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Ending The War On People With Substance Use Disorders In Health Care, Kelly K. Dineen, Elizabeth Pendo Jan 2021

Ending The War On People With Substance Use Disorders In Health Care, Kelly K. Dineen, Elizabeth Pendo

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Earp et al. (2021) provide a robust justification for the decriminalization of drugs based on the systemic racism that fuels the “war on drugs” and the ongoing harms of drug policies to individuals. The authors’ call for decriminalization is a necessary but insufficient step in addressing the entrenched structural, institutional, and individual discrimination that leads to the inequitable and unjust treatment of people with substance use disorder (PWSUD). Nothing short of robust enforcement of existing legal protections and sweeping legal reforms in the regulation of addiction treatment, controlled substances, health care finance, and civil rights law will be adequate to ...


Disparities In Health Care: The Pandemic’S Lessons For Health Lawyers, Danielle Pelfrey Duryea, Nicole Huberfeld, Ruqaiijah Yearby Jan 2021

Disparities In Health Care: The Pandemic’S Lessons For Health Lawyers, Danielle Pelfrey Duryea, Nicole Huberfeld, Ruqaiijah Yearby

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Population-level disparities in health and health care came to the forefront of U.S. public consciousness in 2020. As the racial, ethnic, and socioeconomic stratification of COVID-19 infection and death rates emerged with chilling clarity, the Black Lives Matter protests of the summer focused millions of Americans on the complex, structural nature of inequity and its long-lasting effects.

Access to quality health care is a “social determinant of health,” meaning that it is one of the “non-medical factors that influence health outcomes . . . the conditions in which people are born, grow, work, live, and age, and the wider set of forces ...


Covid-19, Courts, And The 'Realities Of Prison Administration.' Part Ii: The Realities Of Litigation, Chad Flanders Jan 2021

Covid-19, Courts, And The 'Realities Of Prison Administration.' Part Ii: The Realities Of Litigation, Chad Flanders

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Lawsuits challenging prisons and jails for not doing enough to stop the spread of COVID-19 among inmates have faced mixed results in the courts: wins at the district court level are almost always followed by losses (in the form of stays of any orders to improve conditions) at the appeals court level or at the Supreme Court. This short article tries to explain why this is happening, and makes three comparisons between how district courts and appeals courts have analyzed these lawsuits. First, district courts and appeals courts tend to emphasize different facts in their decisions. District courts focus more ...


Covid-19 Employee Health Checks, Remote Work, And Disability Law, Elizabeth Pendo Jan 2021

Covid-19 Employee Health Checks, Remote Work, And Disability Law, Elizabeth Pendo

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The Americans with Disabilities Act (ADA) prohibits discrimination against people with disabilities, about 61 million individuals in the U.S. The law’s protections in the workplace are especially important during COVID-19, which has worsened pre-existing disparities experienced by people with disabilities. The ADA also applies to new strategies to reduce the risk of COVID-19 infection in the workplace. This Chapter will focus on two strategies that impact individuals with and without disabilities – employee health screening, testing and vaccination policies, and new or expanded remote work programs.


Systemic Racism, The Government’S Pandemic Response, And Racial Inequities In Covid-19, Ruqaiijah Yearby, Seema Mohapatra Jan 2021

Systemic Racism, The Government’S Pandemic Response, And Racial Inequities In Covid-19, Ruqaiijah Yearby, Seema Mohapatra

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During the COVID-19 pandemic, the federal and state governments have ignored racial and ethnic minorities’ unequal access to employment and health care that results in racial inequities in COVID-19 infections and deaths. In addition, they have enacted laws that further exacerbate these inequities. Consequently, many racial and ethnic minorities are employed in low-wage essential jobs that lack paid sick leave and health insurance. This lack of benefits causes them to go to work even when they are sick and prevents them from receiving appropriate medical treatment. As a result, racial and ethnic minorities have disproportionately been infected and died from ...


