Civil Rights and Discrimination Commons^™

A Tale Of Two Paradigms: Judicial Review And Judicial Duty, Philip A. Hamburger

Faculty Scholarship

What is the role of judges in holding government acts unconstitutional? The conventional paradigm is "judicial review." From this perspective, judges have a distinct power to review statutes and other government acts for their constitutionality. The historical evidence, however, reveals another paradigm, that of judicial duty. From this point of view, presented in my book Law and Judicial Duty, a judge has an office or duty, in all decisions, to exercise judgment in accord with the law of the land. On this understanding, there is no distinct power to review acts for their constitutionality, and what is called "judicial review" …

Making Room For Sexual Orientation And Gender Identity In International Human Rights Law: An Introduction To The Yogyakarta Principles, David Brown

Michigan Journal of International Law

This Note evaluates the Yogyakarta Principles' legal and inspirational capacity to drive the development of human rights law. Part I describes the most common patterns of violence and discrimination suffered around the world on account of sexual orientation and gender identity, and the process by which the Principles' drafters sought to apply principles of international law to stem these outrages by developing a restatement of international human rights law that would leave no doubt as to their illegality. Part II assesses the Principles' claim to accuracy as a restatement of existing, binding international law. It shows that the most basic …

Employment Discrimination In The Ethnically Diverse Workplace, Tanya K. Hernandez

Faculty Scholarship

Racial integration has long been the touchstone of racial progress in the workplace. But integration is only the beginning of the struggle to end racial discrimination. As workplaces become more diverse, they do not necessarily become less racially discriminatory. Diverse workplaces may be characterized by antagonism between people of different races. Interethnic discrimination may exist alongside the discrimination that has traditionally occurred between blacks and whites, i.e., non-white racial and ethnic groups may engage in disparate-treatment employment discrimination actionable under Title VII of the 1964 Civil Rights Act. Examples of interethnic discrimination occur among members of different ethnic subgroups, as …

Hate Speech And The Language Of Racism In Latin America: A Lens For Reconsidering Global Hate Speech Restrictions And Legislation Models, Tanya K. Hernandez

Faculty Scholarship

In Latin America, like many countries in Europe, hate speech is prohibited. Yet Latin America is rarely included in the transnational discussion regarding the regulation of hate speech. Instead, the discourse focuses on a comparison of the advisability of Europe's hate speech regulations and free speech acceptance of hate speech in the United States. As a result, the ability to fundamentally examine the connections between hate speech and inequality, in addition to the most effective legal mechanisms for addressing it, is undermined. It is especially critical to broaden the hate speech debate now that we are seeing an apparent rise …

Forced Eviction And Resettlement In Cambodia: Case Studies From Phnom Penh, Chi Adanna Mgbako, Rijie Ernie Gao, Elizabeth Joynes, Anna Cave, Jessica Mikhailevich

Faculty Scholarship

This Article culminates a project undertaken by the Walter Leitner International Human Rights Clinic (“Leitner Clinic”) at Fordham Law School to examine the effects of land resettlement on communities that were forcibly evicted or are at risk of forced eviction from their homes, and, in particular, the effects of forced evictions on the Boeung Kak Lake community in central Phnom Penh and on people living with HIV/AIDS (“PLWHA”). This Article is based on field research the Leitner Clinic conducted in Cambodia in the fall of 2008. While in Cambodia, the Leitner Clinic interviewed families from four different communities: resettlement camps …

Nieves V. Home Box Office, Inc., Andrew Nieh

NYLS Law Review

No abstract provided.

Introduction: Challenging The School-To-Prison Pipeline, Deborah N. Archer

NYLS Law Review

No abstract provided.

Decriminalizing Students With Disabilities, Dean Hill Rivkin

NYLS Law Review

No abstract provided.

The School-To-Prison Pipeline . . . And Back: Obstacles And Remedies For The Re-Enrollment Of Adjudicated Youth, Jessica Feierman, Marsha Levick, Ami Mody

NYLS Law Review

No abstract provided.

Discrimination Redefined, Ann C. Mcginley

Scholarly Works

In this Response to Professor Natasha Martin's article Pretext in Peril, Professor Ann McGinley argues that courts' retrenchment in cases interpreting Title VII of the 1964 Civil Rights Act results from a narrow definition of discrimination that focuses on conscious, intentional discrimination. Increasingly social science research demonstrates that much disparate treatment occurs as a result of unconscious biases, but the courts' reluctance to consider this social science has led, in many cases, to a literal, narrow definition of “pretext." Moreover, she posits that the recent Supreme Court case of Ricci v. DeStefano redefines discrimination in an ahistorical and acontextual …

In Search Of The Reasonable Woman: Anti-Discrimination Rhetoric In The United States, Francis J. Mootz Iii

Scholarly Works

This article emerged from my participation in a Symposium addressing global perspectives on the topic, "Anti-Discrimination Discourse and Practices," sponsored by The Jean Monnet Chair of European Law at Cagliari University, Sardinia. The article examines the rhetorical development of the "reasonable woman" standard of hostile work environment sexual harassment under Title VII. I argue that the rhetorical framing of the standard has unnecessarily limited its impact, perhaps to the point of undermining its potential to radically revise our understanding of gender discrimination. I suggest how the rhetorical power of the standard might be recovered.

