Law Commons^™

Same-Sex Sexual Harassment: How The "Equal Opportunity Harasser" Became A Legitimate Defense, David Sherwyn, Ezekiel A. Kaufman, Adam A. Klausner

Articles and Chapters

This article provides a quick history of sexual-harassment law and looks at the appellate-court opinions that came before the U.S. Supreme Court ruling in a same-sex sexual-harassment case. That latter decision has given rise to the relatively novel equal-opportunity-harasser defense, whereby harassing conduct directed at both men and women, no matter how outrageous, may not be unlawful at all. The reason is that the Supreme Court previously established that sexual harassment must be "because of sex," and failure to prove that gender-related component will automatically disqualify claims for quid pro quo or hostile-work-environment sexual harassment, as indicated by the ...

To Designate Or Not To Designate Under The Family And Medical Leave Act, Tory L. Lucas

Faculty Publications and Presentations

The Family and Medical Leave Act (FMLA) entitles eligible employees to take a total of twelve workweeks of leave during any twelve-month period for specifically prescribed circumstances such as a serious health condition or the birth or adoption of a child. Does the FMLA require employers to specifically designate leave as FMLA leave or risk having to provide more than the guaranteed twelve weeks of leave? This precise question created a circuit split in the federal courts before the Supreme Court of the United States answered the question in March 2002. This article, published in 2000, addressed the issue a ...

Standing In Environmental Citizen Suits: Laidlaw’S Clarification Of The Injury-In-Fact And Redressability Requirements, Michael P. Healy

Law Faculty Scholarly Articles

In its first week of business during the new millennium, the U.S. Supreme Court decided Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., and provided important clarifications about the law of standing in environmental citizen suits. Specifically, the Court rejected the narrow view of environmental injury-in-fact advocated by Justice Scalia and instead adhered to the broader view of injury-in-fact established in a nonenvironmental context by the Court's decision in Federal Elections Commission v. Akins. As importantly, the Court also addressed the redressability requirement of Article III standing in Laidlaw. Here too, the Court did not ...

Interpreting The Ada And Civil Rights Law: Five Supreme Court Rulings, David Sherwyn, Zev J. Eigen, Adam A. Klausner

Articles and Chapters

Although one could say that employers found some clarification in human-resources law in 1999, certain complications still remain.

Should State Corporate Law Define Successor Liability - The Demise Of Cercla's Federal Common Law, Bradford Mank

Faculty Articles and Other Publications

During the 1980s and early 1990s, a series of decisions broadly interpreting the liability provisions of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCIA) appeared destined to transform corporate law practice. CERCIA does not directly address successor liability, but the statute's complex and contradictory legislative history arguably implies that Congress wanted federal courts to apply broad liability principles to achieve the statute's fundamental remedial goal of making polluters and their successors pay for cleaning up hazardous substances.

Notably, a number of courts rejected state corporate law principles that usually limit the liability of successor corporations ...

The Changing Complexion Of Workplace Law: Labor And Employment Decisions Of The Supreme Court's 1999-2000 Term , James J. Brudney

Faculty Scholarship

At the dawn of a new century of Supreme Court workplace law, it seems especially appropriate to offer some perspective on the recent and relatively recent past. Before addressing the seven cases involving labor and employment issues decided by the Supreme Court in the Term just ended, I want briefly to describe (in what I hope are not mechanical terms) how the Court's interests in labor and employment law have evolved from the start of the Burger Era in 1969 to the current, mature stage of the Rehnquist Court.

Due Process And Fundamental Rights, Martin A. Schwartz

Scholarly Works

No abstract provided.

Kumho Tire Co. V. Carmichael: The Supreme Court Follows Up On The Daubert Test, Martin A. Schwartz

Scholarly Works

No abstract provided.

