Law Commons^™

Vive La Difference? A Critical Analysis Of The Justification Of Sex-Dependent Workplace Restrictions On Dress And Grooming, Patrick S. Shin

Suffolk University Law School Faculty Works

How is it possible that sex-specific workplace dress and appearance codes do not constitute sex discrimination? I argue in this article that the general doctrines of employment discrimination law do not themselves provide a principled basis for distinguishing sex-dependent workplace dress codes from other kinds of policies that would clearly count as sex discrimination, and that supplementary strategies that courts have used to carve out dress and grooming codes as an area of separate concern are either inconclusive or question-begging. I then consider whether the courts' seemingly sui generis approach to sex-dependent restrictions on dress and grooming can be justified …

How To Skip The Constitution, David Cole

Georgetown Law Faculty Publications and Other Works

No abstract provided.

How Antidiscrimination Law Learned To Live With Racial Inequality, Matthew Lindsay

All Faculty Scholarship

This Article explores a great paradox at the heart of the prevailing paradigm of American antidiscrimination law: the colorblindness ideal. In theory, and often in practice, that ideal is animated by a genuine commitment to liberal, individualist, race-neutral egalitarianism. For many of its partisans, colorblindness entails not only a negative injunction against race-conscious decisionmaking, but also, crucially, an affirmative program for the achievement of true racial equality. For these proponents, scrupulously race-neutral decisionmaking both advances the interests of racial minorities and embodies the best aspirations of the civil rights movement. In this worldview, colorblindness offers the only true antidote for …

Social Reproduction And Religious Reproduction: A Democratic-Communitarian Analysis Of The Yoder Problem, Josh Chafetz

Cornell Law Faculty Publications

In 1972, Wisconsin v. Yoder presented the Supreme Court with a sharp clash between the state's interest in social reproduction through education -- that is, society's interest in using the educational system to perpetuate its collective way of life among the next generation -- and the parents' interest in religious reproduction -- that is, their interest in passing their religious beliefs on to their children. This Article will take up the challenge of that clash, a clash which continues to be central to current debates over issues like intelligent design in the classroom. This Article engages with the competing theories …

Property Lessons In August Wilson's The Piano Lesson And The Wake Of Hurricane Katrina, Rachel A. Van Cleave

Publications

No abstract provided.

Multiracial Identity And Affirmative Action, Nancy Leong

Faculty Publications

No abstract provided.

Playing Cowboys And Indians, B. Glenn George

Faculty Publications

No abstract provided.

Grutter V. Bollinger, Clarence Thomas, Affirmative Action And The Treachery Of Originalism: "The Sun Don't Shine Here In This Part Of Town", André Douglas Pond Cummings

Faculty Scholarship

Careful examination of Justice Clarence Thomas's dissenting opinion in the landmark affirmative action case Grutter v. Bollinger is important for a number of reasons: First, as one of the youngest members of the U.S. Supreme Court, Thomas stands a reasonable chance of still being a member of the court in 25 years, the self imposed implosion date (sunset provision) established by Justice O'Connor's majority opinion. No doubt, Thomas relishes the idea of writing the majority opinion that kills affirmative action and racial preferences for good.

Second, much as Justice Harlan's dissenting opinion in Plessy v. Ferguson was used as a …

Section 2: The War On Terror, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 7: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Internalizing Gender: International Goals, Comparative Realities, Darren Rosenblum

Elisabeth Haub School of Law Faculty Publications

This Article uses the example of international women's political rights to examine the value of comparative methodologies in analyzing the process by which nations internalize international norms. As internalized in Brazil and France, the Convention on the Elimination of All Forms of Discrimination Against Women suggests possibilities for (and possible limitations of) interdisciplinary comparative and international law scholarship. Indeed, international law scholarship is divided between theories of internalization and neorealist challenges to those theories. Comparative methodologies add crucial complexity to internalization theory, the success of which depends on acknowledging vast differences in national legal cultures. Further, comparative methodologies expose important …

In Case Of Emergency, David Cole

Georgetown Law Faculty Publications and Other Works

No abstract provided.

Sidestepping Lassiter On The Path To Civil Gideon: Civil Douglas, Steven D. Schwinn

Faculty Scholarship

Civil Gideon advocates have at each turn faced the scourge of Lassiter v. Department of Social Services, which established (apparently out of whole cloth) a presumption that indigent litigants are entitled to appointed counsel only when physical liberty is at stake. This article proposes side-stepping that presumption by seeking a right to counsel on appeal via Douglas v. California, not a right to counsel at trial via Gideon v. Wainwright. Once established, a civil right to counsel on appeal would presage the inevitable downfall of Lassiter and the establishment of Civil Gideon. This article poses the argument …

Wishing Petitioners To Death: Factual Misrepresentations In Fourth Circuit Capital Cases, Sheri Lynn Johnson

Cornell Law Faculty Publications

No abstract provided.

