Law Commons^™

Beyond The Business Case: Moving From Transactional To Transformational Inclusion, Jamillah Bowman Williams

Georgetown Law Faculty Publications and Other Works

While workplace diversity is a hot topic, the extent to which the diversity management movement has effectively improved intergroup relations and reduced racial inequality remains unclear. Despite large investments in diversity and inclusion training and other company wide initiatives, historically excluded groups remain vastly underrepresented in leadership and the most lucrative careers, such as finance, law, and technology. This calls the efficacy of diversity, equity, and inclusion (DEI) efforts into question, particularly with respect to reducing racial inequality in the workplace.

This Article explains why it is time for organizational leaders to move beyond the transactional case for diversity and …

Promoting Change In The Face Of Retrenchment, Marcia Mccormick

FIU Law Review

This article delves into the challenges of teaching antidiscrimination law and the complexities students face in reconciling legal doctrines with their expectations of justice. It explores the persistent inequalities embedded in wage gaps, labor market segregation, and more, highlighting the transformative potential of addressing stereotypes. Professor Kerry Stone's book, "Panes of the Glass Ceiling," is lauded for unveiling deeply ingrained cultural assumptions, offering tools to challenge them. The article reflects on hidden assumptions exposed in Stone's work and discusses the ideological pushback against education aimed at revealing and dismantling stereotypes. It concludes with a call for a nuanced understanding of …

Forging A Future Title Ix, Naomi M. Mann

Faculty Scholarship

Title IX is in transition. Fifty years after its passage, Title IX is at the center of multiple culture wars, notably those around the definition of sex¹ and the contours of due process² in schools. Since 2011, the federal Department of Education (“ED”) has issued multiple guidance documents, containing widely divergent obligations for schools.³ In the last decade, the meaning of Title IX has been highly contested, appearing sometimes more dependent on the administration in power than on the statute’s text and purpose.⁴ This pendulum swing has diverted attention away from Title IX’s core goal: equal …

A Path Forward To #Niunamenos Based On An Intersectional Analysis Of Laws Criminalizing Femicide/Feminicide In Latin America, Melissa Padilla

San Diego International Law Journal

Since 2007, eighteen Latin American countries have enacted laws that criminalize femicide/‌feminicide in an effort to address gender-based murders in the region and to uphold their obligations under international human rights law. However, the COVID-19 pandemic and its systemic lingering effects exacerbated the existent dangerous levels of gender-based violence in the region, resulting in an increase in gender-based murders. To address these murders, between 2020 and 2021, a quarter of the eighteen Latin American countries that criminalized femicide/‌feminicide have implemented or are in the process of implementing reforms to their laws criminalizing femicide/‌feminicide. Given this new trend to address the …

Bostock And Textualism: A Response To Berman And Krishnamurthi, Andrew Koppelman

Notre Dame Law Review Reflection

The Bostock Court adopted an argument I’ve been making for years, and that I pressed upon it in an amicus brief: that discrimina-tion against gay people is necessarily sex discrimination. I defended Justice Neil Gorsuch’s opinion for the Court in my article, Bostock, LGBT Discrimination, and the Subtractive Moves, which catalogues various common but unsuccessful strategies for evading the force of the sex discrimination argument. That piece, originally drafted before the Supreme Court’s decision as a critique of arguments by Court of Appeals judges, was easy to revise and update. The dissenters, Justices Samuel Alito (joined by Clarence …

Big Data Affirmative Action, Peter N. Salib

Northwestern University Law Review

As a vast and ever-growing body of social-scientific research shows, discrimination remains pervasive in the United States. In education, work, consumer markets, healthcare, criminal justice, and more, Black people fare worse than whites, women worse than men, and so on. Moreover, the evidence now convincingly demonstrates that this inequality is driven by discrimination. Yet solutions are scarce. The best empirical studies find that popular interventions—like diversity seminars and antibias trainings—have little or no effect. And more muscular solutions—like hiring quotas or school busing—are now regularly struck down as illegal. Indeed, in the last thirty years, the Supreme Court has invalidated …

The Promise And The Peril: Artificial Intelligence And Employment Discrimination, Keith E. Sonderling, Bradford J. Kelley, Lance Casimir

University of Miami Law Review

Artificial intelligence (“AI”) is undeniably transforming the workplace, though many implications remain unknown. Employers increasingly rely on algorithms to determine who gets interviewed, hired, promoted, developed, disciplined, or fired. If appropriately designed and applied, AI promises to help workers find their most rewarding jobs, match companies with their most valuable and productive employees, and advance diversity, inclusion, and accessibility in the work- place. Notwithstanding its positive impacts, however, AI poses new perils for employment discrimination, especially when designed or used improperly.

