Law Commons^™

Proposition 8 Is Unconstitutional, But Not Because The Ninth Circuit Said So: The Equal Protection Clause Does Not Support A Legal Distinction Between Denying The Right To Same-Sex Marriage And Not Providing It In The First Place, Nathan Rouse

Seattle University Law Review

In Perry v. Brown, the Ninth Circuit held that Proposition 8 is unconstitutional. But in doing so, the court stepped back from the breadth of the district court’s decision. The Ninth Circuit did not address whether same-sex marriage is a fundamental constitutional right. Nor did the Ninth Circuit address whether the Equal Protection Clause categorically prevents states from limiting marriage to opposite-sex couples. Instead, the Ninth Circuit reached the narrow conclusion that Proposition 8 violates the Equal Protection Clause because it withdrew a preexisting legal right from a marginalized group without any legitimate purpose. The Ninth Circuit should have held …

Disparate Impact: Fairness Or Efficiency?, Larry Alexander

San Diego Law Review

Here is a stylized, simplified account of the disparate impact branch of discrimination law. Employer (E) uses certain criteria—which I shall call “the test”—to determine whom to employ. Those who qualify under the test may be disproportionately of a certain race, sex, national origin, or religion. I shall call those races, sexes, et cetera, that are disproportionately qualified under the test “the preferred,” and those races, sexes, et cetera, that are disproportionately unqualified under the test “the dispreferred.” In a disparate impact discrimination case—and again, I am simplifying somewhat, though immaterially—an employee candidate (C) who is both a member of …

Bundy V. Jackson: Eliminating The Need To Prove Tangible Economic Job Loss In Sexual Harassment Claims Brought Under Title Vii, Terence J. Bouressa

Pepperdine Law Review

In the case of Bundy v. Jackson, the federal appellate court eliminated the need to prove tangible job loss in claims under Title VII relating to sexual harassment. The holding in Bundy thus promotes the viability of sexual harassment claims under Title VII and deters employers from engaging in subtle sexual harassment as "part of the job." The decision provides a model for the nation to follow in the pursuit of the worthy goal of eliminating sexual harassment in the workplace.

A Short Road To Statehood, A Long Road To Washington, Rachel J. Anderson

Scholarly Works

This article documents the election in 2012 of the first African-American to represent Nevada in the U.S. Congress, Steven Horsford. It is part of "A Special Series on African Americans in Nevada Politics - Past and Present" on pages 16-21 of the issue." Sources are on page 21 of the issue.

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

Faculty Scholarship

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 …

Brief For Prof. Leslie C. Griffin As Amica Curiae In Support Of Appellant, Kant V. Lexington Theological Seminary, Leslie C. Griffin

Supreme Court Briefs

No abstract provided.

Discrimination Statutes, The Common Law, And Proximate Cause, Sandra F. Sperino

Faculty Articles and Other Publications

The Supreme Court has recently hinted that courts should use proximate cause in Title VII cases. This Article anticipates future judicial forays into this area and argues that proximate cause principles should not be imported into federal discrimination law. This inquiry dovetails into a broader conversation about the proper role of proximate cause in federal statutes, a subject which has produced a fractured jurisprudence.

Courts and commentators have often indicated that employment discrimination law is a tort. While this statement may be true, it is too general to provide guidance on whether to apply proximate cause. It ignores that both …

Bathroom Bias: Making The Case For Trans Rights Under Disability Law, Daniella A. Schmidt

Michigan Journal of Gender & Law

Disability law is one of the more successful tools currently being used to protect trans people fom discrimination. While the use of disability law as a framework for affirming or creating trans rights has come with some success, many in the community remain reluctant to use disability law for fear of the policy implications and stigma associated with medicalization of trans identity. After exploring the current state of the law on both the federal and state level, this Note will argue how disability law both could and should be used more often to further trans protections. In particular, this Note …

Revitalizing State Employment Discrimination Law, Sandra F. Sperino

Faculty Articles and Other Publications

Over the past few decades, federal discrimination law has become captive to an increasingly complex web of analytical frameworks. The courts have been unable to articulate a consistent causation or intent standard for federal law or to provide a uniform account of the type of injury the plaintiff is required to suffer. Part of this failure is demonstrated in the ever-increasing rift between how courts construct the discrimination inquiry for federal age discrimination claims and claims based on other traits, such as sex and race.

Unfortunately, the courts are unnecessarily taking state employment discrimination claims into this federal morass. When …

Beyond Mcdonnell Douglas, Sandra F. Sperino

Faculty Articles and Other Publications

Since 1973, the McDonnell Douglas framework has been a key analytical structure in employment discrimination law. Academic debate regarding the framework has alternately sounded its death knell, posited its irrelevance, or asserted its continued vitality. What has gone unnoticed in this discussion is the gradual weakening of the framework over the past two decades. Rather than casting this test into oblivion, courts are slowly chipping away at its preeminent place as a proof structure.

