Law Commons^™

Test-Achats: Why The European Court Of Justice Should Rethink Its Principle Of Equal Treatment Jurisprudence In The Context Of Sex Discrimination, Alexander Goodenough

Alexander Goodenough

The European Court of Justice found in Assoc. belge des Consommateurs Test-Achats ASBL v. Conseil des Ministres that the use of gender by insurance companies to assess statistical risks is unlawful under the Charter of Fundamental Rights of the European Union. This ruling has very important implications for the provision of insurance within the European Union. My article argues that the European Court of Justice’s opinion in Test-Achats is not only damaging to the European insurance industry but also contrary to the European Court of Justice’s own jurisprudence.

No Glue Stocked On Aisle 23: Wal-Mart Stores, Inc. V. Dukes Deals A Death Blow To Title Vii Class Actions, Matthew Costello

Matthew Costello

After almost ten years, Wal-Mart Stores, Inc. v. Dukes ended before it began. In a 5-4 decision (split among ideological lines), the U.S. Supreme Court decertified the Dukes class from the starting gate, ending the country’s largest employment discrimination class-action lawsuit against the country’s largest corporation. In the months following the Court's controversial decision, lawyers and academics have been scrambling to assess the impact of the case on procedural class action and substantive discrimination law. This Note posits that Dukes misapplied procedural class action law and seemingly overturned well-settled employment discrimination precedent. As a result, the Court’s imprudent decision will …

What's In A Name? The Case For The Disestablishment Of Marriage, Carolyn A. Mcconnell

Carolyn A McConnell

The most remarkable social change of the past two decades has been the movement for gay rights focused on the right to marry. The movement for gay marriage has made urgent (and indeed is bringing to the Supreme Court) the question of what the right to marry might be and what marriage is. Marriage is, among other things, a sacred and expressive institution imbued with robust notions of the good life, but it is also a state license. That is, in our society, marriage is established as religion is not.

This paper addresses the question begged by centuries of American …

Reasonable Men, Ann Mcginley

Ann McGinley

Abstract

REASONABLE MEN

Ann C. McGinley

After the Supreme Court recognized sexual harassment as a form of sex discrimination under Title VII in Meritor Savings Bank v. Vinson, lower courts used the reasonable person standard to measure whether the behavior was sufficiently severe or pervasive to constitute a hostile working environment. Cultural and radical feminists objected to the reasonable person measure, and many supported a reasonable woman standard, which the Ninth Circuit adopted in Ellison v. Brady. Because of its tendency to essentialize how women would react, many feminists soon abandoned their support for the standard. A number of circuits, …

Reasonable Men, Ann Mcginley

Ann McGinley

Abstract

REASONABLE MEN

Ann C. McGinley

After the Supreme Court recognized sexual harassment as a form of sex discrimination under Title VII in Meritor Savings Bank v. Vinson, lower courts used the reasonable person standard to measure whether the behavior was sufficiently severe or pervasive to constitute a hostile working environment. Cultural and radical feminists objected to the reasonable person measure, and many supported a reasonable woman standard, which the Ninth Circuit adopted in Ellison v. Brady. Because of its tendency to essentialize how women would react, many feminists soon abandoned their support for the standard. A number of circuits, …

Parental Leave: Comparison Of International Policies To The United States Policy And A Proposal For Change, Jennifer J. Montalvo

Jennifer J. Montalvo

The United States is far behind many other countries in providing parental leave, with no federal legislation that provides wage-replacement to parents seeking to take leave immediately before and after childbirth. In order to explain the variations of parental leave provided globally, this article discusses federal and state legislation in the United States, international organizations’ conventions and directives, and individual countries’ policies. The article argues that paid parental leave has many benefits—benefits that the United States should take into account when considering reform of its current law. Drawing on international and state-level models, the article proposes federal policy reform in …

Time For A Reality Check: Facing The 900 Pound Gorilla In Attorney Fee Awards In Federal Civil Rights Cases, Todd P. Prugar

Todd P. Prugar

ABSTRACT

TIME FOR A REALITY CHECK: FACING THE 900 POUND GORILLA IN ATTORNEY FEE AWARDS IN FEDERAL CIVIL RIGHTS CASES

By Todd P. Prugar

There is a 900 pound gorilla in the room when courts attempt to calculate attorney fee awards in federal civil rights cases. That 900 pound gorilla is the impact that the prevalence of contingency fee agreements on the court’s ability calculate attorney fee awards that reflect reality.

