Law Commons^™

Reflections On Representing Incarcerated People With Disabilities: Ableism In Prison Reform Litigation, Jamelia Morgan

Faculty Articles and Papers

Over the last five decades, advocates have fought for and secured constitutional prohibitions challenging solitary confinement, including ending the placement and prolonged isolation of individuals with psychiatric disabilities in solitary confinement. Yet, despite the valiant efforts of this courageous movement to protect the rights of incarcerated people with disabilities through litigation, the legal regime protecting these rights reflects a troubling paradigm: ableism.

Ableism is a complex system of cultural, political, economic, and social practices that facilitate, construct, or reinforce the subordination of people with disabilities in a given society. In this Essay I argue that current Eighth Amendment jurisprudence in …

Disparate Impact And Voting Rights: How Objections To Impact-Based Claims Prevent Plaintiffs From Prevailing In Cases Challenging New Forms Of Disenfranchisement, Jamelia Morgan

Faculty Articles and Papers

As this article will show, the reluctance of courts to accept evidence of "impact plus" stems in part from a concern that the remedies required by impact-based claims under Section 2 of the Voting Rights Act will involve essentialism and an affront to individual dignity. These concerns are animated in the vote dilution context where, in cases challenging the dilution of the minority vote, and not involving intentional vote dilution, objections have centered on the notion that Section 2's results test requires courts to make essentialist claims regarding minority and non-minority voting patterns and election choices. Such objections are misplaced …

Caged In: The Devastating Harms Of Solitary Confinement On Prisoners With Physical Disabilities, Jamelia Morgan

Faculty Articles and Papers

This article draws from interviews with currently and formerly incarcerated people with disabilities, disability rights advocates, prisoners' rights advocates, medical experts, legal scholars, and correctional officials, and examines the conditions of confinement, harms, and challenges facing prisoners with physical disabilities in solitary confinement. In addition, this article fills some of the gaps in data and where possible builds on existing data to provide a snapshot into (1) the number of people with physical disabilities; (2) the number of prisoners with physical disabilities in solitary confinement; and (3) the volume of grievances filed by prisoners with disabilities in ten state prison …

One Not Like The Other: An Examination Of The Use Of The Affirmative Action Analogy In Reasonable Accommodation Cases Under The Americans With Disabilities Act, Jamelia Morgan

Faculty Articles and Papers

This Article discusses the debate within the courts regarding the employer's affirmative obligations under the ADA's reasonable accommodation clause by focusing on the use of the affirmative action analogy. The purpose of this Article is to examine the evolution of the affirmative-action analogy in reasonable-accommodation case law over time and to decipher its meaning and relevance. At the onset, it is important to establish a few definitions and assumptions. First, the affirmative-action analogy refers to cases where courts liken or compare the plaintiff's reasonable-accommodation request to affirmative action. Specifically, the Article examines cases where the term "affirmative action" explicitly appears …

Protecting The Compromised Worker: A Challenge For Employment Discrimination Law, Peter Siegelman

Faculty Articles and Papers

Only the very best workers are completely satisfactory, and they are not likely to be discriminated against-the cost of discrimination is too great. The law tries to protect average and even below average workers against being treated more harshly than would be the case if they were of a different race, sex, religion, or national origin, but it has difficulty achieving this goal because it is so easy to concoct a plausible reason for not hiring, or firing, or failing to promote, or denying a pay raise to, a worker who is not superlative.

Legislating Incentives For Attorney Representation In Civil Rights Litigation, Douglas M. Spencer, Sean Farhang

Faculty Articles and Papers

Congress routinely relies on private lawsuits to enforce its mandates. In this article, we investigate whether, when it does so, the details of the legislation can importantly influence the extent to which the private bar is mobilized to carry out the prosecutorial function. Using an original and novel data set based on review of archived litigation documents for cases filed in the Northern and Eastern Districts of California over the two decades spanning 1981-2000, we examine the effects of the Civil Rights Act of 1991, which increased economic damages available to Title VII job discrimination plaintiffs, on their ability to …

