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Income Tax Discrimination: Still Stuck In The Labyrinth Of Impossibility, Michael J. Graetz, Alvin C. Warren Jr. 2011 Columbia Law School

Income Tax Discrimination: Still Stuck In The Labyrinth Of Impossibility, Michael J. Graetz, Alvin C. Warren Jr.

Faculty Scholarship

In previous articles, we have argued that the European Court of Justice's reliance on nondiscrimination as the basis for its decisions did not (and could not) satisfy commonly accepted tax policy norms, such as fairness, administrability, economic efficiency, production of desired levels of revenues, avoidance of double taxation, fiscal policy goals, inter-nation equity, and so on. In addition, we argued that the court cannot achieve consistent and coherent results by requiring nondiscrimination in both origin and destination countries for transactions involving the tax systems of more than one member state. We demonstrated that -in the absence of harmonized income ...


The Last Plank: Rethinking Public And Private Power To Advance Fair Housing, Olatunde C.A. Johnson 2011 Columbia Law School

The Last Plank: Rethinking Public And Private Power To Advance Fair Housing, Olatunde C.A. Johnson

Faculty Scholarship

The persistence of housing discrimination more than forty years after the passage of the federal Fair Housing Act (FHA) of 19681 is among the most intractable civil rights puzzle. For the most part, this puzzle is not doctrinal: the Supreme Court has interpreted the FHA only a handful of times over the last two decades-a marked contrast to frequent doctrinal contestations over the statutory scope and constitutionality of federal laws governing employment discrimination and voting rights.2 Instead, the central puzzle is the inefficacy of the FHA's enforcement regime given that, in formal terms, the regime is the ...


Faith In The Law – The Role Of Legal Arrangements In Religion-Based Conflicts Involving Minorities , Ofrit Liviatan 2011 Boston College Law School

Faith In The Law – The Role Of Legal Arrangements In Religion-Based Conflicts Involving Minorities , Ofrit Liviatan

Boston College International and Comparative Law Review

This Article examines the conflict-management role conferred upon the law within Western liberal democracies in the context of cultural tensions involving religious minorities. The Article finds that a threatened hegemonic Christian identity and secular illiberal sentiments disguised in liberal narratives often motivated legislative and judicial actions curtailing the freedom of religious minorities in leading liberal democracies. Based on these findings, this Article challenges the shortcomings of existing liberal scholarship to account for the potential bias presented in the liberal preference to facilitate cultural conflicts through legal means. Yet, the Article suggests that law’s limitations as a neutral vehicle in ...


Slavery And The Law In Atlantic Perspective: Jurisdiction, Jurisprudence, And Justice, Rebecca J. Scott 2011 University of Michigan Law School

Slavery And The Law In Atlantic Perspective: Jurisdiction, Jurisprudence, And Justice, Rebecca J. Scott

Articles

The four articles in this special issue experiment with an innovative set of questions and a variety of methods in order to push the analysis of slavery and the law into new territory. Their scope is broadly Atlantic, encompassing Suriname and Saint-Domingue/Haiti, New York and New Orleans, port cities and coffee plantations. Each essay deals with named individuals in complex circumstances, conveying their predicaments as fine-grained microhistories rather than as shocking anecdotes. Each author, moreover, demonstrates that the moments when law engaged slavery not only reflected but also influenced larger dynamics of sovereignty and jurisprudence.


Religion And Race: The Ministerial Exception Reexamined, Ian C. Bartrum 2011 University of Nevada, Las Vegas -- William S. Boyd School of Law

Religion And Race: The Ministerial Exception Reexamined, Ian C. Bartrum

Scholarly Works

This essay is a contribution to the Northwestern University Law Review's colloquy on the ministerial exception, convened following the Supreme Court's decision to hear arguments in Hosanna-Tabor v. EEOC.

The author takes the opportunity to consider the (sometimes) competing constitutional values of racial equality and religious freedom. The author offers historical, ethical, and doctrinal arguments for the position that race must trump religion as a constitutional value when the two come into conflict. With this in mind, the author suggests that the ministerial exception should not shield religious employers from anti discrimination suits brought on the basis of ...


Smith And Women's Equality, Leslie C. Griffin 2011 University of Nevada, Las Vegas -- William S. Boyd School of Law

Smith And Women's Equality, Leslie C. Griffin

Scholarly Works

No abstract provided.


Qualified Immunity Dissonance In The Sixth Circuit: Why We Must Return To Reasonableness, Matt Chiricosta 2011 Cleveland State University

Qualified Immunity Dissonance In The Sixth Circuit: Why We Must Return To Reasonableness, Matt Chiricosta

Cleveland State Law Review

The Sixth Circuit's inconsistent jurisprudence threatens the delicate balance that the defense aims to strike between protecting citizens from having their constitutional rights violated on the one hand and protecting government officials from undue interference with their official duties on the other. This Note critiques the medical emergency-law enforcement response capacity the Sixth Circuit has set forth to help adjudicate qualified immunity claims and suggests improvements the court can make to its qualified immunity jurisprudence.In Part II, I briefly trace the Supreme Court's development of the doctrine and outline the doctrine's policy goals. In Part III ...


