Law Commons^™

The Political Economy Of Corporate Exit, Susan S. Kuo, Benjamin Means

Vanderbilt Law Review

Critics contend that corporations subvert democracy by using their economic resources to lobby for corporate-friendly policies and to elect accommodating politicians.' Those who take a more sanguine view-notably, a majority of the Supreme Court-reject the claim that corporate dollars corrupt the political process. Yet, there is general agreement that corporate political activity includes financial contributions, lobbying efforts, participation in trade groups, and political advertising, all of which give corporations a "voice" in public decisionmaking.

This Essay contends that the accepted definition of corporate political activity is too narrow and overlooks the importance of "exit." When faced with objectionable laws or …

Less Is More, Jennifer B. Shinall

Vanderbilt Law School Faculty Publications

Eradicating discrimination is a lofty goal, ard since the second half of the twentieth century, the United States has largely relied upon the legal system to achieve this goal. Yet a great deal of scholarship suggests that the legal system may not always do a credible job. Scholars have documented multiple instances of discrimination laws' inaccessibility to discrimination victims individually and inability to improve the labor market prospects of victims as a whole. Still missing from the literature, however, is an assessment of what separates effective discrimination laws from ineffective ones. This Article fills this gap, using both qualitative and …

Contextualizing Gay‐Straight Alliances: Student, Advisor And Structural Factors Related To Positive Youth Development Among Members, Matthew P. Shaw

Vanderbilt Law School Faculty Publications

Gay-straight alliances (GSAs) may promote resilience. Yet, what GSA components predict well-being? Among 146 youth and advisors in 13 GSAs (58% lesbian, gay, bisexual, or questioning; 64% White; 38% received free/reduced-cost lunch), student (demographics, victimization, attendance frequency, leadership, support, control), advisor (years served, training, control), and contextual factors (overall support or advocacy, outside support for the GSA) that predicted purpose, mastery, and self-esteem were tested. In multilevel models, GSA support predicted all outcomes. Racial/ethnic minority youth reported greater well-being, yet lower support. Youth in GSAs whose advisors served longer and perceived more control and were in more supportive school contexts …

Toward A Definitive History Of Griggs V. Duke Power Co., David J. Garrow

Vanderbilt Law Review

When Griggs v. Duke Power Co. was unanimously handed down by the U.S. Supreme Court on March 8, 1971, the decision did not draw prominent headlines. The New York Times accorded the ruling only a two-sentence summary on page twenty-one, and the Wall Street Journal gave it modest attention on page four. The Washington Post did give the decision front-page coverage, but Gillette v. United States, a Selective Service Act case, was awarded a prominent, top-of-the-page, two-column headline while Griggs received secondary attention. Notwithstanding how modest the contemporaneous news coverage was, knowledgeable judges, scholars, and litigators quickly acknowledged how Griggs …

Black And Brown Coalition Building During The Post-Racial Obama Era, Karla M. Mckanders

Vanderbilt Law School Faculty Publications

This essay explores how the past Civil Rights Movement and discrimination against persons of color, mainly Latinos and African Americans, can help to address current forms of discrimination in our country. In particular, since the election of the first African American President, who also has immigrant parents, many people have claimed that we have reached a “post-racial” America. In the new post-racial America, proponents claim that the pre-Civil Rights Movement racial caste system of the sixties has been eradicated. In this context, this essay seeks to explore whether there is any link between the past experiences of African Americans with …

Skin Color Discrimination And Immigrant Pay, Joni Hersch

Vanderbilt Law School Faculty Publications

In "Profiling the New Immigrant Worker: The Effects of Skin Color and Height," (Journal of Labor Economics 2008), I present strong evidence of a wage penalty to darker skin color among new legal immigrants to the United States. Immigrants with the lightest skin color earn on average 17 percent higher wages than comparable immigrants with the darkest skin color, taking into account Hispanic ethnicity, race, country of birth, education, English language proficiency, family background, and occupation in the source country. This current paper demonstrates that the penalty to darker skin color is not a spurious consequence of omitted variables bias. …

