Dissenting today in Ledbetter v. Goodyear Tire & Rubber Co., Justice Ginsburg writes, "This is not the first time the Court has ordered a cramped interpretation of Title VII, incompatible with the statute’s broad remedial purpose."
The history of Title VII and its "purpose" is, at best, much more ambiguous than that. Title VII was modeled after state antidiscrimination laws enforced by Fair Employment Practice Commissions, which spread throughout the North and Midwest after WWII. The FEPCs focused on mediation between the aggrieved party and the allegedly discriminating employer, often lacked much in the way of enforcement power, and were widely perceived as largely ineffectual. Title VII built on various aspects of the FEPCs; the requirement of getting EEOC approval to file a suit, for example, built on the FEPC's agency-centered procedures. Civil rights advocates did win the right to sue with agency permission, but with damage caps and time limits.
At the time of its passage, then, many thought that Title VII would turn out to be not much more consequential than the FEPCs had been. In fact, my impression is that the public accommodations provision of the 1964 Civil Rights Act was far more controversial than was Title VII, especially when advocates for the latter promised it would not interfere with union seniority schemes or mandate "reverse discrimination."
Much to most people's surprise, however, civil rights advocates within the Justice Department turned Title VII into a powerful tool, by bringing large-scale class actions against employers, often on a disparate impact theory that was very far from the minds of Congress in 1964. Moreover, while at the time Title VII was thought to primarily be concerned with discrimination in hiring, plaintiffs' attorneys eventually realized there was more money, and a greater possibility of success, in filing cases involving discrimination in firing. All of this was nudged along by sympathetic courts, who consistently proclaimed, quite falsely, that Congress had intended Title VII to be a very broad, vigorous, remedial statute.
Whatever one thinks of this outcome, there's no excuse for distorting the history of the statute. In fairness to Justice Ginsburg, Congress did endorse many of the innovations initiated by Justice and plaintiffs' attorneys in later legislation, such as the Civil Rights Act of 1991. [Update: But to the extent she is arguing that even unamended parts of Title VII should be interpreted broadly because the statute, in 1964, had a broad remedial purpose, that is a rather distorted view of the law's history. As Justice Ginsburg suggests, the current Congress might choose to adopt her interpretation of Title VII through new legislation, but that is hardly evidence that her interpretation is consistent with the scope and intent of the statute as written.]
FURTHER UPDATE: I think it's a mistake to look at legislative "intent", which is easily manipulated post hoc. Rather, the issue is the "purpose" of Title VII, which can be easily gleaned from the text of the statute: to provide certain limited rights for individuals to sue for employment discrimination. The law's purported "broad remedial purpose" is contradicted by the requirement of EEOC approval to sue, but its application only to large employers, by damage caps, and so on. To the extent this isn't clear from the face of the statute, its historical relationship to the modest fair employment practice laws should make it clear. Congress has since broadened the statute somewhat, but not to the extent that one could reasonably argue that the law is intended to skew the balance drawn between employee and employer interests heavily in favor of the employees, as Justice Ginsburg's opinion suggests.
I picked on Justice Ginsburg's opinion because its language, joined by three other Justices, recalls the excesses of the Warren and Burger Court. In those days, the Court would routinely ignore the fact that a particular statute resulted from legislative compromise among various interest groups, pick out a "purpose" that suited the Justices ideological proclivities (preventing discrimination [but not noting the countervailing interests of employers reflected in the statutory language], protecting the environment [but not noting the countervailing interest in business efficiency and profits], helping the poor [but not noting Congress's desire to limit administrative burdens on local government, and the cost to taxpayers], and so forth), declare that to be the sole, overarching purpose of the statute, and proceed to ignore statutory language and often common sense in interpreting the statute.
