Law Commons^™

Between Law And Religion: Procedural Challenges To Religious Arbitration Awards, Michael Helfand

Michael A Helfand

This Essay presented at the Sharia and Halakha in America Conference explores the unique status of religious law as a hybrid concept that simultaneously retains the characteristics of both law and religion. To do so, the Article considers as a case study how courts should evaluate procedural challenges to religious arbitration awards. To respond to such challenges, courts must treat religious law as law when defining the contractually adopted religious procedural rules and treat religious law as religion when reviewing precisely what the religious procedural rules require. On this account, constitutional and arbitration doctrine combine to insulate religious arbitration awards …

Ncaa Athletes, Unpaid Interns And The S-Word: Exploring The Rhetorical Impact Of The Language Of Slavery, Maria Ontiveros

Maria L. Ontiveros

Religious Institutionalism, Implied Consent And The Value Of Voluntarism, Michael A. Helfand

Michael A Helfand

Increasingly, clashes between the demands of law and aspirations of religion center on the legal status and treatment of religious institutions. Much of the rising tensions revolving around religious institutions—exemplified by recent Supreme Court decisions such as Hosanna-Tabor v. EEOC and Burwell v. Hobby Lobby—stem from conflicts between the religious objectives of those institutions and their impact on third parties who do not necessarily share those same objectives. This Article aims to provide a framework for analyzing the claims of religious institutions by grounding those claims in the principle of voluntarism. On such an account, religious institutions deserve protection because …

How Employment Discrimination Plaintiffs Fare In Federal Court, Kevin Clermont, Stewart Schwab

Kevin M. Clermont

This article presents the full range of information that the Administrative Office’s data convey on federal employment discrimination litigation. From that information, the authors tell three stories about (1) bringing these claims, (2) their outcome in the district court, and (3) the effect of appeal. Each of these stories is a sad one for employment discrimination plaintiffs: relatively often, the numerous plaintiffs must pursue their claims all the way through trial, which is usually a jury trial; at both pretrial and trial these plaintiffs lose disproportionately often, in all the various types of employment discrimination cases; and employment discrimination litigants …

Hobby Lobby's Challenge To Officialdom's 'Compelling Interest', Michael Helfand

Michael A Helfand

No abstract provided.

The Murkiness Of The Hobby Lobby Ruling, Michael Helfand

Michael A Helfand

No abstract provided.

America Doesn't See Its Religious Minorities, Michael Helfand

Michael A Helfand

No abstract provided.

Panelist, “The Current Clash”, Michael Helfand

Michael A Helfand

No abstract provided.

Implied Consent: A Proposal On For-Profit Conscience, Michael Helfand

Michael A Helfand

No abstract provided.

Of Babies, Bathwater, And Throwing Out Proof Structures: It Is Not Time To Jettison Mcdonnell Douglas, William Corbett

William R. Corbett

No abstract provided.

Daubert V. Merrell Dow Pharmaceuticals Inc.: Keeping The Gate In Employment Discrimination Cases, William Corbett

William R. Corbett

No abstract provided.

The Fundamental Nature Of Title Vii, Maria Ontiveros

Maria L. Ontiveros

This article explores the fundamental nature of Title VII and argues that Title VII is a statute designed to protect the right to own and use one's own labor free from discrimination in order to provide meaningful economic opportunity and participation. This conclusion is based upon three different types of analysis: the elements approach; the super statute approach and the human rights approach. The "elements approach" places Title VII in context and argues that it cannot be interpreted in isolation because it is only one element of the Civil Rights Act of 1964. The "super statute approach" argues that Title …

Has The Roberts Court Plurality's Colorblind Rhetoric Finally Broken Brown's Promise?, Phoebe Haddon

Phoebe A. Haddon

This Essay examines the continuing significance of the Keyes decision to the judicial vision of equality and racial isolation in public education. By comparing efforts to promote educational equality from the Keyes era through today, this Essay asserts that the judiciary has wrongly embraced a colorblind interpretation of the Equal Protection Clause. In so doing, courts have impeded the progress of children in Denver and around the country, ignored highly instructive social science studies on the benefits of desegregation, and broken the constitutional promise of equal citizenship. For future policy makers and lawyers to address these persistent problems, legal educators …

