Law Commons^™

Why Binomial Distributions Do Not Work As Proof Of Employment Discrimination, Ben Ikuta

UC Law Journal

Although it is possible for employer discrimination policies to be facially apparent in employment discrimination cases, usually employer policies are not overtly discriminatory. In those situations where it is not apparent, the only method of proving a prima facie case of discrimination in most systemic disparate treatment instances is to show a pattern of discrimination in the employer's hiring decisions. Since these patterns can usually "be identified and analyzed in quantitative form," cases rely primarily, and often exclusively, on statistics. If the plaintiff offers statistics that indicate a hiring practice that is unlikely absent discrimination, then the plaintiff is deemed …

Facing Up To Wrongful Convictions: Broadly Defining "New" Evidence At The Actual Innocence Gateway, Jay Nelson

UC Law Journal

The Supreme Court has held that in order to pass through the actual innocence "gateway," capital habeas petitioners must support procedurally barred claims of actual innocence with "new reliable evidence" that was not presented at trial. The Court has not, however, defined what qualifies as "new" evidence. As a result, the circuit courts of appeals are split. Some circuits adopt what this Note refers to as the "newly-presented" evidence rule. These circuits permit habeas courts to evaluate all reliable evidence that was not presented to the finder of fact at trial. Other circuits adopt what this Note calls the "newly-discovered" …

Ten Lessons For Practitioners About Family Responsibilities Discrimination And Stereotyping Evidence, Catherine Albiston, Kathryn Burkett Dickson, Charlotte Fishman, Leslie F. Levy

UC Law Journal

This Article highlights ten key lessons that employment law practitioners can take away from the scholarship collected in this symposium Issue. The legal field of Family Responsibilities Discrimination (FRD) has developed rapidly in the past two decades, with FRD litigation only likely to increase. Social science research on the maternal wall continues to develop, increasing our understanding of what discrimination looks like in the workplace today. The FRD case law and social science research highlighted in this Issue provide essential information that employment law attorneys can put into practice when faced with addressing FRD in the workplace.

The Matter Of Fit: The Law Of Discrimination And The Science Of Implicit Bias, David L. Faigman, Nilanjana Dasgupta, Cecilia L. Ridgeway

UC Law Journal

This Article examines the "fit" between the law of discrimination and the science of implicit bias, including consideration of the legal standards that apply and a broad overview of the sociological and psychological literatures that are relevant to those standards. The Authors first set forth the legal framework within which the psychological and sociological research literatures must be considered. Although the legal standard is not entirely unambiguous, scientific research on implicit bias appears relevant to the basic empirical issues put in issue by the law. The Authors then review the general research literature on the phenomenon of "implicit biases" in …

Cognitive Bias And The Motherhood Penalty, Stephen Benard, In Paik, Shelley J. Correll

UC Law Journal

Women experience significant penalties in wages and other labor market outcomes when they have children. In this Article, we review and evaluate theory and research on cognitive bias and the motherhood penalty. Several theories predict that discrimination in the form of cognitive bias accounts for at least a part of the penalty that mothers experience. These theories include status characteristics theory, the stereotype content model, the shifting standards model, and the lack of fit model. Empirical evidence from controlled laboratory experiments and field studies strongly supports the general hypothesis that women experience labor market discrimination when they have children. There …

Working Class Judges, William D. Henderson, Christopher J. Zorn, Jason J. Czarnezki

Articles by Maurer Faculty

In recent years, a steady chorus of dignitaries has decried the low pay of federal judges and suggested that the federal judiciary is on the brink of losing its best and its brightest. The persistent nature of these claims should give us pause. Scott Baker's recent study empirically evaluates these claims by examining the relationship between judicial salaries and the work habits and voting patterns of federal appellate judges. If large pay disparities are indeed eroding the quality of the federal bench, Baker theorizes this likely results in more ideological voting, fewer dissents, longer delays in issuing opinions, and a …

Discrimination-Reducing Measures At The Relational Level, Tristin K. Green, Alexandra Kalev

