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Articles 1 - 19 of 19
Full-Text Articles in Law
Breastfeeding On A Nickel And A Dime: Why The Affordable Care Act's Nursing Mothers Amendment Won't Help Low-Wage Workers, Nancy Ehrenreich, Jamie Siebrese
Breastfeeding On A Nickel And A Dime: Why The Affordable Care Act's Nursing Mothers Amendment Won't Help Low-Wage Workers, Nancy Ehrenreich, Jamie Siebrese
Michigan Journal of Race and Law
As part of the Patient Protection and Affordable Care Act of 2010 (also known as “Obamacare”), Congress passed a new law requiring employers to provide accommodation to working mothers who want to express breast milk while at work. This accommodation requirement is a step forward from the preceding legal regime, under which federal courts consistently found that “lactation discrimination” did not constitute sex discrimination. But this Article predicts that the new law will nevertheless fall short of guaranteeing all women the ability to work while breastfeeding. The generality of the Act’s brief provisions, along with the broad discretion it assigns …
Coercive Assimilationism: The Perils Of Muslim Women's Identity Performance In The Workplace, Sahar F. Aziz
Coercive Assimilationism: The Perils Of Muslim Women's Identity Performance In The Workplace, Sahar F. Aziz
Michigan Journal of Race and Law
Should employees have the legal right to “be themselves” at work? Most Americans would answer in the negative because work is a privilege, not an entitlement. But what if being oneself entails behaviors, mannerisms, and values integrally linked to the employee’s gender, race, or religion? And what if the basis for the employer’s workplace rules and professionalism standards rely on negative racial, ethnic or gender stereotypes that disparately impact some employees over others? Currently, Title VII fails to take into account such forms of second-generation discrimination, thereby limiting statutory protections to phenotypical or morphological bases. Drawing on social psychology and …
Title Ix And Social Media: Going Beyond The Law, Emily Suran
Title Ix And Social Media: Going Beyond The Law, Emily Suran
Michigan Journal of Gender & Law
The U.S. Department of Education is currently investigating over eighty colleges and universities for civil rights violations under Title IX. From a punitive standpoint, these investigations likely will have minimal impact. Indeed, since the Alexander v. Yale plaintiffs first conceived of Title IX in a sexual harassment context, the nondiscriminatory principles of Title IX have proven disappointingly difficult to enforce. However, in today’s world of grassroots social activism, Title IX has taken on a new, extralegal import. Title IX has become a rallying cry for college activists and survivors. Despite (or perhaps because of) its limitations as a law, it …
A Joyful Heart Is Good Medicine: Sexuality Conversion Bans In The Courts, Wyatt Fore
A Joyful Heart Is Good Medicine: Sexuality Conversion Bans In The Courts, Wyatt Fore
Michigan Journal of Gender & Law
Led by California and New Jersey, states have begun to ban Sexual Orientation Change Efforts (SOCE) for minors. States have targeted SOCE, also called ‘gay conversion therapy,’ by regulating state licensure requirements for mental health professionals. Conservative legal groups have challenged these bans in federal court, alleging a variety of constitutional violations sounding in the First and Fourteenth Amendments. More specifically, these legal groups propose theories claiming that the bans infringe upon individuals’ freedom of speech, free exercise, and parental rights. In this Note, I survey the history of these bans, as well as court decisions that have rejected constitutional …
The Fourth Trimester, Saru M. Matambanadzo
The Fourth Trimester, Saru M. Matambanadzo
University of Michigan Journal of Law Reform
This Article introduces a new conceptual framework to the legal literature on pregnancy and pregnancy discrimination: the fourth trimester. The concept of a fourth trimester, drawn from maternal nursing and midwifery, refers to the crucial three to six month period after birth when many of the physical, psychological, emotional, and social effects of pregnancy continue. Giving this concept legal relevance extends the scope of pregnancy beyond the narrow period defined by conception, gestation, and birth and acknowledges that pregnancy is a relational process, not an individual event. In the United States, however, antidiscrimination law has failed to acknowledge the demands …
Judicial Diversity After Shelby County V. Holder, William Roth
Judicial Diversity After Shelby County V. Holder, William Roth
Michigan Law Review First Impressions
In 2014, voters in ten of the fifteen states previously covered by the Voting Rights Act ("VRA") preclearance formula-including six of the nine states covered in their entirety-will go to the polls to elect or retain state supreme court justices. Yet despite the endemic underrepresentation of minorities on state benches and the judiciary's traditional role in fighting discrimination, scholars have seemingly paid little attention to how Shelby County v. Holder's suspension of the coverage formula in section 4(b) has left racial minorities vulnerable to retrogressive changes to judicial-election laws. The first election year following Shelby County thus provides a compelling …
Place, Not Race: Affirmative Action And The Geography Of Educational Opportunity, Sheryll Cashin
Place, Not Race: Affirmative Action And The Geography Of Educational Opportunity, Sheryll Cashin
University of Michigan Journal of Law Reform
