Law Commons^™

Targeting Workplace Context: Title Vii As A Tool For Institutional Reform, Tristin K. Green

Fordham Law Review

No abstract provided.

Hostile Environment Actions, Title Vii, And The Ada: The Limits Of The Copy-And-Paste Function, Lisa A. Eichhorn

Faculty Publications

Two federal circuits, borrowing from Title VII jurisprudence, recently recognized a cause of action for a disability-based hostile environment under the Americans with Disabilities Act (ADA). Neither opinion, however, considered how the analysis of a disability-based hostile environment claim under the ADA might differ from that of a race- or sex-based hostile environment claim under Title VII. This Article examines the differing theories of equality underlying the two statutes and argues that, because the statutes prohibit discrimination in fundamentally different ways, courts must resist the temptation to copy and paste Title VII doctrine into ADA hostile environment opinions. This Article …

Infected Judgment: Legal Responses To Physician Bias, Mary Crossley

Villanova Law Review (1956 - )

No abstract provided.

The Dormant Commerce Clause And The Hormones Problem, Donald H. Regan

Book Chapters

It is obvious that no anti-discrimination regime can stop at forbidding explicit discrimination of the relevant sort. If only explicit discrimination is forbidden, lawmakers who want to discriminate can hide their discriminatory intentions behind facially neutral classifications that are nonetheless chosen because they differentially burden the protected class. So, we must be prepared to invalidate some facially neutral laws that have "discriminatory effect" or, as American lawyers often call it, "disparate impact." On the other hand, we cannot possibly invalidate all laws which have a disparate impact on a protected class; many perfectly reasonable laws adopted for completely innocent purposes …

Expressivism, Empathy And Equality, Rachel D. Godsil

University of Michigan Journal of Law Reform

In this article, Professor Godsil argues that the Supreme Court should not limit its application of heightened scrutiny to facially neutral government actions motivated by discriminatory intent, but rather, that the Court should apply such scrutiny when the challenged government action expresses contempt or hostility toward racial, ethnic, and gender groups or constitutes them as social inferiors or stigmatized classes. This article builds upon recent scholarship seeking to transplant this form of expressivism from the Establishment Clause to the Equal Protection context. However, this article contends that this scholarship has misconceived the test to be applied. For any expressive theory, …

Silicon Ceilings: Information Technology Equity, The Digital Divide And The Gender Gap Among Information Technology Professionals, Andrea M. Matwyshyn

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Regulating Target Marketing And Other Race-Based Advertising Practices, Ross D. Petty, Anne-Marie G. Harris, Toni Broaddus, William M. Boyd Iii

Michigan Journal of Race and Law

Recognizing the significant role that advertising plays in American life, this article examines the phenomenon of race-based targeted marketing as a contributing factor to the racial tension of our media age and evaluates the role of government regulation in preventing the dissemination of racist messages through advertising. In Part I, the article first looks at the evolution of "mass" marketing into today's standard use of targeted marketing techniques, and especially how those techniques can sometimes have racist effects. In Part II, the article discusses both measurable and esoteric harms of cultural racism. Part III examines existing laws designed to regulate …

Obligations Impaired: Justice Jonathan Jasper Wright And The Failure Of Reconstruction In South Carolina, Caleb A. Jaffe

Michigan Journal of Race and Law

Part I of this article, on the historiography of South Carolina Reconstruction, explains the difficulty scholars have had in uncovering the documentary history of Reconstruction, and outlines the development of historical interpretations of Reconstruction from the Nineteenth century Redeemer-era accounts to the revisionists of the 1970's. Part II provides brief biographies of both Justice Wright and William James Whipper. Parts III and IV track the different approaches of Whipper and Wright on two vital issues of their day: (1) whether to repudiate all private debts relating to slavery; and (2) how to construct a homestead law to protect cash-poor landowners. …

Bête Noire: How Race-Based Policing Threatens National Security, Lenese C. Herbert

Michigan Journal of Race and Law

This Article asserts that race-based policing, enabled and exacerbated by race-blind judicial review, creates an ire with a purpose that promises, especially after September 11, to make us all less safe. The illegitimate marginalization of American citizens aggravates an already alienated population and primes them for cooperation with those who seek to harm the United States. Race-based policing guts the expectation of fair-dealing, legitimacy, and justice in the criminal justice system, creating marginalized populations, especially of African Americans. Lack of judicial redress in the face of such policing irrevocably stains already beleaguered African Americans (and others so policed) as inferior …

The Act Of Hungarians Living Abroad: A Misguided Approach To Minority Protection, Christin J. Albertie

Michigan Journal of International Law

This Note analyzes the Hungarian Status Law in the context of general principles of international law. By specifically examining the Hungarian minority, this Note questions whether the implementation of the Hungarian Status Law is the most effective method of ensuring the protection and respect of the Hungarian minority in Eastern Europe. The conclusion argues that the unilateral approach of the Hungarian Status Law should be abandoned for a bilateral approach to secure rights for the Hungarian minority.

