 You're watching FJTN, the Federal Judicial Television Network. The Federal Judicial Center presents Supreme Court 1998-99, The Term and Review, an FJTN program for judges, staff attorneys, and law clerks. Now from the television studios of the Federal Judicial Center in Washington, D.C., your moderator, Russell Wheeler. Hello, and welcome to the Federal Judicial Center's annual review of the just completed term of the United States Supreme Court. The Court adjourned on June 23, the earliest adjournment date in several decades, and continued its recent trend of deciding a relatively few number of cases, seventy-five this term. We'll review forty-five of the seventy-five cases, plus one Purcurium decision, with help from our board, our Judicial Education Committees, Senator Director Ria Zobel, and of course our faculty. We've selected cases we think will show up in the pleadings, briefs, and motions submitted to you. We've also prepared somewhat longer analyses of two developments, the block of cases arising under the 1990 Americans with Disabilities Act, and what is now the trilogy of decisions on the federal trial judges' gatekeeping role with respect to expert testimony. Our review is in three parts, each about forty minutes long. Your written materials have summaries of the cases we'll discuss, in the order we'll discuss them, and brief bios of the law professors who will be describing and commenting on the cases. They are well qualified not only to summarize the Court's work, but also to provide different perspectives on this term's holdings. With that, let's turn to four cases involving the First and Fourteenth Amendment. Joining us to discuss them are Tracy Macklin of Boston University School of Law, Susanna Sherry of the University of Minnesota Law School, and Jordan Steiker of the University of Texas School of Law. Susanna, this was not a big term for First Amendment cases, we had an important commercial speech case involving broadcasters in New Orleans who were filed suit against the federal enforcement of a ban on advertising casino gambling, and the Court agreed with them. Yes, it did. This was a good news, bad news, sort of a case for First Amendment law. The good news is they didn't change any prior doctrine. The bad news is they didn't clarify any prior doctrine either, so the commercial speech areas in some disarray. In this case, federal law prohibited the advertising of casinos, even in states where the casinos themselves were legal, but the ban was riddled with exceptions. There were exceptions for tribal casinos and state-run casinos and lotteries and charitable casinos and on and on. And given all those exceptions, the Court decided that it didn't even meet the minimal central Hudson test, that is, it did not materially advance a substantial government purpose. Susanna, what about Posadas? The Court there had said that the greater power to abolish casino gambling altogether included the lesser power to regulate this kind of commercial speech. Does that survive this? It probably not. There was some doubt about whether Posadas was good law even before this case, and I think this case makes it clear that it's not because Justice Stevens wrote, and this was for a majority of eight Justices, he wrote that the power to prohibit or regulate particular conduct does not necessarily include the power to prohibit or regulate speech about that conduct, which rejects, I think, the Posadas principle that you mentioned. So Posadas is gone. I think it probably is. Jordan, there was another case that had a First Amendment implication, but it grew out of the application of the new immigration statute with the jurisdictional question. Did you describe that for us first? Yeah, the jurisdictional question in this case was really whether or not you could challenge prior to a final order actions that were going on in deportation proceedings. And the Court basically said that there are very limited number of collateral challenges to deportation proceedings, things like the decision to conduct surveillance or to open investigation. But generally speaking, you have to wait to a final order. But the Arab American Committee also objected on First Amendment grounds to this action by the INS. A very interesting part of this case was that the respondents in this case, who had won below, had argued that they were targeted for deportation because of their political views. And they argued that selective enforcement violated the First Amendment. And they suggested that the statute should be read not to limit this kind of challenge because it would leave them without an effective constitutional remedy. The Court swept this aside and basically said that aliens who were unlawfully in this country generally have no right to allege selective enforcement as a defense. So there's little leeway available to aliens as far as you can see. I think that's right. Thanks, Jordan. Susanna, you'll recall this case of Sains v. Rowe, obviously, which caused a big stir in the legal community anyway because the privileges and immunities cause, privileges or immunities cause of the 14th Amendment, as one justice said, was unearthed from its tomb, came back from the slaughterhouse. This was a case that involved a