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The Demographic Dilemma In Death Qualification Of Capital Jurors, J. Thomas Sullivan Oct 2014

The Demographic Dilemma In Death Qualification Of Capital Jurors, J. Thomas Sullivan

Faculty Scholarship

No abstract provided.


Still Hazy After All These Years: The Lack Of Empirical Evidence And Logic Supporting Mismatch, Angela Onwuachi-Willig, William Kidder Mar 2014

Still Hazy After All These Years: The Lack Of Empirical Evidence And Logic Supporting Mismatch, Angela Onwuachi-Willig, William Kidder

Faculty Scholarship

In the context of reviewing the book "Mismatch" by Sander and Taylor, the authors provide a comprehensive review and synthesis of dozens of social science research studies regarding affirmative action, mismatch, graduation rates and labor market earnings. In addition, the authors look at the recent graduation rates of nearly two hundred thousand black and Latino students at one hundred U.S. research intensive universities (Table 1). The authors conclude that the social science research overall, and particularly the best peer-reviewed studies, do not support the mismatch hypothesis with respect to affirmative action and African American and Latino college graduation rates ...


Enforcing Equality: Statutory Injunctions, Equitable Balancing Under Ebay, And The Civil Rights Act Of 1964, Michael T. Morley Jan 2014

Enforcing Equality: Statutory Injunctions, Equitable Balancing Under Ebay, And The Civil Rights Act Of 1964, Michael T. Morley

Faculty Scholarship

No abstract provided.


A Primer On Hobby Lobby: For-Profit Corporate Entities' Challenge To The Hhs Mandate, Free Exercise Rights, Rfra's Scope, And The Nondelegation Doctrine, Terri R. Day, Leticia M. Diaz, Danielle Weatherby Jan 2014

A Primer On Hobby Lobby: For-Profit Corporate Entities' Challenge To The Hhs Mandate, Free Exercise Rights, Rfra's Scope, And The Nondelegation Doctrine, Terri R. Day, Leticia M. Diaz, Danielle Weatherby

Faculty Scholarship

No abstract provided.


Following Fisher: Narrowly Tailoring Affirmative Action, Eang L. Ngov Jan 2014

Following Fisher: Narrowly Tailoring Affirmative Action, Eang L. Ngov

Faculty Scholarship

No abstract provided.


Marriage Equality Is Both Feminist And Progressive, Barbara Cox Jan 2014

Marriage Equality Is Both Feminist And Progressive, Barbara Cox

Faculty Scholarship

Marriage equality has the ability to lessen vulnerability for society’s most needy. This article discusses two aspects of marriage equality in particular. Part II discusses why marriage equality can be feminist in practice and why obtaining marriage equality for same-sex couples will advance feminist values within marriage. Part III discusses how marriage equality can be progressive and help those who are vulnerable in our society by providing numerous rights that are otherwise unavailable or expensive to replicate. While marriage equality cannot bring an end to the many problems caused by marriage’s privileged status in our society, it has ...


Symposium: Building The Arc Of Justice: The Life And Legal Thought Of Derrick Bell: Foreword, Matthew H. Charity Jan 2014

Symposium: Building The Arc Of Justice: The Life And Legal Thought Of Derrick Bell: Foreword, Matthew H. Charity

Faculty Scholarship

The four articles in this Symposium issue pay tribute to the work of Professor Derrick Bell by building on his challenges to the permanence of racial domination, to the potential limitations of good will inherent in the concept of interest convergence, and to the question of permanence not just of racism, but of other systemic biases since recognized, written on, and litigated. The articles range from the 19th century to the hegemonic war on terror, from Latin identity as a disruptive force, to recognition of subjugated identities allowing for the creation of coalitions to end oppression.


Was The First Justice Harlan Anti-Chinese?, James W. Gordon Jan 2014

Was The First Justice Harlan Anti-Chinese?, James W. Gordon

Faculty Scholarship

The first Justice John Marshall Harlan has long been recognized as a defender of Black civil rights. Yet some scholars challenge Harlan’s egalitarian reputation by arguing that he was anti-Chinese. In this Article, the Author discusses the evidence which has been offered to support the claim that Harlan was anti-Chinese and offers additional evidence never before presented to argue against this hypothesis. Harlan’s critics have assembled some evidence in a way that suggests Harlan had an anti-Chinese bias. The Author suggests that the evidence is ambiguous and that it can be assembled to produce a different picture from ...