This Article examines the interaction between AI and federal employment antidiscrimination law. This Article explores the legal landscape including …

The Higher-Cost Problem: How The Case Act Addresses The History Of Inequity In The American Copyright Regime, Michael Newell

University of Miami Law Review

The legislative history of copyright law in the United States and its judicial interpretation resulted in a complex web of statutes and doctrine theoretically meant to further the constitutional goal of “promot[ing] the Progress of Science and the useful Arts.” But because of its complexity, enforcing rights against infringers in federal court became prohibitively expensive for most. The American copyright regime simultaneously allowed the music industry to unfairly profit from the creativity of the under-resourced—particularly, musicians of color.

This Note discusses the disparate impact of the American copyright regime. Then, the Note discusses the Copyright Alternatives in the Small-Claims Enforcement …

Before Yesterday We Could Fly: Reimagining Law For The Afro-Future, Norinda Brown Hayat, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Justice For All: Demanding Accessibility For Underrepresented Communities In The Law: A Roger Williams University Law Review, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Using Artificial Intelligence In The Law Review Submissions Process, Brenda M. Simon

Faculty Scholarship

The use of artificial intelligence to help editors examine law review submissions may provide a way to improve an overburdened system. This Article is the first to explore the promise and pitfalls of using artificial intelligence in the law review submissions process. Technology-assisted review of submissions offers many possible benefits. It can simplify preemption checks, prevent plagiarism, detect failure to comply with formatting requirements, and identify missing citations. These efficiencies may allow editors to address serious flaws in the current selection process, including the use of heuristics that may result in discriminatory outcomes and dependence on lower-ranked journals to conduct …

Reclaiming Establishment: Identity And The ‘Religious Equality Problem’, Faraz Sanei

Law Faculty Scholarship

Since at least 2017, the Court has implicitly recognized a right of equal access to generally available public benefits based on the beneficiary's religious identity or status. In Carson v. Makin (2022), the Court went a step further and, for the first time, concluded that the “status-use distinction lacks a meaningful application” in both theory and practice. It then held that restrictions on the use of public benefits for sacral purposes amount to religious discrimination because they impose substantial burdens on free exercise rights. Carson's holding, and the rationale underlying it, contravene settled case law and effectively gut the Establishment …

The Role Of Law And Myth In Creating A Workplace That 'Looks Like America', Susan Bisom-Rapp

Faculty Scholarship

Equal employment opportunity (EEO) law has played a poor role in incentivizing effective diversity, equity, and inclusion (DEI) and harassment prevention programming. In litigation and investigation, too many judges and regulators credit employers for maintaining policies and programs rather than requiring employers to embrace efforts that work. Likewise, many employers and consultants fail to consider the organizational effects created by DEI and harassment programming. Willful ignorance prevents the admission that some policies and programming harm those most in need of protection.

This approach has resulted in two problems. One is a doctrinal dilemma because important presumptions embedded in antidiscrimination law …

Doing The Right Thing, The Right Way, The First Time: Decision-Making In Public And Private Arenas Regarding The Use Of Service Animals, Maureen E. Lally-Green, Annemarie Harr Eagle Esq., Bridget M. Green

University of Arkansas at Little Rock Law Review

No abstract provided.

White Picket Fences & Suburban Gatekeeping: How Long Island’S Land Use Laws Cement Its Status As One Of The Most Segregated Places In America, Jessica Mingrino

St. John's Law Review

(Excerpt)

The average wealth of Black families is one-seventh that of white families in the United States today. Homeownership—the primary avenue through which Americans accumulate personal and generational wealth—is the leading driver of the wealth disparity between white and Black American families, known as the “racial wealth gap.” The systematic and intentional exclusion of Black people from developing communities during the twentieth century largely excluded people of color from the housing boom and denied them the opportunity afforded to white people to multiply their assets. Contrary to widespread belief, however, legislation-backed oppression of Black Americans did not end in the …

Debt Governance, Wealth Management, And The Uneven Burdens Of Child Support, Allison Tait

