Law Commons^™

Pleading Civil Rights Claims In The Post-Conley Era, A. Benjamin Spencer

Faculty Publications

Much has been made of the Supreme Court's recent pronouncements on federal civil pleading standards during the latter half of the 2006-2007 Term. Specifically, what will be the fallout from the Court's decision in Bell Atlantic Corp. v. Twombly, a case that abrogated Conley v. Gibson's famous "no set of facts" formulation and supplanted it with a new plausibility pleading standard? This Article attempts to examine and distill the impact of Twombly on the pleading standards that lower federal courts are applying when scrutinizing civil rights claims. Two main approaches emerge: that of courts choosing to continue to apply a …

The Uncertain Future Of School Desegregation And The Importance Of Goodwill, Good Sense, And A Misguided Decision, Derek W. Black

Faculty Publications

The article was part of a symposium on the jurisprudence of Supreme Court Justice Sandra Day O’Connor. First, the article analyzed whether the Court’s decision in Parents Involved v. Seattle Schools was consistent with Justice O’Connor’s majority opinion in Grutter v. Bollinger. The article concludes that Parents Involved narrowly construed the holding in Grutter and limited its effect. Second, the article assessed the practical import of the decision in Parents Involved. It found that the opinion made voluntary desegregation more difficult than it otherwise would be and, thus, would discourage many school districts from taking progressive action. Unfortunately, the article …

The Availability And Viability Of Socioeconomic Integration Post-Parents Involved, Eboni S. Nelson

Faculty Publications

No abstract provided.

Torture, With Apologies, Thomas P. Crocker

Faculty Publications

No abstract provided.

Irrational Exuberance For Babies: The Taste For Heterosexuality And Its Conspicuous Reproduction, Jose M. Gabilondo

Faculty Publications

This article targets a flying buttress of normative heterosexuality: its physical reproduction via procreation and its symbolic propagation through parents' pre-natal preferences for heterosexuality in future children. While the parental "taste for heterosexuality" is often asserted for the sake of future children themselves, this justification overlooks the role of parental self-interest, including anticipated social gains to parents from heterosexuality in children. Hence the taste sets the stage both for sexual orientation-based abuse of future children and the devaluation of sexual minority adults. Courts too have a taste for heterosexuality, shown here in two state court cases denying gays and lesbians …

Monetizing Diaspora: Liquid Sovereigns, Fertile Workers, And The Interest-Convergence Around Remittance, Jose M. Gabilondo

Faculty Publications

No abstract provided.

Framework For The Next Civil Rights Act: What Tort Concepts Reveal About Goals, Results, And Standards, Derek W. Black

Faculty Publications

This article anticipates that the next president and the current Congress will likely pursue civil rights legislation for the first time since 1991. Their most significant and difficult task will be determining whether to retain the Supreme Court’s intentional discrimination standard. Because this issue has so often led to polemic debates and court decisions in the past, this article attempts to provide a neutral framework for that discussion. Relying on tort concepts and their longstanding connection to constitutional torts, it demonstrates that the attempt to create a standard to prohibit immoral or “wrongful” conduct is both misguided and will prove …

Video Evidence And Summary Judgment: The Procedure Of Scott V. Harris, Howard Wasserman

Faculty Publications

In Scott v. Harris (2007), the Supreme Court granted summary judgment on a Fourth Amendment excessive-force claim brought by a motorist injured when a pursuing law-enforcement officer terminated a high-speed pursuit by bumping the plaintiff's car. The Court relied almost exclusively on a video of the chase captured from the officer's dash-mounted camera and disregarded witness testimony that contradicted the video. In granting summary judgment in this circumstance, the Court fell sway to the myth of video evidence as able to speak for itself, as an objective, unambiguous, and singularly accurate depiction of real-world events, not subject to any interpretation …

A Constitutional Analysis Of Parents Involved In Community Schools V. Seattle School District No. 1 And Voluntary School Integration Policies, Angelo N. Ancheta

Faculty Publications

On June 28, 2007, a sharply divided United States Supreme Court invalidated student assignment plans in Seattle, Washington and Louisville, Kentucky that were designed to promote racial diversity and to address racial isolation in K-12 education. By a 5-to-4 vote in Parents Involved in Community Schools v. Seattle School District No. I and McFarland v. Jefferson County Board of Education, the Court struck down voluntary integration plans under the "strict scrutiny" standard applied to race-conscious policies challenged under the Equal Protection Clause of the Fourteenth Amendment, and ruled that the plans were not narrowly tailored to the interests asserted by …

Undercover Power: Examining The Role Of The Executive Branch In Determining The Meaning And Scope Of School Integration Jurisprudence, Lia Epperson

