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Gross Disunity, Martin J. Katz
Gross Disunity, Martin J. Katz
Sturm College of Law: Faculty Scholarship
This Article will proceed as follows: Part I will explain Gross in terms of causation and unification. Part II will argue that Gross rejected the doctrine of uniformity, a well-established and useful canon of statutory construction, without explanation. Part III will show how the courts‟ post-1991 rejection of uniformity, culminating in Gross, might be seen as a form of judicial recalcitrance. However, that Part will suggest that the Court's rejection of uniformity in Gross is better understood as a rejection of burden-shifting in disparate treatment doctrine. Finally, Part IV will argue that burden-shifting is normatively desirable in disparate treatment doctrine, …
The Fundamental Incoherence Of Title Vii: Making Sense Of Causation In Disparate Treatment Law, Martin J. Katz
The Fundamental Incoherence Of Title Vii: Making Sense Of Causation In Disparate Treatment Law, Martin J. Katz
Sturm College of Law: Faculty Scholarship
This Article proposes a new approach to both prohibition and compensation. On the prohibition side, it proposes penalties and incentives that are unrelated to compensation. This approach will make clear that discriminatory conduct is prohibited irrespective of its effect on plaintiffs and ensure that such conduct is adequately deterred. On the compensation side, this Article proposes a new causal standard: a “necessity-or-sufficiency” test, along with a comparative fault approach to determine what level of compensation is due. While these proposals may seem radical in the context of disparate treatment law, they are widely accepted in modern tort law—the field from …