Northwestern University Law Review

Child support is a ubiquitous kind of debt, common to all income and wealth levels, with data showing that approximately 30% of the U.S. adult population has either been subject to paying child support or has received it. Across this field of child support debt, however, unpaid obligations look different for everyone, and in particular the experiences around child support debt diverge radically for low-income populations and high-wealth ones. On the low-income end of the spectrum, child support debt is a sophisticated and adaptive governance technology that disciplines and penalizes those living in or near poverty. Being in child support …

National Pork Producers Council V. Ross: Brief Of Professors Barry Friedman And Daniel T. Deacon As Amici Curiae In Support Of Respondents, Daniel T. Deacon

Appellate Briefs

Barry Friedman is the Jacob D. Fuchsberg Professor of Law and Affiliated Professor of Politics at New York University Law School and is one of the country’s leading authorities on constitutional law and the federal courts. Daniel T. Deacon is a Lecturer at the University of Michigan Law School and has published extensively on topics that include constitutional and administrative law. Professors Friedman and Deacon are the authors of A Course Unbroken: The Constitutional Legitimacy of the Dormant Commerce Clause, 97 Va. L. Rev. 1877 (2011), a leading article examining the origins of the Commerce Clause and defending the validity …

Is It Hot In Here Or Is It Just Me? A Call For Menopause Equity In The Workplace, Leslie Mullins

University of the District of Columbia Law Review

In a society where many topics related to female reproduction are considered taboo, menopause is especially stigmatized because of its intersection with age and a perception that a woman’s value ends with her reproductive ability.1 As described by Gail Sheehy (“Sheehy”) in The Silent Passage, menopause is “one of the most misunderstood passages in a woman's life.”2 Menopause causes shame and stigma because of its association with middle age in a culture obsessed with youth.3 The failure of courts to extend available protections to claims related to menopause denies millions of working persons protections from unlawful discrimination under the Americans …

The Missing Piece Of The Puzzle: The Intersection Of Race And Special Education, Tsega Zewdneh Shiferaw

University of the District of Columbia Law Review

The privileges allotted to Americans cannot be compared to any other country’s citizens. Americans have the liberty of saying what they want, thinking what they want, and acting freely in public. Nebiyat Shiferaw (“Nebiyat”) is a thirty-year-old African American man who is unable to speak and live independently because he has autism, also known as autism spectrum disorder (“ASD”). Nebiyat does not experience the same liberties as most Americans; he has gone through special education programs and has overcome discrimination, not because of the Individuals with Disabilities Education Act (“IDEA”), but because of his parents advocating for him. As a …

Isms In The Twenty-First Century: The Evolution Of Systemic Discrimination, Taylor Neas

University Honors Program

Long have the concepts of racism, sexism, and classism existed in human history. However, their definitions and practice have evolved over time. Modernly, they are all considered forms of discrimination. Recently, these topics have been a source of discussion among many disciplines. This thesis serves to add to existing literature outlining the history of these forms of discrimination and how they presented themselves in early American society. All three forms manifested in different forms in early civilizations before being adopted in colonial America. This work also serves to outline how these forms of discrimination exist in present day America. While …

A Stitch In Time Saves Nine: How The State Of Ohio Can Save Money And Distress Through Legal Training For Pre-Service Teachers, Karin Mika, Christine Mika

Law Faculty Articles and Essays

For simplicity, this Note will focus on the educational requirements for high school teachers rather than elementary or middle school teachers. Here, the requirements include core content instruction, literacy instruction, and a 12-week student teaching experience. Additionally, ODHE issues a vague requirement of preparation in six different Ohio school-related standards. Only one of those standards, the Ohio Standards for the Teaching Profession, even mentions correctly applying the law.

There is clearly a need for some form of legal preparation for teachers in Ohio that must take place before an individual becomes a teacher. Not only is there an ethical obligation …

Ministerial Employees And Discrimination Without Remedy, Charlotte Garden

Indiana Law Journal

The Supreme Court first addressed the ministerial exemption in a 2012 case, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. The ministerial exemption is a defense that religious employers can invoke in discrimination cases brought by employees who qualify as “ministerial,” and it is rooted in the First Amendment principle that government cannot interfere in a church’s choice of minister. However, Hosanna-Tabor did not set out a test to determine which employees are covered by this exemption, and the decision was susceptible to a reading that the category was narrow. In 2020, the Court again took up the ministerial exemption, …

(G)Local Intersectionality, Martha F. Davis

Washington and Lee Law Review

Intersectionality theory has been slow to take root as a legal norm at the national level, even as scholars embrace it as a potent analytical tool. Yet, in recent years, intersectionality has entered law and policy practices through an unexpected portal: namely, local governments’ adoption of international norms. A growing number of local governments around the world explicitly incorporate intersectionality into their law and practice as part of implementing international antidiscrimination norms from human rights instruments like the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Elimination of All Forms of …

