The Problem With Purpose in Statutory Interpretation:
In the comment thread on yesterday's thread on Ledbetter v. Goodyear Tire & Rubber, commenter Dilan Esper explains why he thinks the Ledbetter case is very easy despite the text of the statute:
For example, the part of the statute at issue in Ledbetter was the part of the statute designed to stop people from bringing claims from long ago. The very purpose of that section was to cut off valid claims after 180 days had passed. So if you're going to play the "purpose" game, you get to chose your purpose: Either you can say the purpose of the statute as a whole was remedial, and anyone who reads it contrary to its purpose is "OBVIOUSLY motivated by a hatred for employment discrimination laws," or else you can say that the purpose of the section cutting off claims was to cut of claims after 180 days, and any one who reads to let claims survive for years and even decades is "OBVIOUSLY motivated by a hatred" of limits on employment discrimination law. That doesn't seem like a very principled approach to statutory interpretation.
Fundamentally, I don't think Lebetter is a hard case at all, and that's why I think the Roberts Court defenders are full of it.Dilan Esper's comment nicely illustrates why it doesn't work to take such an abstract view of a statute's "purpose" as a guide to interpret statutes. The problem, it seems to me, is that every statute has multiple purposes: Different parts of different statutes are products of different influences, and they all get pressed through the legislative process as products of compromise.
The Civil Rights Act is a remedial statute with a remedial purpose. Obviously, the purpose of any limitations period in it cannot be to ensure that an employer who intentionally covers up wage discrimination will be able to get away with it.
Anyone who reads the statute differently is OBVIOUSLY motivated by a hatred for employment discrimination laws, either because they don't believe in civil rights or because they simply don't like government imposing this sort of regulation of business. You don't read statutory language so contrary to its purposes otherwise.
For example, the part of the statute at issue in Ledbetter was the part of the statute designed to stop people from bringing claims from long ago. The very purpose of that section was to cut off valid claims after 180 days had passed. So if you're going to play the "purpose" game, you get to chose your purpose: Either you can say the purpose of the statute as a whole was remedial, and anyone who reads it contrary to its purpose is "OBVIOUSLY motivated by a hatred for employment discrimination laws," or else you can say that the purpose of the section cutting off claims was to cut of claims after 180 days, and any one who reads to let claims survive for years and even decades is "OBVIOUSLY motivated by a hatred" of limits on employment discrimination law. That doesn't seem like a very principled approach to statutory interpretation.
When congress is in session, do all the minds of the legislators merge into a single conscience whose purpose we can discern? Or are legislative acts the product of over 400 politicians pulling a bill in many directions for their own reasons?
It's like the Borg...
Just like a court speaks through its orders and decisions, so Congress speaks through its laws. Those laws are the only thing that can truly be said speak on behalf of Congress as a whole. What is said by a particular politician or committee, not so much.
Congree put the 180-day language in the law, not the Supreme Court. The right thing to do was to hold Congress to the implications of its own laws and then invite Congress to change the law accordingly. That's the process working as it should.
But even this argument is insufficient. First, the limitations period in the statute is phrased perfectly generally. So it might be tough for a court to read it in this very nuanced way, where there's one limitations period for the "innocent" employer and another period for the cover-upper.
O.K., so it's not impossible -- a court could just say that it's a single period, but it runs from whenever a reasonable employee would have known of the behavior. So you could give this more nuanced purpose effect.
But then, there's still another argument against doing so: A lot of plaintiffs will still allege in their complaint that there's no way they could have known about the discriminatory treatment at the time. (A lot of what goes on in hiring, firing, raise, promotion decisions isn't necessarily known to the employee... anyone could accidentally find out about it in casual conversations long after the time.) So lots of "innocent" employers will be dragged into the litigation process by a mere claim in the complaint, long after the fact, that there was a cover-up or that a reasonable employee wouldn't have known of the discriminatory behavior.
And it's perfectly reasonable to suppose that one purpose behind the limitations period was precisely to protect innocent employers from that kind of lawsuit. With the limitations period, they can get rid of the lawsuit on a motion to dismiss very very early, which is potentially important for them. So even if you don't want to protect the "guilty" employers, the strict limitations period helps the "innocent" employers as well. So you can easily have a purposive approach that supports the result in Ledbetter.
But the view that Orin's attacking here isn't intentionalism; it's purposivism. You can be a purposivist who doesn't believe in intentionalism. You can say: "The purpose has nothing to do with the intent of the legislature. The intent of the legislature doesn't exist; legislators may not have agreed; they may not have thought about the issue; they may not have read the statute! Nonetheless, the statute has an objective purpose, which can be determined by reading it, thinking what social problem it (objectively) addresses, and thinking what reading of the statute would do a better job of addressing that problem."
That's a coherent purposivist view, which is not intentionalist. Orin's argument against it still holds, though: There is (almost?) never One Single (objective) Purpose behind a statute. Rather, (almost?) every statute is a compromise between competing (and, in fact, contradictory) purposes, and any controversial provision in the statute can often be objectively described, with equal good faith, as serving any or all of these purposes.
I'm not going to say much new here, but wanted to break out a couple of categories. I think there are two related but separate problems with using purpose to interpet a statute. (1) statutes may have multipe purposes; (2) for every purpose a statute has, there is a limit on how far Congress intended to pursue that purpose.
Orin's last paragraph goes to the second point, and the second is ALWAYS a problem with purpose arguments. For every statute, you have Congress wanting to fulfill at least one purpose, but also putting a limit on how far the statute goes to fulfill each purpose. And when you try to interpret a statute based purely on its purpose, there's no principled way to choose between (a) the purpose itself, or (b) the limits within the law itself on pursuing that purpose. You can make the purpose vs. limits argument Orin makes in the last paragraph against purpose argument.
As you note, the only purpose of a SOL is to cut off valid claims because they're stale. The Ledbetter dissent's rule, and the newly enacted legislation, eviscerates that purpose, by allowing claims that are decades old AND allowing them EVEN IF the pltf knew the whole time (and was simply waiting to sue to weaken the ability of the employer to defend itself, see, e.g., fn. 3 of the op.). After all, if every paycheck is a new violation, then it's simply irrelevant what the pltf knew and when they knew it.
There's no way to defend that result in terms of the purpose of a SOL OR the underlying remedial purpose of Title VII. At most, the underlying remedial purpose of Title VII would justify tolling the SOL until the pltf learned of the discrimination. But Ledbetter DID NOT rule to the contrary; it explicitly left open the possible of a discovery rule. See fn. 10.
Thus, the Ledbetter majority was perfectly consistent with both the underlying purpose of Title VII and the specific purpose of SOLs. On the other hand, the Ledbetter dissent, and the newly enacted legislation, completely eviscerate the only purpose of a SOL, in a massivly overbroad solution of a problem -- newly discovered discrimination -- that the Ledbetter opinion did not even create.
Of course there isn't any single purpose for any statute. But that really misses the point. We can hypothesize many reasons why Congress chose to impose a 180 day requirement, e.g., to protect the administrative claims process, to ensure that claims are quickly adjudicated, to create incentives for plaintiffs to sue quickly, etc.
But the one purpose that one can't hypothesize is that Congress wanted to gut the statute and make it impossible for people to actually sue for wage discrimination. Because if they were going to do that, they would simply repeal the cause of action. In fact, if anyone in Congress proposed that, they would never have had the votes (which is confirmed by the fact that there were so many votes in favor of the legislation to overturn Ledbetter).
