DIY, from This American Life: you get justice in the next world, in this world you have the law?

It’s easy sometimes to lose sight of the fact our legal system is called a justice system and that law doesn’t exist for it’s own sake. I suppose, however, that William Gaddis had that confusion in mind when he opened one of his novels with this line:

You get justice in the next world, in this world you have the law

Today I made a brief car ride with my son last an hour so I could hear all of the latest episode of This American Life. Entitled “DIY,” the summary set forth below, from the This American Life web sitem fails to do justice to a story that brought me to tears, that reminds me again what this whole life of the law ultimately boils down to. Fortunately, you can hear the whole episode yourself from the player pasted in below the summary:

PROLOGUE.

Carl King, a self-taught investigator, talks about the murder case he’s working on now—one the police think they’ve already solved. Carl got started in this business after freeing his close friend from prison. He now runs an organization, called Success to Freedom, devoted to helping wrongfully convicted inmates. (2 minutes)

ACT ONE.

Reporter Anya Bourg tells the story of Carl King’s first case, where he’s able to accomplish what experienced detectives and lawyers were not. He proves that his friend was innocent. In this first half of the show, we hear the story of the crime. In 1980, Mario Hamilton was gunned down in the street in Brooklyn. A teenager claimed to have seen it happen. With police prompting, he fingered a guy named Collin Warner as the shooter. No matter that everyone in the neighborhood said someone else murdered Hamilton and that Warner had nothing to do with it. And no matter that the teenager hadn’t witnessed the murder at all. A jury convicted Warner, and he was sentenced to 15 years to life for killing a man he’d never even heard of. Carl, his childhood friend couldn’t let it rest, and started to fight the conviction. He tells everyone he can about the case. He tracks down witnesses. He teaches himself to read court documents. Eventually, he gets a real estate lawyer hooked on the case. (29 minutes)

ACT TWO.

The story of Collin Warner continues. His friend Carl manages to convince the real shooter and the victim’s brother (who watched him die on the sidewalk) to testify on Collin’s behalf. After 21 years in prison, Collin goes free. (24 minutes)

Legal education is monumentally difficult. Legal “rules” are not “rules” in the sense most people understand them; they are, instead, formulations intended to reach just results based on the evidence in individual lawsuits.

In making the point set forth in the title of my post, it is worth repeating the message I sent this morning to my Contracts students, who are in the midst of studying for the first semester exams. My students are in the midst of making the transition from the lay understanding of legal “rules” as “rules” of the sort that govern the outcome of scientific experiments to the professional understanding that legal “rules” are professional terms of art used to articulate arguments intended to achieve justice in individual cases. It is not an easy transition to make, and it is a transition from a way of perceiving rules that seems to dominate the thinking of the vast majority of mankind to a way of perceiving rules as man-made constructs intended most of all to do justice to individuals.

As I wrote to my students, focusing on legal issues relating to the interpretation of disputed contract terms (the last subject of our semester’s study):

In trying to understand the law we are applying, consider the teachings of the teachings of the Chuang-tzu, a collection of writings from the fourth, third and second centuries B.C.:

Great understanding is broad and unhurried; Little understanding is cramped and busy.

Trying to understand the rules that pertain to contract interpretation will not come through a cramped and busy effort to memorize the “parol evidence rule” and the rules regarding when evidence outside of a writing is permitted to interpret the writing.

Instead, understanding contract interpretation will come first from from a broad and unhurried consideration of what language the parties are disputing the interpretation of. Then you must understand why each party considers his interpretation the correct one. What evidence does each party have that his interpretation is correct? How persuasive do you consider that evidence?

If one side’s interpretation is more persuasive, that will likely be the correct one. One must first consider the writing setting forth the purported agreement, the purposes of the purported agreement, the situations of the parties, and any other evidence that may bear on the meaning of the written agreement. Only after considering all these matters (which can range far and wide) and coming to some individual, human understanding of whether one person’s interpretation or the other’s is more persuasive can on go back to the rules to and use those rules to show how the rules and the evidence together will lead to that more persuasive result.

