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E.D.N.Y. Judge Jack Weinstein Rejects Use of Race Statistics In Determining Damages

E.D.N.Y. Judge Jack Weinstein Rejects Use of Race Statistics In Determining Damages
Judge Rejects Use of Statistics on Race to set Damages is an interesting Oct. 15, 2008 New York Law Journal article. The article is about McMillian v. City of New York, ____F.Supp.2d___(E.D.N.Y. Oct. 14, 2008)

Source: Adjunct Law Prof Blog; Reproduced with permission. Copyright © 2008, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved

McMillian was awarded millions in damages by a New York jury. The City tried to limit its damages by claiming that blacks have a lower life expectation. Judge Weinstein found the City's argument unconstitutional. As the article states:

Judge Weinstein said the consideration of statistical differences in life expectancy among races in determining damages would be discriminatory and unconstitutional.

He noted that a wrongheaded insistence on immutable racial differences had been behind the U.S. Supreme Court's infamous decision in Plessy v. Ferguson, 163 U.S. 537 (1896), which upheld racial segregation under the doctrine of "separate but equal."

"Statistical reliance on 'race' leads to such questions as whether Plessy would have been today categorized as 'African American' for life expectancy purposes," Judge Weinstein wrote. "In a more recent example, 'racially' characterizing for statistical purposes in a negligence lawsuit the current Democrat Party presidential candidate, born of a 'White' American mother and an 'African' citizen of Kenya, would be considered absurd by most Americans."

The judge also said racial statistics should be rejected on scientific grounds, and he approvingly cited a number of well-known anthropologists who regard race as a social construct rather than a biological fact.

"Reliance on 'race'-based statistics in estimating life expectancy of individuals for purposes of calculating damages is not scientifically acceptable in our current heterogeneous population," Judge Weinstein wrote. . .

I am surprised that the City was brazen enough to make this argument. Law review commentary on this topic would be most welcome.

Mitchell H. Rubinstein

Full post as published by New York Public Personnel Law on October 21, 2008 (boomark / email).