So the one interpretation that the Roberts Court majority chose is the only one that Congress COULD NOT have intended. And you don't do that unless you are legislating from the bench.
Dilan Esper's comment that "[o]bviously, the purpose of any limitations period in it cannot be to ensure that an employer who intentionally covers up wage discrimination will be able to get away with it" is hard to take seriously.
The purpose of a statute of limitations is never to ensure that tortfeasors or criminals get away with bad acts, but it often has that effect because it's balanced against the purposes of finality, repose, and efficiency. After all, what is a statute of limitations but a rule that some people with meritorious claims have no legal recourse? Almost by definition, it goes against the general purpose of the remedial statute. Where statutes of limitation result in injustice, sometimes (but not always) tolling doctrines help out.
Sometimes the stopping point that Congress writes into a statute seems unjust or seems to limit the scope of the remedy unduly. Sometimes it's because of lack of forethought, sometimes it's because of poor drafting, and sometimes it's because opponents of the statute's purpose either slip things in or convince the statute's proponents to compromise. None of these is a good reason for discarding the text.
Nor can we hypothesize that congress felt that the limit made it impossible for people to sue for discrimination. The limit for people to sue for unlawful firing/failure to hire is still 180 days. Why would giving someone a lower raise be different?
You seem to have switched from a purposivist approach to an intentionalist approach: The new argument is that Congress could not have intended that result because such a result would have been pretty far from what Congress must have intended to pass the rest of the statute.
But now you're opening up a new can of worms. What does it mean for Congress to "intend" something? How do you know what they intended? And how do you answer Bad Example's argument that Congress couldn't have intended the reading you insist is correct?
Just to be clear, I am not saying your reading is incorrect in the end. I think it was a hard case that could have gone either way, and I haven't invested the many hours I think I would need to really settled on a view. I'm just suggesting that your confidence that you are OBVIOUSLY right and that people who disagree with you are OBVIOUSLY result-oriented is not remotely warranted.
The Court was right, it was a stealth gutting!
They are almost all white men, after all. And those make the best ninjas. Well, the best legislative ninjas. No one stealth guts a law like a white dude.
I guess this means Obama is some kind of anti-ninja. Maybe a pirate?
Hold on, are you making fun of the Supreme Court's decision, or are you making fun of those who criticize the Court's decision by claiming (falsely) that Ledbetter foreclosed virtually all wage discrimination suits?
Why is it impossible to believe that Congress intended to "make it impossible" for people to sue after 180 days? That's what statutes of limitations do. Do you think they were joking when they wrote it? Or perhaps they mistakenly dropped a zero from the number?
Every statute's "purpose" has a boundary, after which other "purposes" trump. Here, the purpose of employers not being sued after 180 days has trumped, in Congress's view, the purpose of allowing discrimination suits.
After all, there are statutes of limitations on just about everything, but nobody walks around claiming that all of our laws are "gutted".
1. I know all the problems with legislative intent arguments. But the problem is, as I said, if someone's interpretation of a particular statute ends up being completely inconsistent with any reasonable supposition of legislative intent, it doesn't seem to me why general criticisms on discerning legislative intent should matter.
And more specifically, I think it would be a very helpful interpretative device to say that if Congress creates a cause of action, constructions that would make the cause of action unavailable for all practical purposes are to be avoided unless Congressional intent is unmistakable in that direction. It's sort of the reverse of the rule against implying causes of action-- if Congress goes to the trouble of creating a cause of action, then it is up to Congress, and not the courts, to gut it.
2. Bad Example's argument only works if we assume that (a) we assume that footnote 10, which simply declines to rule on the issue of whether there can be a discovery rule in Title VII suits, actually means that there is such a rule, and (b) that laches and waiver, which Ginsburg specifically mentions in her dissent as applicable to Title VII claims, are abolished as defenses.
In other words, a Ledbetter opinion that said "we reject the construction of the law that every new violation starts a new 180 day period, but these claims are subject to a discovery rule, which Ledbetter does not claim the benefit of, and laches and waiver defenses, which are available to the defendant" is an opinion that could be consistent with Bad Example's hypothesized legislative intent.
But the actual Ledbetter opinion simply screws plaintiffs and holds out the hope that MAYBE some discovery rule might be imposed in the future, and ignores that the actual problem it claims to be solving is one that is ALREADY SOLVED in Title VII law through the availability of laches and waiver defenses.
Your argument seems to boil down to a policy argument: The result is bad policy, therefore it cannot be the law. You use the legal fiction of legislative intent to get there, I realize: the legislature cannot be imagined to have intended something that would be a really bad result, ergo something that is bad policy cannot be the law. But legal fictions are just fictions, and at bottom you're making a policy argument: The result is bad policy, therefore it cannot be the law.
The problem is that of course a lot of people think that questions of policy are not properly judicial questions: They think the judges should follow the text. It seems to me that your approach either just denies the existence of this group or else denies the legitimacy of the approach. Now, maybe you think textualism is always bad, or textualists are always in bad faith, but I would think you nee dto at least grapple with their arguments before concluding, as you did, that "Anyone who reads the statute differently is OBVIOUSLY motivated by a hatred for employment discrimination laws."
It make take the congresscritters a few tries to get it right, and even then it may not be what they actually wanted, but at least they wouldn't be able to claim the result wasn't their fault.
Rather, when the legislature passes a comprehensive remedial scheme for a major social problem, I think that constructions of that law that render the remedies ineffective are suspect. In fact, I think they are more than suspect. Absent some affirmative statement by Congress that indeed the intent was to gut the remedies, courts shouldn't gut the remedies.
And yes, I think that in the end, the Court gutted the remedies because 5 justices don't think that there should be a private cause of action for employment discrimination. Certainly, a statute with gutted remedies could have never passed Congress, which has been proven by the speed and margin of the votes to overturn Ledbetter.
But as far as I know, your theory is not currently the law, and I suspect most people would disagree with your theory as a normative matter. More broadly, it really doesn't work to say that everyone who disagrees with your personal normative theory of interpretation is "OBVIOUSLY motivated by a hatred for employment discrimination laws." Perhaps you see yourself as motivated by love, so you assume that people who disagree with you are motivated by hatred, but if so that tells us more about you than it does the law or the folks who agree with the majority in ledbetter.
In fact, while nobody has articulated it in the way I just did, I would argue that in fact courts that are doing their job have always avoided absurd constructions of statutes that cut against any plausible purpose. And the courts that have adopted absurd constructions have been wrong to do so.
Further, in the end, we are going to have to disagree about the Court's motivations. But let's make clear what that disagreement arises out of. I don't think that the Court's construction was reasonable. And when I see a Court adopting what I think to be a clearly unreasonable construction of a statute, I look for ulterior motives. And given the 5 conservatives on the Court voted joined the majority and the 4 liberals opposed it, concluding that it was due to their political views about employment discrimination laws is not a stretch.
You, on the other hand, think the Court's construction was one of several reasonable constructions. If one were to stipulate to that, then yes, I would agree that it would be wrong to assume that the Court did what it did for political reasons.
But that's the nub of our disagreement.
Perhaps one (neutral?) guide to judicial interpretation and construction of statutes would be, in cases of conflicts, to so effect the purpose(s) that most favor the class of persons that a) appear on the face of the statute to be protected by it and b) to construe ambiguities against the classes of persons whose interests are adverse to those described in clause a). This is doubly true where class b) is more concentrated/influential/wealthy than class a)--in other words penalize special interests for not more clearly undercutting the nominal aims of statutes.
