Law Commons^™

I Could Have Been A Contender: Summary Jury Trial As A Means To Overcome Iqbal's Negative Effects Upon Pre-Litigation Communication, Negotiation And Early, Consensual Dispute Resolution, Nancy A. Welsh

Faculty Scholarship

With its recent decisions in Ashcroft v. Iqbal and Bell Atlantic v. Twombly, the Supreme Court may be intentionally or unintentionally “throwing the fight,” at least in the legal contests between many civil rights claimants and institutional defendants. The most obvious feared effect is reduction of civil rights claimants’ access to the expressive and coercive power of the courts. Less obviously, the Supreme Court may be effectively undermining institutions’ motivation to negotiate, mediate - or even communicate with and listen to - such claimants before they initiate legal action. Thus, the Supreme Court’s recent decisions have the potential to deprive …

Sexual Rights And State Governance, Katherine M. Franke

Faculty Scholarship

We sit at an interesting juncture in the evolution (in some cases, devolution) of the idea of sexual rights in international law. For at the very moment that we are experiencing a retraction in both domestic and international commitments to rights associated with sexual and reproductive health, we see sexual rights of a less-reproductive nature gaining greater uptake and acceptance. It is the moral hazard associated with perceived gains in the domain of international rights for lesbians and gay men that I want to address today. In the end, the point I want to bring home is that a particular …

Black And Brown Coalition Building During The Post-Racial Obama Era, Karla M. Mckanders

Vanderbilt Law School Faculty Publications

This essay explores how the past Civil Rights Movement and discrimination against persons of color, mainly Latinos and African Americans, can help to address current forms of discrimination in our country. In particular, since the election of the first African American President, who also has immigrant parents, many people have claimed that we have reached a “post-racial” America. In the new post-racial America, proponents claim that the pre-Civil Rights Movement racial caste system of the sixties has been eradicated. In this context, this essay seeks to explore whether there is any link between the past experiences of African Americans with …

Sustaining Tiered Personhood: Jim Crow And Anti-Immigrant Laws, Karla M. Mckanders

Vanderbilt Law School Faculty Publications

Latino immigrants are moving to areas of the country that have not seen a major influx of immigrants. As a result of this influx, citizens of these formerly homogenous communities have become increasingly critical of federal immigration law. State and local legislatures are responding by passing their own laws targeting immigrants. While many legislators and city council members state that the purpose of the anti-immigrant laws is to restrict illegal immigration where the federal government has failed to do so, opponents claim that the laws are passed to enable discrimination and exclusion of all Latinos, regardless of their immigration status. …

Front Loading And Heavy Lifting: How Pre-Dismissal Discovery Can Address The Detrimental Effect Of Iqbal On Civil Rights Cases, Suzette M. Malveaux

Publications

Although the Federal Rules of Civil Procedure are trans-substantive, they have a greater detrimental effect on certain substantive claims. In particular, the Supreme Court’s recent interpretation of Rule 8(a)(2)’s pleading requirement and Rule 12(b)(6)’s dismissal criteria - in Bell Atlantic v. Twombly and Ashcroft v. Iqbal - sets forth a plausibility pleading standard which makes it more difficult for potentially meritorious civil rights claims alleging intentional discrimination to survive dismissal. Such claims are more vulnerable to dismissal because: plaintiffs alleging intentional discrimination often plead facts consistent with both legal and illegal conduct; discriminatory intent is often difficult, if not impossible, …

Income Inequality And Poverty In Iran, Katie Susman

Human Rights & Human Welfare

Income inequality is a hindrance to the global fulfillment of human rights, as acknowledged in the Universal Declaration of Human Rights. The Middle East North Africa (MENA) region is experiencing a steady increase of economic disparity. The impact of the global economic environment and the 2008 recession has brought to the forefront the region’s economic reliance on the rest of the world. As a result, a triple “food-fuel-financial” crisis has emerged. This will undoubtedly affect the most impoverished part of the population and could potentially exacerbate the gap between the poor and the rich.

The Future Of Disparate Impact, Richard A. Primus

Articles

The Supreme Court's decision in Ricci v. DeStefano foregrounded the question of whether Title VIl's disparate impact standard conflicts with equal protection. This Article shows that there are three ways to read Ricci, one of which is likely fatal to disparate impact doctrine but the other two of which are not.

