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Articles 1 - 30 of 40
Full-Text Articles in Law
Brief For Amici Curiae Professors Of Law In Support Of Petitioner, Barbara Allen Babcock, Jeffrey Bellin, Robert P. Burns, Sherman J. Clark, James E. Coleman Jr., Lisa Kern Griffin, Robert P. Mosteller, Deborah Tuerkheimer, Neil Vidmar
Brief For Amici Curiae Professors Of Law In Support Of Petitioner, Barbara Allen Babcock, Jeffrey Bellin, Robert P. Burns, Sherman J. Clark, James E. Coleman Jr., Lisa Kern Griffin, Robert P. Mosteller, Deborah Tuerkheimer, Neil Vidmar
Faculty Scholarship
No abstract provided.
Blinding Prosecutors To Defendants’ Race: A Policy Proposal To Reduce Unconscious Bias In The Criminal Justice System, Sunita Sah, Christopher Robertson, Shima Baughman
Blinding Prosecutors To Defendants’ Race: A Policy Proposal To Reduce Unconscious Bias In The Criminal Justice System, Sunita Sah, Christopher Robertson, Shima Baughman
Faculty Scholarship
Racial minorities are disproportionately imprisoned in the United States. This disparity is unlikely to be due solely to differences in criminal behavior. Behavioral science research has documented that prosecutors harbor unconscious racial biases. These unconscious biases play a role whenever prosecutors exercise their broad discretion, such as in choosing what crimes to charge and when negotiating plea bargains. To reduce this risk of unconscious racial bias, we propose a policy change: Prosecutors should be blinded to the race of criminal defendants wherever feasible. This could be accomplished by removing information identifying or suggesting the defendant’s race from police dossiers shared …
Distinguishing Disparate Treatment From Disparate Impact; Confusion On The Court, Michael C. Harper
Distinguishing Disparate Treatment From Disparate Impact; Confusion On The Court, Michael C. Harper
Faculty Scholarship
In two decisions in the 2014-2015 Term, Young v. United Parcel Service, Inc., and Equal Employment Opportunity Commission v. Abercrombie & Fitch, Inc., the Court seemed to give contradictory answers to an important unresolved conceptual definitional question: Does disparate treatment include assigning members of a protected group based on their protected status to a larger disfavored group that is defined by neutral principles and that includes others who are not members of the protected group? Or does such assignment have only a disparate impact on the protected status group?
In Young, the first of these decisions, all members of the …
Trailblazers And Those That Followed : Personal Experiences, Gender, And Judicial Empathy., Laura P. Moyer, Susan B. Haire
Trailblazers And Those That Followed : Personal Experiences, Gender, And Judicial Empathy., Laura P. Moyer, Susan B. Haire
Faculty Scholarship
This paper investigates one causal mechanism that may explain why female judges on the federal appellate courts are more likely than men to side with plaintiffs in sex discrimination cases. To test whether personal experiences with inequality are related to empathetic responses to the claims of female plaintiffs, we focus on the first wave of female judges, who attended law school during a time of severe gender inequality. We find that female judges are more likely than their male colleagues to support plaintiffs in sex discrimination cases, but that this difference is seen only in judges who graduated law school …
Richard Delgado And Ice Cube: Brothers In Arms, André Douglas Pond Cummings
Richard Delgado And Ice Cube: Brothers In Arms, André Douglas Pond Cummings
Faculty Scholarship
Critical Race Theory as a movement is best understood through the lens of founding voice Richard Delgado. Delgado’s prolific and fearless writings have inspired thousands and launched theories that have literally changed the course of race law in the United States. In fact, two explosive movements were born in the United States in the 1970s. While the founding of both movements was humble and lightly noticed, both grew to become global phenomena that have profoundly changed the world. Founded by prescient agitators, these two movements were borne of disaffect, disappointment, and near desperation — a desperate need to give voice …
The Civil Rights Act Of 1964 And 'Legislating Morality': On Conscience, Prejudice, And Whether 'Stateways' Can Change 'Folkways', Linda C. Mcclain
The Civil Rights Act Of 1964 And 'Legislating Morality': On Conscience, Prejudice, And Whether 'Stateways' Can Change 'Folkways', Linda C. Mcclain
Faculty Scholarship
Influential studies, from the 1940s and 1950s, of the problem of prejudice and how to remedy it challenged the famous assertion of nineteenth-century sociologist William Graham Sumner that “stateways don’t change folkways,” and its modern counterparts, “you cannot legislate against prejudice” or “you cannot legislate morality.” Social scientists countered that, although people might initially protest, they would welcome a federal antidiscrimination law that aligned with conscience and closed the gap between American ideals and prejudice, creating new “folkways.” Using examples from the contexts of public accommodations, education, and employment, this Article examines similar arguments made about conscience and “legislating morality” …
Federalism, Marriage, And Heather Gerken's Mad Genius, Kristin Collins
Federalism, Marriage, And Heather Gerken's Mad Genius, Kristin Collins
Faculty Scholarship
