Today's Washington Post notes that the Supreme Court does not appear to be as "pro-business" as it had a year or two ago. After the Court rejected Lily Ledbetter's pay discrimination claim and slashed the punitive damage award against Exxon for the Valdez oil spill, many commentators claimed the Court was "pro-business." Since then, however, the Court has often gone the other way, rejecting corporate claims that federal regulations preempt state tort suits in Altria v. Good and Wyeth v. Levine and siding with employees in several discrimination suits. I don't think this means the Court has shifted all that much. Rather, as I told the Post, it illustrates that much of the talk that the Roberts Court is a "pro-business" court was premature. And while the Roberts Court is still a work in progress, the pattern of decisions to date defies such simplistic labels.
Is the Roberts Court Still "Pro-Business"?
Your analysis is more complete, but doesn't fit within the space limitation of most news stories.
raimo1@hot.ee
Österreich Krise
Österreichs Ruf als Schuldner steht auf dem Prüfstand. Die Alpenrepublik will in dieser Woche ihre bis 2014 laufende und 2 Milliarden Euro schwere Staatsanleihe um eine halbe Milliarde Euro aufstocken. Dieser Betrag sollte leicht auf dem Anleihemarkt einzusammeln sein. Allerdings ist Österreich ins Gerede gekommen. Das liegt an der tiefen Rezession in weiten Teilen Osteuropas. Dort haben österreichische Banken Forderungen von 280 Milliarden Dollar - eine Zahl, die dem österreichischen Bruttoinlandsprodukts nahekommt. Wegen der wachsenden Schwierigkeiten osteuropäischer Schuldner, ihre Kredite zurückzuzahlen, sind die Bedenken der Anleger mit Blick auf die Kreditwürdigkeit Österreichs und seiner Banken in den vergangenen Tagen gewachsen.
Ein Indiz für die Skepsis ist die Renditedifferenz zwischen österreichischen Staatsanleihen und deutschen Bundesanleihen. Noch nie war sie so groß wie derzeit. Für zehnjährige Laufzeiten zum Beispiel beträgt die Differenz fast 1,4 Prozentpunkte. Bundesanleihen rentieren mit 2,9 Prozent, österreichische mit immerhin 4,3 Prozent. Auf dem zu Übertreibungen neigenden Markt für Kreditausfallversicherungen (CDS) ist die Diskrepanz zwischen Österreich und Deutschland sogar noch größer. Die Aufstockung der österreichischen Staatsanleihe ist daher keinesfalls Routine.
By "your analysis", you mean his summary of the Washington Post's story entitled "Court Defies Pro-Business Label"?
By "your analysis", you mean his summary of the Washington Post's story entitled "Court Defies Pro-Business Label"?
Who's trying to shoehorn facts in to a narrative now?
Your claim about the MSM is belied by this very post.
Who dissented in Wyeth? Scalia, Roberts, and Alito.
Well, the MSM, and more directly ideological media elements along with bloggers on both extremes, all discuss court decisions in this manner, with some being worse offenders than others. "Conservative" and "liberal," like "pro-business," are often crude shorthands, but do contain some useful descriptive power.
Further, what a policymaking court like the Supreme Court does is largely legislative in character, though a very specialized and limited sort of legislating. Most of its decisions are policy-oriented and do not follow entirely, perhaps even mostly, from application of legal syllogism. Depending on the justice and the topic of the case at hand, their work at times may look more like one kind of work (legislative) than the other (traditional meat-and-potatoes 'legal work').
These kinds of descriptors used by the media are valid, if sometimes overdone. Perhaps lawyers resist their use because it hits a little too close to home?
For example, the removal of the per se ban on retail price maintenance probably hurts some manufacturers and retailers and probably helps others, just as maintaining the per se ban would probably hurt some and help others.
To push the point perhaps even further, take the Ledbetter decision. If one agrees for the sake of argument that the Court majority was simply interpreting the relevant statute as it was written, the decision was not necessarily pro or anti business, except in the general sense that business benefits when the rule of law is clearly stated. But then, the argument can be made that we all usually benefit when the rule of law is clear.
Re Ledbetter, sure, if we agree that the statute was clear, then it's not a "pro-business" [or anti-worker] decision. But it's hard to say the statute was clear. A bunch of Circuit courts had been using a different rule, there was, of course, a multiple-justice dissent. . . .
