Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 29 of 29

Full-Text Articles in Law

Travellers, Equality And School Admission: Christian Brothers High School Clonmel -V- Stokes, Mel Cousins Nov 2011

Travellers, Equality And School Admission: Christian Brothers High School Clonmel -V- Stokes, Mel Cousins

Mel Cousins

This note examines the recent Irish equality officer and Circuit Court decisions in CBS High School Clonmel v Stokes which concerned whether the rules for admission to the school – in particular a rule giving priority to children whose parents had attended the school - were compatible with the Equal Status Acts 2000-2008. The equality officer held that the rule was indirectly discriminatory and in breach of the Act. However, on appeal the Court held that while the rule had a disproportionate impact on Travellers, it was objectively justified.


Rethinking Abortion: Equal Choice, The Constitution, And Reproductive Politics, Mark Graber Nov 2011

Rethinking Abortion: Equal Choice, The Constitution, And Reproductive Politics, Mark Graber

Mark Graber

Mark Graber looks at the history of abortion law in action to argue that the only defensible, constitutional approach to the issue is to afford all women equal choice--abortion should remain legal or bans should be strictly enforced. Steering away from metaphysical critiques of privacy, Graber compares the philosophical, constitutional, and democratic merits of the two systems of abortion regulation witnessed in the twentieth century: pre-Roe v. Wade statutory prohibitions on abortion and Roe's ban on significant state interference with the market for safe abortion services. He demonstrates that before Roe, pro-life measures were selectively and erratically administered ...


When Is Discrimination Wrong?, Deborah Hellman Nov 2011

When Is Discrimination Wrong?, Deborah Hellman

Deborah Hellman

A law requires black bus passengers to sit in the back of the bus. The U.S. Food and Drug Administration approves a drug for use by black heart failure patients. A state refuses to license drivers under age 16. A company avoids hiring women between the ages of 20 and 40. We routinely draw distinctions among people on the basis of characteristics that they possess or lack. While some distinctions are benign, many are morally troubling. In this boldly conceived book, Deborah Hellman develops a much-needed general theory of discrimination. She demonstrates that many familiar ideas about when discrimination ...


Disparate Impact Is Not Unconstitutional, Michael Evan Gold Nov 2011

Disparate Impact Is Not Unconstitutional, Michael Evan Gold

Michael Evan Gold

[Excerpt] In Ricci v. DeStefano, the "New Haven Firefighters" case, whitefirefighters and one Hispanic firefighter sued the city of New Haven, Connecticut and city officials under Title VII. The plaintiffs claimed the city had committed intentional discrimination or disparate treatment against them when the city disregarded the results of promotion examinations that had an adverse effect on black and Hispanic applicants. The Supreme Court sustained the claim. In his concurring opinion, Justice Scalia invited attorneys in subsequent cases to consider arguing that the disparate impact theory of employment discrimination is unconstitutional. He reasoned as follows: • The Constitution prohibits the government ...


The Girl Who Cried Pain: A Bias Against Women In The Treatment Of Pain, Diane E. Hoffmann, Anita J. Tarzian Oct 2011

The Girl Who Cried Pain: A Bias Against Women In The Treatment Of Pain, Diane E. Hoffmann, Anita J. Tarzian

Diane Hoffmann

In general, women report more severe levels of pain, more frequent incidences of pain, and pain of longer duration than men, but are nonetheless treated for pain less aggressively. The authors investigate this paradox from two perspectives: Do men and women in fact experience pain differently - whether biologically, cognitively, and/or emotionally? And regardless of the answer, what accounts for the differences in the pain treatment they receive, and what can we do to correct this situation?


Trade Justice And Security, Frank J. Garcia Oct 2011

Trade Justice And Security, Frank J. Garcia

Frank J. Garcia

[Refers to Revised Draft, December 9, 2005] The social psychology literature on justice suggests that the perception of injustice produces the strongest human emotional response. Perceptions of injustice can lead to conflicts over the justice of social outcomes, threatening social cohesion and security. Trade law, and globalization more generally, are increasingly perceived as unjust with respect to the interests of developing countries and of the poor in all countries. To the extent that the various stakeholders in globalization perceive a lack of reciprocity between their investment and their return, they will naturally address their claims of injustice towards the global ...


