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Important Disparate-Impact Decision in the Second Circuit

• July 31, 2012 • 11:18 am

A recent decision by the Second Circuit, M.O.C.H.A. Society, Inc. v. City of Buffalo, upheld the City of Buffalo’s examination for firefighter lieutenants against a disparate-impact challenge brought under Title VII of the 1964 Civil Rights Act.  The opinion was written by Judge Raggi and joined by Judge Walker, with Judge Kearse dissenting.  The conclusion does a good job of describing the scope of the opinion, so I’ll just quote it:

  1. On plaintiffs’ disparate impact challenge to the 1998 examination, the district court did not clearly err in finding that, despite the lack of direct evidence pertaining to the Buffalo Fire Department, Buffalo carried its burden to demonstrate the examination’s job relatedness by showing that the test derived from a valid statewide job analysis indicating that fire lieutenants across New York performed the same critical tasks and required the same critical skills.
  2.  On plaintiffs’ disparate impact challenge to the 1998 examination, the district court did not clearly err in finding that the Civil Service Department exercised reasonable competence in designing the examination, and that the examination was both content related and representative.
  3. On plaintiffs’ disparate treatment challenge to the 1998 examination, the district court correctly concluded that plaintiffs could not re-litigate questions of job relatedness and business necessity decided against them at the bench trial of their disparate impact claim, and the [plaintiffs] had not established a genuine issue of material fact that Buffalo intentionally discriminated against African Americans by using the 1998 test results.
  4. On plaintiffs’ Title VII challenge to the 2002 examination, the district court correctly relied on collateral estoppel to grant summary judgment in favor of Buffalo because the only matters in dispute had been resolved against plaintiffs in the earlier challenge to the 1998 examination, and there was sufficient identity between the plaintiffs in both actions.

Note that there appeared to be little question, on the one hand, that the examination had a disparate impact; nor, on the other hand, did the plaintiffs try to show that there was an alternative selection procedure with less disparate impact. Thus, the focus in the opinion was simply on whether the city carried its affirmative rebuttal burden of showing that the test was “job related for the position in question and consistent with business necessity” (to quote Title VII).  The majority held that city did so, finding the examination to be “content related.”

A principal point of contention in the case (and the main focus of the dissent) was whether the examination was sufficiently customized for this particular city.  The majority opinion said that the city’s “minimal participation in the Civil Service Department’s three-year statewide job analysis of firefighter positions is perplexing. So too is Buffalo’s strategic decision to defend against a disparate impact claim without calling either an expert or fact witness to link the lieutenant position within the Buffalo Fire Department to the Civil Service Department’s job analysis of that position statewide.”  But it deferred to the district court and the Civil Service Department in finding that the statewide approach was reasonable.

This seems to me to be a significant decision.  There is a built-in tension between the disparate-impact approach and the usual principal of colorblind nondiscrimination in civil-rights law (indeed, as Justice Scalia noted in his Ricci v. DeStefano concurrence a few years ago, it calls into question the approach’s constitutionality), and that tension is exacerbated to the extent that plaintiffs’ prima facie showing of a statistical racial imbalance is all that is needed in order to win a Title VII case.  Conversely, to the extent that defendants can rebut the prima facie case by simply showing nondiscriminatory and legitimate reasons for a selection device, the more disparate-impact cases come to resemble disparate-treatment cases, and the less objectionable they are.

For more on the problems with the disparate-impact approach, see my (somewhat dated but still useful, I hope) monograph “Disparate Impact in the Private Sector: A Theory Going Haywire.”

UPDATE: Mike Rosman of the Center for Individual Rights liked my post, which is very gratifying since he knows more about the law in this area than I do. He says that he would have added the words “that the defendant had refused to adopt” after “alternative selection procedure with less disparate impact” — noting, quite correctly, that even if the courts sometimes do not remember what the statute says, we should. Mike also makes the good point that the importance of this case may be diminished somewhat by the findings of the lower court and the deferential standard of review (as the majority opinion noted, it likely would have affirmed a trial court decision going the other way).