Capitalism And The Tax System: A Search For Social Justice, Beverly I. Moran

Vanderbilt Law School Faculty Publications

America is a country founded on ideas. The Enlightenment was one set of ideas that attended our birth and one Enlightenment belief as strong today as during the revolution is our faith in capitalism and the protection of private property. Yet, the United States tax system manages to violate fundamental capitalist principles as outlined in the extensive writings of Adam Smith - the father of capitalism. Comparing Smith's vision to the current United States tax system reveals many important inconsistencies, particularly the current penchant for simultaneously taxing wages while exempting (or delaying) taxes on wealth and wealth appreciation. The article …

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 …

Constructing Reality: Social Science And Race Cases, Beverly I. Moran

Vanderbilt Law School Faculty Publications

Dred Scott v. Sanford, Plessy v. Ferguson, Brown v. Board of Education and Grutter v. Bollinger all demonstrate that law alone is not enough to make social change. Instead, lawyers interested in social change must understand the nature of the societies that they attempt to persuade and the language that leads judges to change their ways of thinking. In the early 21st century, the language of persuasion is often the language of social science.

Killing The Messenger: The Misuse Of Disparate Impact Theory To Challenge High-Stakes Educational Tests, Jennifer C. Braceras

Vanderbilt Law Review

There are two basic theoretical models for addressing claims of discrimination: disparate treatment and disparate impact. The disparate treatment model attempts to expose and punish intentional discrimination; the disparate impact model seeks to eliminate policies that, while neutral on their face, disproportionately harm members of a protected class. Since 1991, Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment, has expressly permitted plaintiffs to challenge employment practices with a disproportionate impact on certain protected groups. By contrast, Title VI, which prohibits discrimination by federally assisted programs including most schools, does not explicitly authorize claims of …

Homogenized Law: Can The United States Learn From African Mistakes?, Beverly I. Moran

Vanderbilt Law School Faculty Publications

For the last fifty years we have seen an outflow of United States laws to developing countries. This legal outflow has caused problems of enforcement in societies that do not share the values, needs or concerns of the law producing state. Using law reform in Eritrea as a case study, the article asks what will happen in the United States when we become the recipient, rather than the exporter, of maladapted laws that serve the purpose of others instead of serving the unique needs of the United States and its economy.

Setting An Agenda For A Study Of Tax And Black Culture, Beverly I. Moran

Vanderbilt Law School Faculty Publications

At present the Internal Revenue Code unthinkingly reflects many aspects of white culture including historical opportunities that whites have received for wealth building and marriage. In order for the federal tax laws to tax fairly all cultures within the purview of taxation must also find their values reflected. The article sets out how the tax laws might begin to incorporate black culture.

Exploring The Mysteries: Can We Ever Know Anything About Race And Tax?, Beverly I. Moran

Vanderbilt Law School Faculty Publications

The politics behind tax legislation are explored in order to demonstrate that, rather than being surprising or unexpected, it is easily predictable that federal tax laws would favor whites over blacks.

The Elephant And The Four Blind Men: The Burger Court And Its Federal Tax Decisions, Beverly I. Moran, Daniel M. Schneider

Vanderbilt Law School Faculty Publications

All the federal tax decisions of the Burger Court are reviewed in order to demonstrate that widely held beliefs about statutory interpretation in tax cases are misleading. For example, although the literature asserts that courts do not distinguish between legislative and interpretive regulations, the Burger Court did give greater deference to legislative regulations. Further, despite some Justices antipathy to legislative history, the Burger Court relied heavily on legislative histories in making its decisions. In addition, the widely held view that the Court eschews tax controversies was found false when compared to other business areas.

Retroactive Application Of The Civil Rights Act Of 1991, Kristine N. Mcalister

Vanderbilt Law Review

On November 21, 1991, President Bush signed the Civil Rights Act of 1991 (the "Act") into law. The Act contained a general section stating that its provisions should take effect upon enactment. What the Act did not do, however, is indicate whether it should apply to cases pending at the time of its enactment. Since the Act is more favorable to plaintiffs than was its predecessor, plaintiffs whose cases were pending at the time of its enactment have attempted to amend their complaints to benefit from the new Act's provisions. Congress's failure to indicate whether the Act should apply to …

The Death Of The Employer: Image, Text, And Title Vii, D. Marvin Jones

Vanderbilt Law Review

It is incredible that our people's faith could have brought them so much they sought in the law and left them with so little they need in life. It is so unfair. Like the crusaders of old we sought our Holy Grail of "equal opportunity," and having gained it in court decisions and civil rights statutes, found the quest to be for naught. Equal opportunity, far from being the means of achieving racial equality, has become yet another device for perpetuating the racial status quo.'

