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Full-Text Articles in Law
The War On Drugs, Moral Panics, And The Groundhog Day Effect: Confronting The Stereotypes That Perpetuate The Cycle Of Disparity, Tasha Withrow
The War On Drugs, Moral Panics, And The Groundhog Day Effect: Confronting The Stereotypes That Perpetuate The Cycle Of Disparity, Tasha Withrow
The Mid-Southern Journal of Criminal Justice
There has been a specter haunting America for over 400 years. That specter is an insidious and destructive beast that has found its way into every crevice and layer of all American institutions. Racism, racial stereotypes, racial stigma, biases, and White supremacy has infiltrated every power structure since the foundation of America and has created a system of social control that has perpetually oppressed, marginalized, and disenfranchised generations of people of color. One of the most catastrophic by-products generated from America’s historic racist ideology has been that of the over-criminalization of people of color for drug crimes justified by discriminatory …
Screened Out Of Housing: The Impact Of Misleading Tenant Screening Reports And The Potential For Criminal Expungement As A Model For Effectively Sealing Evictions, Katelyn Polk
Northwestern Journal of Law & Social Policy
Having an eviction record “blacklists” tenants from finding future housing. Even renters with mere eviction filings—not eviction orders—on their records face the harsh collateral consequences of eviction. This Note argues that eviction records should be sealed at filing and only released into the public record if a landlord prevails in court. Juvenile record expungement mechanisms in Illinois serve as a model for one way to protect people with eviction records. Recent updates to the Illinois juvenile expungement process provided for the automatic expungement of certain records and strengthened the confidentiality protections of juvenile records. Illinois protects juvenile records because it …
Salary History And The Equal Pay Act: An Argument For The Adoption Of “Reckless Discrimination” As A Theory Of Liability, Kate Vandenberg
Salary History And The Equal Pay Act: An Argument For The Adoption Of “Reckless Discrimination” As A Theory Of Liability, Kate Vandenberg
Northwestern Journal of Law & Social Policy
The Equal Pay Act (EPA) purports to prohibit employers from paying female employees less than male employees with similar qualifications; however, the affirmative defenses provided in the EPA are loopholes that perpetuate the gender pay gap. In particular, the fourth affirmative defense allows for wage differentials based on a “factor other than sex.” Many federal circuits have read this defense broadly to include wage differentials based on salary history. That is, an employer can pay a female employee less than her male counterparts because she was paid less by her previous employer. While salary history was once viewed as an …
Disparate Impact: Fairness Or Efficiency?, Larry Alexander
Disparate Impact: Fairness Or Efficiency?, Larry Alexander
San Diego Law Review
Here is a stylized, simplified account of the disparate impact branch of discrimination law. Employer (E) uses certain criteria—which I shall call “the test”—to determine whom to employ. Those who qualify under the test may be disproportionately of a certain race, sex, national origin, or religion. I shall call those races, sexes, et cetera, that are disproportionately qualified under the test “the preferred,” and those races, sexes, et cetera, that are disproportionately unqualified under the test “the dispreferred.” In a disparate impact discrimination case—and again, I am simplifying somewhat, though immaterially—an employee candidate (C) who is both a member of …
Epstein's Premises, Evan Tsen Lee
Epstein's Premises, Evan Tsen Lee
San Diego Law Review
This Article criticizes Richard Epstein's argument that Congress should repeal Title VII expressed in his book Forbidden Grounds: The Case Against Employment Discrimination. The author's criticisms of Epstein's argument are the product of disagreement with some of Epstein's premises, and disagreement with some of Epstein's choices about where to stop his analyses. The author disputes Epstein's premise that governmental intervention into otherwise accessible markets is justifiable only in cases of force or fraud. The author also notes some of Epstein's empirical suppositions that are inconsistent with one another.
Standing Firm, On Forbidden Grounds, Richard A. Epstein
Standing Firm, On Forbidden Grounds, Richard A. Epstein
San Diego Law Review
This introductory Article to the Title VII Symposium contained in this issue of the San Diego Law Review addresses the critiques leveled at the book Forbidden Grounds: The Case Against Employment Discrimination Laws. Richard Epstein, the author of the book, recognizes the disagreement expressed in the Articles in the Symposium, and attempts to defend his thesis in this Article. He argued in Forbidden Grounds that the best set of overall social outcomes would come from eliminating antidiscrimination laws which prohibit employer discrimination on the grounds of race, creed, sex, age, handicap, or anything else. In this Article, he addresses several …
Alternative Grounds: Epstein's Discrimination Analysis In Other Market Settings, Ian Ayres
Alternative Grounds: Epstein's Discrimination Analysis In Other Market Settings, Ian Ayres
San Diego Law Review
This Article focuses on how Richard Epstein's discrimination analysis in his book Forbidden Grounds: The Case Against Employment Discrimination Laws plays out in four other market contexts. The author analyzes historical labor markets (circa 1964), public accommodations, housing, and new car markets. He concludes that applying Epstein's theory to these different market settings exposes limitations of Epstein's analysis.
Reality, Drew S. Days, Iii
Reality, Drew S. Days, Iii
San Diego Law Review
This Article applies the economic theory of regulation to laws forbidding discrimination or requiring affirmative action. It argues for using transferable rights in order to achieve diversity rather than quotas. Based on economic theories, the Article finds that the most efficient remedies for discrimination are the ones already developed by economists for other problems. The author suggests that discriminatory cartels can be prohibited or undermined, discriminatory signals can be overcome by supplementing market information, and external effects of prejudice can be internalized by tax subsidies. He concludes that perfect competition causes discriminators to pay for segregation, and some current antidiscrimination …