You Can’t Rely on Prior Wages or Salary to Pay Women Less

One of the last cases of Judge Reinhardt’s life had to do with the Equal Pay Act of 1963.

He wrote the decision, which was published last week, and it begins with these words:

“The Equal Pay Act stands for a principle as simple as it is just: men and women should receive equal pay for equal work regardless of sex. The question before us is also simple: can an employer justify a wage differential between male and female employees by relying on prior salary? Based on the text, history, and purpose of the Equal Pay Act, the answer is clear: No.”

This decision means that employers can’t defend against claims of unequal pay under the EPA by pointing to an employee’s prior wages or salary. They can’t rely on prior pay either by itself or in combination with other factors to justify unequal pay. The decision applies to California and eight other states.

Under the Equal Pay Act, you can only pay men and women differently if it’s based on seniority, merit, productivity, or “any other factor other than sex.” This case had to do with that fourth, catch-all exception.

The Court ruled that prior salary doesn’t count because “any other factor” besides sex refers to legitimate job-related factors like hours, shifts, training, education, experience, ability, or past job performance. To rule otherwise would allow employers to defend a sex-based pay differential on the basis of the very pay differentials the EPA was designed to close.

“Rather than use a second-rate surrogate that likely masks continuing inequities, the employer must instead point directly to the underlying factors for which prior salary is a rough proxy, at best, if it is to prove its wage differential is justified under the catchall exception.”

He’s right, and it’s now the law in the Ninth Circuit.

Farewell to the Great Liberal Lion

Stephen Reinhardt, one of the most influential federal judges of the past half century, died suddenly yesterday. Here’s the news from the L.A. Times.

We called him the liberal lion if we liked him and other names if we didn’t. He didn’t care. Like the late, great Harry Pregerson, he cared about which outcome was right or just, and if you read enough of his writings, you knew it. Asked if it bothered him to see the Supreme Court reverse his rulings, he said no. “If they want to take away rights, that’s their privilege. But I’m not going to help them do it.”

His colleagues called him “deeply principled, fiercely passionate about the law and fearless in his decisions. He will be remembered as one of the giants of the federal bench.”

And you can read more tributes and remembrances herehere, and here.

According to the Times, his family has asked that, in lieu of flowers, donations in his memory be made to the American Civil Liberties Union.

The Greatest Generation, Indeed

Harry Pregerson passed away on Saturday, and if you haven’t heard of him, he’s worth learning about and remembering. If you’re like me, you never met him, but you knew who he was because you practiced law in Los Angeles (or California, for that matter, and a lot of other states, too). And if you’re like me, you’ll miss him because you think the world needs more people like him, and you wonder if we’ve got it in us.

The short version is that he was a state and federal judge in L.A. for over fifty years, but that doesn’t begin to cover it. He was born and raised in L.A. and was a member of the Greatest Generation if there ever was one. He was student-body president in high school and college, but he left college early to join the Marines during World War II. He could’ve stayed in school, I imagine, but lucky him, he enlisted in time for the Battle of Okinawa, where he was severely wounded in both legs. He then finished college, studied law, and by all accounts, spent the rest of his life trying to help as many people as he could. His daughter nicknamed him “the rescue machine” when she was a teenager.

Ask those who knew him, and they’ll tell you he saw the law for what it meant to people’s flesh-and-blood lives, not as a set of abstract ideas. He saw it as a means to achieve justice, and he took on the problems of others as if they were his own. No matter who they were.

Asked what he would do if the law ever violated his conscience, he famously told the United States Senate, “My conscience is a product of the Ten Commandments, the Bill of Rights, the Boy Scout Oath, and the Marine Corps Hymn. If I had to follow my conscience or the law, I would follow my conscience.”

And that was at a hearing to decide if he would be confirmed as a judge. Needless to say, he was confirmed.

Judge Pregerson is survived by his wife, children, grandchildren, and great-grandchildren. You can read tributes and obituaries everywhere from the L.A. Times to the New York Times to the Great Falls Tribune in Montana.

A memorial service will be held Friday at the Shrine Auditorium in Los Angeles.

Commemorating a Courtroom Legend

One of the great professional experiences of my life was the year I spent working for a federal trial judge in Los Angeles. Fresh out of law school in 2005, I served as a law clerk to the Honorable Manuel Real, who was appointed by President Johnson in 1966 and has presided there in the district court since. He’s a walking, living legend of the law.