Your point is plausible enough: much of what I said about Ledbetter depends on what we assume for the sake of argument. (Disclosure: I haven't even read the decision, just read about it in the news.)
I still think (and perhaps this doesn't necessarily address your point) that when people say that such and such a court or such and such a policy is "pro-business," they mean that it conforms to some a priori notion of what constitutes what's good for business. And yet, some businesses do well under "anti-business" decisions/policies and some do poorly under "pro-business" decisions/policies.
Likewise, if something is "good for the Democrats," that doesn't mean it's good for every individual Democrat. If the Democrats won another 10 Senate seats, that would be good for the Democrats, but not good for Senator Landreau (D-LA), since her now-critical vote would become much less important in reaching the magic number of 60.
I am a Capitalist to the core. The Ledbetter decision seems indefensible to me. basically the court said if your employer is successful in hiding their discriminatory practice beyond the statute of limitation they get away with it.
The recent Wyeth decision makes even less sense. The plaintiff lost her arm due to hospital error. The hospital worker violated multiple warnings not to administer the drug in that fashion. Is Wyeth supposed to place a monitor in every hospital pharmacy to give a warning to each person who comes to get the drug? What labeling law did Wyeth violate? Every time I read about this decision it makes my head hurt. It just makes no sense on any level.
Statutes of limitation are generally accepted everywhere as being part of a fair system of law. Aside from the mundane consideration that time dulls what we can learn about the facts, there is positive value to being secure that you won't have events from the distant past dredged up. The price of that assurance is that some legitimate grievances will be barred. Where one draws the balance between security and accuracy on the one hand and equity on the other is a matter of degree.
I have to agree with Oren. You can do some basic tinkering with how long the period is, or when the period starts to count down. And for the most serious crimes (murder, and some cases of rape) there is no statute of limitations.
Well, you should take that up with the jury who decided it in the plaintiff's favor. The Wyeth decision is not about the facts of the case; once the jury decides those, they almost always stick.
The question in Wyeth was whether or not FDA approval of labels giving warnings about effects of drugs bars lawsuits under state law claiming inadequate warnings of a health risk.
The jury had already decided, however they did it, that the label was inadequate under Vermont state law. So the question was whether or not the Vermont state law was preempted by the FDA. The Court ruled that it was not.
So if you're concerned that the facts don't warrant a finding of negligence (and the accompanying $6.7 million dollar award against Wyeth), then you need to talk to the jury, not the Court.
My understanding is that the Equal Pay Act of 1963 was not at issue in the decision, but Title VII of the Civil Rights Act of 1964. Ironically, before the Ledbetter Fair Pay Act but after the decision, business were probably if anything more likely to see people rely on the EPA.
Some people criticized Ledbetter for not filing under the EPA but the EEOC Title VII, as the EPA has more lenient statute of limitation requirements. I still can't figure out if they felt that the EPA statute was some proper guide to interpreting EEOC Title VII or if they just wanted to score points against Ledbetter rhetorically by pointing out that of the two remedies available to her, Ledbetter chose one and not the other.
Either way, in my opinion the really 'pro-business' moment of Ledbetter came when the majority quoted approvingly from Lorance -- whose results Congress had nullified through an amendment to Title VII in 1992. Ginsberg averred that this was a questionable practice, and a footnote in the majority basically answered that the verdict hadn't been overturned.
So will this Court quote Ledbetter in a future Title VII case. And if it does, can we call that moment pro-business?
2.The Court's decision said absolutely nothing at all about "hiding" anything. Ledbetter's attorney never argued for a discovery rule which might toll the statute of limitations. Nothing in the Court's decision precluded lower courts from implementing such a rule.
In any case, it's hard to see how that would make the decision "indefensible." The entire function of a statute of limitations is to cut off otherwise-valid suits. The Court's role is not to second-guess that policy question. If Congress doesn't want a statute of limitations, it doesn't have to create one.
3.The problem with that argument is that Congress had done no such thing in 1992. Congress does not "nullify results." Congress can change the law, but that doesn't retroactively make a court decision incorrect. Lorance said that Title VII means such-and-such. Congress's reaction, amending the law, is not the equivalent of saying, "No, it doesn't mean that"; rather, it changes the law. All well and good, as far as it goes. But Congress only changed Title VII with respect to the category of acts to which Lorance related, not to the ones at issue in Ledbetter. Hence, Lorance still provides guidance as to what the relevant provisions of Title VII mean.