California restriction on benefits that new residents could receive, and it's one in a long line of cases. Could you tell us what the Court decided? Well, the Court did strike down California's limit on welfare by 7-2 vote. California had limited new residents to the welfare that they would have received in their old state for the first year that they were in California. And the Court said that that was unconstitutional under the privileges or immunities clause. They were very careful, however, to distinguish some of the earlier cases in the line, cases imposing residency requirements for such things as divorces and in-state tuition. What the Court said is those are portable benefits, benefits that the newcomer could take and run with as Chief Justice Rankwist put it. But the Chief Justice said he thought trial judges are going to have a tough time applying this portability, unportability test to benefits that states provide. I think that he is correct, that it's going to be very difficult. The Court didn't give much guidance in distinguishing between in-state tuition and welfare, for example, and I think that other than the things that they explicitly distinguished, there are going to be a lot of challenges to various residency requirements now. Well, we'll be watching that. Susanna, do you really think this case should be reviewed as a significant revival of the 14th Amendment's privileges or immunities clause? I think it has to be significant. It's the first time that the Court cited the privileges or immunities clause since the Slaughterhouse case in 1873, and so I think they're giving the green light to lower courts to use the clause. Although, again, they did not exactly tell us what was in the clause. Well, we'll watch what happens. The other 14th Amendment case, Tracy, is a reapportionment, a redistricting case which, in a sense, tells us will be more of these after the census. This case, though, involved, of course, it involved the 12th District of North Carolina, which is no newcomer to the Court, but more particularly what the Three-Judge District Court did in terms of the summary judgment motion they granted. Right. Well, the Supreme Court made it clear that summary judgment is not the typical way to go on redistricting cases, and also that the configuration of the district itself should not be the sole criteria that the district does look at. Instead, the district courts should look at the totality of the circumstances. As you mentioned, this involved the 12th District down in North Carolina, and the plaintiffs that claimed that the 12th had been an impermissible racial gerrymander. Now, Justice Thomas, writing for the Court, found that the legislative motivation is a factual question for the district Court to decide, and in this case that involved whether it was a political question or whether they were operating for political reasons or for racial reasons. Now, Justice Thomas conceded that the evidence tended to show that this was drawn in a racial manner, that they had race on the mind. On the other hand, he pointed out that some of the state's evidence also suggests that race was not involved. So, Justice Thomas made clear that the district Court should not look to a summary judgment motion here, and instead hear all the evidence in front of it before deciding. OK, thanks very much, Tracy. Thanks to you, Suzanne, and thank you, Jordan. In a moment we'll return and take up some civil rights cases. The Court decided some important cases under sections 1983 and 1985 of Title 42, under Title 7 and 9 of the 1964 Civil Rights Act as amended, and under the Individuals with Disabilities Education Act. With us to discuss eight of them are Evan Sen Lee of the University of California, Hastings College of the Law, Catherine Urbana of the College of William and Mary, Marshall With School of Law, and John Yu of the University of California at Berkeley, Bolt Hall School of Law. Kathy, let's start with Wilson V. Lane, which has two components. There's a Fourth Amendment violation because of a media ride-along. We'll get to that in the next part of the program. But there was also, the Court also had to decide whether the officers who committed this Fourth Amendment violation nevertheless had qualified immunity from suit. Could you describe why the Court said they did? Yes, the Court decided, 8-1, that the officers had qualified immunity in this case. That issue in the case was the police officers bringing the media along with them to execute an arrest warrant. And the question for the qualified immunity defense, which is an affirmative defense, was the law clearly established at the time the officers acted? And could a reasonable police officer have believed that his actions were lawful in bringing the media along with him? And what the Supreme Court said in looking at this case is that in deciding the qualified immunity issue, that it was not open and shut, it also noticed, a second factor that it notices, that in looking at the particular jurisdiction, because there are actually two media cases in the Supreme Court's docket, is that there was no controlling decision within that jurisdiction. And a third factor that it noted is that the U.S. Marshals in this case actually had a policy