Judicial clerkships are sought-after jobs for good reason. You learn more about litigation in that year than you ever could by practicing law in any other capacity. It’s because you read and analyze a lot of briefs, and you watch and listen to a lot of lawyers. You see it all from good to run-of-the-mill to bad, and it’s not always what, or whom, you’d expect.

Last year, I was asked to write a piece to commemorate Judge Real’s fiftieth year on the bench, and recently, it was published in the newsletter of the Federal Bar Association in Orange County. Here’s a link to the newsletter if you’re interested, and you’ll find my profile of Judge Real on page ten. Or you can just keep reading below. You’ll hear about bank robberies, business litigation, and even a little gardening.


What do you say when someone celebrates fifty years on the bench?

Plenty in Judge Real’s case if you ask me, and since someone did, here’s my piece.

Who am I? Well, I was the Judge’s 62nd law clerk: one of two during the 2005-06 term, and one of 82 now overall. A lot of those clerks feel the way about him that I do, so I’m delighted to help commemorate this very special jubilee; it’s a deep and sentimental honor for me.

The Judge hired me when I was 26 years old, and he made a big impression on me from the beginning.

For one thing, he seemed like the strongest 82 year old in the world. I remember we flew to Arizona once to sit by designation, and at the airport, I found myself scampering ten or fifteen feet behind him because he was tearing along at a brisk pace with all of his luggage in tow. It was the gait of a man who knew where he was going. A lot of folks have marveled at his vitality over the years, and the Judge will often attribute it to his gardening, but I’m not sure you’d grasp what he means by that if you haven’t seen some of the gardening he’s done.

Here’s a story for you. A few years ago, I went to visit him at home, and when I got there, he was all by himself; no Mrs. Real, no family. He asked me to give him a hand with something, so we headed back toward the garden, and I saw that he was already in the middle of some heavy-duty project. Before I knew it, he brought over a ladder and power saw, and he said we were going to clear out some tree branches and foliage. That sounded good to me in the abstract, but then I found myself at the foot of a very tall ladder, staring up at my 86-year-old former boss, who happened to be a federal judge, perched on the penultimate rung. And above him, the tree branches loomed large and thick. It would’ve been a tough job for someone half his age.

Suddenly, I was pretty worried. And I didn’t like my options. I couldn’t ask him to come down from there any more than I could’ve told him not to go up in the first place. Not to someone like Judge Real, and not in his own house, anyway. But my mind was running and my adrenaline pumping. All I could think about — in addition to his falling and hurting himself — was how in the world I would account for that afterward to his family, or the world.

So I held onto that ladder as best I could and braced myself to break his fall or do whatever else.

But you know what? I didn’t need to worry. The Judge climbed that ladder to the top, stood firmly at its crest, and starting mowing down branches like nobody’s business. Before I knew it, I was getting covered down there with leaves and branches. At some point, he came down to take a break, and I offered to go a round. He didn’t go up again after that, and that was the end of it. But boy, what a moment that was.

And I have to tell you, I was astonished by that. I really couldn’t believe he did something like that at his age, and there was never a moment while he was up there that he seemed unsteady or precarious. The whole thing just blew me away.

But then the Judge is impressive in a lot of ways.

I remember a patent case we had that went to trial. It was a difficult, esoteric case, and the jurors had a hard time following along or even trying to. I found my own thoughts wandering, and I was supposed to be the apprentice law clerk. The Judge, however, actively presided over the trial and lobbed incisive questions from the bench. In the fog of a dry witness examination, he would get the testimony moving again with a series of short, focused questions. The longer I practice, the more I’m impressed by that case and how the Judge exerted the same energy and attention that one might summon in, say, a bank robbery.

Speaking of bank robberies, I remember one of those went to trial, too. The defendant was a middle-aged man who’d walked into a bank and passed a note. It was, like many bank robberies, a nonviolent act of turmoil and desperation. The guy had lost his job, his wife had left him, and his life was falling apart. So he went and robbed a bank. No gun or other alarming facts, just a guy with a note. It was sad and pitiable. He got caught, and now he was looking at a serious term of imprisonment under the federal sentencing guidelines.

There was no jury this time, and the case was tried to the court. I do recall the evidence was sufficient to convict the man, but then I wasn’t the trier of fact, though I’m not sure I would’ve come out differently if I was.

