Death of a Rule
Robert A. Kearney
Posted Saturday, July 16, 2016

The “honest belief” rule in employment law cases is so lethal that once it is incanted in the decisions of the federal courts, where many discrimination cases are litigated, the relevant legal analysis ends abruptly.  And like a Wandering Albatross, the bird with the largest wingspan among all living birds, there is little not within its reach.

All that is about to change, thanks to the federal court largely responsible for the rule in the first place: the Seventh Circuit.  The fact that Circuit Judge Richard Posner, arguably the most influential lawyer in the country not counting the Supreme Court Justices, is the one to strike it down is equally important because it will likely give psychological permission to other courts and judges to do the same.

The origins of the honest belief rule, its long run, and its quick and shocking dismantling is a story about whether a plaintiff’s day in court should include a jury trial and whether courts and judges rely too much on precedent, blind adherence to boilerplate, and not enough on common sense.  It is the story of an Albatross’ grounding.