Thus, for example, in Thompson v. Lilly, 26 N.W. 1 (Minn. (1885), the buyer of logs insisted the seller did not supply logs of as high a quality as the parties had agreed the seller would provide. The parties had written the following brief agreement:

AGREEMENT.

Hastings, Minn., June 1, 1883.

I have this day sold to R. C. Libby, of Hastings, Minn., all my logs marked ‘‘H. C. A.,’’ cut in the winters of 1882 and 1883, for ten dollars a thousand feet, boom scale at Minneapolis, Minnesota. Payments cash as fast as scale bills are produced.

[Signed] J. H. Thompson,

Per D. S. Mooers.

R. C. Libby.

The Minnesota Supreme Court concluded that “[t]he written agreement . . . , as it appears on its face, . . . purports to be a complete expression of the whole agreement of the parties as to the sale and purchase of these logs, solemnly executed by both parties.” Thus, the court concluded that the buyer could not prevail on his claim that he and the seller had in fact agreed that the logs he had purchased were supposed to be of a higher quality than those logs the seller actually supplied.

But there really is nothing in the written agreement itself to preclude the reasonable possibility that the parties had also agreed that the logs marked “H.C.A” would be of the higher quality the buyer had not received. What is it about that 3 line agreement that suggests that it is the exhaustive statement of all the terms the parties agreed to?

Admittedly, there are a few things you might point to to support the court’s conclusion: the writing states price, it states the identifying marks on the buyer’s logs, and it states the delivery place and times. We might infer that if it includes all of those things it must include everything the parties had agreed upon.

But are we to suppose that in 1883 Minnesota in a sale between a logging company and a lumber buyer the technical requirements of the parol evidence rule were foremost in the buyer’s and seller’s minds? And are we to suppose the 3 line agreement was intended as the height of formality. And when, for example, would “winter” begin in Minesota — November, December 21, at first frost? To suppose the seller of logs and the buyer of logs would have put into the writing something they considered important is to be naive about how commercial transactions really take place (even today in the vast majority of commercial transactions, and even among investment bankers in the high flying world of Wall Street finance in which I once practiced).

In other words, if you merely start with the proposition that the parol evidence rule excludes the consideration of evidence regarding the content of a contractual agreement that is not contained in a final and complete written record of the agreement, you hardly have a convincing argument that the decision in Thompson v. Lilly must have been correct.

But if you look at the evidence recounted in the opinion (and the absence of certain evidence) the wisdom of the result (if not the clarity of the reasoning) becomes much, much more apparent — the buyer is claiming the agreement included a promise that the logs the seller was providing would be of a higher quality than the logs that were delivered. And while the writing in and of itself doesn’t inherently exclude that possibility in any conclusive way I can fathom, what evidence does the buyer have that the agreement included a promise of higher quality logs? Only the buyer’s own self-serving testimony. There is no corroborating testimony from, say,  others in the logging trade in 1883 Minnesota that an agreement on quality like that insisted upon the buyer would be expected. There is no documentary evidence outside of the 3 line agreement regarding the parties’ negotiations. There is no evidence that the buyer’s purposes for buying the logs should have indicated to the seller that higher quality logs were what the buyer expected. There is no indication the price the buyer agreed to pay reflects a market price for logs of a higher quality than that which he received.

In short, apart from the buyer’s self-serving testimony, there is no evidence of any sort that any agreement on the quality of the logs had been reached. In the absence of any evidence other than the buyer’s self-serving testimony in support of his position, the court conclusion that the three-line agreement contains all the material terms of the agreement does in fact seem convincing. If, on the other hand, others in the trade suggested the quality of the logs would not have been included in the written agreement or that the price in the agreement reflected a price for higher quality logs, the court would have had a much more difficult time suggesting the three line agreement contained all the material terms of the agreement.

Thus, the parol evidence rule does its job in this case — it prevents the dispute from ending up as a trial in which the buyer’s uncorroborated and self-serving sworn statements will be weighed by a jury against the writing and the seller’s sworn statements. But if we merely considered the 3 line agreement without considering what other evidence the buyer had (or did not have) in support of his position, the parol evidence rule in and of itself would have provided a very poor guide to determining whether there would be any justifiable basis for a trial on the buyer’s claims.