In The Box: Voir Dire On Lgbt Issues In Changing Times, Giovanna Shay Jan 2014

In The Box: Voir Dire On Lgbt Issues In Changing Times, Giovanna Shay

Faculty Scholarship

This is the first law review article to examine transcripts, court filings, and published opinions about jury voir dire on attitudes toward same-sex sexuality and LGBT issues. It demonstrates that jurors express a range of homonegative attitudes. Many jurors voicing such beliefs are not removed for cause, even in cases involving lesbian and gay people and issues. It suggests some best practices for voir dire to uncover attitudes toward same-sex sexuality, based on social science research. Voir dire on LGBT issues is likely to become more important in coming years. Despite enormous gains, including historic marriage equality decisions, the LGBT ...


Targeted Killings And The Interest Convergence Dilemma, Sudha Setty Jan 2014

Targeted Killings And The Interest Convergence Dilemma, Sudha Setty

Faculty Scholarship

In the 1980s, Professor Derrick Bell posited a theory of interest convergence as part of his critical race theory work, arguing that the major strides forward in civil rights law and policy that benefited African Americans in the 1950s and 1960s only occurred because of the perceived benefits of those changes to white elites during that time. In Bell’s view, it was only at the point at which the interests of powerful whites converged with those of marginalized racial minorities that significant changes in civil rights law could occur.

Twelve years after the terrorist attacks of September 11, 2001 ...


Title Ix Feminism, Social Justice, And Ncaa Reform, Erin E. Buzuvis Jan 2014

Title Ix Feminism, Social Justice, And Ncaa Reform, Erin E. Buzuvis

Faculty Scholarship

This Article discusses social justice feminism as it applies to gender discrimination in collegiate and scholastic athletics in the context of Title IX requirements. Title IX activists today are primarily concerned with securing equal resources and opportunities for women in a college athletic environment. Today, that environment is becoming increasingly commercialized; this presents a Title IX problem because it creates an incentive to invest more athletic department resources into certain men’s athletic programs instead of distributing them equitably to women’s (and other men’s) programs. In addition, the NCAA is presently considering or has recently undertaken deregulation initiatives ...


Clothes Don't Make The Man (Or Woman), But Gender Identity Might, Jennifer Levi Jan 2014

Clothes Don't Make The Man (Or Woman), But Gender Identity Might, Jennifer Levi

Faculty Scholarship

The Ninth Circuit's recent decision in Jespersen v. Harrah's Operating Co., Inc. reflects the blinders on many contemporary courts regarding the impact of sex-differentiated dress requirements on female employees. Although some courts have acknowledged the impermissibility of imposing sexually exploitive dress requirements, they have done so only at the extreme outer limits, ignoring the concrete harms experienced by women (and men) who are forced to conform to externally imposed gender norms. On the other hand, some transgender litigants have recently succeeded in challenging sex-differentiated dress requirements. This success is due in part to their incorporation of disability claims ...


Federal Equal Protection, Taylor Flynn Jan 2014

Federal Equal Protection, Taylor Flynn

Faculty Scholarship

The Author explores the use of due process and equal protection guarantees from the U.S. Constitution as a means to challenge workplace discrimination faced by LGBT government employees. The Author also discusses how private employees must rely on Title VII of the Civil Rights Act to assert similar claims. Because sex discrimination is prohibited under both the Constitution and Title VII, federal courts have relied on reasoning in the former context when analyzing the latter, and vice versa. This means that a watershed case regarding one law can contain reasoning for the other. The Author goes on to the ...


A Reasonable Belief: In Support Of Lgbt Plaintiffs' Title Vii Retaliation Claims, Erin E. Buzuvis Jan 2014

A Reasonable Belief: In Support Of Lgbt Plaintiffs' Title Vii Retaliation Claims, Erin E. Buzuvis

Faculty Scholarship

When an LGBT employee is punished for complaining about discrimination in the workplace, he or she has two potential causes of action under Title VII: first, a challenge to the underlying discrimination, and second, a challenge to the resulting retaliation. The first claim is vulnerable to dismissal under courts’ narrow interpretation of Title VII’s prohibition of discrimination “because of sex” as applied to LGBT plaintiffs. But such an outcome need not determine the fate of the second claim. Faithful application of retaliation law’s “reasonable belief” standard, which protects a plaintiff from reprisal so long as she reasonably believed ...