Justice Scalia Discusses His New Book on Legal Interpretation on C-SPAN

• July 30, 2012 • 3:36 pm

In a C-SPAN video available here, Justice Antonin Scalia discussed his new book, Reading Law: The Interpretation of Legal Texts, co-authored by Bryan Garner. According to the network’s summary, Justice Scalia “defined the meaning of textualism as it relates to interpreting laws and the meanings of the words originalism and strict constructionism as they apply to constitutional law. He cautioned that individuals should read entire judicial opinions before reaching any conclusion about a particular judge’s fairness. In this interview he discussed his opposition to cameras in the Supreme Court chamber. He responded to video clips and talked about criticism from the press, saying that he responds by not commenting or by writing letters to the editor and throwing them away.”

Stanley Fish—A Generation Behind on Textualism

• July 19, 2012 • 4:28 pm

In a recent article for the New York Times, Stanley Fish critiques the defense of textualism offered by Justice Scalia and Bryan Garner in their important new book, Reading Law. Despite his qualms about its central position, Fish has high praise for the book, which he calls entertaining and “wonderful.” Along the way, he also dispatches Living Constitutionalism as “a form of political gerrymandering rather than as a form of interpretation.”

In this post, I’d like to respond to Fish’s critique. In brief, Fish articulates two lines of attack: 1) Statutory meaning is not “‘in the text’ in the sense Scalia and Garner insist on,” and 2) All interpretation “begins and ends” with “the assumption or specification of an intention without which there would be no text . . . .” Both arguments draw on Fish’s influential body of scholarship dating back to the 1970s; both arguments show their age. The first argument has teeth only against an archaic version of statutory formalism that has been roundly rejected by modern textualists; the second has little relevance to the “second generation” of textualism that has emerged over the last decade.

Fish’s first argument rightly emphasizes the importance of context in the interpretation of texts. This line of attack harkens back to a snarky little debate he had with Ronald Dworkin in the 1980s over the “objectivity” of interpretation. The centerpiece of the argument is Fish’s discussion of the ambiguity of the word “draft.” As he notes, the sentence “let’s avoid the draft” is ambiguous between several meanings, such as “let’s get out of military service” or (spoken by a general manager of a professional sports team) “let’s trust in free agency.” Moreover, Fish insists that “the dream of adding enough words to a text so that its meaning is clear and indisputable cannot be realized,” noting that the expanded sentence “let’s avoid the draft and go to Canada” is, though more prolix, still susceptible to both meanings. Fish concludes that meaning just isn’t “in the text” in any deep sense.

Of course, Fish has rigged the example here. “Let’s avoid the draft and go to Canada” may not resolve the ambiguity, but how about “let’s avoid the military draft.” Indeed, it’s hard to state the argument without falsifying it — since to get the point through, Fish has to communicate to his readers both alternative meanings that the ambiguous sentence might take, and he has to communicate these meanings by means of a text! Nonetheless, Fish needn’t have cheapened his argument by relying on a jiggered example. Ambiguity (multiple meanings of the word “draft”) will often be resolved by a sentence’s syntax or the meaning of other words in the sentence, but not always — and occasionally, context will create ambiguity where none otherwise appears. Moreover, there are plenty of other ways in which resorting to context is indispensable to textual interpretation, and textualists are happy to concede the point. (None other than Justice Scalia once wrote that “In textual interpretation, context is everything.”) (more…)

FedSoc SCOTUScast – Randy Barnett and Neal Katyal Discuss Obamacare

• July 16, 2012 • 11:10 am

On June 28, 2012, the Federalist Society organized a SCOTUScast (recording here) on the Affordable Care Act decision. Randy Barnett, the Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center, discussed the case with Neal Katyal, a partner at Hogan Lovells, professor at Georgetown Law Center, and former Deputy Solicitor General.