Murdering Crows: Pauli Murray, Intersectionality, And Black Freedom, Lisa A. Crooms-Robinson

Washington and Lee Law Review

What is intersectionality’s origin story and how did it make its way into human rights? Beginning in the 1940s, Pauli Murray (1910–1985) used Jane Crow to capture two distinct relationships between race and sex discrimination. One Jane used the race-sex analogy to show that race and sex were both unconstitutionally arbitrary. The other Jane captured Black women’s experiences and rights deprivations at the intersection of race and sex. Both Janes were based on Murray’s fundamental belief that the struggles against race and sex discrimination were different phases of the fight for human rights.

In 1966, Murray was part of the …

Employment Law—Antidiscrimination—Falling Into The Legal Void: How Arkansas Can Protect Unpaid Interns From Discrimination And Harassment, Christina Redmann

University of Arkansas at Little Rock Law Review

No abstract provided.

Civil Rights Catch-22s, Jonathan P. Feingold

Cardozo Law Review

Civil rights advocates have long viewed litigation as a vital path to social change. In many ways, it is. But in key respects that remain underexplored in legal scholarship, even successful litigation can hinder remedial projects. This perverse effect stems from civil rights doctrines that incentivize litigants (or their attorneys) to foreground community plight—such as academic underachievement or overincarceration. Rational plaintiffs, responding in kind, deploy legal narratives that tend to track racial stereotypes and regressive theories of inequality. When this occurs, even successful lawsuits can harden the structural and behavioral forces that produce and perpetuate racial inequality.

I refer to …

The Coming Causation Revolution In Employment Discrimination Litigation, D’Andra Millsap Shu

Cardozo Law Review

For more than a decade, employment discrimination causation law has been a confusing, often overly restrictive quagmire that has contributed substantially to the paltry success rate of plaintiffs in employment discrimination cases. Most of these cases are dismissed pretrial, all too often based on a failure of causation. A key reason traces back to loose and misleading language—centered on a single word—in a 2009 Supreme Court opinion involving the but-for causation standard that applies in most discrimination cases. The Court said that the discriminatory motive must be “the” but-for cause of the employer’s action when it should have said “a” …

Discrimination On Wheels: How Big Data Uses License Plate Surveillance To Put The Brakes On Disadvantaged Drivers, Nicole K. Mcconlogue

Law Faculty Scholarship

As scholarly discourse increasingly raises concerns about the negative societal effects of “fintech,” “dirty data,” and “technochauvinism,” a growing technology provides an instructive illustration of all three of these problems. Surveillance software companies are using automated license plate reader (ALPR) technology to develop predictive analytical tools. In turn, software companies market those tools to auto financers and insurers as a risk assessment input to evaluate consumers seeking to buy a car. Proponents of this technology might argue that more information about consumer travel habits will result in more accurate and individualized risk predictions, potentially increasing vehicle ownership among marginalized groups. …

Systematic Racism, Abortion And Bias In Medicine: All Threads Woven In The Cloth Of Racial Disparity For Mothers And Infants, Gabrielle Ploplis

Journal of Law and Health

This note argues that decisions like that of NAACP v. Wilmington Medical Center, Inc. have been one of many contributing factors in the disparity in mortality rates of both black and American Indian/Alaska Native newborns in comparison to white newborns across the country. Part II examines the current state of the law regarding issues of discrimination, accessibility of health care, and relocation and closure of medical centers that has disproportionately affect minorities in the U.S. Part III discusses the statistics of white, black, and American Indian/Alaska Native newborn and maternal mortality rates in the United States. Part IV addresses the …

Where The Rainbow Ends: The Hidden Humanitarian Crisis For Members Of The Lgbtqia+ Community In International Business, John R. Krendel

Senior Honors Projects, 2020-current

Before pursuing an international career, members of the LGBTQIA+ community must be aware of the hardship that may be exacerbated by living and working abroad. This study addresses the trends in laws, including employment and anti-discrimination laws, that provide and restrict certain rights of members of the LGBTQIA+ community in eight countries. These nations, both progressive and discriminatory, include the United States, England, Switzerland, Germany, Taiwan, China, the Philippines and Kazakhstan. Eight LGBTQIA+ business professionals spoke on their experiences living and working in each of these countries and provided advice to members of the community wishing to pursue an international …