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Articles 1 - 30 of 30
Full-Text Articles in Law
Bruen's Enforcement Puzzle: Unearthing And Adjudicating The Historical Enforcement Record In Second Amendment Cases, Andrew Willinger
Bruen's Enforcement Puzzle: Unearthing And Adjudicating The Historical Enforcement Record In Second Amendment Cases, Andrew Willinger
Faculty Scholarship
The Supreme Court’s 2022 decision in New York State Rifle & Pistol Ass’n v. Bruen brings historical complexity to the fore by instituting a history-focused test for the Second Amendment that demands analogues from the Founding or Reconstruction eras to support modern gun regulations. The majority opinion in Bruen considers, in multiple places, how certain historical gun regulations may have been enforced. In each instance, the Court suggests that evidence of racially disparate enforcement of a historical law is relevant to whether that law is part of the American historical tradition and an appropriate analogue. Historical enforcement data appear to …
Allen V. Milligan: Anticlassification And The Voting Rights Act, Graham Stinnett
Allen V. Milligan: Anticlassification And The Voting Rights Act, Graham Stinnett
Duke Journal of Constitutional Law & Public Policy Sidebar
The "crown jewel" of the Civil Rights Movement, the Voting Rights Act of 1965 has been called "one of the most effective statutes ever enacted." However, in 2013 the Supreme Court famously gutted the Voting Rights Act in Shelby County v. Holder. Nearly a decade later, in Allen v. Milligan, the Court is now signaling that Section 2, the last remaining core provision of the Voting Rights Act, could be on the chopping block. With Milligan, the Court may be preparing to inject race-neutrality into Section 2, which could destroy the vestiges of the onetime "super-statute."
This …
The Importance Of Race, Gender, And Religion In Naturalization Adjudication In The United States, Emily Ryo, Reed Humphrey
The Importance Of Race, Gender, And Religion In Naturalization Adjudication In The United States, Emily Ryo, Reed Humphrey
Faculty Scholarship
This study presents an empirical investigation of naturalization adjudication in the United States using new administrative data on naturalization applications decided by the U.S. Citizenship and Immigration Service (USCIS) between October 2014 and March 2018. We find significant group disparities in naturalization approvals based on applicants’ race/ethnicity, gender, and religion, controlling for individual applicant characteristics, adjudication years, and variation between field offices. Non-White applicants and Hispanic applicants are less likely to be approved than non-Hispanic White applicants, male applicants are less likely to be approved than female applicants, and applicants from Muslim-majority countries are less likely to be approved than …
Contracting Free From Racial Animus: Comcast Corporation V. National Association Of African American-Owned Media And Entertainment Studios, Catherine Tarantino
Contracting Free From Racial Animus: Comcast Corporation V. National Association Of African American-Owned Media And Entertainment Studios, Catherine Tarantino
Duke Journal of Constitutional Law & Public Policy Sidebar
The United States has come a long way in promoting racial equality since the 1866 and 1964 Civil Rights Acts, but racial animus still plays an impermissible role in many contracting and employment decisions. Comcast Corporation v. National Association of African American-Owned Media and Entertainment Studios offers the Supreme Court the opportunity to decide which causal standard applies to claims alleging racial bias in contracting under 42 U.S.C. § 1981. Specifically, the Court will decide whether § 1981 requires a plaintiff to demonstrate that racial animus was the but-for cause or simply a motivating-factor in the defendant’s refusal to contract. …
Questioning The Definition Of "Sex" In Title Vii: Bostock V. Clayton County, Ga., Katherine Carter
Questioning The Definition Of "Sex" In Title Vii: Bostock V. Clayton County, Ga., Katherine Carter
Duke Journal of Constitutional Law & Public Policy Sidebar
In October of 2019, the Supreme Court heard the arguments of two cases presenting the same inquiry: whether Title VII’s prohibition on sex discrimination encompasses discrimination on the basis of sexual orientation. Currently, twenty-one states as well as the District of Columbia expressly prohibit discrimination based on sexual orientation by statute or regulation. Other states offer protection in the form of agency interpretation or court ruling. However, for the remaining states with no established protections, Title VII stands as the only potential safeguard against sexual orientation discrimination.
