Civil Rights and Discrimination Commons^™

Judicial Erasure Of Mixed-Race Discrimination, Nancy Leong

Faculty Publications

No abstract provided.

Brilliant Disguise: An Empirical Analysis Of A Social Experiment Banning Affirmative Action, Deirdre M. Bowen

Faculty Articles

The notion of a colorblind society captured the imagination of voters who passed propositions banning affirmative action in higher education admissions in California, Washington, more recently in Michigan, and on November 4th, in Nebraska. Affirmative action is no longer required, proponents assert, because society no longer judges people by their skin color. They argue that the need for affirmative action is a vestige of a bygone era, and such a policy only creates resentment and stigma. This paper confronts the colorblind ideal myths of stigma and resentment, which appear at much greater rates in anti-affirmative action states. In analyzing data …

Making Up Is Hard To Do: Race/Gender/Sexual Orientation In The Law School Classroom, Robert S. Chang, Adrienne D. Davis

Faculty Articles

This exchange of letters picks up where Professors Adrienne Davis and Robert Chang left off in an earlier exchange that examined who speaks, who is allowed to speak, and what is remembered.' Here, Professors Davis and Chang explore the dynamics of race, gender, and sexual orientation in the law school classroom. They compare the experiences of African American women and Asian American men in trying to perform as law professors, considering how makeup and other gender tools simultaneously assist and hinder such performances. Their exchange examines the possibility of bias that complicates the use of student evaluations in assessing teaching …

Rock Climbing With The Gotandas, Robert S. Chang

Faculty Articles

No abstract provided.

Rodrigo's Portent: California And The Coming Neocolonial Order, Richard Delgado

Faculty Articles

No abstract provided.

The Alienage Spectrum Disorder: The Bill Of Rights From Chinese Exclusion In Guantanamo, Won Kidane

Faculty Articles

The fundamental notion that increased ties to the polity of the United States would entitle an alien to better rights is deeply-rooted in the jurisprudence. Ordinarily, these rights tend to strengthen as one moves forward from the beginning of the spectrum, which might involve the most attenuated contact, as in the case of enemy aliens detained by United States military in a foreign land or an overseas visa applicant, to the end of the spectrum, which might involve a United States citizen. While this seems to make perfect sense, this article argues that a closer examination of the century-old jurisprudence …

Pretext In Peril, Natasha T. Martin

Faculty Articles

This Article addresses the connections among substance, procedure, and equality in the American workplace. Exploring the deepening struggle for plaintiffs under Title VII of the Civil Rights Act of 1964, this Article seeks to add clarity to an enduring quandary—why does Title VII fail to combat the prejudicial disparate treatment it was designed to eradicate? This Article offers a critique of the hardships shouldered by plaintiffs in proving contemporary workplace discrimination.

Challenging the seemingly unfettered discretion of the courts in evaluating claims of workplace bias, this Article pursues the interplay of procedural and substantive law to expose how courts "chip …

Asian Americans And The Road To The White House: Musings On Being Invisible, Robert S. Chang

Faculty Articles

In October 1993, the Asian Law Journal published its inaugural issue, featuring its first article entitled "Toward an Asian American Legal Scholarship: Critical Race Theory, Post-structuralism, and Narrative Space." I ASIAN L.J. 1 (1993). With this opening salvo, the Asian Law Journal (now the Asian American Law Journal) launched only the second law journal in the United States dedicated to Asian American Jurisprudence. The author of this landmark article is none other than Professor Robert S. Chang, one of the most recognized figures in Asian American Jurisprudence and Critical Race Theory. To celebrate the fifteen years since the publication of …

Engineering The Endgame, Ellen D. Katz

Michigan Law Review

This Article explores what happens to longstanding remedies for past racial discrimination as conditions change. It shows that Congress and the Supreme Court have responded quite differently to changed conditions when they evaluate such remedies. Congress has generally opted to stay the course, while the Court has been more inclined to view change as cause to terminate a remedy. The Article argues that these very different responses share a defining flaw, namely, they treat existing remedies as fixed until they are terminated. As a result, remedies are either scrapped prematurely or left stagnant despite dramatically changed conditions. The Article seeks …

Religion-Based Claims For Impinging On Queer Citizenship, Bruce Macdougall, Donn Short