To engage in the extra effort of trial in Thompson v. Lilly would have been unreasonable as a matter of the administration of justice in that there seems no persuasive reason in the first place to believe the buyer. Trials are expensive and burdensome affairs. And keeping the case from trial prevents a jury from being persuaded by improper factors (such as preferring the buyer as a person to the seller). Thus, the court invoked the technical rule — the parol evidence rule — to produce an outcome that seems fair, just, and in accord with a common sense view of the evidence.

In other words, the legal rules and their proper application arise from the evidence the parties bring to bear. The rules do not predetermine disputes that are predictable before they arise. Instead, they provide the legal language (developed over the centuries’ long development of the common law) in which to couch the just conclusions compelled by the evidence.

So, as I explained to my students, when you are trying to figure out on an exam how to answer a question, consider first: what question you are you trying to answer. Then consider what evidence you have from each side of the dispute that helps persuade one way or another in answering that question. Then weigh that evidence and consider what we are primarily trying to determine in contract law: what the parties intended to agree to.

Then, and only then, use the rules to structure the presentation of your understanding of the proper resolution to the dispute. You are likely being asked to present your personal and human understanding as an intelligent adult being asked to solve a previously unsolved problem for the first time in your life. You are not merely being asked to repeat material your professor asked you to learn but to apply that learning to resolve new problems in a creative and original way no one other than you can be relied on to answer — that’s what you’re going to be doing as a lawyer!

I do not mean to minimize the importance of knowing the rules. You must know the rules. The rules are the language the law uses to structure the presentation of your persuasive explanations. Merely to give a recitation of your personal reaction to the evidence without reference to the rules is not to act as a lawyer. But the rules will only make sense to you if you use them to come to a result that makes sense to you as a human being.

You also have to keep in mind that rules in contract law sometimes serve purposes other than merely giving effect to what the parties intended. Rules such as the statute of frauds, for example, will in the absence of clear and convincing evidence of agreement avoid the administrative difficulties and expense of full-blown trial in certain types of important cases in which the parties have not supplied either the formal requirements evidencing such agreements or can supply other evidence as convincing as those formal requirements.

Again, this is not to discount the importance of the rules. You must know the rules to articulate your arguments in a manner that makes sense to lawyers, judges, and law professors. You are now a member of a profession, and you must communicate in the language of the profession. But you will never persuasively apply those profession-specific rules without first understanding the human disputes, the evidence, and the ways that evidence persuades human beings as to the merits of the disputes. Then, and only then, can you begin to structure your arguments in a manner that usefully employs the technical legal rules.

As a final note, my disquisition here should put to rest the myth — even one propounded by the Chief Justice of the U.S. Supreme Court as a means of obtaining confirmation in the course of a farcical political show — that applying legal rules to resolve legal disputes is the same as calling balls and strikes.

Creative Math from Craig Damrauer

New Math collects Craig Damrauer’s creative equations, many relating quite directly to the issues regarding creativity I address here.

Hat tip to Matt Homan.

Dow v. Rohm & Haas, settled

One of the more controversial pieces I have written on this blog was in connection with the lawsuit brought by shareholders of Rohm & Haas to force Dow Chemical to complete its purchase of Rohm & Haas pursuant to a contract entered last summer that pegged the purchase price at $78 per share of Rohm & Haas.  My principal point was in response to an article written by Joe Nocera in the New York Times that to even suggest “that maybe, just maybe, deals that stop making sense ought to be called off, or at least rejiggered, especially in the middle of a once-in-a-lifetime financial crisis – invites withering scorn, especially if you say it to someone on Wall Street or in the legal profession.”

My point was that when something stops making sense, the law, if it is working properly, should not force the nonsensicle result.

Responses varied from the grateful to the withering.

The outcome, however, makes remarkable sense.  Last week, Dow and Rohm & Haas settled their dispute over the $15.3 billion merger.  Pursuant to the settlement agreement, Rohm & Haas’s shareholders will get the $78 per share Dow originally promised.  But hedge fund manager John Paulson and the Haas  family shareholders will in essence re-invest their proceeds from the sale for preferred stock in Dow. Doing so gives Dow “enough room to purchase Rohm without immediately running aground. Dow had earlier refused to close the merger, saying its business would be hurt if it had to draw heavily on risky short-term debt.”