Showcasing: The Positive Spin, Katharine T. Bartlett 2011 Duke Law School

Showcasing: The Positive Spin, Katharine T. Bartlett

Faculty Scholarship

This Commentary outlines the positive case for showcasing diversity. Patrick Shin and Mitu Gulati criticize showcasing on the grounds that appointing women and minorities to board directorships is unreliable as a sign of true commitment to diversity and, further, that showcasing is detrimental to women and minorities because it treats them as objects or “prized trophies.” Drawing on social psychology, this Commentary highlights the mechanisms through which showcasing, despite the negative features emphasized by Shin and Gulati, also reinforces diversity values and strengthens the existing societal consensus in favor of diversity.


Justice Kennedy To The Rescue?, Luis Fuentes-Rohwer 2011 Indiana University Maurer School of Law

Justice Kennedy To The Rescue?, Luis Fuentes-Rohwer

Articles by Maurer Faculty

No abstract provided.


Fatal Invention: How Science, Politics, And Big Business Re-Create Race In The Twenty-First Century, Dorothy E. Roberts 2011 University of Pennsylvania

Fatal Invention: How Science, Politics, And Big Business Re-Create Race In The Twenty-First Century, Dorothy E. Roberts

Faculty Scholarship

Fatal Invention documents the emergence of a new biopolitics in the United States that relies on re-inventing race in biological terms using cutting-edge genomic science and biotechnologies. Some scientists are defining race as a biological category written in our genes, while the biotechnology and pharmaceutical industries convert the new racial science into race-based products, such as race-specific medicines, ancestry tests, and DNA forensics, that incorporate false assumptions of racial difference at the genetic level. The genetic understanding of race calls for technological responses to racial disparities while masking the continuing impact of racism in a supposedly post-racial society. Instead, I ...


The Social Reconstruction Of Race & Ethnicity Of The Nation's Law Students: A Request To The Aba, Aals, And Lsac For Changes In Reporting Requirements, Kevin D. Brown, Tom I. Romero II 2011 Indiana University Maurer School of Law

The Social Reconstruction Of Race & Ethnicity Of The Nation's Law Students: A Request To The Aba, Aals, And Lsac For Changes In Reporting Requirements, Kevin D. Brown, Tom I. Romero Ii

Articles by Maurer Faculty

This article is extraordinarily timely as it responds directly to new rules formulated by the Department of Education (DOE) that require law schools to gather and report upon the racial and ethnic makeup of its student body. We argue that these new rules fail to be responsive to the dramatic changes in the meaning and utility of racial and ethnic categories. In turn, such changes threaten to negatively impact individuals from communities that are both underrepresented in the nation’s law schools and victims of the longest and most extreme histories of discrimination in the U.S. Accordingly, our article ...


Group Rights: A Defense, David Ingram 2011 Loyola University Chicago

Group Rights: A Defense, David Ingram

Philosophy: Faculty Publications and Other Works

Human rights belong to individuals in virtue of their common humanity. Yet it is an important question whether human rights entail or comport with the possession of what I call group-specific rights (sometimes referred to as collective rights), or rights that individuals possess only because they belong to a particular group. The Universal Declaration of Human Rights (UDHR) says they do. Article 15 asserts the right to nationality, or citizenship. Unless one believes that the only citizenship compatible with a universal human rights regime is cosmopolitan citizenship in a world state – a conception of citizenship that is not countenanced by ...


Stimulus And Civil Rights, Olatunde C.A. Johnson 2011 Columbia Law School

Stimulus And Civil Rights, Olatunde C.A. Johnson

Faculty Scholarship

Federal spending has the capacity to perpetuate racial inequality, not simply through explicit exclusion, but through choices made in the legislative and institutional design of spending programs. Drawing on the lessons of New Deal and postwar social programs, this Essay offers an account of the specificfeatures offederal spending that give it salience in structuring racial arrangements. Federal spending programs, this Essay argues, are relevant in structuring racial inequality due to their massive scale, their creation of new programmatic and spending infrastructures, and the choices made in these programs as to whether to impose explicit inclusionary norms on states and localities ...