The Silent Criminal Defendant And The Presumption Of Innocence: In The Hands Of Real Jurors, Is Either Of Them Safe, Mitchell J. Frank, Dawn Broschard

Faculty Scholarship

No abstract provided.

Rethinking Rational Discrimination Against Ex-Offenders, Jocelyn Simonson

Faculty Scholarship

No abstract provided.

An Integrated Perspective On The Collateral Consequences Of Criminal Convictions And Reentry Issues Faced By Formerly Incarcerated Individuals, Michael Pinard

Faculty Scholarship

This article examines the emergent focus on the collateral consequences of criminal convictions and the reentry of formerly incarcerated individuals. Specifically, the article details the ways in which legal scholars, policy analysts, elected officials, legal services organizations and community based organizations have begun to address these components of the criminal justice system. The article argues that these various groups have compartmentalized collateral consequences and reentry by focusing almost exclusively on one component to the exclusion of the other. In doing so, they have narrowed the lens through which to view these components, and have therefore missed opportunities to develop integrated …

International Law And Rehnquist-Era Reversals, Diane Marie Amann

Scholarly Works

In the last years of Chief Justice Rehnquist's tenure, the Supreme Court held that due process bars criminal prosecution of same-sex intimacy and that it is cruel and unusual to execute mentally retarded persons or juveniles. Each of the later decisions not only overruled precedents set earlier in Rehnquist's tenure, but also consulted international law as an aid to construing the U.S. Constitution. Analyzing that phenomenon, the article first discusses the underlying cases, then traces the role that international law played in Atkins, Lawrence, and Simmons. It next examines backlash to consultation, and demonstrates that critics tended to overlook the …

The End Of Preclearance As We Knew It: How The Supreme Court Transformed Section 5 Of The Voting Rights Act, Peyton Mccrary, Christopher B. Seaman, Richard Valelly

Scholarly Articles

Section 5 of the Voting Rights Act of 1965 requires certain jurisdictions with a history of racial discrimination to obtain “preclearance” of proposed electoral changes from the United States Department of Justice or a three-judge panel in the United States District Court for the District of Columbia. This provision, which is set to expire in August 2007, has successfully reduced racial and ethnic discrimination in voting.

The United States Supreme Court determined in a 5-4 decision, Reno v. Bossier Parish School Board, 528 U.S. 230 (2000), that Section 5's prohibition on the enforcement of electoral changes which have a discriminatory …

Disability And Employment Discrimination At The Rehnquist Court, Anita Silvers, Michael E. Waterstone, Michael Ashley Stein

Faculty Publications

No abstract provided.

New International Human Rights Standards On Unauthorized Immigrant Worker Rights: Seizing An Opportunity To Pull Governments Out Of The Shadows, Beth Lyon

Working Paper Series

Governments cannot ignore international human rights standards for unauthorized migrant workers forever. This chapter presents a call for comparative work on the issue of the legal regimes affecting unauthorized immigrant workers in order to bring governments into greater awareness and compliance with their obligations to unauthorized immigrant workers.

Global illegal migration by laborers seeking economic opportunities is expanding, resulting in an increasing number of migrants in every country who are working in violation of immigration laws. Unauthorized immigrant workers are numerous enough to form a recognizable group in every major world economy, because most receiving countries have immigration laws that …

The Evolution - Or End - Of Marriage?: Reflections On The Impasse Over Same-Sex Marriage, Linda C. Mcclain

Faculty Scholarship

The debate over legalization of same-sex marriage implicates the question of whether doing so would signal the end - or destruction - of the institution of marriage, or instead would be an appropriate evolution of marriage laws that is in keeping with the ends of marriage and with relevant public values. This essay comments on an earlier published debate on that question: Special Issue: The Evolution of Marriage, 44 Family Court Review 33-105 (2006). The essay contends that the appeal to preserving a millennia-old tradition of marriage against destruction fails to reckon with the evolution of the institution of civil …

Latino Inter-Ethnic Discrimination And The "Diversity Defense", Tanya K. Hernandez

Rutgers Law School (Newark) Faculty Papers

With the growing racial and ethnic diversity of the U.S. population and workforce, scholars have begun to address the ways in which coalition building across groups will continue to be necessary but will become even more complex. The growing scholarship has focused on analyzing how best to promote effective coalition building. Thus far, scholars have not examined what that growing racial and ethnic diversity will mean in the individuated context of racial and ethnic discrimination claims. In other words, what will anti-discrimination litigation look like when all the parties involved are non-White but a racial hierarchy is alleged to exist …