Reinforcing Representation: Enforcing The Fourteenth And Fifteenth Amendments In The Rehnquist And Waite Courts, Ellen D. Katz

Articles

A large body of academic scholarship accuses the Rehnquist Court of "undoing the Second Reconstruction," just as the Waite Court has long been blamed for facilitating the end of the First. This critique captures much of what is meant by those generally charging the Rehnquist Court with "conservative judicial activism." It posits that the present Court wants to dismantle decades' worth of federal antidiscrimination measures that are aimed at the "reconstruction" of public and private relationships at the local level. It sees the Waite Court as having similarly nullified the civil-rights initiatives enacted by Congress following the Civil War to …

Equal Protection And Disparate Impact: Round Three, Richard A. Primus

Articles

Prior inquiries into the relationship between equal protection and disparate impact have focused on whether equal protection entails a disparate impact standard and whether laws prohibiting disparate impacts can qualify as legislation enforcing equal rotection. In this Article, Professor Primus focuses on a third question: whether equal protection affirmatively forbids the use of statutory disparate impact standards. Like affirmative action, a statute restricting racially disparate impacts is a race-conscious mechanism designed to reallocate opportunities from some racial groups to others. Accordingly, the same individualist view of equal protection that has constrained the operation of affirmative action might also raise questions …

Emotional Harm In Housing Discrimination Cases: A New Look At A Lingering Problem, Victor M. Goode, Conrad A. Johnson

Fordham Urban Law Journal

This Article explores relevant social science data and examines how it affects the analysis and understanding of evidence of emotional harm. Part I provides an overview of the current state of emotional harm cases. Part II discusses the issue of bias in the process of reviewing discrimination cases from the perspective of critical race theory and recent social science data. In Part III, this Article examines the cycles of ignorance that have contributed to an under-valuation of emotional harm in housing discrimination litigation. Finally, suggestions are made about how to gather relevant psychological and medical information on the effects of …

Network Neutrality, Broadband Discrimination, Tim Wu

Faculty Scholarship

Communications regulators over the next decade will spend increasing time on conflicts between the private interests of broadband providers and the public's interest in a competitive innovation environment centered on the Internet. As the policy questions this conflict raises are basic to communications policy, they are likely to reappear in many different forms. So far, the first major appearance has come in the "open access" (or "multiple access") debate, over the desirability of allowing vertical integration between Internet Service Providers and cable operators. Proponents of open access see it as a structural remedy to guard against an erosion of the …

The Role Of Workplace Culture Evidence In Hostile Workplace Environment Sexual Harassment Litigation: Does Title Vii Mean New Management Or Just Business As Usual?, Christopher Massaro

NYLS Law Review

No abstract provided.

A Sanist Will?, Pamela R. Champine

NYLS Law Review

No abstract provided.

Gender Bias In The Roman Catholic Church: Why Can't Women Be Priests?, Cheryl Y. Haskins

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

No abstract provided.

Book Review Of Prejudicial Appearances: The Logic Of American Antidiscrimination Law, Michael Ashley Stein

Faculty Publications

No abstract provided.

"The Implicit Association Test": A Measure Of Unconscious Racism In Legislative Decision-Making, Reshma M. Saujani

Michigan Journal of Race and Law

This Article argues that the Court will not fulfill the promise of the Equal Protection Clause unless the Court adapts its vision of antidiscrimination to account for the complex nature of discrimination. Imagine that we could measure unconscious discrimination. If so, then we could broaden the concept of purposeful discrimination to include the measurement of a legislator's reliance on unconscious racial stereotypes. Such a measuring device may already exist: The Implicit Association Test (IAT), a computer-based test developed by Yale and University of Washington psychologists. Researchers do not yet know how well the IAT can uncover racial stereotypes; however, if …

Locked In Inequality: The Persistence Of Discrimination, Daria Roithmayr

Michigan Journal of Race and Law

In this Article, the author argues that the practice of charging school fees to attend public school is an example of locked-in discrimination that persists over time, even in the absence of intentional discrimination. Exploring the lock-in model of discrimination in the unique context of South Africa, Roithmayr makes two central points. First, discriminatory practices often become locked into institutional structures because high switching costs-the costs of moving from a discriminatory practice to an inclusive one—make it too difficult for an institution to discontinue discriminating. Even when institutional actors are fully committed to eradicating racial disparity, they may be constrained …