Well, the Judge acquitted him. I’m not saying the evidence was overwhelming, but there was plenty of room to convict if he wanted to. Although I’ve never asked the Judge about it, I believe it was a pure, unsung display of mercy and judgment by a judge whom no one would characterize as easy or soft. Mind you, the law of federal sentencing was in a state of upheaval at the time. The Supreme Court had just declared the guidelines to be advisory, not mandatory, but there was a lot of commotion about it, and the dust hadn’t settled like it has since.

Sometimes, the Judge disagreed with me, and those were the best lessons. One time, we got a motion for attorney’s fees after a disabled-access case had settled. The plaintiff’s lawyer was asking for $103,000, and the defendant, a restaurant, said it should be $13,000. I split the baby and recommended an award of $65,000. I argued that the lawyer’s hourly rate was reasonable and that the award, even if generous, would compensate him for the risk he took in bringing the case and his success in obtaining defendant’s compliance with the law. Or so I thought.

After the Judge reviewed my bench memo, he posed just one question: Could I research the court dockets for cases involving this plaintiff and lawyer? Sure thing, Judge. And so I did, and what I found was quite interesting. In the past three years, the plaintiff had filed at least 21 of these lawsuits in the California federal courts alone. In each case, his complaint made the same boilerplate claim that he’d fallen in a toilet at some restaurant. In two of these cases, he even alleged that it happened on the same day in two different restaurants — on opposite ends of the state. His lawyer in every case? You can take a wild guess.

The two had quite a racket going. They would file a lawsuit based on their boilerplate claims; bring in a consultant to identify every technical violation of disabled-access laws, few of which had anything to do with the plaintiff’s personal claim; settle the case for next to nothing but the defendant’s promise to bring itself into compliance; declare victory; and move for attorneys’ fees, which I suspect the two probably shared to some extent. But this wasn’t the Judge’s first rodeo, and needless to say, they didn’t get what they asked for.

There are a lot of things that you learn in a textbook, but when you learn by doing, and you peel back an onion that way, it tends to stay with you.

In that case, rather than acceding to the parties’ settlement, the Judge pursued a more just result, and he got it.

But that’s how he approaches work every day in my estimation. He’s a prototypical trial judge. During my clerkship, he would often remind us that, as a matter of fact, “we decide these cases.” He knows that it’s his job to decide them, and he understands that, while the court of appeals is there to review them, appellate review isn’t always an adequate remedy for injustice. He knows that, in nearly every case, the most important contest in the lives of those involved is the one decided in his court. And he knows that not everything that happens in a case or courtroom transfers to an appellate record, anyway. He wants to do justice.

Even generations of defendants whom he’s supervised on probation write to him, still — decades after he’s sentenced them or terminated their probation — to thank him for taking the time to judge them in a way that improved the balance of their lives.

That kind of stuff makes an impression on you, too.

In the end, everyone will have his or her critics — we all do — and fifty years of judging will earn you a few.

But I’ve learned that Judge Real cares only to do the best he can every day in law and in life. May we all do it so well.

His style may hark back to the brand of judge he used to appear before in his day, but his instincts are sound, his philosophy just, and his heart tucked securely in the right place. He is a good man in a preternatural sense, one of the very best I know, and I’m proud to call him a friend and mentor. Happy anniversary, Judge, and here’s to many more.

The Straight Scoop on Crime Rates

Want to know the truth?

Here are five facts about crime in America. They don’t come from sound bites, talking heads, internet memes, or bloviating politicians. They come from the Federal Bureau of Investigation (FBI) and the U.S. Justice Department’s Bureau of Justice Statistics (or BJS). And they’re brought to you by the Pew Research Center, a nonprofit, nonpartisan think tank.

The rate of violent crime has fallen sharply over the last 25 years. Both the FBI and BJS data show a steep decline in the violent-crime rate since the early 1990s.

So has the rate of property crime. This category includes things like theft, burglary, and vandalism. Generally, they’re a lot more common than violent crime.

We, the public, can’t seem to handle the truth. Time and again in opinion polls, a majority of Americans say they believe crime is up, even when it’s down by double-digit percentages.

There are big differences in crime rates depending on where you live. This may not surprise you. The FBI attributes it to factors like population density and economic conditions, among others.