Ginsburg's overall position makes little sense in practical terms. By her logic -- that is, that the continuing effects of discrimination each count as a new act of discrimination -- then if a company fails to hire me for racist reasons, each month that they fail to issue me a paycheck is a new act of discrimination. After all, if they had hired me, I'd have been getting a paycheck every month. (Ginsburg's reply would seem to be that the company could assert a laches defense, but I'm not sure why that holds. If each (lack of) payment is a new act of discrimination, then laches doesn't really apply.)
Her attempt to draw an analogy between pay disparity cases and hostile work environment cases fails because the whole point of hostile work environment cases is that the first act by itself isn't actionable (except in extremely rare situations). It's only the cumulative effect of hostile acts that becomes unlawful. But with the pay cases, the decision to underpay is actionable from the very first time the decision is made.
The complaint of "cramped style" is a call to interpret statutes based on the effect that the judge wishes the statute to have. What is far preferable is new legislation which, on its face would offer expanded remedies to employees who suffer the death of a thousand cuts.
I don't know anything about the specific 6 months provision at issue here. We might have to wait for the next volume of Robert Caro's life of Johnson to find that out. But "broad remedial purpose" seems to fit. Ginsberg is someone who knows this material well, since she had a career of litigating women's pay issues. I'm not expressing an opinion as to which side of the court was right. But there's some support for her view of the legislative history.
[Crickets chirping.]
Ironically, those who complain about the current court's "conservative" approach to these cases often fail to realize that the court has been much more sympathetic to employee claims in the past 10 years than it was historically. The 1980's featured numerous cases limiting Title VII theories (some of which were limited or reversed by the 1991 act).
As far as legislative intent and history, I note that the EEOC, the agency charged with administering this statute, sided with Ledbetter in its brief before the 11th Circuit, and the dissent quoted legislative sponsors of the 1991 Act that made it clear that Lorance's analysis was disapproved by Congress, not just in seniority system cases, but in other areas. But, such sponsors statements are akin to dicta, in the legislative history context.
As far as going back 20 years, the EEOC would have limited Ledbetter's back pay claims to 2 years, so I hardly find that a terrible burden for employers, both from an evidentiary standpoint or from a fairness perspective. Personally, I think the EEOC's position was the most sensible one.
I'm trying to get the link function to work. Since it's never worked for me before, as a fallback, go here if interested:
http://lawprofessors.typepad.com/laborprof_blog/
I haven't read Ledbetter yet, but am generally familiar with it. The 2 yr limitation is just on recovery. It doesn't effect what one could try to bring in to evidence or assert as the basis of liability. Do you really mean someone should be able to bring a claim for a personnel decision made in 1985 that allegedly causes their pay to be supressed today? I believe that was her position, but she was only going to be allowed 2 yrs of recovery, not the full 20.
Also, while there are limits on the size of employers that can be sued, I'm not sure 15 employees (the Title VII threshhold) is a "large" employer. Contrast that with the ADEA's requirement of 20 employees for coverage, or the 50 employees required for coverage under the FMLA. And the damages allowed under Title VII are pretty generous, as employment laws go (again, compare the NLRA).
Of course none of this means a Court should be allowed to "skew the balance drawn between employee and employer interests heavily in favor of the employees," to use DB's term. But I don't see any attempt to do that in the 4-vote dissent. Plus, for the record, Title VII is apparently already quite skewed in favor of employers, given that employment discrimination plaintiffs do worse at pretty much every stage of litigation than do plaintiffs in pretty much any other type of suit.
Finally, in the big picture, Congress broadened the 1991 Act by explicitly rejecting multiple examples of conservative Supreme Court decisions that narrowed the scope of Title VII. I might worry about that sort of thing recurring more than about this dissent recalling the "excesses of the Warren and Burger courts."
Right; at best, DB does not understand the law in question.
I don't see anybody arguing the facts, and they may be undisputed, but this woman may in fact have been the least qualified in the group, and was thus compensated accordingly. So you can't exclude the essential fairness of her treatment, unless you look only to the presence or absence of a chromosome in an employee's biology as your cue. In working with large organizations, I've found them particularly susceptible to PC hiring and promotion practices, and generally speaking, women managers are often the least qualified because of these foolish practices, and invariably a far greater % are incompetent than a comparable male sample.