Actually, you made a claim that every single person who ends up disagreeing with you on this issue "is OBVIOUSLY motivated by a hatred for employment discrimination laws." That is, not only is every single person who disagrees with you acting in bad faith, but their bad faith is "OBVIOUS", and their bad faith is obviously based on "a hatred for employment discrimination laws."
To be candid, that is just a completely absurd claim you have made. I appreciate you trying to salvage it by saying that you just find the statutory construction unreasonable based on your preferred normative theory of statutory interpretation. But of course, that is not at all what you said.
And you are generating more heat than light.
So, if a court makes a ruling that is unreasonable under your favorite theory of statutory interpretation, but would not be unreasonable under other theories of statutory interpretation, the court is being unreasonable, and therefore must be biased. Why don't you just cut out the middle man here and say that anytime the court disagrees with you they must be biased?
Like a 180 day statute of limitations written into the law? From your outraged tone one would think the Court simply invented the number. And how much does the fact that the current Congress speedily and overwhelmingly voted to do anything prove about the purpose of a statute passed ages ago by a completely different Congress?
Round and round we go. I think the statutory interpretation in Ledbetter is clearly and obviously unreasonable. Thus, I think that people who come to that conclusion are motivated by their hatred for employment discrimination laws.
You think the statutory interpretation is one of many reasonable constructions. Thus, you don't share my conclusion about motivations.
But I am sure there have been situations where what you thought was clear and obvious someone else (indeed, someone else who was educated and intelligent and whose views you respect) thought was not, right, Professor Kerr?
Dottie: Pee-wee, how are you ever going to pay a reward like that?
Pee-wee: It's simple. Whoever returns the bike is OBVIOUSLY the person who stole it. So they don't deserve any reward!
Anyway, Dilan and Sarcastro appear to be claiming that Ledbetter "gutted" the statute, but that's something that needs to be proven rather than asserted. Off the top of my head there are at least three problems with the "gutting" claim:
1. Whether the discovery rule applies was left open
at the end of the majority's opinion. I did a very quick search and saw that the DC, 3rd, 5th, and 7th Circuits all apply the discovery rule to Title VII claims. Thus, it's not something that's simply hypothetical, but a way of extending the 180 days that is being applied by Courts now.
2. As people pointed out in the other thread, Title VII covers more actions than wages, and there hasn't been an explanation of how Ledbetter would gut discriminatory failures to hire, firing, failure to promote, demotions, etc.
3. One can in fact try to learn from one's co-workers where you stand in terms of pay. I talk now with friends around the end of the year to see where they are on bonuses and salaries. Many years ago when I was an hourly employee in retail and other jobs people would talk about how much they made. If you learn that your pay is lower than you believe it should be compared to your co-workers, then time to file the charge with the EEOC.
Most fundamentally, the "gutting" argument has the same problem as purpose arguments generally. Do you want to stress the purpose Congress had in passing the law, in which case a restrictive interpretation is too narrow? Or do you want to stress the limits Congress wrote into law, in which case an interpretation that expands remedies is too broad?
You think the statutory interpretation is one of many reasonable constructions. Thus, you don't share my conclusion about motivations.
Your second paragraph disproves the first. You admit that, as an empirical matter, some people (in this case, Professor Kerr) believe the Court's statutory interpretation is one of many reasonable constructions. If that's the case, then how could you conclude that the Court's intent was hatred for employment discrimination laws? Maybe that would be the only way you could reach the Court's interpretation; but it's possible (as you admit) that the justices in the Ledbetter majority subjectively believed in the reasonableness of their statutory interpretation.
I know and like and respect some folks who are completely convinced that there are reasonable arguments both ways on the question of human-caused global warming. That doesn't change my opinion that climate change denialism is ideologically and financially motivated.
Similarly, I have a great deal of respect for Professor Kerr, but I still think that he's wrong and I am right about the reasonableness of the majority's construction of Title VII in Ledbetter.
Dilan, your disagreement isn't about reasonableness, but whether it can be proven that the majority was motivated by hatred for discrimination laws.
ditto
As noted, my disagreement flows from my belief that the majority's construction was clearly and obviously unreasonable. Thus, I tried to answer the question as to why these justices would adopt a clearly and obviously unreasonable construction. As I said above, if you disagree with my premise, you are obviously going to disagree with my conclusion.
Human-caused global climate change is the overwhelming consensus of the scientific community. Are you claiming that your favored form of statutory interpretation is the overwhelming consensus of the legal community?
Dilan appears to be claiming that, while
Sarcastro is simply making a fool of himself:)
Some very reasonable people believe that both sides of the climate change debate have reasonable positions. The implications of your argument would mean that nobody could ever argue that climate change denialism is motivated by ideological and financial considerations.
Similarly, Professor Kerr believes that there are two reasonable positions here. If he's right, then yes, I am wrong to speculate about people's motives. But if he's wrong, and I am right, then my conclusion about motives is quite valid.
How about the fact that it is the overwhelming conclusion of Congress?
Shorter Dilan: Every person who disagrees with my conclusions on Ledbetter or global warming (and everything else probably) has bad motives. I, on the other hand, am clear seeing.
Because SOL's have been so common in various statutes for so long, and because there is so much case law on statute of limitations in so many other statutory contexts, doesnt a holding that the 180 day statute can be ignored essentially invalidate all statute of limitations.
Anything that slows down the process of making and enforcing law is a good thing in my book. If a law is so needed that it takes 5 or 6 tries over 20 years before it finally takes effect I will accept that the law more than likely addresses a valid area of societal concern.
I don't think that Congress qualifies as experts on statutory interpretation. If they did, they would have written the statute more clearly in the first place.
I would also like to pile on Dilan Esper and pretend he's not making any arguments. I can only assume the fact that he hasn't posted anything I agree with means he's making fun of me somehow.
Bad form, Dilan, bad form.
I was under the impression that under the SCOTUS' interpretation, someone must discover a pattern of prejudice within 180 days of one's first paycheck. Not super-realistic.
Yeah, I know that it's not like the whole of Title VII is "gutted" but it still seems odd to take the trouble address a problem in a subset of the law and then make it quite rare for the law to apply. Smells like a bit of an 'absurd result.'
But my understanding of the case is basically limited to NPR and comments on this blog, so I'll stick to sniping on the sidelines.]
This statement by Dilan is all that needs to be said. So, if there were 5 liberals on the court, then political motivation is no longer a consideration. From my perspective, I might find satisfaction in considering the majority in Kelo to be motivated by hatred of small property owners. While emotionally satisfying, I don't think it is either rational or reasonable.
Poindexter v. F.B.I., 737 F.2d 1173, 1182 (D.C. Cir. 1984) (quoting Bradshaw v. Zoological Society, 662 F.2d 1301, 1319 (9th Cir. 1981)).
Prof. Kerr's assertion that "your theory is not currently the law" may depend upon which law one is looking at.
Fact is, Congress may have seen a problem, but there wasn't enough support to implement a grand fix, so instead a minor, limited fix was passed -- something being better than nothing, after all. You can't start stretching the law just because it doesn't go as far as you'd like it to. Moreover, decisions like this are helpful in guiding Congress to draft better laws. All too often Congress drafts a mess and throws it to the courts to deal with, blaming the courts if the results aren't popular. The courts should not hesitate to throw the statute's words back at Congress and demand that they draft it properly if they have a particular result in mind.