The Status Gap: Female Faculty In The Legal Academy, Paula A. Monopoli Jan 2014

The Status Gap: Female Faculty In The Legal Academy, Paula A. Monopoli

Faculty Scholarship

No abstract provided.


The Trouble With Torgerson: The Latest Effort To Summarily Adjudicate Employment Discrimination Cases, Theresa M. Beiner Jan 2014

The Trouble With Torgerson: The Latest Effort To Summarily Adjudicate Employment Discrimination Cases, Theresa M. Beiner

Faculty Scholarship

No abstract provided.


The Many Lanes Out Of Court: Privatization Of Employment Discrimination Disputes, Theresa M. Beiner Jan 2014

The Many Lanes Out Of Court: Privatization Of Employment Discrimination Disputes, Theresa M. Beiner

Faculty Scholarship

Despite employment gains made by women, older Americans, and racial and religious minorities, employment discrimination remains a persistent problem in the American workplace. Scholars have lamented that employment discrimination laws have not proven effective in eliminating the many vestiges of discrimination that still linger. Many scholars blame the lackluster enforcement of employment discrimination laws on the federal courts' inability to understand or theorize about the lingering aspects of discrimination based on race and sex that still pervade the modern workplace as well as judicial hostility to employment discrimination claims. Recent data suggest that this has led some employment discrimination claimants ...


Presidential Constitutionalism And Civil Rights, Joseph B. Landau Jan 2014

Presidential Constitutionalism And Civil Rights, Joseph B. Landau

Faculty Scholarship

As the judicial and legislative branches have taken a more passive approach to civil rights enforcement, the President’s exercise of independent, extrajudicial constitutional judgment has become increasingly important. Modern U.S. presidents have advanced constitutional interpretations on matters of race, gender, HIV-status, self-incrimination, reproductive liberty, and gun rights, and President Obama has been especially active in promoting the rights of lesbian, gay, bisexual, and transgender (LGBT) persons — most famously by refusing to defend the Defense of Marriage Act (DOMA). Commentators have criticized the President’s refusal to defend DOMA from numerous perspectives but have not considered how the President ...


What We Disagree About When We Disagree About School Choice, Aaron J. Saiger Jan 2014

What We Disagree About When We Disagree About School Choice, Aaron J. Saiger

Faculty Scholarship

The debate over school vouchers, charter schools, and other varieties of school choice has become a bit stale. It would improve were advocates on all sides to acknowledge several crucial realities that they too often obfuscate. First, the debate is fundamentally normative, not empirical. The desirability of choice depends primarily upon how we weigh competing claims of equality and liberty in education. Second, all participants in the debate should acknowledge both that constrained choice is still genuine choice, and that how and to what extent parental decisions are constrained are fundamental issues in choice policy. Finally, with respect to the ...


Invisible Women: Why An Exemption For Hobby Lobby Would Violate The Establishment Clause, Frederick Mark Gedicks, Andrew Koppelman Jan 2014

Invisible Women: Why An Exemption For Hobby Lobby Would Violate The Establishment Clause, Frederick Mark Gedicks, Andrew Koppelman

Faculty Scholarship

Can an employer make his employees foot the bill for his religious beliefs? Merely to ask this question is to answer it. “Religious liberty” does not and cannot include the right to impose the costs of observing one's religion on someone else. Indeed, the Supreme Court has consistently interpreted the Free Exercise Clause, the Establishment Clause, and Title VII of the Civil Rights Act of 1964 to forbid permissive accommodations of religion in the for-profit workplace when they impose significant burdens on identifiable and discrete third parties.

In Sebelius v. Hobby Lobby Stores, Inc., however, an employer is claiming ...


Border Fixation: The Appearance Of Security And Control In Immigration Reform, Katherine L. Vaughns Jan 2014

Border Fixation: The Appearance Of Security And Control In Immigration Reform, Katherine L. Vaughns

Faculty Scholarship

Immigration reform is the subject of intense discussion among politicians, policy experts, analysts, and advocacy groups alike; America’s never-ending debate which today has been infected with shameless demagoguery, rendering sound policy choices virtually impossible. And in this political cauldron, the appearance of border security and control through symbolism and political rhetoric substitute for the practical realities that are essential to inform policymakers about the appropriate administration and enforcement of U.S. immigration laws. For Congress has had an ongoing, unsound focus on sealing the border it shares with Mexico, its southwestern neighbor, seemingly without regard to costs especially in ...


