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This is my first time posting so I hope I'm posting in the right place, following all the local conventions, etc. This is something that I've had on my mind for a while and this seems like one of the only places on the Internet where this kind of thing can go.
I've been thinking about how laws are described, and how lacking and vague they often are.
Imagine you are a preschool teacher, supervising a group of children on the playground. You decide to teach them the rules of soccer. You tell them some of the basic rules, like how there are two teams, and that the goal of the game is to score points by putting the ball into the other team's goal. You also tell them that You Are Not Allowed To Use Your Hands.
As the game begins, you leave to attend to some other business. When you return shortly afterward, all the children come flocking to you. They eagerly clamor to tell you that Johnny broke a rule. Specifically, he used his hand to stop the opposing team from scoring a goal. Johnny readily admits this, adding that he is sorry. One by one, the children line up to tell you what they think should happen.
Alicia says that Johnny should be given five minutes of timeout.
Braden says that Johnny's team should lose the game.
Carrie says that Johnny's opponents should be awarded one "point".
Darren says that Johnny should have to apologize to everyone else and promise never to do it again.
Esther says that Johnny should be banned from playing soccer because he clearly can't follow the rules.
Given the rule that you gave them (You Are Not Allowed To Use Your Hands), which, if any, of the children is correct? There is a correct answer in "real" soccer – Johnny's opponents should be given a free kick (or penalty kick, depending on where the offense occurred) and Johnny should be given a red card for denying a goalscoring opportunity. However, you never told the kids that rule. You only said that You Are Not Allowed To Use Your Hands. There was no way they could have figured out what your intended punishment for the infraction was. There's no reason why their suggestions aren't equally valid, since even though you stated that an action was illegal, you failed to tell them its consequences. Ultimately, you will have to appeal to the meta-rule of The Rule Is Whatever I Say It Is Because I Am The Adult And I Am In Charge, and the children will have a valid grumble about the arbitrariness of your tyrannical rule. However, their suffering is not in vain, as you have learned from this experience and in the future, you will formulate your rules in the form of a trigger ("when someone uses their hands") and a consequence ("the other team gets a free kick"), saving future generations of preschoolers from untold agony.
Okay, great. Some hypothetical preschoolers are unhappy. When has this ever happened in real life?
Take the case of the Pine Tar Incident. On July 24, 1983, the Kansas City Royals played the New York Yankees in a game of baseball. In the eighth inning, Royals third baseman George Brett hit a two-run home run, putting the Royals ahead 5-4. However, opposing manager Billy Martin then pointed out to the umpire that the bat Brett used to hit his home run had pine tar applied in an illegal fashion. Specifically, he contended that Brett violated the following rule:
The umpires examined the bat and agreed with Martin, ruling Brett out and his home run void. A whole flurry of events followed, including the Royals lodging a successful protest where the league office overruled the umpire's initial ruling and ordered a replay of the final innings of the game, stating that the appropriate consequence of the infraction was to remove the bat from the game, not overrule the home run that had been hit with it.
The ultimate ruling isn't very important, but the point is that Bats Can Have Pine Tar In Some Places But Not Others is the same kind of rule as You Are Not Allowed To Use Your Hands. It's a bad, ill-formed rule, leading to ad-hoc rulings that leave those involved feeling justifiably aggrieved. A better rule would be something like Bats That Have Pine Tar In The Wrong Places Will Be Removed From The Game. Indeed, Major League Baseball (one of the best-run organizations in terms of writing good rules) has recognized this deficit and has since amended its rule to be along those lines. Other examples of well-formed rules include If The Ball Goes Out Of Play Then The Other Team Gets A Throw-In (in soccer) or If A Pitcher's Socks Are Too Colorful He Has To Change Into Different Socks (in baseball), which both specify a clear trigger and consequence.
Obviously, these concepts apply to laws made by governments just as much as it applies to rules for games. There is a reason why the earliest laws read something like He Who Puts Another's Eye Out Shall Have His Own Eye Put Out and not like Putting Another's Eye Out Is Not Allowed. Transparency is important to having a fair set of laws, and clear consequences provide that transparency. In the case of Hammurabi's code, it means most people can live free from the fear of recreational eye stabbers, since they know that most people will be hesitant to stab eyes if it means getting their own eyes stabbed in return. On the other hand, if the law was Putting Another's Eye Out Is Not Allowed, the question of what the consequence is unanswered. In practice, it would default to The Law Is Whatever I Say It Is Because I Am The King And I Am In Charge, which is significantly more volatile. One would have to keep an eye out (har har) for eye stabbers that were unusually friendly with the king, for example.
