Law Commons^™

Reflections On Complicity, Julie Shapiro

Faculty Articles

The author of this article participated in the litigation of Andersen v. King County, Washington in which lesbian and gay couples unsuccessfully sought access to marriage. Although part of the plaintiffs' litigation team, she is a feminist anti-assimilationist and as such, is generally opposed to articulating marriage as a priority of the lesbian/gay civil rights movement. Confronted with the undeniable reality that marriage has become the central demand of the lesbian and gay movement, the author explores the tensions and contradictions encountered during the litigation. The article examines how one might critically manifest resistance even while working for an assimilationist …

True Integration: Advancing Brown's Goal Of Educational Equity In The Wake Of Grutter, Lia Epperson

Articles in Law Reviews & Other Academic Journals

The late Supreme Court Justice Thurgood Marshall, founder of the NAACP Legal Defense Fund ("LDF"), and head of the legal team that litigated Brown v. Board of Education,' knew well the challenges that desegregation posed in a nation founded on a system of racial subjugation and white supremacy. A full thirty years after Brown, he acknowledged: Desegregation is not and was never expected to be an easy task. Racial attitudes ingrained in our Nation's childhood and adolescence are not quickly thrown aside in its middle years.... In the short run, it may seem to be the easier course to allow …

Race And The California Recall: A Top Ten List Of Ironies, Steven W. Bender, Keith Aoki, Sylvia Lazos

Faculty Articles

Arnold Schwarzenegger's election as governor of California in the 2003 recall campaign is rife with cruel ironies. An immigrant himself, he beat the grandson of Mexican immigrants, Lieutenant Governor Cruz Bustamante, by playing the race card, and managed to dodge allegations of his praise for Hitler as a strong leader. While the pundits say that the California recall was about angry voters lashing back at faithless, self-dealing politicians, more lurks beneath the surface. In California, racial and ethnic minorities now comprise a majority of the population, and the recall election brought barely concealed and seething schisms to the surface. Californians, …

Freedom In A Regulatory State?: Lawrence, Marriage And Biopolitics, Dean Spade, Craig Willse

Faculty Articles

This paper attempts to trace the links between the Lawrence v. Texas decision and campaigns for gay marriage rights in order to envision movements that seek justice for more than just the most racially and economically privileged lesbians and gay men. The authors outline the limits of the agenda represented by Lawrence and propose alternative modes for resisting the coercive regulation of sexuality, gender, and family formations.

By Any Other Name?: On Being "Regarded As" Black, And Why Title Vii Should Apply Even If Lakisha And Jamal Are White, Angela Onwuachi-Willig, Mario L. Barnes

Articles

Applying theories concerning the social construction of race, this Article borrows from the definition of disability under the Americans with Disabilities Act of 1990 (ADA) and the courts' analyses of disability discrimination cases under the "regarded as" disabled provision of the ADA, which allows a plaintiff to bring a claim against an employer who regards the plaintiff as having an impairment that substantially limits a major life activity. Using the "regarded as" provision as a model, this Article proposes a new method for recognizing discrimination claims based on the use of proxies for race-even when those proxies have been used …

The Other Sullivan Case, Garrett Epps, Garrett Epps

All Faculty Scholarship

The standard triumphalist narrative of NEW YORK TIMES V. SULLIVAN celebrates the Supreme Court's defense of free speech and press in the case's vindication of powerful journalistic institution. Ignored in this story is the story of the local defendants, civil rights leaders in Alabama who had their solvency threatened by the state courts' vindictive action against them. These defendants challenged the segregated proceedings used in court to affix liability to them—but the Supreme Court ignored their arguments and ignored the racial-equality and individual-rights aspects of the case. From their point of view, SULLIVAN might be so unalloyed a triumph.

Intertwining Of Poverty, Gender, And Race: A Critical Analysis Of Welfare News Coverage From 1993-2000, Deseriee A. Kennedy

Scholarly Works

Over the years, welfare has become highly intertwined with ideological beliefs involving gender, race, and poverty. As the nature of welfare transformed to include non-white recipients, the perception of welfare recipients as single "worthy white widows" was replaced by the "lazy African-American breeders." This study examined how television news may have appropriated this negative image in its coverage of the changes in the U.S. welfare system that took place during the 1990s. News stories presented by the major U.S. television networks from 1993 to 2000 were examined. The analysis showed that news stories tended to depict the typical welfare recipient …

Judicial Review And Nongeneralizable Cases, Neal Devins, Alan J. Meese

Faculty Publications

No abstract provided.

