Law Commons^™

The Meaning Of Sex: Dynamic Words, Novel Applications, And Original Public Meaning, William N. Eskridge Jr., Brian G. Slocum, Stefan Th. Gries

Michigan Law Review

The meaning of sex matters. The interpretive methodology by which the meaning of sex is determined matters Both of these were at issue in the Supreme Court’s recent landmark decision in Bostock v. Clayton County, where the Court held that Title VII protects lesbians, gay men, transgender persons, and other sexual and gender minorities against workplace discrimination. Despite unanimously agreeing that Title VII should be interpreted in accordance with its original public meaning in 1964, the opinions in Bostock failed to properly define sex or offer a coherent theory of how long-standing statutes like Title VII should be interpreted over …

Jail By Another Name: Ice Detention Of Immigrant Criminal Defendants On Pretrial Release, Kerry Martin

Michigan Journal of Race and Law

This Article assesses the legality of an alarming practice: Immigration and Customs Enforcement (ICE) routinely detains noncitizen criminal defendants soon after they have been released on bail, depriving them of their court-ordered freedom. Since the District of Oregon’s decision in United States v. Trujillo-Alvarez, 900 F. Supp. 2d 1167 (D. Or. 2012), a growing group of federal courts has held that when ICE detains federal criminal defendants released under the Bail Reform Act (BRA), it violates their BRA rights. These courts have ordered that the government either free the defendants from ICE custody or dismiss their criminal charges. This …

Revisiting Immutability: Competing Frameworks For Adjudicating Asylum Claims Based On Membership In A Particular Social Group, Talia Shiff

University of Michigan Journal of Law Reform

The Immigration and Nationality Act (INA) defines a refugee as any person who has a “well-founded fear of persecution on account of race, religion, nationality, membership of a particular social group or political opinion.” An emerging issue in U.S. asylum law is how to define the category “membership of a particular social group.” This question has become ever-more pressing in light of the fact that the majority of migrants seeking asylum at the U.S.-Mexico border are claiming persecution on account of their “membership in a particular social group.” The INA does not define the meaning of “particular social group” and …

No Prior Experience Desired: Villarreal V. R.J. Reynolds Tobacco Co. And The Scope Of Disparate Impact Claims Under The Adea, Nicholas Placente

St. John's Law Review

(Excerpt)

This Note argues that § 4(a)(2) of the ADEA permits disparate impact claims for job applicants, despite the revised holding of the Eleventh Circuit. First, the plain meaning of § 4(a)(2) strongly suggests that disparate impact protections lie for job seekers, in contrast to the Eleventh Circuit’s ultimate finding. This argument draws on a close textual and structural analysis of the ADEA, supplemented with a comparative analysis to Title VII. Furthermore, this Note unpacks the legal arguments surrounding the 1972 amendment to Title VII, demonstrating that the absence of the “applicants for employment” language from § 4(a)(2) does not …

Designing A Flexible World For The Many: "Essential Functions" And Title I Of The Americans With Disabilities Act, Michael J. Powers

University of Michigan Journal of Law Reform

This Note explores how courts interpret the meaning of “essential functions” under Title I of the Americans with Disabilities Act. To be protected under the ADA, a plaintiff must be able to perform the “essential functions” of her job with or without a reasonable accommodation. In general, courts follow one of two approaches when interpreting this phrase. The first approach narrowly focuses on the employer’s judgment regarding which functions are essential. The second approach considers the employer’s judgment, but looks beyond to consider the broader employment relationship. This Note argues that these different approaches have led to varying levels of …

I'M So Lonesome I Could Cry ... But Could I Sue?: Whether 'Interacting With Others' Is A Major Life Activity Under The Ada, Bryan P. Stephenson

Pepperdine Law Review

No abstract provided.

The Disability History Mystery: Assessing The Employer's Reasonable Accommodation Obligation In "Record Of Disability" Cases, Michael D. Moberly

Pepperdine Law Review

No abstract provided.