In essence, Paulson and the Rohm & Haas family shareholders are helping Dow finance the purchase, protecting the deal they had negotiated for the rest of the Rohm & Haas shareholders.  In exchange, Paulson and the Haas family get great value in return.  Moreover, if I read the situation correctly, there may be tremendous tax advantages for the Haas family.  If the transaction is treated as an exchange of Rohm & Haas stock for Dow preferred stock, it will not be a taxable event.  Moreover, upon transfer to the Haas family heirs via testamentary disposition, those heirs would be considered to have a tax basis in those shares equal to their value upon that testamentary disposition.  In short, whatever gain the Haas family earned in the Dow transaction and whatever gain is earned in the future in the Dow stock they received in exchange will never be taxed to the Haas family or its heirs.

Everyone comes out ahead, and Dow was not forced to go through with the deal it had originally contracted for and so many thought would have to be enforced.

Hard cases make GOOD law.

The U.S. Supreme Court ruled today that Wyeth is liable to Diana Levine (pdf) for $7 million, the amount (reduced from $7.4 million by the judge) that a Vermont jury had awarded her (and that the Vermont Supreme Court had affirmed) based on the jury’s conclusion that Wyeth had been negligent under Vermont tort law in failing to provide a strong enough warning against intravenous injection of the drug Phenergan. As a result of being injected with Phenergan, an anti-nausea drug manufactured by Wyeth, Levine’s right arm had to be amputated. Wyeth’s warning warning regarding the safety of injecting Phenergan stated:

When administering any irritant drug intravenously, it is usually preferable to inject it through the tubing of an intravenous infusion set that is known to be functioning satisfactorily.

As Justice Stevens observed in his majority opinion, “The evidence presented during the 5-day jury trial showed that the risk of intra-arterial injection . . . can be almost entirely eliminated” by administering the drug by IV rather than by injection. The jury concluded “Wyeth was negligent, that Phenergan was a defective product as a result of inadequate warnings and instructions, and that no intervening cause had brokenthe causal connection between the product defects and the plaintiff’s injury.”

The principal argument Wyeth made is that since the warnings it provided along with the drug were in compliance with the FDA’s requirements, the Court should have concluded that there can be no enforceable state law that requires stricter requirements. The argument would mean that as long as Wyeth had satisfied the FDA it had done everything right, no one could sue Wyeth, not even if, as the jury in Levine’s case concluded, Wyeth had been negligent and that negligence had caused the loss of Levine’s arm. In legalese, this argument is that the Federal regulation of these warnings “preempts” any state regulations on the same subject.

Whether federal law preempts state law turns on whether, in the Court’s opinion, Congress intended the federal law to do so. As Justice Stevens explains, there is good reason to believe Congress intended state tort law to supplement FDA regulation of drug safety, and there is very good reason that should be the case. Over the decades Congress has enacted laws governing the FDA, it has made clear its understanding federal regulation of drugs has needs to be supplemented by state tort law. Nevertheless, Congress has sometimes intended certain FDA regulations to preempt state law — on those occasions Congress expressly so stated in the legislation regarding those regulations. Thus, it is reasonable to conclude that congressional silence on preemption in the legislation at issue in Levine’s case indicates no intent to preempt.

Moreover, it would be foolish to shift exclusive responsibility for all responsibility for drug safety to the FDA. The FDA does not have the resources to make all determinations necessary to maintain drug safety. The drug makers do. Without state tort liability, the drug companies would be absolved of any responsibility for the safety of drug labeling. Thus, Stevens points out that

Wyeth suggests that the FDA, rather than the manufacturer, bears primary responsibility for drug labeling. Yet through many amendments to the FDCA and to FDA regulations, it has remained a central premise of federal drug regulation that the manufacturer bears responsibility for the content of its label at all times.

Stevens even points out that the FDA has traditionally been in favor of having state law complement their own regulation of drug safety:

The FDA traditionally regarded state law as a complementary form of drug regulation. The FDA has limited resources to monitor the 11,000 drugs on the market, and manufacturers have superior access to information about their drugs, especially in the postmarketing phase as new risks emerge.