of allowing the media to ride along. A factor, by the way, that the Court says was only relevant because the law was so unclear at this time. And something that would suggest that Stevens to consider an exception in his dissent. Oh, very vehemently so. Let's talk about another case involving qualified immunity. And an assistant district attorney in Los Angeles, Khan, had Gabbard, an attorney, searched while Gabbard's client was being investigated, interrogated by the grand jury. The Court didn't take too long to decide this case. No, it didn't, because the claim involved a substantive due process claim under the 14th Amendment. Well, as you said, what happened in this case is the criminal defense attorney sued the prosecutor. Why? Because the prosecutor had the attorney searched at the exact time that the attorney's client, who was going to testify before the grand jury. And so with the attorney claimed and suing the prosecutor, it was, well, this violated my right, my liberty right under the substantive due process clause of the 14th Amendment. The Supreme Court said no violation. It did, however, leave open the issue of whether the timing of the search violated the 4th Amendment. Left open did not decide. That's correct. Thanks, Kathy. John, another case we'll take up from California also, more complicated. I think City of Monterey versus Del Monte Dunes. This involved whether there was a taking for 5th Amendment purposes and also the role of the jury in deciding the 1983 aspect of it. You take us through this case briefly and tell us what the court decided. Sure. Here you can see why so many takings cases are coming out of the state of California. Here the landowner wanted to build a condominium, went to the local zoning board several times with different plans each time they were rejected, asked for more conditions. So eventually the landowner sued. And in this case, they sued under Section 1983 for what we call inverse condemnation claim, seeking a declaration of taking and compensatory damages. The court here held five to four justice candy writing that a jury gets to make the determination whether a taking has occurred because under Section 1983 there's a tort-like claim being made here. Well, John, you say that a jury is the one to decide whether a taking has occurred. Does that also mean that it's the jury that decides whether the government's proffered justification for the regulation is valid because that seems like an odd thing for a jury to decide? That's exactly what the court did here, and it is very unusual. The court here said that the jury gets to make the determination not just whether a taking occurred but whether the government has a substantial interest in behind its land use regulation, which is very unusual because you'll notice, say for example, in First Amendment law, any time a government interest comes up it's the court that gets to make that finding as a matter of law. Here the court says this is a mixed question of fact and law that gets made by a jury. Just going to affect the dynamics, you think, of litigation against planning boards by developers? Yes, this is another one in a string of pro-property rights decisions by the court, and this definitely shifts more of the balance towards landowners, and so I would think more landowners will bring more suits because having a jury trial gives them more chances of winning. OK, thanks very much, John. Kathy Haddle v. Garrison. This was a case not under 1983 of Title 42, but 1985, another codified version of a reconstruction or a statute. This did protect the judicial process. What do the kind of injury do the plaintiff have to show in a 1985 case, says the court in this case? In this case, it was a very short opinion. The Supreme Court said the plaintiff and alleging a Section 1988-85 claim, which is a claim saying is that a conspiracy deprived me from my opportunity to testify before trial is that you don't have to show a deprivation of a constitutional property interest. What the plaintiff had lost in this particular case was an at-will job, which we would not say is a property interest, but the loss was as a result of attending grand jury proceedings and being willing to testify at trial. Now, the court did leave open two issues. It did not decide whether intimidation under the statute means the force or the threat of force, and it also did not decide the second issue whether only litigants can bring these claims rather than just witnesses. Presumably you may see that in future litigation. Thanks very much. Evan, I want to turn to Title VII cases. The major case is a suit by Carol Colstad, who was an attorney with the American Dental Association who alleged discrimination in a promotion. What did the court say she had to show? She saw punitive damages under Title VII. What did she have to show to get them? Well, basically here, the court took the opportunity to set forth a pretty comprehensive set of rules governing when punitive damages are available under Title VII. You recall that the statute makes punitive damages available in situations of malice or reckless indifference. And what the court said in this case was that means that's a subjective test. The question is whether there was a conscious awareness