Law Commons^™

Judges' Gender And Employment Discrimination Cases: Emerging Evidence-Based Empirical Conclusions, Pat K. Chew

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This article surveys the emerging empirical research on the relationship between the judges' gender and the results in employment discrimination cases.

Decentralizing Family: An Inclusive Proposal For Individual Tax Filing In The United States, Anthony C. Infanti

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The debate in the United States over individual versus joint federal income tax filing is at something of a crossroads. For decades, progressive - and, particularly, feminist - scholars have urged us to abolish the joint return in favor of individual filing. On the rare occasion when scholars have described what such an individual filing system might look like, the focus has been on the ways in which the traditional family must be accommodated in an individual filing system. These descriptions generally do not take into account - let alone remedy - the tax system’s ongoing failure to address the …

The Missing Minority Judges, Pat K. Chew, Luke T. Kelley-Chew

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This essay documents the lack of Asian-American judges and considers the consequences.

On Race Theory And Norms, Christian Sundquist

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This article has been adapted from an address given at the Albany Law Review Symposium in Spring 2009. This article discusses the judicial acceptance of DNA random match estimates, which uses DNA analysis to estimate the likelihood that a criminal defendant is the source of genetic material that is found at a crime scene. Relying on race, these tests demonstrate how such a re-inscription of race as a biological entity threatens the modern conception of race as a social construction, and how those estimates should be rejected as inadmissible on a doctrinal level under the Federal Rules of Evidence.

Bringing Sexual Orientation And Gender Identity Into The Tax Classroom, Anthony C. Infanti

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A recent piece in the Journal of Legal Education analyzing student surveys by the Law School Admission Council reports that, despite improvement in the past decade, LGBT students still experience a law school climate in which they encounter substantial discrimination both inside and outside the classroom. Included among the list of "best practices" to improve the law school climate for LGBT students was a recommendation to incorporate discussions of LGBT issues in non-LGBT courses, such as tax. In a timely coincidence, the Section on Sexual Orientation and Gender Identity Issues held a day-long program at the 2009 AALS annual meeting …

Rescuing Baby Doe, Mary Crossley

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The twenty-fifth anniversary of the Baby Doe Rules offers a valuable opportunity to reflect on how much has changed during the past two-and-one-half decades and how much has stayed the same, at least in situations when parents and physicians face the birth of an infant who comes into the world with its life in peril.

The most salient changes are the medical advances in the treatment of premature infants and the changes in social attitudes towards and legal protections for people with disabilities. The threshold at which a prematurely delivered infant is considered viable has advanced steadily earlier into pregnancy, …

Non-Profit Hospitals, Tax Exemptions And Access For The Uninsured, Mary Crossley

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These comments approach the topic of tax exemption for non-profit hospitals from the perspective of the 46 plus million Americans who have no health insurance and the significant additional number who are underinsured. In essence, persons who are underinsured have some form of health coverage but they remain at serious risk for significant out-of-pocket expenditures when they become sick. From this perspective, the key question is what role, if any, do the non-profit health care sector and, more particularly, non-profit hospitals have to play in addressing the vexing problems posed by the large number of uninsured and underinsured. These problems …

Book Review Of 'Havens In A Storm: The Struggle For Global Tax Regulation', Anthony C. Infanti

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This short essay is a review of J.C. Sharman's book Havens in a Storm: The Struggle for Global Tax Regulation. In the essay, I first provide a brief overview of Sharman's book, which approaches the Organisation for Economic Co-operation and Development's struggle with tax havens over harmful tax competition from a political science perspective. I then describe how the book (and, by extension, this review) will be of interest not only to those in the fields of international tax and international relations, but also to those concerned more generally with the dynamics of struggles between the powerful and the weak. …

Judicial Review Of Thirteenth Amendment Legislation: 'Congruence And Proportionality' Or 'Necessary And Proper'?, William M. Carter Jr.

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The Thirteenth Amendment has relatively recently been rediscovered by scholars and litigants as a source of civil rights protections. Most of the scholarship focuses on judicial enforcement of the Amendment in lawsuits brought by individuals. However, scholars have paid relatively little attention as of late to the proper scope of congressional action enforcing the Amendment. The reason, presumably, is that it is fairly well settled that Congress enjoys very broad authority to determine what constitutes either literal slavery or, to use the language of Jones v. Alfred H. Mayer Co., a "badge or incident of slavery" falling within the Amendment's …

Racism's Past And Law's Future, Vivian Grosswald Curran

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Legal scholars, lawmakers and, increasingly, the general public seem to place ever-increasing hope in the potential of law and legal theory, and of enforceable uniform international legal standards. Many appear to believe that identifying and enacting laws and a legal framework that correspond worldwide to human rights will solve the age-old problem of legalized barbarism. The historical propensity of courts, even in democratic states, to legitimate and enable racist policies provides compelling evidence that the current level of faith in law is misplaced.

This Article argues the limitations of law and legal theory, contesting the view that on their own …

Critical Praxis, Spirit Healing And Community Activism: Preserving A Subversive Dialogue On Reparations, Christian Sundquist

Articles

African-American reparations have the potential to deconstruct racial privilege, promote racial reconciliation, and heal the psychic injuries of the African-American community. However, many models of reparations have given up on the promise of reparations in exchange for the slim possibility of short-term progress.

