Brett Stuff
Judging the Judges
Term Year: 2018

BNSF Railway Company, Petitioner v. Michael D. Loos

Summary Analysis

DATE: 2019-03-04
DOCKET: 17-1042
NAME: BNSF Railway Company, Petitioner v. Michael D. Loos

   AUTHOR: Ginsburg
   JOINING: Roberts, Breyer, Alito, Sotomayor, Kagan, Kavanaugh
   GOOD: Yes

OPINION: Dissenting
   AUTHOR: Gorsuch
   JOINING: Thomas
   GOOD: No

Case Commentary

Are Lost Wages a subset of Wages?
I would say yes, as would The Court. There were two Dissenters. So, there are counter-arguments. But I have no desire to be as sophisticated, as I am sure their reading would require me to be.

At least two different Federal Laws (specifically, the Railroad Retirement Tax Act (RRTA) and the Railroad Retirement Act (RRA), along with the Federal Employers' Liability Act (FELA), which applies to a broader category of workers, one can only assume) apply to the Wages of Railroad Workers... and which differentiate Railroad Workers wages from yours and mine... or at least, from mine, because for all I know, you are a Railroad Worker.

At this point (after twenty cases on the year), I hope it does not come as a surprise that I desire equal application of the law to everyone all of the time. And I cannot see how specialized laws which cover only Railroad Workers can possibly bring this about.

The Dissent argues (among other things, so inter alia) that this settlement is somehow a boon to the Railroad Companies. It may be. But it is for a trivial amount of money and requires future convolutions on the part of the Railroad Companies, so I have my doubts.

Per my reading of the Decision, both Railroad Workers and Railroad Companies owe the same tax on any Lost, Back, or Regular Wages, as the tax rate is the same for both. Thus, it is in both the Railroad Company's and the Railroad Employee's best interest to avoid classifying any Lawsuit Settlement Money as a Wage of any sort. And I cannot see how declaring a Settlement as Wages, benefits the one over the other in any way whatsoever.

The argument is that Railroads will offer more in the Pain & Suffering column and less in Lost Wages, if Employees accept a lower overall total. But as the Railroads will get hit just as hard by any additional taxes, it's not much of a bargaining chip. And the tax rate (something just north of 10% if my memory and math is correct) simply isn't that high.

I find Ginsberg's write-up using a female gendered pronoun to be annoying. Basically, when Ginsberg wrote his (oh sorry, are we talking about a female, here) Opinion, it would have made sense for him (once again, Ginsberg, gendered undetermined) to keep in mind that the Respondent is male and that a whopping 96.8% (if both my data and calculations are correct) of all Railroad Workers are (currently) male.

One might applaud (but sadly, I do not) Ginsberg's misguided notion of Anti-Sexism. Unfortunately, the effect is ruined by his (suck it) use of Overt Sexism (much as one is free to disagree about the effectiveness of this diatribe for much the same reason). Whatever the case (and in this particular case), the use of a female gender (by a preponderance of the odds) is overwhelmingly incorrect. If one is going to select a gender to denote a Generic Railroad Worker, male is the appropriate choice, as that is what most Railroad Workers are: male.

The Gender Neutral designations of They, One, He/She, or Railroad Worker would all work (more-or-less) equally well wherever Ginsburg uses He. After all, if one does not wish to be sexist, the safest bet is to avoid gender demarcations altogether.

Me, I'm as sexist as all get-out... which merely means I believe there are loads (upon loads, upon loads) of biological, physical, emotional, and behavioural differences between the sexes. For the most, it is painfully easy for the average human to differential Men from Women (or should that be Women from Men).

And it turns out, one of those ways is by looking at their job. If they (and please, note the ease of gender neutrality) work in the Railroad subset of the Transportation Industry, the odds-on-bet (30:1 with a bit left over for the vig... or whatever the house edge is called in modern gambling parlance) is that they are (see, still neutral, it's so easy) are a man (no gender neutrality needed, as we are indeed now talking about the male sex).

As a Privileged White Male (Go Patriarchy!), I have (over the course of my life) blithely (as in, without a care in the world) watched by the sidelines (neither helping nor hampering) as my God Given Right of Dominion over the other races (not to mention sexes, all of them) has been systematically eroded at every step and turn. And you know what? I am perfectly fine with that. Go Equality! In fact, Go Life, Liberty, and the Pursuit of Happiness for All! But true equality is not achieved by an inversion of the trend; but rather, a smoothing.

Ginsberg's use of she when she (hey, I got it right this time) should clearly be using they (or some other gender neutral pronoun) is amazingly sloppy, inaccurate, and is certain to pave the way for an Anti Politically Correct Backlash of which this short tirade is but an ineffective example.

I'm OK with equality. In fact, I prefer it. But if your rally cry is going to be Go Women!, I will happily counter with Go Patriarchy!

And if you haven't noticed, we're already far-far ahead!

Booyah, Losers!

Finally, I believe the intent of the RRA & RRTA was to provide Railroad Workers with an alternative (and why did they need an alternative, in the first place) to Social Security.

For all of these Social Programs (Welfare, Unemployment, Social Security, and all the rest), I would (if elected Emperor of All in the upcoming election: The Last Election You'll Ever Need) replace all of these programs with a system of comprehensive minimum services:
I don't think it is prudent to discuss the level of service. After all, it would be sure to start quite low. But the intent would be to raise the standard over time.

Thus, Universal Food might simply start as a program of Crackers on Demand (available at all government buildings) and slowly expanded from there to include Fruit, Vegetables, Ham Sandwiches, French Fries, Sodas, and all the rest.

Guess what? I'm a Commie... who understands (or merely believes) that Communism defines (by definition of the term, don't you know, so this isn't an argument; but rather, a definition of Communism as) the best way to distribute that which is plentiful (after all, there must be a best way, mustn't there), while Capitalism (by Western Ideological Decree) is the best (please read as the most efficient) way to distribute that which is limited.

Which is to say, some things should be free, as that's the cheapest way to gift them to everybody, everywhere, all of the time... like Crackers, because if I honestly thought you would starve to death without my help, I'd get you a cracker or two... probably... maybe... if it weren't too much of a hassle... and don't touch me or try to shake my hand when I toss them at your feet, ya dirty commoner.

Of course, the homeless in my neck of the woods do their begging surrounded by bags (and cartons) of half-eaten take-out food. So, I don't actually believe anyone is in danger of starving to death. And therefore, I'm free to do absolutely nothing about their situation... with nary a care in the world.

Judging the Judges

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"I'm sick of crackers!"

And thereby, incentive is maintained.

© copyright 2019 Brett Paufler
A Personal Opinion/Editorial