Not to mention, she stayed there, and accepted this employment "contract" for a long period of time. So the court merely accepted her longterm acceptance of the situation, and looked to the 180 day provision as to application of the law to the situation. All's well.
That is traditionally considered private between the employee and his/her firm. We could make it non-private, as we did in the 1930's with securities regulation. It used to be that public companies could keep their books and records private - that changed, to help protect investors. I could see taking the same step for employee pay and benefits, but I am not an employee.
If disclosure requirements are increased (one cannot stop with salary and benefits, leaving out annual or semi annual evaluation reports, attendance records, records of discipline and counseling, etc.), then willingness to employ (as opposed to hiring temps or independent contractors) goes down.
A relevant question is how common is the Ledbetter situation. It seems extreme to me. If it is an outlier, we may want to avoid building too much new legislation on the premise that employers commonly do this (as opposed to more subtle forms of discrimination).
I don't see anybody arguing the facts, and they may be undisputed, but this woman may in fact have been the least qualified in the group, and was thus compensated accordingly.
Well, see, that's the thing about undisputed facts -- people don't argue them in court, so that's not what the decision's about. The defense was not "she was the least qualified and thefore paid less." If they had proved that, nobody would complain. The defense was about what type of events do and do not trigger the statute of limitations.
Or should I say, "maybe this wasn't really gender discrimination because plaintiff was a woman, because maybe plaintiff really a man. Sure, that wasn't in dispute, but. . . ."
A jury already decided that she did indeed suffer from discrimination. That was not disturbed. The issue was whether Title VII's statute of limitation should have prevented the case from ever being heard.
"The overall costs of litigation for plaintiffs and their counsel is low."
When I represented employees against the federal government, the costs were extremely high. We needed experts for every case regarding back pay and comp damages, and we had no contingency fee arrangements. What that meant was that only highly paid employees could afford to bring such cases.
Sure there are plenty of crap cases, but the burden to survive summary judgement is quite high - it would be disingenuous to consider that it is not.
I'm not so sure about "low barriers to entry." Many plaintiffs'-side lawyers take cases on a contingency fee basis, which means they must be making some sort of rational guess at the strength of their case -- but they turn out to be wrong much more often than cases of ANY OTHER TYPE, including all sorts of routine litigation that doesn't require experts. And some Title VII litigation does require experts.
You're right that folks feel bad when they get fired, but they feel bad about a bunch of other things, from broken contracts to denied insurance claims, to torts -- and Title VII plaintiffs still do worse than other types of civil litigants.
I think there is something to what you say about folks getting fired and trying to shoehorn into Title VII -- especially since the U.S. has no general "just cause" protection for employees. But that doesn't explain why so many plaintiffs' lawyers get far into litigation -- incurring expenses they typically won't recoup if they lose -- and lose so frequently.
Anyway, the underlying point is that we are far from a situation in which the law risks being slanted unfairly toward plaintiffs.
All that is consistent with the fact that these laws are sometimes highly technical and full of various limits and procedural requirements. Indeed, the basic idea behind this interpretative tool is that if the application of a complex procedural scheme to a particular case is ambiguous, but the Act in general has a broad remedial purpose (preventing securities fraud, protecting competition, prohibiting employment discrimination, and so on), the court should favor allowing an action which is consistent with that purpose to proceed in the absence of a relatively clear procedural prohibition.
So, here I think the dissent is actually offering a perfectly normal invocation of this tool: again, if one believes the statute of limitations in question is ambiguous in application to this case, and that the alleged harm is the sort intended to be remedied by the Act, then it makes sense to cite the broad remedial purposes of the Act when applying the statute of limitations.