The Role Of Law And Policy In Achieving Healthy People's Disability And Health Goals Around Access To Health Care, Activities Promoting Health And Wellness, Independent Living And Participation, And Collecting Data In The United States, Elizabeth Pendo, Lisa Iezzoni Jan 2020

The Role Of Law And Policy In Achieving Healthy People's Disability And Health Goals Around Access To Health Care, Activities Promoting Health And Wellness, Independent Living And Participation, And Collecting Data In The United States, Elizabeth Pendo, Lisa Iezzoni

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Ensuring that the almost 60 million Americans with disabilities live as healthy and independent lives as possible is an important goal for our nation. This evidence-based report highlights efforts to better use law and policy to support and protect people with disabilities. Specifically, it examines how existing federal laws and policies could be leveraged by states, communities, and other sectors to reduce barriers to primary and preventive care; reduce barriers to local health and wellness programs; increase access to leisure, social, or community activities (and indirectly, to religious activities) for individuals with disabilities; and generate better disability data needed to ...


Comments On The Preliminary Framework For Equitable Allocation Of Covid-19 Vaccine, Ana Santos Rutschman, Julia Barnes-Weise, Robert Gatter, Timothy L. Wiemken Jan 2020

Comments On The Preliminary Framework For Equitable Allocation Of Covid-19 Vaccine, Ana Santos Rutschman, Julia Barnes-Weise, Robert Gatter, Timothy L. Wiemken

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On September 1, 2020 the National Academies released a draft framework for Equitable Allocation of a COVID-19 Vaccine. In this response, we analyze the proposed framework and highlight several areas.

Among the proposed changes, we highlight the need for the following interventions. The final framework for distribution of COVID-19 vaccines should give a higher priority to populations made most vulnerable by the social determinants of health. It should incorporate more geography-based approaches in at least some of the four proposed phases of vaccine distribution. It should address the possibility of a vaccine being made available through an emergency use authorization ...


'Sex' And Religion After Bostock, Sachin S. Pandya, Marcia L. Mccormick Jan 2020

'Sex' And Religion After Bostock, Sachin S. Pandya, Marcia L. Mccormick

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This paper reviews the U.S. Supreme Court’s opinion in Bostock v. Clayton County. There, the Court held that by barring employer discrimination against any individual “because of such individual’s . . . sex,” Title VII of the Civil Rights Act of 1964 also bars employment discrimination because an individual is gay or transgender. The paper then speculates about how much Bostock will affect how likely lower court judges will read other “sex” discrimination prohibitions in the U.S. Code in the same way, in part based on a canvass of the text of about 150 of those prohibitions. The paper ...


Immigration, Emigration, Fungible Labour And The Retreat From Progressive Taxation, Henry Ordower Jan 2020

Immigration, Emigration, Fungible Labour And The Retreat From Progressive Taxation, Henry Ordower

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With emphasis on the US, this chapter explores the role that taxation plays in the movement of people and capital. The chapter addresses the relationship between taxes and retention of capital, including tax incentives for capital investment, shifting tax burdens from capital to labor as progressive taxation wanes, and rules preventing the escape of capital from its current taxing jurisdiction. Next, the discussion moves on to consider how taxes supplement immigration policy to attract capital currently outside the jurisdiction. The chapter then queries whether taxes play any significant role in attracting or retaining skilled labor before identifying how tax trends ...


