Tagged: context
read actor JESSE WILLIAMS’ tweets on race & rioting!
I consider Jesse to be our modern day Harry Belafonte! So intelligent, wise and well-spoken!! Bravo!!
Source: Joanna Rothkopf. ““There is nothing ‘black’ about rioting”: Actor Jesse Williams Unloads On Baltimore Critics In passionate Twitter essay.” Salon. April 28, 2015. http://www.salon.com/2015/04/28/so_exactly_what_kind_of_violence_dont_you_like_actor_jesse_williams_baltimore_rant/.
“[Chief Justice John] Roberts’s ‘colorblindness’ bears only a superficial resemblance to the concept as understood by past champions of equal rights, since as applied by the conservative majority on the court the approach has had dire consequences for racial minorities. Since Roberts became chief justice, the high court has struck down school desegregation plans, narrowed affirmative action, crippled the Voting Rights Act, limited the circumstances under which Americans can sue for racial discrimination, and enabled the denial of health insurance to millions of financially struggling people of color. Though the opportunity has not yet presented itself, the conservative movement from which Roberts sprung would see the Civil Rights Act of 1964 and the Fair Housing Act of 1968 destroyed as well.”
With regards to civil rights related cases, especially those involving the rights of African Americans, it is clear that our judicial system is completely rigged and set up in a way that would ensure that many of the gains made during the civil rights movement, would be eviscerated over time while racism continues to thrive. Smdh.
Source: Adam Serwer. “Sonia Sotomayor: Court’s Right Wing ‘Out Of Touch With Reality.’” msnbc. http://www.msnbc.com/msnbc/sonia-sotomayor-slams-supreme-court-right-wing-race-matters.
Where is my evaluation from Jim Griffin?
“Why are the federal courts so hostile to discrimination claims?”
Each year, the United States District Court for the District of Massachusetts holds an extraordinary panel. All active judges are present to answer questions from the bar. A lawyer’s question one year was particularly provocative: “Why are the federal courts so hostile to discrimination claims?” One judge after another insisted that there was no hostility. All they were doing when they dismissed employment discrimination cases was following the law—nothing more, nothing less.
I disagreed. Federal courts, I believed, were hostile to discrimination cases. Although the judges may have thought they were entirely unbiased, the outcomes of those cases told a different story. The law judges felt “compelled” to apply had become increasingly problematic. Changes in substantive discrimination law since the passage of the Civil Rights Act of 1964 were tantamount to a virtual repeal. This was so not because of Congress; it was because of judges.
Decades ago, law-and-society scholars offered an explanation for that phenomenon, evaluating the structural forces at work in law-reform litigation that lead to one-sided judicial outcomes. Focusing on employment discrimination claims, Marc Galanter argued that, because employers are “repeat players” whereas individual plaintiffs are not, the repeat players have every incentive to settle the strong cases and litigate the weak ones. Over time, strategic settlement practices produce judicial interpretations of rights that favor the repeat players’ interests. More recently, Catherine Albiston went further, identifying the specific opportunities for substantive rulemaking in this litigation—as in summary judgment and motions to dismiss—and how the “repeat players,” to use Galanter’s term, take advantage of them.
In this Essay, drawing on my seventeen years on the federal bench, I attempt to provide a firsthand and more detailed account of employment discrimination law’s skewed evolution—the phenomenon I call “Losers’ Rules.” I begin with a discussion of the wholly one-sided legal doctrines that characterize discrimination law. In effect, today’s plaintiff stands to lose unless he or she can prove that the defendant had explicitly discriminatory policies in place or that the relevant actors were overtly biased. It is hard to imagine a higher bar or one less consistent with the legal standards developed after the passage of the Civil Rights Act, let alone with the way discrimination manifests itself in the twenty-first century. Although ideology may have something to do with these changes, and indeed the bench may be far less supportive of antidiscrimination laws than it was during the years following the laws’ passage, I explore another explanation. Asymmetric decisionmaking—where judges are encouraged to write detailed decisions when granting summary judgment and not to write it—fundamentally changes the lens through which employment cases are viewed, in two respects. First, it encourages judges to see employment discrimination cases as trivial or frivolous, as decision after decision details why the plaintiff loses. And second, it leads to the development of decision heuristics—the Losers’ Rules—that serve to justify prodefendant outcomes and thereby exacerbate the one-sided development of the law.
Great article by Nancy Gertner [not a woman of color]. This is what happens when the federal courts have intentionally been filled with ideologically conservative, white male, Republican appointed federal judges, particularly since Ronald Reagan became president 34 years ago. Below is Gertner discussing this topic at the New York Law School’s Symposium titled “A View From the Bench — The Judges’ Perspective on Summary Judgment In Employment Discrimination Cases.” [go to the 38:38 mark]
Major reform is needed — not only to strengthen the Civil Rights Act of 1964, but to develop structural mechanisms that will eliminate racist and corrupt judges who intentionally ignore the law and deprive plaintiffs in employment discrimination cases of their right to a jury trial under the color of law.
Source: Nancy Gertner. “Loser’s Rules.” The Yale Law Journal Online. October 16, 2012. http://yalelawjournal.org/the-yale-law-journal-pocket-part/procedure/losers%E2%80%99-rules/
one of Bross’ reasons why “individual plaintiffs in Title VII actions for disparate treatment should be able to shift the burden of production by demonstrating the defendant had a pattern-and-practice of discrimination.”
The first reason why plaintiffs should be afforded the right to shift the burden of proof by using evidence of a pattern-and-practice of discrimination is that it is consistent with past case law. In Teamsters, the Supreme Court acknowledged that past cases have made it “unmistakably clear that ‘statistical [evidence has] served … an important role’ .. . in which the existence of discrimination is a disputed issue” and is “competent in proving employment discrimination [cases].” Furthermore, “[i]n many cases the only available avenue of proof is the use of … statistics to uncover clandestine and covert discrimination by the employer.” In a footnote, the Supreme Court explained that, “absent explanation, it is ordinarily to be expected that nondiscriminatory hiring practices will in time result in a work force more or less representative of the racial and ethnic composition of the population in the community from which employees are hired.”” “Statistics showing [a distinct] racial … imbalance … [provide] a telltale sign of purposeful discrimination.’
Case law has supported the fact that the significance of the McDonnell Douglas method does not lie in its “specification of the discrete elements” required to prove a prima facie case. McDonnell Douglas indicates “that any Title VII plaintiff must carry the initial burden of offering evidence adequate to create an inference that an employment decision was based on a discriminatory criterion illegal under the Act.”‘ Thus, “[a]s in any lawsuit, the plaintiff may prove his case by direct or circumstantial evidence,” as long as the evidence creates an inference of discrimination. As stated in Teamsters, statistics can “create a greater likelihood that any single decision was a component of the overall pattern”‘ and are a “telltale sign of purposeful discrimination.”‘ Furthermore, “proof of a discriminatory pattern and practice creates a rebuttable presumption in favor of individual relief [which] is consistent with the manner in which presumptions are [normally] created.” As a result, the plaintiff should not be denied the ability to demonstrate a prima facie case solely through evidence of a pattern-and-practice.
Source: David J. Bross. The Use of Pattern-and-Practice By Individuals in Non-Class Claims. 28 Nova L. Rev. 795, 809-810. 2003-2004.