Digital Commons Network^™

The Demographic Dilemma In Death Qualification Of Capital Jurors, J. Thomas Sullivan

Faculty Scholarship

No abstract provided.

Introduction: Challenging Authority: A Symposium Honoring Derrick Bell, Jasmine Gonzales Rose

Faculty Scholarship

This is the Introduction to the University of Pittsburgh Law Review’s Challenging Authority: A Symposium Honoring Derrick Bell (L.L.B. 1957). This special symposium issue of the 75th volume of the Law Review celebrates and seeks to continue Bell’s critical inquiry into and fight against racial injustice. It features leading and emerging voices that examine and build upon some of Bell’s most eminent concepts, such as the permanence of racism and Interest Convergence Theory; explore Bell’s impact as a professor and activist; and look ahead to the next wave of critical race study.

The Trouble With Inclusion, Yuvraj Joshi

Faculty Scholarship

No abstract provided.

The Myth Of Strict Scrutiny For Fundamental Rights, James E. Fleming, Linda C. Mcclain

Faculty Scholarship

Dissenting in Lawrence v. Texas, Justice Scalia stated that, under the Due Process Clause, if an asserted liberty is a "fundamental right," it triggers "strict scrutiny" that almost automatically invalidates any statute restricting that liberty. For strict scrutiny requires that the challenged statute, to be upheld, must further a "compelling governmental interest" and must be "necessary" or "narrowly tailored" to doing so. Scalia also wrote that if an asserted liberty is not a fundamental right, it is merely a "liberty interest" that triggers rational basis scrutiny that is so deferential that the Court all but automatically upholds the statute in …

Language Disenfranchisement In Juries: A Call For Constitutional Remediation, Jasmine Gonzales Rose

Faculty Scholarship

Approximately thirteen million U.S. citizens, mostly Latinos and other people of color, are denied the right to serve on juries due to English language requirements and despite the possibility (and centuries-old tradition) of juror language accommodation. This exclusion results in the underrepresentation of racial minorities on juries and has a detrimental impact on criminal defendants, the perceived legitimacy of the justice system, and citizen participation in democracy. Yet, it has been virtually ignored. This Article examines the constitutionality of juror language requirements, focusing primarily on equal protection and the fair cross section requirement of the Sixth Amendment. Finding the existing …

Still Hazy After All These Years: The Lack Of Empirical Evidence And Logic Supporting Mismatch, Angela Onwuachi-Willig, William Kidder

Faculty Scholarship

In the context of reviewing the book "Mismatch" by Sander and Taylor, the authors provide a comprehensive review and synthesis of dozens of social science research studies regarding affirmative action, mismatch, graduation rates and labor market earnings. In addition, the authors look at the recent graduation rates of nearly two hundred thousand black and Latino students at one hundred U.S. research intensive universities (Table 1). The authors conclude that the social science research overall, and particularly the best peer-reviewed studies, do not support the mismatch hypothesis with respect to affirmative action and African American and Latino college graduation rates and …

Symposium: Building The Arc Of Justice: The Life And Legal Thought Of Derrick Bell: Foreword, Matthew H. Charity

Faculty Scholarship

The four articles in this Symposium issue pay tribute to the work of Professor Derrick Bell by building on his challenges to the permanence of racial domination, to the potential limitations of good will inherent in the concept of interest convergence, and to the question of permanence not just of racism, but of other systemic biases since recognized, written on, and litigated. The articles range from the 19th century to the hegemonic war on terror, from Latin identity as a disruptive force, to recognition of subjugated identities allowing for the creation of coalitions to end oppression.

A Reasonable Belief: In Support Of Lgbt Plaintiffs' Title Vii Retaliation Claims, Erin E. Buzuvis

Faculty Scholarship

When an LGBT employee is punished for complaining about discrimination in the workplace, he or she has two potential causes of action under Title VII: first, a challenge to the underlying discrimination, and second, a challenge to the resulting retaliation. The first claim is vulnerable to dismissal under courts’ narrow interpretation of Title VII’s prohibition of discrimination “because of sex” as applied to LGBT plaintiffs. But such an outcome need not determine the fate of the second claim. Faithful application of retaliation law’s “reasonable belief” standard, which protects a plaintiff from reprisal so long as she reasonably believed that she …

Limiting Liberty To Prevent Obesity: Justifiability Of Strong Hard Paternalism In Public Health Regulation, Thaddeus Mason Pope

Faculty Scholarship

Because of the largely self-regarding nature of obesity, many current and proposed public health regulatory measures are paternalistic. That is, these measures interfere with a person’s liberty with the primary goal of improving that person’s own welfare.

Paternalistic public health measures may be effective in reducing obesity. They may even be the only sufficiently effective type of regulation. But many commentators argue that paternalistic public health measures are not politically viable enough to get enacted. After all, paternalism is repugnant in our individualistic culture. It is "wrong" for the government to limit our liberty for our own good.

