Law Commons^™

New York Law School Reporter V. 11, No. 12, December 1994, New York Law School

Student Newspapers

No abstract provided.

Racist Speech, Outsider Jurisprudence, And The Meaning Of America, Steven H. Shiffrin

Cornell Law Faculty Publications

Lawyering Askew: Excesses In The Pursuit Of Fees And Justice, Kenneth Lasson

All Faculty Scholarship

Lawyer-bashing in America has long been a national pastime, having somehow escaped the palliative of political correctness that has greatly diminished other scurrilous pursuits like Jewish-American-Princess-baiting and Polish-joking.

Much of the profession's negative image can be ascribed to the sheer number of people hanging out their shingles as attorneys at law - just about as many per capita as there are inmates currently serving time in all the state prisons. Lawyers are likewise chastised for the hard-sell hucksterism of their advertising, the exponential growth of their caseloads, and the endless upward spiral of their fee scales. No doubt such perceptions, …

The Punishment Of Hate: Toward A Normative Theory Of Bias-Motivated Crimes, Frederick M. Lawrence

Michigan Law Review

This article explores how bias crimes differ from parallel crimes and why this distinction makes a crucial difference in our criminal law. Bias crimes differ from parallel crimes as a matter of both the resulting harm and the mental state of the offender. The nature of the injury sustained by the immediate victim of a bias crime exceeds the harm caused by a parallel crime. Moreover, bias crimes inflict a palpable harm on the broader target community of the crime as well as on society at large, while parallel crimes do not generally cause such widespread injury.

The distinction between …

Section 4: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Asian Americans: The "Reticent" Minority And Their Paradoxes, Pat K. Chew

William & Mary Law Review

No abstract provided.

Employment Discrimination Testing: Theories Of Standing And A Reply To Professor Yelnosky, Leroy D. Clark

University of Michigan Journal of Law Reform

In this Article, Professor Clark addresses the legal issues surrounding the use of testers-individuals who deliberately apply for employment to detect sex and race discrimination. He surveys three theoretical justifications for granting standing to organizations that run testing programs. Professor Clark then responds to a previous article by Professor Yelnosky, disputing some of his conclusions. Professor Clark indicates that testing is just as necessary in higher-level employment as lower-level employment; shows that testers can obtain meaningful relief from the courts; analyzes the impact of the 1991 Civil Rights Act amendments; and encourages Congress to authorize the EEOC to run tester …

Salvaging The Opportunity: A Response To Professor Clark, Michael J. Yelnosky

University of Michigan Journal of Law Reform

In this Article, Professor Yelnosky responds to Professor Clark's critique of his previous article, Filling an Enforcement Void: Using Testers to Uncover and Remedy Discrimination in Hiring for Lower-Skilled, Entry-Level Jobs. Professor Yelnosky first clarifies that Professor Clark has adopted several of the points Professor Yelnosky originally made in his earlier article. He then responds to the portions of Professor Clark's article that challenge his prior conclusions. He builds on and defends his previous arguments that: (1) testing is best suited to uncover hiring discrimination for lower-skilled jobs; (2) disincentives to bringing tester lawsuits make it unwise to rely …

"Even My Own Mother Couldn't Recognize Me": Television News And Public Understanding, Jane Rhodes

Federal Communications Law Journal

Broadcast journalists face conflicting responsibilities: the need to attract a large audience through visually entertaining products versus the need to present information that enhances public understanding. The Author argues that the media's social responsibility has become blurred in recent years as competition within the broadcast industry has increased. To keep the ratings up, many journalists are trying to force information into catchy sound bites without thinking about how such dissemination distorts that information. The Author argues that in spite of the increasing competition faced by broadcast journalists, they need to examine their professional practice and personal biases closely, with an …

Reading, Writing, And Sexual Harassment: Finding A Constitutional Remedy When Schools Fail To Address Peer Abuse, Karen Mellencamp Davis

Indiana Law Journal

No abstract provided.

Federalism And Civil Rights: Complementary And Competing Paradigms, James F. Blumstein

Vanderbilt Law Review

Until the Nixon Administration, federalism was not talked about much in the United States in the post-New Deal period and was not taken seriously as an intellectual matter. Increasingly, however, federalism has become an important domestic' and a critical worldwide issue. It may not be an exaggeration to say that federalism has indeed become the pervasive legal/political issue around the world.