Protecting The Rights Of People With Disabilities, Elizabeth Pendo Jan 2020

Protecting The Rights Of People With Disabilities, Elizabeth Pendo

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One in four Americans — a diverse group of 61 million people — experience some form of disability (Okoro, 2018). On average, people with disabilities experience significant disparities in education, employment, poverty, access to health care, food security, housing, transportation, and exposure to crime and domestic violence (Pendo & Iezzoni, 2019). Intersections with demographic characteristics such as race, ethnicity, gender, and LGBT status, may intensify certain inequities. For example, women with disability experience greater disparities in income, education, and employment (Nosek, 2016), and members of under-served racial and ethnic groups with disabilities experience greater disparities in health status and access to health care (Yee et al., 2016). These longstanding inequities are compounded by the COVID-19 pandemic and by governmental and private responses that discriminate on the basis of disability. Legal protections of people with disabilities are governed by two key federal laws: the Americans with Disabilities Act of 1990 (ADA) and Section 504 of the Rehabilitation Act (“Section 504” or “Rehabilitation Act”). Together, these laws ensure that people with disabilities have equal opportunities in employment, in state and local services and programs, and to goods and services. The broad reach of these laws impacts a host of issues raised by the COVID-19 pandemic. Enforcing agencies have provided COVID-19-specific guidance on the application of the laws in health care and in employment. However, gaps in protections as well as widespread lack of knowledge of and noncompliance with the ADA and the Rehabilitation Act limit their impact. Recommendations include: continued enforcement of the laws; clear and current agency guidance on how to comply with the laws; education about the requirements of the laws, especially in health care settings; and improved data collection and reporting.

This paper was prepared as part of Assessing Legal Responses to COVID-19, a comprehensive report published by Public Health Law Watch in partnership with ...


Sex-Based Discrimination In Healthcare Under Section 1557: The New Final Rule And Supreme Court Developments, Brietta R. Clark, Elizabeth Pendo, Gabriella Garbero Jan 2020

Sex-Based Discrimination In Healthcare Under Section 1557: The New Final Rule And Supreme Court Developments, Brietta R. Clark, Elizabeth Pendo, Gabriella Garbero

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One of the primary goals of the Patient Protection and Affordable Care Act (PPACA) has been the reduction and elimination of health disparities, generally defined as population-level health differences that adversely affect disadvantaged groups, including disparities associated with sex and gender. Many of PPACA’s general provisions — expanded access to public and private insurance coverage, guarantee issue and pricing reforms, and coverage mandates — were expected to reduce barriers and eliminate discriminatory practices targeting or disproportionately impacting women and transgender individuals. Provisions like the Women’s Health Amendment, which mandated women’s preventive healthcare to be covered without cost sharing, and ...


The Case For Face Shields: Improving The Covid-19 Public Health Policy Toolkit, Timothy L. Wiemken, Ana Santos Rutschman, Robert Gatter Jan 2020

The Case For Face Shields: Improving The Covid-19 Public Health Policy Toolkit, Timothy L. Wiemken, Ana Santos Rutschman, Robert Gatter

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As the United States battles the later stages of the first wave of COVID-19 and faces the prospect of future waves, it is time to consider the practical utility of face shields as an alternative or complement to face masks in the policy guidance. Without face shields specifically noted in national guidance, many areas may be reluctant to allow their use as an alternative to cloth face masks, even with sufficient modification.

In this piece, we discuss the benefits of face shields as a substitute to face masks in the context of public health policy. We further discuss the implications ...


Law, Structural Racism, And The Covid-19 Pandemic, Ruqaiijah Yearby, Seema Mohapatra Jan 2020

Law, Structural Racism, And The Covid-19 Pandemic, Ruqaiijah Yearby, Seema Mohapatra

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Racial and ethnic minorities have always been the most impacted by pandemics because of: disparities in exposure to the virus; disparities in susceptibility to contracting the virus; and disparities in treatment. This article explains how structural racism, the ways in which laws are used to advantage the majority and disadvantage racial and ethnic minorities, has caused these disparities. Specifically, this article focuses on how employment, housing, health care, and COVID-19 relief laws have been manipulated to disadvantage racial and ethnic minorities, making minorities more susceptible to COVID-19 infection and death. This article uses Blumenshine’s 2008 framework to outline how ...