Of course, maybe you do not think the application of the statute of limitations is ambiguous, in which case you do not get to this issue.
Not in front of juries, they don't. With virtually every juror having been treated unfairly by employers, and few jurors ever having been responsible for managing employees, I've repeatedly seen jurors simply ignore the judge's instructions to on the law to be applied in these types of cases, such as the "business judgment" instruction telling the jury that its job is not to decide whether the employer's conduct was fair or wise, but only whether the employer was motivated by the relevant unlawful factor. The stacked deck of jury trials in employment cases is why so many employers now require new employees to sign arbitration agreements or employment agreements with jury trial waivers.
By the way, wcb is absolutely right about the frivolous nature of 95% of these cases.
First, before going to court, plaintiffs must first file with the EEOC; only about 15 percent of claims filed with the EEOC result in any relief for plaintiffs, a rate generally lower than for other administrative claims. Plaintiffs lose employment discrimination cases both at the trial level and on appeal at a greater rate than plaintiffs in almost literally every other type of civil case. A recent study found that at the pretrial stage, defendants won 98 percent of employment discrimination cases; compare that to a 66 percent success rate for defendants in insurance cases. In cases tried before judges, employment discrimination plaintiffs succeeded in 18.7 percent of the cases. In contrast, plaintiffs in insurance cases won 43.6 percent of the time, and plaintiffs in personal injury cases won 41.8 percent of the time. Further, employment discrimination defendants who lose at the trial level do startlingly better on appeal (winning reversal over 43 percent of the time) than do employment discrimination plaintiffs who lose at the trial level (winning reversal 5.85 percent of the time, a lower rate than any other category of cases except prisoner habeas corpus cases).
Also, the claim that "95% of these claims are frivlous" has no basis in any of the research, and it doesn't deal with the fact that -- as I said before -- plaintiffs' lawyers are taking these cases, often on a contigency basis, and losing money when they lose. Are plaintiffs lawyers who take employment discrimination cases that much more economically irrational than pretty much any other kind of lawyer, plaintiffs side or otherwise? A more logical explanation is that these cases are surprising hard to win.
Exactly, duneclimb. Perhaps the facts were not in dispute at the SC level, but that doesn't imply that they were handled "fairly" at the lower level, nor that we should give them any "moral" value. I don't, and I assume it to be AT LEAST as likely that they're weren't as that they were. But once a jury decides that the facts go one way, it leaves the company only one direction, pettifogging though that may be... to argue the 180 day rule.
I only make this point to remove the "moral" weight that Sergeant Major Ginsburg and the other reactionaries are attempting to attach to this woman's case (and yes, she may have been a woman, or a man, or a transvestite, or a space alien, even if that is not in dispute at this level), and by extension... ALL women.
As I say, I'll let you lawyers talk it out, but understand your talk is only a portion of what's into this case, and yes I've sat on juries... and most of them will unreasonably go for the "little guy/gal", no matter what the facts of the case are. That's what must be factored into these cases... that emotion is already built in at the lower levels, and the upper levels MUST remove emotional concerns... and deal with the law alone. Ginsburg's whiny emotionalism and pleading is simply revolting in that context.
Clear off, Madame Ginsburg... your time is clearly past.
But there are no attorney's fees for plaintiffs' lawyers if they lose -- which they often do. And it's not as if there is some multi-million dollar possible pot at the end of the rainbow for individual cases. As David Bernstein's original post points out, there are caps on damages.
The alleged woman stayed in this alleged discriminatory environment for 20 years. I rest my case.
Why not, if the law is ambiguous, and didn't clearly intend to impose additional liabilities on employers, the Court holds that it doesn't? That strikes me as a better normative principle of interpretation, especially given that, in general, the relief avaiable under Title VII is limited.
Ginsburg is "clearly incapable" of overturning a factual determination that wasn't at issue in the case before her? I would think that would be a good thing.
