Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 14 of 14
Full-Text Articles in Law
Dehumanization 'Because Of Sex': The Multiaxial Approach To The Title Vii Rights Of Sexual Minorities, Shirley Lin
Dehumanization 'Because Of Sex': The Multiaxial Approach To The Title Vii Rights Of Sexual Minorities, Shirley Lin
Elisabeth Haub School of Law Faculty Publications
Although Title VII prohibits discrimination against any employee “because of such individual’s . . . sex,” legal commentators have not yet accurately appraised Title VII’s trait and causation requirements embodied in that phrase. Since 2015, most courts assessing the sex discrimination claims of LGBT employees began to intentionally analyze “sex” as a trait using social-construction evidence, and evaluated separately whether the discriminatory motive caused the workplace harm. Responding to what this Article terms a “doctrinal correction” to causation within this groundswell of decisions, the Supreme Court recently issued an “expansive” and “sweeping” reformulation of but-for causation in Bostock v. Clayton …
The Glass Half Full: Envisioning The Future Of Race Preference Policies, Leslie Yalof Garfield
The Glass Half Full: Envisioning The Future Of Race Preference Policies, Leslie Yalof Garfield
Elisabeth Haub School of Law Faculty Publications
Justice Breyer's concern that the Court's June 2007 ruling in Parents Involved in Community Schools v. Seattle School District. No. 1 "is a decision the Court and nation will come to regret" is not well founded. Far from limiting the constitutionally permissible use of race in education from its present restriction to higher education, the case may allow governmental entities to consider race as a factor to achieve diversity in grades K-12. In Parents Involved, which the Court decided with its companion case, McFarland v. Jefferson County Public Schools four justices concluded that school boards may never consider race when …
Adding Colors To The Chameleon: Why The Supreme Court Should Adopt A New Compelling Governmental Interest Test For Race-Preference Student Assignment Plans, Leslie Yalof Garfield
Adding Colors To The Chameleon: Why The Supreme Court Should Adopt A New Compelling Governmental Interest Test For Race-Preference Student Assignment Plans, Leslie Yalof Garfield
Elisabeth Haub School of Law Faculty Publications
When the Supreme Court ordered the City of Birmingham to desegregate its schools in 1954, it failed to consider the long range implications of its mandate. School districts across the country responded to the Court’s order by adopting race-preference school assignment plans, created to designate the particular public elementary or secondary school a student should attend. Now that these plans have successfully achieved their goals of desegregating classrooms, the question has become whether the continuation of the very programs that helped achieve those goals remain legal? In other words, as Justice Ginsburg recently said in arguments before the Supreme Court, …
Internalizing Gender: International Goals, Comparative Realities, Darren Rosenblum
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 …
Parity/Disparity: Electoral Gender Inequality On The Tightrope Of Liberal Constitutional Traditions, Darren Rosenblum
Parity/Disparity: Electoral Gender Inequality On The Tightrope Of Liberal Constitutional Traditions, Darren Rosenblum
Elisabeth Haub School of Law Faculty Publications
Part I of this article examines Parity's strangeness to United States observers. United States sex discrimination law ignores political representation issues. United States voting rights law contains no provisions for gender inequality. Most importantly, leading United States thinkers of all stripes roundly reject quotas. Part II details the Parity debate and its relationship to French democracy. The democracies of the United States and of France share Eighteenth Century Enlightenment origins. They also share some form of universalism (labeled “neutrality” in the United States by Cass Sunstein) establishing the equality of all citizens before the law. Parity serves as a good …
Dying Twice: Incarceration On Death Row, Michael B. Mushlin
Dying Twice: Incarceration On Death Row, Michael B. Mushlin
Elisabeth Haub School of Law Faculty Publications
Dying Twice is an important report. The work is a collaboration between the Corrections Committee of the Association of the Bar of the City of New York, which I chaired, and the Committee on Capital Punishment of the Association chaired by Norman Greene. The working group that researched and wrote the report was drawn from members of both committees. The attorneys and the physician who served on the committee are wonderful, talented, dedicated people. It was a pleasure to work with professionals of this caliber on such an important effort. Dying Twice was endorsed as the position of the Association …
Dying Twice: Conditions On New York's Death Row, Michael B. Mushlin
Dying Twice: Conditions On New York's Death Row, Michael B. Mushlin
Elisabeth Haub School of Law Faculty Publications
In 1995 New York State revived the death penalty as a punishment for certain categories of murder, and established a “death row” for condemned men at the Clinton Correctional Facility in Dannemora, New York (variously, “Clinton” or the “Prison”). Four years later, in October 1999, two committees of the Association of the Bar of the City of New York (the “Association”) joined together to study the conditions of confinement on this death row--or, as it is officially called, the Unit for Condemned Persons (the “UCP”). These committees--the Committee on Corrections and the Committee on Capital Punishment--formed a joint subcommittee (the …
