California Appeals Court Overturns “Objectionable” Employment Discrimination Decision

California As reported by California Case Law (via a tip by friend of the blog, Jack Sargent), the imponderable case of Nazir v. United Airlines, Inc., No. A121651 (Cal. App. Ct. October 8, 2009):

In plaintiff’s race and employment discrimination lawsuit against United Airlines, the trial court’s grant of summary judgment in favor of defendants is reversed as to eight causes of action as they must be decided by the jury.  Furthermore, the trial court’s order sustaining  763 of 764 of defendant’s objections was a manifest abuse of discretion.

I can only do this case justice by stating precisely some of the court’s decision. This is all takes place in the context of a rather ordinary race discrimination in employment claim:

At the same time, the summary judgment procedure has become the target of criticism on a number of fronts.  Some particular criticism is directed to the procedure in employment litigation, including that it is being abused, especially by deep pocket defendants to overwhelm less well‑funded litigants.  More significantly, it has been said that courts are sometimes making determinations properly reserved for the factfinder, sometimes drawing inferences in the employer’s favor, sometimes requiring the employees to essentially prove their case at the summary judgment stage.  Here we confront the poster child for such criticism, in a case involving what may well be the most oppressive motion ever presented to a superior court . . . .

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Confrontation Avoidance? Part I: A Good Article to Read While Waiting

Like nearly every criminal lawyer, I eagerly await – and wait and wait – for the Supreme Court’s long overdue decision in Melendez-Diaz v. Massachusetts (07-591), the only case outstanding from the Court’s November sitting (per SCOTUSBLOG).  The case addresses the prosecution’s use of crime laboratory reports against the accused without testimony by the person who performed the analysis and wrote the report.  We need not get bogged down in the constitutional niceties at present, if only because its delayed appearance renders the case’s auguries especially hard to read.

So while we wait for a case that is certain to affect a staggering percentage of criminal cases, both pending appeal and awaiting trial, I highly recommend J. Thomas Sullivan’s timely  article, Crawford, Retroactivity, and the Importance of Being Earnest, 92 Marq. L. Rev. 231 (Winter 2008).  To grossly oversimplify things, in 2004 the Supreme Court held its nose and unceremoniously dropped 25 years of case law (and countless law review articles) into law’s dumpster. The discarded doctrine loosely regulated the prosecution’s use of hearsay under the Sixth Amendment’s confrontation clause; its flaccid “reliability” approach had green lighted nearly all forms of hearsay imaginable (and then some).

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An “Incredible” New Evidence Article

I’ve been reading a fascinating new article by Dan Blinka entitled “Why Modern Evidence Law Lacks Credibility.”  (A draft can be downloaded from SSRN here.)  Dan is exploring the clumsy handling of witness credibility issues in the rules of evidence.  A major theme is the tension between, on the one hand, the teachings of modern psychology regarding the limited capacity of jurors to make accurate assessments of witness reliability and, on the other hand, a widespread public confidence in the ability of laypeople to judge credibility on the basis of “common sense.”  In the conflict between expertise and common sense, Dan comes down on the side of the latter, emphasizing the importance of the common-sense approach in ensuring the legitimacy of trials.

I particularly enjoyed Dan’s recounting of a colorful early encounter between psychology and evidence law.  In 1907, Hugo Münsterberg, a German psychology professor (pictured above), launched a “scientific” attack on the premises of Anglo-American evidence law.  Taking up the gauntlet on behalf of the law was the legendary evidence professor John Henry Wigmore, who responded to Münsterberg with what Dan seems quite rightly to characterize as a “savagely brilliant critique.”  Score: Law-1, Psychology-0.

Here is the abstract of Dan’s article: 

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