The Geography Of Racial Stereotyping: Evidence And Implications For Vra Preclearance After Shelby County, Douglas M. Spencer, Christopher S. Elmendorf

Faculty Articles and Papers

The Supreme Court in Shelby County v. Holder (2013) effectively enjoined the preclearance regime of the Voting Rights Act. The Court deemed the coverage formula, which determines the jurisdictions subject to preclearance, insufficiently grounded in current conditions. This Article proposes a new, legally defensible approach to coverage based on between-state differences in the proportion of voting age citizens who subscribe to negative stereotypes about racial minorities and who vote accordingly. The new coverage formula could also account for racially polarized voting and minority population size, but, for constitutional reasons, subjective discrimination by voters is the essential criterion. We demonstrate that …

Reconciling Equal Protection And Federal Indian Law, Bethany Berger

Faculty Articles and Papers

In this essay for a festschrift in celebration of Philip Frickey and his work, I show how equal protection and federal Indian law can be reconciled without succumbing to what Professor Frickey has called the seduction of artificial coherence. Federal Indian policies increasingly face arguments that, in providing special treatment for individuals and groups defined in part by descent from indigenous tribes, they violate the requirement of equal protection before the law. I argue that such arguments ignore the congruence of federal Indian policy and equal protection as a matter of constitutional norms, constitutional history, and constitutional text. Federal Indian …

Detecting The Stealth Erosion Of Precedent: Affirmative Action After Ricci, Sachin S. Pandya

Faculty Articles and Papers

This paper presents a method for detecting stealth precedent erosion, i.e., when an appellate court majority deliberately writes the opinion in case y to reduce the scope of its precedent x, but does not expressly refer to precedent x in the opinion. Applying this method, the paper provides a strong basis for concluding that in Ricci v. DeStefano (2009), a United States Supreme Court case decided under Title VII of the Civil Rights Act of 1964, the Court majority eroded by stealth United Steelworkers of America v. Weber (1979), and Johnson v. Transportation Agency (1987), both cases that read Title …

Red: Racism And The American Indian, Bethany Berger

Faculty Articles and Papers

How does racism work in American Indian law and policy? Scholarship on the subject has too often assumed that racism works for Indians in the same way that it does for African Americans, and has therefore either emphasized the presence of hallmarks of White-Black racism, such as uses of blood quantum, as evidence of racism, or has emphasized the lack of such hallmarks, such as prohibitions on interracial marriage, to argue that racism is not a significant factor. This Article surveys the different eras of Indian-White interaction to argue that racism has been important in those interactions, but has worked …

Straight From The Mouth Of The Volcano: The Lowdown On Law, Language, And Latin@S, Ángel Oquendo

Faculty Articles and Papers

No abstract provided.

Rethinking The Tripartite Division Of American Work Law, Michael Fischl

Faculty Articles and Papers

The holy trinity of American work law - employment discrimination, labor law, and employment law - has governed the American workplace for over four decades and is also firmly entrenched in the curricula of most law schools. But the discrete lenses provided by the conventional trinity make it difficult to bring into focus two distinct but related dimensions of the accelerating integration of American work law. Thus, we are on the one hand experiencing an accelerating doctrinal integration of our field, as the settings in which nominally out of area law plays a significant governance role are rapidly proliferating. At …

Contributory Disparate Impacts In Employment Discrimination Law, Peter Siegelman

Faculty Articles and Papers

An employer who adopts a facially neutral employment practice that disqualifies a larger proportion of protected-class applicants than others is liable under a disparate impact theory. Defendants can escape liability if they show that the practice is justified by business necessity. But demonstrating business necessity requires costly validation studies that themselves impose a significant burden on defendants-upwards of $100,000 according to some estimates. This Article argues that an employer should have a defense against disparate impact liability if it can show that protected-class applicants failed to make reasonable efforts to train or prepare for a job related test. That is, …

Q-Word As Red Herring: Why Disparate Impact Liability Does Not Induce Hiring Quotas, Peter Siegelman, Ian Ayres

Faculty Articles and Papers

The debates over the passage of Title VII of the 1964 Civil Rights Act' were marked by passionate disagreement: conservatives objected to the legislation as an unwarranted interference with employers' freedom of contract, while liberal supporters considered it a first step toward racial justice. While disagreement about what employment discrimination law should do has continued-in much the same form-to this day, there has been surprising consensus about the mechanism by which Title VII actually works: whether it is thought of as inadequate or excessive, Title VII is usually presumed to promote the hiring of those it is designed to protect.'The …

Dealing With Diversity: Changing Theories Of Discrimination, Deborah Calloway

Faculty Articles and Papers

No abstract provided.