Structural Discrimination In Covid-19 Workplace Protections, Ruqaiijah Yearby, Seema Mohapatra Jan 2020

Structural Discrimination In Covid-19 Workplace Protections, Ruqaiijah Yearby, Seema Mohapatra

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Workers, who are being asked to risk their health by working outside their homes during the COVID-19 pandemic, need adequate hazard compensation, safe workplace conditions, and personal protective equipment (PPE). Sadly, this is not happening for many essential workers, such as those working in home health care and in the meat processing industry. These workers are not only being unnecessarily exposed to the virus, but they are also not receiving paid sick leave, unemployment benefits, and affordable health care and childcare. The lack of these protections is due to structural discrimination and has disproportionately disadvantaged women of color and low-wage ...


[Dis]Integration: Second-Order Diversity And Schools, Anders Walker Mar 2019

[Dis]Integration: Second-Order Diversity And Schools, Anders Walker

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This article challenges the prevailing definition of diversity in schools. Borrowing from legal theorist Heather Gerken, it argues that diversity is best understood not simply as a rationale for creating integrated spaces, but also [dis]integrated ones, places where minority students and faculty can occupy majority positions, and are able to exercise majority control. Such spaces serve legitimate pedagogical goals that are different from those associated with statistical integration, and therefore warrant consideration by courts tasked with reviewing the use of race in university admissions.


Permitted Incentives For Workplace Wellness Plans Under The Ada And Gina: The Regulatory Gap, Elizabeth Pendo, Brandon Hall Jan 2019

Permitted Incentives For Workplace Wellness Plans Under The Ada And Gina: The Regulatory Gap, Elizabeth Pendo, Brandon Hall

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Although workplace wellness plans have been around for decades, they have flourished under the Patient Protection and Affordable Care Act (“PPACA”) into a $6 billion-dollar industry. Under PPACA, a “wellness plan” is a program of health promotion or disease prevention offered by an employer that is designed to promote health or prevent disease and which meets the other applicable requirements of that subsection. Employers look to these programs to promote healthy lifestyles, improve the overall health of employees and beneficiaries, and reduce rising healthcare costs. PPACA’s amendments to the Health Insurance Portability and Accountability Act (“HIPAA”) permit employers to ...


Freedom And Prison: Putting Structuralism Back Into Structural Inequality, Anders Walker Jan 2019

Freedom And Prison: Putting Structuralism Back Into Structural Inequality, Anders Walker

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Critics of structural racism frequently miss structuralism as a field of historical inquiry. This essay reviews the rise of structuralism as a mode of historical analysis and applies it to the mass incarceration debate in the United States, arguing that it enriches the work of prevailing scholars in the field.


In (Partial) Praise Of (Some) Compromise: Comments On Tebbe, Chad Flanders Jan 2018

In (Partial) Praise Of (Some) Compromise: Comments On Tebbe, Chad Flanders

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I want to begin by sketching a point of view that, at best, makes only an implicit showing in Tebbe's persuasive, thoughtful, and challenging book. That viewpoint looks something like this:2 religion is unique, not just in substance but also in form. Start with substance: religion is a way of looking at the world as not exhausted by secular values or concerns; for money, prestige, or for "utility" broadly construed, or even exhausted by morality. Religion asks, repeatedly of those who believe in it, to do seemingly impossible things. It counts on miracles. Religion sees the world and ...


New Takes On Jim Crow: A Review Of Recent Scholarship, Anders Walker Jan 2018

New Takes On Jim Crow: A Review Of Recent Scholarship, Anders Walker

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More than half a century has passed since C. Vann Woodward penned his iconic monograph, The Strange Career of Jim Crow, and legal segregation continues to compel. Recent works have reassessed Jim Crow’s birth, its life, and its aftermath, suggesting that the system was at once more implicated in the reproduction of racist ideas than had been previously assumed, and also more fluid: a variegated landscape of rules and norms that lent themselves to various forms of political, legal, and cultural resistance.