Barnett began by noting that the two most important provisions of the ACA at stake were the individual mandate and the Medicaid provision.  The former required that all Americans purchase health insurance as a means to compensate insurance companies for the costs that were being imposed upon them by various restrictions or various requirements–for example, guaranteeing community rating, which required that they issue policies for coverage for pre-existing conditions and that their rates adjusted accordingly.  The Medicaid provision, he explained, represented a substantial change in the program: Congress was going to provide considerable additional funding for new expanded Medicaid programs. It conditioned this new funding on states’ acceptance of the expanded program, but it also reserved the right to condition the funding for all existing Medicaid programs.  It was the entire funding condition that was challenged because it was alleged to be coercive toward the states.

Barnett said that the answers to this issues were not what anybody expected. (more…)

Debating Judicial Restraint: A Response to Somin and Whelan

• July 16, 2012 • 9:02 am

Ilya Somin and Ed Whelan have criticized my Public Discourse article on the healthcare decision, which discusses dueling conceptions of judicial restraint within the conservative legal movement. I’m grateful to both of them for their critiques and will try to respond to some of their comments.

Somin claims that I “argue that the individual mandate case represents a sea change in conservative attitudes to judicial review.” Against this, Somin contends that “there is a lot more continuity in both liberal and conservative attitudes towards judicial review than [Alicea and Orin Kerr] suggest” and that the conservative argument for “stronger judicial enforcement of constitutional limits on federal power….long predates Obamacare.

Specifically, Somin takes issue with my characterization of then-Justice Rehnquist’s role in the conservative legal movement’s founding during the 1970s. I note that Rehnquist was a proponent of an older view of judicial restraint, a view that emphasized deference to legislative majorities and set a high bar for unconstitutionality before striking down statutes. Somin cites many examples of Rehnquist acting to enforce limits on federal power, such as the so-called Federalism Revolution of the 1990s. In short, Somin writes, “[T]here is at least a 35 year history of leading conservative jurists urging strong judicial enforcement of limits on federal power.”

I do not disagree with much of what Somin says. How could one dispute that judicial conservatives have long objected to the expansion of federal power and favored a judicial response to this accretion of authority? No one with a passing familiarity of American constitutional history could contest these points, and I did not do so in my essay

It is equally undeniable that Chief Justice Rehnquist was willing to enforce limits on federal power, especially during the federalism cases of the 1990s. My claim was not that Rehnquist was averse to patrolling the boundaries of federal power. Even a Justice with a far more modest view of the judicial role than Rehnquist will encounter statutes that he or she thinks are clearly unconstitutional.

Nor did I argue that Rehnquist’s view of judicial restraint remained constant throughout his tenure on the Court. I wrote only about his role at the founding of the conservative legal movement in the 1970s, long before the Federalism Revolution of the 1990s. That is not to say that Rehnquist’s views changed dramatically from the 1970s through the 1990s, but I confined my observations of the Justice to his role at the beginning of the movement.

I do think that Rehnquist expressed a modest view of the judicial role during the 1970s, as his 1976 lecture on the “Notion of a Living Constitution” shows. That lecture repeatedly emphasizes the role of legislative majorities in our constitutional system and the comparatively minor domain of the federal judiciary. True, in his discussion of Chief Justice Marshall and judicial review, Rehnquist makes clear he thinks the judiciary has a responsibility to strike down unconstitutional laws, but the sense one gets from the lecture is that he has a less aggressive conception of judging in mind than Keith Whittington described in Constitutional Interpretation or than Randy Barnett has argued for in recent years.

Even if I were mistaken in describing Rehnquist’s jurisprudence, that would not undermine my point that the older view of judicial restraint was once dominant in the conservative legal movement. (more…)

Citizens United and Information for a Democracy

• July 13, 2012 • 10:08 am

[This is the last in a series four posts on Citizens United.  The first was Citizens United—The Most Important Decision of the Roberts Court; the second was Citizens United—A Renormalization of First Amendment Law; the third The Manufactured Hysteria Over Citizens United.]

In my first three posts, I showed that Citizens United is far less important for its direct effects than for an analysis that makes clear that speech at election time deserves the full benefit of the First Amendment’s charter of freedom. This decision to follow neutral free speech principles not only prevents judges and legislators from manipulating doctrine to their own advantage, but also helps temper an essential problem for democracy: how to get information about the issues at stake in an election to voters who do not much follow the news and yet may be decisive. Our age of accelerating technology exacerbates this problem, because it multiplies the distractions from public life.