Part I of this article traces the development of the law regarding an award of attorney fees in federal civil rights cases. The article follows the sometimes tortuous and …

The New Civil Rights: The “Currently Employed” Requirement, Disparate Impact, And New Legislation To Protect Unemployed Workers And Job-Seekers, Jennifer Ryan

Jennifer Ryan

Abstract

The New Civil Rights: The “Currently Employed” Requirement, Disparate Impact, and New Legislation to Protect Unemployed Workers and Job-Seekers

By Jennifer Jolly-Ryan

Countless people struggle to find a job in a competitive job market, despite good qualifications. Although the news media reports that job numbers are improving, the problems of unemployment particularly loom for people of color, older workers, and people with disabilities. They are often unemployed longer than other workers and job-seekers and suffer the disparate impact of job ads that require “current employment” as a prerequisite to getting hired. The harsh reality is that the longer a …

The Contradictory Messages Of Rehnquist-Roberts Era Speech Law, David Kairys

David Kairys

The Contradictory Messages of Rehnquist-Roberts Era Speech Law

By David Kairys

Abstract

This essay begins with a new analysis and critique of the campaign finance cases. Buckley v. Valeo, Citizens United v. FEC and all the protective campaign financing cases in between treat limits on the quantity of speech the same way courts have long treated complete prohibitions of speech – with strict scrutiny and no consideration of the adequacy of the allowed quantity or alternative avenues of speech. It’s an appealing approach. On the other hand, there are reasons not to extend heightened constitutional protection to unlimited quantities of …

Making Sense Of Reasonable Doubt: Understanding Certainty, Doubt And Rule-Based Bias Filtering, Yali Corea-Levy

Yali Corea-Levy

The standard of “proof beyond a reasonable doubt” is meant to, at least in part, ensure that the government meets the highest practical standard of proof possible before imposing criminal penalties on persons. This article argues that the standard, as currently applied in trial settings, does not succeed in its goal of being the vanguard of prudence and equity. Specifically, it falls short of this high standard because of its vagueness coupled with our cognitive peculiarities, including our tendency to feel certain about facts more easily than we should. This article describes the problem and ultimately suggests a relatively simple …

Where You Stand Depends On Where You Sit: Bureaucratic Incorporation Of Immigrants In Federal Workplace Agencies, Ming H. Chen

Ming H Chen

Abstract. This article integrates legal scholarship on immigrant workers with social science theory about the role of bureaucracies in the construction of rights. More specifically, it contends that immigrants’ rights can be protected when workplace agencies integrate immigrants into their law enforcement activities, in accordance with their professional ethos and without regard to personal politics. Building on the concept of bureaucratic incorporation, I argue that regulatory agencies will resist contractions of workers’ rights when their staff’s commitments as civil servants and lawyers clash with judicial interpretations of immigrants’ rights. The implication is that strongly pro-immigrant politics are not necessary for …

In Search Of Federal Remedies For Lgbtq Students Who Are Victims Of Assault And Harassment In School., Jerry R. Foxhoven Mr.

Jerry R. Foxhoven Mr.

This article describes details of the harassment that was inflicted upon the individual LGBTQ students involved in many of the federal reported cases, as well as the lack of response by, and sometimes even the participation of, school personnel in the harassment. The article then goes on to examine the various legal theories that were employed by the victim-students, including constitutional theories (Due Process, Equal Protection, and First Amendment claims) as well as statutory remedies (Title IX and the Equal Access Act).