or a conscious appreciation of the risk that Title VII rights were being violated. The court in so holding actually set aside or rejected the DC Circuit's attempt to superimpose a stricter test, which would have been egregious misconduct. Evan, practically speaking, how is this going to affect the availability of punitive damages? I actually think that this is going to be restrictive, but I have to explain that answer. The court did reject the egregious misconduct test. But in doing so, it innovated an equally or perhaps even more strong limitation on punitive damages. As we know in these cases, it's important to hold the employer in, because that's the deep pocket. Now, there are a number of different ways that you might do that, but the most far-reaching theory would be agency, the idea that because the employee was acting in the course and scope of employment, that that binds the employer to the misdeed, if you will. Well, Justice O'Connor made it clear in this opinion that punitive damages aren't to be awarded on an agency theory as long as the defendant can show that it made good faith efforts to comply with Title VII. So even though agency theory is pretty far-reaching, nonetheless, the court has created an affirmative defense here for situations where the employer can show good faith efforts to comply with Title VII. And somewhat of a barrier, I presume, for plaintiffs. Oh, yes. I would think so. Another Title VII case involving not here punitive damages, but compensatory damages, involved a suit by Gibson against the West, the Secretary of Veterans Affairs. Very briefly, how did the court resolve this circuit split? Well, it's cut and dried, even though it was 5 to 4. The court determined that the EEOC does have the power to award compensatory damages against federal agencies. The court said sovereign immunity wasn't a problem. Even though the dissent claimed it was. Katherine and John, I want to take up two cases that came from school districts. One involving these individuals with Disabilities and Education Act, then we'll get to the Title IX case. John, you first. This is a case involving, as I said, a 1970s statute. We'll get to the ADA cases later in this program. This is the case of Cedar Rapids versus Garrett. Basically, what was that about? Well, this is a federal statute that gives federal financial assistance to school districts. On the condition that they provide what are called in the statute, related services to disabled students so that they can attend school. On the other hand, the statute creates an exception. It says that school districts don't need to provide what are called medical services. Here, the plaintiff was a student who was bound to a wheelchair bound and needed a ventilator and hence needed full-time nursing care in order to be able to go to school. The school district challenges whether this is a medical service or a related service. And the court holds that this is a related service because it's not being provided by a doctor. John, what do medical services now include in light of this decision? The decision's pretty clear, it seems to me, that after this case, anything that doesn't have to be provided by a medical doctor is now going to be considered a related service. And in fact, that creates this interesting dynamic that's going to force states and school districts over time to pick up more of a check for these kind of services. Because as medical technology improves, more and more medical, what we used to think of as medical services, can be able to be provided by nurses or nurses' assistants. Now, there may be a link, John, between this case and the case I'm going to ask Catherine about. So don't go away. This is the Title IX case this term. Last term in the Gebser case, the court told us what plaintiffs in the Title IX had to prove when they are alleging teacher on student sexual harassment. Here we have student on student sexual harassment, Davis versus Manny, Monroe County Board of Education. The court here said that in some circumstances, school boards could be liable under Title IX. And the court basically outlined four factors, although it didn't clearly specify these four. And it said, in looking at them, a plaintiff has to allege that the sexual harassment was severe, pervasive, and objectively unreasonable. That's factor number one. Two, this harassment has to be of such a nature that deprives the person of educational opportunities. Three, the entity, the school board, has to have actual notice of the sexual harassment. And then fourth, after it has actual notice, it has to be deliberately indifferent to the sexual harassment. What was interesting about this case is what the court decided is that the plaintiff's allegations were sufficient to withstand the motion to dismiss. So what are the facts of the case? Well, in this case, a fifth grader had told her teacher and her mother that one of her classmates had tried to touch her breasts, her genitals, and said that he wanted to get in bed with her. She complained to her mom, her mom talked to the teacher, and the mother also talked to the principal in this case. Also, the harassment in this case lasted for many months, and other girls were also sexually harassed. When the mother