What Do Reasonable Jurors Get to Decide After Scott v. Harris?

This is my second post commenting on Dan Kahan’s talk last week about his paper, co-authored with David Hoffman and Donald Braman, entitled “Whose Eyes are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism.” (It was originally one post but got long.) Scott v. Harris is the case involving the video of the police chase, a video the Supreme Court found so compelling that it ruled the denial of summary judgement to the defendant police officer was error. Kahan and his co-authors argue that Scott harmed the legitimacy of the justice system when it concluded that all reasonable people would view the video tape the same way. In fact, Kahan et al. demonstrate that a significant number of potential jurors disagree with the majority’s view.

On Friday, I tangled with the article’s proposed solution to the problem of denying those jurors their day in court. Today, I want to examine the decision itself–did the majority really rule that no reasonable juror could conclude that the force used in the case was excessive? That’s actually not the way it looks to me. Rather, it looks to me like, after a preliminary finding about dangerousness, the Scott majority pretty much threw the whole fact vs. law distinction out the window. Scott doesn’t just insult “unreasonable” jurors; even reasonable jurors get short shrift.

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To Shave or Not to Shave: That is the Question in This Workplace RFRA Case

Beard In the last two weeks or so, my employment discrimination law class has been studying disparate impact litigation.  One of the more challenging cases that we study is the Fitzpatrick case from the 11th Circuit concerning the no-beard policy of a fire department.

The policy is supported by the need to have a good seal between a firefighter’s respirator and his face.  The policy was claimed to have a disparate impact on black firefighters with a skin condition making in difficult for them to shave.  The 11th Circuit, in 1993, found that although there might be a disparate impact, the fire department was able to show that the practice was consistent with business necessity because of safety concerns the fire department had regarding use of these respirators by firefighters even with so-called shadow beards.

Fast-forward fifteen years and now comes a similar case in the D.C. Circuit concerning the no-beard policy of the fire department. Instead of race discrimination, this suit alleges that a clean-shaven face for safety personnel violates some employees’ religious freedoms under the Religious Freedom Restoration Act of 1993 (RFRA).  As such, the Title VII framework does not apply and instead the court must balance the exercise of religious liberties with competing government interests. This type of balancing test reminds me much more of a public employee case involving free speech rights.

In any event, the BLT blog has the details:

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Priorities for the Next President: Labor and Employment Law

In responding to the question, “What should be the highest priorities of the next President in the areas of law that you teach,” the answers in labor and employment law are many and clear.

The next President should first focus on the following three areas in the labor and employment law context: labor rights, workplace anti-discrimination and civil rights, and employee benefit rights.

Labor Rights: The percentage of American workers covered by union contracts is now below 8%, as opposed to 16% as recently as 1985. Without unions to fight for them, workers fall behind in wages, benefits, and standard of living.  Additionally, companies like Wal-Mart are calling meetings to tell employees not to vote for the Democrats in this year’s election.  Unionized workers earn more and are more likely to have pensions and health insurance than non-unionized workers.  Workers should have the freedom to choose whether to join a union without harassment or intimidation.  The next President should therefore sign the Employee Free Choice Act, a bipartisan effort to assure that workers can exercise their right to organize and secure initial agreements with their employers.  The next President should also act to restore collective bargaining rights to nurses and other workers excluded as “supervisors,” and to ban employers’ practices of permanently replacing striking workers. The next President should sign into law the Public Safety Employer-Employee Cooperation Act to assure public safety workers who put their lives on the line every day their right to bargain collectively.  Finally, the next President should work to appoint members of the National Labor Relations Board who will work to protect employee choice by outlawing employer captive audience meetings during election campaigns.

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