The dissenting opinion, written by Justice Alito on behalf of himself, Chief Justice Roberts, and Justice Scalia, opened with a variation on one of my most hated legal clichés — “Hard cases make bad law.” Alito’s cute variation? “This case illustrates that tragic facts make bad law.”

Why do I hate this sentiment? As I’ve written before, the ultimate point of our justice system is to do justice. The cliché that “hard cases make bad law” expresses the idea that one harms the law if one goes out of one’s way to interpret it in favor of someone you know should, if real justice rather than law applied, prevail. The jury concluded that Wyeth should have given a stronger warning against injection of Phenergan and that it’s failure to do so caused Levine to lose her arm. Those determinations could not have been overturned by the Supreme Court — they are the type of determinations left to the jury who saw the evidence. So, in the absence of explicit Congressional statements that the statute is intended to preempt state law and thus shield Wyeth from any liability, justice would seem to require  Wyeth to be responsible for the harm its negligence caused to Levine.

Since the dissenters concluded the law requires otherwise, they believe, despite their stated sympathy for Levine’s “tragedy,” that the Court’s hands have been tied and, sadly, it must find that Levine is not entitled to sue Wyeth.

Typically, as in this case, such reasoning rejects perfectly reasonable reasons to find that the “tragic victim” should prevail. Thus, it seems, typically when a court hauls out that old “hard cases” line, it is really not acting in the interests of either law or justice, but, rather in the service of a cause that remains largely hidden.

That cause, in this case, is the conservative campaign against state tort lawsuits (in the name of “tort reform”).

Why do we have such safe drugs? Such high standards in the quality of our medical care? Cars enormously safer now than just a couple of decades ago?

Because the people and organizations most responsible for that safety and most capable of maintaining it are held responsible if they don’t provide for that safety. Tort regulation isn’t perfect, but it’s a lot better than governmental regulation alone. (No regulation at all, of course, would lead to drugs we could have no confidence in.)

But Alito, Steven, and Scalia are clearly acting in the service of the interests that would get rid of state tort suits — in this case, the pharmaceutical industry. This case isn’t a result of the majority’s effort to make people happy for Levine; it’s a case that both does justice to her and is consistent with existing law and sound national policy that Stevens has persuasively explained. Alito isn’t sorry that Levine lost her arm. He’s sorry Wyeth can be sued for its negligence.

Justice? (the remix)

Justice Roberts: I am the best qualified to do what I do.

From the New York Times:

For the first time in its history, every member of the United States Supreme Court is a former federal appeals court judge. Chief Justice John G. Roberts Jr., in a lively and surprising talk a couple of weeks ago, said that development may be a good thing.

Over the life of the Supreme Court, its members were quite likely to be former governors, legislators, cabinet members, law professors and practicing lawyers. That mix of backgrounds and expertise might strike some as valuable, but the chief justice suggested that it tended to inject policy and politics into an area properly reserved for the law.

As late as 1972, when Chief Justice Roberts’s predecessor, William H. Rehnquist, joined the court as an associate justice, former federal judges were in the minority.

As a consequence, Chief Justice Roberts said, “the practice of constitutional law – how constitutional law was made – was more fluid and wide ranging than it is today, more in the realm of political science.”

I’m not sure I could disagree more strongly. As I’ve emphasized in recent weeks (here, here, and here), I think judging is first and foremost doing justice. A variety of viewpoints (including those of “former governors, legislators, cabinet members, law professors and practicing lawyers”) is far more likely to lead to justice as it is defined in the real world than the abstractions of appellate judges.

In fact, I think one of the principal weaknesses of the Supreme Court as it is presently constituted is the lack of experience the Justices have with the real world — even with the real world in a legal sense. The judges were not trial lawyers for regular everyday people; they were not trial judges. All appellate judges ever see are written documents (the arguments of lawyers, the documentary and physical evidence submitted in trial courts, and transcripts of testimony in lower courts). They don’t see witnesses. The only people they see in their professional lives outside their own chambers are lawyers during oral argument. Very few cases, in fact, get appealed. The vast majority have too little at stake to make any appeal financially practicable.

