Thoughts on employment cases and summary judgment from someone who has seen how the sausage is made

Regarding the study of employment cases pitched at the summary judgment stage in the Northern District of Georgia and the Atlanta Journal Constitution’s article reporting about it, I heard from a career law clerk via e-mail. The e-mail was insightful. This person has graciously allowed me to reprint his or her thoughts, with certain minor edits.

Here are the guts of the e-mail:

In response to the AJC article about N.D. Ga. Title VII cases, I have a few responses, gleaned from my experience as a law clerk for two different federal trial judges over the past five years.

1. [V]irtually all Title VII cases that get tossed before discovery are DOA because of failure to exhaust administrative remedies. The AJC article briefly touches on that, yet the entire article is premised upon the idea that the cases don’t get a fair shake in federal trial courts. It’s not the trial judges’ fault that Congress wrote in an administrative remedy requirement, and it’s not the trial judges’ fault that the appellate courts have strictly construed it. [A]t least half of Title VII cases get tossed before discovery, and it’s because the plaintiffs either sit on their claims and don’t retain counsel, or they retain incompetent counsel. That was not the case in . . . where I [previously] worked because there was a plaintiffs’ firm that had built a large practice almost solely focused on employment litigation; they knew what they were doing and did it well.

2. Once these cases make it to the summary judgment phase, the burden-shifting analytical framework cuts against the plaintiff’s interests most of the time. Again, this is something wholly outside the trial judge’s control, and the article doesn’t even address it.

3. In those cases where the plaintiff actually does present sufficient evidence to make out a prima facie case, the evaluation of their evidence in the pretext portion of the analysis is often outside the trial court’s discretion. Likewise, in a hostile environment analysis, the severe or pervasive question is often out of the Court’s discretion. In other words, there is often Circuit Court precedent that is either directly on-point or close enough that it is determinative. The article makes much of the fact that a case where a plaintiff alleged – and presumably offered evidence – that someone groped his/her crotch was tossed. [T]here are precedents providing that such behavior, or even more shocking behavior, is not sufficiently severe or pervasive to violate Title VII.

So, my experience is that the federal trial courts have significantly less discretion than journalists and the plaintiffs’ bar like to think they do. If the administrative requirements are too onerous, that’s on Congress. If Circuit precedents set the bar too high to get past summary judgment, that’s on the appellate courts. Everyone likes to beat up on trial judges. Sure, some deserve it. But, for the most part, the trial judges are the most honest, hardworking judges in the judiciary (among Article III judges, at least). They’re also the closest thing in the judiciary to Justice Roberts’ “balls and strikes” metaphor (poor as it may be, insofar as umps have a lot of discretion over balls and strikes). They don’t make the rules. They just apply them.

I thank my correspondent for the contribution. And, by the way, Jan and Jim, my career law clerks, didn’t write one damn word!


Guest post: On precedent

Ken is a former Big 8 CPA “with a master’s in taxation who made the damn-fool mistake of going to law school,” so he says. He is now retired. He is also a marvelous writer and a good thinker. Graciously, Ken has allowed me to post an e-mail he sent me recently. That guest post in a moment, but first a brief introduction.

Ken writes about precedent and the late great Richard Arnold. For those of you who didn’t know Richard, you are the poorer for it. Richard was an intellectual giant, a true gentle man and in my opinion the best judge never to have made it to the Supreme Court. I really mean that.

Jeffrey Toobin wrote in “The Nine” (at p. 93 (the link takes you to p. 90, scroll down) of President “Clinton … weeping when he” told Arnold “he wasn’t going to appoint him” because of Arnold’s health. Richard served on the Eighth Circuit Court of Appeals until his untimely death. He died when he was my age now.

