Law Commons^™

A Beautiful Lie: Exploring Rhinelander V. Rhinelander As A Formative Lesson On Race, Identity, Marriage, And Family, Angela Onwuachi-Willig

Faculty Scholarship

This essay explores the past and present social meanings of what occurred during a 1920s New York trial court case, Rhinelander v. Rhinelander. Rhinelander involved a claim by Leonard Kip Rhinelander, a white socialite, who filed for annulment of his marriage to Alice Beatrice Jones, a woman of racially ambiguous heritage. Leonard claimed that Alice committed fraud that went to the essence of their marriage by failing to inform him that she was of "colored" blood. According to legend, Leonard and Alice were madly in love, and Leonard filed the lawsuit only because of his father, who refused to accept …

The Troublemaker's Friend: Retaliation Against Third Parties And The Right Of Association In The Workplace, Alex B. Long

Scholarly Works

Title VII theoretically provides virtually unlimited protection from retaliation for one kind of workplace troublemaker - the employee who files a formal charge of discrimination. However, the protection from retaliation enjoyed by such individuals is significantly less when the troublemaker resorts to an employer's internal process for resolving discrimination complaints prior to the filing of a formal charge of discrimination. And what of the coworker who assists the troublemaker in pursuing such an internal grievance? Or the coworker who simply has some type of relationship with the troublemaker who files a formal charge of discrimination? What protection from retaliation do …

Who Says You're Disabled? The Role Of Medical Evidence In The Ada Definition Of Disability, Deirdre M. Smith

Faculty Publications

The Americans with Disabilities Act (ADA), enacted by Congress seventeen years ago, offered disabled people a hope of equality and access that has not been fulfilled. ¹ Court decisions halt an overwhelming majority of claims, particularly in the employment context, at the summary judgment stage. ² A key mechanism for fencing out disabled people's claims is the pernicious requirement, based upon the very construction of disability that the ADA's proponents aimed to dispel, that medical evidence is required as a threshold matter to demonstrate that the plaintiff is entitled to seek protection under the statute. ³ The medical evidence requirement …

Volunteer Discrimination, Angela Onwuachi-Willig

Faculty Scholarship

Part I of this Essay describes the new NBA dress code and then lays the framework for the discussions that ensued after the implementation of the code. Part II examines how some Blacks' defense of the allegedly discriminatory NBA appearance policy does not in itself negate claims of racial discrimination. In so doing, this Part explicates the various ways in which Blacks are pressured to perform their racial identity in order to advance in society - in particular, the ways in which outsiders often must conform to traditional standards of appearance and must distinguish themselves from the "bad outsiders" or …

Recreating Diversity In Employment Law By Debunking The Myth Of The Mcdonnell Douglas Monolith, Sandra F. Sperino

Faculty Articles and Other Publications

The McDonnell-Douglas framework is one of the primary methods used by courts to evaluate discrimination claims based on circumstantial evidence. Although McDonnell-Douglas often is referred to as a singular test, it is actually a collection of different tests gathered rather deceptively under one name. Over the years, federal courts considering state law claims have increasingly applied the McDonnell-Douglas framework to these state claims, without considering whether the same result would occur under state law. The federal courts' rather monolithic view of McDonnell-Douglas is choking debate on important issues of employment law and denying states the ability to weigh in on …

Friday Night Lite: How De-Racialization In The Motion Picture Friday Night Lights Disserves The Movement To Eradicate Racial Discrimination From American Sport, N. Jeremi Duru

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Why Do Landlords Still Discriminate (And What Can Be Done About It)?, Robert G. Schwemm

Law Faculty Scholarly Articles

Let's say you have a serious, though not life-threatening, medical condition, such as a non-malignant growth in your back that causes considerable pain and impairs your ability to walk. At first, your doctor tells you there is no cure, but then one day, a new drug specifically designed to eliminate this kind of problem is approved. You take this drug, but notice no change. With your doctor's encouragement, you continue to take the drug, hoping that its cumulative effect will achieve the desired result. Twenty years go by with no relief. Then, your doctor tells you that a much stronger …

Hearing: Civil Rights Division Oversight, Helen L. Norton

Congressional Testimony

No abstract provided.

Race And Wealth Disparity: The Role Of Law And The Legal System, Beverly I. Moran, Stephanie M. Wildman

Vanderbilt Law School Faculty Publications

Many believe that the legal system has achieved racial neutrality because statutes and regulations do not mention race. They do not view law and the legal system as one way that American society polices race and wealth disparities. Because American law seems removed from race and wealth concerns, legal workers see no place for such considerations in their education or practice.

Although the legal system has aspired to neutrality and equality, racialized wealth inequality has resulted and continues. This article considers the aspiration and shows how equality and neutrality can veil existing wealth inequality. Using examples from judicial decisionmaking and …

Truth Matters: A Call For The American Bar Association To Acknowledge Its Past And Make Reparations To African Descendants, Adjoa A. Aiyetoro

Faculty Scholarship

No abstract provided.