A subversive dialogue on African-American reparations, however, will inevitably critique equal opportunity, individualism, and white innocence and privilege. Embraced by the majority, and internalized by the African-American community, the principles of individualism, equal opportunity, and meritocracy reinforce white innocence and privilege to the extent that future, current and past inequality are cast as the natural and inevitable …

Trust Me, I’M A Judge: Why Binding Judicial Notice Of Jurisdictional Facts Violates The Right To Jury Trial, William M. Carter Jr.

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The conventional model of criminal trials holds that the prosecution is required to prove every element of the offense beyond the jury's reasonable doubt. The American criminal justice system is premised on the right of the accused to have all facts relevant to his guilt or innocence decided by a jury of his peers. The role of the judge is seen as limited to deciding issues of law and facilitating the jury's fact-finding. Despite these principles,judges are reluctant to submit to the jury elements of the offense that the judge perceives to be . routine, uncontroversial or uncontested.

One such …

Infected Judgment: Legal Responses To Physician Bias, Mary Crossley

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Substantial evidence indicates that clinically irrelevant patient characteristics, including race and gender, may at times influence a physician's choice of treatment. Less clear, however, is whether a patient who is the victim of a biased medical decision has any effective legal recourse. Heedful of the difficulties of designing research to establish conclusively the role of physician bias, this article surveys published evidence suggesting the operation of physician bias in clinical decision making. The article then examines potential legal responses to biased medical judgments. A patient who is the subject of a biased decision may sue her doctor for violating his …

Equal Opportunity, Individual Liberty And Meritocracy In Education: Reinforcing Structures Of Privilege And Inequality, Christian Sundquist

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The paradigm of equal opportunity inevitably seeks to reproduce and maintain structures of class and racial privilege. The deficit story of equal opportunity is as follows: equal opportunity is a truly objective, neutral, and fair method to allocate educational, employment, and political resources to members of society, without regard to race, class, gender or ethnicity. The ideal of equality assumes the possibility of an objective measure of merit under which individuals' free choices and preferences may be evaluated. Accordingly, through the creation of a baseline that presupposes the inherent sameness of all people and disregards systemic discrimination as a fallacy, …

Becoming Visible: The Ada's Impact On Healthcare For Persons With Disabilities, Mary Crossley

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This Article will adopt the perspective of individuals with disabilities in their encounters with the health care finance and delivery system in the United States, and will pose the question of what the past decade has shown the ADA to mean (or not mean) for those individuals' ability to seek, receive, and pay for effective health care services. To that end, this Article will provide an overview of three broad areas on which the ADA has had varying degrees of impact.

Part II of the Article will examine how the ADA has affected the rights of an individual with a …

The Disability Kaleidoscope, Mary Crossley

Articles

The question of whom our society truly wants to protect from adverse discrimination based on bodily difference is ultimately a question for the body politic. The aim of this article, by contrast, is to use the analytical tools provided by scholars in the field of disability studies to scrutinize how lawmakers to date have understood the concept of impairment as one form of bodily difference. By viewing administrative and judicial treatments of impairment through a disability studies lens, I have sought to give the disability kaleidoscope a turn and thus to provide the reader with an altered view of impairment …

Medicaid Managed Care And Disability Discrimination Issues, Mary Crossley

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This article examines issues potentially raised under the Americans with Disabilities Act (ADA) by states' decisions whether and how to include disabled Medicaid recipients in the massive shift towards Medicaid managed care. Part II briefly examines the special issues that disabled Medicaid recipients pose with respect to managed care enrollment. These include issues of cost, quality, access, and program design and implementation. Part III describes various approaches that state programs have taken or are proposing to take with respect to the enrollment of disabled Medicaid recipients in managed care. These approaches range from simply excluding the SSI population from managed …

Medical Futility And Disability Discrimination, Mary Crossley

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The concept of medical futility, which originally developed in the medical literature as a basis for allocating between physician and patient decisional authority regarding end-of-life treatment, is increasingly appearing in discussions regarding possible methods of containing medical costs by limiting treatment. This use of medical futility as a rationing mechanism, whether by a state Medicaid program or by a hospital, raises concerns regarding its impact on persons with severe disabilities near the end of life. This article considers how the applicability of the Americans with Disabilities Act to cost-conscious futility policies might be analyzed. After developing arguments that proponents and …

Of Diagnoses And Discrimination: Discriminatory Nontreatment Of Infants With Hiv Infection, Mary Crossley

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Evidence of physician attitudes favoring the withholding of needed medical treatment from infants infected with HIV compels a reassessment of the applicability and adequacy of existing law in dealing with selective nontreatment. Although we can hope to have learned some lessons from the Baby Doe controversy of the mid-1980s, whether the legislation emerging from that controversy, the Child Abuse Amendments of 1984, has ever adequately dealt with the problem of nontreatment remains far from clear. Today, the medical and social characteristics of most infants infected with HIV introduce new variables into our assessment of that legislation. At stake are the …