In this …

In The Box: Voir Dire On Lgbt Issues In Changing Times, Giovanna Shay

Faculty Scholarship

This is the first law review article to examine transcripts, court filings, and published opinions about jury voir dire on attitudes toward same-sex sexuality and LGBT issues. It demonstrates that jurors express a range of homonegative attitudes. Many jurors voicing such beliefs are not removed for cause, even in cases involving lesbian and gay people and issues. It suggests some best practices for voir dire to uncover attitudes toward same-sex sexuality, based on social science research. Voir dire on LGBT issues is likely to become more important in coming years. Despite enormous gains, including historic marriage equality decisions, the LGBT …

Still Drowning In Segregation: Limits Of Law In Post-Civil Rights America, Taunya L. Banks

Faculty Scholarship

Approximately 40% of the deaths attributed to Hurricane Katrina in 2005 were caused by drowning. Blacks in the New Orleans area accounted for slightly more than one half of all deaths. Some of the drowning deaths were preventable. Too many black Americans do not know how to swim. Up to seventy percent of all black children in the United States have no or low ability to swim. Thus it is unsurprising that black youth between 5 and 19 are more likely to drown than white youths of the same age. The Centers for Disease Control concludes that a major factor …

Promoting Innovation While Preventing Discrimination: Policy Goals For The Scored Society, Frank A. Pasquale, Danielle Keats Citron

Faculty Scholarship

There are several normative theories of jurisprudence supporting our critique of the scored society, which complement the social theory and political economy presented in our 2014 article on that topic in the Washington Law Review. This response to Professor Tal Zarsky clarifies our antidiscrimination argument while showing that is only one of many bases for the critique of scoring practices. The concerns raised by Big Data may exceed the capacity of extant legal doctrines. Addressing the potential injustice may require the hard work of legal reform.

Double Jeopardy? An Empirical Study With Implications For The Debates Over Implicit Bias And Intersectionality,, Joan C. Williams

Faculty Scholarship

No abstract provided.

Marriage Equality Is Both Feminist And Progressive, Barbara Cox

Faculty Scholarship

Marriage equality has the ability to lessen vulnerability for society’s most needy. This article discusses two aspects of marriage equality in particular. Part II discusses why marriage equality can be feminist in practice and why obtaining marriage equality for same-sex couples will advance feminist values within marriage. Part III discusses how marriage equality can be progressive and help those who are vulnerable in our society by providing numerous rights that are otherwise unavailable or expensive to replicate. While marriage equality cannot bring an end to the many problems caused by marriage’s privileged status in our society, it has the ability …

Following Fisher: Narrowly Tailoring Affirmative Action, Eang L. Ngov

Faculty Scholarship

No abstract provided.

The Trouble With Torgerson: The Latest Effort To Summarily Adjudicate Employment Discrimination Cases, Theresa M. Beiner

Faculty Scholarship

No abstract provided.

Objectivity: A Feminist Revisit, Katharine T. Bartlett

Faculty Scholarship

No abstract provided.

Single And Childfree! Reassessing Parental And Marital Status Discrimination, Trina Jones

Faculty Scholarship

No abstract provided.

Cultivating Inclusion, Patrick S. Shin, Mitu Gulati

Faculty Scholarship

In this symposium essay in honor of critical race theory stalwart Mari Matsuda, we discuss two of her essays on affirmative action, "Affirmative Action and Legal Knowledge: Planting Seeds in Plowed-Up Ground" and "Who is Excellent?" We draw on the insights of these essays, one written almost twenty-five years ago and the other over a decade ago, to reflect on currently prevailing justifications for affirmative action, which revolve entirely around debates about diversity. We contrast the production of racial diversity with the more robust concept of affirmative action that Matsuda advocated. We argue that the modern diversity rationale lies at …

What We Disagree About When We Disagree About School Choice, Aaron J. Saiger

Faculty Scholarship

The debate over school vouchers, charter schools, and other varieties of school choice has become a bit stale. It would improve were advocates on all sides to acknowledge several crucial realities that they too often obfuscate. First, the debate is fundamentally normative, not empirical. The desirability of choice depends primarily upon how we weigh competing claims of equality and liberty in education. Second, all participants in the debate should acknowledge both that constrained choice is still genuine choice, and that how and to what extent parental decisions are constrained are fundamental issues in choice policy. Finally, with respect to the …

One Path For ‘Post-Racial’ Employment Discrimination Cases—The Implicit Association Test Research As Social Framework Evidence, Tanya K. Hernandez

Faculty Scholarship

Today’s legal civil rights struggle is in large measure the effort to retain the foundational premise that racial discrimination is still a pervasive and problematic dynamic that law should be engaged in addressing. Within the employment discrimination context the attempt to salvage anti-discrimination law doctrine has been lodged on several fronts. Of particular note has been the effort to incorporate “social framework” evidence. Yet, given the powerful societal conviction in a “post-racial” American narrative of discrimination as an exceptionally rare event caused by aberrant malicious individuals, general social framework evidence alone will be unlikely to assist most plaintiffs present a …

Brief Of Public Law Scholars As Amici Curiae In Support Of Petitioner, Ernest A. Young

Faculty Scholarship

No abstract provided.

