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PaperclipPerfector  1yr ago (text post)   26927 thread views

Culture War Roundup for the week of September 25, 2023

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But it doesn't have to be that way.

That is my point. It ISN'T that way, which is why your hypothetical is not particularly germane.

Why should we wait for adjudication to determine a penalty? Why can't the original writers of the rule specify their own penalty?

Again, that is what authors of real laws usually do.

So if I understand you correctly, at this point in time we don't know what the penalty for breaking the "no discrimination" law is,

No, that is not quite right. We know what types of remedies are available for torts. That is quite well established. What we don't know is what the damages will be in this particular case. Eg: if I am wrongfully denied admission to Harvard, and have to go to Purdue instead, then my damages would be something like the present value the difference between the income I am likely to earn in my life as a Purdue grad versus what I likely would have earned as a Harvard grad. And that, of course, depends on things like my major; if I am a Social Work major, then my damages are going to be less than if I am a Business major, and if I am a Civil Engineering major, I might have no damages at all.

No, that is not quite right. We know what types of remedies are available for torts. That is quite well established. What we don't know is what the damages will be in this particular case.

It's not just that we don't know what the damages will be in this specific case, it's also that we don't know what the damages will be in the generic racial-discrimination-in-university-admissions case. At best, we know that the penalty in this case will be a subset of the remedies in tort law, and that in future cases like this one, the remedies will also be a subset of the remedies in tort law, though not necessarily the same subset. This is only slightly more helpful than not knowing anything at all. Knowing that the available remedies for torts are X, Y, and Z is like knowing that the remedies for a foul in soccer are free kicks, penalty kicks, yellow cards, red cards, lifetime ban, etc. The part that you really want to know is what the algorithm is for figuring out which of those remedies applies in any specific case.

Eg: if I am wrongfully denied admission to Harvard, and have to go to Purdue instead, then my damages would be something like the present value the difference between the income I am likely to earn in my life as a Purdue grad versus what I likely would have earned as a Harvard grad. And that, of course, depends on things like my major; if I am a Social Work major, then my damages are going to be less than if I am a Business major, and if I am a Civil Engineering major, I might have no damages at all.

Is this a statement of what you think will happen or is this what you think should happen? That is, do you think that as of this ruling, every White and Asian person who has been rejected from any AA-practicing university in the past few decades will be able to sue successfully for monetary damages equal to the drop in expected earnings they suffered? Alternatively, is there established tort law that says "when a university wrongly denies admission to someone, the damages are to total the loss in expected earnings, no more, no less"?

The reason I'm trying to nail down a specific penalty is because it sounds like the current system is a judge flipping a coin to decide whether to take your case and then pulling a number out of an ass for the damages, which is very much The Rule Is Whatever I Say It Is Because I Am In Charge.

That is, do you think that as of this ruling, every White and Asian person who has been rejected from any AA-practicing university in the past few decades will be able to sue successfully for monetary damages equal to the drop in expected earnings they suffered?

  1. That depends on whether the decision applies retroactively, which can be complicated.
  2. Decades? Certainly not, because of statute of limitations issues
  3. Even more importantly, a given applicant would have to prove that he or she would have been admitted, if not for the affirmative action policy, which would be extremely difficult, if not impossible.

the current system is a judge flipping a coin to decide whether to take your case and then pulling a number out of an ass for the damages

I can assure you that that is not the case. First of all, why you think courts have discretion not to take a case is beyond me. As for damages, there are entire books published on the subject of tort damages and a whole slew of jury instructions on the topic. And see here:

How do litigators prove and attack compensatory damages? Proving damages Compensatory damages must be proven by a preponderance of the evidence – although courts may apply other burdens of proof such as reasonable certainty or substantial evidence, depending on the case. Proving compensatory damages typically requires presenting documentation such as receipts, testimony from the plaintiff or other witnesses about the impact of the tort on the plaintiff’s life, and, in some cases, expert testimony. Whether an expert is necessary depends on the facts and circumstances of the case, including the type of injury and the damages claimed.

Attacking damages Defendants attack damages evidence in the same ways they attack other evidence in the plaintiff’s case. This can be done by filing motions in limine – pretrial motions requesting that certain evidence be found inadmissible and not referred to or offered at trial – to exclude evidence of damages or limit an expert’s testimony.

