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Articles 1 - 5 of 5
Full-Text Articles in Law
Abandon All Hope Ye That Enter: Title Vi, Equal Protection, And The Divine Comedy Of Environmental Justice, Carlton Waterhouse
Abandon All Hope Ye That Enter: Title Vi, Equal Protection, And The Divine Comedy Of Environmental Justice, Carlton Waterhouse
Carlton Waterhouse
Dante’s Alighieri’s epic poem the Divine Comedy begins with the journey of the author and his guide Virgil down through the depths of Hell. Early in their trek, Dante finds the phrase “Abandon All Hope Ye That Enter” inscribed above the gates of Hell. Drawing on this classic work, the article analogizes Dante’s passage through Hell with the experience of communities relying on civil rights law to address the disparate racial effects of environmental decisions. The article begins with an examination of the first administrative complaint filed with the Environmental Protection Agency alleging racial discrimination in environmental permitting in 1992 …
Critical Error, Bryan Adamson
Critical Error, Bryan Adamson
Bryan L Adamson
Critical Error raises a novel double standard: while fact-specific trial court findings of actual malice are reviewed under the “independent judgment” standard (a wholesale re-weighting of the trial court record and decision) on appeal, intentional race discrimination findings are reviewed under the far more deferential Federal Rule of Civil Procedure 52 clear error standard. Both legal concepts are arrived at through assessing state-of-mind determinations; both directly trigger constitutional proscriptions. Only actual malice, however, is classified as a constitutional fact, thus taking it out of the more deferential standard of review. The Supreme Court has failed to clarify this important procedural …
The Mysteriously Reappearing Cause Of Action: The Court’S Expanded Concept Of Intentional Gender And Race Discrimination In Federally Funded Programs, Derek W. Black
Faculty Publications
This Article addresses whether a cause of action exists under federal statutes to challenge gender and racial inequity in federally funded programs. The question has widespread ramifications because Congress appropriates funds to millions of programs that are subject to these statutes. The Court has held that the only cause of action that exists under these statutes is for intentional discrimination, but in a series of recent cases the Court has developed a framework that broadens the concept of intentional discrimination. Unfortunately, lower courts have focused on older and narrower interpretations of intentional discrimination without accounting for the more complex nuances …
Implications Of Psychological Research Related To Unconscious Discrimination And Implicit Bias In Proving Intentional Discrimination, The, Ivan E. Bodensteiner
Implications Of Psychological Research Related To Unconscious Discrimination And Implicit Bias In Proving Intentional Discrimination, The, Ivan E. Bodensteiner
Missouri Law Review
Taking into account recent psychological research related to implicit bias and discrimination, this article will address proof of intent in disparate treatment cases. Part II of the article will examine a likely source of proof of discrimination - comments made by agents of the defendant. Courts frequently discount such comments, labeling them as "stray remarks" and either excluding them as evidence or determining that they are insufficient to defeat a motion for summary judgment. Derogatory comments directed at an individual, based on certain characteristics the speaker attributes to the individual, provide substantial insight into how the speaker assesses people. For …
Framework For The Next Civil Rights Act: What Tort Concepts Reveal About Goals, Results, And Standards, Derek W. Black
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 …