Civil Rights and Discrimination Commons^™

Theory Matters—And Ten More Things I Learned From Martha Chamallas About Feminism, Law, And Gender, Deborah L. Brake

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This Festschrift article celebrates the scholarship of Martha Chamallas, Distinguished University Professor and Robert J. Lynn Chair in Law Emeritus of the Ohio State University Moritz College of Law, and one of the most impactful scholars of feminist legal theory and employment discrimination of her generation. Mining the insights of Chamallas’s body of work, the article identifies ten core “lessons” relating to feminism and law drawn from her scholarship and academic career. It then weaves in summaries and synthesis of her published works with discussion of subsequent legal and social developments since their publication. These lessons (e.g., feminism is plural; …

Prison Transfers And The Mootness Doctrine: Disappearing The Rule Of Law In Prisons, Spearit

Book Chapters

Access to the legal system does not come easily for people in prison. There are administrative procedures that must be exhausted; federal legislation like the Prison Litigation Reform Act disadvantages prisoner-petitioners in multiple ways, including by imposing significant limits on damages and creating financial disincentives for lawyers to take on cases. Such onerous legislation and lack of legal aid ensure genuine issues evade redress. Sometimes, however, the law itself is the cause of evasion. Sometimes doctrine prevents the Rule of Law from functioning in prison, particularly when a prison-transfer moots a legal claim. In the most egregious situations, a transfer …

Rules, Tricks And Emancipation, Jessie Allen

Book Chapters

Rules and tricks are generally seen as different things. Rules produce order and control; tricks produce chaos. Rules help us predict how things will work out. Tricks are deceptive and transgressive, built to surprise us and confound our expectations in ways that can be entertaining or devastating. But rules can be tricky. General prohibitions and prescriptions generate surprising results in particular contexts. In some situations, a rule produces results that seem far from what the rule makers expected and antagonistic to the interests the rule is understood to promote. This contradictory aspect of rules is usually framed as a downside …

Ancient Worries And Modern Fears: Different Roots And Common Effects Of U.S. And Eu Privacy Regulation, David Thaw, Pierluigi Perri

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Much legal and technical scholarship discusses the differing views of the United States and European Union toward privacy concepts and regulation. A substantial amount of effort in recent years, in both research and policy, focuses on attempting to reconcile these viewpoints searching for a common framework with a common level of protection for citizens from both sides of Atlantic. Reconciliation, we argue, misunderstands the nature of the challenge facing effective cross-border data flows. No such reconciliation can occur without abdication of some sovereign authority of nations, that would require the adoption of an international agreement with typical tools of international …

Introduction To Feminist Judgments: Rewritten Tax Opinions, Anthony C. Infanti, Bridget J. Crawford

Book Chapters

Could a feminist perspective change the shape of the tax law? Most people understand that feminist reasoning has tremendous potential to affect, for example, the law of employment discrimination, sexual harassment, and reproductive rights. Few people may be aware, however, that feminist analysis can likewise transform tax law (as well as other statutory or code-based areas of the law). By highlighting the importance of perspective, background, and preconceptions on the reading and interpretation of statutes, Feminist Judgments: Rewritten Tax Opinions shows what a difference feminist analysis can make to statutory interpretation. This volume, part of the Feminist Judgments Series, brings …

Victims Of Our Own Success: The Perils Of Obergefell And Windsor, Anthony C. Infanti

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This short essay was spurred by the numerous celebrations of the Supreme Court’s recent decision in Obergefell v. Hodges legalizing same-sex marriage in all fifty states. Though the essay acknowledges the importance of both Obergefell and the Supreme Court’s earlier decision in United States v. Windsor, it highlights the significant perils that these decisions entail for the LGBT community. In the essay, I use tax as a lens for describing some of the lesser-known perils associated with these decisions in the hopes of making those perils more concrete and easily understood by a wide audience of (tax and nontax) …

Evolving Standards Of Domination: Abandoning A Flawed Legal Standard And Approaching A New Era In Penal Reform, Spearit

Articles

This Article critiques the evolving standards of decency doctrine as a form of Social Darwinism. It argues that evolving standards of decency provided a system of review that was tailor-made for Civil Rights opponents to scale back racial progress. Although as a doctrinal matter, evolving standards sought to tie punishment practices to social mores, prison sentencing became subject to political agendas that determined the course of punishment more than the benevolence of a maturing society. Indeed, rather than the fierce competition that is supposed to guide social development, the criminal justice system was consciously deployed as a means of social …

Controversies In Tax Law: A Matter Of Perspective (Introduction), Anthony C. Infanti

Book Chapters

This volume presents a new approach to today’s tax controversies, reflecting that debates about taxation often turn on the differing worldviews of the debate participants. For instance, a central tension in the academic tax literature — which is filtering into everyday discussions of tax law — exists between “mainstream” and “critical” tax theorists. This tension results from a clash of perspectives: Is taxation primarily a matter of social science or social justice? Should tax policy debates be grounded in economics or in critical race, feminist, queer, and other outsider perspectives?