The Role Of Fault And Motive In Defining Discrimination: The Seniority Question Under Title Vii, Mark S. Brodin Oct 2011

The Role Of Fault And Motive In Defining Discrimination: The Seniority Question Under Title Vii, Mark S. Brodin

Mark S. Brodin

Seniority systems play an important role in American industry, often governing rights to promotion, pay scales, layoff, and relative entitlement to ancillary benefits. Seniority based decision making protects employees from arbitrary employer action, yet seniority's same protective feature often may frustrate minorities' efforts to achieve actual equal employment opportunity Relying on Title Vii's section 703(h), the Supreme Court has held that seniority systems are immune from attack unless discriminatory intent is shown. In this Article, Professor Brodin reviews the evolution of the intent standard now governing seniority system challenges. He contrasts the Supreme Court's restrictive definition ...


Race, Class, And Katrina : Human Rights And (Un)Natural Disaster, Hope Lewis Sep 2011

Race, Class, And Katrina : Human Rights And (Un)Natural Disaster, Hope Lewis

Hope Lewis

This essay reflects on the international human rights implications of Hurricane Katrina. For those of us in the human rights movement, it seemed natural to see Katrina and its aftermath as both a massive international humanitarian disaster and a human rights crisis. This was not just the awful result of a huge storm having hit a densely populated area and thereby necessitating the marshalling of public and private humanitarian aid. It also revealed government inaction and affirmatively abusive actions before, during, and after the storm hit that implicate international human rights standards. We know that Katrina was not the last ...


Women (Under)Development : The Relevance Of The "Right To Development" To Poor Women Of Color In The United States, Hope Lewis Sep 2011

Women (Under)Development : The Relevance Of The "Right To Development" To Poor Women Of Color In The United States, Hope Lewis

Hope Lewis

This essay, written during a time of Clinton-era welfare reform, was an attempt to reimagine South-North roles. What if "right to development" analysis were applied to poor women of color living in the United States? Some see the right to development as an anachronism in the face of the apparent globalization of market-based economic development. However, “development” in the narrow form of a thriving industrial sector, reliable infrastructure, and steady economic growth, remains beyond the reach of many nations - particularly the poorest African nations. More important, the broader goals of human development - access to basic needs and an improved quality ...


Outsiders Inside The Beltway: Latcrit Xiv - Critical Outsider Theory And Praxis In The Policymaking Of The New American Regime, Anthony E. Varona Aug 2011

Outsiders Inside The Beltway: Latcrit Xiv - Critical Outsider Theory And Praxis In The Policymaking Of The New American Regime, Anthony E. Varona

Anthony E. Varona

A substantive foreword to the symposium book for the Fourteenth Annual Latino/Latina Critical Legal Theory Scholarship Conference hosted by the American University Washington College of Law. The foreword includes information about the conference theme, its planning and execution, and includes excerpts from the presentations of a number of prominent plenary and keynote speakers, including Congresswoman Linda Sanchez (D-CA), Caroline Fredrickson (the executive director of the American Constitution Society for Law and Policy), Robert Raben (the president of the Raben Group), Jarrett Barrios (the president of the Gay and Lesbian Alliance Against Defamation), Prof. Jenny Rivera (professor of law and ...


Freedom Of Religion In Practice: Exemptions Under Antidiscrimination Laws On The Basis Of Religion., Neil J. Foster Jul 2011

Freedom Of Religion In Practice: Exemptions Under Antidiscrimination Laws On The Basis Of Religion., Neil J. Foster

Neil J Foster

Recognition of “human rights” often involves the need to balance one set of rights against another. While anti‐discrimination laws generally are designed to outlaw decision‐making on irrelevant grounds, recognition of “freedom of religion” (a clear human right acknowledged in the international covenants on the area) requires acknowledging that decision‐making in many areas on religious grounds is not irrelevant, and hence requires careful crafting of appropriate exemptions to otherwise blanket prohibitions against discrimination. But in many ways there has been a subtle shift in recent decades away from a fully‐orbed recognition of human rights, towards an absolutist ...