All Faculty Publications

Competing claims for legal protection based on religion and on sexual orientation have arisen fairly frequently in Canada in the past decade or so. The authors place such competitions into five categories based on the nature of who is making the claim and who is impacted, the site of the competition, and the extent to which the usual legal and constitutional norms applicable are affected. Three of the five categories identified involve a claim that a religion operate in some form in the public area so as to impinge on the usual protection of equality on the basis of sexual …

Barriers To Financing: Is European Union Indirect Discrimination Law The Answer For Female Entrepreneurs?, Adam G. Panopoulos

Cardozo Journal of Equal Rights & Social Justice

The note explores whether European Union indirect discrimination law, particularly Directive 2004/113/EC, can address the barriers female entrepreneurs face in accessing financing. It examines the application of indirect discrimination principles to financial services, analyzing ECJ case law and advocating for the integration of gender mainstreaming to enhance gender equality in entrepreneurship.

Drawing Bisexuality Back Into The Picture: How Bisexuality Fits Into Lgbt Legal Strategy Ten Years After Bisexual Erasure, Heron Greenesmith

Cardozo Journal of Equal Rights & Social Justice

The article argues that bisexuality remains legally invisible, both in legal culture and jurisprudence, due to its inherent complexity and the reliance of legal arguments on a binary understanding of sexual orientation. It extends Kenji Yoshino's theory of bisexual erasure into the legal context, proposing that bisexuality is not just socially invisible but also legally inconspicuous. The analysis focuses on two main hypotheses: first, that bisexuality is inherently invisible to the law beyond deliberate erasure, and second, that where bisexuality is legally relevant, it complicates legal arguments that depend on the binary of sexuality. The article concludes by advocating for …

Sharing The Stage: Using Title Vii To End Discrimination Against Female Playwrights On Broadway, Marisa Rothstein

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Resurrecting The Promise Of Brown: Understanding And Remedying How The Supreme Court Reconstitutionalized Segregated Schools, Kimberly J. Robinson

Law Faculty Publications

The Supreme Court's decision in Brown v. Board of Education held that separate educational facilities were "inherently unequal." After tolerating substantial delay and evasion of the requirements of Brown, the Court eventually required school districts to dismantle the dual systems by eliminating all traces of separate schools and creating integrated schools. In contrast to numerous scholars that have contended that many of the Court's later school desegregation decisions withdrew from or grew weary of school desegregation, this Article argues that the effect of many of the Court's leading school desegregation decisions was to reconstitutionalize segregated schools. Furthermore, the Court's …

Response: Anti-Discrimination Law In Peril?, Trina Jones

Faculty Scholarship

No abstract provided.

Cuomo V. Clearing House Association: Protecting Minorities From Discriminatory Lending Practices By Upholding States' Right To Enforce Predatory Lending Laws, Elvira Pereda

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Alienated: A Reworking Of The Racialization Thesis After September 11, Ming H. Chen

American University Journal of Gender, Social Policy & the Law

No abstract provided.

“Immutability” And Stigma: Towards A More Progressive Equal Protection Rights Discourse, M. Katherine Baird Darmer

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Gimme Some More: Centering Gender And Inequality In Criminal Justice And Discretion Discourse, Shaun Ossei-Owusu

American University Journal of Gender, Social Policy & the Law

No abstract provided.

'Struck' By Stereotype: Ruth Bader Ginsburg On Pregnancy Discrimination As Sex Discrimination, Neil S. Siegel, Reva B. Siegel

Faculty Scholarship

This is an attempt at recovery. This Essay hopes to call attention to then-Professor Ruth Bader Ginsburg's merits brief in Struck v. Secretary of Defense. The brief has been under appreciated in part because the Supreme Court declined to decide the case. But anyone seeking to understand the origins and nature of Justice Ginsburg's views on sex discrimination would be well advised to read this brief. So would anyone interested in reimagining the bounds of constitutional possibility in the realm of gender equality.

A Tale Of Two Paradigms: Judicial Review And Judicial Duty, Philip A. Hamburger

Faculty Scholarship

What is the role of judges in holding government acts unconstitutional? The conventional paradigm is "judicial review." From this perspective, judges have a distinct power to review statutes and other government acts for their constitutionality. The historical evidence, however, reveals another paradigm, that of judicial duty. From this point of view, presented in my book Law and Judicial Duty, a judge has an office or duty, in all decisions, to exercise judgment in accord with the law of the land. On this understanding, there is no distinct power to review acts for their constitutionality, and what is called "judicial review" …

Civil Rights And Federal Courts: Creating A Two-Course Sequence, Howard M. Wasserman

Faculty Publications

No abstract provided.