To capture and interrogate what often seems like a chasm …

The House Of Windsor: Accentuating The Heteronormativity In The Tax Incentives For Procreation, Anthony C. Infanti

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Following the Supreme Court’s decision in United States v. Windsor, many seem to believe that the fight for marriage equality at the federal level is over and that any remaining work in this area is at the state level. Belying this conventional wisdom, this essay continues my work plumbing the gap between the promise of Windsor and the reality that heteronormativity has been one of the core building blocks of our federal tax system. Eradicating embedded heteronormativity will take far more than a single court decision (or even revenue ruling); it will take years of work uncovering the subtle …

Big (Gay) Love: Has The Irs Legalized Polygamy?, Anthony C. Infanti

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Within days in December, a federal judge in Utah made news by loosening that state’s criminal prohibition against polygamy and the Attorney General of North Dakota made news by opining that a party to a same-sex marriage could enter into a different-sex marriage in that state without first obtaining a divorce or annulment. Both of these opinions raised the specter of legalized plural marriage. What discussions of these opinions missed, however, is the possibility that the IRS might already have legalized plural marriage in the wake of the U.S. Supreme Court’s decision last June in United States v. Windsor, which …

The Promises Of Freedom: The Contemporary Relevance Of The Thirteenth Amendment, William M. Carter Jr.

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This article, an expanded version of the author's remarks at the 2013 Honorable Clifford Scott Green Lecture at the Temple University Beasley School of Law, illuminates the history and the context of the Thirteenth Amendment. This article contends that the full scope of the Thirteenth Amendment has yet to be realized and offers reflections on why it remains an underenforced constitutional norm. Finally, this article demonstrates the relevance of the Thirteenth Amendment to addressing contemporary forms of racial inequality and subordination.

Legal Punishment As Civil Ritual: Making Cultural Sense Of Harsh Punishment, Spearit

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This work examines mass incarceration through a ritual studies perspective, paying explicit attention to the religious underpinnings. Conventional analyses of criminal punishment focus on the purpose of punishment in relation to legal or moral norms, or attempt to provide a general theory of punishment. The goals of this work are different, and instead try to understand the cultural aspects of punishment that have helped make the United States a global leader in imprisonment and execution. It links the boom in incarceration to social ruptures of the 1950s and 1960s and posits the United States’ world leader status as having more …

The Thirteenth Amendment And Pro-Equality Speech, William M. Carter Jr.

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The Thirteenth Amendment’s Framers envisioned the Amendment as providing federal authority to eliminate the “badges and incidents of slavery.” The freemen and their descendants are the most likely to be burdened with the effects of stigma, stereotypes, and structural discrimination arising from the slave system. Because African Americans are therefore the most obvious beneficiaries of the Amendment’s promise to eliminate the legacy of slavery, it is often mistakenly assumed that federal power to eradicate the badges and incidents of slavery only permits remedies aimed at redressing the subordination of African Americans. While African Americans were the primary victims of slavery …

The Paradox Of Political Power: Post-Racialism, Equal Protection, And Democracy, William M. Carter Jr.

Articles

Racial minorities have achieved unparalleled electoral success in recent years. Simultaneously, they have continued to rank at or near the bottom in terms of health, wealth, income, education, and the effects of the criminal justice system. Social conservatives, including those on the Supreme Court, have latched onto evidence of isolated electoral success as proof of “post-racialism,” while ignoring the evidence of continued disparities for the vast majority of people of color.