This reasonable argument illustrates what I think is an important point. The notion that if Congress leaves any ambiguity, the courts ought to just send the statute back to be rewritten more clearly is not a neutral principle, it is a conservative principle.
It becomes much harder to use the law as an instrument for social change if you not only have to muster the political will to get a law passed in the first place, but you have to muster it again and again to assert the statute's original purpose against niggardly and arguably unreasonable interpretations by the courts. Of course, depending on your point of view this may be either a bug or a feature.
It's not a trivial thing to get a bill passed more than once. Prof. Kerr mocks criticism of the Ledbetter decision by pointing out that it took a mere 19 months for Congress to "overturn" the decision, but of course that only happened because there was a Democratic President and a nearly filibuster-proof Democratic majority in Congress - something you don't see every day, to say the least.
I don't presume to read the minds of the Justices, but I do think the line of argument that goes "if Congress doesn't like our interpretation, they can just clarify the statute," is disingenuous to the extent it suggests "clarification" is a trivial process. If the other two branches of government had shaken out a little differently, the Ledbetter decision would stand, regardless of whether or not it actually eviscerated the original statute as passed by Congress.
Correct, however the statute doesn't differentiate, it lumps them all together. But there's no clear arguement that paying someone a smaller paycheck every pay period is more of a continuing violation than not paying them all every two weeks. Why shouldn't every pay period that goes by where someone doesn't get paid also be a violation?
But that would make the SOL meaningless, so clearly that's not what Congress meant. So either they meant it to apply differently to wage discrimination than to hiring/firing, or it applies for 180 days in every case, as the court found. Many folks seem to thing that the former approach is not only obvious, but so obvious that it's unreasonable to conclude differently. I just don't see how you get there.
Folks, in defense of Dylan, I think he might have been entertaining a little bit of hyperbole there.
The basic problem is that intent is always a matter of fact, never a matter of law. This means that a judge is NEVER able to rule on a matter of the intent of the defendent or plaintiff (absent a bench trial), and can only provide summary judgements where this is immaterial to the case.
This means that a mere allegation of an intentional coverup is sufficient to push a trial through the discovery phase and provide cover for fishing expeditions. Furthermore, if one can provide some basic evidence (it doesnt need to be convincing so much as potentially convincing), one gets to force a jury trial.
Now, maybe 180 days is too short or not, but that is a policy issue for the elected branch of government. The simple fact is that when one creates subjective (like intent-based) exceptions to the statutes of limitations, the statutes of limitations become useless in a hurry. Courts should not be in the practice of doing this sort of thing.
Non-sequitur Anderson. The argument in the cases you've cited was deductive: (A) the government should only provide counsel to meritorious cases; (B) all meritorious cases attract counsel; therefore, the government need not provide counsel at all.
Then, the court deduces the negative inference: (A) Congress has decided that counsel should be provided; (B) therefore, Congress does not believe that all meritorious cases attract counsel.
Dilan's argument, on the other hand, here is normative: (A)Any remedial statute with a 180 day statute of limitation is "gutted" (B) Congress does not intend to 'gut' statutes; therefore, (C) there is no 180 day statute of limitations. Further, (D) Judges who read statutes incorrectly do so out of hate; therefore (E) the Ledbetter majority reached its conclusion out of hate.
THAT theory, unlike what you presented, is, thankfully, "not the law."
Unless it was to come up after being fired.]
No. I don't see why the same logic doesn't apply there, or at least clearly doesn't apply. Every pay period after you're fired, you don't get a paycheck because of your gender.
Some very reasonable people believe that both sides of the climate change debate have reasonable positions. The implications of your argument would mean that nobody could ever argue that climate change denialism is motivated by ideological and financial considerations.
That's not what you said. What you said was: "That doesn't change my opinion that climate change denialism is ideologically and financially motivated."
So, what you actually claimed, initially, was that intrinsically, per se, climate change denialism is ideologically and financially motivated. Thus, your claim was that all people propounding anti-global warming positions are raving ideologues or profiteers.
So, no one's telling you that "nobody could ever argue that climate change denialism is motivated by ideological and financial considerations." You're allowed to, appropriately, make an argument that a particular global warming denier is an idealogue or opportunist, and support it with evidence or argument. But you're not allowed to stamp your foot and say "global warming deniers are profiteers!" That's ad hominem, and a poor argument.
I encourage you to rethink your feelings towards your intellectual opponents on Ledbetter, global warming, and whatever other issues you demonize your opponents on. Personally, I opposed the Iraq War and support abortion rights. However, I don't view Iraq War supporters and abortion opponents monolithically as opportunistic profiteers, indifferent to life itself and basic human rights. Your views on your Ledbetter and global warming opponents indicate that, if you share my positions on these issues, you likely do.
MOSKAL v. UNITED STATES, 498 U.S. 103 (1990) (Scalia, J., dissenting)
In terms of shining more light on your theory of statutory interpretation, I was wondering how you felt about General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581 (2004) and its interpretation of the ADEA.
Professor Kerr, I think this is unfair to Dilan's argument, and even borders on intellectual dishonesty. He is not saying "I dislike the result"; he is saying "The result is so unreasonable that I do not believe it can be the result of honest legal analysis." And Dilan is not saying "the legislature cannot have intended a bad result"; rather, he is saying "it is not reasonable to conclude that the legislature intended such an illogical and inconsistent result."
In Ledbetter, the statute at issue says that a claim must be brought within 180 days after "the alleged unlawful employment practice occurred." Yet the Court managed to find that paying Ms. Ledbetter less than her male counterparts, because of her sex, was not an "unlawful employment practice" under that statute. The Court basically held that the word "practice" did not actually mean "practice," but instead meant "decision."
I think Dilan's conclusion that this is not honest reasoning, but rather result-driven judicial-activist legislating-from-the-bench, is certainly plausible.
I think this is similar to the issues surrounding John Yoo and whether he simply reached some inaccurate legal conclusions or whether he was a hack who was acting as an advocate for the Bush Administration instead of as a counselor. If you think his legal analysis was reasonable-but-wrong, your conclusion goes one way, but if you think his analysis was bat-shit-crazy, then you go the other.
In this case, the view of the 5 Justices that there was no "unlawful employment practice" within 180 days of Ledbetter's filing -- especially in light of Bazemore -- is pretty close to the bat-shit-crazy end of the scale.
Why can't we suppose that the members of Congress, wittingly or unwittingly, voted for a statute which contains provisions that act as a kind of poison pill that vitiates other provisions?
That argument was rejected, upon which the court fell on the last question which was whether she had a cause of action on the law for the original discrimination. They ruled no. The question was not even close--hence the convoluted first argument.
The recent bill does not change the Ledbetter analysis. The bill lays out the principle that a discriminatory wage setting within the charging period can incorporate similar discrimination outside of the charging period, but new bill appears to leave in tact that requirement that some portion of the discrimination must occur within the charging period.
The issue is really whether paying one employee less than another because of her sex is an "unlawful employment practice" as that phrase is used in 42 U.S.C. 2000e-5(e)(1).
So I think arguments based on the notion that "Congress created the 180-day limit" miss the point. Yes, Congress created the 180-day limit, but it was the Court that interpreted "unlawful employment practice" so absurdly.
