I can only assume that this is the type of result which is so egregious that it will travel up the court system and get the precedent overturned?

Up where? Only one place for him to go, and good luck with the current Supreme Court.

Much more likely that Congress changes the law first.

I don't think you're going to trick the SCOTUS into overrulling Ledbetter. They'll just deny this case cert.

Uh, I hadn't read the Times piece yet. I was just saying stuff. But now I have!

Alex Kozinski

I'm sure Kozinski got off a few good wheelchair jokes in the opinion, too. A laff riot, that judge.

4: He really is a snot-nosed Rand-enthusiast teenaged boy preserved in amber as a federal judge.

Being able to form a sequence of thought so perverse is a kind of genius in itself.

As I understand the way the law works, this precedent will stand and be scrupulously applied in discrimination cases, but will be entirely ignored in cases where the poor or minorities (or the disabled!) are being prosecuted.

I haven't read the case, and my gut response is the same as everyone's here, but the architect in me has doubts about the application of disability law. I have no reason to think that this plaintiff was engaged in the following behavior, but you do see self-appointed "disability rights activists"* going after small businesses in old buildings and suing them for accessibility. The ADA calls for "reasonable accommodation," and acknowledges limitations in existing buildings**, but these activists generally demand full accommodation regardless of circumstance, backed with the threat of court.

As I say, I don't get the impression that this plaintiff is doing that, but the underlying law may have as much to do with these issues as with Ledbetter.

That said, Kozinski really is a fucking tool.

* Often lawyers on contingency

** Basically, if you're not working on your building otherwise, you're not obliged to do very much at all to create accessibility

2003 was "10 years after the house was built". So it was built in 1993. ADA was 1990....

Man, that's crazy. There goes "no right without a remedy".

The old building problem is a mess, though. The building I live in, there doesn't seem to be any way to make it properly accessible -- it's set into a steep hill, and the entrance is down a flight of steps, and there isn't room anywhere to make it a ramp. We had a tenant a couple of years back with a degenerative disease that was going to put her in a wheelchair, and spent a couple of months talking to architects about whether there was any workable way to make the building accessible, and couldn't make it work. (IIRC, there was barely room for a wheelchair lift rather than a ramp; the people we talked to said that the downtime on lifts like that, given the sort of maintenance staff we had in a residential building, would be enough that the building wouldn't really be accessible anyway.) She sold her apartment and moved out, and I felt awful about it.

10: That's true, but "old" buildings that were actually build post ADA?

Oh, not this case; this case is insane -- I was just thinking about what JRoth said.

Man, that's crazy. There goes "no right without a remedy".

Seriously. This seems to me to be a good step more outrageous than Ledbetter, which was appalling enough.

Seriously. This seems to me to be a good step more outrageous than Ledbetter, which was appalling enough.

The thing is, I can actually see how you get to this decision if you take the logic of Ledbetter seriously. Which just goes to show you what a horribly flawed decision Ledbetter was in the first place.

in that sense, KR, there is some hope that more insane is good, if it gets people to think about how broken this is.

Wow. The opinion is here, and on a quick read it really is absurd. En banc (or the 9th Circuit's version thereof), with a slight dem-apointee tilt, no less. They would have gotten there even without Ledbetter, though, I think; it's certainly not the linchpin of the opinion. I haven't done the research but I'm fairly sure this is at odds with the law in several other circuits, so SC review at some point is not unlikely. Hopefully Congress will fix things before the Court can spread this around.

What do those of you with some grasp of Constitutional history make of this part of the NYT piece?

Congress and the courts have been tussling over the scope of civil rights for more than a century.
In 1883, the Supreme Court struck down a law that barred racial discrimination by hotels, theaters and railroads, saying Congress had exceeded its power. In 1988 and 1991, Congress expanded civil rights protections that had been curtailed by the Supreme Court.
In September, Congress repudiated several Supreme Court decisions that had undercut the Americans With Disabilities Act.
"There's a historic pattern of the court's being hostile to civil rights statutes and Congress stepping in to overturn those narrow court rulings," said Deborah L. Brake, a law professor at the University of Pittsburgh.