Ginsburg was grandstanding. She ignored all the other decisions cited by the majority so she could make the bogus argument that Lorance had been overruled.
Thanks for clarifying the EPA filing. I'd read that she filed under both, but I also knew her lawyer was criticized heavily for a failure to file. I knew there was a discrepency in there -- hence I prefaced everything with a "my understanding is that ... " -- and it's nice to see the full story.
But I still have to disagree with your assessment of my post and of Ginsberg's point. I deliberately chose the language "nullify result" rather than "overturned" because the logic and verdict of the case had not been overturned, but it's resulting effect on Title VII had indeed been nullifed through an amendment. I understand your argument that nothing is "nullified" if the law itself has changed, but I would answer that if the result of a case has been rendered void or not "effective", per Ginsberg, it is of course fair the describe it the result as nullified even if you allow that the decision is not therefore incorrect.
In fact, I didn't imply that it made Lorance incorrect given the statute and the facts of that case. I even mentioned Alito's correct if anemic footnote that the result had not been overturned, just rendered moot by change of law.
As for Ginsberg, she did not argue that the case had been overruled. Don't you think that a suggestion that she did so would need to at least cite her language, since Justices are not in the habit of saying that legislative amendments overrule judical opinions? She said reliance on Lorance was "perplexing" because it was no longer "effective" and noted that the Congresss had declared "'the harsh reality of that decision [...] glaringly at odds with the purpose of Title VII.'" Of course, legislative purpose is its own tangle. But I do not think that it passes muster to say Ginsberg disingenuously argued that Lorance was overturned, anymore than parsing the words "nullified result" serves to suggest that I said it was overturned.
Rather, she pointed out that in amending the Civil Rights Act, the legislature explictly declared a desire to "generalize" the result of Bazemore in applying its logic vis-a-vis pay periods to a case like Lorance.
I understand your more complicated claim that Lorance involved an advancement system and Ledbetter a pay decision, so Lorance is not rendered moot as precedent to a different category of facts, but Congress with some awareness of this wrote that "this legislation should be interpreted as disapproving the extension of Lorance to contexts outside of seniority systems" (from the Sponsor's Interpretative Memorandum on the 1991 Act). That would suggest a strong incentive for the Court to not seek guidance for this case.
The intent and letter of the 1992 law, though a thorn in the side of the straining Ledbetter majority, was clear -- it sought to render Lorance moot and limit its application to other sets of facts. While doing so, it advocated for "generalizing" the determination of Bazemore beyond its original fact pattern to an entirely separate case not involving race or pay structures, but hiring structures and sex -- like Lorance.
The majority may not like it, but the 1992 Act gives that section of Ginsberg's dissent a great deal of force. Neither she nor the other three justices who dissented meant to grandstand in noting that Congress expressly meant to "disapprove the extension of" Lorance and "generalize" Bazemore beyond its initial category of fact. That after the court did exactly the opposite, Congress saw fit to amend the law once again, should be no surprise. Additionally, other sections of her dissent were rather facile in illuminating the quality of the Goodyear offense, and how the self-perpetuating, recurring nature of its discriminatory decision was at odds with the idea of allowing the SOL to foreclose filing.
The consumer/victim side of civil cases is playing deep on their own side of the field. And even biased refs will sometimes flag an obvious pass interference penalty.
If you are taking Washpost as being typical of the "MSM", then you've already made one mistake. If you then compound the error by pretending it zeroes out all the OTHER articles that take the opposite, "preferred narrative" position then you are just being dishonest.
The question of whether the court is "pro-business" depends on how many close cases where reasonable minds can differ wind up on the "pro-business" side. I think Ledbetter counts as "1" in that category. Which is certainly not dispositive of the larger question, but is some evidence.
More importantly, the majority merely mentioned Lorance in passing, along with Evans, Ricks, and Morgan, not to mention Machinists, and Ginsburg essentially ignores those other cases and claims that the majority "extensively" "relies upon" Lorance. I have no idea how Ginsburg could claim that the Ledbetter case did not involve "discrete acts" if Evans, Ricks, Morgan and Machinists did; Ginsburg (as the court noted) is "coy" about that.
Sometimes. Other times, the Court has said "Congress did not make it clear that they wanted to do X" (where X is the sort of thing that requires a clear statement, such as overriding state law) and Congress comes back say "we thought it was clear the first time so here it is again spelled out more clearly".