Race, Sex And Genes At Work: Uncovering The Lessons Of Norman-Bloodsaw, Elizabeth Pendo

All Faculty Scholarship

The Genetic Information Nondiscrimination Act of 2008 (“GINA”) is the first federal, uniform protection against the use of genetic information in both the workplace and health insurance. Signed into law on May 21, 2008, GINA prohibits an employer or health insurer from acquiring or using an individual’s genetic information, with some exceptions. One of the goals of GINA is to eradicate actual, or perceived, discrimination based on genetic information in the workplace and in health insurance. Although the threat of genetic discrimination is often discussed in universal terms - as something that could happen to any of us - the …

Discrimination Redefined, Ann C. Mcginley

Scholarly Works

In this Response to Professor Natasha Martin's article Pretext in Peril, Professor Ann McGinley argues that courts' retrenchment in cases interpreting Title VII of the 1964 Civil Rights Act results from a narrow definition of discrimination that focuses on conscious, intentional discrimination. Increasingly social science research demonstrates that much disparate treatment occurs as a result of unconscious biases, but the courts' reluctance to consider this social science has led, in many cases, to a literal, narrow definition of “pretext." Moreover, she posits that the recent Supreme Court case of Ricci v. DeStefano redefines discrimination in an ahistorical and acontextual …

Teaching International Law: Lessons From Clinical Education: Introductory Remarks, Richard J. Wilson

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Outsiders Inside The Beltway: Latcrit Xiv - Critical Outsider Theory And Praxis In The Policymaking Of The New American Regime, Anthony E. Varona

Scholarly Articles in Law Reviews & Journals

A substantive foreword to the symposium book for the Fourteenth Annual Latino/Latina Critical Legal Theory Scholarship Conference hosted by the American University Washington College of Law. The foreword includes information about the conference theme, its planning and execution, and includes excerpts from the presentations of a number of prominent plenary and keynote speakers, including Congresswoman Linda Sanchez (D-CA), Caroline Fredrickson (the executive director of the American Constitution Society for Law and Policy), Robert Raben (the president of the Raben Group), Jarrett Barrios (the president of the Gay and Lesbian Alliance Against Defamation), Prof. Jenny Rivera (professor of law and director …

Pregnant Man?: A Conversation, Darren Rosenblum, Noa Ben-Asher, Mary Anne Case, Elizabeth F. Emens, Berta E. Hernández-Truyol, Vivian M. Gutierrez, Lisa C. Ikemoto, Angela Onwuachi-Willig, Jacob Willig-Onwuachi, Kimberly Mutcherson, Peter Siegelman, Beth Jones

Faculty Scholarship

I'm a law professor who works on gender, sexuality, and culture in the international and comparative context. That's my head working. In "real" life, my partner, Howard, and I have been engaged in having a baby together for several years, a project that came to fruition with the birth of our daughter Melina. Of course, such a project evokes intensely complex feelings and thoughts. Beyond a simple transposition of the personal onto the political, I feel so fortunate to have engaged in myriad conversations with a variety of friends and colleagues who think much more carefully about the family and …

The Unsettling ‘Well-Settled’ Law Of Freedom Of Association, John D. Inazu

Faculty Scholarship

This article brings historical, theoretical, and doctrinal critiques to bear upon the current framework for the constitutional right of association. It argues that the Supreme Court’s categories of expressive and intimate association first announced in the 1984 decision, Roberts v. United States Jaycees, are neither well-settled nor defensible. Intimate association and expressive association are indefensible categories, but they matter deeply. They matter to the Jaycees. They matter to the Chi Iota Colony of the Alpha Epsilon Pi fraternity, a now defunct Jewish social group at the College of Staten Island that had sought to limit its membership to men. They …

Fourth Amendment Federalism And The Silencing Of The American Poor, Andrew E. Taslitz

Chicago-Kent Law Review

In Virginia v. Moore, police officers searched Moore incident to an arrest for a minor traffic infraction for which Virginia statutory law in fact prohibited arrest. The officers found cocaine on Moore's person, arresting him for that crime too. The United States Supreme Court ultimately found that the arrest for the traffic infraction and the subsequent search were valid under the federal Constitution's Fourth Amendment. Central to the Court's reasoning was its insistence that the state statute was irrelevant. Any contrary conclusion, explained the Court, would wrongly make the Fourth Amendment's meaning vary from place to place. Professor Taslitz …

Whores And Other Sex Slaves: Why The Equation Of Prostitution With Sex Trafficking In The William Wilberforce Reauthorization Act Of 2008 Promotes Gender Discrimination., Elizabeth Kaigh

The Scholar: St. Mary's Law Review on Race and Social Justice

Congress should vote to exclude the William Wilberforce Reauthorization Act from the Victims of Trafficking and Violence Protection Act (VTVPA).  The William Wilberforce Reauthorization Act concerns prostitution, whereas the VTVPA concerns human trafficking. Lawmakers dealing with sex trafficking and prostitution in the United States wrongly combine them as one unified activity. A significant difference between sex trafficking and prostitution concerns the consent of the women having sex. Nevertheless, it is unfair for states to strengthen prostitution laws on a federal level, which is what the William Wilberforce Reauthorization Act would do. The Act would effectively turn prostitution into a federal …

A Call For Blind Review: Student Edited Law Reviews And Bias, Jonathan Gingerich

Journal of Legal Education

No abstract provided.