Many crimes go unreported. That may not surprise you, either. Although the FBI does not track unreported crime, the BJS does. We get the most complete picture by studying both data sets. According to the BJS, there are a variety of reasons why people don’t report crime. These include a feeling that police would not or could not do anything to help or that it was a personal issue or too trivial to report.

A Big Anniversary for the Bill of Rights

Thursday will mark 225 years to the day.

On December 15, 1791, the Commonwealth of Virginia became the eleventh state to ratify the first ten amendments to the U.S. Constitution. That meant that three-fourths of state legislatures had approved them, which meant the Bill of Rights was born.

To commemorate the occasion, here’s a great essay about one of its architects, James Madison. It talks about how Madison opposed a bill of rights at first because he feared that it would limit people’s essential rights to just those listed. He thought a list wasn’t necessary in a new system in which the people were sovereign and the government derived its power from their consent. He also believed that the real buffer against a tyranny of the majority lay in the Constitution’s structural checks and balances: federalism, bicameralism, and the separation of powers. Eventually, though, Madison came around, and at the first Congress of the United States, he introduced the amendments that became the Bill of Rights.

The ten amendments enshrine many of our most important rights and freedoms. They declare that, in America, you’re meant to be free in the following ways, among others.

  • You’re free to say, think, and believe what you want to say, think, or believe.
  • You’re free to print, publish, and broadcast information even if the government opposes it.
  • You’re free to associate with others, band together peaceably, and petition the government to redress your grievances.
  • The government can’t take your life, liberty, or property if it doesn’t follow fair and objective rules.
  • It can’t search or seize you, your home, or your property unreasonably or without following the rules.
  • It can’t take your property and put it to public use without paying you fairly for it.
  • It can’t punish you without telling you why and giving you a meaningful chance to defend yourself.
  • It can’t punish you excessively or inhumanely, no matter what.

For the full text of the U.S. Bill of Rights, see here. 

 

 

 

Our Great Living Poet

Bob Dylan won the Nobel Prize for Literature on Thursday, and it was nice to see the news. You may not know it depending on your walk of life, but Dylan is one of the great American poets of the past hundred years, and he’s had a lot to say about law and justice, too. He’s apparently the first songwriter to win the award, but that just means he writes poems and translates them into song and music. He reportedly hasn’t responded to the news yet, but it doesn’t matter. The honor is already his.

In tribute, below are the lyrics to one of my favorites. It’s not about law or justice, but it’s pure poetry written almost entirely in one- or two-syllable words. I’ve been singing a few lines from it to my son as a lullaby, and I hope you enjoy it, too, again or anew.

Hey, Mr. Tambourine Man, play a song for me
I’m not sleepy, and there is no place I’m going to
Hey, Mr. Tambourine Man, play a song for me
In the jingle jangle morning I’ll come followin’ you

Though I know that evenin’s empire has returned into sand
Vanished from my hand
Left me blindly here to stand but still not sleeping
My weariness amazes me, I’m branded on my feet
I have no one to meet
And the ancient empty street’s too dead for dreaming

Hey, Mr. Tambourine Man, play a song for me
I’m not sleepy, and there is no place I’m going to
Hey, Mr. Tambourine Man, play a song for me
In the jingle jangle morning I’ll come followin’ you

Take me on a trip upon your magic, swirlin’ ship
My senses have been stripped, my hands can’t feel to grip
My toes too numb to step
Wait only for my boot heels to be wanderin’
I’m ready to go anywhere, I’m ready for to fade
Into my own parade, cast your dancing spell my way
I promise to go under it

Hey, Mr. Tambourine Man, play a song for me
I’m not sleepy, and there is no place I’m going to
Hey, Mr. Tambourine Man, play a song for me
In the jingle jangle morning I’ll come followin’ you

Though you might hear laughin’, spinnin’, swingin’ madly across the sun
It’s not aimed at anyone, it’s just escapin’ on the run
And but for the sky there are no fences facin’
And if you hear vague traces of skippin’ reels of rhyme
To your tambourine in time, it’s just a ragged clown behind
I wouldn’t pay it any mind
It’s just a shadow you’re seein’ that he’s chasing

Hey, Mr. Tambourine Man, play a song for me
I’m not sleepy, and there is no place I’m going to
Hey, Mr. Tambourine Man, play a song for me
In the jingle jangle morning I’ll come followin’ you

Then take me disappearin’ through the smoke rings of my mind
Down the foggy ruins of time, far past the frozen leaves
The haunted, frightened trees, out to the windy beach
Far from the twisted reach of crazy sorrow
Yes, to dance beneath the diamond sky with one hand waving free
Silhouetted by the sea, circled by the circus sands
With all memory and fate driven deep beneath the waves
Let me forget about today until tomorrow

Hey, Mr. Tambourine Man, play a song for me
I’m not sleepy, and there is no place I’m going to
Hey, Mr. Tambourine Man, play a song for me
In the jingle jangle morning I’ll come followin’ you

The Circle of Life

Earlier this month, the California Court of Appeal published an interesting DUI case that we may talk about next week.