spoke to the principal, the teacher said, well, why is only your daughter complaining, and the principal promised to get a little tougher on the harasser in the situation. Well, eventually the alleged harasser pleads guilty to sexual battery. And in addition, the court notices that the entity, the school, had no policy on peer harassment. So in light of all of these facts, the court said this was sufficient to withstand the motion to dismiss. But then court added a very important gloss. It said, we must consider the constellation of surrounding circumstances when we decide whether there really was actual sexual harassment. Well, now, constellation, does that mean that this is a totality of the circumstances test? And if so, does that mean all these cases have to go to trial? Well, it certainly does sound like a totality of circumstances test, because the court also made it very clear in light of the four factors, is that we have to give school boards flexibility in how they respond. And the conduct has to be clearly unreasonable. Now, the court did say, though, that motions to dismiss and motions for summary judgment will pass because of its very heightened standard that it's been created. In this case, there was a dissent by Justice Kennedy, which was longer than the majority of the audience. And in that dissent, he tried to draw some parallels with the case I discussed about the IDEA statute. What did you think of that? Well, I thought the parallel was very well drawn. It shows the conflicts that schools may face in these two statutes. For example, under the Title IX standard, the school has to have actual notice of the harassment and then be deliberately indifferent to it. Well, if the school has actual notice of the harasser, and it has to be a pretty significant harassment, the school then may actually have notice that the harasser, not the victim, is subject to protection under the individuals with disabilities in Education Act. And as a result, the harasser may be an emotionally disabled student. And as a result of that, the school may not be able to actually discipline the student in the way that it might like. But the court, in summary, did make it very clear. The majority is that this is a hard case to prove under Title IX. Well, the dissent predicted a wave of litigation. It did. Well, we'll watch what happens. Thanks very much, Kathy. Thank you, John. And thanks, Evan. In just a moment, John Yu and Jordan Stiker will join me in a special focus segment on five cases that arose this term under the Americans with Disabilities Act, the ADA. The court this year undertook to resolve some of the major questions that have emerged about the 1990 Americans with Disabilities Act, as applied directly and in conjunction with other statutes. The act figured prominently in six of this term's cases will focus on three of them and mention two others briefly. The three cases likely to have the greatest impact on federal judicial dockets are Sutton v. United Airlines, Albertsons v. Kirkenberg, and Murphy vs. United Parcel Service. These cases involved ADA provisions that make it illegal for an employer to discriminate against a qualified person with a disability. The ADA defines disability with respect to an individual as, a, a physical or mental impairment that substantially limits one or more of the major life activities of such individual. B, a record of such an impairment, or C, being regarded as having such an impairment. But the statute itself does not answer this key question. In determining whether a person is disabled, should the trial court consider the effect of medications or devices that can mitigate or correct the person's impairment? Yes, said the court in Sutton, Albertsons, and Murphy. We'll discuss the holdings in these cases, then turn to Senator Director Rhea W. Zabel for her thoughts on the practical issues judges may face in light of them. With us to begin this segment are Jordan Stiker of the University of Texas, and John U. of the University of California Bolt Hall School of Law. John, the Sutton case appears to be the lead case, at least in the definitional matter. Who were the plaintiffs in this case and why did they bring suit and what did the court say? These are the twins who wanted to fly the friendly skies. Twin sisters who both applied to be airline pilots with the United Airlines, but they couldn't meet United Airlines standard for eyesight vision without the use of corrected lenses. With corrected lenses, they could have met the standard. And the reason why they were rejected, according to the court quite properly, is because the court says that under the ADA, a district court is to evaluate whether someone is disabled in light of the corrective measures that are undertaken or medical treatments that ameliorate their condition. And the court gave three reasons for this. First, the ADA is written in the present tense. A disability is designed, I'm sorry, is defined as something that substantially impairs present tense major life activity. And because it's in the present tense, you look at the person as they are now with the corrective measures. Second, the court says that the ADA requires an individualized inquiry into each case so that each person who