In her characteristically astute and engaging essay, Professor Heather Gerken offers a sensitive and sympathetic reading of Justice Anthony Kennedy’s majority opinion in United States v. Windsor.1 Her core claim is that Windsor—and the transformation of political and legal support for same-sex marriage in the United States—demonstrate how “federalism and rights work together to promote change” and, in particular, how federalism furthers the equality and liberty values of the Fourteenth Amendment.2 This is a natural line of argument for Gerken to develop with respect to Windsor, as she has produced an incredible body of scholarship dedicated to what …
Class-Based Adjudication Of Title Vii Claims In The Age Of The Roberts Court, Michael C. Harper
Class-Based Adjudication Of Title Vii Claims In The Age Of The Roberts Court, Michael C. Harper
Faculty Scholarship
This article considers two barriers to class-based adjudication of Title VII claims erected by the Roberts Court: (1) the Court's interpretation of Rule 23, primarily in Wal-Mart v. Dukes; and (2) the Court's interpretation of the Federal Arbitration Act (FAA) in a series of decisions, both employment-related and not. The article contends that it is the latter group of decisions that are the more significant for Title VII private aggregate litigation as well as for other types of private litigation. The Wal-Mart Court predictably did not expand an employer's obligations to avert discrimination by its agents, and its predictable interpretations …
Convergeing Around The Study Of Gender Violence: The Gender Violence Clinic At The University Of Maryland Carey School Of Law, Leigh S. Goodmark
Convergeing Around The Study Of Gender Violence: The Gender Violence Clinic At The University Of Maryland Carey School Of Law, Leigh S. Goodmark
Faculty Scholarship
Domestic violence clinics have been a staple of law school clinical programs since the 1980s. The University of Maryland Francis King Carey School of Law recently created the nation’s first Gender Violence Clinic, however. This article describes the motivation for taking a broader approach to gender based violence, the types of cases handled by the clinic, the challenges posed by the clinic structure, and the pedagogical goals for the clinic.
Race, Place And Historic Moment – Black And Japanese American World War Ii Veterans: The G.I. Bill Of Rights And The Model Minority Myth, Taunya L. Banks
Race, Place And Historic Moment – Black And Japanese American World War Ii Veterans: The G.I. Bill Of Rights And The Model Minority Myth, Taunya L. Banks
Faculty Scholarship
No abstract provided.
Post-Katrina Suppression Of Black Working-Class Political Expression, Taunya L. Banks
Post-Katrina Suppression Of Black Working-Class Political Expression, Taunya L. Banks
Faculty Scholarship
No abstract provided.
Colorism Among South Asians: Title Vii And Skin Tone Discrimination, Taunya L. Banks
Colorism Among South Asians: Title Vii And Skin Tone Discrimination, Taunya L. Banks
Faculty Scholarship
In 2013 Nina Davuluri, an Asian Indian from Syracuse, NY, became the first South Asian-American Miss America. The largely congratulatory comments from South Asian bloggers while reveling in the significance of her win, also commented on her skin tone, characterizing the new Miss America as dark brown, some adding that Davuluri would have never won the Miss Indian America USA title because she is “too dark.” Early discussions of colorism, skin tone bias, by legal scholars focus on how the practice impacts black Americans or other persons with some African ancestry. Yet the comments from South Asians about Davuluri’s skin …
Religious Freedom And (Other) Civil Liberties: Is There A Middle Ground?, Abner S. Greene
Religious Freedom And (Other) Civil Liberties: Is There A Middle Ground?, Abner S. Greene
Faculty Scholarship
There appears to be an intractable debate between those who favor religious accommodations and those who favor civil liberties such as abortion rights and equality rights for same-sex couples. Many take firm positions of truth about one matter or the other. Here, I sketch a middle ground, continuing my endorsement of a robust normative or value pluralism. I canvass some arguments for this position, while also describing and critiquing some works of intellectual history that seem too wedded to one teleological posture or another. Despite my support for the Religious Freedom Restoration Act, I critique the Court’s Hobby Lobby ruling, …
Legal Discourse And Racial Justice: The Urge To Cry ‘Bias!, Bruce A. Green
Legal Discourse And Racial Justice: The Urge To Cry ‘Bias!, Bruce A. Green
Faculty Scholarship
One who is convinced that a judge wrongly decided a case may sometimes be tempted to accuse the judge of bias, referring to unconscious social-group stereotypes and/or cognitive biases that fall under the rubric of “implicit biases.” The rhetoric is problematic, however, for various reasons. One is that the term “bias” in this context may be misunderstood to mean something different and unintended – either a disqualifying bias under judicial conduct rules or a conscious prejudice. Another is that, even if the intended meaning is clear, a judge’s implicit biases cannot fairly be inferred from a single wrong decision. To …
New York Times V. Sullivan And The Rhetorics Of Race: A Look At The Briefs, Oral Arguments, And Opinions, Carlo A. Pedrioli
New York Times V. Sullivan And The Rhetorics Of Race: A Look At The Briefs, Oral Arguments, And Opinions, Carlo A. Pedrioli
Faculty Scholarship
No abstract provided.
