The Significance of Sprint/United Management Company v. Mendelsohn: A Reply to Professors Gregory and Secunda

Abstract

In this Essay I reply to Professor David Gregory and Paul Secunda's comments about my principal article, Sprint/United Management Co. vs. Mendelsohn: The Supreme Court Appears To Have Punted On The Admissibility of Me Too Evidence Of Discrimination. But Did it? 102 Nw. U. L. Rev. 264 (2008). Both of these articles are important pieces of scholarship. David Gregory, Sprint/United Management Company v. Mendelsohn and Case-by-Case Adjudication of Me Too Evidence of Discrimination, 102 Nw. U. L. Rev. Colloquy 382 (2008); Paul M. Secunda, The Many Mendelsohn Me Too Missteps: An Alliterative Response To Professor Rubinstein, 102 Nw. U. L. Rev. Colloquy 264 (2008).

I primarily focused this response on my disagreement with Professor Secunda's argument that the Court had to punt the issue of the admissibility of me too evidence and with his claim that the Court made a mistake in granting certiorari.

While I agree that the Court correctly remanded the case, a remand does not require a judicial punt. I believe that the Court had the opportunity to provide such guidance and simply blew it.

I also disagree with Professor Secunda's view that the Court incorrectly granted certiorari. I believe that Professor Secunda reads too much into what he admits are oral argument tea leaves. As I demonstrated in my principle article, the state of the law was in a complete disarray prior to Sprint being granted review. Therefore, the Supreme Court had good reason to review this important issue. As Professor Gregory and I both noted, post Sprint lower courts are already divided over how to treat the admissibility of me too evidence. Therefore, there is no reason why the Court should not take this issue up again.

Keywords: MeToo Evidence, Evidence, Employment Discrimination, ADEA, Litigation

JEL Classification: J7, J70, J71, J78, J79, K31, K40, K41, K49