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The Power of the SCOTUS IV: Gays, Guns, and Immigrants, OH MY!
- Thread starter dxmnkd316
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Re: The Power of the SCOTUS IV: Gays, Guns, and Immigrants, OH MY!
If there's two things this court seems to be liberal on, one seems to be treating under 18 year olds differently from adults in the criminal justice system, and the other is access to voting. At least as long as Anthony Kennedy is around, he and the liberal wing of the court overturns these laws every time. I read somewhere that the voter supression laws passed by Republicans leading up to the 2012 election were all overturned. As in opponents ran the table in court against these initiatives. That ought to tell you something.
Look, I'd like some laws tailored to my tastes too. For example, outlawing Boston College and tall women wearing high heels. However, if I passed these laws 20 times, and 20 times the courts struck them down, I'd like to think that maybe I'd move on to something else. Of course, as I'm not a knuckledragger, maybe that's why I can't relate to the loons who keep trying to enact this legislation.
If there's two things this court seems to be liberal on, one seems to be treating under 18 year olds differently from adults in the criminal justice system, and the other is access to voting. At least as long as Anthony Kennedy is around, he and the liberal wing of the court overturns these laws every time. I read somewhere that the voter supression laws passed by Republicans leading up to the 2012 election were all overturned. As in opponents ran the table in court against these initiatives. That ought to tell you something.
Look, I'd like some laws tailored to my tastes too. For example, outlawing Boston College and tall women wearing high heels. However, if I passed these laws 20 times, and 20 times the courts struck them down, I'd like to think that maybe I'd move on to something else. Of course, as I'm not a knuckledragger, maybe that's why I can't relate to the loons who keep trying to enact this legislation.
Re: The Power of the SCOTUS IV: Gays, Guns, and Immigrants, OH MY!
It is such a common mental error to confuse "correlation" with "causation." I'm a little surprised "disparate impact" has been granted so much deference as a theory. It seems like a clever scam: "i don't like the outcome and so I'm going to court. I have no proof of any crime whatsoever, other than the outcome itself. Hey, I've got it! I'll just argue that the existence of the outcome is sufficient to indicate that somewhere, somehow, some wrong-doing 'must have' occurred, even though I can't prove it, and if I can cloak it in enough clever language, maybe I can trick people into believing it despite the absence of evidence!"
It's been pretty successful so far. Have to give them credit for that at least.
It is such a common mental error to confuse "correlation" with "causation." I'm a little surprised "disparate impact" has been granted so much deference as a theory. It seems like a clever scam: "i don't like the outcome and so I'm going to court. I have no proof of any crime whatsoever, other than the outcome itself. Hey, I've got it! I'll just argue that the existence of the outcome is sufficient to indicate that somewhere, somehow, some wrong-doing 'must have' occurred, even though I can't prove it, and if I can cloak it in enough clever language, maybe I can trick people into believing it despite the absence of evidence!"
It's been pretty successful so far. Have to give them credit for that at least.
Fighting Sioux 23
New member
Re: The Power of the SCOTUS IV: Gays, Guns, and Immigrants, OH MY!
It's also a common legal error to confuse "getting into court" with "winning the case." Also, I'm not sure who you are referring to as "them." Pretty much any good lawyer would use this strategy, if necessary, for their client.
It's also a common legal error to confuse "getting into court" with "winning the case." Also, I'm not sure who you are referring to as "them." Pretty much any good lawyer would use this strategy, if necessary, for their client.
Re: The Power of the SCOTUS IV: Gays, Guns, and Immigrants, OH MY!
We agree on the latter. I am surprised that the argument has won as many cases as it has, given the absence of evidence it necessarily entails. "even though we can't prove anything, we infer that something must be 'wrong'." well, maybe so, but when you are assigning liability, you have to do more than merely find something wrong, no? It seems to me that the source of the 'wrongs' is not the party bearing the burden in these cases.
We agree on the latter. I am surprised that the argument has won as many cases as it has, given the absence of evidence it necessarily entails. "even though we can't prove anything, we infer that something must be 'wrong'." well, maybe so, but when you are assigning liability, you have to do more than merely find something wrong, no? It seems to me that the source of the 'wrongs' is not the party bearing the burden in these cases.
ScoobyDoo
NPC
Re: The Power of the SCOTUS IV: Gays, Guns, and Immigrants, OH MY!
