Law Commons^™

Bostock And Textualism: A Response To Berman And Krishnamurthi, Andrew Koppelman

Notre Dame Law Review Reflection

The Bostock Court adopted an argument I’ve been making for years, and that I pressed upon it in an amicus brief: that discrimina-tion against gay people is necessarily sex discrimination. I defended Justice Neil Gorsuch’s opinion for the Court in my article, Bostock, LGBT Discrimination, and the Subtractive Moves, which catalogues various common but unsuccessful strategies for evading the force of the sex discrimination argument. That piece, originally drafted before the Supreme Court’s decision as a critique of arguments by Court of Appeals judges, was easy to revise and update. The dissenters, Justices Samuel Alito (joined by Clarence …

Bostock Was Bogus: Textualism, Pluralism, And Title Vii, Mitchell N. Berman, Guha Krishnamurthi

Notre Dame Law Review

In Bostock v. Clayton County, one of the blockbuster cases from its 2019 Term, the Supreme Court held that federal antidiscrimination law prohibits employment discrimination on grounds of sexual orientation and gender identity. Unsurprisingly, the result won wide acclaim in the mainstream legal and popular media. Results aside, however, the reaction to Justice Neil Gorsuch’s majority opinion, which purported to ground the outcome in a textualist approach to statutory interpretation, was more mixed. The great majority of commentators, both liberal and conservative, praised Justice Gorsuch for what they deemed a careful and sophisticated—even “magnificent” and “exemplary”—application of textualist principles, …

Brief For Council Of Islamic Schools In North America, Partnership For Inner-City Education, And Union Of Orthodox Jewish Congregations Of America As Amici Curiae In Support Of Petitioners, Nicole Stelle Garnett, Richard W. Garnett, Michael H. Mcginley

Court Briefs

DAVID AND AMY CARSON, as Parents and next Friends of O.C., and TROY AND ANGELA NELSON, as Parents and next Friends of A.N. and R.N., Petitioners

v.

A. PENDER MAKIN, in Her Official Capacity as Commissioner of the Maine Department of Education, Respondent.

On Petition for Writ of Certiorari to the United States Court of Appeals for the First Circuit

BRIEF FOR COUNCIL OF ISLAMIC SCHOOLS IN NORTH AMERICA, PARTNERSHIP FOR INNER-CITY EDUCATION, AND UNION OF ORTHODOX JEWISH CONGREGATIONS OF AMERICA AS AMICI CURIAE IN SUPPORT OF PETITIONERS

No. 20-1088

March 11, 2021

Amici curiae operate, represent, and support elementary …

An Economic Approach To Religious Exemptions, Stephanie H. Barclay

Journal Articles

Externalities caused by religious exemptions have been getting the spotlight again in light a case the U.S. Supreme Court will hear this term: Fulton v. City of Philadelphia. Some argue that religious individuals should be required to internalize the costs they impose on third parties and thus should be denied the right to practice that harmful behavior. These new progressive theories about harm trade on rhetoric and normative intuitions regarding externalities and costs. But curiously, these theories also largely ignore an influential theoretical movement that has studied externalities and costs for the last fifty years: law and economics.

This Article …

Combating Silence In The Profession, Veronica Root Martinez

Journal Articles

Members of the legal profession have recently taken a public stance against a wave of oppressive policies and practices. From helping immigrants stranded in airports to protesting in the face of white nationalists, lawyers are advocating for equality within and throughout American society each and every day. Yet as these lawyers go out into the world on behalf of others, they do so while their very profession continues to struggle with its own discriminatory past. For decades, the legal profession purposefully excluded women, religious minorities, and people of color from its ranks, while instilling a select group of individuals with …

Religious Freedom And Recycled Tires: The Meaning And Implications Of Trinity Lutheran, Richard W. Garnett, Jackson C. Blais

Journal Articles

The Supreme Court's decision in Trinity Lutheran clearly affirmed a First Amendment rule against anti-religious discrimination. At the same time, it raised or left open a number of important and interesting questions about education reform, the relevance of anti-Catholic bias to states' so-called Blaine Amendments, and the sharpening tension between religious freedom and the application of antidiscrimination laws.

Retaining Color, Veronica Root

Journal Articles

It is no secret that large law firms are struggling in their efforts to retain attorneys of color. This is despite two decades of aggressive tracking of demographic rates, mandates from clients to improve demographic diversity, and the implementation of a variety of diversity efforts within large law firms. In part, law firm retention efforts are stymied by the reality that elite large law firms require some level of attrition to function properly under the predominant business model. This reality, however, does not explain why firms have more difficulty retaining attorneys of color — in particular black and Hispanic attorneys …

Who Wants To Stop The Church: Homosexual Rights Legislation, Public Policy, And Religious Freedom, Richard F. Duncan

Notre Dame Law Review

No abstract provided.

Inherently Discriminatory Conduct Revisited: Do We Know It When We See It?, Barbara J. Fick

Journal Articles

"This article traces the development of the inherently discriminatory doctrine, proposes some guidelines for determining when employer conduct falls under the rubric of the inherently discriminatory doctrine, and analyzes two cases dealing with employer use of temporary replacements during offensive lockouts in light of the proposed guidelines."

Bias In Housing: Toward A New Approach, Charles E. Rice

Journal Articles

The problem of racial discrimination in housing is the product of several factors. Among these is racial prejudice on the part of private land owners, real estate brokers, builders and mortgage finance institutions.