Law Commons^™

Gross Disunity, Martin J. Katz

Sturm College of Law: Faculty Scholarship

This Article will proceed as follows: Part I will explain Gross in terms of causation and unification. Part II will argue that Gross rejected the doctrine of uniformity, a well-established and useful canon of statutory construction, without explanation. Part III will show how the courts‟ post-1991 rejection of uniformity, culminating in Gross, might be seen as a form of judicial recalcitrance. However, that Part will suggest that the Court's rejection of uniformity in Gross is better understood as a rejection of burden-shifting in disparate treatment doctrine. Finally, Part IV will argue that burden-shifting is normatively desirable in disparate treatment doctrine, …

Unifying Disparate Treatment (Really), Martin J. Katz

Sturm College of Law: Faculty Scholarship

The Article will proceed in three parts. Part I will show the fragmented state of current disparate treatment law. Part II will demonstrate why this fragmentation is problematic as a normative matter, and why the I99I Civil Rights Act framework is superior to the Price Waterhouse and McDonnell Douglas frameworks. Part III will point the way toward a unified disparate treatment doctrine, in which all litigants will use the 1991 Act framework.

Fighting To Keep Employment Discrimination Class Actions Alive: How Allison V. Citgo's Predomination Requirement Threatens To Undermine Title Vii Enforcement, Suzette M. Malveaux

Publications

The Civil Rights Act of 1991, which provides compensatory and punitive damages and attendant jury trials in cases alleging intentional discrimination, was designed to enhance enforcement and expand remedies. Its enactment, however, has triggered a schism among the circuit courts over what the proper standard is for determining whether monetary damages or injunctive relief predominates, a necessary inquiry for determining whether plaintiffs are entitled to class certification for Title VII claims under Rule 23(b)(2) of the Federal Rules of Civil Procedure. Led by the Fifth Circuit, some federal appeals courts contend that monetary relief predominates unless it is “incidental,” and …

Compulsory Arbitration Of Discrimination Claims And The Civil Rights Act Of 1991: Encouraged Or Proscribed?, Mark Adams

Articles

No abstract provided.

Civil Rights Act Of 1991 -- Employer Liability For Punitive Damages In Title Vii Claims, Angela M. Banks

Faculty Publications

No abstract provided.

The Business Necessity Defense In Disparate Impact Discrimination Cases, Susan Grover

Faculty Publications

No abstract provided.

Civil Rights Act Of 1991, Neal Devins

Faculty Publications

No abstract provided.

Fairness And Finality: Third-Party Challenges To Employment Discrimination Consent Decrees After The 1991 Civil Rights Act, Marjorie A. Silver

Scholarly Works

In this Article, Professor Silver examines Section 108 of the Civil Rights Act of 1991, which limits challenges to employment practices taken pursuant to employment discrimination consent decreea The Article traces the development of the impermissible collateral attack doctrine, that doctrine's demise in Martin v. Wilks, and Congress' response to Martin as embodied in Section 108. Professor Silver also suggests ways in which Section 108 should be administered to comply with the Due Process Clause and argues for specific additional federal legislation to protect non-litigants or potential third-party challengers as well as to foster the utility and finality of legitimate …

Reagan Redux: Civil Rights Under Bush, Neal Devins

Faculty Publications

No abstract provided.

Civil Rights Procedural Problems, Carl W. Tobias

Law Faculty Publications

Congress passed the Civil Rights Act of 1991 primarily to modify numerous Supreme Court opinions of the 1988 Term that jeopardized the rights of minorities and women. Particularly striking about those Supreme Court cases was the number which involved procedural questions and process values. These included the timing of litigation, both when employment discrimination victims must commence actions and when non-parties can reopen civil rights cases resolved through consent decrees; litigant responsibility for the expense of lawsuits; and proof requirements.

Most of the procedural developments in civil rights and employment discrimination litigation of the 1988 Term, however, were only recent …