Social justice and results-oriented law

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The following is from Thomas Sowell. Intellectuals and Society. pp. 271 - 277

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Fundamental rights of individuals guaranteed by the Constitution of the United States, and by legal traditions that go back even farther than the Constitution, can be lost as a result of judicial rulings based on seeking particular social results in accordance with judges’ social visions. In so far as the nebulous phrase “social justice” might have any discernable meaning, it seems to be that merely formal justice is not enough, but must be either supplemented or superceded by a kind of justice based on desirable social results. In any event, the rule of law — “a government of laws and not of men” — is the antithesis of results-oriented “social justice,” for the results are to be chosen according to the preferences of particular individuals empowered to pick and choose desirable outcomes, rather than applying rules known in advance to all and binding on both citizens and judges.

Perhaps the ultimate in result-oriented law was that dispensed by “Representatives on Mission” in revolutionary France during the 1790s. Representatives on Mission were particular members of the ruling Convention, chosen to go about the country righting wrongs, empowered to act “above all existing laws and authorities”:

They could make arrests, create revolutionary courts, conduct trials, erect guillotines. They could nullify, extend or curtail the force of any law. They could issue decrees and proclamations on any subject. They could fix prices, requisition goods, confiscate property, collect taxes. They could purge any existing government body, or, if they chose, dissolve government bodies altogether, replacing them with committees of their own nomination.

This was the ultimate in results-oriented law. While no one is advocating creating Representatives on Mission today, this is the general direction in which many are urging courts to move, by emphasizing “results” over rules. Particular judges have in fact appointed people — aptly called “masters” — to prescribe and oversee the policies and operations of prisons, schools or other governmental institutions, and judges have even ordered state legislators to raise taxes.

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Perhaps nothing is more fundamental to the American legal tradition than the requirement that the burden of proof be on the prosecution in criminal cases and on the plaintiff in civil cases. Yet the zeal for “results” has led to putting the burden of proof on the accused to prove their innocence in certain arbitrarily chosen classes of cases. This principle, or lack of principle, appeared in anti-trust law before being applied in civil rights cases.

The Robinson-Patman Act, for example, made price discrimination illegal, except under certain conditions. But once a prima facie case was made that different prices had been charged to different customers, the accused business had to prove that the exceptions — such as cost differences in serving those particular customers, sufficient to justify the price differences — applied. Since the apparently simple word “cost” conceals complexities that can keep accountants, economists and lawyers on both sides tied up in endless disputes, it may not be possible for either the accuser or the accused to prove anything conclusively. This means that the accused either loses those cases or else settles them out of court on whatever terms can be negotiated, given the virtual impossibility of proving one’s innocence in many cases.

The more fundamental problem, however, is that the burden of proof has been put on the accused, contrary to centuries-old traditions applied in most other cases.

The same results-oriented legal principle of putting the burden of proof on the accused reappeared later in court cases involving civil rights laws and policies. Here again, all it takes is a prima facie case — that is, an accusation not meeting even the civil law standard of preponderance of evidence — based simply on statistical “under-representation” of minorities or women in an enterprise’s workforce, to put the burden of proof on the employer to show that discrimination is not the reason. No burden of proof whatever is put on those who presume an even or random distribution of achievements or rewards between racial or other groups in the absence of discrimination, despite vast amounts of evidence from both history and contemporary life of wholly disproportionate achievements among individuals, groups and nations.

An employer who has hired, paid and promoted individuals without regard to race or sex can nevertheless find it either impossible or prohibitively expensive to disprove the accusation of discrimination. For example, the Equal Employment Opportunity Commission brought a sex discrimination case against the Sears department store chain in 1973, based solely on statistics, without being able to produce even one woman, either currently or previously employed in any of Sears’ hundreds of stores across the country, to claim that she had personally been discriminated against. Yet this case dragged on through the courts for 15 years, and cost Sears $20 million to litigate, before the Seventh Circuit Court of Appeals eventually ruled in Sears’ favor.

Since very few employers have that kind of money to spend on litigation, or can afford the negative publicity of such a damning charge hanging over them for so many years, most settle such cases out of court on whatever terms they can get — and these numerous settlements are then cited in the media and elsewhere as proof of how much discrimination there is. Again, all of this goes back to the practice of putting the burden of proof on the accused. Had the burden of proof ben put on the E.E.O.C., the case might never gotten as far as a trial in the first place, since the E.E.O.C. did not have even one woman who claimed that she had been discriminated against. All it had were statistics that did not fit the prevailing preconception that all groups would tend to proportionally represented in the absence of discrimination.

A similar case, one that went all the way up to the Supreme Court, again taking 15 years from the time of the original trial, produced a decision in favor of the accused employer that was subsequently overturned when Congress passed a new law restoring the burden of proof to the accused. In this case, the Wards Cove Packing Company, based in Washington state and Oregon, ran a fish canning operation up in Alaska. Since it recruited its management where the firm’s main offices were located and recruited its canning workforce where the fish were caught, this led to a predominantly white management, based in Washington and Oregon, and a predominately non-white workforce in Alaska. This statistical fact became the basis for charges of discrimination. The Ninth Circuit Court of Appeals upheld the charge of discrimination but the Supreme Court over-ruled that decision and remanded the case for reconsideration. This set off a storm of criticism in the media and among academics.

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Thomas Sowell now goes into some of the uproar in the press and among the academics. He cites newspaper editorials in the New York Times, Washington Post, Boston Post, etc. He then states: The response from academics was no less strident, no less filtered in its presentation of facts, and no less focused on “results”. He then cites comments of professors from Oxford, Yale, UCLA, etc.

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This burden of proof on employers was not mandated by the Civil Rights Act of 1964. On the contrary, in the Congressional debates preceding passage of the Act, Senator Hubert Humphrey and other leaders of the fight to pass this legislation explicitly repudiated the idea that statistical disparities would be enough to force an employer to try to prove that he was not discriminating.

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Apparently those journalists, academics and others who expressed outrage at the Wards Cove decision somehow just know that employer discrimination is the reason for statistical disparities, so apparently it is only a matter of making it easier for courts to reach that same conclusion. What this amounts to is that those members of society who are viewed unfavorably by the anointed are not to have the same rights as the general population, much less the privileges of those whom the anointed view favorably. The idea that law is about making it harder or easier for some preselected segment of society to win lawsuits against some other preselected segment of society runs through many, if not most, of the criticisms of the Wards Cove decision by intellectuals. In short, they wanted “results” — and Congress gave it to them with the Civil Rights Restoration Act of 1991, which put the burden of proof back on the employer, unlike the Civil Rights Act of 1964.

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26 Jan 2024