Civil Rights and Discrimination Commons^™

Rights To Health Care In The United States: Inherently Unstable, David Orentlicher

Scholarly Works

No abstract provided.

Trouble In Sin City: Protecting Sexy Workers' Civil Rights, Ann C. Mcginley

Scholarly Works

While Las Vegas has always been known for its libertarian attitudes toward gambling and sexually provocative shows, after a short, failed attempt during the 1990’s to characterize itself as a family destination, the City has turned up the heat. Las Vegas, which relies increasingly on selling sex appeal to promote its value to the public, has become the number one adult entertainment destination in the United States. There is, however, trouble in paradise. A number of the casino-based clubs (both day and night) have been sued; others have closed due to illegal prostitution; some have paid large fines to the …

Further Support For Mental Health Parity Law And Mandatory Mental Health And Substance Use Disorder Benefits, Stacey A. Tovino

Scholarly Works

In this Article, I provide additional support for my recent proposal* to extend federal mental health parity law and mandatory mental health and substance use disorder benefits to all public healthcare program beneficiaries and private health plan members. I begin by examining health-related doctrine outside the context of mental health insurance law, including disability discrimination law, civil rights and human rights law, health information confidentiality law, healthcare reform law, and child and adult health and welfare law, and I find that not one of these laws provides inferior legal protections or benefits for individuals with mental illness. I also analyze …

Latino Voters 2012 And Beyond: Will The Fastest Growing And Evolving Electoral Group Shape U.S. Politics?, Sylvia R. Lazos

Scholarly Works

The author reviews two recent books, Marisa A. Abrajano’s Campaigning to the New American Electorate: Advertising to Latino Voters (2010) and Marisa A. Abrajano’s and R. Michael Alvarez’s New Faces New Voices: The Hispanic Electorate in America (2010). These books are part of a growing literature that scientifically studies the evolving Latino electorate, and attempts to answer difficult questions about this ethnic group’s electorate cohesiveness and how candidates might be able to influence the Latino electorate. A careful read of Abrajano’s recent books brings additional understanding to Latino voter behavior, and by implication, how this key group will influence the …

Dean's Column: Kay Kindred, A Nevada "First", Rachel J. Anderson

Scholarly Works

This article documents selected aspects of the life of Professor Kay Kindred, the first female African-American law professor at the William S. Boyd School of Law at the University of Nevada, Las Vegas.

Children, Parents & The State: The Construction Of A New Family Ideology, Deseriee A. Kennedy

Scholarly Works

More than twenty-five states allow courts to consider parental incarceration or conviction of a crime in determining whether to terminate parental rights. This problem is of increasing significance as a result of dramatic growth in incarceration rates, particularly among women who were often the primary and sole caretaker of their children before their imprisonment. Social scientists have recognized that the reality for parents in many communities is one of widespread and repeated incarceration, which has a devastating effect on families and communities. The problem is magnified by a failed drug policy and the Adoption and Safe Families Act, which, in …

Smith And Women's Equality, Leslie C. Griffin

Scholarly Works

No abstract provided.

Ricci V. Destefano: Diluting Disparate Impact And Redefining Disparate Treatment, Ann C. Mcginley

Scholarly Works

Title VII of the Civil Rights Act of 1964 permits plaintiffs to bring discrimination cases under two different theories: disparate treatment, which requires a showing of the employer’s discriminatory intent, and disparate impact, which holds the employer liable absent intent to discriminate if it uses neutral employment policies or practices that have a disparate impact on a protected group. Ricci v. DeStefano significantly affects the interpretation of both of these theories of discrimination.

Ricci adopts a restrictive interpretation of the disparate impact theory that is inconsistent with Congressional intent and purpose, and signals that intentional discrimination is more important than …

Religion And Race: The Ministerial Exception Reexamined, Ian C. Bartrum

Scholarly Works

This essay is a contribution to the Northwestern University Law Review's colloquy on the ministerial exception, convened following the Supreme Court's decision to hear arguments in Hosanna-Tabor v. EEOC.