Fighting Discrimination While Fighting Litigation: A Tale Of Two Supreme Courts, Scott A. Moss

Publications

The U.S. Supreme Court has issued an odd mix of pro-plaintiff and pro-defendant employment law rulings. It has disallowed harassment lawsuits against employers even with failed antiharassment efforts, construed statutes of limitations narrowly to bar suits about ongoing promotion and pay discrimination, and denied protection to public employee internal complaints. Yet the same Court has issued significant unanimous rulings easing discrimination plaintiffs' burdens of proof.

This jurisprudence is often miscast in simple pro-plaintiff or pro-defendant terms. The Court's duality traces to its inconsistent and unaware adoption of competing policy arguments:

Policy 1: Employees must try internal dispute resolution before suing--or …

Race Discrimination And Human Rights Class Actions: The Virtual Exclusion Of Racial Minorities From The Class Action Device, George A. Martinez

Faculty Journal Articles and Book Chapters

In the era of Jim Crow, racial minorities were segregated and excluded from participating in white society. Minorities were segregated in public schools, excluded from public accommodations, excluded from participation on juries, and excluded from living in certain areas. Harkening back to that earlier time, racial minorities now are often excluded from using the class action device to bring civil rights claims.

This paper argues that courts are very tough in how they handle class certification decisions in race discrimination class actions. On the other hand, the courts are quite lenient in how they handle class certification decisions in human …

Exposing Sex Stereotypes In Recent Same-Sex Marriage Jurisprudence, Deborah A. Widiss, Elizabeth Rosenblatt, Douglas Nejaime

Articles by Maurer Faculty

This article examines sex discrimination arguments in recent same-sex marriage cases. Since 1993, when the Hawaii Supreme Court held in Baehr v. Lewin that denying same-sex couples the right to marry could state a claim of sex discrimination, every state high court to consider the issue has rejected the claim. But many recent decisions have in fact relied upon sex-based stereotypes to justify marriage restrictions. These include claims that men and women, simply by virtue of their gender, provide distinct role models for children; that men and women play "opposite" or "complementary" roles within marriage; and that marriage is essential …

There’S Just One Hitch, Will Smith: Examining Title Vii, Race, Casting, And Discrimination On The Fortieth Anniversary Of Loving V. Virginia, Angela Onwuachi-Willig

Faculty Scholarship

In this Symposium Essay, I use Loving v. Virginia as a backdrop for exploring why our society allows, without legal challenge, customer preference or discrimination to unduly influence casting decisions for actors paired in romantic couples in movies and television. In so doing, I examine how existing anti-discrimination law in employment can and should be used to address these improper influences within the entertainment industry. In Part I of the Essay, I first survey the growing practice of casting intraminority couples casting in films and television and examine how such casting, despite its appeal on the surface, may work to …

The Possibility Of Avoiding Discrimination: Considering Compliance And Liability, Melissa Hart

Publications

The gender discrimination class action Dukes v. Wal-Mart Stores, Inc., whose certification was recently affirmed in the Ninth Circuit, presents a large-scale challenge to the company's excessive reliance on subjective judgment in employment decision-making. It is one in a growing number of similar suits, all of which are fundamentally attacks on the continued operation of entrenched gender stereotypes in the allocation of workplace opportunities. The breadth of this aim is one of the strengths of these suits, but it also raises a significant question: because this kind of litigation targets a broad social phenomenon, is it reasonably possible to …

Perceiving Subtle Sexism: Mapping The Social-Psychological Forces And Legal Narratives That Obscure Gender Bias, Deborah L. Brake

Articles

This essay seeks to explain the Davis v. Monroe County Board of Education case as an interpretation of discrimination that notably and correctly focuses on how institutions cause sex-based harm, rather than on whether officials within chosen institutions act with a discriminatory intent. In the process, I discuss what appears to be the implicit theory of discrimination underlying the Davis decision: that schools cause the discrimination by exacerbating the harm that results from sexual harassment by students. I then explore the significance of the deliberate indifference requirement in this context, concluding that the standard, for all its flaws, is distinct …

Race, Rights, And The Thirteenth Amendment: Defining The Badges And Incidents Of Slavery, William M. Carter Jr.

Articles

The Supreme Court has held that the Thirteenth Amendment prohibits slavery or involuntary servitude and also empowers Congress to end any lingering "badges and incidents of slavery." The Court, however, has failed to provide any guidance as to defining the badges and incidents of slavery when Congress has failed to identify a condition or form of discrimination as such. This has led the lower courts to conclude that the judiciary's role under the Thirteenth Amendment is limited to enforcing only the Amendment's prohibition of literal enslavement.

This article has two primary objectives. First, it offers an interpretive framework for defining …

Derrick Bell's Narratives As Parables, George H. Taylor

Articles

Use of the narrative form in law and legal analysis remains controversial, especially by advocates of critical race theory. Critics maintain that narratives can distort if they are not sufficiently based on empirical fact or reason. Narratives, the claim goes, must be evaluated on the basis of objective standards. My Article argues that this posture critical of narrative is mistaken. I contend that to comprehend how narratives should be interpreted, their literary character must first be understood.