The Feds spend all their time trampling on the States responsibilities.
The States spend all their time complaining about the Feds.
Sets up the perfect system for reelection cause no one is accountable for anything cause they're all busy worrying about the other guy.
The Feds spend all their time trampling on the States responsibilities.
The States spend all their time complaining about the Feds.
Sets up the perfect system for reelection cause no one is accountable for anything cause they're all busy worrying about the other guy.
unofan
Well-known member
Civil litigation is like a tennis match. The plaintiff must show enough to establish the basic case. The defendant then gets to refute the plaintiffs case and establish any affirmative defenses. The plaintiff then has the burden of refuting the affirmative defense and fully establishing its case. Ultimately, the plaintiff needs to make a jury find that it's just slightly better than a 50/50 shot it is right. Ties go to the defendant, but 50.000000001% goes to the plaintiff.
In the context of disparate impact cases, the first step usually involves showing thru statistics that people of certain characteristics are less likely to be hired on a magnitude of a certain confidence interval. That gets the ball over the net. It doesn't win the case outright.
If you do 100 coin flips, and it comes out 55 heads and 45 tails, that wouldn't be enough. But if it ended up 80 heads and 20 tails, you'd probably think something fishy was going on even though it could happen randomly because it is extremely unlikely to be random. At that point, its on the coin flipper to prove the coin wasnt loaded. This is the same type of thing that gives rise to disparate impact claims.
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Re: The Power of the SCOTUS IV: Gays, Guns, and Immigrants, OH MY!
Don't underestimate the need for disparate impact cases. Discrimination still occurs in the workplace, it's just a lot more subtle than it was 40-50 years ago. The days of a supervisor saying "we don't hire n*****s" has long since passed, but only a very naive person believes there is no ongoing discrimination in this country on the basis of race or sex.
It's very difficult to prove a disparate impact case. However, I suggest you look at it from the side of the person affected. Let's assume you're a woman who would really like to be a firefighter. But the City declares that only people who can bench press 150 lbs. 15+ reps are qualified, even though it's a demonstrable fact that no such physical requirement is a necessary job requirement.
There are a lot of very subtle ways employers can find to try to exclude undesirable candidates, candidates whose undesirable condition is not their talent, but their age, sex, or race.
I'd be curious to see what percentage of discrimination cases are "disparate impact" cases, versus those that are the more traditional "disparate treatment" cases. I'm going to just guess that a very small percentage are the former, and well over 90% are the latter.
Don't underestimate the need for disparate impact cases. Discrimination still occurs in the workplace, it's just a lot more subtle than it was 40-50 years ago. The days of a supervisor saying "we don't hire n*****s" has long since passed, but only a very naive person believes there is no ongoing discrimination in this country on the basis of race or sex.
It's very difficult to prove a disparate impact case. However, I suggest you look at it from the side of the person affected. Let's assume you're a woman who would really like to be a firefighter. But the City declares that only people who can bench press 150 lbs. 15+ reps are qualified, even though it's a demonstrable fact that no such physical requirement is a necessary job requirement.
There are a lot of very subtle ways employers can find to try to exclude undesirable candidates, candidates whose undesirable condition is not their talent, but their age, sex, or race.
Re: The Power of the SCOTUS IV: Gays, Guns, and Immigrants, OH MY!
Have you ever tried on firefighter gear?
Had you ever done so, you would know from first-hand experience that a considerable amount of physical strength is indeed a necessary job requirement. Perhaps using a bench press isn't the best metric. How about, anyone who wants to be a firefighter has to wear full firefighter gear and run up a three-story stairway in less than 90 seconds, say. It seems to me that many men as well as most women would be disqualified; and many current firefighters will come to be disqualified as they grow older.
I appreciate the perspective of one group of people affected. At the same time, other people also are affected. Suppose your child is in a burning building and needs to be rescued. A certain amount of physical strength and stamina is undoubtedly required both to be able to move around carrying all that gear while also lugging the weight of a frightened child. How would you feel if your child burned to death because the firefighter sent to rescue him/her was physically unable to move the child out of harms way?
It's a complex issue with many sides. I don't think one can automatically assume that just because an outcome appears to be "disparate" that it is automatically the result of invidious discrimination. Certain jobs have demanding requirements for very good reasons.