Ultimately, I argue that one important response to the demise of race-based affirmative action should be to incorporate the experience of segregation into diversity strategies. A college applicant who has thrived despite exposure to poverty in his school or neighborhood deserves special consideration. Those blessed to come of age in poverty-free havens do not. I conclude that use of place, rather than race, in diversity programming will better approximate the structural disadvantages many children of color actually endure, while enhancing the possibility that we might one day move past the racial resentment that affirmative action engenders. While I propose substituting …
The Quixotic Search For Race-Neutral Alternatives, Michael E. Rosman
The Quixotic Search For Race-Neutral Alternatives, Michael E. Rosman
University of Michigan Journal of Law Reform
The Supreme Court has stated that the narrow-tailoring inquiry of the Equal Protection Clause’s strict scrutiny analysis of racially disparate treatment by state actors requires courts to consider whether the defendant seriously considered race-neutral alternatives before adopting the race-conscious program at issue. This article briefly examines what that means in the context of race-conscious admissions programs at colleges and universities. Part I sets forth the basic concepts that the Supreme Court uses to analyze race-conscious decision-making by governmental actors and describes the role of “race-neutral alternatives” in that scheme. Part II examines the nature of “race-neutral alternatives” and identifies its …
The Ninth Circuit's Treatment Of Sexual Orientation: Defining “Rational Basis Review With Bite”, Ian Bartrum
The Ninth Circuit's Treatment Of Sexual Orientation: Defining “Rational Basis Review With Bite”, Ian Bartrum
Michigan Law Review First Impressions
On February 10, Nevada's Democratic attorney general decided to stop defending the state's constitutional amendment banning same-sex marriage, which is currently under review in the U.S. Court of Appeals for the Ninth Circuit. Perhaps even more surprising, Nevada's Republican governor agreed with that decision, concluding that the "case is no longer defensible in court." Ironically, all of this came after the plaintiffs had lost their case in the district court. But the federal constitutional landscape surrounding same-sex marriage is rapidly shifting, and in the nation's largest circuit change is coming quickly indeed. The latest upheaval—the decision that in fact prompted …
Globally Speaking—Honoring The Victims' Stories: Matsuda's Human Rights Praxis, Berta Esperanza Hernández-Truyol
Globally Speaking—Honoring The Victims' Stories: Matsuda's Human Rights Praxis, Berta Esperanza Hernández-Truyol
Michigan Law Review First Impressions
Globally speaking, international law and the vast majority of domestic legal systems strive to protect the right to freedom of expression. The United States' First Amendment provides an early historical protection of speech-a safeguard now embraced around the world. The extent of this protection, however, varies among states. The United States stands alone in excluding countervailing considerations of equality, dignitary, or privacy interests that would favor restrictions on speech. The gravamen of the argument supporting such American exceptionalism is that free expression is necessary in a democracy. Totalitarianism, the libertarian narrative goes, thrives on government control of information to the …
Racial Templates, Richard Delgado, Juan F. Perea
Racial Templates, Richard Delgado, Juan F. Perea
Michigan Law Review
This riveting tale of greed, international skullduggery, and behind-the-scenes heroism recounts the events that led up to America’s “wicked war” with Mexico. It depicts how expansionist ambitions in high circles fueled jingoistic propaganda (pp. 25, 34–35, 58), fed a public eager for national muscle flexing (pp. 57, 103, 108), and set the stage for a military skirmish in a disputed region between two rivers (pp. 75–77, 95, 100, 138) that provided the pretext for a savage and short-lived military campaign against the weak new nation of Mexico in which the U.S. Army, under General Scott, marched all the way to …
It's Critical: Legal Participatory Action Research, Emily M.S. Houh, Kristin Kalsen
It's Critical: Legal Participatory Action Research, Emily M.S. Houh, Kristin Kalsen
Michigan Journal of Race and Law
This Article introduces a method of research that we term “legal participatory action research” or “legal PAR” as a way for legal scholars and activists to put various strands of critical legal theory into practice. Specifically, through the lens of legal PAR, this Article contributes to a rapidly developing legal literature on the “fringe economy” that comprises “alternative lending services” and products, including but not limited to pawnshops, check cashers, payday lenders, direct deposit loans, (tax) refund anticipation loans, and car title loans. As importantly, this article also contributes to the related fields of critical race theory, feminist legal theory, …
Thinking Hard About 'Race-Neutral' Admissions, Richard H. Sander, Aaron Danielson
Thinking Hard About 'Race-Neutral' Admissions, Richard H. Sander, Aaron Danielson
University of Michigan Journal of Law Reform
Our exploration is organized as follows. In Part I, we sympathetically consider the very difficult dilemmas facing higher education leaders. Understanding the often irreconcilable pressures that constrain university administrators is essential if we are to envision the plausible policies they might undertake. In Part II, we draw on a range of data to illustrate some of the “properties” of admissions systems and, in particular, the ways in which race, SES, and academic preparation interact dynamically both within individual schools and across the educational spectrum. Partly because the questions we examine here have been so little studied, ideal data does not …