Promoting Innovation While Preventing Discrimination: Policy Goals For The Scored Society, Frank A. Pasquale, Danielle Keats Citron Jan 2014

Promoting Innovation While Preventing Discrimination: Policy Goals For The Scored Society, Frank A. Pasquale, Danielle Keats Citron

Faculty Scholarship

There are several normative theories of jurisprudence supporting our critique of the scored society, which complement the social theory and political economy presented in our 2014 article on that topic in the Washington Law Review. This response to Professor Tal Zarsky clarifies our antidiscrimination argument while showing that is only one of many bases for the critique of scoring practices. The concerns raised by Big Data may exceed the capacity of extant legal doctrines. Addressing the potential injustice may require the hard work of legal reform.


Perspectives On Outpatient Commitment, Richard C. Boldt Jan 2014

Perspectives On Outpatient Commitment, Richard C. Boldt

Faculty Scholarship

No abstract provided.


Hosanna-Tabor In The Religious Freedom Panopticon, Peter G. Danchin Jan 2014

Hosanna-Tabor In The Religious Freedom Panopticon, Peter G. Danchin

Faculty Scholarship

No abstract provided.


Still Drowning In Segregation: Limits Of Law In Post-Civil Rights America, Taunya L. Banks Jan 2014

Still Drowning In Segregation: Limits Of Law In Post-Civil Rights America, Taunya L. Banks

Faculty Scholarship

Approximately 40% of the deaths attributed to Hurricane Katrina in 2005 were caused by drowning. Blacks in the New Orleans area accounted for slightly more than one half of all deaths. Some of the drowning deaths were preventable. Too many black Americans do not know how to swim. Up to seventy percent of all black children in the United States have no or low ability to swim. Thus it is unsurprising that black youth between 5 and 19 are more likely to drown than white youths of the same age. The Centers for Disease Control concludes that a major factor ...


Invidious Deliberation: The Problem Of Congressional Bias In Federal Hate Crime Legislation, Sara Rankin Jan 2014

Invidious Deliberation: The Problem Of Congressional Bias In Federal Hate Crime Legislation, Sara Rankin

Faculty Scholarship

The intersection of power and prejudice can control the shape of statutory law, and yet a dearth of legal scholarship investigates it. Invidious Deliberation addresses that deficit. It tackles the problem of prejudice in Congressional deliberations at a particularly critical point: when Congress decides which groups to protect under federal hate crime legislation. The article contends that Congress’s own bias may exclude the most vulnerable groups from hate crime protection. To illustrate the point, this article systematically reviews over two decades of Congressional decisions with respect to expansions of the Hate Crime Statistics Act, a “gateway” for groups seeking ...


Double Jeopardy? An Empirical Study With Implications For The Debates Over Implicit Bias And Intersectionality,, Joan C. Williams Jan 2014

Double Jeopardy? An Empirical Study With Implications For The Debates Over Implicit Bias And Intersectionality,, Joan C. Williams

Faculty Scholarship

No abstract provided.


Beyond Child Welfare - Theories On Child Homelessness, Jessica Dixon Weaver Jan 2014

Beyond Child Welfare - Theories On Child Homelessness, Jessica Dixon Weaver

Faculty Scholarship

According to recent federal data from 2013, the number of children who experience homelessness in the United States has reached an astonishing 2.5 million. Among industrialized nations, America has a one of the highest poverty rates among children, peaking at 22% in 2010. This Article considers why there is an ambivalent and sometimes hostile response to chronic, persistent poverty among families with young children. Various reports on the state of homeless families state that the cause of homelessness is a combination of lack of affordable housing, extreme poverty, decreasing government support, domestic violence, the challenge of raising children alone ...


The National Security State: The End Of Separation Of Powers, Michael E. Tigar Jan 2014

The National Security State: The End Of Separation Of Powers, Michael E. Tigar

Faculty Scholarship

No abstract provided.


Reforming Property Law To Address Devastating Land Loss, Thomas W. Mitchell Jan 2014

Reforming Property Law To Address Devastating Land Loss, Thomas W. Mitchell

Faculty Scholarship

Tenancy-in-common ownership represents the most widespread form of common ownership of real property in the United States. Such ownership under the default rules also represents the most unstable ownership of real property in this country. Thousands of tenancy-in-common property owners, including members of many poor and minority families, have lost their commonly-owned property due to court-ordered, forced partition sales as well as much of their real estate wealth associated with such ownership as a result of such sales. Though some scholars and the media have highlighted how thousands of African-Americans have lost an untold amount of property and substantial real ...