Sticky Intuitions And The Future Of Sexual Orientation Discrimination, Suzanne B. Goldberg

Faculty Scholarship

As once-accepted empirical justifications for discriminating against lesbians and gay men have fallen away, the major stumbling block to equality lies in a set of intuitions, impulses, and so-called common sense views regarding sexual orientation and gender. This Article takes up these impulses and views, which I characterize as "sticky intuitions," to consider both their sustained influence and the prospects for their destabilization. In this effort, I first offer a framework for locating the intuitions' work within contemporary doctrine, culture, and politics. I then advance an extended typology of the intuitions themselves, drawing from case law, scholarly literature, and public …

Making Up Is Hard To Do: Race/Gender/Sexual Orientation In The Law School Classroom, Adrienne D. Davis, Robert S. Chang

Scholarship@WashULaw

This exchange of letters picks up where Professors Adrienne Davis and Robert Chang left off in an earlier exchange that examined who speaks, who is allowed to speak, and what is remembered. Here, Professors Davis and Chang explore the dynamics of race, gender, and sexual orientation in the law school classroom. They compare the experiences of African American women and Asian American men in trying to perform as law professors, considering how makeup and other gender tools simultaneously assist and hinder such performances. Their exchange examines the possibility of bias that complicates the use of student evaluations in assessing teaching …

Ensuring The Ethical Representation Of Clients In The Face Of Excessive Caseloads, Peter A. Joy

Scholarship@WashULaw

The right of one charged with [a] crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impar-tial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with [a] crime has to face his accusers without a lawyer to assist him.

You can't give me too many cases, too many clients, …

The Future Of Disparate Impact, Richard A. Primus

Articles

The Supreme Court's decision in Ricci v. DeStefano foregrounded the question of whether Title VIl's disparate impact standard conflicts with equal protection. This Article shows that there are three ways to read Ricci, one of which is likely fatal to disparate impact doctrine but the other two of which are not.

Sexual Rights And State Governance, Katherine M. Franke

Faculty Scholarship

We sit at an interesting juncture in the evolution (in some cases, devolution) of the idea of sexual rights in international law. For at the very moment that we are experiencing a retraction in both domestic and international commitments to rights associated with sexual and reproductive health, we see sexual rights of a less-reproductive nature gaining greater uptake and acceptance. It is the moral hazard associated with perceived gains in the domain of international rights for lesbians and gay men that I want to address today. In the end, the point I want to bring home is that a particular …

Close Encounters Of Three Kinds: On Teaching Dominance Feminism And Intersectionality, Kimberlé W. Crenshaw

Faculty Scholarship

I am pleased to be a part of this symposium honoring Catharine MacKinnon's groundbreaking work as a feminist theorist, legal advocate, and global activist. This invitation not only presents the opportunity to examine the interface between dominance theory and intersectionality, but also the occasion to delve further into the vexed rhetorical politics surrounding feminism and antiracism.

By now the fact that there has been a contested relationship between antiracism and feminism is almost axiomatic.1 Yet as with most things that have become matters of common knowledge, there is a risk that generalizations can metastasize into hardened conclusions that obscure rather …

The Basic Law At 60 - Equality And Difference: A Proposal For The Guest List To The Birthday Party, Susanne Baer

Articles

The German constitution, named "Basic Law", has proven to work although many did not believe in it when it was framed. Others emphasize desiderata. Sabine Berghahn commented at the 50th birthday that it has developed "far too slowly and [some] has even gone completely wrong." ' Jutta Limbach, former President of the Federal Constitutional Court, observed that constitutional history was "anything but regal, but very difficult and full of obstacles. '' 2 Former Chancellor Willy Brandt famously called the constitution "a snail on thin ice." So what is missing when we analyze the Basic Law, and what should be finally …

The Story Of Bob Jones University V. United States: Race, Religion, And Congress' Extraordinary Acquiescence, Olatunde C.A. Johnson

Faculty Scholarship

On May 25, 1983, the Supreme Court ruled 8-1 that the United States Internal Revenue Service (IRS) had authority to deny tax-exempt status to Bob Jones University, Goldsboro Christian School, and other private and religious schools with racially discriminatory educational policies. The Court relied on the statute’s broad purpose and placed significant weight on Congress’ failure to enact legislation to overturn the IRS policy. A complete account of the legislative history, provided here, both supports and undercuts the Court’s opinion. More importantly, this story provides an account of the dynamic interaction among a Supreme Court critical of racial integration, a …