Law Commons^™

Formalism And Employer Liability Under Title Vii, Samuel R. Bagenstos

Articles

Most lawyers, law professors, and judges are familiar with two standard critiques of formalism in legal reasoning. One is the unacknowledged-policymaking critique. This critique argues that formalist reasoning purports to be above judicial policymaking but instead simply hides the policy decisions offstage. The other is the false-determinacy critique. This critique observes that formalist reasoning purports to reduce decision costs in the run of cases by sorting cases into defined categories, but argues that instead of going away the difficult questions of application migrate to the choice of the category in which to place a particular case.

An Evaluation Of The Prospects For Successful Implementation Of The Convention On The Rights Of Persons With Disabilities In The Islamic World, Brenton Kinker

Michigan Journal of International Law

This note will examine the CRPD’s aspirations in light of Islamic law, comparing whether the two are—or can be—consistent. Part I will provide background on the CRPD, including the intent of the treaty, the negotiations leading to the final wording, and the solid obligations it contains for state parties. Part II examines the background of Shari’a and its provisions regarding disability. Part III compares the treatment of the disabled under Islamic law with that required by the CRPD in order to gage consistency. Where tensions exist, alternative interpretations of both Islamic law and the CPRD are proposed that might facilitate …

The Geography Of Racial Stereotyping: Evidence And Implications For Vra ‘Preclearance’ After Shelby County, Christopher S. Elmendorf, Douglas M. Spencer

Publications

The Supreme Court in Shelby County v. Holder (2013) effectively enjoined the preclearance regime of the Voting Rights Act. The Court deemed the coverage formula, which determines the jurisdictions subject to preclearance, insufficiently grounded in current conditions. This Article proposes a new, legally defensible approach to coverage based on between-state differences in the proportion of voting age citizens who subscribe to negative stereotypes about racial minorities and who vote accordingly. The new coverage formula could also account for racially polarized voting and minority population size, but, for constitutional reasons, subjective discrimination by voters is the essential criterion. We demonstrate that …

Contesting A Contestation Of Testing: A Reply To Richard Delgado, Dan Subotnik

Scholarly Works

This article was written as part of an ongoing dialog about the author’s previous article, Does Testing = Race Discrimination?: Ricci, The Bar Exam, the LSAT, and the Challenge to Learning, which defended the Supreme Court’s decision in Ricci v. DeStefano, as well as defending testing more generally against charges of irrelevance, racial obtuseness, and most seriously, race discrimination.

This article specifically responds to Richard Delgado’s article, Standardized Testing as Discrimination: A Reply to Dan Subotnik.

Race Indeed Above All: A Reply To Professors Andrea Curcio, Carol Chomsky, And Eileen Kaufman, Dan Subotnik

Scholarly Works

This article was written as part of an ongoing dialog about the author’s previous article, Does Testing = Race Discrimination?: Ricci, The Bar Exam, the LSAT, and the Challenge to Learning, which defended the Supreme Court’s decision in Ricci v. DeStefano, as well as defending testing more generally against charges of irrelevance, racial obtuseness, and most seriously, race discrimination.

This article specifically responds to Andrea A. Curcio, Carol L. Chomsky, and Eileen Kaufman’s article, Testing, Diversity, and Merit: A Reply to Dan Subotnik and Others.

Evidence-Based Sentencing And The Scientific Rationalization Of Discrimination, Sonja B. Starr

Articles

This Article critiques, on legal and empirical grounds, the growing trend of basing criminal sentences on actuarial recidivism risk prediction instruments that include demographic and socioeconomic variables. I argue that this practice violates the Equal Protection Clause and is bad policy: an explicit embrace of otherwise- condemned discrimination, sanitized by scientific language. To demonstrate that this practice raises serious constitutional concerns, I comprehensively review the relevant case law, much of which has been ignored by existing literature. To demonstrate that the policy is not justified by countervailing state interests, I review the empirical evidence underlying the instruments. I show that …

Cultivating Inclusion, Patrick S. Shin, Mitu Gulati

Faculty Scholarship

In this symposium essay in honor of critical race theory stalwart Mari Matsuda, we discuss two of her essays on affirmative action, "Affirmative Action and Legal Knowledge: Planting Seeds in Plowed-Up Ground" and "Who is Excellent?" We draw on the insights of these essays, one written almost twenty-five years ago and the other over a decade ago, to reflect on currently prevailing justifications for affirmative action, which revolve entirely around debates about diversity. We contrast the production of racial diversity with the more robust concept of affirmative action that Matsuda advocated. We argue that the modern diversity rationale lies at …

Let's Pretend Discrimination Is A Tort, Sandra F. Sperino

Faculty Articles and Other Publications

In the past decade, the Supreme Court has repeatedly invoked tort common law to interpret federal discrimination statutes. During this same time period, the Supreme Court increasingly invoked textualism as the appropriate methodology for interpreting these statutes. One immediate effect of these two trends - tortification and textualism - is to restrict discrimination law by tightening causal standards.