Of course, just as often as the Court misconstrues Congress' intent when writing a law, so too does Congress pass laws that are ambiguous, opaque or otherwise insufficient at determining intent what is meant (the Lautenberg "domestic violence" case comes to mind -- the main point of the Court's opinion is that the dissent's interpretation would gut Congress' purpose).
RBG was right to point out that Congress can fix it errors much more readily than the Court can and that it should keep an eye on the Court's conclusions about Congressional intent.
Justice Thomas has written several dissents over the years where he has emphasized that what he thinks would be good public policy isn't necessarily what the Constitution requires. What a thought: the Court might follow the Constitution and law, not what they think as superlegislature would be good.
those are nice thoughts, if you accept the premise the Constitution always, or even usually, sets forth an ascertainable rule that can be discerned in a given case before the Court.
What does the Constitution say about whether unequal pay constitutes a new injury at each unequal paycheck?
"This unprecedented “spread” in the cost of money makes it unprofitable for any lender who doesn’t enjoy government-guaranteed funds to go up against those with a favored status. Government is determining the “haves” and “have-nots.” That is why companies are rushing to convert to bank holding companies, not a course feasible for Berkshire.
Though Berkshire’s credit is pristine – we are one of only seven AAA corporations in the country – our cost of borrowing is now far higher than competitors with shaky balance sheets but government backing. At the moment, it is much better to be a financial cripple with a government guarantee than a Gibraltar without one."
Page 12 from letter captioned:
BERKSHIRE HATHAWAY INC., To the Shareholders of Berkshire Hathaway Inc.:
Dated February 27, 2009, from Warren E. Buffett, Chairman of the Board
www.berkshirehathaway.com/letters/2008ltr.pdf
If the question is simply not answerable based on the Constitution or the statute, there may be legitimate reasons to take one side or the other--but simplifying this down the "pro-business" suggests that there is an oversimplification going on.
In the case of Ledbetter, the law as Congress enacted just isn't sufficient to decide the issue. The result is a Rorschach test of how you think public policy ought to work.
I think Ledbetter is an apt example of where the statute is unclear. It's quite reasonable to think that each instance of unequal pay is a distinct injury that resets the statute of limitations. If I punch you today, then again every two weeks for a few years, it would be hard to argue that each subsequent punch does not constitute a novel tort.
I'm not saying the court's interpretation was wrong, only that it's a quite colorable question that the statute does not unambiguously answer. Given that Congress' language was insufficient and their intent indiscernable, I'm actually quite fine with the Court's conclusion. Just don't pretend like that was the only reasonable conclusion one could draw.
The meaning of the statute at issue in Ledbetter was not in fact clear. The same is true for most of the cases the Supreme Court decides. They are not entirely out of the error-correcting business, but it's now a small part of their work. Most of their cases, including Ledbetter, are cases where conventional legal materials and methods of reasoning simply don't provide a definitive answer.
I'll concede that Ginsburg overstated the extent to which the majority relied upon Lorance. That so many people reported the case as an extension of Morgan, and not a strange ressurection of Lorance, pretty clearly illustrates the point.
But I will note that you're objecting to Congressional "handwaving (I'd describe it as "clearly signalling scope and intent") and further objecting to judicial "handwaving" which comports entirely with the cleanly stated legislative opinion as to scope and intent.
The Court majority certainly had room to apply Morgan but I feel it was incorrect as a matter of interpretation to dismiss Bazemore with a relatively weak attempt to distinguish; if Bazemore were given its proper place as precedent here, the case could not be seen as a smooth furthering of the Morgan precedent.
As an example of the Court's confused priorities, Alito at one point quotes from Evans and says he feels it would be difficult to speak more directly to the point. But in making that determination he was applying a firing, rehiring, and advancement issue, for which the offense at issue was an illegal firing, to a case that involved the legacy of discriminatory pay decisions and the determination of "discrete acts." Bazemore spoke to exactly those issues, but apparently strayed further from the point than Evans. (And this is not an observation of law, but Evans' author dissented with Ginsberg, for what that's worth.)
(And this is not an observation of law, but Evans' author dissented with Ginsberg, for what that's worth.)
you should 've quit @ your 5.56am post :)
But thanks, Segur. Now I'm sure to get Gensburgge's name right.
Maybe I could be forgiven on account I seem to be confusing her with a radical leftist poet, and many on this thread would agree that she makes the same mistake?
If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.
Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.
We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.
And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.