This is wrong. That intentional concealment is a virtually universal or perhaps universal exception to all statutes of limitations. It has not provided a problem. You don't need purposivism to get there. Scalia's textualism, for example, believes in reading laws the same way other texts are read, which makes sense. Other texts are read to include inquiry notice and certainly concealment as a defense to a statute of limitations.
But you (and Dilan and much of the media) are misrepresenting Ledbetter's actual claims. She claimed that, decades ago, a supervisor gave her poor performance evaluations, because of her gender. If true, this is clearly an intentional unlawful discriminatory practice.
Ledbetter then claimed that, as a consequence of those discriminatory evaluations, her pay was lower than that of male employees, and continued to be lower, up until she quit. (She also believed the evaluations to be discriminatory very early on, and believed her pay to be lower as a result of those evaluations decades before she sued.)
So the question is whether each paycheck is an intentional, unlawful discriminatory act. The Ledbetter majority said no: the paychecks may have been discriminatory, but Ledbetter did not allege that Goodyear intentionally paid her less than males.
(By contrast, the Equal Pay Act forbids any discriminatory pay, intentional or not. Accordingly, a discriminatory paycheck under that law is an unlawful discriminatory action.)
(A tangential point: the Title VII statute of limitations is 300 days--not 180--in most states [i.e., those where the State-level counterparts to the EEOC have agreements with the EEOC].)
I posted before I saw your comment at 7:11pm. You are exactly right that the issue is what is an "unlawful employment practice," but you left out the requirement that it must be intentional to be unlawful under Title VII. The later pay discrimination was not intentional, and therefore not unlawful.
Nothing in Section 42 U.S.C. 2000e-5(e)(1) ties the time limit to the date the employer made certain conscious decisions. That was read into the statute by the Court.
The statute does not even use the word "intentional," either. And even if it did, I don't think that would matter, since the company clearly intended to pay her $X every two weeks while paying her male counterparts $X+ every two weeks.
But why is paying her less because of her sex diffent than not paying her because of her sex? And if it's not, then what is the point of the SOL?
Why, yes. I'd note first that the backpay provision limits liability to a period of two years from the time of filing, and second and quite fundamentally, that even the majority in Ledbetter accepts your fears as law when they quote Morgan approvingly:
"The existence of past acts and the employee's knowledge of their occurence ... does not bar employees from filing charges about related discrete acts."
This is reasonable because the employee knowledge of past acts in relation to pay differential is limited in its importance by the backpay provision and by the fact that, separate from what the employee knew and when he knew it, there's the far more essential question of what the employer did and when they did it, and if, as I believe one can interpret pay differntials, the employers never even stopped doing it.
The question is still how to treat a paycheck, not how to limit a suit based on what the plaintiff knew and when.
Dilan's rule of statutory construction seems to be that whatever Dilan thinks is right is the clear intent, and whatever Dilan thinks is wrong is motivated by pure evil.
Congress knew well in 1964 that its tight deadline would defeat many discrimination claims.
Thus, the 1964 Congress intended a deadline just as tight as that applied in Ledbetter v. Goodyear.
More importantly, the deadline itself is not rigid, but rather (thanks to the Supreme Court) now contains equitable exceptions that the Ledbetter bill's supporters, like the Obama administration, have deliberately ignored.
The White House is distorting the facts of the Supreme Court’s Ledbetter v. Goodyear decision. In that case, the Supreme Court enforced the 180-day deadline for bringing pay discrimination claims contained in the federal discrimination law with the shortest deadline, Title VII. (Other laws, like the Equal Pay Act, have much longer deadlines, like 3 years).
The White House claims on its blog that “The Court ruled that employees subject to pay discrimination like Lilly Ledbetter must file a claim within 180 days of the employer’s original decision to pay them less . . . even if the employee did not discover the discriminatory reduction in pay until much later (check out Justice Alito’s arguments in the Court’s opinion).”
This is misleading, and perhaps knowingly so, since the White House links to the very court decision it distorts. First, the Court never said there was a rigid deadline that bars claims by employees who “did not discover” discrimination “until much later.” Ledbetter never argued that the deadline should be suspended based on her employer concealing discrimination against her, because she in fact knew for years about the pay disparity she later sued over. If she truly had been in the dark about the alleged discrimination, she could have sought to take advantage of exceptions to the deadline that suspend it, like waiver, estoppel, and equitable tolling, under the Supreme Court’s decision in Zipes v. Trans World Airlines, 451 U.S. 385, 398 (1982). But she never made that argument, because, as she testified in her deposition, she had been told many years earlier that she was being paid less than the men she later claimed ought to have been paid the same as her.
Nor did she argue that the outcome of her case would have been changed if the Supreme Court recognized an even broader extension to the deadline for employees who are unaware of the discrimination against them, the so-called discovery rule. As the Supreme Court specifically noted in footnote 10 of its opinion, “we have previously declined to address whether Title VII suits are amenable to a discovery rule. . . .Because Ledbetter does not argue that such a rule would change the outcome in her case, we have no occasion to address this issue.” In short, since Ledbetter had long known of the facts underlying her discrimination claim, relaxing the deadline for employees who “did not discover” the discrimination until much later would have done her no good.
Thus, it is wrong for the White House to suggest that the Supreme Court sought to bar claims irrespective of whether “the employee did not discover the discriminatory reduction in pay until much later.”
Second, the Supreme Court expressly noted that the plaintiff could have pressed her claim instead under the Equal Pay Act, which has a longer deadline for suing (usually 3 years) and perhaps more generous accrual rules. But her lawyer foolishly failed to preserve that claim, which was a mistake, as he admitted to the Supreme Court. The Supreme Court responded by noting that “Petitioner, having abandoned her claim under the Equal Pay Act, asks us to deviate from our prior decisions in order to permit her to assert her claim under Title VII.”
The Obama campaign and state democratic parties spent much of the 2008 election season attacking the Supreme Court for supposedly creating a rigid 180-day deadline for pay discrimination claims. Those claims were false.
The fact that the Supreme Court rejected Ledbetter’s claim as untimely should not have been a shock to anyone, given that she waited until shortly before she retired to sue, after the supervisor she accused of discrimination had died.
The legislatures are not known for condoning rape but there is a statute of limitations on rape, in most states, and it was intended by the legislature, despite the fact that the purpose of the law was to punish rape.
Victims' Compensation Fund Corporation v Brown (2002) 54 NSWLR 668 (NSW Court of Appeal, Spigelman CJ).
This is NOT the question that court faced. The question was whether subsequent paychecks were discriminatory when several nondiscriminatory wage settings events took place in the meantime. Ledbetter argued that subsequent wage setting was tainted by the knowledge of her wage history. Therefore each paycheck following the subsequent act was a discriminatory act. This is the 'extra' leap which makes this case more subtle than the precedent its critics think makes it so obviously wrong.
To the extent that one can distill purpose and intent from the acts of congress, it would seem that the OBVIOUS intent of congress was to allow suits like Ledbetters, since congress (IIRC) recently passed a law that is specifically contrary to the finding of the majority.
But the job of the judiciary is to enforce the laws as written. It falls to the legislature, NOT the courts, to rewrite the laws to fix such policy errors. And to echo Dilan: anyone who thinks otherwise is obviously motivated by a HATRED of separation of powers.
Uh, different Congress, dude.