In this Article I will make four points. First, by way of background and overview, I will conclude that the goal of federalism is and should be to encourage and facilitate geographically-based political autonomy without placing at risk the …

Racial Segregation In Canadian Legal History: Viola Desmond's Challenge, Nova Scotia, 1946, Constance Backhouse

Dalhousie Law Journal

Viola Desmond's courageous efforts to eliminate racial segregation are not as well known to Canadians in general. However, the legal response to Viola Desmond' s challenge provides one of the best examples of the historical role of law in sustaining racism in Canada.

Taxing Times For Lesbians And Gay Men: Equality At What Cost?, Claire Fl Young

Dalhousie Law Journal

In this article I shall briefly review some of those struggles and the current state of the law. This forms the backdrop to an issue that I view as being of fundamental importance to lesbians and gay men in their fight for equality and which has not received much attention; that is the tax system. I shall focus on two aspects. First, I shall analyse the use of the tax system as a spending programme and a tool by which to subsidise particular activities. In this context I shall examine the federal government's refusal to recognise lesbian and gay relationships, …

Employment Discrimination Claims Under Erisa Section 510: Should Courts Require Exhaustion Of Arbitral And Plan Remedies?, Jared A. Goldstein

Michigan Law Review

This Note examines whether courts should require section 510 claimants to exhaust either plan-based or arbitral remedies before seeking judicial relief. It begins by comparing the basis for an exhaustion requirement with respect to benefits claims with the basis for such a requirement with respect to statutory claims - like those under section 510. Part I examines the rationale courts have offered for requiring exhaustion of plan remedies for benefits claims. Part I concludes that federal courts have correctly determined that Congress intended individuals bringing benefits claims to exhaust the remedies provided by the plan before seeking judicial relief. Part …

Diversity: The Emerging Modern Separate But Equal Doctrine, Robert N. Davis

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Gay/Lesbian Law Scholarship Awarded For Second Year

Press Releases

No abstract provided.

No Time For Trumpets: Title Vii, Equality, And The Fin De Sièchle, D. Marvin Jones

Michigan Law Review

My essay seeks to examine the internal architecture of the discursive barrier - the wall - that the Supreme Court has built within the doctrinal framework of Title VII and concomitantly within the discourse of equality. To understand how the Court has erected this discursive wall, we must begin with history. Equality, while historically a vehicle for national identity and contemporaneously for modernist conceptions of justice, is synchronically and diachronically indeterminate. Equality is a deeply sedimented concept with not one objective meaning but successive levels of meaning built up over time. Each of those historic understandings is itself a unity …

Only Girls Wear Barrettes: Dress And Appearance Standards, Community Norms, And Workplace Equality, Katharine T. Bartlett

Michigan Law Review

In this essay I study both the judicial rationales and the scholarly criticisms thereof, agreeing with critics that community norms are too discriminatory to provide a satisfactory benchmark for defining workplace equality, but also questioning the usual implications of this critique. Critics assume that it is possible, and desirable, to evaluate dress and appearance rules without regard to the norms and expectations of the community - that is, according to stable or universal versions of equality that are uninfected by community norms. I question this assumption, arguing that equality, no less than other legal concepts, cannot transcend the norms of …

Caste And The Civil Rights Laws: From Jim Crow To Same-Sex Marriages, Richard A. Epstein

Michigan Law Review

In this essay I address the notion of caste in two separate contexts: in the traditional disputes over race and sex, and in the more modem disputes over sexual orientation. In both cases the idea of caste and its kindred notions of subordination and hierarchy are used to justify massive forms of government intervention. In all cases I think that these arguments are incorrect. In their place, I argue that the idea of caste should be confined to categories of formal, or legal, distinctions between persons before the law. This more limited notion of caste supplies no justification for the …

Employment Discrimination Law In Perspective: Three Concepts Of Equality, John J. Donohue Iii

Michigan Law Review

The essay begins with a discussion of which groups deserve the protection of employment discrimination law. With the protected categories of Title VII of the 1964 Civil Rights Act etched into the American consciousness, many might consider the appropriate categories to be fully self-evident. But of course, they are not, and many jurisdictions continue to struggle over whether certain dispreferred groups merit the law's solicitude.

