Law Commons^™

A Remedy For A Distressing Situation: Discrimination Against Children With Disabilities In Public Education, Joshua P. Sarsfield

San Diego Law Review

This Comment will focus on answering [the] question: are emotional distress damages available under the ADA? First, Part II of this Comment reviews the history of statutes addressing students with disabilities and explore the unavailable remedies when schools fail to uphold their responsibilities under the IDEA, Section 504 of the Rehabilitation Act of 1973 (Section 504), and the ADA. Next, Part III argues that emotional distress damages are available under the ADA, based on the statute’s historical origin. Then, Part IV proposes several different solutions for emotional distress damages and suggest a framework for circumstances in which a claimant may …

Ai At Work, Algorithmic Bosses, And The Ambivalence Of Automation, Antonio Aloisi, Valerio De Stefano

All Papers

This chapter revisits a foundational question (“what do bosses do?”) to explore how artificial intelligence (AI) is reshaping power dynamics in the workplace. Far from neutral tools of optimisation, algorithmic systems increasingly amplify managerial prerogatives, embedding them into automated processes that are difficult to scrutinise or contest. These developments give rise to a paradox: managers and workers are simultaneously augmented and disempowered, caught in systems that intensify control while eroding autonomy. Drawing on legal, organisational, and regulatory perspectives, we argue that existing safeguards, ranging from data protection rights to information and consultation, are ill-equipped to confront this shift. The chapter …

Caste Formalism: The Law And Politics Of Equality In India, Madhav Khosla, Pratap Bhanu Mehta

Faculty Scholarship

In modern constitutional democracies, achieving equality has long been a challenge. In recent years, theorists have focused on understanding the meaning of discrimination and determining when and how discrimination becomes problematic. One critical issue that has long animated discussions on both the general guarantee of equality and the specific goals of anti-discrimination law is the relationship between individuals and groups. If a constitutional order aims to take equality seriously, how should it address the experiences of specific groups historically subjected to discrimination? Indeed, questions of equality and discrimination often converge around the issue of affirmative action, sometimes at the expense …

Keynote Address: Community Over Constitution, Riddhi Mukhopadhyay

Seattle University Law Review

In this keynote address, Riddhi Mukhopadhyay challenges the veneration of the U.S. Constitution by highlighting its origins in exclusion and its continued failure to protect marginalized communities. Drawing from her experience in civil legal aid and gender justice, she argues that the Constitution was drafted to consolidate power among white, wealthy men and continues to reflect that legacy through racial, gender, and class-based inequities. While acknowledging the significance of constitutional amendments and landmark cases, Mukhopadhyay emphasizes that meaningful change has always come from community-led action, not top-down reform. Additionally, Mukhopadhyay calls on lawyers and legal advocates to center community, practice …

Constitutional Futurism As Pedagogy, Jeremiah Chin

Seattle University Law Review

Constitutional Law has transformed from a course on history to a discussion of current events. Cases like Students for Fair Admissions v. Harvard College, Dobbs v. Jackson Women’s Health Organization, and Loper Bright Enterprises v. Raimondo reveal that the study of constitutional law is not a static, or even linear, discussion of constitutional text and history. Law is a shifting, changing enterprise that reflects social constructions of power, authority, and identity. How do we teach, learn, and understand constitutional law that is so laden with history, riddled with theories of consistency and adherence to precedent, but ultimately subject …

An Originalist Case For Birthright Citizenship Of Unlawful Immigrants' Children: Anti-Gypsy And Anti-Chinese Restrictions As Context, Jed Handelsman Shugerman

Faculty Scholarship

The Trump administration and other opponents of birthright citizenship for the children of “unlawful immigrants” make the following originalist claim about the Fourteenth Amendment: Even if the clause meant birthright citizenship, it applies today only to “lawful immigrants,” because the category of “unlawful immigrant” or “illegal immigrant” did not exist in the 1860s, when the clause was written and ratified. Opponents also argue that the Fourteenth Amendment’s citizenship clause originally implied a “loyalty” or “allegiance” requirement.