In short, a Court consisting only of people whose principal occupations have been as corporate lawyers, government lawyers, and appellate judges is a Court about as divorced from real life as possible. Is that really the ideal Court? Of course, Justice Roberts would think so. I’ve always believed that the vast majority of people who succeed in any given system believe that system is a true meritocracy. If Justice Roberts was an appellate judge, and if the Supreme Court consists of only appellate judges, is it really any surprise he thinks appellate judges make the best Supreme Court Justices?

Again, let’s give more attention to individual justice and less devotion to abstract rules

The hope for the Obama administration I expressed in my post last Thursday was that it would promote a legal culture in which courts would begin to pay more attention to the justice required in individual cases rather than, as has been increasingly true over the last thirty years, feel increasingly bound to abstract interpretations of language that lead to plainly unjust results. My focus in that post was on statutory interpretation, but the same sentiment applies to the interpretation of contract language, as Ralph James Mooney made clear in The New Conceptualism in Contract Law, 74 Or. L.Rev. 1131, 1170-1171 (1995). Mooney also noted, as I implied in last Thursday’s post, that the new focus on abstract rules and language at the expense of just results in individual cases invariably favors moneyed corporate interests:

Just as they have in contract formation disputes, American courts recently have embraced far more conceptualist approaches to contract interpretation issues. They [exalt] the written word over the parties’ actual . . . agreement. They exercise their pre-modern faith in the objectivity of language, and overturn jury verdicts, by applying classical interpretive rules like ”plain meaning,” ”four corners,” and interpretation as a ”matter of law.” In general, American courts the past dozen years have moved noticeably away from the most fundamental theorem of contract interpretation, that the law should enforce the parties’ intention, toward a more abstract, disembodied inquiry, resembling, what should the parties have meant when they signed this form contract? In addition, this intellectual regression once again has had important political consequences. . . . Notice that, as in formation cases, it is almost invariably a seller, a bank, an employer, or . . . an insurer that benefits from the New Conceptualism in contract interpretation. This judicial tilt away from underdogs, back toward the privileged beneficiaries of classical contract law, is, of course, the New Conceptualism’s most troubling feature of all.

Let us regain the understanding that law is to do Justice.

There are many, many changes I’d like to see the Obama administration implement and encourage in the law, and today’s collective effort to comment on our hopes for the new administration in each of our respective areas of expertise will spur me to address many of these specific matters in the coming days and weeks.  But for today, I would like to address a topic particularly dear to my heart: the art of legal interpretation.

Over the last 30 years or so, there has been a relentless drumbeat from the right attacking judges deemed too liberal for being too “activist,” for “making” law, not merely applying it.  The judges we need, it’s been said, are “strict constructionists” who apply the law “as it is written,” not as the particular judge might wish it to be.

This rhetoric has obscured what judging is.  It is not a controversial proposition to state that interpretation of legal language is not merely a matter of applying words to facts.  Words are too ambiguous, and the world is so complex that the legislators who write the words of statutes cannot possibly foresee every possible situation to which the statutes will apply.  Judges, thus, must make judgments.  Judgments require weighing different possible interpretations and different possible implications and different possible intentions.

Worst of all, however, I fear we’ve lost sight of the fact that judges are part of a justice system.  Their efforts to properly interpret and apply the law should always be guided by the effort to achieve justice.

We’ve lost sight of the fact that judges are people whose judment we must trust to do justice.  As Euripides put it, you must “judge a tree from its fruit, not from its leaves.”

The infamous Lily Ledbetter case is a perfect example of what has gone wrong.  As Gail Collins recently summed up the facts of the case:

Ledbetter, now 70, spent years working as a plant supervisor at a tire factory in Alabama. How, when she neared retirement, someone slipped her a pay schedule that showed her male colleagues were making much more money than she was. A jury found her employer, the Goodyear Tire and Rubber Company, to be really, really guilty of pay discrimination. But the Supreme Court, in a 5-to-4 decision led by the Bush appointees, threw out Ledbetter’s case, ruling that she should have filed her suit within 180 days of the first time Goodyear paid her less than her peers. (Let us pause briefly to contemplate the chances of figuring out your co-workers’ salaries within the first six months on the job.) Until the Supreme Court stepped in, courts generally presumed that the 180-day time limit began the last time an employee got a discriminatory pay check, not the first.