That's a nice quote (and a good substantive argument against my position), but the question isn't whether legislation contains compromises and has multiple purposes (it does on both counts) which sometimes have to be vindicated even when they run against the main purpose, but whether limitations provisions should be construed so as to vitiate the cause of action that the legislation was clearly designed to establish.
Imagine two situations:
1. Statute creates cause of action against maker of unsafe product, but says that no action may be brought for any injury that occurred more than 180 days prior to filing.
Smoker smokes for 30 years, gets lung cancer, waits several years as lung cancer gets worse and worse, and then sues. Claim is time-barred.
2. Statute creates cause of action against maker of unsafe product, but says that no action may be brought for any injury that occurred more than 180 days prior to filing.
Smoker smokes for 30 years, gets lung cancer, and files within 180 days of the diagnosis. Conservative majority of court throws out claim on the basis that the "injury" occurred when the smoker was smoking the cigarettes and therefore claim was time-barred.
In situation 1, you can't let that suit go forward on the ground of the statute's dominant remedial purpose, because a subsidiary purpose was to ensure that plaintiffs brought their claims promptly and didn't sit on a claim until it was stale.
But in situation 2, not letting the suit go forward is not consistent with any such subsidiary purpose, and therefore there's no reason to adopt an overly strict construction of the statute of limitations in order to bar a meritorious claim of the sort that the legislature intended to provide a remedy for.
The court did not address when Ledbetter knew of the discrimination, because she never argued that she only discovered it just before she was about to retire. Nor did the court address anything about intentional concealment.
The dissent makes a compelling case... to change the law. Ultimately Congress got the point and did so. I am, however, pleased that the court did not change the law. The law as written did make incremental pay discrimination essentially legal because it could be quite true that one could impose discrimination sufficiently slowly that no claim could ever be proven within a 180-day window. If this is what the statute in is wording allowed, then this is what it should have been held to mean. Policy-wise, the old law was wrong. Legally, though the court did the right thing.
Hard cases often make bad law or unpopular decisions. In this instance, the court wisely chose the latter.
Pee-Wee already explained it perfectly well.
Dilan Esper ALWAYS believes that anyone who disagrees with him is OBVIOUSLY wrong, stupid, evil and full of hatred and self-loathing. Oh, and they're fat, too.
Go back and read his posts on VC if you don't believe me. Or read his own blog.
It's clear to me that the majority not only had the benefit of the Bazemore precedent, but, if it wanted any signal of legislative intent, the Congressional comments on Bazemore in the Civil Rights Act of 1991. It's difficult to overstate that: in the very Civil Rights Act modifying Title VII in response to a SCOTUS decision, the Congress advanced a view that the results of a certain other decision ought to be "generalized" with respect to Title VII, contrary to Lorance. The current SCOTUS declined to do so, instead citing Lorance and providing a rather anemic view, in a footnote, as to why this was not wilfully nonsensical.
I agree with all the reasons that Orin Kerr offers for why "purpose" reasoning is flawed, but you'd better be prepared to make your own purpose arguments nonetheless if you want to serve your clients well.
The real trick is to convince the judges that they want to reach your preferred outcome before you unveil your purpose argument. That way they'll latch onto the purpose that you present with nary a glance at the other purposes that the legislature may have intended.
Except for that whole "unlawful" part, right? An employment decision is only unlawful if it's intentionally discriminatory (in a disparate treatment claim like this one, of course).
Side 1: I think the SoL in this case swallows the rule. This is an absurd result. This makes me super angry, and I think all who disagree with me do so because of their craven evilness.
Side 2: You think all SoL's swallow the rule! Also, your anger proves you are even more wrong. Your super wrongitude means I will never listen to you again.
But when Congress actually mandates an injustice, the courts are not at liberty to ignore Congress' mandate, whatever I might think of the policy issues involved.
I am confused. In the initial comment, you wrote:Do you stick by this earlier statement or not? Yes or no?
I shudder to admit this, but I had a similar thought. Not that I share your cynicism, or that I suspect anything devious in this case, but I don't find it impossible Congress would pass some sort of "placebo" legislation to appease what is considered wrong-headed public opinion.
To me, the statutory construction in Ledbetter was obviously unreasonable, given the remedial purpose of the statute and the fact that Congress could not have intended to create a wage discrimination statute cause of action that would be effectively unavailable.
So yes, I stand by the statement that people who adopt the Ledbetter construction are motivated not by an adherence to the law that Congress enacted, but rather by animus against employment discrimination laws. (By the way, an insufficiently discussed subtext to this is that a fair number of people on the right have never really accepted the legitimacy of Title VII (and other private sector antidiscrimination laws) to begin with.)
But as I said, this conclusion follows from my belief that this statutory construction is entirely unreasonable. If one disagrees with my premise, then the conclusion wouldn't follow in that event.
Since a few people have now raised it, I would think that in the actual situation of Congress passing a law with no teeth, that intention would be rather easy to discern. Indeed, the early proposed civil rights bills in the 1950's were exactly that, with no private right of action to remedy illegal discrimination.
I don't think anyone seriously contends, however, that Congress' intention in passing Title VII was to create an unenforceable and unvindicable right. So this strikes me as at best a theoretical objection.
Do you think congress intended the 180 day period to expire 180 days after an unlawful refusal to hire? Since company's don't usually admit to refusal to hire on the basis of sex, wouldn't the remedy be just as effectively unavailable in that case?
I agree with anon1234. Isn't this like kidnapping somebody and trying to keep him until the statue of limitations run out. Didn't the courts rule against museums holding illegally obtained artifacts in storage without publicizing their existence until the statue of limitations run out? Didn't the act of "hiding" meant the crime was ongoing?
The two situations are different. Usually, if the firm does not hire you, the firm hires someone else, thereby creating a potential point of comparison from which sex discrimination might be inferred.
However, given prevailing confidentiality of salaries, you might not know for years that someone else is being paid more than you are.
However, he never said that, and to claim that he did say that is indeed intellectual dishonesty -- or at best, a level of sloppiness that skips past negligence into malice.
He said that the ruling is wrong because it presumes that Congress intentionally did something nonsensical and absurd, namely, creating a new cause of action and simultaneously making it unreachable. To consider that Congress did that would require considering that Congress expresses, in the same statute, A and not-A. The problem with this is not that the policy expressed is bad but that it is self-contradictory.
After arguing the above, Dilan further asks why anyone would hold this interpretation acceptable. He opines that this holding is motivated by a hatred for antidiscrimination laws, and thus a desire to see them gutted. The willingness of the Court to find a self-contradiction in the statute's intent is explained by the desire of the Court's members that the statute be effectively deleted.
At no point does Dilan argue that the ruling is legally in error because it is bad policy, or policy he doesn't like. He argues rather that it is legally in error because it assumes Congress intended a contradiction. The discussion of hatred of antidiscrimination laws is offered as an explanation of the Court's eagerness to propound that contradiction.
What is the empirical support for the claim that "most people" would disagree with the theory that, as a matter of statutory construction, judges should not gut explicitly guaranteed remedies in civil rights statutes? Based on the Presidential election we just had, one could reasonably say that Americans are not in a "knee-jerk gutting of civil rights" mood.
"Title VII is illegitimate, but I have lost that argument for the foreseeable future;
Instead of declaring Title VII unconstitutional, which I truly desire, I will gut the remedies for it."
This is not only a view held by some; it was a view of Justice Alito's jurisprudence that was articulated in the run-up to his confirmation hearings. Women's groups claimed that Alito's cramped view of the FMLA was indicative of a perspective that discounted women's equality as a valid basis for Congressional legislation.
