He Said/She Said, Save Our Sons, and the Stories that Stick: Part Two of a Two-Part Series of Columns

SHERRY F. COLB

In this second in a series of columns on the U.S. Department of Education’s recent push toward a higher burden of proof in determinations of sexual harassment or assault under Title IX, Cornell Law professor Sherry F. Colb suggests that gendered narratives play a role in people’s willingness to regard an acquaintance rape case as “he said/she said.” Colb describes several examples in which people prefer a story that confirms a pre-existing bias over truth based on evidence.

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Monk v. Wilkie

Court: US Court of Appeals for the Federal Circuit

Docket: 19-1094

Opinion Date: October 20, 2020

Judge: Pauline Newman

Areas of Law: Government & Administrative Law, Military Law, Public Benefits

Veterans sought certification for the class of veterans whose disability claims had not been resolved by the Board of Veterans Appeals within one year of the filing of a Notice of Disagreement (NOD), requesting judicial action to compel the Secretary of Veterans Affairs to decide all pending appeals within one year of receipt of a timely NOD. The Veterans Court requested that they separate or limit the requested class action into issues that meet the Federal Rule of Civil Procedure 23(b)(2) “commonality” standard. The veterans declined, stating that “systemic delay” exists in the VA claims system, and broad judicial remedy is required. The Veterans Court denied the requested class certification. While the case was pending, the Veterans Appeals Improvement and Modernization Act of 2017, 131 Stat. 1105 purportedly improved processing times by allowing claimants to choose: higher-level review, a supplemental claim, board review with a hearing and opportunity to submit additional evidence, board review without a hearing, but with an opportunity to submit additional evidence, or board review without a hearing or additional evidence, based on their priorities on appeal. The Federal Circuit affirmed the denial of class certification, citing the lack of proof of commonality. When Congress has crafted a comprehensive remedial structure, that structure warrants evaluation in practice before judicial intervention is contemplated.