You then take a position adopted by four Supreme Court justices, the EEOC, and various lower courts on the technical application of statutes of limitations rules and attribute it to "personal emotionalism" on Ginsburg's part, because . . . what, she didn't make an automatic assumption that the jury below was wrong on the facts, when that issue wasn't even before the court?
Based on the above, you might look to yourself first when considering who suffers from "personal emotionalism" on this issue.
Actually, I said she was "clearly incapable" of removing her own emotionalism from her work... the court's first charge IMO. Her whiny, emotional pleading... perhaps unprecedented for her and for that court I'm told... is "evidence" of that emotionalism. She didn't like the ruling, and publicly pouted, and shoved the usual "moral" baggage into play, the "facts" that were resolved at the lower level... and yes IMO often settled emotionally and often fact-free. It was she who brought up the lower court proceedings and facts, my friend.
Which is entirely possible, and why wouldn't any rational person point out that possibility?
No, actually, I "went on a rant" pointing out the prevalence of emotion in juries. I would think being a lawyer type, you might acknowledge this reality... but then perhaps you've never participated in multiple legal cases... as I have... and are not informed by practical experience as to jury behavior. I've seen it, up close and personal.
You're getting as whiny as Madame Ginsburg, now. Stick to the facts.
No, I didn't say that. Try reading my posts, and remove your emotionalism.
But I DID point out your reliance on slip-and-fall data to support your POV. As you might imagine, I don't view such data as a valid benchmark data set, but nice try.
No, her vote on a case may or may not be "emotional", but her whiny rant clearly IS... and quite disgraceful I might add. I expect better, and she should resign.
You know, you really ought to read my posts, and get my statements right. Try quoting what I say, as I'm doing here, and then respond to only that.
I'm sorry, Mr. Slater, but it seems you've lost one here, and you're just whining along with Ginsburg.
I don't want to make this personal, so let's just discuss what we do or do not know. The lower court/jury may have gotten the facts completely wrong. The plaintiff may be the worst employee in world history. The plaintiff did work for a couple decades under "contract", in the alleged discriminatory job. And the SC may have properly applied the law in throwing out her claim, and apparently even Ginsburg doesn't dispute the majority's clear reading of the law, just her (whiny and emotional) disagreement with the outcome.
But you can comment on all this, and clarify if you want. Try to stick with what I said, however, and not what you fantasize I say.
Right back at ya', my man.
I'll let anybody else who might still have the misfortune of reading any of this sort out who actually said what and who is more convincing. Just know that referring to other people that have presented you with inconvenient facts as being "whiny and emotional" doesn't really pass for informed dialogue.
I think you are confusing two different sort of interpretative issues.
One possible sort of interpretative issue is whether or not the Act renders the alleged conduct unlawful (we might call this a "substantive" issue). I am not aware of the "broad remedial purposes" interpretative tool being widely used in the substantive context, and in any event that was not the sort of issue in this case.
The second sort of interpretative issue is whether or not the Act allows the plaintiff to seek a remedy for the alleged unlawful conduct (we might call this a "procedural" issue, broadly defined to include things like jurisdiction and standing). That is the context in which I am aware of courts regularly citing certain Act's broad remedial purposes (eg, for the purpose of determining whether a private plaintiff has standing under certain provisions of the Exchange Act or the Clayton Act).
I would suggest a statute of limitations clearly falls into the "procedural" and not "substantive" category for the purposes of this analysis, and hence the proposed application of the interpretative tool in question is proper. Of course, I am well aware this procedural/substantive distinction is often criticized, which is why I am keeping it in scare quotes. The basic logic, however, is sound: the idea is just that when in doubt, we should favor interpretations of the Act which provide a remedy for conduct the Act renders unlawful.
Good deal. It's about time we put aside this rohrschact business in the courts. That seems to be what the Volokh blogger guy was referencing, more than any technical point in the law.
But hey, if there's been some horrible tragedy inflicted here, by all means let's address it for future instances. Get to work Congress/Executive.