I would not want someone designing an airplane without an advanced degree in aviation engineering. Unofan posted earlier that having specialty requirements for specialty positions is not automatically discriminatory against people who lack those qualifications (in response to a query about the scarcity of people under 6'1" playing in the NBA).
Have you ever tried on firefighter gear?
Had you ever done so, you would know from first-hand experience that a considerable amount of physical strength is indeed a necessary job requirement. Perhaps using a bench press isn't the best metric. How about, anyone who wants to be a firefighter has to wear full firefighter gear and run up a three-story stairway in less than 90 seconds, say. It seems to me that many men as well as most women would be disqualified; and many current firefighters will come to be disqualified as they grow older.
I appreciate the perspective of one group of people affected. At the same time, other people also are affected. Suppose your child is in a burning building and needs to be rescued. A certain amount of physical strength and stamina is undoubtedly required both to be able to move around carrying all that gear while also lugging the weight of a frightened child. How would you feel if your child burned to death because the firefighter sent to rescue him/her was physically unable to move the child out of harms way?
It's a complex issue with many sides. I don't think one can automatically assume that just because an outcome appears to be "disparate" that it is automatically the result of invidious discrimination. Certain jobs have demanding requirements for very good reasons.
I would not want someone designing an airplane without an advanced degree in aviation engineering. Unofan posted earlier that having specialty requirements for specialty positions is not automatically discriminatory against people who lack those qualifications (in response to a query about the scarcity of people under 6'1" playing in the NBA).
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Re: The Power of the SCOTUS IV: Gays, Guns, and Immigrants, OH MY!
To me, the more challenging aspect of "disparate impact" is that the wrong parties are being sued in the first place.
Let's assume, for the sake of discussion, that it takes an income to housing payment ratio of 35% to qualify as a good credit risk.
Let's also assume that a certain racial or ethnic minority has a disproportionately few number of people compared to the population at large in being able to meet that ratio (for example, this minority has lower incomes on average, and housing prices where these minorities live are high enough so that, between lower incomes and higher housing prices, very few members of this minority group can meet the target ratio).
Finally, let's agree that the reason this minority has lower incomes is the result of past discrimination by employers, educators, "society" at large.
Given all of these assumptions, how can one possibly maintain that a lender in today's marketplace is the cause of this prior discrimination?
That's the link in the chain that fails the test.
According to Unofan, it is reasonable for a lender to have minimum standards on a potential borrower's ability to make loan payments before extending the loan. That is pure math: show us your income, show us what you want to pay for the desired property, we do an amortization calculation, look at the resulting ratios, and either you qualify or you don't. Everything else is completely colorblind. No one has a name in the application process, they are all given a number so that there can't possibly be subtle discrimination based on an assumed ethnic / minority status based on the name. It's all done in a "check off the box" process, so that there can't possibly be subtle discrimination based on verbal ability. It's all done electronically, so that there can't be subtle discrimination based on appearance or the sound of one's voice.
Nevertheless, if the lender doesn't make "enough" loans to members of this minority group, the "disparate impact" claim is that the lender is the party doing the discriminating, when in our chain of assumptions, it is the residual effect of prior years' discrimination by society at large where the actual discrimination did occur.
So while there is "discrimination," the party being found liable under the "disparate impact" standard is the wrong party and is being punished for something it never did.
To me, the more challenging aspect of "disparate impact" is that the wrong parties are being sued in the first place.
Let's assume, for the sake of discussion, that it takes an income to housing payment ratio of 35% to qualify as a good credit risk.
Let's also assume that a certain racial or ethnic minority has a disproportionately few number of people compared to the population at large in being able to meet that ratio (for example, this minority has lower incomes on average, and housing prices where these minorities live are high enough so that, between lower incomes and higher housing prices, very few members of this minority group can meet the target ratio).
Finally, let's agree that the reason this minority has lower incomes is the result of past discrimination by employers, educators, "society" at large.
Given all of these assumptions, how can one possibly maintain that a lender in today's marketplace is the cause of this prior discrimination?
That's the link in the chain that fails the test.