Arnold was not a fan of unpublished opinions. He wrote in Anastasoff v. United States that unpublished opinions were still precedent that had to be relied upon and followed by other judges. That opinion launched a huge debate. Ironically, however, that opinion did not become precedent because as Richard, himself, subsequently wrote, in an en banc decision, the dispute had been mooted. So, that is the context for Ken’s detailed, thoughtful and provocative guest post:

There is no crueler tyranny than that which is exercised under cover of law, and with the colors of justice.
                                                                   —Senior Judge R. J. Aldisert (CA-3)[1]
Dear Judge Kopf:
      I became aware of your blog on account of your stance regarding the staggering notion that, whereas the congressional gym was deemed as “essential,” that most judicial functions were not.  Mindful as I am of Chief Justice Marshall’s timeless admonition that “[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws when ever he receives an injury [and one] of the first duties of government is to afford that protection,”Marbury v. Madison, 5 U.S. 137, 163 (1803), to even state the case is to refute it.  It is rare for a sitting judge to speak out on issues of the day, and unfortunately so.  I commend you for it.
     Reading further, I came across your fulsome praise for Judge Glasser, raising a more distressing proposition: intellectual honesty in judging is so laudable and notable because it is so rare.  More to the point, this collective lack of intellectual honesty on the bench has reached the point where the Bill of Rights has literally become null and void for lack of meaningful enforce ment. Specifically, I would like to ask you about Judge Arnold’s famous opinion in Anastasoff, the intellectually dishonest manner in which it was withdrawn, and the logical ramifications of its having been withdrawn so irregularly.[2]  (As I have no business within the borders of your District, there should be no conflict issues.)  While a proper foundation must of course be laid, my question to you is straightforward:
What is left of the Bill of Rights if judges can disregard precedent with impunity?
      As you might recall, Anastasoff was the opinion that launched a hundred law review articles, holding that every decision of an appellate court must have binding precedential effect.  Despite the fact that a subsequent settlement between parties has never invalidated a published opinion before, Judge Arnold was forced by his colleagues to vacate his opinion en banc, and in so doing, our power-besotted judiciary has staged a “coup d’êtat.”[3] Trial courts are now free to deposit the United States Reports in the round file, safe in the knowledge that their brethren upstairs will be inclined to ignore their indiscretions.  Power minus accountability equals tyranny.
      It is axiomatic that if a citizen enjoys a right, he must “of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it; and indeed, it is a vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal.” Ashby v. White [1703] 92 Eng.Rep. 126, 136 (H.C.). Therefore, in the determination of what remedies I might have at my disposal for unlawful invasions of rights, a court must, by necessity, determine what “rights” I have left, for to “take away all remedy for the enforcement of a right is to take away the right itself.” Poindex ter v. Greenhow, 114 U.S. 270, 303 (1884).  If a trial judge can willfully disregard “binding” precedent with impunity—truth be told, appellate panels rarely even bother to read the opinions they issue, to say nothing of the actual briefs[4]—“law” becomes whatever the trial judge says it is on that particular day.  The brunt of this judicial triage is borne by pro se civil rights litigants, often forced by brutal financial necessity[5] to argue their own cases.  As Senior Judge John L. Kane of the District of Colorado candidly confessed, “all pro se cases, not just civil rights cases, are treated shabbily and superficially by our courts, both bench and bar.”[6]  
     A paradigmatic example of pervasive judicial sloth is Harrington v. Wilson, No. 06-1418 (10th Cir. Jun. 7. 2007) (withdrawn). (dismissed for lack of jurisdiction “with prejudice“); cf., Ex parte McCardle, 74 U.S. 506, 514 (1869).  Former Judge Michael McConnell, who taught law at both Harvard and Stanford while sitting on that Court,[7] was responsible for that bloody juridical abortion. And the problem is hardly unique to that Circuit. Federal circuit courts are now de facto certiorari courts,[8] wherein the “review” of appeals filed by disfavored litigants routinely take less than ten minutes.[9]  
Whenever a judge can “create an underground body of law good for one place and time only,” Anastasoff,223 F.3d at 904, it literally ceases to be law.  When a judge of an appellate court can sit in judgment of a matter in which he is a defendant in tort under a theory of law that has been recognized as viable in a sister Circuit and none of his colleagues even raises so much as an eye brow, cf. e.g., Tumey v. Ohio, 273 U.S. 510, 523 (1927); Dr. Bonham’s Case [1610], 8 Co. Rep. 107a (K.B.), one is left to wonder as to why we have any need for “professional” judges at all.  If the United States Reports barely qualifies as even a polite suggestion, one is left to wonder what is left of the rule of law.