Two Stories About Skin Color And International Human Rights Advocacy, William J. Aceves
Two Stories About Skin Color And International Human Rights Advocacy, William J. Aceves
Faculty Scholarship
Color is an important but underdeveloped designation in international law. It is identified as a protected category in several human rights documents. Despite its status as a protected category, there is no definition of color in these documents.
In the absence of an established definition, race is often used as a proxy for color. Yet, there is growing skepticism within the human rights community about the legitimacy of using racial categories to distinguish human beings. While race and color are often used interchangeably, it is important to treat color as a distinct category. Race and color do not always match. …
Test Unrest: New York City's Examination High Schools, Aaron J. Saiger
Test Unrest: New York City's Examination High Schools, Aaron J. Saiger
Faculty Scholarship
New York City bases admissions to its eight “specialized” high schools entirely upon scores on a single standardized test. This policy, hotly contested when it was codified by state law in 1971, faces renewed political and legal attacks today. Single-test admissions consistently result in alarmingly low levels of African-American and Hispanic enrollment at the most sought-after specialized schools. This brief essay compares today’s debate to that of 1971. It notes two major developments since then. The City now has eight test-only high schools, not three. Moreover, the eight schools now function in the larger context of New York’s system of …
Seeking Educational Equality In The North: The Integration Of The Hilburn School System, Peter C. Alexander
Seeking Educational Equality In The North: The Integration Of The Hilburn School System, Peter C. Alexander
Faculty Scholarship
No abstract provided.
Centering The Teenage "Siren": Adolescent Workers, Sexual Harassment, And The Legal Construction Of Race And Gender, Anastasia M. Boles
Centering The Teenage "Siren": Adolescent Workers, Sexual Harassment, And The Legal Construction Of Race And Gender, Anastasia M. Boles
Faculty Scholarship
Recent scholarship and media attention has focused on the prevalence of sexually harassing behavior directed at working teenagers, and the emergence of sexual harassment lawsuits by these minors against their employers. Although many of the legal issues concerning workplace sexual harassment and adult workers (and the various state and federal jurisprudence prohibiting it) have been widely discussed, there is surprisingly little discourse, research, and precedent addressing the problem of workplace sexual harassment and teen workers.
Currently, most sexual harassment cases brought by adolescent workers are litigated using the doctrinal framework for adult workers. Only the Seventh Circuit has developed an …
Say Her Name: Resisting Police Brutality Against Black Women, Kimberlé W. Crenshaw, Andrea J. Ritchie, Rachel Anspach, Rachel Gilmer, Luke Harris
Say Her Name: Resisting Police Brutality Against Black Women, Kimberlé W. Crenshaw, Andrea J. Ritchie, Rachel Anspach, Rachel Gilmer, Luke Harris
Faculty Scholarship
Say Her Name sheds light on Black women’s experiences of police violence in an effort to support a gender-inclusive approach to racial justice that centers all Black lives equally. It is our hope that this document will serve as a tool for the resurgent racial justice movement to mobilize around the stories of Black women who have lost their lives to police violence ...Our goal is not to offer a comprehensive catalog of police violence against Black women – indeed, it would be impossible to do so as there is currently no accurate data collection on police killings nationwide, no …
Black Girls Matter: Pushed Out, Overpoliced And Underprotected, Kimberlé W. Crenshaw, Priscilla Ocen, Jyoti Nanda
Black Girls Matter: Pushed Out, Overpoliced And Underprotected, Kimberlé W. Crenshaw, Priscilla Ocen, Jyoti Nanda
Faculty Scholarship
For girls, as with boys, the failure to receive a high school diploma often places individuals on a pathway to low-wage work, unemployment, and incarceration. The imposition of harsh disciplinary policies in public schools is a well-known risk factor for stunted educational opportunities for Black and Latino boys. Such punishments also negatively affect their female counterparts, as do other conditions in zero-tolerance schools. Yet, the existing research, data, and public policy debates often fail to address the degree to which girls face risks that are both similar to and different from those faced by boys.