Fortunately, citizens unsurprisingly focus on politics more at election time. Candidates and their supporters also have incentives to provide information that will gain their attention. Hence the importance of speech during campaigns. To be sure, that information of candidates and their supporters will be self-serving, but their opponents have every incentive to counter distortions and falsehoods. As I describe in my book Accelerating Democracy, there is evidence that the more campaign advertisements are aired, the better informed become citizens about candidates’ positions and ideology. Critics lambast 30-second commercials as simplistic and dumb-downed. But for many people, the alternative to a political advertisement is not a policy seminar but a beer commercial.

There are two thoughtful criticisms of the consequences of a free speech regime at election time. (more…)

Roberts’ Health Care Decision: Statesmanship, Not Jurisprudence

• July 12, 2012 • 1:04 pm

Just a few hours after the Supreme Court handed down its decision in NFIB v. Sibelius, I sent Washington Monthly a short post giving my instant reaction. My main purpose was, to be honest, to tell everyone that I had correctly predicted the Court’s decision. Sadly, I had previously failed to do so anywhere public, but just two days before the decision was handed down, I wrote to one of my graduate students, who was sure the Court would strike down Obamacare, “my prediction is that Roberts writes the opinion, and he upholds it on the taxing power. I know everyone thinks they strike it down, but I’m sticking to my guns that they don’t.” The lesson here is, for all the aspiring pundits reading this blog—always publish your predictions! If they’re wrong, no one will notice, and if they’re right, you’ll be able to prove your Nostradamus-like skills.

From the moment the Court took the case, I was telling everyone I could that no, the Court would not strike the law down, and that I anticipated that it would uphold it 7-2 or even 8-1. That said, my guess was also that the Court could not simply uphold it. I am a political scientist, not a lawyer or law professor, and the lens through which I view high-profile cases like this is pretty frankly political. My thought was that the political constraints on at least a sufficient bloc of conservatives to uphold the decision were: a) Striking down the highest profile piece of legislation of the opposite party, directly, was simply unthinkable but; b) The group of conservatives who voted with the liberals had to provide something to their own side in the process. I wasn’t exactly sure what that “something” was, but I was sure that there would be something. (more…)

The Manufactured Hysteria Over Citizens United

• July 12, 2012 • 8:42 am

[This is the third of four planned posts on Citizens United.  The first was Citizens United—The Most Important Decision of the Roberts Court; the second was Citizens United—A Renormalization of First Amendment Law.]

Critics of Citizens United have intimated that it will result in a huge increase of for-profit corporate independent expenditures. President Obama played to such fears when he claimed in his 2010 State of the Union address that the decision “opened the floodgate for special interests–including foreign corporations–to spend without limit on our elections.”

At the time, it was widely reported that the president was falsely characterizing the decision: Citizens United did not invalidate prohibitions on campaign expenditures by foreigners, be they individuals or corporations. But it is also now clear that not many for-profit corporations make independent expenditures directly on behalf a candidate. Moreover, for-profit corporations give less than 20% of so-called Super PAC money used for independent expenditures for direct support of candidates. And many, if not most, of these donating corporations appear to be shells for individual contributions.  (In my view, Congress and state legislatures should require such shell corporations to disclose the individuals behind them: Citizens United expressly permits disclosure laws). Publicly traded corporations appear to give less than 0.5% of all Super PAC funds. Thus, the amount of for-profit corporate treasury funds being spent in elections as a result of Citizens United represents a very small portion of total election expenditures. Citizens United has not released a floodgate of for-profit corporate independent expenditures. The president was in this respect no better a pundit than he was a legal analyst.

The New York Times recently reported that corporations are giving more to 501(c)(4) “social welfare” organizations, which can use a portion of their funds to run issue advertisements in elections. But this increase has nothing to do with the doctrine of Citizens United. (more…)

Citizens United—A Renormalization of First Amendment Law

• July 11, 2012 • 11:29 am

[This is the second of four planned posts on Citizens United.  The first was Citizens United—The Most Important Decision of the Roberts Court.]

