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Emphasizing Substance: Making The Case For A Shift In Political Speech Jurisprudence, Anastasia N. Niedrich
Emphasizing Substance: Making The Case For A Shift In Political Speech Jurisprudence, Anastasia N. Niedrich
University of Michigan Journal of Law Reform
Political speech is vital to a functioning democracy and is highly protected. That much is hardly disputed. What courts, legal scholars, and those seeking to convey a political message do dispute is how political speech should be identified and protected, and who should decide what constitutes political speech. This Note looks at the history of political speech doctrine and critiques two intent-based approaches that have been proposed by First Amendment scholars to define political speech. This Note proposes a solution to many problems inherent in defining, identifying, and protecting political speech within intent-based frameworks, arguing that focusing on intent creates …
The Telltale Sign Of Discrimination: Probabilities, Information Asymmetries, And The Systemic Disparate Treatment Theory , Jason R. Bent
The Telltale Sign Of Discrimination: Probabilities, Information Asymmetries, And The Systemic Disparate Treatment Theory , Jason R. Bent
University of Michigan Journal of Law Reform
The systemic disparate treatment theory of employment discrimination is in disarray. Originally formulated in United States v. International Brotherhood of Teamsters, the systemic disparate treatment theory provides plaintiffs with a method for creating an inference of unlawful discriminatory intent if plaintiffs can first present sufficient statistical evidence establishing that the employer was engaged in a "pattern or practice" of discrimination. While the Court and scholars have recently given substantial attention to the disparate impact theory, they have not adequately analyzed the contours of the systemic disparate treatment theory. For example, there are currently disputes about whether the systemic disparate treatment …