This Article explores how interpreting discrimination statutes through the lenses of tort law and textualism can expand, rather than restrict, discrimination law. It assumes that courts will continue to characterize discrimination statutes as torts and as deriving from the common law, despite …

Torts And Civil Rights Law: Migration And Conflict: Symposium Introduction, Sandra F. Sperino

Faculty Articles and Other Publications

Curiously, the connection between civil rights and civil wrongs has not been a topic that has captivated the attention of large numbers of legal scholars over the years. The distance that has developed between the two fields likely reflects their placement on opposite sides of the public-private divide, with Title VII and other anti-discrimination statutes forming part of public law, while torts is a classic, private law subject. To compound the division, both subjects are to some extent still under-theorized. Employment discrimination scholarship is often caught up in the process of analyzing the doctrinal implications of the latest Supreme Court …

Leveraging Antidiscrimination, Olatunde C.A. Johnson

Faculty Scholarship

As the Civil Rights Act of 1964 turns fifty, antidiscrimination law has become unfashionable. Civil rights strategies are posited as not up to the serious task of addressing contemporary problems of inequality such as improving mobility for low-wage workers or providing access into entry-level employment. This Article argues that there is a danger in casting aside the Civil Rights Act as one charts new courses to address inequality. This Article revisits the implementation strategies that emerged in the first decade of the Act to reveal that the Act was not limited to addressing formal discrimination or bias, but rather drew …

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 …

Toward A Definitive History Of Griggs V. Duke Power Co., David J. Garrow

Vanderbilt Law Review

When Griggs v. Duke Power Co. was unanimously handed down by the U.S. Supreme Court on March 8, 1971, the decision did not draw prominent headlines. The New York Times accorded the ruling only a two-sentence summary on page twenty-one, and the Wall Street Journal gave it modest attention on page four. The Washington Post did give the decision front-page coverage, but Gillette v. United States, a Selective Service Act case, was awarded a prominent, top-of-the-page, two-column headline while Griggs received secondary attention. Notwithstanding how modest the contemporaneous news coverage was, knowledgeable judges, scholars, and litigators quickly acknowledged how Griggs …

Universalism And Civil Rights (With Notes On Voting Rights After Shelby), Samuel R. Bagenstos

Articles

After the Supreme Court’s decision in Shelby County v. Holder, voting rights activists proposed a variety of legislative responses. Some proposals sought to move beyond measures that targeted voting discrimination based on race or ethnicity. They instead sought to eliminate certain problematic practices that place too great a burden on voting generally. Responses like these are universalist, because rather than seeking to protect any particular group against discrimination, they formally provide uniform protections to everyone. As Bruce Ackerman shows, voting rights activists confronted a similar set of questions—and at least some of them opted for a universalist approach—during the campaign …

The Unrelenting Libertarian Challenge To Public Accommodations Law, Samuel R. Bagenstos

Articles

There seems to be a broad consensus that Title II of the Civil Rights Act of 1964, which prohibits race discrimination in “place[s] of public accommodation,” was a remarkable success. But the consensus is illusory. Laws prohibiting discrimination by public accommodations currently exist under a significant legal threat. And this threat is merely the latest iteration in the controversy over public accommodations laws that began as early as Reconstruction. This Article begins by discussing the controversy in the Reconstruction and Civil Rights Eras over the penetration of antidiscrimination principles into the realm of private businesses’ choice of customers. Although the …

Towards A Universal Framework For Insurance Anti-Discrimination Laws, Ronen Avraham, Kyle D. Logue, Daniel Schwarcz

Articles

Discrimination in insurance is principally regulated at the state level. Surprisingly, there is a great deal of variation across coverage lines and policyholder characteristics in how and the extent to which risk classification by insurers is limited. Some statutes expressly permit insurers to consider certain characteristics, while other characteristics are forbidden or limited in various ways. What explains this variation across coverage lines and policyholder characteristics? Drawing on a unique, hand-collected data-set consisting of the laws regulating insurer risk classification in fifty-one U.S. jurisdictions, this Article argues that much of the variation in state-level regulation of risk classification can in …

Hidden Lives And Human Rights In The United States: Understanding The Controversies And Tragedies Of Undocumented Immigration, Lois Lorentzen, Victor Romero

Victor C. Romero

Victor Romero is a contributing author: "The Criminalization of Undocumented Migrants," vol. 2, pp. 1-39.

In the United States, the crisis of undocumented immigrants draws strong opinions from both sides of the debate. For those who immigrate, concerns over safety, incorporation, and fair treatment arise upon arrival. For others, the perceived economic, political, and cultural impact of newcomers can feel threatening. In this informative three-volume set, top immigration scholars explain perspectives from every angle, examining facts and seeking solutions to counter the controversies often brought on by the current state of undocumented immigrant affairs.

Immigration expert and set editor Lois …

Policing Masculinity In Small-Town America, Luke A. Boso

Luke A. Boso

This Article explores masculinity in rural areas, and it addresses bullying and harassment of gay, bisexual, transgender, and otherwise gender non-conforming boys and men. While all men are under constant pressure to perform masculinity correctly and act like a "real" man, rural boys and men experience unique forms and degrees of gender policing and victimization. The confluence of geographic, social, religious, and economic characteristics common in many rural areas results in few available options for exhibiting acceptable masculinity; even benign and seemingly gender neutral traits quickly become proxies for effeminacy. Moreover, the cultural salience of rurality in the construction of …