I can believe that this might be an accurate generalization over the broad sweep of history, but wouldn't it befit a piece of this sort to at least mention that interlude in the 1950s and 1960s when the Supreme Court extended the protections of the Constitution more aggressively than Congress?

14: Without having read the opinion yet, or knowing the ADA statute, the only arguments I can see for Ledbetter really don't apply here at all. In Ledbetter, her cause of action originally accrued when the first discriminatory decision was made -- based on that alone, you can see a primitive argument that she should have brought suit then. This guy's cause of action didn't accrue until after the statute had lapsed -- nothing else works like that.

Further, in the Ledbetter case, part of the argument was that the evidence necessary to put forth a defense all dated from the original discriminatory decisions. Part of the reason for statutes of limitations is that it's difficult to prove anything about the distant past, and it's wrong to expect someone to defend themselves against accusations about their conduct twenty years ago. That really doesn't apply here -- the relevant facts are all perfectly apparent in the condition of the apartment. Nothing from the time the building was built is, as far as I can see, relevant in the slightest.

This appears really screwy. I'm going to have to read it before I pop off about it anymore, but it's nuts.

I can believe that this might be an accurate generalization over the broad sweep of history, but wouldn't it befit a piece of this sort to at least mention that interlude in the 1950s and 1960s when the Supreme Court extended the protections of the Constitution more aggressively than Congress?

Maybe, but it's more important to emphasize that the Warren Court was the exception, not the rule. It's typical for the Court to be more reactionary than the elected branches, but it just doesn't seem that way thanks to our national fetishization of the 1960's.

18: Yeah, obviously I'm no lawyer and *also* haven't read the background stuff but it seems like a pretty clear cut difference. It's no like there is ambiguity about whether the building was accessible 8 years ago or whatever, is there?

17: Well, the 2008 ADA amendment repudiated SC statutory interpretations, not constitutional ones. Same, I imagine, with the 1988 and 1991 references. The 1883 case must be the so-called Civil Rights Cases, which basically held that Congress didn't have power, under the the 14th Amendment Sec. 5, to reach private discriminatory activity. This is still, more or less, good law: federal legislation on discrimination is generally sustained under the commerce clause, and there were some signs that this was in danger a decade or so ago (see the Violence Against Women Act). There's a distinction between constitutional protections against discrimination by the government on the one hand, and Congress's constitutional power to make private discrimination unlawful. The SC can't really police private discrimination, aggressively or otherwise, directly through the Constitution. But it's certainly true that the trend even w/r/t Congress's power to prohibit private discrimination is not as uniform as suggested in that excerpt.

Oh, wait. Actually, on reading it, it doesn't look that screwy. The defendants in question are the builders, who don't own and aren't associated with the building anymore. Plaintiff still seems to have had a cause of action against the current owners:

Despite the fact that his claims against Stewart and Brockway were timebarred, Garcia was able to obtain relief by settling with the current owners and management of South Pond with respect to his accommodations claim.

Erm, at that point I actually don't, offhand, have a problem with it. If we were talking about liability for the original builders/developers, who no longer owned it, that would be a wrong with no statute of limitations at all -- they'd be liable until the building was razed, and wouldn't have any power to proactively correct the condition. So long as the current owners are still on the hook, this doesn't seem crazy.

Is there any sort of evidence that Congress has any desire to do progressive or non-reactionary things in the present or future?

After all, this was not a Republican court making this decision.

The defendants in question are the builders, who don't own and aren't associated with the building anymore. Plaintiff still seems to have had a cause of action against the current owners

Ohhhh.

22: ah, that changes everything.

oh well, this is the interwebs, going off half-cocked without enough information is practically sacrosacnt.

I'm not 100% sure that it does change everything, but that's enough that I'd need to be doing close reading of the opinion and the statute before I griped about it. It might still suck -- this isn't law I know offhand -- but it's not clear to me that it sucks.

Huh, that is different, and I'm inclined to think less of the article for reporting this in the set of cases (someone searched for Ledbetter cites and didn't apply much filtering). Why would you even sue the builder rather than the current owner, anyway?