Is It Too Late For Title Vi Enforcement?: Seeking Redemption Of The Unequal Long Term Care System In The United States Through International Means, Ruqaiijah Yearby

All Faculty Scholarship

Legal and medical experts have noted continued racism in the health care system that prevents the equal distribution of quality care. Initially most racism was intentional and expressed through de jure segregation, as evidenced by federal funding of the construction of racial segregated health care facilities. Now most racism, expressed through de facto segregation, is subtly incorporated into the daily practices of institutions causing an adverse disparate impact on African-Americans. This institutional racism establishes separate and independent barriers through the neutral denial of opportunities and equal rights to individuals and groups that results from the normal operations of the institutions …

A State Of Disarray The Knowing And Voluntary Standard For Releasing Claims Under Title Vii Of The Civil Rights Act Of 1964, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

The Heightened Standard Of Judicial Review In Cases Of Governmental Gender-Based Discrimination: Ruth Bader Ginsburg's Influence On The U.S. Supreme Court In Craig V. Boren, Carlo A. Pedrioli

Faculty Scholarship

This paper argues that, as an amicus curiae who was working for the American Civil Liberties Union, Ruth Bader Ginsburg influenced the U.S. Supreme Court’s decision-making in the landmark 1976 case of Craig v. Boren. Craig, which received national news coverage from the New York Times, provided women, and men, with greater protection against governmental gender-based discrimination. In making the argument, this paper initially provides a brief, but essential note on heightened scrutiny in equal protection cases. Next, the paper compares the arguments of Ginsburg and Justice William Brennan, who wrote the opinion of the Court. Finally, the paper explains …

Walking While Muslim, Margaret Chon, Donna E. Arzt

Faculty Articles

In the post-9/11 era, what exactly is meant by race? This essay claims that both domestic civil rights law and international human rights law simultaneously create and obscure racial identity increasingly constructed through Muslim religious identity. The argument unfolds in several parts. First, by analogy to the racial formation process that occurred with the Japanese American community after World War II, we argue that a group's religious identity can contribute to the perception of a group as a racially different and inferior "other." Second, among other elements, religious identity is under-analyzed as a key element of racial formation. Third, post-9/11 …

What You Don't Know Can Hurt You: The Importance Of Information In The Battle Against Environmental Class And Racial Discrimination, Browne C. Lewis

Law Faculty Articles and Essays

People across the country have witnessed the quality of their local environment decline in the name of progress but Lewis argues that tow-income and minority persons have observed the disproportionate placement of environmental hazards in their communities. That disparity has partially resulted from environmental discrimination based upon class and race. Acknowledging unequal treatment of low-income and minority persons has led to the development of the concept of "environmental justice. "

The premise of this Article is that, in order to effectively combat environmental discrimination, people must have access to quality information. Information may be used as a remedial measure. This …

Take What You Can, Give Nothing Back: Judicial Estoppel, Employment Discrimination, Bankruptcy, And Piracy In The Courts, Theresa M. Beiner, Robert B. Chapman

Faculty Scholarship

No abstract provided.

Domesticating The Gerrymander: An Essay On Standards, Fair Representation, And The Necessary Question Of Judicial Will, Luis Fuentes-Rohwer

Articles by Maurer Faculty

The U.S. Supreme Court has moved beyond its cautious intervention in Baker v. Carr and now firmly controls the law of democracy. Yet political gerrymandering questions so understood have traditionally proven difficult for the Court to examine properly. The recent Vieth v. Jubelirer is but a further example of this phenomenon. This Essay situates Vieth within the reapportionment revolution and ultimately concludes that the central question in gerrymandering cases is the question of judicial will and whether the Court will choose to exercise its power. This Essay closes with a cautionary note: in light of the Court's general performance in …

Student Freedom Of Expression: Violent Content And The Safe School Balance, A. Wayne Mackay, Janet Burt-Gerrans

Articles, Book Chapters, & Popular Press

The authors begin with a discussion of of the duality in how children are viewed in both international and domestic law. Children are viewed as both under the protection and authority of adults, at the same time as being rights bearing individuals. Following recognition of the difficult tension created by this duality, these authors focus on its application in the balancing of the safe school environment with student freedom of expression. In particular these authors examine cases and scenarios that highlight the complex relationships that result when student expression contains violent content. This timely examination gives consideration to the contemporary …

True Integration: Advancing Brown's Goal Of Educational Equity In The Wake Of Grutter, Lia Epperson

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Subjective Decisionmaking And Unconscious Discrimination, Melissa Hart

Publications

Unconscious bias is widely recognized as the most pervasive barrier to equal employment opportunity for minorities and women in the workplace today and yet many argue that federal laws prohibiting discrimination do not prohibit unconscious discrimination. This article argues that the law does in fact provide some redress for unconscious discrimination. Title VII may not be a perfect method for attacking unconscious bias, but it is a mistake to assume that it is without potential. The article challenges the assumption commonly held by judges that a finding of discrimination must be preceded by the belief that an employer is lying …

Stepping Through Grutter's Open Doors: What The University Of Michigan Affirmative Action Cases Mean For Race-Conscious Government Decisionmaking, Helen Norton

Publications

In Grutter, a majority of the Court for the first time identified an instrumental justification for race-based government decisionmaking as compelling - specifically, a public law school's interest in attaining a diverse student body. Grutter not only recognized the value of diversity in higher education, but left open the possibility that the Court might find similar justifications compelling as well.

The switch to instrumental justifications for affirmative action appears a strategic response to the Court's narrowing of the availability of remedial rationales. A number of thoughtful commentators, however, have reacted to this trend with concern and even dismay, questioning …

The Constitution Glimpsed From Tule Lake, Patrick O. Gudridge

Articles

No abstract provided.