OBVIOUSLY, that view of Alito is incoherent: It ignores the unanimous rulings in Crawford v. Metro Government of Nashville (06-1595) and Fitzgerald, et vir v. Barnstable School Committee, et al. (07-1125), the latter of which Justice Alito drafted.
Was Alito incorrect? Congress thought so. It just overruled him! But, in any event, Congress has clarified the matter and we are all better off. Thank you, Justice Alito.
Even if that were the case, thought, it wouldn't really matter. Divining the intent of the legislature when interpreting a statute isn't really about determining what the legislature had in mind when it passed statute. The reason for that should be obvious: Congress doesn't have a mind. It has 535 minds. (Or 536 if you include the President.) Instead, its about applying established rules of interpretation to arrive at a legal fiction that we call the intent of the legislature. One of the widely accepted rules is that we are to presume the legislature did not intend a result that is absurd or impossible of execution (despite frequent evidence to the contrary). Consequently, we must presume that Congress intended to do something, no matter how much we suspect they didn't.
I don't understand why you started a thread, simply for the purpose of showing why one of the more inane comments on yesterday's thread was wrong.
I'm not trying to hurt anyone's feelings but Dilan Esper's comment was about the level you'd expect with someone who had no more than a week or two of law school under their belt. I have seen arguments like this made in court on occasion, but never seen them go anywhere.
So as I said, I don't get why you made a whole new post about this. You are usually one of the more levelheaded Conspirators, but something about yesterday's thread really seems to have gotten to you. For example another commenter who was really being a jerk prompted you to feed the troll, rather than ignore or delete him, which I guess is fine but don't understand your complaints of how he "treated" you.
I'm not criticizing, just observing that the thread seemed to have bothered you, whereas you are normally unflappable. Maybe you were having a bad day and internet cranks set you off. It happens. While your analysis in today's post is correct, you can do better than to cast these pearls in the face of such arguments. Anyhow, I'll look forward to your next post.
As for "ongoing," as I pointed out before, and as Shelby has pointed out, if it's "ongoing" to pay someone a lower salary in each pay period, then it surely must be "ongoing" to not pay someone at all in each pay period. So by Dilan's "logic," after a discriminatory firing, each pay period in which one doesn't receive a paycheck is a new (or "ongoing") offense, with a new SoL period.
I find your perspective truly incredible, but thank you for answering the question.
Dialing,
I thought it was interesting because (a) it's one of those classic issues of statutory interpretation, and (b) Dilan is a regular commenter and a practicing attorney, not just a troll. Don't worry, though, I don't plan on selecting lots of blog comments for close scrutiny in the future. Just thought that one was interesting.
If the victim of discrimination gets a 2.5% raise and every man gets at least a 3% raise, and we understand that discrimination is at play, the victim may not know what happened for a period exceeding 180 days. It's not just the unlawfulness that's unknown; it's the fact of preferential treatment.
Your argument still doesn't distinguish. If the victim of discrimination doesn't get hired, and a male applicant does instead, the victim has little if any way of determining within 180 days that she was not hired because of her sex. She knows she wasn't hired, but she has no way to know about the unlawful motive.
Of course, if a court were to use this analysis in an opinion, it would have to take an extremely cynical view of the law's purpose. Typically the courts don't like to express such a low opinion of Congress.
I should say it's not just the unlawfulness that is unknown; the very fact of the pay disparity is often unknown at first, whereas the fact of not being hired is pretty clear. And that's the heart of the distinction. (While the preferential treatment here is the unlawfulness, are there cases in which preferential treatment is not unlawful? I think so.)
And I believe the unlawfulness of a hiring decision can be more reasonably discovered in 180 days than the unlawfulness of a pay decision, because while the deliberation before hiring is not disclosed, who gets hired is obvious. Whereas the deliberation and the results of pay raise decisions are both private.
I think the way we're talking about the issue, we've shifted from law to policy. And don't you think it's bad policy to shield employers from legitimate claims based on the statute of limitations, if the truth and legitimacy of the claims often emerge only over time?
The floor is wet.
The floor is obviously wet.
Which one appears to leave room for doubt?
Not with NO teeth, because that would be politically easy to show, but merely with a weak bite. Besides, this 180-day rule did not "gut" the whole of Title VII. There are thousands of Title VII cases in the courts right now with no statute of limitations problems whatsoever. Ledbetter concerned a very discrete circumstance where the claimant was trying to equate one kind of discriminatory conduct (the performance reviews) to another (lower pay) without being able to make the connection. Perhaps part of that is the fault of Ledbetter's lawyer. Heck, there are a lot of appellate cases out there that would come down differently if the appellant came up with the right issue to appeal. Perhaps if her lawyer could do it over, with the benefit of hindsight, the result would be different. But here, the Supreme Court was given a narrow question and they answered it within the contours of the statute provided. If Congress doesn't like that result, change the statute. Don't like how long that takes? Tough. Go to a dictatorship if you like your lawmaking swift. Just be prepared for some trade-offs.
Folks are arguing an action/inaction on payday based on an unlawful falure to grant a raise constitutes a new unlawful practice, but that an acttion/inaction on payday based on an unlawful failure to here doesn't. And that the distinction is so clear in the statute that its unreasonable to see it any other way.
Since this distinction isn't in the statute, can you please explain why it's so clear that it doesn't need to be?
(Sure, there are some jobs where you would know: if you're being hired for, say, a retail sales position, you might see who got the job simply by walking past the store. Or if it's a very prominent position in some other way. But most jobs, by definition, aren't prominent. How would I know who got the programming job I got turned down for? Or the job as a law firm associate?)
But even if I do see who got the job, how does that tell me whether I was discriminated against or whether they merely chose someone else? How do I find out about their motive within 180 days?
I don't think that has anything to do with the Ledbetter case, though, both because there's evidence that she did know and because, in any case, she never argued that the SoL ought to be tolled on such grounds.
The problem with that statement Sasha is that it doesn't fit the facts of the Ledbetter case. She KNEW about the discrimination some 2 years before she filed suit, and so never argued that the limitations clock should start from when she found out (a valid argument).
Ledbetter didn't fail to take advantage of a hypothetical rememdy, she COULD NOT take advantage of it because she KNEW about the discrimination two years prior to her filing suit.
Dilan wins.
I have yet to see any of Dilan's arguments about the law seriously refuted by any practicing lawyer, only discounted by those with an obvious political bent.
Pretty impressive.
For some reason, the court construed the ADEA to apply only to people over 40 years old, rendering the remedies completely ineffective. Obviously, the Court's interpretation was based on a political bent from their dislike of age discrimination laws. I can only hope in the new land of Hope and Change that this law will be amended to overturn the gutting of the ADEA's remedies.
Suggest you try harder.
This argument helps prove PLR's point here.
Because, quite frankly, it is ludicrous to suggest that the interpretation of "unlawful employment practice" in Ledbetter is similar in any way whatsoever to the interpretation of the minimum age requirement for a plaintiff under the ADEA.
PLR, I have yet to see any argument which relies upon "obvious political bent" hold water. "Political bent" is irrelevant and is the coup de gras of ad-hominems. If you want to address the argument, fine. But attacking "political bent" is just silly and gets us half way to Godwin's law.
If anything, Dilan's comments shows us that asserting what another person's "OBVIOUS" intentions are is just lame, not to mention pointless.