I really just scanned the opinion, but for one thing, it's not an ADA claim. It's a Fair Housing Act claim. What the plaintiff sued the builder for was a violation as follows:

The FHA prohibits the design and construction of multifamily dwellings that do not have certain listed accessibility features. 42 U.S.C. § 3604(f)(3)(C).

Sale or rental of a non-compliant dwelling is also a violation under 3604(f)(1) and (2), but if I've got the facts straight, the builders didn't rent to the plaintiff. Saying that 3604(f)(3)C) liability terminates two years after building stops actually makes sense to me, so long as (f)(1) and (2) liability is ongoing.

This is still off the cuff, and I could have it by the wrong end, but I think that's how it works.

Why would you even sue the builder rather than the current owner, anyway?

Heck, they sue everybody, including John Does 1-49

Drat, I lost track of your question. You'd sue the builder not instead of, but in addition to the current owner -- the current owner under (f)(1) and (2), and the builder under (f)(3). More defendants, more possible deep pockets, better.

Or what TLL said.

22: I'd missed that, and yes, it does mitigate the egregiousness of the opinion, but I don't think it eliminates it. The opinion is basically narrowing the scope of what constitutes the basis for a claim under the FHA, acting as if the only potential violation was in design-and-construction deficiencies (which would indeed be time-barred) rather than also a claim of discrimination in provision of facilities, etc., which arose at the time of attempted rental and clearly weren't time-barred. It might well be that the developer shouldn't be liable for the latter, but that's a substantive question, not a question of timing, and this opinion just evaporates those claims.

but that's a substantive question, not a question of timing, and this opinion just evaporates those claims.

It's very hard to tell from an appellate opinion if the sort of thing you're complaining about is acually a problem. It's not clear what precisely plaintiff pleaded, and what the elements of a (f)(1) or an (f)(2) claim are. If plaintiff's complaint doesn't state an (f)(1) or an (f)(2) claim against the builder, then the courts don't have to invent one. And we'd have to read the opinion of the trial court to know what exactly was before the appellate court. Maybe something wrongful happened here, but I don't see it clearly if it did.

Arrrrrrrrhhgghhh.

It's typical for the Court to be more reactionary than the elected branches, but it just doesn't seem that way thanks to our national fetishization of the 1960's.

Do you have a cite for this? Or are you opining? Either way, this strikes me as interesting. But I'm not convinced you're right. I can think of a variety of examples supporting the argument and at least a few refuting it. Again, I'd love to know if you've got a source that buttresses the claim -- and not because I'm challenging you, but because I'm genuinely interested.

||
A James Shearer just won a sub to Mother Jones from K-Drum.
|>

Kozinski type names seem associated with bad behaviors. That includes Jrzy, who was a plagiarist or something.

36: Go, Shearer! For correctly predicting the outcome of the election, yet.

35: I think the prevailing view is that the judiciary more or less converges with the elected branches in the long run. Don't have it to hand right now, but I know there's a chapter in Mark Tushnet's Taking the Constitution Away from the Courts with an obvious-enough title ("Assessing the Court" or something like that) that surveys the question and has plenty of references to other relevant discussion.

33: Yeah, you're right, of course, and I shouldn't take the dissent's oblique references as evidence that the plaintiffs asserted an (f)(1) or (f)(2) claim against the developers (though I checked the complaint just now, and in fact they did). More to the point, the 9th Cir. did actually address this, in a footnote that I'd overlooked earlier, although in a way that looks very weird to me. But maybe this isn't as expansive as I thought at first.

Yeah, they pretty much dismiss the (f)(1) and (2) claims in that footnote as not having been adequately pleaded (in that the elements of a claim for renting an apartment can't be stated against a defendant who didn't own the apartment), albeit in a backhanded kind of way. That made me wonder about the trial court opinion -- whether it had done the heavy lifting on that point.

38

Naturally I would like to claim this demonstrates my great political insight and wisdom but what I actually did was look up the odds on Intrade and go with the central tendency. So maybe prediction markets aren't completely worthless.

congrats, now what good things will happen to me this year?

42: You mean you don't have Intrade prices, read?

what I actually did was look up the odds on Intrade and go with the central tendency.

I have these derivatives you might be interested in.

I teach a whole course on derivatives.

I don't even own a derivative.

My work is pretty derivative.

