Recusal as Censorship?

The Supreme Court’s decision on Monday in Caperton v. A.T. Massey Coal Company is interesting for what it may portend and for the methodological dispute between the majority and the dissent.

You know (or I’ll tell you) the basic facts. Massey has an important case before the West Virginia Supreme Court –  an appeal of a $ 50 million verdict against it and in favor of Caperton and others. Massey’s CEO makes independent expenditures in the amount of $3 million in support of candidate Brent Benjamin. Benjamin wins and so does Massey – by a 3-2 vote with now Justice Benjamin in the majority.

The Supreme Court held, in a 5-4 decision, that Benjamin’s failure to recuse himself violated Caperton’s due process rights. So what’s the problem?

Continue ReadingRecusal as Censorship?

Social Framework Evidence in Employment Discrimination Cases

I’ve just read a fascinating new article by Paul Secunda and Melissa Hart on the use of expert social science testimony in employment discrimination cases.  They report on the conflict, both in the courtroom and in the academy, over the use of so-called “social framework” evidence, which speaks to the tendency of certain workplace policies and practices to promote (or reduce) the impact of stereotyping and bias.  The debate echoes debates elsewhere in the law over the use of science that cannot definitively establish causation, but can only deal in likelihoods or relative increases in risk.  I am reminded of a case I use in teaching the insanity defense, United States v. Lyons, 731 F.2d 243 (5th Cir. 1984), in which the Fifth Circuit bemoans the inability of psychologists to state with certainty whether a crime resulted from a defendant’s inability to control himself.

Entitled “A Matter of Context: Social Framework Evidence in Employment Discrimination Class Actions,” the full Secunda-Hart article is available here on SSRN.  You can read the abstract after the break. 

Continue ReadingSocial Framework Evidence in Employment Discrimination Cases

Can State Disapproval Violate the Establishment Clause?

Last week, the Ninth Circuit affirmed dismissal of a complaint brought by the Catholic League for Religious Liberties and Civil Rights against the San Francisco Board of Supervisors. The Catholic League and two individual plaintiffs complained about a Board resolution condemning Archbishop William Levada for ordering Catholic Charities to stop placing children for adoption with same-sex couples. Slipping in a reference to the Inquisition, the resolution referred to Levada’s actions as hateful and discriminatory and urged Catholic Charities to disobey.

I think that the outcome is correct, but the rationale is wrong.

This isn’t the first time that the Ninth Circuit has been called upon to address a resolution by the Board of Supervisors condemning positions taken by a religious group. In American Family Association v. Board of Supervisors, a divided panel rejected a challenge to a resolution condemning an ad campaign conveying a religious message about homosexuality and promoting “reparative therapy.”

Without exploring the niceties of the various tests for Establishment, the Ninth Circuit’s point is that the message and its purpose are “secular.”

For reasons that I explore here and here and in a forthcoming piece in the William and Mary Bill of Rights Journal, I don’t think that characterization of the message as “secular” withstands scrutiny. 

Continue ReadingCan State Disapproval Violate the Establishment Clause?