Law Commons^™

Corporate Boardroom Diversity: Why Are We Still Talking About This?, Lawrence J. Trautman

Lawrence J. Trautman Sr.

What exactly is board diversity and why does it matter? How does diversity fit in an attempt to build the best board for any organization? What attributes and skills are required by law and what mix of experiences and talents provide the best corporate governance? Even though most companies say they are looking for diversity, why has there been such little progress? Are required director attributes, which are a must for all boards, consistent with future diversity gains and aligned with achieving high performance and optimal board composition? My goal is to provide answers to these questions, and to discuss …

Privacy As A Tool For Antidiscrimination, Jessica Roberts

Jessica L. Roberts

Traditionally, laws that protect privacy and laws that prohibit discrimination have been considered distinct kinds of legal protections. This Essay challenges that binary on both practical and theoretical grounds. Using the Genetic Information Nondiscrimination Act (GINA) as a case study, it argues that lawmakers can use privacy law to further antidiscrimination goals. GINA, which prohibits genetic-information discrimination in health insurance and employment, does more than simply outlaw discriminatory conduct. It also prohibits employers from requiring—or even requesting—their employees’ genetic information. While GINA’s privacy and antidiscrimination protections have previously been viewed as discrete, this Essay reads them in concert, arguing that …

South Dakota: Making Dollars And Sense Of Indian Child Removal, Rachael Whitaker

Rachael Whitaker

South Dakota- Making Dollars and Sense of Indian Child Removal By: Rachael Whitaker In 2004, a South Dakota Governor’s Commission report adamantly denied claims that the state’s Department of Social Services (DSS) is “harvesting Indian children as a cash crop” and “runs nothing more than a state sponsored kidnapping program.” National Public Radio (NPR) broke a story in 2011, claiming South Dakota removed Indian children for profit. Since NPR’s report, the state has remained tight-lipped, advocates have threatened litigation, and Congress has asked for answers. South Dakota has a small population and economy, and it receives almost half of its …

Beyond Common Sense: A Social Psychological Study Of Iqbal's Effect On Claims Of Race Discrimination, Victor D. Quintanilla

Victor D. Quintanilla

This article examines the U.S. Supreme Court’s decision Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) from a social psychological perspective, and empirically studies Iqbal’s effect on claims of race discrimination.

In Twombly and then Iqbal, the Court recast Rule 8 from a notice-based rule into a plausibility standard. Under Iqbal, federal judges must evaluate whether each complaint contains sufficient factual matter “to state a claim to relief that is plausible on its face.” When doing so, Iqbal requires judges to draw on their “judicial experience and common sense.” Courts apply Iqbal at the pleading stage, before evidence has been …

Respecting Language As Part Of Ethnicity: Title Vii And Language Discrimination At Work, Carlo A. Pedrioli

Carlo A. Pedrioli

This article argues that, in the absence of a legitimate, non-discriminatory reason or a business necessity, Title VII of the 1964 Civil Rights Act can protect employees from language-based discrimination in the workplace. Language is a part of one’s ethnicity, which refers to one’s culture. Ethnicity, much as race already does, should receive protection under Title VII. Plaintiffs, however, have the burden of proof in litigation, and so a plaintiff who sues under a discrimination theory should have to make his or her case to the appropriate fact-finder.

Drawing upon the insights of critical theory, particularly to explore concepts like …

Personae Non Suspect: Sexual Orientation Discrimination Under The Supreme Court’S New Anticlassification Regime, Chris R. Copeland

Chris R Copeland

As Perry v. Schwarzenegger seemingly makes its way to the Supreme Court, LGBT advocates are staking their legal claims around the Fourteenth Amendment’s Equal Protection Clause – arguing for the designation of LGBTs as a suspect or quasi-suspect group. The desire for suspect class designation is in vain though. In the late 1970s, the Supreme Court closed the set of suspect and quasi-classifications, and the set will likely remain closed. Around the same time, the Court faced a series of affirmative action cases in which it was forced to choose between two approaches to equal protection: antisubordination and anticlassification. It …

Rights, Race, And Manhood: The Spanish American War And Soldiers’ Quests For First Class American Citizenship, Julie Novkov

Julie Novkov

Unlike the Civil War and Reconstruction, the Spanish American War and the Philippine Resistance were not accompanied by significant rights advances for people of color. Rather, rights continued to flow in retrograde, with increased political and cultural repression. Men of color contributed substantially and formally to the war effort, with companies of black and Filipino soldiers serving in combat and many individual Latinos, Native Americans, and Asian men and male descendants of Asians serving as well. Nonetheless, they were unable to leverage service into successful claims to the rights of manhood. This paper explores these dynamics in the context of …

Sacrifice And Civic Membership: The Case Of World War I, Julie Novkov

Julie Novkov

In the Civil War and World War II, many men of color gained rights while women's rights were in retrograde. While World War I is not a perfect mirror image of the Civil War and World War II, it may make sense to think of World War I as reversing the polarities that were in operation in the two other major conflicts. To understand this dynamic, this paper will explore the kinds of claims that men of color and women made for rights based in forms of civic service and sacrifice, how those claims were met by various state actors, …

Sacrifice And Civic Membership: Who Earns Rights, And When?, Julie Novkov

Julie Novkov

This paper considers two moments that scholars generally agree featured advances for African Americans’ citizenship – the end of the Civil War and Reconstruction, and World War II and its immediate aftermath – and reads these moments through lenses of race and gender. I consider the conjunction of acknowledged sacrifices and contributions to the state, the rights advances achieved, and the gendered and racialized conceptions of citizen service emerging out of both post-war periods. This conjunction suggests that the kind of citizenship that people of color gained during and after wartime crises depended upon gendered and racialized hierarchies that valued …

Racial Formation In Quebec: A Legal Retospective, Roozbeh (Rudy) B. Baker

Roozbeh (Rudy) B. Baker

This Article shall use the experience of the Quebecois in Canada to survey the linkage between cultural formation and race in Quebecois racial identity, and then map out these linkages and their relations to the political and legal discourse that has emerged in Canada on the place of the Quebecois in the country. Cultural formation and racial formation are unmistakably linked. Specific social and linguistic separatism can over time crystallize into racial formation, especially if aided by official government recognition and legal codification. As this Article shall demonstrate, the verification of this idea can be clearly seen the experience of …

Fractured Bonds: Policing Whiteness And Womanhood Through Race-Based Marriage Annulments, Bela August Walker

Bela August Walker

In the hundred years before the United States Supreme Court declared miscegenation statutes unconstitutional in Loving v. Virginia, state courts decided thirteen recorded race-based annulment cases. This article presents a unified analysis of all race based annulment cases for the first time. Simultaneously public and private affairs, these dramas impacted far more than the individual couples or courtrooms, sending out shockwaves that reverberated beyond their points of origin. The results of the cases are startling and contrary to previous work on the subject. Using this unique set of cases, this article argues that while declaring these women “white” appears like …

The Color Of Crime: The Case Against Race-Based Suspect Descriptions, Bela August Walker

Bela August Walker

Law enforcement in the United States relies on racial identifiers as a crucial part of suspect descriptions. Unlike racial profiling, this practice is regarded as both an essential tool for law enforcement and as an unproblematic use of race. However, given the racial history of the United States, such descriptors, particularly “Black,” have developed in such a way to create an extremely large and unreliable category. Due to these factors, the use of race as a physical descriptor in suspect decisions is both discriminatory and inefficient. Employing race as an identifying characteristic allows law enforcement officers broad discretionary powers that …