Life And Death Decision-Making: Judges V. Legislators As Sources Of Law In Bioethics, Charles Baron

Charles H. Baron

In some situations, courts may be better sources of new law than legislatures. Some support for this proposition is provided by the performance of American courts in the development of law regarding the “right to die.” When confronted with the problems presented by mid-Twentieth Century technological advances in prolonging human life, American legislators were slow to act. It was the state common law courts, beginning with Quinlan in 1976, that took primary responsibility for gradually crafting new legal principles that excepted withdrawal of life-prolonging treatment from the application of general laws dealing with homicide and suicide. These courts, like the …

Baker V. State And The Promise Of The New Judicial Federalism, Charles Baron, Lawrence Friedman

Charles H. Baron

In Baker v. State, the Supreme Court of Vermont ruled that the state constitution’s Common Benefits Clause prohibits the exclusion of same-sex couples from the benefits and protections of marriage. Baker has been praised by constitutional scholars as a prototypical example of the New Judicial Federalism. The authors agree, asserting that the decision sets a standard for constitutional discourse by dint of the manner in which each of the opinions connects and responds to the others, pulls together arguments from other state and federal constitutional authorities, and provides a clear basis for subsequent development of constitutional principle. This Article explores …

Medical Paternalism And The Rule Of Law: A Reply To Dr. Relman, Charles Baron

Charles H. Baron

In this Article, Professor Baron challenges the position taken recently by Dr. Arnold Relman in this journal that the 1977 Saikewicz decision of the Supreme Judicial Court of Massachusetts was incorrect in calling for routine judicial resolution of decisions whether to provide life-prolonging treatment to terminally ill incompetent patients. First, Professor Baron argues that Dr. Relman's position that doctors should make such decisions is based upon an outmoded, paternalistic view of the doctor-patient relationship. Second, he points out the importance of guaranteeing to such decisions the special qualities of process which characterize decision making by courts and which are not …

Assuring "Detached But Passionate Investigation And Decision": The Role Of Guardians Ad Litem In Saikewicz-Type Cases, Charles Baron

Charles H. Baron

The author focuses this Article upon the aspect of the Saikewicz decision which determines that the kind of "proxy consent" question involved in that case required for its decision "the process of detached but passionate investigation and decision that forms the ideal on which the judicial branch of government was created." This aspect of the decision has drawn much criticism from the medical community on the ground that it embroils what doctors believe to be a medical question in the adversarial processes of the court system. The author criticizes the decision from an entirely opposite perspective, arguing that the court's …

The Need For A Revitalized Common Law Of The Workplace, William Corbett

William R. Corbett

No abstract provided.

Faragher, Ellerth, And The Federal Law Of Vicarious Liability For Sexual Harassment By Supervisors: Something Lost, Something Gained, And Something To Guard Against, William Corbett

William R. Corbett

In this Essay, the author faces his nightmare exam question: he must define "sexual harassment" to the satisfaction of several potential graders with different perspectives on sexual harassment law. His valiant effort to justify his response leads him to a discussion of the federal law of vicarious liability for sexual harassment by supervisors after the Supreme Court's recent rejection of tort law respondeat superior analysis for such claims under Title VII. The author argues that, while the rejection of the tort standard for vicarious liability in Title VII claims removes the longstanding connection between Title VII law and state tort …

The Ugly Truth About Appearance Discrimination And The Beauty Of Our Employment Discrimination Law, William Corbett

William R. Corbett

No abstract provided.

Fixing Employment Discrimination Law, William Corbett

William R. Corbett

Employment discrimination law in the United States is "broken." The proof structures that are used to analyze claims,rule on motions, and instruct juries are fraught with crucial uncertainties. The state of disrepair is so bad that lawyers and judges do not know how to analyze any given case. It is time for Congress to repair the proof structures through legislation, and it is a propitious time to do so. This article proposes the repairs that Congress should enact.

What Is A "Church"?: Implied Consent And The Contraception Mandate, Michael Helfand

Michael A Helfand

This Article considers the “religious employer” exception to the “contraception mandate” – that is, the “preventative care” requirements announced by Department of Health and Human Services pursuant to the Patient Protection and Affordable Care Act. This exception has triggered significant litigation with a variety of employers claiming that they have been excluding from the “religious employer” classification in violation of both the First Amendment and the Religious Freedom Restoration Act. In considering these claims, this Article applies an “implied consent” framework to these cases, which grounds the authority of religious institutions in the presumed consent of their members. On such …

Critical Race Histories: In And Out, Darren Hutchinson

Darren L Hutchinson

No abstract provided.