files suit under the ADA must be taken as a whole in the context of their corrective treatments. And third, and most importantly to the court, was the fact that the ADA in its text states Congress's belief that only 43 million Americans are to be considered disabled. And the court found that to be inconsistent with the idea that something like eyesight, which about half of all Americans require corrective lenses to see properly, could be considered a disability. Instead, the court said something that's not so easily remediable can only be considered a disability. It can come within the 43 million definition. Right. Jordan, the sisters also sued under this third prong of the definition. The regarded as disabled prong, they claim United regarded them as disabled. Explain that provision, would you, and how the court came out on that? Yeah, this provision focuses on what the employer believes about the abilities of the employee. And here, the court basically said that the employer, the fact that the employer believed that they couldn't function in a particular job didn't mean that the employer regarded them as disabled generally for the purposes of the ADA. And the court assumed without, at the same time criticizing the notion that working might be a major life activity for the purposes of the ADA. But the court basically said that the fact that you can't perform a particular job here, a global airline pilot, doesn't mean that your regard is substantially limited if you can serve in some other kind of position, such as a regional pilot or a pilot instructor. The court here was clearly concerned that a contrary reading would have meant that everyone would be regarded as disabled if the employer thought that they couldn't perform a particular job. Narrow it down to that. Thanks very much. We said, John, in other cases, Albertsons versus Kirkenberg. Kirkenberg was a truck driver with monarchy or vision. His brain evidently compensated for it, but he failed a Department of Transportation eye test that Albertson has set up as its test. How did the court come out here? The court essentially said that when an employer uses or adopts a federal safety regulation as its own job qualification, that the employer then, when the defendant in an ADA suit doesn't need to justify why he used that regulation because it's the product of an administrative agency process that has already resulted in a considered judgment. So this makes it a little easier for business, I guess, to go as far as the government goes, but no further? Yes, it's very much like these sexual harassment cases from last term. Here the court has created a safe harbor rule for businesses, and it would be very surprising to see businesses go outside it because then they will have to defend their own job qualifications in court with statistical studies and so on. Instead, within the safe harbor rule, they just rely on the federal government's regulations. Thanks, John. Jordan, very briefly, could you tell us about the last case, Murphy versus UPS? This was a case of somebody with hypertension. What did the court add to the Sutton decision here? They really do follow Sutton and basically say that again, the regard as position requires that you be limited more than just in a particular job but a whole class of jobs. Thanks very much. Thank you, John, as well. In these cases, the court emphasized that resolution of discrimination issues under the ADA depends largely on the specific circumstances of the plaintiff. The court said the same thing in Olmsted versus LC, where it held states are required to place persons with mental disabilities in community settings rather than in institutions, depending on the circumstances. These circumstances, of course, are the subject of litigation. And so we turned to Senator Director Ria Zobel, who has been a federal district judge in Massachusetts since 1979, for her thoughts on how the holdings in these cases might play out in practical terms in litigation before federal trial judges. Let's go to that interview now. Welcome, Judge Zobel. Thank you. I want to ask you first, in light of this trilogy of decisions, Sutton, Murphy, Albertson, and the ruling that courts must take into account in determining disability, the effect of a myriad of conditions or mitigating devices, what's going to be the practical impact of that, do you think, in the trial courts? Well, I think the immediate impact will be a flurry of summary judgment motions, and many of them are likely to be granted, particularly the obvious ones like the plaintiff with eyeglasses or the other cases where the plaintiff with some mitigating device clearly can do most of life's activities and is therefore not disabled. Do you see summary judgment as the preferred method throughout, do you think? I do not think so. I think that both these decisions and indeed the history of these cases suggest that they are, in fact, very much individualized to a plaintiff. If you look at the cases that the Supreme Court cited to show the split in the circuits, in almost all of them, the District Court had granted summary judgment, in part because it read the statute as the Supreme Court now does, but in part because it obviously saw no issues of fact. The courts of