The Many Mendelsohn “Me Too” Missteps: An Alliterative Response to Professor Rubinstein

By Paul Secunda[*]

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Introduction

Although one might have the impression that the missteps referred to in the title of this paper indicate a criticism of the U.S. Supreme Court’s ADEA[1] decision of Sprint/United Management Co. v. Mendelsohn,[2] 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.[3]

Rather, the missteps I have in mind are: (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;[4] (2) the misstep made by the Supreme Court for granting certiorari 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[5] and in concluding that this “me too” issue may again raise its narcissistic head before the Court.[6]

Before considering these missteps, it is first important to briefly observe that Mendelsohn does present a common recurring question of proof in employment discrimination cases: whether a district court should admit “me too” evidence offered by either plaintiff or defendant.[7]  “Me too” evidence is testimony by non-parties alleging discrimination at the hands of persons who played little to no role in the adverse employment decision being challenged by the plaintiff.[8]  A split panel of the Tenth Circuit in Mendelsohn held that a court commits reversible error by adopting a blanket rule to always exclude “me too” evidence.[9]

A Floor, Not a Ceiling: Federalism and Remedies for Violations of Constitutional Rights in Danforth v. Minnesota

By Ilya Somin[*]

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Few doubt that states can provide greater protection for individual rights under state constitutions than is available under the Supreme Court’s interpretation of the Federal Constitution.  More difficult issues arise, however, when state courts seek to provide greater protection than the Court requires for federal constitutional rights.  Can state courts impose remedies for violations of federal constitutional rights that are more generous than those required by the Federal Supreme Court? That is the issue raised by the Court’s recent decision in Danforth v. Minnesota.[1]  In a 7-2 decision joined by an unusual coalition of liberal and conservative justices, the Court decided that state courts could indeed provide victims of constitutional rights violations broader remedies than those mandated by federal Supreme Court decisions.  I contend that this outcome is correct, despite the seeming incongruity of allowing state courts to deviate from the Supreme Court’s interpretation of the Federal Constitution.  The Supreme Court should establish a floor for remedies below which states cannot fall. But there is no reason for it to also mandate a ceiling.

Part I briefly describes the facts and background to Danforth.  In Part II, I provide a doctrinal justification for the Supreme Court’s decision.  It makes sense to allow state courts to provide more generous remedies than those mandated by the federal courts in cases where restrictions on the scope of remedies are not imposed by the Constitution itself, but are instead based on policy grounds.  State courts can legitimately conclude that these policy grounds are absent or outweighed by other considerations within their state systems, even if they are compelling justifications for restricting the scope of remedies available in federal courts.  State courts are in a better position to weigh the relevant tradeoffs in a state legal system than federal courts are.

Part III explains the potential policy advantages of allowing interstate diversity in remedies, most importantly inter-jurisdictional competition and an increased ability to provide for diverse citizen preferences and local conditions across different parts of the country.  The optimal remedy for a constitutional rights violation in New York may well be different from the optimal remedy for one that occurs in Mississippi.

Engaging Capital Emotions

By Douglas A. Berman[*] & Stephanos Bibas[**]

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Louisiana seeks to execute Patrick Kennedy for raping his eight-year-old stepdaughter.  As the Supreme Court weighs the death penalty for this child rapist, commentators are aghast.  The New York Times and the Los Angeles Times editorial pages call child rape a heinous horror but dismiss this reality.[1]  The death penalty, they claim, is inherently excessive for crimes short of homicide; visceral disgust at child rape, they assert, clouds reasoned reflection about proportional punishment.  This position reflects long-standing criticisms of the death penalty as an expression of raw vengeance, a hot passion that clouds dispassionate justice.  The march of justice seems to be in the other direction: away from emotion and towards reason, from Dr. McCoy to Mr. Spock, from the Furies to Athena in Aeschylus’ Eumenides.

But the Furies will not die so easily, nor should we disdain them.  Emotions and the passions they create are ever-present in our legal system.  They bubble beneath any seemingly cool, detached analysis of crime and punishment.  As astute observers highlight, debates over criminal law and practices turn not on neutral deterrence-speak, but rather on emotion-laden claims and concerns.[2]  The undercurrents of emotion are especially salient in death-penalty debates.  Those who deny or bemoan the benighted persistence of passion fail to appreciate its role.[3]

In this short Essay, we suggest that the conventional attitude toward emotion in punishment is misguided.  Part I begins by describing the existing legal terrain, and then Part II evaluates it normatively.  Descriptively, emotion is unavoidable in criminal justice and particularly in capital punishment.  Indeed, recognizing emotion’s role helps to explain many features of capital-punishment jurisprudence, from the debate over execution methods in Baze to the exemption of juvenile and mentally retarded defendants in Roper and Atkins.[4]  Normatively, emotion is crucial to a criminal justice system that seeks both to educate citizens with its symbolism and to channel their justified outrage.  Emotions deserve respect, especially when they reflect the public’s moral perspective that certain crimes have profound emotional resonance.