The author takes the opportunity to consider the (sometimes) competing constitutional values of racial equality and religious freedom. The author offers historical, ethical, and doctrinal arguments for the position that race must trump religion as a constitutional value when the two come into conflict. With this in mind, the author suggests that the ministerial exception should not shield religious employers from anti discrimination suits brought on the basis of race.

Attorney’S Fees In Civil Rights Cases—October 2009 Term, Martin A. Schwartz

Scholarly Works

No abstract provided.

An Analysis Of China’S Human Rights Policies In Tibet: China’S Compliance With The Mandates Of International Law Regarding Civil And Political Rights, Richard Klein

Scholarly Works

No abstract provided.

A Tale Of Prosecutorial Indiscretion: Ramsey Clark And The Selective Non-Prosecution Of Stokely Carmichael, Lonnie T. Brown

Scholarly Works

During the height of the Vietnam War and one of the most volatile periods of the civil rights movement, then-Attorney General Ramsey Clark controversially resisted intense political pressure to prosecute Black Power originator and antiwar activist Stokely Carmichael. Taken in isolation, this decision may seem courageous and praiseworthy, but when considered against the backdrop of Clark’s contemporaneous prosecution of an all-white group of similarly situated anti-draft leaders (the so-called Boston Five), his exercise of prosecutorial discretion becomes suspect. Specifically, the Boston Five were prosecuted in 1968 for conspiracy to aid and abet draft evasion, a charge for which the evidence …

Introduction: Dukes V. Wal-Mart Stores, Inc., Elizabeth Chamblee Burch

Scholarly Works

This short introduction to Dukes v. Wal-Mart Stores, Inc. aims to explain the case and to set the table for what promises to be thought-provoking roundtable discussion hosted by Vanderbilt Law Review En Banc. Accordingly, what follows is a concise overview of the legal background and current debate over the two procedural issues that the Ninth Circuit explored in detail – how to evaluate Rule 23(a)(2)’s commonality when common questions heavily implicate the case’s merits, and when a Rule 23(b)(2) class can include relief apart from injunctive or declaratory relief without endangering due process.

Erasing Boundaries: Masculinities, Sexual Minorities, And Employment Discrimination, Ann C. Mcginley

Scholarly Works

This Article analyzes the application of employment discrimination law to sexual minorities--lesbians, gays, bisexuals, transgender and intersex individuals. It evaluates Title VII and state anti-discrimination laws' treatment of these individuals, and is the first article to use masculinities research, theoretical and empirical, to explain employment discrimination against sexual minorities. While the Article concludes that new legislation would further the interests of sexual minorities, it posits that it is neither necessary nor sufficient to solving the employment discrimination problems of sexual minorities. A major problem lies in the courts' binary view of sex and gender, a view that identifies men and …

The Tail Still Wags The Dog: The Pervasive And Inappropriate Influence By The Psychiatric Profession On The Civil Commitment Process, William Brooks

Scholarly Works

The imposition of substantive and procedural protections in the civil commitment process thirty years ago created the expectation that courts would scrutinize commitment decisions by psychiatrists more closely and serve as a check on psychiatric decision-making. This has not happened.

Today, psychiatrists continue to play an overly influential role in the civil commitment process. Psychiatrists make initial commitment decisions that often lack accuracy because they rely on clinical judgment only. Furthermore, many psychiatrists do not want legal standards interfering with treatment decisions, and the nebulous nature of the concept of dangerousness enables doctors to make pretextual assessments of danger. At …

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 …

In Search Of The Reasonable Woman: Anti-Discrimination Rhetoric In The United States, Francis J. Mootz Iii

Scholarly Works

This article emerged from my participation in a Symposium addressing global perspectives on the topic, "Anti-Discrimination Discourse and Practices," sponsored by The Jean Monnet Chair of European Law at Cagliari University, Sardinia. The article examines the rhetorical development of the "reasonable woman" standard of hostile work environment sexual harassment under Title VII. I argue that the rhetorical framing of the standard has unnecessarily limited its impact, perhaps to the point of undermining its potential to radically revise our understanding of gender discrimination. I suggest how the rhetorical power of the standard might be recovered.

