After reviewing the two 2d Circuit opinions, it's fairly easy to conclude that the 2d Circuit pretty much ignored existing binding precedent to reach 2 unprincipled outcome-determined rulings. Judge Mukasey's decisions are not reported (that I could find), but the two 2d circuit opinions are remarkably pedestrian for reported cases. Both of them read like a plaintiff's closing argument rather than an impartial review of the facts.

The driving ruling of the first decision (888 F.2d 4) was the following holding by the court

"At the summary judgment level, however, the plaintiff does not have to prove that the reason is pretextual. The plaintiff may preclude summary judgment by producing evidence from which the trier of fact reasonably could draw an inference of discrimination."

This was a dubious statement of the law, at best, even at that time. Today it would universally be regarded as erroneous. Notably, the court doesn't cite a single 2d Circuit case in support. It doesn't even cite Celotex. It varies from a number of previously decided 2d Circuit cases, most recently Dister, 859 F.2d 1108. In short, at the time Mukasey ruled in his case, he had no reason to believe that the governing law was what the 2d made up (or more correctly, ignored) in its initial decision.

After appeal, Mukasey granted jnov as to the NYPD, concluding that the plainitff had failed to establish a policy, custom or usage as requried by the Supreme Court decision in Monell (which the 2d circuit erroneously cited as including a "practice"). The 2d reversed. It concluded (971 F.2d 864) that

On this point, Mukasey's decision is absolutely unassailable. The law had long been decided by this time that a single instance of a violation of a civil right was insufficient as a matter of law to establish a policy, custom or usage. The only other evidence was an internal study that showed that of 31 male officers who had been charged with crimes, 22 had been fired; 4 out of 4 females had. The 2d concluded that the Mukasey erred in concluding that because this evidence was statistically insignificant it was not probative. In due respect to the 2d, by this time it had been over 15 years since the US Supreme Court reached its definitive holding in Teamsters that statistical evidence used to prove "pattern or practice" had to reach at least 2 standard deviations of statistical significance.

There is plenty to criticise in the way the NYPD handled this decisions with respect to the plaintiff in this case. However, in adjudicating her claims, it was the 2d Circuit that missed the boat. It is a truism that hard cases make bad law. But they only do so when the judges involved are willing to ignore binding precedent.

Personally, I think that we have had enough of attorney generals who make up the law as they go along as the 2d circuit did in these 2 decisions. I prefer to have an AG who, like Mukasey did in these cases, understands the law and applies it, without regard to the outcome. That, at least, is what we say we want in judges, n'est ce pas?