This Essay will examine the tension between the Court's conservatives' repeated calls for minorities to achieve their goals through the political process and the Supreme Court's increasingly restrictive "colorblind" …

Documentary Disenfranchisement, Jessie Allen

Articles

In the generally accepted picture of criminal disenfranchisement in the United States today, permanent voting bans are rare. Laws on the books in most states now provide that people with criminal convictions regain their voting rights after serving their sentences. This Article argues that the legal reality may be significantly different. Interviews conducted with county election officials in New York suggest that administrative practices sometimes transform temporary voting bans into lifelong disenfranchisement. Such de facto permanent disenfranchisement has significant political, legal, and cultural implications. Politically, it undermines the comforting story that states’ legislative reforms have ameliorated the antidemocratic interaction of …

The First Principles Of Standing: Privilege, System Justification, And The Predictable Incoherence Of Article Iii, Christian Sundquist

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This Article examines the indeterminacy of standing doctrine by deconstructing recent desegregation, affirmative action, and racial profiling cases. This examination is an attempt to uncover the often unstated meta-principles that guide standing jurisprudence. The Article contends that the inherent indeterminacy of standing law can be understood as reflecting an unstated desire to protect racial and class privilege, which is accomplished through the dogma of individualism, equal opportunity (liberty), and “white innocence.” Relying on insights from System Justification Theory, a burgeoning field of social psychology, the Article argues that the seemingly incoherent results in racial standing cases can be understood as …

Arbitral And Judicial Proceedings: Indistinguishable Justice Or Justice Denied?, Pat K. Chew

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This is an exploratory study comparing the processes and outcomes in the arbitration and the litigation of workplace racial harassment cases. Drawing from an emerging large database of arbitral opinions, this article indicates that arbitration outcomes yield a lower percentage of employee successes than in litigation of these types of cases. At the same time, while arbitration proceedings have some of the same legal formalities (legal representation, legal briefs), they do not have other protective procedural safeguards.

The Thirteenth Amendment And Interest Convergence, William M. Carter Jr.

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The Thirteenth Amendment was intended to eliminate the institution of slavery and to eliminate the legacy of slavery. Having accomplished the former, the Amendment has only rarely been extended to the latter. The Thirteenth Amendment’s great promise therefore remains unrealized.

This Article explores the gap between the Thirteenth Amendment’s promise and its implementation. Drawing on Critical Race Theory, this Article argues that the relative underdevelopment of Thirteenth Amendment doctrine is due in part to a lack of perceived interest convergence in eliminating what the Amendment’s Framers called the “badges and incidents of slavery.” The theory of interest convergence, in its …

Seeing Subtle Racism, Pat K. Chew

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Traditional employment discrimination law does not offer remedies for subtle bias in the workplace. For instance, in empirical studies of racial harassment cases, plaintiffs are much more likely to be successful if they claim egregious and blatant racist incidents rather than more subtle examples of racial intimidation, humiliation, or exclusion. But some groundbreaking jurists are cognizant of the reality and harm of subtle bias - and are acknowledging them in their analysis in racial harassment cases. While not yet widely recognized, the jurists are nonetheless creating important precedents for a re-interpretation of racial harassment jurisprudence, and by extension, employment discrimination …

Negotiating The Situation: The Reasonable Person In Context, Lu-In Wang

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This Essay argues that our understanding of the reasonable person in economic transactions should take into account an individual’s race, gender, or other group-based identity characteristics - not necessarily because persons differ on account of those characteristics, but because of how those characteristics influence the situations a person must negotiate. That is, individuals’ social identities constitute features not just of themselves, but also of the situations they inhabit. In economic transactions that involve social interaction, such as face-to-face negotiations, the actor’s race, gender, or other social identity can affect both an individual actor and those who interact with him or …

Law Enforcement And Intelligence Gathering In Muslim And Immigrant Communities After 9/11, David A. Harris

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Since the attacks of September 11, 2001, law enforcement agencies have actively sought partnerships with Muslim communities in the U.S. Consistent with community-based policing, these partnerships are designed to persuade members of these communities to share information about possible extremist activity. These cooperative efforts have borne fruit, resulting in important anti-terrorism prosecutions. But during the past several years, law enforcement has begun to use another tactic simultaneously: the FBI and some police departments have placed informants in mosques and other religious institutions to gather intelligence. The government justifies this by asserting that it must take a pro-active stance in order …

Myth Of The Color-Blind Judge: An Empirical Analysis Of Racial Harassment Cases, Pat K. Chew, Robert E. Kelley