Ricci V. Destefano: A Masculinities Theory Analysis, Ann C. Mcginley

Scholarly Works

This Article applies masculinity theory to explore the aspects Ricci v. Destefano and its political reverberations. Empirical evidence showed that virtually all written tests have a disparate impact on minorities, that a neighboring city had reached less discriminatory results using a different weighting system, and that other fire departments used assessment centers to judge firefighters' qualifications for promotions. While the black male and all female firefighters were made invisible by the case and the testimony, the fact that Ricci's and Vargas' testimony lionized a particularly traditional form of heterosexual masculinity was also invisible. While the command presence required of a …

Reimagining Human Rights Law: Toward Global Regulation Of Transnational Corporations, Rachel J. Anderson

Scholarly Works

This article takes a new look at a perennial question of human rights: how to prevent corporate-related human rights abuses and provide remedies for victims. It argues that transnational corporations require specialized and targeted regulations and laws, and that the conflation of human rights law and international human rights law should be reversed to allow the advancement of other forms of human rights law. It makes two proposals. First, reimagine human rights law and international human rights law as separate categories. Specifically, classify international human rights law as a sub-category of human rights law. This distinction highlights the need to …

Promoting Distributional Equality For Women: Some Thoughts On Gender And Global Corporate Citizenship In Foreign Direct Investment, Rachel J. Anderson

Scholarly Works

This essay applies a legal theory of global corporate citizenship to the question of women’s distributional equality in foreign direct investment. It proposes ways that a legal theory of mandatory global corporate citizenship can expand the ways we think about regulating transnational corporations and promoting gender equality.

The Framers' Search Power: The Misunderstood Statutory History Of Suspicion & Probable Cause, Fabio Arcila, Jr.

Scholarly Works

Originalist analyses of the Framers’ views about governmental search power have devoted insufficient attention to the civil search statutes they promulgated for regulatory purposes. What attention has been paid concludes that the Framers were divided about how accessible search remedies should be. This Article explains why this conventional account is mostly wrong and explores the lessons to be learned from the statutory choices the Framers made with regard to search and seizure law. In enacting civil search statutes, the Framers chose to depart from common law standards and instead largely followed the patterns of preceding British civil search statutes. The …

The Fair Housing Act At Forty: Predatory Lending And The City As Plaintiff, Ngai Pindell

Scholarly Works

The availability of credit, to individual borrowers and to communities, is an integral factor shaping the geography of housing opportunity. Cities are shaped by the housing and borrowing choices of their residents and the attendant mobility -- or lack of mobility -- of families. When lenders deny credit to neighborhoods or borrowers because of race, communities suffer. And when lenders flood these same neighborhoods with subprime or predatory loan products, the communities suffer once again. The economic gains of individuals and of communities in cities over the last several decades are threatened by massive property devaluations, loss of equity, and …

Home Sweet Home? The Efficacy Of Rental Restrictions To Promote Neighborhood Stability, Ngai Pindell

Scholarly Works

Homeownership is an enduring and fundamental American tradition whose economic and social benefits are well examined and have received renewed attention in recent articles and books. Tax laws encourage homeownership; debtor-creditor and property laws protect homeowners; and constitutional protections defend homeowners from governmental attempts to exercise eminent domain.