Structuralist And Cultural Domination Theories Meet Title Vii: Some Contemporary Influences, Martha Chamallas

Michigan Law Review

This essay first looks at three important theoretical approaches - motivational, structural, and cultural - that mark the scholarly discourses on workplace equality since 1965. The motivational or individual choice theory is well established and has dominated legal discourse throughout this period. I concentrate in this essay on the other two visions, dating structuralist accounts from the mid1970s and cultural domination theories from the mid-1980s.

The Anticaste Principle, Cass R. Sunstein

Michigan Law Review

In this essay, I seek to defend a particular understanding of equality, one that is an understanding of liberty as well. I call this conception "the anticaste principle." Put too briefly, the anticaste principle forbids social and legal practices from translating highly visible and morally irrelevant differences into systemic social disadvantage, unless there is a very good reason for society to do so. On this view, a special problem of inequality arises when members of a group suffer from a range of disadvantages because of a group-based characteristic that is both visible for all to see and irrelevant from a …

Title Vii And The Complex Female Subject, Kathryn Abrams

Michigan Law Review

One strength of Title VII has been its capacity to accommodate the changing conceptions of discrimination and the self-conceptions of subject groups. In the first decades of its enforcement, advocates have raised - and courts have endorsed - a range of contrasting conceptions in order to broaden the employment opportunities of protected groups. This flexibility is particularly evident with respect to women.

After exploring recent doctrinal efforts to respond to complex claimants, I address these questions and assess the prospects of change. Although the unitary or categorical notions of group identity under which Title VII has historically been enforced might …

The Michael Jackson Pill: Equality, Race, And Culture, Jerome Mccristal Culp Jr.

Michigan Law Review

This chronicle is in tribute to the work of Derrick Bell, past, present, and future. I have borrowed his character Geneva Crenshaw as part of that tribute, and I hope she helps me raise some of the issues that he has taught us are important.

All characters in this chronicle are fictional, including Professor Culp and Professor Bell. Any relationship they may have to the real Professor Bell and Professor Culp is dictated by the requirements of creativity and the extent to which reality and fiction necessarily merge. I know that the real Derrick Bell is wiser than the one …

Factors For Reasonable Suspicion: When Black And Poor Means Stopped And Frisked, David A. Harris

Indiana Law Journal

No abstract provided.

Checking The "Trigger-Happy" Congress: The Extraterritorial Extension Of Federal Employment Laws Requires Prudence, Derek G. Barella

Indiana Law Journal

No abstract provided.

If Black Is So Special, Then Why Isn't It In The Rainbow?, Sharon E. Rush

UF Law Faculty Publications

In the modern day, defining "family" becomes less of a theoretical debate when one's own family unit is different from the traditional married, middle-class mother and father with their biological children. For non-traditional families, redefining family takes on enormous practical significance and may actually enable people to create families. Laws permitting transracial adoptions and surrogacy are illustrative. Moreover, a broader definition of family provides greater legal security to non-traditional families. Without such legal protection, non-traditional families live in fear of traditional laws tearing them apart. Rather than using a standard that promotes hegemony in custody disputes, decisionmakers should become aware …

Fight Muhammad's 'Secret' With Facts, Kenneth Lasson

All Faculty Scholarship

No abstract provided.

Intersections Of Race, Ethnicity, And The Law, Valerie P. Hans, Ramiro Martinez Jr.

Cornell Law Faculty Publications

The development of law is inextricably linked to matters of race and ethnicity. The stories of minority citizens--the texture of their lives, the prejudices they have endured, and their struggles for fair treatment--have been documented in the pages of legal opinions, as judges over the years have wrestled with fundamental questions of racial bias and inequality. Studying race, ethnicity, and the law is challenging for many reasons, not the least of which is the prime difficulty of defining what we mean by race. Even the choice of words used to identify minority individuals has social and political ramifications. How law …

Brown V. Board Of Education After 40 Years: Confronting The Promise, William & Mary Law School

Law School Conferences: Ephemera

Held on May 17-18, 1994 in Williamsburg, Virginia.

Sponsored by the Institute of Bill of Rights Law of The College of William and Mary and Howard University School of Law.