Little by little, courts are gradually eroding the McDonnell Douglas test's power through both procedural and substantive means. Procedurally, courts have questioned, rejected or diminished the …

Promoting Language Access In The Legal Academy, Gillian Dutton, Beth Lyon, Jayesh M. Rathold, Deborah M. Weissman

University of Maryland Law Journal of Race, Religion, Gender and Class

"Promoting Language Access in the Legal Academy," details the progress made by the legal profession in meeting the needs of individuals with limited English language proficiency. The authors outlines the current need, summarizes various approaches taken by law schools, and emphasizes the value of training bilingual law students as well as mobilizing a cadre of undergraduate interpreters.

Modernizing State Vital Statistics Statutes And Policies To Ensure Accurate Gender Markers On Birth Certificates: A Good Government Approach To Recognizing The Lives Of Transgender People, Lisa Mottet

Michigan Journal of Gender & Law

Across the country, laws governing corrections to gender markers on birth certificates are relatively uniform, in large part because many states adopted the relevant provisions of the 1977 revision of the Model State Vital Statistics Act (MSVSA). The MSVSA, developed by the U.S. Department of Health and Human Services, guides states on the most efficient laws and procedures related to maintaining accurate birth, death, and other vital records at the state, local, and territorial level. At the time when the government promulgated the MSVSA provision related to gender corrections, it served as a forward-thinking model because it acknowledged that vital …

Flexible Scheduling And Gender Equiality: The Working Families Flexibility Act Under The Fourteenth Amendment, Lane C. Powell

Michigan Journal of Gender & Law

The Working Families Flexibility Act (“WFFA”) as proposed in 2012 would create a federal right for employees to request flexible work arrangements. However, the bill contains no private right of action for employees to enforce this new right. By reframing the WFFA as an anti-discrimination statute targeting unconstitutional sex discrimination on the part of the States, the WFFA could be upheld under Section 5 of the Fourteenth Amendment, allowing Congress to provide a private right of action for both private and state employees. This Note uses the Supreme Court’s decisions on the Family Medical Leave Act in Hibbs and Coleman …

Mapping The Law Of Wto Accession, Steve Charnovitz

GW Law Faculty Publications & Other Works

The member countries of the World Trade Organization (WTO) joined either as original members or through the Article XII accession process. To date, over 20 members have joined through accession including most notably China in 2001. Recently, Vietnam completed its accession negotiations and Russia made do so sometime in 2007. Governments joining the WTO through accession have to abide by WTO rules, as all members do, but applicant governments are also often asked to accept individualized rules tailored for them through negotiations. These special rules have not received extensive examination in previous scholarship. The purpose of this article is to …

Voting Rights Disclosure, Spencer A. Overton

GW Law Faculty Publications & Other Works

In "Beyond the Discrimination Model On Voting," 127 Harvard Law Review 95 (2013), Professor Samuel Issacharoff proposes that Congress turn away from what he considers the outdated and “limited race-driven use” of the Fifteenth Amendment and instead protect all types of voters from partisan manipulation using a “non-civil rights” Elections Clause approach. Specifically, Issacharoff proposes that jurisdictions disclose changes to voting rules for federal elections. This Essay argues that Issacharoff’s approach is incomplete. Contemporary discrimination exists and warrants attention — particularly where fast-growing minority populations threaten the status quo. This discrimination differs from simple partisan manipulation, as the discrimination reduces …

Outing The Majority: Gay Rights, Public Debate, And Polarization After Doe V. Reed, Marc Allen

Michigan Journal of Gender & Law

In 2010, the United States Supreme Court ruled in Doe v. Reed that Washington citizens who signed a petition to eliminate legal rights for LGBT couples did not have a right to keep their names secret. A year later, in ProtectMarriage.com v. Bowen, a district court in California partially relied on Reed to reject a similar request from groups who lobbied for California Proposition 8-a constitutional amendment that overturned the California Supreme Court's landmark 2008 gay marriage decision. These holdings are important to election law, feminist, and first amendment scholars for a number of reasons. First, they flip the traditional …

Blacks And Voting Rights In Nevada, Rachel J. Anderson

Scholarly Works

This article is a brief foray into black suffrage and equal rights in Nevada legal history. It is part of "A Special Series on African Americans in Nevada Politics - Past and Present" on pages 16-21 of the issue. Sources are on page 21 of the issue.

Blacks In The Nevada Legal Profession, Rachel J. Anderson

Scholarly Works

This article discusses the history of African-Americans in the Nevada legal profession. It is part of "A Special Series on African Americans in Nevada Politics - Past and Present" on pages 16-21 of the issue. Sources are on page 21 of the issue.

Masculine Law Firms, Ann C. Mcginley

Scholarly Works

This article describes the masculine culture in law firms and analyzes how this culture harms both men and women because of their gender. Part II explains MMT, and analyzes the masculine practices that exist in modern law firms. Part III studies a lawsuit brought by a law firm associate, a white male father of two who allegedly was fired in retaliation for taking leave under the Family Medical Leave Act and because of his failure to adhere to the macho stereotypes prevalent in the law firm. Part IV analyzes how the law should respond to masculine norms, and suggests that …

What Was Wrong With The Record?, Ellen D. Katz

Articles

Shelby County v. Holder offers three reasons for why the record Congress amassed to support the 2006 reauthorization of the Voting Rights Act (VRA) was legally insufficient to justify the statute's continued regional application: (1) the problems Congress documented in 2006 were not as severe as those that prompted it to craft the regime in 1965; (2) these problems did not lead Congress to alter the statute's pre-existing coverage formula; and (3) these problems did not exclusively involve voter registration and the casting of ballots.