The current economic and housing crises have forced commentators and policymakers to reexamine the connection between traditional conceptions of homeownership and economic stability, particularly for low-income residents. This article questions that traditional conception by exploring how local governments, in an effort to promote regulatory land use goals, frequently limit homeowners' power to …

Reproducing Gender On Law School Faculties, Ann C. Mcginley

Scholarly Works

This article demonstrates that there is a gender divide on law school faculties. Women work in inferior sex-segregated jobs and teach a disproportionate percentage of female-identified courses. More than 80% of law school deans are men. Men teach the more prestigious male-identified courses. Women suffer from differential expectations from colleagues and students and often bear the brunt of their colleagues' bullying behaviors at work. Using masculinities studies and other social science research to identify gendered structures, practices, and behaviors that harm women law professors, this article provides a theoretical framework to explain why women in the legal academy do not …

Toward Global Corporate Citizenship: Reframing Foreign Direct Investment Law, Rachel J. Anderson

Scholarly Works

This article argues that modern foreign direct investment law is a vestige of the colonial era during which early forms of transnational corporations emerged. Unlike international trade law and despite the dramatic developments of the twentieth century, foreign direct investment law remains largely unchanged. Due to a lack of political will, prior multilateral efforts to implement comprehensive foreign direct investment law reforms have been largely unsuccessful. However, in recent years, growing political will has emerged under the umbrella of Global Corporate Citizenship and related movements. This article posits that Global Corporate Citizenship is an opportunity to reframe and reform foreign …

Civil Rights And Related Decisions, Eileen Kaufman

Scholarly Works

This article analyzes two cases from the October 2006 Supreme Court Term, Ledbetter v. Goodyear Tire & Rubber Co. and Gonzales v. Carhart. The cases have much in common, even though Ledbetter concerns pay disparity claims based on gender and Gonzales concerns second trimester abortions. Both are five-four decisions which demonstrate how profoundly the appointment of Justice Samuel Alito to occupy Justice Sandra Day O'Connor's seat has affected the balance of power on the Court. The net result of this shift has been a devastating setback for women's rights. Both decisions prompted Justice Ruth Bader Ginsburg to uncharacteristically read aloud …

No Brown Towns: Anti-Immigrant Ordinances And Equality Of Educational Opportunity For Latina/Os, Tom I. Romero Ii

Scholarly Works

No abstract provided.

Don’T Ask, Don’T Tell: A Dying Policy On The Precipice, Robert I. Correales

Scholarly Works

This article examines the labyrinth of statutes, regulations and directives that composed “Don’t Ask, Don’t Tell,” a policy which those suspected of being gay or lesbian find difficult, if not impossible, to escape. It also analyzes the real-world and military consequences of the de facto ban and the effects of the moral condemnation of gays and lesbians by the U.S. Supreme Court upon deliberations of the policy in Congress and upon lower courts that have presided over challenges to the policy. Relying heavily on the legislative history of “Don’t Ask, Don’t Tell,” and the social and political context under which …

Something Old, Something New: Civic Virtue And The Case For Same-Sex Marriage, Tiffany C. Graham

Scholarly Works

In 1993, the Supreme Court of Hawaii issued a decision that forced the question of same-sex marriage from the hinterland of academic speculation to the front pages of newspapers all over the country. The nation was stunned when the court in Baehr v. Lewin held that same-sex marriage might be compelled by the state constitution of Hawaii. Since the Baehr decision, same-sex marriage has received a significant amount of attention. Many states have passed “baby DOMAs,” all of which limit marriage to the union of a man and a woman. In addition, several states have passed constitutional amendments that accomplish …

Race-Conscious Student Assignment Plans After Parents Involved: Bringing State Action Principles To Bear On The De Jure/De Facto Distinction, Michael Wells

Scholarly Works

In Parents Involved in Community Schools v. Seattle School District No. 1, a sharply divided Supreme Court struck down two race-conscious school assignment plans aimed at achieving greater racial integration of the public schools. Taking Parents Involved as a starting point, this Article looks ahead to the future of litigation over student assignment plans. By striking down the Seattle and Louisville plans, the decision may "require hundreds of school districts to rethink race-based policies that they use voluntarily to desegregate schools." At the very least, the 5-4 ruling almost certainly did not put an end to race-conscious integration plans or …