Discrimination Cases In The Supreme Court’S 1998 Term, Eileen Kaufman

Scholarly Works

In the Supreme Court's 1997 Term, the Supreme Court had decided a record number of statutory discrimination cases. However, that record was exceeded in the Supreme Court's 1998 Term with the Court addressing issues arising under Title VII, which covers discrimination in employment; Title IX, which covers discrimination in schools; and most significantly, the Americans with Disabilities Act, which prohibits discrimination based on disability. Overall, the term scored significant victories for employers who were given considerable latitude to set their own physical characteristic standards and who were, to a large extent, immunized from liability for punitive damages. There ...

The Section 5 Mystique, Morrison, And The Future Of Federal Antidiscrimination Law, Margaret H. Lemos, Samuel Estreicher

Faculty Scholarship

No abstract provided.

When The Wall Has Fallen: Decades Of Failure In The Supervision Of Capital Juries, José F. Anderson

All Faculty Scholarship

Since the return of capital punishment after Furman v. Georgia nearly three decades ago, the Supreme Court of the United States has struggled to control the administration of capital punishment when those decisions are made or recommended by a citizen jury. Although there is no constitutional requirement that a jury participate in the death penalty process, most states do provide, through their capital punishment statutes, that a jury will participate in the decision. The preference for jury sentencing in these circumstances reflects a reluctance to leave power over life solely in the hands of one judge. Still, some scholars have ...

The Reconceptualization Of Legislative History In The Supreme Court, Charles Tiefer

All Faculty Scholarship

In 1995, the Supreme Court began to embrace a approach to interpreting Congressional intent. From that year forward, the Breyers-Stevens model of legislative history, or "institutional legislative history," has seen significant success, emerging in the shadows of the success Justice Scalia's enjoyed while promoting his brand of textualism in the early 1990s. In developing a new way to view Congressional intent, Justices Breyers and Stevens synthesize information gathered from congressional report details, preferably attached to bill drafting choices, thereby renouncing Scalia's reliance on the purposes espoused by the Congressional majority. This new approach, the author contends, rejuvenated the ...

Sovereign Immunity, Due Process, And The Alden Trilogy, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

In Alden v. Maine, the Court held that the principle of sovereign immunity protects states from being sued without their consent in their own courts by private parties seeking damages for the states' violation of federal law. The Court thus rejected the "forum allocation" interpretation of the Eleventh Amendment, under which the Amendment serves merely to channel suits against the states based on federal law into the state courts, which are required by the Supremacy Clause to entertain such suits. The Court held instead that the Eleventh Amendment protects the states from being subjected to private damage liability by Congress ...

Preemption & Human Rights: Local Options After Crosby V. Nftc, Robert Stumberg

Georgetown Law Faculty Publications and Other Works

In June 2000, the Supreme Court held in Crosby v. National Foreign Trade Council (NFTC) that federal sanctions against Burma preempted the Massachusetts Burma law. With its "Burma Law," Massachusetts sought to replicate the anti-Apartheid boycott, one of the most successful human rights campaigns in history. Massachusetts' Burma law authorized state agencies to exercise a strong purchasing preference in favor of companies that do not conduct business in Burma unless the preference would impair essential purchases or result in inadequate competition.

In Crosby, the Court held that Congress preempted the Massachusetts Burma law when it adopted federal sanctions on Burma ...

Damage Control? A Comment On Professor Neuman’S Reading Of Reno V. Aadc, David Cole

Georgetown Law Faculty Publications and Other Works

This comment responds to an article by Professor Gerald Neuman on the Supreme Court's recent decision in Reno v. American-Arab Anti-Discrimination Committee (AADC). The Court in AADC rejected a selective prosecution claim by immigrants targeted for deportation based on First Amendment-protected activities, finding that Congress had stripped the federal courts of jurisdiction over such claims, and that in any event the Constitution does not recognize a selective prosecution objection to a deportation proceeding. Professor Neuman argues that the decision should not be read as implying that aliens have less First Amendment protection than citizens, and that the decision can ...