jennifer Granholm]
  • HHS welfare waivers: fact-checkers, check thyselves [Kaus, more, Steve Chapman]

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March 9 roundup

by Walter Olson on March 9, 2012

  • Roundup of James Q. Wilson appreciations [Michael Greve] The controversial book a 29-year-old Wilson never wrote [Helen Rittelmeyer]
  • “Secret Class Action Settlements” [Rhonda Wasserman (Pitt), SSRN, via Stier] “Classic scholarship: Class action cops” [Trask/Class Strategist] Where should class-action scholarship go next? [same, more]
  • So does this mean GOP’s overturn-Kelo bill would kill the Keystone pipeline? [Stoll]
  • Stossel on illegal lemonade stands and vague laws that make everyone guilty; guest star is Cato’s Harvey Silverglate [YouTube]
  • No Fluke? Linda Greenhouse’s recollection of Lilly Ledbetter case is fairly fictionalized [Ed Whelan, earlier]
  • Footsie with plaintiff-lawyer adversaries: “Allstate vs. former Allstate adjuster” [Ron Miller]
  • Benjamin Barton reviews the Winston-Crandall deregulate-lawyers book [MSLR/SSRN via Instapundit, earlier]

Proponents are making the usual you-mean-you’re-against-equal-pay? noises, but the bill would go much farther than that in undercutting employers’ litigation defenses. Jon Hyman says business should be afraidbe very afraid. More: Christina Hoff Sommers, New York Times; Hans Bader and more; Keith Smith/ShopFloor.

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My Manhattan Institute colleague Jim Copland has an op-ed today in the WSJ explaining how current campaign finance rules magnify the influence of trial lawyers, as through the favored status of “bundling”. Excerpt:

Over the current six-year senatorial election cycle, four of the top seven donors to the campaign committee and leadership PAC of Senate Majority Leader Harry Reid (D., Nev.) were plaintiffs firms. Plaintiffs firms were the top two donors to Senate Majority Whip Dick Durbin (D., Ill.).

The first piece of legislation signed by President Obama—the Lilly Ledbetter Fair Pay Act of 2009 — gutted statutes of limitation in employment lawsuits. The first legislative triumph for new Sen. Al Franken (D., Minn.), an amendment to the defense appropriations bill, foreclosed employment arbitration clauses for federal contractors.

More from Jim at Point of Law, including a mention of Trial Lawyers, Inc.: K Street–A Report on the Litigation Lobby 2010, the newest installment in the Trial Lawyers, Inc. series, which will be available later today here.

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February 1 roundup

by Walter Olson on February 1, 2009

  • A “retired Reserve captain is threatening to sue her local California school board if the board’s members do not address her by her military title” [Navy Times, Popehat]
  • Members revolt at Florida bar’s selling their email addresses to marketers; general counsel of bar suggests they maintain multiple email addresses [Daily Business Review]
  • “Panel Upholds $17M Attorney Fee Award, Cites Bad-Faith Patent Litigation by Drug Companies” [NLJ; fees awarded to Takeda Chemical Industries against Mylan Laboratories and Alphapharm Pty. Ltd.]
  • Much of what you think you know about the Lilly Ledbetter Fair Pay Act is wrong [Stuart Taylor, Jr./National Journal; Point of Law, more]
  • Not only prejudicial, but a whiskery urban legend to boot: fictional “Winnebago tale” (man thinks cruise control function will drive RV for him, sues after crash) makes its way into an Australian lawyer’s courtroom argument [Rees v. Bailey Aluminium Products]
  • Posner was scathing about the class action lawyers’ conflicts of interest in the Mirfasihi v. Fleet Mortgage Co. case, but Max Kennerly thinks the judge got the case wrong [Litigation and Trial, earlier]
  • Fight erupts over fee split in Blue Cross eating-disorder class action settlement [NJLJ, earlier]
  • “Many attorneys from both parties also marvel at the sheer number of lawyers Obama has picked so far” in staffing White House [Washington Post]

September 11 roundup

by Walter Olson on September 11, 2008

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Can anyone have seriously imagined that a retired worker from Goodyear would rise to national prominence over a case she lost at the U.S. Supreme Court regarding statute of limitations? And yet, at tonight’s Democratic National Convention, Lilly Ledbetter will take center stage for a few minutes.