appeal reversed, not only because they read the statute differently, but also because in a number of these cases, they discerned unresolved issues of fact that the District Court hadn't seen. So now the ground rules, in a way, are clear both for the District Court and the Court of Appeals? I think that's right. It is clear now, but the definition of disability is in that you have to take, you have to consider this with reference to the mitigating devices, medicines or whatever, and that in the end, it is a highly individualized and fact intensive inquiry. Could you say a little bit more about what you think the nature of this intense individualized look is going to constitute in the trial courts? Well, the court in several of these cases gives examples of the sort of thing that I mean. In Sutton, for example, Justice O'Connor refers to the person who uses prosthetic devices or a wheelchair and she points out that although they assist the person to walk and thus be able to function in society, they may not, and they may yet be disabled because they can't walk well enough. In Murphy, the plaintiff takes medication for hypertension and yet the court points out that sometimes the medication itself imposes limitations, sometimes by virtue of negative side effects and sometimes the medication doesn't do the job in full and the person remains disabled despite the medication. So it's that kind of inquiry. How's that going to play out, you think, in the real world of the trial courts? I think what it means is that a plaintiff is going to have to be given an opportunity at trial because this can't be done in the context of summary judgment to develop the entirety of her condition. What the condition is, what medications there are to ameliorate the condition, what the possible negative effects of the medication are or the device may be that imposes its own limitations and what adjustments the plaintiff may have to make to the medication or device. Give us another example of what are the effect of these statutes as interpreted in the district court as these cases come up. Well, I think the other, to me, logical development from this fact-intensive individualized look and from the fact that we now take into account medications is the notion of shifting disability. People's conditions change and medications change and the response to medications change. The court pointed this out in the case decided early on the term, Cleveland Against Policy Management Systems. Although the case is not a direct response, it holds that a plaintiff who has claimed total disability for SSDI purposes may is not thereby automatically foreclosed from claiming under the ADA, but it does also respond to this question because the court there points out that at the time that the plaintiff claimed under SSDI, her condition was such that she honestly could say she was totally disabled. To me, that suggests that a condition is never permanent and as it changes, the plaintiff may very well wish to bring a claim now saying that the condition is changed and I should be treated differently by the courts or I should have a different result. So I have the specter of serial disability cases and wonder what the limitations there are on the preclusive effect of judgment number one. Other than money. Other than, of course, money, right. Listening to you, I wonder if you'd comment briefly on what you perceive as a difference, if any, between this statute and other civil rights statutes in the 60s and the 70s in which this was modeled, title seven, for example. Well, you're right to look at the big picture. Sometimes when you have a complicated statute like this, it's very helpful to see it in the context of a scheme of legislation. When we were preparing for this discussion, Professor Stiker made a very good point about the distinction of these statutes. The ADA clearly is modeled on those anti-discrimination statutes that deal with race and sex. Title seven says that race and sex are irrelevant to whether a person can do a particular work. The ADA acknowledges that it is economically rational for an employer to want to know what the physical and mental limitations may be on a particular employee and how that would affect the ability of that employee to do the work. Whereas title seven does a comparative look. It looks to see whether this plaintiff is being treated differently from members of another group and therefore whether the plaintiff is being discriminated against. The ADA, on the other hand, looks at a norm, at an average, at, if you will, an able condition and then asks to what extent does this plaintiff depart from? To what extent is this plaintiff different from that norm? And what does the ADA say the norm is? Well, that's the hooker. It doesn't. And I think what is going to have to happen is that particularly the district courts will have to determine what that norm is on a case by case basis. Which takes us back to the individualized nature of the inquiry in each of these cases. Absolutely. George Zabel, thanks very much for coming by. My pleasure. That concludes the first part of our program. We'll take a five minute break, then come back and discuss some of the terms, decisions in the areas of criminal law and procedure.