Making Willing Bodies: Manufacturing Consent Among Prisoners And Soldiers, Creating Human Subjects, Patriots, And Everyday Citizens - The University Of Chicago Malaria Experiments On Prisoners At Stateville Penitentiary, Bernard E. Harcourt 2011 Columbia Law School

Making Willing Bodies: Manufacturing Consent Among Prisoners And Soldiers, Creating Human Subjects, Patriots, And Everyday Citizens - The University Of Chicago Malaria Experiments On Prisoners At Stateville Penitentiary, Bernard E. Harcourt

Faculty Scholarship

In March 1944, doctors at the University of Chicago began infecting volunteer convicts at Stateville Prison with a virulent strand of malaria to test the effectiveness and side-effects of potent anti-malarial drugs. According to Dr. Alf Alving, the principal investigator, malaria "was the number-one medical problem of the war in the Pacific" and "we were losing far more men to malaria than to enemy bullets." This refrain would rehearse one of the most productive ways of speaking about prisoner experimentation. The Stateville prisoners became human once again and regained their citizenship and political voice by sacrificing their bodies to the ...


The Curious Relationship Of Marriage And Freedom, Katherine M. Franke 2011 Columbia Law School

The Curious Relationship Of Marriage And Freedom, Katherine M. Franke

Faculty Scholarship

This essay explores why and how today’s marriage equality movement for same-sex couples might benefit from lessons learned by African Americans when they too were allowed to marry for the first time in the immediate post-Civil War era. Why has the right to marry, rather than say, employment rights, educational opportunity or political participation, emerged as the preeminent vehicle by and through which the freedom, equality and dignity of gay men and lesbians is being fought in the present moment. Why marriage? In what ways are the values, aspirations, and even identity of an oppressed community shaped when they ...


The 'Inexorable Zero', Bert I. Huang 2011 Columbia Law School

The 'Inexorable Zero', Bert I. Huang

Faculty Scholarship

For over a quarter century, legal arguments about segregation, discrimination, and affirmative action have invoked the image of the "inexorable zero" - complete absence of any women or minorities at a given school or workplace. Yet as evocative as the phrase might be, its precise doctrinal import has remained elusive. This Note recounts the original use of the concept in a landmark Title VII case and documents a current circuit split. It then articulates theoretical grounds upon which the concept’s intuitive appeal might rest. Finally, it excavates a further, more complex rationale that the Supreme Court may have contemplated at ...


Tragic Rights: The Rights Critique In The Age Of Obama, Robin West 2011 Georgetown University Law Center

Tragic Rights: The Rights Critique In The Age Of Obama, Robin West

Georgetown Law Faculty Publications and Other Works

This article discusses the absence of the Rights Critique in the modern era, and its impact on the current formulation of rights in America. The three-pronged rights critique-–that U.S. constitutional rights politically insulate and valorize subordination, legitimate and thus perpetrate greater injustices than they address, and socially alienate us from community--was nearly ubiquitous in the 1980s. Since that time, it has largely disappeared, which in this author’s view is an unfortunate development.

The rights critique continues to be relevant today, because Obama-era rights continue to subordinate, legitimate, and alienate. However, these rights do more than just exaggerate ...


Paper Thin: Freedom And Re-Enslavement In The Diaspora Of The Haitian Revolution, Rebecca J. Scott 2011 University of Michigan Law School

Paper Thin: Freedom And Re-Enslavement In The Diaspora Of The Haitian Revolution, Rebecca J. Scott

Articles

In the summer of 1809 a flotilla of boats arrived in New Orleans carrying more than 9,000 Saint-Domingue refugees recently expelled from the Spanish colony of Cuba. These migrants nearly doubled the population of New Orleans, renewing its Francophone character and populating the neighborhoods of the Vieux Carre and Faubourg Marigny. At the heart of the story of their disembarkation, however, is a legal puzzle. Historians generally tell us that the arriving refugees numbered 2,731 whites, 3,102 free people of color, and 3,226 slaves. But slavery had been abolished in Saint-Domingue by decree in 1793, and ...


The Iqbal Effect: The Impact Of New Pleading Standards In Employment And Housing Discrimination Litigation, Raymond H. Brescia 2011 Albany Law School

The Iqbal Effect: The Impact Of New Pleading Standards In Employment And Housing Discrimination Litigation, Raymond H. Brescia

Kentucky Law Journal

No abstract provided.


Class Actions At The Crossroads: An Answer To Wal-Mart V. Dukes, Suzette M. Malveaux 2011 University of Colorado Law School

Class Actions At The Crossroads: An Answer To Wal-Mart V. Dukes, Suzette M. Malveaux

Articles

The Supreme Court has recently decided to hear argument in the largest private-employer civil rights case in American history, Dukes v. Wal-Mart Stores, Inc. This historic case involves up to 1.5 million women suing Wal-Mart, one of the largest companies in the world, for alleged gender discrimination in pay and promotions, in violation of Title VII of the Civil Rights Act of 1964. Like many employees who challenge companywide employment discrimination, the plaintiffs in Dukes brought their case as a class action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure and sought injunctive and ...


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