Imposition, Richard Delgado, Jean Stefancic

Richard Delgado

No abstract provided.

Religious Arbitration And The New Multiculturalism: Negotiating Conflicting Legal Orders, Michael A. Helfand

Michael A Helfand

This Article considers a trend towards what I have termed the "new multiculturalism," where conflicts between law and religion are less about recognition and symbolism and more about conflicting legal orders. Nothing typifies this trend more than the increased visibility of religious arbitration, whereby religious groups use current arbitration doctrine to have their disputes adjudicated not in U.S. courts and under U.S. law, but before religious courts and under religious law. This dynamic has pushed the following question to the forefront of the multicultural agenda: under what circumstances should U.S. courts enforce arbitration awards issued by religious courts in accordance …

Transforming Free Speech; The Ambiguous Legacy Of Civil Libertarianism, Mark Graber

Mark Graber

Contemporary civil libertarians claim that their works preserve a worthy American tradition of defending free-speech rights dating back to the framing of the First Amendment. Transforming Free Speech challenges the worthiness, and indeed the very existence of one uninterrupted libertarian tradition.

Mark A. Graber asserts that in the past, broader political visions inspired libertarian interpretations of the First Amendment. In reexamining the philosophical and jurisprudential foundations of the defense of expression rights from the Civil War to the present, he exposes the monolithic free-speech tradition as a myth. Instead of one conception of the system of free expression, two emerge: …

The Disappearing Opt-Out Right In Punitive Damages Class Actions, Richard Frankel

Richard H. Frankel

One of the most pressing issues in punitive damages law today is how to protect defendants from multiple punitive damages awards for a single course of conduct, while still ensuring that wronged plaintiffs can recover punitive damages. Numerous commentators have proposed non-opt-out class actions for punitive damages as the best solution to the multiple punishment problem because they subject defendants to a single collective punitive damages award that can be distributed equitably across all injured plaintiffs. This Article takes a contrary view. It argues that mandatory classes improperly deprive class plaintiffs of their right to opt out and pursue their …

Building A Movement With Immigrant Workers: The 1972-74 Strike And Boycott At Farah Manufacturing, Maria L. Ontiveros

Maria L. Ontiveros

Between May, 1972 and February, 1974, thousands of Chicana workers struck Farah Manufacturing plants throughout Texas. They were joined in their efforts by the Amalgamated Clothing Workers of America who orchestrated nationwide pickets calling for a boycott of Farah slacks. The strike and boycott were supported by various civil rights groups, politicians and religious organizations. Working together, they caused a dramatic drop in sales, large operating losses and a substantial drop in the company's share price. After several victories before the National Labor Relations Board, the strike settled with the company rehiring 3,000 strikers and recognizing the union. The company, …

Material Witness Detentions After Al-Kidd, Wesley M. Oliver

Wesley M Oliver

The Supreme Court’s decision in Ashcroft v. al-Kidd was a tempest in a teapot. The Court concluded only that a witness was no less susceptible to arrest under the Federal Material Witness Statute if the government was interested in prosecuting the witness himself. Unremarkably under the holding, it is no more difficult to detain an al-Qaeda member who witnessed a crime than it is to detain an innocent bystander who witnessed a crime. The fact that a criminal suspect can be held, however, raises concerns beyond the scope of the narrow question before the Court. If the government’s real interest …

Thurgood Marshall, The Race Man, And Gender Equality In The Courts, Taunya Banks

Taunya Lovell Banks

Renowned civil rights advocate and race man Thurgood Marshall came of age as a lawyer during the black protest movement in the 1930s. He represented civil rights protesters, albeit reluctantly, but was ambivalent about post-Brown mass protests. Although Marshall recognized law's limitations, he felt more comfortable using litigation as a tool for social change. His experiences as a legal advocate for racial equality influenced his thinking as a judge. Marshall joined the United States Supreme Court in 1967, as dramatic advancement of black civil rights through litigation waned. Other social movements, notably the women's rights movement, took its place. The …