Religious Privilege To Discriminate As Religious Freedom: From Charitable Choice To Faith Based Initiatives To Rfra And Fada, Marcia L. Mccormick Jan 2017

Religious Privilege To Discriminate As Religious Freedom: From Charitable Choice To Faith Based Initiatives To Rfra And Fada, Marcia L. Mccormick

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The movement for Lesbian, Gay, Bisexual, Transgender, Queer, Inter-sex, and Asexual (LGBTQIA) rights has had three main themes since the civil rights era: freedom from criminalization of relationships and harassment by police; protection from discrimination in employment, housing, public ac-commodations, and government services; and civil protections for familial re-lationships, like the right to marry.[1] Freedom from criminalization of inti-mate relationships was won in 2003, when the Supreme Court held that the federal constitution protected same-sex intimate conduct and that states could not make that conduct criminal,[2] and that decision accelerated the fight for civil protections for familial relationships ...


Lessons From Ferguson And Beyond: Bias, Health, And Justice, Sidney D. Watson Jan 2017

Lessons From Ferguson And Beyond: Bias, Health, And Justice, Sidney D. Watson

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August 9, 2014, Michael Brown, an 18-year-old African American teen, killed by police in Ferguson, Missouri.

November 22, 2014, Tamir Rice, a 12-year-old African American child, killed by police in Cleveland, Ohio.

April 4, 2015, Walter Scott, a 50-year-old African American man, killed by police in Charlotte, North Carolina.

November 15, 2015, Jamar Clark, a 24-year-old African American man, killed by police in Minneapolis, Minnesota.

July 6, 2016, Philando Castile, a 32-year-old African American man, killed by police in Falcon Heights, Minnesota.

The list of Black men and women killed by police goes on and seems to grow by the ...


Special Issue "Health Care Law And The Rights Of Individuals With Disabilities", Elizabeth Pendo, Guest Editor Jan 2017

Special Issue "Health Care Law And The Rights Of Individuals With Disabilities", Elizabeth Pendo, Guest Editor

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People with disabilities are vulnerable. They carry high risk for poor health and health outcomes. As a group, they experience social disadvantages such as poverty, underemployment and unemployment, isolation, and discrimination at a higher rate than the general population. They also face multiple barriers to quality health care and report poorer health status than people without disabilities. This Special Issue will explore the key health disparities and barriers to health care experienced by people with disabilities, and explore the legal, ethical, and social issues they raise. It will investigate the legal requirements of the Americans with Disabilities and other antidiscrimination ...


Sterotypes As Channels And The Social Model Of Discrimination, Marcia L. Mccormick Jan 2017

Sterotypes As Channels And The Social Model Of Discrimination, Marcia L. Mccormick

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No abstract provided.


Out Of Ferguson: Misdemeanors, Municipal Courts, Tax Distribution And Constitutional Limitations, Henry Ordower, J. Onésimo Sandoval, Kenneth Warren Jan 2017

Out Of Ferguson: Misdemeanors, Municipal Courts, Tax Distribution And Constitutional Limitations, Henry Ordower, J. Onésimo Sandoval, Kenneth Warren

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The matter of police and municipal courts as revenue producers became increasingly prominent following Michael Brown’s death from a police shooting. This article considers the use of misdemeanors, especially traffic violations, for the purpose of collecting substantial portions of the annual operating budgets in municipalities in St. Louis County, Missouri. The article argues that the revenue raising function of traffic offenses has displaced their public safety and traffic regulation functions. The change in function from public safety to revenue suggests that the governing laws are no longer valid as exercise of policing power but must be reenacted under the ...


Missing The 'Target': Preventing The Unjust Inclusion Of Vulnerable Children For Medical Research Studies, Ruqaiijah Yearby Jan 2016

Missing The 'Target': Preventing The Unjust Inclusion Of Vulnerable Children For Medical Research Studies, Ruqaiijah Yearby

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The central purpose of medical research on children is to generate new knowledge that can improve children’s health, subject to ethical standards that promote justice. Incorporated in U.S. law, international law, and European Union law, the Justice Principle prohibits targeting in medical research, which is the selection of research subjects because of their manipulability and compromised position, rather than for reasons directly related to the problem being studied. Unfortunately, medical research studies involving children have too often violated the Justice Principle, by targeting children in a compromised position due to their health status and vulnerable to manipulability because ...


