Tuesday, April 29, 2008

Secunda on "Me Too" Evidence

Secunda Paul Secunda (Mississippi for a few more days, then to Marquette) has just posted on SSRN his essay (forthcoming Northwestern U. L. Rev. Colloquy) The Many Mendelsohn 'Me Too' Missteps: An Alliterative Response to Professor Rubinstein.  Here's the abstract:

Although one might have the misimpression that the missteps referred to in the title of this paper indicate a criticism of the U.S. Supreme Court's ADEA decision of Mendelsohn v. Sprint/United Management Co., it does not. I believe the unanimous Court opinion is correct: 'Me too' evidence should be admissible in certain instances based on evidentiary principles and based on the overriding importance of context in such cases, as further discussed in Professor Mitchell Rubinstein's Colloquy Essay, 'Mendelsohn v. Sprint/United Management: The Supreme Court Appears to Punt Whether 'Me Too' Evidence of Discrimination is Admissible or Does It?'
Rather, the missteps I have in mind are three and include: (1) my own misstep for writing in a previous Workplace Prof Blog post, before the decision, that a per se rule against this type of evidence would be adopted by the usual conservative Supreme Court Justice suspects; (2) the misstep made by the Supreme Court for granting certiorari in the first place in this rather mundane (legally speaking) employment discrimination case; and (3) the misstep of Professor Rubinstein in suggesting that the decision in Mendelsohn will provide 'important medicine' for employment discrimination plaintiffs and in concluding that this 'me too' evidentiary issue may again raise its narcissistic head before the Court.

I agree with Paul on this one.  The Supreme Court didn't exactly punt in Mendelsohn -- it appropriately held that trial courts are in the best position to make evidentiary rulings.  That being said, as Paul points out, most of these evidentiary rulings are likely to go in employers' favor for the near future because so many federal judges have been appointed from the defense bar.

Update:  Mitch's reply, both to Paul and to an essay by David Gregory, is here.



Employment Discrimination, Scholarship | Permalink

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