This week, I want to talk about something else.

My wife and I welcomed a baby boy into the world on Saturday. He’s our first. He spent his first three days in the Neonatal Intensive Care Unit, where he gave us a couple good scares. But he’s emerged with a clean bill of health, and we got to take him home last night.

What does this have to do with law and justice?

Only that, like most parents, I feel the weight of responsibility for his new life, and I’m more acutely aware than ever that my generation—or rather, our generations—are responsible for what becomes of this world.

We’re responsible for what becomes of us as a people and planet, and there’s no silver bullet. No magic potion. No easy fix. Anyone who tells you different is lying to you.

As man’s relationship to government evolves in this century, it’s up to us to be the adults in the room. It’s up to us to defend our common rights, freedoms, and dignity. It’s up to us to create and preserve a world in which our children can be safe, healthy, and happy.

With that, may God bless the United States of America, and may God bless my little boy every day of his life.

The Future of FOIA and Open Government

Speaking of anniversaries, this July 4, we didn’t just celebrate the 240th birthday of the Declaration of Independence; we also celebrated the 50th birthday of the Freedom of Information Act, which President Lyndon Johnson signed into law on July 4, 1966.

To honor the occasion, the Washington Post penned a pithy homage to this engine of open government that helps define what democracy means in the modern world.

The Post also reported, as did others, that the FOIA’s golden birthday coincided with President Obama’s signing into law the FOIA Improvement Act of 2016, a bipartisan effort to update and improve the statute going forward.

We’ve got a ways to go, still, no doubt. In practice, you don’t always get the documents you want. You often don’t get them on time, and you may not get them in their full, unredacted form. You may have to fight like hell for them, and you may have to sue.

So the statute isn’t perfect, that’s for sure.

But for the moment, let’s blow out these fifty candles and wish for many, many more.

The 50th Anniversary of Miranda

“The quality of a nation’s civilization can be largely measured by the methods it uses in the enforcement of its criminal law.”

This month marks the fiftieth anniversary of the U.S. Supreme Court’s seminal decision in Miranda v. Arizona.

To commemorate the occasion, here’s a great write-up on why the case matters so much and how we can do even better going forward.

But you should read the opinion for yourself if you can. It chronicles the history of the Fifth Amendment’s right against self-incrimination. It catalogues many of the standard police interrogation practices that remain current today. And it makes a moral case for an adversarial system that respects the dignity of its people over an inquisitorial system that simply overpowers them.

This last point becomes ever more important in our lifetimes as the balance of power between people and the state shifts decidedly, and permanently, in favor of the state.

Whether you read it or not, below is the core of the Miranda opinion, which describes what we’ve come to know as the Miranda warnings and which I’ve revised to make easier to read.

* * * * * *

We spell out our holding with some specificity in the pages that follow, but briefly stated, it is this: a prosecution may not use any statement that people make to police in a custodial interrogation unless it demonstrates that police used effective safeguards to protect the right against self-incrimination. By custodial interrogation, we mean any questioning that police initiate after they take people into custody or otherwise deprive them of their freedom of action in any significant way.

For the safeguards to be employed, we require the following procedures in the absence of other, fully effective ways to inform people of their right to remain silent and ensure they have a continuous opportunity to exercise it.

Before any questioning, the police must warn people that they have a right to remain silent; that any statement they make may be used against them as evidence; that they have a right to have an attorney there with them before they’re interrogated; and that they’re entitled to have an attorney appointed for them if they can’t afford one.

People may waive these rights as long as they do so knowingly, voluntarily, and intelligently. But they also reserve the right to change their minds and ask for a lawyer at any time, and if they do, the police must stop questioning them. The mere fact that people may answer some questions or volunteer some statements on their own does not deprive them of the right to refrain from answering further questions until they’ve consulted an attorney and consented to more questioning.

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