The following Commentary considers the case of Gerald Bostock, a gay man from …
A Different Class Of Care: The Benefits Crisis And Low-Wage Workers, Trina Jones
A Different Class Of Care: The Benefits Crisis And Low-Wage Workers, Trina Jones
Faculty Scholarship
When compared to other developed nations, the United States fares poorly with regard to benefits for workers. While the situation is grim for most U.S. workers, it is worse for low-wage workers. Data show a significant benefits gap between low-wage and high-wage in terms of flexible work arrangements (FWAs), paid leave, pensions, and employer-sponsored health-care insurance, among other things. This gap exists notwithstanding the fact that FWAs and employment benefits produce positive returns for employees, employers, and society in general. Despite these returns, this Article contends that employers will be loath to extend FWAs and greater employment benefits to low-wage …
Discrimination By Customers, Katharine T. Bartlett, Mitu Gulati
Discrimination By Customers, Katharine T. Bartlett, Mitu Gulati
Faculty Scholarship
Customers discriminate by race and gender, with considerable negative consequences for female and minority workers and business owners. Yet anti-discrimination laws apply only to discrimination by firms, not by customers. We examine efficacy and privacy reasons for why this may be so, as well as changing features of the market that, by blurring the line between firms and customers, make current law increasingly irrelevant. We conclude that, while there are reasons to be cautious about regulating customer behavior, those reasons do not justify acceding to customer discrimination altogether. To open a discussion of the regulatory options that take account of …
Cultivating Inclusion, Patrick S. Shin, Mitu Gulati
Cultivating Inclusion, Patrick S. Shin, Mitu Gulati
Faculty Scholarship
In this symposium essay in honor of critical race theory stalwart Mari Matsuda, we discuss two of her essays on affirmative action, "Affirmative Action and Legal Knowledge: Planting Seeds in Plowed-Up Ground" and "Who is Excellent?" We draw on the insights of these essays, one written almost twenty-five years ago and the other over a decade ago, to reflect on currently prevailing justifications for affirmative action, which revolve entirely around debates about diversity. We contrast the production of racial diversity with the more robust concept of affirmative action that Matsuda advocated. We argue that the modern diversity rationale lies at …
The New Textualism, Progressive Constitutionalism, And Abortion Rights: A Reply To Jeffrey Rosen, Neil S. Siegel
The New Textualism, Progressive Constitutionalism, And Abortion Rights: A Reply To Jeffrey Rosen, Neil S. Siegel
Faculty Scholarship
No abstract provided.
Mapping A Post-Shelby County Contingency Strategy, Guy-Uriel Charles, Luis Fuentes-Rohwer
Mapping A Post-Shelby County Contingency Strategy, Guy-Uriel Charles, Luis Fuentes-Rohwer
Faculty Scholarship
This Essay was written for the Yale Law Journal Online Symposium on the future of section 5 of the Voting Rights Act after Shelby County v. Holder. Professors Guy-Uriel E. Charles and Luis Fuentes-Rohwer argue that voting rights activists ought to be prepared for a future in which section 5 is not part of the landscape. If the Court strikes down section 5, an emerging ecosystem of private entities and organized interest groups of various stripes—what they call institutional intermediaries—may be willing and able to mimic the elements that made section 5 an effective regulatory device. As voting rights …
Racial Cartels And The Thirteenth Amendment Enforcement Power, Darrell A. H. Miller
Racial Cartels And The Thirteenth Amendment Enforcement Power, Darrell A. H. Miller
Faculty Scholarship
No abstract provided.