Defendants can also move to exclude or disqualify an expert (sometimes called a “Daubert motion”), cross-examine witnesses, as well as introduce contradictory evidence and expert testimony about the existence and/or amount of damage the plaintiff has suffered.

How do litigators calculate compensatory damages? When calculating the plaintiff’s damages – or attacking the other side’s calculation – it is important to consider damage principles, claim valuation methods, and jury instructions.

Damage principles The collateral source rule: Benefits that an injured person receives from sources that have nothing to do with the tortfeasor may not be used to reduce the tortfeasor’s liability to the injured person. Mitigation: This doctrine of avoidable consequences holds that an injured plaintiff has a duty to take reasonable steps to minimize its damages and will not be able to recover for any losses which could have easily been avoided. Comparative negligence and contributory negligence: the affirmative defenses in negligence cases can greatly impact a plaintiff’s damages. States differ in apportionment of fault in tort cases. Claim valuation methods Adding up economic damages like medical bills and lost wages is relatively straightforward, but valuing intangibles like emotional distress is more complex. Two mathematical methods are typically used for noneconomic damages; the multiplier method and the per diem method.

The multiplier method: Start with the amount of the plaintiff’s economic damages and multiply them by a number between 1.5 and 5. The multiplier will depend on a variety of factors that a jury would consider in calculating pain and suffering. The per diem method: Some courts permit a calculation based on how many days an injury caused pain and suffering with a standard amount charged for each day; oftentimes a person’s daily salary is a measure. Jury instructions J>ury instructions may assist in calculating economic and noneconomic damages, or limit how counsel argue about the valuation. For noneconomic damages like “pain and suffering,” juries are sometimes told to assess damages that are “fair and reasonable” without much guidance. Litigators must come prepared to argue why the proposed changes are “fair and reasonable.”

That depends on whether the decision applies retroactively, which can be complicated.

Why wouldn't every decision apply retroactively? When a court interprets a law in a precedent-setting way, isn't the idea that the law is and has always been that way, and that earlier courts had simply gotten it wrong? If this specific case of SFFA v. Harvard had featured a specific plaintiff, wouldn't that person be entitled to damages? If so, why that person and not others? It seems to me that all decisions of this nature must be applied retroactively by virtue of the fact courts typically rule on events that happened in the past.

Decades? Certainly not, because of statute of limitations issues.

That's fair. We can limit it to the last few years. I don't think this changes much.

Even more importantly, a given applicant would have to prove that he or she would have been admitted, if not for the affirmative action policy, which would be extremely difficult, if not impossible.

This takes me back to my original point, which is that if this is truly the case, then the law isn't If You Discriminate On The Basis Of Race Then You Have To Pay That Person Some Amount of Money. It's If You Discriminate On The Basis Of Race Then Nothing Happens To You Because No One Person Can Prove Anything. I appreciate you educating me on tort law (I mean this sincerely; sorry if I come across as combative but I do appreciate the lesson on something I know very little about) but it's kind of irrelevant if we never get to the point where damages are being calculated.

That said, is the standard of proof really that an applicant has to show that they would have been admitted but for their race? For employment discrimination, as far as I'm aware, you don't have to prove that you would have been hired/not-fired but for your race/sex/etc. You only need to prove that your protected group status was a significant factor in the decision. Is university admissions different, and if so, is that difference spelled out in law?

I can assure you that that is not the case. First of all, why you think courts have discretion not to take a case is beyond me.

Maybe "take a case" is not the step where attempts at justice are thwarted, but my impression is that it is often the case that people are in theory legally entitled to some compensation but cannot reach the point where a court issues a decision on their complaint. My point is that in order for "AA is illegal" to be true, there must be a reliable way for an entity that engages in AA to be penalized for that violation, and from what you said and what I see, it doesn't look like that will be the case.

it's kind of irrelevant if we never get to the point where damages are being calculated.

There are many attorneys who make a very good living representing victims of illegal discrimination. Moreover, class actions are often an option. Were there truly no remedy, defendants would not settle suits. But they do.

And note that attorneys fees in successful civil rights suits, which are paid by defendants, can often be much greater than the damages. https://en.wikipedia.org/wiki/Uzuegbunam_v._Preczewski

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