The Article examines the narratives of Derrick Bell, the preeminent critical race and narrative scholar, and maintains that Bell's narratives should be read …

Local Governance In Bangladesh: Towards A “Critical Mass” To Combat Discrimination Against Women With Special Reference To India, Afroza Begum

Faculty of Law, Humanities and the Arts - Papers (Archive)

Women’s right to freedom from discrimination is the constitutionally entrenched fundamental right… and is repeatedly guaranteed in a series of legislation in Bangladesh. Bangladesh also assumes affirmative obligations to respect and ensure this right through ratifying over a dozen international human rights instruments. Despite that fact, discrimination persists in a pervasive form to deny women’s equal rights in legislative offices…, and women are unjustifiably deprived of their lawful rights and privileges….Legal initiatives and women’s activism across nations have forced to significant modifications in policies of political parties and laws to redress women’s meagre status in governance. Drawing upon this insight, …

Majority Politics And Race Based Remedies, Darren L. Hutchinson

Faculty Articles

This Essay applies the principles of social movement theory and analyzes the legal status of race-based remedies. Many scholars have debated the constitutionality and efficacy of affirmative action, the appropriateness of race-consciousness (from legal and social perspectives) and the legitimacy of structural judicial remedies for various types of discrimination. This paper will add to this literature by demonstrating the influence of conservative race politics and ideology on Court doctrine concerning affirmative action and other race-based remedies. In particular, this Essay will demonstrate that, consistent with broader political trends, the Court disfavors governmental usage of race as a remedy for discrimination …

Striving For Equality, But Settling For The Status Quo: Is Title Vi More Illusory Than Real?, Ruqaiijah Yearby

All Faculty Scholarship

A plethora of empirical studies, such as the Institute of Medicine’s Unequal Treatment report, have shown that racial inequities in health care continue at the same level as in the Jim Crow Era. Innumerable reasons have been offered to explain the continuation of these health inequities, including racial discrimination. Congress enacted Title VI of the Civil Rights Act of 1964 to put an end to racial discrimination in health care, but it still persists. Given the regulation and enforcement mechanisms established under Title VI explicitly aimed at remedying racial discrimination such as that directed at elderly African-Americans it is unbelievable …

Not Like The South? Regional Variation And Political Participation Through The Lens Of Section 2, Ellen D. Katz

Book Chapters

Congress voted last summer to reauthorize the expiring provisions of the Voting Rights Act. Among the reauthorized provisions is the Section 5 preclearance process, which requires "covered" jurisdictions to obtain federal approval before implementing changes to their voting laws. It is widely assumed that the reauthorization of Section 5 will survive constitutional scrutiny only if the record Congress amassed to support the statute documents pervasive unconstitutional conduct in covered jurisdictions for which preclearance offers a remedy. This paper takes issue with that assumption, arguing that precedent requiring such a record for new congressional legislation enforcing civil rights ought not apply …

Mission Accomplished?, Ellen D. Katz

Articles

My study of voting rights violations nationwide suggests that voting problems are more prevalent in places “covered” by the Act than elsewhere. Professor Persily’s careful and measured defense of the renewed statute posits that this evidence is the best available to support reauthorization. The evidence matters because if, as critics charge, the regional provisions of the Voting Rights Act (VRA) are no longer needed, minority voters should confront fewer obstacles to political participation in places where additional federal safeguards protect minority interests than in places where these safeguards do not operate. In fact, minority voters confront more.

Reviving The Right To Vote, Ellen D. Katz

Articles

Losers in partisan districting battles have long challenged the resulting districting plans under seemingly unrelated legal doctrines. They have filed lawsuits alleging malapportionment, racial gerrymandering, and racial vote dilution, and they periodically prevail. Many election law scholars worry about these lawsuits, claiming that they needlessly "racialize" fundamentally political disputes, distort important legal doctrines designed for other purposes, and provide an inadequate remedy for a fundamentally distinct electoral problem. I am not convinced. This Article argues that the application of distinct doctrines to invalidate or diminish what are indisputably partisan gerrymanders is not necessarily problematic, and that the practice may well …

Income And Career Satisfaction In The Legal Profession: Survey Data From Indiana Law School Graduates, Jeffrey E. Stake, Kenneth G. Dau-Schmidt, Kaushik Mukhopadhaya

Articles by Maurer Faculty

This article presents data on graduates of a law school located at a large, midwestern public university. It presents responses to survey questions relating to various personal and job characteristics, including income from the practice of law and career satisfaction. It compares the responses across various demographic groups, including type of practice, gender, race, and ethnicity. We find that lawyers in large private law firms make more money than lawyers in small private practices, who, in turn, make more than those in government or public interest positions. Career satisfaction is greatest for lawyers in corporate counsel, public interest, and government …