Law Commons^™

Chapters Of The Civil Jury, Doug R. Rendleman

Doug Rendleman

The civil jury, though constitutionally protected by the seventh amendment, has remained a controversial institution throughout much of Anglo-American legal history. Our romantic ideals are questioned by critics who view the civil jury as prejudiced and unpredictable; proponents note the sense of fairness and "earthy wisdom" gained by community participation in the legal process. This debate surfaces in the process of accommodation between certain substantive goals of the law and the pre-verdict and post-verdict procedural devices courts have employed to control the jury. In this article, Professor Rendleman examines this conflict in his three "chapters" involving racially motivated discharges of …

Suturing A Torn System: How To Reduce Discrimination Against Hiv-Positive Medical Care Workers, Scott M. Engstrom

Scott M Engstrom

Although HIV has qualified as a disability under the Americans with Disabilities Act (“ADA”) ever since the Supreme Court’s 1998 decision in Bragdon v. Abbott, the ADA’s “direct threat” defense has been broadly used and interpreted expansively. Although many sub-categories of individuals with HIV have meritorious legal issues that demand analysis, the complexities of the medical profession coupled with HIV’s stigma have rendered confidentiality and disclosure issues ripe in that field. For the purpose of this note I have grouped together all individuals who provide medical services into a class which I call “Medical Care Workers” or “MCWs.” More specifically, …

Transcript For Panel Three: Privacy: Genetic Profiling And Discrimination , Christopher H. Asplen, F.Samuel Baechtel, Lon A. Berk, Susan D. Carle, Q.Todd Dickinson

Susan D. Carle

No abstract provided.

Equality Standards For Health Insurance Coverage: Will The Mental Health Parity And Addiction Equity Act End The Discrimination?, Ellen M. Weber

Ellen M. Weber

Congress enacted the Mental Health Parity and Addiction Equity Act in 2008 to end discriminatory health insurance coverage for persons with mental health and substance use disorders in large employer health plans. Adopting a comprehensive regulatory approach akin to other civil rights laws, the Parity Act requires “equity” in all plan features, including cost-sharing, durational limits and, most critically, the plan management practices that are used to deny many families medically necessary behavioral health care. Beginning in 2014, all health plans regulated by the Affordable Care Act must also comply with parity standards, effectively ending the second-class insurance status of …

Boardroom Diversity: Why It Matters, Lawrence J. Trautman

Lawrence J. Trautman Sr.

What exactly is board diversity and why does it matter? How does diversity fit in an attempt to build the best board for an organization? What attributes and skills are required by law and what mix of experiences and talents provide the best corporate governance? Even though most companies say they are looking for diversity, why has there been such little progress? Are required director attributes, which are a must for all boards, consistent with future diversity gains and aligned with achieving high performance and optimal board composition? How might women and people of color best cultivate the skills necessary …

Presumed Incompetent: The Intersections Of Race And Class For Women In Academia, Carmen G. Gonzalez

Carmen G. Gonzalez

Presumed Incompetent is a pathbreaking account of the intersecting roles of race, gender, and class in the working lives of women faculty of color. Through personal narratives and qualitative empirical studies, more than 40 authors expose the daunting challenges faced by academic women of color as they navigate the often hostile terrain of higher education, including hiring, promotion, tenure, and relations with students, colleagues, and administrators. The narratives are filled with wit, wisdom, and concrete recommendations, and provide a window into the struggles of professional women in a racially stratified but increasingly multicultural America. The downloadable document contains the Introduction …

Ethnicity And Prejudice: Reevaluating "National Origin" Discrimination Under Title Vii, Juan F. Perea

Juan F. Perea

No abstract provided.

A ‘Simple Test’: Posthumously Conceived Children And Social Security Entitlements In Astrue V Capato, Mel Cousins

Mel Cousins

This case note examines a recent Supreme Court decision concerning the interpretation of the provisions of the Social Security Act concerning entitlement to survivor’s benefits in respect of children. The case involved the correct construction of the term ‘child’ in the Act but arose, more specifically, from a series of cases concerning posthumously conceived children. Courts of Appeal had come to different interpretations as to correct interpretation of the Act and the Supreme Court intervened to resolve the conflict. The Court accepted the Social Security Agency’s (SSA) interpretation of the legislation. However, although legally correct, this does little if anything …

Do Law Schools Mistreat Women Faculty? Or, Who’S Afraid Of Virginia Woolf?, Dan Subotnik

Dan Subotnik

No abstract provided.