The 'Compelling Government Interest' In School Diversity: Rebuilding The Case For An Affirmative Government Role, Philip Tegeler
The 'Compelling Government Interest' In School Diversity: Rebuilding The Case For An Affirmative Government Role, Philip Tegeler
University of Michigan Journal of Law Reform
How far does Justice Kennedy’s “moral and ethical obligation” to avoid racial isolation extend? Does the obligation flow primarily from Supreme Court case law, does it derive from an evolving consensus in the social sciences, or does it also have a statutory basis in Title VI and other federal law? In addition to its value as a justification for non-individualized, race-conscious remedial efforts by state and local governments, does the compelling interest identified in Parents Involved also suggest an affirmative duty on the part of the federal government? And if so, how far does this affirmative duty extend, and how …
Designing A Flexible World For The Many: "Essential Functions" And Title I Of The Americans With Disabilities Act, Michael J. Powers
Designing A Flexible World For The Many: "Essential Functions" And Title I Of The Americans With Disabilities Act, Michael J. Powers
University of Michigan Journal of Law Reform
This Note explores how courts interpret the meaning of “essential functions” under Title I of the Americans with Disabilities Act. To be protected under the ADA, a plaintiff must be able to perform the “essential functions” of her job with or without a reasonable accommodation. In general, courts follow one of two approaches when interpreting this phrase. The first approach narrowly focuses on the employer’s judgment regarding which functions are essential. The second approach considers the employer’s judgment, but looks beyond to consider the broader employment relationship. This Note argues that these different approaches have led to varying levels of …
Introduction By The Editors, Michigan Law Review
Introduction By The Editors, Michigan Law Review
Michigan Law Review First Impressions
This Essay opens a Symposium honoring the contribution of Mari Matsuda to American legal scholarship. The first Asian American female to gain tenure at a U.S. law school, she helped establish a scholarly movement-critical race theory-that reshaped several academic disciplines. She also was the first to propose a new perspective-looking to the bottom-in which judges and activists would evaluate legal practices from the perspective of the least advantaged members of society. With pathbreaking articles on hate speech, accent discrimination, legal history, affirmative action, feminist legal theory, and the politics of coalition, Matsuda has left her mark on numerous areas of …
Let's Get Married: An Essay In Honor Of Mari Matsuda, Richard Delgado
Let's Get Married: An Essay In Honor Of Mari Matsuda, Richard Delgado
Michigan Law Review First Impressions
Most unbiased evaluations of marriage as an institution consider it an unmitigated benefit, at least for those who enter into it willingly and avoid the shoals of divorce. Married people report higher levels of happiness than their unmarried counterparts, live longer, and lead healthier lives. They are less depressed, drink less, and report more satisfaction with their status than those who have never married or are divorced. The benefits of marriage also accrue to the children of married couples. The children of intact couples, whether straight or gay, are happier and more well adjusted, on average, than those of either …
Fisher V. Texas: The Limits Of Exhaustion And The Future Of Race-Conscious University Admissions, John A. Powell, Stephen Menendian
Fisher V. Texas: The Limits Of Exhaustion And The Future Of Race-Conscious University Admissions, John A. Powell, Stephen Menendian
University of Michigan Journal of Law Reform
This Article investigates the potential ramifications of Fisher v. Texas and the future of race-conscious university admissions. Although one cannot predict the ultimate significance of the Fisher decision, its brief and pregnant statements of law portends an increasingly perilous course for traditional affirmative action programs. Part I explores the opinions filed in Fisher, with a particular emphasis on Justice Kennedy’s opinion on behalf of the Court. We focus on the ways in which the Fisher decision departs from precedent, proscribes new limits on the use of race in university admissions, and tightens requirements for narrow tailoring. Part II investigates the …
An Evaluation Of The Prospects For Successful Implementation Of The Convention On The Rights Of Persons With Disabilities In The Islamic World, Brenton Kinker
An Evaluation Of The Prospects For Successful Implementation Of The Convention On The Rights Of Persons With Disabilities In The Islamic World, Brenton Kinker
Michigan Journal of International Law
This note will examine the CRPD’s aspirations in light of Islamic law, comparing whether the two are—or can be—consistent. Part I will provide background on the CRPD, including the intent of the treaty, the negotiations leading to the final wording, and the solid obligations it contains for state parties. Part II examines the background of Shari’a and its provisions regarding disability. Part III compares the treatment of the disabled under Islamic law with that required by the CRPD in order to gage consistency. Where tensions exist, alternative interpretations of both Islamic law and the CPRD are proposed that might facilitate …