Law Commons^™

The Potential For Discrimination In Health Insurance Based On Predictive Genetic Tests, Karen H. Rothenberg

Karen H. Rothenberg

No abstract provided.

Advances In Genetic Research And Technologies: Challenges For Public Policy, Karen H. Rothenberg

Karen H. Rothenberg

No abstract provided.

A Step Too Far - Posthumously Conceived Children And Social Security Entitlements In Vernoff V Astrue, Mel Cousins

Mel Cousins

This case note examines a recent decision of the Court of Appeals for the Ninth Circuit concerning the entitlements of posthumously conceived children under social security. In contrast to its earlier (expansionary) decision in Gillett-Netting, here the Court set out the limits to how far it is willing to push the interpretation of the (convoluted) legislation and refused to find a right to benefit where there was no evidence that the father had consented to (or even considered) having a child post-mortem.

Collective Bargaining Agreements In Discrimination Cases: Forum Shopping Their Way Into A New York District Court Near You!, George Klidonas

George Klidonas

There has recently been a divergence of opinion between the state courts and the district courts in New York on the issue of whether a unionized employee must arbitrate discrimination claims in light of a collective bargaining agreement mandating alternative dispute resolution. The problem that New York is faced with is that the New York courts recently failed to properly delineate a standard of what a clear and unmistakable waiver. Furthermore this "split" between the federal and state courts with regards to these arbitration provisions will cause forum shopping by claimants, heavily favoring federal courts. A trilogy of Supreme Court …

Laboratories Of Constitutionality: How State High Courts Paved The Way For Federal Courts To Invalidate Prohibitions On Same-Sex Marriage, Tyler T. Rosenbaum

Tyler T Rosenbaum

This article looks at the opinions of the state high courts that have adjudicated the constitutionality under their state constitutions of prohibitions on same-sex marriage and, given the extent to which the state high courts deferred to Supreme Court case law in interpreting their own constitutions, concludes that a federal court would be more likely than not to find that such prohibitions violate the United States Constitution.

With respect to a claimed substantive due process right to same-sex marriage, the Supreme Court’s ruling in Lawrence v. Texas undermined much of the precedent that would have required a careful, tradition-bound analysis. …

The Market Defense, Sharon Rabin-Margalioth

Sharon Rabin-Margalioth

This Article sheds a new light on the controversial issue whether employers should enjoy a market defense when confronted with claims of pay inequality. The conventional view that causation between group membership and adverse treatment is the essence of any discrimination claim enables employers to argue successfully that pay disparities are caused by market forces such as individual negotiation skills and not sex discrimination. The legitimization of the market defense contributes to the gender wage gap among employees performing equal work. In this Article, I argue that in most cases market justifications for pay disparity in equal pay for equal …

Two Types Of Discrimination: The Familiar And The Forgotten, Deborah Hellman

Deborah Hellman

This essay argues that current Equal Protection doctrine fails to recognize an important conceptual distinction between two types of discrimination. Current doctrine is inadequate, according to the author, because it treats all discrimination cases as if they were instances of only one of these types. As a result, the Supreme Court mistreats discrimination cases of the forgotten variety. The author draws a distinction between proxy and non-proxy discrimination. Proxy discrimination uses the classification in the law as a means to reach a set of persons with a different, correlated trait. Non-proxy discrimination, by contrast, aims at the set defined by …

Is Actuarially Fair Insurance Pricing Actually Fair? A Case Study In Insuring Battered Women, Deborah Hellman

Deborah Hellman

No abstract provided.

Classification And Fair Treatment: An Essay On The Moral And Legal Permissibility Of Profiling, Deborah Hellman

Deborah Hellman

Prior to the events of September 11, 2001, there appeared to be a consensus that profiling was both legally prohibited and morally wrong. Since 9/11, that consensus has eroded. In order to determine whether the fear and uncertainty occasioned by current events have simply clouded our judgment or whether, instead, the earlier rejection of profiling was too facile, we need to better understand precisely what we mean by "profiling." More importantly, we must develop a theory that explains when profiling, so defined, violates constitutional norms. This paper takes up that task. The paper uses the term "profiling" to mean any …

It's Not The Thought That Counts, Deborah Hellman

Deborah Hellman

The article considers a central question about discrimination – are an actor’s intentions relevant to whether an action wrongfully discriminates – and takes issue with a familiar answer to this question. If one thinks of “discrimination” in its literal sense, as simply drawing distinctions among people on the basis of possessing or lacking some trait, it becomes clear that discrimination is ubiquitous and often benign. The challenge is to distinguish when discrimination is permissible and when it is not. One common answer to this question is that it is the intentions of the actor who adopts or enacts a law, …

The Expressive Dimension Of Equal Protection, Deborah Hellman

Deborah Hellman

No abstract provided.

All The Difference In The World: Listening And Hearing The Voices Of Women, Phoebe A. Haddon

Phoebe A. Haddon

No abstract provided.

Equality And Sorority During The Decade After Brown, Taunya Lovell Banks

Taunya Lovell Banks

No abstract provided.

