Law Commons^™

Talking About Race And Equality, Sharon E. Rush

UF Law Faculty Publications

Lots of people of different races are increasingly uncomfortable talking about race. They prefer to function in a colorblind society where they insist that race is irrelevant. Not surprisingly, the concept of racial silencing is consistent with the concept of colorblindness. Logically, it seems impossible to talk about race if we are not even supposed to see it. The idea seems to be that if people who believe in racial equality magically stopped seeing and talking about race they could avoid the negativity surrounding racial issues and just hope that the inequality would fix itself. But we know that if …

Perpetuating The Marginalization Of Latinos: A Collateral Consequence Of The Incorporation Of Immigration Law Into The Criminal Justice System, Yolanda Vazquez

All Faculty Scholarship

Latinos currently represent the largest minority in the United States. In 2009, we witnessed the first Latina appointment to the United States Supreme Court. Despite these events, Latinos continue to endure racial discrimination and social marginalization in the United States. The inability of Latinos to gain political acceptance and legitimacy in the United States can be attributed to the social construct of Latinos as threats to national security and the cause of criminal activity.

Exploiting this pretense, American government, society and nationalists are able to legitimize the subordination and social marginalization of Latinos, specifically Mexicans and Central Americans, much to …

Collateral Consequences, Genetic Surveillance, And The New Biopolitics Of Race, Dorothy E. Roberts

All Faculty Scholarship

This Article is part of a Howard Law Journal Symposium on “Collateral Consequences: Who Really Pays the Price for Criminal Justice?,” as well as my larger book project, Fatal Invention: How Science, Politics, and Big Business Re-create Race in the Twenty-First Century (The New Press, 2011). It considers state and federal government expansion of genetic surveillance as a collateral consequence of a criminal record in the context of a new biopolitics of race in America. Part I reviews the expansion of DNA data banking by states and the federal government, extending the collateral impact of a criminal record—in the form …

Overcoming Under-Compensation And Under-Deterrence In Intentional Tort Cases: Are Statutory Multiple Damages The Best Remedy?, Stephen J. Shapiro

All Faculty Scholarship

This Article advocates that states' statutes make greater and more systematic use of multiple damages by extending them to a much broader range of intentional, wrongful conduct. Part II of this Article will explain why extra-compensatory relief is called for when tortious conduct is intentional or malicious. Part III will compare punitive damages, attorney fees, and treble or other multiple damages as possible sources of additional relief. Part IV will focus on multiple damages. The Article will examine the range of existing state statutes and discuss why and how those statutes might be extended to a broader range of wrongful …

Racial Redistricting In A Post-Racial World, Gilda R. Daniels

All Faculty Scholarship

The 2011 redistricting will provide some interesting challenges for minority voting rights. How can we preserve minority electoral opportunities and gains in the wake of Bartlett v. Strickland and Georgia v. Ashcroft? What is the impact on future voting rights litigation and are coalition district claims viable as an opportunity to continue the electoral gains made since the passage of the Voting Rights Act? Are majority-minority districts safe from legislative backsliding? The Supreme Court's construed admonitions against race-conscious redistricting in recent cases may become cautionary tales. This Article discusses the central role the Voting Rights Act should play in preserving …

Preface To Fatal Invention: How Science, Politics, And Big Business Re-Create Race In The Twenty-First Century, Dorothy E. Roberts

All Faculty Scholarship

Fatal Invention documents the emergence of a new biopolitics in the United States that relies on re-inventing race in biological terms using cutting-edge genomic science and biotechnologies. Some scientists are defining race as a biological category written in our genes, while the biotechnology and pharmaceutical industries convert the new racial science into race-based products, such as race-specific medicines, ancestry tests, and DNA forensics, that incorporate false assumptions of racial difference at the genetic level. The genetic understanding of race calls for technological responses to racial disparities while masking the continuing impact of racism in a supposedly post-racial society. Instead, I …

Biological Metaphors For Whiteness: Beyond Merit And Malice, Brant T. Lee

Akron Law Faculty Publications

The problem of persistent racial inequality is grounded in a failure of imagination. The general mainstream conception is that unfair racial inequality occurs only when there is intentional racism. Absent conscious racial malice, no racism is seen to exist. The only generally available alternative explanation for racial inequality is the meritocratic system. Viewing the distribution of resources as a product of a generally fair meritocratic system provides a defense against any charge of racism, and justifies the status quo.