How does this relate to the culture war? Well, I was thinking about the recent (okay, not really that recent) Supreme Court ruling on Affirmative Action. Every source I have ever read on the topic has talked about the ruling as something that says You Are Not Allowed To Discriminate On The Basis Of Race without any mention of what the consequences are. For example, the New York Times writes
Affirmative action is "unlawful", but what exactly is the penalty if someone discriminates on the basis of race? To draw a parallel to the preschool soccer situation above, one can easily imagine five people with the following suggestions:
All these suggestions are completely consistent with You Are Not Allowed To Discriminate On The Basis Of Race. In practice of course, the law defaults to The Law Is Whatever I Say It Is Because I Command A Byzantine Bureaucracy That Will Somewhat Enforce My Demands So I Am Vaguely In Charge. This is exactly the same kind of unclear situation as the handball and pine tar cases, except the stakes are much higher. If you ask various Experts (TM) what the current law actually is (in terms of trigger/consequence), you will only get speculation. Some say that universities will be able to continue to discriminate on the basis of race as long as it's in a way that isn't exactly the same as the way they had been doing in the past, while others say that the effect is slightly larger. No one knows what the law really is until it gets enforced.
On the other hand, there is also the possibility that we actually do know what the law is. After all, if a law is simply a trigger paired with a consequence, we've already witnessed at least one instance of the trigger (a university discriminating on the basis of race) along with the consequence brought about by that trigger (the universities are told nicely to stop doing whatever they were doing). That is, the law isn't You Are Not Allowed To Discriminate On The Basis Of Race, but rather If You Discriminate On The Basis Of Race, We Tell You To Stop Doing That. (As far as I know, the universities have not been penalized or ordered to compensate their victims in any way – if this is incorrect, I would be open to being corrected.)
If I'm right about this kind of law being bad, what can one reasonably do about this? If someone says "The Supreme Court just made affirmative action illegal", should I respond with "That is a non-central usage of the word 'illegal'"? If saying "AA is illegal now" is bad usage, what would be good usage of "X is illegal"? Certainly, there could be some cases where it is useful, as a code of laws can be made easier to understand if you group multiple triggers with the same consequence (for example, multiple actions in soccer are grouped together as "fouls" and have basically the same consequences). The category of "illegal" could be useful in a similar vein, where we group together various triggers that have the consequence "negative things happen to you". We could then exclude things from the "illegal" category if the consequences are not sufficiently bad, like how we don't consider earning income "illegal" even though it results in losing some amount of money through taxes.
I don't know how to end the post so this is the end of the post.
I think your hypotheticals perhaps obfuscate more than they clarify. The reason the penalty was unclear in those hypotheticals is because, in each, there rules were new (in the soccer example) or had rarely been adjudicated (in the pine tar incident), so there was no existing body of law for the adjudicator to turn to to determine the penalty. In contrast, re criminal law, the penalties are always stated in the statutes, and in civil litigation, the body of law re remedies is large enough that law schools offer entire classes on the subject
You are not correct, or if so are only very technically correct in that I do not know if there has been a remedy announced yet. When a trial court rules against a plaintiff, as the trial court did in the Harvard and UNC cases, but the decision is reversed on appeal, the case goes back to the trial court for further proceedings. The precise further proceedings depend on whether the appeal conclusively decided the case for the defendant*, but if it did, the lower court would conduct proceedings on remedies. See, eg, the football coach school prayer case, which settled 9 months after the Supreme Court's decision
And, note that sometimes plaintiffs do not seek damages (or only nominal damages, like $1), but rather only an injunction. I don't know that any damages were sought in Brown v, Board of Education, for example. That was not the point of the lawsuit.
*If the case was dismissed at an early stage, it might still be unclear whether the plaintiff's case has merit.
But it doesn't have to be that way. There's nothing about the nature of laws that requires new laws to omit penalties. The preschool teacher could have provided a penalty when explaining the rules. The fact that they didn't mostly just shows that they are not a good rule writer. This is fine for a soccer game, but for matters of law, we want good rule writers who don't neglect to specify a penalty for breaking their laws.
Why should we wait for adjudication to determine a penalty? Why can't the original writers of the rule specify their own penalty? We can't expect perfection, but we should at least prefer better to worse. The pine tar incident is a good example of the flaws of waiting for a ruling to establish a law. When faced with the vague law, the umpire chose a penalty that sounded good to him (the home run doesn't count), which was a pretty clearly bad ruling that caused a bunch of consternation and unhappiness.
