Law Commons^™

Liberty Vs. Equality: In Defense Of Privileged White Males, Nancy E. Dowd

Nancy Dowd

In this book review, Professor Dowd reviews Forbidden Grounds: The Case Against Employment Discrimination Laws, by Richard A. Epstein (1992). First, Professor Dowd sets forth the thesis and arguments of Epstein’s book and explores her general criticisms in more detail. Next, she explores Epstein’s core argument pitting liberty against equality from two perspectives: that of the privileged white male and that of minorities and women. Finally, Professor Dowd argues that Epstein’s position cannot be viewed as an argument that most minorities or women would make, as it fails to take account of their stories.

The Metamorphosis Of Comparable Worth, Nancy E. Dowd

Nancy Dowd

The concept of comparable worth has as its factual predicate two typical characteristics of women's employment: occupational concentration or segregation and significantly lower wages compared to those paid to men. What continues to be most troubling about this employment pattern is its stubborn persistence, despite the increased presence of women in the workforce and the existence for over two decades of legislation prohibiting sex discrimination in employment. The concept of comparable worth has provoked an outpouring of emotional rhetoric and scholarly analysis debating the concept’s viability and desirability. Rather than add to that debate, Professor Dowd traces the evolution of …

The Gross Confusion Deep In The Heart Of Univ. Of Texas S.W. Med. Center V. Nassar, Brian S. Clarke

Brian S. Clarke

This essay addresses a fundamental issue underlying the Supreme Court’s consideration of Univ. of Texas S.W. Med. Center v. Nassar, namely the parameters of the factual causation standard applicable in disparate treatment cases. This essay also addresses a previously unrecognized area of agreement between the plurality and dissent in Price Waterhouse v. Hopkins that can resolve the factual causation issue underlying Nassar.

The Court’s most recent pronouncement on this issue, in Gross v. FBL Financial Services, has led to confusion as defendants and courts have interpreted Gross to require sole factual causation for the plaintiff to prevail. Yet, sole causation …

A Better Route Through The Swamp: Causal Coherence In Disparate Treatment Doctrine, Brian S. Clarke

Brian S. Clarke

Disparate treatment doctrine has long been a swamp and it is getting deeper and murkier. The various judicially and legislatively created routes through the swamp – proof schemes – are poorly marked and at, best, imperfect. Critically, the routes through the swamp have become unmoored from the critical cause-in-fact inquiry they were ostensibly designed to illuminate.

Focusing first on cause-in-fact, this article seeks to establish causal coherence in disparate treatment doctrine by applying – for the first time – modern cause-in-fact theory, including the necessary element of a sufficient causal-set (“NESS”) standard articulated in the Restatement (Third) of Torts, across …