Farm Workers, Equal Treatment And Insurability: Griego V New Mexico Workers’ Compensation Administration, Mel Cousins

Mel Cousins

The US courts have considered a number of cases where a person has argued that his or her exclusion from insurability (either in social security, unemployment insurance or workers compensation) was in breach of the guarantee of equal protection in federal and/or state constitutions. The Social Security Act had originally entirely excluded domestic and agricultural workers. Early cases upholding the constitutionality of the Social Security Act had, inter alia, held that the exclusion of certain classes of worker from the scope of coverage did not render the legislation unconstitutional. However, these cases had not involved claims of racial, economic or …

Making The Anomalous Even More Anomalous: On Hosanna-Tabor, The Ministerial Exception, And The Constitution, Mark Strasser

Mark Strasser

In Hosanna–Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, the Court held that the First Amendment incorporates the ministerial exception and, further, found that the plaintiff fell within that exception and so could not press her claim. However, courts and commentators hoping for clarification of Religion Clauses jurisprudence more generally or even for a firm constitutional grounding of the ministerial exception may well be disappointed. The Court has raised more questions than it has answered, and has provided such little helpful guidance to the lower courts that Hosanna-Tabor is likely to lead to greater confusion in the …

Travellers, Equality And School Admission In The High Court: Stokes V Christian Brothers High School Clonmel, Mel Cousins

Mel Cousins

This note examines the recent Irish High Court decision in Stokes v CBS High School 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 case concerned the fact that Mr. Stokes, a member of the Traveller community, was refused access to the school which was oversubscribed. The admission criteria included a rule whereby priority was given to children whose parents had attended the school and it was argued that this was indirectly discriminatory against …

Propelling Aviation To New Heights: Accessibility To In-Flight Entertainment For Deaf And Hard Of Hearing Passengers, Michael A. Schwartz

Michael A Schwartz

In-flight entertainment has been available for over forty-five years, but to this day remains without captions or subtitles, thus depriving deaf and hard of hearing passengers of access to this service. The Air Carrier Access Act of 1986 (“ACAA”) and implementing regulations do not require captioning of in-flight entertainment, and Congress, the airline industry and the U.S. Department of Transportation (“DOT”) have yet to remedy the problem. The courts do not allow deaf and hard of hearing passengers a private right of action and punitive damages under the ACAA. The DOT recently indicated it will issue a Notice of Proposed …

Disabled Students' Rights Of Access To Charter Schools Under The Idea, Section 504 And The Ada, Robert A. Garda Jr.

Robert A. Garda

Charter schools are under increasing attack for denying admission to disabled students. But traditional schools also turn away disabled students, often preventing them from attending schools in their neighborhood or within their district. This Article discusses when a school is permitted under federal disability law to deny admission to a disabled student. After nearly four decades of special education jurisprudence and regulatory guidance, the circumstances under which a student with a disability may be denied admission to a particular school are still remarkably unclear. This Article first discusses the "zero-reject" principle underlying the Individuals with Disabilities Education Act and concludes …

Reciprocal Antidiscrimination Arguments, Yofi Tirosh

Yofi Tirosh

This Article addresses a common characteristic of antidiscrimination law: To what extent should one antidiscrimination campaign be held accountable for other, related, discriminatory structures that it does not and cannot purport to correct? Plaintiffs in antidiscrimination cases are sometimes expected to account for the larger social context in which their claim is made. Defendants invoke this larger context as a way of rebutting the discrimination claim, by arguing that the plaintiff’s claim has “discriminatory residue” that would exacerbate related discriminatory structures. For example, in a case in which same-sex couples seek the right to contract with surrogate mothers, the defendant …

Procedures And Remedies Under Section 504 And The Ada For Public School Children With Disabilities, Mark C. Weber

Mark C. Weber

Much has been written about procedures and remedies under the Individuals with Disabilities Education Act, but few scholars have explored procedural rights and corresponding mechanisms of administrative and judicial relief for victims of public schools’ violations of children’s rights under section 504 of the Rehabilitation Act of 1973 and title II of the Americans with Disabilities Act. This paper will discuss the administrative procedures that must be followed in hearings regarding complaints of violations of those laws by public school districts and the relief that hearing officers and courts may provide. It will begin with an update on developments regarding …

Common-Law Interpretation Of Appropriate Education: The Road Not Taken In Rowley, Mark C. Weber

Mark C. Weber

Thirty years old in 2012, Board of Education v. Rowley is the case that established a some-benefit or floor-of-opportunity standard for the services public school districts must provide to children who have disabilities. But the some-benefit approach is by no means the only one the Court could have adopted. It could have endorsed the view of the lower courts that each child with a disability must be given the opportunity to achieve his or her potential commensurate with the opportunity offered other children. Or it could have adopted a standard based on achievement of the child’s full potential or the …