This silence about at-risk girls …
Obergefell At The Intersection Of Civil Rights And Social Movements, Suzanne B. Goldberg
Obergefell At The Intersection Of Civil Rights And Social Movements, Suzanne B. Goldberg
Faculty Scholarship
A judicial decision striking down formalized discrimination marks a crucial moment for those it affects and, in some instances, for the surrounding society as well. The Supreme Court’s ruling in Obergefell v. Hodges was unquestionably one of those instances.
This essay considers the distinct ways in which the civil rights and social movements for marriage equality gave rise to this durable socio-political transformation. While some scholarship is skeptical about whether rights-focused advocacy can bring meaningful change to people’s day-to-day lives, I argue that the marriage equality movements demonstrate a synergistic relationship between law reform and social change efforts. During the …
When The Curtain Must Be Drawn: American Experience With Proceedings Involving Information That, For Reasons Of National Security, Cannot Be Disclosed, Peter L. Strauss
When The Curtain Must Be Drawn: American Experience With Proceedings Involving Information That, For Reasons Of National Security, Cannot Be Disclosed, Peter L. Strauss
Faculty Scholarship
In numerous contexts today, ranging from no-fly lists, to the designation of foreign terrorist organizations, to controls over foreign investments in the United States, federal authorities reach decisions having dramatic consequences for individuals’ liberty and property on the basis of information that those individuals cannot obtain, even in summary form. Recent and pending litigation has challenged these deprivations on due process grounds, with only moderate success. Perhaps unclassified information on which the government has acted must be revealed, with an opportunity given to challenge it and to submit contrary evidence; but in the words of the DC Circuit writing last …
Hobby Lobby: Its Flawed Interpretive Techniques And Standards Of Application, Kent Greenawalt
Hobby Lobby: Its Flawed Interpretive Techniques And Standards Of Application, Kent Greenawalt
Faculty Scholarship
At the end of June 2014, the Supreme Court decided one of the most publicized controversies of decades. In a decision covering two cases, widely referred to as Hobby Lobby, the Court held that closely held for-profit corporations, based on their owners' religious convictions, have a right under the Religious Freedom Restoration Act (RFRA) to decline to provide employees with insurance that covers contraceptive devices that may prevent a fertilized egg "from developing any further by inhibiting its attachment to the uterus."
The result has been widely approved by those who favor an extensive scope for religious liberty and …
Marriage As Black Citizenship?, Robin A. Lenhardt
Marriage As Black Citizenship?, Robin A. Lenhardt
Faculty Scholarship
The narrative of black marriage as citizenship enhancing has been pervasive in American history. As we mark the fiftieth anniversary of the Moynihan Report and prepare to celebrate the 150th anniversary of Thirteenth Amendment, this Article argues that this narrative is one that we should resist. The complete story of marriage is one that involves racial subordination and caste. Even as the Supreme Court stands to extend marriage rights to LGBT couples, the Article maintains that we should embrace nonmarriage as a legitimate frame for black loving relationships — gay or straight. Nonmarriage might do just as much, if not …
Toward A More Perfect Union?: The Dangers Of Conflating Progress And Equality, Leo P. Martinez
Toward A More Perfect Union?: The Dangers Of Conflating Progress And Equality, Leo P. Martinez
Faculty Scholarship
No abstract provided.
The Respectable Dignity Of Obergefell V. Hodges, Yuvraj Joshi
The Respectable Dignity Of Obergefell V. Hodges, Yuvraj Joshi
Faculty Scholarship
No abstract provided.
Poor, Black And "Wanted": Criminal Justice In Ferguson And Baltimore, Michael Pinard
Poor, Black And "Wanted": Criminal Justice In Ferguson And Baltimore, Michael Pinard
Faculty Scholarship
No abstract provided.
The Voting Rights In Winter: The Death Of A Superstatute, Guy-Uriel Charles, Luis Fuentes-Rohwer
The Voting Rights In Winter: The Death Of A Superstatute, Guy-Uriel Charles, Luis Fuentes-Rohwer
Faculty Scholarship
The Voting Rights Act (“VRA”), the most successful civil rights statute in American history, is dying. In the recent Shelby County decision, the U.S. Supreme Court signaled that the anti-discrimination model, long understood as the basis for the VRA as originally enacted, is no longer the best way to understand today’s voting rights questions. As a result, voting rights activists need to face up to the fact that voting rights law and policy are at a critical moment of transition. It is likely the case that the superstatute we once knew as the VRA is no more and is never …
Barriers To Entry And Justice Ginsburg’S Criminal Procedure Jurisprudence, Lisa Kern Griffin
Barriers To Entry And Justice Ginsburg’S Criminal Procedure Jurisprudence, Lisa Kern Griffin
Faculty Scholarship
No abstract provided.