"I'm sorry, Mr. Slater, but it seems you've lost one here, and you're just whining along with Ginsburg.
I don't want to make this personal ..."
I have no need for anybody to accept me as "convincing", but I DO accept your surrender!
And I DON'T accept Ginsburg's whiny, emotional rant about the outcome of a case that didn't go her way. She needs to get lost, it's over for her now.
So let's move on. How about we develop a mechanism to turn over these federal judges? I suggest 20 years tops. Heck, if you make it 30, we could STILL get rid of this Feikens guy here in the Midwest, who's operated the Detroit Water and Sewerage Department for the last 3 decades, on a "temporary" basis.
Let's start moving these people out, rather than waiting for them to die on the bench as we currently are. I think if they're moved on regularly, there's less chance for these emotional attachments to cases, or at least a more constant turnover will equalize them over time. Dump Feikens, and I'd about guarantee that the above case comes to a head, and the perversion he's created will flatten out and disappear.
Nice catch!
You should try that some time!
Again, I don't think the "procedural"/"substantive" labels are important, so maybe it is best to drop them. The important point is that statutes of limitation are not about defining what conduct is lawful or unlawful under the Act. Hence, I would suggest that when you wrote, "Why not, if the law is ambiguous, and didn't clearly intend to impose additional liabilities on employers ...", you were referencing a different issue (what conduct was liable, rather than a statute of limitations).
Now, perhaps you would argue that because a statute of limitations often has the effect of benefiting defendants even when their alleged conduct is unlawful, we should interpret a statute of limitations to maximize the benefit to defendants. I don't think there is anything at all obvious about that proposition, however, and indeed I think that is a misconception of statute of limitations, since many of the primary justifications for SOLs relate to evidentiary concerns and the efficient allocation of judicial resources. Those are more systematic concerns than pro-defendant concerns (and indeed, the idea may be in part to encourage plaintiffs to bring their cases when they will be most effective).
Still, there is indeed a common "pro-defendent" purpose to SOLs insofar as they are in part intended to provide potential defendants with "repose". But if you are relying on that particular partial purpose of SOLs, then I think it is fair to ask whether that particular purpose should outweigh the rebuttable presumption that if a Act provides for liability it generally intends to provide an effective remedy.
In short, whatever you want to call it, a statute of limitations is not about liability in the direct sense, and not necessarily provided just for the benefit of defendants. So, it seems appropriate to me to interpret ambiguous statutes of limitation somewhat narrowly.
I'd love to see the source for that data re discrimination case results. I've represented management in these cases for 9 years and have handled numerous single and multi-plaintiff cases, including class cases. Maybe only 2% of plaintiffs win jury verdicts, but 98% do not "lose." Most cases with any "merit" are settled. Many cases with little "merit" settle as well because oflitigation costs. And it is very rare for plaintiffs to use an expert. I've only had someone use a paid damages expert on a handful of single plaintiff cases where the person was highly compensated. People with simpler compensation (particularly those with lower wages) can easily calculate damages without an expert.
Many cases are filed by a lawyer who puts a minimum amount of time in and tries to obtain a maximum reward on that time. That's the nature of contingency fee work. However, many very good plaintiffs lawyers litigate the cases heavily because they know that their work will frequently be rewarded in settlements and fee awards. And lets not be afraid to point out that under Christensburg an employer virtually never gets fees unless the claims are pursued in absolute bad faith.
Plaintiffs who lose jury verdicts usually do so because they have terrible claims or because they are unsympathetic. There is almost never prejudice against a plaintiff that involves the disregard of legal standards or their misapplication. Juries do, however, often apply "fairness" standards to employers that have nothing to do with the merits of the litigation. I'll wager that has a lot to do with your appellate results.
