Law Commons^™

Compelling Arbitration Of Claims Under The Civil Rights Act Of 1866: What Congress Could Not Have Intended, Jean R. Sternlight

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The Civil Rights Act of 1866 was a very special statute, designed at minimum to eliminate all "badges and incidents of slavery" and to ensure that the freed slaves would be provided with civil rights equal to those of white persons. Its enforcement depends on the availability of a neutral public system of justice. Private arbitration cannot assure these characteristics. Thus, courts should not enforce agreements to arbitrate future disputes that may arise under this statute. This Article, however, does not argue that arbitration of claims under the Civil Rights Act of 1866 should be prohibited altogether. Disputants who mutually …

Affirmative Action Awash In Confusion: Backward-Looking-Future-Oriented Justifications For Race-Conscious Measures, Ann C. Mcginley

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The Third Circuit Court of Appeals, sitting en banc, decided Taxman v. Board of Education of the Township of Piscataway, in August 1996. Eight judges agreed that he Board of Education of Piscataway Township, New Jersey violated Title VII of the Civil Rights Act by using race, in accordance with its affirmative action policy, to break a tie between two teachers in the Business Department at Piscataway High School when determining which teacher to lay off. A strong dissent by Chief Judge Sloviter was joined by two other Court of Appeals judges. The majority decision is remarkable in its breadth, …

Protecting Basic Rights Of Citizens, Ellen Catsman Freidin, Ann C. Mcginley

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Revision 9 suggests three important changes to the basic rights provision of the Florida Constitution. First, it would add “female and male alike” to define “natural persons who are equal before the law.” This change expressly recognizes equality of the sexes. Second, it would prohibit the government from depriving a person of any right because of the person’s national origin. Finally, the revision prohibits the government from depriving a person of any right because of “physical disability,” replacing the currently existing protection for “physical handicap.”

The Emerging Cronyism Defense And Affirmative Action: A Critical Perspective On The Distinction Between Colorblind And Race-Conscious Decision Making Under Title Vii, Ann C. Mcginley

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In Foster v. Dalton, the United States Supreme Court approved of the promotion of a less-qualified white male over a better-qualified black female under very suspicious circumstances; in Taxman v. Board of Education, the court invalidated the retention of an equally qualified black female over her white counterpart. The law justifies the disparate results in Foster and Taxman by invoking the principle of race and gender “neutrality” in the decision making process. Under this principle, the law generally prohibits employment determinations based consciously on a person's race or gender. An exception to the “neutrality principle” of Title VII is the …

Whose Justice? Which Victims?, Lynne Henderson

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No abstract provided.

Destructuring Disability: Rationing Of Health Care And Unfair Discrimination Against The Sick, David Orentlicher

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No abstract provided.

Rethinking Civil Rights And Employment At Will: Toward A Coherent National Discharge Policy, Ann C. Mcginley

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America's employment discharge policy begs for reform. Although most states have created exceptions to the employment at will doctrine, the doctrine thrives. Title VII of the Civil Rights Act of 1964 (“Title VII”), which bans discrimination in employment based on race, gender, color, religion, and national origin, has proved ineffective in combating employment discrimination. Despite the statutory and common law exceptions to the employment at will doctrine, today's employees may have less job security than in the past. Although I applaud the Commissioners' efforts toward achieving justice in the workplace, I believe that abolishing the employment at will doctrine through …

Vindicating Rights In A Federal System: Rediscovering 42 U.S.C. § 1985(3)'S Equality Right, John Valery White

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Section 1985(3) is dead. The United States Supreme Court's refusal to apply § 1985(3) to the assault and intimidation of abortion seekers by abortion protesters in Bray v. Alexandria Women's Health Clinic confirmed the demise of the section, already significantly undercut by the Supreme Court's previous decisions in Great American Federal Savings & Loan Ass'n v. Novotny and United Brotherhood of Carpenters & Joiners v. Scott. If Bray is troubling for the conceptual moves Justice Scalia employed to deny recovery under the section, it is more disconcerting for the apparently inconsequential resemblance of its facts to those of the case …

The Brown Symposium – An Introduction, Thomas B. Mcaffee

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This article is an introduction to a symposium sponsored by Southern Illinois University regarding Brown v. Board of Education.

