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Full-Text Articles in Law
Seeking Economic Justice In The Face Of Enduring Racism, Deseriee A. Kennedy
Seeking Economic Justice In The Face Of Enduring Racism, Deseriee A. Kennedy
Scholarly Works
No abstract provided.
A Revolution At War With Itself? Preserving Employment Preferences From Weber To Ricci, Sophia Z. Lee
A Revolution At War With Itself? Preserving Employment Preferences From Weber To Ricci, Sophia Z. Lee
All Faculty Scholarship
Two aspects of the constitutional transformation Bruce Ackerman describes in The Civil Rights Revolution were on a collision course, one whose trajectory has implications for Ackerman’s account and for his broader theory of constitutional change. Ackerman makes a compelling case that what he terms “reverse state action” (the targeting of private actors) and “government by numbers” (the use of statistics to identify and remedy violations of civil rights laws) defined the civil rights revolution. Together they “requir[ed] private actors, as well as state officials, to . . . realize the principles of constitutional equality” and allowed the federal government to …
Formalism And Employer Liability Under Title Vii, Samuel R. Bagenstos
Formalism And Employer Liability Under Title Vii, Samuel R. Bagenstos
Articles
Most lawyers, law professors, and judges are familiar with two standard critiques of formalism in legal reasoning. One is the unacknowledged-policymaking critique. This critique argues that formalist reasoning purports to be above judicial policymaking but instead simply hides the policy decisions offstage. The other is the false-determinacy critique. This critique observes that formalist reasoning purports to reduce decision costs in the run of cases by sorting cases into defined categories, but argues that instead of going away the difficult questions of application migrate to the choice of the category in which to place a particular case.
Tortifying Retaliation: Protected Activity At The Intersection Of Fault, Duty, And Causation, Deborah L. Brake
Tortifying Retaliation: Protected Activity At The Intersection Of Fault, Duty, And Causation, Deborah L. Brake
Articles
In University of Texas Southwestern Medical Center v. Nassar, the Supreme Court broke its string of plaintiff victories in the eight retaliation cases it has decided since 2005. In its 2013 decision in that case, the Court rejected a mixed motive framework for Title VII’s retaliation provision, a part of the statute that Congress did not amend in 1991 when it adopted the motivating factor standard for proving discrimination under Title VII. For help construing what “because of” means in the retaliation claim, the Court looked to tort law, which it read as requiring plaintiffs to prove but-for causation …
Managerial Judging And Substantive Law, Tobias Barrington Wolff
Managerial Judging And Substantive Law, Tobias Barrington Wolff
All Faculty Scholarship
The figure of the proactive jurist, involved in case management from the outset of the litigation and attentive throughout the proceedings to the impact of her decisions on settlement dynamics -- a managerial judge -- has displaced the passive umpire as the dominant paradigm in the federal district courts. Thus far, discussions of managerial judging have focused primarily upon values endogenous to the practice of judging. Procedural scholarship has paid little attention to the impact of the underlying substantive law on the parameters and conduct of complex proceedings.
In this Article, I examine the interface between substantive law and managerial …
Class Actions At The Crossroads: An Answer To Wal-Mart V. Dukes, Suzette M. Malveaux
Class Actions At The Crossroads: An Answer To Wal-Mart V. Dukes, Suzette M. Malveaux
Publications
The Supreme Court has recently decided to hear argument in the largest private-employer civil rights case in American history, Dukes v. Wal-Mart Stores, Inc. This historic case involves up to 1.5 million women suing Wal-Mart, one of the largest companies in the world, for alleged gender discrimination in pay and promotions, in violation of Title VII of the Civil Rights Act of 1964. Like many employees who challenge companywide employment discrimination, the plaintiffs in Dukes brought their case as a class action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure and sought injunctive and declaratory relief, …
What Best To Protect Transsexuals From Discrimination: Using Current Legislation Or Adopting A New Judicial Framework, S. Elizabeth Malloy
What Best To Protect Transsexuals From Discrimination: Using Current Legislation Or Adopting A New Judicial Framework, S. Elizabeth Malloy
Faculty Articles and Other Publications
This article specifically examines the issues and controversies that transsexual individuals have encountered as a result of their lack of protection under anti-discrimination laws, particularly the Americans with Disabilities Act (ADA) and Title VII. Part I is an overview of our society's binary sex/gender system and how this system serves to exclude and disenfranchise transsexuals. Part II examines the relationship between disability law and transsexuals, both explaining why they were excluded from the ADA and how state disability laws have provided more protection. Part III discusses how transsexuals have fared under a Title VII sex discrimination approach. This section also …
The Missing Minority Judges, Pat K. Chew, Luke T. Kelley-Chew
The Missing Minority Judges, Pat K. Chew, Luke T. Kelley-Chew
Articles
This essay documents the lack of Asian-American judges and considers the consequences.
