Tuesday, June 5, 2012

11th Circuit Reverses Jury Verdict in Competitive Bid Case at Atlanta Airport.

I don't know, I've lived in the South a long time and it's not that hard to tell who's an "insider" or an "outsider" when it comes to competing for government contracts.

(If you're not an insider, you have to hire one -- they're called "lobbyists").

But the 11th, in reversing a big jury verdict for a plaintiff allegedly freezed out of a contract for advertising at the Atlanta airport, says it's not a concrete enough definition:
Corey does not offer sufficient substantive group characteristics. Instead, Corey attempts to identify groups based on affiliation or connection to the City, the supposed discriminator: “insiders” and “outsiders.” This vague category is inadequate because these idea-based characteristics do not allow us to separate readily people and entities into discrete groupings -- a necessary part of identifying the group that suffered the alleged discrimination. The proposed categories are too loose, too shifting to be useful to courts.

No objective criteria plainly fix whether a person or entity is an “insider” or an “outsider.” “Insiders” and “outsiders” do not bear immutable characteristics.  Furthermore -- unlike with political parties or other longer-term voluntary group affiliations -- they do not even have to declare or register themselves as members of their respective grouping. The most one can hope for in separating persons based on such subjective criteria -- “insiders” and “outsiders” based virtually on friendship with government officials -- would be a spectrum or a fuzzy series of wholly indeterminate and overlapping groups each of which would be inadequate to qualify as identifiable for purposes of an Equal Protection Clause claim.
This may technically be true, but does it comport with decades and decades of empirical evidence?

Is there another way to approach this short of throwing up your hands and looking away?


  1. Oliver Wendell Holmes called equal-protection challenges the "last resort of constitutional argument." Most of the time they're unsucessful, and this is no exception.

    The remedy is at the voting booth. Or, as you mentioned, to hire insiders.

  2. Wasn't Bush-Gore a equal protection ruling?

    Point made.

  3. SFL, you've lived in the South a long time? Since when has Miami been in the South?

  4. oh boy, try anytime before 1980 (except for all the Jewish retirees from the Northeast).

  5. Ask black folk it was Deep South.

  6. It was the south when we called it "Miamah" and the
    S& S diner served collard greens and creamed asparagus on whole wheat toast, and coffee was 25 cents, not $4.95.

  7. The Eleventh Circuit is terrified that their insider buddies (the ones who got the judges on the court) are going to be held accountable in the future. Seems to me like the line was clear enough for a jury to see it.


  8. I still go the S & S Diner, but it is owned by a Frenchman and is full of quasi-hippies from mid-town. No, Miami is certainly not in the South.