     In judge-speak, “we have to follow precedent” translates into “we really, really, really want to follow this precedent, because it gets us to the outcome we want.”  Judges routinely take indecent liberties with both facts and precedent, in an often-transparent effort to conceal the fact that they are not so much interpreting the law as they are writing it to suit their personal preferences, “con stantly digging for quotations from and citations to previous cases to create a sense of inevitability about positions that they are in fact adopting on grounds other than deference to precedent”—a process Judge Posner acerbically characterized as “fig-leafing.” Richard A. Posner, How Judges Think 144, 350 (Harv. U. Press 2008).[10]  
     This state of affairs, in turn, implicates Justice Scalia’s acid test for a judicial ruling: “Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding?”Arizona v. United States, No. 11-182, Jun. 25, (Scalia, J., bench statement at 6).  Or to rephrase the question in this context, would any Founding Father in his right mind have ratified the Constitution if he knew that he was creating a judocracy, making our judges into our “robed masters?”[11] And, if the opinions of the men who created the Union and the man who preserved it control, the answer must be no. The Second Continental Congress put it this way:
If it was possible for men, who exercise their reason to believe, that the divine Author of our existence intended a part of the human race to hold an absolute property in, and an unbounded power over others, marked out by his infinite goodness and wisdom, as the objects of a legal domination never rightfully resistible, however severe and oppressive, the inhabitants of these colonies might at least require from the parliament of Great-Britain some evidence, that this dreadful authority over them, has been granted to that body.
The Declaration of Causes and Necessity for Taking Up Arms, 2nd Continental Congress (U.S. Jul. 6, 1775).  As Abraham Lincoln rightly intoned, “No man is good enough to govern another man, without the other’s consent.”[12] And, read in pari materia, the Declaration of Independence and Constitution establish the limits of that consent.  While stare decisis is more likened to a cor set than a straight-jacket,[13] I would daresay that no rational being would ever consent to a grant of judicial power so broad that a tribunal could disregard precedent without cause.
     As Suetonius duly records, the Roman emperor Caligula imposed taxes on food, lawsuits, and wages, but did not publish his tax laws; as a result, “great grievances were experienced from the want of sufficient knowledge of the law. At length, on the urgent demands of the Roman people, he published a law, but it was written in a very small hand, so that no one could make a copy of it.”[14] Our predicament is even worse: We can read the laws and court opinions interpreting them until we go blind, but can’t hope to rely on them. When judges are free to depart from established legal principles, “the subject would be in the hands of arbitrary judges, whose decisions would be then regulated only by their own opinions.”[15] We literally cannot plan our affairs with confidence or conform our behavior to the law, as “law” becomes unknowable and ad hoc.  The Constitution depends on a judiciary prepared to issue rulings “that go against the judges’ policy preferences,” Michigan v. Bryant, 562 U.S. ___, 131 S.Ct. 1143, 1176 (2011) (Scalia, J., dissenting), as liberty can find “no refuge in a jurisprudence of doubt,”Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 844 (1992)—which is what, in fact, you and your colleagues have bequeathed unto us.  As such, I ask:
Is even a jot or tittle of the Bill of Rights I can confidently rely on?
    I would appreciate your thoughts on the matter if you are inclined to share them.
Regards, Ken
1]  United States v. Janotti, 673 F.2d 578, 614 (3d Cir. 1982) (Aldisert, J., dissenting; quoting Montesquieu, De  l‘Esprit des Lois (1748)).
2] Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000), vacated en banc as moot, 235 F.3d 1054 (8th Cir. 2000). 
# Robert H. Bork, Coercing Virtue: The Worldwide Rule of Judges 13 (AEI Press, 2003).  As Judge Danny Boggs of the Sixth Circuit wrote, “[t]here is no strictly legal—let alone philosophical—justification for the practice,” Danny J. Boggs & Brian P. Brooks, Unpublished Opinions and the Nature of Precedent, 4 Green Bag 2d 17, 19 (2000), of issuing so-called “unpublished” opinions devoid of precedential effect
3] Over time, the procedural safeguards of mandatory Supreme Court review, pub lished written appellate decisions with binding effect, and in some cases, even written appellate opinions at all, have been eroded to the point that the federal statutory right to a meaningful appeal has been effectively eliminated. William Graberson of the New York Times observes:

With the Supreme Court giving full review to no more than 200 cases a year [today, it is closer to 80] and the highest courts of many states also limited in the number of cases they can hear, some legal scholars say, the increasing use of abbreviated review procedures by intermediate appeals courts means litigants are quickly losing the right to meaningful appeals.
One measure of the abbreviated treatment given to many cases, some judges and scholars say, is a sharp decline in the number of decisions Federal appeals courts publish in law books. Unpublished decisions do not establish precedents.
In studies of unpublished decisions, two law professors, William L. Reynolds of the University of Maryland and William M. Richman of the University of Toledo, say the rulings are usually so succinct that it is impossible to discern the facts of a case or the reasons for the judges’ ruling.
Court statistics show that Federal appeals courts publish only 24 percent of their decisions, down sharply from 54 percent in 1985. ”It is sort of a formula for irresponsibility,” said Richard A. Posner, the chief judge of the United States Court of Appeals for the Seventh Circuit in Chicago. ”Most judges, myself included, are not nearly as careful in dealing with unpublished decisions.”

William Graberson, Caseload Forcing Two-Level System for U.S. Appeals, N.Y. Times, Mar. 14, 1999.
5] It is not that pro se litigants are barely-literate Wal-Mart greeters.  Many civil litigants who file in propria persona are actually well-educated, e.g., Steiner v. Concentra, Inc., No. 03-N-2293 (D.Colo. Aug. 6, 2004), In re Marriage of Spofford, No. 06-CA-299 (Colo.App. Feb. 7, 2008) (two Ivy League-educated physicians), and even seasoned attorneys, E.g., Tatum v. Simpson, No. 05-cv-00669-PSF-KLM (D.Colo. Oct. 1, 2007); Mann v. Boatright, No. 07-cv-01044-WDM-KLM (D.Colo. Nov. 5, 2007), Lewis v. Gleason, No. 10-cv-1850-JLK-BNB (D.Colo. Mar. 29, 2011); Cogswell v. United States Senate, No. 08-cv-01929-REB-MEH (D.Colo. Mar. 2, 2009), whereas practicing attorneys are notorious for ‘mailing it in.’ E.g., Judge Tells Colorado Litigants to Brush Up on Their Paperwork, Chronicle of Higher Education, Aug 10, 2006, at (Judge Marcia Krieger of this District of Colorado, reading attorneys the riot act).
6] John L. Kane, e-mail (to Sean Harrington), Feb. 3, 2007, quoted in Sean Harrington, Disparate Treatment of Pro Se Civil Litigants in Federal Court: A Justification for Resort to Inappropriate Self-Help? (2007), at (copy on file).
7] Mirela Turc, Judge Michael McConnell Speaks About the Ninth Amendment, The Observer (Case West. U.), Oct. 31, 2008 (bio).
8] William M. Reynolds and William L. Richman, Elitism, Expediency, and the New Certiorari: Requiem for the Learn ed Hand Tradition, 81 Cornell L. Rev. 273, 275 (1995-96); see also, Penelope J. Pether, Constitutional Solip sism: Toward a Thick Doctrine of Article III Duty; Why the Federal Circuits’ Nonprecedential Status Rules are (Profoundly) Unconstitutional, 17 W.&M. Bill Rts. J. 955, 977 (2009). 
9] See e.g., Alex Kozinski, Letter (to Judge Samuel A. Alito, Jr.), Jan. 16, 2004 at 5 (150 rulings made in a two-day session); Perfunctory Justice; Overloaded Federal Judges Increasingly Are Resorting to One-Word Rulings, Des Moines Register, Mar. 26, 1999, at 12 (50 appeals decided in two hours).
