Tuesday, March 29, 2011

Posner and Hamlet Revisited

Judge Posner has toyed with Hamlet in the past.  In Palmer v. Circuit Court of Cook County, Ill., 117 F. 3d 351, the Good Judge used Hamlet to explain away the Catch-22 of the Americans with Disabilities Act. If a person's mental illness causes that person behave as a mentally ill person, such as threatening to kill someone, his employer can fire him for acting like a mentally ill person, but the employer cannot fire the person for being mentally ill. In other words, you can be mentally ill, but you cannot act as if you are mentally ill.

Judge Posner explains:
The cause of the threat was, we may assume, her mental illness — as when Hamlet said, apologizing to Laertes, "Was't Hamlet wrong'd Laertes? Never Hamlet./ If Hamlet from himself be ta'en away,/ And when he's not himself does wrong Laertes,/ Then Hamlet does it not; Hamlet denies it./ Who does it then? His madness." Hamlet, Act V, sc. ii, ll. 229-233. But if an employer fires an employee because of the employee's unacceptable behavior, the fact that that behavior was precipitated by a mental illness does not present an issue under the Americans with Disabilities Act.

If you still don't understand, then it is time to take up the book and read.
     "They're trying to kill me," Yossarian told him calmly.
     "No one's trying to kill you," Clevinger cried.
     "Then why are they shooting at me?" Yossarian asked.
     "They're shooting at everyone," Clevinger answered. "They're trying to kill everyone."
     "And what difference does that make?"
                Catch - 22

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