But in economics, business, computer science, and even biology, observers of complexity are coming to understand how dominant systems can prevail …

Immigrant Education And The Promise Of Integrative Egalitarianism, Victor C. Romero

Journal Articles

Although not an equal protection case, Martinez v. Regents of the University of California challenges us to grapple with the Supreme Court’s post-Brown commitment to equal opportunity within the context of immigrant higher education. Sadly, Brown’s progeny from Bakke to Parents Involved reveals the cost of embracing a color-blind constitutionalism unmoored from a fundamental commitment to vigilantly combat subordination and dismantle unearned privilege. More optimistically, the Supreme Court’s gay rights jurisprudence developed in Romer v. Evans and Lawrence v. Texas provides insights into how a conservative court can accurately distinguish irrational discrimination from democratic deliberation, a lesson that might help …

Mancession Or Momcession? Good Providers, A Bad Economy, And Gender Discrimination, Allison Anna Tait

Law Faculty Publications

Against this backdrop of precarious and disappearing work, two new elements became important: who was out of work, and how those still employed were navigating bad jobs. These questions laid the foundation for a flood of stories concerning unemployment and bad employment. Unsurprisingly, gender played a leading role in the debates. This article will discuss these two concerns--employment and workplace discrimination-as they intersect with gender and gender stereotypes.

Doma, Romer, And Rationality, Andrew Koppelman

Faculty Working Papers

It has been objected by many that the Defense of Marriage Act lacks a rational basis because it reflects a bare desire to harm a politically unpopular group. The increasing success of the argument, which has persuaded three federal judges, reveals the hidden normative premises of rational basis analysis, at least whenever that analysis is used to invalidate a statute. Since 1996, when DOMA was passed by overwhelming margins in both houses of Congress, the country's attitudes toward gay people have evolved rapidly, to the point where this kind of mindless lashing out at gays looks a lot less attractive. …

Gender Justice In The Americas: A Transnational Dialogue On Violence, Sexuality, Reproduction, And Human Rights University, Human Rights Clinic, Centro De Derechos Humanos De La Universidad Diego Portales, Center For Reproductive Rights

Human Rights Institute

On February 23-25, 2011, over 100 women's rights, gender, and sexuality advocates and scholars from twenty countries in North, South, and Central America and the Caribbean gathered at the University of Miami in Miami, Florida to attend a groundbreaking convening, Gender Justice in the Americas: A Transnational Dialogue on Violence, Sexuality, Reproduction, and Human Rights. The Convening, hosted by the University of Miami School of Law Human Rights Clinic, University of Diego Portales Human Rights Center, the Center for Reproductive Rights, and Columbia Law School Human Rights Institute, brought together key players in the region to exchange views and …

Clarifying Stereotyping, Kerri Lynn Stone

Faculty Publications

This Article addresses the largely undefined, misunderstood-yet-often-resorted-to concept of “stereotyping” as a basis for, or sufficient evidence of, liability for employment discrimination. Since, the concept’s genesis in Supreme Court jurisprudence in 1989, Price Waterhouse v. Hopkins, plaintiffs have proffered remarks alleged to be tinged with, or indicating the presence of, impermissible stereotypes as evidence of discrimination based on protected-class status – be that sex, race, color, religion, or national origin – in contravention of Title VII of the Civil Rights Act of 1964. The Article examines the language in Hopkins and its precise mandates and guidance for lower courts. It …

Shortcuts In Employment Discrimination Law, Kerri Lynn Stone

Faculty Publications

Are employment discrimination plaintiffs viewed by society and by judges with an increased skepticism? This article urges that the same actor inference, the stray comment doctrine, and strict temporal nexus requirements, as courts have applied them, make up a larger and dangerous trend in the area of employment discrimination jurisprudence- that of courts reverting to special, judge-made "shortcuts" to curtail or even bypass analysis necessary to justify the disposal or proper adjudication of a case. This shorthand across different doctrines reveals a willingness of the judiciary to proxy monolithic assumptions for the individualized reasoned analyses mandated by the relevant antidiscrimination …

On The Contemporary Meaning Of Korematsu: 'Liberty Lies In The Hearts Of Men And Women', David A. Harris

Articles

In just a few years, seven decades will have passed since the U.S. Supreme Court’s decision in Korematsu v. U.S., one of the most reviled of all of the Court’s cases. Despised or not, however, similarities between the World War II era and our own have people looking at Korematsu in a new light. When the Court decided Korematsu in 1944, we were at war with the Japanese empire, and with this came considerable suspicion of anyone who shared the ethnicity of our foreign enemies. Since 2001, we have faced another external threat – from the al Queda terrorists – …