Law And Racism In An Asian Setting: An Analysis Of The British Rule Of Hong Kong, Richard Klein Jul 2011

Law And Racism In An Asian Setting: An Analysis Of The British Rule Of Hong Kong, Richard Klein

Richard Daniel Klein

No abstract provided.


Immigration Laws As Instruments Of Discrimination: Legislation Designed To Limit Chinese Immigration Into The United Kingdom, Richard Klein Jul 2011

Immigration Laws As Instruments Of Discrimination: Legislation Designed To Limit Chinese Immigration Into The United Kingdom, Richard Klein

Richard Daniel Klein

No abstract provided.


Delinking Disproportionality From Discrimination: Procedural Burdens As Proxy For Substantive Visions, Maxwell O. Chibundu Jul 2011

Delinking Disproportionality From Discrimination: Procedural Burdens As Proxy For Substantive Visions, Maxwell O. Chibundu

Maxwell O. Chibundu

No abstract provided.


Discrimination Cases In The 2001 Term Of The Supreme Court (Symposium: The Fourteenth Annual Supreme Court Review), Eileen Kaufman Jul 2011

Discrimination Cases In The 2001 Term Of The Supreme Court (Symposium: The Fourteenth Annual Supreme Court Review), Eileen Kaufman

Eileen Kaufman

No abstract provided.


Discrimination Cases (The Supreme Court And Local Government Law: The 1995-1996 Term), Eileen Kaufman Jul 2011

Discrimination Cases (The Supreme Court And Local Government Law: The 1995-1996 Term), Eileen Kaufman

Eileen Kaufman

No abstract provided.


Reflections On Fair Housing Law, Tim Iglesias Apr 2011

Reflections On Fair Housing Law, Tim Iglesias

Tim Iglesias

This presentation offered reflections on the state of fair housing law in light of numerous studies evaluating its effectiveness. It argues that while enforcement needs to be improved, fair housing advocates must also employ complementary strategies to reform social norms.


The Feminist Pervasion: How Gender-Based Scholarship Informs Law And Law Teaching, Deseriee Kennedy, Ann Bartow, F. Carolyn Graglia, Joan Hemingway Apr 2011

The Feminist Pervasion: How Gender-Based Scholarship Informs Law And Law Teaching, Deseriee Kennedy, Ann Bartow, F. Carolyn Graglia, Joan Hemingway

Deseriee A. Kennedy

This is an edited, annotated transcript of a conference panel discussion on feminism, sex, and gender in law, legal education, and legal scholarship. The transcript reflects widely divergent views of the place of feminism, sex, and gender in the law and legal scholarship. Moreover, the panelists differ as to the role feminism has played in the lives of women as law students and practicing attorneys. In the latter part of the transcript, the panelists' remarks focus in on hotly debated issues surrounding possible gender (or sex) and racial bias in LSAT testing and the innate abilities of women and men ...


After The Fall: The Employer's Duty To Accommodate Employee Religious Practices Under Title Vii After Ansonia Board Of Education V. Philbrook, Peter Zablotsky Apr 2011

After The Fall: The Employer's Duty To Accommodate Employee Religious Practices Under Title Vii After Ansonia Board Of Education V. Philbrook, Peter Zablotsky

Peter Zablotsky

No abstract provided.


Discrimination Cases In The October 2004 Term, Eileen Kaufman Mar 2011

Discrimination Cases In The October 2004 Term, Eileen Kaufman

Eileen Kaufman

No abstract provided.


Discrimination Cases In The Supreme Court's 1997 Term (The Supreme Court And State And Local Government Law: The 1997-1998 Term), Eileen Kaufman Mar 2011

Discrimination Cases In The Supreme Court's 1997 Term (The Supreme Court And State And Local Government Law: The 1997-1998 Term), Eileen Kaufman

Eileen Kaufman

No abstract provided.


Discrimination Cases In The 2000 Term, Eileen Kaufman Mar 2011

Discrimination Cases In The 2000 Term, Eileen Kaufman

Eileen Kaufman

No abstract provided.


Equal Protection And The Prosecutor's Charging Decision: Enforcing An Ideal, Donald G. Gifford Feb 2011

Equal Protection And The Prosecutor's Charging Decision: Enforcing An Ideal, Donald G. Gifford

Donald G Gifford

No abstract provided.