Showcasing Diversity, Mitu Gulati, Patrick S. Shin
Showcasing Diversity, Mitu Gulati, Patrick S. Shin
Faculty Scholarship
Diversity initiatives are commonplace in today’s corporate America. Large and successful firms frequently tout their commitments to diversity, sometimes appointing women and racial minorities to highly visible posts, including seats on their boards of directors. Why would a profit-minded firm engage in such behavior? One frequently voiced explanation is that by creating such diversity, firms send out a positive signal about their attributes: a firm’s willingness to expend resources on diversity shows its commitment to workplace fairness and equality, which makes it more attractive to potential employees, customers and financiers. This claim has considerable surface appeal not only as an …
Showcasing: The Positive Spin, Katharine T. Bartlett
Showcasing: The Positive Spin, Katharine T. Bartlett
Faculty Scholarship
This Commentary outlines the positive case for showcasing diversity. Patrick Shin and Mitu Gulati criticize showcasing on the grounds that appointing women and minorities to board directorships is unreliable as a sign of true commitment to diversity and, further, that showcasing is detrimental to women and minorities because it treats them as objects or “prized trophies.” Drawing on social psychology, this Commentary highlights the mechanisms through which showcasing, despite the negative features emphasized by Shin and Gulati, also reinforces diversity values and strengthens the existing societal consensus in favor of diversity.
Reply: Good Intentions Matter, Katharine T. Bartlett
Reply: Good Intentions Matter, Katharine T. Bartlett
Faculty Scholarship
While writing the article to which Professors Mitchell and Bielby have published responses, I was mindful of the many ways in which the article could be misinterpreted. In taking issue with the assumption that legal controls work in a direct, linear manner to deter crimination, I thought I might be misunderstood to say that people are not responsive to incentives. In worrying about how legal sanctions exert external pressure that may crowd out the inclination of well-intentioned people to self-monitor for bias, I feared that the article would be read mistakenly to oppose strong and appropriate legal rules against discrimination. …
The Unsettling ‘Well-Settled’ Law Of Freedom Of Association, John D. Inazu
The Unsettling ‘Well-Settled’ Law Of Freedom Of Association, John D. Inazu
Faculty Scholarship
This article brings historical, theoretical, and doctrinal critiques to bear upon the current framework for the constitutional right of association. It argues that the Supreme Court’s categories of expressive and intimate association first announced in the 1984 decision, Roberts v. United States Jaycees, are neither well-settled nor defensible. Intimate association and expressive association are indefensible categories, but they matter deeply. They matter to the Jaycees. They matter to the Chi Iota Colony of the Alpha Epsilon Pi fraternity, a now defunct Jewish social group at the College of Staten Island that had sought to limit its membership to men. They …
Response: Anti-Discrimination Law In Peril?, Trina Jones
Response: Anti-Discrimination Law In Peril?, Trina Jones
Faculty Scholarship
No abstract provided.
Making Good On Good Intentions: The Critical Role Of Motivation In Reducing Implicit Workplace Discrimination, Katharine T. Bartlett
Making Good On Good Intentions: The Critical Role Of Motivation In Reducing Implicit Workplace Discrimination, Katharine T. Bartlett
Faculty Scholarship
Discrimination in today’s workplace is largely implicit, making it ambiguous and often very difficult to prove. Employment discrimination scholars have proposed reforms of Title VII to make implicit discrimination easier to establish in court and to expand the kinds of situations to which liability attaches. The reform proposals reflect a broad consensus that strong legal norms are crucial to addressing the problem. Yet it is mistaken to assume that strengthening plaintiffs’ hands in implicit discrimination cases will necessarily achieve the long-term goal of reducing its occurrence. This Article brings together several strands of social science research showing that (1) implicit …
After Inclusion, Mitu Gulati, Devon W. Carbado, Catherine Fisk
After Inclusion, Mitu Gulati, Devon W. Carbado, Catherine Fisk
Faculty Scholarship
What forms of discrimination are likely to be salient in the coming decade? This review flags a cluster of problems that roughly fall under the rubric of inclusive exclusions or discrimination by inclusion. Much contemporary discrimination theory and empirical work is concerned not simply with mapping the forces that keep people out of the labor market but also with identifying the forces that push them into hierarchical structures within workplaces and labor markets. Underwriting this effort is the notion that, although determining what happens before and during the moment in which a prospective employee is excluded from an employment opportunity …
State Domas, Neutral Principles, And The Möbius Of State Action, Darrell A. H. Miller
State Domas, Neutral Principles, And The Möbius Of State Action, Darrell A. H. Miller
Faculty Scholarship
This essay uses the Mobius strip as a mathematical metaphor for how state "defense of marriage amendments" (DOMAs) can twist the Shelley v. Kraemer contribution to state action doctrine. It argues that Shelley's core insight -- that judicial enforcement of private agreements can constitute state action and must meet federal Fourteenth Amendment commands -- can be used by state judiciaries to hold that state judicial enforcement of private agreements between same sex-couples is a species of state action forbidden by state DOMA. As explored in this essay, the potential doctrinal contortion of Shelley by state DOMAs is at once a …
Introduction: The Enduring Power Of Collective Rights, In Labor Law Stories, Catherine L. Fisk, Laura J. Cooper
Introduction: The Enduring Power Of Collective Rights, In Labor Law Stories, Catherine L. Fisk, Laura J. Cooper
Faculty Scholarship
No abstract provided.