The operative language of the statute provided that “A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred.”  Interpretation of a statute is typcially described as an effort to determine the intent of the legislature that passed the statute.  Could Congress have intended to outlaw discrimination in employment on the basis of sex and yet have provided that someone who could not have found out about a discriminatory decision until long after it had intitially been made could not recover.  Such an interpretation seems absurd.  Thus, it is no surprise that prior to the Supreme Court’s decision courts had typically held that each new paycheck for an amount less than it would have been in the absence of the discrimination constituted an “alleged unlawful employment practice.”  Thus, the employee could sue for disrimination within 180 days after the most recent pay check that resulted from the discrimination.

These decisions made perfect sense.  As I said, it would be absurd to believe Congress intended people like Lily Ledbetter, who had no knowledge until she neared retirement that her pay was lower than that of her male colleagues merely because she is a woman, should not have an opportunity to sue over that unlawful discrimination.

Yet, “Justice” Alito held that that absurdity was precisely what the statute required the Court to find.  As Justice Ginsburg explained , joined by Justices Stevens, Souter, and Breyer in her dissenting opinion, Alito’s reading was a “cramped” one that flew in the face of what Congress plainly had intended:

[U]nder the Court’s decision, the discrimination Ledbetter proved is not redressable under Title VII. Each and every pay decision she did not immediately challenge wiped the slate clean. Consideration may not be given to the cumulative effect of a series of decisions that, together, set her pay well below that of every male area manager. Knowingly carrying past pay discrimination forward must be treated as lawful conduct. Ledbetter may not be compensated for the lower pay she was in fact receiving when she complained to the EEOC. Nor, were she still employed by Goodyear, could she gain, on the proof she presented at trial, injunctive relief requiring, prospectively, her receipt of the same compensation men receive for substantially similar work. The Court’s approbation of these consequences is totally at odds with the robust protection against workplace discrimination Congress intended Title VII to secure. See, e.g., Teamsters v. United States, 431 U. S., at 348 (“The primary purpose of Title VII was to assure equality of employment opportunities and to eliminate … discriminatory practices and devices … .” (internal quotation marks omitted)); Albemarle Paper Co. v. Moody, 422 U. S. 405, 418 (1975) (“It is … the purpose of Title VII to make persons whole for injuries suffered on account of unlawful employment discrimination.”).

This is not the first time the Court has ordered a cramped interpretation of Title VII, incompatible with the statute’s broad remedial purpose. See . . . 1 B. Lindemann & P. Grossman, Employment Discrimination Law 2 (3d ed. 1996) (“A spate of Court decisions in the late 1980s drew congressional fire and resulted in demands for legislative change[,]” culminating in the 1991 Civil Rights Act (footnote omitted)). Once again, the ball is in Congress’ court. As in 1991, the Legislature may act to correct this Court’s parsimonious reading of Title VII.

Congress did fix the Court’s wrong, and on January 29 of this year President Obama signed into law the Lilly Ledbetter Fair Pay Act.  But it should never have gotten to that point.  Judges should judge, should bear the fruit of justice.  To say so is not to argue that judges should ignore what the law says.  But it is to say that judges should be open to what the law does as well, and that what the law ultimately is supposed to do is justice.

Thus, I would like the Obama administration to appoint judges whose judgement we can respect and trust, and to push hard to re-educate the public about what law and justice are — to, in other words, begin to redress the cultural tide of the last 30 years that has learned to fear critical judgment and to ignore justice.

Effective Storytelling, McDonald’s Coffee, and the Law

That effective stories arise from a relatively limited set of recurring patterns is no secret. The existence of these archetypes may be one more blow to the Romantic myth that creativity grows out of individual genius, but, as regular readers of this page will learn, I don’t believe creativity arises, divinely inspired, from individual geniuses.