UC Law Journal

Social scientists have shown that bias and stereotypes are executed and reinforced not only in moments of decision making, like hiring or promotion, but also in day-to-day interactions and social relations (or lack thereof) at work. The Authors discuss existing measures for reducing employment discrimination as focusing too narrowly at the individual level of discrimination. They argue that discrimination-reducing measures taken by employers should be expanded to address the relational sources of discrimination. The Authors review research showing that employers can reduce relational sources of discrimination and workplace inequality by changing the context of workplace relations and interactions from stereotype …

Old Problem, New Tactic: Making The Case For Legislation To Combat Employment Discrimination Based On Family Caregiver Status, Noreen Farrell, Genevieve Guertin

UC Law Journal

Employment discrimination against employees based on their status as parents or family caregivers occurs at an alarming rate in this country, and is hardly a new phenomenon. Family Responsibilities Discrimination (FRD) disproportionately impacts working mothers, but advocates have begun to look beyond traditional gender discrimination and family leave theories of liability to strategies based on legislation expressly prohibiting discrimination based on parental or family caregiver status. This Article examines FRD legislation passed or proposed in recent years in the context of criticisms of this strategy by Professor Peggie Smith, who addressed the issue in her article Parental Status Employment Discrimination: …

Armed Standoffs And The Warrant Requirement, Edward H. Arens

UC Law Journal

The Fourth Amendment, as decided by the Supreme Court in Payton v. New York, forbids police from arresting suspects in their homes without a warrant or a compelling excuse. Applying this principle to standoffs between police and suspects who have barricaded themselves inside their homes, however, presents significant interpretive problems. The foremost difficulty is that it is not clear when the Fourth Amendment even applies to police standoffs. Courts disagree on whether police seize barricaded suspects simply by surrounding a house, or whether the suspect remains free until he or she surrenders or is physically subdued. Second, Payton excuses a …

Gender Politics, Gender Paradox: Establishing And Implementing Global Standards For The Promotion And Protection Of Women's Health, David P. Fidler

Articles by Maurer Faculty

No abstract provided.

Lead Paint: Who Will Bear The Cost Of Abating The Latest Public Nuisance, Greg J. Carlson

UC Law Journal

In the past, mass tort litigation has arisen in the contexts of asbestos, tobacco, environmental contamination and handgun manufacturing. While the theory of public nuisance has found its way into court discussion in most of these contexts, recent lead paint litigation has opened a new chapter to the uncertainties that accompany the use of public nuisance in mass tort litigation. Specifically, a question of liability arises. While lead paint manufacturers may be ordered to follow a particular set of measures to eliminate the paint and its hazards, the answer to one critical question still remains uncertain: Who will ultimately bear …

Death To Tyrants: District Of Columbia V. Heller And The Uses Of Guns, David C. Williams

Articles by Maurer Faculty

No abstract provided.

What's A President To Do? Interpreting The Constitution In The Wake Of Bush Administration Abuses, Dawn E. Johnsen

Articles by Maurer Faculty

President George W. Bush and his executive branch lawyers have earned widespread criticism for extreme positions and practices regarding the scope of presidential authority. The war on terror that followed the September 11, 2001 terrorist attacks provided the context for their most controversial claims of unilateral authority: to override legal prohibitions on the use of torture and cruel, inhuman and degrading treatment; to hold "enemy combatants" indefinitely without access to counsel or any opportunity to challenge their detention; and to engage in domestic electronic surveillance without a court order. Our nation's welfare and integrity depend upon continued evaluation, response, and, …

The Supreme Court And Indiana's Voter Id Law, David Williams

Articles by Maurer Faculty

No abstract provided.

Tax Appeal: A Proposal To Make The United States Tax Court More Judicial, Leandra Lederman

Articles by Maurer Faculty

Accountability is a critically important protection for any justice system; its absence provides an opportunity for shortcuts that may undermine procedural fairness or even change case outcomes. Yet, the United States Tax Court, which is an Article I court, is not subject to Administrative Office of U.S. Courts or the U.S. Judicial Conference - institutions that serve and oversee the federal judiciary. In addition, because the Tax Court is not an administrative agency, it is not covered by the Administrative Procedure Act or the Freedom of Information Act. The principal source of oversight of Tax Court actions is appellate review. …

The Cleaver, The Violin, And The Scalpel: Duty And The Restatement (Third) Of Torts, Aaron D. Twerski