In Defense Of Deference, Guy-Uriel Charles, Luis Fuentes-Rohwer
In Defense Of Deference, Guy-Uriel Charles, Luis Fuentes-Rohwer
Faculty Scholarship
No abstract provided.
Comparing Race And Sex Discrimination In Custody Cases, Katharine T. Bartlett
Comparing Race And Sex Discrimination In Custody Cases, Katharine T. Bartlett
Faculty Scholarship
No abstract provided.
To Confront Or Not To Confront: Measuring Claiming Rates In Discrimination Grievances, Neil Vidmar, Herbert M. Kritzer, W. A. Bogart
To Confront Or Not To Confront: Measuring Claiming Rates In Discrimination Grievances, Neil Vidmar, Herbert M. Kritzer, W. A. Bogart
Faculty Scholarship
This note reexamines the generally accepted belief that persons with discrimination-related grievances are much less likely to complain about their problem than are persons with grievances arising from consumer purchases, torts, or other common kinds of personal problems. We find that previously reported analyses greatly overstate the gap between complaining in discrimination problems and other kinds of problems. Drawing on data from three surveys, each conducted in a different country (the United States, Canada, and Australia), we find that for some types of discrimination problems the level of complaining in fact equals or exceeds complaining in other arenas.
The Courts, Congress, And Educational Adequacy: The Equal Protection Predicament, Betsy Levin
The Courts, Congress, And Educational Adequacy: The Equal Protection Predicament, Betsy Levin
Faculty Scholarship
No abstract provided.
Discrimination As A Field Of Law, Arthur Larson
Discrimination As A Field Of Law, Arthur Larson
Faculty Scholarship
No abstract provided.
Recent Developments In The Law Of Equal Educational Opportunity, Betsy Levin
Recent Developments In The Law Of Equal Educational Opportunity, Betsy Levin
Faculty Scholarship
No abstract provided.
Sex Discrimination In Law School Placement, Frank T. Read, Elisabeth S. Petersen
Sex Discrimination In Law School Placement, Frank T. Read, Elisabeth S. Petersen
Faculty Scholarship
No abstract provided.
A Constitution For Every Man, William W. Van Alstyne
A Constitution For Every Man, William W. Van Alstyne
Faculty Scholarship
No abstract provided.
The O’Meara Case And Constitutional Requirements Of State Anti-Discrimination Housing Laws, William W. Van Alstyne
The O’Meara Case And Constitutional Requirements Of State Anti-Discrimination Housing Laws, William W. Van Alstyne
Faculty Scholarship
Against the backdrop of the highly criticized O’Meara case, this comment explores the possible rational bases a state could use to support a differentiation between publicly-assisted and unassisted home owners. This comment also addresses the question of how substantial that rational bases must be in order to survive the requirements of equal protection.
Comment: Sit-Ins And State Action- Mr. Justice Douglas, Concurring, Kenneth L. Karst, William W. Van Alstyne
Comment: Sit-Ins And State Action- Mr. Justice Douglas, Concurring, Kenneth L. Karst, William W. Van Alstyne
Faculty Scholarship
No abstract provided.