Hidden From View: Disability, Segregation And Work, Elizabeth Pendo Jan 2016

Hidden From View: Disability, Segregation And Work, Elizabeth Pendo

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The employment provisions of the Americans with Disabilities Act of 1990 were intended to bring working-age people with disabilities into the workplace by providing options for them to seek and gain meaningful, integrated employment. Although the ADA has made significant gains, the rate of progress in employment has been disappointing. While the lack of progress of people with disabilities in the traditional workplace has received attention, the work done by many, especially those with severe disabilities in segregated workplaces, remains hidden in sheltered workshops. This chapter explores the intersection of the concepts of disability, invisibility, and work and identifies the ...


Race Based Medicine, Color Blind Disease: How Racial Preferences In Violation Of The 14th Amendment Are Killing Us All, Ruqaiijah Yearby Jan 2016

Race Based Medicine, Color Blind Disease: How Racial Preferences In Violation Of The 14th Amendment Are Killing Us All, Ruqaiijah Yearby

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Disease is color blind, but medicine is not. For example, sickle cell disease is often discussed in terms of a Black disease; however, people of all different races suffer from sickle cell. Moreover, sickle cell is found in a number of places that have little to no Blacks, such as Afghanistan, Bangladesh, Burma, and Honduras. Nevertheless, health care providers often provide people of different races different levels of care justifying their disparate treatment based on scientific claims. However, not only are these scientific claims baseless, but also the explicit use of race to determine what medical treatment is provided patients ...


Missing The “Target”: Preventing The Unjust Inclusion Of Vulnerable Children For Medical Research Studies, Ruqaiijah A. Yearby Jan 2016

Missing The “Target”: Preventing The Unjust Inclusion Of Vulnerable Children For Medical Research Studies, Ruqaiijah A. Yearby

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Nearly everyone has experienced a burn and the resulting pain. Now imagine that you suffer a third-degree radiation burn that injures all the layers of your skin as well as the tissue, causing you extreme pain. . The burn turns your skin white, cherry red, or black and may produce blisters that are dry, hard, and leathery-looking. The burn can also be seen on the surface of your lungs and gastrointestinal tract. If the burn is big enough you will need skin grafts and surgery to replace the skin and tissue that will never grow back, as well as treatment to ...


Teaching "Ferguson", Chad Flanders Nov 2015

Teaching "Ferguson", Chad Flanders

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What we now refer to simply as "Ferguson" erupted in August of 20T4 and immediately raised a cluster o f legal issues. What crime had Michael Brown allegedly committed? Did Officer Darren Wilson commit a crime when he shot at Brown? Protests ensued, and they in turn inspired a police response, a response that seemed to many more violent than the protests themselves. What of the First Amendment rights o f the protesters and o f the journalists covering them? What laws were they-protestors and some journalists-supposedly breaking?1

As the days and weeks passed, the legal issues multiplied, and ...


Let’S Pretend That Federal Courts Aren’T Hostile To Discrimination Claims, Marcia L. Mccormick Jan 2015

Let’S Pretend That Federal Courts Aren’T Hostile To Discrimination Claims, Marcia L. Mccormick

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Professor Sandra Sperino’s article, Let’s Pretend Discrimination Is a Tort,[1] makes a valuable contribution to the debate about the proper interpretation of Title VII and other employment discrimination laws in light of Supreme Court trends. Professor Sperino ably describes the way that the Supreme Court has used tort concepts increasingly in recent cases,[2] even having gone so far as to have called employment discrimination statutes federal torts.[3] This development has created significant concern among scholars,[4] including Professor Sperino herself.[5]

Rather than simply reiterate those concerns, however, in her article Professor Sperino adopts a ...