At the root of almost all speech regulations during a political campaign are slogans and distinctions that the First Amendment would never tolerate in areas of social life other than elections.  Begin with the mantra beloved of campaign finance reformers: “Money is not speech.” It is used to argue that independent expenditures supporting messages in a political campaign can be regulated.  But in the normal course, the First Amendment prohibits regulation of expenditures when that regulation is targeted at speech. Thus, a government restriction targeted at the amount of money a newspaper could spend for investigative reporters would be obviously unconstitutional, as would as regulation targeted at the money that a publishing house could pay to acquire a manuscript. The reasons the First Amendment prohibits such regulations are obvious. To speak effectively one needs resources.  The government can successfully suppress speech by aiming its restrictions at the money spent on speech protected by the First Amendment no less than by directly regulating the speech itself.

Citizens United is to be praised for refusing to make distinctions in speech at election time that the Court does not apply in other areas of the First Amendment. One of those distinctions is corporate versus non-corporate speech. In areas other than elections it clear that corporations enjoy speech rights equal to partnerships and individuals. The Metropolitan Museum of Art cannot be told to what art to display or when to display it, even if it is a non-profit corporation. Many famous First Amendment decisions protected the rights of for-profit corporations. New York Times v. Sullivan is the foundation of modern free speech protection against libel actions by public figures, yet the New York Times is a for-profit corporation. The language of the First Amendment does not make distinctions between corporations and individuals. Moreover, the First Amendment’s purpose is well served by permitting citizens to use mechanisms such as corporations for joint action that gives them more effective speech rights.

In dissent, Justice Stevens argues that media corporations may be different because of the protections of the Press Clause. But to make such a distinction would again not accord with First Amendment jurisprudence:  the Court has not generally given greater protections to the press. There is good reason for declining to make such a distinction. (more…)

Roberts Was Wrong to Apply the Canon of Constitutional Avoidance to the Mandate

• July 11, 2012 • 8:36 am

In his ACA decision, Chief Justice Roberts concludes that the individual mandate can be sustained as an exercise of the taxing power, even though he concedes that it is read “more naturally as a command to buy insurance than as a tax.”  His key move is an application of the canon of constitutional avoidance, which he explains as follows: “The text of a statute can sometimes have more than one possible meaning. To take a familiar example, a law that reads ‘no vehicles in the park’ might, or might not, ban bicycles in the park. And it is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so.”

The Chief Justice’s account of the canon is accurate, but his application of it is exceedingly odd. The canon applies when a statute is ambiguous—when it can plausibly be read to mean two different things.  In the Chief Justice’s example, “vehicle” could be read to mean something like “device for transport,” which would include bicycles, or it could be read to mean “motorized device for transport” which would exclude them.  If including bicycles would violate the Constitution, then the canon of constitutional avoidance would counsel adopting an interpretation of “vehicle” that excludes them.  The statute includes an ambiguity about quite what it forbids, and the canon helps to resolve the ambiguity.

But the individual mandate is not ambiguous in the same sense that “vehicle” is ambiguous.  It is crystal clear what the mandate requires: get insurance or pay a certain amount to the IRS.  There is no alternative interpretation.  There is no marginal case, like bicycles, that is up for debate.  Whether it is called a “penalty” or a “tax”, the individual mandate has exactly the same legal consequences. Compare Oliver Wendell Holmes, Jr. in “The Path of the Law”:

If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict . . . . [And] from his point of view, what is the difference between being fined and taxed a certain sum for doing a certain thing? That his point of view is the test of legal principles is shown by the many discussions which have arisen in the courts on the very question whether a given statutory liability is a penalty or a tax.

Whether the individual mandate is called a “penalty” or a “tax,” it means what it means and requires what it requires.

So when the Chief Justice “interprets” the mandate to be a tax, this is not interpretation in the ordinary sense.  This is, in reality, an issue, not of statutory interpretation, but of constitutional characterization. (more…)