On Estimating Disparity And Inferring Causation: Sur-Reply To The U.S. Sentencing Commission Staff, Sonja B. Starr, M. Marit Rehavi

Articles

In this Essay, Professors Starr and Rehavi respond to the U.S. Sentencing Commission’s empirical staff’s criticisms of their recent article, which found, contrary to the Commission’s prior work, no evidence that racial disparity in sentences increased in response to United States v. Booker. As Starr and Rehavi suggest, their differences with the Commission perhaps relate to differing objectives. The Commission staff’s reply expresses a lack of interest in identifying Booker’s causal effects; in contrast, that is Starr and Rehavi’s central objective. In addition, Starr and Rehavi’s approach also accounts for disparities arising throughout the post-arrest justice process, extending beyond the …

What Changed When The Gay Adoption Ban Was Lifted?: Perspectives Of Lesbian And Gay Parents In Florida, Julie Shapiro, Abbie E. Goldberg, April M. Moyer, Elizabeth R. Weber

Faculty Articles

This exploratory, qualitative study examined the perspectives of 22 lesbian and gay parents (15 female and seven male) who were residents of Florida while the state’s gay adoption ban was in effect and who had adopted or were in the process of adopting a child. Participants were interviewed about their experiences before and after the lifting of the gay adoption ban, which occurred in 2010. Participants described numerous negative consequences of the ban, including the inability to adopt foster children and the legal invisibility of one partner’s parental status (e.g.,among lesbian couples who had become parents via donor insemination). Parents …

How Quickly We Forget: The Short And Undistinguished Career Of Affirmative Action, Robert A. Parrish

South Carolina Law Review

No abstract provided.

Teaching Employment Discrimination Law, Virtually, Miriam A. Cherry

Saint Louis University Law Journal

No abstract provided.

Identifying (With) Disability: Using Film To Teach Employment Discrimination, Elizabeth Pendo

Saint Louis University Law Journal

No abstract provided.

Summary Judgment In Employment Discrimination Cases: A Judge’S Perspective, Hon. Denny Chin

NYLS Law Review

No abstract provided.

Our Illegal Founders, Victor C. Romero

Faculty Scholarship

This Essay briefly mines America’s history to argue that the law setting forth where our national borders are and how strictly we patrol them has always been subject to the vagaries of politics, economics, and perception. Illegal (im)migration has long been part of our migration history, engaged in not just by Latin American border crossers, but also by prominent colonists, giving the lie to the claim that upholding border laws should always be sacrosanct. In many school districts today, the usual summary of American history from our childhood civics classes no longer bypasses the uncomfortable truths of conquest and westward …

The Case For The Federation Of Law Societies Rejecting Trinity Western University's Proposed Law Degree Program, Elaine Craig

Articles, Book Chapters, & Popular Press

Should Canada have a law school that discriminates against gays and lesbians? Would the governing bodies of the legal profession in Canada approve a law school that prohibited mixed race sexual intimacy? Should a self-regulating legal profession require that the policies of the institutions that produce this country's next generation of lawyers respect equality and academic freedom? Trinity Western University (TWU), a private Christian school in British Columbia is posed to become Canada’s first Christian law school. Trinity Western discriminates on the basis of sexual orientation in both its hiring and admissions policies. It has also been found to violate …

Mandatory Sentencing And Racial Disparity, Assessing The Role Of Prosecutors And The Effects Of Booker, Sonja B. Starr, M. Marit Rehavi

Articles

This Article presents new empirical evidence concerning the effects of United States v. Booker, which loosened the formerly mandatory U.S. Sentencing Guidelines, on racial disparities in federal criminal cases. Two serious limitations pervade existing empirical literature on sentencing disparities. First, studies focus on sentencing in isolation, controlling for the “presumptive sentence” or similar measures that themselves result from discretionary charging, plea-bargaining, and fact-finding processes. Any disparities in these earlier processes are excluded from the resulting sentence-disparity estimates. Our research has shown that this exclusion matters: pre-sentencing decision-making can have substantial sentence-disparity consequences. Second, existing studies have used loose causal inference …

South Carolina's 'Evolutionary Process', Ellen D. Katz

Articles

When Congress first enacted the Voting Rights Act (VRA) in 1965, public officials in South Carolina led the charge to scrap the new statute. Their brief to the Supreme Court of the United States described the VRA as an “unjustified” and “arbitrary” affront to the “Equality of Statehood” principle, and a “usurp[ation]” of the State’s legislative and executive functions. Not surprisingly, the Warren Court was unpersuaded and opted instead to endorse broad congressional power to craft “inventive” remedies to address systematic racial discrimination and to “shift the advantage of time and inertia from the perpetrators of evil to its victims.” …