Ricci V. Destefano: A Masculinities Theory Analysis, Ann C. Mcginley

Scholarly Works

This Article applies masculinity theory to explore the aspects Ricci v. Destefano and its political reverberations. Empirical evidence showed that virtually all written tests have a disparate impact on minorities, that a neighboring city had reached less discriminatory results using a different weighting system, and that other fire departments used assessment centers to judge firefighters' qualifications for promotions. While the black male and all female firefighters were made invisible by the case and the testimony, the fact that Ricci's and Vargas' testimony lionized a particularly traditional form of heterosexual masculinity was also invisible. While the command presence required of a …

Reimagining Human Rights Law: Toward Global Regulation Of Transnational Corporations, Rachel J. Anderson

Scholarly Works

This article takes a new look at a perennial question of human rights: how to prevent corporate-related human rights abuses and provide remedies for victims. It argues that transnational corporations require specialized and targeted regulations and laws, and that the conflation of human rights law and international human rights law should be reversed to allow the advancement of other forms of human rights law. It makes two proposals. First, reimagine human rights law and international human rights law as separate categories. Specifically, classify international human rights law as a sub-category of human rights law. This distinction highlights the need to …

Fair Measure Of The Right To Vote: A Comparative Perspective Of Voting Rights Enforcement In A Maturing Democracy, Janai S. Nelson

Faculty Publications

Constitutional text and government action are at times discordant in important ways. This discrepancy occurs in both mature and emerging democracies. It can result in the underenforcement of constitutional norms and implicate the rule of law. When the constitutional norm involves the right to vote, the gap between constitutions and governance inevitably triggers concerns about democracy as well. There is rich and ample debate within American legal scholarship over the effect of the underenforcement of constitutional norms on the scope and meaning of the norm. The arguments generally fall into one of two camps. One strand of argument suggests that …

African-American Entrepreneurs: Integration, Education, And Exclusion, Cheryl L. Wade

Faculty Publications

(Excerpt)

In this Article, I describe some of the subtle, obscure, and hidden challenges that African-American entrepreneurs face by providing the narratives of three African-American businesspeople. Two of the narratives are about African Americans who started businesses in the first half of the twentieth century. Theirs is a success story. Their businesses thrived. Yet, for a variety of reasons, the success these two entrepreneurs enjoyed would be unlikely today, even with the legislation and policy initiatives enacted in the latter half of the twentieth century and aimed at providing access to opportunities for people of color. The third narrative is …

Dispute Resolution Lessons Gleaned From The Arrest Of Professor Gates And "The Beer Summit", Elayne E. Greenberg

Faculty Publications

America's fantasy of a post-racial society was shattered on July 16,2009, when a white police officer arrested Harvard Professor Henry Louis Gates, a well-respected African-American academic, in his own home. Our historical racial fissure was widened. Once again, our thoughts were plagued with tortured images of our system of racialized law enforcement: the torture of Abner Louima, the beating of Rodney King, the killing of Amadou Diallo. Predictably, Americans became further polarized, as they simultaneously blamed and defended responses to racism.

In what was perceived by some as a dramatic and unanticipated turn of events, and perceived by others as …

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 …

The Story Of Bob Jones University V. United States: Race, Religion, And Congress' Extraordinary Acquiescence, Olatunde C.A. Johnson

Faculty Scholarship

On May 25, 1983, the Supreme Court ruled 8-1 that the United States Internal Revenue Service (IRS) had authority to deny tax-exempt status to Bob Jones University, Goldsboro Christian School, and other private and religious schools with racially discriminatory educational policies. The Court relied on the statute’s broad purpose and placed significant weight on Congress’ failure to enact legislation to overturn the IRS policy. A complete account of the legislative history, provided here, both supports and undercuts the Court’s opinion. More importantly, this story provides an account of the dynamic interaction among a Supreme Court critical of racial integration, a …

Close Encounters Of Three Kinds: On Teaching Dominance Feminism And Intersectionality, Kimberlé W. Crenshaw

Faculty Scholarship

I am pleased to be a part of this symposium honoring Catharine MacKinnon's groundbreaking work as a feminist theorist, legal advocate, and global activist. This invitation not only presents the opportunity to examine the interface between dominance theory and intersectionality, but also the occasion to delve further into the vexed rhetorical politics surrounding feminism and antiracism.

By now the fact that there has been a contested relationship between antiracism and feminism is almost axiomatic.1 Yet as with most things that have become matters of common knowledge, there is a risk that generalizations can metastasize into hardened conclusions that obscure rather …

Sexual Rights And State Governance, Katherine M. Franke

Faculty Scholarship

We sit at an interesting juncture in the evolution (in some cases, devolution) of the idea of sexual rights in international law. For at the very moment that we are experiencing a retraction in both domestic and international commitments to rights associated with sexual and reproductive health, we see sexual rights of a less-reproductive nature gaining greater uptake and acceptance. It is the moral hazard associated with perceived gains in the domain of international rights for lesbians and gay men that I want to address today. In the end, the point I want to bring home is that a particular …