UC Law Journal

This Article takes issue with the approach taken by the proposed final draft of the Restatement (Third) of Torts that insists that noduty or limited duty rules should be formulated only when a court can promulgate clear, categorical, bright-line rules that are applicable to a general class of cases. In this Article I demonstrate that no-duty rules may often have to be formulated and tailored to the facts of a specific case. I respond to the critics who are concerned that no-duty rules that are fact specific allow courts to invade the province of juries whose task it is to …

Measuring The Tax Subsidy In Private Equity And Hedge Fund Compensation, Thomas J. Brennan, Karl S. Okamoto

UC Law Journal

This Article offers a new analysis of the debate over the taxation of private equity and hedge fund managers. We provide an analytical model that allows us to compare the relative risk-reward benefit enjoyed by these fund managers and other managers. We look to "relative benefits" in order to determine the extent to which the current state of the world favors the services of a fund manager over these other workers. Our conclusion is that private equity and hedge fund managers do outperform other workers on a risk-adjusted, after-tax basis. We assume that over time compensation of private equity and …

Public Law As The Law Of The Res Publica, Elisabeth Zoller

Articles by Maurer Faculty

No abstract provided.

Conceptualizing Complicity In Alien Tort Cases, Chimene I. Keitner

UC Law Journal

The Alien Tort Statute (ATS) indisputably brings international law into U.S. courts. The question is: how much international law? The United States Supreme Court was recently precluded from addressing this question in cases involving alleged corporate complicity in the crime of apartheid because four judges recused themselves, leaving the Court without a quorum. The answer to this question can determine the outcome of cases brought against corporations for their alleged complicity in international law violations perpetrated by foreign governments. It will also shape the extent to which U.S. courts in ATS cases continue to interpret and apply international law, thereby …

Continuing Abuse Of The Hatch-Waxman Act By Pharmaceutical Patent Holders And The Failure Of The 2003 Amendments, Mathew Avery

UC Law Journal

The Hatch-Waxman Act of 1984 established a system whereby generic manufacturers can seek to market generic equivalents of a pioneer's patented drug prior to the patent's expiry. But the original Act also contained provisions that were exploited by patent holders to delay generic competition and thereby extend their monopoly sales. Congress amended the Hatch-Waxman Act to address these abusive practices with the Medicare Modernization Act of 2003. This Note analyzes how the 2003 amendments failed to remedy exploitation of the Hatch-Waxman Act by pharmaceutical patent holders who use reverse payments and authorized generics to manipulate the 180-day market exclusivity given …

Distributive Injustice And Private Law, Aditi Bagchi

UC Law Journal

Private law recognizes claims between individuals. Legal economists have argued that claims by the socially disadvantaged against the better off are best dealt with outside private law, primarily through tax and transfer. Most theorists of private law similarly oppose considerations of distributive justice in contract and tort because they have assumed that this would confer a windfall upon poor plaintiffs, and penalize wealthy defendants beyond their fair share. Private law theorists resist this moral arbitrariness; individual legal liability is supposed to reflect individual responsibility, and matters of distributive justice are a collective responsibility.

In this Article, I argue that even …

Disney Goes Goofy: Agency, Delegation, And Corporate Governance, Marc I. Steinberg, Matthew D. Bivona

UC Law Journal

In the wake of the corporate debacles that have occurred in the last decade, there has been an increasing legislative and judicial focus on the reform of corporate governance standards. Such reforms, including the Sarbanes-Oxley Act, sing the praises of independent directors in effectuating meaningful corporate governance. The Delaware courts as well have emphasized the importance of independent directors in the corporate governance framework.

The Delaware Supreme Court's decision in Disney seems to be a reaffirmation of the business judgment rule as applied to corporate directors; however, the court's highly-publicized decision ignores a crucial component of the case: the Delaware …

Introduction, Hastings Law Journal

UC Law Journal

No abstract provided.