Faculty Publications

This paper focuses on the interaction of the federal judicial and executive branches of government in one key area of civil rights, determining the scope and direction of school integration. Specifically, this paper examines the extremely powerful role of the United States Department of Education's Office for Civil Rights ("OCR") in shaping the application of the Supreme Court's decisions with respect to racial inclusion in public education in the wake of two watershed rulings, Brown v. Board of Education and Grutter v. Bollinger. In addition, this paper discusses the possible consequences of executive and judicial interplay in the aftermath of …

Science And Constitutional Fact Finding In Equal Protection Analysis, Angelo N. Ancheta

Faculty Publications

This Article examines theories of fact finding and rules of evidence, as well as critiques of scientific citations in equal protection litigation, drawing on opinions starting with Brown v. Board of Education and its well-known citation of psychological and sociological studies documenting the harms of segregation-what the Brown Court labeled "modem authority." Second, this Article examines a range of equal protection cases and discusses how constitutional frameworks have shaped both core constitutional values and the gathering of relevant constitutional facts. Third, this Article examines in more detail the Parents Involved cases, as well as the underlying science and the citation …

Disabling Prejudice, Michael E. Waterstone, Michael Ashley Stein

Faculty Publications

No abstract provided.

Is Nominal Use An Answer To The Free Speech & Right Of Publicity Quandary?: Lessons From America’S National Pastime, Raymond Shih Ray Ku

Faculty Publications

No abstract provided.

Settling The Matter: Does Title I Of The Ada Work?, Sharona Hoffman

Faculty Publications

Analysis of cases decided under Title I of the Americans with Disabilities Act (ADA), which addresses employment discrimination, reveals that defendants have consistently prevailed in well over 90% of cases since the ADA's inception. This empirical evidence has led many commentators to conclude that the ADA's Title I has failed to improve workplace conditions for individuals with disabilities.

This article attempts to assess the efficacy of Title I through a different lens. It focuses on several data sets that have previously received little attention. It examines Equal Employment Opportunity Commission merit resolutions, lawsuit settlement statistics, and reports concerning reasonable accommodation …

Parents Involved And The Meaning Of Brown: An Old Debate Renewed, Jonathan L. Entin

Faculty Publications

In Parents Involved in Community Schools v. Seattle School District No. 1 the Supreme Court debated the meaning of Brown v. Board of Education. This essay, prepared for a symposium on Parents Involved, traces the roots of the debate between color-blindness and anti-subordination to Brown itself and efforts to desegregate public schools in the wake of that decision but shows that the debate goes back at least as far as the tensions reflected in the first Justice Harlan's celebrated dissent in Plessy v. Ferguson.

Reconstituting Japanese Law: International Norms And Domestic Litigation, Timothy Webster

Faculty Publications

This paper examines a number of lawsuits challenging racial discrimination in Japan’s private sector. Since Japan does not have a law banning private acts of racial discrimination, victims of racial discrimination invoke international human rights law to buttress their claims for compensation. I argue that Japanese judges are, by and large, receptive to these international law claims, but that the system for adjudicating racial discrimination disputes is inadequate. Specifically, a law that bans private acts of racial discrimination would put Japan in line with recently emergent global norms of equality.

Is Acquisition Everything? Protecting The Rights Of Occupants Under The Fair Housing Act, Rigel C. Oliveri

Faculty Publications

This article addresses a recent trend among the federal courts to deny housing discrimination claims under the Fair Housing Act in cases where the plaintiff was an occupant of the housing at the time the discrimination occurred. Put another way, the courts have begun to read the FHA as protecting only the right to obtain housing, not the right to occupy that housing free of discrimination.The trend began with a 2004 Seventh Circuit opinion authored by Judge Richard Posner in the case of Halprin v. The Prairie Single Family Homes. Halprin dismissed most of the claims of a Jewish couple …

The Politics Of Policing: Ensuring Stakeholder Collaboration In The Federal Reform Of Local Law Enforcement Agencies, Kami Chavis Simmons

Faculty Publications

Title 42 U.S. C. § 14141 authorizes the United States Department of Justice ("DOJ") to seek injunctive relief against local law enforcement agencies to eliminate a pattern or practice of unconstitutional conduct by these agencies. Rather than initiate lawsuits to reform these agencies, DOJ's current strategy is to negotiate reforms using a process that involves only DOJ representatives, municipality officials, and police management officials. While there are many benefits of negotiating the reforms, the current process excludes important stakeholders directly impacted by the reforms, including community members, who are the consumers of police services, and the rank-and-file police officers, whom …