Inequalities In Illinois Constitutional Equality, Jeffrey A. Parness, Laura Lee

Northern Illinois University Law Review

In 1970 four new equality provisions were added to the Illinois Constitution, including two explicit equal protection provisions and two explicit antidiscrimination provisions. Shortly thereafter, Elmer Gertz, the Chair of the Bill of Rights Committee for the relevant constitutional convention, declared that we in Illinois have gone beyond all other states and the federal government in eliminating discrimination. Unfortunately, a few years later Gertz lamented that while Illinois had the strongest nondiscrimination provisions of any state constitution, these provisions had only yielded unrealized expectations. Today, the 1970 equality mandates continue to be unrealized. This paper reviews the four provisions and …

Sexual Favoritism: A Cause Of Action Under A "Sex-Plus" Theory, Susan J. Best

Northern Illinois University Law Review

This Comment avers that sexual favoritism is a form of "sex-plus" discrimination. Traditionally, sexual favoritism has been argued as being a form of sexual harassment. Therefore, in order to be successful in a claim for sexual favoritism, a plaintiff must prove sexual harassment. The courts' treatment of sexual favoritism as sexual harassment is problematic for two reasons. First, placing the burden of proof needed for sexual harassment--i.e., proof that the defendant has created a hostile work environment--on plaintiffs injured by sexual favoritism is excessively high. Secondly, because there is no claim under the theory of sexual harassment for instances of …

Employment Law - Antidiscrimination - Unpaid And Unprotected: Protecting Our Nation's Volunteers Through Title Vii, Tara Kpere Daibo

University of Arkansas at Little Rock Law Review

No abstract provided.

Performing Discretion Or Performing Discrimination: An Analysis Of Race And Ritual In Batson Decisions In Capital Jury Selection, Melynda J. Price

Law Faculty Scholarly Articles

Research shows the mere presence of Blacks on capital juries--on the rare occasions they are seated--can mean the difference between life and death. Peremptory challenges are the primary method to remove these pivotal participants. Batson v. Kentucky developed hearings as an immediate remedy for the unconstitutional removal of jurors through racially motivated peremptory challenges. These proceedings have become rituals that sanction continued bias in the jury selection process and ultimately affect the outcome of capital trials. This Article deconstructs the role of the Batson ritual in legitimating the removal of African American jurors. These perfunctory hearings fail to meaningfully interrogate …

Personnel Is Policy: Schools, Student Groups, And The Right To Discriminate, George B. Davis

Washington and Lee Law Review

No abstract provided.

An Introduction To The Protocol To The African Charter On Human And Peoples' Rights On The Rights Of Women In Africa, Frans Viljoen

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Stereotyping Women In The Health Sector: Lessons From Cedaw, Simone Cusack, Rebecca J. Cook

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Misguided Relief: Unsimplifying The Standard Deduction, Alan L. Feld

Faculty Scholarship

The push to use federal money for benevolent purposes occasionally produces more cost than benefit, particularly when the outlay comes in the form of taxes forgiven. The Housing Assistance Tax Act of 2008 added a supplement to the basic standard deduction. A nonitemizing taxpayer may claim a deduction for real property taxes paid, up to $500, $1,000 in the case of a joint return. Initially, the change applied only to 2008, but subsequent legislation extended its life through 2009, and pending legislation would make it a permanent part of the Code. Although well intentioned, the real property tax provision makes …

Bringing Sexual Orientation And Gender Identity Into The Tax Classroom, Anthony C. Infanti

Journal of Legal Education

No abstract provided.

Religious Law Schools: Tension Between Conscience And Academic Freedom, Kent Greenawalt

Journal of Legal Education

No abstract provided.

The Added Value And Prerogatives Of Law Schools With A Faith Mission, Bradley J.B. Toben

Journal of Legal Education

No abstract provided.

The Substantive Principle Of Equal Treatment, Patrick S. Shin

Suffolk University Law School Faculty Works

This paper attempts to identify a principle of equal treatment that gives specific structure to our widely shared judgments about the circumstances in which we have moral reason to object to the differential adverse treatment of others. I formulate what I call a “substantive” principle of equal treatment (to be distinguished from principles of formal equality) that describes a moral constraint on the reasons we can have for picking out individuals for differentially adverse action. I argue that this constraint is violated when an action, in view of its rationale, expresses lesser respect for the moral status of an individual …

Trustworthiness As A Limitation On Network Neutrality, Aaron J. Burstein, Fred B. Schneider

Federal Communications Law Journal

The policy debate over how to govern access to broadband networks has largely ignored the objective of network trustworthiness-a set of properties (including security, survivability, and safety) that guarantee expected behavior. Instead, the terms of the network access debate have focused on whether imposing a nondiscrimination or "network neutrality" obligation on network providers is justified by the condition of competition among last-mile providers. Rules proposed by scholars and policymakers would allow network providers to deviate from network neutrality to protect network trustworthiness, but none of these proposals has explored the implications of such exceptions for either neutrality or trustworthiness.

This …

Discriminatory Retaliation: Title Vii Protection For The Cooperating Employee, Megan E. Mowrey

Pace Law Review

No abstract provided.