Finally, what are you talking about when you reference relief from the EEOC? The EEOC can only adjudicate federal employee claims. Otherwise they just issue "cause" or "no cause" determinations. The results of those rarely have anything to do with anti-plaintiff bias. Most EEOC investigators are extremely pro-plaintiff.
Did a whole bunch of lawyer types just feel a cold shiver?
Leave everything as it is... all the laws. Heck, make it even LOOSER. ELIMINATE those cumbersome "statutes of limitation", and turn it all loose. If you can demonstrate damages now or later, then do so. Just bring it on, counselors... today... 5 years from now... whenever.
But just remember, Matlock, that when you deliver that complaint to the court, make sure you staple that surety bond to the top page, to cover all costs associated with your perfectly-framed and justifiable arguments, should they be found not perfect and not justified.
Another cold shiver. Sorry, gang!
I know this is a little off-topic, and it almost feels like throwing red meat to the wolves, but speaking of 'broad remedial purpose' as an interpretive tool reminds me of the current administration's citation of the AUMF as authorizing virtually anything that the president wants to do in fighting the GWOT, on the grounds that the purpose of the AUMF was to broadly empower the president. (I'm betting that the people who cite 'broad remedial purpose' in the Ledbetter context are far less forgiving of such arguments in the case of the AUMF.)
I didn't suggest the Civil Rights Act of 1991 "retroactively amend[ed] the history of other sections of the statute." Frankly, I'm not even sure what that means. My point was rather that the later amendments became part of the history of Title VII. In that sense, they added to the history of the Act, but did not amend the prior aspects of the history of the Act (again, I'm not even sure what that would mean).
Now, if you want to argue that this part of Title VII's history is irrelevant to the question in the case, that is a different matter. Personally, I'm not sure that is completely clear, but again that is a different issue from the the one I originally raised.
By the way, I do think the AUMF issue is at best a tangent. Moreover, I'm not sure to what you are referring when you write, "the current administration's citation of the AUMF as authorizing virtually anything that the president wants to do in fighting the GWOT, on the grounds that the purpose of the AUMF was to broadly empower the president." I agree that the Administration has made some pretty bad arguments on the basis of the AUMF, but to my recollection they have never been quite that bad.
Finally, even if they had made such an argument, it would be disanalogous. "Remedial" here is a legal term of art, and refers to "remedies" in the sense of courts enforcing rights in response to a meritorious civil action. The President using military force would not be "remedial" in the relevant legal sense.
Perhaps it is worth making something a bit more explicit. The basic logic of the interpretative tool in question goes back to one of Blackstone's legal maxims, which has sometimes been stated as the principle that "for every right there is a remedy". For various reasons that is not strictly true in every case, and a statute of limitations is in fact a good example of how an Act might provide a legal right in general but then deny a remedy for that right in a particular case. Again, though, the logic of this interpretative tool is that when in doubt, we should interpret such limitations on remedies narrowly.
And again, none of that has much to do with the AUMF.
Agreed, Mr. Cook, and this would be the model for reforms here.
The "clients" won't feel a thing. It'll be the lawyer's surety bond stapled to that complaint, not the "client's". And a smart lawyer will know which cases are good, and which are like the stinkbomb fishing expeditions I've sat through... and been nauseated by (I can share more, if you'd like). The lawyers are clever enough not to throw their surety onto a bad bet. But right now... it costs them little... and the hacks stumble around looking for a winning keno ticket. But if the client wants to pay for that surety instead... fine... if they think they have a good case then that should be no problem. I wish them both luck in their endeavors, and hope they find justice.
But if they illegitimately damage somebody else in the process, they are accountable for that damage. The surety bond will take care of those damages... which too is justice.
Put on a sweater... fix yourself a hot drink... that'll ward off those cold shivers.
Yes, but we're talking about the system in general, not the individual contracts that you and I sign every day. We're talking about ALL cases you lawyer types bring on, especially the illegitimate ones, and their blanket cost to our society, and assigning those illegitimate costs to the proper parties... those who bring them about.