Bargaining in the Shadow of the European Microsoft Decision: The Microsoft-Samba Protocol License (Part II)

By William H. Page[*] & Seldon J. Childers[**]

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III.  The Microsoft-Samba Agreement

On December 20, 2007, the Protocol Freedom Information Foundation[78] (PFIF) and Microsoft Corporation agreed (the WSPP/No Patents agreement) that Microsoft would license, on terms friendly to open source developers like Samba, all of the protocols disclosed under the ongoing American and European protocol licensing programs.[79]  The Software Freedom Law Center (SFLC)[80] created the PFIF as a nonprofit Delaware corporation to hold the master license and to license the documentation to free or open source developers.[81]  The PFIF paid Microsoft a one-time royalty fee of €10,000.[82]  The agreement provides a royalty-free[83] copyright and trade secret license permitting liberal use of the protocols and documentation, subject to confidentiality and non-disclosure restrictions.[84]  In this Part, we describe the negotiations and the terms of the agreement from the perspectives of both sides.

Bargaining in the Shadow of the European Microsoft Decision: The Microsoft-Samba Protocol License

By William H. Page[*] & Seldon J. Childers[**]

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[Editor's Note: This week, we are pleased to present Professor Page's and Mr. Childers's Article on the Microsoft-Samba Protocol License.  Part I appears today.  Part II of this Article will appear later this week.]

Introduction

On March 24, 2004, the European Commission (EC) held that Microsoft had abused its dominant position under Article 82 of the European Community Treaty[1] by, among other actions, refusing Sun Microsystems’ request for information that Sun needed to interoperate with Windows workgroup server products[2]  The EC ordered Microsoft to disclose “complete and accurate specifications for the protocols used by Windows work group servers in order to provide file, print, and group and user administration [i.e., directory] services to Windows work group networks.”[3]  On September 17, 2007, the European Court of First Instance (CFI) affirmed the EC’s liability ruling and its remedial order.[4]  About a month later, Microsoft’s CEO, Steve Ballmer, reached an agreement with the head of the EC’s competition authority, Neelie Kroes, on the terms under which Microsoft would license the protocols.[5]  In December 2007, with the active encouragement of the EC, Microsoft reached a licensing agreement for the covered protocols with Samba, an open-source development project that produces server software that emulates the behavior of Microsoft’s server operating systems.[6]  The parties have begun to implement the agreement.[7]

The Microsoft-Samba agreement is by far the most important tangible outcome of the European Microsoft case.  The EC’s other remedial order in the case, which required Microsoft to create a version of Windows without Windows Media Player, was an embarrassing failure.[8]  Immediately after the Ballmer-Kroes agreement, some anticipated a similar fate for the remedial order addressing Microsoft’s refusal to supply rivals in the workgroup server market.[9]  The Samba agreement, however, is significant because it requires Microsoft to provide, to its most important rival in the server market, detailed documentation of its communications protocols, under terms that allow use of the information in open-source development and distribution.  There is good reason to believe that Samba will be able to use the information to compete more effectively with Microsoft because Samba’s development methods depend specifically on analysis of communications protocols.  In a closely related development, Microsoft has now published all of the covered protocols on its website.[10]  While these actions will certainly enhance interoperability, they may also facilitate cloning and thus devalue Microsoft’s intellectual property. Thus, it remains unclear whether the license will enhance or inhibit dynamic, innovative competition in the long run.

In this short Article, we assess what the Microsoft-Samba license might mean, both for the market and for antitrust policy.  In doing so, we rely on published sources and on interviews with some of the key players in the negotiations.  On the Microsoft side, we spoke to David Heiner, Microsoft’s lead in-house antitrust counsel, and to Craig Shank, its lead negotiator for the Samba license.  On Samba’s side, we spoke to Eben Moglen, a professor at Columbia Law School, whose Software Freedom Law Center provided legal representation for Samba.  In Part I, we briefly describe the function of servers and communications protocols in computer networks. We then discuss the special significance of the Samba project in the server market.  Part II summarizes the reasoning of the EC and CFI in the workgroup server side of the European Microsoft case.  Part III describes the negotiations that produced the agreement and spells out the terms of the resulting license.  In Part IV, we consider the possible implications of the license and the disclosure process for Samba, Microsoft, and competition policy.

Human Rights and Globalization: Putting the Race to the Top in Perspective

By Holning Lau[*]

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David Law paints a heartening picture in his engaging article, Globalization and the Future of Constitutional Rights.[1]  Globalization, he argues, promotes the protection of human rights. “As capital and skilled labor become increasingly mobile, countries will face a growing incentive to compete for both by offering bundles of human and economic rights that are attractive to investors and elite workers.”[2]  Law predicts that this competition will resemble a “race to the top” of the rights terrain.[3]

While I generally agree with Law’s descriptive argument, I caution against the optimism behind a “race to the top” metaphor.  My optimism is qualified because I question the strength and sustainability of human rights protections derived primarily from economic interests, as opposed to normative principles concerning human dignity.[4] 

This Essay unfolds in three parts.  In Part I, I draw from my experiences in Asia to support Law’s claim but also to put it in perspective by introducing the potential limitations of human rights protections derived from economic interests.  Part II elaborates on the limited reach of rights reforms stimulated by states’ desire to enhance market competitiveness.  This section extends Law’s metaphor to articulate three hypotheses.  First, while some states are racing all the way to the top, most of the countries referenced by Law are not actually going the distance and are, instead, running a truncated race—racing to provide a level of rights protections that leaves significant room for improvement.  Second, among the competitors in the race to the top, losers have diminished incentives to finish the race.  Third, states that complete the race to the top are at risk of swiftly slipping down the hill they just climbed.  Finally, Part III restores optimism, explaining that human rights advocates can take measures to overcome the scenarios just described.