These assertions are historically inaccurate.

To the contrary, the concept of “unlawful immigrants” existed in the 1850s-60s, and Americans ratified birthright citizenship without indicating …

Burning Questions: A Response To Fishkin, Long, Lu, Mack, And Vallier, Andrew Koppelman

The Journal of Contemporary Legal Issues

I’m indebted to Larry Alexander and Steve Smith for organizing this conference, and to Joseph Fishkin, Roderick Long, Rachel Lu, Eric Mack, and Kevin Vallier for their thoughtful responses to my book, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed. When San Diego organized this conference, I gave them the names of the people whom I was most eager to engage with, scholars I admire despite some deep disagreements. They have forced me to sharpen my own views. I am very lucky.

Replacement Opening Brief For Plaintiff-Appellant Mona Salcida Murillo, Elise Chigier, Bilal Mubarack, Daniel Siemers, Erin Hunter, Madeline H. Meth

Faculty Scholarship

When Mona Murillo tried to assert her rights to be free from sex discrimination and physical threats from prison officials at Salinas Valley State Prison (SVSP), those officials conspired to punish her and obstruct her efforts to remedy these harms. Murillo is a transgender woman who, while incarcerated at SVSP, repeatedly complained about unsafe working conditions (created and maintained because of her sex) and sex-based harassment perpetrated by Defendants Lopez, Garcia, Lepe, and Castillo. In return, Murillo was subjected to threats, fabricated disciplinary charges, and deliberate efforts to deny her access to necessary work gear by these same Defendants and …

Beyond The Ivy League: Stopping The Spread Of Antisemitism On American Campuses: Hearing Before The H. Comm. On Educ. & The Workforce, 119th Cong., May 7, 2025 (Statement Of David D. Cole), David Cole

Testimony Before Congress

In this testimony, submitted to the House Committee on Education and the Workforce for a hearing on antisemitism on campus, I sought to offer a legal framework for considering antisemitic speech on campus. The testimony cautions against equating criticism of Israel with antisemitism. But more importantly, it notes that even where speech is actually antisemitic, it is generally protected by the First Amendment (and therefore also protected by private university policies that protect free speech on campus). Title VI of the Civil Rights Act does not prohibit antisemitic speech, even virulently antisemitic speech. It prohibits discrimination on the basis of …

Menstrual Justice After Dobbs, Margaret E. Johnson

All Faculty Scholarship

This Article identifies and analyzes the category of state and private regulation that is invisible and subordinates women and other menstruators in ways that impact their privacy, liberty, and equality. Because this category of regulation is pervasive, bringing it to light is critical for considering how best to curb its harm. This Article considers potential legal strategies to counter such menstruation regulation and argues that Dobbs v. Jackson Women’s Health Organization offers some promise—but more cause for pessimism—regarding the U.S. Constitution’s power to do so. This Article therefore explains how subconstitutional law offers greater potential, while cautioning that political science …

Creating Peaceful Coexistence Through Virtue: A Theological Approach To Institutional Religious Freedom, Equality, And The First Amendment, Alex Deagon

Journal of Catholic Legal Studies

(Excerpt)

In the current era of fraught tension between religious freedom and equality, scholars from across the spectrum of perspectives have called for generosity, empathy, and compromise from both sides. Drawing from chapters in my book A Principled Framework for the Autonomy of Religious Communities: Reconciling Freedom and Discrimination, in this Article I propose to give substantive content and criteria to such exhortations by adopting a theological perspective which aims to create peaceful coexistence through cultivating and applying Christian virtues such as love, grace, forgiveness, humility, and patience. Together, these virtues recognise the inherent worth of all humans as …

Challenging Race-Based Health Care Discrimination: A New Private Right Of Action, Aaron Pinkett

