Law Commons^™

Religious Convictions, Anna Offit

Faculty Journal Articles and Book Chapters

The Anglo-American jury emerged at a time when legal and religious conceptions of justice were entwined. Today, however, though the American public remains comparatively religious, the country’s legal system draws a distinction between legal and religious modes of determining culpability and passing judgment. This Article examines the doctrine that governs the place of religious belief and practice in U.S. jury selection proceedings. It argues that the discretion afforded to judges with respect to applying the Batson antidiscrimination doctrine has given these beliefs and practices an ambiguous status. On the one hand, judges aim to protect prospective religious jurors from discrimination. …

The Incongruence Principle Of Evidence, Hillel Bavli

Faculty Journal Articles and Book Chapters

Evidence law assumes that the meaning and value of information at trial is equal to the meaning and value of the same information in the real world. This premise underlies evidence policy, judicial applications of evidence law, and instructions to jurors for evaluating evidence. However, it is incorrect, and the law’s failure to recognize this hinders its aims of accuracy and equality.

In this article, I draw on fields outside of law - including Bayesian inference and cognitive psychology - to develop a model of evidence that describes how jurors combine new evidence with prior beliefs (or “priors”) to make …

Character Evidence As A Conduit For Implicit Bias, Hillel J. Bavli

Faculty Journal Articles and Book Chapters

The Federal Rules of Evidence purport to prohibit character evidence, or evidence regarding a defendant’s past bad acts or propensities offered to suggest that the defendant acted in accordance with a certain character trait on the occasion in question. However, courts regularly admit character evidence through an expanding set of legislative and judicial exceptions that have all but swallowed the rule. In the usual narrative, character evidence is problematic because jurors place excessive weight on it or punish the defendant for past behavior. Lawmakers rely on this narrative when they create exceptions. However, this account arguably misses a highly troublesome …

Causation In Civil Rights Legislation, Hillel J. Bavli

Faculty Journal Articles and Book Chapters

Employees are often left unprotected from discrimination because they are unable to satisfy the requirement of causation. Courts have made clear that to obtain legal redress for discrimination, it is generally insufficient to show that a protected characteristic such as race or sex was a “motivating factor” of an adverse employment decision. Rather, under Supreme Court precedent—including the Court’s Comcast and Babb decisions in the 2020 term—the antidiscrimination statutes generally require a showing of “but-for” causation. Consequently, many victims of discrimination will be unable to prevail because an employer can readily refute allegations of discrimination by asserting a legitimate purpose—true …

Playing By The Rule: How Aba Model Rule 8.4(G) Can Regulate Jury Exclusion, Anna Offit

Faculty Journal Articles and Book Chapters

Discrimination during voir dire remains a critical impediment to empaneling juries that reflect the diversity of the United States. While various solutions have been proposed, scholars have largely overlooked ethics rules as an instrument for preventing discriminatory behavior during jury selection. Focusing on the ABA Model Rule 8.4(g), which regulates professional misconduct, this article argues that ethics rules can, under certain conditions, offer an effective deterrent to exclusionary practices among legal actors. Part I examines the specific history, evolution, and application of revised ABA Model Rule 8.4(g). Part II delves into the ways that ethics rules in general, despite their …

The Failure Of Title Vii As A Rights-Claiming System, Deborah L. Brake, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

This Article takes a comprehensive look at the failure of Title VII as a system for claiming nondiscrimination rights. The Supreme Court's recent decision in Ledbetter v. Goodyear Tire & Rubber Company, 127 S. Ct. 2162 (2007), requiring an employee to assert a Title VII pay discrimination claim within 180 days of when the discriminatory pay decision was first made, marks the tip of the iceberg in this flawed system. In the past decade, Title VII doctrines at both ends of the rights-claiming process have become increasing hostile to employees. At the front end, Title VII imposes strict requirements on …

Race Discrimination And Human Rights Class Actions: The Virtual Exclusion Of Racial Minorities From The Class Action Device, George A. Martinez

Faculty Journal Articles and Book Chapters

In the era of Jim Crow, racial minorities were segregated and excluded from participating in white society. Minorities were segregated in public schools, excluded from public accommodations, excluded from participation on juries, and excluded from living in certain areas. Harkening back to that earlier time, racial minorities now are often excluded from using the class action device to bring civil rights claims.

This paper argues that courts are very tough in how they handle class certification decisions in race discrimination class actions. On the other hand, the courts are quite lenient in how they handle class certification decisions in human …

Grutter And Gratz: A Critical Analysis, Lackland H. Bloom Jr.

Faculty Journal Articles and Book Chapters

This Article will analyze the Grutter and Gratz opinions, especially Justice O'Connor's important opinion for the majority in Grutter, and will consider the significance of these decisions in terms of university admissions policy, justifications for racial preferences, and equal protection doctrine. The article will conclude that the Court's defense of the use of racial preferences does not square well with the Powell opinion in Bakke on which it relied so heavily. It will suggest that the Court could have offered a more persuasive explanation for the result it reached but probably felt precluded by precedent from doing so.

Hopwood, Bakke And The Future Of The Diversity Justification, Lackland H. Bloom Jr.

Faculty Journal Articles and Book Chapters

The decision of the Court of Appeals for the Fifth Circuit in Hopwood v. Texas sent shock waves through the academic community with its holding that the Equal Protection Clause of the Fourteenth Amendment prohibited the University of Texas Law School from taking account of race as a factor in its admissions process. In the course of invalidating certain procedures employed by the law school, the Fifth Circuit concluded that Justice Powell's influential opinion in Regents of the University of California v. Bakke, which recognized the pursuit of diversity in higher education as a compelling state interest, had never constituted …

Legal Indeterminacy, Judicial Discretion And The Mexican-American Litigation Experience: 1930-1980, George A. Martinez

Faculty Journal Articles and Book Chapters

This article explores a jurisprudential point: legal indeterminacy in the context of Mexican-American civil rights litigation. The article argues that because of legal uncertainty or indeterminacy the resolution of key issues was not inevitable. Judges often had discretion to reach their conclusions. In this regard, the article concludes that the courts generally exercised their discretion by taking a position on key issues against Mexican-Americans. The article points out that exposing the exercise of judicial discretion and the lack of inevitability in civil rights cases is important for two major reasons. At one level, exposing the exercise of judicial discretion is …