But creative lawyers know the patterns of effective stories, as I was reminded again the other day when I read Alexander Star’s review of Charles Tilly’s Credit and Blame. Star writes:

Reflecting on tort cases, Tilly suggests that we possess something like an “all-purpose justice detector.” When something good or bad happens, we measure the magnitude of the change, identify an agent who helped bring it about and assess how the agent’s skills, knowledge and intentions figure in the result. How much blame does the Ford Motor Company deserve when an Explorer rolls over on the highway? The answer, Tilly writes, depends on how badly the driver or passenger was injured, whether Ford should have known the crash was likely to happen and whether it intended to build the car the way it did. Lawyers argue this way in civil suits, but couples apply similar rules of thumb when they argue over who left the car windows down.

I think it is very astute of Tilly to identify this pattern of blame in tort cases: (1) how badly was the plaintiff injured, (2) should the defendant have known the injury was likely to happen, and (3) did the defendant intend to create the likelihood of the injury.

An excellent example of this pattern at work is the infamous McDonald’s Coffee Case, the inspiration for the Stella Awards, which “were inspired by Stella Liebeck, who in 1992, aged 79, spilled a cup of McDonald’s coffee onto her lap, burning herself. A New Mexico jury awarded her $2.9 million dollars in damages.”

Just last week at physical therapy for rapidly improving sciatica (thanks to my outstanding physical therapists), I was teased again with the way the McDonald’s Coffee Case exemplifies the supposed idiocy of the personal injury system. The physical therapists know I’m a law professor. How can I blame them? Tilly’s pattern explains their reactions perfectly: they must think the following: (1) How bad could the injury have been? We’ve all spilled coffee on ourselves. (2) Even if the injuries were bad, how could McDonald’s have known? Again, we’ve all spilled coffee on ourselves, and who among us have suffered burns meriting $2.9 million in damages? (3) McDonald’s sells coffee! How could it possibly have intended to burn Ms. Liebeck, when all it intended was to caffeinate her?

But a jury awarded Ms. Liebeck $200,000 in compensatory damages; this amount was reduced by 20 percent (to $160,000) because the jury found her 20 percent at fault. The jury also awarded her $2.7 million in punitive damages — but the judge later reduced that amount to $480,000, or three times the “actual” damages that were awarded. And that amount was compromised in a confidential settlement that resolved the appeal.

Were the jurors, judges, and lawyers who resolved this case simply insane? Are all the people who refer to the case when decrying the U.S. justice system just so much smarter than those people?

Ah, there’s another way of looking at the story, the way lawyers, juries, and judges look at cases they actually decide: through the evidence, and the evidence (as with the other facts from Ms. Lubieck’s case in this posti, from the True Stella Awards site) , viewed through Tilly’s paradigm, tell a very different story:

(1) How badly was Ms. Lubieck injured?

She ” was burned badly (some sources say six percent of her skin was burned, other sources say 16 percent was) and needed two years of treatment and rehabilitation, including skin grafts. McDonald’s refused an offer to settle with her for $20,000 in medical costs.”

(2) Did McDonald’s know the injury was likely to happen?

From 1982 to 1992, McDonald’s coffee burned more than 700 people, usually slightly but sometimes seriously, resulting in some number of other claims and lawsuits.

(3) Did McDonald’s intend to create the likelihood of injury?

McDonald’s quality control managers specified that its coffee should be served at 180-190 degrees Fahrenheit. Liquids at that temperature can cause third-degree burns in 2-7 seconds. Such burns require skin grafting, debridement and whirlpool treatments to heal, and the resulting scarring is typically permanent.

Witnesses for McDonald’s admitted in court that consumers are unaware of the extent of the risk of serious burns from spilled coffee served at McDonald’s required temperature, admitted that it did not warn customers of this risk, could offer no explanation as to why it did not, and testified that it did not intend to turn down the heat even though it admitted that its coffee is “not fit for consumption” when sold because it is too hot.

I’m not arguing that Ms. Liebeck’s case constituted the epitome of justice. As William Gaddis wrote, “Justice? – you get justice in the next world, in this world, you have the law.” What I am saying is that we are human, and we respond to the evidence we are told in the way we are told it. Effective lawyers know these truths. All truly creative people do.