Northwestern University Law Review

The Hippocratic Oath calls on doctors to “do no harm.” Yet we know from extensive public health research that clinicians repeatedly cause harm to Black patients by dismissing their medical concerns, misdiagnosing them, and undertreating their pain. These practices of differential treatment for Black patients have led to steadily increasing racial disparities in health care outcomes throughout the United States. Title VI of the Civil Rights Act of 1964 prohibits this type of disparate impact, but modern Supreme Court jurisprudence forecloses opportunities for affected parties to seek legal relief—despite the clearly established legislative intent of Title VI. However, another legal …

The Misuse Of Land Use Control Powers Must End: Suggestions For Legislative And Judicial Responses, Orlando E. Delogu

Maine Law Review

Municipal governments in almost all parts of the country are frequently inclined to exercise their police, spending, and policymaking powers in an impermissibly exclusionary manner. Their objective in many instances is simply to keep population growth and local property taxes down. In Maine these tendencies are very much in evidence. This misuse of local governmental powers is almost totally predicated on a misconception of the status of local governments and the purposes for which they exist. Local governments are not sovereign. They are not independent units of government. They are subunits of state government, creatures of the state analogous to …

A Response To Professor Delogu: Is Impermissible Exclusion A Reality In Maine?, Madge Baker

Maine Law Review

A basic premise of Professor Orlando Delogu's article, The Misuse of Land Use Control Powers Must End: Suggestions for Legislative and Judicial Responses, is that many Maine municipalities are using their land use regulatory powers in impermissibly exclusionary ways. Professor Delogu proposes that the legislature and courts of Maine should respond to correct the situation. This Commentary will attempt to illustrate that Professor Delogu has failed to document his premise or to define accurately the difference between permissible and impermissible exclusion. He is unable, therefore, to substantiate the need for state intervention in an area of law traditionally delegated to …

A Final Note On The Misuse Of Land Use Control Powers Must End: Suggestions For Legislative And Judicial Responses, Orlando E. Delogu

Maine Law Review

The Baker criticism of my article is flawed in several major respects. First, while tacitly accepting the basic premise of the article that impermissible exclusion may be achieved by local misuse of a wide variety of facially permissible land use control tools, Ms. Baker argues that merely because the article did not demonstrate a sufficient degree of misuse in Maine, the corrective measures suggested are unwarranted. But a full reading of the article makes clear that no such exhaustive indictment of Maine towns was intended. The article was not an empirical study. The article intended to point out a widening …

The Prima Facie Case Approach To Employment Discrimination, Joanne F. Cole

Maine Law Review

Employment discrimination litigation has increased dramatically during the past decade. Under Title VII of the Civil Rights Act of 1964—Congress' sweeping prohibition of discrimination in employment decisions on the basis of race, color, religion, sex, or national origin –older federal civil rights statutes and state counterparts to Title VII, courts have developed discrete, cognizable theories of discrimination. An analytical framework has also developed by which to evaluate the facts, innuendoes, and statistics that constitute the claims and defenses in a discrimination case. Within the generally accepted approach to the evidence, however, there is no consensus about the weight each element …

Property And Prejudice, Fatma E. Marouf, Vanessa Casado Pérez

Faculty Scholarship

“Alien land laws”—laws restricting noncitizens from owning real property—are back. A dozen states have enacted such laws during the past year, and over thirty states have considered such bills. These new bills are rooted in xenophobia, much like their predecessors, but they also have unique characteristics. They single out governments, citizens, and corporations of specific countries perceived to pose a threat; they impose ownership restrictions based on arbitrary distances to U.S. military bases and critical infrastructure; they inflict particularly harsh penalties; and they try to ferret out foreign control in complex corporate structures. The purported justifications are national defense, food …

On The Meaning Of Discrimination: Anti-Racism Versus Color-Blind Policy, Keith N. Hylton

Faculty Scholarship

Chief Justice Roberts of the United States Supreme Court has said that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”1 In this Article, I examine what it means to discriminate on the basis of race—or what it means to stop discriminating on the basis of race. I consider interventions designed to enhance social welfare in an economy with racially discriminatory games operating at its base. One set of interventions is color-blind, in the sense that it treats all actors alike regardless of race. The other set of interventions is …