Brown And The Doctrine Of Precedent: A Concurring Opinion, Thomas B. Mcaffee

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This article is part of a symposium sponsored by Southern Illinois University regarding Brown v. Board of Education. In this article, the author addresses the question of what opinion he would have written had he been a justice on the U.S. Supreme Court when the case was decided.

The author indicates he would have concurred in those opinions finding a violation of the Equal Protection Clause of the Fourteenth Amendment in Brown v. Board of Education. The author finds persuasive the argument that any other decision would permit states to evade the core purpose of the Fourteenth Amendment. Nevertheless, …

Condescending Contradictions: Richard Posner's Pragmatism And Pregnancy Discrimination, Ann C. Mcginley, Jeffrey W. Stempel

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Richard Posner’s, the Chief Judge of the United States Court of Appeals for the Seventh Circuit, judicial actions have been criticized, primarily for inconsistently commingling economic analysis with other approaches to decisionmaking in an effort to reach personally pleasing results that are at odds with Posner's professed commitment to methodological rigor. Although criticism of Posner's judging is diverse, a common theme is that he too frequently marshals his argumentative force merely to uphold the economic rights of the powerful. In other words, according to the critics, after the rush of intellectual excitement subsides, litigants and the justice system are left …

Reinventing Reality: The Impermissible Intrusion Of After-Acquired Evidence In Title Vii Litigation, Ann C. Mcginley

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This Article analyzes the use of after-acquired evidence to defeat a discrimination victim's claim against her employer. The use of the Mount Healthy and Price Waterhouse mixed motives analysis in after-acquired evidence cases is misplaced because it is impossible for the permissible motive—resume fraud—to have been a factor in the adverse employment decision. Furthermore, after the enactment of the Civil Rights Act of 1991, it would be an improper judicial intrusion upon the power of the legislature for courts to apply mixed motives analysis to these cases. Besides the constitutional limitation on the judiciary's power created by the Civil Rights …

Credulous Courts And The Tortured Trilogy: The Improper Use Of Summary Judgment In Title Vii And Adea Cases, Ann C. Mcginley

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Civil rights are under siege. In mid-1989, the United States Supreme Court decided several cases that severely limit the civil rights claims and remedies available to a plaintiff claiming employment discrimination. This Article examines the gradual and continuing erosion of the factfinder's role in federal employment discrimination cases and its replacement by an increasing use of summary judgment through which the courts make pretrial determinations formerly reserved for the factfinder at trial. This trend not only represents a major shift in court procedure and, in the case of age discrimination claims, a transfer of power from juries to judges, but …

Sanctions, Symmetry, And Safe Harbors: Limiting Misapplication Of Rule 11 By Harmonizing It With Pre-Verdict Dismissal Devices, Jeffrey W. Stempel

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With only a small risk of overstatement, one could say that sanctions in civil litigation exploded during the 1980s, with the 1983 amendment to Federal Rule of Civil Procedure 11 acting as the principal catalyst. From 1938 until the 1983 amendment, only two dozen or so cases on Rule 11 were reported, with courts rarely imposing sanctions. Although a few cases were notable by virtue of sanction size, prestige of the firm sanctioned, or publicity attending the underlying case, the legal profession largely regarded Rule 11 as a dead letter. In addition, other sanctions provisions, such as Federal Rule of …

Authoritarianism And The Rule Of Law, Lynne Henderson

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No abstract provided.

Civil Rights In Employment: The New Generation, Linda H. Edwards

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In July 1989, Title VII was twenty-five years old. It is generally assumed that the first twenty-five years have seen significant changes in the economic opportunities available to America’s minorities and women. But with the rise to power of the Reagan appointees, the Supreme Court is clearly fashioning a new approach to issues of civil rights in employment. This article analyzes the new Court’s emerging themes and proposes a congressional response.