Health Cover(Age)Ing, Rebecca Rausch

Rebecca L. Rausch

This article posits that the emerging employer-imposed health insurance fat tax regime subverts the public policy goal of achieving actual health and evidences two important systemic phenomena: first, that these fat taxes force fat people to cover their fatness, and second, that current legal structure permitting this practice ensures that society continues to cover up its anti-fat bias. American society, through the health care system and other mechanisms, has created a fat-thin dichotomy within which thin is good and fat is bad. Recently, employers began reinforcing this dichotomy by imposing on employees whose weight renders them “obese” on the Body …

Eradicating The Mothering Effect: Women As Workers And Mothers, Successfully And Simultaneously, Rona Kaufman Kitchen

Rona Kaufman Kitchen

In the United States, the need for federal legislation to address work-family conflict has never been more pressing. Mothers are the primary caretakers of their children even while they participate in the paid market in record numbers. However, because the workplace is designed to accommodate the needs of the traditional male, mothers often face distinct challenges when combining their paid market and care work. For example, middle-class families are working longer hours than ever before, over 70 percent of mothers participate in the paid labor market, and mothers earn 30 percent less than their male counterparts. Meanwhile, two-thirds of mothers …

Presumed Incompetent: The Intersections Of Race And Class For Women In Academia -- Introduction, Carmen G. Gonzalez, Angela P. Harris

Carmen G. Gonzalez

Presumed Incompetent is a pathbreaking account of the intersecting roles of race, gender, and class in the working lives of women faculty of color. Through personal narratives and qualitative empirical studies, more than 40 authors expose the daunting challenges faced by academic women of color as they navigate the often hostile terrain of higher education, including hiring, promotion, tenure, and relations with students, colleagues, and administrators. One of the topics addressed is the importance of forging supportive networks to transform the workplace and create a more hospitable environment for traditionally subordinated groups. The narratives are filled with wit, wisdom, and …

Black Lung Benefits And Constitutional Challenges: The Byrd Amendments To The Black Lung Benefits Act; And The Kentucky Consensus Procedure, Mel Cousins

Mel Cousins

This note discusses two recent issues where legislation concerning benefits for coal workers affected by pneumoconiosis (black lung) was challenged under the US Constitution, including issues of due process, equal treatment and the takings clause. Congress has recently restored earlier legislation making it easier for the survivors of workers affected by black lung to qualify for federal benefits. Several courts of appeal have upheld this legislation against constitutional challenges from employers holding that it is neither in breach of the employers’ due process rights nor a taking within the meaning of the Fifth Amendment to the Constitution. In contrast, the …

Equal Protection, Immigrants And Access To Health Care And Welfare Benefits, Mel Cousins

Mel Cousins

Equal Protection, Workers Compensation And Offset Of Benefits (Again) – Caldwell V Maco Workers Compensation And Caputo V Workers’ Compensation Appeal Board (Commonwealth Of Pennsylvania)

Mel Cousins

As noted in an earlier article, one issue which has received considerable attention in terms of equal protection challenges in US courts is that concerning the offset of one type of social security benefits with worker’s compensation payments. The Supreme Court in Richardson v Belcher upheld the reduction in social security disability insurance because of receipt of a state worker’s compensation payment as rationally based and free from invidious discrimination. The Court and various federal courts of appeals have subsequently shown little interest in subjecting such offset provisions to more than a minimal level of scrutiny. State courts have also …

The Impact Of Recent Cjeu Rulings On The Presence And Residence Rules For United Kingdom Disability Benefits, Mel Cousins

Mel Cousins

This article examines a number of recent decisions of the Court of Justice of the European Union (“CJEU”) and their impact on the presence and residence rules for disability benefits, in particular the disability living allowance (“DLA”). It considers the approach which the courts may take to the export of disability benefits in the light of these recent decisions.

Unpacking The Employee-Misconduct Defense, Sachin S. Pandya

Sachin S. Pandya

When a worker sues an employer, the employer sometimes learns thereafter that the worker had committed some misconduct at the time of hire or while on the job. In those cases, most American work laws provide the employer with a defense that precludes employer liability, or at least limits remedies, if the employer shows that, had it known of the worker’s misconduct at the time of its allegedly wrongful act, it would have fired the worker because of that misconduct. This Article evaluates the prevailing arguments for and against the employee-misconduct defense as it appears in the National Labor Relations …