I appreciate Sandy’s point, but I ask again: Doesn’t this
counsel against a Title VII duty of reasonable accommodation? After all, once
you put a jury in a position of applying a standard as mushy as “reasonable
accommodation” or “undue hardship” of religion, wouldn’t it be especially
likely that the jurors – even if they are entirely well-intentioned – will be
swayed by their sympathy or antipathy to the religious belief (or the broader
ideological perspective that the belief exemplifies)? One could ask the same
about government decisionmakers that have to predict what juries will do, or
for that matter try to decide in good faith their own legal obligations.
This can’t be the only such case, or the only such fact pattern.
What can we say more broadly about Title VII reasonable accommodation law, and
whether it’s a good or bad idea, by thinking through cases such as this one?
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Sanford Levinson
Sent: Tuesday, April 26, 2011 12:40 PM
To: 'religionlaw@lists.ucla.edu'
Subject: Re: "Settlement or extortion?" and antidiscrimination law (and tort
law) more generally
Art is certainly on to something, but I would emphasize the extreme
unlikelihood that most Texas communities would make the same settlement if the
plaintiff had put a pro-choice message on his/her desk. To put it mildly,
"neutral principles" does not seem to be the mantra of most Texas politicos. (I
write as someone who helped the ACLU get $8000 in attorney fees for my pro bono
defense of the Klan in a standard access-to-march case that the City of Austin
chose to litigate.)
Sandy
________________________________
From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu>
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Sent: Tue Apr 26 12:15:26 2011
Subject: Re: "Settlement or extortion?" and antidiscrimination law (and tort
law) more generally
Eugene asks, "What is it about this particular case that triggers people not
just to complain about the plaintiff’s position, but to call his and his
lawyers’ actions 'extortion?'"
I think the actual answer is quite simple, and has nothng to do with legal
theories. People are not upset when people with whom they sympathize get
settlements for legally marginal claims; they are upset when people with whom
they do not sympathize get settlements for legally marginal claims. I think
the people who labeled the lawsuit in this case extortion would not call it
extortion if a woman were fired by a private employer for displaying a
pro-choice bumper sticker on her desk, and she sued for wrongful discharge, and
the employer's insurance company settled for $21,000, even though the law of
the relevant state was very unlikely to support the woman's claim. Call me
cynical.
Art Spitzer
On Tue, Apr 26, 2011 at 11:23 AM, Volokh, Eugene
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
Here’s one thing that has puzzled me about the “settlement or
extortion?” thread. Many critics of tort law and employment law – largely
conservatives and libertarians – have long argued that our legal system often
leads to unmeritorious claims being settled to avoid risk and to save
litigation costs. If Walter Olson (author of Litigation Explosion, which
criticized American tort law, and Excuse Factory, which criticized American
employment law) were here, he’d probably say something like this:
1. The Title VII reasonable accommodation requirement embodies a
deliberately vague “undue hardship” / “reasonable accommodation” standard for
liability. (Justice Scalia might cheer him on, making his “rule of law as the
law of rules” argument.) This is an open invitation to disagreement among the
parties about what the law requires, and to unpredictable jury decisionmaking.
2. Our legal system has overgenerous discovery provisions, which
make litigation more expensive.
3. Courts have interpreted Title VII to provide asymmetrical
fee-shifting, so that losing employers must pay prevailing plaintiffs’ attorney
fees, but losing plaintiffs almost never have to pay the prevailing employers’
attorney fees. Compared to either the system the reformers often prefer, which
is loser pays, or to our normal American Rule of no fee-shifting, this
asymmetrical system creates a further incentive for plaintiffs to bring weak
claims, and for employers to settle such claims.
We’ve been shouting about this for decades, Olson might say, but
the legal establishment – and especially liberals – have largely condemned and
rejected our arguments. What is it about this particular case that triggers
people not just to complain about the plaintiff’s position, but to call his and
his lawyers’ actions “extortion”? And unless we come up with some special rule
that’s unfavorable to people with objections to abortion, shouldn’t we think
more broadly about whether our system is broken, and about whether we should
cut back on the scope of liability, the vagueness of liability, the procedures
that make litigation costly, and the incentives to bring weak claims?
Eugene
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Legal Director
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