H-G will be on CNBC tomorrow.

||

The UT band is playing Led Zeppelin for their halftime show. I think that means that Led Zeppelin has jumped the shark.

Now they're playing Stairway to Heaven! hee hee.

|>

So it was built in 1993. ADA was 1990....

I realize that we've now determined that it was an FHA claim, not ADA, but this is interesting; I began school in 1990, but I recall a prof in ~1992 talking about ADA as a looming danger.* It's possible that he meant that forthcoming litigation would be problematic; whether in the sense that I discuss in 8 or in the sense of 29, I don't know.

* The relevant phrase was "written by lawyers, for lawyers"

22 changes the analysis enough to warrant an update to the post. And a big "boo" for the NYT.

(And while the decision did seem almost impossibly screwy, even for Kozinski, kudos to LB for bothering actually to check some facts here.)

Do you have a cite for this? Or are you opining?

Just opining, though I dimly recall discussions of the Court lagging behind social progress and every so often scurrying to catch up. It's mostly an impression left by the Taney Court, the New Deal Court and the decades of dreary railroad lawyers from the years in between.

that was a rhetorical question

Story probably didn't think of himself as regressive. Hard to disagree on the period between 1870 and 1930, though. With some exceptions, like maybe Northern Securities.

read, I predict that you are going to find love and learn to cook unusually delicious dumplings in the coming year. and you will like the color blue-green more.

the decades of dreary railroad lawyers from the years in between

I fearlessly predict (since I presumably will not be around to be embarassed if I am wrong) that legal historians of the next century will look back on late 20th and early 21st century developments in intellectual property law the same way that contemporary scholars regard the era of "railroad lawyers". By what nefarious devices, future scholars will ask, did this small constituency manage to capture its purported regulators, seize control of vast tracts of public property, turn federal law enforcement to its private purposes, and anchor its favored policies in international law?

thank you, Alameida! a very nice prediction
as we say 'ezen xicheevel zaya xicheene' which means 'if one will be trying the fate will be trying too'
'trying' is there in a good sense, so i'll learn the dumplings, the chinese style maybe, coz in our style dumplings making i have maybe the black belts, just don't cook out of lazyness
i predict you too many nice things to happen in the new year

I'd like to think that 56 will prove correct.

57: What are Mongolian dumplings like?

that's not too many, but predicting
i really should adopt punctuation

with meat, mutton or beef, with cabbage and onion, i think i posted here once the link with its recipes and pictures of its making process
i'll post again if i find
the chinese dumplings are with shrimp or pork usually and the dough they use very thin, the most unusual filling my sister reported to me was carrots with salo (not bacon, but pork fat) with raisins, very tasty she said though i can't imagine the taste

Work on the dumplings first would be my advice. There's more you can do about that. Plus, once the dumplings are sorted out, love will surely not be far behind.

Work on the dumplings first would be my advice
hm, love, my friends when i talked to them through the skype recently said they are launching a national campaign to find me a husband this year, and suggested me to get an eye surgery for correcting the cross-eyes, as if like extreme makeover
i said, only through my corpse, the surgery,
coz strabismus is my second nature and it's not paralytic and i'm anethesia insensitive and i don't need a husband needing me to correct anything
nda, but braces i need i admit, late, but what to do, at least i'm trying
to find a baby donor mostly maybe, not a husband per se
but i'm indifferent to the prospect of having a baby too, like my own, it's too like distant and i love my nieces very much, so my baby needs are satisfied
so i really don't need anybody

i'm trying to find a baby donor mostly maybe

I make pretty babies, read.

i'm a nationalist

Oh, read.

This is the struggle final.
Let us group together, and tomorrow
The Internationale will be the human race.

[65 made me laugh out loud, by the way]

64 i know you are the best, perhaps i'd let you know if i'll change the mind and decide to have multiple babies
i was to post the comment and the server said access forbidden and i was like what a strict rules regarding nazis, very unfogged

You have to be strict with Nazis.

-a, i mean like an instant response, but it was you commenting

You have to be strict with Nazis.

Seriously. Give them an inch, and they'll take Poland.

You have to be strict with Nazis

I've seen that movie!
http://www.imdb.com/title/tt0071650/