The Desire For Whiteness: Can Law And Economics Explain It?, Shilpi Bhattacharya Jan 2011

The Desire For Whiteness: Can Law And Economics Explain It?, Shilpi Bhattacharya

Shilpi Bhattacharya

This paper provides a new theoretical perspective on colorism by considering it from an economic point of view. I rely on three theories of law and economics that explain racial discrimination. While critiquing these theories, I also extend them to evaluate colorism. This is challenging because these theories correlate race with skin color. I use the “desire for whiteness” (DFW) as a tool for analyzing these theories and as a fundamental characteristic that distinguishes racism from colorism. This paper studies the cross-cultural applicability of these theories from beyond the traditional American labor market (ALM) to the Indian arranged marriage ‘market ...


The Uses And Abuses Of Informal Procedures In Federal Civil Rights Enforcement, Marjorie A. Silver Jan 2011

The Uses And Abuses Of Informal Procedures In Federal Civil Rights Enforcement, Marjorie A. Silver

Marjorie A. Silver

No abstract provided.


Defamation Of Religion: Rumors Of Its Death Are Greatly Exaggerated, Robert Blitt Dec 2010

Defamation Of Religion: Rumors Of Its Death Are Greatly Exaggerated, Robert Blitt

Robert C. Blitt

This Article explores the recent decisions by the United Nations (“UN”) Human Rights Council and General Assembly to adopt consensus resolutions aimed at “combating intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence and violence against, persons based on religion or belief.” These resolutions represent an effort to move past a decade’s worth of contentious roll call votes in favor of prohibiting defamation of religion within the international human rights framework. Although labeled “historic” resolutions, this Article argues that the UN’s new compromise approach endorsed in 2011 — motivated in part by the desire to end years ...


The Bottom Up Journey Of 'Defamation Of Religion' From Muslim States To The United Nations: A Case Study Of The Migration Of Anti-Constitutional Ideas, Robert Blitt Dec 2010

The Bottom Up Journey Of 'Defamation Of Religion' From Muslim States To The United Nations: A Case Study Of The Migration Of Anti-Constitutional Ideas, Robert Blitt

Robert C. Blitt

This chapter is intended to elaborate on the existing academic literature addressing the migration of constitutional ideas. Through an examination of ongoing efforts to enshrine “defamation of religion” as a violation of international human rights, the author confirms that the phenomenon of migration is not restricted to positive constitutional norms, but rather also encompasses negative ideas that ultimately may serve to undermine international and domestic constitutionalism. More specifically, the case study demonstrates that the movement of anti-constitutional ideas is not restricted to the domain of “international security” law, and further, that the vertical axis linking international and domestic law is ...


Patmalniece V Secretary Of State For Work And Pensions [2011] Uksc 11 Supreme Court, Mel Cousins Dec 2010

Patmalniece V Secretary Of State For Work And Pensions [2011] Uksc 11 Supreme Court, Mel Cousins

Mel Cousins

This Supreme Court decision concerns the right to reside test in UK social security law. In brief, UK law has since 1994 had a requirement that, in order to be entitled to various non-contributory benefits, one must be habitually resident in the country. In 2004 in response to the accession of a large number of new Member States to the EU, a new right to reside test was incorporated into the habitual residence test. This means that in order to be habitually resident it is necessary to have a legal right to reside in the United Kingdom. All UK citizens ...


Chronic Pain, Impairment, Workers Compensation And Equality: Downey V Nova Scotia (Workers Compensation Appeals Tribunal), Mel Cousins Dec 2010

Chronic Pain, Impairment, Workers Compensation And Equality: Downey V Nova Scotia (Workers Compensation Appeals Tribunal), Mel Cousins

Mel Cousins

This note examines the issue of the treatment of chronic pain under Canadian workers compensation law in the context of the right to equality set out in s. 15 of the Canadian Charter of Rights. In the Martin case the Supreme Court of Canada ruled that the exclusion compensation for chronic pain from the general Nova Scotia worker’s compensation scheme was in breach of s. 15 of the Charter. Following this decision, Nova Scotia enacted new legislation which brought chronic pain within the general scheme but subject to a limit of the amount of compensation payable. These provisions were ...