The claim that Ledbetter somehow made Title VII's remedies ineffective also is addressed above.
I agree. Divining is probably an appropriate word to use.
Just 5 supreme court justices.
Let's assume for the sake of argument that when Congress originally wrote the law, they DID intend the Supreme Court's interpretation. Couldn't they have written the law this way? Yes. So all the work is being done not by actual textual analysis, but by guessing what they must have intended.
One other point: neither Dilan's original comment in OK's original post, nor what PLR quoted, relies on the actual language of the statute. Instead, both talk about remedial purpose, social problems, etc., while ignoring that laws always have limits on how far they go to address those problems.
The ADEA example simply proves this point more clearly than other laws, that yes there are limits to remedial statutes with remedial purposes. I'm sure there are people in the 35-39 age range that are fired because of age discrimination, but they have no remedy even though Congress pass a comprehensive, remedial statute to combat age discrimination.
There may be very good arguments that the Supreme Court misinterpreted "unlawful employment practice," and of course there are arguments that its interpretation was correct, but whether textualism was properly applied in Ledbetter isn't at issue in either the original post or PLR's post to which I responded.
begging the question
So far, nobody (including Orin) on this thread, or elsewhere as far as I've seen, has advanced an actual, remotely compelling argument for 1, 2, or 3. Granted, it isn't an issue that I've been following with any effort.
His logical errors begin in his first post:
This phrasing implies several specifics which are either false or are opinions not necessarily shared by the passing legislature. These very specifics (false or not applicable opinions) in turn drive his conclusion and his inability to understand how anyone could disagree with it.
1. He states the SOL guts the statute. What evidence does he provide that the statute does not perform the function the legislature intended, which would seem to be allowing suits in a limited, narrow range? None.
2. He states that the limits as enacted "make it impossible for people to actually sue for wage discrimination". This is simply false; the people who meet the limits can sue while those who don't cannot.
Why does he assert these opinions and incorrect facts? Only he can answer that with certainty, but presumably because he thinks the statute should have a wider scope, a policy preference. Once you correct the phrasing you see it no longer makes any sense at all, as here:
Why not? Isn't this exactly what legislatures do?
Let's follow a few more:
Another false conclusion arrived at by relying on the false assertion that the statute limits all lawsuits.
Congress didn't propose making it impossible to sue, the proposed and passed a bill with limited rights to sue. I suggest the votes to overturn exist because liberals do not fear having their legislative policies overturned by the bench. Since they do not fear the effects they don't see any need to set a high standard for use of the tool.
So now that we understand his conclusion to be based on errors and policy differences this assertion has no basis whatsoever.
More nonsense, but it does reflect how eager some people are to defend liberal bench lawmaking. Here the court upholds the exact terms of the legislature only to be accused of bench legislation. True bench legislation would occur if a court tried to eliminate the limits set by the legislature because they thought the policy shouldn't include them.
The rest of Dilan's posts include much more of the same. He needs to consider the implications of his statements. Analytic statements are the foundation of your conclusion. Any concusion reached is subject to every error and assumption included. He doesn't seem to understand that an error negates the concusion. Even worse he doesn't seem to understand when he is making an assumption.
I see a future political activist. When you have to support contradictory policies the inability to think logically is a required competency.
Actually, I don't need to prove it wrong. We agree that the legislature defined the limits narrowly.
You make two observations:
1. The SOL will prevent potential lawsuits which do not meet the SOL requirements.
2. The number of potential lawsuits which do not meet the SOL may be larger than those which do.
What conclusion do you think follows from this tautology and prediction?
That leads me to believe that Congress screwed up, not that the Court screwed up. What, is it impossible for Congress to miswrite a law? And is the Court responsible for fixing legislation, or for ruling on it as written?
So, you assume that nobody on this comment thread is a textualist; that everyone accepts the legitimacy of intentionalism and/or purposivism; and (since lots of people are using textualist arguments, while effectively none are using anti-wage discrimination arguments) that everyone arguing against you is putting forth arguments they don't believe, just to placate you. That's some pretty serious conspiracy theory-spinning.
2) In fact, "discovering" the discrimination was simply not the issue. Nobody, including the Supreme Court majority, argued that inability to discover the discrimination within 180 days foreclosed the lawsuit.
3) Assuming for the sake of argument that it would be "the exception rather than the norm," so what? You're making the same error Dilan is: petitio principii. You can't assume the law is supposed to have a broad effect and therefore claim that any provision which prevents the law from having a broad effect defeats the law and therefore must not be a proper reading of the law.
4) In fact, pay discrimination claims are only one category of Title VII actions, and a relatively small one at that. So it would not be "the exception rather than the rule" that Title VII actions would be foreclosed by the Court's reading.
Had you gone about doing that rather than trying to prove yourself smart and to call people out, if you had just made that argument to Dilan Espar's point in the first place - nicely - someone would have made the rebuttal and Dilan could respond.
What is the purpose or intention of the SOL in the bill?
But, I think Dilan's main point, about statutory construction, to be a rather commonplace argument, frequently used by courts and attorneys. "The purpose of the statute is X. My construction of the statute is consistent with and better fulfills the purpose of X than my opponent's. Ergo, the court should adopt my construction." Am I missing something? I am not sure why it is deemed worthy of a blog posting, except to revive a debate about the proper method of interpreting statutes.
Well, Alito's brief mentions that Title VII charges "must be filed within a specified period (either 180 or 300 days,depending on the State) 'after the alleged unlawful employment practice occurred,' ibid., and if the employee does not submit a timely EEOC charge, the employee may not challenge that practice in court." So the question becomes whether or not the remedy provision is extended when the plaintiff receives a payment whose only discriminatory effects result from a discriminatory act made beyond the statute of limitations. According to the recordings in Alito's brief (again), the answer is clearly "no," based on precedent. Example: United Air Lines, Inc. v. Evans, for which Alito records that "We concluded that the continuing effects of the precharging period discrimination did not make out a present violation." He draws on other, similar cases like Delaware State College v. Ricks and Lorance v. AT&T Technologies, Inc. And Bazemore regarded the specific case of a discriminatory pay structure causing fresh violations, which clearly wasn't the case in Ledbetter, so it's not applicable. Between those precedents, it's pretty clear that the present effects in the bank book of a past discriminatory act do not constitute a fresh discriminatory act reopening the statute of limitations, which means that Ledbetter had half a year to file her charges. Fair or not, it's the law.
Ginsburg contends that pay disparities are different from the precedent because the victim may only notice the disparity when it grows large, later; but that argument fails, because the SoL is stated to count off from "the alleged unlawful employment practice" and not from the time of discovery. Ginsburg's statement is thus a fine example of the sort of intentionalism Dilan attempts to use, which entails interpreting the law in a way the text does not support at all, in order to respond to some sort of mythical Congressional intent. That's the action Orin lampshades in the OP (albeit with regards to purposivism rather than intentionalism).
IOW, the answer to Dilan Esper's question is pretty clearly the #2 which you stated: there is no reasonable alternative interpretation of the statute of limitations than the one the majority gave. That would, I suppose, also validate the third reason you gave, which is that the cutoff for the remedy provision is properly in place...except that the SCOTUS' job isn't to determine whether the cutoff is proper, but rather simply if it's there. CONGRESS figures out whether the cutoff's supposed to be there, which it did quite adequately by passing this most recent amendment to the statute.
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