10] Judges write to defraud. “Opinions are overstated, rigid, seemingly inevitable. The rhetorical style is that of closure. The judge is depicted as having little choice in the matter: the decisions are strongly con strained by the legal materials.” Dan Simon, A Psychological Model of Judicial Decision Making, 30 Rutgers L. J. 1, 11 (1998) (citations omitted); see also Jerome Frank, What Courts Do in Fact, 26 Ill. L. Rev. 645, 653 (1931) (“Opinions, then, disclose but little of how judges come to their conclusions. The opinions are often ex post facto; they are censored exposition.”); Martin Shapiro, Judges As Liars, 17 Harv. J.L. & Pub. Pol’y. 155, 156 (1994) (arguing that “[l]ying is the nature of the judicial activity”); see also, Simon, supra, at 8–9 (summarizing the literature regarding the sense of certainty conveyed by judicial opinions and its illusory nature). Lawrence Solan concluded from an analysis of Justice Cardozo’s opinions that not even a judge as forthright as Cardozo was above writing decisions with a false sense of certainty. Lawrence M. Solan, The Language Of Judges 22–27 (1993). Concurrences read like a Brandeis brief.
11] George Will, Supreme Court’s Real Priority Is Eradicating Stereotypes, Florida Sun-Sentinel, Jun. 30, 1996, available at
12] Abraham Lincoln, Speech (on the Kansas-Nebraska Act, Springfield, IL), Oct. 16, 1854. “Experience hath shewn, that even under the best forms, those entrusted with power have, in time, and by slow operations, perverted it into tyranny.” Thomas Jefferson, A Bill for the More General Diffusion of Knowledge (1778), in 2 The Works of Thomas Jefferson 414 (Paul L. Ford ed., 1904).
13] In our system, where erroneous judicial decisions cannot be overturned by a mere act of Parliament, stare decisis is an intelligent and nuanced application of existing precedent.  See, Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405 (Brandeis, J., dissenting).
14] Suetonius, The Lives of the Twelve Caesars 280 (trans. A. Thomson; Bell, 1893), Ch. 4, § LXI.
15] 1 Blackstone, Commentaries at *259. Chancellor Kent traced the practice to the earliest records of English law, 1 J. Kent, Commentaries on American Law 480 (2d ed. 1832), and Blackstone,  to“even so early as the conquest.” 1 Blackstone, Commentaries at *69; see also, Slade v. Morley [1602], 4 Co.Rep. 91, 76 E.R. 1074 (K.B). Alexander Hamilton concluded that “[t]o avoid an arbitrary discretion in the courts, it is indispensable that [judges] should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.” The Federalist No. 78, at 470 (A. Hamilton) (I. Kramnick ed. 1987). In his magisterial work, Justice Story explained that the doctrine of precedent

…, and always has been considered, as the great security of our rights, our liberties, and our property. It is on this account, that our law is justly deemed certain, and founded in permanent principles, and not dependent upon the caprice or will of judges.  A more alarming doctrine could not be promulgated by any American court, than that it was at liberty to disregard all former rules and decisions, and to decide for itself, without reference to the settled course of antecedent principles.

1 J. Story, Commentaries on the Constitution of the United States § 377 (1833).
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