According to Unofan, it is reasonable for a lender to have minimum standards on a potential borrower's ability to make loan payments before extending the loan. That is pure math: show us your income, show us what you want to pay for the desired property, we do an amortization calculation, look at the resulting ratios, and either you qualify or you don't. Everything else is completely colorblind. No one has a name in the application process, they are all given a number so that there can't possibly be subtle discrimination based on an assumed ethnic / minority status based on the name. It's all done in a "check off the box" process, so that there can't possibly be subtle discrimination based on verbal ability. It's all done electronically, so that there can't be subtle discrimination based on appearance or the sound of one's voice.
Nevertheless, if the lender doesn't make "enough" loans to members of this minority group, the "disparate impact" claim is that the lender is the party doing the discriminating, when in our chain of assumptions, it is the residual effect of prior years' discrimination by society at large where the actual discrimination did occur.
So while there is "discrimination," the party being found liable under the "disparate impact" standard is the wrong party and is being punished for something it never did.
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unofan
Well-known member
All of that being said, do you not agree that some employers create false job requirements which are facially neutral but whose sole purpose is to discriminate? Because that's what we're talking about.
unofan
Well-known member
I think you clearly are talking about a specific case here, and it is one which you likely have either been told only one side of things or which you have decided which side to believe.
Without seeing the arguments of the other side, I can't respond with why it might nonetheless be valid. My guess would be your initial assumptions are not as concrete as you are making them out to be.
Re: The Power of the SCOTUS IV: Gays, Guns, and Immigrants, OH MY!
that might be what you want to talk about....
the conversation about "disparate impact" actually started because it is not enough merely to prove that "discrimination" occured somewhere. In a fair and reasonable system, it should not be enough merely to prove that discrimination exists, it also should be necessary to demonstrate that the party being sued also was actually the party who did the discriminating. "disparate impact" fails the latter test even though it proves the former.
that might be what you want to talk about....
the conversation about "disparate impact" actually started because it is not enough merely to prove that "discrimination" occured somewhere. In a fair and reasonable system, it should not be enough merely to prove that discrimination exists, it also should be necessary to demonstrate that the party being sued also was actually the party who did the discriminating. "disparate impact" fails the latter test even though it proves the former.
unofan
Well-known member
So in your mind no housing company, mortgage provider, or employer has ever created extra or unnecessary qualifications or requirements for discrimination. That's what I'm taking away from your evasion of that simple question. The rest is simply window dressing trying to use the extremes against the middle.
Re: The Power of the SCOTUS IV: Gays, Guns, and Immigrants, OH MY!
Nice rhetorical trick there. I was talking about the situation as it exists today, and you turn that into "ever". Did you and Priceless go to the same school of dissembling and evasion? you are uncomfortable with the conversation and so you shift it into some absurd extreme that wasn't ever part of what was actually going on in the here-and-now?
who said anything about "ever"?
I wish you'd save that nonsense for the political threads and keep at least a few places politics-free. You do have some useful insights to offer when you aren't reflexively defending progressives.
Nice rhetorical trick there. I was talking about the situation as it exists today, and you turn that into "ever". Did you and Priceless go to the same school of dissembling and evasion? you are uncomfortable with the conversation and so you shift it into some absurd extreme that wasn't ever part of what was actually going on in the here-and-now?
who said anything about "ever"?
I wish you'd save that nonsense for the political threads and keep at least a few places politics-free. You do have some useful insights to offer when you aren't reflexively defending progressives.
Fighting Sioux 23
New member
Re: The Power of the SCOTUS IV: Gays, Guns, and Immigrants, OH MY!
Well, as for ties, obviously that depends on the state, but the tennis match is a great analogy in this situation. Just because side A gets their serve in play, it doesn't mean that they've won the point. Side B still has the ability to defend and win the point.
I'm really not sure what FreshFish doesn't get, but s/he's looking at it from a completely one-sided viewpoint...uh oh, am I being too political???
Well, as for ties, obviously that depends on the state, but the tennis match is a great analogy in this situation. Just because side A gets their serve in play, it doesn't mean that they've won the point. Side B still has the ability to defend and win the point.
I'm really not sure what FreshFish doesn't get, but s/he's looking at it from a completely one-sided viewpoint...uh oh, am I being too political???
FlagDUDE08
Banned
Re: The Power of the SCOTUS IV: Gays, Guns, and Immigrants, OH MY!
Someone's never heard of affirmative action quotas.
Someone's never heard of affirmative action quotas.
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