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This empirical study of over 400 federal cases, representing workplace racial harassment jurisprudence over a twenty-year period, found that judges' race significantly affects outcomes in these cases. African American judges rule differently than White judges, even when we take into account their political affiliation and case characteristics. At the same time, our findings indicate that judges of all races are attentive to relevant facts of the cases but interpret them differently. Thus, while we cannot predict how an individual judge might act, our study results strongly suggest that African American judges as a group and White judges as a group …

Critical Tax Theory: An Introduction, Anthony C. Infanti, Bridget J. Crawford

Book Chapters

Our book Critical Tax Theory: An Introduction (Cambridge University Press 2009) highlights and explains the major themes and methodologies of a group of scholars who challenge the traditional claim that tax law is neutral and unbiased. The contributors to this volume include pioneers in the field of critical tax theory, as well as key thinkers who have sustained and expanded the investigation into why the tax laws are the way they are and what impact tax laws have on historically disempowered groups. This volume will provide an accessible introduction to this new and growing body of scholarship. It will be …

Tax Equity, Anthony C. Infanti

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Simply put, this article stands the traditional concept of tax equity on its head. Challenging the notion that tax equity is an unequivocal good, this article deconstructs the concept of tax equity to reveal the subtle, yet pernicious ways in which it shapes tax policy debates and impinges upon contributions to those debates. The article describes how tax equity, with its narrow focus on income - as the sole relevant metric for judging tax fairness, presupposes a population that is homogeneous along all other lines. Through this insidious homogenization, tax equity performs both a sanitizing and a screening function in …

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

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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 …

Judicial Review Of Thirteenth Amendment Legislation: 'Congruence And Proportionality' Or 'Necessary And Proper'?, William M. Carter Jr.

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The Thirteenth Amendment has relatively recently been rediscovered by scholars and litigants as a source of civil rights protections. Most of the scholarship focuses on judicial enforcement of the Amendment in lawsuits brought by individuals. However, scholars have paid relatively little attention as of late to the proper scope of congressional action enforcing the Amendment. The reason, presumably, is that it is fairly well settled that Congress enjoys very broad authority to determine what constitutes either literal slavery or, to use the language of Jones v. Alfred H. Mayer Co., a "badge or incident of slavery" falling within the Amendment's …

Freeing Racial Harassment From The Sexual Harassment Model, Pat K. Chew

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Judges, academics, and lawyers alike base their legal analyses of workplace racial harassment on the sexual harassment model. Legal principles derived from sexual harassment jurisprudence are presumed to be equally appropriate for racial harassment cases. The implicit assumption is that the social harms and public policy goals of racial harassment and sexual harassment are sufficiently similar to justify analogous scrutiny and remedies. Parties to racial harassment cases cite the reasoning and elements of sexual harassment cases without hesitation, as if racial harassment and sexual harassment are behaviorally and legally indistinguishable.

This Article, however, questions the assumption that there should be …

Unwrapping Racial Harassment Law, Pat K. Chew

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This article is based on a pioneering empirical study of racial harassment in the workplace in which we statistically analyze federal court opinions from 1976 to 2002. Part I offers an overview of racial harassment law and research, noting its common origin with and its close dependence upon sexual harassment legal jurisprudence. In order to put the study's analysis in context, Part I describes the dispute resolution process from which racial harassment cases arise.

Parts II and III present a clear picture of how racial harassment law has played out in the courts - who are the plaintiffs and defendants, …

Dimensions Of Equality In Regulating Assisted Reproductive Technologies, Mary Crossley

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Although concerns about individual liberty and the nature and extent of reproductive freedom have tended to dominate discussions regarding the proliferation of and access to reproductive technologies, questions about the implications of assisted reproductive technologies (ARTs) for equality have also arisen. Despite the high number of invocations of equality in the literature regarding ARTs, to date little effort has been made to comprehensively examine the implications of ARTs for equality. This short Article seeks to highlight the variety of equality issues that ARTs present and to develop a framework for classifying different types of equality issues. Specifically, I suggest that …

Minority Rights, Minority Wrongs, Elena Baylis

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Many of the new democracies established in the last twenty years are severely ethnically divided, with numerous minority groups, languages, and religions. As part of the process of democratization, there has also been an explosion of “national human rights institutions,” that is, independent government agencies whose purpose is to promote enforcement of human rights. But despite the significance of minority concerns to the stability and success of these new democracies, and despite the relevance of minority rights to the mandates of national human rights institutions, a surprisingly limited number of national human rights institutions have directed programs and resources to …