Accommodating Pregnancy In The Workplace, Deborah Calloway

Faculty Articles and Papers

No abstract provided.

Race And Gender Discrimination In Bargaining For A New Car, Peter Siegelman, Ian Ayres

Faculty Articles and Papers

More than 300 paired audits at new-car dealerships receal that dealers quoted significantly lower prices to white males than to black or female test buyers using identical, scripted bargaining strategies. Ancillary ecidence suggests that the dealerships' disparate treatment of women and blacks may be caused by dealers' statistical inferences about consumers' resercation prices, but the data do not strongly support any single theory of discrimination.

The Selection Of Employment Discrimination Disputes For Litigation: Using Business Cycle Effects To Test The Priest-Klein Hypothesis, Peter Siegelman, John J. Donohue Iii

Faculty Articles and Papers

Employment discrimination cases filed during recessions are more likely to settle after filing and less likely to be won by plaintiffs than those filed when the economy is strong. This model of litigation confirms two predictions of the Priest-Klein model of litigation. First, relatively weak cases (for either party) should be more likely to settle. Second, the party with the greater stake in litigation will have the higher win rate in adjudicated disputes; the special case of even stakes produces a 50 percent plaintiff win rate. The settlement process does not produce complete selection, however: the strong version of the …

St. Mary's Honor Center V. Hicks: Questioning The Basic Assumption, Deborah Calloway

Faculty Articles and Papers

No abstract provided.

Shaky Grounds: The Case Against The Case Against Antidiscrimination Laws, Peter Siegelman

Faculty Articles and Papers

Reviewing: Richard Epstein, Forbidden Grounds: The Case against Employment Discrimination Laws. Cambridge, Mass.: Harvard University Press, 1991.

The Changing Nature Of Employment Discrimination Litigation, Peter Siegelman, John J. Donohue Iii

Faculty Articles and Papers

Two major pieces of employment discrimination legislation were passed in the early 1990s: the 1991 Civil Rights Act and Americans with Disabilities Act. Using some simple regression models, we examine the effects of this legislation on the volume, content and outcomes of employment discrimination cases filed in federal courts. We find, first, that the volume of discrimination cases nearly doubled between 1992 and 1997, in contrast to a 10 percent decline during the previous 8 years, and despite a sharply falling unemployment rate that–in the past–would have substantially reduced the amount of litigation. We also observe a significant shift in …

Studying The Iceberg From Its Tip: A Comparison Of Published And Unpublished Employment Discrimination Cases, Peter Siegelman, John J. Donohue Iii

Faculty Articles and Papers

Researchers often rely on published opinions to draw conclusions about cases decided by the courts, determinants of court decisions, and broader social phenomena. We demonstrate that 80 to 90 percent of employment discrimination cases filed in federal court do not produce a published opinion. There are good theoretical reasons to believe that the process generating a published opinion is not random and thus that samples of published cases will not be representative of all cases. Through a direct comparison of published and unpublished cases, we show that the two actually do differ in significant and predictable ways. Examining several studies …

Equal Employment And Third Party Privacy Interests: An Analytical Framework For Reconciling Competing Rights, Deborah Calloway

Faculty Articles and Papers

No abstract provided.

Tragic Choices In Special Education: The Effect Of Scarce Resources On The Implementation Of Pub. L. No. 94-142, James Stark

Faculty Articles and Papers

No abstract provided.

New Definition Of Seniority System Violations Under Title Vii: He Who Seeks Equity..., Stephen Utz

Faculty Articles and Papers

No abstract provided.