This article is written in a format that is not only interesting (by providing the details of the …

Unification Of Standards In Discrimination Law: The Conundrum Of Causation And Reasonable Accommodation Under The Ada, Cheryl L. Anderson

Cheryl L Anderson

Causation continues to be one of the most confounding issues in antidiscrimination law. Despite having rejected the position over two decades ago in Price Waterhouse v. Hopkins, the Court in Gross v. FBL Financial Services, Inc., recently asserted that the “ordinary default rule” in disparate treatment claims requires a plaintiff to prove but-for causation when a statute prohibits discrimination “because of” a protected characteristic. Gross threw disparate treatment law into disarray. Title VII has been statutorily modified to require only proof of motivating factor causation before the burden of proof shifts to the employer to show it would have made …

Act Up, Fight Back, Fight Aids! The Legacy Of Act Up’S Policies And Actions From 1987-1994, Nathan H. Madson

Nathan H Madson

The AIDS Coalition to Unleash Power (ACT UP) was founded in 1987 after a speech by Larry Kramer implored people to address the widespread destruction and deaths caused by HIV/AIDS. Since its founding, ACT UP has worked to improve the public’s awareness of the disease and to push for legislation that not only protected People With AIDS (PWAs), but also improved their access to medications and treatments. The way in which ACT UP achieved these goals, however, has provided a framework for other marginalized groups to make a similar impact. Some of the tools ACT UP used include: zaps, political …

The Right To Remain Silent: Addressing A Government Attorney Client Privilege In The Context Of A Grand Jury Subpoena, Matan Shmuel

Matan Shmuel

This article deals with the circuit split over whether a government agency can use government attorneys to conceal what would otherwise become public information. Often, a government agency representative might discuss with nearby agency counsel personal legal information outside the scope of their employment. Courts are split over whether this is privileged or not. My article proposes a solution to the split by implementing a factor test which takes into account the government interest in confidentiality, the public need for disclosure, and the ability of the grand jury to find the information elsewhere.

The Preference Change Myth: Hugo Black And Civil Rights, 1964-1971, Nicole Schwartzberg

Nicole Schwartzberg

Recent scholarship has challenged the conventional wisdom that Supreme Court Justices’ policy preferences remain constant over the course of their careers. According to the new `preference change’ account, nearly all of the Justices who served for ten or more terms and retired from the Court between 1937 and 2003 exhibited significant preference change, among them Justice Hugo Black, who after 1964 famously renounced his liberal roots to become one of the Court’s most conservative justices. Beginning in the mid-1960s, with landmark civil rights cases like Cox v. Louisiana, in which Black denounced protesters who were arrested for picketing a segregated …

The Preference Change Myth: Hugo Black And Civil Rights, 1964-1971, Nicole Schwartzberg

Nicole Schwartzberg

Recent scholarship has challenged the conventional wisdom that Supreme Court Justices’ policy preferences remain constant over the course of their careers. According to the new `preference change’ account, nearly all of the Justices who served for ten or more terms and retired from the Court between 1937 and 2003 exhibited significant preference change, among them Justice Hugo Black, who after 1964 famously renounced his liberal roots to become one of the Court’s most conservative justices. Beginning in the mid-1960s, with landmark civil rights cases like Cox v. Louisiana, in which Black denounced protesters who were arrested for picketing a segregated …

The Preference Change Myth: Hugo Black And Civil Rights, 1964-1971, Nicole Schwartzberg

Nicole Schwartzberg

Recent scholarship has challenged the conventional wisdom that Supreme Court Justices’ policy preferences remain constant over the course of their careers. According to the new `preference change’ account, nearly all of the Justices who served for ten or more terms and retired from the Court between 1937 and 2003 exhibited significant preference change, among them Justice Hugo Black, who after 1964 famously renounced his liberal roots to become one of the Court’s most conservative justices. Beginning in the mid-1960s, with landmark civil rights cases like Cox v. Louisiana, in which Black denounced protesters who were arrested for picketing a segregated …