A Fair And Implicitly Impartial Jury: An Argument For Administering The Implicit Association Test During Voir Dire, Dale Larson

Dale K Larson

While many refer to jury selection as a science, others—perhaps more accurately—liken the process to voodoo. The jury consulting industry has exploded over the last thirty years, with many attorneys paying large amounts for voir dire for erratic and unpredictable results and a general inability to detect bias accurately in potential jurors. One explanation for these poor results, even when using the latest findings in the scientific jury selection field, is that the tools currently available to attorneys and jury consultants give us only a partial picture of the individuals in question. Currently, voir dire consists of oral questioning and …

Intragroup Discrimination: The Case For "Race Plus", Enrique R. Schaerer

Enrique R. Schaerer

The application of Title VII is uneven. The judiciary applies it to employment discrimination across groups, intergroup discrimination, but is reluctant to do so for discrimination within groups, intragroup discrimination. Even where Title VII recognizes intragroup discrimination, it does so unevenly. A “sex plus” doctrine is used to address intragroup sex discrimination, but no corresponding “race plus” doctrine has emerged for intragroup race discrimination. This Article calls attention to issues of intragroup discrimination, and proposes “race plus” as a natural extension of “sex plus” based on the text, legislative history, and statutory purpose of Title VII. This doctrinal tool would …

Race In The War On Drugs: The Social Consequences Of Presidential Rhetoric, Jeff L. Yates, Andrew Whitford

Jeff L Yates

One of the president’s main leadership tools for influencing the direction of American legal policy is public rhetoric. Numerous studies have examined the president’s use of the “bully pulpit” to lead policy by influencing Congress or public opinion, or by changing the behavior of public agencies. We argue that the president can use rhetoric to change the behavior of public agencies and that this can have important social consequences. We focus on the disproportionate impact of presidential rhetoric on different “target populations” in the context of the War on Drugs. Specifically, we observe that presidential rhetoric had a greater impact …

Gay Equality, Religious Liberty, And The First Amendment, Matthew J. Murray

Matthew Murray

Are gay rights laws and religious liberty fundamentally in conflict? Would legal recognition of same-sex marriage lead to a wave of litigation threatening the religious liberty of those who object to such unions on religious grounds? Opponents of same-sex marriage have vocally asserted as much. This Article argues, however, that modifications in civil marriage laws in fact pose little to no threat to the liberty of religious objectors. Rather, the real arena of potential conflict between religious liberty and gay equality arises in the context of sexual orientation nondiscrimination laws. But these tensions are not new. The courts should be …

Cumulative Jurisprudence And Hate Speech: Sexual Orientation And Analogies To Disability, Age And Obesity, Eric Heinze

Prof. Eric Heinze, Queen Mary University of London

Non-discrimination norms in human rights instruments generally enumerate specified categories for protection, such as race, ethnicity, sex or religion, etc. They often omit express reference to sexual minorities.

Through open-ended interpretation, however, sexual minorities subsequently become incorporated. That ‘cumulative jurisprudence’ yields protections for sexual minorities through norms governing privacy, employment, age of consent, or freedoms of speech and association.

Hate speech bans, too, are often formulated with reference to traditionally recognised categories, particularly race and religion. It might be expected that the same cumulative jurisprudence should therefore be applied to include sexual minorities. In this article, that approach is challenged. …

The European Convention On Human Rights, Non-Discrimination And Social Security: Great Scope, Little Depth?, Mel Cousins

Mel Cousins

This article examines the non-discrimination provisions of the European Convention on Human Rights in relation to social security law. There is a now a broad power of review under the ECHR as most social security payments fall within the scope of the Convention. There is also a more flexible approach to the grounds upon which discrimination can be challenged under Article 14. However, it is suggested that the European courts may need to adopt a more nuanced (or proportionate) approach to equality review rather than a binary approach.

Age Discrimination And Social Benefits: The Long Retreat From Tétreault-Gadoury?, Mel Cousins

Mel Cousins

This case note looks at a number of recent decisions of the Canadian courts concerning age discrimination as it applies to social benefits.

Health Care And Human Rights After Auton And Chaoulli, Mel Cousins

Mel Cousins

The judicial approach to the interpretation of entitlement to health care under the Canadian Charter of Rights and human rights legislation has tended to swing between interventionist and non-interventionist poles. This article examines the post- Chaoulli case law on health care and the Charter of Rights and/or human rights legislation. It suggests that Chaoulli – whatever about its impact in the legislative arena – has had a somewhat limited impact to date on the case law concerning health care and that the Auton case has clearly had a greater impact to date. It argues that the subsequent case law points …

‘A Recommitment To The Idea Of Substantive Equality’ (Or Not)? S. 15(1) Of The Charter Of Rights After Kapp: Harris V Canada (Human Resources And Skills Development), Mel Cousins

Mel Cousins

This note looks at the decision of the Federal Court of Appeal in Harris – a case which raised important equality issues about the operation of the ‘drop out’ provisions in the Canadian Pension Plan. The case is interesting both for the issue itself but also because it is one of the first judgments to consider the impact of the Supreme Court’s restatement in Kapp of its approach to s. 15. However, the court of appeal was split with all three judges giving a different analysis of the issues (albeit that the claim was rejected on a split decision). Part …