From Wards Cove To Ricci: Struggling Against The Built-In Headwinds Of A Skeptical Court, Melissa Hart

Publications

When the Supreme Court in 1971 first recognized disparate impact as a legal theory under Title VII, the Court explained that the "absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as ‘built-in headwinds’ for minority groups and are unrelated to measuring job capability." Forty years later, it is the built-in headwinds of a Supreme Court skeptical of - perhaps even hostile to - the goals of disparate impact theory that pose the greatest challenge to continued movement toward workplace equality. The essay examines the troubled trajectory that disparate impact law has taken in the …

Showcasing: The Positive Spin, Katharine T. Bartlett

Faculty Scholarship

This Commentary outlines the positive case for showcasing diversity. Patrick Shin and Mitu Gulati criticize showcasing on the grounds that appointing women and minorities to board directorships is unreliable as a sign of true commitment to diversity and, further, that showcasing is detrimental to women and minorities because it treats them as objects or “prized trophies.” Drawing on social psychology, this Commentary highlights the mechanisms through which showcasing, despite the negative features emphasized by Shin and Gulati, also reinforces diversity values and strengthens the existing societal consensus in favor of diversity.

The Importance Of Immutability In Employment Discrimination Law, Sharona Hoffman

Faculty Publications

This article argues that recent developments in employment discrimination law require a renewed focus on the concept of immutable characteristics. In 29 two new laws took effect: the Genetic Information Nondiscrimination Act (GINA) and the Americans with Disabilities Act Amendments Act (ADAAA). This Article’s original contribution is an evaluation of the employment discrimination statutes as a corpus of law in light of these two additions.

The Article thoroughly explores the meaning of the term “immutable characteristic” in constitutional and employment discrimination jurisprudence. It postulates that immutability constitutes a unifying principle for all of the traits now covered by the employment …

Straight Is Better: Why Law And Society May Legitimately Prefer Heterosexuality, George W. Dent

Faculty Publications

America is embroiled in a culture war over homosexuality. The homosexual movement demands the end of “heteronormativity” - the social and legal preference for heterosexuality. It insists that “Gay Is Good” - just as good as heterosexuality. This article presents a defense of heteronormativity; it argues that straight is better. In particular, it argues that naturally conceiving, bearing and raising children is intrinsically good for parents; that it is both intrinsically and instrumentally good for children to be raised by their biological parents who are married to each other; and that traditional marriage is both intrinsically and instrumentally good for …

Teaching Gender As A Core Value In Business Organizations Class, Cheryl L. Wade

Faculty Publications

(Excerpt)

I teach a business organizations course that is typically a large class with up to ninety students. At some point in the first week of each semester, I talk about public companies and the men who lead them. I point out to my students that while it is appropriate in most contexts to use gender-neutral language, it would be inaccurate to do so when talking about big business. Only fifteen percent of the board seats at Fortune 500 companies are held by women, and only sixteen percent of Fortune 500 corporate officers are women. I let my students know …

Income Tax Discrimination: Still Stuck In The Labyrinth Of Impossibility, Michael J. Graetz, Alvin C. Warren Jr.

Faculty Scholarship

In previous articles, we have argued that the European Court of Justice's reliance on nondiscrimination as the basis for its decisions did not (and could not) satisfy commonly accepted tax policy norms, such as fairness, administrability, economic efficiency, production of desired levels of revenues, avoidance of double taxation, fiscal policy goals, inter-nation equity, and so on. In addition, we argued that the court cannot achieve consistent and coherent results by requiring nondiscrimination in both origin and destination countries for transactions involving the tax systems of more than one member state. We demonstrated that – in the absence of harmonized income …

Showcasing Diversity, Mitu Gulati, Patrick S. Shin

Faculty Scholarship

Diversity initiatives are commonplace in today’s corporate America. Large and successful firms frequently tout their commitments to diversity, sometimes appointing women and racial minorities to highly visible posts, including seats on their boards of directors. Why would a profit-minded firm engage in such behavior? One frequently voiced explanation is that by creating such diversity, firms send out a positive signal about their attributes: a firm’s willingness to expend resources on diversity shows its commitment to workplace fairness and equality, which makes it more attractive to potential employees, customers and financiers. This claim has considerable surface appeal not only as an …