This is an inspired paragraph. I intend to plagiarize it repeatedly and shamelessly. Fair warning.

The naive observer would think that discrimination against broad categories of employees must be inefficient. It cuts you off from big pools of labor, and requires additional effort at some point to identify the characteristics to be discriminated against. Champions of the American system certainly claim that discrimination wouldn’t flourish in a freely competitive environment. But here we have well-established discrimination going on for decades. Could there be government interference rewarding it? No, the government marketplace distortions are all in the other direction. This is obviously a manifestation of the true efficiency we see dimly. Our job, therefore, is to work out explanations of why it’s efficient to treat women as second-class in play, celebrate that efficiency, and move on to the next triumph of the market.

The idea that any productive business or industry would hobble itself with unnecessary inefficiency…well, that’s like suggesting there’s no God. If there’s no efficiency in important aspects of business, then it’s all just death and regulation from here on out.

…the view of the federal agency, the Equal Employment Opportunity Commission, that each paycheck that reflects the initial discrimination is itself a discriminatory act that resets the clock on the 180-day period, under a rule known as “paycheck accrual.””

Well, first because the initial history of the act didn’t allow that.

Second, when you have a statute of limitations it doesn’t make internal logical sense to interpret the rule as removing the statute of limitations.

Third, Courts review administrative endruns around the law all the time. I certainly didn’t hear this interesting left-wing response to the Court’s rebuke on the EPA decisions recently.

Fourth, interpreting each paycheck as a new act of discrimination doesn’t get rid of any of the problems that a statute of limitations tries to balance out.

Let me expand on that point. One of the main problems that a statute of limitations (SOL) addresses is the fact that evidence grows stale over time. This means you are more and more likely to get a particular slant on a case by chance rather than because you are getting the truth. If you have a dscriminatory act 20 years ago, but refresh the SOL every paycheck, the decision to refresh it every paycheck doesn’t magically make the evidence from 20 years ago fresher.

Another reason why an SOL can be important is that we want to encourage people to raise violations when they discover them rather than wait until they are disgruntled for other reasons. That is why strict applications of the an SOL are often coupled with the discovery rule (that the SOL doesn’t start to count time until initial discovery of the violation). The law attempts to strike a balance between evidentiary issues (things become stale over time) and a desire to not more strongly incentivize hiding the violation in the hopes of lucking out on the SOL. (SOL for criminal matters typically do not have a discovery rule, but I treat this as a civil matter. In reality it is kind of a hybrid but I’m operating in the favor of your argument so I’d be surprised if you contest the point).

The balance is delicate, and perhaps not perfectly found. But it is a BALANCE that exists in pretty much all torts and for pretty much all crimes.

This rule completely does away with the balance, without seemingly even attempting to think about why we have it in every other kind of case.

Merely asserting that each paycheck is a separate act does indeed get around the SOL. But the issue in question is the long-ago decision. Investigating that decision is what the legal question turns on. The mere assertion that each paycheck is a separate act does nothing to deal with the policy reasons why we have statutes of limitations—it in fact completely ignores them. Asserting that each paycheck is a new discriminatory act doesn’t really help us because we still have to investigate the old decision. So now you are stuck investigating something from years ago, with none of the normal legal procedures that apply when balancing all of the competing policy interests which apply to investigating matters from years ago.

Why discrimination should avoid the legal procdures that are routinely used for chemical exposure, or wrongful death, or other very important legal matters goes completely uninvestigated because you are using a workaround on the SOL instead of tackling the policy issues head on.

And if you tackled the policy issues head on, instead of trying to just stick it in the eye of the Supreme Court, I’m relatively sure you wouldn’t choose a system that effectively just gets rid of the SOL completely when investigating old decisions.

But how do we know it’s an administrative workaround, and not just a straightforward interpretation of the law? Seems to me the pre-Goodyear rule, which the Ledbetter act would restore, was simply this:

“If I pay you less simply because of your sex then I am engaged in discrimination, even if I also paid you less because of your sex at various points in the past.”

Why is that so unreasonable?

…the view of the federal agency, the Equal Employment Opportunity Commission, that each paycheck that reflects the initial discrimination is itself a discriminatory act that resets the clock on the 180-day period, under a rule known as “paycheck accrual.”

I already explained that it was the commonly accepted work administrative workaround to get around a very short statute of limitations.

That doesn’t make it a correct interpretation of the law, it means that there was a commonly used administrative workaround which was used to evade what was seen as an overly draconian statute of limitations.

That doesn’t mean the commonly used administrative workaround was legal, nor does it mean that when it comes time to fix the draconian statute of limitations that it is wise to use the administrative workaround.

Treating this as if it was new information when I’ve been talking about it the whole time is kind of weird.

Revolutions are awful.

There’s nothing inherently wrong with somebody being a monarchist or a feudalist etc, provided they don’t try to overthrow the government to get their way. There’s nothing wrong with McCain being a male supremacist, except he tries to pretend he isn’t.

Politicians who’re opposed to legal equality ought to say so and not try to hide it. McCain is acting like he’s ashamed of his beliefs.

Having employees whose sole job is to find reason to deny claims and cancel policies, and the equivalent in other industries – good. Having anyone in accounting or human resources spend half an hour each month looking at simple spreadsheets to identify and scrutizine pay anomalies – bad.

In an opinion by Justice Samuel A. Alito Jr., the majority rejected the view of the federal agency, the Equal Employment Opportunity Commission, that each paycheck that reflects the initial discrimination is itself a discriminatory act that resets the clock on the 180-day period, under a rule known as “paycheck accrual.”

[...]

Under its longstanding interpretation of the statute, the commission actively supported the plaintiff, Lilly M. Ledbetter, in the lower courts. But after the Supreme Court agreed to hear the case last June, the Bush administration disavowed the agency’s position and filed a brief on the side of the employer.

Then Alito&Co. forced their business-friendly perverse interpretation.

Then this new law was proposed to merely change the interpretation to what it always was before the Ledbetter case.

It was filibustered by the Reps in the Senate.

This is the story.

Hypothetical drug-addicted managers who hire you and leave have nothing whatsoever to do with it.

I literally cannot believe that thoughtful folks on the left haven’t figured out by now that people like Ponnuru and Goldberg – virtually every right-wing blogger – are bullshitting. Their purpose is to destabilize, confuse, and agitate. And when you respond you become part of the problem.

I disagree. The mistake isn’t responding; the mistake is responding as if the right-wingers’ words are supposed to mean something.

For these guys, t’s not about truth or good government, it’s about “search and destroy”:

All the rightbloggers’ labors have one great purpose: to associate the Democrats’ cause with any negative thing of the remotest relevance.

And the right-bloggers’ messages follow a grand template that goes like this: “[LIBRULZ] is [UNGOOD]”. Mix and match different values of [LIBRULZ] with different values of [UNGOOD], and they’ll all start to make sense.
—bi, International Journal of Inactivism

Or you could argue that it’s better to leave the law unenforceable, which would put you with Ponnuru and McCain against equal pay for equal work.

Well, there were already measures in place to prevent terrorism, including a system in which presidents get the latest info on potential threats. Kind of an ass-covering thing.

Matt Yglesias, Kevin Drum, and John Holbo—in increasing order of turgidity—take me on for contesting Hillary Clinton’s claim that John McCain thinks that paying women less for equal work is “okay.” Rather than make counterarguments, I’ll just give in and adopt their standards. I can now say that people who want to weaken or repeal the Patriot Act are okay with terrorism. They’re not willing to take the measures I consider necessary to deal with the problem, after all.