Regulatory Adjudication, Marcia L. Mccormick
Regulatory Adjudication, Marcia L. Mccormick
All Faculty Scholarship
Calls for increased regulation are flying fast and furious these days. We use regulation in the United States to prevent harm that various kinds of activities might cause and also to create positive external benefits that those activities could yield, but might not without incentives. Most regulatory programs in the United States provide a blend of measures designed to create these positive external benefits, promote good practices in the industry, prevent harms, and provide those harmed with remedies. At a time in which we contemplate new ways to regulate to deal with the crises of the day and prevent the …
Ricci Glitch? The Unexpected Appearance Of Transferred Intent In Title Vii, Kerri Lynn Stone
Ricci Glitch? The Unexpected Appearance Of Transferred Intent In Title Vii, Kerri Lynn Stone
Faculty Publications
In the case of Ricci v. DeStefano, the Supreme Court officially opened the door to what this Article identifies as a theory of “transferred intent” jurisprudence under Title VII. The principle of transferred intent, borrowed from tort and criminal law, has never before been seen as factoring into Title VII antidiscrimination jurisprudence. In Ricci, the Supreme Court assumed that a city’s refusal to promote firefighters qualifying for promotion based on exams that appeared to disproportionately screen out members of minority groups amounted to deliberate discrimination, irrespective of their individual races or whether their individual races were actually taken into account. …
What Counts As 'Discrimination' In Ledbetter And The Implications For Sex Equality Law, Deborah L. Brake
What Counts As 'Discrimination' In Ledbetter And The Implications For Sex Equality Law, Deborah L. Brake
Articles
This article, presented at a Symposium, The Roberts Court and Equal Protection: Gender, Race and Class held at the University of South Carolina School of Law in the Spring of 2008, explores the implications of the Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber Co. for sex equality law more broadly, including equal protection. There is more interrelation between statutory and constitutional equality law as a source of discrimination protections than is generally acknowledged. Although the Ledbetter decision purports to be a narrow procedural ruling regarding the statute of limitations for Title VII pay discrimination claims, at its …
Fighting To Keep Employment Discrimination Class Actions Alive: How Allison V. Citgo's Predomination Requirement Threatens To Undermine Title Vii Enforcement, Suzette M. Malveaux
Fighting To Keep Employment Discrimination Class Actions Alive: How Allison V. Citgo's Predomination Requirement Threatens To Undermine Title Vii Enforcement, Suzette M. Malveaux
Publications
The Civil Rights Act of 1991, which provides compensatory and punitive damages and attendant jury trials in cases alleging intentional discrimination, was designed to enhance enforcement and expand remedies. Its enactment, however, has triggered a schism among the circuit courts over what the proper standard is for determining whether monetary damages or injunctive relief predominates, a necessary inquiry for determining whether plaintiffs are entitled to class certification for Title VII claims under Rule 23(b)(2) of the Federal Rules of Civil Procedure. Led by the Fifth Circuit, some federal appeals courts contend that monetary relief predominates unless it is “incidental,” and …
Clarence Brown V. General Service Administration, Edward F. Sherman
Clarence Brown V. General Service Administration, Edward F. Sherman
Articles by Maurer Faculty
No abstract provided.