Constitutional Tipping Points: Civil Rights, Social Change, And Fact-Based Adjudication, Suzanne B. Goldberg

Rutgers Law School (Newark) Faculty Papers

Judicial opinions typically rely on facts about a social group to justify or reject limitations on group members' rights, especially when traditional views about the status or capacity of group members are in contest. Yet the fact based approach to decision making obscures the normative judgments that actually determine whether restrictions on individual rights are reasonable. This article offers an account of how and why courts intervene in social conflicts by focusing on facts rather than declaring norms. In part, it argues that this approach preserves judicial flexibility to retain traditional justifications for restricting group members' rights in some settings …

Supplemental Brief For Respondent, Burlington Northern Santa Fe Ry. Co. V. White, 548 U.S. 53 (2006) (No. 05-259), 2006 Wl 690256, Donald A. Donati, William B. Ryan, Eric Schnapper

Court Briefs

Respondent submits this supplemental brief pursuant to Rule 25.5 of this Court.

Under the unique circumstances of this case, the brief for the United States constitutes "intervening matter that was not available in time to be included in a brief." A majority of the government’s argument consists of an attack on the literal reading of section 704(a) advanced respondent. If this Court were to adopt the government’s narrow reading of section 704(a), it is far from certain that respondent would prevail. The original panel of the Sixth Circuit that heard this case applied a version of the "materially adverse" formulation …

Invisible Settlements, Invisible Discrimination, Minna J. Kotkin

Faculty Scholarship

No abstract provided.

The Equal Protection Of Free Exercise: Two Approaches And Their History, Bernadette Meyler

Cornell Law Faculty Publications

Contrary to critics of the Supreme Court's current equal protection approach to religious liberty, this Article contends that, from the very first federal free exercise cases, the Equal Protection and Free Exercise Clauses have been mutually intertwined. The seeds of an equal protection analysis of free exercise were, indeed, planted even before the Fourteenth Amendment within the constitutional jurisprudence of the several states. Furthermore, this Article argues, equal protection approaches should not be uniformly disparaged. Rather, the drawbacks that commentators have observed result largely from the Supreme Court's application of an inadequate version of equal protection. By ignoring the lessons …

Interracial Marriage In The Shadows Of Jim Crow: Racial Segregation As A System Of Racial And Gender Subordination, Reginald Oh

Law Faculty Articles and Essays

This Essay works through essentialist language to reveal the multidimensional nature of racial segregation as a system of subordination. Specifically, it examines how racial segregation in public schools and laws prohibiting interracial marriage mutually reinforce racial and gender inequality. Part I discusses Brown and the traditional analysis of that decision as a case dealing with race, racial stigma, and equal educational opportunity. Part II reviews laws prohibiting interracial marriage, the reasoning and purpose behind these laws, and the Loving decision that rendered such laws unconstitutional. Part III then examines racial segregation in public schools as more than just a system …

Affirmative Action In American Law Schools: A Critical Response To Richard Sander's "A Reply To Critics", Richard O. Lempert, William C. Kidder, Timothy T. Clydesdale, David L. Chambers

Law & Economics Working Papers Archive: 2003-2009

Richard Sander’s Stanford Law Review article, “A Systemic Analysis of Affirmative Action in American Law Schools,” has generated considerable attention and criticism. This included a critical essay in the May 2005 Stanford Law Review by the four of us, as well as others in the same issue by Professors Ian Ayres and Richard Brooks, Michele Landis Dauber, and David Wilkins. Sander’s “A Reply to Critics” also appeared in the same issue. For those following this empirical debate about the costs and benefits of affirmative action, we provide this working paper as a response to Sander’s “A Reply to Critics.” We …

Open Water: Affirmative Action, Mismatch Theory And Swarming Predators: A Response To Richard Sander, André Douglas Pond Cummings, Seth Harper

Faculty Scholarship

"Open Water" offers a sharp normative critique of Richard Sander's Stanford Law Review study (57 STAN. L. REV. 367 (2004)) that claims to prove empirically that affirmative action positively injures African American law students. Sander's law review article and conclusions are troublesome for a range of reasons and my critique unfolds as follows: First, Sander promulgates an objectionable form of racial paternalism in his anti-affirmative action study; Second, Sander casts himself in the fateful and historically disturbing role of the "Great White Father"; Third, Sander seemingly manipulated the mass media in drawing attention to his study and purported findings, particularly …