The Limits Of Common Sense In Judicial Decisionmaking

Judge Posner's recent opinion in Mitchell v. JCG Industries, Inc. enters a Twilight Zone of appellate decisionmaking that is truly bewildering. The issue was whether the FLSA requires poultry workers to be paid overtime for "donning and doffing" protective clothing at the beginning and end of their lunch breaks. Judge Posner answered that question, in part, by timing how long it took three of the court's staff to don and doff the clothing. The parties had submitted conflicting testimony about this precise issue at the summary judgment stage. Nonetheless, Judge Posner, joined by Judge Kaanne, affirmed the grant of summary judgment in the employer's favor based in part on the results of the in-chambers experiment.