Another Veil Of Protection For Exclusionary Zoning Ordinances: Warren V. Municipal Offices Of Gorham, Peter A. Gleichman

Maine Law Review

In Warren v. Municipal Officers, the Maine Law Court refused to alter the rules it articulated eighteen years ago for reviewing municipal zoning decisions and reaffirmed the application of a narrow standard of review of allegedly exclusionary zoning ordinances. The plaintiffs asserted that the Gorham zoning ordinance, which prohibited them from locating a single-unit modular home' on their land and restricted such units to mobile home parks, unconstitutionally discriminated against them. On appeal of the denial of a permit for the Warrens to place their modular home on their property, the Superior Court held that state statutes regulating the construction …

Navigating Harassment And Discrimination At University Of California Through Uaw 4811'S Abusive Conduct Contract Provisions, Sarah Arveson, Emily Weintraut

Journal of Collective Bargaining in the Academy

The Respectful Work Environment (RWE) provisions in the recent University of California labor agreements with graduate students and postdocs have proven useful in addressing harassment and discrimination in new and perhaps more effective ways than either previous contract provisions or university policies and procedures. The authors describe how the new RWE provisions work and provide several illustrative case studies.

“Don’T Say Gay”: Florida’S Suppression Of Lgbtq+ Identities Under The Guise Of Parental Empowerment, Alex J. Snow

Journal of Civil Rights and Economic Development

(Excerpt)

Part I of this Note first discusses the legislative and judicial history of Title VII of the Civil Rights Act of 1964 (“Title VII”) and Title IX. Primary attention is directed toward the interplay between the statutes, their similarities, and the theories pursuant to which discrimination may be established under each. Next, this Part discusses the historical debate over the scope of “sex” discrimination under Title VII and Title IX. Then, this Part examines the landmark Supreme Court case Bostock v. Clayton County’s substantial impact on the judicial interpretation of “sex” under Title VII and Title IX. Lastly, …

Racial Discrimination In Retailers' Willingness To Accept Returns: A Field Study, Meirav Furth-Matzkin

Northwestern University Law Review

Black Americans have long faced discriminatory treatment while shopping in retail establishments, including, most notably, being subjected to increased surveillance, inconsistent pricing, and inferior customer service. Little attention, however, has been paid to other post-purchase aspects of retail transactions. Specifically, do Black Americans receive the same treatment as white customers when it comes to performing sellers’ formal policies or contracts? While it is understood that salespeople are often given discretion to deviate from standard form contracts, sometimes departing from the literal terms to satisfy consumers, there has been a notable absence of systematic exploration into how salespeople exercise this authority …

Pregnancy & Elite Athletes: Hamby Alleges Discrimination In Suit Against The Wnba And Las Vegas Aces, Erica J. Zonder, Emily J. Houghton

Human Performance Department Publications

In August of 2024, Dearica Hamby sued the WNBA and Las Vegas Aces alleging Pregnancy Discrimination under both Title VII and Nevada state law. While this case might be novel for a WNBA player, issues surrounding pregnancy and elite women's sport are not. High profile cases such as Brady v. Sacred Heart in 2003, Castergine v. New York Mets in 2015, and even Allyson Felix’s contract dispute with Nike starting in 2017 (after Kara Goucher’s previous pregnancy-related contract issues) all have highlighted a need for sensible, and non-punishing, pregnancy-related policies for female athletes. The purpose of this presentation is to …

The Impact Of Artificial Intelligence On Lending: A New Form Of Redlining?, Sadie Cavazos

Texas A&M Journal of Property Law

The issue of biased lending is longstanding and has faced much legislation over the past few decades. When issues of discrimination in the housing market became center stage in the 1960s, Congress passed multiple acts to combat what became known as “redlining,” or systematically denying credit to minority groups of people. Acts such as the Fair Housing Act and the Equal Credit Opportunity Act worked to eliminate this discrimination, but that does not mean bias does not still exist. However, lending companies, due to the efforts of the above-enumerated acts, can no longer act on these biases. But with the …