Title VII of the Civil Rights Act of 1964 was hailed as the most important …

Women's Rights Litigation In The 1980s: More Of The Same?, Tracey E. George, Lee Epstein

Vanderbilt Law School Faculty Publications

In the September 1983 issue of Judicature,Karen O'Connor and Lee Epstein published the results of their examination of the fate of gender-based cases in the U.S. Supreme Court during the 1970s. Overall, they found that the justices were quite receptive to such claims, supporting the women's rights position in about 58 percent of the 63 disputes resolved between the 1969 and 1980 terms.

Quantum Leap: A Black Woman Uses Legal Education To Obtain Her Honorary White Pass, Beverly I. Moran

Vanderbilt Law School Faculty Publications

The nature of privilege is that it is hidden from those who possess it even more than it is hidden from those who lack privilege. Privilege's invisibility to its owner makes privilege difficult to both identify and fight.

Title Vii Remedies: Reinstatement And The Innocent Incumbent Employee, Larry M. Parsons

Vanderbilt Law Review

Congress enacted Title VII of the Civil Rights Act of 19641 twenty-five years ago. Through Title VII Congress sought to remove artificial barriers that limited employment opportunities for minorities. The statute is not limited, however, to prohibiting race discrimination. Title VII directly confronts the problem of discrimination in the workplace by prohibiting employment decisions based on the race, color, religion, sex, or national origin of the employee or applicant. The Act prohibits an employer from favoring one group of employees over another due to irrelevant characteristics and classifications.

Title VII litigation occupies a significant portion of the federal docket. The …

Twenty-Five Years Later: Where Do We Stand On Equal Employment Opportunity Law Enforcement?, David L. Rose

Vanderbilt Law Review

As we near the twenty-fifth anniversary of the passage of the Civil Rights Act of 1964, an assessment of equal employment opportunity law is both natural and appropriate. Prior to 1964, the federal government had imposed equal employment opportunity obligations on itself as well as its contractors and subcontractors. And Title VII of the Act,which mandated such obligations, did not become effective until July 2,1965. Yet the Civil Rights Act of 1964, which was the first comprehensive legislation to address the problems of discrimination in American society, became the cornerstone of modern civil rights law, including equal employment opportunity law.The …

The Reagan Administration's Civil Rights Policy: The Challenge For The Future, William B. Reynolds

Vanderbilt Law Review

The almost twenty years that followed Brown showed real progress toward a color-blind society. That progress, however, lost momentum in the 1970s as many civil rights leaders advanced well-intended, but poorly conceived, policies with the all-too-familiar consequence of dividing people along color lines. In that decade, the bright future of race relations began to dim as discriminatory techniques--mislabelled as"benign" or "affirmative"-reemerged to work their destruction on the hopes of a public anxious to find harmonious, goodwilled solutions to the problems of the past.Today, the struggle continues for a national heritage blind to skin color or ethnic background. The challenge for …

Welcome To The Funhouse: The Incredible Maze Of Modern Divorce Taxation, Beverly I. Moran

Vanderbilt Law School Faculty Publications

Using legislative histories the article shows how the incidence of taxation began to fall more heavily on women in the context of divorce as women's social and political status rose during World War II and that this trend continued through several sets of divorce tax reform.