No doubt we’ll hear about the Paycheck Fairness Act bill because she’s not endorsing anyone for President.  “Equal Pay for Equal Work” has been one of the talking points of the week.   

There’s been lots of talk of late about the act, which arose from the Ledbetter case (though there was also a Lilly Ledbetter Fair Pay Act bill out there as well). One of the bill’s co-sponsors, Rosa DeLauro commented on it on the Huffington Post late last week and I summarized the latest debate about the bill in a post as well.  Businesses and others have been critical of the act, even though it passed the U.S. House of Representatives last month  (Heritage WebMemo, 7/30; Examiner, 8/6; OpenMarket, 8/6). 

What’s missing from the debate about the bill, unfortunately, is a discussion about what the bill is about and should be about.   It’s not really about pay equity — after all, we already have the Equal Pay Act for that. It’s really about allowing indivdiuals to recover much more in the way of damages than they could otherwise recover (though you’d be hard-pressed to make heads or tails of it from the seemingly technical language used).   And frankly, there’s nothing wrong with advancing that goal if there was a fair debate on the merits.

But unfortunately, the public debate on the bill seems to fall into the classic stereotypes that each side rolls out with a piece of new legislation.  Proponents of the bill suggest that those who are for the bill are FOR pay equity, and those opposing the bill are AGAINST pay equity, which is just hyperbole.  Opponents of the bill have used hyperbole of their own, ignoring the fact that corporations have had to comply with the Equal Pay Act for years and that many are well-suited to address such claims.    

It’s hard to see how some changes will have any real impact on employers.  For instance, one part changes the language regarding a “factor other than sex” defense that an employer can raise to a “bona fide factor other than sex”.   While one can debate the theorhetical differences in language, the real-world effect of the change is probably minimal for employers.  After all, do employers really make salary decisions and think “well, I can explain the differences with reason, but is it a ‘bona fide’ reason”?  And small businesses will be excluded from the act, in the same way that they are excluded from coverage under the Fair Labor Standards Act.

On the other hand, proponents of the bill gloss over the fact that removing some caps on compensatory and punitive damages — as the bill proposes — could have a significant effect on employers and the likelihood of lawsuits (one need only look at the rise of Title VII litigation after the Civil Rights Act of 1991 was passed for a historical perspective). 

Proponents also ignore the fact that the punitive damages portion of the bill would mark a change in philosophy regarding punitive damages (to see the changes in context, click here).  For example, one change would allow punitive damages to be awarded even when no intentional discrimination has been proved — which contradicts the traditional notion that punitive damages should be issued to punish the defendant for some type of malice or reckless behavior. 

The political reality is that some version of this bill is going to get passed and employers need to keep a watchful eye on the bill.  We’ll see in the upcoming weeks whether a compromise is eventually fashioned (much like the compromise being done for the ADA Amendments Act of 2008) or whether this is just political posturing in an election year.  Either way, here’s (perhaps foolishly) hoping that the debate on the bill’s merits gets more substantive than just slogans.

(At Point of Law, Walter Olson’s other site, Carter Wood provides his insights into tonight’s happenings as well.)

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New at Point of Law

by Walter Olson on April 23, 2008

Carter Wood has been doing great things lately with the National Association of Manufacturers’ Shop Floor blog, which often treats legal reform topics. Since Monday he’s also been posting up a storm guestblogging at Point of Law. Topics include: ATLA/AAJ’s juvenile pre-nose-thumbing at the U.S. Chamber of Commerce’s 2008 Lawsuit Climate Report (which, like similar studies from ATRA and Pacific Research Institute, tries to pick best and worst state legal environments); the employment-litigation-expanding Lilly Ledbetter Fair Pay Act (more); some thoughts on journalistic shield laws; and sundry reports from the Geoffrey Fieger trial, Florida politics, and Texas Supreme Court-watching.

Roger Clegg on pending employment litigation legislation in Congress. I commented on the Lilly Ledbetter bill for NPR’s “Talking Justice” blog.

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