The Yale Law Journal Online: Losers’ Rules

The Yale Law Journal Online has recently published Losers’ Rules, an essay by Nancy Gertner that provides “a firsthand and more detailed account of employment discrimination law’s skewed evolution” based on Gertner’s seventeen years on the federal bench. Gertner discusses the one-sided legal doctrines that characterize discrimination law. She suggests that asymmetric decisionmaking, in which judges write detailed opinions when granting summary judgment but not when denying it, changes the treatment of employment cases in two respects: “First, it encourages judges to see employment discrimination cases as trivial or frivolous, as decision after decision details why the plaintiff loses. And second, it leads to the development of decision heuristics–the Losers’ Rules–that serve to justify prodefendant outcomes and thereby exacerbate the one-sided development of the law.” Gertner then offers several proposals for remedying this problem.

Preferred citation: Nancy Gertner, Losers’ Rules, 122 YALE L.J. ONLINE 109 (2012), http://yalelawjournal.org/2012/10/16/gertner.html

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