Competitive Price Discrimination: The Exercise Of Market Power Without Anticompetitive Effects (Comment On Klein And Wiley), Jonathan Baker

Scholarly Articles in Law Reviews & Journals

A firm that discriminates in prices faces a downward sloping demand curve, and thus could potentially raise price by reducing output. For this reason, evidence of price discrimination is relevant to assessing the possibility of market power, as antitrust law has long recognized. But price discrimination can be beneficial as well as harmful, and can reasonably be termed competitive if entry is easy. Hence a demonstration that entry is easy rebuts the inference of anticompetitive effect when price discrimination is the basis for proof of market power, breaking the link between market power and anticompetitive effect. Klein and Wiley's proposal …

Federal Courts: Alexander V. Sandoval: Civil Rights Without Remedies, Benjamin Labow

Oklahoma Law Review

No abstract provided.

Economic And Social Rights In The United States: An Overview Of The Domestic Legal Framework, Jessica Schultz

Human Rights Brief

No abstract provided.

Subject Unrest, Jerome M. Culp Jr., Angela P. Harris, Francisco Valdes

Articles

No abstract provided.

Looking Ahead: The Future Of Affirmative Action, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

Fifty years after Brown v. Board of Education, race is still a serious issue in this country. Fortunately, we no longer debate whether it is legal for the government to operate segregated schools or to treat blacks as second-class citizens. We finally answered that question correctly—it is unconstitutional for the law to segregate and to treat blacks worse than whites.

Today, we face the more difficult question of ascertaining the constitutionality of “affirmative action” or “benign discrimination” programs. The Supreme Court first addressed this issue in 1978 in the landmark case Regents of the University of California v. Bakke …

Oral Argument In Meyer V. Holley (No. 01-1120), Robert G. Schwemm, Douglas G. Benedon, Malcolm L. Stewart

Law Faculty Advocacy

The matter of Meyer v. Holley, 537 U.S. 280 (2003) was argued before the United States Supreme Court on Tuesday, December 3, 2002. Professor Robert G. Schwemm argued on behalf of the Respondents. This document is a transcript of the oral argument.

Hate Speech In The Constitutional Law Of The United States, William B. Fisch

Faculty Publications

Our general reporter, Professor Pizzorusso, has given us “incitement to hatred” - primarily against a group of persons defined in terms of race, ethnicity, national origin, gender, religion, sexual orientation, and the like--as the working definition of “hate speech”, and asks to what extent such speech is constitutionally protected in the reporting countries. The United States of America are known at least in recent times for providing exceptionally broad protection for otherwise objectionable speech and expression, and hate speech is understood to be one of the areas in which they have positioned themselves further out on the speech-protective end of …

The Aftermath Of September 11, 2001: The Targeting Of Arabs And Muslims In America, Susan M. Akram

Faculty Scholarship

THE DEMONIZING OF ARABS AND Muslims in America began well before the terrible tragedy of September 11, 2001. It can be traced to deliberate mythmaking by film and media,² stereotyping as part of conscious strategy of 'experts' and polemicists on the Middle East,³ the selling of a foreign policy agenda by US government officials and groups seeking to affect that agenda,⁴ and a public susceptible to images identifying the unwelcome 'other* in its midst.⁵ Bearing the brunt of these factors are Arab and Muslim non-citizens in this country. A series of government laws and policies since …

Race, Class, And Suburbia: The Modern Black Suburb As A 'Race-Making Situation', Mary Jo Wiggins

University of Michigan Journal of Law Reform

In her Article, Professor Wiggins discusses the complex social phenomenon of "Black suburbanization, " focusing on the commercial "disinvestment" in and around predominately Black suburbs. She traces the historical relationship between Black Americans and the suburbs, and describes in detail the commercial disinvestment in two contemporary Black suburbs, Prince George's County, Maryland, and south DeKalb, Georgia. In her Article, she offers possible explanations for disinvestment, including the application of protective zoning; inefficient zoning laws and practices; prior investment decisions; demographic explanations; and independent effects .of race. Wiggins analyzes some of the resulting negative social and economic consequences, including a sense …

Killing The Messenger: The Misuse Of Disparate Impact Theory To Challenge High-Stakes Educational Tests, Jennifer C. Braceras

Vanderbilt Law Review

There are two basic theoretical models for addressing claims of discrimination: disparate treatment and disparate impact. The disparate treatment model attempts to expose and punish intentional discrimination; the disparate impact model seeks to eliminate policies that, while neutral on their face, disproportionately harm members of a protected class. Since 1991, Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment, has expressly permitted plaintiffs to challenge employment practices with a disproportionate impact on certain protected groups. By contrast, Title VI, which prohibits discrimination by federally assisted programs including most schools, does not explicitly authorize claims of …