Rethinking Discrimination Law, Sandra F. Sperino

Michigan Law Review

Modern employment discrimination law is defined by an increasingly complex set of frameworks. These frameworks structure the ways that courts, juries, and litigants think about discrimination. This Article challenges whether courts should use the frameworks to conceptualize discrimination. It argues that just as faulty sorting contributes to stereotyping and societal discrimination, courts are using faulty structures to substantively limit discrimination claims. This Article makes three central contributions. First, it demonstrates how discrimination analysis has been reduced to a rote sorting process. It recognizes and makes explicit courts' methodology so that the structure of discrimination analysis and its effects can be …

How Many Plaintiffs Are Enough? Venue In Title Vii Class Actions, Piper Hoffman

University of Michigan Journal of Law Reform

This Article critiques the recent rash of federal district court opinions holding that all named plaintiffs in a class action lawsuit alleging employment discrimination under Title VII of the Civil Rights Act of 1964 must satisfy the venue requirements in the court where they filed the action. Neither the text nor the history of Title VII requires this prevailing interpretation; to the contrary, requiring every named plaintiff to satisfy venue requirements in the same court undermines the legislative purpose behind both Title VII and Federal Rule of Civil Procedure 23 by creating a new obstacle to employees seeking to enforce …

The Foundations Of Section 1983 Jurisprudence: A Look From The Concept Of Law, Timothy I. Oppelt

Florida A & M University Law Review

This article uses the theories of H.L.A. Hart to provide an interpretive framework for a vital civil rights statute, 42 U.S.C. Sec. 1983. Any interpretation of Sec. 1983 requires some sense of the fundamental nature of law and the ability to identify legal rules. Specifically, this article examines the "under color of" language of Sec. 1983 and the statute's application to municipalities. It is possible that these areas remain partially in flux or undeveloped because the Court lacks an interpretation of the statute that accounts for how rules can confer power, create artificial persons, delegate the ability to act with …

Killing Jim Crow And The Undead Nondelegation Doctrine With Privately Enforceable Federal Regulations, Brian J. Sutherland

Seattle University Law Review

This Comment has two goals. First, it seeks to contextualize, within the reality of institutional racism, the debate over the private enforceability of federal regulations under 42 U.S.C. § 1983. On the one hand, the regulations promulgated pursuant to Title VI of the Civil Rights Act of 1964 already include many provisions which effectively confront the vestiges of racially discriminatory law and policy. The logical inference is that these perfectly proscriptive federal regulations ought to be enforceable, through private lawsuits if necessary, in order to enjoin and deter such policy and procedure. On the other hand, federal administrative agencies have …

The Elusive Protected Class - Who Is Worthy Under The Americans With Disabilities Act, Elizabeth Fordyce

Villanova Law Review

No abstract provided.

Applying 42 U.S.C. § 1981 To Claims Of Consumer Discrimination, Abby Morrow Richardson

University of Michigan Journal of Law Reform

This Note explores several interesting legal questions regarding the proper interpretation of 42 U.S.C. § 1981, which prohibits racial discrimination in contracting, when discrimination arises in the context of a consumer retail contract. The Note further explores how the Fifth Circuit's and other federal courts' narrow interpretation of § 1981's application in a retail setting (which allows plaintiffs to invoke the statute only when they have been prevented from completing their purchases) is contrary to the statute's express language, congressional intent, and to evolving concepts of contract theory, all of which reflect a commitment to the strict enforcement of civil …

Envisioning A Future For Age And Disability Discrimination Claims, Alison Barnes

University of Michigan Journal of Law Reform

This Article considers the reasons for reinterpretations of age and disability and examines the fundamental reasons for changes in the implementation of both the ADA and ADEA. Part I presents the basic structure and relevant requirements of the two statutes and comments on the reasons their legislative purposes are not often seen as overlapping. Part II discusses the recent Supreme Court decisions that have undermined the purposes and implementation of both the ADA and ADEA and chilled causes of action based on the ADA and ADEA. Part III projects the current problems with anti-discrimination causes into the future, when older …

An Administrative Battle Of The Forms: The Eeoc's Intake Questionnaire And Charge Of Discrimination, Laurie M. Stegman

Michigan Law Review

This Note argues that the EEOC's interpretation of Title VII as reflected in its regulations is consistent with underlying statutory intent and strikes an appropriate balance between the needs of employers and employees. Therefore, Congress should amend section 706(b) of Title VII of the Civil Rights Act of 1964 to provide that a charge must be verified prior to the commencement of an EEOC investigation but not necessarily within the statutory filing period. Part I examines the legislative history of Title VII and its integrated procedures for obtaining administrative and judicial relief. Part II critiques the various ways in which …