Race, Prediction & Discretion, Shima Baradaran

Shima Baradaran

Many scholars and political leaders denounce racism as the cause of disproportionate incarceration of black Americans. All players in this system have been blamed including the legislators who enact laws that disproportionately harm blacks, police who unevenly arrest blacks, prosecutors who overcharge blacks, and judges that fail to release and oversentence black Americans. Some scholars have blamed the police and judges who make arrest and release decisions based on predictions of whether defendants will commit future crimes. They claim that prediction leads to minorities being treated unfairly. Others complain that racism results from misused discretion. This article explores where racial …

Unequal Burdens In Eitc Compliance, Karie D. Davis-Nozemack

Karie D. Davis-Nozemack

Lower income means harsher treatment from the government for taxpayers who claim the Earned Income Tax Credit (EITC). EITC claimants are audited more often than any taxpayers other than the very wealthy. More concerning, however, is that the IRS audits EITC claimants by correspondence examination in a manner that unduly burdens access to this refundable tax credit, a credit that often keeps lower income workers out of poverty.

Improper payment law brings increased scrutiny to federal programs that issue erroneous payments. Because the EITC is alleged to have substantial improper payments, it is subject to federal improper payment law, which …

The Gender Bind: Men As Inauthentic Caregivers, Kelli K. Garcia

Kelli K. Garcia

Almost 20 years after the enactment of the Family and Medical Leave Act, an ostensibly gender neutral statute, companies are still less likely to offer paternity leave than they are to offer maternity leave. Although women have traditionally faced discrimination in the workplace because they are viewed as inauthentic workers—not fully committed to paid employment—men face the corresponding problem and are viewed as inauthentic caregivers. Men who seek family leave transgress gender norms and risk workplace discrimination and stereotyping. This paper seeks to make explicit how the social and cultural contexts in which the FMLA is applied interact to maintain …

The Harmony Between Professional Conscience Rights And Patients’ Right Of Access, Matthew S. Bowman

Matthew S Bowman

Abstract: “Access” is the new catchphrase for expanding privacy rights. This shift moves from seeking merely legalization, to demanding government assistance and the participation of private citizens. The trend can be seen across a spectrum of activities such as abortion, contraception, doctor-prescribed suicide, and reproductive technologies. Shifting from legalization to access, however, has precipitated a variety of disputes over the “right of conscience” of health professionals who don’t want to assist activities so defined under the right to privacy. Yet amidst this debate, advocates for and against the right of conscience tend to adopt some of the same, often unspoken, …

Who's The Fascist? Uses Of The Nazi Past At The Geert Wilders Trial, Robert Kahn

Robert Kahn

ABSTRACT: This essay looks at how, during his trial, Geert Wilders and his opponents used references to the Nazi era – including but not limited to the Holocaust – to frame debates over Muslim immigration, Wilders himself, and the acceptability of hate speech trials. The Wilders trial is especially interesting because each side sought to call the other a “fascist.” For Wilders, the Quran was a fascist book, an Islamic Mein Kampf. To his opponents, Wilders was a “prototypical” fascist, one who spoke to the gut not the mind. But perhaps the strongest use of the Nazi past involved victims. …

Unification Of Standards In Discrimination Law: The Conundrum Of Causation And Reasonable Accommodation Under The Ada Unification Of Standards In Discrimination Law: The Conundrum Of Causation And Reasonable Accommodation Under The Ada Unification Of Standards In Discrimination Law: The Conundrum Of Causation And Reasonable Accommodation Under The Ada, Cheryl L. Anderson