Patterson And Civil Rights: What Rough Beast Slouches Towards Bethlehem To Be Born?, Peter Brandon Bayer

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Contrary to its assertions, the U.S. Supreme Court’s decision in Patterson decision marks a stark departure from the federal courts' former practice of according Congressional civil rights enactments a broad reading to effectuate their remedial purposes. Indeed, Patterson offers an exceedingly narrow interpretation of this nation's oldest civil rights law, the Civil Rights Act of 1866.

In addition to its effect on the scope and application of § 1981, Patterson must be read in conjunction with several other decisions issued during the same term that limit—indeed retreat from—the application of civil rights laws designed to restore both lost opportunities and …

The Supreme Court's Denial Of Reasonable Attorney's Fees To Prevailing Civil Rights Plaintiffs, Jean R. Sternlight

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The Supreme Court, through a series of recent decisions has effectively overridden Congress’ dictate that prevailing civil rights plaintiffs are entitled to recover reasonable attorney’s fees and costs. The solution to the current crisis lies not in reluctant court-appointed attorneys, but rather in a broad-based reform of the law regarding court-awarded attorney’s fees.

This article argues that only action by Congress will suffice to override the Supreme Court’s erroneous ruling and ensure just compensation for civil rights attorneys. Absent such legislation, it seems virtually certain that both the quantity and quality of civil rights litigation will continue to decrease. Fewer …

Watson V. Ft. Worth Bank And Trust: The Changing Face Of Disparate Impact, Linda H. Edwards

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Title VII of the Civil Rights Act of 1964 constitutes this country’s first serious commitment to eradicating the enormous economic disadvantages caused by hundreds of years of racial and gender-related prejudice. But there is also cause for concern. While members of once excluded groups have entered the mid-level workforce, most have not progressed to top-level positions. Perhaps not surprisingly, the elimination of barriers to mid-level employment has spotlighted the unique barriers to equal employment in top-level jobs. Title VII’s capacity to deal effectively with these barriers will be its major challenge for the next quarter-century. Its success will depend, in …

Rationality - And The Irrational Underinclusiveness Of The Civil Rights Laws, Peter Brandon Bayer

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Congress has enacted a series of civil rights laws designed to protect individuals from public an private forms of irrational discrimination. To be lawful, such civil rights statutes must conform with the definition of rationality required by the Fifth and Fourteenth Amendments. Yet, in one fashion, these statutes are as irrational as the behavior they seek to control. The statutes protect only certain classes of individuals in limited instances. This article argues that the existing civil rights laws, although integral to a free society, are but a first step. The statute will never be fully rational, never completely fair, until …

Mutable Characteristics And The Definition Of Discrimination Under Title Vii, Peter Brandon Bayer

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Title VII of the Civil Rights Act of 1964 prohibits racial, religious, gender, ethnic, and color discrimination in employment. In most instances the courts interpret the statute very broadly. However, a line of cases holds that discrimination predicated on a forbidden criterion coupled with a ‘mutable’—easily altered—characteristic does not constitute a violation of Title VII. This Article attempts to debunk the ‘mutable’ characteristic doctrine by discerning a general definition of discrimination under Title VII and applying that definition to demonstrate that mutability analysis contradicts the letter and spirit of the law.

Book Review, Elaine W. Shoben

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The Burden of Brown by Raymond Wolters is a long book with a very short message: integration is bad, but desegregation is not. The distinction between the two is crucial to Wolters's analysis. Desegregation is the prohibition of officially sanctioned separation of the races. Integration, on the other hand, is the compelled mixing of the races for the sake of mixing. The "burden" of Brown v. Board of Education, according to Wolters, is that the Supreme Court has blurred this distinction and erroneously requires integration instead of merely prohibiting segregation. Wolters's thesis is that Brown had two prongs: one …