Book Review, Frank S. Bloch

Vanderbilt Journal of Transnational Law

Competing Equalities is a book that can be read and appreciated at several different levels, as well as for several different purposes, and which demonstrates both the richness of the subject--laws affording preferential treatment to backward classes in India--and the depth of the author's understanding of the material. At the heart of this very impressive book, Professor Galanter examines India's constitutional policy of affirmative action for selected backward classes of citizens, or "compensatory discrimination"--its historical and constitutional origins; its implementation, with particular emphasis on the role of courts in establishing a doctrinal framework for this policy; and its value to …

Burdens Of Pleading And Proof In Discrimination Cases: Toward A Theory Of Procedural Justice, Robert Belton

Vanderbilt Law Review

If the national policy of eliminating discrimination is to be achieved, the courts--to whom the major responsibility for effectuating this goal is delegated--must establish a coherent framework for allocating the burdens of pleading and proof that provides "a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination."' The purpose of this Article, therefore, is to propose such a coherent approach to the allocation of the burdens of pleading and proof in discrimination cases. Towards this end, part II of the Article examines the definitional and operational effect of …

Recent Cases, Vanderbilt Law Review Staff

Vanderbilt Law Review

Civil Rights--Private Education-Racially Discriminatory Admissions Policies Violate Right to Contract Provision of 42 U.S.C. § 1981

Plaintiffs, ' blacks who had been denied admission solely on the basis of their race to two all-white private schools that received no state aid,' sought damages and injunctive relief in federal district court contending that these rejections violated section 1981 of 42 U.S.C. by denying them the same right to contract as enjoyed by white citizens.

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Copyright--Telecommunications--CATV Importation of Distant Television Signals Constitutes Infringement Under Sections One (c) & (d) of the Copyright Act

Plaintiffs,' creators and producers of television programs,brought a …

Post--Brown Private White Schools--An Imperfect Dualism, James E. Smith

Vanderbilt Law Review

Federal courts have endeavored to assure that private discrimination practiced by schools is truly private. In this endeavor, courts have enjoined any significant state involvement as violative of the equal protection clause. The courts have shown no inclination to prohibit the private discrimination itself, however, and it appears unlikely that courts in the near future will take the innovative step of barring discrimination practiced by private white academies.

Current Remedies For The Discriminatory Effects Of Seniority Agreements, Irving Kovarsky

Vanderbilt Law Review

This article focuses primarily upon the remedies that can be used to reconcile the preservation of legitimate objects of a seniority system with equal treatment for black workers. To provide a historical perspective demonstrating the need for these remedies, the article initially will describe the availability of relief against discriminatory seniority agreements under federal labor legislation. The article will then examine available remedies under Title VII of the Civil Rights Act of 1964 and under recent interpretations of the Civil Rights Act of 1866. In the concluding section, possible ways to utilize existing remedies to combat more effectively the discriminatory …

Non-Discrimination In The Sale Or Rental Of Real Property, Edward W. Brooke, T. A. Smedley, Arthur Kinoy, Sam J. Ervin, Jr.

Vanderbilt Law Review

The final version of the Fair Housing title anticipates a more active role for the federal government in the areas not presently covered by state or prior federal law. There is a central distinction between the protection afforded by the Act and the Jones decision. Where the latter recognizes the right of citizens to have their rights adjudicated, the former recognizes that not every victim of discrimination is willing or can afford to undergo the difficulty and expense of private litigation. The Fair Housing Law therefore provides for certain types of federal initiative to guarantee those rights. At the same …

A Comparative Analysis Of Title Viii And Section 1982, T. A. Smedley

Vanderbilt Law Review

Future chroniclers of the struggle for racial justice in the United States may note with some perplexity that the federal government,after a century of cautiously eschewing the power to combat racially discriminatory practices in housing, suddenly in 1968 entered the battle on two fronts. On April 11, The Civil Rights Act of 1968, with its Fair Housing Title, became the law of the land. Just over two months later the Supreme Court in Jones v. Alfred H. Mayer Co.ruled, on the basis of earlier legislation, that refusal to sell housing because of the race of the prospective purchaser is unlawful. …

The Experience Of State Fair Employment Commissions: A Comparative Study, Arnold H. Sutin

Vanderbilt Law Review

Passage of the new federal civil rights law in 1964 might have been expected to decrease the importance of the state fair employment practices (FEP) laws. Congress, however, chose not merely to permit these laws to continue in force to deal with purely local problems,but went further to entrust the primary administration of title VII, the federal fair employment statute, to state agencies where they exist. Thus the experience of these state agencies is of even greater importance now than formerly, for they will perform the day to day work of carrying out our nation's policy to prohibit discrimination in …