Cheryl L Anderson

Causation continues to be one of the most confounding issues in antidiscrimination law. Despite having rejected the position over two decades ago in Price Waterhouse v. Hopkins, the Court in Gross v. FBL Financial Services, Inc., recently asserted that the “ordinary default rule” in disparate treatment claims requires a plaintiff to prove but-for causation when a statute prohibits discrimination “because of” a protected characteristic. Gross threw disparate treatment law into disarray. Title VII has been statutorily modified to require only proof of motivating factor causation before the burden of proof shifts to the employer to show it would have made …

Necessary Suffering?: Weighing Government And Prisoner Interests In Determining What Is Cruel And Unusual, Brittany L. Glidden

Brittany L. Glidden

Necessary Suffering?: Weighing Government and Prisoner Interests in Determining What is Cruel and Unusual

Brittany Glidden

ABSTRACT

The Eighth Amendment espouses a normative principle—that the government will not inflict “cruel and unusual punishment”—but courts have struggled to give content to the prohibition where it concerns prison conditions. Society expects a prison term to be uncomfortable and potentially painful, but the Constitution protects prisoners from inhumane conditions that violate standards of decency. To find that a condition is cruel and unusual, courts have two requirements: 1) an objective component, that the condition is sufficiently serious, and 2) a subjective component, that …

Unjustifiable Expectations: Laying To Rest The Ghosts Of Allotment-Era Settlers, Ann E. Tweedy

Ann E. Tweedy

When the Supreme Court decides whether a tribe has jurisdiction over non-members on its reservation or addresses the related issue of reservation diminishment, it often refers implicitly or explicitly to the non-Indians’ justifiable expectations. The non-Indians’ assumed expectations arise from the fact that, when Congress opened up reservations to non-Indians during the allotment era, its assumption, and presumably that of non-Indians who purchased lands on reservations during that period, was that the reservations would disappear due to the federal government’s assimilationist policies, along with the tribes who governed them. To refute the idea that such non-Indian expectations were justifiable, I …

Law, Social Movements, And The Political Economy Of Domestic Violence, Deborah M. Weissman

Deborah M. Weissman

This article uses the occasion of the 2012 Reauthorization of the Violence Against Women Act (VAWA) to review the circumstances by which legal theory and social movement discourse have acted to circumscribe the scope of VAWA and the dominant approach to domestic violence. It seeks to explore the relationship between domestic violence advocacy and feminist theory of the type that has functioned as “the ideological reflection of one’s own place in society” with insufficient attention to superstructures. It argues for the re-examination of the current domestic violence/criminal justice paradigm and calls for the consideration of economic uncertainty and inequality as …

Incessant Discrimination Of Same-Sex Couples: A Case Study Of Varying Interpretations Of “Family,” Second-Parent Adoptions, And The Legal Rights Of Non-Biological Parents, Preston D. Mitchum

Preston D. Mitchum

No abstract provided.

Constitutionality Of Section 90-21.85 Of The North Carolina Woman’S Right To Know Act, Jerry Boies

Jerry Boies

In order to obtain informed consent and provide adequate and accurate information to pregnant women seeking to have abortions, the North Carolina General Assembly passed House Bill 854 titled the ‘Woman’s Right to Know Act,’ (“the Act”). The Act went to effect on Wednesday October 26, 2011, notwithstanding North Carolina Governor Beverly Perdue’s veto of the Bill. The Act comprehensively covers many aspects of the abortion process ranging from requiring the physician or qualified professionals to provide certain information to the pregnant woman to recommending that the pregnant woman listen to ultrasound of the unborn before undergoing the abortion procedure. …

Priceless Property, Kirsten Carlson

Kirsten Carlson

In 2011, the poorest Indians in the United States refused to accept over $1 billion dollars from the United States government. They reiterated their long held belief that money – even $1.3 billion dollars – could not compensate them for the taking of their beloved Black Hills. A closer look at the formation of the Sioux claim to the Black Hills helps us to understand why the Sioux Nation has repeatedly rejected over $1 billion dollars in compensation for land taken by the United States over 100 years ago. This article seeks to understand why the Sioux view the Black …