Duty To The Unborn: A Response To The Smolensky, Jaime King

UC Law Journal

Advances in assisted reproductive technology and genetic testing continue to offer parents a plethora of new reproductive choices. As a result, we now face significant moral and legal challenges regarding how to balance the interests of parents, children born through the procedure, and society as a whole. This Essay analyzes Professor Kirsten Smolensky's argument in favor of permitting children the right to sue their parents in tort law for manipulating their DNA prior to implantation to produce a disabling trait. While Smolensky's basic argument is sound, a more encompassing standard would create a duty to potential offspring to act as …

Insult To Injury: A Disability-Sensitive Response To Smolensky's Call For Parental Tort Liability For Preimplantation Genetic Interventions, Alicia R. Ouellette

UC Law Journal

In her article, Creating Children with Disabilities: Parental Tort Liability for Preimplantation Genetic Interventions, Professor Kirsten Rabe Smolensky argues that children who were subject to preimplantation genetic manipulation should have the ability to sue their parents for damages when the parents "directly intervene in the child's DNA and consequently cause that child to suffer a disability which limits the child's right to an open future." This Essay addresses the implications for people with disabilities of that argument. Specifically, it argues that limiting damages to cases in which a child is born with a disability unnecessarily and inaccurately devalues life with …

Parental Tort Liability For Preimplantation Genetic Interventions: Technological Harms, The Social Model Of Disability, And Questions Of Identity, Kirsten Rabe Smolensky

UC Law Journal

Professors Glenn Cohen, Jaime King, and Alicia Ouellette each wrote a thoughtful commentary in response to the article, Creating Children with Disabilities: Parental Tort Liability for Preimplantation Genetic Interventions. This short Essay is a reply to several broad themes that appear in these commentaries. It both clarifies several points made in the original article and makes a few additional arguments in favor of parental tort liability. In particular, this Essay addresses calls for regulation and provider liability, assesses additional costs and benefits associated with preimplantation genetic interventions, reevaluates the original proposal in a way more sensitive to persons with disabilities, …

Intentional Diminishment, The Non-Identity Problem, And Legal Liability, I. Glenn Cohen

UC Law Journal

This Article, lying at the intersection of law and bioethics, examines whether it is wrongful to use assisted reproductive technology to intentionally create disabled children, and whether legal liability should attach to such acts. In particular, this Article considers the way these issues are intertwined with what philosophers have called the "Non-Identity Problem," the idea that so long as a resulting child will have a life worth living the child cannot be harmed by being brought into existence, because even an impoverished life is better than not existing at all.

In her article in this Issue, Kirsten Smolensky suggests that …

Creating Children With Disabilities: Parental Tort Liability For Preimplantation Genetic Interventions, Kirsten Rabe Smolensky

UC Law Journal

Using preimplantation genetic diagnosis (PGD), parents can now screen embryos for genetic traits such as deafness and achondroplasia (dwarfism). Studies show that some parents intentionally choose embryos with disabilities because that genetic trait runs in the family. This recent trend raises the important legal question of whether a child can sue his parents in tort for selecting or engineering disabling genetic traits.

This Article suggests that children both can and should be able to successfully sue parents who engage in certain direct genetic interventions. First, tort law should protect a child's moral right to an open future where parents' preimplantation …

The Forgotten Frontier - Healthcare For Transgender Detainees In Immigration And Customs Enforcement Detention, Dana O'Day-Senior

UC Law Journal

a challenge for anyone, but for transgender individuals, the lack of healthcare policy specifically addressing the healthcare needs of transgender individuals can mean that ICE detention is hazardous to one's health. Many researchers have studied the challenges faced by transgender individuals in the prison setting, and many researchers have examined the problems with healthcare access and delivery in ICE detention facilities. However, so far no one has bridged the gap between the two areas of research and looked at the specific challenges ICE detention poses for healthcare for transgender individuals.

This Note attempts to bridge that gap by focusing into …

Prosecuting Elder Abuse: Setting The Gold Standard In The Golden State, Arthur Meirson

UC Law Journal

This Note proposes amending California's elder abuse law. Currently, California Penal Code sections 368(b) and (c) allow the prosecution of any person who willfully causes or permits a person they know to be an elder or dependent adult "to suffer, or inflicts thereon unjustifiable physical pain or mental suffering." The failing of this law is its focus on the subjective experience of the elder or dependent adult victim. Because the law only allows punishment where the victim suffers or experiences unjustifiable physical pain or mental suffering, there are numerous circumstances that allow a perpetrator of abuse to escape prosecution. These …