The Voting Rights Act And The "New And Improved" Intent Test: Old Wine In New Bottles, Randolph M. Mclaughlin
The Voting Rights Act And The "New And Improved" Intent Test: Old Wine In New Bottles, Randolph M. Mclaughlin
Elisabeth Haub School of Law Faculty Publications
Since the Supreme Court injected the issue of intent into the voting rights arena in Mobile v. Bolden,1 there has been a long and persistent struggle to reverse that decision. In 1982, Congress thought it had put the question of the quantum and quality of proof required to establish a violation of section 2 of the Voting Rights Act to rest when Congress amended that section. However, the courts quickly began a rear guard action to undermine congressional efforts to eliminate the intent requirement as an element of a plaintiff's claim. Both the Supreme Court and the circuit courts have …
Synopsis Of The Report Of The Second Circuit Task Force On Gender, Racial And Ethnic Fairness In The Courts, Jay C. Carlisle
Synopsis Of The Report Of The Second Circuit Task Force On Gender, Racial And Ethnic Fairness In The Courts, Jay C. Carlisle
Elisabeth Haub School of Law Faculty Publications
The recent Report of the Second Circuit Task Force on Gender, Racial, and Ethnic Fairness in the Courts (‘Taskforce‘) observes “some biased conduct toward parties and witnesses based on gender or race or ethnicity has occurred on the part of both judges and lawyers.” “Biased conduct toward lawyers based on gender or race or ethnicity, has occurred to a greater degree.” The Report concludes that such conduct is unacceptable and admonishes all participants in the Second Circuit courts to guard against it. The purpose of this Perspective is to review several sections of the Report. The Perspective is written from …
Operation Rescue Versus A Woman's Right To Choose: A Conflict Without A Federal Remedy?, Randolph M. Mclaughlin
Operation Rescue Versus A Woman's Right To Choose: A Conflict Without A Federal Remedy?, Randolph M. Mclaughlin
Elisabeth Haub School of Law Faculty Publications
This article discusses the need for federal protection of women seeking abortion-related services and the denial of protection of those women by the Supreme Court's narrow holding in Bray. Part II examines the precedents leading up to the Bray decision. A review of these cases demonstrates that Operation Rescue is a national conspiracy aimed at eliminating the right to abortion. The group uses physical force and blockades clinics in order to deny women and health care workers access to these facilities. In light of the inability or unwillingness of local law enforcement agencies to provide access to the clinics and …
Chisom V. Roemer: Where Do We Go From Here?, Randolph M. Mclaughlin
Chisom V. Roemer: Where Do We Go From Here?, Randolph M. Mclaughlin
Elisabeth Haub School of Law Faculty Publications
In Chisom and Houston Lawyers' Association, the Court declined to address two substantive issues critical for pending and future litigation challenging the at-large election of state judges. The Court expressly stated that it would not decide the elements that must be proved to establish a violation of section 2 or the remedy that would be appropriate for a violation proven in the context of a judicial election. Part II will discuss the Chisom and Houston Lawyers' Association decisions. Analysis of these decisions, combined with a review of the legislative history, supports the Court's view of the amended section 2. In …
Bray V. Alexandria Women's Health Clinic: The Supreme Court's Next Opportunity To Unsettle Civil Rights Law, Randolph M. Mclaughlin
Bray V. Alexandria Women's Health Clinic: The Supreme Court's Next Opportunity To Unsettle Civil Rights Law, Randolph M. Mclaughlin
Elisabeth Haub School of Law Faculty Publications
The legislative history of the Ku Klux Klan Act of 1871 is scrutinized to determine the factual predicate that led to the enactment of 42 U.S.C. § 1985(3) and the classes Congress sought to protect under its provisions. The legislative history is also analyzed to determine which rights Congress sought to protect in § 1985(3). Part III discusses the Supreme Court's misinterpretation of the statute and attempts to provide guidance as to the proper outcome in Bray.
Gideon V. Wainwright Revisited: What Does The Right To Counsel Guarantee Today?, Michael B. Mushlin
Gideon V. Wainwright Revisited: What Does The Right To Counsel Guarantee Today?, Michael B. Mushlin
Elisabeth Haub School of Law Faculty Publications
In Gideon v. Wainwright, the Supreme Court unanimously held that indigent state felony defendants are constitutionally entitled to the appointment of trial counsel. The opinion aroused wide support, and even enthusiasm, almost from the moment it was announced in 1963. Two and a half decades later this support has not diminished. However, are the words of praise only lip service to the noble idea of the right to counsel? Has Gideon really made a difference? Has its promise of a fair shake for poor criminal defendants been kept, or has Gideon meant only that defendants are provided with the fleeting …
Abroad In The Land: Legal Strategies To Effectuate The Rights Of The Physically Disabled, Ann Powers
Abroad In The Land: Legal Strategies To Effectuate The Rights Of The Physically Disabled, Ann Powers
Elisabeth Haub School of Law Faculty Publications
In view of limited legislative action, the handicapped may be forced to resort to the courts in order to vindicate their rights. To do so, they must develop new legal strategies by using existing theories in previously unexplored ways. This Note will consider the development of such strategies in the areas of education, physical access and employment.