So if I understand you correctly, at this point in time we don't know what the penalty for breaking the "no discrimination" law is, only that the Supreme Court has decided that the "no discrimination" law has been broken. If/when the trial court reaches a verdict in those cases, would that create a precedent for what the penalty is? Or is the meta-law simply that trial courts determine penalties on a case-by-case basis based off what they think is fair? I ask as someone who has very little clue about how the legal system really works.
That is my point. It ISN'T that way, which is why your hypothetical is not particularly germane.
Again, that is what authors of real laws usually do.
No, that is not quite right. We know what types of remedies are available for torts. That is quite well established. What we don't know is what the damages will be in this particular case. Eg: if I am wrongfully denied admission to Harvard, and have to go to Purdue instead, then my damages would be something like the present value the difference between the income I am likely to earn in my life as a Purdue grad versus what I likely would have earned as a Harvard grad. And that, of course, depends on things like my major; if I am a Social Work major, then my damages are going to be less than if I am a Business major, and if I am a Civil Engineering major, I might have no damages at all.
It's not just that we don't know what the damages will be in this specific case, it's also that we don't know what the damages will be in the generic racial-discrimination-in-university-admissions case. At best, we know that the penalty in this case will be a subset of the remedies in tort law, and that in future cases like this one, the remedies will also be a subset of the remedies in tort law, though not necessarily the same subset. This is only slightly more helpful than not knowing anything at all. Knowing that the available remedies for torts are X, Y, and Z is like knowing that the remedies for a foul in soccer are free kicks, penalty kicks, yellow cards, red cards, lifetime ban, etc. The part that you really want to know is what the algorithm is for figuring out which of those remedies applies in any specific case.
Is this a statement of what you think will happen or is this what you think should happen? That is, do you think that as of this ruling, every White and Asian person who has been rejected from any AA-practicing university in the past few decades will be able to sue successfully for monetary damages equal to the drop in expected earnings they suffered? Alternatively, is there established tort law that says "when a university wrongly denies admission to someone, the damages are to total the loss in expected earnings, no more, no less"?
The reason I'm trying to nail down a specific penalty is because it sounds like the current system is a judge flipping a coin to decide whether to take your case and then pulling a number out of an ass for the damages, which is very much The Rule Is Whatever I Say It Is Because I Am In Charge.
I can assure you that that is not the case. First of all, why you think courts have discretion not to take a case is beyond me. As for damages, there are entire books published on the subject of tort damages and a whole slew of jury instructions on the topic. And see here:
Why wouldn't every decision apply retroactively? When a court interprets a law in a precedent-setting way, isn't the idea that the law is and has always been that way, and that earlier courts had simply gotten it wrong? If this specific case of SFFA v. Harvard had featured a specific plaintiff, wouldn't that person be entitled to damages? If so, why that person and not others? It seems to me that all decisions of this nature must be applied retroactively by virtue of the fact courts typically rule on events that happened in the past.
That's fair. We can limit it to the last few years. I don't think this changes much.
This takes me back to my original point, which is that if this is truly the case, then the law isn't If You Discriminate On The Basis Of Race Then You Have To Pay That Person Some Amount of Money. It's If You Discriminate On The Basis Of Race Then Nothing Happens To You Because No One Person Can Prove Anything. I appreciate you educating me on tort law (I mean this sincerely; sorry if I come across as combative but I do appreciate the lesson on something I know very little about) but it's kind of irrelevant if we never get to the point where damages are being calculated.
That said, is the standard of proof really that an applicant has to show that they would have been admitted but for their race? For employment discrimination, as far as I'm aware, you don't have to prove that you would have been hired/not-fired but for your race/sex/etc. You only need to prove that your protected group status was a significant factor in the decision. Is university admissions different, and if so, is that difference spelled out in law?
Maybe "take a case" is not the step where attempts at justice are thwarted, but my impression is that it is often the case that people are in theory legally entitled to some compensation but cannot reach the point where a court issues a decision on their complaint. My point is that in order for "AA is illegal" to be true, there must be a reliable way for an entity that engages in AA to be penalized for that violation, and from what you said and what I see, it doesn't look like that will be the case.
There are many attorneys who make a very good living representing victims of illegal discrimination. Moreover, class actions are often an option. Were there truly no remedy, defendants would not settle suits. But they do.
And note that attorneys fees in successful civil rights suits, which are paid by defendants, can often be much greater than the damages. https://en.wikipedia.org/wiki/Uzuegbunam_v._Preczewski
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