Legislative Inaction And The Patterson Case, Earl M. Maltz

Michigan Law Review

In its October 1988 issue,1 the Michigan Law Review published a symposium on Patterson v. McLean Credit Union, a case in which the Supreme Court has requested reargument on the question of whether Runyon v. McCrary should be overruled or modified. Each of the three distinguished contributors to the symposium concludes that the Court should not overrule Runyon. In reaching this conclusion, Professor William N. Eskridge and Professor Daniel A. Farber rely heavily on the view that because Congress has recognized the existence of the Runyon doctrine and has refused to overrule the decision, the doctrine of stare decisis …

Statutory Interpretation, Legislative Inaction, And Civil Rights, Daniel A. Farber

Michigan Law Review

This month the Supreme Court will hear reargument in Patterson v. McLean Credit Union on the question of whether section 1981 prohibits discrimination by private parties. Professor Farber identifies three issues which lie at the heart of Patterson: Must statutes be construed to conform to the intent of the drafters? Does legislative inaction provide reliable guidance to interpreters of statutes? And should the nature of the claim at issue - here a claim of civil rights - influence the interpreters? On this last point, Professor Farber argues that public values must be relevant to statutory interpretation and that judges …

Updating Statutory Interpretation, T. Alexander Aleinikoff

Michigan Law Review

This month the Supreme Court will hear reargument in Patterson v. McLean Credit Union on the question of whether section 1981 prohibits discrimination by private parties. Professor Aleinikoff examines in depth the first issue raised by Professor Farber. Using metaphors of the archeological and the nautical Professor Aleinikoff describes theories of originalism and their application to statutory interpretation. Concluding that there are nonoriginalist (or nonarcheological) elements implicit in these theories, he proceeds to consider how an explicitly nonoriginalist (or nautical) theory of interpretation might work He concludes by commenting on the application of such a theory to Patterson.

Interpreting Legislative Inaction, William N. Eskridge Jr.

Michigan Law Review

This month the Supreme Court will hear reargument in Patterson v. McLean Credit Union on the question of whether section 1981 prohibits discrimination by private parties. In this article, Professor Eskridge addresses the issue of how legislative inaction should affect statutory interpretation. He begins by constructing a detailed analysis of the Court's legislative inaction cases, arguing that the case law is much more coherent than previous analysts have suggested. Professor Eskridge then considers Justice Scalia's critique of that case law and provides support for Justice Scalia's views by distinguishing actual and presumed legislative intent, arguing that, based on a conception …

Wage Discrimination And Job Segregation: The Survival Of A Theory, Ruth G. Blumrosen

University of Michigan Journal of Law Reform

My earlier article in this journal, Wage Discrimination, Job Segregation, and Title VII of the Civil Rights Act of 1964, advanced the theory that the same discriminatory factors which lead to job segregation are also likely to be responsible for wage differentials between segregated jobs. The discriminatorily depressed wage rate of the segregated job is therefore one of the "adverse effects" under Griggs v. Duke Power Co. of job segregation. In order to establish a prima facie case of wage discrimination in a Title VII action, plaintiffs must show the fact of job segregation - that the jobs were …

Implication Of Civil Remedies Under The Indian Civil Rights Act, Michigan Law Review

Michigan Law Review

This Note will discuss neither -the wisdom of the express provisions of ICRA nor the desirability of express creation by Congress of a federal civil remedy. The purpose of this Note is, instead, to analyze the bases upon which remedies have been implied by federal courts and to question whether implication is consistent with standards of statutory interpretation appropriate for Indian law. It is contended that the implication of federal civil remedies against Indian governments is improper and that if such remedies are to be created, precedent and policy mandate that they be the product of Congress. The Note will …

Facially Neutral Criteria And Discrimination Under Title Vii: "Built-In Headwinds" Or Permissible Practices?, Dianne Brou Fraser

University of Michigan Journal of Law Reform

This article discusses how Title VII affects the operation of these facially neutral practices and attempts to determine when such practices are unlawful under Title VII. It also discusses the possible effects of the Equal Employment Opportunity Act of 1972 on this problem.