It's Complicated: Age, Gender, And Lifetime Discrimination Against Working Women - The United States And The U.K. As Examples, Susan Bisom-Rapp, Malcolm Sargeant

Faculty Scholarship

This article considers the effect on women of a lifetime of discrimination using material from both the U.S. and the U.K. Government reports in both countries make clear that women workers suffer from multiple disadvantages during their working lives, which result in significantly poorer outcomes in old age when compared to men. Indeed, the numbers are stark. In the U.S., for example, the poverty rate of women 65 years old and up is nearly double that of their male counterparts. Older women of color are especially disadvantaged. The situation in the U.K. is comparable.

To capture the phenomenon, the article …

Invisible Women: Why An Exemption For Hobby Lobby Would Violate The Establishment Clause, Frederick Mark Gedicks, Andrew Koppelman

Faculty Scholarship

Can an employer make his employees foot the bill for his religious beliefs? Merely to ask this question is to answer it. “Religious liberty” does not and cannot include the right to impose the costs of observing one's religion on someone else. Indeed, the Supreme Court has consistently interpreted the Free Exercise Clause, the Establishment Clause, and Title VII of the Civil Rights Act of 1964 to forbid permissive accommodations of religion in the for-profit workplace when they impose significant burdens on identifiable and discrete third parties.

In Sebelius v. Hobby Lobby Stores, Inc., however, an employer is claiming that …

Risky Arguments In Social-Justice Litigation: The Case Of Sex Discrimination And Marriage Equality, Suzanne B. Goldberg

Faculty Scholarship

This Essay takes up the puzzle of the risky argument or, more precisely, the puzzle of why certain arguments do not get much traction in advocacy and adjudication even when some judges find them to be utterly convincing. Through a close examination of the sex discrimination argument's evanescence in contemporary marriage litigation, this Essay draws lessons about how and why arguments become risky in social-justice cases and whether they should be made nonetheless. The marriage context is particularly fruitful because some judges, advocates, and scholars find it "obviously correct" that laws excluding same-sex couples from marriage discriminate facially based on …

(Anti)Canonizing Courts, Jamal Greene

Faculty Scholarship

Within U.S. constitutional culture, courts stand curiously apart from the society in which they sit. Among the many purposes this process of alienation serves is to “neutralize” the cognitive dissonance produced by Americans’ current self-conception and the role our forebears’ social and political culture played in producing historic injustice. The legal culture establishes such dissonance in part by structuring American constitutional argument around anticanonical cases: most especially “Dred Scott v. Sandford,” “Plessy v. Ferguson,” and “Lochner v. New York.” The widely held view that these decisions were “wrong the day they were decided” emphasizes the role of independent courts in …

Gender Politics And Child Custody: The Puzzling Persistence Of The Best-Interest Standard Child Custody Decisionmaking, Elizabeth S. Scott, Robert E. Emery

Faculty Scholarship

The best-interests-of-the-child standard has been the prevailing legal rule for resolving child-custody disputes between parents for nearly forty years. Almost from the beginning, it has been the target of academic criticism. As Robert Mnookin famously argued in a 1976 article, "best interests" are vastly indeterminate – more a statement of an aspiration than a legal rule to guide custody decisionmaking. The vagueness and indeterminacy of the standard make outcomes uncertain and gives judges broad discretion to consider almost any factor thought to be relevant to the custody decision. This encourages litigation in which parents are motivated to produce hurtful evidence …

Leveraging Antidiscrimination, Olatunde C.A. Johnson

Faculty Scholarship

As the Civil Rights Act of 1964 turns fifty, antidiscrimination law has become unfashionable. Civil rights strategies are posited as not up to the serious task of addressing contemporary problems of inequality such as improving mobility for low-wage workers or providing access into entry-level employment. This Article argues that there is a danger in casting aside the Civil Rights Act as one charts new courses to address inequality. This Article revisits the implementation strategies that emerged in the first decade of the Act to reveal that the Act was not limited to addressing formal discrimination or bias, but rather drew …

Race Inequity Fifty Years Later: Language Rights Under The Civil Rights Act Of 1964, Jasmine Gonzales Rose

Faculty Scholarship

As Latinos have become the largest racialized minority in the United States, we should ask whether the civil rights laws of yesterday are equipped to address the race problems of today. Half a century after the passage of the Civil Rights Act of 1964, racial discrimination still exists, but it manifests itself differently. Rather than explicitly barring someone from employment, education, public accommodations, or civic participation on the basis of his or her race, racially discriminatory exclusion is often couched in seemingly race-neutral terms. English language requirements are one example of this. A sign outside a restaurant stating, “No Mexicans, …