Target(Ed) Advertising, Derek E. Bambauer

UF Law Faculty Publications

Targeted advertising—using data about consumers to customize the ads they receive—is deeply controversial. It also creates a regulatory quandary. Targeted ads generate more money than untargeted ones for apps and online platforms. Apps and platforms depend on this revenue stream to offer free services to users, if not for their financial viability altogether. However, targeted advertising also generates significant privacy risks and consumer resentment. Despite sustained attention to this issue, neither legal scholars nor policymakers have crafted interventions that address both concerns, and existing regulatory regimes for targeted advertising have critical gaps.

This Article makes three key contributions to the …

Institutionalized Ostracism, Danieli Evans

Articles

Belonging is a fundamental need, like food or water. Hundreds of social psychology studies find that people who are ostracized (excluded, rejected, or ignored) experience severe pain and suffering. Ostracism threatens basic needs, triggers the same neurocognitive processing system as physical pain, and impairs functioning. Furthermore, ostracized people may cope in ways that beget “deviant” labeling and further ostracism.

Belonging and ostracism are prevalent themes in social psychology research, but these constructs have received relatively little attention in law. This Article begins to explore the implications of this research for law. I make three contributions: First, I name and describe …

The Witchcraft Act And The Cost Of Inaction: Afchpr On The Persecution Of Persons With Albinism, Aly Orvis

Human Rights Brief

On February 5, 2025, the African Court on Human and Peoples’ Rights (“AfCHPR”) issued a landmark ruling in Centre for Human Rights and Others v. United Republic of Tanzania, holding that Tanzania had violated the rights of persons with albinism (“PWA”) by failing to protect them from systematic discrimination, violence, and ritual killings. The applicants, a human rights organization advocating for PWA, argued that the Tanzanian government’s inaction and weak legal framework fostered an environment of impunity for attacks against PWA, including violations of Article 2, the right to non-discrimination, of the African Charter on Human and Peoples’ Rights (“ACHPR”). …

Housing Sexual Harassment: A Department Of Justice Case Study, Rigel C. Oliveri

Faculty Publications

Sexual harassment in housing-when tenants or prospective tenants are sexually harassed by their landlords, housing providers, or other people associated with their housing-is a clear national problem. In 2019 the Department of Justice (DOJ) and the Department of Housing and Urban Development (HUD) announced an initiative to bring attention to this issue, as well as a shared commitment to increased enforcement against harassers.

This enforcement push provides an opportunity for study. In particular, there are now a significant number of complaints and other litigation documents posted to the DOJ's website that provide a convenient and robust sample for analysis. The …

Between Private Equity And Housing Discrimination: The Long-Term Crisis In St. Louis And Beyond, Harold Braswell, Alexandra Mcnamee, Charitha Bodepudi

Saint Louis University Journal of Health Law & Policy

On December 15, 2023, Northview Village, the largest skilled nursing facility in the Saint Louis region, closed abruptly, leading to the nighttime discharge of 170 residents. This emergency, while unique to that facility, is indicative of a broader crisis in both local and, to a significant extent, national nursing homes. This crisis has partly been catalyzed by the COVID-19 pandemic, but it rests on underlying factors that are unfortunately integral to the financing and operation of long-term care. This article will argue that understanding it requires situating long-term care at the intersection of two broader historical processes: the rise of …

When Is Discrimination Harmful?, Sandra F. Sperino

Faculty Publications

In Muldrow v. City of St. Louis, the Supreme Court held that Title VII does not require a plaintiff to establish material harm to prove employment discrimination. Instead, any action that is negative and affects a term, condition or privilege of employment is sufficient, if the employer took the action because of a protected trait.

At first glance, Muldrow appears to be a middling case focused on a technical aspect of discrimination law. This Article argues that Muldrow has the potential to be one of the most important modern discrimination cases. If taken to its natural conclusion it will …