Retaliation, Deborah Brake

Articles

This Article takes a comprehensive look at retaliation and its place in discrimination law. The Article begins by examining current social science literature to understand how retaliation operates as a social practice to silence challenges to discrimination and preserve inequality. Then, using the recent controversy over whether to imply a private right of action for retaliation from a general ban on discrimination as a launching point, the Article theorizes the connections between retaliation and discrimination as legal constructs, and contends that retaliation should be viewed as a species of intentional discrimination. The Article argues that situating retaliation as a practice …

Beyond Breimhorst: Appropriate Accommodation Of Students With Learning Disabilities On The Sat, Nancy Leong

Faculty Publications

No abstract provided.

Introduction: The Enduring Power Of Collective Rights, In Labor Law Stories, Catherine L. Fisk, Laura J. Cooper

Faculty Scholarship

No abstract provided.

Discrimination Against The Unhealthy In Health Insurance, Mary Crossley

Articles

As employers seek to contain their health care costs and politicians create coverage mechanisms to promote individual empowerment, people with health problems increasingly are forced to shoulder the load of their own medical costs. The trend towards consumerism in health coverage shifts not simply costs, but also insurance risk, to individual insureds, and the results may be particularly dire for people in poor health. This Article describes a growing body of research showing that unhealthy people can be expected disproportionately to pay the price for consumerism, not only in dollars, but in preventable disease and disability as well. In short, …

Ending The Exploitation Of The Vulnerable: The Promise Of The Intersection Of American Bioethics, Human Rights, And Health Law, Ruqaiijah Yearby

All Faculty Scholarship

Traditionally, American bioethics has served as a safety net for the rich and powerful, for they are not forced to act as research subjects to obtain access to general health care for themselves or their children. However, American bioethics has failed to protect the vulnerable, i.e. indigent minorities. The vulnerable are not treated the same as the rich. They do not have access to health care. They are exploited in clinical trials that promise monetary gain or access to health care and their autonomy rights are often ignored. Some of the vulnerable most affected by these disparities are African-Americans. African-Americans …

The Effects Of Jury Ignorance About Damage Caps: The Case Of The 1991 Civil Rights Act, Rebecca E. Hollander-Blumoff, Matthew T. Bodie

All Faculty Scholarship

The 1991 Civil Rights Act revolutionized employment discrimination litigation by allowing for compensatory and punitive damages. At the same time, however, the Act capped those damages and forbade courts from informing jurors about the cap. This Article explores the effects of this imposed secrecy on the jury deliberation process and on the jury system itself. First, our article delves into the wealth of psychological literature about jury decision-making to determine how disclosing or hiding the caps might affect the jury's damage calculations. We explore decision-making biases and heuristics that might systematically affect the jurors' judgment about damage awards, and discuss …

Is It Too Late For Title Vi Enforcement? - Seeking Redemption Of The Unequal United States' Long Term Care System Through International Means, Ruqaiijah A. Yearby

All Faculty Scholarship

Permeating every facet of life including health care, racial segregation has been a part of the history of the United States since its creation. In fact, the history of African-Americans has been one of tragedy, laced with the hope of equality. This tragedy is a result of three hundred years of slavery, one hundred years of the limited freedom of segregation, three years of the promise of equality granted from the civil rights struggle, and thirty-seven years of resegregation through white flight and institutional racism. Hence, African-Americans have been fighting for the right to freedom, equality, and human dignity for …

Resurrecting Comity: Revisiting The Problem Of Non-Uniform Marriage Laws, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

This paper addresses the age-old problem of interstate marriage recognition, raised anew by the legalization of same-sex marriage in Massachusetts. The problem, in a nutshell, is whether and when a state should recognize a marriage validly celebrated elsewhere when its own laws would have prohibited the marriage from taking place.

Non-uniform marriage laws and the conflicts they engender are not new. To the contrary, states historically disagreed about many aspects of domestic relations laws, and in particular about marriage prohibitions. Conflicts arose when couples married in one state and then sought recognition of their union in a state that would …

The Allure And Danger Of Practicing Law As Taxonomy, Marcia L. Mccormick

All Faculty Scholarship

In this article, I hope to contribute to the ongoing debate on how our society treats the problem of discrimination. Many scholars have criticized the types of antidiscrimination statutes we have enacted as well as the ways in which the courts have interpreted those laws. While I agree with many of these critiques, rather than tackle those very large issues at the outset, I focus on the test the courts currently use to evaluate the evidence to determine whether an inference can be made that discrimination has occurred. I argue that lawyers and courts have become so caught up in …

The True Legacy Of Rosa Parks: Beyond The Civil Rights Movement, Patricia A. Broussard

Journal Publications

Rosa Parks died on October 24; her funeral was today. No doubt, there will be a flurry of well-deserved posthumous tributes and honors bestowed upon her. And no doubt, some will feel shame over the manner in which her sacrifices were depicted in later years - for instance, by the group OutKast. (Parks sued the group's record company, in Rosa Parks v. Laface Records, over the unauthorized use of her name in a song title). The story of Mrs. Parks's key role in the "modern-day" civil rights movement has been told and will be retold innumerable times. She has already …