Law Commons^™

An Autopsy Of The Structural Reform Injunction: Oops ... It's Still Moving, Myriam E. Gilles

Articles

No abstract provided.

Infected Judgment: Legal Responses To Physician Bias, Mary Crossley

Articles

Substantial evidence indicates that clinically irrelevant patient characteristics, including race and gender, may at times influence a physician's choice of treatment. Less clear, however, is whether a patient who is the victim of a biased medical decision has any effective legal recourse. Heedful of the difficulties of designing research to establish conclusively the role of physician bias, this article surveys published evidence suggesting the operation of physician bias in clinical decision making. The article then examines potential legal responses to biased medical judgments. A patient who is the subject of a biased decision may sue her doctor for violating his …

Substantially Limited Justice?: The Possibilities And Limits Of A New Rawlsian Analysis Of Disability-Based Discrimination, Elizabeth Pendo

Articles

John Rawls has been called the most significant and influential moral philosopher of the twentieth century, and his ideas have deeply influenced discussions of social, political, and economic justice across disciplines including law, philosophy, and political science. Given his preeminence, does Rawls's theory of justice as fairness fail in either of the two ways described above or is it a promising analysis for achieving justice for people with disabilities?

In its most recent terms, the Supreme Court has increasingly turned its attention toward the Americans with Disabilities Act of 1990 (the ADA). In several significant decisions, it has grappled with …

Trust Me, I’M A Judge: Why Binding Judicial Notice Of Jurisdictional Facts Violates The Right To Jury Trial, William M. Carter Jr.

Articles

The conventional model of criminal trials holds that the prosecution is required to prove every element of the offense beyond the jury's reasonable doubt. The American criminal justice system is premised on the right of the accused to have all facts relevant to his guilt or innocence decided by a jury of his peers. The role of the judge is seen as limited to deciding issues of law and facilitating the jury's fact-finding. Despite these principles,judges are reluctant to submit to the jury elements of the offense that the judge perceives to be . routine, uncontroversial or uncontested.

One such …

Critical Praxis, Spirit Healing And Community Activism: Preserving A Subversive Dialogue On Reparations, Christian Sundquist

Articles

African-American reparations have the potential to deconstruct racial privilege, promote racial reconciliation, and heal the psychic injuries of the African-American community. However, many models of reparations have given up on the promise of reparations in exchange for the slim possibility of short-term progress.

A subversive dialogue on African-American reparations, however, will inevitably critique equal opportunity, individualism, and white innocence and privilege. Embraced by the majority, and internalized by the African-American community, the principles of individualism, equal opportunity, and meritocracy reinforce white innocence and privilege to the extent that future, current and past inequality are cast as the natural and inevitable …

Reasonable Accommodation As Part And Parcel Of The Antidiscrimination Project, Mary Crossley

Articles

Numerous commentators have characterized the ADA's reasonable accommodation mandate - which sometimes requires employers to take affirmative steps that treat an individual with a disability differently from other workers - as a departure from the fundamental precepts of antidiscrimination law. These characterizations, however, fail to appreciate either the insights offered by disability theorists regarding the sources of inequality experienced by people with disabilities or the intrinsic conceptual kinship between the ADA's accommodation requirement and disparate impact liability and hostile environment liability under Title VII. Disability theory scholarship affirms that society's historic disregard for and devaluation of people with disabilities has …

Subject Unrest, Jerome M. Culp Jr., Angela P. Harris, Francisco Valdes

Articles

No abstract provided.

Reinforcing Representation: Enforcing The Fourteenth And Fifteenth Amendments In The Rehnquist And Waite Courts, Ellen D. Katz

Articles

A large body of academic scholarship accuses the Rehnquist Court of "undoing the Second Reconstruction," just as the Waite Court has long been blamed for facilitating the end of the First. This critique captures much of what is meant by those generally charging the Rehnquist Court with "conservative judicial activism." It posits that the present Court wants to dismantle decades' worth of federal antidiscrimination measures that are aimed at the "reconstruction" of public and private relationships at the local level. It sees the Waite Court as having similarly nullified the civil-rights initiatives enacted by Congress following the Civil War to …

Se Battre Our Ses Droits Écritures, Litiges Et Discrimination Raciale En Louisiane (1888-1899), Rebecca J. Scott

Articles

Title in English: Fighting for public rights: writing, lawsuits and racial segregation in Louisiana (1888-1889).

This article explores the links between the fight against compulsory racial segregation and the day–to–day operation of the law in nineteenth century Louisiana. Using the figure of Louis A. Martinet, one of the organizers of the test case that yielded the U.S. Supreme Court decision Plessy v. Ferguson, the essay argues that Martinet’s role as notary reflects the central importance to the community of color of questions of public standing and written records. The article also identifies the concepts of "public rights" and "public liberties" …

Equal Protection And Disparate Impact: Round Three, Richard A. Primus

Articles

Prior inquiries into the relationship between equal protection and disparate impact have focused on whether equal protection entails a disparate impact standard and whether laws prohibiting disparate impacts can qualify as legislation enforcing equal rotection. In this Article, Professor Primus focuses on a third question: whether equal protection affirmatively forbids the use of statutory disparate impact standards. Like affirmative action, a statute restricting racially disparate impacts is a race-conscious mechanism designed to reallocate opportunities from some racial groups to others. Accordingly, the same individualist view of equal protection that has constrained the operation of affirmative action might also raise questions …