The high process costs of litigation are what lawyers--for obvious reasons--habitually leave out of their let's-have-notice-and-a-hearing-for-everything reasoning. One thing Olson does is to put them back in. ...

Here's a

, one aspect of which the Supreme Court addressed in the 

case:  

How are employers supposed to behave when they face a possible discrimination lawsuit no matter which way they turn?

It's a question HR managers and company lawyers are used to facing every day. Would you rather field the legal claims that result from targeted layoffs, or the ones that result from sacking people regardless of performance? Would you rather face a defamation lawsuit for mentioning the reasons for a problem employee's departure, or a failure-to-warn lawsuit for not mentioning them? Will your policy on religious proselytizing in the workplace get you sued by the believers, or by the atheists?

But Justice Anthony Kennedy's solution to this problem in the Ricci case--that a city can't throw out a job test that winds up promoting whites and no blacks unless there is a "strong basis in evidence" that it would lose a subsequent discrimination lawsuit--seems an unsatisfying solution to the litigation vise.

What if a city, after reading the Ricci decision, decides there's just a wee a bit less than a "strong" basis for thinking it will lose a discrimination case, and doesn't throw out the test (lest SCOTUS smack it down)--and then loses the discrimination case anyway? That it was scared to throw out the test doesn't necessarily mean the test didn't have an unjustified "disparate impact" (The evidence might not have been overwhelmingly apparent at the time, for the city could have guessed wrong.) Justice Kennedy seems to have carved out, not a safe haven but an area of uncertainty where the outcome could typically be "lose lose." ...

But, again, maybe I'm confused or missing something. ...

P.S.: I took this item down briefly when I thought for a moment it was wrong. Now I think it is not wrong. ...  7:05 P.M.

___________________________

They're having a terrific time at the Aspen Ideas Festival! Ferguson vs. Fallows was *great,* for example. Too bad you're not invited and you're missing it ! ... But you can watch some short video highlights of a few speakers  here . ... P.S.: Classic Atlantic operation. Not having a fabulous exclusive party--"inspired thinking in an idyllic setting"--but expecting readers to enjoy being third-class voyeurs at your fabulous exclusive party  while the invited Atlantic people tell you (now via Twitter) what a good time they're having. ... 11:05 P.M.

___________________________